In brief

The case of Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council [2020] QPEC 50 concerned an appeal to the Queensland Planning and Environment Court against the Moreton Bay Regional Council's decision to impose a condition in respect of the dedication of land to the Council as road reserve in respect of a development application for reconfiguring two lots into 46 lots and an access easement for premises at Morayfield. 

The relevant condition, being condition 6, states as follows:

"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."

The appeal was heard and determined under the Planning Act 2016 (Planning Act), under which section 145 is the equivalent of section 665 of the Sustainable Planning Act 2009.

The applicant sought the deletion of condition 6 in its Notice of Appeal and subsequently changed its position to contend that it ought to be amended to record that the condition is imposed under section 128 of the Planning Act, being the power to impose a necessary infrastructure condition. 

The issue in the appeal was therefore:

"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) [of] 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 and timing of the development; and

(c) the development infrastructure is necessary to service the premises."

The Court held that the LGIP does identify adequate trunk infrastructure to service the subject premises and that the dedication required by condition 6 is not necessary to service the subject premises. The Court therefore upheld the imposition of the condition without the amendment, and dismissed the appeal. 

LGIP identifies adequate trunk road infrastructure to service the subject premises

The subject premises adjoins an unconstructed portion of Clark Road. The development permit did not require construction of Clark Road, however, condition 6 required an area adjacent to the unconstructed Clark Road to be dedicated at no cost to the Council. 

The Court heard evidence from the traffic engineering experts of the parties as to the adequacy of the existing and planned trunk road infrastructure.

The Council's traffic engineering expert opined that external access to the proposed development will be obtained via a road to the north and a road to the south, and the proposed dedication in condition 6 is necessary for future development beyond the planning horizon in the LGIP. The Applicant's traffic engineering opined that external access to the proposed development will be obtained via the same road to the south and via a different road to the west, and agreed that the LGIP identifies adequate trunk infrastructure to service the subject premises without the proposed road widening to which the dedication in condition 6 relates. 

Despite this, the Applicant contended that the LGIP is inadequate in its identification of trunk infrastructure. The Applicant's contention was based on the following arguments, with the Court's findings as stated.

  1. Clark Road, when constructed, will be a trunk road. The Court held this is not relevant to the conditioning power in section 128(2) of the Planning Act and that for a condition to be imposed under section 128(2) of the Planning Act the development infrastructure must be necessary to service the subject premises, which was not established on the evidence.

  2. Clark Road is to become a future trunk road. The Applicant sought to rely upon pre-lodgement meeting notes for another development in the same locality, which states "provision of road reserve widening is required on the Clark Road frontage to facility development of the Clark Road extension and provision of future connectivity for development of the Morayfield South Area." The Court found that the quote relied upon did not include pertinent words at the start of the sentence, being "Current concept planning (Clark Road Concept interim, Clark Road Concept ultimate) indicates that …", and that the words indicate that there is some uncertainty about the need for Clark Road to be upgraded.

  3. The planning scheme identifies Clark Road as a future trunk road. The Court was not convinced by the Applicant's argument and held that the planning scheme provisions relied upon do not identify the unconstructed part of Clark Road as trunk infrastructure but, rather, refer to it as a possible future trunk road.

  4. "Adequate trunk infrastructure" means development infrastructure required either now or in the future. The Court held that such an interpretation involved unnecessarily reading words into the provision.

  5. The traffic engineering experts agree that the dedication is required for the planned trunk road infrastructure network and the LGIP does not identify the land as trunk infrastructure. The Court did not accept the Applicant's interpretation of the evidence of the traffic engineering experts, and found that the evidence of the traffic engineering experts was that Clark Road is an indicative location of a potential future trunk road identified in the Council's long-term planning, but is not part of the identified infrastructure required under the LGIP for the period to 2031.

  6. The dedication will service the subject premises. The Applicant argued that the Council cannot argue, on one hand, that the dedication does not service the subject premises yet, on the other hand, argue that condition 6 can be imposed as a non-trunk infrastructure condition under section 145 of the Planning Act on the basis that the dedication is required to connect the premises to the external road infrastructure networks and is necessary to protect or maintain the safety or efficiency of the road infrastructure network. The Court found that the Applicant's submission misstated the Council's position, being that if the land to be dedicated does form part of a constructed Clark Road, it will connect the subject premises to the external road infrastructure networks, and the land will also protect or maintain the safety or efficiency of the road infrastructure network. The Court was not persuaded by the Applicant's argument, and held that it was open for the Council to say that the dedication meets the requirements of section 145 of the Planning Act, and that it does not meet the requirements of section 128 of the Planning Act.

Having dismissed the Applicant's six arguments, the Court found that it accepted the evidence of the traffic engineering experts and held that the LGIP identified adequate trunk infrastructure to service the subject premises.

Dedication is not necessary to service the subject premises

The Court accepted the evidence of the Applicant's traffic engineering expert, being that the land to be dedicated does not connect the proposed development to Clark Road and does not connect the proposed development to the external road infrastructure networks. The Court repeated its earlier findings that the access will be via road extensions to be constructed as part of the proposed development. The Court therefore held that the dedication in condition 6 is not necessary to service the subject premises.

Reservation about whether the Court could substitute a section 128 condition in place of a section 145 condition

In concluding, the Court expressed reservation about whether it could make the order sought by the Applicant. The Court noted that the decision to change a condition from a non-trunk infrastructure condition under section 145 of the Planning Act to necessary infrastructure condition under section 128 of the Planning Act is one for the Council to make under section 142 of the Planning Act after deciding a conversion application. Whilst the Court queried its power to make such an order, it did not make a finding on the matter. 

Conclusion

The Court dismissed the appeal and made an order allowing the Council to make an application for costs.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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