Development approval given under a superseded planning scheme was held not to be consistent with the current planning scheme

In brief

The case of Langton & Anor v Douglas Shire Council [2014] QPEC 71 concerned an appeal commenced by Fred Langton and Lola Langton against the decision of Douglas Shire Council to refuse the Langtons' request to extend the relevant period of their development approval by a further four years.

The Langtons' development approval was for a material change of use for four multiple dwellings (tourist) given by council under the 1996 Douglas Shire Planning Scheme in June 2010.

The court dismissed the appeal because:

• the development approval was not consistent with the council's 2006 Planning Scheme, which sought less intensive residential development and discouraged holiday accommodation in respect of the subject land;
• if the appeal was dismissed, given how development of this nature on the subject land would be treated under the 2006 Planning Scheme, the adjoining owner to the east who objected to the subject development would exercise his right to make a submission, and other persons might also exercise the rights to make a submission on any prospective development application.

Court observed that there was a significant shift in the way the subject land was treated under the 2006 Planning Scheme compared to the 1996 Planning Scheme

In its consideration of the appeal, the court compared the zoning and planning intent for the subject land between the 1996 Planning Scheme and the 2006 Planning Scheme.

The court observed that the underlying planning strategy for the subject land under the 2006 Planning Scheme was to seek "less intensive residential development and discourage holiday accommodation", which was a significant shift from how the subject land was treated in the 1996 Planning Scheme.

Court found that the development was not consistent with the 2006 Planning Scheme and considered a dismissal of the appeal was warranted on that ground alone

The development provided for under the development approval was characterised as "Holiday Accommodation" under the 2006 Planning Scheme which was Impact Assessable (Inconsistent).  For the purpose of the planning scheme, the development was "not considered to be consistent with the achieving of ecological sustainability or the DEO's for the Shire in that particular Planning Area".

The court acknowledged that the DEO's or desired environmental outcomes expressed the broad outcomes sought by the planning scheme and the applicable codes were one of the measures in the planning scheme to achieve the DEO's.  

The Port Douglas and Environs Locality Code, the Residential 1 Planning Area Code and the Vehicle Parking and Access Code were considered by the court.  It was relevantly noted that:

• the purpose of the Port Douglas and Environs Locality Code for the relevant locality was to "protect existing and future residential areas from the intrusion of tourist accommodation activity" and performance criteria P16 provided for a maximum plot ratio of 0.35:1;
• the purpose of the Residential 1 Planning Area Code was to "maintain and enhance the residential character and amenity of established residential neighbourhoods" and performance criteria P1 provided that "the establishment of uses is consistent with the outcomes sought for the Residential 1 Planning Area";
• the purpose of the Vehicle Parking and Access Code was to "ensure the provision of sufficient vehicle parking to the site" and performance criteria P2 and P11 of the code required "the provision of parking spaces to meet the needs of vehicle occupants with disabilities, and the provision of access for people with disabilities to the building from the parking area and from the street".

The court found that:

• the development was not in compliance with P16 of the Port Douglas and Environs Locality Code as its plot ratio was 0.52:1;
• the development was not in compliance (and could not comply) with P2 and P11 of the Vehicle Parking and Access Code;
• the development was not consistent with the purpose of the Residential 1 Planning Area Code particularly having regard to the express discouragement of tourist accommodation activity in residential areas.

Accordingly, the court found that the development approval was inconsistent with the 2006 Planning Scheme.  Given the extent of the inconsistencies, the court considered that the appeal would be dismissed on that ground alone.

Court was of the view that the adjoining owner to the east who objected to the subject development would exercise his right to make a submission, and other persons might also exercise the rights to make a submission on any future development application in the event that the appeal was dismissed

Nonetheless, the court considered the remaining matters provided for under section 388 of the Sustainable Planning Act 2009 namely:

• the community's current awareness of the development approval;
• the view of any concurrence agency for the approval;
• in the event that the request was refused (or the appeal was dismissed), whether further rights to make a submission may be available for a further development application and the likely extent to which such rights may be exercised.

The court noted that there was no meaningful evidence before the court in relation to community's current awareness of the development approval and the Department of Infrastructure and Planning being the only concurrence agency for the development approval had no objection to the proposed extension.

As to the likelihood of a submission being made on any prospective development application, given how development of this nature on the subject land would be treated under the 2006 Planning Scheme, the court was of the view that:

• the adjoining owner to the east who objected to the subject development would exercise his right to make a submission; and
• other persons might also exercise the rights to make a submission on any future development application.

Such considerations provided a further basis for the court to dismiss the appeal.