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Lake Maroona Pty Ltd v Gladstone Regional Council[2017] QPEC 25

Lake Maroona Pty Ltd v Gladstone Regional Council[2017] QPEC 25

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

CITATION:

Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25

PARTIES:

LAKE MAROONA PTY LTD

Appellant

v

GLADSTONE REGIONAL COUNCIL

Respondent

FILE NO/S:

4722/16

PROCEEDING:

Appeal

DELIVERED ON:

10 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 12 April 2017

JUDGE:

Bowskill QC DCJ

ORDER:

The appeal against the Council’s refusal of a request for an extension of the relevant period of the development approval is allowed.  The parties will be heard in relation to the appropriate form of order(s), and as to costs.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against Council’s refusal of a request to extend the relevant period of a development approval – scope of the decision-making process under s 388 of the Sustainable Planning Act 2009 – meaning of “the consistency of the approval … with the current laws and policies applying to the development” in s 388(1)(a) of that Act

PLANNING AND ENVIRONMENT – Approval for a multiple unit residential development under previous planning scheme – where under current laws and policies applying to the development, including the Gladstone Regional Council Planning Scheme 2015, the land is within the low density residential zone, the purpose of which includes “to provide for predominantly detached dwelling houses… supported by some community uses and small-scale services and facilities that cater for local residents” – meaning to be given to “predominantly” – consistency of the development approval with the current planning scheme.

Sustainable Planning Act 2009 (Qld), ss 383, 388, 465

Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190

Cleveland Power Pty Ltd v Redland Shire Council [2013] QPELR 406

CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412

Dem Gillespies v Warringah Council (2002) 124 LGERA 147

Fortress Freeholds Pty Ltd v Brisbane City Council [2016] QPEC 63

Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750

Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126

Mantle v Sunshine Coast Regional Council [2015] QPELR 745

Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21

SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

COUNSEL:

K Wylie for the Appellant

M Batty for the Respondent

SOLICITORS:

Project Legal for the Appellant

MRH Lawyers for the Respondent

Introduction

  1. [1]
    Lake Maroona Pty Ltd owns land on Sun Valley Road, in Kin Kora, a suburb of Gladstone.  Having purchased a larger parcel, including this land, in 1989, Lake Maroona has progressively developed and sold parts of it.[1]  Following an application lodged in 2008, on 26 March 2012 the Council granted final approval for development of the subject land, in the form of a material change of use, for the purposes of a multiple unit residential development, originally for 31 units, but subsequently reduced to 28 units.[2] 
  2. [2]
    More recently, in 2016, Lake Maroona obtained operational works approval, building approval and plumbing and drainage works approval.[3]   Some building and plumbing works commenced this year in accordance with those approvals.[4]
  3. [3]
    The relevant time period for the development approval was that which applied under s 3.5.21(1) of the Integrated Planning Act 1997, being four years.[5]  So it would have expired on 26 March 2016.  In April 2015 Lake Maroona applied, under s 383 of the Sustainable Planning Act 2009, to extend the relevant period for two years.[6]  The Council only allowed an extension of one year.[7]   In September 2016 Lake Maroona made another application under s 383, this time seeking an extension of three years. The reasons articulated for seeking this extension included that, at the time construction was planned to begin (2013/2014), the town was experiencing a building boom, making the cost of construction uneconomical and labour unprocurable, so it was considered prudent to “hold off trying to start construction”; and an issue with the Council’s flood mapping of the adjacent Tigalee Creek, which at one stage showed the land inundated with flood water, as a result of which the detailed design of the development was paused, but which was later corrected to show this was not the case.[8]  It appears from Mr Allen’s affidavit this correction did not occur until early 2016.[9]
  4. [4]
    Although no work was carried out on the subject site until 2017, it is apparent from Mr Allen’s affidavit that a number of other steps were being taken in relation to the proposed development, in particular, in endeavouring to ensure compliance with the conditions of the development approval, and responding to various information requests from the Council.[10]  Although I accept the Council’s submission that the reason for the delay in carrying out the approved development is not directly relevant under s 388(1) of the Planning Act,[11] it is also fair to say, as submitted on behalf of Lake Maroona, that this evidence shows that Lake Maroona has not been “endlessly luxuriat[ing] in an approval, without acting upon it”.[12]
  5. [5]
    The second extension request was refused by the Council on 15 November 2016.[13]    The decision notice issued on 16 November 2016 does not articulate reasons for the refusal, saying only that “it was resolved to refuse the request in accordance with S388 of the Act”.[14]
  6. [6]
    By this proceeding Lake Maroona appeals, under s 465 of the Planning Act, from the Council’s refusal to extend the period of the approval.  The appeal is by way of hearing anew (s 495(1)), and it is for Lake Maroona to establish that the appeal should be upheld (s 493(4)). 
  7. [7]
    For the reasons set out below, I have concluded that the appeal ought to be allowed.

Extending the period of a development approval – relevant principles

  1. [8]
    Section 383 of the Planning Act provides for a person to ask for an extension of the relevant period of a development approval.  Section 388 deals with how the assessment manager decides such a request:

“388 Deciding request

  1. (1)
     In deciding a request under section 383, the assessment manager must only have regard to –
  1. (a)
     the consistency of the approval, including its conditions, with the current laws and policies applying to the development, including, for example, the amount and type of infrastructure contributions, or charges payable under chapter 8, parts 2 and 3; and
  1. (b)
     the community’s current awareness of the development approval; and
  1. (c)
     whether, if the request were refused –
  1. (i)
     further rights to make a submission may be available for a further development application; and
  1. (ii)
     the likely extent to which those rights may be exercised; and
  1. (d)
     the views of any concurrence agency for the approval given under section 385.”
  1. [9]
    Only s 388(1)(a) to (c) are relevant in this case.
  2. [10]
    The words used in s 388 to frame the scope of the assessment manager’s (or on an appeal, this court’s) decision-making process – “must only have regard to” – do not appear elsewhere in the Planning Act.
  3. [11]
    In Cleveland Power Pty Ltd v Redland Shire Council [2013] QPELR 406 at [21] Andrews SC DCJ accepted that s 388(1) “does not contemplate that any one of the four considerations is intended to prevail and it does not contemplate that a failure to comply with one of the criteria mandates refusal”.   Similarly, in Mantle v Sunshine Coast Regional Council [2015] QPELR 745 at [25]-[26] and [28] Rackemann DCJ said that:

“The matters referred to in s 388 of the SPA are matters for consideration.  They are not preconditions.  None of the stated considerations must necessarily prevail.  The matter is one of discretion, to be exercised in the circumstances of each case having regard to the specified considerations.

I accept, however, the submissions on behalf of the appellant, that current community awareness of the development approval, the potential availability of public submission rights and the likelihood of their exercise may become weightier considerations where there is also significant inconsistency between the approval and the planning documents, being the primary source of reasonable expectations.

…

That is not to say, however, that community awareness of the approval and the potential availability and likely exercise of submission rights are irrelevant if there is consistency between the approval and existing laws or policies.”

The current laws and policies

  1. [12]
    It may be accepted that the relevant laws and policies include the Planning Act and the applicable planning scheme.
  2. [13]
    The development was originally approved under the 1991 Planning Scheme for the City of Gladstone.  Although the application was lodged in January 2008, and at that time the 2006 Planning Scheme was in force, the legislation in force at the time permitted an application for development approval to be made and assessed under a superseded scheme, which is what occurred in this case.   There is now in force a new planning scheme, the Gladstone Regional Council Planning Scheme 2015, which commenced on 12 October 2015.  

