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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council  QPEC 50
TRASPUNT NO. 7 PTY LTD (ACN 123 780 889)
MORETON BAY REGIONAL COUNCIL
2756 of 2018
Planning and Environment
Planning and Environment Court, Brisbane
21 September 2020
22, 23, 24 and 25 June 2020 and further written submissions received 8 July 2020 and 5 August 2020
The appeal is dismissed.
I direct that the Council file and serve any application for costs, together with all supporting affidavit material, by 4pm on 7 October 2020
PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS – INFRASTRUCTURE CONDITIONS – where the Council imposed a condition requiring dedication of an area of land for road – whether the Local Government Infrastructure Plan (LGIP) identified adequate trunk infrastructure to service the subject premises – whether the proposed dedication was necessary to service the subject premises
Planning Act 2016 (Qld), s 66, s 127, s 128, s 140, s 142, s 145
D O’Brien QC and B Rix for the appellant
Macpherson Kelley for the appellant
- Traspunt No. 7 Pty Ltd (“Traspunt”) wants to develop land located at 18-26 Burbury Road, Morayfield, more particularly described as Lot 4 on RP178818 and Lot 5 on RP178820 (“the subject premises”). The subject premises has a total site area of just over two hectares. Traspunt made a development application to Moreton Bay Regional Council (“the Council”) to facilitate its proposed development of the subject premises. The proposed development involves reconfiguring the existing two lots into 46 lots and an access easement. The development plans advanced by Traspunt also include an area of 1 264 square metres immediately adjacent the road reserve for Clark Road, which is described as “Road Resumption”.
- The development application was code assessable. On 2 July 2018, by way of negotiated decision notice, the Council notified its decision to approve the development application and grant a development permit for reconfiguring a lot (2 into 46 lots and access easement) subject to conditions.
- On 30 July 2018, Traspunt appealed against the Council’s decision to impose condition 6. In its Notice of Appeal, it sought deletion of condition 6.
- Condition 6 of the negotiated decision notice states:
RECONFIGURING A LOT
DPU Dedicate Road Reserve
Transfer to Council the area of land identified on the approved layout plan as “Road Resumption” (1,264m2) as road reserve. The land is to be dedicated at no cost to Council.
This condition is imposed under section 665 of the Sustainable Planning Act 2009.
Prior to lodging a request for Compliance Assessment of subdivision plans.
- It is common ground between the parties that although the proposed development was assessed and decided under the Sustainable Planning Act 2009, the appeal is to be heard and determined under the Planning Act 2016 (Qld) and the Planning and Environment Court Act 2016 (Qld). I agree for reasons provided in Jakel Pty Ltd v Brisbane City Council & Anor.
- Traspunt bears the onus in the appeal. It no longer contends that condition 6 should be deleted. Rather, Traspunt now contends that condition 6 should be amended to delete the statement that it is to be dedicated at no cost to the Council and to record that it is imposed under s 128 of the Planning Act 2016 (Qld). In the event I am not persuaded that the condition should be imposed under s 128, Traspunt concedes that the condition can be lawfully imposed under s 145 of the Planning Act 2016 (Qld), being the equivalent of s 665 of the Sustainable Planning Act 2009 (Qld).
What does the statutory regime stipulate for infrastructure conditions?
- Under s 66 of the Planning Act 2016, a development condition must not require land to be given for infrastructure other than under chapter 4, part 2 or 3. Chapter 4 part 2 relates to conditions imposed by local governments and part 3 relates to State infrastructure providers.
- As I have already mentioned, in the event I am not persuaded that the condition should be imposed under s 128 of the Planning Act 2016, both parties accept that the condition is lawfully imposed under s 145 of the Planning Act 2016. The real issue is whether the condition should instead be imposed under s 128 of the Planning Act 2016.
- Section 128 forms part of chapter 4, part 2, division 3, subdivision 1 of the Planning Act 2016. Section 127 explains the application and operation of the subdivision. It states:
“127 Application and operation of subdivision
- (1)This subdivision applies if—
- (a)trunk infrastructure—
- (i)has not been provided; or
- (ii)has been provided but is not adequate; and
- (b)the trunk infrastructure is or will be located on—
- (i)premises (the subject premises) that are the subject of a development application, whether or not the infrastructure is necessary to service the subject premises; or
- (ii)other premises, but is necessary to service the subject premises.
