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Bridgeman Enterprises Pty Ltd v Sunshine Coast Regional Council[2021] QPEC 25

Bridgeman Enterprises Pty Ltd v Sunshine Coast Regional Council[2021] QPEC 25

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Bridgeman Enterprises Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 25

PARTIES:

BRIDGEMAN ENTERPRISES PTY LTD

(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL 

(respondent)

FILE NO/S:

61/2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against the imposition of conditions

DELIVERED ON:

30 April 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

12 October 2020; 13 October 2020; 6 November 2020

JUDGE:

Cash QC DCJ

ORDERS:

  1. The appeal is allowed;
  2. The decision to impose conditions 26(d) and 27(d) of the negotiated decision notice dated 2 April 2019 is set aside;
  3. Instead there will be a condition requiring the appellant to raise and tension the overhead power line in Hatten Street;
  4. The parties are to present a draft order to give effect to my reasons.

CATCHWORDS:

PLANNING AND ENVIRONMENT – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – CONDITIONS – APPEAL AGAINST IMPOSITION OF CONDITIONS – where the appellant seeks to develop land already improved by a shopping centre and other buildings – where the respondent approved the development subject to conditions – where conditions relate to electrical infrastructure – whether the conditions are relevant to and not an unreasonable imposition upon the development – whether the conditions are reasonably required in relation to the development

Planning Act 2016 (Qld), s 45, s 60, s 65

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 46, s 47

Sunshine Coast Regional Council Planning Scheme 2014

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, 19 [73]

Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, [93]

Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53; [2019] QPELR 247, [24]-[25]

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686, 698 [52]

COUNSEL:

K W Wylie for the appellant

B G Rix for the respondent

SOLICITORS:

P&E Law for the appellant

Sunshine Coast Regional Council Legal Services for the respondent

Introduction

  1. [1]
    The appellant, Bridgeman Enterprises Pty Ltd, owns land on several lots in the centre of the Mooloolah Valley Township. It is bounded to the north by Bray Road, the east by Jones Street, the south by Hatten Street and the west by Paget Street. On the land there is an existing shopping centre and other buildings. The appellant plans to improve and expand the shopping centre and also consolidate the lots. The respondent is not opposed to the development itself. In 2019 they approved the development by way of a negotiated decision notice but attached conditions to the approval. The appellant now asks this court to remove two of those conditions, each of which is concerned with electrical infrastructure.
  1. [2]
    The conditions that are disputed would require the appellant to:
  1. (a)
    remove an existing electrical transformer from a pole on the verge outside the shopping centre in Jones Street and replace this with a transformer mounted on a pad in the expanded car park;
  1. (b)
    provide underground conduits below the footpath in Jones Street to facilitate underground electrical cables at some future point; and
  1. (c)
    relocate existing overhead electrical cabling along Hatten Street to run underground.[1]
  1. [3]
    If the development proceeded in accordance with these conditions, the power poles in Jones Road and Hatten Street would remain.
  1. [4]
    Conditions of this kind are permitted by the Planning Act 2016 (Qld) (‘PA’)[2] but ‘must be relevant to, and not be an unreasonable imposition on’ the development; or, alternatively, ‘be reasonably required in relation to the development’.[3] In my view the appellant has demonstrated that the conditions in dispute do not satisfy either requirement. My reasons for reaching this conclusion are as follows.

The land and surrounding area

  1. [5]
    It is convenient to commence with a description of the land and the surrounding locality taken from the town planning joint expert report.[4] The land is on nine different lots and is properly described as Lots 9, 12, 13 and 14 on RP8479, Lot 10 on RP866081, Lots 50 and 51 on SP171467 and Lots 1 and 2 on SP236148. It has a total area of 5054 m2 and contains improvements. Relevantly the existing improvements are a shopping centre (an IGA and smaller specialty stores) with a gross floor area of 911 m2, two dwelling houses and a two-storey commercial/residential building to the south of the shopping centre. The land is flat and has frontage on multiple streets: 28 metres on Bray Road, 80 metres on Jones Road, 30 metres on Hatten Street and 30 metres on Paget Street.
  1. [6]
    The Bray Road and Jones Street frontages are covered by an awning with decorative elements. There is a car park to the rear (west) of the shopping centre with multiple access points. The commercial/residential building to the south of the shopping centre has tenancies on the ground floor and a residence on the upper floor. There are power poles and overhead electrical cables along Jones Street and Hatten Street. These provide electricity to buildings on the land via three connections. In Jones Street there is a pole-mounted electrical transformer. This is the transformer the respondent wants removed and replaced with a pad-mounted transformer in the redeveloped car park.
  1. [7]
    Pursuant to the Sunshine Coast Planning Scheme 2014 (‘SCPS’) the land is subject to the Local Centre Zone Code and Mooloolah Local Plan Code. Parts of the Jones Street road reserve are also subject to the Scenic Amenity Overlay Code. The subject land takes up a large part of the block bounded by Bray Road and Jones, Hatten and Paget Streets. The balance of the block contains other buildings consistent with the area’s Local Centre zoning, including a Mitre 10 store to the immediate west of the subject land. Across Jones Street to the east there is a commercial building containing a café and news agency and, south of that, the Mooloolah train station. North across Bray Road there is a park and then detached residences. Similar detached residences can be found to the south across Hatten Street and west across Paget Street.
  1. [8]
    Presently, electricity in Mooloolah Valley is provided via a network of poles and overhead cables. The network forms a prominent part of the streetscape of Mooloolah Valley.[5] There is also substantial overhead electrical infrastructure associated with the North Coast Rail Line that runs adjacent to the subject land.

