Australia: 25/14 Hymix Australia Pty Ltd v Brisbane City Council & Ors

P & E Court Updates - June 2014

(Rackemann DCJ - 27 June 2014)
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Planning and environment – proposal to re-establish the use of an industrial development previously developed within a green space and rural area as exempt development – where exemption had expired – whether undesirable entrenchment – conflict with the planning scheme – sufficiency of grounds – SEQRP regulatory provisions

Facts: This was an appeal against Council's decision to refuse a development application to facilitate the recommencement of a concrete batching plant and pre-cast facility use at Bald Hills. The uses were previously lawfully carried out as exempt development in conjunction with the Airport Link project.

The site was 29.47 hectares with existing disused facilities including a large pre-cast shed with associated mobile cranes, crane tracks and demountable buildings located towards the centre of the site. The site was adjacent to a waterway that linked wetlands of ecological significance.

The proposal was for a material change of use for a pre-cast facility and concrete batching plant that would supply concrete to the pre-cast facility and the general market and a preliminary approval overriding the City Plan.

The applicable planning scheme was the Brisbane City Plan 2000 (City Plan), under which the site:

  1. was located in a Rural Area;
  2. was part of a Waterway Corridor (subject to the Waterway Code and Biodiversity Code) as defined by the Flood Regulations Lines;
  3. was located on floodable land (subject to the Stormwater Management Code);
  4. contained wetlands (subject to the Biodiversity Code);
  5. was adjacent to Conservation and Parkland Areas; and
  6. was within the Green Space (Rural Component) Area.

The site also fell within the Regional Landscape and Rural Production Area (RLRPA) (outside of the Urban Footprint) under the South East Queensland Regional Plan (SEQRP).

The Council's grounds for refusing the proposal were spread across the following disciplines: terrestrial ecology; aquatic and wetland ecology; acoustics and air quality; geotechnical engineering; groundwater; hydrology; water quality; acid sulphate soils; traffic; visual amenity; need and town planning.

Following joint expert meetings in the course of the appeal, a number of the disputed issues were resolved, subject to the imposition of appropriate conditions. The remaining disputed issues related to conflict with the planning scheme, conflict with the SEQRP and its regulatory provisions, visual amenity, traffic, need and whether there were "sufficient grounds" to overcome conflicts with the City Plan and the SEQRP and its regulatory provisions.

Decision: The Court held, in allowing the appeal:

  1. That the fact that the use was formerly carried out (as exempt development) was not, in and of itself, justification for approval notwithstanding conflict.
  2. The new City Plan 2014, which had been adopted but was not yet in force, was deserving of weight.
  3. In relation to the visual amenity issues:
    1. The site had only a modest effect on the visual quality and landscape character in that part of Brisbane;
    2. The current state of the developed part of the site did not contribute positively to the green space values of the broader area, but the proposal would bring some overall benefit (and no significant adverse impact) from a visual perspective; and
    3. Refusal of the proposal would not necessarily, or even probably, lead to the developed part of the site being rehabilitated in a way which made a significant positive contribution to Green Space values.
  1. In relation to traffic, the use of the on-ramp by laden agitator trucks would be, at least, undesirable. That was a matter of relevance to be weighted in the ultimate decision as to whether external concrete deliveries should be permitted.
  2. In relation to the need issues:
    1. There was a strong public or community need and at least a significant planning need that supported the proposal for recommencing use of the pre-cast concrete facility, together with concrete batching plant, insofar as it supplied the pre-cast facility.
    2. Insofar as external deliveries were concerned, there was not, on a traditional analysis, a strong planning need to provide an approval at the subject site to facilitate the establishment of a concrete batching plant to service the external market. The balance lay in favour of refusing the external deliveries component, so as to obviate the undesirable traffic consequence.
  1. In relation to the conflict with SEQRP:
    1. The developed part of the subject site did not exhibit the desired values of the RLRPA. The departure from what was intended on the site (which was proximate to the Urban Footprint) would not do violence to the intentions of the RLRPA in that area more broadly and the subject proposal would, with the landscaping, rehabilitation and other works proposed, increase the values of the land, particularly beyond the developed part.
    2. The question was not whether a facility should be allowed to be located for the first time on a site within the RLRPA but whether a development which already existed in that area should be allowed to be reused in circumstances where to do so would bring benefits and increase the site's contribution to the values of the RLRPA.
  1. There were sufficient grounds to approve the pre-cast facility and batching plant (for the purposes of supplying the pre-cast facility) notwithstanding conflict with the planning scheme.

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