Heath & Anor v Brisbane City Council

[3] Norman Street is a dead end residential access street, which runs west from its intersection with Ipswich Road (an arterial road). That intersection is restricted to left turns only. Vallely Street is also a local residential street, which runs parallel to Norman Street but is not a dead end street. It meets Ipswich Road at an intersection which is restricted to left turns only, but also has access, via Roy Street and Lagonda Street, to Venner Road.

[4] Due to an oversight on the Council's part, its decision notice was not forwarded to the submitters. Work commenced on the site, but ceased after the submitters were served and the present appeal was instituted. Some point was sought to be made, in the submissions of the appellants, to the effect that the co-respondent had "not come to this Honourable court with clean hands" but that is not helpful in resolving the issue for determination in this case, namely whether the development application ought to be approved, particularly in light of its access arrangements.

[5] The appellants initially raised a number of issues but, following a mediation, the residual dispute related to vehicular access and, in particular, that the majority of the units would gain access via Norman Street, rather than Vallely Street. Each of the submitters, including the appellants, are residents of Norman Street.

[6] The subject site falls within the Low-Medium Density Residential Area, within which development such as is proposed is "generally appropriate" impact assessable development (where it complies with the Residential Design - Low Density Character and Low-Medium Density Code). It is located within an established residential area, with excellent accessibility to public transport by rail, good accessibility to public transport by bus and excellent accessibility to existing or proposed pedestrian and cycle facilities.[1] These matters increase the convenience of the location for future residents and would tend towards lower vehicle dependency.[2]

[7] Mr Holland, the traffic engineer called by the appellants, conceded that the site falls within an area where greater density would be supported, from the traffic perspective.[3] Indeed, other examples of multi-unit dwellings can be found in the area, including in Norman Street itself, in which another such development, with access from that street, was in the course of construction during the hearing.

[8] The access issue is a confined one, relating to the use of Norman Street. It was pursued more on the basis of a concern for the convenience of the future occupants of the proposed new townhouses, than on the basis of a concern for impact on the road system or on existing residents in the street, including the appellants.

[9] The traffic engineers, in their joint report of 12 February 2008, recorded their agreement that:

"The traffic generations of the subject development would be low, and the subject development would not have a significant adverse impact on any part of the local road network."

Mr Holland confirmed his agreement to that proposition in his subsequent report[4] and in his evidence, where he volunteered that "you can't make a traffic problem out of five townhouses."[5] I accept the evidence of the traffic engineers in this regard and am satisfied that vehicular movements generated by the proposal would not result in significant adverse impacts for the local road system, including Norman Street.

[10] Mr Holland's point was that the development would better conform to general traffic planning principles and offer greater convenience for future residents, if all or most of the units gained access from Vallely Street rather than Norman Street. Access to that street provides for some trips to be made via the local street system, without the necessity of venturing onto Ipswich Road for all trips.

[11] In the joint report, Mr Holland described the access arrangements as:

"Unacceptable because the majority of residents would be forced to use Norman Street, thereby requiring all of their vehicle trips to use Ipswich Road (an arterial road), and to negotiate the inherently unsatisfactory intersection of Ipswich Road, Ekibin Road and Norman Street."

Mr Holland's report also referred to "potentially hazardous right turns across heavy oncoming south bound vehicles in Ipswich Road" and "a hazardous u-turn at the traffic signal controlled intersection of Ipswich Road and Venner Road".

[12] As Mr Trevilyan (the consultant traffic engineer called by the co-respondent) pointed out, the road system is an existing one, which has developed over many years. Mr Beard (the consultant traffic engineer called by the Council), acknowledged that the intersection of Norman Street is undesirably close to the Ekibin Road intersection, but did not accept that motorists were required to perform "hazardous" movements.[6] I note that, despite these matters, Mr Holland was not opposed to either existing or future development gaining access via Norman Street. Rather, he saw the opportunity to achieve a better outcome for the subject site, by making greater use of Vallely Street.

