Adam & Anor v Gold Coast City Council [2007] QPEC 25

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Adam & Anor v Gold Coast City Council [2007] QPEC 025 PARTIES: NOEL ALEXANDER ADAM And WANDPINE PTY LTD Appellants and GOLD COAST CITY COUNCIL Respondent FILE NO/S: BD 947 of 2006 DIVISION: Appellate PROCEEDING: Preliminary hearing in applicant appeal against deemed refusal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 28 February 2007 DELIVERED AT: Brisbane HEARING DATE: 5, 6, 8, 9, 12 February 2007 JUDGE: Robin QC DCJ ORDER: Preliminary point resolved in Respondent’s favour CATCHWORDS: Integrated Planning Act 1997 s 1.2.3(1)(d), s3.3.6, s 3.5.11(b)(b) Developer’s appeal against deemed refusal of development permit for a subdivision – in course of proceeding Council offered a preliminary approval, but at hearing contended refusal of the Development Application was a proper outcome – permit held premature where Council sewerage infrastructure to service the subdivision was not yet constructed, designed or funded and its routing was still unknown – general confidence held that that within the currency period infrastructure would be completed was insufficient to justify the giving of a development permit, appropriately conditioned. COUNSEL: Fynes-Clinton for Appellants -- 1 of 38 -- 2 Gallagher QC and T Trotter for Respondent SOLICITORS: DLA Phillips Fox for Appellants Minter Ellison for Respondent [1] This an “applicant” appeal against a deemed refusal of a development application instituted under s 4.1.27 of the Integrated Planning Act 1997 (IPA). See sub-section (1)(e). The 77,550 m2 site at 25 and 31 Karingal Drive, Pimpama is lots 34 and 35 on RP 152382. The owners of the lots, the Degens and the Lochs, provided written consent to the making of the combined material change of use/reconfiguration of lot application made in April 2004 by Comino Wagner Development Consulting Pty Ltd and Planit Consulting Pty Ltd. It sought a development permit for a material change of use (residential development) and reconfiguration of lot. The accompanying report refers to “88 new lots together with a park area of 11810m2 . Of these 88 lots, 6 are proposed as attached dwelling lots, 81 as detached dwelling lots and the remaining lot (86 lots) is identified for a Child Care Centre.”1 The appellants rated no mention at that stage, but no challenge has been made by the respondent Council to their entitlement to pursue the appeal. [2] Whether the Council was entitled to submit in the appeal that the application should be refused became contentious. By Judge Wilson’s order of 3 May 2006, which extended a couple of indulgences to the appellants, it was ordered that by a fixed date “the respondent notify the appellant in writing of its attitude to the development application the subject of this appeal. If the respondent’s attitude is that the application ought to be refused, it must also state the grounds for refusing the application.” The Council’s solicitors on 31 May 2006 advised that the Council (at a meeting on 29 May 2006) had endorsed a recommendation of its City Planning -- 2 of 38 -- 3 Committee that the applicant(s) be notified that Council approves the issue of a preliminary approval (s 3.1.5) for a Material Change of Use and Reconfiguring a Lot for residential purposes, this without approving the specific layout applied for or affecting the need for development applications to be assessed against the applicable planning scheme current at the time of the application; net residential density between 20 and 25 dwellings per net hectare (comprising a mixture of dwelling types) was indicated as a condition. The condition most pertinent at present was as follows: “This preliminary approval cannot be superseded by a development permit for Reconfiguring a Lot or for a Material Change of Use until such time as the applicant can demonstrate a suitable and achievable point of connection to Council’s water supply and sewerage network to the satisfaction of Gold Coast Water. Connection to any permanent or temporary sewerage infrastructure system can only be achieved if the capacity required to service the proposed development is available.” There was to be advice to the applicants of a refund of fees paid at the time of application, if requested by letter and that “if the applicant notifies Council in writing that the decision is accepted without dispute it would not exercise any right of appeal to the Court in respect of this decision, this decision notice may be taken to be the development approval.” The “offer” made in those terms was never accepted. The appeal, having been filed on 3 April 2006, went ahead. [3] Whether or not the Council is entitled to resile from a stance (if it did take the stance) that there should be a preliminary approval and to contend in the appeal that the application should be refused, essentially for lack of information about the development application (and specifically in relation to the sewerage connection) fortunately need not be considered. One would think that, the court having become 1 At the Council’s suggestion, the Child Care Centre is not being proceeded with at this stage. The parties have co-operated to ensure that non-compliance with ss 3.2.9 and 3.2.12(2)(c) not prevent the appeal’s proceeding on the changed basis: see (B), 1 and 2 of Judge Wilson’s order of 3 May 2006 -- 3 of 38 -- 4 the decision maker, public interest considerations, rather than the way in which the Council may have conducted itself in the appeal, would be determinative, and that if refusal is the right outcome, as the expert planner engaged by the Council (Mr Brown) contended, then this should be the outcome. As the appeal unfolded, it did not appear that the appellants encountered any difficulty in adducing evidence from their own (and indeed, the Council’s) witnesses that might be regarded as undercutting Mr Brown’s approach - as a description of what occurs in practice. [4] The Council’s practical suggestion to the court was that with a view to saving the appellants from having to start all over again with their impact assessable development application, the appeal should be adjourned generally and the application assessed at the appropriate time in the future within the context of the appeal. This would spare the appellants a good deal of delay, trouble and cost and be consistent with the Council’s approach communicated in its letter of 26 July 2004 that issuing of a development permit could not be supported “until sufficient waste water infrastructure is in place”, inviting withdrawal of the application on the basis of a full refund of application fees. [5] The Council submits the “appropriate time” for assessment is when its own sewerage infrastructure in the area capable of conveying effluent to the Pimpama Waste Water Treatment Plant (whose completion is scheduled at the end of this year) is in place. The only such plant practically available for the moment is at Coombabah; temporary provision is in place for taking limited effluent there from Pimpama (East Coomera) capped by the number of “ET’s” (presumably Equivalent Tenements) allocated to defined sub-catchments. A meeting of experts concluded that the Council’s concerns that water could not safely be reticulated to the site -- 4 of 38 -- 5 because the likely demand would generate insufficient flow to maintain water quality could be overcome by the introduction of a disinfectant facility. [6] The appellants were unable to submit that the court could consider issuing a development permit at this stage, as the development application has yet to be assessed. On the basis of unavailability of sewerage facilities, the Council eschewed devoting resources to assessing the myriad aspects the application gives rise to, even the most basic, such as layout of the proposed subdivision, a sizeable one of nearly 90 lots. That assessment now must take place within the appeal, under the aegis of the court (Scurr v Brisbane City Council (No. 5) [1973] LGRA 50, 60 – 61; Finlay v Brisbane City Council 36 LGRA 352, 353; Wilson v Hervey Bay City Council 36 LGRA 329, 334; Taylor v Gold Coast City Council 36 LGRA 336, 338). In practice the parties would work co-operatively towards an outcome, leaving it to the court to resolve aspects remaining contentious. The appellants accepted that this exercise would take several months, before the court would be troubled again. [7] Despite the skirmishing that went on, by the end of the appeal, the parties agreed on the matter for determination now: Does the fact that the subject land cannot presently be connected to reticulated trunk sewerage mean that, on that ground, the application for a development permit cannot be approved? That is how the appellants put it. More expansively, the Council asks whether it is appropriate to issue a development permit in respect of a proposed development which is out of sequence with a well considered infrastructure strategy in circumstances where the proposed development cannot yet be connected to sewerage and water infrastructure and in circumstances where the timing of such connection is, at best, uncertain. The appellants are right that as the appeal involves a hearing de novo, the issue should -- 5 of 38 -- 6 be decided on the basis of current circumstances, rather than those at the time of lodgement of the development application. It is not suggested that there has been any change in the applicable law. As it happens, little has changed on the ground except for substantial progress in construction of the Pimpama Waste Water Treatment Plant. There are no mains anywhere near it to convey water for treatment to enable the plant to be commissioned once it is completed. Since the application was lodged there has been some movement