Planning and Environment Court of Queensland determines proposed lots are of an appropriate size and shape despite not meeting the minimum lot size of 100 hectares in the strategic framework

In brief

The case of Torcross Investments Pty Ltd v Scenic Rim Regional Council [2023] QPEC 6 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Scenic Rim Regional Council (Council) to refuse to grant a development application for a development permit for reconfiguring a lot (one lot into two lots) in respect of land located at 27 Curtis Road, Canungra (Subject Land).

The Court considered the following issues, having regard to the relevant provisions of the Scenic Rim Planning Scheme 2020 in effect from 16 April 2021 to 16 June 2022 (Planning Scheme):

• Whether the reconfiguration would result in lots of an appropriate size and shape considering the relevant assessment benchmarks.

• Whether the reconfiguration was compatible with, and would protect and enhance, the rural character of the relevant zone, being the Rural Zone.

The Court held that the minimum lot size provisions are an important consideration, but not a complete prohibition against a development approval. The Court weighed up other considerations, such as the planning principles underpinning the Planning Scheme, the lack of physical change to the Subject Land, and the adequacy of proposed lots to accommodate rural activities, in making its judgment.

The Court held that the proposed lots will be the appropriate size and shape, and that the reconfiguration is consistent with the existing pattern of development and existing character of the area which is largely comprised of small blocks.

The Court set aside the Council's decision to refuse the development application.

Proposed lots are of an appropriate size and shape despite non-compliance with the Planning Scheme lot size provisions

The Court considered whether the reconfiguration will result in lots of an appropriate shape and size. The proposed lot sizes do not meet the minimum lot size of 100 hectares as provided in the Planning Scheme's Strategic Framework (Strategic Framework) (at [34]).

Despite the non-compliance with the minimum lot size provisions, the Court held that the proposed lots will be of an appropriate size and shape for the following reasons:

• Consistency with the planning principles underpinning the Planning Scheme – The planning principles underpinning the minimum lot size provisions for the Rural Zone relate to the protection of agricultural productive capacity and the protection of rural character (at [40]).

Considering that a part of the Subject Land is unsuitable for most agricultural activities, the Court held that the reconfiguration will not have any material impact on the agricultural productivity of the Subject Land or the locality of the region (at [46]). Therefore, the proposal will not be inconsistent with the underlying planning principles (at [40]).

• No physical change to the Subject Land – The Subject Land is already divided into two portions by a public road, with one portion being 28 hectares and the other being 5 hectares. The Court noted that the reconfiguration would not result in any physical change to the Subject Land but would simply reflect its current physical boundaries (at [46]).
  
  The Court was of the view that the reconfiguration will simply formalise the existing physical boundaries of the Subject Land and therefore will not result in any further fragmentation of the Subject Land (see [51] and [67]). The shape and size of the proposed lots will, in practice, remain the same.

• Proposed lots adequate to accommodate rural activities – The Court was satisfied that the proposed lots will be of an adequate size and shape to accommodate activities and uses consistent with what is envisioned in the Planning Scheme for the Rural Zone (at [47]).

The Court found that the reconfiguration will achieve the character and built form outcomes applicable to the Rural Zone (at [52]), and comply with the requirement that the rural character and use of land for agricultural production is protected and enhanced (at [50]). The proposal will also not change the uses which the proposed lots will be able to accommodate.

In summary, the Court found that, whilst minimum lot size is an important consideration, it is not a prohibition against a development approval. Other considerations under the Planning Scheme also need to be taken into account (at [73]).

Proposal is compatible with, and will protect and enhance, rural character

The Court noted that the Strategic Framework clearly requires a consideration of the existing character, as opposed to the intended character, when assessing development in the Rural Zone, which is evidenced by the requirement in the Planning Scheme that the proposal "recognise respect and integrate with the existing character" and "protect and enhance" rural character (at [56]).

The Court held that the reconfiguration is compatible with, and protects and enhances, the existing rural character (at [57]). The existing pattern of development in the area comprises of small blocks of less than 100 hectares, such that that the proposed lots will be consistent with the existing character of the area (see [58] to [59]).

Conclusion

The Court allowed the appeal and set aside the Council's decision. The Council's decision is to be replaced with a development approval subject to conditions agreed between the parties.