Hunt v Douglas Shire Council[2025] QPEC 19

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

Summary

1. [1]
   The appellant developer appeals against the respondent Council’s decision to refuse his development application seeking a development permit for reconfiguring a lot (one lot into four lots) for Agricultural Land Class A land with an area of 53.53 hectares at 291 Mowbray River Road, Mowbray, in the State of Queensland, and described as Lot 34 on SP 331786.
2. [2]
   The appellant contends that the proposed development complies with the Rural Zone Code and Reconfiguration of a Lot Code, asserting that no mandatory minimum lot size exists, and the proposal will not impact the productive capacity of rural land for primary production or compromise its long-term rural use.  He argues that the proposal avoids impermissible fragmentation of rural or agricultural land because it is already naturally fragmented, and, if any, further fragmentation is minor and does not justify refusal; the proposal creates three additional rural lots, aligning with the existing rural residential pattern on the southern side, respects natural features like watercourses and vegetation, and accounts for constraints on certain rural uses; most of the land is preserved for broad-acre primary production in proposed lot 1, such as sugar cane cultivation, with infrastructure and two access points to Mowbray River Road; and it includes the existing dwelling, a large farm machinery shed, and areas suitable for broad-acre production and small-scale rural activities like horse keeping and horticulture.  It is asserted that proposed lots 2, 3, and 4 support smaller-scale rural uses and activities, that proposed lot 4 will have the second existing dwelling near existing residential development, and the lots are sized for their intended use without compromising existing activities.  The appellant argues that the proposal as a whole maintains the land’s capacity for all intended rural uses and may enhance opportunities for additional realistic rural uses.  Reverse amenity impacts can be addressed through conditions like building envelopes and boundary buffers for proposed lots 2, 3, and 4.
3. [3]
   The Council defends its refusal, maintaining that the proposal does not comply with the Rural Zone Code or Reconfiguration of a Lot Code as it impermissibly fragments good quality agricultural land, is inconsistent with the forward planning strategy, fails to conserve areas for primary production, and cannot achieve compliance through conditions.  It asserts the land remains suitable for broad-scale primary production now and in the future, having regard to its soil quality, topography and size, and should be protected from fragmentation. The application is seen as an opportunistic attempt to subdivide valuable agricultural land, a finite resource, with the Mossman Mill closure and Mossman Transition Plan underscoring the need for preservation. The Council argues the appellant’s experts underestimated the land’s agricultural potential by focusing on commercial and economic factors rather than its capacity for cropping, grazing, and horticulture.
4. [4]
   The critical questions for determination in the appeal are:

1. Does the proposed development comply with the assessment benchmarks in the planning scheme?
2. Can compliance with the assessment benchmarks be achieved by the imposition of lawful development conditions?
3. Should the development application be approved in the exercise of the discretion under s 60(2)(b) of the Planning Act 2016 (Qld)?

5. [5]
   After reviewing evidence assisted with a site view and submissions, I have answered each question in the negative.  I find that the land remains suitable for rural uses intended in the Rural Zone, including large-scale cropping, animal husbandry, and broadacre primary production, due to its size, topography, and soil quality.  This area currently available for primary production will not be conserved by the proposal, but, instead, it will be further fragmented, incongruous with the natural constraints of Seasonal Creek, vegetation and its topography. 
6. [6]
   The proposed development does not comply with the planning scheme’s benchmarks. It fails to meet the purpose, including the incorporated Strategic Framework provisions, and overall outcome 6.2.10.2(3)(a) of the Rural Zone Code, as it further fragments the area for use for primary production, being good quality agricultural land, including it current and potential capacity for larger-scale rural uses like cropping, animal husbandry, and broadacre primary production.  While the proposal seeks to create opportunities for some small-scale rural uses and hobby activities with proposed lots 2, 3 & 4, it does so at the expense of protecting and maintaining the land’s intended rural capacity.  Proposed lots 2, 3, and 4 fronting Mowbray River Road would be akin to rural residential development.  In conflict with overall outcome 6.2.10.2(3)(c), the creation of new lots will adversely impact the rural land use of each lot, which is further entrenched by the need to minimise reverse amenity impacts with building envelopes and boundary buffers.  The proposal cannot satisfy PO7 by fragmenting the land into lots smaller than 40 hectares, albeit not a minimum, with no acceptable outcome given the importance of size for viable rural uses in the Rural Zone.  Similarly, it fails to comply with the Reconfiguration of a Lot Code’s purpose 9.4.7.2(2)(b), as the lots lack sufficient area, dimensions, and shapes for larger-scale rural uses contrary to the Rural Zone Code, and therefore cannot satisfy PO1. 
7. [7]
   In my assessment, the extent of non-compliance with the assessment benchmarks cannot be addressed through the imposition of conditions.  Even considering the other matters urged by the appellant, approval is not warranted in the exercise of discretion under s 60(2)(b) of the Planning Act, and I have concluded that the development application should not be approved.
8. [8]
   Accordingly, for these reasons, I affirm the Council’s refusal of the development application and dismiss the appeal.

Location

9. [9]
   The land is situated at 291 Mowbray River Road in Mowbray, described as Lot 34 on SP331786 and is located about 8 kilometres south of Port Douglas, via the Captain Cook Highway.
10. [10]
    The land is Agricultural Land Class A with an area of 53.53 hectares.  It is irregularly shaped and bounded by the Mowbray River to the north-west, Spring Creek to the east, a smaller rural lot (4.5 hectares) to the north-east, and Mowbray River Road and other smaller rural lots (respectively 1.3, 4.2, 3.1, and 3.1 hectares), to the south.  Both watercourses have significant vegetation along their edges.  A house is located on all but one of the smaller neighbouring rural lots.
11. [11]
    The land is intersected by Seasonal Creek, a vegetated ephemeral watercourse with an informal cross-creek crossing to allow movement between the northern and southern portions.  There are two existing dwelling houses on the land; one toward the back of that western portion of the subject land, between the Mowbray River and Seasonal Creek; and the other a short distance (perhaps 150 metres or so) from Mowbray River Road to the immediate west of the vegetation lining the meandering Seasonal Creek.  To the west of the meandering Seasonal Creek, there is also a small greenhouse that is used for commercial horticulture.
12. [12]
    Notwithstanding the intersecting Seasonal Creek, the land has historically been used for farming and rural purposes and operated as a single farming unit, known as the “Mayfield Farm”, and was one of the original farms in the Port Douglas region.  The larger portion to the north of the Seasonal Creek is still used for broad-acre primary production of sugar cane.  The balance of the land to the south of Seasonal Creek is used for the keeping of horses, with paddocks divided by fences and some shelters.  A dressage arena has been built on part of the subject land near the rear dwelling.
13. [13]
    The area of the subject land comprising proposed lot 1 is currently used for cropping (sugarcane), animal keeping (by agistment or otherwise), small cropping, intensive horticulture and a dwelling house.  The area of the subject land comprising proposed lots 2, 3 and 4 is currently being used for animal keeping (by agistment or otherwise).  The area of the subject land comprising proposed lot 4 is also being used for the business of Hunt Design within the existing dwelling house.
14. [14]
    The surrounding area is a mix of rural, rural residential, and conservation, with diverse lots, ranging from 1.3 to 65 hectares.  The neighbouring land:

    1. To the north, beyond Mowbray River, is within the Rural Zone and used for a dwelling house and cropping (sugarcane);
    2. To the south, beyond Mowbray River Road, is within the Rural Residential Zone and used for rural residential purposes, including houses;
    3. To the east, beyond Spring Creek, is within the Rural Zone and used for dwelling house, rural activity tourism (small scale) and cropping (sugarcane); and
    4. To the west, is within the Rural Zone and used for rural purposes, including dwelling houses and horse agistment.
15. [15]
    Historically, sugar cane harvested in the region, including from the subject land itself, has been transported for crushing to the Mossman Mill operated by The Far Northern Milling Pty Ltd, which was established in 2018 by growers based in Mossman and the Atherton Tablelands.