Meaning of “consistency … with the current laws and policies”

  1. [14]
    The phrase “consistency of the approval … with the current laws and policies applying to the development” in s 388(1)(a) is to be contrasted with the language of s 326(1), that an assessment manager’s decision “must not conflict with a relevant instrument”.  In planning law conflict is accepted as meaning “to be at variance or disagree with”.[15]
  2. [15]
    There do not appear to be any decisions which address the meaning of consistency in the context of s 388.
  3. [16]
    The ordinary meaning of the word “consistency”, as reflected in the Macquarie Dictionary, is “agreement, harmony, or compatibility”.  The definition in the Oxford English Dictionary is to the same effect (the “quality, state, or fact of being consistent; agreement, harmony, compatibility (with something, of things, or of one thing with another”)).  “Consistent” is relevantly defined in the former as “agreeing or accordant; compatible; not self-opposed or self-contradictory” and, similarly, in the latter as “agreeing or according in substance or form; congruous, compatible”.
  4. [17]
    In New South Wales there are two lines of authority as to the meaning of consistent, in the context of planning instruments requiring the opinion by a consent authority that a proposed development be “consistent with the zone objectives”.
  5. [18]
    One stems from a decision of Pearlman CJ in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 where her Honour said:

“The guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.”

  1. [19]
    The other stems from the decision of Bignold J in Dem Gillespies v Warringah Council (2002) 124 LGERA 147 at [65] to [74], in which the phrase was interpreted, in accordance with what was said to be its natural and ordinary meaning, to mean “compatible” or “capable of existing together in harmony”.   Bignold J observed that “antipathetic” suggests a much stronger and narrower connotation than “inconsistent” and is thus not a true synonym of the term (at [73]).
  2. [20]
    A brief survey of decisions of the New South Wales Land and Environment Court since Gillespies indicates different approaches have been taken by different members of that court.
  3. [21]
    However, I note that in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45] Biscoe J agreed with the Gillespies approach, noting the definition of “consistent” in the Macquarie Dictionary as above.  In Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14 Craig J also expressed a preference for the Gillespies approach, saying, at [42] to [43]:

“… In Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 Clarke JA stated that, in the context of the provisions there being considered, the paragraph was intended to prohibit ‘antipathetic development’. Subsequently, that meaning was attributed to provisions of local environmental plans requiring development to be ‘consistent’ with identified objectives (Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Mackenzie v Warringah Council [2002] NSWLEC 131 at [98] and the cases there cited). More recently, the ordinary meaning of ‘consistent’ has been applied to such provisions.  In Gillespies v Warringah Council (2002) 124 LGERA 147, Bignold J considered the meaning of the word in the context of planning instruments requiring the opinion by a consent authority that a proposed development be ‘consistent with the zone objectives’. In that context, his Honour considered at [70] that the word ‘consistent’ should assume its ordinary meaning and should not be confined to the notion of a proposed development that is ‘not antipathetic’ to a zone objective.

According to the Macquarie Dictionary (online) that meaning is: ‘1. agreeing or accordant; compatible; not self-opposed or self-contradictory.’ It seems to me that, in the present context, it is appropriate to regard ‘consistent’ as being synonymous with ‘compatible’ (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).”

  1. [22]
    There is not much assistance to be gained as to the intended meaning from the explanatory notes to the Sustainable Planning Bill 2009.  There, in relation to what became s 388(1)(a), it is said that:

“The older a development approval becomes, the less it is likely to conform with current community expectations, reflected in the relevant laws and policies applying for assessment of such development.  Equally, infrastructure contributions or charges previously payable may not reflect the scope or quantum of charges now payable.”

  1. [23]
    And in relation to what became s 388(1)(b):

“… In some localities, population changes may mean that a significant proportion of the current community may not originally have had an opportunity to comment or make submissions about the development, and may be unaware of the development and its likely impact on its neighbourhood.  This is particularly important if the development was inconsistent with the relevant planning scheme and other laws and policies at the time of approval, or has since become inconsistent.”

  1. [24]
    I prefer the approach taken in Gillespies, and followed in the cases referred to at paragraph [21] above.  I am unable to discern any reason why a narrower meaning, than the natural and ordinary meaning of the word “consistency”, ought to be adopted in construing s 388(1)(a).  
  2. [25]
    It seems to me that meaning is, even if only subtly, different from the notion of “conflict”.  In this regard, I respectfully adopt the observation of Sackville J in Flanagan v Australian Prudential Regulation Authority (2004) 138 FCR 286 at [47] that “there is a certain elasticity about the expression” “consistency … with”.  
  3. [26]
    In my view, the approach to be taken, under s 388(1)(a), in considering the consistency of the approval with current laws and policies, is to consider whether the approved development is compatible with, in the sense of being capable of existing in harmony with, current laws and policies.  This may well be a more flexible concept than the concept of whether the development conflicts with the planning scheme, the consideration required in the primary assessment phase.  Development may still be compatible, even if at variance with some aspect of the planning scheme.
  4. [27]
    Before leaving this, it is appropriate to record that neither party made submissions about the meaning to be given to “consistency” in s 388(1)(a), and they have not had the opportunity to address the NSW cases I have referred to.  I have adopted the meaning of “consistency”, having regard to those divergent authorities, which is consistent with the ordinary meaning of the word (and which may be said to be more beneficial to the unsuccessful party in this case).  But the conclusion I have reached in this matter would be the same, whichever approach was adopted.[16] This is not a determinative issue in this case; perhaps it will be in another, in which case it can be dealt with in more detail, on the basis of submissions from the parties.

Relevance of s 326(1)(b) “grounds”?

  1. [28]
    One last aspect of the construction of s 388(1)(a) needs to be dealt with, which was the subject of submissions before me.  That is whether, in considering the consistency of the approval with the current laws and policies, it is appropriate to consider whether there are sufficient grounds to justify the approval, despite any inconsistency (or conflict).  That is of course a concept built into the primary approval process, under s 326.  Lake Maroona submits that s 326(1)(b) “grounds” are relevant to determining the “quantum of inconsistency, and whether such inconsistency would require refusal of this appeal”.[17]  In oral submissions, counsel for Lake Maroona contended that the process under s 388(1) is effectively a re-assessment process.[18] The Council submits the concept of grounds has no role to play.[19] 
  2. [29]
    My view is that the consideration called for by s 388(1)(a) is not a revisiting of the approval process, but a broader consideration of the consistency (or compatibility) of the approval with current laws and policies.  If the view is formed that the approval is inconsistent with current laws and polices – not compatible with it – I do not think that conclusion can be altered by consideration of “grounds”.  However, as the authorities referred to at paragraph [11] above demonstrate, a conclusion of inconsistency does not necessitate a refusal of the requested extension.  As even the explanatory notes contemplate, an approval may originally have been granted where the development was inconsistent with the laws and policies applying at the time it was originally granted – and plainly that is a matter that would need to be considered, in determining the extension request, having had regard to all of the matters in s 388(1)(a) to (d) (as relevant).   Ultimately, as Rackemann DCJ said in Mantle at [25], the matter is one of discretion, to be exercised in the circumstances of each case having regard to the specified considerations. 

