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  4. Emzay Pty Ltd v Bundaberg Regional Council - [2023] QPEC 20

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Emzay Pty Ltd v Bundaberg Regional Council[2023] QPEC 20

Emzay Pty Ltd v Bundaberg Regional Council[2023] QPEC 20

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Emzay Pty Ltd (ACN 010 659 097) v Bundaberg Regional Council [2023] QPEC 20

PARTIES:

EMZAY PTY LTD (ACN 010 659 097)

(Appellant)

v

BUNDABERG REGIONAL COUNCIL

(Respondent)

FILE NO/S:

2280/21

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

2 June 2023

DELIVERED AT:

Brisbane

HEARING DATES:

11-14 & 17 April 2023

JUDGE:

McDonnell DCJ

ORDER:

The appeal is dismissed and the decision of the respondent is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – COUNCIL APPROVAL – EXTENSION OF APPROVAL – where development approval was granted in 2009 – where four-year extension was granted to 2020– where further extension was granted to 2021 – where the application to extend the currency period for a further five years was refused – appeal against refusal – whether satisfactory explanation for delay – where discretionary considerations included need, bushfire, community awareness, and dedication of land

CASES:

Room2Move v Western Downs Regional Council [2019] QPELR 1010

Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 32

LEGISLATION:

Planning Act 2016 (Qld) s 87, s 88

Planning and Environment Court Act 2016 (Qld) s 43, s 45, s 47

COUNSEL:

M Batty with M Rodgers for the Appellant

B Job KC with K Buckley for the Respondent

SOLICITORS:

Clinton Mohr Lawyers for the Appellant

Connor O'Meara for the Respondent

Introduction

  1. [1]
    This appeal is against the respondent’s refusal of an application, pursuant to s 86 of the Planning Act 2016 (Qld) (‘Planning Act’), to extend the currency period of a development approval to reconfigure a lot (1 lot into 28 rural lots and balance area) in rural Goodwood within the Bundaberg Local Government Area.
  2. [2]
    The development application was made on or about 11 February 2009.[1]  It was assessed as a Development Application Superseded Planning Scheme against a scheme which took effect on 11 October 1980 and was the subject of a number of amendments up to and including 31 August 2001.  Public notification occurred in 2010.[2]  One or two submissions were received.  The respondent approved the application on 14 December 2012.[3]  On 3 July 2017 the respondent granted a four-year extension until 14 December 2020.[4]  The development approval was extended until 9 June 2021 as a consequence of the State Government automatic extension granted by the Minister for Planning on 21 July 2020.
  3. [3]
    On 9 June 2021, the appellant applied to extend the currency period of the approval by five years to 14 June 2026.  The council refused that application on 3 August 2021.  The appellant appeals against that decision.
  4. [4]
    If this application for extension is refused the development approval will lapse.[5]  However, it is not the case that the proposal can never proceed.  To the extent required, a new development application can be made.
  5. [5]
    I am not persuaded that it is an appropriate exercise of my discretion to grant the extension.  My reasons follow. 

The statutory framework for assessment and decision-making

  1. [6]
    Pursuant to s 86 of the Planning Act, a person may make an application to the assessment manager to extend a currency period of a development approval before it lapses.  Section 87 of the Planning Act provides that:

“(1) When assessing an extension application, the assessment manager may consider any matter that the assessment manager considers relevant, even if the matter was not relevant to assessing the development application.”

  1. [7]
    The assessment manager, in deciding the application, may:
    1. (a)
      Give the extension sought;
    2. (b)
      Refuse the extension sought; or
    3. (c)
      Extend the currency period for a period that is different from the extension sought.[6]
  2. [8]
    On appeal, the Court may, with respect to the decision appealed against, confirm it, change it, or set it aside and make a decision replacing it.[7]  The onus is on the appellant to establish that the appeal should be upheld. [8]  The appeal is by way of hearing anew.[9]  Section 87 of the Planning Act confers a broad discretion.[10] 
  3. [9]
    The assessment framework was considered by Williamson KC DCJ in Room2Move.com Pty Ltd v Western Downs Regional Council.[11]  His Honour observed that:
    1. (a)
      The breadth of assessment on extension applications includes matters that were irrelevant to the assessment of the original application, including an applicant’s personal circumstances;[12]
    2. (b)
      The power to decide the application is subject to one requirement, which is that the power is to be performed in a way that advances the purposes of the Planning Act;[13] and
    3. (c)
      A development approval, and the right to carry out the assessable development, is a right that can be lost – where a developer must “use it or lose it”.[14]
  4. [10]
    Further, Williamson KC DCJ held that there should be a “town planning imperative” for a fresh assessment of a development application under the Planning Act:

“[122]  Whilst the discretion to assess and decide an extension application is expressed in broad terms, the exercise of that discretion should, in my view, be informed by, inter alia, a point of context that can be easily overlooked. That context relates to the underlying rationale for an extension application.

