Insights

In brief

The case of Duffy v Sunshine Coast Regional Council & Anor [2015] QPEC 58 concerned an appeal in the Planning and Environment Court against the Sunshine Coast Regional Council's decision to refuse an application for a development permit for a reconfiguration of one lot into four lots with an access easement at Buderim.

The council refused the development application on several grounds, but prior to the hearing those issues were resolved other than for conflicts with the Strategic Plan, the Code for Development on Steep or Unstable Land and the Code for Configuring Lots of the Maroochy Plan 2000 relating to the steeply sloping nature of the land. Therefore, the Court had to determine "…whether, from a geotechnical perspective, the proposed development, as it involves obviously steep land, can be undertaken so as to be safe to persons and property" (at [12]).

The Court considered the conflicts with the Sunshine Coast Plan 2014 and concluded that it was clear that there was an explicit and substantial conflict. Under section 326(1)(b) of the Sustainable Planning Act 2009, the applicants had to establish that there were sufficient grounds to justify the approval of the application despite the conflict. The applicants submitted that the implementation of risk minimisation strategies on the advice of their town planner and the geotechnical experts would serve to remove any conflict with the Maroochy Plan 2000.

The Court found that the risk minimisation strategies put forward identified rather than removed the conflicts in issue and, as such, there were not sufficient grounds to justify the approval of the application despite the conflict.

The court adopted a broad consideration of the planning scheme and found that the risk minimisation strategies were not sufficient enough to waive the substantial conflict with the planning scheme

Firstly, the Court had to determine whether there was a conflict with the former Maroochy Plan 2000, the planning scheme which was in force at the date the development application was lodged. In respect of the geotechnical issues, the joint expert report stated that the implementation of risk minimisation strategies "…would reduce the risk to persons and property from the potentiality of landslides to very low to low" (at [30]) which, it was further stated, was an acceptable rating to regulators. In addition to this, however, there were town planning issues that related to the "…stability of the site and the potential for landslide hazard" (at [30]).

It was submitted by the applicants that in light of the geotechnical evidence, the proposed development complied with the provisions of the Maroochy Plan 2000 as the risk minimisation strategies, if adopted, would protect people and property from the risk of landslide. However, upon a "holistic assessment" of the Maroochy Plan 2000, this was considered a substantial conflict.

The Court adopted the reasoning of the council that a broad consideration of the planning scheme revealed a three limbed planning approach in relation to the development of the subject land. Firstly, the Maroochy Plan 2000 actively discouraged the creation of new lots in the precinct the subject land was located in. Secondly, it discouraged development on land with a gradient greater than 25% upon which the subject land was located. Thirdly, it discouraged development that increased the risk of harm to people or property.

Whilst the Court contended that the geotechnical evidence dealt with the third limb, with reference to the relevant aspects of the Strategic Plan, the Code for Development on Steep or Unstable Land and the Code for Configuring Lots, the applicants failed to address the other two limbs.

The conflicts of the proposed development with the Sunshine Coast Plan 2014 were relevant in respect of establishing whether there were sufficient grounds to justify an approval of the development despite the conflict

The Court also found that that the proposed development conflicted with the Sunshine Coast Plan 2014, which commenced at the date the development application was lodged. Firstly, it conflicted with the Limited development (landscape residential) zone code in that the proposed development did result in the creation of additional lots. Secondly, it conflicted with the Buderim local plan code because the subject land is located outside the immediate urban growth boundary to which urban and rural residential development is limited. Further, the subject land was deliberately excluded from the urban growth area and zoned in a way that restricted the creation of additional lots, therefore, conflicting with the Landslide hazard and steep land overlay code and the reconfiguring a lot code.

The Court considered whether any weight could be given to the Sunshine Coast Plan 2014 in making its decision. The Court held that under section 495(2)(a) of the Sustainable Planning Act 2009, appropriate weight may be given to the planning scheme. However, after considering the decisions of Coty (England) v Sydney City Council (1957) 2 LGRA 117, Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266 and Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41, the Court concluded that it was only appropriate to give weight to the conflict with the Sunshine Coast Plan 2014 when considering whether there were sufficient grounds to justify an approval of the development, despite the conflict.

The risk minimisation strategies identified rather than removed the conflict as issues were found to be matters of personal circumstance and not matters of public interest and were, therefore, not sufficient grounds to justify the approval despite the conflict

Under section 326(1)(b) of the Sustainable Planning Act 2009, the applicants had to establish that there were sufficient grounds to justify the approval of the development application despite the conflict. On that basis, the applicants submitted that the implementation of risk minimisation strategies on the advice of their town planner and the geotechnical experts would serve to remove any conflict with the Maroochy Plan 2000.

The Court rejected the applicants' submission. Further, the Court found that section 495(2) of the Sustainable Planning Act 2009 expressly allowed the Court to consider the conflicts with the Sunshine Coast Plan 2014 in its decision and concluded that it was clear that there was an explicit and substantial conflict. The risk minimisation strategies put forward by the applicants' experts were found to identify rather than remove the conflicts in issue and, as such, the applicants were unsuccessful in establishing that there were sufficient grounds to justify the approval of the application despite the conflict.

In dismissing the appeal, the Court further stated that such grounds must be found to be matters of public interest. Instead, the grounds submitted by the applicants were found to be matters of personal circumstances.

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