Bolton & Bolton v Rockhampton City Council [1993] QPEC 51

) J IN THE PLANNING AND ENVIRONMENT COURT HELD AT ROCKHAMPTON QUEENSLAND Before Row DCJ P & E Aopeal No. 9 of 1992 (Rockhampton Registry) [Bolton v Rockhampton City Council] BETWEEN: WARREN KENNETH AND DONNA FRANCES BOLTON Judgment delivered: Catchwords: Counsel:· Solicitors: Hearing Date(s): Appellants - and - ROCKHAMPTON CITY COUNCIL Respondent REASONS FOR JUDGMENT 16/07/1993 Male Appellant in person Mr Bressington (Solicitor) for the Respondent Appellants in person Bressington & Partners for the Respondent 28, 29 June 1993 -- 1 of 8 -- IN THE PLANNING & ENVIRONMENT COURT HELD AT ROCKHAMPTON p & E Appeal No. 9 of 1992 BETWEEN: WARREN KENNETH BOLTON & DONNA FRANCES BOLTON Appellants THE COUNCIL OF THE CITY OF ROCKHAMPTON Respondent 28th, 29th June 1993 REASONS FOR JUDGMENT - ROW D.C.J. Delivered the 16th day of July 1993 - Rockhampton ( The appellants appeal herein consequent upon a decision of ( the respondent whereby the respondent approved, subject to conditions an application for the subdivision of land being Lot 3 on R.P. 6922, County of Livingstone, Parish of Archer situated at 90 Bryant Street, North Rockhampton. The subject land has an area of 2. 020 hectares. Part of the subject land is zoned Residential "A" and the other part Non-Urban "B". Proposed Lot 1 on which there exists a dwelling house is proposed to have an area of 1400 square metres. Proposed Lot 2 has a proposed area of 5,330 square metres whilst proposed Lot 3 has a proposed area of 11,270 square metres including 6,920 sq.m. which is that part of the subject land zoned Non-Urban "B". The respondent resolved to approve the said application subject to conditions. Condition 5 (a) and 5 ( b) of the approval required the appellants to dedicate about 59 per cent of the subject land for park and recreation purposes, being the whole of the land zoned -- 2 of 8 -- 2 Non-Urban "B" and a strip of land along Thozet Creek general 10 metres wide. Condition 7 required an extension for approximately 11 O metres of the existing bitumen construction of Bryant Street with a suitable turn around area being provided at the road end. Condition 8 requires a 0.1 metre access restriction strip to the unconstructed road frontage of proposed Lot 3. Subsequerit to the issue of the Notice of Appeal discussions have occurred between the parties. The issues now before the Court relate to condition 5 and 8 and the provision of a passing lane in relation to condition 7. Condition 5 relates to the provision of an area of land for park purposes and Condition 8 to the access restriction strip. Such disputed issues before the Court are identified in Exhibit 22. Sewerage is available on the subject land. Bitumen access is available off Bryant Street, although only a short section has been constructed. The dedication of Bryant Street terminates approximate level with the di vision between the Non-Urban "B" zone and the Residential "A" zone of the subject land. The authority of the respondent to require as a condition of approval of an application for subdivision land, a monetary contribution, works or a combination of those matters is contained in s.5.6 of the Local Government (Planning & Environment) Act 1990 as amended ( the Act). On the 28th September 1992 the respondent passed Local Planning Policy No. 1 - Park Provision in Subdivision ("the Policy") in relation to park provision for a subdivision application. Subsequent to the institution of the appeal the respondent, -- 3 of 8 -- 3 through its solicitors by letter dated the 7th June 1993, advised the appellants that the respondent would be prepared to submit to the court amending certain conditions in relation to the approval as therein stated. Proposed condition 5 requires the dedication of a minimum of 10 per cent of the subject land as a link from the existing park area abutting the southern boundary of the subject land to Bryant Street, as is set out in exhibit "H" to the affidavit of the subdivision and design engineer. In addition the proposed condition requires the appellant to carry ( out certain work in relation to the proposed dedicated park land. The location of the proposed area conforms with the objective of the Policy in that the proposed park area provides a link between existing open space areas and residential development located in the vicinity of Bryant Street. The evidence of the City Planner, Mr. Wiley, and the subdivision and design engineer, Mr. Hegarth, which I accept, demonstrates the suitability of the proposed link and the advantages and convenience that such a link would provide. The proposed link would avoid what may be seen as the present undesirable pedestrian access via major roads that members of the public residing in the locality near Bryant Street encounter when wishing to access the existing open space areas. Such access as is proposed ought not to allow for vehicular access. Under s.5.6(1)(b) of the Act a combination of the various matters referred to in paragraph (a) is not to exceed the maximum area or monetary value provided for in the section. The Policy does not contain a provision comparable to s.S.6(1)(b) of the Act. The objective of the Policy is to provide adequate park ( C C -- 4 of 8 -- 4 provisions to meet the needs of the community and to link areas to provide a comprehensive open space network. Clause 1.3 (1) to (4) of the Policy substantially reproduces s.5.6(1)(a) of the Act. It is to be noted that such matters are expressed in the Act and in the Policy disjunctively. However, it is be noted that the provisions of Clause 1.4 are expressed conjunctively whereas the provisions of s.5.6(1) (a) of the Act are disjunctive. Clause 1 .4 of the Policy provides that where land is proposed to be dedicated for park in accordance with provision 1.3 such land shall ... (i) comprise 10 per cent of the land to be subdivided; AND (ii) comprise land that is a fair average of the type of land to be subdivided; ... AND (iv) be