….

[124] Section 86 of the PA, in my view, is clear recognition by the legislature of circumstances where no town planning purpose is served by development repeating the statutory assessment and decision making process simply because the approval which authorises it has, or will lapse. It is a vehicle that serves the wholesome purpose of avoiding the public and private expense associated with the development application and approval process, where, on balance, no town planning purpose would be served by it.

[125] This context informs the exercise of the discretion under s 87 of the PA. It invites the assessment manager (and this Court on appeal) to ask itself this question: is there a town planning imperative for the development, and its approval, to be the subject of a fresh assessment and decision under the PA?.”

  1. [11]
    The requirement for an “imperative” was softened by Rackemann DCJ in Sevmere Pty Ltd v Cairns Regional Council:

“[10] In Room2Move v Western Downs Regional Council, Williamson QC DCJ regarded it as relevant, to the exercise of discretion, whether there is a ‘town planning imperative’ for the development and its approval to be the subject of a fresh assessment and decision.  I agree in substance although, for my part:

  1. (i)
    I would use the expression ‘good reason’ or ‘good town planning reason’ rather than town planning ‘imperative’, since:
  1. (A)
    the expression ‘imperative’ is a stronger term than I would use to describe the strength that this consideration needs to achieve in order to justify a refusal of an extension application, and
  1. (B)
    the good reason to require a development proposal to go through a fresh application process, if it is to be pursued, rather than being accommodated by an extension, might relate to something other than a change to the town planning provisions, their intent or underlying strategy.  It might, for example, relate to a change to the application process and rights of participation in that process such as the level of assessment, extent of public notification and appeal rights.  It might, to take another example, relate to changes in facts or circumstances which, in turn, call into question the continuing compliance of the proposal with the relevant planning provisions or its acceptability otherwise and so bear on the utility of requiring a fresh application. I would adopt the expression ‘good town planning reason’ if it is understood as being used in its broadest sense.
  1. (ii)
    I do not consider that the range of potentially relevant considerations are restricted to that question.  For example, matters concerning whether the Appellant took reasonable steps towards acting on the approval and has given a sufficient reason for the need for an extension were raised as issues in this case and are, in my view, relevant to the exercise of the discretion.  For example, the grant of an extension might, subject to other considerations, be unlikely if its purpose was simply to enable an owner to ‘warehouse’ an approval that was not intended to be acted upon.  On the other hand, an applicant who had gone to considerable trouble and expense in reliance on an approval and in preparation for its timely exercise, but who had been thwarted by an unforeseen intervening event which resulted in the need for a modest extension might, subject to other considerations, be in a stronger position to secure a favourable exercise of discretion.  The relevance of the explanation for the need for an extension and, in that regard, the personal circumstances of the applicant, were recognised in Room2Move v Western Downs Regional Council.  The categories of potentially relevant considerations are not closed.”[15]
  1. [12]
    I respectfully observe and adopt the approach of Rackemann DCJ in Sevmere Pty Ltd v Cairns Regional Council.[16]  Relevant to the exercise of discretion is whether there is “good reason” or “good town planning reason” for the proposal to be the subject of a fresh assessment and decision.  The term “imperative” was used by Williamson QC DCJ in Room2Move v Western Downs Regional Council[17] is stronger than I would use in this consideration.  As observed by Rackemann DCJ, there is no right, or conditional right, to an extension nor any presumption in favour of granting an extension.[18] 
  2. [13]
    The reasons for the need for an extension and whether reasonable steps have been taken in reliance upon the approval are relevant to the exercise of this discretion.  The personal circumstances of the applicant are relevant.  Whether an extension should be granted requires consideration of all relevant matters in the particular circumstances of each case.