towards identifying what and where that connecting infrastructure might be. [8] Mr Fynes-Clinton, for the appellants, submitted the principle was that “a development permit may issue for a development requiring reticulated sewerage, despite the fact that trunk sewerage is not yet available to service the land the subject of the application at the time the application is made and assessed, if the court is satisfied on the evidence that the trunk sewerage will be so available within a time frame coinciding with that within which the development is anticipated to be, or able to be, implemented.” Historically, this court’s predecessor had occasion to consider such matters, particularly in the context of s 33(6A)(e)(v)(A) of the Local Government Act 1936 which required consideration on a rezoning application of whether “sewerage … should be made available to and to each separate parcel … if the land were subsequently sub-divided.” It will be seen that the context is one anterior to any question of reconfiguration. [9] In Tulle v Toowoomba City Council [1986] QPLR 199, 202 Judge Row, faced with (i) expert agreement that sewerage was essential as the relevant land was inappropriate for a septic system, (ii) the Council’s adoption of a Sewerage Strategy Report 17 months earlier “subject to a qualification that certain matters were conditioned upon the availability of funds” allocating the subject land to the -- 6 of 38 -- 7 Glenvale catchment (favoured by the Council) and (iii) expert evidence for the developer that there was a more reasonable line of connection to the existing Drayton catchment as favoured by the developer, said that “on either evidence it is clear that the subject land is capable of being sewered and on the balance of probabilities will be sewered. To that extent, it meets the statutory provisions …”. His Honour went so far as to express the view that the rising main proposed for the Drayton connection ought to be of a dimension of 80 mm, and not 50 mm as proposed by the developer’s expert. He said on the page following: “at the time of a sub-divisional application there may be a change of circumstances. A number of different facts may exist and it is a matter at that time for the Respondent to exercise its discretion according to what may be relevant to such an application.” [10] Mr Fynes-Clinton also referred to his Honour’s decision in Grant v Pine Rivers Shire Council [1991] QPLR 160 where corresponding infrastructure issues were dealt with in the context of the Council’s having approved the proposed rezoning. That appeal resolved into a “conditions” one by objectors. Reference was made to the judge’s expressed satisfaction (see 165) “on the evidence that a water supply service can be supplied to the subject land without prejudice to any other likely development within a reasonable planning horizon.” Mr Fynes-Clinton submitted that the principle of those decisions is unaffected by their being in relation to proposed re-zonings to be followed by possible subdivision in the future. He says the principle still stands that “an approval which is the first step in a series of approvals which will lead to building a sub-division ought not to be refused on the ground that necessary services are not in place at the time of the first approval so long as the evidence establishes that, more likely than not, the services will be there -- 7 of 38 -- 8 by the time the development is ready to proceed and there is an actual need to connect to those services”. [11] Here various authorities for operational works to be carried out would have to be obtained before any actual work is done. (I think Mr Gallagher QC, who appeared for the Council, is right that the development permit sought here may be seen as an authority to do work, in the sense that it is a pre-requisite to the obtaining of authority to actually carry out operational works.) Mr Fynes-Clinton argues that Judge Row’s approach “can be directly translated to the IDAS regime by expressing it in updated language as a principle that an approval for MCU or reconfiguration which forms part of a series of approvals to achieve sub-division ought not to be refused on the ground that necessary services are not in place if the evidence establishes that, more likely than not, the services will be there by the time operational works to specifically authorise connection are likely to be carried out”. He says that is the factual situation here. [12] The paucity of authority apart from rezoning matters is surprising. Only four cases were cited to the court. In Deane v Pioneer Shire Council [1988] QPLR 73, Wylie DCJ said at 89, in an objector appeal against Council approval of a caravan park development at a date when trunk services for water supply and sewerage (which the development was required to be connected to) did not yet exist, that he was “satisfied that adequate water supply and sewerage services are or will be available to the proposed resort”. This was an objector appeal in which the Council was well advanced in providing the necessary services, indicating in the conditions anticipated dates of availability; the conditions contemplated temporary arrangements, “details to be approved by Council”. Powell v Bowen Shire Council [2000] QPELR 113 was a submitter appeal in which Judge Pack said at 116 in a -- 8 of 38 -- 9 passage which seems not to relate to anything contentious before him: “the Council’s approval of this proposal included a requirement that it be connected to sewerage. Sewerage works now in progress indicate that there will be a capacity to connect to sewerage in the very near future.” Mr Powell’s submitter appeal against approval of an application for a material change of use and for preliminary approval for a multiple dwelling failed. More pertinent is Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527, in that it was the Council alleging prematurity in refusing an application for development approvals for a relocatable home park. At 528, Judge Quirk, who was generally unimpressed by that Council’s case, found that “essential services including water, sewerage, electricity and telecommunications are available to the site”; he went on to be critical of the Council’s case for suggesting that construction of a new road link which would improve the site’s access to shopping and other urban facilities “was by no means certain or at best, its timing was unsure.” He accepted evidence of another developer (apparently proposing to construct the link) that it would be completed “within 20 weeks – well before the development commences”. His Honour did not consider the existing access unacceptable in any event. The developer’s appeal succeeded. [13] Finally, there was a reference to a decision of the Victorian Planning Appeals Board, McGinley v City of Frankston (1987) 25 APAD 411. The principle set out in the headnote that “at the time of considering an application for planning permission for a sub-division of land all the planning authority is required to do with respect to issues such as drainage and sewerage is to satisfy itself that there is a process available by which it can ensure at the appropriate time that the pre-requisites of proper drainage and sewerage can and will be achieved” was taken verbatim from -- 9 of 38 -- 10 another recent decision of the Board, which applied Victorian legislation. The passage went on to say that “at the time of considering a planning application that consideration of whether such works are “possible or feasible” does not require the determination of what are “proper” or appropriate works. Such design matters are for a later stage – usually after a sub-divider has gained the encouragement to move to the next step after obtaining the planning permit.” In McGinley the Board described itself as considering “a threshold issue of how much detailed information is required before a planning permit should issue for a cluster subdivision.” This case appears to me to be about works on the developer’s own site and to say nothing about uncertainty as to the provision of public infrastructure to which there must be a connection. [14] The Council’s Specific Development Code Reconfiguring a Lot requires under Infrastructure Connections PC 23, AS 23.3 and AS 23.4 reticulated water supply and reticulated sewerage in accordance with Planning Scheme Policy 11 – Land Development Guidelines. Those Guidelines were before the court and reference was made to the relevant “aim” in 2.2.2(c). One hardly needs to rely on such material to accept that in modern conditions, where 88 (or thereabouts) residential lots ranging from 390 m2 to 1,428 m2 , some for attached dwellings; are proposed, guaranteed availability of reticulated water and sewerage is crucial. No more was given to Council in support of the application than an accompanying engineering report which acknowledged PC 23 and stated that “sewerage works will be constructed in accordance with Council’s “East Coomera Sewerage Infrastructure Strategy” dated November 2003, or its amendment if and when this is completed by Gold Coast Water.” This is clumsily expressed. Mr Gallagher submitted, without -- 10 of 38 -- 11 attracting any correction, that it should be read as referring to completion of the Council’s infrastructure in the ground. [15] There are other instances in the Local Government Court of “prematurity” arguments against an approval where some uncertainty exists as to necessary infrastructure being available when actually required in which the court was not dissuaded from granting approvals. Mr Fynes-Clinton relied heavily on Property Estates Ltd v Brisbane City Council [1988] QPLR 18, where Row DCJ said at 25ff: “Essential to the development proposed by the appellant on the subject land is the Finsbury/McComb Streets