P&E Court Updates – June 2015

(Margaret McMurdo P and Gotterson JA and Dalton J - 22 May 2015)
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Real property – Crown lands – Queensland – administration – appeal from the Planning and Environment Court – where the applicant refused a development application made by the first respondent for a hard rock quarry in Yandina – where the first respondent successfully appealed to the Planning and Environment Court and the development permits were granted with strict conditions – where the proposed quarry was surrounded by mixed rural and acreage living – where the applicant contends that the primary judge erred in granting the application based on the construction of the relevant planning documents and the assessment of amenity impacts on the proposed quarry – whether the primary judge erred

Facts:  This was an application for leave to appeal against a decision of the Planning and Environment Court to allow an appeal by Parklands Blue Metal Pty Ltd against Council’s refusal of its development application for a hard rock quarry at Yandina.

The Planning and Environment Court had adjourned the appeal so that conditions consistent with the judge’s reasons could be formulated and attached to the development permits.

Council alleged that the primary judge erred in law:

1. in the construction and application of the relevant planning instruments;
2. in considering late and irrelevant issues and assertions not included in the Council’s reasons for refusal of the development application;
3. in improperly using the joint expert reports;
4. in failing to deal with aviation issues;
5. in not refusing the development application in the absence of Parklands’ commitment to an upgrade of the haul route from the quarry;
6. in assessing blasting impacts;
7. in assessing need; and
8. in failing to provide adequate reasons.

In relation to the issue of the construction of the relevant planning instruments, Council contended that the primary judge erred in finding that the use of the proposed quarry site for extractive industry had been supported by relevant planning controls for more than 30 years and that the present planning strategy for the site was to preserve the resource and permit its extraction subject to appropriate management of impacts. Council argued that the judge’s starting position was that the quarry should be approved and that his role was to impose conditions to manage its impacts and that this fundamental error had permeated all of the judge’s subsequent reasoning.

In relation to the judge’s use of the joint expert reports, Council argued that the judge misconstrued points of agreement in joint expert reports and failed to consider qualifications to opinions expressed by experts in those reports.

In relation to the haul route issue, it was common ground between the parties’ experts that the proposed quarry could not proceed in the absence of an upgrade of the proposed haul route which included a Council controlled road. The primary judge found that an upgrade was essential for both traffic safety and amenity impacts and found that, if the parties could not resolve the matter, a conditions hearing should take place as to its maintenance.

Decision:  The Court held (by McMurdo P with Gotterson JA and Dalton J concurring), in refusing leave to appeal with costs:

1. It was clear that the primary judge had identified all relevant planning provisions and key planning concepts and fully apprehended that the important planning concepts including the balancing up of the maintenance of a high standard of environmental amenity against community need for extractive industry on the proposed quarry site.
2. The primary judge was conscious of the fact that the appeal was by way of hearing anew.  This did not preclude consideration of the Council’s reasons for refusing Parklands’ development application as a starting point in identifying the issues in the appeal.  
3. The judge’s reasons adequately dealt with aviation issues.
4. The Council had not demonstrated any legal error in the primary judge leaving the resolution of the haul route issue to the conditions stage.
5. None of the contentions in relation to the blasting issue were made out.
6. The Council had failed to prove the judge erred in assessing the question of need or in not providing adequate reasons.  The judge’s reasons appropriately dealt with the evidence relating to each issue identified by the Council and the submitters in the appeal before him.
7. The Council had not demonstrated any error of law on the part of the primary judge.

(Everson DCJ - 3 June 2015)
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Environment and Planning – environmental planning – where the appellant seeks a declaration that proposed changes to a locality plan in an application for a preliminary approval constitute a minor change – whether the changes result in development – whether the changes to the application result in a substantially different development.

Facts:  This was an application in pending proceeding in which the appellant sought a declaration that the changes it proposed to the Noosa on Weyba Locality Plan (Locality Plan) constituted a minor change pursuant to s350 of the Sustainable Planning Act 2009 (SPA).

The Locality Plan was originally submitted in support of a development application for a preliminary approval for a material change of use to vary the effect of the Maroochy Plan 2000 and the Noosa Plan. The Locality Plan stated the way in which the appellant sought to vary the planning schemes that applied to the land.

The development application was refused and gave rise to an appeal to the Court. During the course of the appeal, the appellant sought to change the development application, giving rise to this application in pending proceeding.

The proposed changes consisted of a reduction in the number of ‘precincts’ from four to two. The amount of attached housing was to be reduced (from 407 attached dwellings to 40 attached dwellings), the lot sizes were to increase and the overall density of the development was to be reduced. Retirement and special needs housing was no longer proposed  and access points and internal roadways were also to be changed.

To satisfy the court that the proposed changes constituted a minor change, the appellant needed to demonstrate that the proposed changes would not result in sustainably different development (pursuant to s350(1)(d)(i) of SPA).

The appellant argued that s350(1)(d)(i) did not apply to the proposed changes. It was submitted that the proposed changes would not result in development at all as the changes related to a development application for a preliminary approval and a preliminary approval does not authorise assessable ‘development’ to take place (as defined in s7 of SPA).

In the alternative, the appellant submitted that the proposed changes did not result in substantially different development. It was submitted that:

When the changes are broadly considered, the resulting development will remain subject to Preliminary Approval for a medium scale residential community, with developable areas; land transferred to the Crown for environmental purposes; open space areas and a small scale commercial area.

