Courtware (Australia) Pty Ltd v Noosa Shire Council [2006] QPEC 122

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Courtware (Australia) Pty Ltd v Noosa Shire Council [2006] QPEC 122 PARTIES: COURTWARE (AUSTRALIA) PTY LTD ACN 006 257 647 (Appellant) and NOOSA SHIRE COUNCIL (Respondent) FILE NO/S: 118 of 2006 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court of Queensland, Maroochydore DELIVERED ON: 27 November 2006 DELIVERED AT: Maroochydore HEARING DATE: 6 – 7 November 2006 JUDGE: Judge J M Robertson ORDER: The appeal in relation to Condition 1.1.1 (and consequently condition 15) is dismissed. Appeal allowed to the extent of amending conditions 1.5.1 and 1.5.2 in the agreed terms. Appeal adjourned to enable parties to negotiate remaining disputed condition. CATCHWORDS Conditions Appeal – amenity to existing residents, whether Council planning anticipates neighbourhood collector link through proposed subdivision. Cases: Proctor v Brisbane City Council [1994] QPELR 309 Wise v Maroochy Shire Council [1999] 2 Qd. R. 566 Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116 Legislation: -- 1 of 8 -- 2 Integrated Planning Act 1997 COUNSEL: Mr W. Cochrane (for the appellant) Mr T. Trotter (for the respondent Council) SOLICITORS: P&E Law (for the appellant) Wakefield Sykes (for the respondent) [1] On 23 March 2006 the Noosa Shire Council approved a sub-divisional application made by the appellant Courtware (Australia) Pty Ltd which sought a development permit to create 49 residential lots and 2 lots for parks in relation to a 3.2928 hectare parcel of land situation at Eumundi Noosa Road Noosaville. The preliminary approval for 48 lots was subject to a number of conditions; and the appellant has appealed to this Court against some of those conditions. The application was code assessable and accordingly no public notification of the application was required. [2] In the pre-hearing period many disputed conditions were resolved and the primary focus of the appeal was condition 1.1.1 which provides:- “1.1.1 A road connection shall be provided between Ely Street and Starboard Avenue. This road shall be constructed as a Neighbourhood Collector Road, with a 20 metre wide road reserve and an 11 metre wide pavement measured curb to curb as defined in this permit.” [3] Section 3.5.30(1) of the Integrated Planning Act provides: “(1) A condition must - (a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or (b) be reasonably required in respect of the development or use of premises as a consequence of the development.” [4] Pursuant to s. 4.1.50(1) it is for the appellant to establish that the appeal should be upheld. [5] In Proctor v Brisbane City Council [1994] QPELR 309 the Court of Appeal held that the condition power under the repealed Act, s 6.1 (1) (c) contained two alternate tests for validity of a condition: “It may well be that a condition which is in no proper sense of the word “required” by a subdivision is nevertheless relevant…as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as “required” – reasonably or otherwise – by the subdivision in question, but may be -- 2 of 8 -- 3 defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located.” (at 313). See also Wise v Maroochy Shire Council [1999] 2 Qd. R. 566. [6] The IPA test makes only a minor change to the test in section 6.1. (1) (c), and that is the test now imparts a requirement that even “relevant” conditions must not be an unreasonable imposition on the development or use of the premises as a consequence of the development. In Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116, the Court of Appeal made it clear that whether or not a condition ought to be imposed is a question of fact, and not of law, unless on the evidence available “only one conclusion is open”, namely that a particular condition should, or should not be, imposed. [7] Mr Colin Beard gave evidence relevant to the topic on behalf of the Council and Mr Mc Clurg on behalf of the appellant. [8] The appellant’ original proposal involves the extension of Starboard Avenue (which is presently constructed to neighbourhood collector standard) to a local street standard with east and west cul-de-sacs to service the lots in the southern part of the development. The western end of the cul-de-sac will be connected to Ely Street by a 4m wide pathway. It is common ground that Ely Street, which presently ends at the western end of the proposed sub-division, and which connects directly into the sub-arterial Eumundi Noosa Road, is also constructed to a neighbourhood collector standard. The appellants original proposal is depicted in Appendix C to Mr McClurg’s court report which is Exhibit 6. The appellant has advanced an alternative plan which is depicted in Appendix 4 to Exhibit 6. This proposal involves the permanent