traffic link, including the construction of a two lane bridge over Enoggera Creek. The provision of such a link requires the use of land owned by the Council and/or held by the Council in trust together with the utilisation of land owned by the appellant, but outside of the land, the subject of this application. I am satisfied on the evidence on behalf of the appellant that the proposed Finsbury/McComb Streets link is a necessary and essential part of the proposed development for the higher order shopping centre. At this time no application has been made to the respondent to use land which it owns in fee simple or land which it holds in trust for any purposes associated with the proposed road system. It was submitted on behalf of the respondent and respondents by election that in such circumstances granting of the application would be a futility or, alternatively, was premature, and that in such circumstances, the application should be refused. That the bridge and associated roadworks comprise an intricate component of the proposal is accepted by the appellant. It was conceded by senior counsel for the appellant that it would be reasonable for the court to ensure that the subject land, if rezoning were approved, is not used for the proposed development without the proposed roadworks. It was submitted on behalf of the appellant that, to achieve its objective, two alternative procedures were available: (1) the imposition of a condition designed to achieve that result; or (2) provision in any order made under s.9 of the City of Brisbane Town Planning Act deferring the making of the application by the respondent to the Minister until after the necessary approvals have been obtained. It was further submitted that either procedure was within the power of the court and that neither would be an exercise in futility. -- 11 of 38 -- 12 The evidence of Mr Denny indicates, and I accept, that if difficulty arises in relation to the land which the respondent holds as trustee, then a modification in the line of approach to the bridge could avoid a requirement to use any of that land for the purposes of the proposed roadworks. The powers of the respondent under s.30 of the City of Brisbane Act are wide, and include the power to lease and the power to sell. The traffic engineering evidence indicates that the proposed Finsbury/McComb Street link would serve, not only the proposed shopping centre, but would provide for non-shopping centre traffic. The estimates vary from approximately 40 per cent to 60 per cent of the total traffic would be non-shopping centre traffic utilising the proposed link, being that traffic which could leave Kelvin Grove Road at Herston Road and proceed through the link travelling in a general northerly direction. In those circumstances, the provision of the link over land owned by the respondent could be seen as an exercise of the respondent’s powers in relation to road and bridge purposes. The exercise of such a power would require that the appellant initiate the procedure to obtain an approval to use that land. The respondent is under no legal obligation to entertain the application or to make a decision which in general terms could be subject to intervention or control by legal process. In such circumstances it cannot be said that the approval of the subject application would be a clear futility. Walker v Noosa Shire Council (1983) 2 Qd. R. 86 at p.89. The respondent may, within the lawful exercise of its powers, grant the appellant, if it makes an application, such rights so as to effect the bridge crossing. Whether such actions are lawful may depend on the facts and circumstances that are relevant at the time of the decision, if any, of the respondent. Prentice v Brisbane City Council (1966) Qd. R. 394; Thompson v Randwick Corporation 81 C.L.R.; Samerin Pty Ltd v Metropolitan Water Sewerage & Drainage Board (1982) 56 A.L.J.R. 678. On the present material before me, it cannot be said what may be a substantial purpose of the exercise of powers of the respondent’s consent to the use of its land. It was submitted by senior counsel on behalf of the appellant that the requirement of the appellant to obtain other decisions of the respondent and others should not in such circumstances defeat the application. It was submitted that the obtaining of the approval of the respondent to utilise its land may be considered as one of the many conditions precedent to the successful erection of the shopping centre, and that there is no requirement for the appellant to obtain that approval prior to its making an application for rezoning to the respondent. As was said by Thoms J in Walker v Noosa Shire Council (supra) it is not appropriate for the court to decide the order in which approvals must be obtained or to pre-empt other applications by assuming that they will fail. The appellant has not made any such application as may be envisaged to the respondent and as could be expected; consequently -- 12 of 38 -- 13 there is no decision of the respondent as to what its view on such an application may be.” At 28 one finds: “It was submitted that in such circumstances the absence of any consent by the respondent to the use of its land for the proposed Finsbury/McComb Street link and/or approvals from the Land Administration Commission for the partial closure of Bishop Street and/or of the Department of Harbours and Marine in relation to the proposed bridge were indicative that in such circumstances the application was premature. Evidence was adduced from officers of the Land Administration Commission and the Department of Harbours and Marine which establish that each application when made will be considered by each body on its merits. Such an approach is consistent with that referred to in Walker v Noosa Shire Council (supra) and in itself is not a reason for refusal of the application. The absence of any step having been taken by the appellant in relation to obtaining other approvals I am satisfied, does not establish that the application is premature or that the granting of an approval is premature.” The court was not dissuaded from proceeding as indicated in those reasons by the Council’s resolving during an adjournment not to grant the relevant approval. See 36-37. That resolution was not in response to any application. It was considered that there was no estoppel and that the Council might decide differently faced with an application by the developer supported by material for its consideration. His Honour determined to allow only a further 42 days to the appellant developer to obtain the vital consent from the Council. Mr Gallagher, who had been in Property Estates, confirmed that that the development never happened. [16] The difficulty confronting his Honour in Colless v Brisbane City Council [1984] QPLR 235 was the requirement that a developer carry drainage to a point of lawful discharge and that where this involved draining through a third party’s land, Council be satisfied that an easement had been obtained or could be obtained (if necessary under the Property Law Act 1974). The third party was an objector who gave evidence in the appeal and indicated an attitude of refusal (“no detailed nature -- 13 of 38 -- 14 of any proposed easement has been placed before him for his consideration”). Colless was an objector appeal, the Council having approved the development. Walker v Noosa Shire Council was applied, an appropriate condition requiring the obtaining of an easement being ordered. [17] The Council here located a decision of the English Court of Appeal in which Megaw LJ, Lawton LJ and Browne LJ described the approach the Council contended for (Weston Fish Products Ltd v Penwith District Council (1978) 77 LGR 185 at 214): “All the other reasons for refusal of planning permissions seem to us to relate to considerations which were essentially within the discretion of the defendant council as local planning authority. They were entitled to take the view that the applications were premature, if only because the vitally important matters of water supply and effluent disposal had not been settled, nor had the requirements of the highway authority been satisfied. Mr Sparrow said that those matters could have been dealt with by a grant of permission subject to conditions, or by granting planning permission and letting the plaintiffs go ahead with the building at the risk of not being able to operate because of difficulties about water, effluent and highways. Perhaps they could, but clearly the defendant council were fully entitled to decide not to deal with them in that way. The arrangements with the water and highway authorities were not completed until about December; the question whether or not those arrangements involved any “operations” for which planning permission was required was not investigated before us, but in August 1976 it was an obvious possibility that they might. The defendant council were not finally shutting the plaintiffs out; they were saying that the applications with which they were dealing were premature but were inviting the plaintiffs to submit a further application (resolution (a)(i) and (iii)). In our view, they were entitled to decide, in their discretion, that they wished to consider the project as a whole, including the change of use which was actually involved (though not in the respect that the defendant council thought that it was) and the arrangements for water, effluent and highways.” The respect that the court ought to pay to the Council’s views as the planning authority or, as the case may be, the authority charged with devising and establishing infrastructure (such as roads and sewerage) has been acknowledged in -- 14 of 38 -- 15 this court, for example, in Mascotmont Pty Ltd v Bundaberg City Council [1997] QPELR 350, 