Queensland Court of Appeal finds that approving development which conflicts with a planning scheme requires evidence of why land that does not have those conflicts is not suitable

In brief

The case of Redland City Council v King of Gifts (Qld) and HTC Consulting Pty Ltd & Anor [2021] QCA 210 concerned an appeal by the Redland City Council (Council) to the Queensland Court of Appeal (Court of Appeal) against a decision of the Planning and Environment Court of Queensland (P&E Court) to approve a development application for a material change of use (Development Application) of land located at Alexandra Hills, Queensland for a service station and drive-through restaurant (2020 Approval).

The Court of Appeal held that the primary issue for the P&E Court was "whether there was a need for the development in a location where [version 4 of the Redland City Plan (Planning Scheme)] provided that it should not occur, as distinct from more generally in the area, or a part of the area, governed by the [P]lanning [S]cheme" (at [22]). 

The Court of Appeal held that a determination that a conflict with a planning scheme ought to prevail requires reasons as to why the terms of the planning scheme ought not to prevail, for example, the development is required in a particular location because of the need of the community in that particular location. The Court of Appeal held that a determination that a conflict ought to prevail requires more than a conclusion that a conflict with the planning scheme is reduced because the proposed development complies with some aspects of the planning scheme (at [49]).

The Court of Appeal held that the P&E Court's reasons for granting the 2020 Approval did not include that the benefits of the proposed development were exclusive to the subject land, nor that there was no other more suitably zoned land within the relevant area that could meet the perceived need for the proposed development (at [22], [29], [39], [40], and [50]).

The public interest in conformity with the Council's Planning Scheme is more critical than any public interest that would likely be served by the 2020 Approval (at [12]). This finding was supported by the Court of Appeal's decision in the case of Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; (2020) QPELR 631, which held that the "need" for a development is only a starting point that does not override the requirement for compliance with a planning scheme; "…need should [be] met by a development on a site that does not give rise to a conflict." (at [48]). 

The Court of Appeal held that the P&E Court erred in fact because the evidence before the P&E Court did not support the finding that there was a need for the proposed development on the subject land that could not be met on other more suitable land. The Court of Appeal set aside the 2020 Approval and dismissed the appeal to the P&E Court.

2020 Approval proceeding 

King of Gifts (Qld) and HTC Consulting Pty Ltd (the First Respondents) appealed to the P&E Court against the Council's refusal of the Development Application. In 2018, the P&E Court approved the Development Application (2018 Approval) subject to conditions (see King of Gifts (Qld) Pty Ltd v Redland City Council & Anor [2017] QPEC 64 and our March 2018 article).

The Council appealed to the Court of Appeal against the 2018 Approval. The Court of Appeal allowed the appeal and found that the P&E Court had erred in principle in the application of section 326 of the now repealed Sustainable Planning Act 2009 (Qld) (SPA) because the proposed development conflicted with the Planning Scheme. The Court of Appeal remitted the proceeding to the P&E Court for redetermination (see Redland City Council v King of Gifts (Qld) Pty Ltd & HTC Consulting Pty Ltd & Anor [2020] QCA 41; (2020) 3 QR 494 and our August 2020 article).

On redetermination of the Development Application, the P&E Court held that the proposed development was "…fundamentally different in nature and size…to the types of uses and development…" that the Planning Scheme envisaged for the subject land (at [82]), but nevertheless granted the 2020 Approval. 

The P&E Court held that the following matters established compliance with section 326(1)(b) of the SPA in that there was a greater public interest in approving the Development Application than the public interest in strict compliance with the requirements of the Planning Scheme:

1. Need for the proposed development – There was a strong need for the proposed development on the subject land for the growing community that was not being addressed by existing development. 

2. Improvement of residents' well-being – There would be an improvement in the well being of the residents of the relevant trade area because the proposed development would be conveniently located, accessible, and without unacceptable impacts on amenity and environment. 

3. Insufficient provision of centre zones – The Planning Scheme did not reflect the public interest because of the following:

• The Council conceded that the Planning Scheme did not include sufficient land to cater to the needs of the growing population in the centre zones where uses like the proposed development were appropriate. 

• The Council supported the development of a full service supermarket with an associated tavern and service station to the east of the subject land.

4. No undue conflict – The proposed development would not destroy local amenity nor materially compromise the environmental and visual amenity goals in the Planning Scheme.

5. Upgrade of road network – The proposed development would facilitate the upgrade of the road network. 

2020 Approval on the particular location was not required

The Court of Appeal relevantly held the following in respect of the matters relied on by the P&E Court for the 2020 Approval: 

1. Need for the proposed development – The finding that there was a need for the development on the subject land was not supported by the economic need and town planning reports (Expert Reports), which primarily related to need generally in the relevant trade area and not to the particular attributes of the subject land, nor that a different, more suitably zoned location could not fulfil the need (see [22] to [39]). 

2. Improvement of residents' well-being – The Expert Reports related generally to the relevant trade area and did not relate to the subject land or its particular characteristics (at [40]).

3. Insufficient provision of centre zones – The lack of suitably zoned land and the Council's support of a full-line supermarket in what was a more urbanised area was not a basis for disregarding the other inconsistencies with the Planning Scheme (at [47]).

4. No undue conflict – The finding that the seriousness of a conflict is reduced by the proposed development otherwise complying with aspects of the Planning Scheme did not establish why the Planning Scheme should not prevail (at [48]).

5. Upgrade of road network – The P&E Court did not find that the upgrade of the road network could not be provided by development on other more suitably zoned land within the relevant trade area, and the upgrade of the road network was not the sole reason for granting the 2020 Approval (at [50]).

The Court of Appeal held that the evidence relied on by the P&E Court did not factually support the matters identified as being supportive of the 2020 Approval. What was required was an explanation as to why the 2020 Approval was necessary on the subject land as opposed to other land within the relevant trade area.

Conclusion

The Court of Appeal allowed the appeal because it was not satisfied that the P&E Court's grant of the 2020 Approval was supported by the evidence, and set aside the P&E Court's final order and dismissed the First Respondents' appeal to the P&E Court.