In brief

The case of Black Inc Architecture Pty Ltd v Ipswich City Council [2020] QPEC 13 concerned an appeal to the Planning and Environment Court (Court) under section 229 of the Planning Act 2016 against the Ipswich City Council's (Council) decision to refuse the Appellant's development application requiring impact assessment for a material change of use for a child care centre (Development Application). 

The Court dismissed the appeal on the basis that the proposed development did not comply with the Ipswich Planning Scheme (Planning Scheme) for the following reasons: 

  • the proposed development would not avoid areas prone to flooding, as required by Specific Outcome (15)(a) of the Community Use Code in the Planning Scheme (Code) and Policy 4 in the State Planning Policy (SPP), as parts of the development would be below the adopted flood regulation line; 

  • the proposed child care centre would not be able to function effectively during and immediately after a flood as required by Specific Outcome (15)(b) of the Code and Policy 6 in the SPP, which was evidenced by the requirement in the Appellant's flood emergency plan that the child care centre be closed where flood waters exceed RL 17.50 metres and the evidence that the period of each closure would be determined on a case-by-case basis; 

  • during a flood event which required the closure of the child care centre, the need to contact others to aid in the evacuation of the children would increase the number of people impacted by the flooding risk, contrary to Overall Outcome 2(e) of the Development Constraints Overlay in the Planning Scheme (Overlay) and a number of other provisions in the Planning Scheme;

  • the proposed development could not operate harmoniously with the flooding constraints of the subject land, particularly given that the proposed use must cease where flood waters exceed RL 17.50 metres, and therefore the new use was not compatible with the constraints of the land as required by Specific Outcome 41(a)(i);

  • the Planning Scheme requires flood risks to be managed in a way that is consistent with the contemporary planning practice for natural hazards in Queensland, which the proposed development did not achieve. 

Parties' positions

The Council refused the Development Application on the basis that the proposed development does not comply with a number of the assessment benchmarks in the Planning Scheme and the SPP relevant to flooding. 

The Appellant contended that the non-compliances with the Planning Scheme and the SPP could be managed through the use of conditions that require the development to be constructed above the adopted flood regulation line and the 1 in 200 year flood, and through the implementation of and compliance with a flood emergency plan. 

Proposed development does not avoid an area prone to flooding and cannot operate effectively during or after a flood 

The Code applies to the proposed child care centre use and relevantly Specific Outcome (15) requires a consideration of whether the proposed development avoids areas prone to flooding and is able to function effectively during and immediately after a flood event. The corresponding requirements in the SPP are substantially similar. 

The Court interpreted the words in the Planning Scheme literally and determined that Specific Outcome (15) requires that development 'keep away from' or 'keep clear of' or 'evade' an area prone to flooding. The Court held that it was not enough for the proposed development to be constructed above the flood regulation line. 

The Court therefore rejected the Appellant's argument that the development ought to be approved because it was to be constructed at a height to avoid the impact of a flood event. The Court also rejected the Appellant's argument that the development ought to be approved because the Appellant proposed to reduce the life of the child care centre use to 50 years because, although such a restriction would have the effect of reducing the potential impacts of climate change and the risk of flooding, the Planning Scheme required the development avoid a flood prone area and that was not demonstrated. 

The Court also found that it was not satisfied that the whole of the development proposed, in particular the staff car park and the foundations of the development, would be safely above the flood constraints of the subject land. 

The Court found that a child care centre is a vulnerable use during a flood, a position supported by the SPP. The Court found that the evacuation of the child care centre in the event of a flood would create a higher risk to people and thus be contrary to Overall Outcome (2)(e) of the Overlay, as well as other provisions in the Planning Scheme. 

Although the flood emergency plan went to great lengths to mitigate the impacts of a flood event, including through the closure of the child care centre when flood levels exceed RL 17.50 metres, the Court considered it to be undesirable for a child care centre to cease during a natural hazard. 

The Court was therefore not satisfied that the child care centre could operate effectively during a flood event. Nor was it satisfied that the child care centre could operate effectively after a flood event, which was confirmed in the flood emergency plan which stated that the length of recovery would depend on the severity of the flooding and the time it took for water to recede. 

A child care centre is incompatible with flooding constraints

Although Sub Area SA41 of the Planning Scheme envisaged that a child care centre may be a suitable use in that sub-area, the Court undertook an assessment of whether the child care centre could operate harmoniously with the flooding constraints on the subject land and concluded that the use gave way to the flooding constraint in the event of a flood, which was supported by the flood emergency plan put forward by the Appellant.

The Court therefore held that there was considerable non-compliance with the Planning Scheme.

Conclusion

The Appellant did not demonstrate that the proposed child care centre use complied with the assessment benchmarks relating to flooding in the Planning Scheme and the SPP. The Court therefore dismissed the appeal. 

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 2020.

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