Australia: 28/12 Lewis v Townsville City Council & ORS [2012] QCA 99

Planning and environment case updates

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Whether there was an error of law sufficient to warrant the granting of leave to appeal under Sustainable Planning Act 2009 (SPA) s 498 - Whether the primary judge erred in the construction of Integrated Planning Act (IPA) s 3.5.14(2) – Whether the primary judge made a factual finding without evidence – Whether the primary judge referred to any irrelevant considerations – Whether there was denial of procedural fairness – Whether the primary judge failed to have regard to material evidence in determining the noise issue – Whether the correct test was applied when deciding that the proposed use was in conflict with the planning scheme – Whether the primary judge failed to give proper consideration to the applicant grounds of appeal.

Facts: This was an application for leave to appeal to the Court of Appeal from a decision of the Planning and Environment Court.

The applicant conducted a business carting raw materials to and from locations in the Townsville region. The applicant made a development application for a development permit for a material change of use for a Transport Depot and Landscape Supplies combined with an environmentally relevant activity for a motor vehicle workshop in respect to land which he owned at Black River Road, near Townsville.

At the relevant time, under the provisions of the City of Thuringowa Planning Scheme, the applicant's land was in the Rural 40 Sub Area of the Rural Planning Area Code. Under these provisions, the material change of use for the landscape supplies and the Transport Depot were Code Assessable and Impact Assessable respectively.

On 27 March 2010, Council refused the application on the basis that the proposal:

  • compromised the achievement of the Desired Environmental Outcomes (DEO's) in the planning scheme contrary to s 3.5.14(2) of the Integrated Planning Act 1997 (Qld) (IPA);
  • would result in a incompatible and inconsistent use in the location, contrary to the Character Statement of the Rural Planning Area; and
  • was in conflict with Performance Criteria P6 and P7 of the Rural Planning Area Code.

The applicant appealed to the Planning and Environment Court on the grounds that the achievement of the DEO's and Character Intents for the Rural Planning Area within Council's planning scheme were not compromised by the proposal and that the site was directly accessible to the established haulage routes and nearby quarries. The applicant contended that amenity issues related to noise, dust and traffic could be effectively managed through suitable conditions and that there was an identified community need for such a proposal in this locality.

On 1 June 2011, the primary judge dismissed the appeal on the basis that the proposal compromised and conflicted with the achievement of Council's DEO's, Character Intents and Rural Planning Area Code contrary to s 3.5.14(2) of the IPA. It was considered that the proposed uses were industrial and not rural in nature, and that there were viable alternative sites in industrial locations.

In respect to need, the primary judge was not satisfied that any planning need had been established by the applicant, and furthermore that there had not been suitable evidence provided to demonstrate that alternative sites had been considered.

The applicant applied for leave to appeal to the Queensland Court of Appeal under s498 of the SPA on a number grounds, specifically that:

  • the primary judge had misconstrued s 3.5.14(2) of the IPA by misunderstanding the distinction between compromising the achievement of a DEO and conflicting with the planning scheme under s 3.5.14(2)(a);
  • the primary judge had regard to an irrelevant consideration in respect to the question of community need;
  • the evidence produced with respect to noise and dust emission management had not been properly considered;
  • only some of the factors relating to character had been considered in respect to determining the extent of conflict within the planning scheme;
  • errors had occurred in relation to the interpretation of industrial and rural land uses within the planning scheme;
  • proper consideration to all of the grounds submitted by the Appellant to justify the granting the appeal despite the conflicts with the planning scheme had not been considered.

Decision: The Court held, in refusing leave to appeal, that:

  • the terms of s 3.5.14(2) of the IPA made clear the legislature intended that decisions on development applications distinguish between, on the one hand, applications which compromise the achievement of relevant DEO's and must be refused; and on the other, development applications which conflict with the planning scheme, but sufficient planning grounds exist to justify the approval despite the conflict
  • a development application which can not exist together with the achievement of a DEO must compromise the DEO
  • the primary judge was correct in his finding that the proposed development both compromised the achievement of the relevant DEO's under s 3.5.14(2)(a) of the IPA and conflicted with the planning scheme with insufficient grounds to justify granting the development application despite the conflict (s 3.5.14(2)(b) of the IPA)
  • there was clearly an issue at the hearing and relevant under the planning scheme about whether a viable alternative location existed for the proposed development. That issue was capable of indirectly raising an aspect of need in the sense of economic supply and demand. The applicant's contention that the primary judge erred in respect to the determination of community need was not made out
  • the primary judge was entitled on the evidence to conclude that the noise issue remained a real concern which may not have been amenable to appropriate conditions
  • the primary judge had not denied the applicant an opportunity to adduce evidence about the noise issue and had made it clear in his reasoning, that he was doubtful as to whether the conditions imposed to alleviate noise were sufficient to eliminate potential impacts from noise upon the rural amenity
  • the primary judge's reasons did not suggest that that he failed to consider both existing and planned character, and also the impact of existing development approvals on that character
  • the conclusions, that the development application was in conflict with the planning scheme; that the applicant did not demonstrate sufficient grounds to justify approval notwithstanding that conflict; and that the planning scheme DEO's four and six were compromised by the proposed development, flowed rationally from the view of the evidence taken by the primary judge.

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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