Background
This was a developer appeal against Council's refusal of its development application seeking a MCU of its site north of Gatton for a gas-fired power station. The planning officers responsible for assessing the application had recommended approval.
The proposal was for a natural-gas fired peaking power station that could be brought on stream at short notice to provide electricity at peak demand times.
The first two judgments allowing the development were set aside by the Court of Appeal. In this instance, the Court did not have regard to the two previous P&E Court decisions.
The proposal was in the General Rural Zone of the Gatton Planning Scheme.
Pursuant to s. 3.5.14(2) of the (repealed) Integrated Planning Act 1997 (IPA), Robin QC DCJ held there was a conflict with the planning scheme but that Westlink had shown that there were sufficient grounds to justify the decision despite the conflict and that there were no unacceptable impacts.
Key issues in dispute
The specific issues for Robin QC DCJ to resolve were:
- Whether there was a conflict with the planning scheme
- If there was a conflict, whether sufficient grounds existed to justify the development. Most importantly, whether there was community or public need for the development;
- Whether the development had any unacceptable impacts, specifically:
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- Bushfire concerns; and
- Visual amenity concerns;
- The uncertainty over whether the development approval would be implemented;
- The extent of community opposition; and
- The "special purpose" issue and whether if the proposal was made by a public entity it would have been self-assessable.
Court's findings
Is there a conflict with the planning scheme?
His Honour held that there was a conflict with s. 4.11(2)(a) as well as s. 4.12(k) of the Gatton Planning Scheme.
The conflict with s. 4.11(2)(a) ("overall outcome" desired of rural landscape character) was not serious as its vision was already frustrated by the proximity of the site to other industrial facilities.
However, the conflict with s. 4.12(k) (use inconsistent with the purpose of the Rural General zone) was obvious. Westlink's proposed use fell outside the scope of the character of a rural area and so conflicted with the planning scheme.
His Honour took into account planning provisions that favoured the proposal (e.g. the South East Queensland Regional Plan 2009-2031 andthe IPA and its purpose of "ecological sustainability" in s. 1.2.1). His Honour also took into account the fact that the application had been referred to various State agencies (and approved subject to conditions) and that an ERA had been granted by DERM.
No weight was placed on the Council's draft strategic framework which His Honour thought may have been prepared with this appeal in mind.
Are there sufficient grounds to justify the development despite the conflict?
The point of "need" was held crucial to Westlink succeeding pursuant to s. 3.5.14(2) of the IPA.
Westlink's position was weakened by revisions of various official estimates that pushed demand of electricity downwards. The Court accepted that there was "depressed" demand for electricity.
However, His Honour was satisfied that there was a need for the development as it would assist in meeting and adding competition in respect of peak hour demand in South-East Queensland for electricity.
There were also positive environmental considerations as the development used relatively clean fuel in a favourable location. The development was close to the market so there was a reduced loss of electricity and was immediately adjacent to the Roma to Brisbane gas pipeline, a gas compressor station, an electricity substation and existing electricity easements.
The Court held that the relevant test to apply when considering need is to ask: "will the community be better or worse off with the proposal"? His Honour concluded that the community would be no better or worse off with the development.
His Honour believed that the development would ensure that demand for electricity, which fluctuates enormously, is always met. This was imperative as electricity could not be stored so had to be generated as needed. There was community need for sufficient electric power at peak demand times. Public and community need was assessed by consulting the needs of a wider community than Gatton (e.g. South-East Queensland and arguably beyond).
His Honour relied on the advantages Westlink's planning expert outlined. These advantages stemmed from the reduced cost of electricity to consumers. His Honour rejected submissions that Westlink would pocket these savings instead of passing them and that these were "private interests" and thus was not a ground that could be relied on for overcoming conflict.
He held that every development application owed its existence to the pursuit of the private interests of the applicant and that there were never any guarantees that benefits secured would be passed onto consumers. However, it could not be said that there would be no benefit from the entry of a new competitor.
His Honour concluded that "need" was a ground which strongly outweighed the conflict identified.
Are there any unacceptable impacts?
Were there bushfire concerns?
Keep Lockyer Rural Inc raised bushfire concerns supported by a rural fire officer who had not been nominated as an expert.
The Court emphasised that it placed great importance on considerations affecting the safety of people, living creatures, property and vegetation and the relevant risk of fire.
The land in question was not included in the planning scheme's overlay map showing bushfire risk of varying categories of seriousness.
All the experts' evidence did not require rejection of the proposal and the Court believed that appropriate conditions for the proposal would be formulated to prevent bushfire risk.
Did visual amenity impacts require refusal of the proposal?
Council argued that the development detracted from the rural character which currently dominated views from the highway through most of the Lockyer Valley region and conflicted with s. 4.11(2) of the planning scheme which sought to preserve Gatton Shire's landscape quality.
His Honour concluded that the current, general surrounds of the site was relatively "unsightly" and was industrial in character. He stated that the general surrounds were far from salubrious. The impact of the proposal was not unacceptable in the context of the existing visual impacts on the rural character. There were already "assaults" on the rural character of the area from other developments that left little to be protected or maintained.
His Honour concluded that there were no negative impacts except for the minor one of exposing eastbound users of the Warrego Highway to the tops of the development. His Honour stated that this view by motorists would last just a few seconds.
Would the proposal go ahead if approved?
It was argued by Council that the proposal was unviable and that the development would not be implemented if the approval was granted.
His Honour held that experience shows that not all approvals are acted upon. He could find no reason for thinking that Westlink's proposal was being pursued with any view other than getting it implemented. He thought that there have been cases which have been weakened by the existence of a particular "rival" approval (where the proposal was unlikely to be implemented and was just used to fend off a competitor) but that this was not the case here.
The neighbours' submissions and the extent of community opposition
His Honour held that the co-respondents by election (the neighbours) did not have evidence from a qualified expert to back up loss of land value claims even if this was considered to be an issue relevant to the Court's determination of the application.
The number of people in the community who opposed the development was "miniscule" and claims of widespread community opposition were incorrect.
The "special purpose" issue
Westlink did not advance this issue as it did not want to risk further delay and cost or face another overturn by the Court of Appeal.
His Honour made reference to the 2012 Court of Appeal decision which determined that the "special purpose" consideration could not be a "ground" for overcoming conflict.
However, His Honour was inclined to accept that the "special purpose" consideration impacted upon the seriousness of the conflict.
Conclusion
Robin QC DCJ allowed the appeal and adjourned the matter to enable the parties to work out appropriate conditions for the development approval that appropriately managed the impacts (specifically conditions with respect to bushfire risk).
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