The land and the proposed development

  1. [14]
    The site is located at Goodwood Road, in the Goodwood locality (the Land).  The Land is irregular in shape, has an area of 1137 hectares and is currently vacant.[19]  It fronts Goodwood Road and Crystal Road and adjoins the North Coast Railway Line to the east and the Burrum Coast National Park to the north and east beyond the railway line.  To the south and west of the Land are rural and rural lifestyle residential lots varying in size and configuration.  The Land is identified as containing matters of environmental significance including vegetation, waterway and wetlands.[20]
  2. [15]
    The proposed development is for 28 lots ranging in size between 5.93 hectares and 16.88 hectares in the southern portion of the site, and a balance lot of 886 hectares to be dedicated to the Crown for conservation purposes.[21]  The proposed development will be accessed by the construction of a new road connecting to Crystal Road and turning into Woodgate Road to the south.[22] 

Issues in dispute

  1. [16]
    The matters for consideration have been defined by the parties in the Disputed List of Issues,[23] which identified a broad range of matters relevant to the exercise of the discretion.  While the respondent raised specific assessment benchmarks, the parties submitted, and I agree, that a merits assessment of the proposal against the current benchmarks is not appropriate or necessary.  In these reasons, the matters in issue are discussed to the extent necessary to explain the reasons for my conclusion.
  2. [17]
    In support of approval of the extension application the appellant said:
    1. (a)
      The approved development had a level of inconsistency with the planning framework that applied at the time the development approval was first granted;
    2. (b)
      The respondent assessed the appellant’s application for an extension to the currency period of the approved development after the Wide Bay Burnett Regional Plan 2011 and the Bundaberg Regional Council Planning Scheme 2015 had come into effect, approving the extension application on 30 June 2017.  These planning instruments have not changed in any material way;
    3. (c)
      There is a need for the approved development;
    4. (d)
      The approved development is consistent with adjoining residential subdivision;
    5. (e)
      The approved development is appropriately located and is proximate to social infrastructure, educational facilities (including Goodwood State School) and recreational areas;
    6. (f)
      The approved development represents a better planning outcome than a subdivision carried out at a lot size of 100 hectares or greater;
    7. (g)
      The carrying out of the approved development will result in the dedication of 886 hectares of land to the Crown;
    8. (h)
      The approved development provides housing choice within the Bundaberg region;
    9. (i)
      The existing conditions of approval are appropriate.  To the extent that further or different conditions of approval are required, or thought appropriate, (which is not admitted) they can be imposed when future related approvals (e.g. building works approvals) are obtained;
    10. (j)
      Matters going to community awareness do not call for the appellant not to be granted the relief that it seeks;
    11. (k)
      Any changes to standards or benchmarks since the time the approval was given do not call for refusal of the extension;
    12. (l)
      To the relevant extent, the approved development is consistent with the intent of the 2017 State Planning Policy and the Bundaberg Regional Council Planning Scheme 2015;
    13. (m)
      There is an appropriate explanation for the delay in the development approval being acted upon;
    14. (n)
      The appellant has undertaken steps towards furthering the carrying out of the approved development;
    15. (o)
      The changes to the planning assessment framework since the time the approval was given are not material and do not call for this appeal to be dismissed.[24]
  3. [18]
    The respondent opposes the extension.

Is there a satisfactory explanation for delay and what steps have been taken to act upon the approval?