352, cited, with other authorities, in Jones Flint & Pike Pty Ltd v Maroochy Shire Council [1999] QPELR 434. Harderan v Logan City Council [1989] 1 Qd R 524, decided upon s 20B of the City of Brisbane Town Planning Act 1964-1986, was accepted as establishing that this court is not entitled under the guise of imposing a condition to exercise any jurisdiction to order a local government to carry out works or, indeed, to impose any condition requiring a developer to contribute should a local authority carry out work which the court could not order or require it to carry out. [18] One would be reluctant to espouse an inflexible rule that the court could never approve a development permit where trunk sewerage to which the development proposal required connection was not constructed (and/or operational); there may be many occasions when certainty can be felt that it is only a matter of some limited time before a useable connection is available. Here, however, we are far from enjoying such certainty, however much confidence may be felt that the co-operative efforts of the Council and relevant developers and contractors will result in a useable connection being identified and available within the normal four year currency period of the development permit the appellants seek. [19] Even applying a test along the lines contended for by Mr Fynes-Clinton, the court cannot make the factual finding favourable to the appellants (who bear the onus) which is required. Necessary works to connect the appellant’s site to the Pimpama Waste Water Treatment Plant in Kerkin Road a couple of kilometres north of Yawalpah Road (whose construction is well advanced and likely to be completed by the end of this year) include the construction of a main from Yawalpah Road along Kerkin Road, and a pumping station (“PSB”) on the northern side of Yawalpah -- 15 of 38 -- 16 Road, somewhere opposite the continuation of Kerkin Road to the south and Cunningham Road, further to the west – probably much nearer the latter. The next north-south road to the west is Dixon Drive, the next after that Gawthern Drive, which forms a “T” with Karingal Drive. There is to be a falling main along the northern side of Yawalpah Road leading to PSB. The site falls in elevation from Karingal Drive. Gravity sewers will be required within the site and to (and through) whatever connection is established to the Yawalpah Road main. It is undetermined whether the gravity sewer from the site boundary will connect across private land from the north-west corner or from the north-east corner across public land of which the Council is trustee for park purposes. [20] While Mr Dover, giving evidence for the appellants, was confident that levels were such that there would be no difficulty in establishing a connection, I think there are simply too many unknowns here. We do not know what the level of PSB will be. The routing of the Yawalpah Road main is unknown. The terrain is undulating, so that, if the main is to be placed in the road reserve, a good deal of expensive tunnelling will be necessary. To obviate that, discussions are in train with the developer of Gainsborough Greens, a large development on the northern side of Yawalpah Road east of Gawthern Drive. The tunnelling mentioned can be avoided by resorting to a couple of substantial deviations of the gravity main into Gainsborough Greens which it is expected will skirt the “development footprint”. The developer (Mirvac) provided a witness to confirm its attitude of co-operation. Its own proposed development will require access to the trunk main. The evidence of Mr Dover (also engaged actively with the Gainsborough Greens development), and, indeed, that of Council officers, confirms the sanguine expectations of all involved. Easements are expected to be granted. Assuming that happens by -- 16 of 38 -- 17 agreement, the delay which resumptions under the Acquisition of Land Act may occasion will not have to be faced. For the moment, assuming the main will traverse Gainsborough Greens, no-one knows where it will be: the design work has not been done. In these circumstances, notwithstanding that practical people may well co-operate to bring about some finality, that is months away yet, at the very best. There is a chance, which cannot be ignored, that unexpected delays might occur. While the Council has appointed a suitably experienced company to design and manage construction of the whole of the sewerage infrastructure for the Pimpama/East Coomera area and provided for funding of its services and of some particulars works, there is no funding in place for components vital to a sewerage connection for the subject site. [21] Exhibit 19 is a “Council Budget 2006-07 Four Year Works Programme By Service For The Financial Years 2006-07 to 2009-10” which makes it clear the projects shown for 2006-07 are adopted as part of the budget for that year, whereas “all projects scheduled in years 2007/08 to 2009/10 represent a notional program of works and remain subject to review and may change subject to available funds.” The Yawalpah Road Trunk sewer is NW 74 as appears from page 247 of 294. The “funding” allocated to it, despite its relatively high priority, appears under the year 2008/09. It has been suggested the $4m tentatively allocated would be insufficient. While it should be acknowledged that we are still well within a four year currency period, in the circumstances, which include that what is to be funded is work of substantial proportions not yet even on the drawing board, the court can make no finding to support proceeding at this time to a development permit, even a conditioned one. -- 17 of 38 -- 18 [22] Among the circumstances making it rather unrealistic to ignore the Council’s views about assuming what infrastructure will be in place, and when, is that the appellants’ application does not stand alone. Their counsel conceded that if they were entitled to a development permit at this stage, so would be a clutch of other applicants depending on connection to the Pimpama Waste Water Treatment Plant (PWWTP). This is not the only appeal in the court raising that very consideration. It would tend to create an untidy planning situation to have hundreds of residential allotments in various developments in the area all approved notwithstanding uncertainty of the kind encountered here about sewerage connections. The overall picture adds some weight to concerns expressed by Council officers (which no doubt can be attributed to the Council) that unwelcome publicity and developer and political pressure may be brought to bear against the Council if it is thought to be dilatory about getting associated public infrastructure constructed and commissioned. It is convenient to note here that commissioning of the PWWTP does not depend on the Yawalpah Road trunk main, but on effluent to be conveyed from areas directly to its south. Illustrative of the Council’s approach, which I consider both practical and reasonable, is Mr Hallgath’s evidence that if there were to be a development permit he would “be in a position to at least condition my elements by around June or July [this year]” – this being subject to necessary easements (precisely located) being in place through Gainsbrough Greens, failing which another half year or so would be needed. See transcript pages 450-51. [23] Considerable attention was paid to whether the Council had discriminated against the appellants in the sense of granting development permits (appropriately conditioned) to other applicants whose proposals were said to be in similar case. The appellants established instances of the Council granting development permits in -- 18 of 38 -- 19 circumstances argued to be indistinguishable from the appellants’. Their solicitor’s letter of 2 February 2007 advises that the condition proposed, “if the Court allows the appeal and finds that a development permit should be issued in respect of the development application, would be formulated in the Council’s standard wording precluding the survey plan for the sub-division from being sealed until a satisfactory connection to Council’s reticulated sewerage system is able to be provided.” (Mr Fynes-Clinton described withholding sealing as a “furphy”, as this is precluded by the applicable rules in any event.) [24] Mr Fynes-Clinton identified exhibit 22, a decision notice referable to the “QM Properties” property at 2 Kerkin Road South dated 22 November 2005 approving the issue of a development permit for material change of use and for reconfiguration (104 lot subdivision and park) on conditions, as exemplifying the “standard wording”. The sewerage conditions are as follows: “47 At the cost of the developer, provide a temporary sewerage connection from the site to the Pump Station PA9 (at the corner of Foxwell Road and the M1 Motorway) by constructing 225 mm rising main in accordance with Council’s East Coomera Sewerage Infrastructure Strategy (May 2004). 48 The temporary connection to Pump Station PA9 will be operational until the proposed Pimpama Wastewater Treatment Plant is built in 2007. Temporary sewerage connection from the proposed development to Pump Station PA9 has the following components: a construction of the Pump Station PAF07 b 225 mm rising main from Pump Station PAF07 up the north-eastern boundary of Coomera Resort’s land (Lot 40 SP165365) to connect to the rising main to be built through Coomera Resort land (note that at the time of writing this condition an easement through the Coomera Resort land has been obtained). c 225 mm rising main through Coomera Resort land up to the railway line. -- 19 of 38 -- 20 d 675 mm gravity main through Oakey Creek North up to Pump Station PA09 (negotiation for easement acquisition is continuing with Coomera Resort however Council can’t provide any guarantee that this will happen). The developer must bear cost for items 1 and 2 above. The developer would be repaid pro rata contributions as subsequent developments connect to this system, in accordance with the East Coomera Sewerage infrastructure Strategy (May 2004). Plan sealing for the development will not be approved until the whole sewer line from the Pump Station PAF07 to Pump Station PA09 is complete (including the 675 mm gravity main in item (d) above). 