Planning and Environment Court of Queensland upholds a deemed refusal for development of a large rural holding into a master planned residential community

In brief

The case of E.J. Cooper & Son Pty Ltd v Townsville City Council & Anor [2021] QPEC 20 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the deemed refusal by the Townsville City Council (Council) of a development application (Development Application) to facilitate the development of a master planned residential community, supported by other uses and facilities (Proposed Development). The land is situated at 360 Round Mountain Road, Pinnacles, Townsville (Land) and the appeal was the oldest within the Court, commenced in 2013 with respect to the Development Application made in December 2008. 

The Development Application was made under the Integrated Planning Act 1997 (Qld) (IPA) and was for a preliminary approval for a material change of use, described as a "mixed use residential community comprising of residential, commercial, light industrial, community and open space and land uses within 9 separate neighbourhoods, to a maximum building height of 3 storeys or 12m" (MCU Preliminary Approval), and a variation to the planning scheme to change the level of assessment for 45 uses and to nominate applicable codes for uses, and for the assessment of future development applications for reconfiguration, and for operational works (Variation Approval) (at [7]).

As the Development Application had been made under the IPA, it was required to be dealt with and decided as if the IPA continued to apply, even though the IPA had been repealed, and the appeal was required to be heard and decided under the IPA because the appeal commenced before the commencement of the Planning Act 2016 (Qld).

The Court considered the following issues in the appeal:

1. Whether the new laws and policies can be applied in deciding the Development Application.

2. Whether the Development Application for the MCU Preliminary Approval ought to be approved, particularly considering its contemplated use and need.

3. Whether the Development Application for the Variation Approval ought to be approved.

The Court had regard to relevant new laws and policies and held that the Proposed Development ought to be refused because it was inconsistent with the uses contemplated under the relevant planning instruments and there was no evidence of a need for or any other matter which warranted an approval of the Proposed Development.

Court finds that new laws and policies are relevant in deciding the appeal

The Development Application was made under the City of Thuringowa Town Planning Scheme 2003 (Thuringowa Planning Scheme). However, since then, the Townsville City Plan 2014 (Townsville City Plan) and the North Queensland Regional Plan 2020 (NQRP) had taken effect. The Court concluded that the appeal must be decided on the basis of the Thuringowa Planning Scheme, however, it may give such weight as it considers appropriate to any new laws and policies (at [51]). The Court concluded that the provisions of the Townsville City Plan should be given considerable weight because it had been in force for a considerable period of time, and represented the contemporary expression of the planning intent for Townsville particularly in relation to a large, long-term development such as the Proposed Development which would be of significance in relation to the planning strategy for Townsville (at [53]). However, in relation to the NQRP, the Court attached less weight to it as it had only recently taken effect (at [58]). 

Court finds that the Proposed Development is inconsistent with the contemplated use

The Court held that the proposed residential development at suburban densities and for other urban uses significantly conflicts with each relevant planning document due to its urban, non-rural nature, and most notably in the following respects:

• Under the Thuringowa Planning Scheme, the Land is outside of the urban growth boundaries and is non-compliant with various Desired Environmental Outcomes in particular, in relation to land use patterns (see [60] to [68]).

• Under the Townsville City Plan, the Land is included in the Grazing Precinct in the Rural Zone and does not support the expansion of urban development into this zone (see [72] to [85]).

• The NQRP provides for an urban consolidation policy to prevent the continuation of an inefficient and expensive development pattern and of the lack of need, based on current supply, for residential development to continue outside of Townsville's existing urban area (see [87] to [88]).

The Court therefore held that the Proposed Development is a stark departure from the planning strategy with respect to land use (at [279]).

Court finds that there is no significant need to justify the Proposed Development

Another central question for the Court was whether a need had been established to support an approval of the Proposed Development, even though it was at odds with each relevant planning document. The Court concluded that there was no significant need for the Proposed Development because the Townsville City Plan and the planning strategy were based on the assumption that those documents set aside sufficient land for housing, businesses, and community uses to meet Townsville's needs for at least 25 years (at [278]). The evidence demonstrated that nothing had occurred which undermines that assumption and that would call for the Land to be approved for the Proposed Development (at [278]). 

The Court also found that the Townsville City Plan expressed an intention to monitor the supply of new land for residential development, however, as the next planning scheme review was due in just a few years' time, there was ample opportunity for the Council to respond to any possible future shortage (at [278]).

The Court therefore concluded that the Development Application for the MCU Preliminary Approval ought not be approved, given the significant inconsistency with the planning strategy with respect to land use and the absence of any significant need. Having decided to refuse the Development Application for the MCU Preliminary Approval, the Court held that pursuant to section 3.5.14A(2) of the IPA, it is required to also refuse the Development Application for the Variation Approval (at [291]).

 Court assesses other matters for and against the Proposed Development

There were other matters raised against the Proposed Development which served to reinforce the decision to refuse the Development Application, including the following:

• The Proposed Development would detrimentally affect the existing and future rural amenity and landscape character of the Rural Planning Area and the degree of impact on that area would be significant (see [99] to [102]).

• Keeping the Land as a rural holding is a preferable outcome from an ecological perspective than permitting it to be developed as proposed (see [134] to [135]).

• Although the impact of noise in and of itself does not warrant a refusal of the Development Application, it contributes to some extent to the rural character and amenity of the area (at [137]).

• The Proposed Development is inconsistent with the planning instruments with respect to infrastructure and this does not cease to be the case because the developer is prepared to meet the capital, operational, and renewal costs of the required infrastructure (at [159]).

• The extent of erosion on the Land would not prevent the Proposed Development being realised but erosion controls beyond those normally employed in subdivisions would be required. Although the Court accepted that rehabilitation would be a benefit, steps could be taken for a fraction of the cost of rehabilitation by way of responsible and appropriate land management practices in the context of a rural land use to stabilise the Land so as to address the risk of further erosion (at [259]).

There were also grounds in favour of approval, some of which the Court accepted as having some substance, such as the protection of primary industries in adjacent rural land (at [149]), the benefit to be obtained from having a flood refuge on the Land (see [254] to [257]), and that the development was unlikely to have a detrimental effect on the traffic (at [200]). However, none of these grounds, considered individually or collectively, altered the Court's ultimate decision that the Proposed Development ought to be refused.

The Court was also asked to consider approving the Proposed Development in part, but given that relatively little argument was directed to this submission, the Court held that it was difficult to see the rationale for a part approval (see [281] to [282]). 

Conclusion

The Court therefore dismissed the appeal and upheld the refusal of the Development Application.