High Court Allows Appeal on Land Subdivision Conditions

OUTCOME: Allowed

High Court of Australia Gibbs CJ Mason, Wilson, Brennan and Dawson JJ [NAME] v [COMPANY] [1984] HCA 39

ORDER Appeal allowed; matter referred back to [ADDRESS] to consider whether the appellant's conditions are reasonably required by the subdivision. 25 June 1984 Gibbs CJ.

This is an appeal from the [ADDRESS] of the Supreme Court of Queensland which, by a majority, dismissed an appeal from a decision of the [ADDRESS]. The [NAME], [RESPONDENT], the owner of [NAME] in the [NAME] of Cardwell in North Queensland, applied to the appellant, the Council of the [NAME] of Cardwell, for permission to subdivide the [NAME] into nineteen blocks of various sizes, aggregating about 600 hectares.

The council approved of the proposed subdivision [NAME] to the four following conditions:

(a) An amount of $25,000 be contributed towards future costs involved in the Davidson Creek Bridge replacement.

(b) Provide an extension of the existing bitumen surfaced roadway on the [ADDRESS] to a point 100 metres past the turnoff to the second road. This road to be equal in width and standard to the standard at the last section of bitumen.

(c) The internal roads to provide a bitumen surfaced turnout to each extending 25 metres from the [ADDRESS] centre line and then extend as a gravel paved road of minimum width 4.3 metres pavement, 8 metres shoulder width and minimum gravel depth of 200 millimetres. Adequate stormwater drainage to be provided.

(d) The engineering plans of roads to be submitted and approved before acceptance of any guarantee or signing of the survey plan.

The respondent appealed to the [ADDRESS] seeking an order that the council approve of the application for subdivision free from any of the conditions. [ADDRESS], [NAME] Judge Given, DCJ, allowed the appeal. He ordered that conditions (a) and (b) should be deleted, that condition (c) should be varied, and that condition (d) should remain, but relettered as condition (b).

Access to the [NAME] is given by [ADDRESS] which leads from the [ADDRESS] to and beyond the [NAME] [NAME]. At one point the road crosses Davidson Creek by a bridge. Condition (a) required the respondent to contribute $25,000 towards the cost of a new bridge over Davidson Creek. There is evidence that the total cost of a new bridge would range between $300,000 and $450,000. Condition (b) required the respondent to provide a bitumen surface for the road along the southwestern boundary of the [NAME] [NAME]. At [NAME] there is some bitumen on that portion of the road but the condition would require an extension of the bitumenized surface. As to condition (c), [NAME] Judge Given said that the [NAME] accepted it as reasonable so far as one of the internal roads was concerned because that road comes out on to a sealed portion of [ADDRESS] not far from the Davidson Creek bridge, but opposes it in relation to the second road which will meet [ADDRESS] where it is at [NAME] unsealed and will remain unsealed unless condition (b) continues to be imposed.

By s 34(10) of the Local Government Act 1936 Q, a local authority to which an application for subdivision is submitted may approve of any such application, or approve [NAME] to conditions, or disapprove. However, a restriction is imposed on the nature of the conditions that may be imposed by s 33(16c) of the Local Government Act which, so far as it is material, provides as follows:

(a) It shall be unlawful for the Local Authority in the case of an application—

(i) for exclusion of [NAME] from a zone and the inclusion of the [NAME] so excluded in another zone;

(ii) to open a new road or subdivide [NAME]; or

(iii) for approval, consent or permission to use [NAME] or use or erect any building or other structure for any purpose,

to [NAME] the approval of that application to a condition that is not prescribed by the scheme or by by-law or reasonably required by the re-zoning of the [NAME], the opening of the new road, the subdivision of the [NAME], the use of the [NAME] or the use or erection of the building or other structure in respect of which the application relates.

There is no relevant scheme or bylaw in the [NAME] case so that the council had power to impose the conditions only if they were "reasonably required by the subdivision of the [NAME]". By s 28(3) of the City of Brisbane Town Planning Act 1964 Q, which is applied by s 34(15) of the Local Government Act, an appeal from a decision of the [ADDRESS] lies only on the ground of error or mistake of law or want or excess of jurisdiction.

