51/13 Liston v Tables and Regional Council & Ors Anor; Pensini v Tablelands Regional Council & Anor [2013] QPEC 76

Planning and environment – planning schemes – construction of planning schemes – whether compromise of provisions seeking to protect GQAL and restrict rural residential development – whether sufficient planning grounds to approve development despite conflict

Integrated Planning Act 1997, ss 3.5.5(2)(d), 3.5.14(2), 4.1.28, 4.1.50, 4.1.52, Schedule 10
Sustainable Planning Act 2009, s 819(2)

Facts: These were submitter appeals against Council's decision to approve a development application for a preliminary approval for a material change of use (overriding the planning scheme – development consistent with the Rural Planning Area) and a development permit for reconfiguration of a lot (2 into 54 lots) made in respect of land located near Atherton.

The proposed development sought to create 53 rural residential lots with an area of between 3,300m2 and 6,630m2 on rural land which had been used for agricultural purposes in the past. It was mapped as good quality agricultural land (GQAL).

The effect of the proposed development would be to alienate the land from use for agricultural purposes in circumstances where provisions of the Council's planning scheme and subsequent planning controls sought to preserve it as agricultural land.

The Co-Respondent argued that the land was compromised for agricultural uses and ideally situated for rural residential development and that there was a requisite need for the development which justified the loss of land as GQAL.

The Far North Queensland Regional Plan 2009 – 2031 (FNQRP) came into force the year after the development application was lodged. It had been in force for over four years at the time of the appeal.

Council had also prepared a new draft planning scheme since the development application was lodged, which had been publicly notified.

The submitters argued that:

1. the proposed development conflicted with the planning scheme as it was in conflict with the objectives which intended that GQAL be protected and that rural residential development occur in areas which were planned for that purpose;
2. there were not sufficient grounds to justify approval of the proposed development despite the conflict;
3. the proposed development conflicted with and did not further the outcomes of the FNQRP, to which substantial weight should be given;
4. the proposed development would conflict with and cut across the implementation of Council's draft planning scheme;
5. there was no need for the proposed development; and
6. the proposed development was contrary to reasonable expectation.

The Respondent and Co-Respondent nominated a number of grounds as justifying approval of the proposal despite the conflicts with the planning scheme.

Decision: The Court held, in allowing the submitter appeals:

1. The proposal was in significant conflict with the planning scheme.
2. Not only was there an adequate supply of rural residential land within the shire, but there was also a clear planning strategy to restrict rural residential development and preserve GQAL. The planning grounds in favour of the application as a whole were insufficient to justify the proposed development in light of the significant conflict with the planning scheme.
3. The FNQRP was the pre-eminent plan for the region. It should be given substantial weight in the determination of the appeal. The proposal was in extreme conflict with the FNQRP.
4. The draft planning scheme was also unsupportive of the proposed development. The draft planning scheme should be given weight.
5. Evidence that the community would have a reasonable expectation that the land would not be developed for rural residential purposes given the strong policy of restricting residential development and preserving GQAL was accepted.
6. It was not the role of the Court to interfere with the planning strategies evident in the relevant planning instruments in circumstances where there was already a sufficient supply of rural residential land near Atherton.
7. The appeals should be allowed.

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