Proposed Development

16. [16]
    The appellant proposes to reconfigure the land into four lots with proposed lots 2, 3 and 4 having direct frontage to Mowbray River Road:

    1. Proposed lot 1 comprises 47.53 hectares, including the existing cane north of Seasonal Creek, grazing land, house and equestrian facility;
    2. Proposed lot 2 comprises 1.7 hectares;
    3. Proposed lot 3 comprises 1.7 hectares; and
    4. Proposed lot 4 comprises 2.6 hectares, including an existing house.

Planning Treatment

17. [17]
    The land is located in the Rural Zone under the Douglas Shire Planning Scheme 2018.
18. [18]
    The planning scheme was initially prepared under the Sustainable Planning Act 2009 (Qld) but came into effect on 2 January 2018 under the Planning Act.  As a result, it is subject to the transitional provisions of s 287 of the Planning Act, which allows the scheme to remain in effect even if some of its terms could not be imposed under that Act.
19. [19]
    The State Planning Policy 2017 interactive mapping system mapped State interests over the site/part of the site, including agricultural land classification – Class A and B.  Part 2.1(1) of the planning scheme states that the minister has identified the economic growth – agriculture State interest in State Planning Policy 2016 is appropriately integrated in the planning scheme.
20. [20]
    The Far North Queensland Regional Plan 2009 – 2031 published in February 2009, includes the site in the Regional Landscape and Rural Production Area.  Part 2.2(1) of the planning scheme states “the minister has identified that the planning scheme appropriately advances the Far North Queensland Regional Plan 2009 – 2031, as it applies to the planning scheme area”.
21. [21]
    According to the planning scheme, the land is located entirely within the Rural Zone.  It is relevantly affected by the following overlays:

    1. Natural Areas Overlay: Matters of State Environmental Significance – Regulated Vegetation (of concern Regional Ecosystem) (in part along the Mowbray River, Spring Creek and Seasonal Creek); and Matters of State Environmental Significance – Regulated Vegetation (intersecting a watercourse) (in part along the Mowbray River, Spring Creek and Seasonal Creek);
    2. Flood & Storm Tide Hazard Overlay: Storm Tide – Medium Hazard (in part); Storm Tide – High Hazard (in part);
    3. Floodplain Assessment Overlay (Mossman River) (in part);
    4. Landscape Values Overlay: High Landscape Values (in part); and Medium Landscape Values (in part); and
    5. Coastal Processes Overlay: Coastal Management District (in full); and Erosion Prone Area (in part).
22. [22]
    An application for reconfiguring a lot in the Rural Zone is code assessable under the planning scheme.  The relevant assessment benchmarks for the code assessment of the development application are identified by the planning scheme as the Rural Zone Code and Reconfiguring a Lot Code.  Although the Strategic Framework provisions of the planning scheme are not in themselves assessment criteria for the application, they are directly called up by the Purpose of the Rural Zone Code (s 6.2.10.2(2)(a)) as well as pursuant to s 5.4(1)(c)(iv) of the planning scheme.
23. [23]
    Section 5.4(1)(c) of the planning scheme provides that:

“(c) Code assessable development

1. (i)
   is to be assessed against all the applicable codes identified in Column 3;

…

1. (iii)
   that complies with:

1. (A)
   the purpose and overall outcomes of the code – complies with the code;

1. (B)
   the performance or the acceptable outcomes, where prescribed – complies with the purpose and overall outcomes of the code;

1. (iv)
   is to have regard to the purposes of any instrument containing an applicable code.

Note – In relation to section 5.4(1)(c)(iii) above, the associated acceptable outcomes are technical measures or standards that set a benchmark for assessment of individual applications, which may only be varied on the merits of an assessment of the corresponding performance outcomes and the purpose and overall outcomes of the relevant code.

Note – In relation to section 5.4(1)(c)(iv) above, and in regard to section 313(3)(d) of the Act, the strategic framework (where relevant) is considered to be the purpose of the instrument containing an applicable code.”

24. [24]
    Since s 1.3.2(3) of the scheme specifies that notes form part of the planning scheme, the second note to s 5.4(1)(c)(iv) requires that “the strategic framework (where relevant) is considered to be the purpose of the instrument containing an applicable code”.  And s 6.2.10.2(2) of the Purpose of the Rural Zone Code includes a local government purpose that:

“(a)implement the policy direction set in the Strategic Framework, in particular:

…

2. Theme 3: Natural resource management, Element 3.6.2 – Land and catchment management, Element 3.6.3 Primary production, forestry and fisheries, Element 3.6.4 – Resource extraction.

3. Theme 5 Economy, Element 3.8.2 – Economic growth and diversification, Element 3.8.4 – Primary production.”

Code Assessment and Decision Framework

25. [25]
    The appeal is brought under s 229 and Sch I of the Planning Act and the provisions of the Planning and Environment Court Act 2016 (Qld).
26. [26]
    The appeal is to be heard by way of hearing anew^[1] and must be decided by the court standing in the shoes of the assessment manager.  The court may confirm or change the decision appealed against, or set it aside and either replace it or remit the matter to the Council.^[2] 
27. [27]
    The appellant bears the onus in the appeal.^[3]
28. [28]
    The Planning Act and the Planning and Environment Court Act apply to the appeal.  As the development application required code assessment, the decision of the court pursuant to s 60(2) must be based, subject to s 62, upon the assessment required by s 45(3) and s 59(3) of the Act. 
29. [29]
    Accordingly, the court must assess the development application only:

    1. Against the assessment benchmarks in a categorising instrument for the development; and
    2. Having regard to any matters prescribed by regulation.

And after carrying out the assessment, the court:

1. Must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development;
2. May decide to approve the application even if the development does not comply with some of the assessment benchmarks;
3. May impose development conditions on an approval; and
4. May, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions.

30. [30]
    Importantly, non-compliance with the planning scheme should be “plainly identified”.^[4]  Further, where planning provisions are worded in vague and flexible terms, where there are no clear or definitive criteria by which the court can determine whether there is conflict between a proposal and the planning scheme, the court has great width in the decision-making process.^[5]
31. [31]
    Caution must be exercised to avoid engaging in broader discretionary considerations. Unlike an impact assessment, a code assessment does not impose a statutory obligation to advance the purpose of the Planning Act or to consider “any other relevant matter”.^[6]  The assessment is narrowly focused, involving a comparative analysis of the development against the applicable planning scheme benchmarks, and having regard to matters prescribed by regulation.^[7]  As to the latter, the assessment must have regard to the relevant State Planning Policy and Regional Plan, as specified under s 27(1) of the Planning Regulation 2017, to the extent these documents are not appropriately integrated into the planning scheme.   Additionally, the code assessment must consider any existing development approval for, and any lawful use of, the subject premises or adjacent premises, as well as the common material submitted with the development application.

Does the proposed development comply with the assessment benchmarks in the planning scheme?