The location of the site, and the approved development

  1. [30]
    The land the subject of the approved development is located on the southern side of Sun Valley Road, Kin Kora, Gladstone.  It has an area of 1.197 hectares, is irregularly shaped, mostly cleared of vegetation and, having been recently filled as part of the operational works approval, is generally flat with only a slight gradient falling to the south towards the Tigalee Creek boundary.[20] 
  2. [31]
    On the other (northern) side of Sun Valley Road, there is a series of five duplexes, also developed by Lake Maroona.  West of the duplexes is vacant, undeveloped land, previously owned by Lake Maroona, but sold to another developer.[21]  To the east of the duplexes, on the northern side of Sun Valley Road, there is a child care centre and the Kin Kora State School.[22]  
  3. [32]
    To the south, the land is bounded by Tigalee Creek, across from which there is vacant land, owned by Lake Maroona.  Beyond that, to the south, is the Moura railway line and then a number of multi-unit developments and conventional residential housing.[23]   To the west of the land is a heavily vegetated area of vacant land, also owned by Lake Maroona.[24]  
  4. [33]
    To the east, immediately adjoining the land, there is a large shopping centre, “Sun Valley Road Market Place”, with a large “Supa IGA” store, a range of specialty stores and medical suites.  Adjoining that, further to the east, there is a multi-unit development, which is said to be similar in form to that proposed on the land.  Beyond that, is Maroona Park.[25] 
  5. [34]
    The approved development is a multiple unit residential development comprising 28 units, in a 2-storey townhouse format.  The units are proposed to be constructed in 3, 4 and 5 unit blocks, in 8 stages.[26]   Stage 1 is a 5 unit block (referred to as a quinplex by the Council), fronting Sun Valley Road.

Construction of the planning scheme – relevant principles

  1. [35]
    Determining the consistency of the approved development with the current planning scheme involves construing the meaning of relevant parts of the scheme.  The same principles which apply to statutory construction apply to the construction of planning documents.[27]
  2. [36]
    However, the fact that planning documents are to be construed in the same way as statutes “still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes”.[28]  In the passage just referred to, the decision of this court in Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at 342 was cited with apparent approval.  There, Britton SC DCJ summarised a number of principles applicable to the construction of planning schemes, including (omitting the references cited):
    1. (a)
      they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;
    2. (b)
      they should be construed as a whole;
    3. (c)
      they should be construed in a way which best achieves their apparent purpose and objects;
    4. (d)
      statements of intents or aims or objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;
    5. (e)
      a strategic plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;
    6. (f)
      a strategic plan should be read broadly and not pedantically;
    7. (g)
      although planning documents have the force of law they are not drawn with the precision of an Act of Parliament.
  3. [37]
    It is also relevant to refer to the decision of Rackemann DCJ in SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, in which the process of using “performance based” codes in a planning scheme was addressed.  At [47] to [48] of that decision his Honour said:

“… The performance criteria are generally outcome focussed, while the acceptable solutions indicate a ‘desirable’ way to ‘ensure’ compliance.  The acceptable solutions however, are not the only solutions.  Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.

It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or a ‘dispensation’. It is another way of achieving compliance with the relevant performance criterion.”

Gladstone Regional Council Planning Scheme 2015

  1. [38]
    Under the 2015 planning scheme, the land is within the low density residential zone, as is all the land on the northern side of Sun Valley Road.  The shopping centre to the east is within the neighbourhood centre zone.  The existing multiple unit development further to the east is within the medium density residential zone.  The vacant land to the west and south is within the limited development zone (constrained land).[29]
  2. [39]
    Within the low density residential zone, the use of the land for multiple dwellings (in contrast with a “dual occupancy” or “dwelling house”)[30] is not listed in table 5.5.1, and therefore is impact assessable, in accordance with the planning scheme.[31]
  3. [40]
    Lake Maroona contends that the approved development is consistent with the 2015 planning scheme provisions.  The Council says it is not – primarily on the basis that the proposed development is for a use not contemplated in the low density residential zone.[32]

Relevant provisions

  1. [41]
    Part 6 of the planning scheme deals with zones.  As explained in section 6.1(1) “[z]ones organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses”.
  2. [42]
    The low density residential zone code is set out in section 6.2.1.  The purpose of this code is set out in section 6.2.1.2, and includes the following:

“1. The purpose of the Low density residential zone is to provide for predominantly detached dwelling houses within existing suburban areas supported by some community uses and small-scale services and facilities that cater for local residents.  Development is low rise, consistent with the low density character of the region’s existing suburban areas.

  1. The purpose of the zone will be achieved through the following overall outcomes:
  1. (a)
     A range of housing, predominantly detached dwelling houses and some dual occupancy, on appropriate lot sizes.
  1. (b)
     Buildings are of a scale, height and size that reflect a low density suburban character and create an attractive streetscape.  …”
  1. [43]
    The assessment criteria are set out in section 6.2.1.3, by reference to performance outcomes, accompanied by some acceptable outcomes.  In particular, the following were referred to:

Built form

PO3

Buildings:

  1. (a)
     are low rise
  1. (b)
     do not create unreasonable overshadowing on adjoining residential properties, and
  1. (c)
     do not adversely impact on the low density residential character and amenity of the area.

Note – Setbacks for Dwelling house and Dual occupancy in this zone are regulated in the Queensland Development Code.  Shadow diagrams must be prepared that demonstrate compliance with this performance outcome where building height exceeds the corresponding acceptable outcome.  These diagrams must address the impacts of overshadowing between the hours of 9am to 3pm on 21 June.

AO3.1

Building height does not exceed 8.5m and 2 storeys about ground level.

AO3.2

Maximum site cover is 50% or where a dual occupancy 40% of the total site area.

Residential density

PO4

Development reflects the low density character of the area.

AO4.1

Residential density is a maximum of:

  1. (a)
     one dwelling house (including 1 secondary dwelling) per lot, or
  1. (b)
     one dwelling per 400m2 where a dual occupancy.

AO4.2

Where a dwelling house, any secondary dwelling is:

  1. (a)
     a maximum of 80m2 GFA
  1. (b)
     located within 10m of the main building
  1. (c)
     linked to the main building by a defined footpath in the most direct route possible.
  1. [44]
    Reference was also made to parts of the strategic framework, set out in part 3 of the planning scheme, for example:
    1. (a)
      within one of the themes of the strategic framework, “community living”:
      1. (i)
        one of the strategic outcomes is that “low density dwelling houses occur in existing suburban neighbourhoods and to a lesser extent rural and coastal places and rural residential areas” (section 3.4.1(5)) – it was uncontroversial that the land is within an existing suburban neighbourhood;[33]
      2. (ii)
        one of the elements of the “community living” theme is housing growth (section 3.4.2).  In this section, it is noted that population in the Gladstone region is expected to increase between 30,000 and 60,000 people from 2014 to 2031.  It is also said that the bulk of population and housing growth is to be accommodated within new neighbourhoods, and that “[h]ousing growth will be balanced by approximately 20% infill development, predominantly in the form of attached housing at varying densities, in well located urban revitalisation neighbourhoods, mixed use centres and the Gladstone CBD.  Low density housing occurs in existing suburban areas in the Low density residential zone, rural residential areas and in rural and coastal places which reflect the existing situations of these well-established areas.  Infill development is not supported here.”
      3. (iii)
        another of the elements of the “community living” theme is “housing mix and affordability”, in respect of which it is said:

“Residential development provides for a mix of housing types that support a wide range of housing needs throughout the region.  These are expressed in detached and attached residential building typologies in relevant zones in urban revitalisation areas, mixed uses centres and the Gladstone CBD.  Dwelling houses and dual occupancy also contribute to the housing mix in existing suburban neighbourhoods and in rural and coastal townships and rural residential areas.”

