Proposed development that complies with a local government's planning scheme refused by the Planning and Environment Court

In brief

The case of Roubaix Properties Pty Ltd v Somerset Regional Council [2020] QPEC 34 concerned an appeal by Roubaix Properties Pty Ltd (Applicant) to the Planning and Environment Court against the Somerset Regional Council's (Council) decision to refuse an impact assessable development application for a relocatable home park (Proposed Development) located at 11 Banks Creek Road, Fernvale (Subject Location).

The Applicant maintained that the Proposed Development complied with the requirements of the Somerset Region Planning Scheme (version 3) (Planning Scheme) and that such compliance was sufficient to warrant approval of the Proposed Development.
The Council effectively submitted that the Proposed Development did not comply with the State Planning Policy (July 2017) (SPP) as the development:

• failed to avoid the natural hazard area;

• did not mitigate risks to people and property to an acceptable or tolerable level; and

• hindered disaster management response or recovery capacity or capabilities.

The Court considered the planning need for the Proposed Development, its character and amenity, location in the area mapped on the flood overlay mapping, the relevant matters submitted by the parties, and whether the Council's Planning Scheme was inconsistent with the SPP. The Court held that the Proposed Development was non-compliant with the SPP and that therefore the Proposed Development ought to be refused.

SPP contained the relevant assessment benchmarks in respect of flooding

The Court was critical of the Planning Scheme, which had not been amended to make allowance for the effects of climate change in the flood overly mapping, and noted that the Planning Scheme was therefore inconsistent with the SPP as to what was necessary to avoid flooding on the Subject Location. As the SPP was not integrated into the Planning Scheme, the Court found that the SPP applied to the extent of any inconsistency (see section 8(4) of the Planning Act 2016).

No planning need was found for the Proposed Development

The Court heard evidence from two economists regarding planning need and preferred the evidence of the Council's expert who concluded that:

• absent the flooding risk, the Subject Location would have been an excellent location for a relocatable home park;

• there was insufficient economic need for the Proposed Development within the next 15 years; and

• there was no planning need of any consequence for the Proposed Development as there is other available land for the development in the Local Government Area.

The Court considered the evidence and held that there was no demonstrated planning need for the Proposed Development and that the demand for the Proposed Development could be met in an area not subject to flooding.

Planning Scheme was inconsistent with, and the Proposed Development did not comply with, the SPP

Acceptable Outcome AO13.1 of the Planning Scheme required that the buildings be located above the "defined flood level". "Defined flood level" was not expressly defined in the Planning Scheme, but the Court held that if a practical reading of the whole of the Planning Scheme is applied, the term ought to be read as meaning the inundation level associated with a 1% AEP flood event.

Two engineers gave evidence to the Court in relation to flooding and both agreed that:

• inundation of the Subject Location occurred in the 1974 and the 2011 floods; and

• the Proposed Development complies with the requirements of Acceptable Outcome AO13.1 of the Planning Scheme.

However, the Court accepted evidence from the Council's expert engineer who stated that the demonstrated compliance with the Planning Scheme was insufficient to avoid significant inundation of the site when climate change was allowed for. The Court therefore determined that:

• the Planning Scheme was inconsistent with the SPP as it failed to account for the effects of climate change on flood levels; and

• the Proposed Development did not comply with the SPP as it did not avoid the natural hazard area.

Whilst the Court accepted that the Proposed Development would not hinder a disaster management response or recovery capacity, the age and possible financial vulnerability of the prospective residents would have resulted in a significant risk to people in a flood event.

The Court held that the Proposed Development ought to be refused given its findings in respect of flooding.

Court agrees that the standard of amenity of the Proposed Development was poor

Two experts gave evidence in respect of visual amenity and the Court agreed with the Council's town planning expert that, ignoring the compliance with the Planning Scheme, the Subject Location would be overdeveloped.
However, the Court determined that the discretionary matters relating to the poor design from an amenity perspective were not sufficient to warrant refusing the Proposed Development.

Relevant matters

The Applicant submitted to the Court the following three relevant matters as justification for approving the Proposed Development:

1. the Subject Location has been filled to a level which complies with the Planning Scheme;

2. the Proposed Development will have a lower density of people per dwelling than a current reconfiguration approval granted over the Subject Location; and

3. there is an economic and community need for the Proposed Development and it will assist in achieving the development supply benchmarks in South East Queensland.

On balance, the Court did not agree that the Applicant's relevant matters justified the approval of the Proposed Development given the findings of the Court in relation to need and flooding and the inability to condition the development to address the unacceptable impacts identified.

Conclusion

The Court refused the Proposed Development and dismissed the appeal on the basis that the Proposed Development was inconsistent with the SPP for the following reasons:

• the Proposed Development did not avoid a natural hazard area in circumstances where significant flooding is likely to occur on the Subject Location when allowance is made for climate change;

• the Proposed Development would not mitigate the risks to prospective residents and their homes to an acceptable or tolerable level.