427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2)
[2024] QPEC 24
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- 427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2)[2024] QPEC 24
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427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2)[2024] QPEC 24
427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2)[2024] QPEC 24
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | 427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2) [2024] QPEC 24 |
PARTIES: | 427 BECKETT RD PTY LTD (Appellant) v BRISBANE CITY COUNCIL (Respondent) |
FILE NO: | 1760 of 2020 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 17 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 April – 3 May 2024 |
JUDGE: | Kent KC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – Where the appellant appeals against Council’s refusal of a development application for material change of use and to reconfigure a lot – Where land was in the emerging community zone – Where the development application concerned the addition of a service station, food and drink outlets, a childcare centre, and residential dwellings – Where the primary reasons of refusal are ecological impacts, alignment with planning intent, traffic and visual amenity – Where the court had permitted two minor changes during the currency of the appeal, to ameliorative effect – Where a further application for minor change was refused – Whether the changes in the present application represent a minor change or a part approval – What, if any, weight should be given to subsequent amendments to the planning scheme – Whether the development should be approved in the exercise of the court’s discretion |
CASES: | 427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4 Abeleda & Anor v Brisbane City Council [2020] 246 LGERA 90 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793 Barakat Properties Pty Ltd v Pine Rivers Shore Council & Anor (1994) 85 LGERA 99 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 Grosser v Council of the City of Gold Coast [2001] 117 LGERA 153 Hielbronn v Gold Coast City Council [2005] QPELR 386 Hollingsworth v Brisbane City Council [1975] Planner LGC 99 Intrafield Pty Ltd v Redland SC [2001] 116 LGERA 350 Iverach v Cardwell Shire Council [2007] QPELR 196 Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Palmer v Gold Coast City Council [2023] QPEC 47 Roseingrave v Brisbane City Council (No. 2) [2022] QPEC 43 Sheezel & Anor v Noosa Shire Council [1980] QPLR 130 SLS Property Group P/L v Townsville City Council & Anor; Catchlove & Ors v Townsville City Council & Ors [2009] QCA 380 Tricare (Bayview) Pty Ltd v Gold City Council [2023] QPELR 1073 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 |
LEGISLATION: | Planning Act 2016 ss 45, 60, sch 2 Planning and Environment Court Act 2016 ss 43, 45, 46 |
COUNSEL: | E Morzone KC with N Batty for the Appellant B Job KC with K Buckley for the Respondent |
SOLICITORS: | Mills Oakley for the Appellant City Legal for the Respondent |
Introduction
- [1]This is an appeal against the respondent’s refusal of a development application for a development permit for a material change of use and reconfiguring a lot in respect of land located at 415 and 427 Beckett Road, Bridgeman Downs (a northern suburb of Brisbane) and described as Lot 1 on SP227437 and Lot 2 on SP227438.
- [2]The combined area of the Site is 2.8 hectares with a substantial frontage to Beckett Road. It was (at the time of lodgement) within the Emerging Community Zone of City Plan 2014 and the McDowall-Bridgeman Downs Neighbourhood Plan of City Plan 2014.
- [3]The appellant lodged a development application on 25 June 2019 for a material change of use for:-
- –Stage 1 – Service station and Food and drink outlet;
- –Stage 2 – Food and drink outlet and Childcare centre;
- –Stage 3 – Multiple-dwelling (10 townhouses); and
- –Stage 4 – Multiple-dwelling (29 townhouses).
- [4]The application also included reconfiguration of a lot including provision for new roads internal to the development.
- [5]The development application was refused on 22 May 2020, prompting this appeal which was filed on 19 June 2020. Thereafter there have been a number of proceedings in this Court. Previous applications for a minor change to the development application were allowed in September 2021 and December 2022. Another such application was made but withdrawn in June 2023. In February 2024 a further application for a minor change was refused (427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4).
- [6]The above narrative indicates that the application has evolved over time. It has contracted (substantially) in intensity in response to the Council’s initial refusal of the application and the reasons therefor and in response to the growing body of evidence from experts on both sides grappling with the relevant issues, of which ecology is central. An example is that, as I understand the original application (which both sides agreed was ecologically unacceptable), there was no provision for maintenance of an environmental corridor at the northern part of the site. Now this is a significant feature of the proposal, and in that context a major theme of the appeal is the ecological evidence from both sides.
- [7]The proposal now includes the service station; two food and drink outlets; a child care centre; 10 multiple occupancy dwellings; and a conservation zone with a proposed fauna overpass to allow fauna (including koalas) to cross Beckett Road to an area of remnant vegetation on the western side of the road. This tends to facilitate the connectivity of the habitats in the areas of Albany Creek and Cabbage Tree creek.
