Environment and planning – appeal – whether
proposed development conflicts with planning scheme – whether
sufficient grounds exist to justify approval despite conflict
– unstable steel hillslopes
Integrated Planning Act 1997 (Qld),s.4.1.52
Local Government (Planning and Environment) Act 1990
(Qld), ss. 4.4(5A), 5.1(6A)
Facts: This was a developer appeal against
Council's refusal of a development application for a
development permit for reconfiguration of a lot (1 into 12 lots,
common property and an access road), preliminary approval for a
material change of use for eight additional dwelling houses and a
request to change the location of the Hillslopes Development
Control Plan (DCP) Hillslopes B line under the
Planning Scheme for the Balance of the City of Cairns.
The disputed issues only related to proposed lots 3, 8 and 9. Each
of these lots were situated on steep terrain and contained a
building envelope with slopes of 50 degrees and above.
It was commonly accepted by all the experts that the slopes
within lots 3, 8 and 9 were unstable and that there was a high
chance that a landslide would occur within these lots.
The issues for the Court to resolve were:
whether the proposed development conflicted with the general
intent of the DCP; and
if the proposed development did conflict with the general
intent of the DCP, whether sufficient grounds existed to justify
approving the disputed lots.
Council argued that the proposed development conflicted with the
general intent of the DCP which provided that development should
only occur on slopes that were safe and stable. Further, Council
argued that the proposed development conflicted with s. 1.4.2 of
the DCP as it was impossible to make the land safe and serviceable
without complex engineering solutions.
The Appellant argued that the lots in dispute could be developed
for residential purposes as the homes would be stable and supported
by piers bored into bedrock.
The Appellant also argued that, if a conflict was found to
exist, sufficient planning grounds existed to justify the proposed
development. The Appellant submitted that a significant area of the
site was to be the subject of a vegetation covenant and that this
would have significant environmental values.
Decision: The Court held in allowing the appeal
(for development outside the disputed lots), that:
The proposed development was clearly in conflict with the
general intent of the DCP.
The proposed development also conflicted with s. 1.4.2 of the
DCP, in that complex engineering solutions were necessary to
overcome the constraints presented by the disputed lots.
The nature and extent of the conflicts with the provisions of
the DCP were significant.
The planning ground of being subject to a vegetation covenant
was not overly weighty as the subject site had a significant degree
of protection and the covenant itself contained a number of
exceptions which justified clearing of vegetation in certain
The benefits of the vegetation covenant as a whole to the
environmental integrity of the site were not sufficient to justify
approving the proposed development on the disputed lots, given the
clear conflicts with the DCP.
The appeal was allowed solely to the extent it related to
development outside prospective lots 3, 8 and 9.
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