Evans & Evans v Caboolture Shire Council [1994] QPEC 60

State 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 SKOIEN, Senior Judge p & E Appeal No 55 of 1994 NORMAN DANIEL EVANS AND CAROLINE MARY EVANS and CABOOLTURE SHIRE COUNCIL BRISBANE .. DATE 19/08/94 JUDGMENT 1 RE\/!Sf::) COP!~8 1300!:D $::}ts Re;x.. r;~, 1g Our;:~?.u : DJ.te ·3 j I q I Appellants Respondent 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 190894 T 1/CAM M/T CMS127/94 (Skoien DCJ) HIS HONOUR: For the reasons which I now publish I have concluded that the condition sought by the Council is reasonable and relevant. 2 JUDGMENT 10 20 I I 30 ( 40 50 60 -- 2 of 7 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: Appeal No. 55 of 1994 NORMAN DANIEL EVANS AND CAROLINE MARY EVANS Appellants CABOOLTURE SHIRE COUNCIL Respondent REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the nineteenth day of August 1994 On 17 June 1994 I delivered reasons why I considered that this re-zoning appeal should be allowed and I adjourned the hearing to allow the parties to try to agree the conditions which should be imposed upon the re-zoning. On 11 August further evidenc 1s led and addresses delivered on the one remaining 1 _ condition on which agreement had not been reached. It is now proposed that all six new rural residential C allotments will have access to Hammond Road. At present Hammond Road, for its length along the subject land, is unkerbed and has a six metre wide bitumen seal. At the eastern boundary of the land concrete kerbing begins and the bitumen seal becomes ten metres wide. The kerbing and the ten metre width of bitumen seal then extend off to the east. The Council intends to seal the road outside the land to a width of ten metres, that is, to add a four metre strip from the existing bitumen to the concrete kerbing which the parties have agreed will be constructed at the appellants' expense. It seeks -- 3 of 7 -- 2 by a condition to have the appellant pay for half of that, that is to be responsible for the cost of a two metre wide strip of bitumen extending for the length of the frontage of the subject land. The appellants argue that they should not be required to pay for any extra bitumen sealing. Section 6.1(1) of the Local Government (Planning and Environment) Act 1990 provides that when an application is made to a local authority for re-zoning, the local authority is not to - " ( c) subject to its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates ......... " . It was not argued that the Council requirement was not relevant to the proposal to create six rural residential C allotments. It would be difficult to see how a condition relating to the access road to which the proposed allotments will have frontages could be irrelevant. The argument on behalf of the appellants was that the requirement is unreasonable. Clause 22(4) of Chapter 33 of the by-laws for the Caboolture Shire provides a table setting out the minimum requirements for roads of different types in different zonings serving various optimum catchments. The first argument was whether Hammond Road was an "access road" or a "collector road" as those terms are used in the table. That would seem to depend not only on the "character" of the road as set out in the table but also on the "optimum catchment" which is also set out. which states: See clause 22 ( 7) "(7) In deciding the carriageway appropriate for any residential streets regard shall be given to the optimum catchment of that street as herein defined; -- 4 of 7 -- 3 provided that regard also shall be given to the character and function of each street in determining the appropriate carriageway". and clause 22(6) which states: "(6) The definition of a traffic catchment is deemed to include all such household units, the traffic from which could, as determined by Counci~, be assigned to that part of the road having regard to distance and time of travel". The drafting of those is rather inelegant but the meaning is I think, tolerably clear. They place considerable emphasis on the catchment area, that is, the household units (which I take to be the same as "dwelling uni ts" referred to in the table) which will be served by the road. The reference in sub-clause(6) to the traffic which could be assigned to the road gives, I think, to the Council the power and the duty to have regard to the likely future development insofar as it is likely to affect traffic numbers and flow. According to the table, if Hammond Road is seen as an access road, having an optimum catchment of between one and sixty dwelling units a carriageway of six metres width only is required in a rural resiae11ei~l zone. If on the other hand it is seen to be a collector road, having an O!,'timum catchment of between sixty-on-e~ a:nd 400 d~€lling units, the required width for the zone is eight metres. The Council, arguing that this is a collector road wants the appellants to pay to have the bitumen strip increased in width to eight metres. The appellants, arguing that it is an access road contend that the existing six metre strip is adequate and that if the Council wants to widen the strip, it should do so at its own cost. An access road is defined as:- -- 5 of 7 -- 4 "A road which has the primary function of providing access to abutting properties and through which traffic, not having an origin or destination there, will not be attracted." The definition of "collector road" is "A road which provides for access to abutting properties and for the collection and distribution of local traffic in the area." At present Hammond Road serves forty-five residential allotments of which thirty-one are within the rural residential zones. Given the number of allotments which actually have access not to Hammond Road but to Lynanda Court cul-de-sac to the north and the Herald Court cul-de-sac to the south, (Kirby Road further to the north being unmade) I have serious doubts that even now Hammond Road truly falls within the definition of an access road. A substantial portion of its purpose is to collect and distribute local traffic in the area. I do not need to decide that. I do however decide, on the evidence of Mr Meyer the Council's engineer, that on the balance of probability the future will see the creation by subdivision of a substantial number of residential allotments which will rely on Hammond Road for access, so that the to~~i v~ residential allotments making up its catchment will easily exceed sixty-one. It will then fall squarely into the category of a collector road. At present Hammond Road is coping adequately with the existing traffic and the addition of the appellants' six allotments is unlikely to alter that. Furthermore those six allotments, added to the current number, will not exceed the sixty which the table lays down as the upper limit of the catchment for an access road. Neither of those factors is, however, determinative of the question whether the condition is -- 6 of 7 -- 5 reasonably required. In Wooton v Woongarra Shire Council (1985) 56 LGRA 301 the Full Court of Queensland expressly rejected such arguments. At p.303 Ryan J said:- "The question must be whether there is a relevant nexus between the use of the land and the conditions sought to be imposed, that nexus being that the proposed use creates such a change in existing affairs that the condition is a reasonable response to it". The Court then held that a reduction in the "reserve capacity" was a sufficient nexus between the proposed use of the land and the required condition. Deciding in favour of the Council on the point, the Full Court remitted the question of fact (whether the amount actually sought by the Council was reasonably required) to the Local Government Court. In this case the Council has correctly decided that the likely future of Hammond Road will be to provide access to more than sixty residences. The appellants' addition of six residential allotments to the existing forty-five will bring forward the arrival date of that circumstance. Put another way the appellant's proposal will reduce the capacity of the road. The Council's response is to require the appellants to increase to the width required by the by-law (that is, to eight metres) just that portion of the Hammond Road bitumen surface as is directly along the frontage of the subject land. In my opinion that is a reasonable condition. -- 7 of 7 --