- (2)Section 128 provides for the local government to be able to impose particular development conditions (each a necessary infrastructure condition) on the development approval.
For imposing or amending development conditions in relation to an approval of a change application, see sections 81A(2)(a) and 82(3)(b).”
- Section 128 of the Planning Act 2016 states:
“128 Necessary infrastructure conditions
- (1)If the LGIP identifies adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring either or both of the following to be provided at a stated time—
- (a)the identified infrastructure;
- (b)different trunk infrastructure delivering the same desired standard of service.
- (2)If the LGIP does not identify adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring development infrastructure necessary to service the premises to be provided at a stated time.
- (3)However, a local government may impose a condition under subsection (2) only if the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development.
- (4)A necessary infrastructure condition is taken to comply with section 65(1) if—
- (a)generally, the infrastructure required is the most efficient and cost-effective solution for servicing other premises in the general area of the subject premises; and
- (b)for a necessary infrastructure condition that requires the provision of the infrastructure located on the subject premises—
- (i)the provision is not an unreasonable imposition on the development; or
- (ii)the provision is not an unreasonable imposition on the use of the subject premises as a consequence of the development.
- (5)To remove any doubt, it is declared that a necessary infrastructure condition may be imposed for infrastructure even if the infrastructure will service premises other than the subject premises.”
What are the issues in dispute?
“Whether the dedication required by condition 6 of the Negotiated Decision Notice of 6 July 2018 satisfies the requirements of s 128(2) and (3) the Planning Act 2016 (PA) for the imposition of a “necessary infrastructure condition” under s 128, namely:
- (a)the LGIP does not identify adequate trunk infrastructure to service the subject premises;
- (b)the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development; and
- (c)the development infrastructure is necessary to service the premises.”
- The parties agree that the dedication required by the condition is a form of “development infrastructure”. It accords with the definition of development infrastructure in Schedule 2 of the Planning Act 2016 as it is “land … for transport infrastructure, including roads”.
- The requirements identified in paragraphs (a) and (c) above appear in s 128(2). The requirement in paragraph (b) above stems from s 128(3).
Are the requirements of s 128(2) of the Planning Act 2016 satisfied?
- The requirement in s 128(2) of the Planning Act 2016 that the LGIP does not identify adequate trunk infrastructure to service the subject premises reflects the precondition to the application of subdivision 1 that is set out in s 127(1)(a)(ii) of the Planning Act 2016. The power to impose a condition for development infrastructure necessary to service the subject premises follows from the identification of inadequate infrastructure.
- Traspunt contends that the LGIP does not identify adequate trunk infrastructure to service the subject premises. The Council contests this.
What trunk infrastructure does the LGIP identify to service the subject premises?
- The LGIP is the local government infrastructure plan. It is defined in Schedule 2 of the Planning Act 2016 as part of a local government’s planning scheme that, relevantly, includes plans for trunk infrastructure. In this case, the applicable LGIP is in part 4 of the Moreton Bay Regional Council Planning Scheme (“the Planning Scheme”).
- Section 4.5 of the Planning Scheme identifies the existing and future trunk infrastructure for the transport network that is intended to service the existing and assumed future urban development at the desired standard of service up to 2031. The identified existing and future trunk infrastructure networks are depicted on maps including, relevantly, Plan for trunk infrastructure – Transport (LGIP-1 – LGIP-76 TN).
- The subject premises is located within the service catchment for the transport network shown on Plan for trunk infrastructure – Transport network LGIP-42 TN. In the vicinity of the subject premises, that plan shows:
- (a)Petersen Road, Oakey Flat Road and Lindsay Road as existing trunk roads with a generally north-south alignment;
- (b)a number of existing trunk roads with an east-west alignment, including Anderson Road and that part of Clark Road between Oakey Flat Road and Lindsay Road;
- (c)a future road upgrade along Oakey Flat Road north of Clark Road;
- (d)a future intersection upgrade at the intersection of Burbury Road and Oakey Flat Road; and
- (e)a future intersection upgrade at the intersection of Anderson Road and Lindsay Road.
