Queensland Planning and Environment Court Updates – October 2015

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Publication October 2015


49/15 BTS PROPERTIES (QLD) PTY LTD v BRISBANE CITY COUNCIL & ORS [2015] QPEC 47

(R S Jones DCJ - 1 October 2015)

Appeal – refusal of development application for material change of use for apartment building – City Plan 2000 – City Plan 2014 – where issues of height and bulk – where intrusion into waterway corridor – whether conflict with New Farm and Teneriffe Hill Local Plan – whether conflict with Waterway Code – whether sufficient grounds to warrant approval despite conflict

Facts: This proceeding was concerned with an appeal against the Council’s refusal of a development application for a material change of use for a six to seven storey apartment building at 9 Griffith Street, New Farm.

The impact assessable development application was lodged at the time City Plan 2000 (CP 2000) was in force. After the development application was made, but before Council made its decision, City Plan 2014 (CP 2014) came into effect.

Under both CP 2000 and CP 2014, the site was located within the Medium Density Zone, New Farm and Teneriffe Hill Local Plan and Brisbane River Waterway Corridor.

The subject site ran from Griffith Street to the Brisbane River and as a consequence of the topography of the land, the proposed development would present one storey less from Griffith Street than when viewed from the river.

The eastern side of Griffith Street had been developed with a mixture of detached dwellings and some apartment buildings, predominately two storeys in height. Fronting the river there are a number of single unit dwellings. There are also a significant number of apartment buildings ranging from four to nine storeys in height. The northern boundary of the subject site adjoined a six to seven storey apartment building.

The issues in dispute were identified as:

  1. the combination of the proposed development’s excessive height, length and bulk;
  2. the proposal’s failure to comply with the Waterway Code 2000;
  3. the proposal’s conflict with provisions of CP2000 and its conflict with the provisions of CP2014; and
  4. the sufficient grounds.

Decision: The Court held, in dismissing the appeal:

  1. For the purposes of assessing the impacts of the proposed development, the visual amenity, architectural and town planning experts agreed that it was appropriate to assess the development in the context of the existing and proposed development along Griffith Street bounded by Merthyr Road and Sydney Street, New Farm.
  2. Performance Criterion 1 and Acceptable Solution 1.1 and Performance Criterion P2 and Acceptable Solution A2.1 within the Local Plan Code 2000 are of particular significance.
  3. In determining whether the development maintained a visual relationship with other buildings in the vicinity, what is required is a relationship that is pleasing, sympathetic, supportive, harmonious or complementary. There must be room for notions of reasonableness which, among other things, would indicate that a range of outcomes is usually likely to be acceptable, because reasonable minds may differ; however, a bare rule of reasonableness not qualified any further is not likely to be helpful.
  4. If the height of the building under consideration was no more than five storeys and no more than 15 metres above ground level to the underside of the ceiling of any habitable room, then P1 would be likely satisfied. However, issue of the proposed building’s height should not be considered in isolation from the P2 and A2.1 regarding building bulk and size.
  5. Even with regard to the size of Gemini Towers, the proposal was manifestly inconsistent with the medium density nature of the locality and did not retain an appropriate residential scale and relationship with other precincts in the plan area. The plot ratio of the proposed development is in the range of up to 50-60% more than other more recent medium density developments in the area.
  6. The development that lends character to the area is there on the ground and there is every indication that it will remain there for some considerable time. To suggest that its influence upon the area’s visual amenity should be disregarded because it was approved prior to the planning controls under consideration in the appeal is unrealistic.
  7. It is the predominant residential character of the surrounding area which must be assessed. There is nothing in the planning scheme which warrants applying the test in PC1 without paying due regard to the existing buildings which contribute to that character.
  8. The proposed building’s size and bulk is not consistent with the medium density nature of the locality, and is in conflict with the performance criteria P2.
  9. The proposed development provided an encroachment of 7.5 m into the 20 m waterway corridor, failing to satisfy A1.1 of the Waterway Code 2000. A number of existing dwellings similarly encroached the waterway corridor also. However, the proposed development was not of a similar height and bulk to those buildings. The proposed development was intended to be substantially larger, and failed to provide compatibility with the adjoining riverside homes.
  10. The overall bulk of the proposed development failed to satisfy the requirement that it would maintain or enhance the attractiveness of the Brisbane river. The proposed building would have the appearance of protruding forward and encroaching upon the river significantly more than the other buildings in the vicinity.
  11. As there were no ambiguities or inconsistencies in CP2000 and CP2014, little weight was given to CP2014. The changes in CP2014 did not evince a relevant change in planning strategy of such a significance that it could affect the outcome of the appeal.
  12. The proposed development was in conflict with important elements of the Local Plan 2000 (P2 and A2.1) and also s 4.6 of the Waterway Code 2000 (P1 and A1.1). There is also significant conflict with material parts of the Neighbourhood Plan Code 2014 and the Waterway Corridors Overlay Code 2014.
  13. The proposed development was in substantial conflict with CP2000 and there were no sufficient grounds that would warrant approval in the face of such conflict. Though the subject site sat along a stretch of the riverfront where there is already a number of tall buildings in excess of 5 storeys, the proposed building was not consistent with the values and functions of this area due to its excessive bulk, height and size. It would have unacceptable impacts and would not maintain or enhance the values of the waterway corridor.