- [8]The planning scheme in effect at the time when the application was properly made was City Plan V.15 (‘the Planning Scheme’). This has been significantly amended since that time and one of the issues is whether and to what effect the new amended scheme has relevance in the present appeal. The present version is City Plan V.29 (‘the Amended Planning Scheme’). Importantly, it rezones the site from the Emerging Communities zone to the Environmental Management zone and introduces a new Bridgeman Downs Neighbourhood Plan which includes the site in the Beckett Road precinct and Environmental Living sub-precinct.
- [9]The appeal is resisted by the respondent. It argues that in the context of the evidence, touching on the issues outlined above, the planning discretion ought not be exercised in the appellant’s favour, particularly if the amendments to the planning scheme are given weight.
- [10]Broadly, the issues include: whether the proposal as now advanced represents a change other than a minor change and should be refused on that basis; whether it results in unacceptable ecological impacts, including to significant vegetation as well as fauna; whether the proposed uses are consistent with the planning intent and what is expected for the land and locality; traffic; visual amenity; and whether the subsequent amendments to the planning scheme ought to be afforded weight in the proceeding and, if so, to what degree and with what result.
The Site and the Surrounding Area
- [11]The site is briefly described above. It is a relatively heavily treed, largely intact patch of bushland as shown in various photographs and other exhibits. As described in the final (fourth) joint experts’ report (‘JER’) on ecology it supports an endangered vegetation community and is an essential habitat for threatened species (including koalas). The trees are particularly concentrated on the eastern part of 427 Beckett Road, the northern lot. Broadly, the land with its remnant vegetation represents a habitat for fauna and is part of a corridor within the broader landscape. It is also a site where development is permitted and the context is other surrounding residential development.
- [12]The site is on the eastern side of Beckett Road, which is a busy dual carriage road with a median strip. Immediately to the north, south and east are dwellings on large lots. To the north, along Albany Creek Road, there has been more intensive development in the form of townhouses and small lot subdivisions on land in the Emerging Community zone and/or the Rural zone. To the south west, across Beckett Road, there is a complex of over one hundred townhouses. Directly to the west there are dwellings on large lots. To the west and opposite the site at 432 Beckett Road there is an approval for 15 low density lots with no provision for an ecological corridor to the west. To the north of that lot there is an application for subdivision for low density residential purposes at 440 Beckett Road, which does include an ecological corridor; this is presently on hold.
- [13]There is a convenience store 100 metres to the south, a neighbourhood centre 2.5 km south and the Aspley Hypermarket Shopping Centre 3km to the east. It is not in issue that a degree of need for this type of development exists in the area.
Relevant Principles
- [14]The development application is to be decided under the Planning Act 2016 (‘PA’) and the Planning and Environment Court Act 2016 (‘PECA’). Section 43 of PECA provides that the appeal is a hearing anew and the appellant bears the onus of establishing that the appeal should be allowed (s 45(1)). The Court is effectively in the place of the assessment manager (s 46(2)(a)).
- [15]The proposed development was impact assessable, thus, under sections 45(5) and 60 of the PA, assessment is to be carried out against the assessment benchmarks in the Planning Scheme in effect at the time of making the application (City Plan V.15); any matters prescribed by regulation; and regard may be had to other “relevant matters” other than a person’s personal circumstances, financial or otherwise (s 45(5)(b) PA). Amendments to the Planning Scheme may also have weight (s 45(8)).
- [16]The nature of the jurisdiction of this Court on appeal may be described as a broad and flexible discretion where any non-compliance with the Planning Scheme has to be balanced against factors in favour of approval of the development; Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793 at [51]; Abeleda & Anor v Brisbane City Council [2020] 246 LGERA 90 at [53]; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309.
- [17]The appellant also refers to other principles including as outlined by Mullins JA in Abeleda at [40]:
“The absolute terms in which McMurdo JA expressed in [67] and [70] of Bell that it is in the public interest that the planning scheme is applied, unless the contrary is demonstrated, are no longer applicable to the exercise of the discretion by the decision-maker under s 60(3) of the Act, as the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is permitted to have regard to other relevant matters, in addition to the mandatory assessments against the assessment benchmarks in the planning scheme.”
- [18]Reference is also made to the statement of Brown J (as her Honour then was) in Trinity Park at [180]:
“The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision-maker.”
- [19]Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 said at [18]:
“…Blind adherence to that part of the planning scheme that is rigid is apt to obscure the fact that the need and well-being of the community, or a significant part of it, may sometimes be better served by permitting an outcome that does not strictly comply with those controls. That flexibility may, in some circumstances, better serve the interests of the public is apparent when one considers the complexity of the task confronting a local government in preparing a planning scheme.”
