Dorfler v Pine Rivers Shire Council [1992] QPEC 55

r~ t: q~, os~ State Reporting Bureau ·------------------------------------- _,, _________...,..,______________.......,_____________ .., TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is Yested 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 ROW P & E Appeal No 133 of 1991 WALTER DIETER DORFLER and PINE RIVERS SHIRE COUNCIL BRISBANE )) .. DATE 11/09/92 .. JUDGMENT 1 * en~, ¼P a , R&U-i &S m1.... t&&PiC&S+PWAiHH£ Appellant Respondent M!S WA e &mt@ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 12 -- 110992 HIS HONOUR: The appeal is allowed. The application is subject to conditions set out in the land division permit, except for conditions 1, 7 and 9. I publish my reasons. I make no order as to costs. 2 JUDGMENT 10 20 30 40 ( 50 60 -- 2 of 12 -- I, IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 133 of 1991 BETWEEN: WALTER DIETER DORFLER Appellant AND: PINE RIVERS SHIRE COUNCIL Respondent ~.- ) 7th, 8th September 1992 ) REASONS FOR JUDGMENT - ROW D.C.J. Delivered the 11th day of September, 1992 The appellant appeals herein consequent upon a decision of the respondent whereby it approved an application made on behalf of the appellant for the subdivision of land situated at Whiteside Road, Samsonvale and described as Lot 4 on R.P. 31353, County of Stanley, Parish of Samsonvale subject to conditions. 1 The subject land has an area of 63.13 hectares with a frontage ✓ of approximately 1 .5 kilometres to Whiteside Road. The appellant proposes to subdivide the subject land into three lots. Two new proposed lots will each have an area of 18 hectares whilst the balance of the subject land including the existing residence will have an area of approximately 27 hectares. The application was approved, subject to conditions, by the respondent on 29th July 1991. A Land Subdivision Permit in relation thereto was issued on 30th July 1991. follows:- The Land Subdivision Fermi t included as -- 3 of 12 -- ) 2 "Applicable standard conditions: The standard conditions of Subdivision Part A and Part B are set out in Part 3 of Council Subdivision Control By-law No. 22. Special conditions: 1. Council's classifications of the existing and proposed roads are shown in the Table herein. The Table also shows the road standard to be used for design and construction purposes. By-law No. 22, Council's Standard Street Classifications and Standard Drawings and Council's Design Manual shall be used for these purposes ... 7. In relation to Special Condition 1, the roadworks and drainage works in Whiteside Road shall be constructed for the full frontage of proposed Lots 1 and 2 and for part of the frontage of Lot 3 from the common boundary of Lots 3 and 2 to the access to the existing house on the land .... 9. The layout shown on Plan No. 10098 is not approved. The layout shall be amended to provide for two allotments of area not greater than 16.9 hectares and a third allotment being the balance area. 11 The Table following Special Condition 1 shows that the construction of Whiteside Road is to be in accordance with Standard Drawing No. 8.0088. Standard Drawing 8.0088 is set out in Volume 1 Design Manual (Exhibit 7). In the amended Notice of Appeal filed on 5th June 1992, the appellant sought the deletion of Special Conditions No. 1, 7 and 9. The issues in the appeal were determined as those matters set out in the amended Notice of Appeal. On the appeal coming on for hearing Counsel for the respondent advised that Special Condition 9 was no longer the subject of dispute between the parties and that the respondent would not be advancing any evidence in relation to the said condition. The subject land is included within the Rural Zone under the relevant Planning Scheme. The intent of the Rural Zone is to designate areas of the Shire which are to be retained for rural -- 4 of 12 -- 3 activities or which are physically unsuitable for closer residential settlement. Under the Strategic Plan, the subject land falls mainly within a preferred dominant land use area designated as Rural Areas. The Rural Areas Designation comprises existing agricultural, dairying and horticultural land, and the balance of the Shire not suitable for other preferred dominant land use. The whole of the subject land also falls under the Strategic Plan within an area designated Water Supply Catchment ) Areas, which areas depict the catchment boundaries for Lake Samsonvale and Lake Kurwongbah. The subject land is also within the area of Development Control Plan No. 5 - Lake Samsonvale. The south-western part, is therein designated Rural Residential and the balance Rural. The subject land is presently used for the grazing of cattle and a stud farm is being conducted thereon. The subject land is accessed from Mt. Samson Road by Postman's Track and Whiteside Road. Mt. Samson Road links Samford and Dayboro and is a declared road under the control of the Department of Transport. It is developed to a fairly high standard with a two lane bitumen sealed carriageway. Between Mt. Samson Road and Whiteside Road, Postman's Track has a bitumen sealed carriageway approximately 8 metres wide. It carries a relatively low volume of traffic. Between Postman's Track and the entrance to the existing dwelling on the subject land, namely a distance of 3.3 kilometres, Whiteside Road has a fairly good standard gravel surf ace carriageway ranging in width between approximately 5 and 6 metres except for a section of approximately 