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Boyneglade Property Developments Pty Ltd v Gladstone Regional Council[2021] QPEC 48

Boyneglade Property Developments Pty Ltd v Gladstone Regional Council[2021] QPEC 48

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Boyneglade Property Developments Pty Ltd v Gladstone Regional Council & Ors [2021] QPEC 48

PARTIES:

BOYNEGLADE PROPERTY DEVELOPMENTS PTY LTD ACN 153 364 839

(Appellant)

v

GLADSTONE REGIONAL COUNCIL

(Respondent)

GERARD F. CARTER

(First Co-Respondent by Election)

RICHARD SMITH

(Second Co-Respondent by Election)

ROSS ANDREW DAVISON

(Third Co-Respondent by Election)

IAN ARTHUR BAILEY AND LORAINE DOROTHY BAILEY

(Fourth Co-Respondents by Election)

CHRISTOPHER ROY JONES

(Fifth Co-Respondent by Election)

WILLIAM ERIC BELL

(Sixth Co-Respondent by Election)

ANTHONY LEWIS

(Seventh Co-respondent by Election)

JOHN ROBERT BEATTIE

(Eighth Co-Respondent by Election)

CHARLES WILLIAM TURICH

(Ninth Co-Respondent by Election)

ROBERT LUCAS

(Tenth Co-Respondent by Election)

DRUE PELLOW

(Eleventh Co-Respondent by Election)

JAMIE McKENZIE

(Twelfth Co-Respondent by Election)

CHERIE LOUISE POOLE

(Thirteenth Co-Respondent by Election)

TONY DART

(Fourteenth Co-Respondent by Election)

VICKI DART

(Fifteenth Co-Respondent by Election)

RONALD E van BERGEN

(Sixteenth Co-Respondent by Election)

PATRICIA B van BERGEN

(Seventeenth Co-Respondent by Election)

FILE NO:

231/2020

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

23 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27, 30, 31 August, 1, 2 September 2021

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application for an integrated lifestyle retirement facility in the Rural zone

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development – reverse amenity impacts – whether there are relevant matters which justify the proposed development

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss 46 and 43

Planning Act 2016 (Qld) ss 45, 60 and 61

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147

Richards & Ors v Brisbane City Council & Ors [2020] QPEC 26

COUNSEL:

A N S Skoien for the appellant

M J Batty and T D Stork for the respondent

SOLICITORS:

Gantt Legal for the appellant

Evans Planning Law for the respondent

Introduction

  1. [1]
    This is an appeal against the deemed refusal by the respondent of a development application for a preliminary approval (including a variation request) for a material change of use for a relocatable home facility on land at 48500, 48568 and Lot 11 Bruce Highway, Benaraby (“the site”). The proposed development is described as an “integrated retirement lifestyle development”,[1] which is conceded to be an undefined use (“the proposed development”) pursuant to the respondent’s planning scheme, the Gladstone Regional Council Planning Scheme Version 2 (“the planning scheme”).[2]
  2. [2]
    Each of the co-respondents supports the proposed development for various reasons.

The site and the surrounding area

  1. [3]
    The site is located approximately five kilometres from Benaraby near Gladstone.  It has an approximate road frontage of 2.52 kilometres to the Bruce Highway and an approximate frontage of 2.02 kilometres to Tannum Sands Road, which is intended to provide access to the proposed development.  The site comprises a total area of 262.94 hectares.  The central part of the site is largely cleared and is currently used for cattle grazing.[3]  It is included in the Rural zone pursuant to the planning scheme.[4]  It is not located within any urban areas pursuant to the mapping in the planning scheme.[5] On the opposite side of the Bruce Highway is the respondent’s regional landfill facility and the Benaraby Motor Sport precinct, which hosts a range of motorsports clubs. Currently, drag racing meets are run at the Benaraby Motor Sport precinct once a month over two days.  On the opposite side of Tannum Sands Road are two major sand quarries which are designated as key resource areas.[6]
  2. [4]
    The Gladstone Hospital is approximately 28 kilometres north-west of the site.  The closest centre is Tannum Sands, which is approximately 6.6 kilometres north of the site. This is where services such as supermarkets, medical facilities, pharmacies, and service stations are located. It is also where the closest public transport services can be found. There are no formal footpaths between Tannum Sands and the site.[7]

