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Torcross Investments Pty Ltd v Scenic Rim Regional Council[2023] QPEC 6

Torcross Investments Pty Ltd v Scenic Rim Regional Council[2023] QPEC 6

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Torcross Investments Pty Ltd v Scenic Rim Regional Council  [2023] QPEC 6

PARTIES:

TORCROSS INVESTMENTS PTY LTD ACN 056 541 336

(Appellant)

v

SCENIC RIM REGIONAL COUNCIL

(Respondent)

FILE NO/S:

1308/2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13-15 February 2023

JUDGE:

McDonnell DCJ

ORDER:

The appeal is adjourned to a date to be fixed for review to enable the parties to agree upon appropriate conditions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – Appeal against refusal of a development application for reconfiguration of a lot – where land in the rural zone – where the proposed reconfiguration reflects the severance of the existing lot by a public local road – where the relevant planning scheme is the Scenic Rim Planning Scheme 2020 – whether the proposal is consistent with rural character – whether the proposed development will result in lots of an appropriate size and shape having regard to the assessment benchmarks – whether the proposed development ought to be approved

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] 6 Qd R 441

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253

Engwirda v Mackay City Council [2008] QPEC 78

Jackson v Brisbane City Council [2018] QPELR 264

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPELR 835

Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328

United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPELR 510

Wilhelm v Logan City Council & Ors [2020] QCA 273

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

LEGISLATION:

Planning Act 2016 (Qld) s 45, s 60

Planning and Environment Court Act 2016 (Qld), s 43, s 46

COUNSEL:

L Walker for the appellant

N Loos for the respondent

SOLICITORS:

HWL Ebsworth Lawyers for the appellant

King and Co for the respondent

Introduction

  1. [1]
    This is an appeal against the respondent’s decision to refuse a development application for a development permit to reconfigure a lot (1 lot into 2) in respect of land located at 27 Curtis Road, Canungra (the Land).
  2. [2]
    There are two primary issues in dispute. First, whether the proposal is compatible with and will protect and enhance the rural character and second, whether the proposed development will result in lots of an appropriate size and shape having regard to the relevant assessment benchmarks.

The site and the surrounding area

  1. [3]
    The Land is 28.31 hectares in area. It is irregular in shape and is divided into two portions by Curtis Road, a public road. The northern portion has an area of 5.132 hectares and the southern portion has an area of 23.18 hectares. The proposed subdivision reflects this configuration. No material change of use is proposed and no physical change is proposed to the Land.
  2. [4]
    The northern portion is unimproved, while the southern portion is improved by fenced paddocks, sheds and a stable.[1]
  3. [5]
    The Land is located approximately 14 kilometres south-east of Beaudesert and 15 kilometres south-west of the township of Tamborine Mountain.[2]  The nearest town is Canungra, located 7.3 kilometres to the north-east, a drive of approximately 7 minutes.[3]  The Land is situated in a valley.[4]  Adjoining lots contain dwelling houses and ancillary buildings associated with rural and rural living uses.[5]  Consistent with its rural location, the Land is not serviced by Council infrastructure, however electrical and telecommunication services are available.[6] 
  4. [6]
    Surrounding lots range in size from below 2 hectares to over 200 hectares, with adjacent lots ranging from 2 hectares to 40 hectares.  Multiple parcels of 2 hectares to 5 hectares are located along Lamington National Park Road to the north-east and south of the Land.[7]

Background to the application

  1. [7]
    The development application was accepted by the Council as properly made on 2 November 2021[8] and was:
    1. (a)
      subject to impact assessment; and
    2. (b)
      required referral to the Chief Executive under the Planning Regulation 2017 (Qld) as it is within 25 metres of Lamington National Park Road, being a state-controlled road.  SARA advised they had no requirements with respect to the application.[9]
  2. [8]
    No submissions were received during the notification period.[10]  The development application was refused by the Council on 11 May 2022.[11]  The appeal was commenced on 3 June 2022.[12]

What is the statutory assessment framework for the decision.

  1. [9]
    The appeal is to be determined under the Planning Act 2016 (Qld) (Planning Act) and the Planning and Environment Court Act 2016 (Qld) (PECA). The Court stands in the shoes of the assessment manager and decides the application anew.[13]  In deciding the appeal the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or returning the matter to the Council with directions the Court considers appropriate.[14]  The appellant bears the onus in the appeal.[15]
  2. [10]
    As the Development Application was subject to impact assessment, the assessment:
  1. (a)
    must be carried out:
  1. (i)
    against the relevant assessment benchmarks in a categorising instrument that was in effect when the development application was properly made;
  2. (ii)
    having regard to any matters prescribed by the Planning Regulation 2017 (Qld). The appellant urged that regard be had to the use of adjacent parcels for purposes that include dwelling houses, which I accept; and
  1. (b)
    may be carried out against, or having regard to, any relevant matter, other than a person’s personal circumstances, financial or otherwise.[16]
  1. [11]
    The assessment framework has been examined by the Court in Ashvan Investments Unit Trust v Brisbane City Council & Ors[17] and Murphy v Moreton Bay Regional Council & Anor.[18]  That approach was endorsed by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd[19] and Abeleda v Brisbane City Council[20]  As her Honour Mullins JA observed:

“[42] …The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the 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 weighed according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

[43] In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer to terms of one aspect of the public interest “over-riding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.  The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to balanced with the factors in favour of refusal of the application.  The weight given to each of the factors is a matter for the decision-maker in the circumstances…”[21]

  1. [12]
    Thus, s 60(3) of the Planning Act confers a broad discretion in deciding an impact assessable application. The decision-maker is to balance the factors to which consideration may be given. Non-compliance with an assessment benchmark does not necessarily dictate refusal of a development application.[22]  The decision-maker has more flexibility to approve an application which does not comply with a planning document than under the previous legislation.[23]  I respectfully agree with and adopt the observations of Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor[24] that:

“not every non-compliance will warrant response. It will be necessary to examine the verbiage of the Planning Scheme, the planning policy or purpose of relevant provisions and the degree of importance the Planning Scheme attributes to them.”

