Environment and planning – environmental planning
– planning schemes and instruments – Queensland –
where Respondent refused development application for
reconfiguration – where appeal to Planning and Environment
Court dismissed – whether the primary Judge erred in
determining conflict with the planning scheme- whether there was an
error of law sufficient to warrant the granting of leave to
Sustainable Planning Act 2009 (Qld), s 498
Facts: The applicant had lodged a development
application for a development permit for the reconfiguration of a
935 hectare lot into 16 lots in August 2004. The land was located
46km to the south of Gladstone.
Council refused the development application and the applicant
appealed to the Planning and Environment Court. That appeal was
dismissed by the Court in December 2012 (Serafini v Gladstone
Regional Council & Anor  QPEC 83).
The applicant sought leave to appeal to the Court of Appeal
against the Planning and Environment Court's decision.
Pursuant to s. 498 of the Sustainable Planning Act 2009, the
available grounds of appeal were limited to error or mistake of
The applicant alleged that:
The primary Judge erred when, in determining whether the
proposal conflicted with s. 1.5.3 of Council's Transitional
Planning Scheme, instead of applying the tests identified in the
scheme (whether the "subdivision clearly satisfies a
demonstrated need" and whether a proposed development
"truly reflects a demonstrated demand"), he applied his
own test of whether "a sufficient level of need or
demand" had been demonstrated.
The primary Judge erred in his finding that the Court "was
not taken to any part of [the Council's Rural Living Strategy]
that indicated a level of unsatisfied need or demand and lack of
supply of land of the type intended to be produced here".
Decision: The Court held, in refusing
application for leave to appeal, that:
In relation to the first issue, in referring to "a
sufficient level of need or demand", the primary Judge was not
purporting to substitute a requirement of his own devising for the
requirements of the scheme. He was merely finding that it had not
been proved that the proposed subdivision "clearly satisfie[d]
a demonstrated need" or that it "truly reflect[ed] a
demonstrated demand" so as to meet the requirements of the
scheme. In other words, the need or demand shown was not sufficient
to satisfy the tests under consideration.
The primary Judge did not err by substituting other words for
those of the scheme or by paraphrasing or applying a gloss to the
In relation to the second issue, the observation of the primary
Judge, when taken in context, was to the effect that having
considered the Strategy document, he saw little or no evidence of
need or demand for the development of lots having the
characteristics of the subject land. It was apparent from the
primary Judge's reasons that he did in fact given consideration
to the terms of the Strategy.
If the primary Judge did err in his findings in respect of the
Strategy, the error was one of fact and not of law, as required by
the Sustainable Planning Act 2009. Accordingly, the ground
was not made out.
The Applicant having failed to succeed on any grounds of
appeal, the application should be refused with costs.
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