The proposed development

  1. [5]
    The precise scope of the proposed development remains unclear.  In the DA Form 1 it was described as “Relocatable Retirement Living”.[8] The development application also seeks to vary the planning scheme by the proposed Station Creek Development Code.[9]  Pursuant to it, a Relocatable Retirement Facility and a Residential Care Facility would become code assessable and Indoor Sport and Recreation and Outdoor Sport and Recreation would become Accepted Development.[10]  While it is clear that an 18-hole golf course, associated facilities and other sport and recreation facilities such as a swimming pool, tennis courts and a bowling green have always been contemplated as part of the proposed development, the extent of other uses remains unclear given the evidence of the appellant’s town planner Mr Enders and that of another witness, Mr Sullivan.[11]  The size of the proposed residential care facility is also unclear.   The number of relocatable home sites making up the balance of the residential use component of the proposed development has now been reduced to 362.[12]  A particular feature of the proposed development which has found favour with the co-respondents by election is the recreational vehicle parking facility which is contemplated for future residents.[13]
  2. [6]
    The plan of development shows the built form located in the eastern part of the site adjacent to Tannum Sands Road with the balance of the site either shown to be occupied by the golf course or open space.[14]

The statutory assessment framework

  1. [7]
    Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by hearing anew,[15] and the appellant must establish that the appeal ought to be upheld.[16]  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

“(2) The Planning Act, section 45 applies to the P&E Court’s decision on the appeal as if –

  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
  1. [8]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorizing instrument for the development which, in the circumstances before me, are the relevant provisions of the planning scheme.[17]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[18]
  2. [9]
    The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—

  1. (a)
    to approve all or part of the application; or
  2. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  3. (c)
    to refuse the application.”
  1. [10]
    In undertaking this task, the observations of Mullins J in Abeleda & Anor v Brisbane City Council & Anor are instructive:

“The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b).  The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.”[19]

  1. [11]
    Furthermore, as the appeal is about a development application which includes a variation request, s 61 of the PA also applies.  Relevantly, it states:

“(2) When assessing the variation request, the assessment manager must consider—

  1. (a)
    the result of the assessment of that part of the development application that is not the variation request; and
  2. (b)
    the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied; and
  3. (c)
    the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and
  4. (d)
    any other matter prescribed by regulation.
  1. (3)
    The assessment manager must decide—
  1. (a)
    to approve—
    1. all or some of the variations sought; and
    2. different variations from those sought; or
  2. (b)
    to refuse the variations sought.”
  1. [12]
    Insofar as the assessment benchmarks themselves are concerned, the applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:

“[52] The same principles which apply to statutory construction apply to the construction of planning documents.  The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.  In Commissioner for Railways (NSW) v Agalionos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and subordinate provision, and which must give way to the other’.  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[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.”[20]

The relevant provisions of the planning scheme

  1. [13]
    The proposed development is contentious having regard to a number of provisions of the planning scheme.  The appellant contends that it is contemplated in general terms where the planning scheme identifies “Places in the Gladstone Region”, both schematically and in terms that:

“These places are restricted to locations where a large single use or focus exists.  These places did not fit into or integrate well with other place types, taking a different physical form.  The Gladstone area’s larger industries and port facilities are obvious examples.  Other examples are tourist attractions, sport and recreation facilities including stadiums and out-of-centre retail developments.  Shopping centres, supermarkets and the like have the ability to be integrated into other place types and are not Specific Use places.”[21]

The difficulty for the appellant is that this oddly worded provision accompanied by a crude diagrammatic representation, does not refer to residential uses and needs to be read in the context of the planning scheme as a whole, applying the principles set out in Zappala quoted above.  This isolated statement does not of itself seek to suggest what uses are appropriate for the site. Conversely, it is alleged by the respondent that the proposed development does not comply with numerous provisions of the planning scheme which are found both within the strategic framework and the relevant codes.

  1. [14]
    Strategic outcome 3.3.1(12) seeks to conserve and sustain agricultural and rural land uses.[22]  The transport routes for regional resources are sought to be protected from encroachment to ensure that they can operate efficiently and safely.[23] Notably, Tannum Sands Road is mapped as a Major Road in the Strategic Framework.[24]
  2. [15]
    Section 3.4.1 provides for the following strategic outcomes under the Community Living theme:

“(1) New housing is located with ready access to employment and services, providing affordable living options in the region.

  1. (2)
    The region’s urban footprint as expressed in its new neighbourhoods, urban revitalisation neighbourhoods, mixed use centres and the Gladstone CBD will accommodate the region’s population and housing growth over the next 20 years.

