Delfin Property Group Pty Ltd v Thuringowa City Council [2000] QPEC 20

IN THE PLANNING AND ENVIRONMENT COURT AT TOWNSVILLE QUEENSLAND (Before CF Wall QC, DCJ) (Delfin Property Group Pty Ltd v Thuringowa City Councill BETWEEN: Judgement Delivered: Catchwords: Counsel: Solicitors: Hearing Dates: P&E Appeal: No's 117& 283-286/99 DELFIN PROPERTY GROUP PTY LTD Appellant THURINGOWA CITY COUNCIL Respondent JUDGMENT 10 March 2000 BUILDING CONTROL AND TOWN PLANNING - regulation of construcfam - appeal - condition requiring subdivider to construct storm-water drain - whether condition lawful - sec 3.5.30( 1) Intergrated Planning Act. Mr D. Gore QC - appellant Mr J. Baulch SC - respondent Wilson Ryan and Grose for the appellant Thuringowa City Solicitor for the respondent 7 & 8 March 2000 -- 1 of 9 -- Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING AND ENVIRONMENT COURT JUDGE CF WALL QC p & E Appeal No 117 of 1999 p & E Appeal No 283 of 1999 p & E Appeal No 284 of 1999 p & E Appeal No 285 of 1999 p &. E Appeal No 286 of 1999 DELFIN PROPERTY GROUP and THURINGOWA CITY COUNCIL TOWNSVILLE .. DATE 10/03/2000 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau DATE 10/03/2000 Appellant Respondent 4Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07)3247 4360. Facsimile: (07) 3247 5532 -- 2 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) HIS HONOUR: These appeals were heard together and raise the same issue. It is conceded by the respondent, consistently with the evidence, that the subdivisions add little, if any, measurable effect to the load in the Kern main drain and to the flooding risks. Dr Johnson said the subdivisions will have a very minor adverse effect on flooding. They will not measurably alter the flooding situation if the drain between Charles Street and Dalrymple Road was left in its present condition. He said the 10 difference in flow rate as a result of the subdivisions will be so small as to be hardly measurable in the context of the overall flow rate of a 50 year event. There will be some detrimental effect because there is an increase, but it would make no substantive difference to the levels shown. Mr Bailey agreed that each of the subdivisions on its own will not contribute a significant amount of additional water. He agreed that the increase of run-off from the subdivisions would have a marginal or relatively insignificant increase in 20 the flow rate in the Kern main drain. The catchment area for the Kern main drain at Charles Street is approximately seven square kilometres. The total area of these subdivisions is 8.78 hectares. There were some differences between Dr Johnson and Mr Bailey and, in relation to these differences, I prefer the evidence of Dr Johnson, for the reasons he gave when asked about the differences between his evidence and that of Mr Bailey. I 2 JUDGMENT 30 -- 3 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) think that his conclusions are a little more reliable and objective than Mr Bailey's, who tended to emphasise a broader picture rather than confine himself to the effect of these subdivisions. For example, Mr Bailey extrapolated rainfall records at Gleeson's Mill some nine kilometres south of the relevant catchment area to the subject area. Likewise, his reference to a Manning's n value of 0.2 tended to be misleading and misrepresentative of actual conditions. He conceded that water levels observed by him at Sandstone Drive Bridge on 25 February 2000 were probably due to growth in the 10 main drain, which needs a good cleaning out; that was the most logical cause, he said. Mr Bailey in fact agreed that the condition requiring construction of the Kern main drain to its ultimate profile between Charles Street and Dalrymple Road was not because of or due to the subdivisions. He said he was really looking at the total Willow Gardens Estate which he said justifies such a condition. He agreed that these subdivisions would not require that work; they would not require any work and that he 20 would have difficulty making such a condition ~reasonable and relevantn to these subdivisions alone. In each appeal, the relevant condition is in these terms: ~The subdivider shall construct the Kern open main drain from Hervey Range Road to Dalrymple Road to its ultimate profile and capacity and the drain shall be seeded and grassed in accordance with relevant Council policies. Council may be prepared to enter into an agreement with 30 the subdivider regarding the completion of this work". 3 JUDGMENT -- 4 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) The appellant challenges that part of this condition which involves the Charles Street to Dalrymple Road section of the drain, which is some 1200 metres long in that section. Mr Bailey said he wrote the last sentence of the condition, "on the basis that it would be possible for the appellant to approach somebody else and come up with a satisfactory alternative where they could negotiate a cost sharing arrangement with the downstream owner". That owner is the company which owns Portion 47 through which the main drain 10 runs between Charles Street and Dalrymple Road. That land is currently undeveloped. Mr Bailey said the Council was asking Delfin to talk to "the people downstream" from Charles Street with a view to negotiating a solution involving a sharing of the costs of constructing the drain to its ultimate profile from Charles Street to Dalrymple Road. I think the likelihood is that any development of Portion 47 will involve stormwater run-off discharging into the main drain. That was the view of Dr Johnson and I accept it. Mr Bailey's evidence is not in my view sufficient to bring the condition within section 3.5.30(1) of the Integrated Planning Act 1997. On the contrary, it supports the contention of the appellant that the condition is