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PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council & Anor  QPEC 38
SILK PROPERTIES AUSTRALIA PTY LTD
SUNSHINE COAST REGIONAL COUNCIL
(co-respondent by election)
Planning and Environment
29 July 2020
8 June 2020; 9 June 2020; 10 June 2020; 11 June 2020
Cash QC DCJ
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – GENERALLY – where development application lodged to subdivide subject lot into eight lots – where the development proposal departs from requirements of planning scheme – where relevant considerations include strategic planning, character and amenity, and public interest – whether development complies with regional planning schemes – whether regional plan supports the proposed development – whether inconsistency between South East Queensland and Sunshine Coast planning schemes
Planning Act 2016 (Qld), s 45
Planning and Environment Court Act 2016 (Qld), s 8, s 37,
s 43, s 45, s 46, s 47,
Planning and Environment Court Rules 2018 (Qld), r 4
Uniform Civil Procedure Rules 1999 (Qld)
ShapingSEQ: South East Queensland Regional Plan 2017
South East Queensland Regional Plan 2009
Sunshine Coast Regional Council Planning Scheme 2014
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16
Brookside Estate Pty Ltd v Brisbane City Council & Anor  QPEC 33
Gold Coast City Council v K & K (GC) Pty Ltd  QCA 132
Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes v Moreton Bay Regional Council & Anor  QPEC 46
Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor  QCA 41
Shardlow & Ors v Moreton Bay Regional Council  QPEC 82
Stockland v Sunshine Coast Regional Council  QPELR 52
VG Projects Pty Ltd v Brisbane City Council  QPEC 15
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82;  QPELR 686
A N S Skoien for the appellant
M Batty for the respondent
Co-respondent in person
P&E Law for the appellant
Sunshine Coast Regional Council Legal Services for the
- The appellant, Silk Properties Australia Pty Ltd, owns land at Bella Street, Landsborough, on the Sunshine Coast. In October 2018 a development application was lodged on behalf of the appellant with the respondent, Sunshine Coast Regional Council. The application sought permission to reconfigure the land from one lot into eight lots, serviced by a single road from Bella Street. The land is within the “rural residential growth management boundary” and is zoned “rural residential” according to the Sunshine Coast Regional Council Planning Scheme 2014 (“SCPS”). It is also within the “Urban Footprint” as defined in ShapingSEQ: South East Queensland Regional Plan 2017 (“SEQRP”). The application was impact assessable and subject to public notification. Of the ten submissions received in relation to the application, nine opposed the development. One objector was the co-respondent, Mr Karlsson. On 28 May 2019 the respondent issued a decision notice refusing the application for subdivision. This is an appeal against that refusal.
- The co-respondent Mr Karlsson appeared by telephone at the start of the hearing. By this time his position had changed from one of outright opposition to concern about the conditions that might be attached to any approval of the subdivision. He indicated he only wished to be heard in the event that the Court allowed the appeal and was considering what, if any, conditions should be attached. In the circumstances I excused Mr Karlsson unless and until such an issue arose.
- The appellant concedes that the proposed subdivision does not comply with provisions of relevant planning schemes. The non-compliance stems from fact that what is proposed is urban development in an area identified for rural residential development. At the commencement of the hearing the parties identified what were said to be the real issues. By the time of closing addresses the issues had been refined to three areas:
- Strategic planning issues;
- Amenity and character issues; and
- Issues of public interest/community benefit.
- The strategic planning issues raised for consideration a number of matters. First, the effect of both SEQRP and SCPS. Secondly, whether there is inconsistency between SEQRP and SCPS and, if so, what are the implications of the inconsistency? Thirdly, the extent to which the proposed development departs from either scheme. Both the strategic planning issues and the character and amenity issues required consideration of the nature of the proposed development and its impact on the surrounding area. Issues concerning public interest and community benefit are relevant to the overarching question of whether the subdivision should be approved.
- It is convenient to begin with a description of the subject land, the proposed development and the surrounding locality.
Description of the land and its context
- The subject land is properly described as Lot 51 on Survey Plan 298067. It is on Bella Street, which runs north from Gympie Street North and across William Street, before terminating at a dead end near the subject land. The land is a rectangular block running east-west with an area of about 7,289m2. According to SCPS, the land is within the Rural Residential Growth Management Boundary and the Rural Residential Zone. Under SEQRP, the land is within the Urban Footprint. The site has been levelled and filled and is mostly flat. The land is vacant and clear of vegetation. It is burdened by a modest easement in the north-west corner, apparently for sewage purposes. The western edge of the land faces Bella Street. The street frontage is approximately 47 metres and there is an amount of mature vegetation on the road reserve. Immediately to the north the land is abutted by new, low density residential housing in Echidna Court. The new houses to the north are within the Urban Growth Management Boundary and Low Density Residential Zone of SCPS. The boundary line between the new housing to the north and the subject land to the south is also the boundary between the Rural Residential Growth Management Boundary and Rural Residential Zone on the one hand and the Urban Growth Management Boundary and Low Density Residential Zone on the other.
- To the immediate east of the land is a long and relatively narrow north-south orientated residential block. Further east the area is characterised by a mix of larger rural residential and suburban allotments. To the south of the land there are three vacant rural residential allotments. Further south again there are allotments zoned to allow low density residential development. On the western side, across Bella Street, there are a number of rural residential allotments, with similar properties continuing further to the west. The character of the surrounding locality is mixed. The word “patchwork” was used a number of times in the hearing to describe the pattern of development in Landsborough. Bella Street itself reflects this mix. Allotments at the intersection with William Street and the southern end of Bella Street consist of detached dwellings on suburban style residential blocks and some undeveloped low density residential zoned land. The northern end of Bella Street consists of larger rural residential properties. These vary in size. The allotments on the west side of the northern part of the street have houses. Those to the east do not.