  1. (8)
    Ageing in place is facilitated through wide housing and accommodation choices, including those that meet the needs of older people.”[25]
  1. [16]
    Subsequently under the heading “Housing mix and affordability” the concept of ageing in place is explained:

“The ability to “age in place” helps achieve well balanced and functional communities and forms part of the broader housing objective of providing greater housing choice to meet needs throughout different phases of life.  Retirement villages, aged care accommodation and other forms of accommodation for older people occurs in locations with convenient access to health and community services, public transport and centres.”[26]

  1. [17]
    Under the theme “Connecting our places” the following strategic outcomes appear in      s 3.5.1:

“(1) Communities are well connected to each other.  Neighbourhoods are linked to centres, employment and recreation areas by an integrated transport system across a mix of modes that meets a range of mobility needs and offers choice about how to move around the region.

  1. (5)
    Pedestrian and cycle networks are fundamental to the movement functions of neighbourhoods and centres throughout the region.  They are essential components of new neighbourhoods, urban revitalisation neighbourhoods and other urban place types.  Road corridors connecting important destinations throughout the region incorporate public transport and active transport modes and are designed to be safe and universally accessible.”[27]
  1. [18]
    Further guidance as to what is contemplated in the context of the site is developed under the subsequent heading “Connecting people and places” in the following terms:

“New urban areas such as the region’s new neighbourhoods are designed using grid-based street patterns that achieve high levels of connectivity and encourage walkability to key destinations for local businesses, community facilities, health services, shopping and entertainment, and recreational and sporting areas.  Improvements to connectivity in existing suburban areas in Gladstone and Boyne Island/Tannum Sands will be facilitated wherever possible.

Major urban arterials such as the Bruce Highway [and] Tannum Sands Road…perform national and regional functions. Development throughout the region preserves this network and minimises the need for any local level trips on these routes.”[28]

  1. [19]
    Pursuant to the theme “Building it better: our urban areas” the concept of new neighbourhoods is explained in the following terms:

“New neighbourhoods represent the region’s new growth areas and greenfield land supply.  These areas will provide the majority of new dwellings and development areas for the region and only occurs (sic) where it can be demonstrated that there is both overwhelming community and economic need.

New neighbourhoods only occur within, or as planned urban extensions of, the urban areas of Gladstone, Boyne Island, Tannum Sands, Calliope and to a lesser extent in Agnes Water.  This is represented by land included in the Emerging community zone.  New neighbourhoods are not supported in other zones.”[29]

Relevantly so far as the site is concerned, the following paragraph appears with respect to the Boyne Island and Tannum Sands urban area:

“Urban growth is clearly defined by an urban footprint that accommodates projected growth over the next 20 years.  There is no need for urban expansion beyond the Emerging community zone”.[30]

  1. [20]
    Finally, under the “Our rural and coastal townships and places” theme, s 3.8.1(3) states that no further expansion of the footprints of rural and coastal townships or increase in density is supported within the life of the planning scheme.[31]
  2. [21]
    As noted above, the site is within the Rural zone and is an undefined use.  It is therefore impact assessable across the entirety of the planning scheme.[32]  Pursuant to the purpose provisions of the Rural zone code, opportunities for non-rural uses that are compatible with agricultural and rural activities and landscape character, are contemplated where they do not compromise the long-term use of the land for rural purposes.[33] Further, urban and rural residential expansion is not to occur on land in the Rural zone.[34]  Thereafter, the table of development contains performance outcomes which seek to preserve the rural character of the locality,[35] and further seek that accommodation activities not encroach.  Reverse amenity concerns are addressed through the appropriate separation of sensitive land uses.[36]
  3. [22]
    Thereafter, the purpose provisions of the Development design code include that “the function, safety and efficiency of the transport network is optimized”,[37] and in the table of development, PO32 seeks to achieve this.[38]