Is there a change?
- [20]As outlined above, the respondent argues that there is a significant change in the present proposal from the original; it is not minor, thus not permitted, and the appeal is therefore stillborn (s 46(3) PECA). This issue should be resolved first. The appellant’s response is that in truth what is sought is part approval, in the sense that the presently advanced proposal is really no more than a sub-set of the original proposal and is not qualitatively different. Moreover, such changes as are proposed are simply refinements of the proposal as it presently stands after the permitted minor change in December 2022 and are permissibly achieved by appropriate conditions, as proposed.
- [21]As the respondent submits, the required comparison is as between the form of the application before the Council at the time of refusal, and the proposal with the suggested change (Hielbronn v Gold Coast City Council [2005] QPELR 386; 427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4 at [6], [15] and [21]). I do not understand that proposition to be contested.
- [22]The term “minor change” is defined by reference to Schedule 2 of the PA and, relevantly, the appellant would need to demonstrate that its development application in the current form will not result in “substantially different development”, this being a test that turns on matters of impression, fact and degree. It is to be considered broadly and fairly; and qualitative and quantitative considerations are relevant (427 Beckett Road Pty Ltd v Brisbane City Council at [36]).
- [23]Changes to the original proposal which were similar, but with some marked differences, were refused in 427 Beckett Rd (supra) in the context of the evidence adduced in that earlier consideration of this case. Although the comparison is to be conducted with the proposal as originally advanced, it is also relevant that a number of changes to the proposal were ordered to be minor changes in a consent order of the Court in December 2022; indeed, as the appellant argues, to attempt to ignore that reality would be to flirt with problems of issue estoppel. The present proposal is argued by the appellant to be not greatly different from that which was the result of the accepted minor changes previously. Nevertheless, the issue remains, in essence, as to whether the further changes which are now proposed cumulatively amount to changes of such a degree that they are no longer minor.
- [24]The original proposal was significantly different. It included three food and drink outlets rather than the present proposal of two; 39 multiple dwellings rather than the present proposal of 10; three accesses to Beckett Road as opposed to two; other connections to adjoining land to the north, east and south; and no significant conservation zone.
- [25]However, the accepted minor changes pursuant to the orders of December 2022 do introduce the conservation zone; remove the accesses to the east and north; reduce the access to Beckett Road; and reduce the food and drink outlets to two. It is the proposal as changed by those orders which is the subject of this appeal.
- [26]The proposal before the Court in 427 Beckett Rd Pty Ltd was significantly different from the current one. It maintained access to the east. The building pads in what is now proposed to be Lot 5 were different. The service station in Lot 1 extended considerably further to the east and had a different number of fuel bowsers. Importantly, the staging process was apparently removed. The deletion of the staging (which has now been re-instated) was considered by the Court to be important when taken in combination with all of the changes proposed; see para [53]. There was concern about the impact of the change in traffic engineering terms, which was not apparently dealt with by the evidence. The Court also considered that there was force in the respondent’s argument that discretionary reasons were against the appellant’s application, including unreasonable delay by the appellant in making the application; failure to properly identify the true scope of changes when previous minor change orders were obtained; and the refused plans were publicly notified in April 2020 and there was considerable interest in, and opposition to, the proposed development. Four years have now passed since the public notification process.
- [27]The appellant’s position is that it largely need not engage with the arguments about minor change because what is really being sought is part approval of Stages 1 to 3 in the proposal, as described in the proposed conditions. Thus, it is argued that neither the minor change tests nor concepts of “material” or “substantial” difference apply where the application is for approval in part of the development applied for; SLS Property Group P/L v Townsville City Council & Anor; Catchlove & Ors v Townsville City Council & Ors [2009] QCA 380. Keane JA said at [21]:
“Where the only material difference between the application and the approval is that the development approved is part of the development for which application was made, the case falls, prima facie, within the terms of s 3.5.11(1) of the IPA. For a viable argument to arise that the case is outside s 3.5.11(1), there must be features of the development which is approved which justify characterising that development as something materially different from that which was applied for, other than the mere fact that it is part of what was applied for.”
- [28]The above discussion indicates (sadly) that the parties are not contesting this aspect of the case on the same ground.
