Bryant v Caloundra City Council [2005] QPEC 113 [2006] QPELR 335

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bryant v Caloundra City Council [2005] QPEC 113 PARTIES: PETER AND ELAYNE BRYANT (appellants) v CALOUNDRA CITY COUNCIL (respondent) FILE NO/S: 210/05 DIVISION: Planning and Environment PROCEEDING: Appeal DELIVERED ON: 7 th December 2005 DELIVERED AT: Maroochydore HEARING DATE: 1 st December 2005 JUDGE: K S Dodds DCJ ORDER: Application granted CATCHWORDS: ENVIRONMENT AND PLANNING – COUNCIL APPROVAL SUBJECT TO CONDITIONS– APPLICATIONS – Integrated Planning Act 1997 (Qld); section 3.5.30; Appeal against respondent’s approval of development, subject to a condition requiring the appellant to construct a concrete footpath along the frontages of the development site; -- 1 of 8 -- 2 Whether condition reasonable COUNSEL: Mr P Bryant (self-represented) for the appellant Mr M Heiner for the respondent SOLICITORS: Heiner & Doyle for the respondent [1] This is an appeal by applicants for a development permit against a condition to which the approval granted was subjected. The appellants have the onus of establishing that the appeal should be upheld. Section 4.1.50 (1) Integrated Planning Act 1997 (IPA). [2] The appellants had applied to the respondent for a development permit for a material change of use. What they wished to do was extend an existing building on lots 20 – 23 RPA 87664 (the subject land). [3] The existing building functions as a factory for garage door and like assembly. It has an area at its Allen Street frontage for customer service. In the respondent’s superseded planning scheme under which the application was assessed, it is located in the light industry zone. What was initially proposed was that the additional building provide for two levels, being two small factories at ground level and two caretakers apartments above. The respondent’s acknowledgment notice described the proposal as an application for a “material change of use to establish an industrial development (Light Industry) (Code) involving an ERA (garage door assembly) and two caretakers residences”. The proposal was later amended to alter the upper level to ‘office space’. [4] The application was approved by the respondent, subject to conditions. One condition (not disputed) required the amalgamation of the four lots. Another condition (number 16) required the appellant to construct a 1.2 metre wide concrete footpath along the full length of Grigor and Lyon Street frontages of the site, including the provision of a kerb ramp where the footpath connects to the kerb and channelling at the Grigor/Lyon Street corner. It is this condition which is the subject of the appeal. The appellant seeks its deletion. [5] The grounds set out in the notice of appeal are: -- 2 of 8 -- 3 • “that Grigor and Lyon Street are not frontages to the lots. Rather the frontage is Allen Street; • that the condition is not reasonable; • that the proposed building extension will have no effect on pedestrian usage of the footpath. [6] Lots 20-23 are bounded by three streets. Grigor Street is on the northern side. Lot 20 has frontage to it. Lot 21 has frontage to Grigor Street and also to Lyon Street. Lyon Street is on the eastern side of lot 21 and lot 22. Allen Street is on the southern side of lots 22 and 23. Lot 22 has frontage to both Lyon Street and Allen Street and lot 23 has frontage to Allen Street. To the west of the lots are six further lots. Further west, again is, what appears to be vacant vegetated land beyond which is the Caloundra golf course. [7] The existing building was last extended in 1979. At present, it occupies lots 22 and 23, with a small portion of it being on lots 20 and 21. Customer frontage to the existing building is at Allen Street. It is at that end of the existing building where customer service is provided. Allen Street has a fully constructed concrete footpath. Presently there are three constructed accesses to the subject land, from Allen Street, from Lyon Street about half way along lot 22 and from Grigor Street into lot 20. [8] The proposed extension shown on concept plans accompanying the application is located on lot 21. Accesses to the proposed extension are shown from lot 20. [9] In the past, lots 20 and 21 have been used for car parking. There was an existing requirement that 15 car parking spaces be provided on the subject land. The lots provided more than sufficient space to fulfil that requirement. The development proposal the subject of this appeal has the effect that 24 car parking spaces are required to be provided on the subject land. They are to be provided on what is presently lot 20. At the time of the application, the surface of lots 20 and 21 was dirt and had no car parking spaces marked out. It is proposed to seal the surface of lot 20 and mark the surface delineating 24 car parking spaces. Indeed by the time of hearing the appeal, this was already under way. -- 3 of 8 -- 4 [10] At the present time, both Lyon Street and Grigor Street have bitumen surface over their full width and have constructed kerb and channelling. Both have made footpaths with a relatively even mown grass surface with some areas of exposed soil. I accept the evidence of Mr Fanton, an engineer and the team leader of the respondent engineering and environment team that, at the corner of Grigor and Lyon Street, the grade of the footpath from kerb to property line is excessive. [11] There is no question that the respondent was entitled in appropriate circumstances to attach a condition such as that under appeal to a development approval. In its superseded planning scheme section 9 (1) “frontage” is said to mean any boundary line or part thereof of an allotment which coincides with the alignment of a road.” Its strategic plan contains in its industry objectives, objective 4 (c) which sets out that industrial developments will be required “to comply with the provisions of the planning scheme and design guidelines”...” Its planning scheme is its Part 3 general requirements of development deals with external works. Clause 3.8.2 provides that development must not commence “unless the following external works, carried out to councils specifications, exist for the full