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
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
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
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
Decision: The Court held, in dismissing the
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
The creation of lots with areas considerably less than one
hectare elsewhere did not constitute any precedent for approval of
the subject application.
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.
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.
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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Whilst option to purchase clauses are more in commercial properties, they are now being included in residential leases.
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