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Gillion Pty Ltd v Scenic Rim Regional Council[2018] QPEC 47

Gillion Pty Ltd v Scenic Rim Regional Council[2018] QPEC 47

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2018] QPEC 47

PARTIES:

GILLION PTY LTD (ACN 102 972 001)

(appellant/applicant)

v

SCENIC RIM REGIONAL COUNCIL

(respondent)

and

JENNIFER PEAT & ORS

(1st, 69th to 105th and 108th co-respondents by election)

and

STUART WRIGHT & ORS

(2nd to 12th co-respondents by election)

and

JEANETTE LOCKEY & ORS

(13th to 61st co-respondent by election)

and

WENDY ALLENDER & ORS

(62nd to 68th co-respondent by election)

and

EAGLE HEIGHTS VILLAGE ASSOCIATION INC

(106th co-respondent by election)

and

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC

(107th co-respondent by election)

and

THE CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009

(109th co-respondent by election)

FILE NO:

2424 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

5 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

24 & 28 April 2017; 25, 26, 27, 28 & 29 September 2017; 15 November 2017.

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal dismissed.
  2. I will hear the parties about the form of orders and any further directions in accordance with this judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICANT APPEAL – against council’s refusal of an application for a material change of use to facilitate the defined use “Commercial Groundwater Extraction” on land – where development involves extraction of groundwater from a “sweet spot” – where the proposed development is not a consistent use  - whether there is tension between applying the planning scheme and the public interest because it fails to anticipate the need for the use in the public interest that amount to an exceptional case – whether there are grounds of economic need, community need, planning need or other public benefit to fire fighting or charitable supply - whether there is sufficient grounds of to justify conflict with the planning scheme.

Legislation

Integrated Planning Act 1997 (Qld) s 3.5.14

Local Government (Planning and Environment) Act 1990

Planning Act 2016 (Qld)

Sustainable Planning Act 2009 (Qld) ss 88, 314, 324, 326, 350, 462, 493, 495

Cases

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1

Bell v Brisbane City Council & Ors [2018] QCA 84

Bunnings Building Supplies Pty Ltd v Redland Shire Council and Ors [2000] QPELR 193

Clark v Cook Shire Council [2008] 1 Qd R 327

Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126

Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors [1995] QPLR 290

Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QPELR 168

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2017] QPEC 24

Gillion Pty Ltd v Scenic Rim Regional Council and Others [2014] QPLER 168

Isgro v Gold Coast City Council [2003] QPELR 414

Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 QdR 302

Management Ltd v Pine Rivers Shire Council [2009] QPELR 337

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32

Roosterland Pty Ltd & its agents v Brisbane City Council [1986] QPLR 515

Scenic Rim Regional Council v Gillion Pty Ltd [2011] QPLER 143

Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245

Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor [2002] QCA 277; (2002) 121 LGERA 390

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

Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 QdR 273

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

COUNSEL:

C Hughes QC & M Williamson for the applicant/appellant

R Traves QC & P Djohan for the respondent

SOLICITORS:

HWL Ebsworth Lawyers for the applicant/appellant

Corrs Chambers Westgarth Lawyers for the respondent

J Peat for the 1st, 69th to 105th and 108th co-respondent by election

S Wright for the 2nd to 12th co-respondent by election

J Lockey for the 12th to 61st & 107th co-respondent by election

W Allender for the 62nd to 68th co-respondent by election

No appearance for the 106th co-respondent by election

OS Williamson of HopgoodGanim Lawyers for the 109th co-respondent by election

  1. [1]
    The appellant appeals the decision of the Scenic Rim Regional Council refusing an application for a material change of use to Commercial Groundwater Extraction from a ‘sweet spot’ at 22-26 Power Parade on Tamborine Mountain (“land”).
  1. [2]
    The respondent council, and another 109 co-respondents-by-election oppose the appeal. The Chief Executive was excused from active participation having indicated abidance to the court’s orders. All other parties through their representatives participated in the hearing, including with comprehensive written submissions. I was also assisted by a site inspection early in the proceeding.

Background

  1. [3]
    The land hah been used for commercial ground water extraction over a number of years, from time to time, since 1991.[1]
  1. [4]
    In 2010, the court made enforcement orders that the appellant cease using the land for the purpose of Commercial Groundwater Extraction without a development permit.[2]  The order was suspended to facilitate a development application to regularise the use.
  1. [5]
    The appellant applied for a material change of use of premises for Commercial Groundwater Extraction on or about February 2011, but the council refused that development application (“previous application”).
  1. [6]
    The appellant’s appealed against the council’s refusal (“previous appeal”), and after a hearing it was dismissed by Robertson DCJ[3] who found that:
  1. (a)
    There was no pre-existing lawful use right attaching to the land[4]  lawfully permitting commercial groundwater extraction from the land;
  1. (b)
    Having regard to the reasonable expectations of residents, the proposed development would result in an unacceptable impact on amenity and character to the residents of Power Parade;[5]
  1. (c)
    If considered in isolation, that conflict would be categorised as minor in nature,[6] but was not ‘mechanical’ or ‘technical’; [7]
  1. (d)
    The conflict was ‘significant’ [8] and when the planning scheme was “read as a whole, and in a practical and sensible way, it is clear from its Planning Scheme that Council did not want a use such as this anywhere in the Shire but, in anticipation that such a use may be applied for, it set a high bar by making the use an inconsistent use in all Zones and relevantly, in the Tamborine Mountain Zone”;[9]
  1. (e)
    The appellant’s evidence did not demonstrate a strong and sustained demand for the groundwater beneath the land;[10]
  1. (f)
    It was not accepted that the “the need is significant even accepting that there is a need for bottled water in the community generally as demonstrated by the increasing demand”;[11]
  1. (g)
    The ‘grounds’ relied on by the applicant were not sufficient to overcome the significant conflict with the planning scheme.[12]
  1. [7]
    The appellant was refused leave to appeal to the Court of Appeal on 21 February 2014.[13]  The use of the land for commercial groundwater extraction was required to cease on 28 April 2014.[14]
  1. [8]
    The appellant made this further application on 12 August 2014[15] with a view to meeting critical deficiencies found in the previous appeal.[16] Section 5.3 of the supporting town planning report described the further proposed development in detail.[17]  In essence the proposal involves:
  1. (a)
    the extraction of water from a sub-artesian source accessed by bore;[18]
  2. (b)
    the storage of extracted water on-site in large water tanks;[19] and
  3. (c)
    the transportation of water off-site using a single transporter along a defined route.[20] 
  1. [9]
    During the public notification period the council received 1,157 properly made submissions.[21]  On 19 May 2015, the council refused the development application.  The appellant now appeals from this refusal by the Notice of Appeal filed 17 June 2015.

Proposed development

  1. [10]
    On 28 April 2017, the court declared that for the purposes of s 350 of the Sustainable Planning Act 2009 (Qld) (“SPA”), changes proposed by the appellant to the development application as originally lodged amounted to minor changes and this appeal would proceed to be heard and determined on the basis of the so changed development application (“development application”).[22]
  1. [11]
    In this regard the changes included in the development application are that:
  1. The transport of extracted water from the land will not be via a vehicle owned by an entity related to the appellant, but by vehicles owned by third parties; and
  2. The transportation of ground water extracted from the land will not be limited to delivery to one water bottling entity related to the appellant, but will also include deliveries to:
  1. (a)
    residents and businesses of Tamborine Mountain and nearby areas;
  1. (b)
    a range of bottling facilities off the Mountain;
  1. (c)
    a range of bottling facilities for charitable purposes (in the case of emergency); and
  1. (d)
    the location of fire for fire fighting purposes (in the case of a building or bush fire emergency by fire services vehicles).
  1. [12]
    The appellant maintains that the changes are not made at large, instead, they are carefully limited to the confines of the original proposal. In particular, the appellant adheres to the following operational matters (as opposed to mere conditions, if approved), which will remain unchanged and therefore extend to the proposed changes relating to transportation:
  1. (a)
    The maximum number of daily vehicle movements is limited to 4 empty vehicles entering the land, and 4 laden vehicles leaving the land;
  1. (b)
    A restriction on the times of vehicles movements of:
  1. (i)
    between the hours of 7.00am and 6.00pm; and
  1. (ii)
    no weekend or public holiday deliveries or collections;
  1. (c)
    Vehicles accessing the land by Power Parade are limited to a left in and right out turn only, thereby precluding a left hand turn to travel in a southerly direction along Power Parade;
  1. (d)
    Water carriers associated with deliveries for the local community, including businesses, will be limited to a maximum capacity of 13,000L and a gross vehicle mass of no more than 26 tonnes;
  1. (e)
    Any articulated vehicle must utilise the haul route approved in the reasons for judgment delivered by His Honour Judge Robertson in Gillion Pty Ltd v. Scenic Rim Regional Council & Ors [2013] QPEC 15;
  1. (f)
    A restriction on the type and maximum size of vehicles for transportation of extracted water, including:
  1. (i)
    forward cab design vehicle; and
  1. (ii)
    maximum length of vehicle no greater than 15.3m;
  1. (g)
    Pavement areas of Power Parade to be widened with annual inspections of the pavement by a traffic engineer (at the appellant’s expense), including repairs to that pavement within a reasonable period;
  1. (h)
    The replacement of the existing mirror at the intersection of Power Parade and Main Western Road;
  1. (i)
    An investigation by a qualified person into the temporary impacts of the proposal on neighbouring bores, to be completed and submitted to the respondent within 12 months of any approval;
  1. (j)
    Ongoing monitoring of the production bore and the bore situated at the adjoining nursery to demonstrate that the extraction of groundwater on the land continues to be sustainable. By way of clarification (unrelated to the changes) the appellant proposes a limit to the weekly extraction volume of groundwater to a maximum of 564,000L;
  1. (k)
    Compliance with the conditions referred to in attachment 1 to the letter of Hopgood Ganim of 11 November 2015, including condition 4 requiring an upgrade of the intersection of Geissmann Drive and Eagle Heights Road; and
  1. (l)
    A requirement to amend the proposed noise management plan to exclude parking of trucks on the site (and to include a noise barrier on the land at the turn around area).

Land & surrounds

  1. [13]
    The land is located at 22-26 Power Parade at Tamborine Mountain being Lot 87 on RP168897 and has a frontage to Power Parade of about 45m.
  1. [14]
    It is improved with a boundary fence, a house at the rear; disused sheds and water tanks; sealed driveway including a tanker truck turnaround; two 20,000 litre stainless steel tanks associated with past commercial groundwater extraction use; and a storage shed within which an electric pump and associated infrastructure is located for the commercial groundwater extraction use.[23]
  1. [15]
    There is no reticulated water supply to the land, or elsewhere in the Tamborine Mountain area.[24]
  1. [16]
    The surrounding area, bounded by Alpine Terrace to the north-east, Fern Street to the east, St Bernards Street and Beaudesert Street to the south and Main Western Road to the west and north-west, mainly comprises of large residential allotments that are not serviced by reticulated water or sewerage. Other non-residential land uses in the surrounding area, include agriculture, animal husbandry and retail plant nursery type uses, together with a nearby use involving the commercial extraction and bottling of groundwater.[25]

Planning Treatment

  1. [17]
    Under the planning scheme, the land has designations and is affected by overlays as follows:
  1. Tamborine Mountain Zone – Village Residential Precinct;
  2. Nature Conservation Overlay within a –
  1. (a)
    Vegetation Management Area;
  1. (b)
    Regional Nature Conservation Area;
  1. Development Constraints Overlay – Agriculture Protection Area; and
  2. Catchment Management, Waterways and Wetlands Overlay – Pollutant Load Risk – Medium Area.
  1. [18]
    The 2007 planning scheme allocates defined uses into use classes and use categories.[26]  One such use class includes industrial uses, which include extractive resources, which in turn includes commercial groundwater extraction.[27]
  1. [19]
    The planning scheme permits the parking of heavy vehicles on residential allotments.[28]

Assessment framework

  1. [20]
    The appeal was commenced pursuant to s 462 of SPA.
  1. [21]
    The appeal is by way of a hearing anew.[29]  The appellant bears the onus of establishing that the appeal should be allowed.[30]
  1. [22]
    The development application is subject of impact assessment against, relevantly here, the planning scheme in accordance with s 314(2)(g) of SPA.  Pursuant to s 495(2)(a) of SPA the appeal must be decided based on the laws and policies in force on the date the application was made on 12 August 2014, although weight may be given to any new laws and policies that the court considers appropriate.[31] 
  1. [23]
    The 2007 Beaudesert Shire Planning Scheme (“Planning Scheme”) was in force when the application was made and is applicable to the assessment. 
  1. [24]
    The application must be decided in accordance with ss 324 and 326 of SPA. Pursuant to ss 326(1)(b) the decision must not conflict with the planning scheme unless there are “sufficient grounds” to justify that decision despite the conflict. 
  1. [25]
    “Conflict” has been held to mean “at variance or disagree with”.[32]  Any conflict must be plainly identified after analysing the scheme as a whole, rather than merely focussing on isolated provisions.[33] 
  1. [26]
    “Grounds” is defined in Schedule 3 of SPA in respect of s. 326(1) as:

“1. Grounds means matters of public interest.

