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- Harburg Nominees Pty Ltd v Brisbane City Council[2016] QPEC 56
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Harburg Nominees Pty Ltd v Brisbane City Council[2016] QPEC 56
Harburg Nominees Pty Ltd v Brisbane City Council[2016] QPEC 56
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Harburg Nominees Pty Ltd v Brisbane City Council & Anor [2016] QPEC 56 |
PARTIES: | HARBURG NOMINEES PTY LTD ACN 103 245 923 AS TRUSTEE FOR TW SUPERANNUATION FUND (Appellant) v BRISBANE CITY COUNCIL (Respondent) AND CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009 (Co-Respondent) |
FILE NO/S: | No 4191 of 2015 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court of Queensland |
DELIVERED ON: | 15 November 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 June 2016 |
JUDGE: | Searles DCJ |
ORDER: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – CONDITIONS – RELEVANCE AND REASONABLENESS – GENERALLY – where Appellant made a development application for a development permit for a material change of use for medium impact industry – where development application approved subject to conditions – where conditions required road works on a state controlled road to be completed – whether the conditions imposed satisfy section 345 of the Sustainable Planning Act 2009 (Qld). Sustainable Planning Act 2009 (Qld) s 287, s 367, s 334, s 345, s 493 Exchequer Property Finance v Fraser Coast Regional Council [2016] QPELR 160 Harris v Scenic Rim Regional Council [2014] QPEC 16 Mackay Resource Development v Mackay Regional Council & Ors [2015] QPELR 874 Neilson v Gold Coast City Council & Anor [2005] 482 Proctor v Brisbane City Council (1993) 81 LGERA 398; [1994] QPLR 309 |
COUNSEL: | Hinson QC, MD for the Appellant Brien, JS for the Co-Respondent |
SOLICITORS: | Connor O'Meara Solicitors for the Appellant Ashurst Lawyers for the Co-Respondent |
Appeal
- [1]By Notice of Appeal[1] filed 24 March 2016 (‘Notice of Appeal’), the Appellant appeals the decision of the Respondent approving, subject to conditions, a development application for a development permit for a material change of use for medium impact industry (‘Development Application’) in respect of land situated at 132 Postle Street, Acacia Ridge described as Lot 2 on RP118593 and Lots 1 and 2 on SP249492 (‘Subject Land’). The Appellant seeks approval of the Development Application subject to an amended conditions package. The Respondent did not take part in the appeal.
Development Application and Concurrence Agency Response
- [2]On 6 March 2015, the Appellant lodged the Development Application (‘DA’) with the Respondent. It was subject to code assessment pursuant to the Sustainable Planning Act 2009 (Qld) (‘SPA’) and sought a material change of use, namely that of a truck depot on the Subject Land.
- [3]On or about 15 June 2015 a change to the Development Application was lodged and provided to the Co-Respondent as a Concurrence Agency on 16 June 2016. (‘First Development Application Change’). That First Development Application Change sought to extend the warehouse component of the proposed truck depot by approximately 2,626m2. Other less significant changes included reconfiguration of the loading docks and a reduction in the number of car parking spaces. The town planning report[2] commissioned by the Appellant considered the changes to comply with the minor change and permissible change criteria in section 367 of SPA and Statutory Guideline 06/09.
- [4]On or about 11 August 2015, the Appellant sent further changes to the Co-Respondent (‘Second Development Application Change’) and requested the latter to amend its concurrence agency response. On 31 August 2015, the Co-Respondent issued an amended concurrence agency response pursuant to section 287 of SPA which included conditions to be imposed (‘Amended Concurrence Agency Response’).[3] On 15 October 2015, the Respondent issued a decision notice pursuant to section 334 of SPA (‘Decision Notice’), notifying the Appellant of approval of the DA subject to conditions.
- [5]The Decision Notice included the Co-Respondent’s Amended Concurrence Agency response dated 31 August 2015, condition 52 of which stated;
‘Department of State Development, Infrastructure and Planning as a relevant entity has applied Concurrence Agency conditions within the letter dated 31-August 2015 reference SDA-G315-019462 these conditions are attached to and form part of this approval.’ [4]
Condition 4 of the Co-Respondent’s Amended Concurrence Agency Response
- [6]The Condition presently in issue is Condition 4 of the Co-Respondents Amended Concurrence Agency Response of 31 August 2015, and is in these terms;
‘Road Works on a State-controlled road
(a) Road works comprising a channelized Left Turn Treatment (CHL) with High Entry Angle on an Urban Road must be provided at the dedicated left turn facility from Beaudesert Road (southbound) onto Kerry Road.