  1. (iv)
    another of the themes is “Building it Better:  Our Urban Areas”, the strategic outcomes of which include, in section 3.6.1(6), that “[e]xisting suburban areas remain as low density suburban neighbourhoods dominated by dwelling houses.  Residential development must maintain the prevailing low density suburban character of these areas”;
  2. (v)
    one of the elements of this theme deals with “existing suburban areas”, in respect of which it is said: 

“Existing suburban areas represent well established low density residential neighbourhoods in the region’s major urban areas. They are dominated by dwelling houses on medium to large residential lots located in the Low density residential zone. 

Existing suburban areas remain unchanged apart from limited dual occupancy housing forms only where development maintains low density residential character.  Infill development including higher density attached housing is not appropriate in existing suburban areas in the Low density residential zone.”

Consistency of the approval with the current laws and policies applying to the development

Expert evidence

  1. [45]
    In order to assist the Court in determining the issues, the parties adduced expert evidence from town planners:  Mr Chris Schomburgk for Lake Maroona and Mr Denis Brown for the Council.  The town planners’ evidence is contained in the JER, as well as an additional individual statement from Mr Schomburgk (exhibit 2).
  2. [46]
    The focus of the experts’ evidence was on the relevant parts of the 2015 planning scheme, in particular the low density residential zone code and the strategic framework.  As recorded in [29] of the JER, “the land is affected by a number of Overlays (Acid Sulphate Soils, Airport, Building Heights, Bushfire, and Flood Hazard – a small portion along the creek) but none of these affect the development approval in any material way”.[34]  Accordingly, it is unnecessary to address these.
  3. [47]
    Mr Schomburgk was of the opinion that the approved development is consistent with the relevant current laws and policies.[35]  In so far as the strategic framework is concerned, among other things, Mr Schomburgk said, by reference to section 3.4.2, “the approved development is low density housing and contributes to a ‘range’ of housing”.  He observed that the “site’s location fronting a major road for this neighbourhood, and abutting an established centre, and noting the surrounding land use mix which includes duplexes and multi-unit developments, the subject development is, in my opinion, consistent with these stated intentions”.[36]
  4. [48]
    Mr Schomburgk also said:

“Section 3.6.1 sets out the Strategic Outcomes for urban areas and notes that ‘urban redevelopment and higher density housing occurs in urban revitalisation neighbourhoods across identified residential neighbourhoods and mixed use centres’.  The subject development is not higher density housing, so any suggestion that this type of development belongs in a higher order zone (as the Council’s refusal implies) fails, in my opinion, because those higher order zones are intended for higher density development than that which is the subject of this appeal – a low density form of multi-unit housing.

Section 3.6.1(6) would appear to be at the heart of the Council’s concerns and seeks to ensure that ‘existing suburban areas remain as low density suburban neighbourhoods dominated by dwelling houses.  Residential development must maintain the prevailing low density suburban character of these areas’.  As described above, the subject site is within a neighbourhood that currently comprises detached dwellings, a series of duplexes (directly across the road), a shopping centre, and some low-density multi-unit development.  The subject development is, in my opinion, entirely consistent with [the] low density character of this particular neighbourhood.”[37]

  1. [49]
    In relation to the purpose of the low density residential zone code, set out in section 6.2.1.2(2), in particular subsection (a), Mr Schomburgk expressed the opinion that the approved development satisfies and is consistent with these provisions, and said:

“While it will be a matter for the Court, I do not take (a) above to require only single detached houses or dual occupancy.  The term ‘predominantly’ must have a meaning in this context, and the approved development will not detract for [sic, from] the predominant form of detached dwelling houses in this Zone, or indeed, in this particular neighbourhood.  The approved development is consistent with all other overall outcomes, being a maximum of 2 storeys, residential scale, high level of amenity, and proximate to transport infrastructure (as well as a range of social infrastructure – school, shops, parks).”[38]

  1. [50]
    In relation to the assessment criteria, Mr Schomburgk was of the opinion that each of the performance outcomes in PO3 (built form), as well as both acceptable outcomes AO3.1 (building height not to exceed 2 storeys) and AO3.2 (maximum site cover) are met.[39]  In relation to PO4 (residential density), Mr Schomburgk was of the opinion that the approved development does reflect the low density character of the area.  Although he agreed that acceptable outcomes AO4.1 and AO4.2 are not met, since they are both concerned with dwelling houses,[40] Mr Schomburgk considered that guidance as to what “low density” means can be taken from AO4.1(b), which refers to one dwelling per 400m2.   He said this ratio is met, in fact bettered, in relation to the approved development, which has a ratio of one dwelling per 428m2.[41] 
  2. [51]
    Mr Brown, who gave evidence for the Council, was of the opinion that the approved development “is not of Low Density character, and is not intended on the subject land within the current Planning Scheme”.  He considers that the development is not consistent with the current planning scheme.[42]  Mr Brown confirmed, in his oral evidence, that his opinion is that, on a proper construction of the 2015 planning scheme as a whole, only detached dwelling and dual occupancy residential uses are suitable for the low density residential zone.[43]
  3. [52]
    In Mr Brown’s opinion, the approved development “can only sensibly be understood as being infill development”, which “is not intended in existing urban areas in the Low density residential zone, which is the situation under consideration in relation to the subject land”.[44]   Mr Brown noted that the approved development is impact assessable under the 2015 planning scheme (which is uncontroversial); whereas multiple dwelling development is code assessable in both the low-medium density residential zone and the medium density residential zone – which he says reflects the intent for higher density housing in those areas, as distinct from the provisions relating to the low density residential zone.[45]
  4. [53]
    In relation to the assessment criteria, Mr Brown was of the opinion that PO3 (built form) and its acceptable outcomes AO3.1 and AO3.2, ought to be interpreted as referring only to dwelling houses and dual occupancy buildings, having regard to the “note” which appears below PO3 (which refers only to dwelling houses and dual occupancy), and therefore said that “[t]he subject development, which is for a multiple dwelling development, is not provided for within the acceptable outcomes for this zone in this code”.[46]    However, Mr Brown accepted that, if his construction of PO3 and AO3 was incorrect, the proposed development would comply with AO3.1 and AO3.2.[47]
  5. [54]
    Similarly, because the approved development is a multiple dwelling development, not comprised of dwelling houses or dual occupancy development, Mr Brown was of the opinion that none of PO4, AO4.1 or AO4.2 are satisfied – because those provisions are all concerned with dwelling houses and dual occupancy.[48]
  6. [55]
    Mr Brown focussed upon the width of the buildings comprising the proposed development, saying:

“The proposed development incorporates a built form which consists of several buildings which have dimensions including a width of 48.9metres (‘quinplex’), 36.15metres (‘quadraplex’) and 29.36metres (‘triplex’) which is well in excess of any Dual occupancy form of development [which Mr Brown opined would have a building width of either 17 metres or 25 metres when on a corner lot].

