Environment and Planning – appeal – conflict
with planning scheme – grounds – land subject to
flooding – whether proposals for evacuation in the event of a
flood justify residential development on the land
Facts: This matter concerned an appeal against
the Logan City Council's (Council) decision to
refuse a development application for a material change of use for
four houses in respect of land at 41, 45, 47 and 49 Bompa Road,
Waterford West (Land).
The Land was located in an established residential area, with
the lots being created in or about 1965. The Land was in the
immediate vicinity of the Logan River, and was subject to the flood
plain area management code which was part of the 2006 Logan
Planning Scheme (Planning Scheme).
The Council's Temporary Local Planning Instrument 2013
(TLPI 2013) and Council's draft planning
scheme (Draft Planning Scheme) which came in to
effect, or were advertised in 2014, being over 2 years after the
Council's decision, were also considered by the parties.
The key issues in dispute between the parties included:
The extent of conflict with the Planning Scheme in effect at
the time the application was made;
The weight to be given to the TLPI 2013;
The weight to be given to the Draft Planning Scheme;
Whether there were sufficient grounds to justify the approval
of the proposed development despite the conflicts with the relevant
Decision: The Court held, in dismissing the
The TLPI 2013 reflected the Council's current position with
respect to planning for flooding and should be given considerable
weight. It was significant that the relevant provisions were
replicated in the Council's Draft Planning Scheme.
The proposed development was not only substantially in conflict
with the identified specific outcomes of the flood plain management
area code in the Planning Scheme, but it also was in substantial
conflict with specific outcomes in the TLPI 2013.
here there was no assurance that prospective residents would
evacuate in a timely way, the desirability of utilising otherwise
appropriate residential land was insufficient on balance to justify
approval of the development application, notwithstanding the
significant conflicts which related not just to desirable planning
outcomes generally but to minimising risks to human safety in
he desirability of utilising otherwise appropriately located
residential lots for residential development did not on balance
justify approval of the development application.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).