Planning and environment – appeal against refusal – town planning - application under transitional planning scheme – weight to be afforded to existing planning scheme and draft planning scheme – State Coastal Management Plan 2001 – Draft Coastal Plan State Planning Regulatory Provision 2012 – Coastal Plan State Planning Regulatory Provision 2013 – Temporary State Planning Policy 2/12 – Draft State Planning Policy – ecological significance – Coastal processes, erosion and storm surge – need, economic, community and social benefit – sufficiency of planning grounds or grounds to warrant approval
Integrated Planning Act 1997 (Qld), ss 3.3.15, 3.5.5A,
3.5.14A, 4.1.52(2), 6.1.29, 6.1.30
Sustainable Planning Act 2009 (Qld), ss 19(1), 43
Local Government (Planning and Environment) Act 1990 (Qld), ss 4.4(3), 4.4(5), 4.4(5A), 8.2(1)
Coastal Protection and Management Act 1995 (Qld), ss 12, 71
Statutory Instruments Act 1992 (Qld)
Vegetation Management Act 1999 (Qld)
Nature Conservation Act 1992 (Qld)
Facts: This was an applicant appeal against the Respondent's refusal of an application for a preliminary approval for a material change of use for an integrated resort/commercial village and residential community and a request to vary the effect of a local planning instrument for the land. The application related to land referred to as RS2, at Rainbow Beach and Inskip Peninsula on the Cooloola Coast (the Land).
The application was made pursuant to the Integrated Planning Act 1997 (Qld). The development application for the preliminary approval for material change of use was made during the currency of the Council's superseded 1997 Transitional Planning Scheme (Superseded Planning Scheme). The Land was included in the Rural Zone where commercial premises, hotel, multi-unit accommodation, shop and shopping centre were prohibited development.
The application was refused by the Respondent at the direction of the Co-Respondent, the Chief Executive, Department of Environment and Resource Management (DERM), which was a concurrence agency for the application. The Co-Respondent directed the refusal due to inconsistencies with elements of the State Coastal Management Plan (SCMP), a statutory instrument created under the Coastal Protection and Management Act 1995, particularly Policies 2.1.2 (Settlement pattern and design), 2.8.1 (Areas of state significance [natural resources]) and 2.8.3 (Biodiversity). The Co-Respondent submitted that:-
- the Land had environmental values which significantly diminished its development potential; and
- the development would cause serious conflicts with the planning scheme.
A number of individual and organisational submitters elected to join as Co-Respondents and added to the grounds of refusal. The issues in dispute at the hearing related to:-
- town planning;
- need and benefit;
- flora, fauna and biodiversity;
- landscape character and natural amenity;
- geology and geomorphology;
- coastal processes, erosion and storm surge;
- waste water reuse and ground water;
- beach access;
- bushfire management; and
- the sufficiency of grounds or planning grounds to warrant approval.
The Court considered the Superseded Planning Scheme and the SCMP
which were in force at the time of the development
The Court also considered the following later statutory planning documents:-
- Council's 2005 planning scheme (Current Planning Scheme);
- the Wide Bay Burnett Regional Plan (2011);
- State Planning Policy 3/11 (SPP 3/11) and the Queensland Coastal Plan (February 2012);
- Temporary State Planning Policy 2/12 (August 2012);
- the Draft Coastal Protection State Planning Regulatory Provision (October 2012) (DCPSPRP);
- The Coastal Protection State Planning Regulatory Provision (April 2013) (CPSPRP);
- Council's draft planning scheme (Draft Planning Scheme); and
- draft State Planning Policy.
The Court considered the weight to be provided to the relevant planning instruments, including the Superseded Planning Scheme, Current Planning Scheme and Draft Planning Scheme.
The Superseded Planning Scheme, Current Planning Scheme and Draft Planning Scheme all contemplated that the Land was to remain undeveloped unless and until development could be shown to be justified having regard to, amongst other things, the Land's ecological significance.
Under SPP 3/11 the Land was located in a storm-tide inundation and an erosion prone area. The coastal hazard areas were identified by taking into account the projected impacts of climate change to the year 2100. The DCPSPRP provided that, to the extent practicable, erosion prone areas were to remain undeveloped.
A portion of the Land was mapped under the CPSPRP as subject to "erosion due to storm impact and long-term trends of sediment loss and channel migration" on the erosion-prone area map and consequently fall within the definition of a "high risk area". The Appellant accepted the proposition that the proposal should make allowance for the 100 year ocean surge level.
The Land was also subject to the Conservation Significant Areas Code (CSAC) of the Current Planning Scheme which required that areas identified as having conservation significance were protected from development, or the effects of development, which may cause degradation of those areas. The proposal envisaged substantial development in parts of the Land which it had been demonstrated provided habitat for rare or vulnerable fauna and near threatened flora.
The Appellant submitted that the specific outcomes of the CSAC should be read in conjunction with other provisions of the Current Planning Scheme, in particular the Coolooba Coast Planning Area Code, which contemplated that the Land might be capable of urban development in the event that the conflicting issues were resolved.
It was submitted by the Appellant that if the development conflicted with either the Superseded Planning Scheme or the Current Planning Scheme, there were "sufficient planning grounds" or "sufficient grounds" to justify approval despite the conflict.
The Court considered whether there was a need established within a reasonable planning horizon for the scale of the proposed development and the weight to be applied where there is a failure to establish a sufficient public or community need for a development.
The Appellant relied on the benefits from the sewerage upgrade and the 'whole of community' disposal as a ground for approval.
The Co-Respondent referred to R v Brisbane City Council; ex parte Read and submitted that the offer to dispose of effluent beyond that generated by the Land was an irrelevant consideration.
Decision: The Court held, in dismissing the appeal, that:
- The Court could have regard to the Draft Planning Scheme.
- There were no bushfire management, beach access, wastewater reuse or groundwater issues warranting refusal.
- The proposal would not have an unacceptable impact on landscape character and natural amenity.
- The impact of the proposal on the value of the Land to geosciences formed part of its likely adverse impact, but was not determinative.
- The proposal:-
- would adversely impact on flora, fauna and biodiversity values;
- would conflict with the provisions of various planning documents, including the Superseded Planning Scheme, the Current Planning Scheme and the Draft Planning Scheme
- was not supported by sufficient economic, community or planning need and the grounds raised by the Appellant were not sufficient to warrant approval otherwise.
- The weight to be given to the issue of need will be a relative concept to be given greater or lesser weight depending upon the circumstances.
- The absence of need will not necessarily be fatal.
- The failure to establish a sufficient public or community need in this case was given determinative weight as the application was made in advance of an established need.
- There was no commitment in the relevant planning documents for the Land to be developed for urban purposes subject only to the preservation of a particular area of the Land.
- The Court had discretion to adjourn the matter to allow the Appellant to amend the proposal and attempt to resolve issues, however this was not a case where there was a discrete issue which could be resolved.
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