The intended built form in the Low density residential zone is for ‘predominantly detached dwelling houses and some dual occupancy’.  The proposal is inconsistent with this intent as it is for predominantly higher density forms of development which is not in keeping with the low density character intended for the area.”[49]

  1. [56]
    On the matter of whether the approved development is “infill development”, Mr Schomburgk strongly disagreed.  Addressing this in his individual statement of evidence, he said:

“… it is my opinion that the subject development, a low density housing form on a vacant parcel of land in an established low-density suburban area, is simply low density residential development.  It is not ‘infill development’ which connotes redevelopment or higher density development, and it is not ‘greenfield development’, which connotes development into an otherwise undeveloped area, nor is it a ‘revitalisation area’…

… in the context of this planning scheme, ‘infill development’ connotes more than the development proposed for the subject site, and instead considers more intense development, in the context of both housing density and the land area developed, such that the development could make a significant and measurable impact upon meeting the Scheme’s housing growth targets.

What we have in the case of the development of this site, is a landowner seeking to develop a vacant site in an established suburban area.  Such development does not warrant a specific label or town planning description, as these other forms listed above might, but rather is merely development that occurs in the ordinary course of a neighbourhood becoming further established.”[50]

  1. [57]
    Mr Brown said no more about this matter in his oral evidence; and it is not an issue that was emphasised in any way in either party’s submissions.  In the circumstances,  I prefer Mr Schomburgk’s evidence on this issue to that of Mr Brown, given the detailed consideration given to it by the former, which was neither answered by Mr Brown, nor shaken in cross-examination of Mr Schomburgk.

Construction of the relevant provisions

  1. [58]
    To a significant extent, the issues in this proceeding turn on the meaning to be given to the statement of the purpose of the low density residential zone in section 6.2.1.2(1) and (2)(a) and (b), in particular the meaning and effect of the word “predominantly” in this context.
  2. [59]
    Lake Maroona submits that the term “predominantly” in these provisions is not to be mistaken with “exclusively”, and that a planning scheme’s preference for certain types of development in particular areas cannot be read so as to operate as a prohibition on other development types.[51]  The Council, in effect, submits that the statement of the purpose of the low density residential zone means that “the use of multiple unit dwellings is a use that is not contemplated in this zone”.  The effect of the Council’s submission is that the reference to “predominantly detached dwelling houses” and “predominantly detached dwelling houses and some dual occupancy” means that multiple unit dwellings are not contemplated.[52]  The Council submits this conclusion is also supported by the parts of the strategic framework (referred to above)[53] as well as by the fact that use for a multiple unit development is impact assessable; that other zones explicitly encourage multiple unit dwellings; and also by reference to the “planned density table”[54] (the relevance of which to the present issues was not ultimately established).[55]
  3. [60]
    As explained in oral submissions, the Council submitted that the proper construction of section 6.2.1.2(1) is that what is sought is predominantly (effectively, meaning only) detached dwelling houses, with the only exception to that being what follows, in the words “supported by some community uses and small-scale services and facilities that cater for local residents”,[56] although the Council acknowledged, including by reference to section 6.2.1.2(2)(a), that dual occupancy is also contemplated.[57]     
  4. [61]
    Lake Maroona relied on Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126 and CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412 in support of its contention as to the proper construction to be given to the use of the word “predominantly” in the context of this planning scheme.
  5. [62]
    The Council submitted that those decisions were distinguishable, because in each of them, the relevant planning scheme provisions were in terms that made it apparent the contentious use was actually contemplated in the relevant area.  So for example:
    1. (a)
      in Gracemere, the overall outcomes for the relevant precinct – the “Town – Highway Precinct” were in the following terms:

“(i) Land within the Precinct is predominantly used for vehicle orientated businesses which retail bulky durable goods and require large showroom areas, as well as for retail showrooms and combined retail and warehouse uses;

…

  1. (v)
     The inclusion of caravan parks, indoor entertainment, motels, food premises and hotels is minimised; as they are generally not compatible with the uses in the Precinct.”[58]
  1. (b)
    in CPT Manager, the overall outcomes for the relevant area, the “Town-Light Industrial Precinct” were:

“(i)  Land within the Precinct is predominantly used for low impact industrial uses including manufacturing, processing, repairing, packing and storage, landscape supplies, vehicle depots, and warehouses;

…

  1. (v)
     Other uses not in the Industrial Use Class such as service industries and uses which directly serve employees of industrial uses eg food premises, are also located within the Precinct where such uses do not have significant impacts upon the operation or amenity of surrounding uses.”[59]
  1. [63]
    It may immediately be accepted that the content of the relevant provisions is different – in the sense that, here, in the 2015 planning scheme, there is not the additional reference to “other uses”, whether that is in terms of such other uses being “minimised” or otherwise.
  2. [64]
    Notwithstanding these differences, in my view, there are two points to be taken from these cases, which are apposite to the construction issue here:
    1. (a)
      first, the point made in Gracemere at [23] that:

“When the section says the predominant use of the Highway precinct is to be large retail showrooms and the like, and a minimised use of the precinct for motels and hotels, it is expressing a preference for development in very general terms.  The section gives great flexibility to the Council when approving developments.  It eschews rigidity of category of use and the prohibition of particular uses.”[60]

This was reiterated in CPT Manager at [39], where Chesterman JA observed that “[t]he expression of preference and discouragement are, as in Gracemere, very generally expressed giving rise to a Planning Scheme of great flexibility”.

Similarly, here, in section 6.2.1.2(1) and (2) – there are no prohibitions; but a clear expression of a preference for particular types of residential housing, supported by some community uses and small-scale services and facilities that cater for local residents.   There are no similar expressions of discouragement, such as there were in Gracemere or CPT Manager.  But that does not mean the expressed preference ought to be interpreted in an exclusive manner.