The disputed issues

  1. [23]
    The respondent contends that the proposed development is in conflict with numerous provisions of the planning scheme noted above.  It is asserted that it is not appropriately integrated and connected to existing or future transport infrastructure networks and does not avoid private vehicle use, allows for the inefficient utilisation of transport infrastructure and will not provide for appropriate and convenient access to facilities and services.  It is asserted that the proposed development will result in adverse amenity and reverse amenity impacts.  It is asserted that the nature and extent of non-compliance with the planning scheme would cut across the clear planning intent that the proposed development not be located in the Rural zone and that where there is not a sufficient need for the proposed development, it should be refused. 
  2. [24]
    Conversely, the appellant nominates a number of relevant matters, notably a community, economic and planning need for the proposed development. It is asserted that in circumstances where it is not feasible or appropriate to locate it in an existing urban area, it will not fragment rural land and is consistent with rural uses.  It is asserted that there will be a range of community and social benefits as a consequence of the proposed development, including employment opportunities and increased housing choice, which will not result in any unacceptable impacts.  Finally, it is stated that approval of the proposed development would advance the purpose of the PA “by facilitating ecological sustainable development by maintaining the cultural and social well-being of people and communities”, which is then particularised in such broad terms as to be virtually meaningless.[39]

Need

  1. [25]
    As noted above, while the respondent contends that there is not a sufficient need for the proposed development in this location, the appellant contends that the community, economic and planning need for the proposed development justify approval of it.[40]  The concept of need for a proposed development was recently examined in Richards & Ors v Brisbane City Council & Ors:

“Essentially, planning need, or the term need in a planning context without qualification, refers to whether there is a latent unsatisfied demand in an area for the proposed development which is not being adequately met by the planning scheme in its present form.  Other terms address the demand in question.  Community need refers to an assessment of the extent to which the physical wellbeing of the community would be improved by the proposed development.  Economic need refers to an assessment of whether the extent of the demand for the proposed development is sufficient to support it at a sustainable level.”[41]

  1. [26]
    The appellant called need evidence from Mr Duane, an economist.  Surprisingly, despite the approach of the appellant that the proposed development “can only be considered as a whole and should not be broken down into its individual components”,[42] Mr Duane only assessed the need for a relocatable retirement facility and an aged care home in his evidence.[43] Furthermore, despite the proposed development being designed to specifically cater for “over 50s” retirement living,[44] Mr Duane only limited his assessment to people aged over 65.[45]  He did not make any assessment of the potential for retirement facilities to co-locate with any existing golf courses.[46]  He also excluded land in the Emerging community zone from his analysis.[47]  He arbitrarily excluded the urban centre of Agnes Water from his assessment in circumstances where if he had included it, approvals for relevant retirement facilities would have placed demand and supply “roughly in equilibrium”.[48]  This was so despite him also excluding an established 98-dwelling facility and the potential redevelopment site at Philip Street, Gladstone.[49]
  2. [27]
    Throughout the course of the hearing, the appellant placed significant importance on the co-location of the residential components of the proposed development with an 18-hole golf course designed by Graham Marsh, a leading golf course designer.  Mr Marsh gave evidence that there were already four golf courses located within the Gladstone region.[50]  Unfortunately, Mr Marsh has only visited one of them, has no idea as to the capacity of these golf clubs to accommodate new members and does not know what the level of demand is for golf in the Gladstone local government area.[51]  Moreover, his evidence was that there has been a steady decline in people playing golf in Australia since 1998,[52] and that despite the proposed development including a longer, challenging course, most older players prefer a shorter, less challenging course.[53]  This evidence confirms that of Ms Roughan, the town planner who gave evidence on behalf of the respondent, that a shortfall of golfing opportunities in the region had not been identified.[54]  I also accept the evidence of Ms Roughan that the individual elements of the proposed development are not dependent upon each other in a planning sense.[55]
  3. [28]
    Finally, while Mr Enders, the town planner who gave evidence on behalf of the appellant, conceded that the recreational component of the proposed development necessitates a site that is not easily accommodated in the urban footprint,[56] I accept the evidence of Ms Roughan that there is a sufficient supply of urban land in the local government area, that could accommodate the proposed development.[57]
  4. [29]
    On the evidence before me, the appellant has comprehensively failed to demonstrate a planning, community or economic need for the proposed development.

Planning issues

  1. [30]
    A useful summary of the extent to which the proposed development does not comply with the planning scheme is found in the evidence of Ms Roughan in the following terms:

“…the site is isolated and is not a logical or planned extension of the settlement pattern.  It does not integrate at all with existing or future urban development.  It is not identified under the structure plan for … Boyne Island and Tannum Sands as a growth area nor is it part of the priority infrastructure area.  It is remote from infrastructure and services.  It is reliant on private transport and makes no provision for, nor is it capable of providing convenient pedestrian, cyclist or public transport networks external to the site.  It does not create a walkable community”.[58]

  1. [31]
    Significantly, Mr Enders made the following concession in the course of his evidence:

“Inconsistencies of the proposal against the strategic planning framework embodied in the Gladstone Planning Scheme and specifically the preferred residential settlement pattern are acknowledged.  Generally the Planning Scheme seeks to contain urban land uses to the existing developed areas and the emerging communities zone.