The proposed development

  1. [9]
    The development proposed by the appellant will affect only seven of the nine lots that constitute the land. The two lots facing Bray Road to the north will remain. The other seven lots are to be reconfigured into two lots: a larger lot with frontages on Jones and Hatten Streets and a smaller lot facing Paget Street. On the larger lot the appellant proposes to expand the existing IGA store. The expansion would see the IGA store take over the space presently occupied by the two-story building on Jones Street and will add 611 m2 to the GFA, bringing the total to 1,522 m2. One of the two existing dwelling houses will be demolished, and the car park extended with primary vehicle access to be via Hatten Street. There is also to be a loading bay adjacent to Hatten Street. The extension of the IGA will follow the same architectural form as the existing building with similar parapet roof form, awnings and window treatment. The loading bay is to be shielded by a wall that will be styled to appear to be an extension of the IGA store. The footpaths will be replaced as necessary to maintain a consistent style along the street frontages.
  1. [10]
    Because the proposal would result in a supermarket tenancy in the Local Centre Zone exceeding 1000 m2 GFA, the application for a material change of use was impact assessable.[6] The part of the application dealing with reconfiguring lots was code assessable.[7]

Background to the appeal and the conditions in dispute

  1. [11]
    The development application was properly made on 14 June 2018. It was to be assessed against the version of the SCPS (version 13) that commenced on 14 May 2018. On 9 January 2019 the respondent, the Sunshine Coast Regional Council, advised the appellant it intended to approve the application, subject to conditions. The conditions included the two currently the subject of dispute but would also have required the removal of power poles and the relocation of all existing electrical infrastructure underground. Negotiation between the parties followed, as permitted by sections 75 and 76 of the PA. The appellant sought the removal of the conditions. After considering the appellant’s ‘change representations’ the respondent agreed to remove the requirement to relocate ‘the existing overhead electricity [in Jones Street] to an underground alignment’. In its place, the following condition was imposed by way of a negotiated decision notice:[8]
  1. (26)
    Jones Street must be upgraded for the length of its frontage to the subject site. The works must be undertaken in accordance with an operational works approval and must include in particular:

  1. (d)
    relocation of the existing pole-mounted transformer (SP6752-A) to a pad mounted transformer within the site. Provision of all the centre’s electrical distribution from the new transformer. Provision of electrical conduits for the full frontage, to suit future undergrounding of the overhead system.
  1. [12]
    The respondent was not persuaded to change the condition concerning overhead electrical infrastructure in Hatten Street. This condition required:[9]
  1. (27)
    Hatten Street must be upgraded from the intersection with Jones Street to the boundary of Lot 11 RP86608, on the development side only. The works must be undertaken in accordance with an operational works approval and must include in particular:

  1. (d)
    relocation of the existing overhead electricity to an underground alignment in accordance with the conditions of this development approval.
  1. [13]
    On 3 May 2019 the appellant commenced these proceedings, challenging the three requirements imposed by these two conditions.[10]

The statutory framework and relevant legal principles

  1. [14]
    These proceedings are governed by the PA and the Planning and Environment Court Act 2016 (Qld) (‘PECA’). The appeal is by way of a hearing anew.[11] The appellant bears the onus in the appeal.[12] I am to determine the appeal as if I were ‘standing in the shoes’ of the assessment manager, applying the law as it presently stands.[13] The part of the application to which the conditions relate was impact assessable. In these circumstances, the power to impose conditions is found in section 60(3) of the PA. The power is limited by section 65 of the PA which provides:
  1. (1)
    A development condition imposed on a development approval must –
  1. (a)
    be relevant to, but not be an unreasonable imposition on, the development or the use of the premises as a consequence of the development; or
  1. (b)
    be reasonably required in relation to the development of the use of the premises as a consequence of the development.
  1. [15]
    The power to impose conditions is to be exercised having regard to the assessment process described in sections 45 and 60 of the PA. In particular, section 45(5) requires the assessment must be made against the assessment benchmarks in the SCPS and may be carried out having regard to any other relevant matter (other than a person’s personal circumstances). Compliance with section 65 is a necessary, but not automatically sufficient, pre-condition to the imposition of a development condition. As Williamson QC DCJ stated in Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53; [2019] QPELR 247 (at [24]-[25]):

The power to impose lawful conditions on an approval is a broad residual discretion to be exercised for a proper planning purpose.

The planning purpose underlying the exercise of the conditions power in any given case is to be ascertained from the PA, and the documents to which regard must, or may be had, in the assessment of the application.

  1. [16]
    As noted above, it is necessary to consider the imposition of the conditions in the context of the assessment benchmarks provided by the SCPS. When considering the planning scheme, the same principles which apply to statutory construction apply to the construction of planning documents.[14] They are to be read practically, as a whole and having regard to their apparent purpose or objects.

