Environment and planning – development control –
matters for consideration of consent authority –
consideration of planning schemes – application for
development permit for commercial groundwater extraction –
conflict with planning scheme – where Council's refusal
was upheld by the Planning and Environment Court – whether
primary judge erred in law
Facts: This was an application for leave to
appeal against the Planning and Environment Court's decision to
uphold Council's refusal of a development application for a
development permit for a material change of use for
"Commercial Groundwater Extraction" on land at Mt
During the appeal to the Planning and Environment Court, the
applicant had acknowledged that the proposed use conflicted with
the planning scheme. The question for the Planning and Environment
Court to decide was therefore whether "sufficient
grounds" existed to justify approval of the application
despite the conflict.
The primary judge found that the grounds relied upon by the
applicant were insufficient to overcome the significant conflict
with the planning scheme.
The planning scheme divided the planning scheme area into six
zones. The subject site was within the Tamborine Mountain Zone,
which was divided into 17 precincts. The subject site was within
the Village Residential Precinct.
Overall Outcome OO46 listed under the heading "Precinct
Intent" for the Tamborine Mountain Zone was relevant to the
Village Residential Precinct and stated that "Development
within the Village Residential Precinct i (sic)is typically urban
residential in character with a moderate to high level of amenity
on lots not served by a reticulated water and sewerage system. The
Precinct, in close proximity to the Business Precinct, provides the
principal location for additional urban residential
The applicant contended that the primary judge had erred in law
in finding that OO46 applied "across the Shire". The
applicant argued that the error led to the primary judge
unreasonably characterising the existing development in the Village
Residential Precinct as an area which did not "perfectly"
fit OO46 when there was no fit at all. The applicant also argued
that the error influenced the primary judge's decision that
there were not sufficient grounds to overcome what was regarded as
a significant conflict with the planning scheme.
The applicant further contended that the primary judge did not
take into account that various provisions of the Tamborine Mountain
Zone Code were general provisions applicable to any development
characterised as "Commercial Groundwater Extraction" and
that the proposed use did not include each of the elements
contemplated by that use definition.
The applicant also contended that the primary judge erred in law
by not taking into account the outcome of his detailed assessment
of the applicant's proposal against specific provisions of the
planning scheme, such as the Overall Outcomes for the zone.
Decision: The Court held, in refusing leave to
appeal with costs:
The applicant's argument in relation to OO46 placed too
much weight on the primary judge's use of the work
"Shire" rather than "Zone". The substantial
point was that the statement of precinct intent in OO46 did not
apply only to the area immediately surrounding the land. It was
plain that the primary judge appreciated that the relevant planning
scheme provisions related to the Tamborine Mountain Zone rather
than any other zone within the shire.
It was apparent that the primary judge's analysis of the
deficiency in the statement of precinct intent set out in OO46 did
not contribute to any error in the primary judge's conclusion
that the exclusion of Commercial Groundwater Extraction from the
consistent table of uses in the Tamborine Mountain Zone was
significant because it was the result of a deliberate policy
decision. The finding was open on the evidence.
The generality of the "default provisions" in the
Tamborine Mountain Zone Code did not of itself indicate that the
conflict found by the primary judge was not significant. The fact
that not all elements of the definition were in play was of no
significance in circumstances in which the proposed use
nevertheless fell within the definition.
The primary judge did take into account his assessment of the
proposal against the Overall Outcomes for the zone and other
provisions of the planning scheme.
The applicant had not established that the primary judge made
any error of law.
The appropriate order was that the applicant's application
for leave to appeal be refused with costs.
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guide to the subject matter. Specialist advice should be sought
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