  1. [19]
    The appellant submitted that there is an appropriate explanation for the delay when the circumstances of the delay are considered holistically.  Those circumstances are:
    1. (a)
      the capacity of the sole director, Mr Murphy, in the period 2015 to 2021 due to his health, other litigation in the Planning and Environment Court and other projects; and
    2. (b)
      economic conditions.
  2. [20]
    It submitted that this explanation is sufficient in the circumstances of the case because:
    1. (a)
      There is no planning harm occasioned by the extension of the development approval and, indeed, extending the approval is in the public interest given the absence of meaningful shift in the planning documents and the merit of the proposed development; and
    2. (b)
      There is uncontested medical evidence that the appellant’s sole director was adversely affected by health conditions while the development approval was on foot.
  3. [21]
    The economic experts agreed that economic conditions have been more difficult since the global financial crisis in 2008, with minimal growth in the Bundaberg local government area until more recently.[25]
  4. [22]
    The appellant and its related companies trade as Oxmar Properties (Oxmar).  Mr Mossop had managed development for Oxmar since 2003 and gave evidence that due to the global financial crisis Mr Murphy spent some time from around November 2008 to mid-2010 endeavouring to secure finance approval for the Oxmar companies and developments.  He said that towards the end of 2013 it was necessary to refinance again.[26]  Mr Mossop did not suggest that this need to refinance impacted upon the appellant’s ability to undertake the development. 
  5. [23]
    Ms Mitchell, a financial controller for the appellant, gave evidence that sales at a beachside residential estate at Burrum Heads called “On the Beach” being developed by Oxmar experienced a significant drop between 2007 and 2011, with the number of sales stagnant before increasing in 2021.[27]  She attributed this poor sales rate to lack of purchaser interest in regional Queensland in the last decade.[28] 
  6. [24]
    I do not accept that the poor sales at “On the Beach” are solely due to lack of purchaser interest as suggested by Ms Mitchell.  The period of time during which Ms Mitchell attested sales were stagnant coincided with a period of time when there was foul smelling, stagnant water on the development site.  Mr  Murphy gave evidence in related Supreme Court proceedings that this was “affecting (Emzay’s) ability to sell lots within the development”.[29]  The evidence of the development manager for that development in those proceedings was that the onsite water made it difficult to work on several parts of the land.[30]  Those proceedings were not resolved until late 2019 or early 2020.[31]  Thus, sales of the lots at the Burrum Heads development between 2007 and 2021 were impacted by the onsite water.  Further, I consider that sales rates of beachside residential lots as proposed at “On the Beach” have limited relevance to sales of rural lots at the present proposal because “On the Beach” is located some distance from the Land, close to the beach, and comprises significantly smaller lots ranging in size from 700m² to 895m².[32]
  7. [25]
    The medical evidence from Dr Ryan, Mr Murphy’s medical practitioner, is that Mr Murphy suffered a transient ischaemic attack and attendant health concerns in 2010 and, as a result of illness in 2017, he experienced chronic fatigue syndrome which improved over time.  In July 2021, he had improved to the extent that he was able to participate in effective discussions, planning and explanation.[33]  He stated “I have no doubt that the TIA and CFS suffered by Mr Murphy would have adversely affected Mr Murphy’s ability to operate his business to the extent he was able to do that before suffering those conditions.”[34]
  8. [26]
    Mr Mossop gave evidence that since 2003 Oxmar’s business has grown significantly, and it became “increasingly difficult for Mr Murphy to be as actively involved in all elements of every development.”[35]  He said that this necessitated the appellant engaging development managers to attend to day-to-day operations of Oxmar’s developments.  He said Mr Murphy expected that those managers would “take all necessary steps to progress the developments” managed by them as well as “conduct any enquiries necessary to ensure that Oxmar is progressing its approvals and can act on those approvals”.[36]  Mr Mossop gave evidence of 38 developments started and continued or completed by Oxmar in the period from 2003 to date, including a development commenced in 2018.  Mr Murphy engaged a development manager for this proposal between July 2010 and August 2020.[37] 
  9. [27]
    Mr Mohr, a solicitor for the appellant, gave evidence of significant planning litigation in the period 2009 to date, in which Mr Murphy was actively involved.[38] 
  10. [28]
    While Dr Ryan did not doubt that Mr Murphy’s illness would have affected Mr Murphy’s ability to operate his business, the evidence does not support this opinion.  It is apparent that a significant number of Oxmar’s developments have progressed, and appropriate attention has been given to litigation despite his illness.  There is no evidence that other of Oxmar’s developments were delayed or impacted by Mr Murphy’s ill health, or that he was unable to conduct his business.  Development managers, including a development manager for this development, were engaged to progress developments. 
  11. [29]
    That this particular development, of all those undertaken by Oxmar, was not progressed was not explained. It seems progressing this development was simply not a priority. It is apparent that Mr Murphy’s ill health had a limited adverse impact on Oxmar’s ability to conduct litigation and progress a significant number of other projects.[39]  Nor am I persuaded that economic reasons played a role in the delay to act upon the approval.
  12. [30]
    Mr Barnes, who was engaged by the appellant in April 2021, reviewed the appellant’s file in relation to the development.  He said that the steps taken by Mr Moffat, the then development manager, were:
    1. (a)
      In June 2016, a quote was obtained for civil engineering design and documentation; and
    2. (b)
      In November 2019, he made enquiries about the steps necessary to obtain an approval for an operational works application (tree clearing) and obtained a quote for a protected plants flora survey on the Land.[40]
  13. [31]
    Since his engagement, Mr Barnes has attended a pre-lodgement meeting with the respondent’s development assessment team regarding the extension application, met with a consultant to commence investigation of the Land, in July 2022 spoke with an officer at the Department of State Development, Infrastructure, Local Government and Planning “who generally indicated that the State’s position with respect to the proposal had not changed”, engaged advisors to prepare the application the subject of this appeal and engaged engineers to undertake preliminary costings for road works and clearing.[41] 
  14. [32]
    There is no evidence revealing the particular topics of discussion with the officer at the Department of State Development, Infrastructure, Local Government and Planning.  To the extent it might be suggested that it was in respect of the dedication of 886 hectares and the undated letter[42] from the Department of Environment and Resource Management, [43]  I do not accept that.  The 2010 letter concerning the dedication was provided by another department entirely. 
  15. [33]
    It is apparent that no meaningful steps have been taken to progress the development the subject of the approval.  There is no evidence of any costs expended.  While a 5-year extension was requested there was no evidence that the appellant intends to act upon the approval nor why a 5-year extension was sought. 
  16. [34]
    For these reasons, I am not satisfied that there is a satisfactory explanation for the lengthy delay in exercising the rights conferred by the approval.
  17. [35]
    The absence of an adequate explanation for the delay in acting upon the approval, the failure to take meaningful steps pursuant to the approval in the 11 years since it was granted, the lack of an explanation for the need for a 5-year extension, and the absence of a commitment to act upon the approval in the event the extension is granted, are all factors which, in my opinion, weigh heavily against granting the extension. 
  18. [36]
    There are good reasons for the imposition of currency periods on development approval, including that unutilised approvals may dissuade others from making application for a similar development in the area. 

