Barooga Projects (Investments) Pty Ltd v Caboolture Shire Council [2004] QPEC 45 [2005] QPELR 91

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Barooga Projects (Investments) Pty Ltd v. Caboolture Shire Council [2004] QPEC 045 PARTIES: BAROOGA PROJECTS (INVESTMENTS) PTY LTD (Appellant) v. CABOOLTURE SHIRE COUNCIL (Respondent) FILE NO/S: 1296/2004 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court Brisbane DELIVERED ON: 14 September 2004 DELIVERED AT: Brisbane HEARING DATE: 9 and 10 September 2004 JUDGE: Rackemann DCJ ORDER: The appeal will be allowed in part. I will invite the parties to submit appropriate terms of order in light of my reasons. CATCHWORDS: COUNSEL: Mr Cochrane for the appellant Mr Ure for the respondent SOLICITORS: Paul Everingham & Co for the appellant King & Company for the respondent [1] This appeal is against the imposition of certain conditions upon the Council’s approval of an application relating to a new residential estate situated off Swann Road near its intersection with Piggott Road at Bellmere. The approval was for a development permit for a material change of use, a development permit for -- 1 of 10 -- 2 reconfiguration to create Stage 1 (46 lots) and a preliminary approval for reconfiguration for future stages (155 lots). [2] The land, the subject of the application, adjoins land which is primarily included in the Special Rural Zone (to the south and west) but, in part, in the Rural Zone (to the north west) and the Rural Residential Zone (to the north). [3] The Statement of Intent for the Special Rural Zone makes it clear that the purpose of the zone is to provide for an area of restricted rural activities which are not detrimental to adjoining or anticipated urban areas and to cater for the expansion of the urban area in accordance with the Strategic Plan as required. Uses in the zone are anticipated to be those which do not unduly compromise that future use. [4] Land to the east of Swann Road and north of Piggott Road is generally included within the Residential A zone and has been developed as a suburban residential area. Land east of Swann Road but south of Piggott Road has, at the eastern end, been developed for suburban residential purposes. The balance of the land to the south of Piggott Road has not yet been developed for suburban residential purposes, although its inclusion, in part, in the Residential A Zone and, in part, in the Special Rural Zone, suggests that reasonable expectations should include the prospect of future development. [5] There were numerous conditions which were the subject of the appeal, however the areas of dispute narrowed significantly both prior to and during the hearing. Ultimately, the only conditions which remained controversial were those relating to works required to upgrade Piggott Road (condition 35 of the Development Permit for stage 1 and condition 27 of the Preliminary Approval for future stages), the -- 2 of 10 -- 3 financial contribution required towards external road and pathway networks (condition 37 of the Development Permit for stage 1 and condition 29 of the Preliminary Approval for future stages) and the requirement, in the case of the future stages, to erect a 1.8 metre timber paling fence, at the developer’s expense, along the northern, southern and western boundaries, or such alternative that may be agreed in writing with the adjoining property (condition 4 of the Preliminary Approval for future stages). [6] The imposition of conditions is subject to the provisions of Part 5 of Chapter 3 of IPA. In particular, s.3.5.30 sets out the well known “relevant or reasonable” test which conditions must meet. Subject to the conditions being lawful, there is a discretion in the assessment manager, and on appeal, the court in relation to the imposition of a particular condition. There is, of course, no requirement to impose each and every condition which could possibly be lawfully imposed. [7] Of the conditions referred to above, there is one, namely the fencing condition, which is no longer controversial in the sense that the respondent, via its counsel, no longer contends for it to remain as a condition of the subject approval. I will however, say something about how that position has been reached. [8] An important element of the Council’s case for the imposition of that condition was the potential for conflict with adjoining land use. At the beginning of the hearing, I observed that the fencing condition was only imposed on the preliminary approval for the later stages. Since the preliminary approval does not authorise development to occur, application will be needed for a development permit or permits at a later time to authorise that development. I questioned whether, if compatibility was in -- 3 of 10 -- 4 issue, it would not be better to delete the condition from the preliminary approval and allow the matter to be considered at the development permit stage, on the facts and circumstances which then apply. That was taken up by counsel for the respondent. [9] Counsel for the appellant, while content to see the deletion of the condition from the subject approval, submitted that the deletion should be expressly on the basis contended for by the appellant, namely that it would not be justified in any event given, amongst other things, that the proposed land use was a compatible one given the zoning pattern and, as the Council officer responsible for the report and recommendation to Council had observed, fencing will occur in any event as part of the ongoing development. While acknowledging that the reasoning for deletion of the condition at this stage could only be, at the most, persuasive in relation to the Council’s decision, at a later time, of a subsequent application for a development permit in