- [29]The appellant argues that, in distinction from the proposal rejected as a minor change in 427 Beckett Rd, the present proposal retains rather than changes features from the proposal resulting from the December 2022 orders, including the width of the ecological corridor to the north of the site, the access to the service station, the number of fuel bowsers, the building pads north of the internal access road and the staging (compare 427 Beckett Rd at [52]). It is said that it achieves a more attractive outcome by the proposal of conditions of the approval, which do not effect changes resulting in a substantially different development such as to be more than a minor change. Thus the conditions do not modify the application to an unacceptable degree as discussed in Barakat Properties Pty Ltd v Pine Rivers Shire Council & Anor (1994) 85 LGERA 99 at 102; they are not beyond what the local authority could approve if an application for minor change had been made. The boundaries are unchanged; alterations to acoustic fences and retaining walls are minor. The swale drain along the southern boundary widens from 3 to 5 metres, with stormwater to be conveyed by a piped solution rather than a combined pipe and channel solution. There is to be a two and a half metre shared path on the northern side of the new road and a fauna overpass. Some of the other acoustic fencing is to be lowered and a minimum of two access points are to be provided. Landscaping details including plant species are refined.
- [30]It is said these changes are plainly minor and intended to be ameliorative. Further, an important aspect of 427 Beckett Rd was the paucity of evidence rather than the quality of the changes, at [52]-[53]. Thus, 427 Beckett Rd is confined to its facts and is not determinative of this appeal.
- [31]I accept the appellant’s arguments on this issue. The change, when one looks at the proposal as modified by the orders of December 2022 (which the Council consented to), can be seen as largely a part approval of that proposal, together with some conditions which permissibly do not modify the proposal to an unacceptable degree. It is relevant that, in the context of the contested issues in the appeal, the changes are ameliorative. Thus the further substantive issues must be considered.
Ecology
- [32]The site has significant ecological value. It is, for example, an endangered regional ecosystem and essential habitat for the koala, tusked frog and powerful owl. It is situated between Cabbage Tree Creek and Albany Creek and functions as a linkage between those areas. These matters are largely agreed between the respective experts for the parties, although Mr Moffitt, for the appellant, does not agree that the tusked frog is present on the site (it contains no waterways).
- [33]Since the development application was properly made, a large part of the site has been mapped as a Core Koala Habitat area under the State koala protection framework (the South East Queensland Koala Conservation Strategy 2020-2025), from 7 February 2020. This designation, although not applicable to the present proposal, does not prohibit development on the site. It does, however, for example, contemplate habitat restoration for koalas beyond environmental offset outcomes, which is vital for a net gain in core koala habitat areas. Conservation on private land is crucial (p 12 of the Strategy).
- [34]The current proposal clearly entails environmental impacts. For example it would remove more than 30% of the remnant endangered vegetation. Further, 94% of the balance, which is mapped as general ecological significance strategic (‘GESS’), is also removed. There are, of course, plans for replanting. It is common ground that ecological concerns are central to the appeal.
Connectivity
- [35]If the development were permitted with the proposed conditions, the experts agree that the proposal maintains a reasonable degree of connectivity. Although there was argument about the adequacy of the 21-metre fauna corridor at the north-western corner of the site (which connects with the proposed fauna overpass, which in turn enhances connectivity to the area to the west including Albany Creek), Dr Watson, for the respondent, conceded that it was sufficient for koalas (T3-29, l 33). This is not surprising. He had previously conceded that a 25-metre corridor was sufficient and was not able to explain why a four-metre difference would be crucial. This is in the context, of course, that the corridor in a de facto sense is presently much wider, given the remnant vegetation on the lot immediately north of 427, which will be under the control of the Council in the context of future development applications for that land. Also, the frontage of 48 metres at 440 Beckett Rd (across Beckett Road to the west) would be retained (Exhibit 8, JER 4 Ecology, p 25 para 61).
Conservation zone and other conditions
- [36]The present proposal, including the plans as generally indicated in, for example, Exhibit 16 together with the proposed conditions, include a large proportion of the northern part of 427 Beckett Road for a conservation zone representing the fauna corridor connecting with the proposed fauna overpass and preservation of existing vegetation. Conditions also propose requirements of complete rehabilitation of the corridor with species representative of the pre-clear regional ecosystem; fauna friendly fencing between the reconfigured lot boundaries; long-term protection of the corridor; the construction of the fauna overpass with offset funds generated by development impacts; and provision of access to the overpass structure and establishment of a 2.4-metre fauna exclusion fence on the southern boundary of the corridor to exclude terrestrial fauna from entering the commercial precinct and to mitigate light spill.
- [37]As outlined above, the present proposal represents significant changes – i.e. improvements – from the original application in the context of the arguments which have developed between the experts. It is hardly surprising that the present proposal is more acceptable from an ecological basis than that previously advanced. It seems to be broadly acceptable to Dr Watson, with the qualification that if the amendments to the City Plan assume importance then the situation would be different.