51/15 TRASPUNT NO. 4 P/L v MORETON BAY REGIONAL COUNCIL [2015] QPEC 49

(Horneman-Wren SC DCJ - 8 October 2015)

Development application under Sustainable Planning Act 2009 – vegetation clearing – where proposed vegetation clearing to protect both residences and fence lines – whether exempt development - whether essential management - whether development application subject of deemed approval – whether development application is subject to land that is critical habitat or an area of major interest under the Nature Conservation Act 1992 – estoppel – estoppel by judgment – issue estoppel

Facts: This was an appeal against the Respondent Council's purported refusal of a development application made by the Appellant (Traspunt) by which Traspunt had sought a development permit to carry out the clearing of native vegetation, described as being for “essential infrastructure”.

Council’s reasons for refusing the application were that the proposed development conflicted with a number of Desired Environmental Outcomes (DEOs) of the relevant planning scheme and the applicant had not provided sufficient grounds to justify the conflict in accordance with section 326(1)(b) of the Sustainable Planning Act 2009 (SPA).

In this appeal, Traspunt contended (each in the alternative) that:

  1. the proposed clearing was exempt development as it was for “essential management” for which a development permit was not necessary by operation of section 235(1) of SPA;
  2. even if not exempt, it had the benefit of a deemed approval of the development application by operation of section 331 of SPA;
  3. the Council's grounds for refusing the application were invalid because the planning scheme's DEOs themselves were inconsistent with rights to clear land for essential management created by the Sustainable Planning Regulation 2009 (SPR) and to the extent of the inconsistency the scheme was of no effect by operation of section 233(1) of SPA; or
  4. if the DEO’s were valid and the proposed development was in conflict with them, then there were sufficient grounds to justify approval despite the conflict.

At the same time as it commenced this appeal, Traspunt also commenced separate proceedings in the Planning and Environment Court by originating application in which it sought a declaration that its development application was the subject of a deemed approval by Council. That application was dismissed.

Decision: The Court held, in allowing the appeal in part:

  1. The only issue to have been directly determined in the declaratory relief proceedings was that inclusion in the register is not required before land can be a critical habitat or area of major interest. Traspunt was estopped from asserting that the absence of any notation in the register conclusively established the fact that the land is not critical habitat or an area of major interest under the the Nature Conservation Act 1992 (NC Act).
  2. The broader issue of whether the development application was subject to a deemed approval was not determined in the declaratory relief proceedings. Traspunt was not estopped from contending that the application was the subject of a deemed approval, including on the basis that the application was not one for development in a critical habitat or area of major interest and, within that, that it was not a critical habitat or area of major interest under the NCA because the land has not been designated as such under that Act.
  3. The absence, or presence, of reference to the relevant land in the register could not, without statutory prescription, determine whether it was a critical habitat or area of major interest under the NCA.
  4. When section 330(c)(iv) of the SPA refers to an application for development in a protected area, critical habitat or area of major interest under the NCA, it is referring to development in areas established or identified as such pursuant to those provisions. It is not merely adopting the definitions of those areas as contained in the NCA.
  5. The exception to the deemed decision regime created by section 330(c)(iv) of SPA does not apply in circumstances in which the land the subject of the development application has not been established as a protected area under a regulation or identified as or including critical habitat or an area of major interest under a conservation plan approved by the Governor in Council under the NCA.
  6. The exception under section 330(c)(iv) of SPA did not apply.
  7. The area of land subject to the development application was not “critical habitat” as defined under section 13 of the NCA.
  8. The word “necessary” when used in paragraphs (a) and (b) of the definition of essential management qualifies only, respectively, the words “fire break” and “fire management line”. If, in each instance, a fire break or fire management line is necessary, any clearance up to those maxima will be within the meaning of “essential management”.
  9. In so far as the proposed clearing related to establishing a firebreak for the protection of the infrastructure, other than fences, and particularly the adjoining residential development, it was “essential management”. To that extent, it was not assessable development by operation of item 2(c) of Part 2 of Schedule 24 to the SPR. Traspunt was entitled to clear land for that purpose to a maximum of the greater of 1.5 times the height of the tallest vegetation or 20 metres.
  10. The purpose of the proposed clearing along fence lines was for the protection of the fences, not the establishment of fire management lines. For that reason, the proposed clearing for that purpose would not fall within paragraph (b) and was not “essential maintenance”.
  11. Even if clearing along the fence lines was for the purpose of establishing fire management lines, it lacked the quality of necessity required under paragraph (b) for the clearing to fall within essential maintenance.
  12. Therefore, because that clearing was not essential maintenance, as defined, it was not clearing necessary for essential maintenance such that it was made not assessable development by operation of item 2(c) of Part 2 of Schedule 24 to the SPR. It was, therefore, operational work which was assessable development by operation of section 9(1) and Schedule 3 of the SPR. It was, therefore, assessable development prescribed under section 232(1) of the SPA. The development application was, therefore, a vegetation clearing application under the Vegetation Management Act 1999.
  13. As such, it was an application excluded from the deemed decision regime of the SPA by operation of section 330(d).
  14. As a consequence, Traspunt did not have the benefit of a deemed approval.
  15. A planning scheme which makes assessable that which is made not assessable under the SPR will be inconsistent with the SPR within the meaning of that expression as used in section 233(1). The planning scheme will by operation of section 233(1) be, to that extent, of no effect.
  16. As a consequence, the part of the proposed clearing that was for essential management was not code assessable under the planning scheme. It was, to that extent, exempt development.
  17. There was some conflict with the planning scheme and there were not sufficient grounds to approve that part of the proposed clearing which did not constitute essential management notwithstanding the conflict.

