Guerin v Scenic Rim Regional Council
[2018] QPEC 16
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- Unreported Judgment
- Guerin v Scenic Rim Regional Council[2018] QPEC 16
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Guerin v Scenic Rim Regional Council[2018] QPEC 16
Guerin v Scenic Rim Regional Council[2018] QPEC 16
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Guerin & Anor v Scenic Rim Regional Council & Ors [2018] QPEC 016 |
PARTIES: | Kathryn Louise Guerin and Scott Andrew Guerin (Appellant) v Scenic Rim Regional Council (Respondent) Tamborine Mountain Progress Association Inc. (Co-Respondent by Election) Hilary Furlong (Co-Respondent by Election) |
FILE NO/S: | Appeal 2718 of 2017 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court of Queensland |
DELIVERED ON: | 29 March 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12-13 March 2018 |
JUDGE: | Everson DCJ |
ORDER: | The appeal is dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal of a development application to reconfigure a lot CONFLICT – conflict with planning scheme – whether proposed development conflicts with provisions limiting the creation of further lots at Mt Tamborine GROUNDS – whether there are sufficient grounds to justify the approval of the proposed development despite the conflicts Planning Act 2016 (Qld), s 311 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46 Sustainable Planning Act 2009 (Qld), ss 314, 324, 326 Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474 Weightman v Gold Coast City Council [2003] 2 Qd R 441 |
COUNSEL: | J.J. Ware for the Appellants N. Loos for the Respondent |
SOLICITORS: | Mullins Lawyers for the Appellants Corrs Chambers Westgarth for the Respondent |
Introduction
- [1]This is an appeal against the decision of the respondent made on 26 June 2017 to refuse an impact assessable application for reconfiguration of a lot (one lot into two) in respect of land located at 19-21 Power Parade Tamborine Mountain (“the land”).
- [2]The Beaudesert Planning Scheme 2017 (“the planning scheme”) is the relevant planning scheme for assessing the proposed development.[1] Pursuant to the planning scheme the land is within the Tamborine Mountain Zone and included within the Village Residential Precinct.[2] Historically the land has been used for residential purposes and the keeping of animals.[3] Tamborine Mountain is not connected by urban services (sewerage and water) and it is proposed that these services will be provided by on-site systems.[4] Although no new lots have been created in the Village Residential Precinct since the commencement of the planning scheme, the proposed development would be entirely consistent with the pattern of subdivision within the locality.[5]
Statutory framework for the appeal
- [3]Shortly after the decision of the respondent giving rise to this appeal, the Planning Act 2016 (“PA”) and the Planning and Environment Court Act 2016 (“PECA”) commenced on 3 July 2017. This legislative regime replaced that pursuant to the Sustainable Planning Act 2009 (“SPA”). Pursuant to section 311 of the PA as the appellants “had, immediately before the commencement, a right to start proceedings”, they “may be brought only under” the PA.[6] Pursuant to the PECA the appeal is by way of hearing anew.[7] It is for the appellants to establish that the appeal should be upheld.[8] The court decides the appeal as if it were the assessment manager for the development application.[9] Accordingly, while the appeal is brought under the PA, the relevant provisions of SPA apply to the hearing and determination of the issues in the appeal because this legislative regime was in place at the time the assessment manager considered and refused the development application giving rise to the appeal. Relevantly, section 314 of SPA provides for impact assessment and sections 324 and 326 address the decision of the assessment manager. Of particular significance in this appeal, section 326 states that the assessment manager’s decision must not conflict with the planning scheme unless there are sufficient grounds to justify the decision despite the conflict.[10]
The relevant planning controls
- [4]The following provisions of the planning scheme are of particular relevance in the determination of this appeal. Firstly, parts of the Tamborine Mountain Zone Code:[11]
“3.7.8 Compliance with the Tamborine Mountain Zone Code
Development complies with the Tamborine Mountain Zone Code if in the case of –
…
- (c)Impact-assessable development, there is compliance with the Specific Outcomes of the Tamborine Mountain Zone Code and the purpose of the Tamborine Mountain Zone Code being the Overall Outcomes for the Tambourine Mountain Zone.