  1. [13]
    The extent to which a flexible approach to the exercise of discretion will prevail will turn on the facts and circumstances of each case, including the nature and extent of the non-compliance, if any, with an identified assessment benchmark. 
  2. [14]
    As Mullins JA observed in Wilhelm v Logan City Council & Ors:

“[77] …the change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of the land.”[25]

  1. [15]
    The Court of Appeal considered the applicable principles for the construction of planning documents in Zappala Family Co Pty Ltd v Brisbane City Council saying:

“[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.’ Commissioner for Railways (NSW) v Agalianos, 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 provision to achieve that result which will best give effect to the purpose and language of the provisions while maintaining the unit of all of the statutory provisions.  Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and the 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.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.  In The Commonwealth v Baume Griffith CJ cited R v Bershet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’

….

[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning…’

…

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

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

[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 needs to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.[26]  (Footnotes omitted).

  1. [16]
    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) Hayne, Heydon, Crennan and Kiefel JJ observed that:

“This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text.  The language which has been actually employed in the text of the legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[27]

What is the planning framework?

  1. [17]
    The planning scheme in effect when the application was properly made was the Scenic Rim Planning Scheme 2020 (SRPS).
  2. [18]
    The SRPS specifies a hierarchy of assessment benchmarks.  Relevantly, where there is an inconsistency between provisions of the SRPS, the Strategic Framework prevails over all other components to the extent of the inconsistency for impact assessment.[28]
  3. [19]
    In considering whether the proposed development complies with the Strategic Framework, it must be assessed as a whole rather than considering individual provisions in isolation as “the strategic framework in its entirety represents the policy intent for the planning scheme.”[29]
  4. [20]
    The approach to determining compliance with the codes in the SRPS is outlined in s 5.3.3(3), relevantly, as follows:

“Code assessable development:

  1. (c)
    complies with:
  1. (i)
    the purpose and overall outcomes of an assessment benchmark (e.g. code) complies with the assessment benchmark;
  1. (ii)
    that performance or acceptable outcomes complies with the purpose and overall outcomes of the assessment benchmark.”[30]
  1. [21]
    While this provision applies to code assessment, I accept that it applies equally in the context of impact assessable development applications.[31]
  2. [22]
    Under the SRPS, the Land is included in the:
    1. (a)
      Rural Area of the Strategic Framework;
    2. (b)
      The Rural Zone (but not located in either the Rural 40ha Precinct or the Rural 60ha Precinct); and
    3. (c)
      As to the southern portion, affected by the Agricultural Land Overlay – Agricultural Land Classification (Class A and B).[32]

Adjoining lots and most lots in the wider vicinity of the Land are also in the Rural Zone.[33]

Issues in dispute

  1. [23]
    At the conclusion of the hearing, the issues in dispute were defined[34] by reference to the Written Submissions on Behalf of the Appellant[35] and the Respondent’s Outline of Submissions.[36] 
  2. [24]
    These issues require an examination of:
  1. (a)
    whether the proposed development will result in lots of an appropriate size and shape having regard to the relevant assessment benchmarks;
  1. (b)
    whether the proposal is compatible with and will protect and enhance the rural character;
  1. (c)
    whether any non-compliance with the identified assessment benchmarks identified can be remedied by the imposition of conditions; and
  1. (d)
    whether in the exercise of discretion the proposal should be approved.
  1. [25]
    The good quality agricultural land experts agreed, and I accept, that the:
  1. (a)
    the northern portion is mapped as Agricultural Land Class C2 but due to its steep slope it would be relegated to Agricultural Land Class D (the lowest agricultural land class), meaning it is unsuitable for agriculture except (possibly) for plantation timber; and
  1. (b)
    the reconfiguration would therefore have no material impacts on the agricultural productivity of the site, locality or region.[37]
  1. [26]
    The traffic experts agreed, and I accept, that the current formation of Curtis Road does not represent a barrier for safe movement between the northern portion and the southern portion[38] and that if existing fencing were removed or the intensity of uses on the Land were increased, the severity of any conflict would continue to be low.[39]  They agreed that Curtis Road (a graded and gravelled local road)[40] provides access to two lots that contain dwelling houses at the end of the street, and experiences very low traffic volumes.[41] Thus, I accept that the two parts of the Land could function as a single unit with limited impact on the use of Curtis Road.