49 The developer shall construct reduced infiltration gravity sewerage reticulation to service all freehold lots within the estate and connect the reticulation to Council’s existing sewerage network at a point nominated by Council. 50 The developer shall provide an overall sewerage reticulation schematic plan for the proposed development to demonstrate how the development is to be connected to Council’s existing sewerage network. Allowance shall be made for any external catchments that may drain through the development. The schematic sewerage plan must be approved by GCW, prior to the submission of the operational works application for the first stage of the development. 51 Unless approved otherwise by GCW, this subdivision shall not be sealed unless the associated external sewerage works are completed. 52 The design, standard and construction of the reduced infiltration gravity sewer reticulation system (both external works and works internal to each lot within the subdivision) is to be in accordance with Council’s Land Development Guidelines as amended by the interim standard for reduced infiltration gravity sewers. 53 Easements shall be provided for all gravity sewers and rising mains where not located in road reserve. Easement widths shall be approved by Council and shall be not less than 3 m wide and make allowance for future access and maintenance. 54 All new pump stations and their access driveways shall be located on a separate lot that is to be transferred (in fee simple) to and at no cost to Council.” Conditions 47 and 48 would not be applicable. Notwithstanding the reference to the East Coomera Sewerage Infrastructure Strategy (ECSIS) in application documentation delivered to the Council in April 2004 (see para [14] above), the -- 20 of 38 -- 21 appellants have disavowed any interest in an allocation from the quota allotted to the relevant precinct or contributing catchment. Catchment “C”, where the site is, was allocated 890 ET of a total of 4,350. [25] The Council relied on statements in the current version of the ECSIS (January 2006) in support of its approach, such as the following at pages 9 and 10 of 36 (GCW is Gold Coast Water, a “business arm” of the Council): “12. PROCESS FOR ASSESSMENT OF DEVELOPMENT APPLICATIONS To ensure that wastewater services are provided in an equitable and coordinated fashion, development applications will be processed based on the ability to connect to the preferred sewer network. GCW has reviewed the sewer network requirements to enable all lots in the East Coomera area to be connected. Drawings ECSIS 01 to 08 show the preferred sewer network to service the area. Key considerations in assessing each application in regards to wastewater servicing are as follows: ● The existing capacity (unallocated ET within the limits identified in Table 1); ● Whether the proposed development can be connected to existing trunk infrastructure; or ● Whether the proposed development can be connected to proposed trunk infrastructure where the proposed trunk infrastructure is consistent with the regional plan; and ● Whether the size of the proposed development is achievable (having regard to the existing capacity and the timing of future capacity improvements to the overall wastewater system). Council is entitled to resist departure from its preferred strategies, even where a proposed alternative mode of connection may be practicable in an engineering sense. Under this approach, a development will only be able to be granted a development permit if it can be demonstrated that it is able to connect to the preferred sewerage network as set out in Drawings ECSIS 01 to 08. In many instances developments will only be able to connect to the sewerage network by constructing sewers through neighbouring properties. It may be difficult for some developments to gain access -- 21 of 38 -- 22 to the neighbouring lands. In some cases it may be appropriate for Council to initiate land resumption processes along the sewer alignment in accordance with the preferred sewerage network. GCW proposes to ● Consult with each developer regarding the size and staging of their proposal to determine a reasonable/realistic number of lots that can be achieved. It is proposed that Council officers (from PE&T and GCW) meet with each applicant at pre- lodgement stage to negotiate these issues; and ● Impose a reduced currency period on Development Permits issued to ensure that the development proceeds diligently. The permit will lapse if the plan of subdivision is not given to Council for endorsement before the end of the currency period. Appropriate currency periods are to be determined having regard to: a diligent but realistic/feasible timeframe for the development to be completed (ie. including civil works); existing capacity; and the timing of future capacity improvements to the overall wastewater system. If the permit lapses, then the ET allocated for that particular development will go back into the capacity pool for re-allocation.” and at page 22: “The original strategy indicated that development applications will be processed on first in basis. Since this time, Council has received further applications, which in total will exceed the current capacity for the East Coomera area. A review of the principles under which applications will be assessed was undertaken which indicated that the coordination of wastewater servicing to the area may be compromised under the first in basis approach. A continuation of the first in basis approach will potentially result in out of sequence development throughout the region. To ensure that wastewater services are provided in an equitable and coordinated fashion, development applications will be processed based on the ability to connect to the preferred sewer network. Gold Coast Water has reviewed the sewer network requirements to enable all lots within the East Coomera area to be connected. Drawings PCWF 01 to 10 shows the preferred sewer network to service the area. Key considerations in assessing each application in regards to wastewater servicing are as follows: ● The existing capacity (unallocated ET within the limits of the system capacity); -- 22 of 38 -- 23 ● Whether the proposed development can be connected to existing trunk infrastructure; or ● Whether the proposed development can be connected to proposed trunk infrastructure where that proposed trunk infrastructure is consistent with the layout in Drawings PCWF 01 to 10; and ● Whether the size of the proposed development is achievable (having regard to the existing capacity and the timing of future capacity improvements to the overall wastewater system). A flow chart of the process is included below. Under these arrangements a development will only be granted a development permit if it is able to demonstrate that it will be able to connect to the sewerage network in accordance with the preferred layout. In some instances developments will only be able to proceed if they complete sewer network works on neighbouring lands. This may create some difficulties for these developers and in some instances Council may need to initiate land resumption processes to secure some alignments.” Mr Fynes-Clinton objected to this reliance on the basis that the ECSIS is relevant only to the temporary arrangements providing for capped or limited access to Coombabah facilities; he says it is irrelevant to the long term infrastructure. Accepting his point, the temporary and long term arrangements have to be considered together in practice; there seems to me nothing unreasonable in the Council’s proceeding in line with the spirit of passages quoted in common sense and practical terms, even if, as a matter of strict interpretation, they were not written to cover the long term situation. [26] Exhibit 18 is a bundle of documents prepared by the Council relating to development applications in the general area of the site considered problematic because no sewerage connection could be demonstrated. Typically, development permits were applied for but the Council acted on recommendations from its officers that it grant no more than preliminary approvals. Illustrative of the rash of development applications in the Pimpama area is the Council’s concern with a -- 23 of 38 -- 24 number of them at its meeting on 23 June 2006. In respect of 36 Cox Road (the street to the west of Gawthern Drive) (see tab 9 in exhibit 18), after noting that “there is no waste water network infrastructure (gravity mains) downstream of the proposed development and it can therefore not be readily connected to the temporary waste water network system in accordance with the East Coomera Sewerage Infrastructure Strategy,” the recommendation proceeded: “(a) Specifically the development requires the installation of part of trunk line A1/PSB as shown on drawing ECSIS 02 & ECSIS 03 in the East Coomera Sewerage Infrastructure Strategy (GCCC 2006). This trunk line ultimately drains to Yawalpah Road. The Yawalpah Road trunk works to which these gravity works connect are not expected to be constructed until mid-2007 and will only become operational when the Pimpama WWTP is commissioned; (b) Being located where it is, it is not feasible to connect this development to the temporary works proposed to service Zone A nor Zone B. As a matter of general principle