32. [32]
    This question involves the assessment against the planning scheme Rural Zone Code:  s 6.2.10.2 – Purpose: (1)(a), (1)(c), (2)(a)(ii) and (iii) and (2)(b);  Overall outcomes (3)(a) and (3)(c), and s 6.2.10.3 – Performance outcome PO5; and the Reconfiguring a Lot Code: s 9.4.7.2 – Overall outcome (2)(b); and s 9.4.7.3 – Performance outcome PO1, which relevantly provide as follows:

33. [33]
    The appellant contends that the proposal complies with the planning scheme, asserting that it will allow for continuing and additional rural uses while not causing impermissible fragmentation of rural or agricultural land, either by avoiding fragmentation entirely or resulting in only minor or technical fragmentation that does not warrant refusal of the application.  In contrast, the Council contends that the land, being suitable for primary production now or in the future, should be protected from impermissible fragmentation resulting from the proposal.
34. [34]
    While the term “primary production” is often used in the provisions of the Rural Code and the incorporated provisions of the Strategic Framework, it is not defined in the planning scheme, yet its meaning is central to the appeal in the various contexts of its use in the relevant provisions.
35. [35]
    The Rural Code purposes in ss 6.2.10.2(1)(a) and (c), seek to support “rural uses” such as cropping, intensive horticulture, intensive animal industries, animal husbandry, animal keeping, and other “primary production” activities while protecting and managing significant natural resources and processes to sustain the capacity for “primary production”.  Section 3.6.3 in the Strategic Framework provides that “primary production is a significant part of the natural resource and landscape value of the Shire”.  Overall outcome s 6.2.10.2(3)(a) requires that “areas for use for primary production are conserved and fragmentation is avoided”.  Incidentally, land uses such as animal husbandry, cropping, function facility (small-scale), roadside stall, rural industry, tourist attraction (small-scale), tourist park (small-scale), and wholesale nursery are “rural activities” that are self-assessable in the Rural Zone.
36. [36]
    It is trite law that the ejusdem generis principle provides that where general words or phrases follow a number of specific words or phrases, the general words are specifically construed as limited and apply only to things of the same kind or class as those expressly mentioned, here for example, as a rural use subject of the Rural Code purposes in ss 6.2.10.2(1)(a).
37. [37]
    Schedule 1 of the planning scheme defines the land uses of cropping, intensive horticulture, intensive animal industries, animal husbandry, and animal keeping as follows:

38. [38]
    The principles applicable to the construction of planning documents were restated by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82.  The court noted that the same principles that apply to statutory construction apply to the construction of planning documents^[8], but that this still allows for the expressed view that such documents need to be read in a way which is practical, read as a whole and as intending to achieve a balance between outcomes.^[9]  The discussion by this court of relevant principles in Westfield Management Ltd v Pine Rivers Shire Council^[10] has commonly been referred to by this court with apparent approval in Zappala^[11].  In the context of this case, the following principles of construing planning schemes are relevant:

    1. They should be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach;
    2. They should be construed as a whole; and
    3. They should be construed in a way that best achieves their apparent purpose and objects.
39. [39]
    Bearing these things in mind, it seems to me that primary production ought be construed as being limited and applying only to land-based uses and activities of the same kind or class of those defined and exemplified in columns 1, 2 and 3; that grow and keep plants or animals, or produce plant or animal-based products, for commercial purposes, relying on natural resources (soil, water, pastures) but may include controlled environments (greenhouses, feedlots).  It includes both extensive (like animal husbandry, cropping) and intensive (like intensive horticulture, intensive animal uses) forms of production as exemplified in column 3, but it excludes activities like those otherwise included in column 4. 

Rural Zone Code

40. [40]
    The appellant contends that the proposed development complies with the Rural Zone Code, asserting that there is no mandatory minimum lot size, the proposal will not impact the productive capacity of rural land for primary production, or compromise its long-term use for rural purposes.  The appellant contends that the proposal does not cause impermissible fragmentation of rural or agricultural land under the scheme’s proper interpretation.  Even if there is fragmentation, it is technical or minor and does not justify refusal.  He argues that the proposal creates three additional rural lots aligning with the existing rural residential pattern on the southern side.  It respects the land’s natural features, such as watercourses and vegetation, and its constraints for certain rural uses. 
41. [41]
    The majority of the land is preserved for broad-acre primary production, like sugar cane cultivation, with necessary infrastructure and two access points to Mowbray River Road.  Proposed lot 1 includes an existing dwelling, a large farm machinery shed, and areas suitable for both broad-acre production and small-scale rural activities, such as horse keeping and horticulture. The development ensures the continuation of small-scale pursuits on the land and places the second existing dwelling on a new allotment (proposed lot 4), near existing residential development. The new lots are sized to support small-scale rural uses, including horse keeping, without compromising existing activities.  He argues that the development will maintain the land’s capacity for rural uses, including primary production, and may even enhance opportunities for additional realistic rural uses. 
42. [42]
    The Council maintains that the proposal does not comply with the Rural Zone Code because it results in the fragmentation of good quality agricultural land; the proposal would be inconsistent with a clear and deliberate forward planning strategy; compliance with the assessment benchmarks cannot be achieved by imposition of conditions; and there are no other compelling reasons to warrant approval of the proposal in the circumstances.  The Council argues that the land remains suitable for primary production now or in the future, and should be protected from fragmentation; that the application to create rural residential lots is an opportunistic attempt to subdivide valuable agricultural land, a finite resource; that the closure of the Mossman Mill underscores the need to preserve such land, as highlighted in the Mossman Transition Plan; that the appellant's experts underestimated the land’s agricultural potential, focusing on commercial and economic factors rather than its capacity for activities like cropping, grazing, and horticulture;  that the proposed subdivision fragments the land, fails to ensure lots are suitable for primary production alongside dwellings, and does not comply with assessment benchmarks.
43. [43]
    The planning scheme seeks to achieve the purpose of the Rural Zone Code through the overall outcomes, relevantly here, by s 6.2.10.2(3)(a) to conserve areas for primary production and avoid fragmentation, and by 6.2.10.2(3)(c) to ensures adverse impacts from land use (on-site and on adjoining areas) are avoided or minimised through appropriate location, design, operation, and management.
44. [44]
    Relevant here, the purpose of the Rural Zone Code is to provide for a wide range of rural uses such as cropping, intensive horticulture, intensive animal industries, animal husbandry, animal keeping, and other primary production activities, and to protect or manage significant natural resources and processes to maintain the capacity for that primary production.  The code recognises the primacy of rural production, especially sugar cultivation, in rural areas.  It also incorporated provisions of the Strategic Framework to implement themes of natural resource management, economy, economic growth and diversification, and primary production.  It thereby emphasises the significance of primary production (e.g., sugar cultivation, tropical agriculture, horticulture, grazing) to the Shire’s natural resource and landscape value. It prioritises protecting the viability of agricultural land and preventing non-agricultural uses or fragmentation that could conflict with primary production.  It highlights the economic importance of primary production, particularly the sugar industry (e.g., Mossman Mill), and encourages economic growth that supports agricultural land and complementary industries without compromising rural land viability. 
45. [45]
    The diversification process, though still in early stages, has begun, as shown in the Mossman Transition Plan Summary, which explores potential future crops and industries. This is not a case where the broader strategic planning goal of preventing fragmentation of primary production areas has been outdated by events.
46. [46]
    The protection of areas for use for primary production with good quality agricultural land from fragmentation is an important planning strategy which finds its genesis in the State Planning Policy, is supported by the Far North Queensland Regional Plan 2009-2031 and has resulted in the implementation of strategies in local planning instruments.
47. [47]
    The State Planning Policy explicitly seeks to avoid fragmentation of good quality agricultural land “into lot sizes inconsistent with the current or potential use of the land for agriculture”.  This ensures that land with high-quality soils or other attributes suitable for farming remains viable for primary production.  So much is already reflected in the planning scheme and requires no further application here.
48. [48]
    This is also consistent with the Regional Plan, which also identifies fragmentation as a cause of the loss of good quality agricultural land and relationship with the region’s capacity to support primary production, particularly sugar cultivation, a dominant economic activity in the Shire.  It provides that:^[12]

“Land fragmentation has accumulative impacts which may contribute adversely to the region’s economic potential, environmental health and community wellbeing. Issues include:

• fragmentation causing loss of good quality agricultural land
• declining economic viability of small cane farms
• reduced viability of sugar mills due to loss of cane lands to urban development or other uses
• fragmentation of wildlife corridors and areas of ecological significance
• land use conflicts between agricultural practices and urban living
• restrictions on access to and use of non-renewable resources
• infrastructure and servicing costs”.

