Planning and Environment Court allows an appeal concerning a proposed industrial use in the rural zone

In brief

The case of Bilinga Beach Holdings P/L v Western Downs Regional Council & Anor [2018] QPEC 34 concerned an appeal to the Planning and Environment Court against the Western Downs Regional Council's (Council) decision to refuse an impact assessable development application, for a material change of use for a transport terminal and ancillary accommodation on land situated at 38493 Leichardt Highway, Miles. 

The Council refused the development application on the basis that the proposed development would conflict with the Murilla Shire 2006 Planning Scheme (2006 Planning Scheme) and the Western Downs Planning Scheme (2017 Planning Scheme). 

The disputed issues in the appeal were as follows:

1. Conflict with the Rural zone code of the 2006 Planning Scheme.

2. Unacceptable impacts on the amenity and character of the locality.

3. Conflict with the Rural zone code of the 2017 Planning Scheme. 

The Court held that the proposed development was not in conflict with the 2006 Planning Scheme or the 2017 Planning Scheme, as the Appellant was able to demonstrate that the development would not have an adverse effect on the rural scale of the land, and it would maintain and enhance the rural character and amenity of the land. The Court therefore allowed the appeal with conditions. 

Conflict with the Rural zone code of the 2006 Planning Scheme

The Council argued that the proposed development was in conflict with section 4.1.3.3(5)(d) of the 2006 Planning Scheme because a "Transport terminal" is considered to be an industrial activity under the 2006 Planning Scheme, and the proposed development was to be located within the Rural zone. Section 4.1.3.3(5)(d) of the Rural zone code relevantly states as follows: 

"(5) Within the Rural "Zone", the Rural "Zone" Code allows for:

…

(d) limited industrial uses where it can be demonstrated those "uses" are associated with rural production and can not reasonably be established in the Industrial "Zone"."

Section 4.1.3.3(5)(d) of the 2006 Planning Scheme contemplates that limited industrial uses may be located in the Rural zone provided the following two matters can be demonstrated: 

1. the proposed use is associated with rural production; and 

2. the proposed use cannot reasonably be established in the Industrial zone.

The Court rejected the Council's argument that the proposed development was not a "limited industrial use" due to the scale of the development. The Court noted that the provision does not purport to give any direction as to the scale of uses in the Rural zone and that, rather, it was to describe the number of industrial uses within the Rural zone. 

The Council also argued that the development did not demonstrate a strong association with rural production. The Court noted that in respect of the term "associated" within the provision, it should be given its ordinary meaning, that is, it connotes a connection or relationship between the proposed use and rural production. It was held by the Court that the provision does not describe the strength of the association which is required. The Appellant argued that the proposed development did have an association with rural production as the proposed business would supply plant and equipment to farmers in the Rural zone. The Court concurred with the Appellant's argument and held that the evidence clearly established an association between the proposed use and rural production for the purposes of section 4.1.3.3(5)(d) of the 2006 Planning Scheme. 

The Court also considered whether the Appellant could demonstrate that the proposed use could not reasonably be established in the Industrial zone. The Appellant submitted three arguments as to why it would be unreasonable for the proposed development to be located in the Industrial zone. However, the Court found that the most persuasive of those arguments was that the proposed development would be an incompatible use in the Industrial zone due to the accommodation aspect of the development. 

The Court noted that residential accommodation uses and industrial uses are incompatible because industrial uses have the potential to adversely impact the amenity of residential accommodation. The Court placed considerable weight upon the Appellant's argument that locating the on-site workers' accommodation within the Rural zone would provide a safe and quiet environment for its employees, and that it would be highly undesirable for the employees to undertake further travel for accommodation purposes. Therefore, the Court was ultimately satisfied that the Appellant had demonstrated that the proposed development did not conflict with the 2006 Planning Scheme. 

Unacceptable impacts on the amenity and character of the locality

The Council argued that the proposed development would impact on the rural amenity and character of the Rural zone. The Council made this argument on the premise that the operating hours would be inappropriate for a rural area, and the noise, light, dust, and vehicle movements would cause an adverse impact upon the amenity and character of the area. 

The Court considered the joint expert reports with respect to noise and air quality. The experts in each of the reports identified some issues with respect to the noise and the impact upon air quality, which the proposed development may cause. However, the experts had recommended conditions to alleviate those impacts. The Court held that the recommended conditions would appropriately mitigate any adverse impacts. In relation to traffic movements, the Court rejected the Council's traffic expert's report which stated that the proposed development would generate a level of traffic, which is significantly greater than what is reasonably anticipated. The Court rejected this evidence on the basis that the Council's traffic expert did not take into account that the proposed use was a reasonably anticipated use of the land. 

The Court held that the Council did not provide sufficient recognition of the purpose of the Rural zone. The Court stated that it should be anticipated that the Rural Zone is not intended to provide a high level of amenity as it is likely to be dusty and influenced by the noise of plant, equipment and trucks utilised for a primary production purpose. In order to alleviate the visual impact of the proposed development, the Court accepted the Appellant's submission that a landscape buffer should be planted around the boundaries of the subject land. On that basis, the Court was satisfied that the proposed development would not have an unacceptable impact on visual amenity and character. 

Conflict with the Rural zone code of the 2017 Planning Scheme

The Council argued that the proposed development was in conflict with the 2017 Planning Scheme for a number of reasons. The Council made the same arguments with respect to the 2006 Planning Scheme, along with a further argument that there was no overriding community need for the development. The Court observed that the overriding community need test was a new test which is to be engaged in one of two circumstances. Firstly, where an industrial use is proposed for unproductive rural land. Secondly, where development is not consistent with the purpose and intent of the Rural zone. The Court held that the overriding need test did not alter the policy position that development, such as the proposed development, may be located in the Rural zone, conditional upon the satisfaction of requirements that focus on the characteristics of the use and the location where it is proposed. 

The Court noted that as the 2017 Planning Scheme was made under the Sustainable Planning Act 2009 (SPA), the Court must consider what weight, if any, should be given to the 2017 Planning Scheme under section 495(2) of the SPA. Section 495(2) of the SPA relevantly states as follows:

"(2) However, if the appellant is the applicant or a submitter for a development application, the court—

(a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; and

(b) must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change."

The Court observed that the 2017 Planning Scheme was consistent with the superseded 2006 Planning Scheme as it directs industrial land use and development to land designated for industrial purposes within the urban area. Section 6.2.9.2(4) of the 2017 Planning Scheme was also found to be consistent with the purpose of the Rural zone code under section 4.1.3.3(2) of the 2006 Planning Scheme, as it was held by the Court that the 2017 Planning Scheme effectively carried forward the intentions of the 2006 Planning Scheme as noted by the town planning experts' joint report. 

Ultimately, the Court held that the proposed development was not in conflict with the 2017 Planning Scheme. 

Court allowed the appeal as the Appellant was successful on all grounds of the appeal

The Court held that as the proposed development was not in conflict with the 2006 Planning Scheme or the 2017 Planning scheme and that there were no adverse impacts upon the amenity and character of the Rural zone, the appeal was allowed. The Court ordered that the parties were to formulate an agreed suite of conditions, which was to include a condition with respect to landscaping.