- The land has relatively convenient access to key elements of the Landsborough township. It is less than a kilometre from the local State School and a bus stop. It is 1.3 kilometres to the bus/rail interchange at Landsborough that services the North Coast rail line. Cribb Street, where most of Landsborough’s facilities and services are concentrated, is immediately adjacent to the bus/rail interchange. The land is not within the “priority infrastructure area” of SCPS, but a sewer line runs along the northern boundary of the land to service the new low density residential development in Echidna Court and water is supplied to the northern end of Bella Street adjacent to the subject land.
The proposed development
- The proposed development is relatively simple. The existing allotment is to be split into eight allotments varying in size from 600m2 to 683m2. All eight allotments will back on to the northern side of the land and be accessed by a new road running along the southern boundary. The road reserve is to be 14 metres wide with a turnaround facility provided at the eastern end. The largest allotment with be adjacent to Bella Street. The balance of the allotments are all 600m2 or thereabouts. The proposed development is shown in figure 5 on page 12 of Exhibit 5.
The surrounding locality
- Landsborough is one of series of hinterland railway towns on the North Coast rail line. The rail line still holds a significant place in the centre of town. As noted, the town centre is adjacent to the railway station. There is a trend towards urbanisation in Landsborough with pockets of suburban style allotments interspersed with rural residential properties in accordance with the current zoning pattern. The pattern of development lacks formality, resulting in a patchwork of irregular form, zoning and urban pockets. According to the joint expert report, “To describe Landsborough’s character, one could say there is almost a lack of distinctive character and built form pattern, other than a propensity for detached dwellings.”
- There are plans to upgrade the North Coast rail line over the next decade or so by doubling the tracks between Beerburrum and Landsborough. Connected to these plans are significant changes intended for the road and rail interface around Landsborough Train Station. There will be a new road overpass constructed as well as a relocation of the current parking facility for the station. As discussed below, it is likely this will result in the resumption of some residential property and in an increased demand for residential property at Landsborough as the improved rail line makes it an increasingly attractive place to live.
- A site inspection on the first day of the hearing confirmed the matters described by the witnesses.
Statutory assessment and decision making framework
- The Planning Act 2016 (Qld) and the Planning and Environment Court Act 2016 (Qld) (“PECA”) provide the relevant statutory and decision making framework. The appeal is by way of hearing anew. The appellant bears the onus of establishing that the appeal should be allowed. I am to determine the matters as if I were “standing in the shoes” of the assessment manager, applying the law as it presently stands. As such, section 45(5) of the Planning Act requires that I must carry out the assessment against the relevant assessment benchmarks and I may have regard to any other relevant matter. The planning schemes, in this case SEQRP and SCPS, as at the time of the application, provide the assessment benchmarks to be considered. In construing SEQRP and SCPS the documents are to be read as a whole adopting a common sense approach. The Court’s power to decide a Planning Act appeal is found in section 47 of PECA. The power of an assessment manager (in whose shoes I stand) to decide an impact assessable development application is to be found in section 60(3) of the Planning Act. The result is that, in determining the appeal, I must confirm the decision to refuse the application, change it (including by imposing conditions), replace it, or set it aside and return the application to the original decision maker with such directions as I consider appropriate. The Court also has a discretion to make such other orders, declarations or directions as the Court considers appropriate.
- The approach required by the Planning Act has been described as one providing “flexibility … to approve an application in the face of non-compliance with a planning document”. Unlike earlier statutory schemes, the fact that a development proposal may not comply, or conflicts, with a planning scheme does not have assumed primacy. The extent to which a proposed development departs from applicable planning schemes is a relevant matter to be considered with all other mandatory or relevant considerations in deciding whether or not to approve the development. Planning schemes remain central to the determination of an application or appeal. In Gold Coast City Council v K & K (GC) Pty Ltd  QCA 132, Sofronoff P (with whom Fraser JA and Flanagan J agreed) discussed a number of cases decided under a variety of planning schemes. His Honour stated (internal citations omitted):
“ At the heart of decisions like these is the acknowledgement that conformity with the Planning Scheme is, prima facie, in the public interest. That approach is consistent with decisions of this Court from the time of the earliest planning legislation. For example, in Dillon v Council of the City of Townsville Carter DCJ said that the very raison d’être of a Planning Scheme is to best serve the needs of a community in a particular area. Most recently, McMurdo JA emphatically restated the principle in Bell v Brisbane City Council.
 It has been established beyond argument that a decision maker must take a Planning Scheme to be an expression of the public interest in terms of land use. The proposition can be put the other way around. It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo. The public interest that is to be satisfied by the proposed development must be greater than the public interest in certainty that the terms of a Planning Scheme will be faithfully applied.”
- It must be acknowledged that K & K was decided under earlier statutory provisions which required the refusal of a development application that conflicted with a relevant planning instrument unless there were sufficient grounds to justify the approval. But the observations of Sofronoff P were addressed at the importance of planning schemes in deciding development applications in a general sense. Such is demonstrated by his Honour’s reference to decisions concerning much earlier versions of planning legislation; versions that permitted a similarly flexible approach to that of the Planning Act. As demonstrated by Judge Kefford in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes v Moreton Bay Regional Council & Anor  QPEC 46 (at -), the notion that planning schemes represent an expression of the will of the community remains true. I endorse her Honour’s observation that, “As such, where a planning scheme expresses a clear and deliberate policy about the appropriate development of land, one should not readily depart from it.” On the other hand:
“[I]t must also be recognised that blind adherence to that part of a planning scheme that is rigid is apt to obscure the fact that the need and the wellbeing of the community, or a significant part of it, may sometimes be better served by permitting an outcome that does not strictly comply with those controls.”
- The relationship between SEQRP and SCPS was also in issue in these proceedings. For the appellant it was said that SEQRP provided support for the proposed development and that I should give effect to this support even if the proposed development departed from SCPS. That is, the appellant submitted SEQRP should be given “determinative weight”. The respondent contended that, reading the schemes sensibly and as a whole, the schemes were consistent and SEQRP did not mandate approval of the proposed development. This issue is discussed further below.