- That part of Clark Road that is located to the west of Oakey Flat Road is not identified as forming part of the existing or future trunk transport network.
- The Plan for trunk infrastructure – Active transport network LGIP-42 AT shows:
- (a)Oakey Flat Road, small parts of Petersen Road, Lindsay Road and Anderson Road as existing trunk active transport facility; and
- (b)the length of Clark Road (both east and west of Oakey Flat Road) as part of the “Primary and Secondary Active Transport corridors required beyond 2031”.
- The LGIP does not identify the unconstructed part of Clark Road proximate the subject premises as either existing or future trunk infrastructure.
Is the identified trunk infrastructure adequate to service the subject premises?
- The subject premises has an area of 2.2001 hectares. It adjoins Burbury Road to the south and an unconstructed portion of Clark Road to the north. Clark Road is not required to be constructed as part of the development, but an area of 1 264 square metres adjacent the unconstructed road and marked by Traspunt on its proposed development plans as “Road Resumption” is required to be dedicated at no cost to the Council. No access is proposed to or from Clark Road.
- Traspunt seeks to develop the subject premises as a residential subdivision comprising 46 residential lots varying in size from 208 square metres to 576 square metres, with frontages varying between 7.5 metres and 20 metres.
- Two traffic engineers gave evidence about the adequacy of the existing and planned trunk infrastructure to service the proposed development – Mr Holland and Mr Douglas (who were retained by Traspunt and the Council respectively).
- Mr Douglas explains that external access to the proposed development will be obtained through Lakeview Road to the north and Burbury Road to the south, each of which ultimately connects to Oakey Flat Road. This accords with what is shown on the plans in evidence before me.
- Mr Douglas opines that the localised western extension of Clark Road could have been conditioned to service the proposed development and adjacent land parcels. However, he considers it was unnecessary to do so because the adjacent recent subdivision immediately to the west has extended Lakeview Road to facilitate a northern connection to Oakey Flat Road and a southern connection to Oakey Flat Road via Burbury Road. He also says adequate pathway links have been provided along Lakeview Road to Oakey Flat Road. In his view, the traffic planning benefit of the proposed dedication relates to future development beyond the planning horizon applied in the Council’s LGIP. It preserves the possibility of a sub-arterial road being constructed in the future, beyond the life of the LGIP.
- Mr Douglas also notes that the material that accompanied the development application contains no suggestion that the LGIP does not provide adequate trunk infrastructure to service the locality of which the subject premises is a part, nor is there any indication that the trunk infrastructure provided or planned is not adequate to facilitate the subject development. As such, Mr Douglas infers that Traspunt was, and remains, of the view that the LGIP provides adequate trunk infrastructure to service the locality and the proposed development.
- Mr Douglas was not required for cross-examination. Not only were his opinions unchallenged, they were endorsed by Mr Holland following his consideration of Mr Douglas’ affidavit.
- Mr Holland gave evidence that the proposed development will be connected to road infrastructure networks external to the proposed development by way of local access streets contained within the proposed development, a local collector road contained within the neighbouring development to the west, and, subsequently, a second local collector road, being Burbury Place, to the south of the proposed development. Mr Holland agrees with Mr Douglas that the LGIP identifies adequate trunk infrastructure to service the subject premises without provision of the proposed road widening. He also opines that, without connection to the north via Lakeview Drive, the development could still rely on access via the existing Burbury Road. In Mr Holland’s opinion, there is nothing about the traffic arrangements for the proposed development that requires the land to be provided. He says that the upgrade of Clark Road is not necessary to service the proposed development. Like Mr Douglas, Mr Holland was not required for cross-examination. His opinions were unchallenged.
- Despite the uncontested evidence of Mr Douglas and Mr Holland, Traspunt contends that the LGIP is inadequate in its identification of development infrastructure in the nature of trunk infrastructure. Traspunt relies on six matters to support its position.