(b) The road works must be designed and constructed in accordance with the Department of Transport and Main Roads Planning and Design Manual – Chapter 13 Intersections at Grade’[5]
(‘Condition 4’)
Jurisdiction of the Co-Respondent
- [7]There is no dispute as to the jurisdiction of the Co-Respondent to impose its conditions. The issue for determination is whether under section 345(1) of SPA, Condition 4 is a lawful condition of approval of the Development Application.
- [8]The Appellant’s case is that Condition 4 is not a lawful condition under section 345 of SPA and seeks its deletion, together with any necessary consequential changes. The Appellant bears the onus under section 493(1) of establishing that the appeal should be upheld.
Grounds of Appeal
- [9]Paragraph 7 of the Notice of Appeal sets out the following grounds of appeal;
(a) the works required by condition 4 of the Co-Respondent’s conditions:
(i) are not reasonably required as a consequence of the proposed development; and
(ii) represent an unreasonable imposition on the proposed development;
(b) the existing left turn treatment from Beaudesert Road into Kerry Road operates satisfactorily and will continue to operate satisfactorily when the proposed development is operational having regard, inter alia, to the traffic flow on Beaudesert Road in the vicinity of the left turn from Kerry Road; and
(c) the works required by condition 4 of the Co-Respondent’s conditions result in an inadequate pinch point for the existing footpath on the corner of Beaudesert Road and Kerry Road.
Section 345
- [10]Section 345 of SPA relevantly provides;
345 Conditions must be relevant or reasonable
(1) A condition must—
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in relation to the development or use of premises as a consequence of the development.
(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.
(emphasis added)
Subject Land – Road Network
- [11]As I have said, the proposed development is that of a truck depot to operate a major warehouse and distribution centre. Truck access to the site will be from a private road which forms an extension of Kerry Road. All car access will be via a single access point in Postle Street which provides access to a mix of uses including residential, commercial/industrial and to the Acacia Market Place, a shopping centre containing a major supermarket.
- [12]Postle Street connects to the arterial road network with signalised access provided to Beaudesert Road (Mt Lindesay Arterial Road) at Kerry Road and Mortimer Road. Kerry Road would provide the main connection to Beaudesert Road from Postle Street for car traffic generated on the subject site.
- [13]The Beaudesert-Kerry Road intersection is signalised and provides for all turns in all directions by vehicles and for pedestrian movement across three of the four intersection legs. Vehicles approaching the intersection on each leg can make a left turn at a left slip lane without having to go through the traffic signals. The left turn movement presently in issue is that from the north turning east, for southbound traffic on Beaudesert Road into Kerry Road.
Expert Evidence
- [14]Traffic engineering evidence was given by Mr Viney (Appellant) and Mr Beard (Co-Respondent). Mr Viney prepared individual reports dated 31 May 2015, 6 July 2015 and 28 June 2016 and is a signatory to the Joint Expert Report (‘JER’) dated 9 May 2016. Mr Beard prepared and individual report dated 28 June 2016 and is a signatory to the JER.
- [15]In his 31 May 2015 report, Mr Viney estimated the subject development would result in an increase in left turning traffic from Beaudesert Road into Kerry Road of 43 movements (pre-development) to 55 movements (post-development). [6] In the JER dated 9 May 2016, Mr Beard, for the Co-Respondent utilises those figures to formulate his opinion. Paragraph 3.4 of the JER provides;
‘3.4 Mr Beard’s opinion
Mr Viney prepared a report dealing with the traffic engineering impacts of the subject development, dated 31 May 2015. In that report, Mr Viney estimated that the subject development would have a significant impact on peak hour two-way traffic volumes on the Kerry Road approach to the Beaudesert Road intersection, and that the subject development would increase left turning traffic from Beaudesert Road to Kerry Road during the morning peak hour by 28 percent. He further calculated that the subject intersection would be over-saturated with or without the subject development’[7]
Percentage Increase in Left Hand Turn Movements at the Subject Intersection
- [16]Mr Viney did not express his opinion as a percentage. The reference to a 28 percent increase in the JER was calculated on the basis of an expected increase of 12 left turn movements (as estimated by Mr Viney in his 31 May 2015 report) to the existing 43 left turns during the morning peak hour, resulting from the proposed development.
- [17]In cross examination, Mr Viney was challenged as to the estimated number of left turn movements from Beaudesert Road into Kerry to be generated by the proposed development.
