Australia: 26/13: Westlink Pty Ltd ATF Westlink Industrial Trust v Lockyer Valley Regional Council & Ors [2013] QPEC 35

Planning and Environment case updates - July 2013 cases

(Robin QC DCJ - 31 July 2013)

Development application for a natural gas-fired electric power station in a rural area near Gatton – use inconsistent with purpose of zone – further conflict (considered minor in light of other development existing, approved and possible under the planning scheme) with the overall outcome desired of rural landscape character – need for proposal established – it would assist meeting and add competition in respect of peak hours demand in South East Queensland for electricity, using relatively clean fuel in a favourable location, conformably with what the South East Queensland Regional Plan 2009-2031 called for – relevance of falling overall demand for electric power – respondent Council argued proposal was not viable

Integrated Planning Act 1997 (Qld), ss 1.2.1, 3.5.14(2)(b)

Facts: This was a developer appeal against Council's refusal of its development application for a development permit for a Material Change of Use of its site north of Gatton for a gas-fired power station. The development was immediately adjacent to the Roma to Brisbane gas pipeline, a gas compressor station, an electricity substation and existing electricity easements. The planning officers responsible for assessing the application had recommended approval.

The appeal was the subject of two previous hearings in the Planning and Environment Court. In both instances, the appeal was allowed but the Court's decision was set aside by the Court of Appeal. This was the third time the appeal had been heard in the Planning and Environment Court.

The site was located within the General Rural Zone of the Gatton Planning Scheme. Council argued that the proposed development was inconsistent with the purpose of the Rural General Zone pursuant to s. 4.12(k). Further, Council argued that the development was inconsistent with the overall outcome for rural landscape character pursuant to s. 4.11(2)(a).

The issues for the Court to resolve were:

  1. Whether the proposed development conflicted with the planning scheme;
  2. If the proposed development did conflict with the planning scheme, whether sufficient grounds existed to justify the proposed development;
  3. Whether the proposed development had any unacceptable impacts; and
  4. Whether uncertainty over any development approval being implemented should be a consideration.

The (repealed) Integrated Planning Act 1997 (Qld) (IPA) was in force at the time the development application was lodged. Accordingly, the Court had regard to IPA in deciding the appeal.

Council argued that the development detracted from the rural character which currently dominated the views from the highway through most of the Lockyer Valley region and conflicted with Gatton Shire's landscape quality. Council referred to its draft strategic framework which provided that the character and scenic amenity values of the region should be protected and enhanced.

Council also argued that there was a falling overall demand for electric power and that the development was unviable and would never go ahead, even if approved.

It was argued that the Appellant would follow its own self-interest and pocket the savings that would result from the advantages of the proposal, rather than passing them on to consumers. As such, the grounds relied on by the Appellant for overcoming the conflict with the planning scheme was not a matter of public but of private interest.

The Appellant acknowledged that there had been downward revisions of various official estimates of demand for electricity. However, it submitted that the proposed development would still assist in meeting the community's increasing demand for electricity (particularly at peak times) in South East Queensland.

The Appellant highlighted planning provisions that favoured the proposal such as the South East Queensland Regional Plan 2009-2031 and the IPA and its purpose of ecological sustainability set out in s. 1.2.1. The Appellant also pointed out that the application was referred to various State agencies and approved subject to conditions and that an Environmentally Relevant Activity had been granted by the Department of Environment and Resource Management.

It had previously been argued by the Appellant that had the proposed development been made by a public entity it would have constituted a "Special Purpose" so that the Rural General Zone and s. 4.12(k) would have no application. The Appellant did not advance this issue in the current proceedings.

The submitters argued that the proposed development would result in loss of land value and that there was widespread community opposition to the proposal.

Decision: The Court held in allowing the appeal, that:

  1. There was a conflict with s. 4.11(2)(a) as well as s. 4.12(k) of the Gatton Planning Scheme.
  2. The s. 4.11(2)(a) conflict was not serious. However, the conflict with s. 4.12(k) was stark. The planning scheme did not want a power station on the site unless it fell under the definition of special purpose; its definition did not admit the Appellant.
  3. No weight was placed on the Council's draft strategic framework. The draft strategic framework may have been prepared with this appeal in mind.
  4. The proposal offered positive benefits by satisfying, without adverse impacts, a public and community need for security of power supply at peak times. The Appellant established the ground of need.
  5. The need for the development was strengthened by the site's locational advantages and its use of clean fuel.
  6. Public and community need was assessed by consulting the needs of a wider community than Gatton; South East Queensland generally was relevant, and, while it was unnecessary to look further, arguably locations beyond.
  7. Need was a ground which strongly outweighed the conflict identified.
  8. The general surrounds of the site were far from salubrious. It was relatively unsightly and shared an industrial character with a compressor plant that could not be disregarded. It would be silly to overlook the assaults on rural character of the area that were coming on various fronts, leaving precious little to be protected or maintained.
  9. No negative impacts were threatened except for the minor one of exposing eastbound users of the Warrego Highway for a few seconds to a view of the very tops of the exhaust stacks above the bush. This impact was not unacceptable in the context of the existing visual impacts on bucolic rural character.
  10. Experience was that not all approvals were acted upon. There was no reason whatever for thinking that the Appellant's proposal was pursued with any view other than getting it implemented; there was no suggestion that it represented some ploy to fend off a competitor.
  11. Even if loss of land value attributable to the advent of a power station was a planning consideration, there was no evidence of a qualified expert that was presented to the court to support the point.
  12. The number of opponents that spoke up was miniscule and claims of widespread community opposition were very wide off the mark.
  13. The special purpose consideration could not be a s. 3.5.14(2) ground but bore upon the seriousness of conflict.
  14. Every development application owed its existence to pursuit of the private interests of the applicant or an associate. There could be no guarantees that benefits secured would be passed on or shared. This was a feature of development applications generally. However, it could not be concluded that there would be no benefit from the entry of a new competitor (from which no harm would result).

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.

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