  1. (b)
    second, the point made in CPT Manager, as to the meaning of the word “predominant” in this context.  As Chesterman JA observed, at [36], “[b]y referring to predominant use the outcome expresses a preference, but does not exclude other uses”.
  1. [65]
    That second point is consistent with the ordinary meaning of the word “predominantly”, as “in a predominant manner; to a predominant degree… largely, chiefly, for the most part”; and of “predominant”, relevantly, as “constituting the main, most abundant, or strongest element; prevailing, preponderating”.[61]  As Robin QC DCJ succinctly observed in Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750 at [16], “predominantly does not mean exclusively”.[62]
  2. [66]
    The Council relied upon my decision in Fortress Freeholds Pty Ltd v Brisbane City Council [2016] QPEC 63 as supporting its argument.  That was an appeal against the Council’s deemed refusal of development approval for a warehouse (more particularly, a self-storage facility), which on the evidence was a large-scale, non-residential, commercial development, on land within the low density residential zone under Brisbane City Plan 2014.  I found that this proposed use of the land was in conflict with, inter alia, the low density residential code which included, as part of the statement of the purpose of the code, a provision in terms of the first sentence of section 6.2.1.2(1) in the 2015 planning scheme in issue in this case.  In that case, the appellant/developer argued that this provision simply described the predominant uses for the zone, but did not purport to identify or discourage the range of uses that could fall outside those uses which are to predominate; that is, because the code was “silent” on the proposed use (self-storage facility), the conclusion was open, having regard to the planning scheme provisions more generally, and the context of the site, that the proposed development was appropriate on the site (at [31] and [32]).  I rejected this submission, saying (at [32]):  “[a]lthough [the code] does not expressly discourage large-scale non-residential, commercial or industrial uses, which will cater for a broader market than the local residents, that is implicit in what it does provide for and encourage”.  There were a number of other provisions of the relevant planning scheme which I found the proposed development to be in conflict with as well.
  3. [67]
    There was no particular consideration given to the meaning of the word “predominantly” in Fortress Freeholds, save for consideration of whether, as a matter of construction, that word related to the phrase “dwelling houses”, or to the whole of the composite phrase “dwelling houses supported by community uses and small-scale services and facilities which cater for local residents”.  I accepted the Council’s argument that it was the former, such that the predominant form of development intended to occur in the zone was “dwelling houses”, with those dwelling houses being supported by community uses and small-scale services and facilities which cater for local residents (at [30(a)]). 
  4. [68]
    The conclusion in Fortress Freeholds that there was conflict with the low density residential code provisions, among others, was not reached on the basis that the reference to the purpose of that code as being to provide for “predominantly dwelling houses…” meant that was the only use contemplated.  The conclusion was reached taking into account a number of provisions and parts of the applicable planning scheme, and having regard to the nature of the development, being a large-scale, non-residential, commercial use, which it was accepted did not cater only for local residents.
  5. [69]
    I do not regard Fortress Freeholds as being of any assistance in determining the issues in this case; and certainly do not regard that decision as authority for the proposition that where the word “predominantly” appears in a planning scheme provision such as the ones presently under consideration, that ought to be read as “only”, or as excluding any other uses or forms of development.  As to the former, that is not consistent with the ordinary meaning of the word; and as to the latter, such a conclusion will in each case depend on the particular nature of the proposed development, and the particular provisions of the planning scheme concerned.
  6. [70]
    In my view, the proper construction of the statements of purpose in section 6.2.1.2(1) and (2)(a) is that they express a clear preference for detached dwelling houses, and some dual occupancy, to predominate within the low density residential zone – that is, that such housing types are to constitute “the main, most abundant, or strongest element” within the relevant area, but that other types of (in particular) residential development are not excluded or prohibited, or necessarily in conflict with, or inconsistent with the purpose of the code.  Relevantly, other housing types which are “low rise”, “consistent with the low density character of the region’s existing suburban areas” (section 6.2.1.2(1)), in buildings which “are of a scale, height and size that reflect a low density suburban character and create an attractive streetscape” (section 6.2.1.2(2)(b)) are also contemplated, as part of an overall outcome that sees a “range of housing … on appropriate lot sizes” (section 6.2.1.2(2)(a)) provided.
  7. [71]
    The Council’s proposed construction, in my view, fails to give any meaning to the word “predominantly” where it is used in the relevant provisions.  

Consistency of the approval with the current planning scheme provisions

  1. [72]
    In relation to the assessment criteria relating to built form (PO3, AO3.1 and AO3.2), I do not consider that there is any basis to conclude that these ought to be construed only as contemplating dwelling houses or dual occupancy development.  Mr Brown relied upon the note below PO3 to reach this conclusion.  Whilst notes are part of the planning scheme (see section 1.3.2(3)), it is clear from the content of the note that it is concerned with a particular issue, namely, overshadowing (one aspect of the performance outcome in PO3), and does not have the effect of limiting the meaning to be given to “buildings” in these provisions to dwelling houses or dual occupancy developments.   Putting this aspect of Mr Brown’s analysis to one side, there was no dispute otherwise that the approved development meets both the acceptable outcomes, in relation to built form.  Mr Schomburgk was also of the view that PO3 is met (Mr Brown was not asked to comment, and I infer he would say PO3(c) was not met in any event).  I am persuaded by Mr Schomburgk’s evidence in this respect, which is, in terms of PO3, that the buildings:
    1. (a)
      are low rise;
    2. (b)
      do not create unreasonable overshadowing on adjoining residential properties; and
    3. (c)
      do not adversely impact on the low density residential character and amenity of the area.
  2. [73]
    That leaves PO4 in relation to “residential density”:  whether the “development reflects the low density character of the area”.   Mr Schomburgk’s opinion is that the approved development is “low density” in nature.  He reaches that conclusion, in part, by reference to the ratio of one dwelling per 400m2 referred to in AO4.1, which Mr Schomburgk said “give[s] considerable guidance as to what is referred to throughout the document as ‘low density’”[63] (the approved development has a ratio of one dwelling per 428m2, calculated by reference to the total area divided by the number of proposed units).  He also takes into account the building height of two storeys, and overall site coverage of approximately 31%.[64] 
  3. [74]
    Mr Brown’s evidence is that the approved development is not “of Low Density character”.[65]  He refers in this regard to the width of the largest of the buildings comprising the development (the five unit block, having a width of about 48 metres).  After referring to the intended built form in the low density residential zone being for predominantly detached dwelling houses and some dual occupancy, Mr Brown says “[t]he proposal is inconsistent with this intent as it is for predominantly higher density forms of development which is not in keeping with the low density character intended for the area”.[66]
  4. [75]
    There is no definition of “low density” in this context; nor was I referred to any authorities dealing with the meaning of the term.
  5. [76]
    In the circumstances, I am persuaded by the evidence of Mr Schomburgk on this point also, in terms of the approved development reflecting the low density character of the area in question.   The Council did not dispute that it was appropriate to take into account the density ratio referred to in AO4.1, in determining the meaning of “low density”; but argued that the building width was a significant factor to take into account, both in terms of built form and residential density.   That may well be right (although it is not something expressly referred to in either PO3 or PO4), but ultimately the evidence before me, which I accept, is that the approved development is, despite being for multiple dwellings, low density in nature, comprising buildings which will not adversely impact on the low density residential character and amenity of the area (PO3(c)) and which reflect the low density character of the area (PO4).
  6. [77]
    PO4 is concerned not only with the development itself, but also with the relationship between the development and the low density character of the area – so consideration of the particular locality is important.   Mr Brown’s opinion that multiple dwellings are simply not contemplated in the low density residential zone (a conclusion I do not accept, as a matter of construction) has clearly framed his opinion as to consistency with the assessment criteria.  As I have said, his conclusion that the buildings are in excess of what is intended in this zone focusses on the width of the proposed buildings; but he does not address the other matters raised by Mr Schomburgk, in terms of built form or residential density, nor does he address the development in its particular location.[67] Mr Schomburgk has identified a number of factors pointing to consistency with low density indicators (building height; site coverage; and the density ratio specified of one dwelling per 400m2) and also addressed the approved development in its particular context – concluding that:

“… the subject site is within a neighbourhood that currently comprises detached dwellings, a series of duplexes (directly across the road), a shopping centre, and some low density multi-unit development.  The subject development is, in my opinion, entirely consistent with [the] low density character of this particular neighbourhood.”[68]

  1. [78]
    Assisted as I was by a view of the site of the approved development, and its context on Sun Valley Road, I accept Mr Schomburgk’s evidence in this regard.
  2. [79]
    In addition, I also accept Mr Schomburgk’s evidence that the approved development would not detract from the predominance of detached dwelling houses in the relevant zone, or indeed in the particular surrounding neighbourhood.[69]  In so far as the strategic outcome in section 3.6.1(6) is concerned, the existing suburban area will remain as a low density suburban neighbourhood, dominated by dwelling houses; and the approved development will maintain the prevailing low density suburban character of this area.   Without addressing each expressly, I broadly record my preference for Mr Schomburgk’s analysis, in relation to the strategic framework provisions, to that of Mr Brown (affected as the latter is, in my view, by an unduly narrow construction of the purpose of the low density resident zone).
  3. [80]
    That the approved development is not the predominant form of housing contemplated for this zone does not mean that it is incompatible with, or inconsistent with, the relevant planning scheme provisions.
  4. [81]
    In summary, in relation to s 388(1)(a), in my view the approved development has a considerable degree of consistency with the current laws and policies, relevantly the 2015 planning scheme.  

