In brief

The case of Hill & Ors v Sunshine Coast Regional Council [2021] QPEC 59 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Sunshine Coast Regional Council (Council) to refuse a development application for a material change of use for multiple dwelling units of land located at Bli Bli (Subject Land).

The primary issues for the Court relevantly concerned the consistency with and any unacceptable negative impact of the proposed development on the character of the locality (at [2]).

The Court observed that an inconsistency with an important provision of a planning scheme was not determinative of the appeal. The significance of an inconsistency "…is to be determined by understanding the context of the provision…" within the relevant planning scheme (at [20]).

The Court allowed the appeal despite some inconsistency with the Sunshine Coast Planning Scheme 2014 (Version 16) (Planning Scheme) because the design of proposed development was well-suited for the unique layout of the Subject Land, which would see any effects on the character and amenity of the locality reduced to a "negligible level" (at [42]).

Subject Land and proposed development

The Subject Land is a battle-axed 3,107 m2 lot. The developable area of the Subject Land is 1,978 m2 because it is burdened by the following easements (at [4]):

  • A 1,129 m2 easement for the benefit of Telstra that has on it a Telstra exchange building, which resembles a detached dwelling, and a shipping container.
  • An easement over the remaining 1,978 m2 for the purpose of light and air.
  • An unregistered easement along the south-east boundary.

The Subject Land is serviced by telecommunications, water, sewerage, electricity, and stormwater drainage. The surrounding locality comprise detached houses on varying lot sizes (at [5]).

The proposed development was for five dwelling units in three seperate buildings of a "dwelling house scale", with two dwellings to be located each within a single building and separated by a common wall and for the fifth dwelling to be located in a single building.

Planning Scheme 

The Subject Land is located within the Urban Growth Management Boundary and Low Density Residential Zone of the Planning Scheme. The Low Density Residential Zone Code (LDRZ Code) and Multi-Unit Residential Units Code (MCRU Code) were applicable to the Court's assessment of the development application.

The multiple dwelling use proposed by the development application was not a use contemplated by the LDRZ Code and was therefore an inconsistent use (at [17]).

The proposed development was also inconsistent with Acceptable Outcome AO2.2 of the MURU Code, which stated that a multi-unit residential use was not to be located on a "hatchet/battle axe lot" (see [18] to [19]).

Proposed development would maintain local character and would not have an unacceptable impact on amenity 

The Court held that the proposed development, despite the inconsistencies with the Planning Scheme, would maintain the local character and was appropriate for the Subject Land for the following reasons:

  • The approval of the proposed development would not have a significant impact on the character of the locality (at [22]), which the Planning Scheme required be predominantly of detached dwelling houses.
  • The proposed development was for low-rise and low-density development as required by the LDRZ Code (see [23] to [26]).
  • The proposed development was consistent with Performance Outcome PO2 of the MURU Code, which reduced the Court's concerns in respect of the Subject Land being a battle-axed lot (see [27] to [29]).
  • The Subject Land has unique qualities, including good vehicular and pedestrian access, a buffer to the south comprising an old sugar cane railway and cutting, and is largely screened to the north by mature vegetation, which reduce any negative effect on the local amenity to almost a "negligible degree" (at [29]).
  • The proposed development, including the construction of an 1.8 metre fence that would divide the Subject Land from a neighbouring property, would not have an unacceptable impact on the amenity of the locality (see [33] to [37]).

Conclusion

The Court held that the proposed development warranted approval given the lack of adverse impacts on character and amenity and any other negative impacts.

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 2022.

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