Cridland & Ors v Council of the Shire of Whitsunday & Anor [1993] QPEC 39

j IN THE PLANNING AND ENVIRONMENT COURT HELD AT MACKAY QUEENSLAND BETWEEN: AND: These Appeal Nos. 2-7 of 1993 CRIDLAND & ORS Appellants THE COUNCIL OF THE SHIRE OF WHITSUNDAY Respondent 20 DAVEY PROPERTIES PTY. LTD. Respondent by Election REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the Third day of June 1993 appeals, heard together for the sake of convenience, are by objectors against the respondent planning authority's approval of a combined application t9 re-zone and subdivide land at Cannonvale. The ~pplication intended that ) the subject land move from the Residential A Zone to the Park~.: Residential Zone to enable a staged subdivision into 25 larger sized (maximum area 4,000 square metres) allotments. The land is fairly elevated and is located approximately 600 metres south of the Proserpine-Shute Harbour Road. It has an area of 12.81 hectares but a frontage of only 10 metres to=" the dedicated road reserve of Coyne Road. By reason of topography and the existence of a water supply reservoir at its eastern end, Coyne Road is never likely to provide access to the subject land. Vacant Crown land adjoins the subject -- 1 of 21 -- 2 land to the north; to the south there is an extensive area of State Forest and privately owned but undeveloped land adjoins to the east. In 1985 an application to re-zone the subject land from ,0 Rural A (Pastoral) to Residential A was approved. The re-zoning was based upon a proposal to develop the subject land for conventional residential purposes together with land to the north (Lot 3 on R.P. 749015). Arrangements were made between the applicant owner of these two parcels and the20 Department of Lands for a road linkage from the subject land across the Crown land to Lot 3 and on to the constructed road, Border Drive, which lies to the north east. The favourable attitude of the Department to these arrangements was influenced by its intention to develop the Crown land forJc residential purposes (which would have been aided by the existence of the constructed road). The successful applicant for rezoning has since experienced financial difficulties and has had to relinquish title to these parcels which now find themselves in different.!,: ownership. This, together with a change in Government policy which no longer contemplates, for the present time, development of the adjoining Crown land as previously intended has made the planned development of the area which lay behind the re-zoning of the subject land to Residential A unlikely. The proposal which is the subJect of this appeal relies upon access to Illawong Street which presently terminates in a cul-de-sac in a Residential A subdivision to the north east of the subject land. This will be achieved by acquisition of -- 2 of 21 -- 3 sufficient of the adjoining Crown land to provide such an access and the necessary arrangements for this appear to be in place. The use of Illawong Street as an access way to the, 0 subject land is a matter which provoked considerable objection to this proposal, mainly from the residents of the subdivision in which it is found. Major concerns expressed in the objections (and in the evidence of a number of those objectors who became appellants) related to problems of traffic, safety20 and amenity which would be associated with increased vehicular movement in Illawong Street and through its intersection with Manooka Drive. Other matters raised in the course of the appeal included the proposal's conformity with the Strategic Plan and whether the re-zoning was in the public interest. JC In respect of traffic engineering matters, I had the advantage of evidence from two experienced consulting traffic engineers, Mr Eppell (who was called by the respondent by election) and Mr Holland (who gave evidence for the appellant). I also had the benefit of the views of the Shire.:,~ Engineer. There was agreement regarding the likely increase in-traffic volumes which the proposal would bring about and I was informed by Mr Eppell ( and Mr Holland did not appear to dispute it) that both the existing and projected traffic volumes were within the normally accepted limits of physical=-·= and environmental capacity for a road of its type. A matter that was however subject to some discussion was whether the extension of Illawong Drive into the proposed development would conflict with the "Australian Model Code for -- 3 of 21 -- 4 Residential Development" (AMCORD) and the "Queensland Streets Code" (which has been produced by the Local Government Engineers' Association of Queensland). These publications, particularly AMCORD, were subjected to fairly close scrutiny ,o in the course of the evidence. It is accepted that they do not have any statutory force but are recognised as "a valuable set of guidelines which assist the designer" . . It