What is the assessment regime?

  1. [37]
    The original development application was impact assessable and attracted one or two properly made submissions.  The development application was publicly notified in 2010.[44]  If the application were made today, it would similarly be impact assessable. 
  2. [38]
    The appellant submitted that little weight should be given to this because:
    1. (a)
      there has been no change in ownership, the original application generated little public interest, and those submissions made do not call for the application to be refused;
    2. (b)
      in respect of those who have moved into the area since the application was publicly notified, properly informed (that is, having undertaken appropriate searches) they would be aware of the extant development approvals;
    3. (c)
      members of the public are unlikely to be directly affected by the small scale of the proposal;
    4. (d)
      there has been no shift in planning instruments and no unacceptable planning harm arising from the approval; and
    5. (e)
      An individual choosing whether to make a submission would weigh the positives and negatives of the proposal and have regard to the substantial public benefit of the dedication. 
  3. [39]
    It is apparent that there have been changes in ownership of land in the vicinity of the Land since the application was publicly notified.[45]  However, the location of potential submitters is not limited to those in the vicinity of the Land.  Others in the community, not just those in the vicinity of the Land, may make a submission.  If this application were made today, people who did not make a submission in 2010 may choose to do so because they are new to the area, because they were not aware of the development application, because their attitude to the proposal has changed since that time or for some other reason.  It does not matter why.  
  4. [40]
    While the level of assessment is unchanged, I am satisfied that the combination of the length of time which has elapsed since this development application was approved, and that it remains impact assessable if made today (matters contributing to public awareness) are factors which weigh against approval of the extension.

Bushfire

  1. [41]
    Mr Delaney said the land is currently located within a designated bushfire prone area.[46] It is apparent that the level of sophistication of bushfire hazard mapping for the Land has increased between the time of the original application and the present time.[47]  I accept Ms Gannon’s evidence that the mapping indicates a greater level of bushfire intensity (from medium to high, with some areas of potential impact buffers) than the mapping in place at the time of the original approval.
  2. [42]
    The condition of approval relevant to bushfire management provides:

“25. The Developer must submit to Council a Bushfire Management Plan which details mitigation measures as detailed in the Bushfire Risk Assessment prepared by Wide Bay Burnett Environmental Consulting Services and dated 20  August  2009.”[48]