- [18]Mr Viney accepted[8] that the percentage increase calculation conducted by Mr Beard (using the figures in Mr Viney’s own report) ought to have been based upon 27 (or indeed 28) additional left hand turn movements (16 trucks and 11 [or 12] cars) rather than the originally estimated figure of only 12 additional left hand turn movements (1 truck and 11 cars).[9] That would take the total of such movements from 43 to 71 vehicles. He accepted the figure would in fact be much higher than originally estimated in his 31 May 2015 report.[10] The Respondent says this figure approximates a 63% increase in left hand turn movements as a result of the subject development, rather than the 28% originally estimated by Mr Viney.[11]Arithmetically, the figure is 63% for 27 additional vehicles and 65% for 28 additional vehicles.
- [19]In cross-examination, Mr Beard, for the Co-Respondent, conceded that on either approach used to calculate the percentage increase in left hand turn movements;
‘We are talking, as Mr Viney said, about comparatively small numbers, modest numbers of traffic volumes. Whether it’s a 28 percent increase or a 63 percent increase is not critical… You are still talking about relatively low numbers, but you are talking about a significant proportional increase in all cases. So, in effect, my opinions are based on that. It’s – they’re relatively small numbers, but it’s a significant proportional increase.’[12]
- [20]In his report dated 28 June 2016, Mr Beard gave the following evidence;
‘6.2 Not an Unreasonable Imposition
The development will be a significant traffic generator, particularly of large trucks, which have a disproportionate impact on traffic congestion, traffic safety and pavement maintenance costs.
…
[t]he condition proposed:
- Relates only to a left turn proposed to be significantly increased by the proposed development.’
- [21]It can be seen that, notwithstanding Mr Beard’s acknowledgement that the subject development resulted in modest absolute traffic numbers, he nonetheless sees a significant proportional increase in the number of left hand turn movements.[13] I accept the evidence shows Beaudesert Road and Kerry Road is not presently and will not become a busy intersection, objectively speaking. Nonetheless, the effect of the proposal will be to significantly increase the volume of traffic making left hand turn movements through the subject intersection. In this regard, I prefer the evidence of Mr Beard.
- [22]The evidence leaves me in little doubt that the subject development will result in significantly increased traffic generation, specifically left hand turn movements through the subject intersection from Beaudesert Road into Kerry Road.
Department of Transport and Main Roads Design Guidelines
- [23]Condition 4, the subject of this dispute, specifically requires;
‘b) The roads works must be designed and constructed in accordance with the Department of Transport and Main Roads ‘Road Planning and Design Manual – Chapter 13 Intersections at Grade’.
- [24]Both experts agreed in the JER that the configuration of the existing left hand turn from Beaudesert Road into Kerry Road at the subject intersection was a superseded design and is not consistent with the current Department of Transport and Main Roads Road Planning and Design Manual – October 2006 (‘DTMR Guidelines’) or the Austroads 2010 – Guide to Road Design (‘Austroads Guidelines’).[14] But that is not the end of the matter. I accept the evidence of Mr Viney who said;
‘While I consider that the 70o high angle design provides adequate visibility at left turn slip lanes with less driver effort, it is not essential, in my opinion, to convert all existing designs where the visibility angle is less than 70o to the design now recommended by Austroads and the Department of Main Roads (DTMR).’[15]
- [25]This reference to a ‘70o high angle design’ is specifically in relation to the DTMR Guidelines which provide that;
‘Policy is that road centre line should be designed to intersect at between 70o and 110o in both urban and rural situations. For curved alignment the angle of the tangent(s) at the intersection point should not be less than 70 o, or more than 110 o.’[16]
- [26]In addition to the DTMR Guidelines, consideration has also been given to the Austroad Guidelines which provide that the visual observation angle (measured from straight ahead) should not exceed 120 o.[17] Mr Beard, in his report, adopts these Guidelines and states;
‘Figure 3.4 of Austroads Guide to Road Design Part 4A shows that viewing angles (measured from straight ahead) should not be between 120 degree and 160 degrees, because this corresponds with the ‘blind spot’ of typical drivers. The attached sketch marked D shows that the existing viewing angle is approximately 137 degrees (close to the middle of the range of viewing angles to avoid) while the proposed viewing angle is approximately 115 degrees (within the recommended viewing range).’[18]
- [27]Consistent with the evidence of Mr Viney, I regard compliance with accepted intersection configuration standards, such as the DTMR Guidelines and the Austroads Guidelines, as but one matter to be given weight in assessing whether a condition is lawful under section 345 of SPA. As Skoein SJDC said in Neilson v Gold Coast City Council & Anor;
‘[25] First it must be observed that guidelines are what the name suggests, not inflexible rules but statements about usual events or what may generally be expected. There must sometimes be circumstances which fall outside the scope of guidelines.’[19]