- The appellant and the respondent each called two witnesses. For the appellant Stephen Buhmann testified concerning town planning matters and Graham King, a real estate agent, about what he considered to be the limited land supply in the Landsborough area and the “buyer appeal” of the proposed development. For the respondent Chris Schomburgk gave evidence concerning town planning matters and Leslie Curtis as to matters of amenity, visual amenity and character. Mr Buhmann and Mr Schomburgk agreed on many matters as set out in the joint expert report. It is convenient to commence with the town planning evidence.
Town planners’ evidence
- In addition to the descriptions of the land and proposed development, the town planers described Bella Street in more detail. The street is 450 metres long and runs essentially from south to north. In describing the character of Bella Street it can be divided into two sections: one south of William Street and the other to the north. The northern section, where the subject land is situated, is characterised by rural residential properties. There is a partial “suburban” backdrop created by the low density development to the north-east in Echidna Court. The southern section near William Street is currently dominated by rural residential allotments, but is zoned to allow suburban type development. Further south again the property style changes to a more urbanised environment.
- Both town planners considered the only relevant planning schemes were SEQRP and SCPS. SCPS was adopted in 2014 during the life of an earlier version of SEQRP. The version of SEQRP relevant to these proceedings was adopted in 2017. SCPS has not been amended to incorporate the goals, elements, strategies and sub-regional outcomes found in SEQRP. Both planners approached their assessment on the basis that, “[a]s a higher order regulatory document, to the extent of any inconsistency, … the SEQRP 2017 will prevail over the Sunshine Coast Planning Scheme.” The provisions of SEQRP of relevance to the proposed development are, “Chapter 3, Part A: Goals, elements and strategies”, and “Chapter 3, Part C: Sub-regional directions”. Mr Buhmann and Mr Schomburgk diverged as to the significance of these SEQRP benchmarks.
- (a)Accommodating urban growth needs in the Urban Footprint in an efficient manner;
- (b)Prioritising the investigation, planning and delivery of urban development in suitable locations within the Urban Footprint that are underutilised;
- (c)Focussing urban redevelopment in locations with spare capacity in the infrastructure networks or where existing networks can be cost-effectively augmented;
- (d)Accommodating new rural residential development only in the Rural Living Area, or in the Urban Footprint where land is unsuitable for urban use;
- (e)Providing housing choice by delivering a mix of dwelling types and sizes in consolidation and expansion locations;
- (f)Maximising the variety of available land in suitable locations to support a range of housing choices under a range of market and economic circumstances;
- (g)Supporting the sustainability of rural towns and villages by providing sufficient land and infrastructure to accommodate population and employment growth;
- (h)Supporting the growth of rural towns and villages in a manner that avoids the fragmentation of productive rural land and the regional biodiversity network, including koala habitat;
- (i)Planning for well-designed growth that integrated sensitively with existing local character and identity, and promotes viability of the rural economy; and
- (j)Integrating infrastructure and local land use planning to maximise access to, use of and benefits from infrastructure and service upgrades.
- As well, Mr Buhmann considered the proposed development aligned with SEQRP Goal 4, “Sustain”. He expressed the view that:
“the [proposed] development allows the township to develop in a sustainable manner by making use of access to existing infrastructure on unconstrained land. The key principles behind sustainable development centre around protecting biodiversity, natural assets and regional landscapes, which will not be impacted on as a result of the development.”
- The designation of the land within the Urban Footprint was an important consideration for Mr Buhmann. Having noted the description of the Urban Footprint in SEQRP, Mr Buhmann considered that the suitability of land for urban development should be the overarching test for whether development is appropriate at a particular site. He considered this land suitable as it was unconstrained by topography, near trunk infrastructure and close to services. On a “first principles” approach, Mr Buhmann considered the land was well suited to low density residential development.
- Mr Schomburgk accepted there was no inconsistency between the proposed development and the assessment benchmarks in SEQRP. However, Mr Schomburgk was of the view that SEQRP did not promote the use of land in the Urban Footprint for residential development to the extent that this became the dominant consideration. He emphasised parts of SEQRP which provide that Urban Footprint “is not an urban zone and does not imply that all land can be developed for urban purposes” and that there is reliance upon “local government planning schemes to determine the most suitable zone for each parcel of land within the Urban Footprint”. Mr Schomburgk considered that SCPS retained an important, if not determinative, role in assessing the application. Adopting a similar “first principles” approach he agreed that the land was physically suitable for development of this sort. However, Mr Schomburgk was of the view that the deliberate decision to limit the extent of urban development embodied in SCPS required consideration of more than just the suitability of the land. In this regard Mr Schomburgk thought issues of amenity, community expectations and the overall need or demand for development of this sort to be important. The extra vehicle movements associated with eight new houses would have a noticeable impact on residents of the northern end of Bella Street. Those residents could be thought to have expected the rural residential nature of their area would be preserved in accordance with SCPS. Mr Schomburgk saw no evidence of need or demand for the development of this land.
- Mr Buhmann and Mr Schomburgk each examined the three broad issues in dispute: strategic planning, character and amenity and public interest. Before setting out their views on these matters it is convenient to summarise some provisions of SCPS. The scheme establishes a strategic framework, which “sets the policy direction for the planning scheme area and forms the basis for ensuring appropriate development occurs within the planning scheme area”. There follows a cascading series of provisions of increasingly narrow focus. Relevant to the present appeal are those for the zoning of land for different uses (zone codes) and the local plans for particular areas on the Sunshine Coast. There is a hierarchy of planning scheme provisions. The strategic framework takes precedence over local plan codes which in turn prevail over zone codes. Under the strategic framework, one theme for achieving the overall strategic intent concerns settlement pattern. A key concept of this theme is retaining urban and rural residential development within defined “local growth management boundaries”. A number of more specific provisions in the zone codes and Landsborough local plan flow from this key concept of growth management boundaries.