The learned District Court judge made findings of fact in a passage so important that it is necessary to cite it in full. He said:

[ADDRESS], not forgetting that it is in a rural area, carries a considerable volume of traffic. It would seem that the volume of this traffic has increased steadily over the years. The increase is due to a substantial extent to more concentrated use of the [NAME] in the area for agricultural rather than other, particularly for grazing, purposes. I gather that [NAME] largely do not live on the block but live in Tully and travel with staff to their blocks. It is thought this would be the likely pattern on the [NAME] [NAME] if this subdivision goes ahead. However, whether that turns out to be the case or not, development of this subdivided [NAME], in my view, can do none other than increase traffic on [ADDRESS] and wear and tear on the bridge, which is now about thirty years old.

The appellant (that is, the [NAME]) argues that increased traffic after development under the subdivision cannot be related to the subdivision because if the appellant itself put the whole area under crops there would still be the same trucks carrying the same fertilizer, etc, to the [NAME] and the same trucks carrying produce to market as there would be after subdivision. To put it another way, the [NAME] will grow the same number of melons or bunches of bananas if worked as a unit or as up to nineteen separate units. While largely there is substance in these assertions, the argument ignores the point that in fact the appellant not only does not, with the exception of one small area, crop the [NAME]; it has no intention of so doing. It wants to subdivide and sell nearly all the blocks. It therefore seems clear to me that the development of the [NAME] by way of subdivision will directly create more wear and tear on [ADDRESS] and the bridge. Indeed, it is hard not to accept the evidence from the [NAME] that traffic generated by the subdivision will significantly shorten the life of the bridge.

Having made those findings, [NAME] went on to state the conclusion which he reached in the following words:

Despite what I have been saying, and however sympathetically one may be disposed to the financial and political problems of the respondent (that is, the appellant [NAME] council) in its [NAME], I do not think these conditions complained of can be allowed to stand. No attempt is made to justify such conditions on the basis of being necessary for access to the subdivision or for drainage purposes; nor could it be. The benefit from the imposition and the carrying out of such conditions would not be enjoyed exclusively by [NAME]: it would be by those persons and generally by other members of the public who use [ADDRESS] and the bridge. In no relevant sense can it be said that there is some requisite nexus, identification or relationship between the development and the purpose to which the contribution is to be put or the moneys expended on sealing [ADDRESS]; nor can it be brought within other similar terms used in the cases. It seems to me that the conditions complained of are not within power and cannot stand.

In the Supreme Court the learned judges who constituted the majority of the [ADDRESS] concluded that upon analysis of the judgment of [NAME] Judge Given it appears that [NAME] was applying the test whether the conditions fairly and reasonably related to the subdivision and that he answered that question in favour of the respondent. On the other hand, [NAME], who dissented, considered that the judge appears to have wrongly thought that the conditions could not be imposed unless they were necessary for access or drainage purposes or unless the benefits arising from their imposition would be used exclusively by [NAME].

The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the [NAME] is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce — for example, in a case such as the [NAME], the increased use of the road and of the bridge — and to impose such conditions as appear to be reasonably required in those circumstances.

In the [NAME] case, the learned District Court judge found, amongst other things, that traffic on the road and wear and tear on the bridge would be increased by the subdivision of the [NAME]. It is difficult to reconcile with that finding the statement that there is no requisite nexus, identification or relationship between the development and the purpose to which the contribution is to be put or the moneys expended on sealing [ADDRESS]. There seems to be an obvious connection between the effect of a subdivision which causes an increased use of roads and bridges and a condition that the subdivider should, by making a reasonable contribution, assist in defraying the costs incurred in meeting the consequences of the extra wear and tear that is expected. [NAME]'s earlier reference to the principles laid down in the authorities, and his later citation of cases, his remarks support the view that when he said that the conditions were not within power, he meant exactly what he said. It does appear that he considered that the conditions could be imposed only if they were necessary to provide access or drainage to the [NAME] or if they provided a benefit to the [NAME] which would be enjoyed exclusively by persons [NAME] with the [NAME]. This is a test more stringent than the law allows and in applying it [NAME] erred in law.

For those reasons I consider that the appeal should be allowed and that the matter should be referred back to the [ADDRESS] to decide, in the light of this judgment, whether those or any other conditions are reasonably required by the subdivision.

[NAME] J.

I agree.

[NAME].

I agree.

[NAME] J.

I agree.

[NAME].

I agree.