In brief

The case of Ausco Modular Pty Ltd v Western Downs Regional Council & Anor [2017] QPEC 58 concerned an appeal against the decision of the Western Downs Regional Council (Council) to refuse a development application to allow the continued use of non-resident workers' accommodation at 184 Zeller Street, Chinchilla.
 
The Co-respondent, Grow Chinchilla Pty Ltd, made a properly made submission and elected to join the appeal and continued to oppose the proposed development.
 
The proposed development comprises the following:
  • 1,000 rooms in demountable cabins that are single storey in height;
  • on-site facilities including separate laundry facilities, kitchen and dining facilities, indoor fitness centre, and formal and informal recreation areas;
  • approximately 750 car parks;
  • landscaped surrounds and a dam near the north-east corner of the subject site;
  • a management and reception building.
The Court found that there were sufficient grounds to approve the proposed development despite conflicts with the provisions of the Chinchilla Shire Planning Scheme 2006 (Chinchilla Planning Scheme) and Western Downs Planning Scheme 2017 (Western Downs Planning Scheme). In doing so, the Court considered a number of matters including the following:
  • the nature, scale and density of the proposed development;
  • the impacts of the proposed development;
  • the need for the proposed development.

The Court considered the planning scheme that was in force at the time of the development application as well as the planning scheme that subsequently took effect

The Court confirmed that the appeal was to proceed by way of a hearing anew in accordance with section 495 of the Sustainable Planning Act 2009 (SPA). Also, the appeal was to be decided based on the laws and policies that were applicable at the time of the development application; however, the Court could give weight to any new laws and policies the Court considered appropriate in accordance with section 495(2) of the SPA.
 
The parties agreed that the Western Downs Planning Scheme, which came into force on 20 March 2017, should be given substantial weight even though the development application was made on or about 28 January 2016 and at the time the Chinchilla Planning Scheme was in force.

The Court found that the proposed development conflicted with the provisions of the Rural residential zone code under the Chinchilla Planning Scheme

The Council and Co-respondent alleged that the proposed development conflicted with the provisions of the Rural residential zone code under the Chinchilla Planning Scheme. The alleged conflicts were said to arise from the nature, scale and density of the proposed development, and character impacts. In particular, the following provisions of the Rural residential zone code were alleged to be in conflict:
  • Section 4.2.3.3(2) (Code Purpose), which relevantly states as follows:
"The Rural Residential "Zone" continues as an area for low density detached houses in a rural setting.";
  • Sections 4.2.3.3(4)(c) and (d) (Code Purpose), which relevantly states as follows:
"Within the Rural Residential "Zone", "development";
(4)    
...
(c)    is located, designed and operated in a manner that protects and enhances the low density rural residential scale, intensity, form and character;
(d)    does not prejudice or impact adversely on other "uses" including those within other "Zones";
  • Section 4.2.3.4 (Performance Criteria, Acceptable Solutions and Self Assessable Applicability – "Material change of Use"), which relevantly includes the following performance criteria:
    • PC5 Residential Activities - Density;
    • PC8 Transport Movements;
    • PC9 Building and Structure Design;
    • PC28 Noise Emissions.
The Appellant accepted that the proposed development would conflict with the Chinchilla Planning Scheme in that:
  • the buildings are not in the form of detached houses;
  • the density of the proposed development is not limited to a single dwelling on a large lot;
  • "the conflict is more than minor or technical".
 
The Court found it appropriate for the Appellant to concede that the proposed development was in conflict with sections 4.2.3.3(2) and 4.2.3.3(4)(c) and performance criteria PC5 and PC9. Although the Court found that the proposed development was in conflict with those provisions, the Court was satisfied that "the conflict was not accompanied by any undue impact".

The Court also considered the provisions of the Western Downs Planning Scheme and found that the proposed development conflicted with those provisions

The Council and Co-respondent alleged that the proposed development, which was included within the Low density residential zone under the Western Downs Planning Scheme, conflicted with the Low density residential zone code.
 
The Court confirmed that the proposed development, being non-resident workers' accommodation, was inconsistent with the purpose of the Low density residential zone because it did not involve a dwelling house use or community use.
 
Whilst noting that the proposed development was not completely out of character development within the locality and that no unacceptable amenity impacts accompanied it, the Court found that a decision to approve the proposed development would be in conflict with the Low density residential zone code.

The Court considered the matters that mitigated the extent of the conflict with the Chinchilla Planning Scheme

The Court stated that the following matters mitigated the extent of the conflict with the Chinchilla Planning Scheme:
  • the proposed development did not conflict with the desired environmental outcome in relation to community expectations and needs;
  • it was not alleged that the proposed development conflicted with the overall outcomes and performance outcomes of the Rural residential zone code that were relevant to "managing the separation of incompatible uses, avoiding prejudice to rural residential activities and managing impacts to acceptable levels";
  • Zeller Street has a mixed character, which includes industrial uses, rural residential, low density residential and showgrounds.

The Court found that there were sufficient grounds, including a need for the proposed development, to approve the proposed development despite the conflicts

The Court found that there were sufficient grounds to approve the development application including a need for the proposed development in that:
  • Base Camp, the existing other non-resident workers' accommodation, would not be capable of providing accommodation during peak season;
  • hotels or motels in Chinchilla were not capable of providing accommodation for workers;
  • in the absence of the proposed development, Base Camp would effectively monopolise the non-resident workers' accommodation market in Chinchilla.
The Court found that there were sufficient grounds to approve the proposed development despite its conflicts with the Chinchilla Planning Scheme and Western Downs Planning Scheme. The appeal was adjourned for the Court to hear the matters relating to reasonable and relevant conditions to ultimately approve the proposed development.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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