Court of Appeal, Brisbane (Holmes and Muir JJA and Mullins J - 21 June 2013)

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 appeal

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 [2012] 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 law.

The applicant alleged that:

  1. 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.
  2. 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:

  1. 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.
  2. The primary Judge did not err by substituting other words for those of the scheme or by paraphrasing or applying a gloss to the scheme's words.
  3. 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.
  4. 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.
  5. The Applicant having failed to succeed on any grounds of appeal, the application should be refused with costs.

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.