2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”

  1. [27]
    In Weightman v Gold Coast City Council,[34] when considering a similar requirement to s 326 of SPA in the repealed Local Government (Planning and Environment) Act 1990, Atkinson J said:[35]

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:

  1. examine the nature and extent of the conflict;
  2. 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;
  3. 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.”
  1. [28]
    Her Honour elaborated on the courts task saying:

“[35]  The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of the Gold Coast is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only. …

[37]  The first task required of the decision maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere in the continuum between those two extremes.  The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.  …

[44] The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme. The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.

[45] The decision maker should then consider other aspects of the development and determine whether they are consistent with proper planning grounds. Those are the planning grounds which apply whether or not the conflict exists.

[46] It is only after consideration of all of these matters that the decision maker is able to properly assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

  1. [29]
    The test, as described by Atkinson J in Weightman, has been applied with fidelity in relation to successive analogous provisions.  In Lockyer Valley Regional Council v Westlink Pty Ltd,[36] the Court of Appeal discussed and affirmed that the Weightman test remained relevant under the amended s 3.5.14, save that the expression “planning grounds” required a narrower inquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which had become relevant.[37]  Both Weightman and Lockyer, were applied in relation to s 326 of SPA in Zappala Family Co Pty Ltd v Brisbane City Council.[38]
  1. [30]
    The term ‘public interest’ is not defined in SPA.  The term and the application of s 326(1) was the subject of recent the unanimous decision of the Court of Appeal in Bell v Brisbane City Council & Ors.[39]  The central issue for the court was the application of s 326 when considering a conflicting development proposal which exceeded 15 storeys contrary to provisions of the planning scheme, in particular:[40]
  1. (a)
    The overall outcome (3)(h) of the Toowong-Auchenflower Neighbourhood Plan, which provided that:

“Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”

  1. (b)
    The corresponding performance outcome was expressed within s 7.2.20.3.3.A as follows:

“Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and:

  1. (a)
    ... 

  1. (b)
    is aligned to community expectations about the number of storeys to be built[.]” 

  1. (c)
    In turn, the corresponding acceptable outcome is expressed within the same provision as follows:

“Development complies with the number of storeys, building height and the minimum site frontage in Table 7.2.20.3.3.B”, with the notation that:

‘Neighbourhood plans will mostly specify maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.’”

  1. (d)
    Table 7.2.20.3.3.B did not specify a maximum height, but it did specify a maximum number of storeys for a site of that kind, being a limit of 15 storeys.
  1. [31]
    In Bell, the Court of Appeal explained that s 326(1)(b) will only be engaged in exceptional cases where there is a tension between the application of the relevant instrument and the public interest embodied in the scheme.  McMurdo J (who wrote the judgment with unanimous support) said:

“[66]  Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest.  If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument.  Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.  In Clark v Cook Shire Council,[41] Keane JA, with the agreement of the other members of this Court said:

‘The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.’ (Emphasis added.)

[67]   It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme.  A decision maker might think that a limit of 15 storeys is too restrictive, and the public would be better served by a higher limit.  But this decision maker must accept that it is in the public interest that the limit be 15 storeys, because that is what the planning scheme effectively provides.”

  1. [32]
    The court identified the types of exceptional circumstances where a decision maker may conclude that the planning scheme did not accurately reflect what was in the public interest saying:

“[68]   Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. Cases of that kind were identified in the explanatory notes for s 3.5.14 of the Integrated Planning Act 1997 (Qld). There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”

  1. [33]
    As to the primacy of the expression of public interest in the scheme, the court said:

“[70]   Consequently, any consideration of the application of s 326(1)(b) of SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated.  Thus in the present case, it had to be assumed that the public interest would be served by confining the development of this land to buildings of a height that accorded with community expectations that buildings would not extend, or at least significantly extend, beyond 15 storeys.  That was not an arbitrary limit; it was an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations.  The Scheme was unambiguous in providing, within AO1.1, that “[d]evelopment must comply with both parameters where maximum number of storeys and height in metres are specified.”

  1. [34]
    In the absence of any circumstances displacing the assumption that the public interest was not reflected in the scheme provisions, the court said:

“[77]   At no point did the judge refer to the Scheme as an embodiment of what represented the public interest.  The judge did not identify any way in which the Scheme’s specification of an acceptable height was to be disregarded as the result of an error in drafting, a change in relevant circumstances from those which existed when the Scheme was prepared or a failure of the Scheme to anticipate a need, in the public interest, for a development on this site with buildings of this height.  In essence his Honour formed his own judgment of what was in the public interest without recognising the relevance of the Scheme to that question.  The same may be said of his conclusion that the public interest justified the conflict between the decision and overall outcome (4)(h).

[78] Ultimately, by the judge substituting his own view of the public interest for that which was expressed in the Scheme, there was a legal error which affected his conclusion under s 326. Further, that was also affected by the legal error in the interpretation of overall outcome (3)(h).”

  1. [35]
    The court rejected, as part of an assessment under s 326(1)(b), some “balancing exercise” by “a balancing consideration of all positive and negative attributes of the proposed development (for example, particular community benefits might weigh in favour of approval even where a proposal is not consistent with the community expectations)”.[42]  As I apprehend it, such a ‘balance exercise’ is to be distinguished from the exercise in the last stage of the Weightman test when determining whether planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.[43]  Further, I do not read the decision as relegating as irrelevant considerations, other favourable planning scheme provisions as part of the examination of the nature and extent of conflict and sufficiency of grounds.[44]
  1. [36]
    Each case will necessarily turn on its own facts in the context of the applicable planning instrument and relevant public interest. Bell was recently considered in this court by Everson DCJ in Bunnings Group Ltd v Sunshine Coast Regional Council & Ors,[45] apparently untrammelled in the long standing application of the Weightman test in relation to s 326 of SPA. 
  1. [37]
    The decision was also analysed by Kefford DCJ in Parmac Investments Pty Ltd v Brisbane City Council & Ors,[46] but was of limited value in the context of the new assessment and decision regime under the current Planning Act 2016 (Qld).  While acknowledging the statement of McMurdo JA at [66] that “a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land”, Kefford DCJ made the following cautionary observations, with which I respectfully agree:[47]

“[26] However, one must be cautious in the application of that observation. It is important that it is not taken out of context. The statement was made in a context where:

  1. (a)
     it was clear that the observation was being made about the role of a planning scheme when s 326(1)(b) of the Sustainable Planning Act 2009 is engaged;
  1. (b)
     the provision being construed, in terms of conflict and grounds to overcome it, was overall outcome (3)(h) of the Toowong-Auchenflower Neighbourhood Plan, which was extracted at [10] of the decision. It states: 


‘Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.’  (emphasis added)

 The provision is unusual in that it not only contains development standards for height, scale and form, but also a discretion to allow departure from the intended development standards where it is established that there is “both a community need and an economic need for the development”.  Where a proposed development does not comply with the intended development standards or the additional factors set as discretionary hurdles, one might expect that it would need to be an exceptional case, in terms of the “grounds” or other “relevant matters” relied on, to support approval;[48] and

  1. (c)
     the description of the planning scheme as providing a “comprehensive expression of what will constitute, in the public interest, the appropriate development of land” should not be taken as a statement that the planning scheme is a complete expression of what is in the public interest.  This is apparent from the observations of McMurdo JA at [68].  It is also self-evident given planning schemes are reflective of a point in time, and are performance based. A performance based planning scheme does not, by its very nature, envisage a single development option or design; rather it presents a series of development parameters that are to be considered and demonstrated by a proposal.  Further, they do not purport to provide for every form of development that may be required to meet the legitimate expectations of the community.  If it were otherwise, the notion of planning need would have no work to do.”
  1. [38]
    Bell was delivered by the Court of Appeal after the hearing of the current appeal.  I invited and received further submissions from the parties in relation to the recent judgment.
  1. [39]
    It seems to me that the exercise required by s 326(1)(b) as refined by the contemporary Court of Appeal authority, involves four tasks (with some overlap between them):
  1. Examine the nature and extent the proposed development conflicts with the terms of the planning scheme as the comprehensive expression and embodiment of what is in the public interest;[49]
  2. Examine whether there is any tension with the application of the planning scheme and the public interest; such that the planning scheme is not, in the particular case, an embodiment of what was in the public interest because, for example:
  1. (a)
    Relevant circumstances have changed since the planning scheme was made; or
  1. (b)
    There is a factual error in the scheme itself; or
  1. (c)
    The planning scheme has not anticipated the existence of circumstances that have created a need for a certain development in the public interest.[50]
  1. If there is tension, examine any grounds that are relevant to the part of the application in conflict with the planning scheme but otherwise in the public interest;[51] and
  2. Determine whether the grounds are sufficient, in the public interest, to depart from the planning scheme and justify approving the application notwithstanding the conflict.[52]

Appeal Issues

  1. [40]
    The disputed issues can be synthesised as follows:[53]
  1. The nature and extent the proposed development conflicts with the terms of the planning scheme;
  2. Whether there is tension between that application of the planning scheme and the public interest because, the planning scheme failed to anticipate, or properly deal with, the existence of circumstances that have created a need for a commercial groundwater extraction in the public interest;
  3. If there is tension, whether any grounds are relevant to the part of the application in conflict with the planning scheme but otherwise in the public interest;
  4. Whether the grounds are sufficient, in the public interest, to justify approving the application notwithstanding the conflict with the planning scheme.
  1. [41]
    At the commencement of the hearing of the appeal, the disputed issues also included whether there are any amenity reasons to refuse the Development Application arising from the Changed Proposal. As the evidence evolved, it was accepted that the noise impacts likely to arise from the development application did not amount to a ground of refusal on the basis that a Noise Management Plan can form part of any development permit conditions.[54]

Nature and extent of conflict with the planning scheme

  1. [42]
    It is necessary to identify any conflict between an approval and the planning scheme, and if so, consider the nature and extent of the conflict taking a sensible approach and regarding the scheme as a whole as a comprehensive expression and embodiment of the public interest.
  1. [43]
    Any conflict must be “plainly identified”.[55]  The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough CC (No. 2),[56] where Fryberg J said:

“‘Conflict’ in this context means to be at variance or disagree with.  It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme).  Unlike ‘compromise’ in para. (a), it implies no particular impact by a subject upon an object.  A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter.  Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”

  1. [44]
    In Zappala Family Co v Brisbane City Council[57], the Court of Appeal affirmed the following approach taken by that Court in AAD Design Pty Ltd v Brisbane City Council[58] to the interpretation of planning schemes:

“[53] This Court, in AAD Design, endorsed that “the established principles and canons of statutory interpretation should be applied” when construing planning documents.