- [38]In these circumstances, it seems that the ecology issues, if not resolved, are at least less contested than previously. However, two issues remain:
- –Firstly, the provision of the koala overpass on the basis of a suggested environmental offset is permissible only where all reasonable onsite mitigations for the development have been, or will be, undertaken; see Exhibit 1, CEO’s Certificate Vol. 15 of the City Plan, p 274, s 8.2.4.1, Performance Outcome 9, p 278. Dr Watson says that this is not the case here, where GES, GESS, endangered vegetation, koala habitat and significant landscape trees are to be lost; in the circumstances not all reasonable onsite mitigations have been taken. This means that offsets are premature in terms of the relevant Performance Outcome.
- –Secondly, the situation according to Dr Watson is different if the present version of the Neighbourhood Plan is given weight. My conclusions as to these issues are set out below.
Town Planning
- [39]The town planning considerations include whether the combination of uses planned for the site would have a scale not consistent with the expected land use within the locality and what weight, if any, should be given to any inconsistency with the Amended Planning Scheme.
- [40]The town planning experts agree that ecology is the key threshold issue underpinning the town planning assessment of the proposal and the planning rationale for the changes to the planning scheme. It is said that storm water drainage and earthworks are no longer threshold issues warranting refusal. In land use terms, the service station, convenience retail and one food and drink outlet would be appropriate uses at the western end of the site, and the residential component, other than the three dwellings on the proposed Lots 5 to 7, would be an appropriate use in the south-eastern part of the site. That is broadly in line with what is presently proposed, bearing in mind that the proposed conditions include the amalgamation of Lots 6 and 7 into Lot 5 and the building pads on Lots 5, 6 and 7 to be deleted – i.e. there are to be no residences in the new lot 5. This leaves the fauna corridor and existing vegetation described above intact, in terms of the land north of the proposed internal roadway.
- [41]However, Mr Perkins, the town planner for the Council, expresses reservations in terms of the weight to be given to the new planning scheme and the need for resolution of ecology and traffic issues.
- [42]There is agreement that the removal of proposed Lots 6 and 7 (as envisaged by Condition 1) is positive and should be supported. Lot 5 could also be removed if necessary, however this is not the present proposal.
- [43]The planning experts acknowledge that the weight to be afforded to the current version of the City Plan is important, and a matter to be resolved by this Court. The changed proposal is agreed to be not consistent with the outcomes intended for the site under the current version of City Plan 2014.
- [44]There is agreement that the amended conditions of approval are acceptable if the proposal is otherwise successful.
- [45]The planning experts disagree on a number of other issues, particularly with respect to the extent to which the changed proposal protects environmental values, and the acceptability of the land use as proposed in the context of established and planned centres.
Amended scheme - new rezoning of land and new neighbourhood plan
- [46]As outlined above, the proposal is, on much of the evidence, much less compatible with the Amended Planning Scheme. This arises from it having been placed into the Environmental Management zone code, the purpose of which is to “provide for the protection of environmentally sensitive areas from urban and industrial activities…other than dwelling house and other low impact activities” (Exhibit 1, Planning Scheme Version 29, p 601). Under the new Neighbourhood Plan, the site has also been placed into the Environmental living sub-precinct, the overall outcome of which is to “maintain dwelling houses of large acreage lots at a very low density to minimise impacts on and disturbance of ecological features…and preserve landscape values”. This is not an outcome achieved by the proposal.
Weight of amended planning scheme
- [47]In Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266, the Court of Appeal indicated that where a development might be said to cut across a planning strategy by effecting its implementation in a way which squarely affronts a strategy, or contradicts important specific decisions about a land use, authority indicated that such circumstances should be understood to require that to be treated as a conflict of a serious nature with the planning strategy. Unless some recognition was given to the Coty principle (the principle that it is permissible, in appropriate cases, to take account of any provisions affecting a site which are included in a draft planning scheme or planning scheme amendment), it would be possible to sabotage any planning scheme by a single development which was inconsistent with it (at p 271, ll 45 – 50). The Court also referred to Hollingsworth v Brisbane City Council [1975] Planner LGC 99 per Hoare J at p 105;
“While some more precise principles relating to town planning may be deduced from the Coty case, it seems to me that that case was broadly illustrative of a principle of commonsense namely, that in considering an application for a particular use or for rezoning of an area of land forming part of a larger area, care must be taken to ensure that any determination as to the part, will not adversely affect any wider planning scheme affecting the larger area.”
