Planning and environment – planning schemes –
construction of planning schemes – whether compromise of
provisions seeking to protect GQAL and restrict rural residential
development – whether sufficient planning grounds to approve
development despite conflict
Integrated Planning Act 1997, ss 3.5.5(2)(d),
3.5.14(2), 4.1.28, 4.1.50, 4.1.52, Schedule 10 Sustainable Planning Act 2009, s 819(2)
Facts: These were submitter appeals against
Council's decision to approve a development application for a
preliminary approval for a material change of use (overriding the
planning scheme – development consistent with the Rural
Planning Area) and a development permit for reconfiguration of a
lot (2 into 54 lots) made in respect of land located near
The proposed development sought to create 53 rural residential
lots with an area of between 3,300m2 and 6,630m2 on rural land
which had been used for agricultural purposes in the past. It was
mapped as good quality agricultural land
The effect of the proposed development would be to alienate the
land from use for agricultural purposes in circumstances where
provisions of the Council's planning scheme and subsequent
planning controls sought to preserve it as agricultural land.
The Co-Respondent argued that the land was compromised for
agricultural uses and ideally situated for rural residential
development and that there was a requisite need for the development
which justified the loss of land as GQAL.
The Far North Queensland Regional Plan 2009 –
2031 (FNQRP) came into force the year after
the development application was lodged. It had been in force for
over four years at the time of the appeal.
Council had also prepared a new draft planning scheme since the
development application was lodged, which had been publicly
The submitters argued that:
the proposed development conflicted with the planning scheme as
it was in conflict with the objectives which intended that GQAL be
protected and that rural residential development occur in areas
which were planned for that purpose;
there were not sufficient grounds to justify approval of the
proposed development despite the conflict;
the proposed development conflicted with and did not further
the outcomes of the FNQRP, to which substantial weight should be
the proposed development would conflict with and cut across the
implementation of Council's draft planning scheme;
there was no need for the proposed development; and
the proposed development was contrary to reasonable
The Respondent and Co-Respondent nominated a number of grounds
as justifying approval of the proposal despite the conflicts with
the planning scheme.
Decision: The Court held, in allowing the
The proposal was in significant conflict with the planning
Not only was there an adequate supply of rural residential land
within the shire, but there was also a clear planning strategy to
restrict rural residential development and preserve GQAL. The
planning grounds in favour of the application as a whole were
insufficient to justify the proposed development in light of the
significant conflict with the planning scheme.
The FNQRP was the pre-eminent plan for the region. It should be
given substantial weight in the determination of the appeal. The
proposal was in extreme conflict with the FNQRP.
The draft planning scheme was also unsupportive of the proposed
development. The draft planning scheme should be given weight.
Evidence that the community would have a reasonable expectation
that the land would not be developed for rural residential purposes
given the strong policy of restricting residential development and
preserving GQAL was accepted.
It was not the role of the Court to interfere with the planning
strategies evident in the relevant planning instruments in
circumstances where there was already a sufficient supply of rural
residential land near Atherton.
The appeals should be allowed.
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