closure of Ely Street to Eumundi Noosa Road and a connection with the remainder of the existing street to the sub-division by a street constructed to the local street standard. The appellant’s alternative is the subject of some trenchant criticism in Mr Trotter’s submission and I will return to it later in my reasons. [9] Mr Beard is a very experienced traffic engineer and he has been professionally connected with traffic planning in the Noosa Shire for many years. [10] His evidence in support of Council’s proposed condition is conveniently summarised in paragraph 5 of is court report Exhibit 8: “In my opinion, irrespective of other considerations in respect of these two streets, Ely Street and Starboard Avenue should be connected, as has clearly been intended in local street network planning, because: (a) Neither street has currently been terminated with an appropriate cul-de-sac head, clearly indicating that they were planned to be extended (and joined given their proximity); -- 3 of 8 -- 4 (b) If the two streets are not joined, Ely Street will continue to operate as a short cul-de-sac off an arterial road, an intrinsically undesirable arrangement (see Section 3.6 of Queensland Streets). This arrangement of a short cul-de-sac off an arterial road (Eumundi Road) is particularly unattractive at this location because of sight distance constraints for drivers attempting to turn right out of Ely Street to Eumundi Road; (c) If the two streets are not connected, the local street network will lack connectivity an intrinsically desirable characteristic (see Section 3.4 of Queensland Streets); and (d) The arrangement proposed by the applicant effectively converts Starboard Avenue to a “blind” cul-de-sac (one where the end is not visible when you enter the access place) approximately 250 metres long, an undesirable arrangement. In my opinion, the street network advantages of a connection between Starboard Avenue and Ely Street are clear, and any reasonably acceptable plan of layout for this development will make provision for the connection. Consequently, the subsequent discussion assumes that a connection is made. Further, the connection between Ely Street and Starboard Avenue should be configured as the through street around a small radius curve, with the cul-de-sac to the east being the terminating street at their intersection, similar to the arrangement at several other intersections in the local street network.” [11] Mr McClurg’s opinion on this issue is conveniently summarised in the points of disagreement signed by both experts in their meeting on 5 October 2006: 1. Proposed connection between Ely Street and Starboard Avenue. Mr McClurg does not consider the connection to be desirable or necessary because leaving them as cul-de-sacs would retain the existing low traffic volumes on those streets thereby retaining the existing high standard of residential amenity of those streets, consistent with his interpretation of the planned road hierarchy for this area. Mr Beard considers that the two streets should be connected whether they function in the future as collector or local streets, noting that local connectivity is generally desirable and that, otherwise, Ely Street would continue to function as a local street cul-de-sac off an arterial road (Eumundi Road) contrary to accepted traffic planning principles as set out in such guides as Queensland Streets. Further, the sight distance constraints at the intersection of Ely Street and Eumundi Road make it even less desirable that Ely Street permanently remain a cul-de-sac off the arterial road. 2. Standard of construction of potential link between Ely Street and Starboard Avenue. Mr McClurg considers that Ely Street and Starboard Avenue do not need to be connected, however if the streets are connected, the connection should be a local street connection, -- 4 of 8 -- 5 because Headland Drive should continue to function as the only neighbourhood collector serving this precinct which has access to Eumundi Road. Mr Beard considers that the connection should be made to the same standard as the existing streets because the connection would be only a small part of the combined street length and consistency is desirable, and because it maximises the future potential flexibility of use of the local street network. 