The case of Hall v Cairns Regional Council & Anor [2026] QPEC 22 concerned an appeal to the Planning and Environment Court of Queensland (Court) by an eligible submitter for a development application (Submitter) against the decision of the Cairns Regional Council (Council) to approve a development application for a preliminary approval for a material change of use including a variation request (Proposal) to vary the effect of the CairnsPlan 2016 (version 3.1) (Planning Scheme) for premises in the northern sector of Cairns.

The variation request sought to vary the effect of the Planning Scheme such that the tables of assessment for the rural zone do not apply to the premises and to establish the Currunda Trades and Services Development Area and associated development code. 

The Applicant also made code assessable development applications for a development permit for reconfiguring a lot (one lot into two lots and an access easement) and a preliminary approval for reconfiguring a lot (one lot into four lots and drainage and road reserves) (ROL applications) which were approved by the Council, but the Submitter's appeal was limited to the Proposal because the Submitter did not have appeal rights in respect of the ROL applications.

The Court was not satisfied that the Proposal should be approved in circumstances where there is significant and material noncompliance with the strategic intent and assessment benchmarks in the Planning Scheme that have not been overtaken by events and it seeks to defer the assessment of the potential impacts of later stages of the development to later development applications and to make uses subject to code assessment thereby restricting submission rights for later development applications. The Court was satisfied that the need for industrial land in the northern sector of Cairns can be adequately met in the central sector and southern sector.

The Court allowed the appeal and refused the development application for the Proposal and returned the ROL applications to the Council to be reassessed and determined.

The premises is within the Redlynch Valley bound to the north by rural land used as a rock quarry, to the west by the steep, forested national park within the Wet Tropics World Heritage Area, to the south by mostly forested land and a small cleared area used for education, therapy and adventure-based learning and to the east by Redlynch Intake Road, a dual lane road that is the single point of access into and out of the Redlynch Valley, with the other side of the road comprising rural residential development (at [14]).

The premises is one of the few areas in the Redlynch Valley that is zoned rural and historical uses of the premises are consistent with that zoning (at [21]). A part of the premises is also designated in the Planning Scheme as within the quarry separation area of Key Resource Area 12, which seeks to limit particular forms of development including sensitive land uses which includes residential land uses (at [30]). The premises is also designated as Regional Landscape and Rural Production Area in the Far North Queensland Regional Plan 2009-2031 which designation seeks to protect such areas from urban and rural residential development (at [24]). 

The Proposal is for the following uses, many of which are contrary to the uses contemplated for the rural zone: bulk landscape supplies, low impact industry, outdoor sales (caravans, trailers and rural machinery), transport depot (excluding bus), warehouse and wholesale nursery (Proposed Uses). The variation request seeks to vary the level of assessment in the Planning Scheme such that the Proposed Uses will be subject to code assessment, thereby changing the rights of the public to make a submission about a future development application for those uses (see [39] to [40]).

The Council received 247 properly made submissions opposing the Proposal and 20 supporting it (at [50]). The properly made submissions raised concerns about traffic, ecology, groundwater, flooding, landslide, lack of need and amenity, and conflicts with local and State planning instruments and community expectations (at [51]). Those in favour were directed to convenience, compatibility with quarry operations, need and increased local employment (at [52]).

The Court held that whether a use is an industrial use or akin to it is a matter of fact and degree. The Court considered that the Applicant and Council sought to downplay the potential impacts of the Proposed Uses and selectively emphasised examples of such uses with limited impacts, such as a storage facility, which infected the evidence of the town planning experts (at [97]). The Court held that the Proposed Uses can not be characterised as "benign" or "low impact" as submitted and, based on the definitions in the Planning Scheme, the Proposed Uses have potential for harmful adverse impacts including noise, odour, light, environmental and traffic impacts (at [94]).

