No error of law to fuel an application for leave to appeal to the Queensland Court of Appeal

In brief

The case of Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) in respect of the dismissal by the Planning and Environment Court of Queensland (P&E Court) of an appeal against the refusal by the Cairns Regional 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 P&E Court relevantly held in the case of Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6 that there was a strong planning intent in the Cairns Plan 2016 (Version 2.1) (Planning Scheme) that the subject land is not to be developed as contemplated by the proposed development and that there were no relevant matters or a sufficient level of need for the proposed development to overcome the "fundamental and serious inconsistencies" with the Planning Scheme in respect of rural land use, rural and scenic values, and the maintenance of agricultural land. A summary of the P&E Court's decision is available in our July 2022 article.

The Applicant contended that the following errors of law warranted the grant of leave to appeal to the Court of Appeal:

• Ground 1 – The P&E Court erred in its application of section 45(5)(a) (Categories of assessment) of the Planning Act 2016 (Qld) (Planning Act) because it did not determine whether the proposed development complied with the Service Station and Car Wash Code (SSCW Code) in the Planning Scheme.

• Ground 2 – The P&E Court erred in its interpretation and application of performance outcome PO5 of the Rural Zone Code and the Landscape Values Overlay Code of the Planning Scheme.

• Ground 3 – The P&E Court erred in its assessment of need for the proposed development.

The Court of Appeal had regard to the following matters and refused to grant leave to appeal because it did not find any error or mistake of law by the P&E Court:

• The process for a decision-maker under section 60 (Deciding development applications) of the Planning Act involves balancing the factors permitted to be considered under section 45(5) and the weight to be given to each factor is a matter for the decision-maker in the circumstances (at [7]).

• The requirement in section 45(5)(a)(i) of the Planning Act that an impact assessment must be carried out "against the assessment benchmarks in a categorising instrument for the development" does not require a decision-maker to make an express finding about every assessment benchmark referred to by a party (at [16]).

• Whilst the assessment of need is informed by the following principles stated in [21] in the case of Isgro v Gold Coast City Council [2003] QPEC 2; (2003) QPELR 414 (Isgro case), it is a flexible process that is not constrained by the principles as if they are a checklist to be ticked off by a decision-maker in every case (at [30]):

  • "Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community".

  • "[N]eed cannot be a contrived one".

  • "…[T]he basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met".

• "[N]eed is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account" (at [30]).

Ground 1 – Express finding in respect of the SSCW Code was not required 

The Applicant alleged that the P&E Court did not expressly determine whether the proposed development complied with the SSCW Code and accordingly could not undertake the balancing exercise required under section 45(5) and section 60 of the Planning Act.

The Court of Appeal did not find an error of law by the P&E Court and held that it was unnecessary for the P&E Court to make an express finding in respect of the SSCW Code in the following circumstances (see [9] to [17]):

• The SSCW Code is at the bottom of the hierarchy of the assessment criteria because it is a use code over which the strategic framework, state-wide codes, overlay codes, local plan codes, and zone codes prevail.

• The parties' town planning experts were of the opinion that the proposed development complied or generally complied with the SSCW Code and it did not assume significance in their evidence.

• The P&E Court accepted that the development application was for three separate uses being a service station, a shop, and a food and drink outlet.

Ground 2 – No misconstruction or misapplication of the Planning Scheme provisions

The Applicant alleged that the P&E Court misconstrued the words "site coverage" in performance outcome PO5 of the Rural Zone Code of the Planning Scheme, by taking into account the whole of the proposed development rather than limiting it to the definition of "site cover" in the Administrative Definitions in schedule 1.2 of the Planning Scheme, which states as follows:

"The proportion of the site covered by a building(s), structure(s) attached to the building(s) and carport(s), calculated to the outer most projections of the building(s) and expressed as a percentage.

The term does not include:

• any structure or part thereof included in a landscaped open space area such as a gazebo or shade structure; 

basement car parking areas located wholly below ground level

• eaves and sun shading devices."

The Court of Appeal held that the language in performance outcome PO5, which required a qualitative analysis, suggests in that context that the term "site coverage" has a broader scope than "site cover" and did not find an error of law by the P&E Court (see [24] to [25]).

The Court of Appeal also held that the Applicant's allegation of an error of law in respect of the misapplication of the Landscape Values Overlay Code was not made out (at [26]).

Ground 3 – P&E Court did not err in its assessment of need

The Applicant alleged that the P&E Court erred in its assessment of need in the following respects:

• The P&E Court took into account evidence of development applications for service stations in the northern beaches of Cairns, the lack of evidence that residents of the northern beaches catchment had to queue to obtain fuel or of there being any convenience or lack of choice, and the lack of evidence from people involved in the road transport or tourist industries.

• The P&E Court erred in its assessment of whether there was a latent unsatisfied demand for the proposed development and whether an approval would improve the ease, comfort, convenience, or efficient lifestyle of the community.

The Court of Appeal found no error of law by the P&E Court and held the following (see [28] to [36]): 

• Ground 3 went to factual matters and was cloaked as an alleged error of law.

• Whilst "[i]t may be accepted that development applications, as opposed to approvals, are not a sure guide of what may be expected to occur in the future", the P&E Court referred to other development applications only in the context of identifying that there are other sites on which need for components of the proposed development, if there was any need, could be met.

• The P&E Court applied the principles relating to need referred to in the Isgro case and it was artificial to read the aspects of the P&E Court's reasons relevant to Ground 3 as divorced from other factors considered.

Conclusion 

The Court of Appeal held that no error of law had been made out and refused to grant leave to appeal against the decision of the P&E Court.