3. Future intersections of Headland Drive and Ely Street with Eumundi Road. Mr McClurg considers that the intersection of Headland Drive and Eumundi Road should be upgraded to either allow right turns from south to east and east to north at a channelised priority-controlled intersection, or to allow all turns via construction of a roundabout. He notes that sight distance constraints at the Ely Street intersection with Eumundi Road might reasonably lead to a median being constructed in Eumundi Road to prevent right turns to and from Ely Street in the future. Mr Beard considers that any future upgrading of either of the intersections on Eumundi Road by Council should be limited to channelisation to allow right turns from south to east, but not from east to north. In his view, it is not reasonably necessary to accommodate a right turn from east to north, and that a roundabout with satisfactory geometry could not be developed within the existing road reservation. In his view, the channelised intersection could probably be constructed at Headland Drive without generating any "rat-running", but that it could certainly be constructed at Ely Street without such potential problems arising. Consequently, this option should not be precluded. [12] His more detailed opinion is set out at page 12 of Exhibit 6: • the size of the catchment does not justify two collector streets in close proximity feeding onto Eumundi Road • designation of Ely Street, the new streets within the development and Starboard Avenue as Neighbourhood Collectors is inconsistent with the Council's road hierarchy and is inconsistent with their intended role; • connection of Eumundi Road to Headland Drive via Ely Street and Starboard Avenue would introduce significant additional traffic onto Ely Street and Starboard Avenue. Such additional traffic would significantly alter (detrimentally) the character and amenity of these residential cul-de-sac streets; • with Ely Street serving as a collector street it would introduce the demand for full turning movement at the Eumundi Road/Ely Street intersection and sight distance at this intersection does not meet appropriate minimum criteria; • with both Ely Street and Headland Drive as collector streets there would be two 'significant' intersections (i.e. intersections with an important roadway in the road hierarchy where all turn movements are anticipated) at Eumundi Road and these would be separated by approximately 200m. Such separation is less than desirable for a sub arterial road; • Headland Drive is already established as the collector street to/from the residential catchment; -- 5 of 8 -- 6 • Headland Drive has a child care centre established at the corner of Headland Drive/Eumundi Road. Such a facility is more appropriately located on a collector street hence it is clear that Headland Drive should remain as the collector street. [13] The appellant contends that the point made by Mr Beard at 5(a) of his report does not clearly indicate that Council planned to extend and join Ely Street and Starboard Avenue. It relies on Appendix B to Mr McClurg’s report which is described as the Noosa Shire Council Road Hierarchy Plan which does not show any such joining. I think this is clearly explained when it is recognised that the document is a representation of the present road hierarchy, and does not represent any forward planning intent. [14] There are a number of facts that persuade me that Mr Beard’s opinion is to be preferred to that of Mr McClurg on this issue. I agree that the construction of Ely Street to neighbourhood collector standard is a matter of historical accident, however the construction of Starboard Avenue to such a standard is of much more significance when one is considering Council’s apparent forward planning for this part of the network. It was constructed to this standard in comparatively recent times as part of the Noosa Waters development of which this land is probably the last to be developed as a residential sub-division. In this regard, Mr Trotter makes a good point when he says that it is difficult to conceive how any developer could have been convinced to construct Starboard Avenue to that standard unless it was always acknowledged that at a future time it would provide a collector standard link through any proposed development of the site. The last use of the site was a concrete batching plant which ceased some years ago, and the land has been included in the Detached Housing designation in Council’s Planning Scheme for some time. The other good point made by Mr Beard in this context is that Sailfish Court which joins the site on its eastern side and which was also constructed as part of the development of Noosa Waters is constructed to a local street standard which I agree indicates that this street was never intended to operate as a neighbourhood collector street. The absence of any forward planning documentation in Council records in support of Mr Beard’s opinion is hardly surprising given that generally such micro planning is left to the stage of actual site development proposals. [15] In both of the proposals advanced by the appellant, Headline Drive will become the route for residents in the southern part of the development to access Eumundi Noosa Road or Shorehaven Drive. It is common ground that at