49. [49]
    These are also appropriately reflected in the planning scheme and require no further application here.
50. [50]
    Mr. McClelland described historical land use as part of his family’s sugarcane farming operations, spanning four generations since 1934.  He recalled that parts of the property historically supported tropical fruit orchards (mainly citrus, with some other tropical fruits) near Mowbray River Road and Spring Creek. During the Sheraton Mirage Resort construction, a quarry was operated in the farm’s stoney middle section, near the current bin stands.  He states that the Equinox family, who purchased the farm from the Verinese family (who bought it from the Robbins brothers), increased the cane area, which remained consistent under their ownership.  He remembered that no other crops were cultivated except for the orchard area, and the property was not used for grazing or horse pasturing. 
51. [51]
    Ms. Sophie Horman drew on her experience to testify about the typical cost for ownership of a horse, associated activities, and other costs related to the property on which horses are kept. These costs help support the local and regional economy, including businesses that provide rural feed and ancillary supplies, veterinarian services, and Pony Clubs.
52. [52]
    Ms. Angela Constable testified about her use of intensive horticulture, which contributes to the local and regional economy, can be carried out at a scale that does not necessitate a large area of land, such as proposed lots 2 to 4.  She identifies her business supplies to “20 outlets of the 69 restaurants, cafes and resorts in Port Douglas multiple times a week”, employs local casual labour and sources supplies from local suppliers including “Green Foods Australia that recycle local restaurants waste, Raw and More for supply of soils, Australian seek companies, and maintenance supplies from Mosman Hardware and Mossman Agricultural Supplies”.
53. [53]
    I have the benefit of expert evidence from William Thompson, Neil Sutherland, and Philip Matthew regarding Good Quality Agricultural Land, Land Capability, and Rural Use, as presented in their joint expert report, individual expert statements, and oral testimonies. Each expert’s opinion is confined to their respective areas of expertise: Mr. Thompson addressed Good Quality Agricultural Land, Land Capability, and Rural Use; Mr. Matthew focused on Rural Use; and Dr. Sutherland addressed Good Quality Agricultural Land and Land Capability.
54. [54]
    The joint expert report records an apparent expert consensus that “the land to the south of Seasonal Creek has been already fragmented and separated from the adjacent agricultural land by the natural features of the landform and vegetation, in our view”, and the proposal will allow continued rural use on the land as follows:

“18.  The proposed lot containing the cane land could continue to be used for cropping, the growing of sugar cane, animal keeping, the agistment of horses, and for a dwelling house – consistent uses in the rural zone.

19.  Under the proposal, the existing cane land cropping area (to the north of Seasonal Creek) would remain unchanged and would not reduce either in size or potential productivity.

20.  The rural residential land (and the residences) immediately south of the proposed land for subdivision along Mowbray River Road pose a limitation on the potential agricultural use of the land for cropping or more intensive horticultural use.

21.  The size of the proposed smaller lots adjacent to Mowbray River Road, namely 2.6 ha and two further lots of 1.7 ha each, is sufficient to facilitate small-scale rural pursuits (for instance, but not limited to, grazing and/or horse agistment or the keeping of horses for personal use).

22.  In this, by accounting for the adjacent non-rural land users, existing landform, and topography, the proposal reasonably accommodates the existing degree of rural uses. The residences would be ancillary to any rural use.

23.  Collectively and given these features, the land has been alienated from long-term agricultural use, rendering it unsuitable for intensive forms of agriculture yet still suitable for grazing and/or horse agistment.

24.  As such, the subdivision and the creation of the proposed lots would have no deleterious impact on the agricultural productivity of the site, locality, or region, in our view.”

55. [55]
    The later attribution to Mr. Thompson (“WT”) that he “agrees with the general key points made in the preceding sections”, should be read in light of the points of disagreement and responses by Mr. Matthew (“PM”) that followed:

“26.  WT: The proposed lots 2, 3 and 4 which border Mowbray River Road, whilst no longer used for cane are ALC A and therefore are still suited for cane farming. The affidavit of Chris McClelland also notes that a range of horticulture crops had been grown on these lots by previous land owners.

WT has concerns that the proposed subdivision if considered as an infill type of development because of the land use conflict that would arise if cane was grown on the proposed Lots 2, 3 and 4. The McClelland affidavit refers to the potential for land use conflict.

Reverse amenity affects associated with cane do occur and there is a range of industry recommended best practise management approaches that mitigate these impacts. In the far North Queensland industry, cane farming in close proximity to residential uses is very common.

PM:  Unfortunately, in terms of agricultural use, the land in question has not been used for sugar cane, or any other more intense use than grazing, for some years. It is likely the residents have become accustomed to the grazing use. Regardless of any subdivision, the grazing land use is likely to continue.

In this proposed subdivision, Mowbray River Road separates the area of ALC A suited lands from the adjoining rural residential area to the south by a distance of approximately 40 m.

27.  WT:  I also note the proposed RoL has what is referred to as a set back line width of 6m between Lots 2, 3 and 4 and Lot 1 - which is the largest lot resulting from the RoL. Such a proposal in the absence of building envelopes and buffer conditions on the RoL will inevitably result in elevated land conflict.  PM: It would not be unreasonable for the proponent to identify the building envelopes. This could be conditioned, in my view.

28. WT: The proposed RoL will result in 3 smaller lots of areas ranging from 1.7 to 2.6 ha each of which are agreed in this JER as being ALC A. Immediately opposite the proposed RoL north of Mowbray River there are 11 lots of similar size ranges to the proposed RoL. All are used for commercial cropping (cane) with only 2 having residential structures. This suggests that cane farming on suitable land is common in these parts of the Mowbray Valley and that the demand for more small lots to replace cropping by residential uses that alienate ALC A may not be significant.

PM: I am not an expert in the assessment of residential demand and leave this matter for the assessment of others.

56. [56]
    Mr. Thompson later recanted from the scope of agreement attributed to him, by his supplementary report, saying that:

