Australia: Court finds significant conflicts with planning scheme and that private economics are not sufficient grounds to approve development despite the conflicts

IN BRIEF

The case of Althaus Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 28 concerned an appeal by the Appellant, Althaus Enterprises Pty Ltd, against the decision of the Ipswich City Council to refuse an application for a development permit for a material change of use to establish townhouses on land at 15 Stanley Street, Goodna in Ipswich.

The issues in dispute were as follows:

  1. whether the proposed development conflicted with the Ipswich City Planning Scheme 2006 to the extent that it was inconsistent development in the residential low density zone, inconsistent with the existing and desired character of the area and an overdevelopment of the subject land; and
  2. whether there were sufficient grounds to approve the proposed development despite the conflict with the Ipswich City Planning Scheme 2006.

In ultimately finding in favour of the Council and dismissing the appeal, the Court held that the proposed development was in significant conflict with the Ipswich City Planning Scheme 2006 and that there were no grounds in favour of the proposed development which were remotely sufficient to justify approving it despite the conflicts.

PROPOSED DEVELOPMENT CONFLICTED WITH THE IPSWICH CITY PLANNING SCHEME 2006 PROVISIONS REGARDING DENSITY

The density of the proposed development was 38.8 dwellings per hectare. It was uncontentious that the Ipswich City Planning Scheme 2006 designated the subject land as being within the residential low density zone and that the proposed development was identified under the residential low density zone code as an "inconsistent use" and an "undesirable development", as it "[involved] a dwelling density which exceeds the density range for the relevant Sub Area" (at [11]), being 10 to 15 dwelling per hectare.

The Appellant's submission was that the Ipswich City Planning Scheme 2006 should be read as a whole when considering the question of conflict. In this regard, the Appellant argued the following:

  1. the residential low density zone permits single residential development as a consistent use if situated on a lot of 450m2, which equates to a density of 22 dwellings per hectare; and
  2. the density of the proposed development was entirely consistent with providing a mix of housing types, particularly infill residential development within 500m of an existing centre, which was contemplated within the specific outcomes of the Ipswich City Planning Scheme 2006.

In response to this argument, the Council submitted that there was no justification for ignoring the plain meaning of the Ipswich City Planning Scheme 2006 and seeking to qualify it in circumstances where no such qualification existed.

In considering the issue, the Court affirmed (at [15]) that the correct approach for the construction of a planning scheme was that enunciated by the High Court in Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, namely:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'.
...
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
...
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. ..."

The Court also had regard (at [17]) to the case of Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGER 63 whereby the Court held that:

"[where] the effect of a [particular section] of a planning scheme is that the proposed use is 'not consistent' with the purpose of the zone for which it was proposed ... In the absence of any other provision which qualifies the operation of [that particular section] in relation to the proposed use, that [particular section] requires the conclusion that a decision to approve the application is a variance with the Planning Scheme."

To this end, the Court concluded that, while the different treatment of single residential development in the Ipswich City Planning Scheme 2006 was curious, it did not warrant a departure from the plain meaning of the nominated density range. The proposed development, which involved a density two and a half times that anticipated in the residential low density zone, was in significant conflict with the Ipswich City Planning Scheme 2006.

PROPOSED DEVELOPMENT CONFLICTED WITH THE IPSWICH CITY PLANNING SCHEME 2006 PROVISIONS REGARDING EXISTING AND DESIRED CHARACTER

The relevant provisions of the Ipswich City Planning Scheme 2006 required the proposed development to "reflect the established built character, maintain amenity, and protect and enhance important townscape and landscape elements within local areas, having regard to dwelling density".

In this regard, the Appellant called evidence from both a town planner and an architect, while the Council simply relied on evidence from a town planner.

Under cross-examination, the Appellant's town planning expert conceded that the proposed development would "present an appreciable difference in terms of building bulk, scale and density ... and that there would be a difference in character as a consequence". The Court subsequently found that the proposed development significantly conflicted with the existing and desired character for the area.

PROPOSED DEVELOPMENT REPRESENTED AN OVERDEVELOPMENT OF THE SUBJECT LAND

The Council submitted that the proposed development conflicted with the specific outcomes of the residential code, which could not be cured by the imposition of conditions. In particular, the Council contended that the proposed development conflicted with the provisions of the residential code pertaining to street frontages, entry access, and landscaping requirements.

Noting that the Appellant had not tendered any plans or visual representations of the proposed development, the Court held that the proposed development was in significant conflict with the residential code and was an overdevelopment of the subject land.

THERE WERE NOT SUFFICIENT GROUNDS TO APPROVE THE PROPOSED DEVELOPMENT

The Appellant submitted that, despite the conflicts with the Ipswich City Planning Scheme 2006, there was a need for the proposed development which justified approval. In this regard, the Appellant called evidence from a property economist, while the Council relied on evidence from a town planner.

There was significant disagreement between the experts as to the capacity of the Ipswich City Planning Scheme 2006 to supply land to meet demand in Goodna, which was quantified as being 35 semi-detached and attached dwellings per annum.

Under cross-examination, the Appellant's property economist conceded (at [35]) that the supply and demand for multiple dwellings was "tracking comfortably relative to the 15 year period contemplated by the planning scheme". However, the expert sought to qualify this statement by cautioning that the current market conditions did not make it economically viable to provide multiple dwellings at a density of 10 to 15 per hectare, and therefore the type of development contemplated by the Ipswich City Planning Scheme 2006 would not occur.

In considering the submissions and evidence before it, the Court referred (at [32]) to the concept of "need" by reference to the case of Isgro v Gold Coast City Council & Anor [2003] QPELR 414, namely as follows:

"Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community... Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met..."

The Court also found that, to the extent the Appellant relied on the economics for developing particular parcels of land for multiple dwellings, it appeared to have offended the principle enunciated in Brown v Moreton Shire Council Mylne (1972) 26 LGRA 310 that private economics is an irrelevant and immaterial consideration.

Acknowledging its statutory duty not to make a decision that conflicted with the Ipswich City Planning Scheme 2006 unless there are sufficient grounds to justify the proposed development despite the conflict, the Court applied the "three stage test" pronounced in Weightman v Gold Coast City Council [2003] 2 Qd R 441, being as follows:

  1. examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; and
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.

The Court found in favour of the Council and dismissed the appeal. In doing so, the Court held that there were no grounds in favour of the proposed development which were remotely sufficient to justify approving it despite the conflicts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ian Wright
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