In brief
The case of JJJM Pty Ltd v Council of the City of Gold Coast [2024] QPEC 9 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Council of the City of Gold Coast (Council) to refuse a development application for a material change of use for caretaker's accommodation and animal keeping (Application) in respect of a site situated at 13 Monday Drive, Tallebudgera Valley, Queensland (Site).

Under the Gold Coast City Plan 2016 (Version 7) (Planning Scheme) animal keeping is code assessable and caretaker's accommodation is accepted development subject to requirements, unless such requirements are not met, in which case it is code assessable (at [16]).

The Court considered the issues in dispute broadly relating to ecology, bushfire, and traffic and whether the relevant assessment benchmarks are complied with, noting the discretion under section 60(2)(b) of the Planning Act 2016 (Qld) (Planning Act) to approve the Application even if the development does not comply with some of the assessment benchmarks.

The Court concluded that the non-compliance with the relevant assessment benchmarks relating to ecology, in particular an environmentally significant corridor, was too serious to approve the Application despite the "...excusable non-compliance with the bushfire code and the transport code" (at [126]).

Site details

The Site has an area of 17.24 hectares, is situated between Chesterfield Drive to the north and Monday Drive to the south, and is within the rural landscape and environment precinct of the rural zone under the Planning Scheme (see [11] and [13]). It is proposed that the caretaker's accommodation be located in the flatter and lower finger-shaped portion of the Site (Proposed Development Area). Importantly and significantly, part of one of the Hinterland to Coast Critical Corridors (Corridor) traverses the Proposed Development Area and beyond in a generally east-west direction (at [46]).

Relevant assessment benchmarks and expert evidence

The Court considered the following provisions in the Planning Scheme as being relevant to the assessment of the Application (see [20] to [22]):

  • Bushfire Hazard Overlay Code (Bushfire Code) ‒ Performance Outcome (PO) PO1, PO6, and PO9.

  • Environmental Significance Overlay Code (ESO Code) ‒ Purpose 1, Overall Outcomes 2(a)(iv), 2(b), and 2(f), PO1, PO3, PO9, PO13, PO15, PO17, and PO19.

  • Transport Code ‒ Overall Outcome 2(a)(ii) and PO24.

The Court also considered expert evidence on behalf of the Council and the Applicant with respect to the ecology, bushfire, and traffic issues. However, some of the evidence was deemed irrelevant because it dealt with a previous location for the proposed caretaker's accommodation which has since been relocated to the Proposed Development Area (at [3]).

Court finds impact on the external road network would be miniscule

The Applicant argued that the overall outcome of the Transport Code had been complied with because the proposed animal keeping and caretaker's accommodation could be appropriately accessed from the existing Chesterfield Drive and Monday Drive access to the Site (at [90]).

The Council argued, contrary to the Transport Code, that the Site lacks "appropriate vehicular connectivity" between the north and south therefore burdening the external road network (at [91]).

The Court accepted that there is a lack of appropriate connection between the north and south of the Site. However, the Court agreed that the traffic impacts on the external road network as a result of the Application, if approved, would be miniscule (at [92]).

Court finds acceptable non-compliance with the Bushfire Code

The Applicant argued that there is compliance with PO6 of the Bushfire Code because Monday Drive provides adequate protection and access for emergency vehicles and residents trying to evacuate the proposed caretaker's accommodation during bushfire events. Relevantly, the bushfire mapping demonstrates that the area directly to the south of Monday Drive is a low bushfire hazard zone (at [79]).

The Applicant also argued that there is compliance with PO9 of the Bushfire Code because the agreed asset protection zone and bushfire attack level building rating as well as the existence of Monday Drive, eliminates the need for a fire trail to the north of the proposed caretaker's accommodation (at [79]).

The Council argued that there is non-compliance with PO6 of the Bushfire Code because the driveway connecting the Site to Monday Drive is too steep for safe use by emergency vehicles during bushfire events, does not provide turnaround facilities which means the emergency vehicles would have to reverse back to Monday Drive which would be unsafe during bushfire events, and that the only alternative to vehicular access would be pedestrian access but that would be unsafe and unrealistic given the steep driveway and that the emergency responders would be unfamiliar with the lay of the land on the Site (at [81].

The Council also argued that the evacuation of residents is not acceptable because of similar issues relating to the steepness of the driveway, lack of turnaround facilities, and that Monday Drive is a one-way in and out road servicing over 100 residences in a "high-risk bushfire landscape" (at [82]).

Overall, the Court preferred the Applicant's position and held that any non-compliance with the Bushfire Code in respect of the Application, if approved, would be excusable and acceptable (see [89] and [126]).

Court finds unacceptable non-compliance with the ESO Code

The Court's consideration of whether the Application complies with relevant assessment benchmarks relating to ecology turned on the construction of the words "protect in situ" which appear in overall outcome 2(a)(iv), PO3(b), PO3(c), PO9, PO13, PO17, and PO19 of the ESO Code (at [95]).

The Court held that the term is defined so as to require that matters of environmental significance are not damaged, removed, or offset for the purposes of the ESO Code (see [96], [97] and [105]).

The construction of "protect in situ" is particularly relevant to PO3 of the ESO Code which governs development within the Corridor. The requirement under PO3 of the ESO Code "…is to provide corridors with certain characteristics to enable adequate movement of fauna through the site" and therefore the Proposed Development Area must enable adequate movement of fauna through it (at [122]).

The Applicant argued that there would be no impact to the Corridor as a result of the proposed development "…such that it cannot be said to damage or remove that matter of environmental significance" (at [93]).

However, the Council asserted that this was wrong and gave reasons which included that the Proposed Development Area is mapped within the Corridor, which in its present form accounts for movement of fauna in all sorts of different directions, and that the establishment of the proposed caretaker's accommodation would not improve the regional connectivity of the Corridor, which is a requirement under the relevant assessment benchmarks relating to ecology (at [94]).

The Court found that the evidence demonstrated a clear impact to the Corridor and therefore non-compliance with the ESO Code (at [125]).

Conclusion

As the Applicant did not establish that the Application could comply with the relevant assessment benchmarks, in particular the ESO Code, the Court confirmed the Council's decision to refuse the Application and dismissed the appeal (see [125] to [128]).

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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