    1. “… the natural features associated with water courses and residual vegetation are a common feature of the commercial cane industry in the wet tropical coast. These natural features are neither a common nor an important factor in alienating existing cropping areas from continued cropping.”
    2. “… the available irrigation methodologies are able to irrigate small areas efficiently. For example, travelling irrigators which are very commonly used for dry season irrigation are able to be adjusted in the field to change the height, width and duration of an irrigation event.  The 293ML/annum of available water would efficiently irrigate up to 30ha of perennial horticulture crop or cane. Dry season irrigation is necessary for horticulture and is a key requirement for diversification within the cane industry.”
    3. “… the road corridor and best practise management recommended by the industry will mitigate amenity effects for the existing Rural Residential areas. These existing rural residential areas are mainly upslope of the GQAL area which is proposed for subdivision under this [reconfiguration]. This currently helps minimise amenity impacts.”
    4. “The proposed areas to be subdivided have an extensive history of cropping land use and are not currently alienated from cropping.  … the proposed [reconfiguration] would permanently alienate the proposed subdivision area from existing and potential local cropping uses.  Commercial forms of cropping uses such as cane, horticulture and dry season irrigated row crops would not be sustainable on the rural residential sized lots proposed under this [reconfiguration]. Unlike commercial crops which require Agricultural Land Class A lands, hobby small scale forms of grazing (horses and cattle) which might develop have no requirement for this quality of land.  The conclusion [by Mr Sutherland and Mr Matthew,] of no deleterious effects assumes that the proposed lots are already unable to be cropped and that the [reconfiguration] would not generate reverse amenity impacts. The proposed [reconfiguration] will in fact produce reverse amenity impacts and will reduce the amount of quality cropping land in the area. These are deleterious impacts.”
57. [57]
    In his individual report and later testimony, Mr. Thompson maintained that the land, particularly the front 10 hectares comprising lots 2, 3, and 4, remains Class A and suitable for cane, despite not being currently used for it. He disagreed with Mr. Matthew’s view that the southern land is alienated from primary production due to economic barriers, stating that economic viability should not be a consideration when the strategic objective is to protect Good Quality Agricultural Land based on soil and suitability criteria. He emphasised that physical features like watercourses and vegetation, common in the wet tropical coast, are not significant barriers to cane farming, though he acknowledged that Seasonal Creek crossings are currently unusable and require maintenance. He noted that the loss of the proposed lots’ area would have an “immeasurably small” impact on local agricultural productivity and an even smaller regional impact. Under cross-examination, while maintaining concerns about reverse amenity impacts, he conceded that these can be “largely” mitigated through standard planning measures like setbacks and buffers. He also highlighted that fragmentation increases complexity and conflict potential, including for small-scale cropping.
58. [58]
    Mr. Thompson supported his position with historical CSIRO/Murtha soil survey and LIDAR data, affirming the suitability of the proposed lots for horticulture or cane cropping. Drawing on his knowledge of Mowbray Valley soils and agricultural practices, despite inspecting the land shortly before testifying, he argued that the proposal would permanently alienate quality land from commercial cropping, as small lots under separate ownership suit only hobby grazing and activities not requiring Class A land. He described recent smaller-scale uses (e.g., grazing) over the last 20 years as “holding uses,” temporary due to non-durable infrastructure.
59. [59]
    Mr. Matthew, an expert in rural land use, provided consistent opinions across the joint expert report, his individual reports dated 20 November 2024 and 11 December 2024 (responding to Mr. Thompson’s affidavit and statement of evidence), and his testimony. His key points are summarized as follows.
60. [60]
    During cross-examination, Mr. Matthew acknowledged that larger lots are generally more productive than subdivided ones, as subdivisions reduce agricultural land through buffers, roads, building envelopes, effluent disposal, and fallow periods that lower productivity. However, he maintained that the grazing land in proposed lots 2, 3, and 4 is already fragmented and alienated from adjacent agricultural land due to natural features, including Seasonal Creek, Spring Creek, Mowbray River, associated vegetation, and topography, as well as proximity to rural residential areas south of Mowbray River Road. He argued that the proposal represents an infill of existing smaller lots, which does not compromise rural productivity or the land’s long-term utility for rural purposes.
61. [61]
    In response to Mr. Thompson’s divergence from the joint expert report, Mr. Matthew reiterated in his reports and testimony that, while natural features are common in the cane industry and not inherently alienating, the specific combination of vegetation, topography, and historical non-use for cane since at least 2004 has already fragmented the grazing land from intensive cropping. He further noted that broadacre cropping, such as industrial hemp or grains, is unsuitable for the front grazing land due to similar conflicts and risks as cane, as highlighted in the context of the Mossman Transition Plan. He emphasised that the proposal does not increase alienation and supports rural uses such as grazing, horse agistment, small-scale horticulture, or ancillary tourism compatible with agriculture.
62. [62]
    Mr. Matthew addressed potential amenity impacts from converting the land to cane, such as dust, noise, or pesticide odours. He explained that a 40m road corridor, the topographic slope (with proposed lots lower and sloping away from existing rural residential areas), and industry best practices, such as low-pressure spraying, shielded systems, and avoiding windy conditions per the Sugar Research Australia Weed Management Manual, would mitigate reverse amenity effects. He also supported the use of vegetated buffers, such as 10m-wide tree canopies along boundaries, if needed, but argued that there are no net deleterious effects on rural use. This is because the land is unlikely to revert to cane due to long-term resident acclimation to grazing and higher risks of conflict.
63. [63]
    He maintained that the proposed lots are not viable for commercial cropping due to size and layout constraints, consistent with historical adaptive uses. Economic factors also support this view, as horse agistment provides higher net income than cane cropping, requires fewer inputs, avoids regulatory hurdles (such as environmental impact assessments and authorities for conversion to intensive farming in the Great Barrier Reef catchment), and involves lower capital costs for small crops or orchards, including irrigation.
64. [64]
    Mr. Matthew asserted that the proposal retains productive capacity for rural uses exempt from environmental impact assessments, such as small-scale horticulture, animal keeping, or horse agistment on residual areas per lot after accounting for dwellings and buffers. He concluded that the proposal can be conditioned with vegetated buffers, building envelopes if required, and potential water licence amendments to protect good quality agricultural land and rural processes. Importantly, the proposal does not fragment the operational cane land north of Seasonal Creek, which remains intact at 47.53 ha.
65. [65]
    Dr. Sutherland, an expert in good quality agricultural land and land capability, consistently upheld his opinions from the joint expert report in his individual report dated 11 December 2024 and oral testimony. He maintained that the proposed development and mix of created allotments will not result in the loss, fragmentation, or alienation of viable, good-quality agricultural land. His key points are summarised as follows.
66. [66]
    Dr. Sutherland noted that the land comprising the proposed smaller lots 2, 3, and 4 is currently used for grazing and horse agistment and is already limited by natural fragmentation from Seasonal Creek, vegetation, topography, environmental constraints, proximity to rural residential areas, and the high costs associated with reverting to intensive cropping like sugarcane. He emphasised that the proposal preserves the land’s overall agricultural productivity, as the smaller lots remain suitable for sustainable rural uses such as grazing, animal keeping, or small-scale irrigated horticulture, without impacting the broader locality or region.
67. [67]
    In his individual report, Dr. Sutherland responded to Mr. Thompson’s divergence from the joint expert report. While acknowledging that the land is classified as Agricultural Land Class A based on site observations, including three boreholes dug to 600 mm, he opined that it does not fully meet Strategic Cropping Land criteria due to slope and area limitations. During oral testimony, he softened his disagreement with Mr. Thompson by conceding that the soils in lots 2, 3, and 4 remain suitable for cane farming. However, he maintained that reverting to cane would be impractical and costly due to requirements for erosion control, stormwater structures, and regulatory compliance. When challenged on these costs, he acknowledged that reversion might be less prohibitive and that economic viability is a matter for other experts.
68. [68]
    Dr. Sutherland conceded in oral evidence that lots 2, 3, and 4 are too small for broadscale cropping or large commercial horticulture. Nevertheless, he argued that the proposal does not further fragment viable, good-quality agricultural land, as these lots are well-suited to sustainable, smaller-scale rural uses, such as grazing for ruminants (e.g., cattle, horses, goats, sheep) or horticulture (e.g., stone fruits, nuts, tomatoes, seasonal vegetables in raised beds or roadside stalls). These uses, he noted, do not reduce the land’s overall capability or generate reverse amenity impacts. He further explained that irrigation for large-scale cane on smaller areas is impractical due to equipment costs, inefficiencies, noise, and water loss, but it is suitable for small-scale horticulture.
69. [69]
    He maintained that the land south of Seasonal Creek is already alienated from intensive agriculture due to fragmentation by Seasonal Creek, vegetation, and areas regulated as Matters of State Environmental Significance, which separate it from the northern cane land. Rejecting Mr. Thompson’s position that such features are common in the cane industry and do not alienate land from cropping, Dr. Sutherland argued that these site-specific factors, combined with State environmental overlays, effectively fragment the area.
70. [70]
    Dr. Sutherland also supported the feasibility of buffers to mitigate amenity impacts to or from adjacent rural residential lots, aligning with industry best practices. He noted that the topographic positioning of upslope residences already minimises these effects.
71. [71]
    I also have the benefit of expert town planning evidence from Natalie Rayment and Greg Ovenden in their joint expert report, individual expert statements, and oral testimony.  Much of their opinion evidence transgresses on the court’s role of curating the evidence of other witnesses, and interpreting and applying the provisions of the planning instruments to the ultimate issues, which is of no evidentiary weight.  Otherwise, the town planning considerations are short in compass.
72. [72]
    Ms. Rayment relied on the soils and agricultural land experts to join in the opinion that the proposal will not result in further fragmentation of rural land for primary production because:

    1. The northern area of the land (proposed lot 1) remains over 40 hectares and maintains the use of the land for primary production as it can continue to be used for cropping, the growing of sugar cane, animal keeping, the agistment of horses and a dwelling house, consistent with uses in the rural zone;
    2. Proposed lots 2, 3 and 4 are on land that has already been fragmented and separated from the part of the site being used for primary production, separating the land to the south, adjacent to Mowbray River Road, from the land to the north by Seasonable Creek;
    3. The proposed subdivision will have no deleterious impact on the agricultural productivity of the site, locality or region; and
    4. The proposed reconfiguration instead provides for infill development along the Mowbray River Road frontage.
73. [73]
    She concludes that maintains the capacity of the site for rural uses and activities; protects or manages significant natural resources by maintaining the site’s capacity for primary production; recognises the primacy of rural production; facilitates rural activities; and does not further fragment land for primary production.
74. [74]
    I do not accept that the land has such existing constraints as asserted by Dr. Sutherland, Mr. Matthew and Ms. Rayment to already fragment or alienate the areas comprising the southern balance of proposed lot 1 and the proposed lots 2, 3, and 4 because:

    1. The proposed reconfiguration bears no compelling relationship to the asserted natural fragmentation caused by Seasonal Creek, associated vegetation and the topography of the land.
    2. Seasonal Creek, an ephemeral creek, does not significantly fragment the land. Existing tracks allow crossing, and cane farming commonly operates across such creeks in the region, as supported by Mr. Thompson's evidence and aerial imagery showing farm connectivity.
    3. State-mapped vegetation along the creek lacks an ecological assessment to confirm its significance. Mapped areas include existing cane land and dwellings, and clearing for infrastructure (e.g., tracks) is permitted under self-assessable codes, requiring minimal effort to maintain access.
    4. The current use of the land for horse agistment is a temporary holding use. Reversion costs to cane or other cropping are not prohibitive.
    5. The existing water allocation supports irrigating up to 50 hectares of cane or 30 hectares of orchards, sufficient for the proposed lots. Irrigation can be extended to the front portion, with costs estimated at $3,000 per hectare, and practical solutions like Briggs irrigators are viable for shorter crops.
    6. Mr. Matthew's concerns about land use conflicts with nearby rural residential lots are mitigated by topography, vegetation, and separation distances. Best practice management can address reverse amenity impacts.
    7. Grazing requires no environmental authority, and commercial cropping on less than 5 hectares of uncropped land is exempt. Even if required, obtaining an environmental authority is a standard process not unique to this land.
75. [75]
    It seems to me that these matters completely undermine the force of the evidence of Dr. Sutherland, Mr. Matthew and Ms. Rayment in support of the proposal. 
76. [76]
    I prefer the evidence of Mr. Thompson over that of Dr. Sutherland and Mr. Matthew regarding the suitability of the land for large-scale primary production, including sugarcane cropping, animal husbandry, and broadacre primary production. Mr. Thompson’s evidence, supported by historical use data, soil quality assessments, and topographic evaluations, persuasively demonstrates that the land, including proposed lots 2, 3, and 4 fronting Mowbray River Road, remains viable for these rural uses despite recent small-scale grazing activities, which he characterises as temporary “holding uses”.  Mr. Thompson’s rejection of economic viability as a relevant criterion aligns with the planning scheme’s emphasis on preserving good quality agricultural land for its inherent productive capacity, as articulated in the Strategic Framework (s 3.6.3.1(1)) and Rural Zone Code (s 6.2.10.2(1)(c)).  His evidence, corroborated by Mr. McClelland’s testimony of historical sugarcane cropping and other horticultural activities, underscores the land’s Class A status and its suitability for continued primary production albeit with some rehabilitation to restore creek crossing and southern topography.  The proposal, by creating lots 2, 3 and 4 of 1.7, 1.7 and 2.6 hectares, will compromise and limit these lots to smaller-scale rural uses and hobby activities, which do not require good quality agricultural land, thereby fragmenting the land and undermining its capacity for larger-scale rural uses.
77. [77]
    Dr. Sutherland and Mr. Matthew’s opinions in reliance on historical use patterns, economic barriers to reversion (e.g., costs of infrastructure and regulatory compliance), and perceived fragmentation by natural features like Seasonal Creek and vegetation are overestimated.  Their assertion that the land south of Seasonal Creek is already alienated due to natural features is unpersuasive, given the demonstrated access across the creek, the commonality of such features in the cane industry, and the land’s size, topography, and soil quality, which sustain its suitability for primary production.  It seems to me that the evidence prioritises short-term private interests over the planning scheme’s clear intent to protect areas for use for primary production on the land, which is good quality agricultural land, for long-term productivity (s 3.6.3.1(3)). 
78. [78]
    I find that the land, including proposed lots 2, 3, and 4 fronting Mowbray River Road, remains suitable for intended rural uses, including large-scale cropping, animal husbandry, and broadacre primary production, due to its size, topography, and soil quality. That area for use for primary production will not be conserved but will be fragmented, contrary to overall outcome of s 6.2.10.2(3)(a) because the proposal will limit their use to small-scale rural uses and hobby activities to the extent it would remain after reverse amenity mitigation like dedicated building envelopes and buffers.
79. [79]
    The proposed development fails to comply with the Rural Zone Code’s purpose in ss 6.2.10.2(1)(a)&(c), (2)(a) & (b) (including the incorporated provisions of the Strategic Framework of protecting agricultural land viability – s 3.6.3.1(1) & (3), and 3.8.4.1(3)) and overall outcomes (s 6.2.10.2(3)(a) & (c)), because, while it might accommodate smaller rural uses and activities by proposed lots 2, 3, and 4, it does so at the cost of further fragmenting good quality agricultural land, thereby compromising and failing to protect, maintain, and conserve the current or potential areas for use for primary production on the land.  The proposal is incapable of complying with the overall outcomes, including performance outcome PO7 due to the fragmentation of the land by creating lots 2, 3 and 4 of 1.7, 1.7 to 2.6 hectares, respectively, being smaller than 40 hectares. 
80. [80]
    I accept that it is a mere deemed measure of compliance, but it seems to me that the limited use and sizes of proposed lots 2, 3 and 4 are so inadequate that I see no other acceptable outcome, including conditions considered below, that could achieve compliance with the Rural Zone Code.