was agreed that Illawong Street was one where the residential environment should dominate and traffic should be20 subservient but there was disagreement between the traffic engineers as to whether the guidelines called for maximum speeds of 30 kilometres per hour or 40 kilometres per hour in a street with its attributes. The confusion seems to have arisen because of apparent conflict between part of the AMCORDJ~ publications styled the "statutory components" and another part ref erred to as the "explanations and research backgrounds". Mr Holland pointed out that the AMCORD guidelines recognise that difficulties and frustration arise when drivers~c are required to maintain relatively low speeds (e.g. 30 kilometres per hour) for periods beyond 60 seconds and that this would be the case here. Mr Eppell felt that if one adopted a 40 kilometres per hour maximum, little difficulty would arise and pointed to the "Queensland Streets Code" which 50 suggests 60-90 seconds as being a reasonable maximum. AMCORD has evidently drawn upon experiences in southern States while the "Queensland Streets Code"· allows for differing circumstances which are encountered in this State. If there -- 4 of 21 -- 5 is advantage in familiarity with local conditions, it would not be easy to set to side the views of the Shire Engineer who is of the opinion that the impact of the proposal on Illawong Street in traffic terms would not be unacceptable. It should,o be added that works to improve the amenity in Illawong Street are contemplated and these include the provision of a footpath, carriageway alteration, the construction of traffic islands and landscaping to accord with the AMCORD guidelines. The appellants made a point that they place a high value20 upon the advantages of living in a cul-de-sac and the absence of disturbance associated with through traffic. This proposal, they argued, would largely destroy these advantages which they had (reasonably in their view) expected to continue. I do not doubt their sincerity and have no difficulty in understanding the point which they make. I accept that this proposal would have effects upon their amenity which they would not welcome. The difficulty which I have is in accepting that their expectations are such as should be~ 0 afforded protection having regard to the formal instruments of planning control and proper town planning practice. While existing topography and the condition of Coyne Road might have encouraged them in their expectations, that the amenity of Illawong Street would remain exactly as it is (or that it 30 would always function as a cul-de-sac) is not something that one could readily read into the Strategic Plan which indicates that much of the surrounding undeveloped land is designated for urban use in the future. -- 5 of 21 -- 6 A point was made that while the development is being established and dwellings are being constructed, there will be an increase in the number of heavy vehicles using Illawong Street. That will occur but it is something which is,0 inevitably encountered in a newly developing residential setting and is not beyond that which existing residents should be required to tolerate . . I accept the views of the witnesses called by the respondent by election that although there will undoubtedly be20 an increase in traffic volumes in Illawong Street, the resultant effect upon residential amenity will be within limits fairly regarded as acceptable. Reference is made to a policy adopted by the respondent planning authority some time ago which refers to desirable Jc cul-de-sac lengths in particular zones. It was adopted before the Park Residential Zone became part of the Town Planning Scheme. When dealing with the application the planning authority did not refer to the policy and preferred to turn to the AMCORD guidelines. in the evidence of In view of the careful attention given~c the appropriately qualified expert witnesses to matters that appear to be relevant, I do not believe that the policy provides a great deal of assistance in the determination of the appeal. The intersection of Illawong Street and Manooka Drive has 30 caused difficulties for the planning authority in the past. It has fairly been described as "a situation which would be avoided in contemporary design of a residential street system". The vertical alignment of Manooka Drive has -- 6 of 21 -- 7 presented problems in terms of sight distances and the evidence indicates that following an accident involving personal injury to a motor cyclist, traffic signs were introduced to control entry to three legs of the intersection. , 0 Expert opinion appears to be that provided these controls are observed, the intersection operates safely. The introduction of further traffic into Illawong Street as a res~lt of the proposed development will increase the exposure of drivers to the intersection