- [48]The underlying policy that ignoring a draft planning scheme would tend to frustrate and tend to diminish public confidence in the planning process underpins the principle that the Court’s judgment should be arrived at, as far as possible, in consonance with town planning decisions embodied in the new instrument; Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 at [21].
- [49]Sometimes, in consideration of this principle, a court may be slow to give weight to a draft amendment where it applies across the whole of the local government area, rather than being directed towards a particular locality. Thus, weight is more likely to be given where the amendment is locally focussed; Tricare (Bayview) Pty Ltd v Gold City Council [2023] QPELR 1073. In this case, the amendment, which is not a draft amendment but has, in contrast to the Coty principle, come into effect – and is therefore, prima facie, of greater weight – is locally focussed. Thus, on the Tricare approach, it is more likely to be given weight.
- [50]Roseingrave v Brisbane City Council (No. 2) [2022] QPEC 43 is in my view helpful. It concerned an appeal against refusal of a development application at Everton Park, within the same McDowall-Bridgeman Downs neighbourhood plan under discussion in the present case. New planning scheme mapping had been adopted since the development application, which was adverse to the proposal. It was held that to permit significant undue adverse impact on the ecology without giving appropriate weight to the updated mapping would produce a poor and indeed unacceptable planning and ecological outcome. Thus, the amendments were given decisive weight which rendered the proposal unacceptable in that case.
- [51]There are some distinctions with the present case. In Roseingrave, the relevant amendments came into effect 18 months after the development application was made, but prior to the respondent’s decision, unlike here. This was a prolonged decision-making period, however this aspect was not in the end decisive. Rackemann DCJ pointed out that the amendments were not a late intrusion into the matter but were in force prior to the respondent’s decision and thus prior to the appeal being instituted. At the time of the appeal, they had been in effect for almost 3 years. The Court found that the amendments better reflected the actual ecological value of the relevant parts of the site in a way the mapping current at the time of the application did not. Therefore his Honour’s crucial finding was:
“It is difficult to see why one would not give substantial, even decisive, weight to corrected versions of mapping which have now been in force for almost three years.”
- [52]In the circumstances, although the amendments in this case were somewhat later and were not in place at the time of the Council’s decision, nevertheless they are in force now and have been for more than eight months. There is no reason not to conclude that they better reflect the actual ecological value of the site in a way that the previous mapping did not. Thus, it is logical that the amendments should be taken into account, subject to considerations of fairness, referred to below.
Wider question/need for restraint
- [53]Also relevant is the proposition from Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at [211], to the effect that it is not the Court’s function to substitute planning strategies for those which a planning authority has adopted. Thus, it would be inappropriate for the Court to deal with an application “in a way which might be construed as determinative of some wider question”; see Sheezel & Anor v Noosa Shire Council [1980] QPLR 130. This proposition was adopted in Grosser v Council of the City of Gold Coast [2001] 117 LGERA 153 at [38]. The approach of this Court to matters of planning policy has long been recognised as one of restraint. In this case approval may well tend to be determinative of a wider question, including, for example, the application over 440 Beckett Road which is presently on hold, as well as other potential future applications in the immediate area. Thus, the approach of restraint must be borne in mind.
Fairness
- [54]It is important to consider the fairness of taking the amendments into account in circumstances where they were not in force at the time of the application. Delay is obviously a relevant feature. The appellant says that whilst the progress of the appeal has been delayed, there are a number of explanations for the delays. Conversely, the respondent argues that when the chronology (Exhibit 31) is taken into account, the delays are more difficult to understand; that is, it does appear that the appellant has been less than vigorous in advancing the matter.
- [55]Importantly, the original proposal was quite unacceptable under the scheme as it then was (as the ecology experts agreed). There have been a number of actions taken over the ensuing four years to make it more acceptable, with varying degrees of success. There have been a number of further reports from experts and a number of court appearances, including the extension of dates for compliance with directions. Since the successful application for a minor change in December of 2022, there was a further minor change application which was pursued but then withdrawn in court in June 2023, as well as the unsuccessful application which was dismissed in February 2024.
- [56]The respondent also points to the concept of fairness “between the parties” (Iverach v Cardwell Shire Council [2007] QPELR 196 at [49]). That is, the fairness includes fairness to the Council; thus, it is relevant that the Amended Planning Scheme represents an embodiment of the public interest touching on the important matter of ecology and protection of significant biodiversity values. Also relevant to the synthesis is the high level of community interest in the proposal, all of it opposed to the original form of the application.