present there is a very quiet traffic environment along Headland Drive and into Starboard Avenue. Exhibit 2 is an aerial map in which are depicted the extensive existing calming devices installed in the area as a clear expression of Council’s intent to protect the amenity of existing residents, and to avoid “rat-running” between Eumundi Road and Gibson Road via Headland Drive, Shorehaven Drive and Riverbreeze Avenue. There is no dispute between the parties concerning the importance of the maintenance of a high standard of amenity throughout this area covered by the Urban Detached Housing designation. This is completely consistent with statements in the Strategic Plan to the effect that an important planning objective in such areas is to provide a high level of amenity. It follows that the proposed development should meet reasonable requirements relating to both amenity and orderly traffic planning. -- 6 of 8 -- 7 [16] The traffic engineers proceeded on the assumption that the subject development will generate an additional 400-450 vehicle trips per day moving to and from the major external road network. With this in mind, Mr Beard prepared a number of diagrammatic calculations to demonstrate the approximate traffic flows as a result of the appellant’s proposal and the preferred option of the Council which is the subject of the disputed condition and existing flows. Mr McClurg generally agreed with these calculations. These diagrams are Exhibits 10A, B and C. In Mr Beard’s preferred option there would be a right turn from Eumundi Noosa Road into Headland Drive which would lead into Starboard Avenue and into the southern part of the proposed development for traffic proceeding north and left turns only out and in for southbound traffic. [17] What is immediately obvious from Mr Beard’s calculations of increased traffic flows resulting from either of the appellant’s proposals is that Headland Drive will increase by something in excess of 1000 vehicles per day with a slight reduction in the volume of traffic on Riverbreeze Drive. Although the total flow is still below the Queensland Roads accepted 3000 flows per day for a collector status road, it is obvious that the amenity of the existing residents of Headland Drive would be adversely affected. It is true that the amenity of the existing residents of Ely Street will be significantly affected by the connection of their street to Starboard Avenue, however the evidence (confirmed on inspection) is that there are relatively few homes on Ely Street and most are already subject to traffic noise from Eumundi Noosa Road. The proposal favoured by Council and Mr Beard achieves a much better balance of traffic flows which is moving around the Noosa Waters Estate and ensures that the increased traffic flows of the proposed development are distributed in an orderly fashion throughout the street system. It is true that the Council’s proposal will impact more significantly on the amenity of the existing residents of Starboard Avenue than will the appellants’ proposals, but I agree with Mr Beard that this impact is more acceptable in planning terms than the impact on amenity of the Headland Drive residents of the appellants proposal particularly those living between Eumundi Noosa Road and Starboard Avenue. [18] The alternative proposal advanced by Mr McClurg is also undesirable because of the plan to construct the extensions of Starboard into the development and Ely Street from the closed off intersection with Eumundi Noosa Road to a local road standard which is 5 metre in width less than the present 20 metre width. I agree with Mr Beard that such a development would effectively close off any future use of either street as a neighbourhood collector which, for the reasons I have exposed, is contrary to the planning intent for this part of the network. [19] In my opinion this is not a finely balanced decision and it is not necessary for me to bring in to play the authorities relied on by Mr Trotter in relation to this Court’s role in the context of weight being given to Council’s decision: per Wilson SC DCJ in Towen 720 Pty Ltd v Hervey Bay City Council (2003) QPELR 178 at 185. [20] The appellant has not satisfied the onus upon it and the appeal in relation to Condition 1.1.1 (and consequently Condition 15) is dismissed. -- 7 of 8 -- 8 [21] Based on Mr Beard’s concessions and the on-going discussions between the parties, Council has agreed to amend conditions 1.5.1 and 1.5.2 in terms set out in Mr Trotter’s primary submission at 1(b) and (c), so the appeal is allowed to that extent. The parties agreed to leave Condition 11 to be negotiated in light of the Court’s decision about 1.1.1, so I will adjourn the matter to enable the parties to further negotiate and to hopefully formulate acceptable conditions. -- 8 of 8 --