Australia: 43/14 Baker and Another v Mackay Regional Council [2014] QPEC 53

P&E Court Updates – September 2014

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(Rackemann DCJ - 27 August 2014)
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Environment and Planning – appeal – reconfiguration of a lot – substantial shortfall in the area of proposed new allotments – where development application in conflict with planning scheme – whether sufficient grounds to justify approval despite the conflict.

Facts: This was an appeal against Mackay Regional Council's refusal of a development application for a development permit for a reconfiguration of one lot into three lots.

The subject site had an area of approximately 1.982 hectares with a long frontage of 210 metres to the eastern side of Rural View Drive, Mackay. An existing dwelling was situated approximately mid-lot, relatively close to the road frontage. The proposal was to subdivide the existing lot into three lots, two of which would be 6,600 m2 in area and the third lot would be 6,627 m2 in area. The existing dwelling was to be retained on the proposed lot 2. If approved, the proposal would facilitate the construction of two more dwellings on proposed lots 1 and 3. The proposed lot 3 had the building commencing 10 metres from the road frontage. The proposed lot 1 building envelope was further set back from the road frontage, but the topography was such that a house in that location would be readily visible, subject to filtering by vegetation.

The applicable planning scheme was the 2006 Mackay City Planning Scheme (Planning Scheme) and the application was code assessable under the Reconfiguration of a Lot Code (Code). The lot fell within the Mackay frame locality and was included in the rural residential zone under the Planning Scheme.

The overall outcomes for the rural zoned land in the Mackay frame locality included that development for residential accommodation was to be on large lots, generally of one hectare or more, with other activity being ancillary to the principal use of rural residential living. The Code required among other things, that each lot was consistent with the minimum area and dimensions set out in the Code, the minimum area for rural residential land being one hectare. In terms of dimensions, the minimum frontage and depth requirements for a lot were 60 metres each.

The principal issue in the case was whether there were sufficient grounds to approve the development application, notwithstanding the conflict which arose by reason of the substantial shortfall in the area of the proposed new allotments.

Decision: The Court held, in dismissing the appeal:

  1. The provisions in relation to minimum area obviously form an important component of the town planning provisions under the relevant planning scheme. That is not to say that an approval could never be given for a reconfiguration which did not conform to the minimum requirements. There was always the opportunity to establish that approval was warranted in a particular case notwithstanding.
  2. The creation of lots with areas considerably less than one hectare elsewhere did not constitute any precedent for approval of the subject application.
  3. While the depth of the site was such as to enable the appellant to achieve compliance with the minimum depth requirements, it was not sufficient to enable it to do so while achieving allotments of one hectare or thereabouts. The application of the development standards in this case, if one were to extend to this site the same discretion that had been exercised elsewhere for allotments which were very close to, but less than, the minimum requirement, would facilitate a maximum of one additional dwelling. The proposal for a third allotment would produce a noticeable difference and a difference which created a greater sense of clustering of houses in that part of the estate.
  4. The proposed allotments would provide a high level of amenity for those who decided to purchase the allotments and build their homes there and the separation distances with adjoining allotments would not unduly impact upon the amenity of the residents of those allotments. However, the incremental increase in the number of houses in that part of the estate would have an impact upon the overall character and amenity of the area.
  5. The Court did not consider that there was anything about the Planning Scheme or circumstances of the site as it currently stood that would suggest an expectation of subdivision in the way that was currently applied for.

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