Relevant planning scheme provisions

  1. [17]
    The respondent relies upon provisions of the SCPS to support each of the disputed conditions. It relies upon the same provisions in relation to each condition.[15] In particular, it was said that the disputed conditions promoted the goals of the scheme because they were consistent with, and supported by, parts of the Strategic Framework, Local Centre Zone Code, Mooloolah Local Plan, Scenic Amenity Overlay Code, Business Uses and Centre Design Code, and Works, Services and Infrastructure Code. It is unnecessary to set out these many provisions in full. They are, as is the nature of planning schemes, interrelated and represent a hierarchy of provisions.[16] For most provisions, it is enough to summarise their effect. I will do so below, dealing as well with the arguments of the parties as they relate to each section of the SCPS, before considering the relevance of the scheme as a whole.

Strategic Framework[17]

  1. [18]
    The parts of the Strategic Framework relied upon by the respondent deal with ‘coordinated and sustainable infrastructure’, energy infrastructure and scenic routes. The provisions promote the goal of making the most of existing infrastructure while responding to the needs of local communities in a manner that positively contributes to landscape character, identity and sense of place. A specific outcome identified in section 3.6.6.1(g) of the SCPS is that:[18]

In urban areas, and elsewhere where appropriate and practicable, electricity supply lines are [to be] located underground.

  1. [19]
    The Strategic Framework also promotes the protection of scenic routes so that they provide a high level of scenic and visual amenity to travellers.
  1. [20]
    The appellant submitted that the Strategic Framework does not mandate the undergrounding of electrical infrastructure. Acknowledging the provision set out above, the appellant submitted that other parts of the Strategic Framework encourage the use and extension of existing facilities in preference to new infrastructure.[19] Similar themes are to be found in the Local Centre Zone Code and the Works Code.[20] The appellant also pointed to the use of the words ‘provides’ or ‘provided’ in sections of the scheme concerning underground electrical infrastructure. It was suggested this referred only to the provision of new electrical infrastructure and not to the proposed development, which relied upon existing electrical infrastructure.[21] On this basis, it was submitted that the provisions were not relevant. I do not accept the appellant’s argument that the development would not ‘provide’ electrical infrastructure. The construction proposed by the appellant reflected a narrow, technical approach of a kind that is discouraged when considering planning documents. When read sensibly, practically and as a whole,[22] it is clear that the provisions are relevant to the assessment of the proposed development. That is because, in a broad sense, electrical infrastructure is provided as part of the proposed development, even where that provision largely relies upon existing facilities.
  1. [21]
    The respondent submitted that the SCPS strongly encourages or promotes the undergrounding of electrical infrastructure. The respondent stopped short of saying underground electrical infrastructure would be an absolute requirement for development such as the present. There is a tension between the two themes identified above; the first being to make the most of existing infrastructure and the second being to move electrical infrastructure underground. How this tension is to be resolved in any particular case will require a consideration of all relevant factors to decide if a development should be approved and, if so, whether and what conditions should be imposed. The relevant factors will include the comparative benefits and disadvantages of undergrounding electrical infrastructure. When considering ‘greenfield’ development the benefits might usually outweigh the disadvantages.[23] Where, as here, the land is already well serviced by electrical infrastructure[24] the calculus may be different.
  1. [22]
    In my view, specific outcome 3.6.6.1(g) and the broader themes of the SCPS that encourage undergrounding of electrical infrastructure support the disputed conditions. But that does not mean the ‘broad residual discretion’ must be exercised to impose such conditions. Other factors, as discussed below, are relevant to this consideration.
  1. [23]
    The respondent also referred to specific outcome 3.8.2.1(d), which encourages the protection and enhancement of scenic routes to have them provide a high level of scenic and visual amenity to travellers. The respondent relied upon this specific outcome as something that, in conjunction with other provisions, supported conditions requiring the undergrounding of electrical infrastructure. So much may be accepted, but as dealt with below when considering the Mooloolah Local Plan, the improvement to visual amenity that would be produced by the conditions would be modest.

Local Centre Zone Code[25]

  1. [24]
    This code has as its purpose the development of well designed, visually attractive local convenience centres. The purpose is to be achieved through a number of goals or outcomes. Among these are outcomes relating to infrastructure, which relevantly promote:
  • infrastructure that is commensurate with the location, and the nature and scale of development intended for the zone;
  • maximising the efficient extension and safe operation of infrastructure; and
  • not adversely impacting upon existing infrastructure or compromising ‘the future provision of planned infrastructure’.[26]
  1. [25]
    ‘Infrastructure’ is defined to include the ‘energy generation … systems and facilities required to support the sustainable growth of the region’.[27] It follows from the definition that the outcomes of the code apply to electrical infrastructure.
  1. [26]
    The appellant contended that the proposed development was consistent with the first two outcomes. This was not challenged by the respondent and I accept that the electrical infrastructure associated with the proposed development satisfies the first two outcomes. As to the third outcome, the appellant submitted that there can be no conflict with the Local Centre Zone code in circumstances where there are no plans proposed by the respondent or Energex to upgrade or change electrical infrastructure in Mooloolah Valley. On 29 April 2020 Energex wrote that it did not require underground conduits for future electrical infrastructure and that:[28]

Energex does not have any plans for undergrounding electrical distribution infrastructure in the vicinity of the Mooloolah IGA at this time, and at present there are no strategic plans that involve undergrounding our distribution infrastructure in the area.

  1. [27]
    Mr Adams, the town planner called by the appellant, wrote in his individual report:[29]

In reviewing this case, I have not been able to identify any long term placemaking plan or LGIP designation that is either drafted or endorsed by Council that identifies the undergrounding of all electrical infrastructure within the centre zoned land within the Mooloolah Valley Township.