…
Overall Outcomes for Tamborine Mountain Zone |
… |
OO46 Development within the Village Residential Precinct is typically urban residential in character with a moderate to high level of amenity on lots not served by a reticulated water and sewerage system. The Precinct, in close proximity to the Business Precinct, provides the principal location for additional urban residential accommodation. |
… |
Intensity of Development |
OO58 Development is at a scale, form and intensity which is intended for development in the Zone and is consistent with the reasonable expectations of residents of the Zone. |
OO59 Development being reconfiguring a Lot –
… |
…
Table 3.7.11 Specific Outcomes and Prescribed Solutions for the Tamborine Mountain Zone
Column 1 Specific Outcomes | Column 2 Probable Solutions |
… | … |
Intensity of Development | |
SO49 Development being – …
… | S49.1 No solution is prescribed.”[13] |
- [5]The following provisions of the Reconfiguring of a Lot Code are also important:
“5.4.1 Compliance with the Reconfiguring a Lot Code
Development complies with the Reconfiguring a Lot Code if in the case of –
…
- (b)Impact-assessable development, there is compliance with the Specific Outcomes of the Reconfiguring a Lot Code and the purpose of the Reconfiguring a Lot Code being the Overall Outcomes for Reconfiguring a Lot.[14]
…
Table 5.4.6 Specific Outcomes and Prescribed Solutions for Reconfiguring a Lot
Column 1 Specific Outcomes | Column 2 Probable Solutions |
… | … |
SO7 Further division of land in the – …
… at Mt Tamborine is not envisaged as supporting infrastructural services cannot be provided. | S7.1Development ensures that additional titles are not created within the – …
…of the Tamborine Mountain Zone.[15] |
- [6]Finally, Table 5.4.6 B entitled “Lot Design Specifications” in the Reconfiguring a Lot Code specifies no minimum size or other dimensions for lots in the Village Residential Precinct but under the heading “Qualifications” it is stated:
“Additional lots are not created unless in accordance with the development approval for a Material Change of Use that has not lapsed.”[16]
The appellants do not have such an approval.
Conflict and grounds
- [7]As noted above, the decision of the court must not conflict with the planning scheme unless there are sufficient grounds to justify the proposed development despite the conflict.[17]
- [8]The term “grounds” is defined in Schedule 3 of SPA in the following terms:
“1. Grounds means matters of public interest.
- Grounds does not include the personal circumstances of an applicant, owner or interested party.”
- [9]
“1. examine the nature of the conflict;
- 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;
- 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.”[20]
The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.[21]
- [10]The respondent submits that the proposed development is in clear conflict with Overall Outcomes 58 and 59 and Specific Outcome 49 of the Tamborine Mountain Zone Code and also Specific Outcome 7 of the Reconfiguring a Lot Code. It is submitted that these are specific provisions that articulate a clear policy position and that conflict with them is significant. Allowing for the circular language of the inelegantly drafted interpretation provisions namely 3.7.8 and 5.4.1 quoted above, the respondent’s policy position of restricting the creation of further lots on Tamborine Mountain is stated where it would be expected, namely in the Tamborine Mountain Zone Code and appropriate parts of the Reconfiguring of a Lot Code.
- [11]Conversely, the appellants submit that there is no conflict with these provisions of the planning scheme. It is argued that Overall Outcome 46 in the Tamborine Mountain Zone Code specifically contemplates further development within the Village Residential Precinct. It is further submitted that the proposed development is at a scale, form and intensity intended in the zone and consistent with the reasonable expectations of residents in the zone and therefore compliant with Overall Outcome 58 given that the proposed development would be entirely consistent with the established pattern of subdivision in the vicinity of the land. The restriction in Table 5.4.6B in the Reconfiguring a Lot Code which is called up by Overall Outcome 59 and Specific Outcome 49 is read down by the appellants on the basis that the qualification cannot properly be defined as a “standard”. The term standard is relevantly defined in the Macquarie Concise Dictionary as “anything taken by general consent as a basis of comparison; an approved model.”[22] I do not accept this submission. It is clear that the opportunity to create additional lots in the Village Residential Precinct is limited to a circumstance where lots can be created in accordance with an existing approval for a material change of use that has not lapsed. In other words the standard for development of the type contemplated in this precinct pursuant to Table 5.4.6B is that it can only occur pursuant to an existing development approval. That is the relevant basis of comparison applying the definition above. It does not apply to the circumstances before me. There is therefore clear conflict with Overall Outcome 59 and Specific Outcome 49 in this respect.
- [12]It was acknowledged by the planner called on behalf of the appellants, Mr Forsyth that the reasonable expectations of residents of the zone are derived from the provisions of the planning scheme.[23] Table 5.4.6B does not intend further development of the type proposed by the appellants in the zone without an existing development approval which has not lapsed. To the extent that it might be submitted that there is otherwise a reasonable expectation of residents that there would be further lots created in the Village Residential Precinct, it is noteworthy that since the planning scheme commenced no lots have been created. Accordingly there is also therefore clear conflict with Overall Outcome 58 of the Tamborine Mountain Zone Code as the proposed development is not consistent with the reasonable expectations of residents of the zone.