The SRPS provisions in dispute

  1. [27]
    The Strategic Framework provides, relevantly, that development in “Rural Areas will recognise, respect and integrate with the existing character, rural and natural landscapes and economic values of the region”.[42]
  2. [28]
    The Strategic Intent of the Strategic Framework provides, in respect of Rural Areas, that the intended settlement pattern is that:[43]

“Rural Areas retain their distinctive and attractive rural and natural landscape qualities, including but not limited to:

  1. (1)
    Expanses of productive rural farmland

…

Rural Areas provide for a wide range of rural and complimentary land uses that maintain agricultural production opportunities in different parts of the region.

….

The option for residents to live in Rural Areas to enjoy rural lifestyles will continue.  The expected amenity of Rural Areas is predominantly representative of a traditional rural environment.”

  1. [29]
    The Strategic Outcomes for Rural Areas, relevantly state that:[44]

“(1) Rural Areas only accommodate those land uses identified in the “Table of Consistent Uses and Potentially Consistent Uses” for each zone unless it is demonstrated that the development complies with the Strategic Framework.

  1. (2)
    Non-rural activities are located and designed to preserve the landscape character and scenic amenity of Rural Areas, which include, (but are not limited to) the following rural and natural qualities:
  1. (a)
    expanses of rural farmland;

…

  1. (4)
    Lots in the Rural Zone achieve the minimum lot sizes specified for the Rural Precincts in Strategic Framework Map SFM-03: Rural Precinct Plan, being:
  1. (a)
    Rural 60ha Precinct; and
  1. (b)
    Rural 40ha Precinct.

which are SEQ Subdivision Precincts in accordance with Schedule 10 of the Planning Regulation 2017.  Where not included in a Rural Precinct, the minimum lot size for new lots in the Rural Zone is 100ha.

  1. (5)
    Rural Areas support opportunities for rural living in the form of Dwelling houses, Dual occupancies and Rural worker’s accommodation.

….

  1. (7)
    Rural Areas are protected from encroachment by urban and rural residential development.
  1. (8)
    The level of amenity in a Rural Zone (excluding precincts) is predominantly representative of a traditional rural environment.”
  1. [30]
    Relevantly, the purpose of the Rural Zone is to:[45]

“(a) Provide for rural uses and activities; and

  1. (b)
    provide for other uses and activities that are compatible with:
  1. (i)
    existing and future rural uses and activities; and
  1. (ii)
    the character and environmental features of the zone;”
  1. [31]
    The purpose, (where no precinct applies) is achieved through, amongst other things, the following overall outcomes:

“(a) Development facilitates:

  1. (i)
    a wide range of rural uses, rural living and complimentary non-rural uses that protect or enhance:
  1. the use of the land for agricultural production; and
  2. the rural character, natural landscape and environmental values of the zone.

….

  1. (e)
    Lot design:
  1. (ii)
    facilitates agricultural production, and minimises the loss and fragmentation of land for agricultural production; and
  2. (iii)
    complies with the standards in Table 9.4.6.3.2 – Minimum Lot Size and Design.”

Reconfiguration of a Lot

PO4

Reconfiguring a lot:

(1)  Creates lots of an appropriate size, dimension and configuration to accommodate land uses consistent with the purpose and overall outcomes of the zone;

….

(3)  Complies with the standards in Table 9.,4.6.3.2 – Minimum Lot Size and Design

AO4

No Acceptable Outcome is prescribed.

  1. [32]
    The RAL Code provides:

Lot Design

PO11

Reconfiguring a lot:

  1. Results in lots that have a useable shape suitable for the lots’ intended purpose and use;
  2. Results in lots with a regular shape and boundaries where practicable;
  3. Allow for the uses listed in the Table of Consistent Uses and Potentially Consistent Uses in the Zone;
  4. Achieves character and built form outcomes applicable to the relevant Zone;
  5. Provides for all activities associated with the use on the lot to be located wholly within the lot;
  6. Does not contravene any existing approvals attached to the land; and
  7. Does not result in existing development contravening the Planning Scheme.

AO11.1

Development creates lots that comply with:

9.4.6.3.2 – Minimum Lot Size and Design

AO11.2

Development ensures lot size and dimensions are sufficient to:

  1. Retain consistency with any existing approvals attached to the land;
  2. Provides for all activities associated with the use on the lot to be located wholly within a single lot;
  3. Accommodate the existing development in a way that does not contravene the requirements of the Planning Scheme;
  4. Accommodate intended or likely structures, including the provision of level building pads and any associated retaining walls; and
  5. Achieves character and built form outcomes for future development applicable to the relevant Zone.

Will the proposed development result in lots of an appropriate size and shape having regard to the relevant assessment benchmarks?