  1. [28]
    That is, the Council has no plans to upgrade electrical infrastructure in the centre of Mooloolah Valley by moving it underground. This proposition was not challenged, and indeed appeared to be accepted,[30] by the respondent. In these circumstances I accept the appellant’s submission that the goal of not adversely affecting future infrastructure has no relevance when there are no plans for such infrastructure. The aspiration of the planning scheme to see electrical infrastructure moved underground falls short of any kind of concrete plan against which a proposed development could be assessed for any potential adverse effect.
  1. [29]
    In my view, the proposed development complies with the relevant parts of the Local Centre Zone Code. The specific outcome requiring development to not adversely affect future infrastructure does not provide a basis for the imposition of the disputed conditions.

Mooloolah Local Plan[31]

  1. [30]
    The local plan includes the goal that Mooloolah should remain a small rural town with intimate rural character, primarily servicing locals and visitors. Bray Road and Jones Road are specifically identified as wide, attractive and pedestrian friendly main streets that contribute to the ‘rural town’ feel of Mooloolah. The desire to maintain the traditional built form and streetscape to the western side of the railway line is emphasised.
  1. [31]
    An identified performance outcome is for development to contribute to the establishment of attractive and coherent streetscapes so as to enhance the rural town character of Mooloolah. An acceptable outcome associated with this goal is for development to provide for streetscape improvements which complement existing or proposed streetscape works, ensuring continuity of design. Before considering the relevance of these provisions, it is important to note that the proposed development has already been approved, albeit subject to the disputed conditions. The present matter is not concerned with whether the development as a whole is compliant with the Local Plan or advances its goals. The real issue is whether there are provisions of the Local Plan that support the imposition of the disputed conditions.
  1. [32]
    None of the provisions relied upon by the respondent directly address infrastructure. However, some support for the removal of above ground electrical infrastructure may be found in the goal of the Local Plan for development to contribute to attractive and coherent streetscapes. The removal of the pole-mounted transformer in Jones Street and undergrounding of wires in Hatten Street might be thought to contribute to this goal. This was a matter on which the experts did not really disagree. Ms Rawlinson was a visual amenity expert called by the appellant. She summarised her opinion as follows:[32]

So we’re talking about – in the assessment of the visual amenity issue, we’re talking about the removal of the wire in Hatten Street?Yes.

The poles stay?Yes.

And the pole-mounted transformer in Jones Street goes?That’s correct.  Yes, yes.  So I think the pole-mounted transformer on Jones Street, you don’t see it when you’re under the awning.  So that experience will continue for the full length of the – the western side of Jones Street.  When you’re on the eastern side of Jones Street the   

Over near the coffee shop?    near the coffee shop, you can’t see it when you’re sitting at the coffee shop.  You can’t see until you – you had to go right out into the street to where you park your car before you – you actually can see it.  So it’s got quite a limited visibility.  There’s really only a glimpsed view from the – from the train station and it’s seen amongst a whole range of elements that you expect to see in an urban environment.  So I – I just don’t think from – as you look at it from a visual amenity perspective, I think changing it, it’s going to be – it’s not going to have much of an improvement and I don’t think it’s going to create a big visual amenity improvement.  And then Hatten Street, you’d still put small street trees in that location.  So removing the wire I don’t think is going to result in an appreciable improvement in – in amenity, whereas I’m concerned about the – the padmount and transformer and the offset of losing vegetation and the potential amenity impacts of that.

Right?So not a huge improvement in visual amenity elsewhere in Hatten Street.

  1. [33]
    Dr McGowan, who testified for the respondent, emphasised the contribution the removal of the pole-mounted transformer would have to an incremental process of undergrounding electrical infrastructure and thus improving the attractiveness of the streetscape. Even if there were to be no other changes to electrical infrastructure in the centre zone, Dr McGowan thought the removal of the pole-mounted transformer was still a worthwhile, if modest, improvement.[33]
  1. [34]
    It may be accepted that the removal of the pole-mounted transformer and wires, even without other changes, would enhance the attractiveness of the streetscape to some degree. But this would not contribute to a significant improvement in visual amenity unless future, and as yet unplanned, changes to the electrical infrastructure of the centre zone were to occur. While I accept that some improvements are achieved incrementally,[34] the absence of a plan for similar improvements in the centre zone means it cannot be known when, or even if, such incremental improvement would be achieved. This is a relevant consideration to the issue of whether the conditions are ‘not an unreasonable imposition’ on, or are ‘reasonably required in relation to’, the development.

Scenic Amenity Overlay Code[35]

  1. [35]
    Consistent with the regulation of streetscapes, as well as the strategic goal concerning the protection of scenic routes, this overlay has the purpose of ensuring development does not adversely affect scenic amenity and landscape values. To achieve this purpose the code promotes development that protects scenic amenity values visible from scenic routes. Performance and acceptable outcomes are set out in the code. Relevantly, development is not to detract from the visual amenity of a scenic route and should maintain or enhance important view corridors. Part of the Jones Street road reserve falls within the overlay. The subject land itself does not. On this basis, the appellant contends that the Scenic Amenity Overlay Code does not apply to this development.
  1. [36]
    The respondent accepts that ‘for legal reasons the “land” the subject of the development application does not include the road reserve’.[36] However, the respondent points to the reality that the development will involve some works in the road reserve and, more importantly, the need for the development to be assessed having regard to the whole of the planning scheme. In my view it would be wrong to simply ignore the provisions of the Scenic Amenity Overlay Code. It forms part of the scheme and, along with other provisions, serves to place particular focus and importance on amenity and aesthetic considerations in the Mooloolah local centre.
  1. [37]
    In terms of the specifics of the code, Mr Adamson, a town planner called by the respondent, accepted that the development complied with the relevant acceptable outcome.[37] He agreed the development, as proposed, would achieve the outcomes of the Scenic Amenity Overlay Code.[38] In the end, the relevance of this code appears to be that it provides further support for the theme that scenic amenity and aesthetics are important, which itself promotes the idea that electrical infrastructure should be moved underground.