  [54] Chesterman JA took the same view, adding:

[37] The starting point in construing statutes and like instruments remains, I think, that explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5:

‘It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’: River Wear Commissioners v Adamson. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that the words mean what they say: cf Cody v JH Nelson Pty Ltd. Of course, no part of a statute can be considered in isolation from its context – the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified, words’: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Ltd…However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature.’

[55] The correct approach to statutory interpretation must begin and end with the text itself.  At the same time it must be borne in mind that the:

‘modern approach to statutory interpretation…(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, ad (b) uses “context” in its widest sense…”41

[56] The fact that planning documents are to be construed precisely 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.

[57] As was said by Chesterman JA in AAD Design:

[18] Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter Hughes and Partners Pty Ltd [1992] 1 QD R 352 at 360:

‘To arrive at the so-called proper construction of such provisions involves a good deal of guess work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure (cf Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157 at 162; Brown v Idofill Pty Ltd (1987) 64 LGRA 218 at 227; Tainui Pty Ltd v Brown (1988) 65 LGRA 22 at 27).’

[58] However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.”

  1. [45]
    Later, in Kangaroo Point Residents Association Inc v Brisbane City Council,[59] the Court held at [69]-[70]:

“A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors.  There, after noting that the first instance approach to the application of the scheme to the developer’s proposal involved ‘a correct interpretation of the language of the scheme’ and ‘a factual conclusion as to the absence of conflict,’ de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].

But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents.  This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors.  There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using ‘context’ in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA’s analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56].  In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council, to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to ‘expressions of judicial exasperation:’ at 96 [57]”.

  1. [46]
    The appellant accepts that a decision to approve the development application would result in a conflict with the planning scheme because the proposed development is not a consistent use in the Village Residential Precinct.
  1. [47]
    The use proposed is defined under the planning scheme as follows:[60]

“Commercial Ground Water Extraction means the extraction of ground water resources and the removal of that resource from a property for the purpose of sale.

The term includes the treatment and storage of extracted ground water resources.”

  1. [48]
    The planning scheme provides measures that “facilitate achieving the strategic outcomes”.[61]  The higher order provisions comprising the Desired Environmental Outcomes are “an expression of the Strategic Framework upon which the Planning Scheme is based”.[62] 
  1. [49]
    The relevant Desired Environmental Outcomes of the planning scheme are:
  1. (a)
    DEO 2.1.3(2)(d) - protects the continuation of lawful but non-conforming uses (such as Minor Public Utilities (commercially extracting groundwater on Tamborine Mountain) established under, or prior to, the Superseded Planning Scheme), only where there is a proven overwhelming community and economic need for such uses;[63] and
  1. (b)
    DEO 2.1.3(2)(e) - protects and maximises the availability of regionally and locally significant extractive and mineral resources in areas appropriate for such development and avoids conflicts with their extraction, processing and transportation.[64]
  1. [50]
    These show a particular stringency towards continuing commercial ground water extraction, and impacts of other resource extraction. DEO 2.1.3(2)(e) is focused on “areas” (not smaller parcels of land or premises) that have strategically been identified appropriate for protection of that resource. This is consistent with other planning scheme provisions:
  1. (a)
    extractive and mineral resources and their haul routes are not compromised or constrained by incompatible development;[65]
  1. (b)
    appropriate buffer areas to existing and proposed extractive resources and their haul routes are provided;[66]
  1. (c)
    the protection of the regionally significant extractive resources in the Bromelton State Development Area Zone from incompatible development is a local strategy for the Bromelton Zone;[67]
  1. (d)
    the use of premises for an extractive industry is an impact assessable (consistent) use in the Countryside Precinct of the Rural Zone.[68]
  1. [51]
    It is apparent that a decision to approve the development application may well comply with the Commercial Ground Water Extraction Code,[69] including the specific outcomes and prescribed solutions related to the overall outcome that: “Commercial Ground Water Extraction maintains the amenity of the surrounding area and protects the underlying aquifer”.[70]  But such a consistency must be considered in the context of the planning scheme as a whole. 
  1. [52]
    Section 1.4.8 of the planning scheme provides for a hierarchy of Codes such that where there is an inconsistency between the assessment criteria of the codes. There are three classes of Codes in the Planning Scheme: Zone Codes (Chapter 3); Overlay Codes (Chapter 4); and Use and Works Codes (Chapter 5). The criteria of the Zone Codes prevail over other criteria in other codes.[71]  The codes in Chapter 5 are assessment criteria for development of a stated purpose (for example, Commercial Groundwater Extraction),[72] must be read in conjunction with the assessment provisions for the Tamborine Mountain Zone in Chapter 3.[73]
  1. [53]
    In this case, whilst Commercial Ground Water Extraction is specifically provided for in the Assessment Table for a material change of use of premises in the Tamborine Mountain Zone,[74] a specific outcome for that Zone is that development is limited to consistent development.[75]  The Specific Outcome SO1 states:[76]

“SO1 Development is limited to development which is ‘Consistent Development’ as identified in Table 3.7.7 Consistent Development in the Tamborine Mountain Zone.”

  1. [54]
    Commercial Ground Water Extraction is not identified in Table 3.7.7 of the planning scheme.[77] 
  1. [55]
    Development that is not specified as being consistent development in a consistent development table for a zone is “inconsistent development”.[78]  Inconsistent development is expressly said to be inconsistent with the applicable zone code and relevant overlay code.[79]
  1. [56]
    The words of the planning scheme are clear in their effect, and in the absence of ambiguity, that clear meaning should be given effect. Here, the planning scheme sets a high bar by making the use an inconsistent use in the Tamborine Mountain Zone and all other zones.[80]  This high bar is in addition to, and not in substitution of, the requirements of the Commercial Groundwater Extraction Code. 
  1. [57]
    It must then follow that the proposed development is not a consistent use in the Village Residential Precinct of the Tamborine Mountain Zone (and in all other zones). It is clear that a decision to approve the development application would result in a significant conflict with the planning scheme.

Whether there is tension between applying the planning scheme and the public interest because it fails to anticipate the need for the use in the public interest

  1. [58]
    This task requires an examination of whether this is an exceptional case where tension between the application of the planning scheme and the public interest rebuts the assumption that the public interest is embodied in the planning scheme. This involves necessary overlap with my consideration of the relevant grounds below.
  1. [59]
    The appellant argues that this case is exceptional in circumstances where:[81]

“(a) It is clearly the case that the planning scheme failed to anticipate, or for that matter properly deal with, the need for a supply of commercial potable water on the Tamborine Mountain as existing tank water and private bore water for the relevant residences and businesses, without question on the evidence before this Court, were prone to failure; and

  1. (b)
    There could be no doubt in this case that your Honour is not cognisant of the fact that the scheme purported to represent the public interest in making commercial ground water extraction an inconsistent use throughout the Scenic Rim, but in circumstances where the Tamborine Mountain community’s particular needs for water have not been properly dealt with.”
  1. [60]
    On the contrary, the respondent council submits that the appellant has not demonstrated any exceptional circumstances causing tension between the application of the planning scheme and the public interest and, therefore, s 326(1)(b) of SPA is not engaged in this matter and the development application must be refused.
  1. [61]
    Water is obviously a most important necessity of life. The town planning experts agreed that “the provision of potable water is an essential part of life on the Mountain”.[82]  There is also evidence of a demand for the purchase of ground water extracted from sources on Tamborine Mountain.  The importance of water for the wider community was also evident in the appeal, underscored by the growing bottled water industry and demand for bottled water in the foreseeable future.  There can be no doubt, as contended by the appellant, that the provision of potable water from sources on Tamborine Mountain, to consumers within the community on Tamborine Mountain, is a matter of public and community interest, particularly when:
  1. (a)
    Reticulated water is not available on Tamborine Mountain and, in all likelihood, never will be.  There are no rivers or streams on Tamborine Mountain.
  1. (b)
    Existing private tanks and bores fail, from time to time - water tanks for residents and businesses run dry,[83] and that water bores are subject to fail.[84] There remains ‘the inherent uncertainty and variability of the local groundwater supply’ that affects bores on certain parts of Tamborine Mountain.[85]
  1. (c)
    There is a supply that exists in the aquifer on the Tamborine Mountain; and
  1. (d)
    Amenity, safety, traffic and town planning concerns attend the notion of importing the water from off the mountain, and perhaps even from beyond the Scenic Rim.
  1. [62]
    The critical question is whether such circumstances give rise to tension between the application of the planning scheme and the public interest because the planning scheme failed to anticipate, or properly deal with, the need for reliable supply of commercial potable water on the Tamborine Mountain, and thereby rebuts the assumption that the public interest is embodied in the planning scheme.
  1. [63]
    The evidence of reliability of supply of commercial potable water on the Tamborine Mountain is analysed below, suffice it to say, that the council’s submission is borne out that:
  1. (a)
    The undisputed evidence that the present supply of water for local bulk water supply is more than adequate. The present extractors are unable to find a local market for water they are entitled to extract. We have set this evidence out in considerable detail in paragraphs 121 to 155 of our Submission. Both commercial water extractors called by the Appellant, Mrs Gill and Mr Robert, gave evidence of significant unused capacity in the amount of water permitted extraction under their development approvals. Mrs Gill agreed that there was a “very large quantity of water available at Curtis Road already to supply local need”; and Mr Robert said he had never utilised his full capacity, indeed (in effect) that he had at least 15 mega litres available each year for local supply;
  1. (b)
    The evidence that for all of the time the appellant was extracting form the land, it supplied no water to the local community. That is, for 10 years, not once was the Appellant required to supply locally to meet a local need;  
  1. (c)
    The evidence from Mr Robert that local demand was reducing due to Council’s new requirements of residents for bigger tanks;
  1. (d)
    The fact that Mr Robert had not utilised his capacity during the time that the appellant was not extracting form the land;
  1. (e)
    The evidence of the water carrier Mr Cullen of Pony Express that between 2000 and 2017 the two water carriers “handled things really well”. Mr Bethke identified two or three periods in approximately 30 years where he had high demand for his services;
  1. (f)
    The evidence that any need to wait for water during those few periods of high demand was a product not of a lack of water, but a lack of carriers;
  1. (g)
    The evidence that the Appellant could not identify when it would supply water locally, nor guarantee that it would ever do so. It is an odd proposition that the proposal must be approved to secure an essential of life when the Appellant’s need expert, when given the opportunity to identify when it would be that the Appellant would supply water locally said:  

“Well, we can’t identify when it’s going to do that. It will depend on the choice and the convenience of a range of people in terms of what they want to do, and agreements that might be in place with other people, and the prices that they charge”.

  1. (h)
    The ample evidence to the effect that the supply of water from the land will not, and has not while the land has not been operating, make any difference to the bottled water market.
  1. [64]
    I respectfully agree with the observations of Robertson J in the previous appeal when he spoke of council’s deliberate policy decision, which remains apt here:[86]

“[188] …Commercial Groundwater Extraction was not a use defined in the Superseded Planning Scheme. In this Planning Scheme however, not only is it a defined use, a Commercial Groundwater Extraction Code is provided and the use is specifically provided for in the Assessment Table for a Material Change of Use in the Tamborine Mountain Zone.  It follows that its exclusion from the Consistent Table of Uses in the Tamborine Mountain Zone and indeed in all other Zones in the Shire was as a result of a deliberate policy decision.

[189]   Council may have had this particular use in mind. There is no evidence of that.  However, when read as a whole, and in a practical and sensible way, it is clear from the Planning Scheme that council did not want such a use as this anywhere in the Shire but, in anticipation that such a use may be applied for, it set a high bar in by making the use an inconsistent use in all Zones and relevantly, in the Tamborine Mountain Zone.”