  1. [33]
    The issue of the appropriateness of the size, dimension and configuration of the lots created by the proposed development is relevant to compliance with the following assessment benchmarks in dispute:
    1. (a)
      the Strategic Framework (in particular, ss 3.4.1 and 3.4.2 in respect of Rural Areas);
    2. (b)
      Rural Zone Code: Purpose 1(a), Purpose 1(b), Overall Outcome 2(a), Overall Outcome 2(e) (ii) and Performance Outcome 4; and
    3. (c)
      RAL Code: Purpose 1(a), Overall Outcome 2(a), Overall Outcome 2(b) and PO11.
  2. [34]
    It was not in dispute that the proposed lot sizes do not meet the minimum size of 100 hectares for land in the Rural Zone that is not in a precinct.  This minimum lot size is reinforced throughout the SRPS from the highest order provisions through to the more specific lower order provisions. By reference to the provisions in dispute, the minimum lot size provision is contained in the Strategic Framework s 3.4.2,[46] in particular Strategic Outcome (4), as well as Overall Outcome 2(e)(ii)[47] and PO4(3) of the Rural Zone Code[48] and AO11.1 of the RAL Code.[49]
  3. [35]
    It has been observed by the Court in other cases that the reference to specified minimum areas in the overall outcome and strategic outcomes, rather than only the acceptable outcomes, indicates an intention by the Council to emphasise the importance which the planning scheme attaches to achieving a pattern of development which accords with that intention. [50]  I accept that elevating the minimum lot size to the provisions of the Strategic Framework reinforces their importance.  However, the minimum lot size prescribed in the SRPS is not a prohibition on lots below that size. 
  4. [36]
    The town planners examined the underlying planning rationale for the imposition of the minimum lot size provisions. 
  5. [37]
    Having regard to other provisions in the SRPS, Ms Rayment opined that the purpose for the minimum lot size in the Rural Zone is the protection of the agricultural productive capacity of rural land and prevailing rural character.[51] 
  6. [38]
    In addition to the two matters raised by Ms Rayment, Mr Ovenden opined that there were a further five matters of planning principle underpinning the minimum lot size provision.  These were that fragmentation caused by the creation of scattered rural residential-type development (which he says this is) also:
    1. (a)
      diminishes the available land for rural use;
    2. (b)
      introduces land use conflicts between primarily residential uses and rural uses;
    3. (c)
      introduces more people within an area where there is limited infrastructure and services;
    4. (d)
      creates an inefficient demand on State and regional services (such as by proliferating the number of people living in remote areas);[52] and
    5. (e)
      creates a lack of confidence in the integrity of the Rural zone.[53]
  7. [39]
    The additional matters of planning principle identified by Mr Ovenden are laudable.  The first two listed above are factors which appropriately arise for consideration when ensuring the protection of agricultural production capacity of rural land and for which support is provided in the SRPS.  The other matters to which Mr Ovenden refers do not displace the clear statements of principle in the SRPS. 
  8. [40]
    It is apparent from a reading of the SRSP that the protection of the agricultural productive capacity of agricultural land and the rural character are the principles underpinning the minimum lot size provisions in the Rural Zone.  The preservation of the productivity of good quality agricultural land is not in issue.  Thus, I am satisfied that the proposal does not offend the underlying planning policy in relation to the protection of the agricultural productive capacity of rural land.  It was Mr Ovenden’s view that consideration of the rural character should not be restricted to its present character.  This is addressed below at paragraphs [54] to [68].  Accepting for the present purposes that the prevention of fragmentation of rural land is a principle underlying the imposition of the minimum lot size provisions, as the proposal reflects the current physical boundaries of the Land, and the SRPS provides that residents in the Rural Area should expect a level of amenity consistent with a rural environment, my opinions about the proposal would not change. 
  9. [41]
    In Ms Rayment’s opinion, compliance with the balance of the Strategic Intent and relevant Strategic Outcomes in the Strategic Framework in so far as they relate to lot size and shape are achieved as:
    1. (a)
      the proposed development simply creates individual tenure for the two sections of the Land already severed by Curtis Road;
    2. (b)
      the Rural Area will continue to be able to accommodate land uses identified in the Table of Consistent Uses and Potentially Consistent Uses for the Rural Zone; and
    3. (c)
      the proposed development will provide an additional opportunity for rural living in the form of a future dwelling house to support rural workers involved in agricultural production.[54]
  10. [42]
    In addressing the relevant provisions of the Rural Zone Code, Ms Rayment opined that the proposal creates lots of an appropriate size, dimension and configuration to accommodate uses consistent with the purpose and overall outcomes of the Rural Zone as:
    1. (a)
      the two separated parts of the lot of a useable shape, dimensions and configuration and appear and function as two separate lots;
    2. (b)
      the proposal is of a scale and intensity that protects the rural amenity of the Rural Zone as the proposed lot sizes, dimensions and configuration are consistent with other lots in the vicinity of the land and no further fragmentation of the Land is proposed;
    3. (c)
      it does not result in any loss of natural or environmental features as no changes to the physical boundaries are proposed;
    4. (d)
      it does not result in the loss of capacity of the site and adjacent land for agricultural production;
    5. (e)
      it does not change (and potentially minimises) the potential for land use conflict with adjacent rural land;[55] and
    6. (f)
      the Land is already appropriately serviced by road infrastructure, being Curtis Road.[56]
  11. [43]
    Mr Ovenden opined:

“The proposal is opportunistic.  It attempts to create a rural lifestyle…lot in a rural area.  It will fragment rural land and serve to diminish the rural productivity and character of the area.  It will exacerbate problems associated with scattered rural residential type development, including the potential, over time, the land use conflict and demand (with associated inefficiency) for the provision of infrastructure and services in remote areas.”[57]