Community awareness

  1. [82]
    The next matter to be addressed is the community’s current awareness of the development approval (s 388(1)(b)).
  2. [83]
    I accept that it is reasonable to infer a general level of community awareness of the approved development, having regard to the following:
    1. (a)
      the public notification of the original application for approval in August 2011, in response to which there were no submissions made;[70]
    2. (b)
      the location of the site, on a busy road (Sun Valley Road), with high exposure and visibility to people accessing the neighbouring shopping centre, school and other surrounding facilities;
    3. (c)
      the clearing of the subject site, and the recent carrying out of works, in accordance with the operational works approval; and
    4. (d)
      the publication of an article in the local newspaper, the Gladstone Observer, following the Council’s decision to refuse to extend the relevant period.[71]
  3. [84]
    In addition, there is evidence that the owner (developer) of the presently vacant land across the road from the site is aware of the approved development;[72] and of the 10 residences comprising the duplexes across the road, 5 were owned by the same people at the time of the previous public notification, who can also therefore be inferred to be aware of it,[73] and to have spoken to their neighbours about it.[74]  Lake Maroona is the owner of the vacant land to the west, and to the south of the subject site.   It has, since 2011, sold the neighbouring land to the east to the shopping centre owner.[75]
  4. [85]
    Mr Brown raised two other matters which he said in the JER would affect community awareness:  the length of time since the original approval (and changes in planning intent since that time), together with changes in economic climate in the Gladstone region.[76] But he accepted in cross-examination that changes to the planning scheme would not affect community awareness; and likewise changes in the economic climate are not relevant either - the community is either aware of the proposed development, or it is not.[77]
  5. [86]
    Although the Council submits there has been a “population change” in the relevant area (that phrase being taken from the explanatory notes in relation to s 388(1)(b)), it is apparent that submission is made by reference to the change in ownership of 5 of the 10 residences comprising the duplexes across the road.   I do not think that is what is contemplated as population change, a phrase which has a broader connotation, in my view.  This point is made apparent in the explanatory notes to s 388(1)(c), where it is said that it may be more likely the community would exercise available rights to make a submission “if a significant proportion of the current community did not live in the area when the original application was considered”.    Evidence of change in ownership of 5 of the 10 residences over the road from the approved development is not, in my view, evidence of “population change” in this broader context.

Likelihood of submission

  1. [87]
    The third matter to consider is whether, if the request for an extension were refused:
    1. (i)
      further rights to make a submission may be available for a further development application; and
    2. (ii)
      the likely extent to which those rights may be exercised (s 388(1)(c)).
  2. [88]
    As to s 388(1)(c)(i), if a new development application were required to be made, there would be a right to make submissions, as the proposal would be impact assessable. 
  3. [89]
    So the question is, in terms of s 388(1)(c)(ii), what is the likely extent to which those rights may be exercised?
  4. [90]
    When it was made, the application was also impact assessable.  As I have already noted, it attracted no submissions.  Mr Schomburgk expressed the opinion that:

“… the development has not changed in any material way since it was publicly notified.  Importantly also, the low-density nature of the development and its ‘island’ location with no residential neighbours suggest that no persons are likely to be affected by a new application, and thus it would be unlikely that any new submissions would be made”.[78]

  1. [91]
    In his oral evidence, Mr Schomburgk referred again to the situation of the subject land as “effectively an island”, with no immediate neighbours other than the shopping centre to the east.  He referred also to the five duplexes across Sun Valley Road, and the undeveloped land further to the west, adjacent to the duplexes.  Mr Schomburgk said:

“So the only persons likely to be affected would be the residents of those five duplexes.  They overlook the site.  They would be aware that something is going on from the site from the activity…  if they took the opportunity to inquire about an application were it to be lodged, they would see that it’s a low-density form of development – low-density, low-rise form of development, not dissimilar to what they themselves are living in.  I don’t see why they would object to the proposal.  They overlook it, but it is proposed to be low-rise and landscaped along the front edge, etcetera.  The normal things about which an interested resident might object would be things like increased noise, increased traffic, increased lighting that would directly affect their own personal amenity.  I don’t consider that those issues would arise at all for those residents in those duplexes across the road.  So to the west is vacant, undeveloped land.  To the south is Tigalee Creek with a substantial vegetation buffer.  So I don’t expect there would be objections from persons to the west or to the south across the creek.  So in summary, it’s my opinion that it’s unlikely that persons would make an adverse submission to the application were it to be lodged today.”[79]

  1. [92]
    In the JER Mr Brown was of the opinion that “for the reasons outlined above”, which I take to be the length of time since the original approval was granted, and the changes in planning scheme since then, as well as the changes in the economic climate in Gladstone, he considers that there would likely be adverse submissions made relating to the proposed development.
  2. [93]
    It has been approaching six years since the previous public notification of the proposed development.  That someone might wish to make a submission, were a new application required to be made, cannot be completely discounted.  But in circumstances where I have found there is a considerable degree of consistency of the approval with the current planning scheme,[80] I am not persuaded that such a possibility warrants refusal of the extension request.

Conclusion

  1. [94]
    For the reasons set out above, in my view it is appropriate to grant Lake Maroona’s request to extend the relevant period of the development approval.   Accordingly, the appeal will be allowed.  I note that the period requested by Lake Maroona was a period of 3 years.  No submissions were made about this at the hearing before me (the position of the Council essentially being all or nothing).  However, I propose to publish my reasons, and invite any further submissions as to the terms of the appropriate order, in case either party wishes to be heard about this, and also in relation to costs.

Footnotes

[1]  See the affidavit of Mr Grahame Allen, Managing Director of Lake Maroona, at [7], [8], [12], [75] and exhibits, p 2.

[2]  See the plan annexed to Mr Allen’s affidavit at exhibits, p 92.  See also the Joint Experts Report – Town Planning (exhibit 1) (JER) at [18].

[3]  Mr Allen at [18], and exhibit GMA4, commencing at exhibits, p 35.

[4]  Mr Allen at [14] and [18].

[5]  Mr Allen at [17], [19] and exhibits, pp 2 and 3

[6]  Mr Allen at [20] and exhibit GMA5.

[7]  Mr Allen at [20] and [21] and exhibit GMA6.

[8]  Mr Allen at [22] and exhibit GMA7.

[9]  Mr Allen at [52].

[10]  Mr Allen at [29]-[44], [53]-[58], [59]-[65] and [66]-[74].  See also Mr Allen’s oral evidence at T 1-19.

[11]  Council’s written submissions at [120].

[12]  Lake Maroona’s written submissions at [50], referring to Mantle v Sunshine Coast Regional Council [2015] QPELR 745 at [32].

[13]  Mr Allen at [23] and exhibit GMA8.

[14]  Mr Allen at GMA8.

[15]Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at [23].

[16]  Cf New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [25]-[29] per Lloyd J.

[17]  Lake Maroona’s written submissions at [36].

[18]  T 1-81.

[19]  Council’s written submissions at [126]-[129].

[20]  JER at [10] and [11].

[21]  Mr Allen at [76].