120 metres which is bitumen in front of an existing dwelling house located approximately 1 kilometre to the west of -- 5 of 12 -- 4 the subject land. Traffic volumes are extremely low comprising only that generated by the existing house and the fairly negligible activity on the land to the north and east which is under the control of the relevant Water Board. East of the entrance to the existing house on the subject land, the quality of the road formation deteriorates significantly. Land to the north and east is under the control of the Brisbane and Area Water Board, and is reasonably heavily } timbered. An area of adjoining land to the north is developed as a pineapple farm. Apart from the existing dwelling house on the subject land, there is only one other house in Whiteside Road. It is located approximately 1 kilometre to the west of the subject land. That house is on a lot having an area of 4 hectares. The subject land has been developed as pasture and there are only a few trees mainly along the water course and around the existing dwelling. Whiteside Road runs along a ridge. The subject land falls away from this ridge towards lower sections to the water course and rises towards its southern boundary. The proposal complies with the Planning Scheme, Strategic Plan, Development Control Plan No. 5 and is in accordance with By-law 22 of the By-laws of the respondent (Subdivision Control By-law). The minimum area of allotments in the Rural Zone is 16 hectares and the minimum frontage is 100 metres. The frontage of proposed Lot 1 is 303.017 metres and proposed Lot 2, 358.574 metres leaving the balance of the subject land, namely Lot 3 with a frontage of 950.021 metres. dimensions are prescribed. No minimum depth or rectangle Planning and/or subdivisional -- 6 of 12 -- ) 5 controls of the respondent provide for no maximum area for lots in the Rural Zone. Part 3 of By-law 22 (Subdivision Control By-law) of the respondent - Subdivision Standards - Division 1 - Subdivision Table, provides that subject to the provision to this Part, land shall not be subdivided in the zone specified in Column 1 of the Subdivision Table unless:- " ( d) The subdivision shall satisfy those Standard Conditions Part B contained in Division 3 of this Part nominated in respect of each zone in Column 5 of the Subdivision Table." The Subdivision Table provides that in relation to the Rural Zone, the standard conditions, Part B, are 1 6, 18 and 19. Di vision 3 Standard Conditions Part B Section 1 6 provides as follows:- "(16) Roadworks shall be constructed in accordance with the following:- Existing road For the full frontage of land subject of the application. Standard In accordance with the Council's Design Manual including sealing with a hot sprayed bitumen seal consisting of a prime and two sealed coats." The Design Manual Volume 1 Roads and Drainage (Exhibit 7) was adopted by the respondent as to Part 1 on 15th December 1980 and as to Part III on 5th May 1981. Part 1 provides design standard for roadworks. Under s.1 .1 .1 any part of these standards may be varied by the Shire Engineer in special circumstances. Under s.1.2.2 it is not intended that adoption of this standard should inhibit the submission by Consultants of alternative designs based on professional experience and good -- 7 of 12 -- 6 engineering practice in such situations, and such alternative solutions will be considered by Council on their merits. Under s.1.3.1 the adoption of this standard does not imply limitation in any way of Council's rights to impose differing conditions when approving subdivision proposals, nor limitation of the Shire Engineer's discretion to vary as he considers necessary the engineering requirements in respect .of a particular subdivision, or project, having regard to good engineering practice. Under s.21.12 roads and rural zones may be surfaced with a two coat sprayed bitumen seal or A.C. surfacing where required by By-law 22. The standard roads cross-sections as set out in Drawing 8.0088 indicate particular criteria which are applied to rural roads having regard to the various classifications and traffic volumes therein mentioned. The drawing is to be read in conjunction with the Design Manual. It was submitted by Counsel on behalf of the respondent that, as a matter of a law, Standard Condition 16 was prescribed by by-law and was therefore a lawful condition and that such a condition was mandatory in the circumstances and could not be challenged by the appellant. The application was lodged with the respondent on or about 16th November 1990. The decision of Council thereon was made on 17th July 1991. In those circumstances pursuant to the provision of s.8.10(9)(a) of the Planning and Environment Act, the application and the appeal is to be heard on the basis as if the Planning and Environment Act had not commenced. The obligation on the Court is to hear and determine the application on the basis of the relevant provisions of the Local Government Act. - -- 8 of 12 -- 7 Section 33(16C) of the Local Government Act provides that it shall be unlawful for a Local Authority in the case of an application to subdivide land to subject the approval of that application to the condition that is not prescribed by the scheme or by by-law or reasonably required by the subdivision of the land. Reference was made to the decision of the Court in Gatehouse v. Brisbane City Council (1984) Q.P.L.R. 90. rt was submitted by Counsel on behalf of the