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Wason v Gympie Regional Council[2017] QPEC 34

Wason v Gympie Regional Council[2017] QPEC 34

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wason v Gympie Regional Council [2017] QPEC 34

PARTIES:

LEE WASON

(appellant)

v

GYMPIE REGIONAL COUNCIL

(respondent)

FILE NO/S:

4349 of 2016

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

2 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24-26 May 2017

JUDGE:

Everson DCJ

ORDER:

The appeal is allowed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal for a development permit for reconfiguring a lot

CONFLICT – conflict with planning scheme – whether reconfiguration preserves GQAL – whether reconfiguration preserves land for primary production

GROUNDS – whether there are sufficient grounds to justify an approval of the proposed development despite conflicts

Sustainable Planning Act 2009 (Qld) ss 326(1), 493(1), 495(1)

Althaus Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 28

Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302

Weightman v Gold Coast City Council [2003] 2 Qd R 441

COUNSEL:

M Williamson for the appellant

S Ure for the respondent

SOLICITORS:

Connor O'Meara for the appellant

King & Company for the respondent

Introduction

  1. [1]
    This is an appeal against the decision of the respondent made on 28 September 2016 to refuse an application for a development permit for reconfiguring a lot (1 lot into 2) in respect of land at 58 Cullinane Road, Mothar Mountain and described as Lot 48 on M371085 (“the land”).
  1. [2]
    Essentially the respondent contends that the proposed reconfiguration should be refused because it will not preserve good quality agricultural land (“GQAL”) and further that it will not preserve the land as productive agricultural land or rural land.

The site and the surrounding locality

  1. [3]
    The land is 48.461 ha in area and divided into two portions by Cullinane Road. The land extends from Noosa Road which marks its southern boundary to the aptly named Boundary Creek which marks its northern boundary. It is bounded by either Cullinane Road or a road reserve to the west and other rural land to the east. The southern portion of the land separated by Cullinane Road contains an area of 37.66 ha. The northern portion of the land separated by Cullinane Road contains an area of 10.8 ha.[1]  The northern portion of the land is used for spelling racehorses and weaning calves.  The southern portion of the land is primarily used for beef cattle grazing.[2]  The northern portion of the land contains a dwelling house, outbuildings, stockyards and two small dams.  The southern portion of the land contains a dwelling house, a number of outbuildings, stockyards, two large dams and two smaller dams.[3]
  1. [4]
    There are approximately 11 properties in Cullinane Road to the east of the land and two properties in Cullinane Road to the west of the land. They are primarily used for grazing.[4]  Cullinane Road is serviced by a school bus and refuse collection trucks.[5] It is an undulating, unsealed road with poor sight lines in the vicinity of the land.[6]  Immediately to the east and north-east of the land are rural properties that vary in size.  The largest lot is less than 49 ha.  There are a number of small lots in the vicinity of the land.[7]  The land to the west and northwest is primarily used for rural residential purposes.[8]  The land and a substantial area of the land to the east and northeast is zoned Rural and mapped as GQAL pursuant to the Gympie Regional Council Planning Scheme 2013 (“the planning scheme”).[9]

The proposed reconfiguration

  1. [5]
    The appellant seeks to reconfigure the land by splitting the northern portion and the southern portion into two distinct lots. The northern portion would be become Lot 1 and the southern portion would become Lot 2. No material change of use is proposed and no physical change is proposed to any of the land, for example no land will be alienated by new infrastructure such as a road.[10]
  1. [6]
    The proposed reconfiguration will assist the appellant in funding his retirement to the northern portion of the land by enabling him to sell the southern portion.[11]  He intends to continue his small scale animal husbandry pursuit on the northern portion of the land in circumstances where the two portions are already farmed separately with separate facilities.[12]  The appellant built stockyards on both portions of the land so he no longer needed to transfer cattle across Cullinane Road which was difficult and gave rise to safety concerns particularly given the poor sight lines for approaching vehicles.[13]

