In brief

The case of Boyneglade Property Developments Pty Ltd v Gladstone Regional Council & Ors [2021] QPEC 48 concerned an appeal to the Planning and Environment Court of Queensland (Court) against a decision of the Gladstone Regional Council (Council) to refuse a development application for a preliminary approval, including a variation request for a material change of use for a relocatable home facility described as an "integrated retirement lifestyle development" on land at Benaraby (Subject Land).

The Court dismissed the appeal, finding that there was no need that justified the proposed development on the Subject Land which was zoned as rural. The Court also found that there were issues relevant to accessibility, noise, and reverse amenity which supported dismissing the appeal and upholding the Council's decision.

Background

The Subject Land is bordered by the Bruce Highway and Tannum Sands Road, and is located near the Council's regional landfill facility, as well as the Benaraby Motor Sport precinct. The closest supermarkets and public transport services are 6.6km from the Subject Land at the Tannum Sands Centre, and the Gladstone Hospital is 28km from the Subject Land.
 
The development application sought an approval for a material change of use for a relocatable home facility, residential care facility, and sport and recreation centre, and sought a preliminary approval varying the Gladstone Regional Council Planning Scheme (Version 2) (Planning Scheme) in respect of the levels of assessment for those uses. The proposed development involved 362 proposed relocatable home sites, however the size of the proposed residential care facility was unclear.

Court finds that there is no need for the proposed development

The land is within the Rural Zone. The Council contended that the proposed development was in conflict with numerous provisions of the Planning Scheme, in particular the provisions of the Rural Zone Code which states that opportunities for non-rural uses that are compatible with agricultural and rural activities and landscape character are contemplated where they do not compromise the long-term use of the land for rural purposes, and that urban and rural residential expansion is not to occur on land in the Rural Zone. The Council also relied upon performance outcomes in the Rural Zone Code which seek to preserve the rural character of the locality (at [21]).

The Court disagreed and found that the proposed development would not have any meaningful impact on the rural land, and that it therefore would not disrupt the preservation of the locality's character or long-term rural use.

The Appellant relied on relevant matters in support of approving the proposed development, in particular, that there is an economic, community, and planning need for the proposed development including the proposed sport and recreation uses such as an 18-hole golf course.

The Court held that the supply and demand for retirement housing in the area was found to be "roughly in equilibrium" when the area of Agnes Water was included in an analysis of the local housing demand (at [26]). However, the Appellant failed to demonstrate a need for the proposed golf course. The Appellant could not specify the capacity of the existing four golf courses in the Gladstone region to take on new members and there was also evidence that there has been a decline in demand for golf courses since 1998 in Australia.

The Court therefore held that the Appellant had not demonstrated the existence of an economic, community, or planning need for the proposed development (at [29]).

Court finds that the proposed development does not comply with the Planning Scheme's provisions in respect of accessibility 

The Council argued that the proposed development did not comply with the Planning Scheme in a number of ways, and the Council's town planning expert relevantly stated as follows (at [30]):

"…the site is isolated and is not a logical or planned extension of the settlement pattern. It does not integrate at all with existing or future urban development. It is not identified under the structure plan for…Boyne Island and Tannum Sands as a growth area nor is it part of the priority infrastructure area. It is remote from infrastructure and services. It is reliant on private transport and makes no provision for, nor is it capable of providing convenient pedestrian, cyclist or public transport networks external to the site. It does not create a walkable community."

The Court relevantly found that "[t]he likely consequences of the proposed development from a traffic and accessibility perspective are concerning" (at [34]). The Court went on to find that future residents would be completely reliant on a private vehicle, and that this issue is worsened by the inaccessibility of nearby shopping precincts, pharmacies, and hospitals etc. The Court therefore found that the proposed development was inconsistent with the performance and strategic outcomes of the Planning Scheme which, in particular, required that residents be within close proximity to services, particularly older generations as it allows them to age in place.

Court finds that that proposed development would give rise to reverse amenity issues

The Council argued that the proposed development would result in reverse amenity issues as a consequence of potential noise issues arising from the nearby facilities, particularly the Benaraby Motor Sport precinct.

Despite the Appellant's attempt to mitigate potential noise impacts by proposing earth mounds to block the sound, the Court held that "[i]t is a bad planning outcome to place 352 dwelling sites in proximity to uses which the respondent has deliberately sought to keep well away from residents because of their impacts." (at [37]).

Conclusion

The Court held that the "proposed development is inconsistent with planning strategies of the respondent evidenced in the Planning Scheme", that "it is not appropriately located" and that "if approved it is likely to give rise to reverse amenity issues" (at [39]). The Court found that there was no demonstrated need for the proposed development. 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 2022.

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