not in fact one which comes within that provision. The Council, in attempting to uphold the condition, relied 20 primarily on historical reasons connected with the development 30 4 JUDGMENT -- 5 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) of the Willow Gardens Estate area in general. For the reasons referred to by Mr Gore QC for the appellant, those reasons do not in my view provide a sufficient nexus between the condition and the subdivisions to make the condition lawful so far as it relates to the Charles Street to Dalrymple Road section of the drain. The appellant has agreed to the condition for the drain from Hervey Range Road to Charles Street. Mr Baulch SC argued that the appellant apprehended and anticipated such a condition as a general requirement connected to the ongoing development of the Willow Gardens Estate. The evidence does not in my view go that far, but, even if it did, it would not make the condition lawful. Mr Bailey referred to "all of the dealings with the Delfin and the Kern people" and the fact that the type of work the Council had "envisaged" was construction of the drain to its ultimate profile. When asked why the appellant should be subjected to the condition - why for these subdivisions it should have to bear the problems of the catchment as a whole as opposed to spreading the burden a bit more rateably - he said that the Council understood it had always had an arrangement with Kern right from the beginning " ... and we try to impose the same arrangements with the rezoning condition and then attach that to the DCP. In addition, we did have an agreement with the Defence Housing Authority and I always assumed that we had the 10 20 same agreement with Delfin." ~ 5 JUDGMENT -- 6 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) The agreement between the Council and DHA is Exhibit 12. Mr Bailey said the condition was imposed more for reasons related to history and a perceived assumed obligation to complete construction of the main drain to its ultimate profile and that the condition cannot be related entirely to the subject subdivisions; it relates more to the development of The Willows, the DCP and the land that was rezoned and included in this is that part of the drain between Charles Street and Dalrymple Road. It is difficult to understand precisely what is meant by conditions 14 and 15 of annexure A to DCP3 - Exhibit 6 - but they cannot in my view make lawful what is otherwise unl~wful. Various permutations of meaning were discussed during argument and I need not repeat them here. I am also inclined to agree with Mr Gore that the stormwater drainage required by Part 6.3.1 of DCP3 is not the Kern main drain but a drainage network carrying water to that drain. So far as the agreements relied on by the Council - Exhibits 10, 11 and 12 - are concerned, the appellant was not a party to them and is not bound by them. The appellant has assumed no legal liability to be bound by a condition such as is sought to be imposed in these appeals. I agree with the submissions made by Mr Gore in relation to these agreements, including his submission that the agreements do not go as far as the Council contends. 6 JUDGMENT 10 20 -- 7 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) Finally, I also agree that the increased development yield relied on by the Council has no legal or relevant connection with the disputed condition. Even if the condition could be said to be relevant, which I doubt because of its wide terms which require construction rather than a contribution to construction costs but am prepared to accept, it would in the circumstances amount in my view to an unreasonable imposition on the development more so when one also has regard to the obligation of the appellant to 10 construct the main drain to its ultimate profile between Hervey Range Road and Charles Street as a result of these subdivisions. The cost of complying with the condition, so far as•it relates to the section of the drain between Charles Street and Dalrymple Road, is put at about $500,000. Mr Baulch relied in particular on passages from the judgments in Lloyd v. Robinson (1962) 107 C.L.R. 142 at 153 and Proctor v. Brisbane City Council (1994) Q.P.L.R. 309 at 314 and on the decision of the Court of Appeal in Wise v. Maroochy Shire Council (1999) 2 Q.R. 566, but in my view these do not alter the position. The fact that no evidence was led by the appellant as to the cost being prohibitive is not in my view determinative of whether the condition amounts to an unreasonable imposition on the development. Factors other than purely economic considerations are obviously involved in that issue. Mr Baulch did not abandon reliance on section 3.5.30(1) (b), but barely and only faintly argued it. This was a proper 7 JUDGMENT 20 30 -- 8 of 9 -- 10032000 Tl-2/SML M/T TSVDC6863 (Wall DCJ) course to adopt in the circumstances, because the evidence is against him and the condition cannot in my view be upheld on that basis. The evidence does not support the condition under either limb of section 3.5.30(1). In the end, the Council did not contend for anything less than construction of the drain to its ultimate profile. For these reasons, each appeal is allowed and the particular 10 condition in each is varied so that it is limited to the Kern open main drain from Hervey Range Road to Charles Street. HIS HONOUR: Because there are ongoing discussions between the parties in relation to some of the other conditions imposed by the respondent which are also the subject of these appeals and because those discussions are likely to result in a resolution of those matters, i adjourn the further hearing of the appeals ~ to a date to be fixed. If the parties can agree on a schedule of conditions, draft orders can be lodged with the Court. 8 JUDGMENT -- 9 of 9 --