but as traffic flows through 20 the area seem relatively light, whatever problems the intersection poses will not be, on the evidence, exacerbated to an extent which would warrant the proposal's rejection. Mr Danse, a town planning consultant who gave evidence for the appellant, sought to develop an argument that the Jc proposed re-zoning to Park Residential was in conflict with the respondent's Strategic Plan. In so doing he had to come to grips with the problem that, when the Strategic Plan was gazetted ( January 1985), the Park Residential Zone was not part of the town planning scheme ("it was introduced by Order~.: in Council on 16 March 1989). He attempted to do this by treating the Park Residential Zone on the basis that it was equivalent to a Rural Residential Area and not one that could be properly regarded as an urban area. He then went to the Strategic Plan provisions which deal with the Rural:.::• Residential Areas and which indicated that Rural Residential subdivisions would not be permitted within future urban neighbourhoods in which, in part at least, the Strategic Plan has the subject land. -- 7 of 21 -- 8 I do not accept that this approach is a valid one. Conflict with the Strategic Plan is a matter of some consequence ( S. 4 ( 5A) of the Local Government (Planning and Environment) Act) and if it is to defeat a proposal it must be, 0 apparent on a proper construction of the plan. The Strategic Plan as written simply did not contemplate a zoning such as is here intended. To seek to demonstrate conflict by contending that the Park Residential Zone must be equated with one of the zonings which were then part of the Town Planning Scheme is, 20 in my view, to take the matter too far. Leaving the Strategic Plan to one side I find that there is a good deal of merit in the approach adopted by Mr Dalton (the Town Planning Consultant called by the appellant) and Mr Allen (the respondent's Town Planner) who, while conceding Jc that future growth will give rise to a need for Residential A land in the future (although there is sufficient land to meet present demand), were of the opinion that the relevance of the Residential A Zoning of the subject land has been importantly weakened by the changes in circumstances leading to the.:.~ unlikelihood of the development· (and the road network) contemplated at the time of that re-zoning. The re-zoning to Park Residential will retain the land in a residential setting although allowing for considerably fewer allotments. It is obvious on the evidence in this appeal that~0 if access is to be had to Illawong Street residential density of a lesser degree is preferable. The proposed re-zoning to Park Residential would result in a gradation of residential densities as one moves from the -- 8 of 21 -- 9 established urban areas to the undeveloped State Forest area and would, in that sense of the concept of "Balance of zones" appear to be appropriate. A point was made that the stated intent of the Park ,0 Residential Zone provides "Urban services are to be provided to sites within this zone with the exception of sewerage. Inclusion of land within this zone will only be considered if the physical make up of the soil and lot size are sufficient to dispose of all wastes without polluting any water course or water table and without having any other adverse residual effects". 20 Expert geotechnical evidence in this case indicated that while the subject land and the proposed lot sizes were generally suitable for satisfactory absorption of septic wastes, there were some areas where, because of highly permeable sands and gravels near water courses, it might be Jc preferable to employ Envirocycle or Biocycle type septic systems which would ensure that no pollution problems occur. It seemed to be argued that the Statement of Intent did not contemplate the disposal of waste other than by conventional septic systems ( and not by chemical treatment of .. ,: the Envirocycle or Biocycle type). The passage relied upon is part of the Statement of Intent and should be interpreted as such. To read it in the way advocated by the appellants is to be distracted by the form and to give insufficient weight to the substance of what is being said. whatsoever in this approach. I see no merit:"• On all of the evidence in the appeal I have concluded that the onus of showing that the application should have been -- 9 of 21 -- 10 approved has been discharged. dismissed. The appeal is accordingly '0 20 -- 10 of 21 -- ...---------------------------------------~,lf~U.::~~~~---,.-~~.:.c~~~..:~112".."':~r.t:lZ'.e;...'!'r'~~~""=,~~;:;:~~in.