- Mr Buhmann and Mr Schomburgk agreed that the proposed development is inconsistent with the idea that urban development should not occur within the rural residential growth management boundary. Specifically, the proposed development does not comply with aspects of the strategic framework, zones code and local plan that deal with this issue. Mr Buhmann considered the suitability of the site for development, his assessment that the impact on local character and amenity was reasonable and the efficient use of the land all favoured approval of the proposal. In contrast, Mr Schomburgk viewed the extent to which the proposed development departed from the planning scheme to be such that it ought not to be approved. In this regard he referred to the absence of positive considerations that Mr Schomburgk regarded would be sufficiently weighty to warrant approval. The proximity of the land to existing trunk infrastructure was considered by Mr Buhmann to be a positive feature, but Mr Schomburgk noted the development still represented an unplanned extension of urban services.
- Both town planners agreed that the proposed change to a more intense use of the land would change local character and amenity. They differed as to the weight each attached to the change. Mr Buhmann thought the impact of the development to be not significant given the transitioning nature of Bella Street. He described the proposed development as being “hidden away” at the end of a dead-end street and against the background of the existing development to the immediate north in Echidna Court. He acknowledged there would be additional traffic – perhaps an additional 80 vehicle trips per day – but did not think this was an undue impact on current residential amenity. Mr Schomburgk referred to the report of the character and amenity expert, Mr Curtis and the overall diverse character of Landsborough. He thought that while the impact would be localised, the character of the northern end of Bella Street would be significantly changed and become more like the urban development south of William Street.
- As already noted, the town planners differed as to the benefits of the proposed development and whether they favoured approval. Mr Buhmann emphasised the suitability of the land for urban development and events subsequent to the 2014 SCPS. These were said to be: urban development in the area surrounding the land; a new version of SEQRP in 2017; and further infrastructure planning – especially that relating to the North Coast rail line. These matters in his view favoured the urban development of this land despite it being in the zone designated rural residential. Mr Schomburgk accepted the land was suitable for urban development in the manner described by Mr Buhmann but considered the policies expressed in the planning scheme as decisive. He summarised his view in the following way:
“[A]ny deviation or departure from those established planning policy intentions ought not to be undertaken by a one-off development proposal such as this, but through a more rigorous investigation process as part of a planning scheme review/amendment. That investigation would take the matters listed above into account, but also the broader analysis about where, if at all, expansion of the urban area ought to occur.”
- He thought such development, which Mr Schomburgk called ad-hoc, should not be approved, especially in the absence of evidence demonstrating a real need development of this sort. Mr Schomburgk did not consider the appellant’s evidence, especially the evidence of Mr King discussed below, established a demand for the type of residential land to be provided by the proposed development.
- In cross-examination Mr Buhmann agreed the northern end of Bella Street is characterised by rural residential properties and that there is substantial land supply planned for the Sunshine Coast expansion area. In relation to relevant matters that were said to support approval of the development Mr Buhmann agreed there was no information about the likely sale price of the proposed lots. It followed it was difficult to assess if the development represented “affordable living”. He agreed that while this proposed development would contribute to “a more compact urban form and an effective and efficient transport network” there were other areas already zoned as low density residential that could achieve the same result. Mr Buhmann accepted that SCPS already provided for diverse living opportunities in Landsborough.
- Mr King is a real estate agent who has worked in Beerwah and Landsborough over many years. He has specialised in marketing development projects for both residential and rural residential land. He was called as a lay witness rather than as an expert. Mr King stated that he had been approached by many land buyers who were disappointed they could not find affordable land close to town facilities in the town of their choice. He said there was no vacant land available close to the centre of Landsborough and that the proposed development would have “buyer appeal”. He expressed no view about the pricing of the proposed new lots or how that compared to other land in Landsborough.
- In cross-examination Mr King agreed that he hoped to be engaged as the agent to market the proposed development. His opinion relied upon figures for the sales of residential land in Landsborough that were based upon searches undertaken by an assistant. In forming an opinion Mr King relied upon the number of past sales to predict future demand. He did not consider residential take-up rates, such as by comparing the lots available in a given year to the sales of those lots.
- In the end, the appellant relied upon the evidence only as identifying a “demand for additional housing for affordable living”. Whether Mr King’s evidence achieved this purpose is considered further below.
- The respondent called Mr Curtis to testify regarding issues of amenity, visual amenity and character. Mr Curtis did not agree that the proposed development would be consistent with the existing character and future development of the surrounding area. The maintenance of the land as rural residential would, in the opinion of Mr Curtis, separate the more intensely developed areas to the north and south and preserve the character of the northern end of Bella Street. As to amenity, Mr Curtis agreed the Echidna Court development and a pending development to the south would compromise the existing semi-rural amenity of the local area. He considered the proposed development will “diminish the contribution the local area makes to the combined amenity of the rural residential lots [in Bella Street], which is a defining characteristic of Landsborough’s identity”. Mr Curtis thought the proposed development was not consistent with provisions of SCPS, those being:
- (a)Rural Residential Zone Code, elements 220.127.116.11(1), (2)(a) and (d);
- (b)Landsborough Local Plan Code, elements 18.104.22.168(2)(b) and (c); and
- (c)Reconfiguring a Lot Code, elements 22.214.171.124(1)(a) and (c), 126.96.36.199(2)(a) and 188.8.131.52.1, performance outcome PO3.
- In cross-examination the variety of development in Landsborough, and the patchwork nature of its character, was emphasised. It was put to Mr Curtis that the proposed development, abutting the Echidna Court development, would only reinforce that the land was situated at the interface between rural residential and urban development. Mr Curtis did not accept this proposition, saying that it would amount to an incremental taking over of the rural residential area that is separated from Echidna Street because the road does not go through. It was suggested that the proposed development contributed to the patchwork character of Landsborough. Mr Curtis disagreed and expressed the view that the development would take away from the overall rural residential character.
The relationship between SEQRP and SCPS
- SEQRP is “the Queensland Government’s plan to guide the future of the South East Queensland region, prepared in collaboration with the regions’ 12 local governments.” It is a “regional plan” pursuant to the Planning Act. SCPS is a “local planning instrument”. Section 8 of the Planning Act relevantly provides:
“(4) To the extent of any inconsistency –
(b) a regional plan applies instead of a local planning instrument.”