In the absence of any overriding factors, the retirement housing component of the development would be inconsistent with these principles.”[59]

  1. [32]
    Although the appellant alleges that the proposed development will allow both relocatable home living and then residential aged care and thus permit people to age in place, this is not what is contemplated by the planning scheme which also seeks greater proximity to services as people get older. 
  2. [33]
    Turning to the other expert evidence. Firstly, I am satisfied that there will be no significant visual amenity impact given the relatively small footprint of the built form and the extent to which it will be screened by vegetation and other features.[60]  Furthermore, the relatively small building footprint in the context of the very large site will not result in any meaningful impact from the perspective of loss of primary production or a significant alienation of rural land.[61] I am satisfied that the proposed golf course could revert to grazing land should this proposed use be abandoned.
  3. [34]
    The likely consequences of the proposed development from a traffic and accessibility perspective are concerning.  The isolation of the proposed development and the lack of any pedestrian or cycling linkages has the consequence that, in the absence of any public transport infrastructure, the future residents would be almost entirely dependent on travel by private vehicles.  As Mr Healy, the traffic engineer engaged by the respondent, stated:

“Given the development’s almost total dependence on private vehicle travel and remoteness from existing facilities and services, the development will create longer and more frequent vehicle trips compared to other locations where this type of development is envisaged by this Scheme.  The development will therefore not result in the efficient use of existing road infrastructure.  It will result in high speed major roads being utilised for ‘local trips’.”[62]

  1. [35]
    This is undesirable from a planning perspective, particularly given Tannum Sands Road is utilised by vehicles conducting extractive industry operations in the vicinity of the site.
  2. [36]
    As Ms Roughan observed, on the opposite side of the Bruce Highway to the site is the Benaraby Motor Sport precinct, which is an established facility with a number of approvals, including a speedway approval permitting motor vehicle racing to occur between 10.00am and 10.00pm.[63]  Ms Roughan noted that the quarries, the municipal landfill and the motorsport precinct are uses which can give rise to amenity concerns.  She observed that:

“…the separation of incompatible activities, particularly separation between sensitive residential uses and high impact activities of an industrial or similar nature…is one of the oldest principles of modern town planning.”[64]

Ms Roughan went on to state that:

“There is also a long-held principle relating to “reverse amenity”: that existing high impacting activities should be protected from the risk of closure, restriction or additional costs as a result of the encroachment of sensitive uses giving rise to harm, nuisance or merely regular complaints.”[65]

Ms Roughan observed that “rural land provides the opportunity to avoid conflicts with sensitive uses almost entirely”[66] and that the area “currently enjoys a situation where risk of nuisance or harm is all but avoided, rather than having to be mitigated with residual risk managed on an ongoing basis.”[67] 

  1. [37]
    I am satisfied on the evidence before me that there is sufficient separation from the quarrying activities and the landfill that reverse amenity concerns will not arise.  However, I have concerns about the impacts of noise from the Benaraby Motor Sport precinct.  According to Mr King, the engineer who gave evidence on behalf of the appellant, the following noise mitigation measures will be required.  Firstly, two-metre landscaped earth mounds to the east and south of the “residential development areas”.[68]  Secondly, appropriately acoustic-rated dwellings with air-conditioning will be required and thirdly, disclosure will need to be given to future residents that at times noise from the motorsports uses will be audible.  Not only will there be extensive restrictions on the use of proposed dwellings by requiring residents to mitigate noise impacts by, at relevant times, closing windows and living in an air-conditioned environment, but notable noise impacts in outdoor areas of the site, will persist.  These impacts give rise to legitimate concerns about reverse amenity.  It is a bad planning outcome to place 352 dwelling sites in proximity to uses which the respondent has deliberately sought to keep well away from residents because of their impacts.

Relevant matters

  1. [38]
    Other than seeking to demonstrate a planning, community and economic need for the proposed development which the appellant has failed to do, the balance of the relevant matters are of little moment.  When compared to the inappropriateness of the proposed development from both a strategic planning and fundamental planning principles perspective, the fact that it will, for example, not compromise the long-term use of the land for rural purposes nor fragment rural land, does not have much impact in the exercise of the discretion to approve or refuse the proposed development.  The same can be said of the balance of the relevant matters nominated by the appellant. These include employment opportunities, increased housing choice and additional recreational opportunities as a consequence of the proposed development.[69] They do not overcome the fact that the proposed development is completely at odds with what the planning scheme has determined is in the public interest for the future development of the region.

