(Dorney QC DCJ - 30 July 2015)
Walker & Anor v Western Downs Regional Council [2015] QPEC 33

Appeal – whether conflict – what additional or alternative conditions (if any) to be imposed

Facts: This was a conditions appeal in respect of a development application for reconfiguration of a lot over land located at Watt Street, Dalby.

The development application sought to subdivide the site into two front lots with road access and two rear lots with two access driveways provided by reciprocal easements, which would run along the central boundaries of the two proposed front lots.

The development application required assessment against the Wambo Shire Planning Scheme, under which the site was contained in the "Rural" zone. Council's draft scheme, the Western Downs Planning Scheme, had been publically notified and was under review.

The conditions of Council's decision notice which were originally disputed were Conditions 1, 18, 24 and 28.

Condition 1.1(ii) required provision of a 20 metre road for access to the proposed rear lots. Condition 18.0 set out the basis for the new road with a provision for sealing. Condition 24 set out the requirements for the design and installation of street lighting. Condition 28 required the applicant to dedicate the road at no cost to Council.

A new schedule of conditions had been proposed by Council during the appeal and Council no longer contended that a road was required to provide access to the proposed rear lots. At the hearing, Council submitted that conditions should be imposed requiring that all lots be reoriented to run lengthwise, that access be provided to the "rear" lots by way of a 10 metre wide easement running along the northern boundary of the development and that provision be made for the potential dedication of a 10m wide portion of land to include the proposed easement area.

The applicant gave evidence at the hearing of the appeal which purported to show that battleaxe type access roads had been approved in a nearby area.

Decision: The Court held:

  1. There were severe limitations which should be placed on Mr Walker's evidence about the battleaxe access easements. In the end, the evidence should be given little weight. It was simply evidence that in a rural residential area it may be possible to have such an access.
  2. There was strong, continuing authority for the proposition that each development application was to be assessed on its own individual merits and that any other approval, even if proved to be an approval within the same scheme, did not act as a precedent.
  3. Based on the evidence, the new Council conditions were clearly preferable. They were relevant and did not place an unreasonable imposition on the development.
  4. There was undoubted conflict with the size of the lots under the current scheme, whichever proposal was preferred. However, there were sufficient grounds to justify the decision to approve the development application despite such conflict. This was because of the significance of the weight that was given to the new draft scheme, taken in conjunction with the proposed new Council conditions.
  5. Council's proposed access arrangements had a greater consistency with the requirements of the various codes in the draft scheme, which was the scheme underlying the reason why approval was at all possible. The Appellants had not discharged their onus in proving that the Council's conditions should not be imposed if the approval was to stand.
  6. The development application should be approved despite some identified conflicts. To alleviate the conflict it needed to be governed by conditions which were relevant to the development and were not an unreasonable imposition on the development. Only the Council's conditions met that standard.