  1. [65]
    It seems to me that the reference to policy is reflective of public policy, which can only manifest itself from the provisions of the planning scheme itself.
  1. [66]
    It is the appellant’s case that the only underlying purposes of such a deliberate policy on the face of the 2007 scheme is one directed at managing the impacts of extraction on local aquifers as well as the impacts of the extraction process on surrounding amenity.[87]  It asserts that these underlying purposes manifest most clearly in the Overall Outcome for the Commercial Groundwater Extraction Code that: “Commercial Ground Water Extraction maintains the amenity of the surrounding area and protects the underlying aquifer.”[88]
  1. [67]
    The appellant argues that in reality, having regard to the provisions of the planning scheme:
  1. (a)
    The higher order provisions of the planning scheme make no specific reference (and certainly no negative reference) to the defined use here being a Commercial Groundwater Extraction use;
  1. (b)
    The protection and winning of extractive resources, which is defined as including the extraction of groundwater, is specifically encouraged by DEO provision s.2.1.3(2)(e) supports the proposed development;
  1. (c)
    By its extraction of a quality resource at a proven sustainable rate, the proposed use both “protects” and “maximises” the availability of this regionally and locally significant resource (to paraphrase the DEOs provisions) and the absence of unacceptable amenity impacts confirms that the extraction and transportation is not inappropriate; and
  1. (d)
    The Commercial Groundwater Extraction Code directs itself towards managing impacts on amenity and the sustainability of aquifers.
  1. [68]
    It seems to me that arguments serve to reinforce the primacy of the scheme, and the need to consider the matter in the context of the planning scheme as a whole.
  1. [69]
    The planning scheme provides measures that “facilitate achieving the strategic outcomes”.[89]  The higher order provisions comprising the Desired Environmental Outcomes are “an expression of the Strategic Framework upon which the Planning Scheme is based”.[90]  Different Codes include provisions that deal with the intent and operation of the scheme to facilitate the planning schemes strategic outcomes.[91] Satisfaction of one Code does not obviate the need to satisfy the requirements of any other higher order Code.[92]
  1. [70]
    It that way, the 2007 planning scheme seems to strike an overall balance in the public interest, between the many interests potentially affected by the planning scheme, cognisant of the need for reliable supply of potable water for water tanks and bore water for both residential and business purposes.
  1. [71]
    The planning scheme expressly acknowledges that the Village Residential Precinct on Tamborine Mountain is not served by a reticulated water or sewerage system and requires that development in that precinct provides on-site provision of water and sewerage.[93]  The planning scheme also encourages the use of the underground water primarily for agricultural purposes, while encouraging residents to become self-sufficient for water, which may involve the collection of rainwater in tanks and access by bore to the underground water supply.  Tamborine Mountain is a growing community.[94]  However, the planning scheme does not envisage further division of land within all the residential precincts (including the Village Residential Precinct) on Tamborine Mountain[95] thereby restricting future population growth on Tamborine Mountain and the consequent impact on infrastructure services such as water supply.  In the absence of a reticulated water supply on Tamborine Mountain, the planning scheme requires that all new development makes adequate provision of water supply to meet the needs of occupants,[96] including an adequate supply of water for fire fighting purposes.[97] 
  1. [72]
    While unusual, the provisions are consistent with a deliberate planning strategy, as explained by Mr Schomburgk about Appendix 1 of Exhibit 23B, who said:[98]

“And could I ask you to respond to that by reference to paragraph 9 and onwards of exhibit 23B?---What I’ve sought to do, your Honour, from paragraph – paragraphs 9 and 10 in particular is to explain what I understand the basis for the – the principle, or the ethos, as I’ve referred to it at paragraph 10, behind what the Council has done for this part of Tamborine Mountain.  There are references, and – and they are attached – there’s an attachment to this, exhibit 23B, which lists the references.  There are references in various parts of the planning scheme to this – what I call the principle or the ethos, that is, that it’s intended by the planning scheme that, for better or for worse, what the scheme has sought to do is ensure that residents and businesses on the mountain are self-sustainable with respect to water and – and effluent disposal – water supply and effluent disposal.  There are – as I said, there are various references from the higher order provisions of the scheme in the strategic framework right down to the various reconfiguration of a lot code and everything in between – well, sorry – many things in between, and that’s – that appears at page 6 of – of exhibit 23B.  So it’s not just – in this case, in my opinion, it’s not just a conflict with one – one individual element of the planning scheme, but it’s a conflict which – which the court has previously found to be a significant conflict with – with this thread, if you like, that runs through the planning scheme, that – that water supply is not intended for the mountain and that people, in essence, in my words, people that choose to live there ought to be aware that they will need to make their own arrangements and be self-sustainable with respect to water supply and, indeed, effluent disposal.  So, yeah, I think there is – it’s not just a one-off conflict. It’s a conflict with the – with the whole ethos, as I’ve put it, that purveyed the scheme.”  (emphasis added)

  1. [73]
    I accept the respondent council’s argument (joined by the co-respondent submitters) that the planning scheme squarely addresses the issue of water on the mountain and cannot be said to have overlooked it or failed to anticipate the obvious, that locals would need reliable water supply to sustain life and businesses.[99]  The designation of Commercial Groundwater Extraction as an Inconsistent Use within the Tamborine Mountain Zone was as a “result of a deliberate policy decision”,[100] which could be described as “striking the overall balance in the public interest, between the many interests potentially affected by the planning scheme.”[101] 
  1. [74]
    It my opinion the appellant has not demonstrated a category of exceptional case where there is tension between the planning scheme and the public interest because the planning scheme has not anticipated the existence of circumstances that create a need for Commercial Groundwater Extraction in this planning area. On the contrary, it seems to me that the planning scheme has properly anticipated the circumstances and need in the planning area. Therefore, s 326(1)(b) of SPA is not engaged in this matter and the development application must be refused.
  1. [75]
    Even if I’m wrong about my approach to the matter, for the reasons that follow, the appellant has not established sufficient grounds of economic, community or planning need for Commercial Groundwater Extraction on the land to elevate the matter to an exceptional case warranting approval under s 326(1)(b) of SPA.

Whether any relevant grounds otherwise in the public interest.

  1. [76]
    The next task is to examine any grounds that are relevant to the part of the application in conflict with the planning scheme but otherwise in the public interest.
  1. [77]
    The appellant relies upon four main grounds to justify approval of the application despite conflict with the planning scheme:
  1. There is an economic need to provide such good quality water to the growing bottled water industry (serving the growing population, both locally and regionally);
  2. There is a town planning and community need for the proposal to be available to provide bulk water to the people of Mt Tamborine;
  3. The proposal will provide a public benefit in that it will make available a reliable and conveniently located source of water for fire fighting purposes in a community that does not have the benefit of a reticulated water supply; and
  4. The proposal will provide a public benefit in that it will make available a reliable and conveniently located source of water for charitable purposes during times of natural hazards and emergencies.

Community Need

  1. [78]
    The notion of need in this context is the enhancement of community wellbeing, and has been analysed by this court in the past, including:
  1. “In ordinary parlance, one hears reference to phrases such as, ‘a person in need’, which conveys as a matter of objective fact the idea that that person, if not in distress, is nonetheless deprived to the extent that his wellbeing is at risk.  One cannot sensibly translate that concept into the town planning context.  ‘Need’ in planning terms is a relative concept … (It) is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided.  Rather, it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring that the provision of that facility, subject always to other considerations of the town planning kind, including all consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity.”[102]
  2. ‘'Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature.  A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community.’[103]
  3. ‘‘Need’, in planning terms, is a relative concept.  It does not connote pressing urgency, but rather relates to the general wellbeing of the community.  A use is needed if it would, on balance, improve the services and facilities available in a locality.’[104]
  4. 'To provide competition and choice where none exists can represent the filling of a need.’[105]
  1. [79]
    The appellant does not contend that there is a shortage or difficulty in supplying bottled water for the local residents and businesses of Tamborine Mountain such that approval would provide redress and betterment of the local community.
  1. [80]
    Indeed, it is plain that the appellant’s preference is to supply the bottled water market, and that demand takes precedence over any local supply,[106] and Mrs Gill agreed there is a commercial advantage in selling water down the mountain.[107] 
  1. [81]
    By way of analogy with supermarkets, the appellant argues that any benefit that accrues to the water bottlers is evidence of an enhancement of community well-being and, as a matter of economic principle, any choice or competition in their sources of supply can only be beneficial to their consumers. The appellant asserts that the proposed development will provide beneficial services and facilities in the locality. This all falls to the discussion of economic need below.
  1. [82]
    It is also clear that the proposal is unlikely to see any indirect benefit of locational or quality recognition, or even in terms of consumer choice. By the time Mr Starling bought Wet Fix, it was no longer necessary for Mr Starling to keep separate the Tamborine Mountain water. By October 2015, new packaging was introduced by Woolworths with the removal of any reference to Tamborine Mountain. So, by then, it was not necessary “to mix and isolate water”.[108]  Mrs Gill said there was not enough water from Tamborine Mountain for any of the major labels to identify water as Tamborine Mountain water: “it couldn’t happen”.[109]  As Mrs Gill said, when the appellant first had the Woolworths contract, in about 2008, the water was kept separate,[110] and Wet Fix bottled and labelled the water as sourced in the pristine Tamborine Mountain area.[111]  But Mrs Gill agreed that it was unlikely that the quality of the water from the land would, in the future, be recognised in the branding or marketing of a particular water brand.[112]  So much is demonstrated by the mixing, treatment and labelling discussed below in relation to economic need.
  1. [83]
    More broadly, and also overlapping with economic need considerations discussed below, evidence was adduced tending to show the appellant’s proposal might have negligible affect on the price of bottled water in the wider market.
  1. [84]
    I am not satisfied that the appellant’s proposed supply for bottled water provides any significant redress and betterment of the local community.

Bulk Supply

  1. [85]
    From the community’s perspective, the appellant points to the following evidence to show that the proposed development will improve its physical wellbeing:
  1. (a)
    the following two points of agreement in the Supplementary Town Planning Joint Report, namely[113]:

“(51) There is agreement that the provision of potable water is an essential part of life on the Mountain and that anything that adds to the supply of potable water has a community benefit.

(52) There is also agreement that any additional source of water for fire fighting purposes is likely to be of some benefit to the community.”

  1. (b)
    the following passage of Mr Dimasi’s evidence[114]:

“… And what’s the relevance of this quality and the sustainability of the water supply to your opinion in that regard?---Sorry, what is the relevance of the quality and sustainability of the water quality supply?

… Well, again, I’m not a water expert, so I have to form a view based on everything that I’ve seen in terms of water availability and supply and so on. It’s an important issue, in my view, yes.

Two issues - - -?---That water be sustainable and that water be of high quality for the residents, yes.

And that points towards a favourable conclusion with respect to need, that is, the provision of that type of resource to the community is of benefit to that community?---Well, the – the availability of high quality and sustainable water supply to the community is – is of benefit to the community. That is self-evident.” (appellant’s emphasis)

  1. (c)
    the following passages of Mr Schomburgk’s evidence[115]:

“Is it – in town planning principles, again, would it be sensible or appropriate for this community to be provided with water trucked up from another shire, when there is, within the community, for example, at Power Parade, clear evidence of a sustainable and good quality source of water?---There’s no doubt that the community would benefit from having water right at their doorstep. And that doesn’t overcome, in my opinion, the conflicts with the planning scheme. I keep coming back to that and I apologise to the court if it sounds repetitive, but that’s the basis on which I’ve accessed this application.”  (appellant’s emphasis)

And:[116]

“Another supply of water – good quality, sustainable supply of water on the mountain  would, it – would it not, improve physical wellbeing of this community?---And I’ve said as much in one of my reports, if not more than one – that the addition of one provider is a community benefit. I see it as a very minor community benefit, but it is a community benefit, yes.” (appellant’s emphasis)

  1. [86]
    However, these benefits ought not be considered in a vacuum, and the capacity of the resource to supply the local community is a significant consideration in this context of economic need.
  1. [87]
    I accept that resident’s and business local to Tamborine Mountain have bought water commercially from time to time, however this seems to me, for the reasons that now follow, to be a problem of service rather than limited supply form available resources.
  1. [88]
    Mr Duane agreed that the extent of the need for this proposal depends in large part on the ability of local supplies to meet any demand.[117]  It was important to assess the ability of existing sources of water to respond to the demand.[118]  But Mr Duane struggled to identify the timeframe that the appellant would supply water locally, saying:[119]

“Well, we can’t identify when it’s going to do that. It will depend on the choice and the convenience of a range of people in terms of what they want to do, and agreements that might be in place with other people, and the prices that they charge.”

