Bingemann v Caloundra City Council [1992] QPEC 5

IN THE PLANNING AND ENVIRONMENT COURT HELD AT MAROOCHYDORE 10-11 February, 1992 BETWEEN: P. & E. Appeal No. 206 of 1991 P. & E. Appeal No. 207 of 1991 (Brisbane Registry) WILLIAM BELTON BINGEMANN Appellant CALOUNDRA CITY COUNCIL Respondent REASONS FOR JUDGMENT - ROW D.C.J. - 11th February, 1992 These appeals which were ordered to be heard together arise consequent upon the failure of the respondent to decide within the time prescribed by law applications for the subdivision of land being part of Lot 100 on R. P. 802005 Parish of Bribie, situated at Pine Camp Road, Glasshouse Mountains. The applications relate to what is described as Stage 4 and Stage 5 of Beerwah Heights Estate. The applications propose the creation ) of 53 Lots. ) The subject land was originally zoned Rural under the relevant Town Planning Scheme. Pursuant to a Deed dated 17 March, 1989, the land was rezoned to Residential A. Stage 1 of the subdivision of the subject land was approved on 27 June 1989; Stage 2 on 12 July 1989, and Stage 3 on 18 September, 1990. The Rezoning Deed under Clause 2 thereof recognised the obligation and requirement on the appellant to apply to the Local Authority for subdivision of any part of the land, and that if such approval was granted, the applicant was required to comply with the requirements of the Local Government Act and with conditions of approval of subdivision. It was further prescribed -- 1 of 10 -- ) j ) 2 within Clause 2(C) of the Deed that within the time set forth in the Third Schedule thereto the applicant shall carry out and do or cause to be carried out and done the matters and things set out in the Third Schedule. So far as is relevant here, the Third Schedule provided that, prior to the sealing by the respondent of any plan of subdivision of the land, the applicant shall carry out the following works: "2. Provision of reticulated (sewerage) to each proposed lot with connection to council (sewerage) system if available and if a (sewerage) system is not available, provision is to be made for holding tanks with capacities to receive 2 kl per lot, located to the satisfaction of the Engineer." The approvals for subdivision in relation to Stages 1, 2 and 3 provided, as a condition of each approval, the provision of sewerage reticulation to serve each allotment created including a holding tank of such capacity and design to satisfy the requirements of Council. Stages 1, 2 and 3 have been completed and a significant number of lots have been sold. Reticulated sewerage has been provided with the raw sewage being connected to holding tanks situated on that part of the subject land which has been dedicated for park purposes. The raw sewage is collected by the respondent's sewerage contractor and is taken to the sewerage treatment plant at Caloundra for treatment. Subsequent to the institution of the appeal, the appellant and the respondent have engaged in correspondence in relation to the matters the subject of dispute as indicated in the notices of appeal. As a result thereof the substantive issue before the Court relates to whether or not reticulated sewerage should be -- 2 of 10 -- ) ) 3 provided or whether each of the proposed lots in stage 4 and Stage 5 should be serviced by an on-site septic system. By letter dated 6 December, 1991 (Exhibit 16) the solicitors for the respondent advised the solicitors for the appellant as follows: "We hereby advise the Council's reasons for refusal of the applications which are the subject of these appeals:- 1. Disposal of sewage in the manner proposed by the applicant, namely, by reticulation to central holding tanks, imposes an unacceptably high cost upon the local authority and/or residents of the estate. 2. A public utility service, namely sewerage, should be made available to the proposed allotments, but is not available." Other proposed conditions under which the respondent was prepared to approve the applications for Stage 4 and Stage 5 were notified by letter dated 10 January, 1992 from the solicitors for the respondent to the solicitors for the appellant (Exhibit 17). The sole issue which the respondent proposed to raise was confirmed by the said letter as Issue 1, as identified in the solicitor's letter dated 6 December, 1991. Of those proposed conditions, Condition No. 1 clearly on the evidence ought to be deleted. That condition relates to the provision of land for park purposes in relation to the area being subdivided. A park contribution in relation to the whole of the land was given in respect of the subdivision of Stage 1. There is no valid reason why further land should be available for park purposes in respect of proposed Stages 4 and 5. On 11 July, 1989, consultant surveyors on behalf of the appellant in respect of the subdivision application for stage 1 advised the respondent that the appellant was prepared to transfer 10% of the whole of the land to Council as a total park contribution for the Estate. By -- 3 of 10 -- 4 letter dated 8 August, 1989 the respondent advised that it was prepared to accept the surrender of the park area during