Reconfiguring a Lot Code

81. [81]
    The Reconfiguration a Lot Code purpose 9.4.7.2(2)(b) requires lots that have sufficient areas, dimensions and shapes to be suitable for their intended use, taking into account environmental features and site constraints.  Performance outcome PO1 requires compliance with the lot reconfiguration outcomes of the Rural Zone Code.
82. [82]
    The appellant argues that the proposal complies with the Reconfiguration of a Lot Code, by creating lots with sufficient areas, dimensions, and shapes suitable for intended larger scale rural uses in proposed lot 1 and for realistic smaller-scale rural uses in proposed lots 2, 3 and 4 like horse keeping and horticulture aligning with the rural residential pattern, while respecting existing fragmentation by environmental features and site constraints that limit the scope of rural activities.
83. [83]
    The Council maintains that the proposal fails to comply with the Reconfiguration of a Lot Code, for the same reasons as contended for the Rural Zone Code, by creating lots lacking sufficient areas, dimensions, and shapes that will permanently fragment the land that remains suitable for large-scale primary production uses of cropping, grazing, and horticulture, where good quality agricultural land is finite and there are no effective environmental or site constraints. It argues that the proposal does not satisfy performance outcome PO1, as it contravenes Rural Zone Code outcomes through fragmentation that undermines rural land protection.
84. [84]
    I have concluded that the land, including proposed lots 2, 3, and 4 fronting Mowbray River Road, remains suitable for intended rural uses, including large-scale cropping, animal husbandry, and broadacre primary production, due to its size, topography, and soil quality.  The proposal, by creating lots 2, 3 and 4 of 1.7, 1.7 and 2.6 hectares, would compromise and limit these lots to smaller-scale rural uses and hobby activities.  By Mr. Thompson’s evidence, it is apparent that the proposed lots are unsuitable for sustainable commercial agricultural activities, including sugarcane cultivation, horticulture, or irrigated row cropping. Dr. Sutherland also accepted that the lots are insufficient in size for broadacre cropping. He further accepts that commercial horticultural use, such as that exemplified by Ms. Constable’s enterprise on part of the land, would be constrained to approximately one hectare for a nascent commercial operation given the requisite buffering and building envelopes that must be imposed. Even so, conditions necessary to mitigate potential reverse amenity impacts further diminish the practicable area available for such agricultural pursuits.
85. [85]
    In these circumstances, it seems to me that the proposal does not comply with the purpose of the Reconfiguration of a Lot Code, as it produces lots with insufficient areas, dimensions, and shapes to be suitable for their intended rural uses, particularly sugar cane cropping and other broad-acre primary production.  And given my findings in relation to non-compliance with the Rural Zone Code, the proposal does not comply with the purpose or performance outcome PO1 of the Reconfiguration of a Lot Code. 
86. [86]
    Again, it seems to me that the limited use and sizes of proposed lots 2, 3 and 4 are so inadequate that I see no other acceptable outcome, including conditions considered below, that could achieve compliance with the Reconfiguration of a Lot Code. 

Can compliance with the assessment benchmarks be achieved by the imposition of lawful development conditions?

87. [87]
    Given the findings of the nature and extent of the non-compliance with the Rural Zone Code and the Reconfiguration of a Lot Code, can compliance with the assessment benchmarks be achieved by the imposition of lawful development conditions?
88. [88]
    The appellant contends that any concerns about the continuation of rural uses and any reverse amenity impacts can be addressed through conditions of approval, such as building envelopes and boundary buffers for proposed lots 2, 3, and 4.  The Council maintains that the proposal fragments the land and fails to ensure lots are suitable for primary production alongside dwellings; and that this non-compliance causes broader planning harm and loss of productive capacity, which cannot be mitigated through conditions.
89. [89]
    Having regard to my findings that the proposal further fragments the good quality agricultural land with the proposed lots 2, 3 and 4 being of insufficient area, dimensions shapes, and uses, it seems to me that building envelopes and vegetated buffers, to mitigate reverse amenity impacts would consume any additional good quality agricultural land, further reducing the land available for primary production.  Furthermore, the acknowledged reverse amenity impacts, while partially mitigable through buffers, further highlight the broader planning harm of fragmentation, as the proposal would permanently alienate areas of primary production, with good quality agricultural land, from its intended rural uses.  This will be further entrenched by the need for areas to be subject of building envelopes and buffers.  In my view, the extent of non-compliance, particularly the fragmentation caused by the smaller lots 2, 3 and 4 cannot be remedied through conditions, as the size of available quality land is critical for the intended rural uses in the Rural Zone Code.
90. [90]
    In these circumstances, the extent of non-compliance with the assessment benchmarks cannot be addressed through the imposition of lawful development conditions. 

Should the development application be approved in the exercise of the discretion under s 60(2)(b) of the Planning Act?

91. [91]
    Having found that the non-compliance with the assessment benchmarks cannot be remedied by conditions, the appellant urges the court to exercise its discretion under s 60(2)(b) to approve the application having regard to:

    1. The following matters which the appellant alleges are relevant (which are not admitted by the Respondent):
       1. (i)
          complies with the Codes when considered as a whole;
       1. (ii)
          is consistent with the surrounding pattern of development;
       1. (iii)
          satisfactorily responds to the existing and intended character of the area;
       1. (iv)
          maintains an appropriate use of the Land under the Rural zone;
       1. (v)
          is sympathetic to the Land’s features and topography, and surrounding development and land uses;
       1. (vi)
          satisfactorily responds to the constraints on the land;
       1. (vii)
          will provide further opportunities for residential dwellings in a Rural zone at a time when there is a significant need for accommodation;
       1. (viii)
          has an available water supply;
       1. (ix)
          has an available waste collection; and
       1. (x)
          can occur without any unacceptable adverse impacts or unacceptable town planning consequences.
    2. The relative importance of any established non-compliance with the provisions of the assessment benchmarks in the context of the 2018 Douglas Shire Planning Scheme (version 1.0).
92. [92]
    In my view, these matters, singularly or collectively, do not favour the exercise of the discretion to approve the proposal in the face of significant non-compliance with the assessment benchmarks.
93. [93]
    I have already found that the proposed development does not comply with the Codes when considered as a whole.  For the reasons outlined above, the proposal does not comply with the Rural Zone Code or Reconfiguring a Lot Code, even when considered holistically. It fails to meet the Rural Zone Code's purpose (ss 6.2.10.2(1)(a)&(c), (2)(a)&(b)) and overall outcomes (s 6.2.10.2(3)(a)&(c)), as it fragments good quality agricultural land, limiting proposed lots 2, 3, and 4 to small-scale or hobby uses rather than conserving areas for primary production like broadacre cropping or animal husbandry and this is further entrenched by efforts to minimise unavoidable adverse impacts on the larger proposed lot 1 and the smaller proposed lots 2, 3 and 4, through location of houses, buffers and operational matters.  This incorporates Strategic Framework provisions (e.g., s 3.6.3.1(1)&(3), s 3.8.4.1(3)) emphasising protection of agricultural viability. 
94. [94]
    In the joint planning expert report, Ms. Rayment acknowledges the planning principle of avoidance of rural land fragmentation and notes there is a “common thread” expressed throughout the assessment benchmarks of the planning scheme for rural land to protect rural land for primary production.  And in her testimony, she confirmed that “common thread” of avoiding fragmentation to protect agricultural productivity was a “long-term, forward planning strategy”.  Expert evidence from Mr. Thompson supports this, noting the land's suitability for sugarcane, horticulture, or grazing, which would be permanently alienated by fragmentation.
95. [95]
    The proposal also fails the Reconfiguring a Lot Code's purpose (s 9.4.7.2(2)(b)) and PO1, as the lots lack sufficient area, dimensions, and shapes for rural uses, with conditions like buffers further eroding usable land. Dr. Sutherland conceded the lots are too small for broadacre cropping. Non-compliance is fundamental, not resolvable by conditions. 
96. [96]
    I am not persuaded that the development is consistent with the surrounding pattern of development favouring approval of the proposal, where it further erodes larger rural holdings in favour of rural residential-style lots, contrary to the planning scheme's intent to prevent fragmentation. The land is in the rural zone, surrounded by a mix of rural (e.g., sugarcane cropping north of Mowbray River) and rural residential uses (south of Mowbray River Road), but historical subdivisions east of the site demonstrate the undesirable outcomes of fragmentation, including increased reverse amenity conflicts and lots unsuitable for agriculture. Mr. McClelland expressed concerns about farming cane near Mowbray River Road, citing difficulties and potential nuisances for neighbours (e.g., noise from machinery, dust, aerial spraying), deeming it not worth the minimal return.
97. [97]
    I accept Mr. Ovenden’s planning opinion that legacy smaller lots do not justify further erosion of good quality agricultural land, when he said in the joint planning expert report that:

“Legacy rural configurations in the locality do not justify continued fragmentation of productive rural, good quality agricultural land. The historic presence of smaller rural zoned lots does not provide the basis by which to further erode the remaining rural land. The site has been fragmented over time and is one of the remaining larger sized rural lots in the Shire and approval of this further reconfiguration means the area will become less rural and more rural residential in nature”.

98. [98]
    Aerial imagery and site views confirm the land's historical use as a single farming unit, not fragmented residentially. This is consistent with the planning scheme’s long-term strategy which seeks to protect areas of rural land from such fragmentation to maintain primary production capacity. 
99. [99]
    In my view, the proposal does not satisfactorily respond to the existing and intended character of the area. The proposal fails to respond to the area's rural character in the rural zone, intended to conserve areas of primary production, by introducing fragmentation that shifts toward rural residential uses, undermining the planning scheme's forward planning strategy. The intended character prioritises conservation of areas for use for primary production with good quality agricultural land for long-term agricultural viability, not subdivision into small lots.  Mr. Thompson's evidence highlights the land's Class A suitability for cropping despite topography, with features like Seasonal Creek common and non-alienating in cane farming. Mr. Ovenden emphasised that fragmentation would erode the rural character, in these stark terms:

“…it’s not about … some hypothetical; it’s saying this is … a long term challenge facing the rural sector of Douglas Shire, as it is most regional council areas, … and so, don’t fragment it. Don’t … waste what is a finite natural resource, …by carving it off, which inevitably will be used for rural lifestyle which is, you know, a big brick home and … you know, maybe running a couple of chooks…”. 

100. [100]
     I agree with Mr. Ovenden’s opinion.  I do not accept that the proposal maintains an appropriate use of the land under the rural zone.  Dr. Matthew conceded that larger lots have greater productivity, and subdivision consumes land via infrastructure.  Hobby farms, while possible, are "a bit of fun" and not primary production; they can occur without subdivision, but would be eroded by new dwellings. Ms. Rayment’s evidence underscores that the planning scheme seeks to protect rural land for primary production, not facilitate uses that undermine this purpose.  The proposal does not maintain appropriate rural uses, as it does not conserve areas for use for primary production, and instead further fragments good quality agricultural land, limiting useful areas beyond building envelopes and buffers in lots 2, 3 and 4 to hobby or small-scale activities.  The Rural Zone Code requires protecting all rural uses, including cropping, animal husbandry, and horticulture, but the proposal will alienate parts to cruel the potential for broadacre production.
101. [101]
     I think the proposal is opportunistic, rather than sympathetic, to the land’s features and topography, and surrounding development and land uses.  The proposal is unsympathetic to the land's key feature - its good quality agricultural land and topography suitable for primary production.  While the land is traversed by natural features like Seasonal Creek, neither the creek nor its vegetative state severs the land but instead it remains joined by existing crossings to allow farm connectivity so that the land is so fragmented to prevent its current and potential rural use as a well-sized area of primary production.  I preferred Mr. Thompson's evidence, including that such features are common in regional cane farming.  It seems to me that the potential reverse amenity from new dwellings on the smaller lots 2, 3 and 4, not mitigated fully by buffers, will further erode the area for rural production on lot 1, and the rural uses on the smaller lots 2, 3 and 4 will be limited and small, and the need for building envelopes and buffers, will alienate areas of primary production from the intended scope of rural uses. 
102. [102]
     Likewise, I do not accept that the proposal satisfactorily responds to the constraints on the land.  The proposal fails to respond to the primary constraint, the good quality agricultural land as a finite resource of Agricultural Land Class A, by fragmenting instead of concentrating such an area of primary production. The environmental constraints of vegetation and watercourses are overstated; they are not so fragmentary as to alienate the land as discussed above, and I do not accept that reversion is prohibitive. Buffers for amenity would further constrain usable land and underutilise areas of primary production. 
103. [103]
     While the proposal will provide further opportunities for residential dwellings at a time when there is a notorious shortage of housing in the community generally, there is no evidence that demonstrates any need for dwellings in a rural zone, and a broader community need does not justify non-compliance with rural protection policies.  The contention tends to prioritise rural residential uses over primary production, a by-product of fragmentation, which is inconsistent with the zone's primacy to conserve and avoid fragmentation of areas for use for primary production. 
104. [104]
     The proposal indeed has an available water supply, but I do see that this favours approval of the proposal.  It seems to me that the water allocation exists (for up to 50 hectares for cane irrigation), for the purposes of primary production and is consistent with the rural uses intended for the area where primary production requires good quality agricultural land. 
105. [105]
     The proposal's available waste collection is a neutral fact without basis in benchmarks and irrelevant to fragmentation harms.  It does not remedy non-compliance with rural protection. 
106. [106]
     I do not accept that the proposal can occur without any unacceptable adverse impacts or unacceptable town planning consequences. The proposal causes unacceptable impacts: permanent good quality agricultural land loss, fragmentation contributing to cumulative regional harms (e.g., reduced mill viability, land conflicts per the Regional Plan), and reverse amenity not fully conditional (paras 4, 7, 85). Planning consequences include broader harm from eroding finite resources amid industry transitions (e.g., Mossman Mill closure) (para 4).
107. [107]
     As Mr. Ovenden pointed out in his separate report:

“The responsible management of land use and development in the Rural zone is critical to the sustainability of agriculture. The agricultural sector has to deal with the vagaries of the state, national and international economic circumstances together with other variables such employment challenges and extreme weather events. Retention of the productive capacity of land and avoidance of fragmentation of GQAL is a fundamental cornerstone of planning for Queensland’s rural sector. It provides a measure of certainty against this uncertain backdrop and secures the finite resource for the long term”.

108. [108]
     He further highlighted that “chipping away” at productivity limits future options, contributing to a “broader flow-on effect” of cumulative impacts.  I agree.
109. [109]
     Having regard to the fundamental non-compliance with the provisions of the assessment benchmarks in the context of the respondent’s 2018 Douglas Shire Planning Scheme (version 1.0), I am of the view that the non-compliances are significant.  An approach of restraint is all the more important in the circumstances currently faced by the agricultural industry in the Douglas Shire as a result of the closure of the Mossman Mill, and the initial phases of the transition from sugar cane to a more diversified agricultural sector.  The proposal sounds in the loss of finite areas for use for primary production are conserved and fragmentation is avoided, which is further entrenched by the need to minimise impacts on the new lots through location, design, operation and management.
110. [110]
     I do not accept that all the circumstances of compliance and the other matters urged by the appellant warrant approval of the proposal in the exercise of discretion under s 60(2)(b) of the Planning Act.

Conclusion

111. [111]
     For these reasons, I affirm the Council’s refusal of the development application and dismiss the appeal.
112. [112]
     I will hear from the parties about any other consequential orders consistent with this decision.

Judge DP Morzone KC