  1. [44]
    Mr Ovenden accepted the evidence of the GQAL experts that the proposal will not result in a reduction in the agricultural capacity of the Land.[58]  He did not take issue with the irregular nature of the shape of the allotments.  Further, he accepted that the Strategic Framework encourages opportunities for rural living in Rural Areas, including the option for residents to enjoy a rural lifestyle, within the bounds of the other outcome statements.[59]
  2. [45]
    In my view, Mr Ovenden placed undue weight on the minimum lot provisions of the SRPS, and insufficient weight upon the other considerations in the SRPS and the particular circumstances of this proposal.  For these reasons, to the extent of any inconsistency, I prefer the evidence of Ms Rayment in relation to this issue. 
  3. [46]
    It is important in my consideration of this proposal that it will have no material impact on the agricultural productivity of the site, the locality or region, and that no changes to the physical boundaries are proposed. 
  4. [47]
    The Strategic Intent and Strategic Outcomes of the Strategic Framework envisage the option for rural living and rural lifestyles in Rural Areas.  Residential uses, including Dwelling House and Dual Occupancy, are consistent uses in the Rural Zone.  The expected level of amenity is that predominantly representative of a traditional rural environment.[60]  Thus, residents would expect a level of accessibility to services and infrastructure consistent with a rural environment.  In my view, this reduces the likelihood of land use conflict.  The proposal enables residents to live in Rural Areas to enjoy rural lifestyles with the amenity expected in a traditional rural environment. 
  5. [48]
    I am satisfied that the Rural Area will continue to be able to accommodate land uses identified in the Table of Consistent Uses and Potentially Consistent Uses for the Rural Zone.   
  6. [49]
    Any one of the uses that are Accepted Development or Accepted Development (subject to requirements) in the Rural Zone could already be carried out on the Land.[61]   Mr Ovenden accepted that to the extent that any proposed use of the lots does not comply with the requirements for Accepted Development or Accepted Development (subject to requirements), it would be the subject of a further development application to the Council.[62]
  7. [50]
    The SRPS envisages that compatible uses and activities may occur in the Rural Zone, provided the rural character and the use of land for agricultural production is protected and enhanced.  The proposal supports “opportunities for rural living”[63] and “the option for residents to live in Rural Areas to enjoy rural lifestyles will continue.[64]  I am satisfied that the proposal creates parcels adequate to accommodate a range of uses consistent with the purpose of the Rural Zone and that can be used for appropriate rural uses, including rural living.    
  8. [51]
    The proposal reflects the existing physical characteristics of the Land which is severed and serviced by Curtis Road.  Given the existing physical boundaries of the Land, regular shaped lots would not be practicable.  The proposal results in lots that have a useable shape suitable for the zone’s intended purpose and use, reflecting the existing physical boundaries of the Land, which is irregular in shape.  No further fragmentation of the Land is proposed.
  9. [52]
    Consistent with my findings, the proposal achieves the character (addressed below) and built form outcomes applicable to the Rural Zone, does not contravene any existing approvals attached to the Land, and does not result in existing development contravening the Planning Scheme.  Pursuant to s 5.3.3(3) of the RSPS, the proposal need only achieve compliance with PO11 of the RAL Code to demonstrate compliance with that code.[65]  Accordingly, I am satisfied that PO11 is met and compliance with the RAL Code is demonstrated.
  10. [53]
    For these reasons I am satisfied that the proposal will result in lots of appropriate sizes and dimensions having regard to the relevant assessment benchmarks. While the proposal does not meet the minimum lot size provisions in the assessment benchmarks, I am satisfied that the proposal otherwise satisfies the assessment benchmarks in dispute so far as they relate to appropriate lot size and shape. 

Is the proposal compatible with, and will it protect and enhance the rural character?