Business Uses and Centre Design Code[39]

  1. [38]
    This code is intended to ensure that uses and activities in the town centre reflect good design principles and are conscious of local character, environment and amenity consideration. To achieve this purpose the code promotes integrations into local surrounds, high quality streetscape and landscape design and the avoidance or minimisation of adverse impacts upon the amenity of nearby residential uses. An identified outcome is for the use or activity to provide for electricity infrastructure to the site in a way that minimises its visual impact on the streetscape. The related acceptable outcome indicates that there would be compliance if, in the case of a new building, ‘electricity is located underground for the full frontage of the site’.
  1. [39]
    The appellant repeated its submission that the proposed development does not ‘provide’ electrical infrastructure. For the reasons set out in paragraph [20] above, I do not accept that submission. This code is relevant to the overall assessment of the disputed conditions. However, as already discussed, the overall benefit of moving the transformer, and undergrounding wires in Hatten Street, would be modest.

Works, Services and Infrastructure Code[40]

  1. [40]
    The stated purpose of this code is to ensure that the provision of infrastructure takes place in a sustainable manner and in accordance with ‘best practice’. The purpose is to be achieved through, among other things, seeing that development is designed and constructed to a standard that meets community expectations and which minimises whole of life-cycle costs. The relevant performance outcome, PO9, identifies the goals of ensuring that infrastructure associated with development:
  • is appropriate to its setting and commensurate with its needs;
  • is integrated with, and an efficient extension of, existing networks; and
  • preserves visual amenity in centres and along scenic routes.
  1. [41]
    For land in the ‘urban zone’, which this is,[41] ‘appropriate infrastructure is [to be] provided to reticulated … electricity … at no cost to the council’. A specific acceptable outcome is:[42]

AO9.8 Except where in the Rural zone, electrical and telecommunications reticulation infrastructure is provided underground in:-

  1. (a)
    greenfield developments;
  1. (b)
    development involving the creation of more than 5 lots;
  1. (c)
    development in centre zones; and
  1. (d)
    development in areas of high scenic amenity.
  1. [42]
    This acceptable outcome is in my view significant. Despite the respondent’s submissions to the contrary, that have already been mentioned, the proposed development does provide electrical infrastructure. It is a development in a centre zone and is not in a rural zone. As such, AO9.8 would apply. This outcome favours the provision of underground electrical infrastructure. That is a matter that supports the imposition of the conditions. But AO9.8 is also to be seen in light of the performance outcome, PO9, and its goals. These goals are largely concerned with the efficient use of existing networks and preserving visual amenity. They provide context to AO9.8 and assist in assessing whether conditions that require undergrounding of electrical infrastructure are relevant to and reasonable for this proposed development.

Summary – planning scheme requirements

  1. [43]
    There are several themes of present relevance that emerge from a consideration of the planning scheme. The first is that undergrounding of electrical infrastructure is encouraged. The second is that scenic amenity and aesthetics are highly valued by the scheme as it relates to Mooloolah Valley. These themes are in some ways complimentary. It could be said that conditions imposed on an approval to promote these themes might often be for a proper planning purpose. But they are not the only relevant themes of the planning scheme. The scheme also encourages the efficient use and extension of existing infrastructure facilities and draws a distinction between new, or ‘greenfield’, development and other development.[43] When considering the disputed conditions it is necessary to seek to balance these themes and to assess their relevance to this particular development.
  1. [44]
    It is appropriate now to turn to the arguments of the parties. The most convenient way to do so is to consider the two main components of the case presented for the respondent in defence of the conditions. The first is the argument that the conditions are appropriate to achieve the goal of the planning scheme concerned with undergrounding electrical infrastructure. The second component relies upon the argument that visual amenity and aesthetic considerations support the conditions. I will deal with each in turn.

