In brief

The case of Bennington & Ors v Sunshine Coast Regional Council & Anor [2019] QPEC 11 concerned an appeal commenced by adverse submitters (Submitters) to the Planning and Environment Court against a decision by the Sunshine Coast Regional Council (Council) to approve a development application for a development permit for a material change of use of premises for a service station and convenience restaurant development (Proposed Development). 

The Proposed Development was in respect of an irregular shaped lot with a frontage of 340 metres to David Low Way, and an area of approximately 7 hectares (Land). The Proposed Development was limited to the northern part of the Land, involving an area of approximately 1.08 hectares. 

The Submitters alleged that there was a significant and serious conflict with the relevant planning scheme being the now superseded Maroochy Plan 2000 (Planning Scheme), and that no grounds of sufficient weight existed to support the approval despite the conflict. 

The Applicant for the Proposed Development and the Co-Respondent to the appeal conceded that the Proposed Development did conflict with the Planning Scheme, however, there were sufficient grounds to justify the approval despite the conflict.

Proposed development

The development application was assessed and decided under the Planning Scheme and the Sustainable Planning Act 2009 (SPA).  

The Proposed Development is situated within a predominantly low density residential area, with detached dwelling houses located to the south, east and north. The Sunshine Coast Airport (Airport) is located approximately 300 metres to the northwest. 

Two shopping centres containing a range of retail and commercial uses, are located 1 kilometre north and 1.2 kilometres south from the Land respectively. At the time of the appeal, the Council had granted a development permit for a service station approximately 1 kilometre south of the Land. 

The size of the Proposed Development, with a total building floor space of 1060m2, was considered relevant to the Court's determination. 

The Court noted that land uses in the locality of the Land were affected by and could affect the Airport's operations. The Planning Scheme specifically noted that future development in the locality should be limited to low density residential premises.

The Planning Scheme identified locations where commercial and industrial uses were appropriate in the relevant planning area. The Land was not one of those locations. 

Conflict with the Planning Scheme

The Submitters contended that the Proposed Development conflicted with the Planning Scheme in the following ways:

  • Land use conflict - The Proposed Development was not considered a preferred or acceptable use in the locality under the Planning Scheme, and approval would be undesirable (at [27]). 

  • Retail and centres hierarchy planning - The Planning Scheme expressed a strong planning policy that commercial uses were not to be established except where specifically identified. 

  • Scale of use - The Proposed Development would not, of itself, constitute a Local Centre, but the floor area was considered commensurate with that of a Local Centre as contemplated by the Planning Scheme. 

  • Character and amenity impacts - The concept of amenity was far broader than the empirical standards of noise and air quality, and the Proposed Development would impact on the 'sense of place'. 

  • Ribbon development - The Planning Scheme expressly stated that "commercial ribbon development is not to occur along the David Low Way" (at [30]). 

The Council and the Applicant conceded that the Proposed Development conflicted with the Planning Scheme. However, the Council and the Applicant argued that the following sufficient grounds justified approval despite the conflicts:

  • The Planning Scheme had not foreseen the growth and expansion of the Airport. 

  • The Proposed Development would support further expansion of the Airport.

  • The Proposed Development would fulfil a gap in the service station network through increased convenience, choice and competition for local residents and the passing public.

  • The zoned residential use for the site was not suitable and a commercial use would be more appropriate given the proximity to the Airport.

Nature and extent of conflict

The Court discussed the relevant test expounded under section 326 of the SPA, being the requirement to show sufficient grounds to justify the decision despite a conflict, in determining the nature and extent of the conflict. The Court noted the provision refers to sufficient "grounds" rather than "planning grounds" to justify an approval where a conflict exists.

The Submitters argued that the conflicts were not limited to a simple land use issue, but encompassed matters with respect to the scale of the Proposed Development and the reasonable expectations of the community. The Submitters argued that the conflict should be regarded as significant or serious and requiring substantial or compelling grounds to justify approval.

The Council and the Applicant conceded the Proposed Development was in conflict with the residential nature of the locality, but limited the conflict to a land use issue.

No sufficient grounds to justify approval despite conflict

The Council and Applicant argued that the need for the Proposed Development amounted to sufficient grounds to approve the Proposed Development despite the conflicts. The Council and Applicant arguments were as follows:

  • A clear and strong need for the Proposed Development is demonstrated by its strong financial viability.

  • The location of the Land is important and supports the conclusion that the public will find the Proposed Development both convenient and attractive, and therefore the community would be better off if the development is approved.

  • The need for the Proposed Development is supported by the presence of the Airport and the tourism activity within the trade area.

  • The resident population is not already sufficiently serviced by similar offerings.

  • The Proposed Development will deliver choice, competition and convenience. 

In its analysis of the Council's submissions, the Court made reference to William McEwans Pty Ltd v Brisbane City Council (1981) 2 APA 165, which relevantly states, at [65] (emphasis added):

"it [need] connotes the idea that the physical wellbeing of a community… can be better and more conveniently served by providing the means for ensuring that the provision of that facility, subject always to other considerations of the town planning kind… depends on an acceptable residential amenity."  

The Court concluded that the need for the Proposed Development was not strong. The Court held that at best the Proposed Development would do no more than create a choice of facilities in circumstances where the existing facilities were not inadequate.

Conclusion

The Court held that the conflicts with the Planning Scheme were significant, if not serious, rather than minor or technical. It was noted that the Planning Scheme indicated an awareness of the Airport and other locational attributes of the Land, but nevertheless contained a clear indication that the Land was to remain residential in nature. 

The Court did not find a requisite need in the community or sufficient grounds in the public interest to support the approval of the Proposed Development.

The Court upheld the Submitters' appeal, set aside the decision of the Council and refused the development application for 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.

Related Articles