  1. [89]
    However, Mr Duane was unsure whether he’d identified all of the lawful extractors on the mountain.[120] He did not know whether the facilities were operating to their capacity.[121]  He could not quantify the amount of water capable of lawfully be extracted.[122]  He was unable to remark about the capacity to respond to for example, a drought.[123]  Further, he made no enquiries of local residents as to whether another facility is needed.[124]  At least the submissions of the resident co-respondents contend otherwise.
  1. [90]
    Two water extractors gave evidence about availability of water supply.
  1. [91]
    First, Mrs Gill, who through the appellant conducts a water extraction business from Curtis Road, gave evidence that the appellant had more than sufficient water at Curtis Road, and it is not difficult to supply water to the locals. She stated there were 22 loads in September that the locals could have had.[125]  Mrs Gill, in cross-examination agreed that there is a very large quantity of water available at Curtis Road already to supply any local need.[126]
  1. [92]
    Secondly, Mr Roberts, who conducts his business of water extraction from Holt Road, testified that he had an approval for 50 mega litres per year, but had not extracted more than 35 mega litres a year or something of that order.[127]  He added that he had never extracted to the capacity of his permitted extraction.[128]  He said that his sales to the local bulk water market had actually decreased.  He attributed that to the fact that council now requires every house to have “tanks of a certain capacity” and because more people had put bores down.  He also said he thought the price of his water was perhaps a bit above the other suppliers[129] (which suggests that the water carriers were getting water locally from someone who charged less).
  1. [93]
    Further indicia of sufficient local bulk supply from other available extraction is that in the period between June 2004 and when the appellant’s use closed in April 2014, all of the appellant’s water from the land went to bottlers, to Wet Fix,[130] and during those years no water was supplied for local bulk water.[131]  This is also consistent with the quantity of water supplied by the appellant from Curtis Road.[132]
  1. [94]
    Mr Duane agreed that if the appellant had chosen between 2004 and 2015 to pursue its commercial interests over local supply, it could have done so for the whole of that period and not been called upon to supplement the local supply market.[133]  Evidently, even without the appellant supplying water from the land to locals during that period, Mr Roberts never exhausted his extraction capacity responding to local or any other need.
  1. [95]
    Mr Cullen, a bulk water carrier and the proprietor of Pony Express, observed that the two water contractors on the mountain “handled things really well” between 2000 and 2017.[134]  He elaborated saying:

“I mean that we probably – we may have had short waiting lists but they wouldn’t have been very much. And I don’t believe my wife has ever asked anybody during the period ‘02 to ‘17, I don’t believe my wife has ever told anybody that – to go to the Coast and get water from there, because we were unable to deliver it.”[135]

  1. [96]
    Another carrier, Mr Bethke identified two or three periods in approximately 30 years where he had high demand.[136]
  1. [97]
    Unfortunately, Mr Duane, when giving his evidence, did not have the benefit of the important oral evidence of Mrs Gill, Mr Robert, Mr Cullen or Mr Bethke (or any other lay witnesses called). Mr Duane agreed that during normal times the local demand was being met by the current resources.[137]  He also accepted that there was no evidence to suggest that the current supply of water on the mountain was not adequate during average times,[138] and the local water carriers were “meeting demand at different rates at different times”.[139]
  1. [98]
    Mr Dimasi testified, with the benefit of the other evidence, that “there is generally no issue with availability of water as a problem from a local supply perspective“,[140] “and“ any issue in meeting local water demand was not the availability of extraction.”[141]  Rather, it became clear that the issue is one of service rather than limited available resources.
  1. [99]
    Mr Dimasi testified as follows:[142]

Now, can I come back to the proposition which you agreed to a little earlier, and it’s important – sorry, that it’s important to the local community to have an adequate supply of water.  Do you remember I asked you that? -  Yes.  Yes.

And yesterday you said it’s important in this case.  You commence with this proposition, to ask the right question, or to focus on the right question, which is what is the need for this particular proposal? - Correct, yes.

Now, what I’d like to do – what I’d like you to do is to juxtapose against the proposition that it’s important to the local community to have an adequate supply of water, juxtapose that self-evident proposition with whether this facility is needed? - Certainly.  This facility, in my view, is not needed in order to meet the first requirement to have an appropriate level of water available for local residents.  The two could be inter-related.  It could be strongly related, but the evidence shows that they’re not, because there is no shortage of available water, as such, to meet the needs for the carted water needs of the local population, and we should all bear in mind that we’re talking about the carted water needs, which is one part of the total water needs of the local population, in which appears to be apparent in times of difficulty with rainfall and times of particularly short – or sorry, particularly low levels of rainfall, but I did not see any – or I did not hear anything from the evidence given yesterday from the various water carters and so on, and as is clearly evident from the evidence just pointed out from both Mr Cullen and Mrs Gill, that availability of water was the issue.  It seemed to be logistics of having sufficient truck-carrying movements to meet the short-term high level of demand during a period that is – that is relatively dry.

So what do you say about this – the availability of water, or the sufficiency of the availability of water for local need? - Well, it seems to me on all of the information that is available, that there is ample available water to meet local needs.”

  1. [100]
    It seems to me that the waiting lists for the delivery of water were the product of too few carriers for dry times, rather than the unavailability of water from extractors on the mountain. Mr Duane agreed that such was “one of the factors” that could be causing Mr Bethke to be so busy in the drought times.[143]  Mr Dimasi observed that “logistics of having sufficient track-carrying movements to meet the short-term high level of demand during a period that is – that is relatively dry” was the issue, not the availability of water.[144]
  1. [101]
    Mr Duane was unable to give an assurance that the appellant would supply water or respond, in times of need from the land.[145]  He was unaware of how much would be provided on the mountain.[146] 
  1. [102]
    Whilst, acknowledging the commercial advantage in selling the water down the mountain,[147] Mrs Gill said in her supplementary statement that “at present” water is supplied to locals at $30.00 per 13,000L load.[148]  This is less than the $48 per truck load charged by Mr Roberts and less than the figure charged for water from the Canungra QUU facility.  In examination in chief, she said her “present intention” was to sell at that rate.[149]  This left with low confidence that the reduced price is sustainable in a competitive environment,[150] and whether any local water carriers would pass all, or even some, of any cost difference onto the residents.  Even if the price difference was all passed on to the residents, it would be small - Mr Dimasi calculated the difference at 67 cents per day per average size family,[151] which was unlikely to be greater over a year.[152]
  1. [103]
    Finally, while there is some predicted growth in the local population, it been not been demonstrated that the proposal is necessarily looking into the future. The projected population growth figures are set out in Table 3.1 of the Joint Economic Need Report – Addendum (Curtis Road and Holt Road).[153]  Those figures show a rate of growth already lower than the average rate of growth in Australia, falling substantially below that rate looking in to the medium term future.[154]  A further mitigating factor, is that new housing requires 45,000 litre water tanks.  Mr Roberts agreed his level of sales to the local market were in fact decreasing because of the increased size of water tanks required by council and because more people were putting bores down.[155]
  1. [104]
    For these reasons, it seems to me that the weight of the evidence in respect of supply of bulk water for local residents and businesses bears out the council’s contentions (and those joined by the submitter co-respondents) that:
  1. (a)
    Bulk water is being delivered by local water carriers to residents on Tamborine Mountain;
  1. (b)
    During dry times or drought times, and as a result of too few carriers on the mountain, the existing local water carriers are busier than usual servicing the demand for bulk water by residents;
  1. (c)
    There is significant, unused, capacity available from existing commercial extractors to supply bulk water to meet the demand of the local community for bulk water, whether during ‘normal times’ or ‘dry times’;
  1. (d)
    The weight of evidence strongly supports the position that there is no difficulty in sourcing, nor a shortage of supply of bulk water on or off the mountain to meet the demands of the Tamborine Mountain community;
  1. (e)
    There is no evidence that the supply of bulk water from the proposed development would be more convenient than the existing commercial extractors on Tamborine Mountain, for the Tamborine Mountain community;
  1. (f)
    There is no evidence that any decrease in cost of supply of bulk water from the appellant to local water carriers, even accepting that pricing is a matter entirely of private economics which cannot be enforced or conditioned, will lead to any price benefit to the local community; and
  1. (g)
    It is not clear if and when the appellant might have available water for bulk water supply to the local community.
  1. [105]
    I am unable to discern any community need for the proposal. I am unpersuaded of any real beneficial impact and improved wellbeing in the Tamborine Mountain (or the wider) community in terms of the price of bottled water. It seems to me that there is no real difficulty in the supply and delivery of water in bulk and bottles to business and residents on Tamborine Mountain. Further, the evidence is too broad and speculative in relation to any community need, having regard to competition within the industry, availability of choice of product to the community; and the level of convenience of sourcing or obtaining product to the community.
  1. [106]
    Therefore, I am not persuaded that there are grounds in terms of community need sufficient to justify approval despite the conflict.

Economic Need

  1. [107]
    The appellant contends that there is an economic need to provide such good quality water to the growing bottled water industry serving the growing population, both locally and regionally.
  1. [108]
    This involves consideration of whether there is an unsatisfied economic demand and that the development is necessary to cater for that demand. Where, as here, a product is largely homogenous, readily capable of substitution, and the quantity involved is but a fraction of the competitive market into which it is to be distributed, it will be difficult to demonstrate that a particular proposal involving that product will satisfy a need or generate a material community benefit.[156] 
  1. [109]
    Many Australians perceive bottled water as an important element of their everyday lifestyle,[157] and the market for bottled water is substantial and growing.[158]  This is borne out by the 2015 and 2017 IBIS reports, and affirmed by the testimony of expert economists Mr Duane[159] and Mr Dimasi.[160]  In particular, a comparison of the two reports reveals that the size of the market, and the level of projected growth has increased from the 2015 to 2017 report.[161] 
  1. [110]
    Mr Dimasi was of the view that the IBIS World review of the industry points to a product which is readily acknowledged to be homogeneous and easily substitutable and an industry which is highly competitive where there is no shortage of alternatives for supply.[162]  As he said, the water taken from the land is not taken out of the market but replaced.[163]  His examination of the 2017 IBIS report identified a number of developments since the earlier 2015 IBIS report including:[164]
  1. (a)
    The “mature” phase of the industry is heavily emphasised and the industry is projected, by IBIS, to underperform the broader economy to a greater extent than was estimated in 2015;
  1. (b)
    The level of concentration as reported by IBIS had reduced with the industries two largest players, Coco-Cola Amatil and Asahi Holdings Australia estimated to account for 61.4% of the total industry at 2017 compared to 66.1% in 2015;
  1. (c)
    Cheaper home brand bottled water sold by supermarket groups was winning a steadily increasing share of the total market;
  1. (d)
    Industry competition had increased and arising prevalence of private labelled products had driven prices down forcing players to focus on volume growth rather than price;
  1. (e)
    Growth had been constrained by competition by reducing prices;
  1. (f)
    The industry’s contribution to the economy was shrinking due largely to rising competition and consolidation in the industry;
  1. (g)
    The bottled water manufacturing industry was highly competitive both internally and externally; and
  1. (h)
    The main points of difference for industry operators were price, branding and packaging. Price was an important basis of competition for the industry given the ease of substitution to cheaper products.
  1. [111]
    Mr Dimasi said whatever the “special” qualities of the groundwater available from the land, it is readily apparent that the absence of that water source has not resulted in any demonstrable diminution in the availability of “high quality” spring water, either for South East Queensland or for any other part of Australia.[165]
  1. [112]
    Of course, reliable, strategically located and sustainable supplies of spring water will be required to support the ever continuing market into the foreseeable future. The ACCC report[166] referred to a “national market” in bottled water.  I am unable to discern from the evidence that there is a distinct “South East Queensland market”, or “regional market” or local market for bottled water.  Businesses and each of them served the whole country. In reality, the water potentially available from the land would constitute a minimal proportion.[167]
  1. [113]
    Mr Dimasi characterised the bottled water market in terms of a national market because:[168]
  1. the product is sold by most, if not all of the key operators on a national basis and is the same product that is sold across all parts of the country;
  2. the product is produced at one location but then sold at a wide range of locations quite some distance away;
  3. retailers such as Woolworths distribute products over very large regions; and interstate businesses are attempting to establish in Queensland.[169]
  1. [114]
    Smaller independent water bottlers, like Nu Pure,[170] are important but face high barriers of entry within the market,[171] and the dominance of the two major operators, Coca Cola Amatil and Asahi.[172]
  1. [115]
    Mr Taylor, the national technical manager for Nu Pure testified that Nu Pure prefers meeting increasing demand with spring water from Tamborine Mountain being the most proximate and convenient resource vis-à-vis its bottling factory at Staplyton.[173]  Mr Taylor was asked about his letter and testified as follows:[174]