the context of the facts and circumstances which then apply, counsel for the appellant urged me to give his client some greater certainty as to the requirements which would be imposed in subsequent stages. [10] While I appreciate the position of the appellant and consider that there is some force in its stated basis for opposition to the condition, I remain of the view that, in the context of this case, it would be appropriate for me to delete the condition on the basis that that, on either view, it should not remain as a condition of the subject permit. [11] The conditions requiring a financial contribution towards the external road and pathway network initially sought a financial contribution of $1,760 per lot. That -- 4 of 10 -- 5 level of contribution was not supported by the respondent on the hearing of the appeal. The level of contribution which was ultimately urged, on behalf of the respondent, was $697 per lot comprising $750 per lot for those 20 lots which will use a future residential connection west of Swann Road to/from Bellmere Road in lieu of Piggott Road and $692 per lot for the remaining lots. [12] The $750 per lot contribution is not referrable to any particular works nor any particular calculation. The respondent was unable to point to any specific works, the need for which would be caused or contributed to by the relevant 20 lots or was relevant to them. The imposition of a $750 contribution was sought to be justified on the basis that it is a “standard” Shire wide contribution which is otherwise levied on new lots. While Mr Pollock, the traffic engineer called by the respondent, said that he had been told certain things about the way in which the sum of $750 had been arrived at by Council officers, he was not party to any such exercise and was not in a position to give any detailed justification of the quantum of the contribution sought. While it was asserted that the contribution was sought on a Shire wide basis, neither Mr Pollock nor counsel for the respondent was able to point to any relevant document which related to the imposition and quantification of the contribution. In the circumstances there seems to be little, if any, justification for the imposition of $750 contribution and I am satisfied that, in this case, no contribution should be levied with respect to the relevant 20 lots. [13] The contribution of $692 per lot was calculated having regard to specified works, namely the construction of “deflected T” treatments at the Piggott Road/ Cisticola Court and Piggott Road/ Plover Court intersections, the provision of a two metre wide shared pedestrian/bike path on the northern side of Piggott Road and an -- 5 of 10 -- 6 upgrade to the Bellmere Road/Piggott Road intersection. The appellant accepts the contributions now sought in respect of the deflected T treatments and the intersection upgrade but disputes that it should make any contribution to the construction of a two metre shared bikeway/pedestrian path. [14] The contribution sought by the Council towards the two metre shared pedestrian/bikeway along Piggott Road, is a contribution towards the differential cost of providing a two metre wide facility rather than a 1.2 metre wide standard pedestrian footpath. Notwithstanding the residential development which has occurred on the northern side of Piggott Road, there is no footpath on that side of the road, the Council has not previously taken any contribution towards that and counsel for the respondent was not able to point to any plan or program pursuant to which Council currently proposes to provide a two metre footpath/bicycle way.1 [15] While the provision of bikeways is, of course, generally beneficial and no one would discourage the Council from providing such a facility, the question is whether it would be reasonable or relevant in accordance with s.3.5.30 of IPA and the appropriate exercise of discretion to require the appellant to make a contribution towards such facility as a condition of the subject development approval. [16] In that regard, I accept Mr Viney’s evidence to the effect that a road such as Piggott Road can operate acceptably, from a traffic engineering perspective, with cyclists using the carriageway. His view, in that regard, is consistent with published guidelines. The respondent nevertheless expressed a concern that 1 Although I accept that if a condition was otherwise warranted, it could be formulated in such a way that the contribution is refunded if no facility is developed within a specified time. -- 6 of 10 -- 7 provision be made for, in particular, young riders who might wish to travel from the new estate to the shopping facilities at the end of Piggott Road or the educational establishments further to the north. [17] While there may be young persons who would wish to ride to such facilities, it must be recognised that residential development has, to date, occurred in the locality without an “off carriageway” cycle provision along Piggott Road. Further, the educational establishments located to the north are a significant distance away for younger riders2 and, it would seem, not linked to Piggott Road by any continuous system of bikeways otherwise. While there is a bikeway facility on the opposite (eastern) side of Bellmere Road, there is no evidence that extends beyond its intersection with King Street. Any young rider who is entrusted by his/her parents to travel, unsupervised, from the subject development to school must travel more than three kilometres to even the nearest educational establishment. This would involve the crossing of King Street before travelling a further distance negotiating topography which was unexplained in the evidence in an area where it was not suggested that there is any bikeway provision for younger riders. One would have thought that those factors would affect the number of young children wishing to and the number of parents of younger children prepared to allow their children to, ride to their local school unsupervised. [18] The respondent was not able to point to any provision of the Planning Scheme or any planning policy or other document which suggested that the provision of an offroad bicycle provision along Piggott Road was something which was required or planned. 