Stage 1 subject to certain matters as therein stated. The other conditions, as proposed therein in Exhibit 1 7, are not in dispute. By letter dated 17 January, 1992 the solicitors for the appellant advise the solicitor for the respondent that, in lieu of the proposal of the respondent in relation to sewage, the following condition was being contended for by the appellants: "(11) Provision of reticulated sewage to each proposed lot with provision to be made for holding tanks with capacities to receive 2 kilolitres per lot located adjacent to the existing holding tanks. Design of the sewage reticulation and/or holding tank to be carried out in accordance with the Department of Housing Local Government guidelines for sewage schemes." The subject land is zoned Residential A, under the relevant Town Planning Scheme. It is described as generally suitable for low density residential development. The Rezoning Deed, whilst ') recognising the obligation of the appellant to apply for subdivision in respect of the land or any part thereof, and the necessity of the appellant to comply with conditions of approval of subdivision as granted further provided in sub-clause 2(c) thereof for the appellant to carry out certain work as set out in the Third Schedule. It is of significance that the approval of the respondent to the rezoning was a matter over which the respondent sought advice and in fact deferred its original decision for a period of approximately four months after the matter first came before the respondent. It was clearly a matter which had exercised the mind of the Council and its officers in -- 4 of 10 -- 5 relation to what was regarded as a proper and adequate form of sewage disposal. (Exhibits 36, 37 and 38). On the Strategic Plan, the subject land is within the urban designation being the Preferred Dominant Future Land Use. The fact that the land is zoned Residential A under the relevant Town Planning Scheme is indicative of certain public and community facilities which the Local Authority at the time of rezoning saw fit and proper to impose. One of those included the provision of reticulated sewerage to the land. The actions of the Council at the time of rezoning are clearly indicative that the respondent then saw the provision of sewerage to the proposed development of the subject land as a reasonable and proper exercise of its statutory powers, and a facility which, in its opinion, was reasonably required by the application. The fact that the respondent has on three occasions approved earlier subdivisions as part of the subject land with a provision for reticulated sewerage is of further significance. Those actions are consistent with the provisions of the Rezoning Deed. The subject application for Stage 4 was reported on by the relevant officer of the respondent. In the report, Exhibit 10, it is stated that "the proposal covers Stage 4 of Beerwah Heights Estate. In accordance with previous approvals, the allotments will be sewered by connection to holding tanks. The decision to sewer the estate was based on future connection to the railway town's reticulation system, with the holding tanks being considered a temporary situation." The report deals with the costs involved in pumping out daily the tanks and that the cost is not covered by rates -- 5 of 10 -- 6 collection. It was recommended that if Stage 4 is to be approved, certain conditions apply, one of which included the following: " ( 8) Provision of sewerage reticulation to serve each allotment created." One notes, in passing, that the subject land is not included within a declared sewered area, but nevertheless sewerage rates are charged in relation to the developed and vacant lots within the estate. There was no policy of the respondent or any other resolution of the respondent at the time of the Rezoning Deed for the approval of the application for rezoning, which indicated a decision of the Local Authority to provide a reticulated sewerage system to the railway towns, Beerwah being one of the railway towns. At the present time, there is no resolution of the respondent in respect to the non-provision of the railway towns or any of them with a reticulated sewerage system. The matter of a partial reticulated sewerage system has been and is presently under discussion. been reached. No decision of the respondent has The evidence of Mr. Bingemann is indicative that there is an attraction to prospective purchasers of developed lots where the land is sewered. The balance of the estate, namely 1, 2 and 3, have been marketed and sold on that basis. Whilst the final end cost to a prospective purchaser of a constructed dwelling on the lots may be of a similar figure, in my view, that is not of significance. The significance is that the land is zoned Residential A in an area where reticulated sewerage is presently available to Stages 1, 2 and 3. It would be a reasonable -- 6 of 10 -- 7 expectation in relation to prospective purchasers that the balance of the estate would be so developed. Such an expectation would accord with the Rezoning Deed whereunder obligations are cast both on the appellant