- Consistent with this hierarchy, local governments are required to review planning schemes so that they align with the goals of SEQRP. SCPS began in 2014 and was created, in part, to advance the goals of the now superseded SEQRP 2009. SCPS has not been amended to incorporate the goals, elements, strategies and sub-regional outcomes within the current SEQRP. This is said by the appellant to have created an inconsistency in which SEQRP must prevail.
- SEQRP deals with the idea of an “urban footprint”. That is land “within which the region’s urban development needs to 2041 can be accommodated in a way consistent with the goals, elements and strategies of [SEQRP]”. The description of Urban Footprint is found in SEQRP in the section dealing with the desired regional settlement pattern over the next 25 years (Chapter 3, Part B). It is appropriate to reproduce a large part of what is said about Urban Footprint in this section.
The Urban Footprint covers around 327,500 hectares of land or about 14 per cent of the region. It includes established urban areas and land with potential for new urban development.
The priority for developing land in the Urban Footprint is to accommodate urban growth. However, the Urban Footprint is not an urban zone and does not imply that all land can be developed for urban purposes.
The Urban Footprint also includes some areas designated or already developed for rural and rural residential purposes that are located near urban services and facilities. Local governments must investigate these areas for urban redevelopment opportunities as part of their planning scheme reviews.
ShapingSEQ relies on local government planning schemes to determine the most suitable zone for each land parcel within the Urban Footprint. The development assessment process determines the extent and suitability of development on each site.
The Urban Footprint also contains several areas that have been underutilised for a substantial period. Many have not transitioned from an investigation or emerging community zone to a serviced urban zone since they were first included in the Urban Footprint.
One important way of delivering ShapingSEQ is to investigate these areas with a view to unlocking their urban development potential in the short-term. See Chapter 4 for further details.”
- There follows a set of “Urban Footprint principles”:
“Following are the principles considered in defining the Urban Footprint:
- The Urban Footprint is a tool for managing, rather than simply accommodating, regional growth.
- The Urban Footprint promotes a compact settlement pattern and consolidates urban development within established communities.
- Opportunities to increase the capacity of the Urban Footprint take priority over expanding its boundaries in subsequent regional plan review processes.
- The Urban Footprint is not used to recognise isolated, existing or approved urban activities outside the Urban Footprint, or to reflect urban zoning in small coastal or rural towns and villages.
- The Urban Footprint boundary is generally:
- a.cadastral-based or otherwise clearly defined, preferably using a major feature, such as a road or stream, to provide a clear boundary and buffer between urban and non-urban land uses
- b.consistent with existing planning scheme designations, where appropriate.
- During periodic reviews of ShapingSEQ, and based on whether the Queensland Government’s SEQ Growth Monitoring Program identifies a need for more urban land, new areas may be considered for inclusion in the Urban Footprint where they:
- a.are physically suitable
- b.are either a logical expansion of an urban area or of sufficient size to provide social and economic infrastructure efficiently
- c.have ready access to services and employment
- d.maximise the use of committed and planned urban infrastructure
- e.are separated appropriately from incompatible land uses
- f.maintain the integrity of inter-urban breaks
- g.exclude areas with an unacceptable risk from natural hazards, including predicted climate change impacts
- h.exclude areas containing predominantly matters of national or state environmental significance and the regional biodiversity network, including koala habitat
- i.achieve an appropriate balance of urban development in the SEQ region and associated sub-regions
- j.maintain a well-planned region of urban areas, towns and villages
- k.minimise impacts on natural resources
- l.avoid irrevocable impacts to important, sensitive natural environments in and outside the area
- m.provide physical and social infrastructure efficiently, including public transport.”
- The appellant submits SEQRP evidences an “intent that urban development (not rural residential development) will be given priority for land in the Urban Footprint” and that there would have to be “some justification for overriding that priority and designating land within the Urban Footprint for some non-urban purpose”. In support of these submissions the appellant sought to identify what it said was a change in policy or intent between the 2009 and 2017 versions of SEQRP. The idea of an Urban Footprint existed in SEQRP 2009. In 2009 there was no explicit statement that the “priority” for developing land in the Urban Footprint is to accommodate urban growth. However, the 2009 version provided that the “Urban Footprint focuses urban growth” in identified locations. Both versions of SEQRP contain similar statements noting that designation as Urban Footprint does not imply that the land can be developed for urban purposes and that local government planning schemes will be the main instrument to establish and refine the desired use of land and the preferred timing of development within the Urban Footprint.
- Comparing the statements in the 2009 and 2017 versions of SEQRP, I do not think there has been a shift in policy or intent of the kind suggested by the appellant. While in 2009 the word “priority” was not used, it is clear that the intent was to identify land that had attributes considered generally desirable in urban development and to focus urban growth in those areas. It is also clear that this “focus” or “priority” is qualified by the recognition in 2009 and 2017 that local governments, through local planning schemes, are best placed to decide the use of land. In my view, the 2009 and 2017 versions of SEQRP are not materially different in their treatment of the Urban Footprint. I do not accept the argument of the appellant that SEQRP 2017 brought about a shift in policy that SCPS has not recognised. That is to say, the current iteration of SCPS was framed to take into account a policy position expressed in SEQRP 2009 that did not significantly change with the new version of SEQRP in 2017. In 2014, as part of SCPS, the respondent Council chose to designate the subject land as falling within the Rural Residential Zone and the Rural Residential Growth Management Boundary. It did so against the background of the treatment of the Urban Footprint then found in SEQRP 2009. There being no material change in this treatment in SEQRP 2017, the designation of the subject land is not invalidated merely because it preceded the current version of SEQRP.