the interim wastewater capacity arrangements, managed by the East Coomera Sewerage Infrastructure Strategy, are assigned to those developments that can be efficiently serviced in an orderly manner. This is especially the case for those developments like this application that is located at the upper reaches of the future wastewater network that require considerable amount of wastewater works downstream (including through private property) before connection is possible; and (c) In this instance, after applying natural infrastructure sequencing principles, it is considered not appropriate to allocate ET capacity to this development as part of the ECSIS. Conclusion The Applicant has applied for a Development Permit for a Change of Use and Reconfiguring a Lot. It is premature for Council to issue a Development Permit because neither the permanent sewerage infrastructure (under Council’s priority infrastructure plan) nor the temporary infrastructure (under the East Coomera Sewerage Infrastructure Strategy) are available. Until Council delivers its planned permanent infrastructure or the temporary infrastructure is constructed and operational (and subject to there being available capacity to service the proposed development), it is premature for Council to issue a Development -- 24 of 38 -- 25 Permit. The premature approval of a Development Permit could compromise the efficiency of the temporary infrastructure and the eventual efficiency of the Pimpama WWTP and other infrastructure budgeted and planned for under the priority infrastructure plan.” For another application for 19 Cox Road (tab 10, p 82 in the agenda) the recommendation was: “Alternative to refusal: preliminary approval Council is not in a position to issue a Development Permit and in fact could refuse the development application on the basis that the necessary sewerage infrastructure is not immediately available. It is acknowledged, however, that the land is suitable for residential development and Council officers support the proposal conceptually. On this basis, it is recommended that Council issue a Preliminary Approval (s3.1.5), subject to conditions. It is recommended that Council not consider any future development application for a Development Permit until the applicant can demonstrate, to the satisfaction of Gold Coast Water, a suitable and achievable point of connection to Council’s water supply and sewerage infrastructure network (either temporary or permanent). Connection to either the permanent or temporary infrastructure will only be permitted if the necessary capacity to serve the proposed development is available. In this regard, a suitably worded condition has been included in the recommendation for Preliminary Approval.” The foregoing form of words was adopted in other applications considered by Council on the same day, for example 142 and 154 Dixon Drive (the street to the east of Gawthern Drive – (tab 12, p 116), also 180, 182 and 190 Yawalpah Road (tab 13, p 128) and 84 Dixon Drive (tab 8); also for 300 Yawalpah Road (tab 15, p 141). [27] The Council’s approach has persisted since June 2006. More pertinently, it can be demonstrated to have been applied earlier, in relation to 129 Rifle Range Road (tab 11). It is difficult to date this determination from the documents before the court, but it relates to an application received 3 August 2004. The summary document included states: -- 25 of 38 -- 26 “The site is considered to be suitable for residential development; however, until the infrastructure (sewer/water) necessary to support the proposed development is available, Council officers neither support nor recommend a Development Permit be issued for this application. However, as an alternative to refusal, it is recommended that a Preliminary Approval pursuant to section 3.1.5 of the Integrated Planning Act be issued. This type of approval will require the applicant to submit a fresh application once connection to infrastructure can be demonstrated. It is at this time that a full development assessment will be undertaken.” [28] Tab 2 in exhibit 18 relates to 76 and 82 Finnegan Way Coomera which was treated in the same way in substance, with a different wording used. On 21 March 2005 Council approved the issue of a preliminary approval (overriding the planning scheme) for a material change of use (self-assessable attached buildings) and a preliminary approval for reconfiguration (72 lots) on very detailed conditions. The report before the Council (tab 2, agenda p 210) contains the following: “Zone: The proposed development is located within Zone C as defined in the East Coomera Sewerage Infrastructure Strategy May 2004. Capacity: The proposed sewerage infrastructure to service Zones C has sufficient capacity to transport anticipated flows from the proposed development. Ability to connect There is no existing sewerage infrastructure to existing within Zone C. infrastructure: Ability to connect The East Coomera Sewerage Infrastructure to proposed Strategy proposes that sewerage from the infrastructure: proposed development site drain through a gravity main through Lot 165 on RP835724, Lot 145 on RP170747, Lots 3 & 4 on SP165374, Lot 28 on RP170744 and Lot 126 on SP138908, discharging to pump station PS C (located on Amity Way). The rising main from PS C will travel along Amity and inject into the existing rising main in Foxwell Road. Connectivity is constrained by access through Lot 165 on RP835724, Lot 145 on -- 26 of 38 -- 27 RP170747, Lots 3 & 4 on SP165374, Lot 28 on RP170744 and Lot 126 on SP138908. Timing of the This is a small scale development (72 lots). Development: It is not unrealistic that this development could be fully completed prior to 2007. Recommendation: The proposal NOT be supported at this time because the site has no direct connectivity to the proposed infrastructure. A Preliminary Approval only be supported in this instance.” [29] The appellants are able to show the occasional subsequent granting of development permits, for example by exhibit 22 (Council approval 18 November 2005). Earlier examples, for example exhibit 25, June 2004, may also be found. In my opinion, the situations in which there have been development permits are distinguishable on one or more of various grounds which apply in particular instances. In some cases connection to the temporary arrangements based on transferring effluent from the East Coomera area to Coombabah WWTP through the pumping station PA9 was available within the cap. Where works had to be constructed to establish a link to PA9 this was the responsibility of the applicant developer or perhaps some other developer whose private land had to be traversed. (Of course developers may be presumed to have responsibility for all works within their own development sites.) Mr Fynes-Clinton isolated the odd example of a development permit where some element of external sewerage infrastructure to complete a connection was the Council’s responsibility. However, the circumstances there appeared to be ones in which a substantial part of the connection depended upon off-site infrastructure being completed by some private developer(s), that work being vital to connect to the downstream element the Council would have responsibility for. One would expect the Council’s attitude to assuming some moral (albeit no legal) responsibility to complete its part to be a legitimate factor to take into account here. One would expect a more accommodating approach from the point of view of a developer -- 27 of 38 -- 28 anxious to advance its project, if the Council’s works had been designed and funded. Another factor distinguishing the “development permit” cases would appear to be a more relaxed attitude by the Council before it became apparent a year or more ago that development applications involving reconfiguration for intensive sub-division in the East Coomera/Pimpama area were coming in in numbers extravagantly exceeding anticipations, so that arrangements put in place, the ECSIS for example, in respect of sewerage, were suddenly shown to be inadequate to service the likely demand. [30] There is no system of precedent in planning matters, strictly. However, the court is likely to be concerned, as the public no doubt would be, if it appeared that similar development applications were being treated inconsistently by the local government. No troubling inconsistency appears here. To the extent that there may have developed a different approach over time, I find there are good reasons for that. Should the Council have made an information request? [31] Although the development application has progressed slowly, the continued lack of sewerage infrastructure in the ground (of which no complaint has been made or could justly be made) means that the lack of a decision upon the development application since its lodgement in April 2004 has not been productive of delay. Mr Griggs gave evidence (as the appellants’ principal) by telephone from overseas. He said at page 52-53 of the transcript that he was after “approval subject to connection to the sewerage system … all I’m trying to do is short-circuit proceedings … to have an approval in place so that, when the sewerage system is available, we connect and we can get on with the sub-division… we’re not -- 28 of 38 -- 29 intending to build the roads or to do any of the construction work until such time as there is certainty in the provision of the sewerage – so that the thing can be designed or finished in the way that it should be finished.” He did not want to have to face the delay (“whether it be 12 months or 18 months or 9 months or whenever it is”), if “when the sewerage plant is on line … we then have to make a fresh application.” It was conceded, as it had to be, that the bulky development application