~"tr-~~~...r:. ) TRAl\1SCRIPT 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 QUIRK Appeal Numbers 2 - 7 of 1993 AC CRIDLAND and J F CRIDLAND, B D BEETHAM and SL BEETHAM, B LOUPIS, R L SEYMOUR and CHE SEYMOUR, W P LARDER, GK LANGE and THE COUNCIL OF THE SHIRE OF WHIT SUNDAY and DA'ilEY PROPERTIES PTY LTD ACN 056 854 490 MACKAY .. DATE 0 3 / 0 6 / 9 3 JUDGMENT ! F:f~ Ji::3EDCOFIES S~t;::0 ··-i \ '.::!.i'i ~ Rt :-0.rtirq P v -: ,, ;1 \ I c,:,',•:: 3 ,.l, , q ~-----· ----- ·-----·--.. _ .. _ .. __________ J Appellants Respondent Respondent l:5y election -- 11 of 21 -- 030693 ., M/T MKY167 /93 (Quirk DCJ) HIS HONOUR: These appeals, heard • together for the sake of convenience, are by objectors against the respondent planning authority's approval of a combined application to re-zone and subdivide land at Cannonvale. The application intended thaBO the subject land move from the Residential A Zone to the Park Residential Zone to enable a staged subdivision into 25 larger sized (maximum area 4,000 square metres) allotments. The land is fairly elevated and is located approximately 600'0 metres south of the Proserpine-Shute Harbour Road. It has an area of 12.81 hectares but a frontage of only 10 metres to the dedicated road reserve of Coyne Road. By reason of topography and the existence of a water supply reservoir at its eastern end, Coyne Road is never likely to provide access to theO subject land. Vacant Crown land adjoins the subject land to the north; to the south there is an extensive area of State Forest and privately owned but undeveloped land adjoins to the east. 40 In 1985 an application to re-zone the subjec.t land from Rural A (Pastoral) to Residential A was approved. The re-zoning was based upon a proposal to develop the subject land for conventional residential purposes together with land to the north (Lot 3 on R.P. 749015). Arrangements were madeO between the applicant owner of these two parcels and the Department of Lands for a road linkage from the subject land across the Crown land to Lot 3 and on to the constructed road, • • JUDGMEN';fu -- 12 of 21 -- 030693 M/T MKY167/93 (Quirk DCJ) Border Drive, which lies to the north east. The favourable attitude of the Department to these arrangements was influenced by its intention to develop the Crown land for residential purposes {which would have been aided by the0 existence of the constructed road). The successful applicant· for rezoning has since experienced financial • difficulties and has had to relinquish title to these parcels which now find themselves in different?0 ownership. This, together with a change in Government policy which no longer contemplates, for the present time, development of the adjoining Crown land as previously intended has made the planned development of the area which lay behind the re-zoning of the subject land to Residential A unlikely. 30 The. proposal which is the subject of this appeal relies upon access·to Illawong Street which presently terminates in a cul- de-sac in a Residential A .subdivision to the north east of the subject land. This will be achievetj. by acquisition ofO sufficient of the adjoining Crown land to provide such an access and the necessary arrangements for this appear to be in place. The use of Illawong Street_ as an access way to the subject0 land is a matter which provoked cons~derable objection to this proposal, mainly from the residents of the subdivision in which it is found. Major concerns expressed in the objections JUDGMEN~ 3 -- 13 of 21 -- 030693 M/T MKY167/93 (Quirk DCJ) (and in the evidence of a number of those objectors who became appellants) related to problems of traffic, safety and amenity which would be associated with increased vehicular movement in Illawong Street and through its inters~ction with Manookao Drive. Other matters raised in the course of the appeal included the proposal's conformity with the Strategic Plan and whether the re-zoning was in the public interest. In respect of traffic engineering matters, I had the advantag~0 of evidence from two experienced consulting traffic engineers, Mr Eppell (who was called by the respondent by election). and Mr Holland (who gave evidence for the appellant). I also had the benefit of the • views of the Shire Engineer. There was agreement regarding the likely increase in traffic volume~0 which the proposal would bring about and I was informed by Mr Eppell (and Mr Holland did not appear to dispute it) that both the existing and projected traffic volumes were within the normally accepted limits of physical and environmental capacity for a road of its type. 40 A -matter that was however subject to some discussion was whether the extension of Illawong Drive into the proposed development would conflict with the "Australian Model Code for Residential Development" (AMCORD) and the "Queensland Street~0 Code" (which has been pr.oduced by the Local Government Engineers' Association of Queensland). These publications, particularly AMCORD, were subjected to fairly close scrutiny JUDGl1ENoo 4 -- 14 of 21 -- 030693 M/T MKY167/93 .