Consideration – underground electrical infrastructure

  1. [45]
    The total cost of removing the pole-mounted transformer from Jones Street and replacing it with a pad-mounted transformer in the carpark would be in the vicinity of $78,000. The cost of underground electrical conduits in Jones Street would be about $57,000 and the cost of undergrounding the wires in Hatten Street about $18,000. The appellant would also have to share the cost of some additional expenses.[44] While these are not modest expenses, there was no evidence that the cost of the works would be prohibitively expensive or disproportionate to the scale of the proposed development.
  1. [46]
    It is to be noted that none of the works required by the conditions are necessary for the proper operation of the development. The electrical engineer called by the respondent, Mr Walker, confirmed that the site could operate comfortably with the existing pole-mounted transformer and that a pad-mounted transformer, with its extra amperage, was not necessary.[45] It went without saying that the undergrounding of wires in Hatten Street and provision of conduits in Jones Street were also unnecessary for the operation of the development. The focus of the respondent’s case was on the benefits of moving toward underground electrical infrastructure, both generally and in the sense of visual amenity improvements. The works required by the conditions would be necessary steps in a process of moving toward underground electrical infrastructure.[46] As has been discussed, the planning scheme encourages undergrounding electrical infrastructure. However, conditions requiring this particular development to take these steps are not appropriate for the following reasons.
  1. [47]
    The town centre of Mooloolah Valley is presently serviced by overhead electrical infrastructure. There was no evidence of plans for this to change.[47] Even if such plans were proposed, they might take years to implement. On the evidence before me it is entirely possible that, even if the works required by the conditions were carried out, no other changes would be made in Mooloolah Valley. In these circumstances the disputed conditions can have no real effect on the planning scheme goal of undergrounding electrical infrastructure in Mooloolah Valley. At best, the conditions might result in works that would cheapen the cost of undergrounding electrical infrastructure at some unspecified time in the future (if that occurs at all). This possible benefit is to be weighed against the work required to comply with the conditions. Undergrounding the wires in Hatten Street may not be a difficult exercise, but it is not trifling. Installation of a pad-mounted transformer would be, as the costs estimates suggests, a substantial undertaking. Extensive work would also seem to be required to install conduits under the footpath in Jones Road.
  1. [48]
    There was a suggestion that as other works were to be carried out in the road reserve, it would be efficient to install the conduits now. This was dealt with in the following passage from the cross-examination of Mr Adamson:[48]

And those visual amenity provisions, again, none of those visual amenity provisions squarely require the undergrounding of existing power; you’ve drawn inferences, haven’t you? --- The provisions themselves, under the Business Uses Code and the Works Code, works – I keep forgetting the name of it, Work, Service and Uses Code, certainly, and also the strategic framework certainly seek that underground power be provided, but yes, when you consider the planning scheme as a whole, including the local planning code, the scenic amenity route which applies to change – scenic route which applies to Jones Street, yes, my view is that that heightens the importance of achieving those visual amenity outcomes. 

And you’ve relied on inferences? --- Of those other codes, yes, but they are specifically referred under the Business Uses Code, in terms of centres and also the scenic route. 

But it may well be that those provisions have been proposed for matters other than amenity, for instance, colocation of electrical services with water, sewer and the like to achieve synergies? --- Yes, and efficiencies.

Yes.  So that’s a matter that is relevant to the undergrounding of power other than amenity? --- That’s correct, and it’s why I think it’s opportune time, if other works are required to be undertaken in the road reserve, now’s the time that it should be undertaken.

But there’s no question that there are any other services that are required to be undergrounded at the moment, are there? --- Well, except the footpath works, and I’m not aware of what’s required in terms of storm water or water supply, all those things.  I’m not aware if there’s any works required in that regard, no.

You’d be aware that the majority of the footpath on Jones Street doesn’t require replacement.  It’s only the part from the driveway all the way south-east to the end of Hatton Road?   Yeah, the condition’s a bit unclear.  It says the full frontage, but yes, that’s my understanding, but I think that amounts – accounts of about two-thirds of the frontage, but also the frontage along Hatton Street obviously needs to be upgraded.

And you’d agree that there’s light and day between getting somebody to scrape the top off a concrete footpath and to lay some new pavers and digging a 1400 deep, 900 wide trench.  It’s not the matter of, “Oh, while you’re at the shops, can you pick me up some milk.”  It’s a completely new project, isn’t it? --- It’s my – likely to be fairly extensive works.  Whether or not it’s actually dug up or Grundocracked or by other means, which they can do these days, I’m not sure.  They don’t necessarily have to dig a trench, but I’m not sure how it’s going to be done.

But, you know, to the extent that we’re reading your report, the parts of your report that seem to infer, “Look, you’re going to be there anyway, you might as well do it.  You might achieve synergies.”  The fact is that you’d accept that it’s a significant increase in the scope of work in that road reserve? --- Only partly in the Jones Street frontage.  The extent of works – I’m not sure how they would achieve it, so I really can’t answer the question.

  1. [49]
    Whether the installation of conduits in Jones Street required a trench or some other method of installation, it would involve work that extends significantly beyond that which is otherwise required for the development. It may be assumed the undergrounding of wires in Hatten Street would involve similar work.
  1. [50]
    In my view the conditions would require work that is by no means trivial and which would have practically no measureable benefit in terms of securing underground electrical infrastructure in Mooloolah Valley. I appreciate that the respondent is in something of a difficult position. A change as substantial as undergrounding all of the electrical infrastructure in Mooloolah Valley cannot happen overnight. Incremental change on a per-development basis is one practical way of achieving the goal. But the key considerations here – that the land is already well serviced by electrical infrastructure and there are no wider plans for changes to electrical infrastructure – speak strongly against the imposition of these conditions, on this development, at this time.