  1. [43]
    The Bushfire Management Plan (BMP) prepared by Mr Delaney contains mitigation measures in excess of those contained in the Wide Bay Burnett Environmental Consulting Services Report 2009 (the 2009 report).  In particular, it provides for statutory covenants,[49] emergency shelter in place areas,[50] fire trail locations[51] the identification of building location envelopes for other than lots 1, 2, 3 and 5,[52] and 10,000 litre tanks for bushfire fighting.[53]  The appellant urged that this is a refinement of the approval; that while these matters go beyond those contained in the 2009 report that does not make the BMP inconsistent with the 2009 report and thus non-compliant with condition 25.
  2. [44]
    Mr Delaney relied upon the measures specified in the BMP to demonstrate compliance with the contemporary assessment benchmarks.[54]  His evidence was that all the measures contained in the BMP are required to achieve compliance with contemporary benchmarks[55] and that the BMP must be approved and implemented in perpetuity.[56]  It is also required to demonstrate compliance with the current planning scheme.[57]  In Mr Delaney’s view, the statutory covenant is important.[58]  If the development were to proceed and a BMP compliant with contemporary benchmarks was not implemented and enforced in perpetuity, in Mr Delaney’s opinion, people and property on the Land would be exposed to an unacceptable risk of harm.[59]
  3. [45]
    The appellant submitted that the proper construction of Condition 25 requires not just submission of a BMP to Council but approval of that BMP by the Council and ongoing compliance with the BMP. 
  4. [46]
    Further, it said that it is not an issue in the appeal that compliance with Condition 25 cannot be achieved.  In support of the grant of extension, the appellant said that ‘the existing conditions of approval are appropriate’ and ‘to the extent that further or different conditions of approval are required, or thought appropriate, (which is not admitted) they can be imposed when future related approvals (e.g. building works approvals) are obtained.’[60]  Thus, whether the conditions of approval are appropriate is relevant to consideration of the appeal. 
  5. [47]
    Ms Gannon accepted that additional concerns regarding bushfire management including management of keys for gates could be dealt with by way of amendment to the BMP.[61]  However, requiring an amended BMP is not a course available to me.  There is no certainty that the BMP prepared for these proceedings, or some revised BMP addressing the additional matters identified by Ms Gannon, will be the BMP provided to the Council.
  6. [48]
    Even if I accept that Condition 25 should be construed as proposed by the appellant, there is no requirement that this particular BMP be submitted, nor any ability to require it.  A BMP including mitigation measures detailed in the 2009 report but not meeting the contemporary benchmarks could be lodged and would satisfy Condition 25.  The condition does not require a BMP compliant with contemporary benchmarks be provided.   
  7. [49]
    I am satisfied that the measures specified in Mr Delaney’s BMP are required to demonstrate compliance with contemporary assessment benchmarks and the panning Scheme.  While I do not doubt that a BMP can be prepared to ensure compliance with contemporary practices, compliance with a BMP incorporating contemporary bushfire risk practices is not required by this approval.  The condition requires a BMP which contains mitigation measures detailed in the 2009 report.  Further, there is no mechanism available within the context of these proceedings which allows those benchmarks and Mr Delaney’s BMP to be required to be implemented for this approval.  Appropriate and contemporary bushfire management practices are in the interests of public safety.  Given the significant risks associated with bushfire, it is appropriate to be conservative in consideration of bushfire risk management.  It is a significant public interest consideration.  In the exercise of my discretion, it is a factor which weighs heavily against the granting of the extension. 

Is the dedication of the northern portion a factor which weighs in favour of granting the  extension of the approval?

  1. [50]
    The appellant submitted that the significant environmental benefit of the 886ha balance lot being dedicated to the State was a compelling factor in support the extension.  The ecologists agreed that this dedication can be a positive conservation outcome.[62]  I accept this evidence. 
  2. [51]
    There is no evidence since the 2010 letter that the dedication might be accepted by the State.  If the Land is not dedicated to the State, the plans for the balance subdivision will not be sealed.[63]  Absent evidence as to the likelihood of the dedication occurring, I do not accept that weight should be given to the ecological benefits of the dedication as a factor in support of the granting of the extension, as the dedication may not occur.  For these reasons, the environmental benefits of the dedication of the northern portion is not a matter which supports approval of the extension.

