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
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:
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.
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
Based on the evidence, the new Council conditions were clearly
preferable. They were relevant and did not place an unreasonable
imposition on the development.
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
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.
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.
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