The assessment regime

  1. [7]
    Pursuant to the Sustainable Planning Act 2009 (Qld) (“SPA”),[14] the hearing is by way of hearing anew.[15]  It is an appeal by the applicant for a development application and therefore it is for the appellant to establish the appeal should be upheld.[16]  The decision of the court must not conflict with the planning scheme unless there are sufficient grounds to justify the decision despite the conflict.[17]

The relevant planning controls

  1. [8]
    The planning scheme commenced on 1 July 2013. It sets out the rules that apply in determining whether there has been compliance with the planning scheme. Relevantly it states:

1.5 Compliance with the planning scheme

  1. (3)
     The following rules apply in determining compliance with a code/s for code and impact assessable development:
  1. (a)
     development complies with the code if it complies with the purpose of the code;
  1. (b)
     development which complies with the code overall outcomes complies with the purpose of the code;
  1. (c)
     development which complies with the performance outcomes complies with the code overall outcomes and the purpose of the code;
  1. (d)
     where acceptable outcomes are identified for performance outcomes, development which complies with the acceptable outcomes complies with the performance outcomes, code overall outcomes and the purpose of the code.
  1. (4)
     Where development requiring impact assessment does not comply with the applicable code/s, development complies with the Planning Scheme if it is consistent with the strategic framework.”
  1. [9]
    The respondent alleges that the proposed reconfiguration conflicts with the following parts of the strategic framework of the planning scheme:

3.4.1 Strategic outcomes

  1. (1)
     The capacity of productive rural lands to contribute to the Region’s economy and community health is protected from incompatible land uses, enhancing the interdependence of urban and rural communities.

Table 3.2 Theme components – Rural futures

3.4.2 Elements

 

3.4.3 Specific outcomes

  1. (1)
     Productive rural land – protection of rural resources for effective utilisation
  1. (a)
     The potential for economic benefit from the rural utilisation of land resources is maintained and enhanced;
  1. (b)
     Good quality agricultural land is preserved;
  1. (c)
     Consolidation of allotments containing good quality agricultural land is encouraged;
  1. (d)
     Productive rural land is protected from intrusion of incompatible development;
  1. (e)
     Land uses that are incompatible with rural production activities and practices are not established in the rural zone or are separated from rural uses to ensure that existing future rural activity is protected from the intrusion of incompatible land uses.

3.5.1 Strategic outcomes

  1. (1)
     The Region’s economic credentials are founded on strength and diversity of industry, creativity and service provision that capitalises on its locational advantages and natural assets, improving job self-sustainability and maximising self-containment of regional economic activity.

Table 3.3 Theme components – Strong economy

3.5.2 Elements

3.5.3 Specific outcomes

  1. (1)
     Economic strength and diversity – creation of an environment that enables the business community to take advantage of opportunities to build linkages throughout and beyond the Region
  1. (a)
     Natural resources and rural land uses that contribute significant economic benefits to the community are protected for use when needed;

  1. (k)
     Rural areas, particularly good quality agricultural land, are protected to maintain a productive role that reflects their existing characteristics and future potential;”
  1. [10]
    Conflicts with the following parts of the Rural Zone Code are also identified by the respondent:

6.2.20 Rural Zone Code

  1. (1)
     The purpose of the zone is to:

  1. (c)
     protect or manage significant natural features, resources, and processes, including the capacity for primary production.

  1. (2)
     
  1. (g)
     Areas of good agricultural land and land for primary production are conserved and are not unnecessarily fragmented.

Table 6.20 Rural Zone Code

Performance Outcomes

Acceptable Outcomes

Section 1 General

  1. PO 1
     Other than in the Aerodrome Precinct, good quality agricultural land identified on the relevant overlay is preserved.

AO1.1Development does not result in the loss of good quality agricultural land through alienation, fragmentation or inappropriate land use.”