documents were thin in respect of sewerage matters. [32] In its acknowledgment letter of 21 April 2004 Council advised that an information request would be made by it as assessment manager (presumably pursuant to s 3.3.6 of the IPA) “by separate correspondence”. The appellant’s agent began to volunteer further information, beginning with a letter of 6 May 2004, which described the development application as “submitted on April 2, 2004”. The Council, probably before receipt of that letter, by its letter of 7 May 2004 advised extension of the information request period “by a further ten (10) business days.” No information request came. The consultants by letter of 31 May 2004 advised that lest the Council assert (as it supposedly had in “a similar instance”) that the application lapsed because IPA timeframes were not adhered to, it relied upon provisions deeming that there was no information request and could be none and was preparing for public notification. Another consultant on 22 June 2004 wrote to the Council to advise acceptance of “a second extension to the information request period to … 2 July 2004.” A following letter purported to “accept a further extension to … 30 July 2004.” In its only response, so far as the evidence goes, a letter of 26 July 2004 (asserting receipt of the development application on 5 April 2004), the Council, without acknowledging the communications last mentioned, wrote to the author of the more recent: -- 29 of 38 -- 30 “As you are aware, the majority of the Pimpama Coomera region is undeveloped. This situation presents Council with a number of challenges, particularly in relation to the delivery of wastewater infrastructure because the area is essentially unsewered. Over the past 18 months, Council has received a significant volume of applications. The influx of applications has grossly exceeded normal and revised population growth trends for the region. As such, it is vitally important that the area be developed in an orderly manner with efficient delivery of community infrastructure including wastewater services. In response, Gold Coast Water has developed the East Coomera Sewerage Infrastructure Strategy (May 2004), which was adopted by Council at its meeting on 11 June 2004. The strategy identifies: The preferred sewerage network to enable wastewater services to be delivered to the area in a co-ordinated and efficient manner; ● Existing wastewater infrastructure capacities; ● Funding arrangements to deliver the proposed infrastructure; and ● A description of how development applications will be assessed in the area in regards to wastewater servicing. Copies of the strategy are available in either electronic or hard copy format at Council’s Evandale and Nerang offices for a fee of $22. In issuing a Development Permit, Council must be satisfied that adequate wastewater services are available to service the proposed development. A preliminary assessment of your application in accordance with the criteria set out in the above report indicates that: ● Your proposed development is out of sequence in connecting to existing or proposed infrastructure and any temporary measures of connection will not comply with the East Coomera Sewerage Infrastructure Strategy May 2004 report. In this instance Gold Coast Water would not support the issuing of a Development Permit until sufficient wastewater infrastructure is in place. Consequently, Council encourages you to seek your own advice as to your options for proceeding or otherwise, with your application. However, in the circumstances, you are advised that it may be appropriate to withdraw your application. If you request the withdrawal of your application, Council will issue a full refund of application fees. If you decided to proceed with your application, Council is unlikely to support the development proposal.” -- 30 of 38 -- 31 [33] A response (dated 20 August 2004) was preceded by two more acceptances of extensions to the information request period, indicating an information request was anticipated by 27 August 2004, this representing an extension of 70 business days. Further extensions (to 1 November 2004) followed. It was no surprise to find there were further extensions to 1 June 2005, flushing out advice from Council dated 30 May 2005 that Council did not propose an information request: “however, in order to prevent the above application from lapsing under s 3.2.12(1)(c) of the Act, you will need to provide your agreement in writing to an extension of the information period to the current date (in accordance with s 3.3.6(8) of the Act).” There being no referral agencies or referral co-ordination required, the consultant advised determination to proceed to the public notification stage. Following that stage, the Council advised by letter of 6 September 2005 (stamped received 13 September 2005) that in accordance with s 3.5.7(2), Council as the assessment manager elected to extend the decision-making period by 20 business days. Wagner Development Consulting’s letter of the same date advised: “Council at this stage has advised that they will be issuing a preliminary approval based on the development not having connectivity to Council’s sewerage system. With the progress of the adjoining sites within the catchment a connection to Council’s system may be forthcoming. Due to this, our client wishes to place the application on hold until the timing status of the adjoining development sites are confirmed. Therefore we request the Development Application be placed on hold for 60 Days until 7 November 2005.” [34] The appellants have never been prepared to accept a preliminary approval which the Council presumably would not give to an unwilling recipient/applicant. The Council’s power to give a preliminary approval, although a development permit is applied for, assuming it remains the assessment manager, is found in s 3.5.11(6)(b) -- 31 of 38 -- 32 of the IPA. Collin Park Pty Ltd v Redland Shire Council [2004] QPELR 617 is an example of a developer’s appeal (unsuccessful) against a council’s decision to do just that. [35] A letter dated 10 November 2005 followed, in identical terms, save that the request to place the application “on hold” was extended by 30 days until 22 December 2005. The last letter in the saga (24 November 2005) advised that “Wagner Development Consulting Pty Ltd formally grants consent for N A Adam & Wandpine (Developer) to be applicant” and requested that future correspondence be sent to a different consultant. [36] According to the notice of appeal filed 3 April 2006, the latest extension granted by the appellants to the Council’s decision making period ran to 31 March 2006. The appellants’ impatience at the lack of any decision from the Council is understandable. The Council’s justification for its delay-causing stance was set out in its letter of 26 July 2004, which is consistent with other documents before the court, such as the Council’s agenda item for 21 March 2005 in respect of a similar application that is in exhibit 18: tab 2 at agenda p 199: “1. CONTEXT This application is one of a number of concurrent applications within East Coomera. This area, over a long period of time, has been subject to considerable local area planning and investigations, including some very recent structure planning. It was originally intended that a number of applications would be presented to the Council for concurrent determination. In expectation of this, an assessment process was embarked upon examining the cumulative impacts of the applications. This process, coordinated by Council officers, was informed by external consultant’s input. An overarching “Combined Assessment Report”, providing a summary of the local area-wide considerations is an important component of the assessment of this application (and understandably all the others). It is attached as Appendix 1. It is important that it be read in conjunction with this assessment report.” -- 32 of 38 -- 33 I could not locate Appendix 1 among the voluminous documents tendered. [37] I find nothing in s 3.3.6 or elsewhere in the IPA suggestive of any obligation on an assessment manager to assist an applicant to present a development application capable of assessment by making an information request. In my opinion, an assessment manager is not precluded from rejecting a development application on the ground that it contains insufficient information based on its own failure to make an information request. The situation may be qualitatively different where, as here, the assessment manager professes an intention to seek further information, then subsequently advises abandonment of that intention. In some contexts that might embarrass an assessment manager, although here it has for a long time been made abundantly clear to the appellants that the Council’s attitude is that not enough is known of what sewerage arrangements in this unsewered locality will be to permit assessment (a vital component of which is connection of the site to sewerage) to be made sensibly. Further, the Council’s solicitors by letter of 3 November 2006 (exhibit 8) notified an additional disputed issue, that the application “does not contain sufficient information to enable the assessment manager to authorise assessable development to occur.” As noted elsewhere, nothing appears suggestive of the appellants’ suffering any disadvantage from having to face such an issue. Conclusion [38] The Council contended that a condition of the general kind contended for by the appellants in a development permit would be unlawful, assigning multifarious grounds, such as that it impermissibly directly or indirectly placed an obligation on the Council, that it lacked certainty and finality, and that it was not a condition of the kind identified in s 3.5.31(1)(b) of IPA