“… In the last paragraph of the letter you tell us that – or you say in the letter there’s a need for local good quality spring water such as provided by Gillion and you say - That’ s paramount to the future of our business.

Does that still remain the position more than 12 months after the date of the letter?---Yes. That position hasn’t changed at all.

And why is that?---Well, with the growth of business and the demand for our spring water requirements, we’re constantly looking for new sources of supply. Good quality products that are close to our facility are, obviously, the best we can achieve. And, obviously, in that statement there is it is a paramount part of few properties that meet our requirements.

And is the distance from the source to the bottling plant a matter of importance to you?---Absolutely. The transport of the spring water is probably one of the major costs of – yeah, it’s a major cost.”

  1. [116]
    Mr Taylor testified that:
  1. (a)
    Nu-Pure is in a position to pay the same price for water wherever it is sourced;[175]
  1. (b)
    Between April 2016 and September 2017 the market for spring water changed;[176]
  1. (c)
    Nu-Pure is the only one looking for new water, and can now have a say in how much they get paid for it.  So, the price has gone down.[177]  In fact, in the space of that year and a half, it has reduced by 20%;[178]
  1. (d)
    Potential savings in the costs of transporting bulk water to the bottling plant in terms of transport costs, results in a difference about half a cent a litre either side of the average cost;[179]
  1. (e)
    Even if Nu-Pure’s costs increase, he was unable to say whether retail prices would increase;[180]
  1. (f)
    Of the 220 million litres proposed for Queensland, a large part of that will be distributed in the national market.[181]
  1. [117]
    As to cost impacts, Mr Starling, the sole director of Wet Fix said that “the cost of ground water to Wet Fix has not increased as a result of the cessation of water extraction from the subject site”.[182] Mr Duane was far from certain about the nature of any fall in consumer price, and he did foreshadow 23.5 million fewer litres available to the market in the absence of the appellant.  He maintain the proposition that cessation of supply from any one source would have an immediate price impact.[183]  Mr Dimasi opined that the proposal is “completely irrelevant to the price of bottled water, either in South East Queensland or anywhere else. And that view has been borne out by the facts in any case.”[184]  As he said, water taken from the land is not taken out of the market but replaced.[185]  That is also the effect of Mr Taylor’s evidence: Nu-Pure is about to expand to a capacity over 400% of its present production, and has great confidence in obtaining the water it needs in the future.
  1. [118]
    It seems to me that the quantity of the resource realised by the proposal will have little or no impact on the consumer price in the wider market.
  1. [119]
    Since the product is largely homogenous - readily capable of substitution, and the quantity involved is a fraction of the competitive market, it is be difficult indeed to discern that the proposal will satisfy a need or generate a material community benefit. As Mr Dimasi was said in his evidence:[186]

“Right.  And so when we have a growth industry, as an economist, we should be looking to ensure that that growth industry – that there is growth and development in the sources of the supply of the raw materials of that industry. Correct? - Well, as a general proposition, yes.  In terms of the economic need for water extraction from Power Parade, I suggest that that’s a much – you know, it’s – it’s a very, very peripheral issue.

Well – but on your view, there’d be no need for any new sources to be established because no source is going to provide a dominant or significant [indistinct] of part of any supply, is it? - Well – well, that’s – that’s probably correct.  Well, very, very few sources are likely to do that.  That’s exactly right.”

  1. [120]
    Other good quality water is apparently available from Numbinbah, Traveston, Springbrook, and Mount Warning.[187]
  1. [121]
    Mr Taylor later explained that when the water gets to Staplyton it is all mixed together in a million litres of storage on site;[188] all of the water receives the same treatment;[189] and Nu-Pure water is distributed under many different labels and all the water under all of the labels is the same.[190]  It’s all “exactly the same”,[191] including that which Woolworths might sell under its home brand.[192]
  1. [122]
    An examination of the labels of most of the more popular water brands, including Mt Franklin, Woolworths, Coles and Nu-Pure, shows that none identify the source. Instead the label indications were: “sourced from pristine springs across Australia” (Woolworths); “100% Natural Spring Water” (Coles); “pure Australian spring water of exceptional quality and purity as nature intended” (Mt Franklin); “water sourced from pristine Australian springs, pure with a natural balance of minerals, the way nature intended” (Nu-Pure).  The brands evoke images of nature (Mount Franklin, Cool Ridge, Peats Ridge, Fiji Water) or purity (Aqua Pura, Coles Natural Spring Water).[193] 
  1. [123]
    In many instances, the same water is sold under different labels. The industry has many certified bottlers available to co-produce products for brand owners.[194]  Wet Fix supplied over 200 different branded products, but did not have its own branded bottled water.[195]  All of Nu-Pure’s water is the same, and is sold, as such, under a number of different labels.
  1. [124]
    This approach diminishes any argument that “source”, or “quality” of the appellant’s water in the bottled water market is essential to its branding, use and customer perception about a particular product.[196]
  1. [125]
    Indeed, as the 2015 IBIS report says “points of difference for industry operators are price, branding, and packaging”[197] and “the largely homogenous nature of the industry product has meant differentiation is achieved through branding and advertising”.[198]  Similarly, “A guide for entry into the bottled water industry” of the Australian Bottled Water Institute Inc. asserts that: “bottlers entering the market will need to find a concept that will differentiate your product from others in the perception of the consumer”.[199]
  1. [126]
    Mr Dimasi also used the period that the appellant was absent from the market as providing a “controlled environment” to examine the real level of economic need for water extraction from the land.[200]  Mr Dimasi found:
  1. there was no information which made the case that the bottled water market either in Queensland or in Australia had been negatively impacted by the unavailability of ground water from the land over the past three years;[201]
  2. the available information demonstrated that the bottled water market in Queensland or Australia has not noticed the cessation of ground water extraction from the land; [202]
  3. information from Mr Starling demonstrated that Wet Fix had no difficulty sourcing supply to meet its obligations, including to its major client Woolworths Ltd; it is likely to flexibly source potential new sources of such groundwater on an ongoing basis; and the treatment is precisely the same regardless of where the water has been sourced.[203]
  1. [127]
    Mr Dimasi concluded that the lack of availability of groundwater from the land, over a period of more than three years, had not resulted in any demonstrable negative economic impact on the community. It may have impacted commercially on the appellant, or on the commercial wellbeing of the appellant’s owner, but that was not the same as a negative economic impact on the community at large.[204]
  1. [128]
    Mr Duane agreed that notwithstanding the three and a half years since the cessation of supply from the land, he was unable to establish data which demonstrated there had been any price impact by reason of the withdrawal of supply from the land.[205]
  1. [129]
    Whilst I accept that the appellant’s water from the land will be both high quality and provided at a sustainable rate, it will not improve choice and competition in a location which is conveniently located to a number of bottling plants at Stapylton. The proposed extraction facility will not improve the facilities available to the water bottling industry, or the service and facilities available in the locality, or ultimately for the retail consumers locally, regionally or nationally.
  1. [130]
    In the end, I am not persuaded that there are grounds in terms of economic need sufficient to justify approval despite the conflict.

Planning Need

  1. [131]
    Town planning need involves a basic assumption that there is a latent unsatisfied demand that is either not being met, or is not being adequately met for the communities well-being.[206]  In Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors,[207] McLauchlan DCJ said in relation to a shopping centre:

“Planning need is no doubt a more general issue than economic need, but it seems to be obvious in cases such as this that unless there is an economic need there will be no planning need. It is therefore essential that the evidence establish, as I consider it has, that there is an economic need for a shopping centre such as Maroochydore Market place within the Sunshine Coast retail network. The issue of planning need then focuses upon the question whether the particular development proposed should be permitted, involving as it does an amendment to the planning scheme.”

  1. [132]
    Here, the planning scheme makes no provision for land anywhere in the local government area for the use of Commercial Ground Water Extraction because the use is an inconsistent use in all zones. Accordingly, there is no zoned land in the planning scheme to accommodate the use. While another use on this land at Tamborine Mountain would provide a community benefit in terms of wellbeing, it is very minor in the circumstances of this case.
  1. [133]
    Even so, I think that the appellant has failed to demonstrate that there is a planning need for another commercial water extraction facility on Tamborine Mountain to be located at the land in circumstances where:
  1. (a)
    There are other commercial water extractors on Tamborine Mountain;
  1. (b)
    There is evidence that a substantial reliable source of good potable water is available at the QUU Canungra facility;[208]
  1. (c)
    There is no evidence that the land contains the only sustainable water resource available for water extraction on Tamborine Mountain;
  1. (d)
    There is insufficient evidence that the water from the land is of better quality or taste than water extracted from the other existing water extractors on Tamborine Mountain;
  1. (e)
    Two Tamborine Mountain water extractors (the appellant and Mr Robert) have excess capacity to supply the bottling market and the local market. 

Public benefit – fire fighting

  1. [134]
    The appellant argues that the proposal will provide a public benefit in that it will make available a reliable and conveniently located source of water for fire fighting purposes in a community that does not have the benefit of a reticulated water supply.
  1. [135]
    It is true that the water extracted in the past has been made available to the Rural Fire Service for emergencies and for training purposes,[209] and the appellant intends to continue to supply for the same purposes.[210]
  1. [136]
    However, in respect of supply of water for an additional source for fire fighting purposes in the confined area of the mountain south of Power Parade, it seems to me that:
  1. (a)
    Whilst, fire and emergency services welcomes any available water source to fight fires, but does not require the proposed development to “efficiently fight fires” in the confined area.[211]
  1. (b)
    There is an appropriate statutory and policy framework in which decisions regarding fire fighting  resources, including water sources, are investigated and assessed and there is no reasonable basis to conclude that that has not been done in the Tamborine Mountain area;
  1. (c)
    There are existing good sources of water for fire fighting purposes on the southern part of Tamborine Mountain; and
  1. (d)
    There is no apparent latent unsatisfied need for the proposed development to fulfil such a function.
  1. [137]
    Readily available, easily accessible and reliable supply of water for fire fighting purposes are a matter of considerable public interest and benefit,[212] but I am unpersuaded that warrants grounds for approval despite the conflict.

