In brief

The case of Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council [2021] QPEC 58 concerned a developer appeal to the Planning and Environment Court of Queensland (Court) against a decision of the Logan City Council (Council) to refuse a development application to reconfigure a lot to create eight lots for a residential care facility.

The land is zoned as low density residential and is within the Small Acreage Precinct under the Logan Planning Scheme 2015 (Version 6) (Planning Scheme). The Court dismissed the Appeal, finding that the proposed development would be an overdevelopment and would not comply with the relevant provisions of the Planning Scheme relating to density, local amenity, and character. Further, the Court found that non-compliance with the Planning Scheme would undermine the ability for the Small Acreage Precinct to be properly consolidated, and that a mere lack of adverse impacts caused by the proposed development was not determinative.

Court found that the proposed development would result in overdevelopment 

The Court referred to the relevant sections of the Planning Scheme and found that the development would:

  • be inconsistent with the character and amenity of the Small Acreage Precinct under the purpose statement found in section 6.2.5.2(3) of the Low Density Residential Zone Code, and Performance Outcomes PO18 and PO19 of that Code;
  • not meet the requirements for lot sizes, boundary clearances, and density in the area under the purpose statement found in section 6.2.5.2 of the Low Density Residential Zone Code, and Performance Outcome PO4 and Acceptable Outcome AO4 of that Code; and
  • undermine the ability for the Small Acreage Precinct to be properly consolidated. 

The Court relied upon the evidence given by the Council's town planning expert that the proposed development would result in lot sizes being 50 per cent to 34 per cent smaller than the prescribed minimum lot size (at [29]).

The Council's town planning expert also gave evidence that the landscape character would dominate the built environment in the area under Performance Outcome PO18 of the Low Density Residential Zone Code, and that the reduced lot sizes would compromise the achievement of the intended character of the precinct (at [34] to [37]). The Court agreed and found that the proposed development would result in an "overdevelopment" and would be "…inconsistent with the character amenity intended for the small acreage precinct." (at [118]).

Court found that a mere lack of adverse impacts was not determinative 

The Appellant argued that the proposed development should be approved as it would not cause any adverse impacts on traffic, flooding, bushfire or geotechnical matters, ecology, acoustics, air quality, odour, or lighting that are typical of overdevelopment. The Appellant therefore submitted that refusing the proposed development would be too inflexible, treating a technicality of the Planning Scheme as "…an end in itself." (at [97]). 

However, the Court disagreed, instead agreeing with the Council that residential density is an important factor in and of itself. The Court considered a mere lack of adverse impacts to not be determinative (at [120]).

Court found that major Planning Scheme amendment would not impact the outcome

The Court also considered amendments to the Planning Scheme, which at the time of the Appeal had been submitted to the State for a State-Interest Check before the public notification stage. 

The Court found that as the amendment was at an early stage, it ought not be given significant weight when considering the proposed development. If the amendment were to end up not being adopted, the Court considered that this "…would tend to entrench a non-complaint development cutting across the existing planning intent for the land and the locality under the scheme." (at [127]).

Conclusion

The Court found that the proposed development would result in an overdevelopment of the area that would not be consistent with the local character and amenity. 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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