In brief

The case of Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the refusal by the Cairns Regional Council (Council) of a development application for a development permit for a material change of use of land for a service station, shop, and food and drink outlet, and a development permit for reconfiguring a lot (boundary realignment).

The Court considered the following issues that were in dispute between the parties having regard to the relevant provisions of the Cairns Plan 2016 (Version 2.1) (Planning Scheme) (see [25]):

  1. Issue 1 – Whether the proposed development is appropriate for the Subject Land. 

  2. Issue 2 – Whether the proposed development would have an unacceptable impact on rural character and scenic amenity. 

  3. Issue 3 – Whether any relevant matters warrant approval of the proposed development, in particular whether there is a sufficient need for the proposed development. 

The Court relevantly held that "[t]here is a strong intent running through the [P]lanning [S]cheme that the [Subject Land] is not to be developed in a manner contemplated by the proposed development" (at [2]), and that the Applicant did not demonstrate that there were relevant matters or a sufficient level of need for the proposed development to overcome the "fundamental and serious inconsistencies" with the Planning Scheme (at [41]).

Whilst the proposed boundary realignment was not a central focus in the Court's reasons, the Court also held that it was not justified (at [42]).

Background

The Subject Land comprises two mostly flat, unimproved lots with a combined area of 22 hectares and is located in a rural area characterised by its rural amenity and rural uses.

Under the Planning Scheme, the Subject Land is located within an inter-urban break and the Barron River floodplain. The strategic framework, rural zone code, and flood inundation overlay code of the Planning Scheme relevantly seek to protect the rural character of the rural area and the scenic amenity of the inter-urban break. The Subject Land is also mapped as having high landscape value, which value is broadly defined under the Planning Scheme to be "[l]andscape attributes perceived by the community and visitors as contributing to the attractive scenery and distinctive visual imagery of the Cairns region".

The proposed development relevantly comprises a service station, two fast food outlets, a kiosk, a dining area, amenities, and a heavy vehicle drivers' lounge that would operate 24/7. Outdoor structures are proposed to be built to cover the fuel bowser dispensers and the entrance to the service station, and large signs are proposed to draw attention to the facility.

Assessment of the proposed development

The Court relevantly had regard to the following planning law principles in assessing the proposed development under section 60(3) of the Planning Act 2016 (Qld) (see [13] to [15] and [34]):

  • The starting point is that any compliance or non-compliance with the Planning Scheme is to be accorded the appropriate weight determined by the decision-maker by virtue that a planning scheme is a reflection of the public interest that is to then be considered and balanced with any other relevant factors (citing [42] to [43] of Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2020] 48 QLR; (2020) 246 LGERA 90 (Abeleda)).

  • Planning instruments are to be constructed according to the same principles as the construction of statutes identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 and "…need to be read as a whole, in a way which is practical and as intending to achieve a balance between outcomes" (citing [52] of Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82).

  • Planning need is widely interpreted as "…indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community…need cannot be a contrived one…there is a latent unsatisfied demand which is either not being met at all or is not being adequately met…" (citing [21] of Isgro v Gold Coast City Council [2003] QPEC 2; (2003) QPELR 414).

Issue 1 – Proposed development is inappropriate for the Subject Land

Although the Court accepted that the proposed development may be suited for the Subject Land from a "purely functional perspective", it is at odds with the clear planning strategy and intent for the Subject Land and would result in "unacceptable planning consequences" (at [33]).

The Court held that the proposed development was not reflective of the Planning Scheme for the reasons that it would compromise the long-term use of the Subject Land for rural purposes, would result in the fragmentation of agricultural land, would have an "…intrusive effect on the rural or scenic values" of the Subject Land, and would compromise landscape values (at [29]).

Issue 2 – Proposed development would unacceptably impact rural character and amenity

The Court agreed with the Council's visual amenity expert that there was "...nothing about the proposed development [related] to the rural landscape character…It will present as a disparate and incongruent intrusion into the rural landscape" (at [8]).

Issue 3 – Sufficient need and relevant matters not demonstrated to override inconsistencies with the Planning Scheme

The Court was not persuaded by the Applicant's need expert that there was a sufficient level of need for the proposed development either upon an assessment based on the road transport industry or tourist industry. The five operating service stations, one approved service station, and three proposed services stations within the relevant area were sufficient to meet any need (see [35] to [40]).

The Court held that any need or benefits of convenience, competition, and choice were insufficient to overcome the extent of the inconsistencies with the Planning Scheme (see [41] and [26]).

The Applicant's submission in respect of community expectations was also unsuccessful because the Court held, consistent with the Court of Appeal's decision in Abeleda, that the Planning Scheme was a reflection of the public interest and was the source of community expectations (at [27]).

Conclusion 

The Court held that the proposed development would be "a significant and unacceptable encroachment" into the rural area and that there was not a planning need or other relevant matters that justified granting an approval despite the non-compliances with the Planning Scheme.

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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