  1. [54]
    The following assessment benchmarks in dispute are relevant to this issue:
    1. (a)
      section 3.4 of the Strategic Framework, in relation to whether the Rural Area will retain its distinctive and attractive rural and natural landscape qualities;
    2. (b)
      Rural Zone Code: Purpose 1(a), Purpose 1(b) and Overall Outcome 2(a)(i)(B); and
    3. (c)
      RAL Code: Purpose 1(a) and Overall Outcome 2(a).[66]  
  2. [55]
    The appellant submitted that, pursuant to the provisions of the SRPS, the existing character of the area is the relevant consideration in undertaking this analysis.[67]  The Council submitted that the character intended for the Rural Zone, as informed by the minimum lot size provisions, was also relevant to this consideration.[68]  It further  submitted that the existing character is rural and that if the SRPS intended that new development was to replicate the smaller lot sizes of the existing development, then it would say so.[69]
  3. [56]
    A planning scheme is a forward-looking document, setting the parameters for future development.  The SRPS provides a minimum lot size indicating a future intention for larger lot sizes in this area than presently exist.  However, the Strategic Framework requires that development “recognize respect and integrate with the existing character”[70] and the Rural Zone Code seeks to “protect and enhance” rural character.[71]  The use of the phrase “protect and enhance” is a reference to existing character as only the existing character can be protected and enhanced.  Thus, those provisions clearly require a consideration of the existing character.  The SRPS does not require development to be consistent with the intended character for the Rural Zone. 
  4. [57]
    However, if I am wrong and the intended character must be considered, my opinion does not change.  For the reasons set out below, I consider that the proposal is compatible with and protects and enhances the existing rural character.  To the extent the proposal is not consistent with the intended character (which I do not accept), any such non-compliance relates only to the minimum lot size, which is just one factor informing character.
  5. [58]
    Ms Rayment opined that the area has a prevailing rural character.[72]  Mr Ovenden opined that the number of small blocks in the area, with the majority being less than 100 hectares, was part of the existing character of the area[73] and that the proposed lot sizes fit within the mix of lot sizes already existing in the area.[74]  In his view, the existing character of this part of the Scenic Rim is rural.[75] However, he considered the current lot sizes a legacy issue and that the proposal undermines the settlement pattern outcomes sought to be achieved by the SRPS.[76] 
  6. [59]
    As observed by the town planners, the predominant pattern of development in the surrounding rural adjacent area comprises lots of less than 100 hectares.  This mix of lot sizes informs character.  I find that the prevailing character of the area is rural and comprises a range of lot sizes most of which are less than 100 hectares.
  7. [60]
    Mr Ovenden expressed concern that the proposal introduced rural residential uses into the Rural Zone.  He considered the 5 hectare lot proposed on the northern portion to be rural residential or rural lifestyle in nature[77] and not consistent with the predominantly traditional rural amenity of the area. [78]  He considered that the proposal would cause the area to become slightly less rural and slightly more rural residential in nature,[79]  although he accepted that it would not “break the back” of the amenity in the area.[80]  
  8. [61]
    Rural residential is not a term defined in the SRPS.  The SRPS provides that the minimum lot size for the Rural Residential Zone is 4,000m² where it is not in a precinct, and if in a precinct the minimum lot size is 1 hectare.  The lots proposed are in excess of these minimums.  I do not accept that the size of the proposed lot comprising the northern portion is consistent with rural residential or lifestyle parcel.   Accordingly, I do not accept that this proposal creates a rural residential lot as envisaged by the SRPS, on the northern portion. 
  9. [62]
    The SRPS seeks to protect Rural Areas from encroachment by urban and rural residential development (s 3.4.2(7) and (8)).  I am satisfied that this proposal does not create a parcel of land consistent in size with the SRPS’s expectation for rural residential or urban development. Therefore, this provision is satisfied. 
  10. [63]
    The Strategic Framework and Rural Zone Code both envisage residents living in Rural Areas to enjoy rural lifestyles.[81]  A dwelling house is a consistent use in the Rural Zone. 
  11. [64]
    Despite accepting that the Strategic Framework contemplated opportunities for rural residential living in Rural Areas, Mr Ovenden considered the proposal to be in stark contrast to the outcomes intended by the SPRS.[82]  In forming his views, I consider Mr Ovenden placed insufficient weight on the existing character.  Accordingly, I prefer the evidence of Ms Rayment. 
  12. [65]
    In Ms Rayment’s opinion, compliance of the Strategic Intent and relevant Strategic Outcomes in the Strategic Framework in so far as they relate to character are achieved because:
    1. (a)
      the proposed development is consistent with the prevailing rural character;[83]
    2. (b)
      the Rural Area will retain its rural landscape qualities, including areas of productive rural farmland as the proposed boundary simply follows the existing physical separation of the Land by Curtis Road; and
    3. (c)
      she does not expect any change to the level of amenity expected in Rural Areas because of the proposed development.[84]
  13. [66]
    In considering this issue, Ms Rayment placed considerable weight on the following facts:
    1. (a)
      that the two parcels appear and function as two separate lots; and
    2. (b)
      as the northern parcel is unsuitable for agriculture (except possibly for plantation timber) the reconfiguration would have no material impacts with respect to the agricultural productivity of the site, locality or region.[85]
  14. [67]
    The proposal formalises the current physical boundaries of the Land. The two portions presently appear to be separate parcels.  The proposed lot sizes are consistent with the size of parcels of land in the area. These are factors to which I give significant weight in my consideration of the proposal. Taking these matters in to account, I am satisfied that the proposal integrates, protects and enhances the existing character. 
  15. [68]
    I accept Ms Rayment’s evidence that the Rural Area will continue to be able to accommodate land uses identified in the Table of Consistent Uses for the Rural Zone.  As these uses are envisaged in the Rural Zone, I accept that the proposal will facilitate a wide range of rural uses and rural living that will protect or enhance the rural character of the zone.[86]  The proposal provides for uses and activities compatible with existing and future uses and activities consistent with the Rural Zone purpose.[87]  For these reasons, I am satisfied that the proposal satisfies the assessment benchmarks in dispute in so far as they relate to character. 

Conditions

  1. [69]
    There are no conditions of approval which can be imposed to remedy non-compliance with the identified assessment benchmarks because the non-compliances identified  are with the minimum lot size provisions of the SRPS.

How should the discretion be exercised?