[13] Use of the expression "unacceptable", to describe the access arrangements, was not maintained by Mr Holland. His subsequent report, prepared for the purposes of the hearing, did not use the word "unacceptable" to describe the proposal. Rather, the report states that a "far superior" outcome would be achieved if the development were mirror reversed, in order to maximise the convenience of future residents of the development. In his oral evidence, Mr Holland said[7] that:

"... from an overall point of view I cannot look you in the eye and say I think this would be unacceptable if the development's approved from a community point of view. From the point of view of the residents of - the future residents of the development I think that the strongest I can say it would be - development would be a very unfortunate outcome ...".

In response to a question as to whether he was asserting that the outcome would be "unacceptable" for anybody, Mr Holland responded[8]:

"No, I'm not saying its - I'm not saying it's unacceptable, I'm saying that it would be very unfortunate from the view point of the residents of this development".

[14] Even on Mr Holland's evidence, the access arrangements, while not his preferred solution, will have no significant impact on the operation of the local road network and would not be unacceptable otherwise.

[15] Mr Trevilyan and Mr Beard did not cavil with the proposition that a proposal which gained access wholly or substantially from Vallely Street, would be more convenient for future residents of the proposal and would better reflect the general traffic planning principles to which Mr Holland referred. They did not however, see the proposed arrangements as unsafe or unacceptably inconvenient or otherwise calling for a refusal of the development application.

[16] Mr Beard, whose evidence I found balanced and persuasive (and which I prefer), said in his report:[9]

"For the reasons discussed in s 4.1 above, in my opinion, it would be preferable for the subject development to have all or most of its vehicle access via Vallely Street rather than Norman Street, since this would provide more convenient accessibility to the local and regional road system.

However, Norman Street already satisfactorily provides access to a number of other residential properties, including apparently, the residences of the appellants in this matter. Further, it was agreed in the joint report that the traffic generations of the subject development will be low, and would not have a significant adverse impact on any part of the local road network. Consequently, in my opinion, there is no basis, in respect of traffic engineering considerations, for the four proposed additional residential units having vehicular access via Norman Street to be reasonably considered to be unacceptable."

[17] In his oral evidence, Mr Beard acknowledged that the principles to which Mr Holland referred would more closely be attained if the majority of vehicle access was via Vallely Street, but went on to say that "it's marginally more desirable to have the access via Vallely but that's as far as you can go".[10] His evidence was also that the use of Ipswich Road does not represent any real or substantial problem, is certainly not intolerable and is no more inconvenient than "thousands of other places in the inner suburbs."[11] In his view "you couldn't possibly say that the development was unacceptable simply because it relied on access to Norman Street".[12]

[18] The access arrangements do not cause the proposal to conflict with the planning scheme. In his report, Mr Holland referred to certain provisions of the planning scheme which, he said, reflected appropriate traffic planning principles, but those provisions do not raise specific conflict with the subject proposal.

[19] In his submissions, Mr Heath (who represented all of the appellants) initially asserted that there was conflict with clause 3.1 of the Transport Access Parking and Servicing Planning Scheme Policy. His supplementary submissions however, properly conceded that clause 3.1 deals with the position of the access driveway, rather than the use of Norman Street to access the wider street system and that the proposal is in conformity with that section of the policy. Mr Heath's submissions also initially contended that there was conflict with performance criteria P16 and P18 of the Residential Design - Low Density Character and Low Medium Density Code. In his supplementary submissions however, Mr Heath also conceded that "the respondents' traffic solution is in compliance with those performance criteria."

[20] Mr Heath's supplementary submissions maintained that the proposal conflicts with one of the purposes of the code, which is to "encourage a multi-use development that provides a pleasant living environment for its occupants" but, even assuming that purpose extends to the convenience of the road system external to the site, I do not consider that the extent of inconvenience arising from the access arrangements is such as to result in the proposal failing to provide a "pleasant living environment" for its occupants.

