Everson DCJ

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Appeal against refusal – conflict with planning scheme – conflict with strategic plans – sufficient grounds – complex engineering solutions – minor earthworks – visual amenity – ss. 4.1.52, 6.1.28, 6.1.29 and 6.1.30 of the Integrated Planning Act 1997 – ss. 4.4(3)(b), 4.4(5A) and 5.1(6A) of the Local Government (Planning and Environment) Act 1990 – s. 819 of the Sustainable Planning Act 2009

Facts: This was an appeal against the Council's refusal of a development application for material change of use ("MCU") and reconfiguration of a lot ("ROL") to create 30 residential lots with dwelling houses plus park. The 18.8 hectare area of land was at Taylor Point, which was well vegetated coastal headland. The Appellant proposed to develop the site in an environmentally sensitive way with building location envelopes, covenants and dedication of land as publicly owned reserves for beach protection and coastal management purposes.

The development application was lodged under the provisions of the Integrated Planning Act 1997 ("IPA") and was to be assessed against the 1996 Planning Scheme. The IPA provided that the MCU and ROL components of the development application were both to be assessed and decided pursuant to the relevant provisions of the Local Government (Planning and Environment) Act 1990 ("PEA"). Relevantly, the development application required refusal if it conflicted with any relevant strategic plan or development control plan, and there were not sufficient grounds to justify approving the application despite the conflict.

The delays in the IDAS process meant that the Cairns Plan 2005 took effect during the assessment of the development application, as did the subsequent Cairns Plan 2009. The zoning under these planning schemes meant that residential development was contemplated in some areas, but further development was not to occur in others. The land was also included in the urban footprint of the Far North Queensland Regional Plan 2009-2031 ("FNQRP").

The Respondent Council and the Second Co-Respondent by Election (Save Our Slopes Community Action Group Inc) argued that the proposed development was not contemplated by the planning controls for Taylor Point and that it represented an overdevelopment of the subject site which would have unacceptable environmental and visual impacts.

The Appellant submitted that the proposed development addressed all legitimate concerns of the Respondent and Second Co-Respondent by Election in terms of the impacts on the visual amenity of Taylor Point and the significant vegetation and ecosystems. The Appellant also raised a number of grounds which it said justified approving the proposal despite any conflicts with the relevant planning controls.

Decision: The Court held, in dismissing the appeal, that:

  1. The provisions of the 1996 Planning Scheme indicate that the nature and scale of the proposed development was not in accordance with the Strategic Plan.
  2. The nature and extent of the conflict with the Development Control Plan in the 1996 Planning Scheme was flagrant as many requirements had not been complied with.
  3. It was appropriate to give significant weight to the Cairns Plan 2009 and the relevant provisions of the FNQRP, which effectively preclude the proposed development. The lack of support for the proposed development in the Strategic Plan and Development Control Plan under the 1996 Planning Scheme was reinforced by the current planning provisions and the parts of the DNQRP relevant to the site.
  4. Having regard to the provisions of the 1996 Planning Scheme, the skyline and ridgelines as viewed from the beach and foreshore would be adequately protected in the circumstances. The proposed development would be subservient to the surrounding landscape and unobtrusive when viewed from any distant viewpoint (with the exception of a few allotments).
  5. The proposed development would not have significant impacts on the significant flora values present on the site. The vegetation management plan would control environmental weeds and would be beneficial in protecting the native vegetation. The proposed development would ensure the protection of the essential vine forest, which was the most significant feature on the site in terms of vegetation.
  6. In weighing the planning grounds with the clear planning intent in the Strategic Plan and Development Control Plan of the 1996 Planning Scheme, on balance the planning grounds were not sufficient to justify approving the development application notwithstanding the conflict. The benefits of the proposed development did not warrant derogating from the very clear planning intent that Taylor Point was not to be developed for residential purposes in the manner proposed.

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