  1. [11]
    The respondent also identifies conflicts with the Reconfiguring a Lot Code as follows:

9.3.1 Reconfiguring a Lot Code

  1. (1)
     The purpose of the code is to facilitate a pattern of development that:

 

  1. (d)
     Avoids unnecessary impacts on the natural environment, features and resources;

  1. (2)
     The purpose of the code will be achieved through the following overall outcomes;
  1. (a)
     Lots are of a size and dimension suitable for their intended use and have due regard to local geographical constraints and identified hazards.

  1. (j)
     Reconfiguring a lot does not compromise the viability and productivity of good quality agricultural land or extractive resources and maintains appropriate buffers to these resources.

Table 9.3 Reconfiguring a Lot Code

Performance Outcomes

Acceptable Outcomes

Section 2 For all subdivision

PO 2 Subdivision results in the effective use of land and achieves the intended development pattern for the area.

 

PO 3 Lots are of sufficient size and dimensions to meet the requirements of the users and accommodate the intended form of development.

            …

AO3.1 Lot areas, frontages and dimensions are in accordance with the standards in Table 9.4.

PO17 Good quality agricultural land is preserved.

AO17.1 Development does not result in the loss of good quality agricultural land through alienation, fragmentation or inappropriate land use.

Table 9.4 Minimum Lot Dimensions

Zone

Minimum Area

Rural other than in the Aerodrome Precinct – where additional lots are proposed.”

100 ha

Preservation of GQAL

  1. [12]
    As noted above, the first basis upon which the respondent contends that the proposed reconfiguration should be refused is because it will not preserve GQAL.
  1. [13]
    In respect of this issue evidence was given by two appropriately qualified experts, Mr Thompson who was called by the appellant and Dr Matthew who was called by the respondent. They agreed that 33.09 ha or 68% of the land is GQAL with an agricultural land class ranking of A or B, but only if irrigation is available.[18]  In this regard a water licence pursuant to the Water Act 2000 (Qld) authorises the irrigation of 13 ha of the land from Boundary Creek.[19]  It is significant that this water license may be subdivided in the event that the proposed reconfiguration of the land occurs.  A letter from the Department of Natural Resources and Mines to the appellant dated 27 April 2017 states:

“The licence may be subdivided into two or more new water licences in any form you choose as long as the combined total area does not exceed the area which is currently authorised”.[20]

In this regard it is significant that the southern portion of the land also has direct access to Boundary Creek.  The dams on the land, particularly the large dam on the southern portion of the land, increase the amount of available water for agricultural purposes.  I accept the evidence of Dr Matthew that augmentation of the existing dam structures is a simple engineering and earthmoving matter and that this can further increase the water yield available from theses sources.[21]  I accept the evidence of Dr Matthew that there is sufficient water available from these sources to irrigate all the Class A and Class B GQAL in both the northern portion and the southern portion of the land.[22]  I further accept the evidence of Dr Matthew that there has already been a fragmentation of GQAL within the southern portion of the land as a consequence of the topography and that not all of the area mapped as GQAL is likely to be utilised for agriculture.[23]

  1. [14]
    Whilst both experts agreed that the land was already of insufficient size to be used for a commercially viable grazing operation,[24] Mr Thompson also expressed the view that the land was of insufficient size for a viable commercial cropping enterprise regardless of whether it was reconfigured.[25]  Conversely, Dr Matthew was of the view that even after the proposed reconfiguration both the northern portion and the southern portion could be used for viable small scale commercial cropping purposes such as growing tomatoes.[26]
  1. [15]
    Having regard to this evidence I am unable to conclude that the proposed reconfiguration will result in any loss of GQAL. There is sufficient water to irrigate all of the available GQAL on both portions of the land. This will not change should the northern portion be reconfigured into a separate lot. The limited capacity to grow viable commercial crops on the land will remain, as on the evidence of Dr Matthew which I accept, each of the proposed lots remains of a sufficient size for limited commercial cropping purposes.
  1. [16]
    Two town-planners also gave evidence, Mr Hartley who was called by the appellant and Mr Adamson who was called by the respondent. Their evidence focused particularly on the questions of whether the proposed reconfiguration will result in the loss of GQAL through alienation or fragmentation. Mr Hartley approached the question of fragmentation in the following way:

“The land is fragmented by Cullinane Road.  The northern portion of the land (proposed Lot 1) is further fragmented by [a] gazetted road reserve running the entire length of its western boundary, and Boundary Creek running the entire length of its northern boundary.  Proposed Lot 1 is, in effect, an “island” site isolated from and unable to be consolidated with any contiguous rural property.