Need

  1. [52]
    The appellant submitted in support of approval that there is a need for the development and that, if approved, it would provide housing choice.  Mr Duane said that there is an economic and community need for the proposal.  He opined that while there is a theoretical level of available land to accommodate dwellings to meet projected population and dwelling growth in the defined local study area, planning designations do not guarantee when and how an individual site is developed.[64]  He accepted that the agreed existing need for rural residential development is capable of being met by the planning scheme, but questioned whether it was being met with respect to these larger lot sizes.[65] 
  2. [53]
    The economic experts agreed that within the study area of 2,500m² (including approximately 10 designated towns and villages),[66] there would be a demand of 24 lots in excess of  2,000m² per year.[67]  Accepting Mr Duane’s evidence that 7 to 10% of this demand would be for lots of 4 to 10 hectares, this results in an annual demand of 1.7 to 2.4 lots per annum across the study area.  Mr Duane accepted that there is substantial designated land to supply the market.  His issue is whether it is in fact brought to market.[68]  
  3. [54]
    Mr Brown said that as a result of the 2015 Planning Scheme there has been a significant increase in the supply of land for rural residential development.  He said that there is no economic or community need for the proposed development because there is a significant quantum of land designated for rural residential development in the local study area with a significant number of approved, vacant and development lots intended to meet future demand.[69]  Mr Brown considered that there already exists significant choice (in terms of location and size).[70]
  4. [55]
    I prefer the evidence of Mr Brown because I accept that there is substantial land available for future development and that land in this market is slow selling such that it is unusual for entire estates to be released to the market at one time.  While designated land may not be developed for its intended purpose, the designation indicates clear intent to meet future demand.  On the evidence there is no need because it is being met by the allocation of land pursuant to the Planning Scheme.  Accordingly, need is not a factor which supports approval of the application.

Conclusion

  1. [56]
    It was submitted that a shorter extension than the five years requested could be allowed if it were in the public interest.  However, there was no evidence before me as to the appropriate length of the extension and, in the absence of any commitment to progress the approval, I do not consider it a matter requiring further consideration.  In any event, a shorter extension would not address my concerns.  
  2. [57]
    The Land is in a bushfire prone area. Management of the risks associated with bushfires is a significant issue for the community.  For the purposes of this appeal the appellant undertook significant work in relation to, amongst other things, bushfire risk management.  The evidence was that the implementation of a BMP incorporating contemporary bushfire management strategies is essential to public safety.  A fresh application will enable the imposition of conditions appropriate to require a BMP demonstrating compliance with contemporary bushfire risk management practices.  
  3. [58]
    Further, the failure to satisfactorily explain the delay, the failure to take meaningful steps in reliance upon the approval, the lack of commitment to progress the development if the extension is granted and public awareness are all factors which weigh heavily against granting the extension.  For the reasons given, the dedication of the northern parcel and need for the proposal are not matters which, in my view, support granting of the extension.  
  4. [59]
    Even assuming all other matters raised by the appellant are determined in the appellant’s favour, in the exercise of my discretion, I am not persuaded that those factors outweigh the significant factors set out in [57] and [58] which weigh against approval.  In my view, there is good reason for requiring that the proposal be the subject of a new development application. 

Orders

  1. [60]
    The appeal is dismissed and the decision of the respondent is confirmed.

Footnotes

[1]  Ex. 4, CEO Certificate and Common Material – Vol. 1, 11.

[2]  Ex. 4, CEO Certificate and Common Material – Vol. 1, 266.

[3]  Ex. 4, CEO Certificate and Common Material – Vol. 1, 491, 1[3].

[4]  Ex. 5, CEO Certificate and Common Material – Vol. 2, 37.

[5]Planning Act 2016 (Qld) s 87(7) (‘Planning Act’).

[6] Planning Act s 88.

[7] Planning and Environment Court Act 2016 (Qld) s 47 (‘PECA’).

[8] PECA s 45(1).

[9] PECA s 43.

[10] Room2Move v Western Downs Regional Council [2019] QPELR 1010 [99].

[11]  [2019] QPELR 1010.

[12]  Ibid [101] and [103].

[13]  Ibid [104].

[14]  Ibid [123].

[15]  [2021] QPEC 32 [10].

[16]  [2021] QPEC 32 [10]-[11].

[17]  [2009] QPELR 1010 at [99].

[18] Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 32 [11].