- It is also to be noted that the idea of an Urban Footprint has been part of SEQRP for some years. The suggestion that the location of land with the Urban Footprint is itself enough to trump the controls of a local planning scheme has not found support in this Court. In Stockland v Sunshine Coast Regional Council  QPELR 52, Rackemann DCJ considered a similar point and concluded:
“ At first blush it might appear that the ‘Urban Footprint’ designation of the site under the SEQRP creates a point of inconsistency with the Planning Scheme but, as the respondent pointed out, the SEQRP does not go so far as to warrant that all land within the Urban Footprint will be suitable for, or given over to, urban development or will be so developed at any particular point within the planning horizon of the Regional Plan. Such matters are left to the planning scheme…
 Accordingly, while the inclusion of the land in the Urban Footprint in the SEQRP is a relevant consideration it does not, of itself, necessarily establish a point of inconsistency between the Planning Scheme and the SEQRP or establish that the land is necessarily suitable for urban development or that provision should be made for its development to occur at this time. That is not to say that the Urban Footprint designation is meaningless or that the SEQRP is, as a planning document, subservient to the Planning Scheme. Rather, it simply acknowledges the limitations on the significance of the urban footprint designation, as provided for in the SEQRP itself.”
- That a proposed development finds support in the text of SEQRP may be considered a matter in favour of approval, but it does not override, or require to be ignored, the controls of a local planning scheme. It cannot be the case, and the appellant does not suggest that it is, that the location of land with the Urban Footprint is itself sufficient to permit urban development. Issues relating to infrastructure, character, amenity and other common planning issues will be relevant when deciding whether or not to approve a particular development proposal. These sorts of planning controls are usually, if not always, to be found in local planning schemes. The extent to which any proposed development complies with, or departs from, the Regional Plan or other relevant assessment benchmarks is to be weighed in the usual way, along with other relevant considerations, in order to decide if the development should be approved.
Consideration of assessment benchmarks and other relevant matters
- I accept Mr Buhmann’s evidence, summarised at paragraphs  and  above, that the proposed development complies with relevant SEQRP assessment benchmarks. Focussing only on the proposed development and SEQRP, it could be said that the development efficiently provides housing choice on well situated land in the Urban Footprint. Mr Schomburgk did not disagree with such a conclusion. As I have already noted, this is a relevant factor that favours approval of the application, but it is not the sole or determining factor.
- The respondent submitted that the proposed development does not comply with SEQRP. It said SEQRP leaves it to local authorities to make decisions about the best use of land and the respondent has not reconsidered the use of this land subsequent to SEQRP 2017. The respondent described the present proposal as “unplanned development in circumstances where Council is still in the process of undertaking planning for this location”. I do not accept that in this case that would be a matter that, on its own, would warrant refusal of the application. It is true that SEQRP expressly leaves “fine grained” decisions about land use to local authorities. But there is also an obligation on local authorities to review their planning schemes in light of SEQRP 2017. In some cases the failure to do so may be a matter tending to reduce the significance of non-compliance with a local planning scheme. Factors that will be relevant in such a case will include the extent to which policy has changed as a result of a new Regional Plan, such that it might be thought that an inconsistent local planning scheme is no longer an expression of the public interest. For the reasons set out above, I do not think the policies of SEQRP 2009 and 2017 concerning the Urban Footprint differ to a material degree. That the respondent has not expressly reconsidered the use of this land subsequent to SEQRP 2017 is not a matter that counts for or against the present application.
- The parties agree that the proposed development does not comply with SCPS. They diverge as to the significance of the non-compliance. The difference is best summarised in the words of the town planners. Mr Buhmann considered:
“… the development will not achieve full compliance with the lower level aspects of the planning scheme. To an extent there is also a departure with (sic) certain parts of the Strategic Framework, given the delineation of the urban/rural growth management boundaries in the planning scheme.”
- In contrast, Mr Schomburgk thought:
“[t]he intended strategic use of the land is … clear and unequivocal and flows through the various elements of the planning scheme – from the highest order Strategic Framework provisions, through the Local Plan, and down to the Zone Code and RoL Code provisions. The proposed development departs from each of these elements.”
- It is not necessary to set out entirely the provisions of SCPS relevant to this appeal. As noted above, there is a hierarchy in SCPS beginning with strategic elements and progressing to controls of an increasingly narrow focus. A development that does not comply with a strategic element will almost always not comply with other, more narrowly focussed controls. In a case such as this counting the number of provisions with which the proposed development is said to be inconsistent will not always help to decide a matter. Here, as was submitted by the respondent, it is more significant that the proposed development does not comply with a range of provisions from the highest, strategic level and permeating down through the scheme.
The ways in which the development is non-compliant with the SCRP
- A key concept of the strategic framework concerning settlement pattern is that urban and rural residential development is to be contained within defined local growth management boundaries. Strategic outcomes for the settlement pattern theme include:
“(b) Growth is contained within defined local growth management boundaries that apply and refine the land use categories in the SEQ Regional Plan. These local growth management boundaries reflect the outcomes of detailed local investigations.
(c) Urban development and rural residential development is contained within local growth management boundaries so as to protect biophysical and landscape values and natural resources, avoid natural hazards, maintain the individuality of communities and provide for the efficient delivery of infrastructure and services.”
- A specific outcome is:
“(b) Urban development is limited to land within the urban growth management boundary identified conceptually on Strategic Framework Map SFM 1 (Land use elements) and in further detail on the zoning maps.”
- The proposed development would not achieve these strategic and specific outcomes. It is urban development outside of the urban growth management boundary in an area designated as a rural residential zone.
- The appellant draws attention to the stated reasons for growth management boundaries and submits they lessen the significance of non-compliance with the strategic and specific outcomes. SCPS provides:
“3.3.3 Element 2 – Growth management boundaries and land use categories
184.108.40.206 Specific outcomes
- (d)The physical extent of urban development and rural residential development is contained within defined local growth management boundaries so as to:-
- (i)protect biophysical values including those within habitat areas, ecological linkages and natural waterways, wetlands and water bodies;
- (ii)protect natural resources including agricultural land class A and class B1, strategic cropping land and potential strategic cropping land, rural land in general and extractive resources;
- (iii)avoid natural hazards, including an allowance for the predicted impacts of climate change that may worsen these hazards;
- (iv)maintain the largest possible area of land for rural, landscape and environmental protection purposes into the future;
- (v)protect the discrete identities of individual places and communities; and
- (vi)maximise opportunities for the efficient delivery of infrastructure and services.”