which contemplates delaying the start of -- 33 of 38 -- 34 development until other development “on the same premises” has been substantially started or completed. This appeal is not an appropriate occasion for determining issues along those lines, given the clear view of the court that the appellants have failed to discharge the onus which they carry of establishing that there can be the requisite degree of confidence held that (contrary to the assertion of Council, which is to provide it) sewerage infrastructure to service the site will be in place and operational at an appropriate time. A pithy way of describing the requirement taken from the document dealing with 129 Rifle Range Road is that “connection to infrastructure can be demonstrated.” [39] It would be convenient for the appeal to be stood over in the expectation that, before too long, sufficient certainty is reached; cf Frizzo v Caloundra City Council [2004] QPELR 366, 375 at [70]. The Council has throughout accepted the general suitability of the appellant’s site for development of the kind proposed. There are precedents in the court for determinations that a development application may be refused as premature, as regards the provision of services such as sewerage, however suitable a site may otherwise be. See Wendon Nominees Pty Ltd v Brisbane City Council [1984] QPLR 99, 102; Mascotmont Pty Ltd v Bundaberg City Council [1997] QPELR 350, 352. The importance of planning authorities achieving development in their areas in a proper sequence must not be overlooked. Section 1.2.3(1)(d) of the IPA identifies as a purpose of the Act “supplying infrastructure in a co-ordinated, efficient and orderly way, including encouraging urban development in areas where adequate infrastructure exists or can be provided efficiently”. The Council’s planning scheme is replete with statements in similar vein, which are set out in the Council’s written submission verbatim. They include passages from the “context” (Pt 3 Div 1 ch 1) and “strategy” (ch 3 key issue 1.0); -- 34 of 38 -- 35 there are provisions of Key Strategies (ch 4 Infrastructure and Sequencing) (pp 7-10 of 52). Such statements may properly be relied on by the Council, even if others to similar effect in the ECSIS may not be relied on. [40] From the appellants’ (and others’) points of view, the court’s unwillingness to be satisfied that the proper course is to approve a development permit appropriately conditioned (on the ground of lack of certainty about when sewerage infrastructure will become available) may seem unreasonable. The currency period for the permit would run from the court’s order (IPA s 3.5.19(1)(c)); within it the plan (mentioned in s 3.7.2) must be given to the local government for its development approval, if the approval is not to lapse (s 3.5.21); the period would be expected to be four years. There is a general expectation here that this allows ample time for a connection to sewerage to be available for the site. Mr Robinson was the senior officer of Mirvac, currently the owner and developer of Gainsbrough Greens, called to give evidence of its co-operative attitude. The appellants are prepared to take the risk of their development permit lapsing. It is accepted that Council officers share in the general confidence. There remains a great amount of planning and work to be done for that confidence to become a reality. [41] The Council through its business arm Gold Coast Water has entered into a Managing Contractor Agreement, Pimpama Coomera Water Future Master Plan Implementation Network Infrastructure Package D with Abigroup Contractors Pty Ltd, the final version of which (bearing date 20 December 2006) is in the appeal book exhibit 1 vol 3 at p 334. Gold Coast Water (meaning the Council, in effect) has issued publications to the development industry and the public in general containing predicted dates for the provision of infrastructure in Pimpama/Coomera for water and sewerage and predicting “proposed construction dates” and the like. -- 35 of 38 -- 36 One of the purposes of those publications is to give warning of traffic disruptions in Yawalpah and Kerkin Roads. It is not possible to regard the Council as bound by such predictions. The “implementation time line” is necessarily uncertain, so far as there are predictions of future commencement and (a fortiori) completion dates. The latter are suggested to be “end 2008, end of 2009” and the like, in the publications. The seriousness of Abigroup’s contract is not in doubt. It will earn a 31% management fee calculated on the value of works. The Yawalpah Road trunk main is within Abigroup’s remit. Those particular works come within “Package D;” they are not yet designed, it is not even known where they will be, or indeed, what the ground conditions might be. There is no contractor appointed to carry out the necessary physical construction nor any funding earmarked to pay for it. Council witnesses expressed justified concern that in the current buoyant conditions, contractors (or contractors at an acceptable price) may be difficult to find. [42] It is not an attractive course in all the circumstances to apply the appellants’ suggested approach that “an approval for MCU or reconfiguration which forms part of the series of approvals to achieve sub-division ought not to be refused on the ground that necessary services are not in place if the evidence establishes that, more likely than not, the services will be there by the time operational works to specifically authorise connection are likely to be carried.” Planning and managing development is a serious business. Circumstances may alter cases. The court should not make an order which does not have the appearance of a sound planning decision. In other contexts than that of the burgeoning development in Pimpama/Coomera where the Council is faced with multiple development applications like the present in an area still without sewerage infrastructure, it is unsatisfactory to proceed on a prediction of what is “more likely than not” to -- 36 of 38 -- 37 eventuate over the years. Bearing in mind what is still to be done, the prospect of there being scores of development permits extant awaiting completion of Council sewerage infrastructure before anything can be done under them is unacceptably messy. [43] Mr Fynes-Clinton concluded his written submissions as follows: “Orders sought 85. The Appellant’s ultimate aim is to secure a development permit. 86. The Court cannot grant that permit on the evidence before it. 87. If the Court determines the matter litigated in favour of the Council, necessarily it will dismiss the appeal. 88. If the Court determines the matter litigated in favour of the Appellants it will be in a position broadly analogous to that in which it finds itself after delivering reasons for judgement finding in favour of an Appellant who has appealed against a refusal. In that scenario:- (a) reasons for judgement will have been delivered by which the Court publishes its finding that the Council’s decision will not stand; (b) the Court will nevertheless not be in a position to issue a development permit, because matters relating to the appropriate conditions have not been litigated; (c) the further hearing of the appeal is adjourned, with appropriate directions to the parties to take the steps necessary to put the Court in a position to make a final determination. 89. The appropriate orders in this matter in the event that the Appellants succeed on the litigated issues will be similar:- (a) reasons for judgement will be delivered by which the Court publishes its finding that the Council’s decision that the sewerage issues preclude the issue of a development permit will not stand; (b) the Court will nevertheless not be in a position to issue a development permit, because matters relating to the appropriate conditions have not been litigated; -- 37 of 38 -- 38 (c) the further hearing of the appeal would therefore be adjourned, with appropriate directions to the parties to take the steps necessary to put the Court in a position to make a final determination. 90. In this case, the required direction may well include directions about the making of any necessary information request (something which the Council could have done earlier, but declined to do on what will have been found by the Court to be an erroneous legal basis), and response to that request, as well as the more usual directions to notify proposed conditions of approval and any disputes about the conditions notified.” The Council did not press for the outcome described in 87. Mr Gallagher suggested a general adjournment of the appeal, but opposed the making of any such directions to the Council, on the basis that the court has become the assessment manager: it cannot delegate to the Council its task. As a practical matter, the Council would presumably be ready and willing to look into all relevant aspects of the application and formulate the equivalent of a conditions package for presentation to the court, once it considers there is sufficient certainty in respect of the sewerage aspect. Before this point is reached, it is premature to direct the Council to do anything. I would be willing, now that the court is assessment manager, to fall in with what the Council by resolution has indicated (to satisfy Judge Wilson’s order), that it would be prepared to do rather than refuse the development application. The appellants may see little value in such a preliminary approval and prefer that the appeal be adjourned generally, as suggested by the Council. That seems to me a preferable course, but in principle I am willing to give the appellants’ views (once they have considered these reasons) effect. [44] The “preliminary point” is resolved in the Council’s favour. -- 38 of 38 --