- [57]It is true that relevant parts of the old planning scheme persisted in effect for a long time after the commencement of the appeal. As outlined above, during this time efforts were made – with mixed success and interspersed with some delays – to make numerous incremental changes to make the proposal, which was initially quite unacceptable, more palatable. The appellant is not free from blame in the delays. Further, it was aware during the progressing litigation of the coming amendments to the scheme apparently from the time of public consultation in February to March 2022 (more than two years ago), and its director lodged a submission about the topic in August 2022.
- [58]In the end, as in Roseingrave, whilst the time which has elapsed from the time of making the application to the commencement of the amended scheme is a consideration – and there are no doubt explanations for some of the delays – there are not such relevant circumstances in the progress of the application and the litigation giving rise to fairness concerns as to deny the taking into account of the amendments or detracting from their weight. In my conclusion I must take the new scheme into account and accord it significant weight. This is ultimately – as explained below – the rock upon which the appeal founders.
- [59]The appellant’s position is much more difficult in the context of the Amended Planning Scheme. The land which was previously included in the Emerging Community zone was in a potential development area, including, for example, a mix of larger lot sizes, retaining existing vegetation and minimising development in vegetated or other scenically important areas, and locating higher density development in cleared parts of the area (McDowall-Bridgeman Downs Neighbourhood Plan Code – Overall Outcomes 3(e)(i) and (iii)).
- [60]However, under V.29, which came into effect in August 2023, the land is mapped as GES Strategic. The Strategic Framework emphasises the importance of the Greenspace System, including ecological functions and ecosystem services and linking waterways, biodiversity areas and ecological corridors. These aspects are compromised by the proposal (Exhibit 8, JER 4 Ecology, p 108). It is within the Environmental Zone, the purpose of which is to identify environmentally sensitive areas and protect them from urban activities other than dwellings. The service station proposal appears non-compliant.
- [61]The proposal does not protect or enhance the environmental values as required by the Biodiversity areas overlay code, Purpose (1)(a)(ii).
- [62]As to the Neighbourhood Plan, the Overall Outcomes 3(g); 3(h); 6(a) and 6(c) provide, in essence, that such land is protected from inappropriate development in order to maintain its natural and ecological significance; ecological features and corridors are to be protected and enhanced as set out in Fig.(a); development provides for the continued function of the east-west ecological corridor between Cabbage Tree Creek and Albany Creek; and development is to maintain dwelling houses on large acreage lots at a very low density to minimise impacts (emphasis added) which this proposal does not achieve; see Exhibit 8, JER 4, p 109 paragraph 48 per Dr Watson.
- [63]Mr Moffitt, the appellant’s ecology expert, concedes that the proposal, although it maintains ecological values, perhaps does not do so to the extent envisaged under V.29 of the Planning Scheme (Exhibit 8, JER 4 Ecology, p 119, para 72). This is also true of the present version of the Biodiversity Areas overlay code. In relation to the current Neighbourhood Plan, Mr Moffitt accepts that the proposal does not maintain the extent of habitat that would be maintained on large acreage lots.
- [64]The above discussion indicates the amendments to the City Plan do carry, as in Roseingrave, decisive weight. Thus, the appeal must be dismissed as the proposal does not comply with the ecological requirements of the planning scheme, including the amended V29. I will, however, deal briefly with some remaining issues.
Traffic
- [65]Although traffic is not a decisive issue, it does remain in contest between the parties. The main contest relates to the proposed left-in turn to the service station from Beckett Road. The problems with this include not respecting the road hierarchical system, in that Beckett Road, which is a higher order road, should not have its movement function impeded by such access (cars slowing to enter the service station), including with reference to the Austroads guidelines. Secondly, on the evidence of Mr Trevilyan, there was a potential problem with the required auxiliary turn lane, for the disputed access possibly giving rise to conflict with the driveway of the northern neighbour in the sense that traffic slowing for the driveway of the northern neighbour could be wrongly perceived by following vehicles to be merely slowing for the service station (which is much further away), giving rise to a risk of collision.
- [66]In my conclusion these problems are not major. The risk of rear end collision exists but is not large. The impedance to traffic on Beckett Road from the left turn is also not great.
- [67]Overall, the problems with traffic caused by the service station access, while they exist, would not be decisive in the appeal. The appellant points to many examples of similar service station access and that the benchmarks do not require no impact on traffic, rather that there be no significant impact or minimise the impacts on safety, efficiency, function and convenience of use or capacity of the road network.