The issues in dispute concerned the suitability of the Proposed Uses for the premises, whether the Proposal will result in unacceptable ecological impacts and traffic impacts, whether there are relevant matters supporting approval and the consequences of the variation request.  
Submissions that the Planning Scheme has been taken over by events and that the Proposal will not result in the loss of good quality agricultural land were rejected. The Submitter's expert's opinion, which was accepted, was that there is no reason why rural and non-urban activities can not continue on the premises and the premises is a beneficial transition between the surrounding quarry, conservation and rural residential and residential uses in the valley (see [108] to [116]).   

The Court relevantly found as follows in respect of the disputed issues:

• Suitability of the Proposed Uses – The Applicant and the Council appropriately conceded that many of the Proposed Uses are not contemplated in the rural zone and that an approval will result in the alienation of land preserved and zoned for rural uses (at [130]). The Proposed Uses are compatible with the quarry use to the north but not the adjoining conservation, recreation and residential uses (at [142]). Overall, the Proposed Uses materially conflict with the Planning Scheme and are not suitable for the premises.

• Ecological impacts – A number of ecological matters such as matters of State environmental significance, fauna habitat, waterway health and vegetation clearing are not adequately addressed and are proposed to be deferred to later stages (at [226]). In the circumstances where the Proposed Uses significantly conflict with the Planning Scheme, deferring such considerations is not appropriate and results in much uncertainty as to whether adverse impacts can be avoided or acceptably managed which can not be overcome by some ecological benefits that the Proposal will deliver (see [237] to [240]).

• Traffic impacts – Expert evidence supports a finding that the Proposal will not result in unacceptable impacts on transport safety and efficiency (at [256]).

• Need – Expert evidence demonstrates that there is over 25 years supply of low impact industry land available but very little of that is in the northern sector. However, this represents the deliberate planning intent to protect strategic and natural values and to accommodate industrial uses in the south where there are less sensitive areas (see [279] to [281]). Whilst there is a modest economic, community and planning need for industrial uses in the northern sector and local residents would benefit from the Proposed Uses, the evidence does not demonstrate that the need would be satisfied by the Proposal, and there are other premises on which the Proposed Uses are permitted (see [290] to [293]). Any need can be adequately met by the Planning Scheme in its present form (at [294]).

• Other relevant matters – Whilst some of the Proposed Uses may be consistent with the rural zone, many are not and for the most part do not advance outcomes in the strategic framework (see [258] and [259]). The large number of adverse submissions against the Proposal are also deserving of some weight (at [297]). The demonstrated enhanced environmental values through the rehabilitation of the drainage reserve and delivery of landscape buffers and a drainage easement support approval (at [260]). 

Whilst it was strictly unnecessary for the Court to carry out an assessment of the variation request given its findings in respect of the preliminary approval for a material change of use, it considered the assessment required under section 61(2) of the Planning Act 2016 (Qld) (at [305]). 

The Court held that proposed variations are inconsistent with the policy intent of the Planning Scheme, which supports refusal (at [306]). If the variations are approved, they will change the level of assessment for particular uses from impact assessment to code assessment thereby removing the right of the public to make submissions. The Court held that this is unacceptable given the level of uncertainty as to the scale, location, function and impact of the Proposed Uses (at [307]).

The Court held that because the preliminary approval for a material change of use component of the Proposal is refused, the variation request must also be refused (at [305]). 

The Proposal materially conflicts with the strategic framework and relevant codes in the Planning Scheme, which is representative of the community's expectations for the premises and is deserving of significant weight in the exercise of the Court's discretion. In circumstances where there are not relevant matters in support of approval to outweigh the material noncompliances with the Planning Scheme, the Court refused the development application and returned the two ROL applications to the Council for reassessment according to law and the Court's judgment.

The Court reiterated the following significant and important principles with respect to the intent of planning policy in a planning scheme:

• A planning scheme is the embodiment of the community interest and it is not the Court's function to substitute planning strategies of a planning authority (see [104] to [105]).

• Exceptional circumstances must exist to demonstrate that a planning scheme has been overtaken by events such that it no longer represents public interest (at [106]).

• The Court may depart from the planning intent in the applicable planning scheme where the local government has itself departed from that intent or the subject premises has been given a designation that is and remains invalid (at [119]).