Commercial groundwater extraction use refused as a result of conflicts with the planning scheme and an absence of sufficient grounds to justify approval despite the conflicts

In brief 

The case of Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2018] QPEC 47 concerned an appeal by Gillion Pty Ltd (Applicant) to the Planning and Environment Court against the decision of the Scenic Rim Regional Council (Council) to refuse a development application for a material change of use for commercial groundwater extraction (CGE) in respect of premises on Tamborine Mountain. The relevant development application had been made to regularise an unlawful use. The appeal was opposed by the Council and 109 submitters (Submitters) who joined the appeal as Co-respondents by election.
The Sustainable Planning Act 2009 (SPA) applied to the development application and the appeal because the SPA was in force when the development application was lodged and when the appeal was commenced. The relevant planning scheme was the 2007 Beaudesert Shire Planning Scheme (Planning Scheme). 

The ultimate questions to be considered by the Court were whether the proposed development conflicted with the Planning Scheme, and whether there were "sufficient grounds" to justify the approval of the proposed development despite a potential conflict with the Planning Scheme under section 326(1)(b) of the SPA.

The Court stated that the approach required by section 326(1)(b) of the SPA involved the following steps:

• Step 1 - what is the nature and extent that the proposed development conflicted with the Planning Scheme?

• Step 2 - is there a tension between the application of the Planning Scheme and the public interest?

• Step 3 - if there is a tension between the Planning Scheme and the public interest, are there any "grounds" that justify approval of the development application?

• Step 4 - are the "grounds" sufficient to justify the approval of the development application despite a conflict with the Planning Scheme?

The Court found that the development application was in conflict with the Planning Scheme and that there were not "sufficient grounds" to justify the approval of the development application despite the conflict with the Planning Scheme.

Step 1 - Court held that the development application was in conflict with the Planning Scheme

The Applicant accepted that the proposed development was not a consistent use in the Village Residential Precinct in the Tamborine Mountain Zone under the Planning Scheme. 

Step 2 - Court held that there was no tension between the Planning Scheme and the public interest

The Court applied the Court of Appeal decision in Bell v Brisbane City Council & Ors [2018] QCA 84 (Bell decision). The Bell decision states that a development application which conflicts with a Planning Scheme may only be approved in exceptional circumstances where there is tension between the application of a Planning Scheme and the public interest. If there is a tension, section 326(1)(b) of the SPA is engaged, and the decision maker may approve the development application if there are "sufficient grounds" in the public interest to rebut the presumption that the Planning Scheme embodies the public interest. 

Firstly, the Applicant argued that the Planning Scheme did not anticipate or properly deal with the need for the supply of commercial potable water on Tamborine Mountain, in circumstances where there were issues regarding water supply on Tamborine Mountain, including that there was inherent uncertainty and variability of the groundwater supply, that existing private tanks and bores failed from time to time, and that water importation was required. However, the Court found that there was sufficient evidence of reliable commercial potable water supply on Tamborine Mountain. 

Secondly, the Applicant argued that in circumstances where the Planning Scheme made CGE an "inconsistent use", in circumstances where the Tamborine Mountain community had water supply needs that were not properly dealt with by the Planning Scheme.

The Court held that when reading the Planning Scheme as a whole, it was clear that the Council had made a deliberate policy choice that CGE be considered an "inconsistent use", given in the Tambourine Mountain Zone that the Planning Scheme had contemplated CGE by including a definition of CGE and a CGE Code and that CGE was not included in the Consistent Table of Uses of the Tamborine Mountain Zone or any other Zone. 

The Court further held that the Planning Scheme had struck a balance between the application of the Planning Scheme and the public interest for reliable water supply, given that the Planning Scheme had acknowledged the lack of reticulated water or a sewerage system, by regularising developments in the precinct to provide on-site water and sewerage, by encouraging the use of underground water for agricultural purposes, and by not envisaging growth which would place a strain on future water supply.

Therefore, the Court held that there were not exceptional circumstances of tension between the application of the Planning Scheme and the public interest and, as a result, section 326(1)(b) of the SPA was not engaged.

Step 3 - Court held that there were no "grounds" to justify the approval of the development application despite the conflict with the Planning Scheme

In case the Court's approach at Step 2 was incorrect, the Court further considered whether there were any "grounds" to justify the approval of the development application despite the conflict with the Planning Scheme. Schedule 3 of the SPA defines "grounds" as matters of public interest that do not include the personal circumstances of an applicant, owner or interested party. 

Ground 1 - Economic need to provide good quality water to the growing bottled water industry

The Court held that economic need requires the existence of an economic demand that the proposed development would address. The Court found that the groundwater extracted from Tamborine Mountain was of no different quality or taste and was therefore a homogenous product capable of substitution. The Court therefore found that given the size of the national market for bottled water, the proposed development would not improve the water supplied to businesses or residents locally, regionally or nationally. The Court therefore held that there was no economic need for the proposed development.

Ground 2 - Community and planning need to provide bulk water to Tamborine Mountain

The Court held that community need in the context of this case referred to the enhancement of community wellbeing. The Court found that community wellbeing would not be improved by increased water supply. This was because the proposed development would supply a fraction of the competitive market and thus would have a negligible impact on the price of potable water. The Court also held that increased water supply would not improve physical wellbeing in the community because the water supply issues during periods of high demand were a result of too few carriers and not as a result of the unavailability of water.

The Court held that planning need exists where there is a latent unsatisfied demand that is not being met or not adequately met. The Court held that there was sufficient water supply to meet the demand and that there was no planning need for the proposed development for the following reasons: 

• other commercial groundwater extraction plants are located on Tamborine Mountain; 

• a sustainable and reliable source of good potable water is currently available on Tamborine Mountain;

• other sites contained sustainable water resources for water extraction on Tamborine Mountain;

• there is insufficient evidence that the water extracted from the proposed premises is of better quality or taste to the water extracted from other premises; and

• two current Tamborine Mountain water extractors have excess capacity to supply the bottling market and the local market. 

Ground 3 - The proposed development would supply a reliable and convenient water source for firefighting purposes where the community does not have a reticulated water supply

The Court held that the Applicant had made water available for firefighting and training, and that the Applicant intended to continue to provide water for these purposes. However, the Court held that the fire and emergency services did not require the proposed development to fight fires because there is an existing statutory and policy framework to allocate water resources for firefighting purposes, and because Tamborine Mountain has an existing water source for firefighting purposes. The Court therefore held that this was not a "ground" to justify the approval of the development application despite conflicts with the Planning Scheme. 

Ground 4 - The proposed development would make available reliable and conveniently located water for charitable purposes during natural hazards and emergencies

The Court held that the Applicant donated water to charities during natural disasters and chronic water shortages, and that the Applicant intended to continue to provide water for this purpose. However, the Court held that although the donations were in the public interest, the benefit was not a "sufficient ground" to justify the approval of the development application despite the conflicts with the Planning Scheme.

Step 4 - The Court held that the "grounds" identified by the Applicant were not sufficient to justify the approval of the development application despite the conflicts with the Planning Scheme

The Court held that the "grounds" identified by the Applicant were not "sufficient grounds" to justify the approval despite the conflict with the Planning Scheme. The Court also concluded that, while relevant, the absence of the usual hallmarks of inconsistent development, including impacts on amenity, traffic, economic impact or otherwise, was not determinative in this case. 

Conclusion

The Court upheld the Council’s decision to refuse the development application.