In brief

The case of Kenfrost (1987) Pty Ltd v CRC & Ors [2024] QPEC 15 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Cairns Regional Council (Council) to refuse a development application for a preliminary approval for a material change of use including a variation request and a development permit for reconfiguring a lot (three into 65 lots, new roads, and a balance lot) (Development Application) in respect of rural land designated for drainage and open space at Redlynch, Cairns (Subject Land).

The Court considered whether the proposed town planning and land use is acceptable, whether the proposed material change of use will result in unacceptable flooding, agriculture, soil, and visual amenity impacts, whether approval is contrary to reasonable public expectations, whether there is a need for the proposed material change of use, and whether there are relevant matters that either favour approval or refusal (at [5]).

The Court dismissed the appeal and refused the Development Application (see [10] and [168]).

Background

The Subject Land is adjacent to a recently approved residential subdivision and development comprising three stages (Redlynch Vistas). Stage three of the Redlynch Vistas development reduced the number of lots approved for that development to 55 by a negotiated decision notice, which notice also conditionally required the transfer of the balance land to the Council for "Town Planning Purposes - Drainage and Open Space" in conjunction with the registration of the 50th allotment in the approved development (see [15] and [117] to [118]). The balance land to be transferred to the Council included the Subject Land (at [15]).

The Development Application sought the development of residential lots on the Subject Land which was, pursuant to the transfer of the balance land to the Council, previously accepted as designated for drainage and open space (Proposed MCU) (at [126]). The Subject Land includes a strip of land to act as a buffer to adjoining agricultural uses, pursuant to a minor change application allowed by the Court in 2022 which was the subject of our October 2023 article (at [16]).

The variation request seeks to vary the effect of version 1.2 of the CairnsPlan 2016 (Cairns Plan) to create use rights consistent with the Low Density Residential Zone on the Subject Land (see [13] and [162]).

The Cairns Plan categorises the Subject Land as predominantly within the Rural Area as shown on strategic framework map SFM-1 Settlement Pattern in the Strategic Framework in the Cairns Plan (Strategic Framework), in the Rural Zone, subject to the Flood and Inundation Hazard Overlay and the Landscape Values Overlay, and outside of the Urban Area and the Priority Infrastructure Area boundary (at [18]). The Subject Land is within the Regional Landscape and Rural Production Area in the Far North Queensland Regional Plan 2009-2031 (Regional Plan) and is also characterised as Agricultural Land Class A or B by the State Planning Policy 2017 (SPP) (see [19] to [20]).

Court finds that the Proposed MCU conflicts with the assessment benchmarks in the Cairns Plan and the Regional Plan

The Court found that the Proposed MCU conflicts with the relevant assessment benchmarks in the Cairns Plan, the Regional Plan and the SPP for the following reasons:

  • Inclusion of the Subject Land in the 'Rural Zone' under the Cairns Plan ‒ The Court observed from the outset that the Proposed MCU is "…illogical in a town planning policy sense…" and fundamentally conflicts with the relevant assessment benchmarks in the Cairns Plan (at [54]). The Court recognised that, contrary to the Strategic Outcomes 3.3.1(2) and (8) of the Strategic Framework, the Proposed MCU "…does not confine urban development within the existing urban areas with infill development but seeks urban expansion beyond that boundary" (at [51]). The Court also observed that, contrary to Land Use Policy 4.1.1 of the Regional Plan, the Proposed MCU does not provide for the containment of urban development within the Urban Footprint (at [51]).

  • Impacts on landscape values ‒ The Court found that the Proposed MCU will result in unacceptable impacts on the landscape values, visual amenity, or character of the rural area in which the Subject Land is located by presenting as a visual intrusion into open space, contrary to Strategic Outcome 3.3.1(1)(m) and Specific Outcomes 3.3.6.1(4) and 3.4.4.1(2) of the Strategic Framework, Local Government Purpose 6.2.19.2(2)(c) and Overall Outcome 6.2.19.2(3)(d) of the Rural Zone Code of the Cairns Plan, and Purpose 8.2.10.3 and Overall Outcomes 8.2.10.3(2)(f)(ii) and (f)(iii), and (g)(i), (g)(ii), and (g)(iv) of the Landscape Values Overlay Code of the Cairns Plan (at [62]).

  • Impacts on flooding and drainage and on other land in the locality ‒ The Court found that the Proposed MCU relies on complex engineering solutions and may adversely impact on other premises due to stormwater drainage flows or flooding, contrary to Performance Outcomes PO1(d) and PO4 of the Excavation and Filling Code in the Cairns Plan (see [69] and [87]). Moreover, the Proposed MCU seeks excavation and filling in a natural hazard area, will not maintain the natural floodplain landforms and therefore does not enhance the natural drainage pattern, contrary to Assessment Benchmarks (3), (5), and (7) in Part E Natural Hazards, Risk and Resilience of the SPP (at [78]). The Court identified conflicts with numerous other assessment benchmarks in the Cairns Plan pertaining to the mitigation of climate change impacts and environmental risks, and maintenance associated with the impacts of flooding and inundation, including in the Strategic Framework - 3.3 Settlement Theme, the Strategic Framework - 3.4 Natural Areas and Features Theme, the Flooding and Inundation Hazards Overlay Code, and the Natural Areas Overlay Code (see [79] to [89]).