respondent that Standard ) Condition 16 was prescribed by By-law 22 and, in those circumstances, was not unlawful. rt was submitted that in the circumstances then, the Court could not impinge the provisions of Special Conditions 1 and 7 which relate thereto, and that as a matter of law, the appeal could not succeed in relation to Special Conditions 1 and 7 and Standard Condition 16. Section 16 of the Standard Conditions in itself does not apply a condition as the standard is "in accordance with Council's Design Manual". The Design Manual is not part of the by-law or the Planning Scheme. The Design Manual in itself gives discretion to the Shire Engineer and also acknowledges the validity of conditions based on sound engineering practices. Standard Condition 16 prescribes that for existing roads, the roadworks are to be in accordance with Council's Design Manual. There is nothing in the Design Manual which sets out any basis for upgrading existing rural roads relative to traffic flow volumes. The test to be applied herein relates to whether the proposed conditions are reasonably required by the subdivision of the subject land. Standard Condition 16 is not prescribed by the by-law or scheme. It is prescribed by the Design Manual in -- 9 of 12 -- ) ) 8 relation to the operation of a proposed condition. There is nothing in the Design Manual that Drawing 8.0088 is to be applied to an existing road that is to be upgraded. I find that Standard Condition 16 is not a mandatory requirement prescribed by a by- law in relation .to the subject application. The proposed rezoning will not create any significant change to the character of the area. Most of the surrounding land is timbered. In general, uses are for rural purposes. The area will remain as a rural area within the existing rural zone. Existing traffic flows are extremely light and the provision of an additional two lots would not warrant the sealing of Whiteside Road in these circumstances. The evidence of Mr. Brameld, a Consultant Traffic Engineer, which I accept, is most persuasive. The issue of amenity was considered by Mr. Challoner, an experienced Town Planning Consultant. I accept his evidence that the likelihood of dust problems is not of such significance as would warrant that Whiteside Road be sealed. The size of the proposed lot creates a potential whereby if a detached house was to be erected on each of the lots, it could be sited at a substantial distance from the road frontage. Permitted uses within the Rural Zone include a number of rural purposes and detached house. The permissible purposes therein are any purposes other than those referred to in Column 3A, 3B or 5 of the Table of Zones. The projected traffic volumes, as indicated in the evidence of Mr. Brameld and Mr. Challoner, would not be such as to raise significant dust problems. The proposed subdivision of the subject land with the provision of two additional lots will not adversely affect the amenity of the -- 10 of 12 -- ) 9 locality. The amenity will remain one of a significant rural nature. The projected additional traffic volumes will be of little significance in such a rural locality. The complaints of dust in relation to the residence which is situated west of the subject land are to be understood, having regard to the fact that that residence is located close to the road frontage and that traffic using Whiteside Road to the east, including the subject land, would pass that residence. As the subject land is located within a rural zone and the locality has a rural amenity, the existence of dust is not as significant as if in a residential locality. The creation of two additional lots, I am satisfied, will not, to any significant effect, adversely affect the amenity of the locality with the creation of additional dust that may be generated by development of these two lots. In accepting the evidence of Mr. Challoner, I am satisfied that there is no town planning basis whereby the bitumen sealing of Whiteside Road is reasonably required by the application. I am further satisfied accepting the evidence of Mr. Brameld that ) there is no traffic engineering basis on which, having regard to projected traffic flows, there is a warrant for sealing Whiteside Road or any part thereof or for any other upgrading of the carriageway. On all the evidence, I am satisfied that the appellant has established that Conditions 1 and 7 of the Special Conditions are not reasonably required by the application and should be deleted from the Land Subdivision Permit. If it be that the respondent is concerned in relation to Standard Condition 16, the evidence -- 11 of 12 -- ) 10 establishes that the particulars of that Condition are expressed in terms which I am satisfied are reflected in Special Conditions 1 and 7. In itself, Standard Condition 16 is meaningless. There is nothing in the Design Manual which relates to the upgrading of existing roads in a Rural Zone where traffic volumes are as herein projected. Whilst Condition 16 was not specifically set out in the Notice of Appeal, it was clear on the basis on which the appeal was conducted that Special Conditions 1 and 7 were treated as particulars of Standard Condition 16. Condition 9 of the Subdivision Permit should deleted. The appellant has discharged the onus. also be The appeal is allowed. The application is approved subject to the conditions set out in the said Land Subdivision Permit with the deletion of Special Conditions 1, 7 and 9. -- 12 of 12 --