Australia: 63/11 Morris Corporation Pty Ltd v Whitsunday Regional Council

Planning and Environment case updates

(Durward SC DCJ - 30 September 2011)
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Staged residential development in rural zone – single person's quarters accommodation facilities – staged development intended to respond to future demand projections – whether orderly development – whether need established – efficacy of survey of township community attitudes – whether visual amenity impacts – whether adverse social and economic impacts – whether out-of-sequence development – whether DEOs compromised – whether Overall Outcomes for Rural Zone compromised – whether conflict with planning scheme Strategic Framework, Rural Zone Code and Short Term Accommodation Code – whether sufficient grounds to justify approval despite conflict – ss. 1.2.1, 1.2.2, 1.2.3, 3.5.5, 3.5.11, 3.5.14, 3.5.30, 4.1.28 and 4.1.52 Integrated Planning Act 1997 – ss. 350 and 819 Sustainable Planning Act 2009

Facts: This was an appeal against the Council's refusal of a development application for material change of use and reconfiguration of a lot for a staged single person's quarters (SPQs) accommodation facility (768 persons) and motel. The Council's grounds of refusal related to:

  1. The development compromised the achievement of the Desired Environmental Outcomes (DEOs) in the planning scheme;
  2. The development compromised the achievement of the Overall Outcomes for the Rural Zone;
  3. Conflict with the Residential Zone Code and the Short Term Accommodation Code;
  4. The potential social and economic impacts of the proposal;
  5. The proposal was considered to be out of sequence development; and
  6. Insufficient information had been provided addressing the current and future demand for this form of accommodation.

In relation to town planning matters, the Appellant argued that:

  1. The development was needed, it was suitably located on the outskirts of Collinsville, it was convenient to the town area and the mines, it would contribute to the local economy, it would support the mining industry and would not impact on the availability of rural land;
  2. SPQs were built to reflect the needs of shift workers. The site was self-supporting, there were no visual impacts, there was no impact on community health and safety, and it was not incompatible with development in the locality. The DEOs, which were set at a Shire-wide level, were not compromised by the development; and
  3. The proposed development complied with the Codes in the planning scheme, despite some "technical" conflicts.

The Council argued that:

  1. The proposed development would not contribute to or achieve environmentally sustainable development, it was not integrated into the urban fabric of the town, and it was a speculative development with significant planning consequences. The proposed development compromised the DEOs;
  2. There were alternative sites available in the locality, and the tavern and motel were inappropriate components of the development. It created a Residential Zone within the Rural Zone; and
  3. The development conflicted with the Codes in the planning scheme, and there were not sufficient grounds to justify approval despite the conflict.

In relation to social impacts of the proposal, the Council argued that the development would generate only limited benefits for the local community, that there was a lack of connectivity to the urban area, and that it would likely have very real and significant negative social impacts. However, the Appellant argued that the development was fundamentally consistent with the culture of the town and the broad patterns of people's way of life in Collinsville, it delivered benefits to the town community, met expectations of the community of a continuing role in the mining industry, and provided an SPQ development that was not unexpected or broadly opposed.

In relation to economic need, the Appellant contended for a present need for SPQ accommodation and an increase in the diversity of housing to meet project demand. The Council argued that there was no present demand for SPQ accommodation, the development was out of sequence and would not contribute to the growth and orderly development of the town because of its location and scale and the existence of alternative sites.

In relation to traffic and access, the experts agreed that there were no traffic capacity considerations or vehicle safety considerations which could reasonably preclude the subject development. However, there was disagreement between the parties' traffic engineers on the associated traffic impacts of the proposed development, the car parking arrangements, commercial vehicle movements, public transport requirements, access to the site, and pedestrian/cycling facilities.

In relation to the other areas of expertise, there were no points of disagreement as between the experts in the areas of visual amenity and infrastructure.

The Council alleged conflict with the planning scheme and asserted an absence of grounds that might overcome conflict with the planning scheme. The Appellant argued that if conflict was found to exist, it was "technical" conflict only, and there were a range of significant grounds to overcome the conflict.

The Court also considered the industry support for the proposed development and the issues raised in the submissions lodged with the Council during the public notification of the development application.

Decision: The Court held, in allowing the appeal and approving the development application subject to conditions, that:

  1. The proposal would provide direct and indirect economic benefits to the local area. There were no unacceptable infrastructure impacts. It provided a different form of accommodation, increased housing choice, and potentially reduced any negative impact on housing affordability in Collinsville.
  2. The proposal did not compromise the achievement of any relevant DEOs in the planning scheme.
  3. While the use was not a "rural purpose" and therefore it was "inconsistent" in the Rural Zone, that inconsistency was to be measured against the use being an essential component of the mining industry, which was an activity contemplated in the Rural Zone. The site was not GQAL, and the proposal would not negatively impact on grazing or other rural activities.
  4. Many of the Specific Outcomes in the Rural Zone Code, the Residential Zone Code and the Short Term Accommodation Code were not relevant, but those that were relevant were adequately met by the proposal.
  5. While there may be other suitable locations for the proposed development, this appeal was about a development on the subject land and nowhere else. Alternative sites were irrelevant. It is not the function of the Court to 'determine' whether better sites do or do not exist.
  6. Collinsville was historically and inextricably linked to the mining industry. There were no social issues that would warrant the refusal of the development application.
  7. In determining potential conflict, particularly in the context of "need", the fact that a particular development proposal was considered to be inappropriate, inconsistent with or a use not contemplated by a planning scheme, is a relevant matter.
  8. It is the need of the community that is relevant, not that of the appellant. A thing is needed if its provision, all matters being considered, improves the physical wellbeing of the community.
  9. There was no existing, readily available capacity to accommodate additional transient workers in the area. Community need in the relevant planning context was sufficiently established to allow the appeal.
  10. There were no traffic reasons to warrant refusal of the development application.
  11. In relation to visual amenity, suitable landscaping conditions could be imposed on the development. There were no visual amenity reasons to warrant refusal of the development application. The concept of amenity is wide and flexible. It is not confined to visual matters but may extend to include emotional or sentimental feelings that people may have about a place. Amenity is not limited to objective physical phenomena but also includes valid perceptions likely to be held by an ordinary person in the locality.
  12. There were no infrastructure reasons to warrant refusal of the development application.
  13. In relation to conflict and sufficient grounds, construction should be practical in the context of the planning scheme as a whole which best achieves the apparent purpose and objects of the scheme, and a conflict alone may not have the effect of ruling out a particular proposal. The use of the term "sufficient" connotes grounds which would establish positive betterment that would not otherwise be achieved and which justify departure from the planning scheme.
  14. The "compromise" test is separate from the "conflict" test. "Conflict" is considered against substance of the planning scheme, not against a provision in isolation from the whole. The conflict must be plainly evident.
  15. There was conflict with the planning scheme, albeit one that was arguably "technical". However, there were sufficient grounds to overcome the conflict with the planning scheme. There was a need for the development, and there were community benefits that would flow from the Appellant's operation of the proposed facility to the town and its community.
  16. The site was appropriate for the proposed development and its approval was supported by the evidence. Conditions were to be a matter of agreement or for determination by the Court in a further hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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