Appeal - Application for a Development Permit – Conflict – Extent of Conflict – Sufficient Grounds to Justify Approval of Proposal Despite Conflict – s 3.5.14(2)(b) Integrated Planning Act 1997 – South East Queensland Regional Plan 2009 - 2031 – Gatton Planning Scheme.
Facts: This was an appeal against a refusal by the Respondent (Council) to grant development permits to the Appellant (Westlink) for:
- material change of use - electricity generation infrastructure; and
- environmentally Relevant Activity (ERA) no. 14 – electricity generation; and
- operational works – vegetation clearing.
The subject site was located within the Rural General Zone under the provisions of the Planning Scheme for Gatton Shire (Planning Scheme) and was located in close proximity to the Gatton Gas and Compressor Station, the Gatton Electrical Bulk Supply Substation and the Roma to Brisbane Gas Pipeline.
The original appeal went before the Planning and Environment Court in May 2011 and the Court allowed the appeal, partly on the basis that there was no conflict between the proposal and the relevant planning scheme as had been contended by Council.
Council subsequently appealed the decision to the Queensland Court of Appeal. It was held by that Court that there was a conflict with s. 4.1.2(k) of the Planning Scheme and the matter was remitted back to the Planning and Environment Court for determination.
Under the Planning Scheme, the Specific Outcomes for the Rural General Zone s. 4.12 (k) provided that:
"All other defined uses and other not defined uses, not specifically identified in Table 1 are not consistent with the purpose of the zone."
As Table 1 did not list electricity generation infrastructure as a defined use, therefore that use was impact assessable. It was contended by Westlink and endorsed by the Court of Appeal decision that had the proposal been proposed by a public entity it would have been characterised as a 'Special Purpose' and therefore would have been code or self assessable under the Planning Scheme
The Court sought to determine whether, given the conflict with the scheme, notably s. 4.12 (k), there were sufficient grounds to justify the approval of the proposal despite the conflict, pursuant to s. 3.5.14(2)(b) of the Integrated Planning Act 1997 (IPA).
Westlink argued that the conflict was minor. Council contended that the wording of s. 4.12(k) was unequivocal and attached significant importance on a use being characterised as consistent or not consistent. It argued that the Court's approach should be one of restraint with respect to the inconsistency in particular with regard to the scale of the proposal.
With respect to whether there were sufficient grounds to justify the approval, Westlink contended that the proposal:
- assisted in meeting the community's increasing demand for electricity;
- facilitated a more sustainable and fast start, peak power generation which would produce substantially less greenhouse gas emissions;
- was in an ideal location to supplement the growing public demand;
- would contribute to reducing the cost of electricity;
- would provide an economic stimulus for the local region; and
- would facilitate the outcomes sought by the South East Queensland Regional Plan 2009 – 2031 and advance the purpose of IPA to achieve ecological sustainability.
Council considered that the proposal would negatively impact the rural character and unacceptably impact views from the Gatton township.
Decision: The Court held, in allowing the appeal, that:
- looking at the Planning Scheme as a whole, s. 4.12(k) was aptly categorised as a default provision and a product of a decision of the authors of the scheme that any qualifying non-consistent use was not prohibited but would need to satisfy Council on good town planning grounds
- on the spectrum of a minor to major conflict, the conflict tended towards the minor rather than major
- there were sufficient grounds within the IPA s 3.5.14(2)(b) to justify approval of the proposal notwithstanding the conflict, namely:
- had the proposal been developed by a public utility it would qualify as a Special Purpose within the Planning Scheme, by which s. 4.12(k) would have had no application;
- the proposal would be of benefit to the community by assisting with meeting its increased demand for electricity;
- the proposal was ideally located to meet the public demand for electricity at peak times given its co-location with the Roma to Brisbane Gas Pipeline, along with the Gatton Gas Compressor Station and the Gatton Electricity Bulk Supply Sub-Station;
- the proposal was located amongst not incompatible land uses;
- the proposal was physically disconnected, well screened and separated from rural residential localities;
- the proposal would provide an economic stimulus to the community; and
- the proposal was consistent with the outcomes sought to be achieved by the South East Queensland Regional Plan 2009-2031 and purposes of both IPA and the Sustainable Planning Act 2009.
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.