extent of each frontage of a site… (ii) a constructed and landscaped footpath/ cycle path in accordance with local planning policy…”. Local planning policy PDLPP 3.8/01 has as one of its objectives to “ensure footpaths…are required as part of the approval process”. Design guidelines for industrial development provided “provision is to be made for a footpath on both sides of the road servicing industrial lots for the full frontage of these lots”. [12] The superseded planning scheme has now been replaced by Caloundra City Plan 2000. The appeal must be decided on the law and policies applying when the application was made but weight may be given to Caloundra City Plan 2000 if considered appropriate. Section 4.1.52 (2) IPA In Caloundra City Plan 2000, its civil works code together with other codes are provided to regulate self assessable and accessible development. Its specific outcome 02 requires development be provided with external road works along a “frontage of a site to an appropriate standard having regard to the specified function and amenity of the road and incorporating (c) safe, accessible, high-quality public footpaths and bikeways compatible and integrated with the surrounding environment.” -- 4 of 8 -- 5 [13] Section 3.5.30 IPA provides that a condition attached to a development approval must: • be relevant to the development; or • be relevant to the use of premises as a consequence of the development; • but not be an unreasonable imposition on the development or the use of premises as a consequences of the development; or • be reasonably required in respect of the development; or • be reasonably required in respect of the use of premises as a consequence of the development. [14] Whether a condition is reasonably required by a proposal requires a consideration of the proposal and what changes may result from its completion. Proctor v Brisbane City Council (1993) 81 LGERA 398. The condition must be a reasonable response to the change in the existing state of things, which may result from the proposal. Wooton v Woongara Shire Council (1985) 56 LGRA 301. [15] In what circumstances a condition may be relevant was the subject of discussion in Proctor. Proctor was a subdivision case under the now repealed Local Government (Planning and Environment) Act 1990 (Qld). It was decided a condition may be relevant as a reasonable imposition in the interests of rational development of an area in which a subdivision was located even though not reasonably required by the subdivision. [16] Section 3.5.30 requires that a condition, even if relevant in the way discussed in Proctor, must also not be an unreasonable imposition on the development or the use of premises as a consequence of the development. This focuses attention on the development or potential use of the subject land as a consequence of the -- 5 of 8 -- 6 development and the reasonableness of the proposed condition in the light of the development or the potential use. [17] Mr Fanton has estimated the cost of complying with the condition to be in the order of $9000. Whilst I have no evidence of the cost of the extension proposed, there is evidence of the overall size of what was proposed in the application. The total area of lots 20-23 is 2853 M 2. The gross floor area (GFA) of the existing building is in the order of 1322 M 2 . The GFA of what was proposed in the extension plans accompanying the application was 600 M2 over two levels. [18] A condition requiring construction of a concrete footpath along a street to which a development has frontage may, in appropriate circumstances, be both relevant to the development and to the use to which the development may be put. It may, in appropriate circumstances, be reasonably required in respect of a development or the use of premises as a consequence of the development. [19] In the present case the extension to the existing building may be used for any of a variety of lawful purposes as time goes by. Its potential use is not constrained by the use canvassed in the development application. [20] No part of the proposed extension is on the present lot 20. In the past lot 20 has been used for parking and perhaps other things. It is intended it continue to be used for parking. It is being surfaced and 24 car parking spaces will be marked. As Mr Fanton acknowledged, bitumen surfacing and marking of car parking bays could have occurred under the existing approval for the subject land so long as there was (at least) provision for 15 parking spaces. [21] Mr Bryant, one of the appellants, queried whether the respondent’s imposition of the condition was activated by bias rather than relevant considerations. His suspicion appears to be sourced in his role as a spokesperson for a local ratepayers association and in an internal memorandum of the respondent he obtained during disclosure. In this memorandum from a technical officer to Mr Fanton, the author refers to Mr Bryant as the president or similar of the Caloundra Residents and Ratepayers Association and continues: “so he might use his position to do a bit of officer bashing”. -- 6 of 8 -- 7 [22] Mr Fanton was cross examined by Mr Bryant about the memorandum and bias tainting the imposition of the condition. I accept Mr Fanton’s evidence that bias had no part in his recommendation that the condition in question attach to the approval. In any event, the appeal is a hearing anew before me. Section 4.1.52 IPA. [23] I have come to the view that to require a concrete footpath be provided in both Lyon and Grigor Streets is not reasonable in the context of the development proposed and the potential use of the premises as a consequence of the development. To that extent the appellants have discharged their onus. However, I am of the view that it is both relevant to the development proposed and to uses which may flow there from and not an unreasonable imposition for a similar condition limited to Lyon Street to be attached to the approval. [24] The appeal is allowed. Condition 16 of the decision notice is amended to read “a 1.2 metre wide concrete footpath must be constructed along the full length of the Lyon Street frontage of the site in accordance with the Council’s standards”. -- 7 of 8 -- 8 -- 8 of 8 --