Public benefit – natural hazards & emergencies

  1. [138]
    The appellant further argues that the proposal will provide a public benefit in that it will make available a reliable and conveniently located source of water for charitable purposes during times of natural hazards and emergencies.
  1. [139]
    Commendably, the appellant has donated water to charities and during times of natural disaster,[213] particularly where there are chronic shortages of potable drinking water.[214]  This has also involved the council’s permission for the need to extend its hours of operation.[215]  The appellant is desirous of once again donating water for charitable purposes if the application is approved.[216]
  1. [140]
    Aid response to natural hazard and emergencies for the benefit of the greater community is in the public interest,[217] it is highly commendable, but I am unpersuaded that the benefit is enough to grant approval despite the conflict.

Whether grounds are sufficient to justify approving the application

  1. [141]
    Finally, the court must determine whether the grounds are sufficient, in the public interest, to depart from the planning scheme and justify approving the application notwithstanding the conflict.
  1. [142]
    I am unpersuaded that the grounds identified by the appellant are sufficient, in terms of the public interest or benefit, to grant an approval despite significant conflict with the planning scheme, because:
  1. (a)
    There is no demonstrated economic need to supply mountain spring water for bottling and sale to the public (including the Tamborine Mountain community);
  2. (b)
    There is no unsatisfied town planning and community need for the provision of water for purchase and consumption by local residents and businesses;
  3. (c)
    There is enough available water for fire fighting purposes for the community that does not have a reticulated water supply; and
  4. (d)
    The donation of water for external charitable purposes is positive and voluntary but insufficient to warrant approval.
  1. [143]
    The appellant also relies upon the absence of usual hallmarks of inconsistent development, in that there are no unacceptable impacts, be it in relation to amenity, traffic, economic impact or otherwise, or even with respect to sustainability (in this case, of the aquifer from which the water would be extracted). In Lockyer Valley Regional Council v Westlink,[218] Holmes JA (as the Chief Justice then was) recognised this at paragraph [25]:

“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.”

  1. [144]
    Whilst the absence of negative impacts or detrimental effects is clearly relevant, they are not determinative in this case.

Conclusion

  1. [145]
    Therefore, I will dismiss the appeal.
  1. [146]
    I will hear the parties about the form of orders and any further directions in accordance with this judgment.

Judge DP Morzone QC

Footnotes

[1]  Exhibit 2, Vol. 3, p. 1168, para (16).

[2]Scenic Rim Regional Council v Gillion Pty Ltd [2011] QPLER 143.

[3]Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711.

[4]Gillion [2013] at [51].

[5]Gillion [2013] at [184].

[6]Gillion [2013] at [187] – [188].

[7]Gillion [2013] at [187] – [188].

[8]Gillion [2013] at [214].

[9]Gillion [2013] at [189].

[10]Gillion [2013] at [210].

[11]Gillion [2013] at [210].

[12]Gillion [2013] at [214].

[13]Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QPELR 168.

[14]  Order of Judge Jones of 28 February 2014.

[15]  Exhibit 2, Vol. 3, p. 1170, para 28.

[16]Gillion Pty Ltd v. Scenic Rim Regional Council & Ors [2013] QPEC 15.

[17]  Affidavit of B J Lyons, 20 March 2017, Court Doc. 162, exhibits pp. 32-34.

[18] Affidavit of B J Lyons, 20 March 2017, Court Doc. 162, exhibits pp. 32-33.

[19]  Affidavit of B J Lyons, 20 March 2017, Court Doc. 162, exhibits p. 33.

[20]  Affidavit of B J Lyons, 20 March 2017, Court Doc. 162, exhibits pp. 33-34.

[21]  Exhibit 2, Vol. 3, p. 1170, para 38.

[22]Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2017] QPEC 24.

[23]  Exhibit 2, Vol. 3, at p. 1167.

[24]  Affidavit of AG Turner, 13 February 2017, Court Doc. 157, at para. 14.

[25]  Exhibit 2, Vol. 3, p. 1168, at para 15.

[26]  Exhibit 4, at p. 1704, s. 1.2(1).

[27]  Exhibit 4, at p. 1707, Figure 1.2C.

[28]  Exhibit 4, Scheme extracts at p. 1690.

[29]Sustainable Planning Act 2009 (Qld), ss 462 & 495.

[30]Sustainable Planning Act 2009 (Qld), s 493(1).

[31]Sustainable Planning Act 2009 (Qld), s 495(2)(a).

[32]Woolworths Limited v Maryborough City Council (No. 2) (2006) 1 Qd R 273 at 286.

[33]Fitzgibbons Hotel Pty Ltd v. Logan City Council [1997] QPELR 208.

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

[35]Weightman v Gold Coast City Council [2003] Qd R 441 at [36], with whom others agreed, at [8] de jersey CJ, and at [16] per McMurdo P.

[36]Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at 322-323.

[37]Lockyer, at 323–324. 

[38]Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82.

[39]Bell v Brisbane City Council & Ors [2018] QCA 84, per McMurdo JA with whom Sofronoff P and Philippides JA agreed.

[40]Bell, at [10]-[13].

[41]Clark v Cook Shire Council [2008] 1 Qd R 327 at 338.

[42]Bell, at [73] & [74].

[43]Weightman, at [35], [36] & [46]; Bell, at [66].

[44]Bell, at [59], [73] & [74]; Weightman, at [36] & [37].

[45]Bunnings Group Ltd v Sunshine Coast Regional Council & Ors [2018] QPEC 42.

[46]Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32.

[47]Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32 at [24] with Her Honour’s emphasis and references.

[48]  See Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor [2002] QCA 277; (2002) 121 LGERA 390, 415-6, [105].

[49]Weightman, at [36] & [37]; Clark v Cook Shire Council [2008] 1 Qd R 327 at 338; Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; Bell, at [66], [68], [70], & [75].

[50]Bell, at [66], [68], [70], & [75]; Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor (2002) 121 LGERA 390 at [105].

[51]Sustainable Planning Act 2009 (Qld), s 326(1); Weightman, at [36], [44] & [45]; Lockyer, at 322–324; Bell, at [66].

[52]Weightman, at [35], [36] & [46]; Bell, at [66].

[53]  AB V1 - Notice of Appeal, pp.1-6; Appellant’s response to request for particulars, pp.88-90; Respondent council’s revised grounds of refusal, pp.72-80; Respondent council’s additional issues, pp.1767-1768 and 1779-1780 respectively; and Appellant’s amended grounds in support of the Development Application. pp 1774-1778, and the parties’ competing supplementary submissions re Bell.

[54]  Exhibit 5, ABV5, Document 8.1 Acoustic Amenity Joint Expert Report, Attachment 1 – draft Noise Management Plan, dated 13 July 2017 at pp.1811-1834.

[55]Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208, [212].

[56]Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273, [23].  Cf. Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337.

[57]Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 at [53] to [58].

[58]AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1 (references omitted).

[59]Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64.

[60]  Exhibit 4, p. 1686.

[61]Sustainable Planning Act 2009 (Qld), s 88(1)(c).

[62]  Exhibit 4, Volume 4, p.1431 see section 1.2.2(b) and p.1451 section 2.1.1(b).

[63] Exhibit 4, Volume 4, pp 1452 – Economic Development DEO 2.1.3 2(d).

[64]  Exhibit 4, Volume 4, pp1452 – Economic Development DEO 2.1.3 2(e).

[65]  Exhibit 4, Volume 4 p.1457 - s 2.2.5 (14) Strategic Framework- Broad Strategies for the Shire.

[66]  Exhibit 4, Volume 4 p.1457 - s 2.2.5 (15) Strategic Framework- Broad Strategies for the Shire.

[67]  Exhibit 4, Vol 4 p.1459 - s 2.2.9 (4) – Local Strategies for the Bromelton Zone.

[68]  Table 3.3.7 Consistent development in the Rural Zone.

[69]  Mr Schomburgk: T6-78/21-25.

[70]  Exhibit 4, Volume 4, p. 1608.

[71]  Exhibit 4, Volume 4, p.1446.

[72]  Exhibit 4, Volume 4, p. 1604.

[73]  Exhibit 4, Volume 4 p.1494.

[74]  Exhibit 4, Volume 4, p 1473.

[75]  Exhibit 4, Volume 4, p 1499, SO1 in Table 3.7.11.

[76]  Exhibit 4, Volume 4, p. 1500.

[77]  Exhibit 4, Volume 4, p. 1489 ff.

[78]  s. 1.2.14(1) at Exhibit 4, Volume 4, p. 1439.

[79]  s. 1.2.14(2) at Exhibit 2, p. 1440 and s. 3.76 at Exhibit 4, p. 1489.

[80]Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711 at [189].

[81]      Appellant’s supplementary submissions, at para 13.

[82]  Exhibit 5, Supplementary Town Planning Joint Report, p.1941.

[83]  Exhibit 18, Statement of M Schneider, para. 5; Exhibit 16, Statement of M Cullen, para. 10; Exhibit19, Statement of Laurich, para 10.

[84]  Exhibit 7B, Supplementary Statement of B Lyons, para.18.  Gillion Pty Ltd Scenic Rim Regional Council & Ors at [65] (Exhibit 2, Vol 1, p. 38, first bullet point).

[85]  His Honour Judge Robertson at [65] of the Reasons for Judgment in Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15.

[86]Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711 at [188] – [189];  Exhibit 2, volume 1, p.66.

[87]  Appellant’s Submissions, para. 7.

[88]  Exhibit 4, Volume 4, p.1608.

[89]Sustainable Planning Act 2009 (Qld) s 88(1)(c).

[90]  Exhibit 4, Volume 4, p.1431 see section 1.2.2(b) and p.1451 section 2.1.1(b).

[91]  Exhibit 4, Volume, 4 p.1440 see section 1.2.15.

[92]  Exhibit 4, Volume 4, p.1446.

[93]  Overall Outcome 0046 of the Tamborine Mountain Zone Code, at Exhibit 4, Volume 4, pp 1498 and Specific Outcome 0030 of the Tamborine Mountain Zone Code at Exhibit 4, Volume 4, pp1509.

[94]  Economic Need Addendum Report, at Exhibit 2, Volume 3, p. 1357, para. 22 – 24.

[95]  Exhibit 23B, Appendix 1, at p. 6, Specific Outcome SO7 and Acceptable Solution S7.1.

[96]  Works Code - Construction & Infrastructure – Acceptable Solution S7.3 at Exhibit 4,Volume 4 pp1616 and Specific Outcome SO91 at Exhibit 4,Volume 4, p 1640.

[97]  Works Code- Construction & Infrastructure – Specific Outcome SO98 at Exhibit 4, Volume 4, p 1641.

[98]  T6-57/32-58/7.

[99]  Respondent council Supplementary Submissions, para. 22.

[100]Gillion Pty Ltd v Scenic Rim Regional Council and Others [2014] QPLER 168 at [20] and [21].

[101]Bell v Brisbane City Council and Others [2018] QCA 84 at [66] citing Keane JA in Clarke v Cook Shire Council [2008] 1 Qd R 327 at 338.

[102]Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245, 249-250.

[103]Cut Price Stores Retailers v. Caboolture Shire Council [1984] QPLR 126, 131.

[104]Roosterland Pty Ltd & its agents v. Brisbane City Council [1986] QPLR 515, 517.

[105]Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193, [21].

[106]  T5-35/15-T5-36/12.

[107]  T5-40/4.

[108]  T5-33/15-22.

[109]  T5-34/22-25.

[110]  T4-104/6.

[111]  T4-103/26.

[112]  T5-35/4-6.

[113]  Exhibit 5, Volume 5, p.1941.

[114]  T6-37/10-25.

[115]  T6-69/1-8.

[116]  T6-72/9-13.

[117]  T3-92/34.

[118]  T3-102/23.

[119]  T3-87/15-20.