Conclusion

  1. [39]
    The proposed development is inconsistent with planning strategies of the respondent evident in the planning scheme.  It is not appropriately located when issues such as connectivity, impacts on traffic and other uses in the vicinity are considered.  If approved it is likely to give rise to reverse amenity issues, particularly given the proximity of the Benaraby Motor Sport precinct and the fact that not all components of the proposed development can avail themselves of a design solution to avoid these impacts.  It would also, as a consequence of the proposed Station Creek Development Code, entrench residential and ancillary uses by making them code assessable, in circumstances where they are not contemplated for the site pursuant to the planning scheme and are otherwise unsuited to this location.
  2. [40]
    I therefore dismiss the appeal.

Footnotes

[1] Exhibit 22, para 23.

[2] T1-66, ll 10-20; Exhibit 5.

[3] Exhibit 21, para 3.1.

[4] Ibid, para 3.3.

[5] Exhibit 7.

[6] Exhibit 21, para 3.2.

[7] Exhibit 10, para 28.

[8] Exhibit 1, Vol. 2, p. 7.

[9] Ibid, p. 53.

[10] Ibid, pp. 56-57.

[11] Exhibit 22, para 12 and 13; Exhibit 26.

[12] Exhibit 23, para. 2.0.1.

[13] Exhibit 27.

[14] Exhibit 3, p. 6.

[15] Planning & Environment Court Act 2016 (Qld) s. 43.

[16] Ibid, s 45(1)(a).

[17] Planning Act 2016 (Qld), s 45(5)(a)(i).

[18] Ibid, s 45(5)(b).

[19] [2020] QCA 257 at [42].

[20] [2014] QCA 147.

[21] Exhibit 9.

[22] Exhibit 5, p. 16.

[23] Ibid, p. 21.

[24] Exhibit 7.

[25] Exhibit 5, p. 23.

[26] Ibid, p. 24.

[27] Ibid, p. 27.

[28] Ibid, p. 28.

[29] Ibid, p. 37.

[30] Ibid, p. 38.

[31] Ibid, p. 46.

[32] Ibid, p. 84.

[33] Ibid, p. 143, s 6.2.22.2(1)(a),

[34] Ibid, p. 144, s 6.2.22.2(2)(l).

[35] Ibid, pp. 144 and 146, PO4 and PO10.

[36] Ibid, p. 145, PO5 and AO5.

[37] Ibid, p. 161, s 9.3.2.2(4)(h).

[38] Ibid, p. 169.

[39] Exhibit 4.

[40] Ibid.

[41] [2020] QPEC 26 at [22].

[42] Exhibit 22, para 11.

[43] T2-43, ll 5 – 11.

[44] Exhibit 21, para 26.

[45] T2-53, ll 5 – 10.

[46] T2-59, ll 40 – 45.

[47] T2-60, ll 20- 22.

[48] T2-71, ll 30 – 35.

[49] T2-71, ll 35 – 45.

[50] Exhibit 19, para 4.2.

[51] T2-30, ll 5 – 30.

[52] Exhibit 19, Appendix C, para 2.0.5; T2-35, ll 25 – 45.

[53] T2-36, ll 25 – 40.

[54] Exhibit 21, para 93.

[55] Ibid, para 268.

[56] Ibid, para 309.

[57] Ibid, para 311.

[58] Ibid, para 159.

[59] Exhibit 22, paras 22 – 23.

[60] Evidence of Mr Curtis, Exhibit 14; Tl-123, ll 15-25.

[61] Evidence of Dr Matthew, Exhibit 13, p 7.

[62] Exhibit 10, para 29.

[63] Exhibit 23, paras 4.1.4 - 4.1.5.

[64] Exhibit 21, para 234.

[65] Ibid.

[66] Ibid, para 235.

[67] Ibid, para 242.

[68] Exhibit 17, para 35.

[69] Exhibit 4.

Close

Editorial Notes

  • Published Case Name:

    Boyneglade Property Developments Pty Ltd v Gladstone Regional Council & Ors

  • Shortened Case Name:

    Boyneglade Property Developments Pty Ltd v Gladstone Regional Council

  • MNC:

    [2021] QPEC 48

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    23 Sep 2021

Appeal Status

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

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