  • Loss of agricultural land and impacts on rural land to be used for agricultural purposes ‒ Specific Outcome 3.5.4.1(2) of the Strategic Framework provides that the availability and viability of rural land for ongoing agricultural use is not compromised by inappropriate or incompatible development (at [93]). The Court found that the Proposed MCU "…will likely result in a significant and unacceptable loss of agricultural land (in circumstances where it could still be made available to farming after transfer to the Council) and thereby diminish the available area that is currently designated and utilised for farming purposes" (at [99]).

The Court held that, as a result of the nature and degree of non-compliance with these assessment benchmarks, the Proposed MCU fails to advance the planning policy for the Subject Land and the strategic intent for the planning scheme area expressed in the Strategic Framework (at [100]). The Court stated that approval of the Proposed MCU would not accord with sound town planning practice and was unable to identify any reasonable and relevant conditions that could be imposed to resolve the non-compliances (see [148] to [149]).

Court finds that "relevant matters" do not weigh in favour of approval of the Proposed MCU

The Court considered the following relevant matters pursuant to section 45(5)(b) of the Planning Act 2016 (Qld) (Planning Act):

  • Treatment of the Subject Land as "rural land" ‒ The Applicant contended that the designation of the Subject Land as "rural land" has been "…overtaken by events and is not soundly based…" because there are flood studies which demonstrate that the Subject Land is suitable for urban development, the Subject Land will not be available for rural uses unless the Proposed MCU is approved, the Proposed MCU will adjoin urban residential development under construction rather than undeveloped rural land, and the Proposed MCU is on land adjoining facilities and services characteristic of an urban area (at [108]). The Court rejected that any of these contentions rendered treatment of the Subject Land as "rural land" unsoundly based (see [109] to [114]).

  • Current approvals of premises in the locality ‒ The Court found "…that the [Applicant's] proposal to now develop 65 housing lots on land previously accepted as designated for open space and drainage, in the absence of any changed circumstances, starkly contradicts the Stage 3 approval, reasonable community expectations and the public interest" (at [126]). This, the Court held, weighed in favour of refusal of the Proposed MCU.

  • Expansion of the existing approved urban area ‒ The Court rejected the Applicant's contention that the Proposed MCU "…represents orderly and logical development over a parcel of land that is effectively surrounded by land with existing or approved urban development and nearby to an array of infrastructure and services" and held that the Proposed MCU is not a logical inclusion into an urban area (see [127] to [128]).

  • Planning need and housing diversity ‒ The Applicant contended that there is a strong community, economic, and planning need for the Proposed MCU because the proposal is well located relative to infrastructure, there is a need for diversity and choice of household products in light of the projected 20-year population growth in the Cairns local government area, and such population growth necessitates the provision of additional residential development in an area popular with young families (at [135]). The Court accepted that the location of the Proposed MCU is "…attractive and convenient to public and private facilities…" but was not of the opinion that the Proposed MCU provides any significant house diversity and choice for the area, observing that it merely continues to add detached dwellings (at [137]). The Court expressed the opinion "…that there is no unsatisfied demand which is not being met or adequately met by the planning scheme in its current form" (at [141]) and rejected the Applicant's contention that there is an economic or planning need which warrants approval of the Proposed MCU (at [147]).

  • Community expectations ‒ The Court rejected the Applicant's assertion that it was within the community expectations "…that Redlynch Vistas may well include the proposed stage 4 having regard to its immediate adjacency to the existing stages, its compromise for agricultural use, and its location south of stage 3 and west of the cane tram line" (see [150] to [158]).

  • Public interest ‒ The Court rejected the Applicant's assertion that the Cairns Plan does not represent an embodiment of the public interest (at [159]).

Court finds that the Proposed MCU should be refused

The Court concluded that, given the nature and extent of conflict between the Proposed MCU and the relevant assessment benchmarks, and the absence of relevant matters supporting approval of the Proposed MCU, the Proposed MCU should be refused (at [7] and [161]).

Court finds that the variation request and the development permit for reconfiguring a lot should be refused

Having regard to section 61 of the Planning Act, which prescribes matters that the Court must consider when assessing a variation request, the Court observed that the variation request is inconsistent with the Cairns Plan, the Regional Plan, and the SPP, and would deny submission rights for later developments on the Subject Land (at [166]). The Court held that, in alignment with the refusal of the Proposed MCU, the variation request should be refused (at [166]).

Having found that the Proposed MCU and the variation request should be refused, the Court also refused the development application for a development permit for reconfiguring a lot (at [167]).

Conclusion

The Court dismissed the appeal and refused the Development Application (at [167]).

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 2024.

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