and on the respondent. There is no dispute there is ample area within Lot 101, namely the park, for the purposes of the construction of additional holding tanks. Such holding tanks can be gravity fed and provide a system whereby sewage can be collected and held for the purposes of disposal by the contractor employed by the respondent. There is no evidence other than of a financial nature that the present system is in any way unsatisfactory. The evidence of Mr. Mccaw, an Alderman of the respondent, is indicative that the respondent, prior to the execution of the Rezoning Deed, and at the time of the approvals of Stage 1, 2 and 3 did not apparently make sufficient investigation as to the costs associated with the collection of the raw sewage from the holding tanks. Mr. McCaw, in his statement (Exhibit 27), is described as Deputy Mayor. I find the evidence of Mr. Mccaw of little assistance in that it appears to reflect his personal views. I also express considerable disquietness with his evidence having regard to the manner in which, it is alleged by him, the respondent operates. As I had understood, town planning and associated matters are not "a numbers game", but matters of much more community based responsibility. Mr. Gill, the water and Sewerage Engineer of the respondent, recognised that the holding tanks were of a temporary or interim -- 7 of 10 -- ) 8 nature. He conceded that there was no limitation in time within which these temporary structures were to operate. The respondent obtained a report from Soils Surveys and Explorations Pty. Ltd. which indicates that the soil profile on Stages 4 and s is suitable for the provis1on of an on-site sewage disposal system. Mr. Gill was in favour of the on-site sewage disposal system, having regard to the financial dis-benefits that would arise in relation to the provision of holding tanks for Stages 4 and 5. The test to be adopted by the Court in relation to each application for the subdivision of Stages 4 and 5 is whether the application should be approved and, if approved, on conditions which are reasonable and relevant, or to put in other words, conditions which are reasonably required by each application. The reasonableness, or reasonable requirement of the condition in relation to the disposal of sewage is the matter on which the Court is asked to decide. The fact that the land is zoned Residential A and that the earlier stages of the subdivision have been approved with reticulated sewerage which is consistent with ) the Rezoning Deed are of significance. The fact that the proposed method of disposal of sewage may involve the respondent in a significant financial disadvantage is a relevant consideration but, in my opinion, is not as important as the general community benefit in relation to the provision of reticulated sewerage to a Residential A development. The Rezoning Deed ought to be given significant weight as it was the basis on which the appellant made applications for the subdivision of the land and on which the respondent approved -- 8 of 10 -- ) 9 Stages 1, 2 and 3. The Rezoning Deed has to be read as a whole. ·clause 2(b) thereof sets out the legal situation as it applies to an application by the appellant for the subdivision of the land, or any part thereof . The whole tenor of the Deed, including Sub-clause 2(c) and the Third Schedule is indicative of the then intent of the respondent that retiGulated sewerage be provided to each proposed Lot. If it be a fact that at that date the respondent was considering the provision of a sewerage system to the railway towns, the Deed covers the situation if a sewerage system was not available and spells out what provision was to be made by the _/ appellant for the disposal of sewage. No decision has been made ) by the respondent in relation to the provision of a sewerage system for the railway towns or any of them. The provision of a temporary system cannot, in my view, prejudice that decision. If disposal of sewage is to be by a land system, there may be some prejudice that could be caused in relation to the final decision that may be made by the respondent with respect to the provision of a sewerage system for the railway towns. ) In assessing the reasonableness of conditions which are to be imposed in regard to the present decision of the respondent not to oppose the applications for subdivision but to limit the argument before the Court in relation to conditions, it is necessary to look at all those surrounding circumstances I have mentioned. The question is whether in the circumstances, the provision of a reticulated sewerage system in relation to Stages 4 and 5 is reasonable, relevant and/ or reasonably required by the said applications. -- 9 of 10 -- '-, J 1 0 A consideration of all the relevant circumstances as set out above strongly favours the imposition of a condition that reticulated service be provided for Stages 4 and 5 for the reasons herein before set out. Each appeal is allowed. Each application for subdivision is approved subject to conditions 2 to 10 as set out in Exhibit 17 and Condition 11 as set out in Exhibit 18. -- 10 of 10 --