[22]  JER at [13].

[23]  JER at [16].

[24]  Mr Allen at [75] (Mr Allen refers to the “Site to the East”, being Lot 3 on SP152520, but it appears this is the area of vacant land to the west).  JER at [15].

[25]  JER at [14].  See also figures 1, 2, and 3 (at pp 20-22 of the JER).

[26]  JER at [17], and the site plan at p 30 (also MFI “A” at p 93).

[27]Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [52], referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71] and [78].

[28]Zappala at [56] per Morrison JA.

[29]  JER at [23] and figure 4 at p 23.

[30]  See the definitions of each of dual occupancy, dwelling house and multiple dwelling in schedule 1 to the planning scheme.

[31]  See part 5, section 5.5, table 5.5.1 and sections 5.3.2(1) and 5.3.3(5) of the planning scheme.

[32]  Council’s submissions at [64].

[33]  T 1-35.

[34]  See also T 1-24 to 1-28.  The Council did not press any contention that there may be inconsistency by reference to any of these overlays.

[35]  JER at [28]; see also oral evidence at T 1-22.

[36]  JER at [30].

[37]  JER at [31]-[32].

[38]  JER at [35]; also at [38].

[39]  JER at [26]; T 1-45.24.

[40]  T 1-29.

[41]  JER at [26].

[42]  JER at [59].

[43]  T 1-47.10.

[44]  JER at [63] and [69].

[45]  JER at [68].

[46]  JER at [53]; see also T 1-52.36-.44.

[47]  T 1-53.3.

[48]  JER at [49]-[50].

[49]  JER at [56]-[57], see also [55].

[50]  Exhibit 2 at [5]-[7].

[51]  Lake Maroona’s written submissions at [22].

[52]  Council’s written submissions at [64], [67], [75] and [77].

[53]  Council’s written submissions at [78].

[54]  Council’s written submissions at [79]-[89]. 

[55]  See T 1-64 and T 1-79.

[56]  See at T 1-62. 

[57]  Council’s written submissions at [67], [68] and [75].

[58]Gracemere at pp 130-131 [12].

[59]CPT Manager at pp 413-414.

[60]  Emphasis added.

[61]  Oxford English Dictionary Online.  The Macquarie Dictionary relevantly defines “predominant” and “predominantly” as prevailing.

[62]  In that case, the relevant planning instrument contained a specific outcome 1 which envisaged development for “predominantly low density” urban residential development characterised by single dwellings on urban lots; specific outcome 7 relating to non-residential development envisaged that “development provides for a limited range of non-residential uses where it can be demonstrated that the amenity and character of the residential area is maintained”.

[63]  T 1-43.35.

[64]  JER at [26], [30], [31], [33], [36], [37] and [38].  See also [8]-[13] of exhibit 2 (Mr Schomburgk’s individual statement of evidence).

[65]  JER at [59].

[66]  JER at [56], [57] and [59].

[67]  Although Mr Brown agreed, in cross-examination, that both the density of the actual proposed development and the receiving environment are relevant to PO4:  T 1-52.

[68]  JER at [32].

[69]  JER at [35] and [38]; and T 1-22.

[70]  JER at [70] and [71].

[71]  Mr Allen at [75]-[79] and GMA-10.

[72]  Mr Allen at [76].

[73]  Mr Allen at [75]; and T 1-14.

[74]  Mr Brown at T 1-54.30.

[75]  Mr Allen at [8], [12]-[13] and [75]; JER at [70].

[76]  JER at [76]-[78].

[77]  T 1-53 to 1-54.

[78]  JER at [80].

[79]  T 1-23.

[80]  Cf Cleveland Power Pty Ltd v Redland Shire Council [2013] QPELR 406 at [23] and Mantle v Sunshine Coast Regional Council [2015] QPELR 745 at [26].

Close

Editorial Notes

  • Published Case Name:

    Lake Maroona Pty Ltd v Gladstone Regional Council

  • Shortened Case Name:

    Lake Maroona Pty Ltd v Gladstone Regional Council

  • MNC:

    [2017] QPEC 25

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    10 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

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Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
3 citations
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Cite 1 - [2008] NSWLEC 190
Cite 2 - [2008] NSWLEC 190
Cite 3 - [2008] NSWLEC 190
Cleveland Power Pty Ltd v Redland Shire Council (2013) QPELR 406
3 citations
Jump To
Cite 1 - (2013) QPELR 406
Cite 2 - (2013) QPELR 406
Cite 3 - (2013) QPELR 406
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185
1 citation
Jump To
Cite 1 - (1991) 74 LGRA 185
CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412
3 citations
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Cite 1 - (2010) 174 LGERA 412
Cite 2 - (2010) 174 LGERA 412
Cite 3 - (2010) 174 LGERA 412
Dem Gillespies v Warringah Council (2002) 124 LGERA 147
3 citations
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Cite 1 - (2002) 124 LGERA 147
Cite 2 - (2002) 124 LGERA 147
Cite 3 - (2002) 124 LGERA 147
Flanagan v Australian Prudential Regulation Authority (2004) 138 FCR 286
1 citation
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Cite 1 - (2004) 138 FCR 286
Fortress Freeholds Pty Ltd v Brisbane City Council [2016] QPEC 63
2 citations
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Cite 1 - [2016] QPEC 63
Cite 2 - [2016] QPEC 63
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750
2 citations
Jump To
Cite 1 - [2010] QPELR 750
Cite 2 - [2010] QPELR 750
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor (2009) 175 LGERA 126
3 citations
Jump To
Cite 1 - (2009) 175 LGERA 126
Cite 2 - (2009) 175 LGERA 126
Cite 3 - (2009) 175 LGERA 126
Mackenzie v Warringah Council [2002] NSWLEC 131
1 citation
Jump To
Cite 1 - [2002] NSWLEC 131
Malua Bay Inc v Perkins (2014) 203 LGERA 14
2 citations
Jump To
Cite 1 - (2014) 203 LGERA 14
Cite 2 - (2014) 203 LGERA 14
Mantle v Sunshine Coast Regional Council [2015] QPELR 745
4 citations
Jump To
Cite 1 - [2015] QPELR 745
Cite 2 - [2015] QPELR 745
Cite 3 - [2015] QPELR 745
Cite 4 - [2015] QPELR 745
New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303
1 citation
Jump To
Cite 1 - (2003) 127 LGERA 303
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21
3 citations
Jump To
Cite 1 - (1992) 77 LGRA 21
Cite 2 - (1992) 77 LGRA 21
Cite 3 - (1992) 77 LGRA 21
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
2 citations
Jump To
Cite 1 - (2007) QPELR 24
Cite 2 - (2007) QPELR 24
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
2 citations
Jump To
Cite 1 - (2004) QPELR 337
Cite 2 - (2004) QPELR 337
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 273
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
3 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
Cite 3 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
Andema Pty Ltd v Noosa Shire Council [2020] QPEC 462 citations
East Coast Gravel Pty. Ltd. v Brisbane City Council [2019] QPEC 152 citations
Hill v Sunshine Coast Regional Council [2021] QPEC 591 citation
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 214 citations
Ko v Brisbane City Council [2018] QPEC 352 citations
Lake Maroona Pty Ltd v Gladstone Regional Council (No 2) [2017] QPEC 301 citation
Middle Pond Pty Ltd v Whitsunday Regional Council [2024] QPEC 451 citation
The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 622 citations
1

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