- [28]Notwithstanding this statement, I accept the following evidence of Mr Beard;
‘Although there is not a history of recorded accident at this location, visibility of opposing vehicles is a fundamental requirement for safe traffic operations, and ensuring that opposing vehicles are within the range of acceptable viewing angles is a necessary element of that visibility.’[20]
Agreed Amended Condition 4
- [29]In the event I find Condition 4 is lawful under SPA, the parties have reached agreement, mirroring the agreement by both expert traffic engineers, as to the acceptable implementation of Condition 4. This is Exhibit 5 (‘Agreed Amended Condition 4’). That Agreed Amended Condition 4 does not, strictly speaking, comply with the DTMR Guidelines. It will, however, render the observation angle within the accepted range according to the Austroad Guidelines. As to that, Mr Beard gave evidence that strict compliance with the DTMR Guidelines is not always possible, but that the Agreed Amended Condition 4, ‘is as close as you can possibly get to compliance with all the elements of the Road Planning and Design Manual. And Mr Viney and I decided that it was near enough.’ [21]
Application of section 345 of SPA
- [30]As previously mentioned, of central relevance in this appeal are the two limbs of section 345(1) of SPA that a condition must;
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in relation to the development or use of the premises as a consequence of the development.
- [31]These limbs are disparate, phrased in the alternative. In other words, a condition under consideration need only satisfy one of these tests in order to be lawful under section 345.[22]
- [32]In Mackay Resource Development v Mackay Regional Council & Ors Dorney DCJ summarised the principles relevant to the imposition of traffic related conditions attached to development approvals;
“Relevant principles
[31]The role that conditions play under the various planning provisions was examined recently in the Court of Appeal in Peet Flagstone City Pty Ltd v Logan City Council [2015] QPELR 68; [2014] QCA 210 . Giving judgment for the court, Gotterson JA (with whom Muir JA and Atkinson J agreed), referencing Atkinson J’s reasoning in Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2002] QPELR 116; [2001] QCA 334 at [23] , held that the character of a condition of a development approval is the “community price” a developer must pay for a development approval and is a “vehicle for minimising adverse effects” of permitted development: at [28] .
[32]Also, traffic safety is an important matter which the court does not disregard lightly; and, as remarked by Quirk DCJ, an experienced Judge in this field, in Heilbronn and Partners Pty Ltd v Brisbane City Council [1997] QPELR 368 , in dealing with matters of traffic safety, it may well be that a conservative approach is warranted: at 370 .
[33]Finally, in dealing with the issue of financial cost, it has long been held that the economics of any development are immaterial, a principle exemplified by Brown v Morton Shire Council (1972) 26 LGRA 310 at 313 [referring, in particular, to the High Court’s decision of Lloyd v Robinson (1962) 107 CLR 142 ; [1963] ALR 792 at 155 per Kitto, Menzies and Owen JJ].[23]
- [33]I accept the Co-Respondent’s submission that safety is an important matter not to be disregarded lightly by the Courts. In line with the authorities above, a conservative approach to the present appeal would see the intersection configuration modified to minimise any potential safety hazards resulting from significantly increased traffic generation resulting from the proposal. In this regard, as Wall QC DCJ said in Exchequer Property Finance v Fraser Coast Regional Council, in upholding the decision of a council to require the upgrading of a road as a condition of a development application;
‘Upgrading the road was required as a result of the development but it should be also recognised that there will undoubtedly be a significant community benefit which will be shared by the community as a whole and by the area in the immediate vicinity of the subject land’[24]
- [34]As to the first limb of section 345, I consider the condition relevant to the development in question. The Beaudesert Road and Kerry Road intersection provides a major access route to the subject land. The proposal will significantly increase the proportion of left hand turn movements through the intersection. I accept the evidence of Mr Beard as to the significant proportional increase but also regard the actual increase from 43 to 71 left hand turn movements as not insignificant. The condition is relevant to the DA. To satisfy section 345(1)(a) the condition must not only be relevant, but also not an unreasonable imposition on the development. In Neilson v Gold Coast City Council & Anor Skoein SJDC held;
‘to make the creator of 9-12 percent of the demand responsible for the full amount of the upgrade cannot be anything but an unreasonable imposition on the development…It is not reasonable that a minor user should be made to pay for the whole.’[25]
- [35]Conscious of those comments, I do not consider the Appellant falls into the category of a ‘minor user’ of the intersection at Beaudesert and Kerry Road. The percentage increase in left hand turn movements is in the order of 63%. I do not consider such a minor requirement to upgrade an intersection to be an unreasonable imposition on the developer responsible for the development which is directly causing the resultant increase in traffic generation. I consider that the condition satisfies the test in section 345(1)(a) of SPA.