(Quirk DCJ) in the course of the evidence. It is accepted that they do not have any statutory force but are recognised as "a valuable set of guidelines which assist the designer". 10 It was agreed that Illawong Street was one where the residential environment should dominate and traffic should be subservient but there was disagreement between the traffic engineers as to whether the guidelines called for maximum speeds·of 30 kilometres per. hour or 40 kilometres per hour irt 0 a street with its attributes. The confusion seems to have arisen because of apparent conflict between part of the AMCORD publications styled the "statutory components" and another part referred to as backgrounds". the "explanations and research 30 Mr Holland pointed out that the AMCORD guidelines recognise - that difficulties and frustration arise when drivers are required to maintain relatively low speeds (e.g. 30 kilometres per hour) for periods beyond 60 seconds and that this would b~o the case here . • Mr EppeJ.l felt that if one adopted a 40 kiiometres per hour maximum, little difficulty would arise and pointed to the "Queensland Streets Code" which suggests 60-90 seconds as being a reasonable maximum. AMCORD has evidently drawn upon experiences in southern States while "Queensland Streets Code" allows for differing circumstances which are encountered in this State. If there is advantage in familiarity with local conditions, it would not be easy to set JUDGMENeo -- 15 of 21 -- 030693 M/T MKY167/93 (Qu~rk DCJ) to· side the views of the Shire Engineer who is of the opinion that the impact of the proposal on Illawong Street in traffic terms would not be unacceptable. It should be added that works to improve the amenity in I llawong Street are0 contemplated and these include the provision of a footpath, carriageway alteration, the construction of _ traffic islands and landscaping to accord with the AMCORD guidelines. The·appellants made a point that they place a high value upon the advantages of living in a cul-de-sac and the absence or0 disturbance associated with through traffic. This proposal, they argued, would largely destroy these advantages which they had (reasonably in their view) expected to continue. I do not doubt their sincerity and have no difficulty in understanding the point which they make. I accept that this0 proposal would have effects upon their amenity which they would not welcome. The difficulty which I have is in accepting that their expectations are such as should be afforded protection having regard to the formal instruments of planning control and proper town planning practice. While0 existing topography and the condition of Coyne Road might have encouraged them in their expectations, that the amenity of Illawong Street would remain exactly as it is (or that it would always function as a cul-de-sac) is not something that one could readily read into the Strategic Plan which indicatef that much of the surrounding undeveloped land is designated for urban use in the future. JUDGMEN00 -- 16 of 21 -- 030693 M/T MKY167/93 (Quirk DCJ) A point was made that while the development is being established and dwellings are being constructed, there will be an increase in the number of heavy vehicles using Illawong street. That will occur but it is something' which is0 inevitably encountered in a newly developing residential setting and is not beyond __ that which existing residents should be required to tolerate. I accept the views of the witnesses called by the responden€ 0 by election that although there will undoubtedly be an increase in. traffic volumes in Illawong Street, the resultant effect upon residential amenity will be within limits fairly regarded as acceptable. • 30 Reference is made to a policy adopted by the respondent planning authority some. time ago which refers to desirable cul-de-sac lengths in particular zones. It was adopted before ~ the Park Residentiai Zone became part of the Town ·planning Scheme. When dealing with the application the planning° authority did not refer to the policy and pref~rred to turn to the AMCORD guidelines. In view of the careful attention given in the evidence of the appropriately qualified expert witnesses to matters -that appear .to be relevant, I do not believe that the policy provides a great deal of assistance iB.° the determination of .the appeal. JUDGMEN'so 7 -- 17 of 21 -- 030693 M/T MKY167/93 (Quirk DCJ) The intersection of Illawong Street and Manooka Drive has caused difficulties for the planni_ng authority in the past. It has fairly been described as "a situation which would be avoided in contemporary design of a residential street 0 system". The vertical alignment of Manooka Drive has presented problems in terms of sight distances and the evidence indicates that following an accident involving personal injury to a motor cyclist, traffic signs were introduced to control entry to three legs of the intersection.20 Expert opinion appears to be that provided these controls are observed, the intersection operates safely. The introduction of further traffic into Illawong Street as a result of the proposed development will increase the exposure of drivers to 0 the intersection but as traffic flows through the area seem relatively light, whatever problems the intersection poses will not be, on the evidence, exacerbated to an extent which would warrant the proposal's rejection. 