In my opinion, the general area in proximity to the development site is highly fragmented and the proposed development will not result in any further physical fragmentation”.[27]

  1. [17]
    Mr Hartley was of a similar view in terms of the prospective alienation of GQAL, noting that the proposed reconfiguration “does not involve any loss of rural land; rather, it simply seeks to formalise an existing physical arrangement on the ground”.[28]
  1. [18]
    Conversely, Mr Adamson, while conceding that the land is already one of a number of fragmented sites in the locality,[29] was of the view that the proposed reconfiguration will result in “the unnecessary fragmentation of the land”.[30]  His reasoning in this regard was expressed in the following terms:

“While the application is for reconfiguring a lot, the fragmentation and alienation of the land and likely change of ownership will result in a reduction of its productive capacity.  This directly affects the ability of the land to be used for a more productive rural purpose.  This represents an inappropriate use of the land.  Whether or not the existing use is rural is not relevant in the assessment.  The planning scheme seeks to protect GQAL to maintain a productive role that reflects existing characteristics and future potential…”.[31]

  1. [19]
    Under cross-examination Mr Adamson conceded that in the locality of the land there were no commercially viable cropping businesses and that the land was currently used for grazing which is animal husbandry, a use contemplated by the Rural zone.[32]
  1. [20]
    Turning to whether there has been compliance with the planning scheme requirements to preserve GQAL, it is worth noting that, pursuant to s 1.5(3)(d), development which complies with acceptable outcomes is deemed to comply with the applicable performance outcomes, code overall outcomes and the purpose of the code. The relevant acceptable outcome in both the Rural Zone Code[33] and the Reconfiguring of a Lot Code[34] is expressed in the following identical terms: “[d]evelopment does not result in the loss of good quality agricultural land through alienation, fragmentation or inappropriate land use”. There is no suggestion that the continued use of the land for grazing results in an inappropriate land use.  The term “alienation” is not defined in the planning scheme.  In the Macquarie Concise Dictionary[35] the term alienate is defined as, inter alia, “to make indifferent or averse; estrange.”  The evidence before me does not suggest that the proposed reconfiguration will of itself alienate GQAL.  It remains available for irrigation and cropping for a crop such as tomatoes should the owner of either portion so desire.  The term “fragmentation” is also not defined in the planning scheme.  In the Macquarie Concise Dictionary[36] fragment is defined as “to break into fragments”.  On the evidence before me the already fragmented GQAL on the land is further fragmented by the presence of Cullinane Road.  The proposed reconfiguration will not of itself further fragment the GQAL.  Accordingly, I find the acceptable outcomes AO1.1 of the Rural Zone code and AO17.1 of the Reconfiguring a Lot Code are complied with.
  1. [21]
    Applying s 1.5(3) there is therefore no conflict with the planning scheme in this respect. It is unnecessary for me to go further. However for the sake of completeness, I also conclude that there is no conflict with the relevant provisions of the strategic framework of the planning scheme identified by the respondent for the same reasons.