Consideration – visual amenity improvements

  1. [51]
    The second component of the respondent’s case was that the conditions were supported by visual amenity considerations. That is, the appearance of the land, and by extension Mooloolah Valley, would be improved by relocating the transformer and undergrounding the wires in Hatten Street. As has been discussed, it may be accepted that moving the transformer and removing power lines in Hatten Street will be an improvement.[49] But the benefits are not such that the conditions ought to be imposed.
  1. [52]
    As far as the transformer is concerned, it is above the awning in Jones Street and would remain so if the proposed development proceeds. It is really only visible from the eastern side of Jones Street, and is seen in the context of the poles and wires that would remain in Jones Street.[50] Dr McGowan on behalf of the respondent testified as follows in cross-examination:[51]

But, really, to achieve the meaningful outcome that you want to see, in your mind, it’s not enough for the pole-mounted transformer to go, it really needs those poles and wires to go too, doesn’t it? ---  It’s enough for the pole-mounted transformer to go, that would be the benefit, but getting rid of the poles and the lines would really make a big improvement.

You described that as – you agreed with me before that the pole-mounted transformer would be a modest improvement.  To make a meaningful improvement, you would need – you would need the wires and poles to go too, wouldn’t you? --- I think they would all be meaningful improvements.  Obviously, just doing one aspect of that would render less benefit, but I think it would be still be a meaningful improvement.

  1. [53]
    It is apparent that any real benefit to visual amenity in Jones Street would only come from removal of the poles and wires as well. So much is confirmed in the joint expert report where Dr McGowan wrote (my underlining):[52]

Removal of the transformer, lines, and poles would significantly improve the streetscape and amenity of the area and would mean both sides of the street would be largely absent of overhead infrastructure.

  1. [54]
    It must also be noted that installing a pad-mounted transformer in the carpark would not be an exercise in visual subtlety. In order to screen such a transformer a high fence with gates would be necessary.[53] This would undo, to some extent, the gains resulting from the removal of the pole-mounted transformer. In my view, the benefit to visual amenity from removing the transformer is so slight as to be practically irrelevant to the goals of the planning scheme. Such a requirement would also be an unreasonable imposition on, and not reasonably required in relation to, the development.
  1. [55]
    In terms of visual amenity, the immediate benefit of undergrounding the wires in Hatten Street is that they would no longer be seen. On its own, this is insignificant. But there is a secondary benefit to be realised in terms of planting along Hatten Street to screen the wall shielding the new loading bay at the southern end of the development. The absence of power lines would allow for a greater variety of vegetation to be planted. The relevant condition of the approval requires the planting to ‘include the provision of shade trees at 6 metre centres (group planting where precluded …)’.[54] Ms Rawlinson for the appellant stated that tall trees are unnecessary to screen the built form as the development proposes only a single storey. Even if the wires were not present, Ms Rawlinson was of the view that smaller trees were appropriate for the area.[55] She provided examples of suitable trees growing under power lines from the Sunshine Coast Street Tree Master Plan 2018.[56]
  1. [56]
    When Mr Walker, the electrical engineer called by the appellant, gave evidence, he expressed the view that he would prefer to see the wires in Hatten Street raised and tensioned so as to facilitate planting underneath. He said raising the wires was a practical and relatively inexpensive process and could achieve a clearance of about 6 metres above the ground.[57] Ms Rawlinson confirmed in her evidence that would allow for the planting of appropriate street trees.[58] Dr McGowan also agreed this would enhance the amenity of Hatten Street, though he maintained that undergrounding the wires would be a better outcome.[59] The appellant embraced the view expressed by Mr Walker.[60]
  1. [57]
    It follows, in my view, that improvements to scenic amenity, and the relevant goals of the planning scheme, can be achieved without the undergrounding of the wires in Hatten Street. Conditions requiring the undergrounding of power in Hatten Street are not appropriate. The better approach is to change the decision to impose a condition that would require the appellant to raise and tension the wires in Hatten Street, so as to facilitate the planting of vegetation in accordance with the approval.

Conclusion

  1. [58]
    So far as the conditions relate to the goal of undergrounding electrical infrastructure they are not relevant to the development. The potential contribution the conditions might make towards the goal is, in the circumstances, so slight as to deprive the conditions of the necessary relevance. But even if I am wrong about that, I am satisfied the appellant has demonstrated the conditions are an unreasonable imposition. Any benefit they might produce, which is at this time entirely theoretical, is outweighed by the expense required to implement the conditions. For the same reasons the conditions are not ‘reasonably required in relation to the development’. The same can be said about the conditions to the extent they seek to achieve improvements to scenic amenity. The potential benefits are slight and disproportionate to the work required by the conditions.
  1. [59]
    Finally, I would note that I have reached this conclusion in the particular circumstances of this case. The land the subject of this development is already well serviced by electrical infrastructure and is surrounded by overhead electrical infrastructure. The proposed development is an extension of existing improvements to the land. In this context, the absence of plans to underground electrical infrastructure in Mooloolah Valley is a significant factor telling against the imposition of the disputed conditions. But that does not mean that the absence of firm plans to underground electrical infrastructure in a particular locality will always mean similar conditions are unreasonable. Whether or not it is appropriate to require other development to provide underground electrical infrastructure will depend, among other things, on the nature of the land and the proposed development. As I have mentioned, arguments in favour of such conditions might be expected to be stronger in the case of ‘greenfield’ development or development that is in effect new building.
  1. [60]
    For these reasons I will allow the appeal. The decision to impose conditions 26(d) and 27(d) will be set aside. Instead there should be a condition that requires the appellant to raise and tension the overhead wire in Hatten Street. I ask the parties to agree to a form of order that will achieve this result.

Footnotes

[1]The replacement of overhead electrical infrastructure with underground facilities is a process known as ‘undergrounding’. For convenience, and to maintain consistency with the evidence, I will use this term to describe the process.