2 Mr Pollock’s evidence was that the closest school is approximately 3 kilometres from the Bellmere Road/Piggott Road intersection which, in turn, is at the opposite end of Piggott Road from the proposed estate. -- 7 of 10 -- 8 [19] In the circumstances, while no one would discourage the Council from providing offroad bicycle facilities, I am satisfied that it would be unreasonable to impose a contribution as a condition of the subject approval and I would, in any event, not be prepared to do so as a matter of discretion in this case. [20] The final contentious condition relates to works required towards the widening of Piggott Road. [21] Piggott Road falls within the “collector road” category within Council’s adopted road hierarchy. The Council’s adopted standard for such roads calls for a 12 metre constructed carriageway consisting of two 3.5 metre wide lanes with a 2.5 metre wide dedicated parking lane on either side. Piggott Road, which currently carries relatively low traffic volumes, is not fully constructed to that standard. The section between Cisticola Court and Swann Road has a pavement width of 10 metres of which only six metres is a full depth pavement with the remaining four metres being a light dust seal. [22] Council’s condition required the upgrading of the southern side of Piggott Road in that section. It was accepted that the appellant should not have to construct Piggott Road to its ultimate form. That will probably not occur until development takes place on the southern side of Piggott Road. While Mr Viney contended that the existing six metre wide construction was adequate, he was prepared to agree to a widening to 7.5 metres full depth construction with the existing 2.5 metre dust seal for the balance, with the appellant to meet a proportion of the costs. Mr Pollock, on the other hand, contended that the full depth construction should be widened to -- 8 of 10 -- 9 10.5 metres with the full cost of widening to be met by the appellant as representing a fair contribution to the ultimate 12 metre construction. [23] Much of the difference between Mr Viney and Mr Pollock is explained by Mr Viney’s opinion that the Council’s adopted standards for collector roads are too high and that, consistently with published and widely referenced guidelines such as Queensland Streets, a carriageway width of 7.5 metres is sufficient. He pointed out that a requirement for a wider construction can have detrimental consequences in terms of encouraging higher speeds and is not, in his view, an appropriate use of resources. [24] Mr Pollock, on the other hand, was clearly influenced by the fact that Queensland Streets had not been adopted or, more importantly, implemented by this Council. [25] Counsel for the appellant, in contending for the adoption of Mr Viney’s approach, drew attention to s.3.5.30(2) of IPA which provides that: “The requirement for a condition to be relevant to, but not an unreasonable imposition on, the development or reasonably required in respect of the development applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.” [26] While I am conscious of the provisions of s.3.5.30(2), Mr Pollock’s view was not determined simply because the Council had published and adopted certain standards. Rather, it was his contention that, before applying guidelines such as Queensland Streets in relation to a particular road, one should sensibly look at the hierarchy into which that road falls in the local network. -- 9 of 10 -- 10 [27] His evidence which, in this respect, I accept, was that the requirements for which he contended were consistent with the road hierarchy in the locality in relation to what presently exists in the Piggott Road catchment and what is proposed to be developed within the present estate. In that regard it should be noted that, pursuant to Condition 30 of the conditions of the Development Permit for Stage 1, some minor collector roads within the estate are to be constructed to 8.0 metres kerb to kerb and the east/west road between Swann Road and Lot 196 is to be constructed as a 10 metre kerb to kerb residential minor collector road. As Mr Pollock attested, in a properly planned legible road hierarchy one expects to move progressively from narrower roads at the lower end of the hierarchy towards wider roads at the higher end. Piggott Road sits within the local hierarchy at a higher level than the roads referred to in condition 30 and the requirements contended for by Mr Pollock are consistent with the existing and developing hierarchy in the locality. [28] In those circumstances, notwithstanding the merit, in a general sense, of the guidelines in Queensland Streets, it is at least relevant to the appropriate planning of a proper road hierarchy in the subject locality to adopt the widening recommended by Mr Pollock. I also accept his evidence to the effect that it would be appropriate for the cost of that widening to be borne by the appellant as a fair contribution towards the development of road, given the proposal’s contribution to traffic volumes. Although the cost implications for the appellant are significant, I do not regard it as an unreasonable imposition in the circumstances. [29] I will invite the parties to submit appropriate terms of order in light of my reasons. -- 10 of 10 --