Preservation of land for primary production

  1. [22]
    No change of use is proposed for any of the land. It remains available for primary production. However, the utility of the land for primary production in its current form is already seriously compromised. It is already too small for a commercial grazing enterprise and any potential utility it has for cropping is seriously limited by the constraints which already exist. Significantly it will still be viable, on the evidence I accept, for small scale cropping for a crop such as tomatoes regardless of the proposed reconfiguration. The fact that one of the intended lots may go into different ownership does not change these facts. Any prospective incompatible land use would require an application for a material change of use. The proposed reconfiguration will result in lots consistent in size and dimensions with other lots in the vicinity of the land.
  1. [23]
    There remain, however, two performance outcomes of the Reconfiguring a Lot Code which require detailed consideration. Firstly PO2 requires that the proposed reconfiguration result in “the effective use of land” and achieve “the intended development pattern for the area”. There is no relevant acceptable outcome which is nominated in this regard. It is clear that the proposed reconfiguration creates an additional rural lot on land included in the Rural zone which is consistent in size and dimensions with surrounding lots. On the facts before me I am of the view that there has been compliance with PO2 of the Reconfiguring a Lot Code.
  1. [24]
    PO3 thereafter states that lots are to be “of sufficient size and dimensions to meet the requirements of the users and accommodate the intended form of development”. Significantly AO3.1 states that lot areas, frontages and dimensions are to be in accordance with the standards in Table 9.4. Relevantly this prescribes a minimum area of 100 ha for land zoned Rural where additional lots are proposed. Obviously this is significantly larger than the land itself and all of the surrounding lots.[37]  It is argued by the respondent that this requirement of a minimum size of 100 ha for new lots represents the intended development pattern for the area referred in PO2 and the intended form of development in PO3.  I reject this submission.  The submission seeks to elevate an acceptable outcome to determinative status when that is not the way the planning scheme is structured.  Section 1.5 makes it clear that acceptable outcomes are an identified way of complying with performance outcomes but that is all.  There is no provision of the planning scheme which mandates a minimum lot size in the Rural zone of 100 ha.  Such a requirement would represent a planning control completely inconsistent with the pattern of development in the vicinity of the land. In these circumstances it would need to be expressed in clear terms in the context of a higher order provision of the planning scheme to carry the consequence argued by the respondent.[38]  I find that there has been compliance with PO2 and PO3 of the Reconfiguring a Lot Code and therefore compliance with the planning scheme so far as it requires the preservation of land for primary production. Although it is unnecessary to do so for the reasons stated earlier, I also find that there are no conflicts with the relevant provisions of the strategic framework identified by the respondent applying the reasoning above.

Conflicts and grounds

  1. [25]
    If I am wrong in my conclusions above I need to consider whether there are sufficient grounds to justify the proposed reconfiguration despite conflicts with the planning scheme.[39]
  1. [26]
    The term “grounds” is defined in Schedule 3 of SPA in the following terms:

“1.  Grounds means matters of public interest.

  1. Grounds does not include the personal circumstances of an applicant, owner or interested party.”
  1. [27]
    In Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust)[40] the Court of Appeal endorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council[41] which requires the court to:

“1.  examine the nature and extent of the conflict;

  1. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  2. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”[42]

The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.[43]

  1. [28]
    Should it ultimately be found that the proposed reconfiguration will fragment GQAL or fail to achieve the intended development pattern for the area or not accommodate the intended form of development for the land, I am of the view that the nature and the extent of such conflicts are minor. This is because the land in the vicinity of the proposed reconfiguration is already physically fragmented such that there are many similar sized lots surrounding it. The GQAL on the land is already fragmented both by Cullinane Road and also by the topography of the southern portion. The land is already of insufficient size to support a commercially viable grazing enterprise and its capacity to support a commercially viable cropping enterprise will be unaffected by the proposed reconfiguration. Relevant to these conflicts is the ground that the proposed reconfiguration, if approved, will provide an opportunity to significantly improve the safety of Cullinane Road in circumstances where its vertical and horizontal alignment means that conducting a farming operation on both sides of the road creates a significant risk to motorists. In my view the propsective conflicts can be justified on this ground and this ground in favour of the proposed reconfiguration on balance is sufficient to justify approving the proposed reconfiguration notwithstanding all of the prospective conflicts referred to above.