Decision:  The Court held, in refusing the application:

1. Section 350(1)(d)(i) did apply to the proposed changes.
2. When regard was given to the fact that a development application for a preliminary approval is subject to IDAS like other development applications, and that the purpose of the preliminary approval is to provide for development in accordance with the Locality Plan, it was tolerably clear that the term ‘does not result in a substantially different development’ refers to the outcomes in terms of the various categories of development defined in s7 of SPA which were contemplated by the preliminary approval.
3. The magnitude of changes proposed to the footprint and density of the development were both material and important. This was so from both a quantitative and a qualitative perspective as the reductions in the footprint and density of the development occurred in the context of material changes to the intended composition of the mixed use community the subject of the development application.
4. In the context of a preliminary approval, the changes resulted in substantially different development.
5. Changes to traffic access and connectively were, at least in part, consequences of the changes but did not, of themselves make for substantially different development. The same was true of the consequential changes from an environmental and bushfire management perspective. These consequential changes required assessment through the IDAS process provided for in SPA.

(Dorney QC DCJ - 4 June 2015)
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Planning and environment – demolition in DCP – whether building does not contribute positively to the visual character of the street – whether demolition will not result in loss of traditional “tin and timber” character within DCP

Facts:  This was an appeal in relation to a development application for preliminary approval for the carrying out of building work for the demolition of a “pre-1946” character house within the Demolition Control Precinct located at 117 Vernon Street, Nundah.

Performance Criteria P1 of the Demolition Code was applicable.  P1 required that where there was a residential building, the building “must not contribute positively” to the “visual character of the street”.

The only applicable acceptable solution was one part of A1.3.  It stated, relevantly, that, where there was a residential building, the demolition of a building would not result in the “loss” of traditional “timber and tin” building “character” within the Demolition Control Precinct.

The experts engaged by the parties agreed that the building on the site was “recognisably” a pre-1946 house which expressed “traditional building character” and that it was “structurally sound and / or capable of structural repair”.

The Appellant’s expert conceded that the visual character of the street could be described as “mixed”, while the Respondent’s expert used the term “varied”. The northern side of the street had a predominantly post-1946 visual character and the southern side a predominantly pre-1946 traditional visual character.

Decision:  The Court held:

1. It was not necessary that the street or the dwelling be “pristine” in order for the demolition to be refused.
2. It was relevant to enquire whether the street in question had been “robbed” of its traditional character by the extent of redevelopment.
3. With respect to a particular building’s importance to the “visual character” and amenity of the local streetscape, it should be approached from the perception of an average person walking along the street and looking about.
4. The term “character”, when used in a planning context, “has a wide meaning and must be considered in the  context in which the term is used in the scheme”.  
5. The “street”, for which the visual character was under consideration, was the “whole” of that street, although, in appropriate circumstances, a particular street for the purposes of a DCP “may be merely a section of it”.  For the purposes of consideration of the Demolition Code, the street “may well have more than one character”.
6. There must be an interpretation open in P1 to properly accommodate “mixed” or “varied” character of the dimension and importance of the subject street.  Hence, by whatever trail of such reasoning was used, it could not be concluded that P1 had been satisfied.
7. With respect to the term “loss” in A1.3, there was no argument from either side that the loss should be measured other than in terms of “meaningful, “significant”, “concerning” or “unacceptable”.  And “significant” would need to be interpreted as “of significance”, rather than, for instance, “predominant”.
8. While it was acknowledged that the particular demolition did not have to amount “to the straw that would break the camel’s back”, a stage must eventually be reached whereby successive degradations by small individual percentages caused the requisite particular building character to be gone, which itself would mean that there would, by any such demolition, be no resulting loss of that character.
9. It had not been proved to the requisite satisfaction that the demolition of the building on the site would not result in a loss of significance of the relevant character “within” the Demolition Control Precinct, if only because it was one fewer such building in an area that had become significantly degraded.
10. Compliance with the Demolition Code had not been established.

(Andrews SC DCJ - 18 June 2015)
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Planning and environment – appeals – material change of use – where council approved an application for a development permit for a material change of use for the purpose of Entertainment and Recreation (Outdoor) for a shooting range – where a ‘consistent use’ in the rural zone – where community opposition – where noise experts expressed joint opinion on a level they regarded as acceptable for a reasonable person – where town planning expert disagreed – whether the adverse noise impacts would be unacceptable.

Facts:  This was a submitter appeal against Council’s approval of a development application for an outdoor shooing range.  

The proposal involved a 50 metre rifle range, a 100 metre rifle range and a shotgun pad for clay pigeon shooting.

Once the whole proposal was established, organised shooting would occur up to 106 days in a year, with up to 70 shooters firing together during a twenty minute session.

The original development application included a 50 metre pistol range, however that range was deleted from the proposal during the course of the hearing.

The land was located in the Rural Zone under the Caboolture Shire Planning Scheme 2005. The subject land and the surrounding properties were predominantly made up of larger rural allotments. The development application was impact assessable.

The primary issue was whether the adverse impact from shooting noise on adjoining and surrounding land uses was an unreasonably or unacceptably adverse impact. The appellants also raised the issue of safety as a consequence of the intensive use of firearms in an outdoor locality.

It was accepted that there would be conflict with the planning scheme if the noise from the proposed range caused “unacceptable impact on the amenity” of the area.

Decision:  The Court held:

1. The changes to the development application were minor.
2. If there were conditions of approval imposed which were consistent with the opinions of the experts, the proposed range would be appropriately safe.
3. The proper test was not whether amenity would be degraded but whether it would be unreasonably degraded by a proposed development.
4. The shooting club had established on the balance of probabilities that, with conditions to achieve attenuation, shooting noise could be kept within acceptable limits.
5. The evidence was that the sound of shooting would be acceptable to a reasonable ordinary person.  Proper conditions would prevent an unacceptable impact on the amenity of the neighbouring and surrounding uses.