Planning and Environment Court refuses an application for the creation of an additional lot at Tamborine Mountain

In brief

The case of Guerin & Anor v Scenic Rim Regional Council & Ors [2018] QPEC 016 concerned an appeal to the Planning and Environment Court by the Appellants for a development application for reconfiguring a lot (1 into 2) in respect of land located at Tamborine Mountain, which was refused by the Scenic Rim Regional Council.

The Council alleged conflict with a number of provisions of the Beaudesert Planning Scheme 2017 (Planning Scheme), in particular the Tamborine Mountain Zone Code and the Reconfiguring a Lot Code, which restricted the creation of additional lots in the Village Residential Precinct within which the land was located.

The Planning and Environment Court dismissed the appeal on the basis that the proposed development was in significant conflict with the provisions of the Planning Scheme and that the grounds identified by the Appellants were not sufficient to justify approving the proposed development, notwithstanding the conflict.

Applicable legislative regime

The Court firstly addressed the fact that whilst the development application was made under the Sustainable Planning Act 2009 (SPA), the Planning Act 2016 (Planning Act) and Planning and Environment Court Act 2016 had commenced shortly afterwards.

The Court determined that under section 311 of the Planning Act, the proceedings could only be brought under the Planning Act as the appellants "had, immediately before the commencement, a right to start proceedings" (see [3]).

However, the Court found that whilst the appeal was brought under the Planning Act, the relevant provisions of the SPA applied to the hearing and determination of the issues in the appeal because that was the legislative regime in place at the time the assessment manager decided the development application giving rise to the appeal.

The Court noted that under the SPA, the assessment manager's decision must not conflict with the Planning Scheme unless there are sufficient grounds to justify the decision, despite the conflict.

However, it should be noted that another judge of the Planning and Environment Court in Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21 has subsequently held in similar circumstances that the relevant provisions of the SPA do not apply to the hearing and determination of the appeal and the relevant provisions of the Planning Act apply to the appeal. Accordingly, the matter is now the subject of significant legal uncertainty.

Court found that the proposed development conflicted with the Tamborine Mountain Zone Code in the Planning Scheme

The Council alleged conflict with the Planning Scheme, in particular Overall Outcomes 58 and 59 and Specific Outcome 49 of the Tamborine Mountain Zone Code and Specific Outcome 7 of the Reconfiguring a Lot Code.

In respect of the Tamborine Mountain Zone Code, Overall Outcome 59 and Specific Outcome 49 required reconfigurations to comply with the "standards" in Table 5.4.6B of the Reconfiguring a Lot Code which relevantly provided that additional lots are not created unless in accordance with the development approval for a material change of use that has not lapsed.

The Appellants did not have such a development approval but submitted that the restriction and qualification could not be properly defined as a "standard" within the dictionary meaning of that word.

The Court examined the dictionary definition of "standard" but rejected the Appellants' technical submission on the basis that the meaning of the provision was clear.

The Court found that Table 5.4.6B of the Reconfiguring a Lot Code did not allow further reconfigurations in the Village Residential Precinct of the Tamborine Mountain Zone without an existing development approval which had not lapsed, and found that the proposed development was consequently in conflict with Overall Outcome 59 and Specific Outcome 49.

In respect of the alleged conflict with Overall Outcome 58, the Appellants submitted that the proposed development was consistent with the reasonable expectations of residents in the zone, as the proposed development would be consistent with the "established pattern of subdivision in the vicinity of the land" (see [11]).

However, the Court heard evidence from the town planning expert for the Appellants who acknowledged that the reasonable expectations of residents of the zone are derived from the provisions of the Planning Scheme.

The Court found that the proposed development was not consistent with the reasonable expectation of residents of the zone, given the clear conflict with Table 5.4.6B of the Reconfiguring a Lot Code in the Planning Scheme and the fact that no new lots had been created in the Village Residential Precinct of the Tamborine Mountain Zone since the commencement of the Planning Scheme.

Court found the proposed development conflicted with the Reconfiguring a Lot Code in the Planning Scheme

The Council also alleged conflict with Specific Outcome 7 of the Reconfiguring a Lot Code, which relevantly provided that "further division of land in the … Village Residential Precinct … is not envisaged as supporting infrastructural services cannot be provided".

The Appellants submitted that there was no conflict with Specific Outcome 7 on the basis that on-site water and sewerage infrastructure would be provided.

The Court found, however, that such an exception would not apply here and would only be made where additional lots would be provided in accordance with a development approval for a material change of use that had not lapsed.

The Court ultimately found that further subdivision on Mount Tamborine was not envisaged by the Planning Scheme and that the proposed development was consequently in significant conflict.

Sufficient grounds

In order to justify the proposal, the Appellants sought to rely on the proposed development's compliance with other provisions of the Planning Scheme as a sufficient ground to overcome the conflict.

The Court found that whilst the extent to which the proposed development complied with the Planning Scheme was a matter of public interest and therefore a ground which may be relied upon, it was not on its own sufficient enough to overcome the significant conflict with the Planning Scheme.

The Appellants also sought to rely upon the additional choice of housing which would be provided by the creation of an additional lot at Tamborine Mountain, however, they did not put forward any evidence of a planning need.

The Court ultimately found that the grounds relied upon were insufficient to justify the approval of the proposed development. notwithstanding the conflicts and dismissed the appeal.