[2]PA, section 60(3)(d).

[3]PA, section 65(1).

[4]Exhibit 5.1.

[5]Exhibit 7, statement of Suzie Rawlinson, p. 4.

[6]SCPS, Table 5.5.8 (Exhibit 11.1, pages 121-122).

[7]SCPS, Table 5.6.1 (Exhibit 11.1, pages 124-125).

[8]Exhibit 1, p 114. The notice was given on 2 April 2019.

[9]Exhibit 1, pages 114-115.

[10]An appeal against the imposition of a condition concerning noise amelioration was resolved by the parties before the hearing.

[11]PECA, section 43.

[12]PECA, section 45.

[13]PECA, section 46, Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, [93].

[14]Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686, 698 [52]; AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, 19 [73].

[15]Exhibit 12.

[16]SCPS, Part 1, section 1.5 (exhibit 11.1, p. 9).

[17]SCPS, Part 3, sections 3.6.2.1(e) and (i) (exhibit 11.1, p. 48); sections 3.6.6.1(f) and (g) (exhibit 11.1, p. 50); and section 3.8.2.1(d) (exhibit 11.1, p. 58).

[18]SCPS, Part 3, section 3.6.6.1(g) (exhibit 11.1, p. 50).

[19]SCPS, Part 3, sections 3.6.1(b) and 3.6.2.1(b)(i) (exhibit 11.1, pp. 44-48).

[20]SCPS, Part 6, section 6.2.8.2(2)(s) (exhibit 11.1, p. 141); Part 9, PO9(b) in table 9.4.11.3.1 (exhibit 11.1, p. 224).

[21]The appellant relied upon evidence of an electrical engineer to this effect: T.1-56.37-T.1-57.25.

[22]Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82, [55]-[56]

[23]T.1-45.27-29.

[24]Exhibit 5.2.

[25]SCPS, Part 6, sections 6.2.8.2(2)(q), (r) and (s) (exhibit 11.1, p. 141).

[26]SCPS, section 6.2.8.2(2)(s) (exhibit 11.1, p. 141).

[27]SCPS, Schedule 1 (exhibit 11.1, p. 260).

[28]Exhibit 5.1, Town Planning joint expert report, at p. 140.

[29]Exhibit 8, p. 5, paragraph 21.

[30]Written submissions on behalf of the respondent, page 23, paragraphs 78 and 80.

[31]SCPS, Part 7, sections 7.2.21.3(2)(a) and (f) (exhibit 11.1, p. 147) and PO3 in table 7.2.21.4.1 (exhibit 11.1, p. 149).

[32]T.2-16.10-34.

[33]T.2-34.1-15.

[34]Exhibit 4, visual amenity joint expert report, p. 21, paragraph [54].

[35]SCPS, Part 8, sections 8.2.12.2(1), 8.2.12.2(2)(a)(i) and PO1 in table 8.2.12.3.1 (exhibit 11.1, p. 161).

[36]Written submissions on behalf of the respondent, page 13, paragraph 52(a).

[37]T.2-93.33-T.2-94.5.

[38]T.2-94.40.

[39]SCPS, Part 9, sections 9.3.1.2(1)(b), 9.3.1.2(2)(d) and (e) (exhibit 11.1, p. 166) and PO12 in table 9.3.1.3.1 (exhibit 11.1, p. 170).

[40]SCPS, Part 9, sections 9.4.11.2(2)(b) and (d) (exhibit 11.1, p. 221), and PO8 and PO9 in table 9.4.11.3.1 (exhibit 11.1, p. 223-224).

[41]‘Urban zone’ includes land in a ‘Local centre zone’, SCPS, schedule 1 (exhibit 11.1, p. 267).

[42]SCPS, Part 9, AO9.8 in table 9.4.11.3.1 (exhibit 11.1, p. 224).

[43]For example, SCPS, Part 9, AO12 in table 9.3.1.3.1 (exhibit 11.1, p. 170) and AO9.8 in table 9.4.11.3.1 (exhibit 11.1, p. 224).

[44]Exhibit 3, electrical engineering joint expert report, p. 6. The additional expenses are estimated at $34,500 and are associated with testing and fees payable to Energex or professionals.

[45]T.1-54.32-38.

[46]T.1-45.37-40.

[47]See [26] to [28] above.

[48]T.2-83.39-T.2-84.39.

[49]See [32] to [34] above.

[50]See, for example, figures 7 and 8 on p. 9 of exhibit 7, the report of Ms Rawlinson.

[51]T.2-48.4-15.

[52]Exhibit 4, page 20, paragraph 54(b).

[53]T.2-19.13-45; T.2-27.21-36.

[54]Condition 55 of the negotiated decision notice, 2 April 2019.

[55]Exhibit 7, page 15, paragraphs 47 and 48.

[56]Exhibit 7, page 15, figure 12.

[57]T.1-53.19-36.

[58]T.2-5.1-5.

[59]T.2-48.23-25 and T.2-31.4-12.

[60]T.2-24.1-3.

Close

Editorial Notes

  • Published Case Name:

    Bridgeman Enterprises Pty Ltd v Sunshine Coast Regional Council

  • Shortened Case Name:

    Bridgeman Enterprises Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2021] QPEC 25

  • Court:

    QPEC

  • Judge(s):

    Cash QC DCJ

  • Date:

    30 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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