[19]  Ex. 13 Town Planning JER [12].

[20]  Ex. 13 Town Planning JER, [16]-[17].

[21]  Ex. 13 Town Planning JER [21]-[22].

[22]  Ex. 13 Town Planning JER [24].

[23]  Ex. 3A.

[24]  Ex. 3A.

[25]  Ex. 10, Need JER, 21.

[26]  Ex. 21, Affidavit of Mark Mossop, [9]-[12].

[27]  Ex. 22, Affidavit of Suzanne Louise Mitchell, sworn 1 December 2022, [6].

[28]  Ex. 22, Affidavit of Suzanne Louise Mitchell, sworn 1 December 2022, [2]. 

[29]  Ex. 42, p 24, [100], [101].

[30]  Ex 43, p 17, [68]. 

[31]  T4-49, [4]-[6].

[32]  Ex. 49.

[33]  Ex. 19, Affidavit of Dr John Ryan sworn 28 November 2022, [9]-[12].

[34]  Ex. 19, Affidavit of Dr John Ryan sworn 28 November 2022, [13].

[35]  Ex. 21, Affidavit of Mark Mossop, [4].

[36]  Ex. 21, Affidavit of Mark Mossop, [5], [6], [7].

[37]  Ex. 21, Affidavit of Mark Mossop, [15].

[38]  Ex 23, Affidavit of Clinton Matthew Mohr sworn 1 December 2022, [3].

[39]  Ex 23, Affidavit of Clinton Matthew Mohr; Ex. 21, Affidavit of Mark Mossop.

[40]  Ex. 20, Affidavit of Christopher Colin Barnes, sworn 6 December 2022, paras 15 and 16, p 4.

[41]  Ex. 20, Affidavit of Christopher Colin Barnes, sworn 6 December 2022, paras 19 to 24. 

[42]  presumed to be dated in about 2010.

[43]  Ex. 4, CEO Certificate and Common Material – Vol. 1, p 244.

[44]  Ex 4, Certificate and Common Material, Vol 1, p 266.

[45]  Ex. 38 and 39.

[46]  Ex 11, Bushfire JER 10 [19].

[47]  Ex 11, Bushfire JER 10, 11.

[48]  Ex 4, CEO Certificate and Common Material, Vol 1, 497.

[49]  T3-45 [36].

[50]  T3-45 [40].

[51]  T3-45 [45].

[52]  T3-46 [23]-[24].

[53]  T3-60 [4].

[54]  T3-59 [24]-[28].

[55]  T3-60 [18]-[19].

[56]  T3-61 [18]-[21].

[57]  T3-61 [26].

[58]  T3-49 [25].

[59]  T3-62 [28]-[32].

[60]  Ex. 3A.

[61]  T4-30, [4]–[6].

[62]  Ex. 12, Ecology JER, 39 [192].

[63]  Condition 26.

[64]  Ex. 10, Need JER, 48 – 49 [119].

[65]  T3-21, [7] – [11].

[66]  T3-9, [33] – [36].

[67]  Ex. 10, Need JER, 29 [89].

[68]  T3-20, [37] - [38].

[69]  Ex. 10, Need JER, 49 [120].

[70]  Ex. 10, Need JER, 11 [33].

Close

Editorial Notes

  • Published Case Name:

    Emzay Pty Ltd v Bundaberg Regional Council

  • Shortened Case Name:

    Emzay Pty Ltd v Bundaberg Regional Council

  • MNC:

    [2023] QPEC 20

  • Court:

    QPEC

  • Judge(s):

    McDonnell DCJ

  • Date:

    02 Jun 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Room2Move v Western Downs Regional Council [2019] QPELR 1010
6 citations
Jump To
Cite 1 - [2019] QPELR 1010
Cite 2 - [2019] QPELR 1010
Cite 3 - [2019] QPELR 1010
Cite 4 - [2019] QPELR 1010
Cite 5 - [2019] QPELR 1010
Cite 6 - [2019] QPELR 1010
Room2Move v Western Downs Regional Council [2009] QPELR 1010
1 citation
Jump To
Cite 1 - [2009] QPELR 1010
Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 32
4 citations
Jump To
Cite 1 - [2021] QPEC 32
Cite 2 - [2021] QPEC 32
Cite 3 - [2021] QPEC 32
Cite 4 - [2021] QPEC 32

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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