- First, it submits that there can be no doubt that the land that the Council requires to be dedicated is in the nature of trunk infrastructure. It notes that Mr Holland opines that the road reserve, if widened with the dedication, is indicative of an intent that Clark Road is ultimately planned to be a four-lane arterial or sub-arterial road. It says those roads are the type of roads referred to in the LGIP and associated extrinsic material as trunk infrastructure. Traspunt submits that Clark Road, if and when it is constructed, will be a trunk road as defined. Whether or not that is the case is not relevant to the condition power in s 128(2) of the Planning Act 2016. That section does not permit the Council to impose a condition to secure the dedication of any possible future trunk infrastructure it may desire to serve its broader network. The development infrastructure must be necessary to service the subject premises. The evidence relied on by Traspunt does not establish this.
- Second, Traspunt submits that, at a practical level, Mr Trask has identified other developments in the same locality where the Council has indicated an intention that Clark Road become a future trunk road. Mr Trask’s affidavit attaches various documents and correspondence to that effect, including conditions of development approvals imposed on other nearby land. Traspunt submits:
“41. … the Council has:
- (b)noted with respect to this very development, in the context of a pre-lodgment meeting, that “provision of road reserve widening is required on the Clark Road frontage to facilitate development of the Clark Road extension and provision of future connectivity for development of the Morayfield South Area” (emphasis added)”
- Traspunt’s quote from the pre-lodgment meeting notes is missing material words. The relevant sentence starts, “Current concept planning (Clark Road Concept interim, Clark Road Concept ultimate) indicates that …”. These missing words convey that there is still a degree of uncertainty about the need for Clark Road to be upgraded in the future. The infrastructure planning for it is at an early stage. In any event, Traspunt did not call the author of the various documents and correspondence and I am not prepared to accept them as truth of their contents. Traspunt also did not adduce evidence about the applicable planning scheme provisions and infrastructure planning in place at the time that the development application was made for the developments the subject of the other approvals on which it seeks to rely. As such, Traspunt has not demonstrated that the imposition of a condition on a different development, assessed against a different planning scheme, under a different legislative regime is of persuasive relevance to determination of the questions of whether the LGIP applicable in this case identifies adequate trunk infrastructure to service the subject premises, and whether the proposed road resumption area is necessary to service the subject premises.
- Even if the statements in the correspondence and the conditions imposed on other developments are a true reflection of the Council’s views about their future intentions for Clark Road, they do not justify the imposition of a condition under s 128(2) of the Planning Act 2016 for the reasons provided in paragraph  above.
- Third, Traspunt submits that the Planning Scheme, apart from the LGIP, clearly identifies Clark Road as a future trunk road. It says that it is clear that the Council, by virtue of its desire to seek the dedication, clearly wishes to secure the ability to deliver the road in the future and in a form that would be a trunk road.
- Traspunt’s submissions on this issue are not persuasive. The Planning Scheme provisions to which it refers do not identify the unconstructed part of Clark Road as trunk infrastructure. It is no more than a possible future trunk road. The Planning Scheme seeks to ensure that development, such as the subject development, in the Emerging Community Zone – Transition Precinct does not prejudice the possibility of future construction of Clark Road as a trunk road, if it is later determined that it is required to address future transport infrastructure needs. The imposition of the condition is consistent with this requirement of the Planning Scheme. That does not demonstrate that the LGIP does not identify adequate infrastructure to service the subject premises or that Clark Road is infrastructure that is necessary to service the subject premises.
- Fourth, Traspunt submits that “adequate trunk infrastructure” means development infrastructure that is required, either now or in the future, to service the premises and other premises. It says the opinions of Mr Douglas and Mr Holland that the LGIP identifies adequate trunk infrastructure involve them impermissibly swearing the issue. Traspunt also submits that, when one considers its construction of “adequate trunk infrastructure”, this reveals that each of Mr Douglas and Mr Holland are actually of the view that the LGIP is inadequate in its identification of development infrastructure in the nature of trunk infrastructure. This was not put to either Mr Douglas or Mr Holland. Even having regard to the evidence of those experts noted by Traspunt, I do not infer that to be their view. In any event, I do not accept the construction for which Traspunt contends. It involves unnecessarily reading words into the provision.