40 Mr Danse, a town planning consultant who gave evidence for the appellant, sought to develop an argument that the proposed re- zoning to Park Residential was in conflict • with the respondent's Strategic Plan. grips with the problem that, In so doing he had to come to when. the Strategic Plan 50 was gazetted ( January 1985), the Park Residential Zone was not part of the town planning scheme (it was introduced by Order in Council on 16 March 1989). He attempted to do this by JUDGMENoo -- 18 of 21 -- 03069.3 M/T MKY167/93 (Quirk DCJ) treating the Park Residential Zone on the basis that it was equivalent to a Rural Residential Area and not one that could be properly regarded as an·urban area. He then went to the Strategic Plan provisions which deal with the Rurai 0 Residential Areas and which indicated that Rural Residential subdivisions would not be permitted within future urban neighbourhoods in which, in part at least, the Strategic Plan has·the subject land. 20 I do not ?ccept that this approach is a valid one. Conflict with the· Strategic Plan is a matter of some consequence ( S. 4 ( SA) of the Local Government {Planning and Environment) Act) and if it is to defeat a proposal it must be apparent on a proper construction of the plan. The Strategic Plan a$0 written simply did not contemplate· a zoning such as is here intended. To seek to demonstrate conflict by contending that the Park Residential Zone must be equated with one of the zonings which were then part of· the Town Planning Scheme in my view, to take the matter too far. is, 40 Leaving the Strategic Plan to one side I find that there is a good deal of merit in the approach adopted by Mr Dalton (the Town Planning Consultant called by the appellant) and Mr Allen {the respondent's Town Planner) who, while concedin~ that future growth will give rise to a need for Residential A land in the future (although there -is sufficient land to meet present demand), were of the opinion that the relevance of the JUDGMENeo -- 19 of 21 -- 030693 M/T MKY167/93 (Quirk DCJ) Residential A Zoning of the subject land has been importantly weakened by the changes in circumstances leading to the unlikelihood of the development (and the road network.) contemplated at the time of that re-zoning. 10 The re-zoning to Park Residential will retain the land in a residential setting although allowing for considerably fewer allotments. It is obvious on the evidence in this appeal that if access is to be had to Illawong Street residential density0 of a lesser degree is preferable. The proposed re-zoning to Park Residential would result in a gradation of residential densities as one moves from the established urban areas to the undeveloped State Forest areJ0 and would, in that sense of the concept of "Balance of zones" appear to be appropriate. A point was made that the· stated intent of the Park Residential Zone provides: 40 "Urban services are to be provided to sites within this zone with the exception of sewerage. Inclusion of land within this zone will only be considered if the physical make up of the soil and lot size are sufficient to dispose of all wastes without polluting any water course or water tabl~ and without having any other adverse residuaf effects." Expert geotechnical evidence in this case indicated that while the subject land and the proposed lot sizes were . generally JUDGMENoo Jo -- 20 of 21 -- 030693 _ M/T MKY167/93 (Quirk DCJ) suitable for satisfactory absorption of septic wastes, there were some areas where, because of highly permeable sands and gravels near water courses, it might be preferable to employ Envirocycle or Biocycle type septic systems which would ensure0 that no pollution problems occur. - It seemed to be argued that the Statement of Intent did not contemplate the disposal of waste other than by conventional septic systems (and not by chemical treatment of th~o Envirocycle or Biocycle type) . The passage relied upon is part of the Statement of Intent and should be interpreted as such. To read it in the way advocated by the appellants is to be distracted by the form and to give insufficient weight to the substance of what is being said. I see no meri€ 0 whatsoever in this approach. On all of the evidence in the appeal I have concluded that the onus of showing. that the application should have been approved has been discharged. The appeal is accordingly dismissed. 40 50 JUDGMENao II -- 21 of 21 --