  1. [70]
    The appellant said the proposed development ought to be approved having regard to the following relevant matters: [88]
    1. (a)
      the proposed development reflects the existing physical boundaries of the Land;
    2. (b)
      the proposed development will provide an opportunity for rural living and additional housing to support agricultural activities;
    3. (c)
      whether the proposed development will result in lots that are consistent in size and dimension with other lots in the vicinity of the Land;
    4. (d)
      whether the proposed development will result in lots that can be employed for appropriate uses;
    5. (e)
      whether any incompatible land use would be subject to further assessment by the Council;
    6. (f)
      the proposed development would result in improved safety for vehicles travelling on Curtis Road;
    7. (g)
      whether any non-compliance with the assessment benchmarks in paragraph 1(a) of Exhibit 1 will result in any unacceptable adverse impacts; and
    8. (h)
      whether the proposed development satisfies the underlying planning rationale of the assessment benchmarks identified in paragraph 1(a) of Exhibit 1, such that any non-compliance does not warrant refusal of the proposed development.
  2. [71]
    Addressing these matters:
    1. (a)
      while Curtis Road is a very low order road which the traffic engineers do not consider to be an impediment to use of the Land as a single unit, the proposal merely reflects the present boundaries of the Land;
    2. (b)
      there is no mechanism in the present appeal to ensure that approval of the proposal would ensure a rural or agricultural worker living in the newly created lots. The proposal may provide such an opportunity. However, consistently with the SRPS, it may also provide an opportunity for rural living;
    3. (c)
      the proposal will result in lots that are consistent in size and dimension with other lots in the vicinity of the Land;
    4. (d)
      the proposal will result in lots that will enable uses appropriate to the zone to be undertaken;
    5. (e)
      Mr Ovenden accepted that, to the extent that any proposed use did not comply with the requirements for Accepted Development or Accepted Development (subject to requirements), it would be the subject of a further development application to the Council;
    6. (f)
      the traffic experts identified the improved safety for vehicles travelling on Curtis Road if the proposal were approved as being “marginal at best”;[89] and
    7. (g)
      on the basis of my findings, I am satisfied that the non-compliance with the minimum lot size provisions will not result in any unacceptable adverse impacts.
  3. [72]
    The Land is situated within an area that is already fragmented in terms of lot sizes, such that 100 hectares, while nominated as the minimum lot size, is a planning control that is not reflected in the predominant pattern of development in the vicinity of this site.  
  4. [73]
    While I accept minimum lot size is an important consideration, it is not a prohibition on development and does not trump other considerations required by the SRPS. 
  5. [74]
    It is necessary to read the scheme as a whole and to balance qualitative and quantitative provisions of the SRPS. The SRPS places considerable importance upon the preservation of the productivity of agricultural land and the existing character of the area. It was not in dispute that the agricultural productivity is not materially impacted by the proposal. The proposal formalises the existing physical boundaries of the Land and the proposed lot sizes are consistent with the lot sizes in the area. Given the importance which the SRPS places upon agricultural productivity and character, they are factors to which I give significant weight in the exercise of my discretion.
  6. [75]
    I accept that the underlying planning rationale is not offended by the proposed rural development because:
    1. (a)
      there is no dispute that the proposed development will preserve the productivity of good quality agricultural land; and
    2. (b)
      save for their minimum lot size (which the existing Land is already well below), the lots to be created are otherwise compliant with the Strategic Framework, Rural Zone Code and RAL Code as they will:
      1. be consistent with the existing character of the Rural Zone in this part of the Scenic Rim; and
      2. facilitate the establishment of uses that are specifically identified as being consistent with the Rural Zone. 
  7. [76]
    For these reasons, on balance, I am satisfied that the exercise of discretion favours approval of the development application.

Conclusion

  1. [77]
    I am satisfied that the Appellant has discharged the onus and the Respondent’s decision to refuse the Development Application should be set aside. In due course, the Respondent’s decision will be replaced with an approval subject to conditions. The appeal is listed for review on a date to be fixed to enable the parties to agree appropriate conditions.

Footnotes

[1]Ex. 13, Town Planning JER, 5-6 [14]-[15].

[2]Ex. 13, Town Planning JER, 6 [17].

[3]T2-15,  [8]–[11].

[4]Ex. 13, Town Planning JER, 6 [18].

[5]Ex. 13, Town Planning JER, 6 [20].

[6]Ex. 13, Town Planning JER, 6 [16].

[7]Ex. 13, Town Planning JER, 7 [23].

[8]Ex. 6, Development Application Documents, Confirmation Notice, 102-107.

[9]Ex. 6, Development Application Documents, SARA Response, 124.

[10]Ex. 6, Development Application Documents, Decision Notice, 182.

[11]Ex. 6, Development Application Documents, Decision Notice, 180.

[12]Ex. 2, Court Document, Notice of Appeal, 1-6.

[13]Planning and Environment Court Act 2016 (Qld) ss 43, 46(2).

[14]Ibid, s 47(1).

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

[16]Planning Act 2016 (Qld), s 45(5).

[17][2019] QPELR 793 [35]-[83].

[18][2020] QPELR 328 [469], [508].

[19][2020] QCA 253.

[20](2020) QCA 257.

[21][2020] QCA 257 [42], [43].

[22]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793, [53].

[23]Abeleda & Anor v Brisbane City Council & Anor [2020] 6 Qd R 441 [53].

[24][2020] QPELR 328, [22].

[25][2020] QCA 273.

[26][2014] QPELR 686.

[27](2009) 239 CLR 27 [47].

[28]Ex. 5, CEO Certificate, Hierarch of Assessment Benchmarks, 11, s 1.5(1)(b).

[29]Ex. 5, CEO Certificate, Preliminary, 19, s 3.1(4).

[30]Ex. 5, CEO Certificate, Categories of Development and Assessment, 94, s 5.3.3.

[31]Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPELR 835, [201], citing United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPELR 510 [118].

[32]Ex. 5, CEO Certificate, 2(2)(iv).

[33]Ex. 13, Town Planning JER, 7 [22].

[34]Order made 15 February 2023.

[35]Ex. 21.

[36]Ex. 22.

[37]Ex. 7, GQALJER, 3, [12]-[14].

[38]Ex. 9, Traffic JER, 6 [19].

