In brief

The case of I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36 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 of land (Development Application). 

The Development Application involved the renovation and extension of an existing licensed restaurant and caretaker's residence to a "paddock-to-plate" style hotel and an associated bottle shop. The Council contended that the proposal was the "…antithesis of good planning as it involves an inappropriate use of flood affected land…" (at [2]). 

The Court considered the following issues: 

  • Land use - Whether the proposed development was an unacceptable use of the land when assessed against the Sunshine Coast Planning Scheme 2014 (Planning Scheme)? 

  • Flooding risk - Whether the proposed development resulted in unacceptable risks from flooding? 

  • Need - Whether there was an economic, community, or planning need for the proposed development? 

The Court found that the proposed development did not comply with the Planning Scheme in a number of respects, which would ordinarily carry considerable weight in the exercise of its planning discretion. However, the Court found that the potency of the non-compliances was diminished by the circumstances of the case to the extent that the Court was satisfied they would not result in unacceptable town planning consequences that warranted refusal. Furthermore, the Court found that there was a planning need for the proposed development and that it would result in improved flood outcomes compared to the previous use.

Court found that the "real world factors" and unusual circumstances materially diminished the weight of the non-compliances with the Planning Scheme 

The Court considered the relevant provisions of the Planning Scheme and found three key areas of non-compliance: 

  1. Rural Residential Zone - "Hotel" is an inconsistent use in the zone.

  2. Sunshine Coast Activity Centre Network - The proposed development did not support the pattern of development expressed in the Planning Scheme and may undermine the Activity Centre Network Strategy because it involves a centre activity outside of the Centre Zone.

  3. Local growth management boundary and rural residential growth boundary - The proposed development involved urban development outside of the urban growth management boundary and within the rural residential growth boundary. 

The Court stated that these departures from the Planning Scheme's planning strategies would usually attract considerable weight. However, the Court held that there were the following unusual circumstances and "real world factors" that materially diminished the potency of the non-compliances: 

  • The current approved use for the land, and a number of other local uses, were already inconsistent with the Planning Scheme's planning strategies.

  • Despite being characterised differently under the Planning Scheme, the proposed use shared some important characteristics with the approved use, namely they were commercial in nature and involved the provision of dining and entertainment for patrons.

  • The proposed development was compatible with the existing character and amenity of the locality. 

  • The evidence established that "hard" amenity impacts such as traffic, visual amenity, and noise could be conditioned to achieve compliance.

  • The proposed development would not result in unacceptable economic outcomes or compromise the Activity Centre Network Strategy as the existing centre at Eumundi was too well established to fail and an out of centre use had already been conducted on the subject land.

Court found that the proposed development could be conditioned to comply with the flood risk components of the Planning Scheme and would result in improved flood outcomes compared to the approved use 

The subject land is flood affected because of its proximity to Doonan Creek. The Council argued that the proposed development ought to be refused because it did not comply with assessment benchmarks with respect to flooding, in particular Performance Outcomes PO3 and PO4 in Table 8.2.7.3.2 of the Flood Overlay Code.

The Court agreed with the evidence of the Appellant's flood expert, which established that the proposed development represented a superior response to flood risk than the current approved use. In particular, the Appellant proposed the imposition of a condition requiring compliance with a Flood Evacuation Management Plan which the Court determined would ensure the safety of people and minimise the risk of harm to property and the natural environment from flooding. The Court was therefore satisfied that the development could be conditioned to ensure compliance with the Planning Scheme as it related to flood risk.

Court found that the proposed development would meet a demand not adequately provided for by the Planning Scheme

The Court found that the evidence established that there is a sufficient population in the trade area to support the proposed development and that there is an under provision of commercial hotel licenses and packaged liquor outlets on the Sunshine Coast. 

While the Court acknowledged that residents living in the Rural Residential Zone should expect to travel further to access services when compared to urban residents, the Court determined that the travel distances required for residents in the trade area to access the services proposed by the development were unreasonable. The Court therefore held that the proposed development was well situated to meet a latent unsatisfied demand that is not being met. 

Conclusion

The Court allowed the appeal and set aside the Council's decision. The Court made orders with respect to the preparation of a suite of conditions. 

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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