not less than 2,000 sq.m. in the area ... AND (v) be developed to a condition fit for use as park and shall be selectively cleared, graded, filled and grassed under the direction of and to the reasonable requirements of the Director of Parks and Recreation or left in its natural state to the requirements of the Director of Parks and Recreation. What is being sought herein by the respondent is the provision of land and the carrying out of works by the appellants in relation to the land proposed to be dedicated for park. Under s.5.6(2) of the Act the area of land to be provided is the area provided in the Policy but not exceeding an area that is 10 per cent of the land to be subdivided. Where works are required pursuant to the provisions of s.5.6(1)(a)(iii) of the Act s.5.6(5) of the Act provides that the value of those works is not -- 5 of 8 -- 5 to exceed the amount which could be required in substitution of an area of land as prescribed pursuant to subsection 4. The respondent herein is seeking to obtain a land provision for park purposes together with the provision of certain works by the appellants in relation to the land required for park purposes. As the respondent is seeking 10 per cent of the area to be subdivided it may not lawfully impose a condition which requires the carrying out of certain works or a monetary contribution in addition thereto. Under the Act and pursuant to the Policy the respondent may require an area not exceeding 10 per cent of the area of the land to be subdivided as park contribution without any provision of works or monetary contribution. The combination of a land area of 10 per cent and a works or monetary contribution as provided in sub-clauses (v) and (vii) of Clause 1.4 of the Policy is contrary to provision of s.5.6(1)(b) of the Act. Where under Clause 1 .4 a condition is imposed for 10 per cent of the land to be subdivided the provision of works as provided in sub clause (v) is contrary to the provisions of ( s. 5. 6 ( 1) (b) of the Act and to that extent is of no force or effect. If the local authority wishes to impose a condition in ( relation to works as envisaged by Clause 1 .4 (v) a compensating reduction will be required in relation to the area of land to be dedicated for park purposes provided such area is not less than 2000 sq. m. Such an approach would be consistent with the provisions of s.5.6(2) of the Act where the area of the land is not to exceed the area provided in a local planning policy. Whilst a lawful condition cannot exceed 10 per cent of the land a Local Authority is not prohibited by the Act from otherwise -- 6 of 8 -- ) ) '\ 6 acquiring a larger area of land for park purposes. Section 5.6 of the Act applies only in relation to the inposi tion of a condition. Condition 5 should be amended to read as follows:- "The appellants are required to dedicate 10 per cent of the subject land as a link from the existing park area abutting the southern boundary of the subject land to Bryant Street for park and recreation purposes as indicated on exhibit "H" to the affidavit of the subdivision and design engineer." The issue in relation to works in Bryant Street is whether a parking or passing bay should be provided therein. Bryant Street is a dead end road and serves very little residential development. The use of AMCORD in my opinion is of no assistance as the proposed development does not provide what may be termed 'green street development'. The proposed lots are extensive in area and are not of such an area as is generally covered by a green street form of development. The amount of traffic volumes generated by the proposed two additional lots would be insignificant in the Bryant Street vicinity. The street would have little additional traffic channelled onto it by virtue of 1 the proposed subdivision and subsequent development of two additional lots. In such circumstances being a dead end road it is unlikely that any provision would be required for passing traffic. The proposed turning area at the end of the proposed extension of Bryant Street would adequately cater for traffic movements in Bryant Street in this location. Each proposed lot is proposed to be so developed that the dwelling house would be located a significant distance removed from Bryant Street. This would permit the parking of visitor traffic on site and would not reasonably require a provision of an area on Bryant Street for -- 7 of 8 -- 7 parking consequent upon the proposed subdivision and development of the proposed lots. On the evidence I am satisfied no condition is reasonably or relevantly required for the provision of any parking or passing bay in the proposed extension of Bryant Street. Condition 7 as proposed in the letter dated 7th June 1993 from the solicitors for the respondent should be amended by deleting the following:- "This section of road shall be provided with parking and passing bays in accordance with the requirements of the Australian Model Code for Residential Development ( AMCORD ) . " A consequence of the proposed subdivision is that one of the ( lots would have some frontage to an unformed road. The purpose of the access restriction strip is to prohibit access from that part of the subject land which would have access onto the unformed Bryant Street. The utilisation of an access restriction strip would ensure that access could not be had onto an unformed road thereby reducing any potential for the many amenity issues that may arise from unlimited access onto an unformed and ( unconstructed road. The proposed access restriction strip would ( not prevent the owner of proposed Lot 3 having access onto the proposed extension of Bryant Street which would be sealed. Condition 8 of the approval is reasonably required by the application. For the reasons above the appeal is allowed in part. Approval is granted to the application for subdivision subject to the conditions of approval as agreed between the parties and as amended in accordance with the judgment. -- 8 of 8 --