Conclusion

  1. [29]
    The proposed reconfiguration will merely give effect to the current physical constraints of the northern portion of the land. It will not result in the alienation or fragmentation of GQAL and it will not result in a loss of land for primary production. It will merely create a further lot of Rural zoned land which can continue to be used for appropriate uses contemplated in the Rural zone. In the circumstances I find that there is no conflict with the relevant provisions of the planning scheme. If I am wrong in this regard I find the improved safety for motorists utilising Cullinane Road, as a consequence of separating the rural uses taking place on either side of it, is a sufficient ground to justify approving the proposed reconfiguration notwithstanding any conflicts with the planning scheme.
  1. [30]
    I allow the appeal.

Footnotes

[1]  Exhibit 4, 3 [2.1]-[2.2], 38.

[2]  Exhibit 7, 5 [21].

[3]  Exhibit 4, 4 [2.3].

[4]  Ibid [2.5].

[5]  Ibid [2.6].

[6]  Exhibit 3, 6 [41]-[42].

[7]  Exhibit 7, 13.

[8]  Exhibit 4, 5 [2.7].

[9]  Ibid [2.7], 9-10 [4.10]-[4.11].

[10]  Ibid 5 [3.2], 38.

[11]  Exhibit 7, 11 [42].

[12]  Ibid [43].

[13]  Ibid 5-6 [22], 8 [27].

[14]Sustainable Planning Act 2009 (Qld).

[15]  Ibid s 495(1).

[16]  Ibid s 493(1).

[17]  Ibid s 326(1).

[18]  Exhibit 3, 4 [26].

[19]  Affidavit of Michael James Quirk filed 25 May 2017, Exhibit “MJQ-1”, 18.

[20]  Exhibit 15.

[21]  Exhibit 11, ll 95-100.

[22]  T2-69, ll 5-15.

[23]  T2-70, ll 10-25; T2-71, ll 45-48.

[24]  Exhibit 5, 8 [38]-[39]; T2 – 72, ll 5 – 15.

[25]  T2 – 31, ll 10 – 15.

[26]  T2 – 74, ll 10 – 20.

[27]  Exhibit 6, 3 [12], [14].

[28]  Exhibit 4, 18 [5.38].

[29]  T2-98, ll 30-40.

[30]  Exhibit 10, 12 [36].

[31]  Ibid 10 [28].

[32]  T2-100, ll 28-39.

[33]Gympie Regional Council Planning Scheme, Table 6.20 Rural Zone Code, AO1.1, 167.

[34]  Ibid Table 9.3 Reconfiguring a Lot Code, AO17.1, 194.

[35]Macquarie Concise Dictionary (Macquarie Dictionary Publishers Pty Ltd, 4th ed, 2006).

[36]  Ibid.

[37]  Exhibit 7, 13.

[38]  C.f. Althaus Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 28.

[39]Sustainable Planning Act 2009 (Qld) s 326.

[40]  [2013] 2 Qd R 302; [2013] QPELR 188; [2012] QCA 370.

[41]  [2003] 2 Qd R 441; [2003] QPELR 43; [2002] QCA 234.

[42]Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302, 462 [18].

[43]Althaus Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 28, 15 [38]-[39].

Close

Editorial Notes

  • Published Case Name:

    Wason v Gympie Regional Council

  • Shortened Case Name:

    Wason v Gympie Regional Council

  • MNC:

    [2017] QPEC 34

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    02 Jun 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

Case NameFull CitationFrequency
Althaus Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 28
3 citations
Friend v Brisbane City Council & BT Hotels and Property Group [2013] QPELR 188
1 citation
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
4 citations
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
3 citations
Weightman v Gold Coast City Council [ (2003) QPELR 43
1 citation

Cases Citing

Case NameFull CitationFrequency
Danma Property Pty Ltd v Western Downs Regional Council [2023] QPEC 411 citation
Wason v Gympie Regional Council (No 2) [2018] QPEC 122 citations
1

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