- [13]So far as the alleged conflict with Specific Outcome 7 of the Reconfiguring a Lot Code is concerned, the appellants submit that as they intend to provide on-site water and sewerage infrastructure, there is no conflict with SO7. I do not accept this argument. While Specific Outcome 7 uses the term “not envisaged” when referring to further subdivision of land in the Village Residential Precinct, the term is used so as not to create an inconsistency with Table 5.4.6B which does allow for additional lots in the very limited circumstances discussed above.[24] The wording of Specific Outcome 7 is merely reflective of the underlying theme that further subdivision of land in this precinct is not appropriate because water and sewerage infrastructure cannot be provided by the respondent. Again the proposed development is in clear conflict with this provision of the planning scheme.
- [14]
“It may be accepted, as Grosser says and Palyaris implies, that the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration. In any case, Grosser and Palyaris, it should be remembered, were concerned with a different expression, “planning grounds”, and hence a narrower inquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which are now relevant. It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity. The isolation and screening of the project were properly considered as a ground, to be weighed with other grounds in considering their sufficiency.”
The above observations occurred in the context of a very different dispute to that before me, namely the siting of a proposed natural gas fired electricity facility. In this context amenity impacts of the proposed development assumed a significance way beyond that present in many cases before the court including that before me.
- [15]To justify the proposed development the appellants laboriously set out the extent to which it complies with other provisions of the planning scheme. Whilst the extent to which the proposed development complies with the planning scheme is a matter of public interest, when this ground is balanced against noncompliance with the specific provisions discussed above which give effect to the respondent’s clearly articulated policy of restricting further subdivision in the Village Residential Precinct on Mount Tamborine, this ground lacks weight. The remaining grounds relied upon by the appellants are that the proposed development is consistent with the surrounding land use pattern, that it will provide on-site water and sewerage treatment and will not result in any adverse impacts (which is unsurprising given the nature of the proposed development). It is also submitted that it will provide additional choice of housing at Mount Tamborine by creating one additional lot. In this regard no evidence of planning need was placed before me.
- [16]The proper construction of the planning scheme as a whole makes it clear that the Village Residential Precinct is to accommodate as much additional urban residential development as it can without further subdivision. It is abundantly clear that further subdivision on Mount Tamborine is not envisaged in circumstances where the respondent cannot provide any water or sewerage infrastructure. In the planning scheme the respondent has, however acknowledged the possibility of further subdivision in circumstances where there is an existing development approval for material change of use that has not lapsed. This limited exception does not apply to the appellants. The nature and the extent of the conflict between the relevant provisions of the planning scheme discussed above and the proposed development is significant. The limited grounds which are relied upon, are essentially compliance with other provisions of the planning scheme, the absence of impacts and the provision of an extra lot in circumstances where there is no evidence before me that there is any need for an additional residential lot at Mount Tamborine. The extent of the conflict cannot be justified on these grounds. They are as a whole, on balance, insufficient to justify approving the proposed development notwithstanding the conflicts.
Conclusion
- [17]The proposed development is in significant conflict with a number of provisions of the planning scheme designed to restrict the creation of additional residential lots on Mount Tamborine. Compliance with other provisions in the planning scheme and the other grounds relied upon by the appellants are on balance not sufficient to justify approving the proposed development notwithstanding the conflicts identified above.
- [18]The appeal is dismissed.
Footnotes
[1] Exhibit 5, para 28.
[2] Ibid, para 16.
[3] Ibid, para 15.
[4] Exhibit 3, p 23.
[5] T2-28, ll 30-32.
[6]Planning Act 2016 section 311(1)(b) and (4).
[7]Planning and Environment Court Act 2016 section 43.
[8] Section 45(1)(a).
[9] Section 46(2)(a).
[10]Sustainable Planning Act 2009 section 326(1)(b).
[11] Exhibit 7 p 46.
[12] Ibid pp 50 – 51.
[13] Ibid p 65.
[14] Ibid p 101.
[15] Ibid p 106.
[16] Ibid p 125.
[17]Sustainable Planning Act 2009 (Qld) s 326.
[18] [2013] 2 Qd R 302.
[19] [2003] 2 Qd R 441.
[20]Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302, 322 at [18].
[21]Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474, 483.
[22] Macquarie Concise Dictionary 4th Edition, Macquarie University 2006.
[23] T2.10 lines 25 – 28.
[24] Construing the planning scheme on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70].
[25] Ex 10.
[26]Westlink [2013] 2 Qd R 302, 323 at [25].