[120]  T3-103/34.

[121]  T3-104/2.

[122]  T3-103/43-46.

[123]  T3-104/14-17.

[124]     T3-99/1-100/8.

[125]  T5-23/35-40. 

[126]  T5-36/35.

[127]  T5-5/35.

[128]  T5-5/37.

[129]  T5-5/10-33.

[130]  T5-37/10-21. 

[131]  T5-37/23-28.

[132]  T5-37/35-41.

[133]  T3-87/6-11.

[134]    T4-73/40-43.

[135]    T4-73/40-46.

[136]    Exhibit 15 at [9]; Duane T3-91/32-35.

[137]    T3-86/12.

[138]    T3-86/19-21;/30-32.

[139]    T3-94/18.

[140]    T6-17/20-25.

[141]    T6-18/10-15.

[142]    T6-18/17-45.

[143]    T3-88/34.

[144]    T6-18/25-41.

[145]    T3-95/39-46.

[146]    T3-54/10. 

[147]    T5-40/4.

[148]    Exhibit 10B at [11].

[149]    T5-24/15.

[150]    T5-5/26. 

[151]    T6-16/15.

[152]    T6-39/10-18.

[153]     Exhibit 2, Volume 3, at pp 1357-1358 (with reference to a table in the planning scheme).

[154]     T4-56/15 – T4/5713. 

[155]     T5-5/10-21.

[156]  Dimasi, T6-42/15-25.

[157]  Exhibit 2, Volume 3, p.1204, para 32.

[158]  Exhibit 2, Volume 3, p.1207, para 43(a) & Exhibit 5 Volume 5, p. 1895, para 106(a).

[159]  T3-37.

[160]  T6-40.

[161]  Compare 2015 report at Exhibit 2, Volume 3, p.1281 and 2017 report at Exhibit 22B, p.30.

[162]  Exhibit 22A at [18].

[163]  T6-26-29.

[164]  Exhibit 22B at [2.18-2.31].

[165]  Exhibit 22B at paragraph 2.34.

[166]  Exhibit 49.

[167]  Exhibit 22B at paragraph 2.36.

[168]  T5-68/39; T5-69/39.

[169]  T5-68/40, T5-69/15.

[170]  Exhibit 2, Volume 3, p.1276 - having a share of less than 5% of the market.

[171]  Exhibit 2, Volume 3, p.1205, para 37 & p.1272.

[172]  Exhibit 2, Volume 3, p.1205, para 37; p.1193, para 14(b).

[173]  Exhibit 12, para 6 and 7 and T4-5/1 – 9.

[174]  T4-4.

[175]  T4-9/30.

[176]  T4-9/45. 

[177]  T4-9/45. 

[178]  T4-10/7.

[179]  T4-9/10-20.

[180]  T4-21/40-48.

[181]  T4-9/9-16.

[182]  Exhibit 28 at [9].

[183]  T3-60/8.

[184]  T5-71/38-40.

[185]  T6-26-29.

[186]  T6-42/15-25.

[187]  T4-10/37-T4-11/3.

[188]  T4-11/25-30. 

[189]  T4-12/4.

[190]  T4-12/11. 

[191]  T4-12/15.

[192]  T4-12/18.

[193]  Joint Economic Need Report, Exhibit 2, Volume 3, p 1204 at [33]. 

[194]  Joint Economic Need Report, Exhibit 2 Volume 3, p 1295 Appendix 9 at p.5.

[195] Joint Economic Need Report, Exhibit 2 Volume 3, p 1208 [49].

[196]  Contrast, Mr Duane - Exhibit 2, Volume 3, p. 1204 [32].

[197]  Joint Economic Need Report, Exhibit 2 Volume 3, p 1271.

[198]  Joint Economic Need Report, Exhibit 2 Volume 3, p 1272. Note, the reference to “taste” as an area of competition at the top right of p 1272 is a reference to “taste” in the context of external competitors from (for example) soft drinks, see p 1271.

[199]  Joint Economic Need Report, Exhibit 2 Volume 3, p 1290 at p1292.

[200]  Exhibit 22A [37] and T6-22/5-16.

[201]  T5-72/26.

[202]  Exhibit 22A at [38].

[203]  Exhibit 28 at [9].

[204]  Exhibit 22A at [40].

[205]  T3-58/40.

[206]Isgro v. Gold Coast City Council [2003] QPELR 414, 418.

[207]Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors [1995] QPLR 290 at 313.

[208]  Exhibits 25 and 25B – Affidavit and Further Affidavit of Mr Gilchrist.

[209]  Gill: T5-26/31 to 42 and Exhibit 46.

[210]  Exhibit10A, para 18 and 21 and Gill: T5-27/4-5.

[211]  Exhibit 39, Statement of Superintendent Gillespie at [25]; T4-46/4-47.

[212]  Exhibit 5, Volume 5, p.1933, para (27) and p.1938, para (41).

[213]  Gill: T5-24/17 - 24.

[214]  Exhibit 10A, p.4, para 20 and Gill: T5-51/5.

[215]  Exhibit 44 and Exhibit 45 – see also Gill: T5-24/26 to T5-26/2.

[216]  Exhibit 10A, p.4, para 21.

[217]  As was conceded by Mr Dimasi at T6-51/29 - 31.

[218]Lockyer Valley Regional Council v Westlink [2012] QCA 370 at [22] to [25].

Close

Editorial Notes

  • Published Case Name:

    Gillion Pty Ltd v Scenic Rim Regional Council & Ors

  • Shortened Case Name:

    Gillion Pty Ltd v Scenic Rim Regional Council

  • MNC:

    [2018] QPEC 47

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    05 Oct 2018

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
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
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Cite 2 - [2013] 1 Qd R 1
Bell v Brisbane City Council [2018] QCA 84
12 citations
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Cite 1 - [2018] QCA 84
Cite 2 - [2018] QCA 84
Cite 3 - [2018] QCA 84
Cite 4 - [2018] QCA 84
Cite 5 - [2018] QCA 84
Cite 6 - [2018] QCA 84
Cite 7 - [2018] QCA 84
Cite 8 - [2018] QCA 84
Cite 9 - [2018] QCA 84
Cite 10 - [2018] QCA 84
Cite 11 - [2018] QCA 84
Cite 12 - [2018] QCA 84
Brown v Idofill Pty Ltd (1987) 64 LGRA 218
1 citation
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Cite 1 - (1987) 64 LGRA 218
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
2 citations
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Cite 1 - (2000) QPELR 193
Cite 2 - (2000) QPELR 193
Bunnings Group Ltd v Sunshine Coast Regional Council [2018] QPEC 42
1 citation
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Cite 1 - [2018] QPEC 42
Clark v Cook Shire Council[2008] 1 Qd R 327; [2007] QCA 139
4 citations
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Cite 1 - [2008] 1 Qd R 327
Cite 2 - [2008] 1 Qd R 327
Cite 3 - [2008] 1 Qd R 327
Cite 4 - [2008] 1 Qd R 327
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
2 citations
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Cite 1 - (1981) 147 CLR 297
Cite 2 - (1981) 147 CLR 297
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
2 citations
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Cite 1 - (1984) QPLR 126
Cite 2 - (1984) QPLR 126
Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors [1995] QPLR 290
2 citations
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Cite 1 - [1995] QPLR 290
Cite 2 - [1995] QPLR 290
Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208
2 citations
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Cite 1 - [1997] QPLER 208
Cite 2 - [1997] QPLER 208
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
1 citation
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Cite 1 - (1997) QPELR 208
Gillion Pty Ltd v Scenic Rim Regional Council [2017] QPEC 24
2 citations
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Cite 1 - [2017] QPEC 24
Cite 2 - [2017] QPEC 24
Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15
3 citations
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Cite 1 - [2013] QPEC 15
Cite 2 - [2013] QPEC 15
Cite 3 - [2013] QPEC 15
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QPELR 168
2 citations
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Cite 1 - [2014] QPELR 168
Cite 2 - [2014] QPELR 168
Gillion Pty Ltd v Scenic Rim Regional Council & Ors (2013) QPELR 711
13 citations
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Cite 1 - (2013) QPELR 711
Cite 2 - (2013) QPELR 711
Cite 3 - (2013) QPELR 711
Cite 4 - (2013) QPELR 711
Cite 5 - (2013) QPELR 711
Cite 6 - (2013) QPELR 711
Cite 7 - (2013) QPELR 711
Cite 8 - (2013) QPELR 711
Cite 9 - (2013) QPELR 711
Cite 10 - (2013) QPELR 711
Cite 11 - (2013) QPELR 711
Cite 12 - (2013) QPELR 711
Cite 13 - (2013) QPELR 711
Gillion Pty Ltd v Scenic Rim Regional Council and Others. [2014] QPLER 168
2 citations
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Cite 1 - [2014] QPLER 168
Cite 2 - [2014] QPLER 168
Isgro v Gold Coast City Council (2003) QPELR 414
2 citations
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Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
2 citations
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Cite 1 - [2014] QPEC 64
Cite 2 - [2014] QPEC 64
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
5 citations
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Cite 1 - [2012] QCA 370
Cite 2 - [2013] 2 Qd R 302
Cite 3 - [2013] 2 Qd R 302
Cite 4 - [2013] 2 Qd R 302
Cite 5 - [2013] 2 Qd R 302
Management Ltd v Pine Rivers Shire Council [2009] QPELR 337
2 citations
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Cite 1 - [2009] QPELR 337
Cite 2 - [2009] QPELR 337
Pacific Seven Pty Ltd v City of Sandringham (1982) V. R. 157
1 citation
Jump To
Cite 1 - (1982) V. R. 157
Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 32
3 citations
Jump To
Cite 1 - [2018] QPEC 32
Cite 2 - [2018] QPEC 32
Cite 3 - [2018] QPEC 32
Roosterland Pty Ltd v Brisbane City Council (1986) QPLR 515
2 citations
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Cite 1 - (1986) QPLR 515
Cite 2 - (1986) QPLR 515
Scenic Rim Regional Council v Gillion Pty Ltd [2011] QPLER 143
2 citations
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Cite 1 - [2011] QPLER 143
Cite 2 - [2011] QPLER 143
Skateway Pty Ltd v Brisbane City Council (1980) QPLR 245
2 citations
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Cite 1 - (1980) QPLR 245
Cite 2 - (1980) QPLR 245
Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor (2002) 121 LGERA 390
3 citations
Jump To
Cite 1 - (2002) 121 LGERA 390
Cite 2 - (2002) 121 LGERA 390
Cite 3 - (2002) 121 LGERA 390
Stradbroke Island Management Organisation Inc v Redland Shire Council [2002] QCA 277
2 citations
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Cite 1 - [2002] QCA 277
Cite 2 - [2002] QCA 277
Tainui Pty Ltd v Brown (1988) 65 LGRA 22
1 citation
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Cite 1 - (1988) 65 LGRA 22
Weightman v Gold Coast City Council & Anor (2003) Qd R 441
8 citations
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Cite 1 - (2003) Qd R 441
Cite 2 - (2003) Qd R 441
Cite 3 - (2003) Qd R 441
Cite 4 - (2003) Qd R 441
Cite 5 - (2003) Qd R 441
Cite 6 - (2003) Qd R 441
Cite 7 - (2003) Qd R 441
Cite 8 - (2003) Qd R 441
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
3 citations
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Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Cite 3 - [2006] 1 Qd R 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
1 citation
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Cite 1 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
4 citations
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Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
Cite 3 - (2014) 201 LGERA 82
Cite 4 - (2014) 201 LGERA 82
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd[1992] 1 Qd R 352; [1991] QSCFC 123
1 citation
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Cases Citing

Case NameFull CitationFrequency
Gillion Pty Ltd v Scenic Rim Regional Council [2019] QPEC 443 citations
Lipoma Pty Ltd v Redland City Council [2020] QCA 180 3 citations
1

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