[39]Ex. 9, Traffic JER, 6 [20].

[40]T1-6, [35].

[41]T1-7, [5].

[42]Ex. 5, CEO’s Certificate, Strategic Intent, 24, s 3.4.1.

[43]Ibid.

[44]Ex. 5, CEO’s Certificate, Strategic Outcomes, 29, 3.4.2

[45]Ex. 5, CEO’s Certificate, Rural Zone Code, 346, s 6.2.17.2.

[46]Ex. 5, CEO’s Certificate, Strategic Framework, 29, s 3.4.2.

[47]Ex. 5, CEO’s Certificate, Rural Zone Code, 347, s 6.2.17.2.

[48]Ex. 5, CEO’s Certificate, Rural Zone Code, 355, s 6.2.17.3.1.

[49]Ex. 5, CEO’s Certificate, Reconfiguring a Lot Code, 576, s 9.4.6.3.1.

[50]Engwirda v Mackay City Council [2008] QPEC 78 [14] [15] and Jackson v Brisbane City Council [2018] QPELR 264 [45].

[51]Ex. 13, Town Planning JER, p 16 [60], and T2-18, [16]-[19], [43]-[44].

[52]Ex. 14, Mr Ovenden’s Individual Statement, 3 s 2.4.

[53]Ex. 14, Mr Ovenden’s Individual Statement, 4 s 2.8.

[54]Ex. 13, Town Planning JER, 16 – 17 [61].

[55]Ex 9. Traffic JER, 4 [16]

[56]Ex. 13, Town Planning JER, 15 [57].

[57]Ex. 13, Town Planning JER, 29 [120].

[58]T2-49, [1]-[3].

[59]T2-54, [1]-[6]; T2-61, [18]-[19].

[60]Ex. 5, CEO Certificate, Strategic Outcome 29, s 3.4.2.

[61]Ex. 8, Separate Report of Mr Sutherland,  4 [2.3]-[2.4]; Ex. 10 Separate Report of Ms Rayment, 4 [21].

[62]T2-57, [31]-[33].

[63]Ex. 5, CEO Certificate, 29, s 3.4.2 (5).

[64]Ex. 5, CEO Certificate, 24, s 3.4.1.

[65]Ex. 5, CEO’s Certificate, Categories of Development and Assessment, 94, s 5.3.3.

[66]I have found at [52] that the RAL Code is satisfied but it is also addressed in this section.

[67]T3-15 [30]-[39].

[68]T3-8 [18]-[19].

[69]T3-12 [37]-[39].

[70]Ex. 5, CEO Certificate, Strategic Framework, 24, s 3.4.1.

[71]Ex.5 , CEO Certificate, Rural Zone Code, 346, s 6.2.17.2.

[72]Ex. 13, Town Planning JER, 23 [94].

[73]T2-53, [41]-[43].

[74]T2-55, [26]-[29].

[75]T2-61, [42]-[43]; Ex. 14, Mr Ovenden’s Individual Statement, p 5 [4.1].

[76]T2-55, [17]-[20], [38]-[39].

[77]T2-63, [14]; Mr Ovenden used the phrase “rural lifestyle” interchangeably with “rural residential”; T2-49 [27]-[28].

[78]T2-59, [26]-[28].

[79]Ex. 13, Town Planning JER, 25 [102].

[80]T2-59, [27].

[81]Ex. 5, CEO’s Certificate, Strategic Framework, 24, s 3.4.1.

[82]T2-56 [6]-[7].

[83]Ex. 13, Town Planning JER, 24 [95].

[84]Ex. 14, Town Planning JER, 16-17, [61].

[85]Ex. 7, GQAL JER, 3 [14].

[86]Ex. 5, CEO Certificate, Rural Zone Code, 346, s 6.2.17.2(2)(a)(i)(B).

[87]Ex. 5, CEO Certificate, Rural Zone Code, 346, s 6.2.17.2(2)(a)(i)(B).

[88]Ex. 1.

[89]Ex. 9, Traffic JER, 4 [16].

Close

Editorial Notes

  • Published Case Name:

    Torcross Investments Pty Ltd v Scenic Rim Regional Council

  • Shortened Case Name:

    Torcross Investments Pty Ltd v Scenic Rim Regional Council

  • MNC:

    [2023] QPEC 6

  • Court:

    QPEC

  • Judge(s):

    McDonnell DCJ

  • Date:

    23 Mar 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
Abeleda & Anor v Brisbane City Council & Anor [2020] 6 Qd R 441
2 citations
Jump To
Cite 1 - [2020] 6 Qd R 441
Cite 2 - [2020] 6 Qd R 441
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
3 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Cite 3 - [2019] QPELR 793
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78
2 citations
Jump To
Cite 1 - [2008] QPEC 78
Cite 2 - [2008] QPEC 78
Jackson v Brisbane City Council [2018] QPELR 264
2 citations
Jump To
Cite 1 - [2018] QPELR 264
Cite 2 - [2018] QPELR 264
Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPELR 835
2 citations
Jump To
Cite 1 - [2019] QPELR 835
Cite 2 - [2019] QPELR 835
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
3 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Cite 3 - [2020] QPELR 328
United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPELR 510
2 citations
Jump To
Cite 1 - [2018] QPELR 510
Cite 2 - [2018] QPELR 510
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
2 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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