[21] As already noted, Mr Holland did not suggest, as a general proposition, that existing or future development should not be permitted to use Norman Street for access. His opposition to the subject proposal was on the basis that the subject site's dual frontage provided an opportunity for a better choice, by making greater use of Vallely Street for access. This notion of choice underlay the evidence of Mr Holland and the appellant's submissions. They invited the court to choose between the co-respondent's proposal and Mr Holland's preference, on the basis of what would be more desirable from a traffic perspective. Indeed, Mr Heath contended that this was the only question before the court. The court's task however, is not that simple.

[22] Ultimately the court is called upon to determine whether the development application ought to be approved or refused. I do not take the mediation agreement between the parties as precluding the court from considering the significance of, or weight to be attached to, the proposal's failure to make greater use of Vallely Street for vehicular access, in deciding whether the appeal ought be allowed or discussed.

[23] As the court has said on numerous occasions, its role does not generally include redesigning a particular proposal or conducting an inquiry as to whether a better proposal might possibly be formulated. As Brabazon QC DCJ said in Wingate Pty Ltd v Brisbane City Council 2001 QPELR 272 at 276:

"... It is not the function of the court to redesign a proposal. Its function is to pass judgment on that which is proposed. In this case, the issue is whether or not the current proposal has been shown to be acceptable. The fact that some alternative proposal may be thought to be even more acceptable is by the way. If the current proposal is acceptable, then that is enough."[13]

[24] It is, of course, open to the court to attach conditions to an approval. Those conditions will sometimes require minor changes to a development. On rare occasions the application might itself present a choice of alternatives. It is not however, within the power of the court to consider a change to the application, on which the decision being appealed was made, unless the change is only a minor change.[14] It is also inappropriate for the court to use its conditions power to, in effect, approve a different form of development.[15]

[25] The "mirror reversing" suggested by Mr Holland would likely involve more than a minor change to the application. That was conceded in the appellants' supplementary submissions, which also confirmed that the orders sought by them would allow the appeal and refuse the development application, rather than impose conditions requiring a "mirror reversing" of the proposal.

[26] The choice before the court is whether the subject application ought to be approved, not whether it ought to be approved in its current form, or in a form which is mirror reversed. Ultimately, what Mr Holland and the appellants would have the court do, is to refuse an acceptable proposal in the expectation or hope that this would be the catalyst for the co-respondent (or another developer) to bring forward a different proposal which is equally meritorious in other respects, but which has a preferable access arrangement. To proceed on that basis in this case would be speculative and inappropriate.

[27] The court has no power, in the context of these proceedings, to require anyone to make a further development application or to pursue a different proposal. Whether a developer chooses to make a development application or to carry out development is, of course, influenced by many factors, including commercial considerations. I would not be prepared to assume that refusal of the subject application would necessarily provoke a further development application for a similar, but "mirror reversed", form of development. Further, I would not be prepared to speculate on the form of a future application or whether it would necessarily be equally meritorious in other respects.

[28] I note the evidence of Mr Tracey, a bachelor of architecture, who has been involved in the subject proposal, as well as the design of other townhouse developments. His evidence demonstrated that changing the access arrangements may well raise other issues. It is however, unnecessary for me to go into those matters in detail since in any event, I do not consider it appropriate to refuse this appropriate and acceptable proposal simply because a proposal with a different arrangement (which Mr Beard would describe as marginally preferable[16]) might conceivably or possibly be proposed.

[29] I am satisfied that the co-respondent has discharged the onus of demonstrating that the appeal should be dismissed and the development application approved. Ultimately, the only issue raised against its approval was the proposals reliance on Norman Street for access for four out of the five townhouses. Use of that access would have no significant adverse impact upon the local road network and is otherwise acceptable. That it might be possible to devise a different proposal which, by reason of a greater use of Vallely Street, is somewhat preferable from one perspective, does not persuade me that this application ought to be refused.

[30] The appeal will be dismissed in due course, but I will adjourn the further hearing to permit the parties to consider the conditions of approval.

[13] See also Ross Neilson Properties Pty Ltd v Brisbane City Council & Anor; Yu Feng v Brisbane City Council & Others [2007] QPEC 3; [2007] QPELR 323 at 329 para 35, Wickford v Gold Coast City Council [1988] QPELR 193 at 195G.

[15] Compare Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99.