- [36]In Harris (trading as Scenic Rim Adventure Park) v Scenic Rim Regional Council, Preston ADCJ said, in relation to the second limb of section 345(1) of SPA, that:
‘there needs to be a nexus between the likely impacts of the proposed development and the condition imposed…Hence, a proposed, traffic generating development that is likely to produce increased use of a road, creek crossing or bridge might reasonably require the imposition of a condition that works be undertaken to upgrade the road, crossing or bridge to a standard that can cope satisfactorily with the increased traffic’[26]
- [37]I accept that both traffic experts consider there is no evidence to suggest that the intersection presents an existing safety problem, manifested by a history of recorded accidents at the intersection. Nonetheless, as I have said previously, the design of the subject intersection does not comply with current safety standards.
- [38]In circumstances where the intersection will be subject to a significant proportional increase in left hand turn movements and a not insignificant increase in actual of vehicle numbers, as a result of the development, I consider it a reasonable requirement to upgrade the intersection to comply with the current Austroad Guidelines. Although it is not necessary for me to decide, I consider that the imposition of the Condition 4 is lawful under the second limb of section 345 of SPA.
- [39]As I have said, the current design of the subject intersection does not comply with the current guidelines with respect to the field of vision angle of a driver as a vehicle makes a left hand turn movement through the intersection. Agreed Amended Condition 4 will bring the design of the intersection in line with contemporary safety standards. As I have determined above, the proposed development will result in increased traffic generation manifested by left hand turn movements through the subject intersection. In all of the circumstances, where such an intersection does not meet current safety guidelines, I consider a condition requiring the upgrade of the intersection to be reasonable requirement in relation to the development.
- [40]In this regard, I accept the Co-Respondent’s submission that it is inappropriate to aggravate the use of the intersection by increasing the number of potentially unsafe movements through the intersection that arise as a consequence of the proposed development without modification. I consider the imposition of the condition satisfies the second limb of section 345 of SPA.
Orders
- [41]I make the following orders:
- Appeal refused
- Agreed Amended Condition 4, contained within Exhibit 5 be substituted into the Concurrence Agency Response of the Co-Respondent.
- I will hear the parties on any necessary consequential orders.
Footnotes
[1]No 4191 of 2015 filed in the Planning and Environment Court at Brisbane.
[2]Exhibit 1, Appeal Book, page 61.
[3]Exhibit 1, Appeal Book, page 246.
[4]Exhibit 1, Appeal Book, page 111.
[5]Condition 4 of the Co-Respondents Amended Concurrence Agency Response date 31 August 2015.
[6]Exhibit 2, page 22, 31 May 2015 Report, Figure 5A. See also T1-12.25.
[7]Exhibit 1, Tab 3, Joint Expert Report of Traffic Engineers, paragraph 3.4.
[8]See T1-25.8-12, T1-25.33-37, T1-25.35-45 and T1-26.5.
[9]See T1-25.30-45, T1-26.1-20
[10] See T1-29.1-17.
[11]Supplementary Submission of the Co-Respondent dated 14 October 2016.
[12]T1-46.46 – T1-47.1-9.
[13]T1-47.5-10.
[14]Exhibit 1, Tab 3, Joint Expert Report of Traffic Engineers, paragraph 3.1.
[15]Exhibit 2, 28 June 2016 Report, pages 2, paragraph 12.
[16]Exhibit 8.
[17]Exhibit 6.
[18]Exhibit 4, Expert Report of Mr Beard, paragraph 6.1.
[19]Neilson v Gold Coast City Council [2005] 482 at [25].
[20]Exhibit 4, Expert Report of Mr Beard, paragraph 6.1.
[21]T1-48.5-8.
[22]Proctor v Brisbane City Council (1993) 81 LGERA 398 at 403-4; [1994] QPLR 309 at 313.
[23]Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2015] at [31]-[33].
[24]Exchequer Property Finance v Fraser Coast Regional Council [2016] QPELR 160 at [24].
[25]Neilson v Gold Coast City Council [2005] QPELR 452 at 455 – 456.
[26]Harris (trading as Scenic Rim Adventure Park) v Scenic Rim Regional Council [2014] QPEC 16 at [54].