- These reasons may be understood as informing why the boundaries are drawn as they are, and what is to be protected by limiting development within these boundaries. Broadly expressed the reasons relate to:
- environmental concerns;
- maintaining areas for rural, landscape and environmental protection purposes;
- protecting the discrete identities of individual places and communities; and
- maximising opportunities for the efficient delivery of infrastructure and services.
- I accept that considering these reasons may assist when assessing the importance of apparent non-compliance with strategic and specific outcomes in a particular case.
- Allowing the proposed development within the Rural Residential Growth Management Boundary, but adjacent to the Urban Growth Management Boundary, would not raise environmental concerns. The proximity of the land to existing water and sewerage infrastructure arguably provides the opportunity for efficient delivery of those services. These considerations do not support refusal of the appeal. On the other hand the proposed development would in my view conflict with the purpose of protecting the discrete identity of individual places and communities. Bella Street has areas of distinct character. The northern end is characterised by larger, rural residential blocks. A subdivision of this sort would alter the discrete identity of this part of Bella Street. There is also a question of the extent to which the use of the land should be restricted for “landscape protection purposes”. This has relevance insofar as it relates to the character and amenity issues discussed below.
- The separation of urban and rural residential development in Landsborough is important given the contribution rural residential properties make to the overall character and amenity of the town. So much was acknowledged by Mr Buhmann in evidence, and is reinforced by the Landsborough local plan code which provides:
“220.127.116.11 Purpose and overall outcomes
- (1)The purpose of the Landsborough local plan code is to provide locally relevant planning provisions for the assessment of development within the Landsborough local plan area.
- (2)The purpose of the Landsborough local plan code will be achieved through the following overall outcomes:-
- (b)Development for urban and rural residential purposes within the Landsborough local plan area is limited to land within the urban and rural residential growth management boundaries respectively to protect and reinforce the character and identity of Landsborough, provide for the efficient provision of infrastructure and services and to avoid constrained land that is generally unsuitable for urban and rural residential development.
- (c)Development retains the key built form, streetscape, landscape character and natural environment elements that contribute to the character, setting and identity of Landsborough as a rural town with a strong sense of place and associations with the past.”
- Issues concerning character and amenity are also squarely raised by other provisions of SCPS, as referred to in the evidence of Mr Curtis summarised at  above. Mr Curtis expressed the view that maintaining this parcel of land as rural residential land would separate the more intense development already found to the north and soon to be found to the south. I agree. The provision of rural residential land to separate parcels of urban land is important for the maintenance of the overall patchwork character of Landsborough in general, and Bella Street in particular. If the proposed development were to be approved it would reduce the buffer between the low density residential development in Echidna Court to the north and that near William Street to the south. It would in my view produce a near contiguous area of urban development on the eastern side of Bella Street, and detract from the identified character of Landsborough. This can be seen by reference to Figure 9 in the joint expert report.
- Mr Buhmann in cross-examination accepted, as do I, that the proposed development would be contrary to the reasonable expectation of local residents. The properly made submissions, most from residents of Bella Street, raised valid concerns about the impact of the development upon amenity and character. The development would also result in additional vehicle movements. It is reasonable to assume an extra 80 vehicle movements per day. Most would happen at peak times. Given the location of the proposed development and the fact that Bella Street is a dead end, the extra vehicle movement would come from, and return to, the northern end of the street. There would be a substantial increase in vehicle movements that would have an adverse impact on amenity for the local residents.
- In my view, the impact of the proposed development on the character and amenity of the area would be unreasonable. As put by Mr Curtis:
“The proposal will diminish and contribute to a fundamental change to the vegetated and/or open character and amenity of the existing semi-rural setting, which will diminish the combined amenity of the rural residential lots in the broader Landsborough area that contribute to the town’s identity and sense of place.”
The ways in which the SCPS favours the development
- In support of the development the appellant points to a number of matters it says favours approval, as set out in Exhibit 2, the agreed issues in dispute. These may be summarised as follows:
- The proposed development is well situated near the centre of town with access to key facilities such as transport and employment;
- It is topographically suitable for development and is near existing infrastructure; and
- It would contribute to affordable, attractive and diverse living opportunities.
- The last of these matters was dealt with by the appellant under the heading “Demand” and it was to this issue that the evidence of Mr King was apparently directed. In my view Mr King’s evidence does not assist the appellant. It amounted to no more than an expression of opinion that the proposed development would have “buyer appeal” and anecdotal evidence of potential land buyers disappointed they could not find affordable land close to town. Whatever confidence is held by Mr King that he, or another agent, could sell the new lots does not help to decide if this urban development in a rural residential zone should be approved. It is not evidence of “demand” or “need” that warrants “development in a location where the planning scheme provided that it should not occur”. There was evidence of significant planned supply of land for residential purposes on the Sunshine Coast, included in an area known as “Beerwah East” quite close to Landsborough. The respondent’s 2019 Land Supply and Development Monitoring Report suggests there is ample future supply on the Sunshine Coast.
- I note that much of the planned supply is not in Landsborough itself. I also accept that the works planned for the bus/rail interchange will result in the resumption of some residential land, reducing to some extent to the stock available to potential purchasers. Landsborough is an attractive town that will become more attractive with improvements to the rail line. It is easy to understand why people might want to live in Landsborough, close to the town’s facilities. But it is a reality of life that not every buyer can purchase land in the place they desire for the price they want to pay. There would be no shortage of disappointed buyers unable to find what they consider to be “affordable” land in their location of choice throughout the Sunshine Coast. Mr King did not attempt to explain what he considered to be “affordable” land or how the proposed development would provide such land. The appellant drew attention to the distinction between affordable land and “affordable living”. The latter is a concept defined in SEQRP as including not just the direct cost of housing but also factors such as transport and energy costs. In this regard Mr King’s evidence did little more than emphasise the convenient location of the subject land. I do not consider Mr King’s evidence established any matter that materially supported the appellant’s case.