- Fifth, Traspunt submits:
“The true position is that both traffic engineers agree that the dedication is required to facilitate the planned traffic trunk traffic (sic) network and that the LGIP did not identify the land as “trunk infrastructure”. The LGIP did not therefore identify adequate development infrastructure in the nature of trunk infrastructure to service, inter alia, the premises.”
- I do not accept that the evidence of the traffic engineers supports Traspunt’s submission. Their evidence did not elevate the unconstructed part of Clark Road any higher than a road that corresponds to an indicative location of a potential future trunk road identified in the Council’s longer-term planning. The infrastructure identified in the longer-term planning is not foreshadowed as part of the infrastructure required under the LGIP for the period up to 2031. It is not infrastructure that is presently necessary. I am not persuaded that the potential for its use in the longer-term, and the potential for the subject premises to utilise the road as part of a broader network, were it delivered at some stage in the future, demonstrates that the LGIP does not identify adequate trunk infrastructure to service the subject premises, or that the proposed road resumption is necessary to service the land.
- Finally, Traspunt submits:
“The Council cannot fairly say that the dedication does not service the subject premises on the one hand but also maintain that the very same dedication:
- (a)is required to connect “the premises to external infrastructure networks”; and
- (b)is also necessary to protect or maintain “the safety or efficiency of the infrastructure network of which the [dedication] is a component”,
both of which represent a way that the dedication will service (noting that, for the purposes of this issue, the word “necessary” is not included in the legislative provision) the subject premises.”
- This submission misstates the Council’s contention as set out in paragraph 10(b)(ii) of the Respondent’s Statement of Facts, Matters and Contentions. The Council contends that, in the event that the road resumption area the subject of condition 6 ultimately forms part of a constructed Clark Road, it will connect the subject premises to external infrastructure. The Council says the area will also protect or maintain the safety or efficiency of the infrastructure network of which the non-trunk infrastructure the subject of the dedication will be a component. The Council adduced evidence in support of these contentions. The contention was made by the Council in support of its position that condition 6 is lawfully imposed under s 145 of the Planning Act 2016. Ultimately, it is unnecessary for me to determine whether s 145 of the Planning Act 2016 is satisfied as this is the subject of a concession by Traspunt.
- In any event, Traspunt’s submission is not persuasive. There are material differences between the conditions powers in s 128 and s 145 of the Planning Act 2016. As such, it is open for the Council to say that the dedication meets the requirements of s 145 of the Planning Act 2016 and to maintain that it does not meet the requirements of s 128 of the Planning Act 2016.
- I accept the evidence of Mr Douglas and Mr Holland referred to in paragraphs  to  above. Both are experienced traffic engineers. Their affidavits outline the nature of their enquiries, which inform the opinions they express. They are aware of the number, size and configuration of the proposed lots. They inspected the locality and know the state of the road network. They outlined their understanding of the contents of the LGIP, which accords with my construction of the document. Their evidence about the transport connections to the external road network accords with what is shown on the proposed plans. Given the modest size of the development in question, and the respective qualifications and extensive experience in the field of traffic engineering of each of Mr Douglas and Mr Holland, I am satisfied that each is sufficiently experienced and informed to express a reliable opinion about whether the LGIP identified adequate trunk infrastructure to service the subject premises.
- For the reasons provided above, I am satisfied that the LGIP identifies adequate trunk infrastructure to service the subject premises.
Is the dedication necessary to service the subject premises?
- Mr Holland gave evidence that the area to be dedicated as road reserve does not connect the proposed development to Clark Road and, accordingly, does not connect the proposed development to the external road infrastructure networks. He says that the proposed development will be connected to Clark Road by way of the local access road located immediately to the west of the proposed development.
