Court refuses a residential subdivision proposed close to a poultry farm due to reverse amenity concerns

In brief

The case of Beerwah Land Pty Ltd v Sunshine Coast Regional Council [2018] QPEC 10 concerned an appeal to the Planning and Environment Court against the Council's decision to refuse a development application (superseded planning scheme) for a development permit for reconfiguring a lot for a residential subdivision.

The Court held that the proposed development failed to provide the prescribed poultry farm buffer, which represented a major conflict with the Caloundra City Plan 2004 (City Plan 2004), due to the potential reverse amenity implications of the proposed development. The Court dismissed the appeal and upheld the Council's decision to refuse the development application on the basis that there were no sufficient grounds to approve the proposed development despite the conflict.

Applicant lodged development application (superseded planning scheme)

The land the subject of the proposed development is relevantly located near existing residential development to the north-east, south and east. It is also located near a poultry farm and feed mill to the north-west.

The Applicant made a development application (superseded planning scheme) to the Council for reconfiguring a lot (1 lot into 16 lots), which was code assessable development under the then City Plan 2004.

Council failed to decide the development application in time

The Council failed to extend the decision-making period and the Applicant issued the Council with a Deemed Approval Notice, in response to which the Council purported to issue a Decision Notice which sought to limit the proposed development to three lots on the basis that "residential dwellings are not permitted within the 400m poultry farm buffer contour" (at paragraph [5]).

Council refused development application

Proceedings were commenced in the Planning and Environment Court and the Court determined that it was appropriate for it to exercise its discretion under section 440 of the now repealed Sustainable Planning Act 2009 and return the development application to the decision making stage. The development application was subsequently refused by the Council on the basis that the proposed development conflicted with the then City Plan 2004.

Issues in the appeal

The Council relied on the following grounds to justify its decision to refuse the development application:

1. failure to provide adequate buffers to take account for the nearby poultry farm;
2. failure to appropriately integrate with surrounding land uses; and
3. failure to provide suitable traffic access.

The Court rejected that the issues pertaining to traffic and layout were relevant. The issues therefore in the appeal were odour and reverse amenity arising due to the close proximity of the proposed development to the poultry farm.

Conflict with the City Plan 2004

The Appellant applicant contended that the odour from the poultry farm which was likely to be detected by future residents would not be greater than the "Queensland odour criterion of 2.5OU, 99.5th percentile" and would therefore not impact the amenity of the proposed development (at paragraph [45]).

The Council contended that there were flaws in the Appellant's odour modelling, namely that it was based on insufficient data. The Council therefore argued that the conclusion that the odour was not greater than the odour criterion was not in fact suitably supported by the evidence. The Council also contended that the proposed development may suffer reverse amenity impacts from the poultry farm.

The Court was unconvinced that the proposed development would not be affected by odour and agreed with the Council that the modelling was insufficient. The Court concluded that there were conflicts with the City Plan 2004 because there was a risk of an unacceptable reverse amenity impact due to an inadequate buffer separating the poultry farm and the proposed residential development.

Sufficient grounds

Having established the existence of material conflicts with the City Plan 2004, the Court turned to consider whether there were sufficient grounds to warrant approval notwithstanding the conflict.

The Court applied the test laid out in Weightman v Gold Coast City Council [2003] 2 Qd R 441, namely:

1. examine the nature and extent of the conflict;
2. determine if there are any relevant planning grounds and if the conflict can be justified on those grounds; and
3. determine if the grounds in favour of the Applicant are, on balance, sufficient to justify approving the application notwithstanding the conflict (at paragraph [36]).

The Applicant agreed that following were sufficient grounds to justify the appeal notwithstanding the conflicts:

1. desirability of the physical characteristics of the proposed development's location; and
2. contribution to housing growth targets.

The Court was not persuaded however that there were sufficient grounds to justify approval notwithstanding the conflicts and, in particular, that there was no sufficient demand for additional residential development in that location.

The Court therefore dismissed the appeal and upheld the Council's decision.