- The first two matters mentioned above go to the heart of the appellant’s case: the land is well situated and can be developed practicably and efficiently. So much may be accepted. It may also be accepted that these matters conform to the aspects of SCPS identified by the appellant. But in my view these are not determinative considerations. As was said by Rackemann DCJ in VG Projects Pty Ltd v Brisbane City Council  QPEC 15 (at ):
“The efficiencies and other benefits to be obtained from further development must, of course, be balanced with other considerations, including appropriate respect for character and visual amenity. That balance is struck in the planning scheme documents.”
- Weighed against the adverse impact to character and amenity considered above I am not persuaded that the development should be approved. It was put by the appellant in closing submissions that:
“If the Court is satisfied that the change to character and amenity in this limited locality would not be unreasonable (in the context of the nature of the existing character and amenity, the form of the Proposed Development, and expected future development in the locality), then there is no reason why the Development Application should not be approved.”
- For the reasons expressed above I am satisfied the impact on character and amenity would be unreasonable. The impact of this proposed urban development on land zoned for rural residential purposes is such that, despite the matters favouring approval, the development application should be refused.
Summary and conclusion
- The local planning scheme, SCPS, may be taken to be an expression of the public interest in terms of land use. To the extent that SEQRP also expresses a public interest in developing land in the Urban Footprint it is qualified by the need to consider the controls of a local planning scheme. The proposed development does not comply with SCPS, and the extent of the departure is significant. It represents urban development in an area reserved for rural residential development. The proposed development will have an unacceptable impact on the character and amenity of the area. The fact that the development may be well situated from a town planning perspective, and Mr King’s confidence he could sell the development, are not reasons why approval of the development serves the public interest to an extent greater than maintaining the status quo.
- The decision to refuse the development application is confirmed and appeal is dismissed.
 The proceedings were erroneously commenced in the name of “Silk Properties Pty Ltd”. The appellant and each respondent agreed that it was appropriate to make orders removing “Silk Properties Pty Ltd” as the appellant, substituting “Silk Properties Australia Pty Ltd” and treating the latter as the applicant and appellant in this appeal. Such orders are permitted by section 37 of the Planning and Environment Court Act 2016 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld) which are picked up by rule 4 of the Planning and Environment Court Rules 2018 (Qld). I made orders to give effect to this agreed position in chambers on 1 July 2020.
 Appellant’s closing submissions, p. 15, paragraphs -.
 See Exhibit 2. During the hearing the respondent indicated it no longer pressed non-compliance with Strategic Outcome 3.3.1(d) and (e) of the SCPS.
 Taken from the description of the town planners in the joint expert report.
 A priority infrastructure area is an “area prioritised for the provision of trunk infrastructure to service the existing and assumed future urban development up to 2031” (SCPS, Part 4.3).
 Exhibit 5, p. 10.
 PECA, s 43.
 PECA, s 45.
 PECA, s 46; Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, .
Planning Act, s 45(7).
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82;  QPELR 686.
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16, ; Brookside Estate Pty Ltd v Brisbane City Council & Anor  QPEC 33.
Ashvan, , .
Gold Coast City Council v K & K (GC) Pty Ltd, .
 See Murphy v Moreton Bay Regional Council & Anor; Australian National Homes v Moreton Bay Regional Council & Anor  QPEC 46, .
 Exhibit 5.
 Exhibit 5, p. 15 at .
 Exhibit 4, p. 37.
 Ibid pp. 40, 68.
 Exhibit 5, p. 17 at .
 Ibid p. 16 at .
 Exhibit 4, p. 101.
 While the town planners considered issues under a fourth heading, “Density, layout and design”, these considerations can be assimilated into the three broad issues identified above.
 SCPS, section 3.1.
 SCPS, Chapter 6.
 SCPS, Chapter 7.
 SCPS, section 1.5.
 Exhibit 5, p. 27 at ; p. 29 at ; T.2-77.40 and T.2-78.5-10.
 Exhibit 5, p. 34 at .
 Exhibit 10, pp. 5-6 at –.
 T.2-77.15-38. See paragraph 5(a) of Exhibit 2.
 See paragraph 5(b) of Exhibit 2.
 T.3-11.22-40. See paragraph 5(c) of Exhibit 2.
 T.2-13.28-29; T.2-14.39-44.
 Appellant’s written submissions, p. 27 at . “Affordable living” is a defined term in SCPS: see Exhibit 3(a), p. 97.
 Exhibit 11, p. 37 at .
 Exhibit 4, p. 10.
 Dictionary, Schedule 2; section 4(b). It is also a “state planning instrument” – section 8(3).
 Dictionary, Schedule 2; sections 4(c) and 8(3).
 Exhibit 4, pp. 152, 159.
 Exhibit 5, p. 15 at .
 Exhibit 4, p. 101.
 Appellant’s written submissions, p. 12 at –.
 Exhibit 18, pp. 15-16.
 Ibid p. 16.
 Such as proximity to reliable and effective transport, existing communities and employment opportunities – see ibid.
Shardlow & Ors v Moreton Bay Regional Council  QPEC 82.
 Exhibit 5, p. 27 at .
 Ibid p. 28 at .
 Exhibit 3(a), p. 12.
 Ibid p. 14.
 Ibid: Specific outcomes 18.104.22.168(d).
 Exhibit 3(a), p. 39.
 “Rural Residential Zone Code”: 22.214.171.124(1), (2)(a) and 2(f) (Exhibit 3(a), p. 36) and “Reconfiguring a lot code”: 126.96.36.199(1)(a), 2(a) and PO3(b) (Exhibit 3(a), pp.51 and 53).
 Exhibit 5, p. 32.
 Exhibit 5, p. 32 at .
 Exhibit 11, p. 37 at .
Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor  QCA 41,  (McMurdo JA).
 Exhibit 8, tab 14, pp. 442-443.
 Exhibit 4, p. 84.
 Appellant’s closing submission, p. 49 paragraph .
Gold Coast City Council v K & K (GC) Pty Ltd, .
- Published Case Name:
Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council & Anor
- Shortened Case Name:
Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council
 QPEC 38
Cash QC DCJ
29 Jul 2020