Visual Amenity
- [68]The respondent accepts that visual amenity impacts are not sufficient to call for refusal in their own right. They relate to retaining walls and acoustic barriers along the southern boundary of Lot 2. The presently proposed arrangements, including as set out in Exhibit 16, seem to meet the concerns in this area. The retaining wall varies somewhat in height along the length of the alignment, and there is a 4-metre acoustic fence on top of the wall. This is able to be partially concealed by planting of appropriate species in the area.
- [69]As the appellant submits, the visual amenity experts agree that the conditions proposed will relieve any unacceptable visual amenity impacts (Exhibit 14, Consolidated Visual Amenity JER, para 173 – 174).
- [70]The appellant argues that any non-compliance with relevant benchmarks in respect of this issue is not so serious as to amount to a ground for refusal and rather is a matter for conditions. This is a conclusion not contested by the respondent, and in my view rightly so. Visual amenity does not represent a reason for refusal.
Other Relevant Matters – s 45(5)(b) PA
- [71]The appellant advances a number of relevant matters favouring approval even if there is a level of non-compliance with benchmarks. These include the ecological and other benefits of the proposal in its present form, including the proposed conditions. It is said that the proposed development is conveniently located and would provide increased convenience, choice, and competition, presumably in the commercial outlets included in the proposal. The co-location of food and drink outlets with the service station is an appropriate combination of uses, providing choice and serving the convenience and needs of local residents and passing motorists. The proposed development does not impair existing or intended adjacent uses and provides connectivity for further development sites to the west and south.
- [72]The Council accepts that there is a need as identified in the Need JER, Exhibit 7. This, however, is a relative concept, the weight of which is variable in particular circumstances and yields to amenity and other town planning considerations (Intrafield Pty Ltd v Redland SC [2001] 116 LGERA 350 at [20]). Need alone does not necessarily prevail over the competing considerations. It does not necessarily justify departure from the planning intent for the site; it is appropriate that the Council, as the relevant planning authority, identify the location where the relevant need should be met through the planning scheme; any relevant need may yield to considerations of character and amenity (Palmer v Gold Coast City Council [2023] QPEC 47 at [154]).
- [73]I have already mentioned the now relevant considerations arising from the South-East Queensland Koala Conservation Strategy. If the application were lodged now, it would require referral to the State as to these considerations. This is not presently directly relevant, but may become so if a new application is made.
- [74]The other relevant matters are relevant to the appeal in various ways, but are neither individually nor collectively decisive of the outcome, given the weight of the planning scheme amendments.
Conclusion
- [75]As outlined above, my conclusion is that the proposal as presently advanced is not precluded by representing a non-minor change. It can be seen largely as a part-approval rather than a change and in that sense is not liable to challenge as being a change other than minor. To the extent that there are changes effected by the proposed conditions, in my conclusion (although it is a somewhat marginal case) these do not impermissibly modify the proposal to an acceptable degree. Thus the proposal does not result in a non-minor change and does not fall at that hurdle.
- [76]It is also clear that, understandably and appropriately, the proposal has been modified during the currency of the appeal and the present proposal is more acceptable than the original.
- [77]As to the proposed provision of the offset to make allowance for the installation of the fauna overpass, and whether it is a permissible inclusion where not all reasonable onsite mitigations have been taken, in my conclusion the opinion of Dr Watson as to this aspect should be accepted; all reasonable onsite mitigations have not been taken, particularly in the context of the amended planning scheme. Thus, where the fauna overpass is not properly part of the proposal for that reason (despite its attraction as a piece of fauna-friendly infrastructure), the appellant’s position becomes more difficult.
- [78]However, where the appeal encounters the most difficulty, in my conclusion, is in the weight to be given to the amendments to the planning scheme since the application was properly made. As outlined above, although there are features of the case which do give rise to fairness considerations, these are not such as to produce the result that the amendments ought not to be taken into account, nor do they detract significantly from the weight of the amendments.
- [79]In the end, my conclusion, as in Roseingrave, is that the amendments to the planning scheme which bear directly on the issues, in particular the issue of ecology, are of decisive weight. Taking the present version of the Scheme, V.29, into account, the land is protected from inappropriate development in order to maintain its natural and ecological significance, and ecological features and corridors are to be protected and enhanced. Importantly, under the Neighbourhood Plan code, development is to maintain dwelling houses on large acreage lots at very low density to minimise impacts. The proposal is simply not that kind of development. Mr Moffit accepts that the proposal does not maintain the extent of habitat that would be maintained on large acreage lots as required by the present version of the Neighbourhood Plan and thus, in my conclusion, the present version of the planning scheme turns its face against a development of the nature of this proposal. The amendments to the City Plan do carry, as in Roseingrave, decisive weight and accordingly the conclusion is that the appeal should be dismissed.