Insights

In brief

The case of Exchequer Property Finance Pty Ltd v Fraser Coast Regional Council [2015] QPEC 60 concerned an appeal in the Planning and Environment Court against the decision of Fraser Coast Regional Council to partly approve a request by Exchequer Property Finance to change conditions 29 and 30 of its development approval for reconfiguring a lot for the Parklands Estate.

Conditions 29 and 30 related to the upgrade of Doolong South Road progressively as each stage of the estate fronting the road was developed. The dispute in question concerned stages 3A and 3B of the estate which had frontage to the north-south section of Doolong South Road.

As condition 30 was resolved, the court only had to determine the dispute in relation to condition 29. After having considered the arguments advanced by Exchequer Property Finance and the council, as well as their respective traffic and town planning experts’ opinions, the court concluded that the council’s proposed condition 29 "goes beyond what is reasonably required by the subject development …" (at [44]).

The court found that the contribution proposed by Exchequer Property Finance would allow the upgrade of Doolong South Road to a safe and acceptable standard and was a reasonable response to the traffic impact generated by the proposed development. As such, the court allowed the appeal and amended condition 29 on similar terms as proposed by Exchequer Property Finance.

Exchequer Property contended that its contribution to future construction of Doolong South Road should be limited to the traffic impact generated by the proposed development

Exchequer Property Finance made a request to the council to change condition 29 of its development approval for the Parklands Estate to specify that the assessment of the contribution to future construction of Doolong South Road should be based upon traffic generated by the proposed development. This request was prompted as a result of a change of the status of Doolong South Road from a Traffic Distributor Road to Major Collector Road (bus route).

It was estimated by Exchequer Property Finance that the proposed development would generate about 12% of the traffic likely to use Doolong South Road. Based on an estimated cost of the road construction of $1,079,701, Exchequer Property Finance submitted that its contribution should amount to $129,564.12.

Exchequer Property Finance therefore proposed that condition 29 be amended on the following terms (at [11]):

29. In lieu of constructing kerb and channel together with all associated road widening and underground drainage for the full length of the existing Doolong South Road frontage to the development, the developer shall make a cash contribution towards the roadworks by Council in the amount of $129,564.12.

Council contended for a condition requiring that part of Doolong South Road fronting the proposed development to be upgraded to a Major Collector Road standard or alternatively Exchequer Property to pay the council of an amount equal to the upgrade cost

The council disagreed with Exchequer Property Finance’s proposal and contended for an amended condition 29 such that the relevant part of Doolong South Road fronting the proposed development would be upgraded in accordance with the council’s design requirements for a Major Collector Road (bus route) or in the alternative, a payment would be made to the council of an amount equal to the cost of the upgrade.

It was submitted by the council that, in the absence of its proposed condition 29, Doolong South Road might not be upgraded in the future where the other developments in the area, such as the Insight Estate and Ring Estate, did not proceed, and that the interim upgrade solution proposed by Exchequer Property Finance’s traffic expert would not provide a safe road or traffic outcome.

Court accepted that the interim road upgrade solution proposed by Exchequer Property would provide a reasonable and acceptable traffic outcome as it was sufficient to bring Doolong South Road to a safe reasonable standard which would accommodate the existing traffic and traffic generated by stages 3A and 3B of the proposed development

Both parties adduced expert evidence from their respective traffic and town planning experts. After having heard the evidence of the parties’ experts, the court preferred the evidence of Exchequer Property Finance’s traffic and town planning experts.

It was accepted by the court that the interim road upgrade proposed by Exchequer Property Finance’s traffic expert would accommodate the existing traffic and traffic generated by stages 3A and 3B of the proposed development and was sufficient to bring the road to a safe, reasonable standard. The court also observed that the interim road upgrade would provide a foundation for upgrading Doolong South Road to a Major Collector Road.

Further, the court accepted that the proposed 12% contribution would allow the council to carry out works which would adequately accommodate traffic demand generated by the proposed development and existing uses, in light of the fact that other developments in the area would be expected to contribute to the road construction or cost in the future.

The court therefore found that "the appellant’s proposal better reflects likely future development in the area and resultant cost sharing for ultimate construction of the road to Major Collector Road (bus route) standard. Only a small part of Parklands Estate will use this section of Doolong South Road whereas most, if not all, of Ring Estate and probably most of Insight Estate (recognising that there will be a road connection between Insight Estate and Parkland Estate) will use the road" (at [40]).

Court found that Exchequer Property’s proposal was a reasonable response to traffic likely to be generated by the proposed development and was not inconsistent with likely future residential development in the area

The town planning experts agreed that "the Ring and Insight developments would complete the urbanisation picture intended by the local plan" (at [43]).

The court accepted Exchequer Property Finance’s town planning expert’s opinion that the proposed "12% contribution" and the interim upgrade solution was an appropriate and reasonable response to the traffic generated by the proposed development, particularly given that the largest single contributor to urbanisation would be Ring Estate.

The court concluded that "[t]he contribution suggested by the appellant will allow the upgrading of the road to a safe (interim) standard, would be a reasonable response to traffic likely to be generated by the subject development, would not be inconsistent with likely future residential development in the area or inconsistent with the provisions of the planning schemes… It is of course a matter for the respondent whether it carries out the interim solution but the evidence is to the effect that any work now would not be wasted in future upgrading of the road" (at [45]).

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​