- As I have already noted, for most of the proposed lots, the access arrangements proposed by Traspunt involve access via new road extensions that are to be constructed as part of the development. Those road extensions are to link into the proposed extension of Lakeview Road within the adjoining development to the west, which will connect to Burbury Road and then to Oakey Flat Road. Seven of the proposed lots will have direct access to Burbury Road.
- For those reasons, I am satisfied that the dedication required by condition 6 is not necessary to service the subject premises. The LGIP identifies adequate trunk infrastructure in that regard.
Conclusion about whether the requirements of s 128(2) of the Planning Act 2016 are satisfied
- For the reasons provided above, I am not satisfied that the requirements of s 128(2) of the Planning Act 2016 are satisfied. As such, the amendments to condition 6 sought by Traspunt are not appropriate.
- I also have reservations about whether the Court should, in the exercise of its discretion under s 47 of the Planning and Environment Court Act 2016, substitute a condition under s 128 of the Planning Act 2016 in place of a lawful condition imposed by the local government under s 145 of the Planning Act 2016 in circumstances where the legislation contemplates that such a decision would first be made by the local government. Relevantly, Chapter 4, part 2, division 4, subdivision 1 of the Planning Act 2016 provides a process where a conversion application may be made to the local government. Such an application is to convert non-trunk infrastructure required pursuant to a condition under s 145 of the Planning Act 2016 to trunk infrastructure. Section 140 of the Planning Act 2016 stipulates the criteria for deciding the conversion application. Section 142 of the Planning Act 2016 details the effect of the conversion and the action to be taken after the conversion. There is also a right of appeal against a refusal or deemed refusal of a conversion application under s 229 and Schedule 1, Item 1 and Table 1 Item 5.
- Here, Traspunt has not made a conversion application, nor placed the relevant criteria with respect to a conversion application before me. However, given Traspunt has not demonstrated satisfaction of the requirements of s 128(2) of the Planning Act 2016, it is unnecessary for me to consider whether these matters would ultimately tell against the grant of the relief in this case.
Will the development infrastructure service development consistent with the assumptions in the LGIP?
- As Traspunt has not demonstrated that the requirements of s 128(2) of the Planning Act 2016 are satisfied, it is unnecessary to address whether the development infrastructure the subject of condition 6 services development consistent with the assumptions in the LGIP as required by s 128(3) of the Planning Act 2016.
- Traspunt has not discharged the onus. The appeal should be dismissed.
- The Council has indicated that it wishes to make written submissions about costs. I direct that the Council file and serve any application for costs, together with all supporting affidavit material, by 4pm on 7 October 2020. In the event that an application is made in accordance with that direction, the matter will be mentioned for review at 9am on 14 October 2020.
 QPEC 21;  QPELR 763.
See s 45 of the Planning and Environment Court Act 2016.
Traspunt’s change of position was made apparent to the Court in its Outline of Argument of the Appellant filed by leave with the Court on 26 November 2019 (Exhibit 17), particularly in paragraphs 19 to 25. The full effect of those submissions, which spoke of a “binary outcome” are best appreciated by reference to the definitions of “trunk infrastructure” and “non-trunk infrastructure” under s 6 and Schedule 2 of the Planning Act 2016. In reliance on those submissions, the Court made an order (Exhibit 18), under s 72(2) of the Planning Act 2016, permitting the development to start before the appeal was decided. A concession that the condition was lawful under s 145 of the Planning Act 2016 was necessary to secure the order. On day 2 of this hearing, Mr O’Brien QC, Counsel for Traspunt, acknowledged the effect of Traspunt’s concession.
Section 145 appears in chapter 4 part 2 of the Planning Act 2016.
Following exchanges in Court on Tuesday 23 June 2020 with respect to these matters (see transcript T2-3/16 to T2-4/45; T2-8/37-46) and in the light of paragraph 1 of the Court order of 26 November 2019.
See exhibit 14A.
The parties agree that the applicable version is version 3, which commenced on 3 July 2017.
See s 4.1 3. d. ii. and s 4.5 1. of the Planning Scheme.
- Published Case Name:
Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council
- Shortened Case Name:
Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council
 QPEC 50
21 Sep 2020