52/15 COWEN & ANOR v BRISBANE CITY COUNCIL & ANOR [2015] QPEC 50

(RS Jones DCJ - 19 October 2015)

Appeal – where respondent council approved multi-unit development at Highgate Hill – where submitters contended proposed development in conflict with town plan – where conflicts said to arise under City Plan 2000 and City Plan 2014

Facts: This was an appeal against Council’s approval of a development application which sought a development permit for multi-unit dwellings at 26 Derby Street, Highgate Hill.

The Appellants were submitters who resided either side of the subject site. The Appellants’ properties were pre-1946 structures. The existing house on the subject site was a 1960’s – 1970’s design. The proposal involved the demolition of the existing house to accommodate the proposed development.

At the time the development application was lodged, City Plan 2000 was in force, under which the site was located within the Low-medium Density Residential Area under City Plan 2000. It was also subject to the West End-Woolloongabba District Local Plan and was located within a Demolition Control Precinct.

After the development application was lodged but before Council’s decision was made, City Plan 2014 commenced. Under City Plan 2014, the subject site was located partly within the Low-medium Density Residential Zone and also within the West End-Woolloongabba District Neighbourhood Plan Area. The balance of the site approximate to the Brisbane River was located within the Environmental Management Zone.

Although no development work was proposed within the environmental area adjacent to the river, rehabilitation works were proposed as part of the development.

The issues in dispute were identified as:

  1. the height, bulk and scale of the proposed development;
  2. character matters;
  3. traffic and parking matters;
  4. reasonable expectations; and
  5. grounds.

Decision: The Court held, in dismissing the appeal:

  1. The development application must be refused if there is conflict between the development application and the relevant planning schemes. Conflict means to be at variance or disagree with.
  2. On balance, having regard to the scale of the proposed development and its location, the proposed parking arrangements provided for safe, reasonably convenient and accessible car parking, would most likely discourage on street parking rather than encourage it and otherwise dealt adequately with local traffic and parking.
  3. There was no reasonable basis for refusing the proposed development based on traffic and / or parking grounds. While the acceptable solutions were not met, the central objects and outcomes identified in the relevant performance criteria had been met and no conflict arose.
  4. The purpose of the LMR Code is to effectively manage impacts of new developments on neighbours, the purpose of the Code is directed to ensuring that new developments represent a sympathetic neighbour to what was there. The solid elevation to the river is of little relevance to the appeal as it would not be readily seen by any observer either situated on Derby Street or even in any of the residences located in reasonable proximity to the proposed development. Furthermore, due to the mixed nature of the development fronting the river within the subject location it is unlikely that any observer from the river would recognise the area as one typified by pre-1946 dwellings. Therefore, the way it would present to Derby Street is of the most significant factor to be taken into account when managing its compliance with the character of the surrounding area.
  5. The elevations that would present to the appellants would not comply with any of the acceptable solutions. However, it was well-recognised that town planning documents were to be read not only as a whole but also not in a pedantic way or subject to the same scrutiny and precision more associated with construing statutes and contracts.
  6. The two pre-1946 dwellings on 20 and 28 Derby Street had to be considered objectively in context. The subject land had been designated to accommodate residential apartments and was occupied by a dwelling that was as far removed from a pre-1946 house as could be imagined.
  7. While there may be conflict with the “character” provisions of City Plan 2000, those conflicts were minor in the scheme of things and would not be sufficient to warrant refusal of the proposed development. By presenting to the street in the way that it did and with its eastern, western and southern elevations largely hidden from view, the primary objects of the majority of the performance criteria are met. To the extent that there was any conflict with City Plan 2000 or City Plan 2014, it was outweighed by the sufficient grounds.
  8. Depending on all the circumstances of the case, conflict with a provision of a planning scheme requiring strict adherence might be more readily found than in the case where such adherence was not prescribed. The word “strict” required that departures from acceptable solutions be subject to closer scrutiny.
  9. Notwithstanding the attempt to minimise the impact through the use of cut and landscaping, the GFA was such as to result in a non-house compatible scale which would not co-exist comfortably with neighbouring houses. The size and bulk was not consistent with the low to medium density of the locality and the proposal was in conflict with City Plan 2000.
  10. While the conflicts concerning character, bulk and scale could not be described as trivial or technical in nature they were not so significant as to warrant refusal. The visual impacts resulting from the bulk and scale must be balanced against all other relevant positive planning grounds. The negative impacts resulting from the bulk and scale of the proposed development are materially contained to a very few of the residents within the area. The proposed developments would otherwise have no visual amenity issues to other residents in the vicinity.
  11. The proposed development would enhance housing choice, diversity and affordability in an area that is located in close proximity to a number of major employment centres and is accessible to a number of community facilities.
  12. An appropriately informed reasonable person could reasonably expect a development of the type proposed in this area, with regard to its low-medium density designation/zoning over part of the site. Recent development which is more modern in design and construction and have a materially larger site footprint reflects a significant change to the built environment in the street.
  13. Though not a decisive factor, the unreserved support for the proposal by the Council as the relevant local authority was taken into account.
  14. Though the proposal is in conflict with some performance criteria and objects of CP2000 and CP2014 in relation with character, scale and bulk, there are sufficient planning grounds to justify approval despite the conflict.

53/15 THE COUNCIL OF THE CITY OF GOLD COAST v THI HOA DAM [2015] QPEC 51

(Morzone QC DCJ - 23 October 2015)

Planning and environment – application – declaratory and consequential relief pursuant to ss 456, 601 & 604 of the Sustainable Planning Act 2009 (Qld) – characterisation of rock armouring wall, pool cover and satellite dish as assessable development – whether the respondent carried out assessable development without an effective development permit for the development – expert opinion evidence inadequate – whether declaratory and enforcement orders should be made in the exercise of discretion - costs

Facts: This was an application brought by the Applicant, seeking declarations and enforcement orders regarding the lawfulness of the Respondent’s use of land or development in respect to the Respondent’s rock armouring works; a pool cover and a satellite dish.

The Respondent, owned and occupied the property located at 183-185 Monaco Street, Broadbeach Waters, since 2 July 2012. This property is adjacent to the Nerang River.

Various works and structures on or adjacent to the Respondent’s property had been subjected to compliance checks by the Applicant since July 2013. The remaining issues in dispute related to rock armouring works, pool cover and satellite dish.

The Respondent did not dispute that the rock armouring works, pool cover and satellite dish were not subject of any approval.

The Respondent did not hold a development approval for the rock armouring, pool cover and satellite dish.

The issues in dispute were identified as:

  1. Did the Respondent carry out the works?
  2. If so, were the works assessable development that required development permits?
  3. Are declarations and/or enforcement orders required in the exercise of the court’s discretion?
  4. Should the Respondent pay the council’s costs of the application?

Decision: The Court held:

  1. The standard of proof applied is the civil standard, modified by the “sliding scale” in the Bringinshaw case.
  2. The Court concluded that the Respondent was responsible for carrying out the works of the satellite dish and the pool cover.
  3. On the balance of probabilities the Court was not satisfied that the Respondent carried out, or caused to be carried out the rock armouring works. In relation to evidence provided by the Applicant’s development compliance officer, the Court was reluctant to adopt the officer’s conclusive views reached in a vacuum, especially in circumstances where proper scientific measurement, inquiry and investigation forming the basis of the conclusions could have been undertaken with relative ease.
  4. In determining whether the pool cover constituted building work, the Court applied the ejusdem genris rule of construction to the words “or the like” contained in the definition of Class 10 building in the Building Code of Australia. The pool cover was considered to be a similar kind of structure as the specific things listed in the relevant section of the Code (“private garage, carport, shed”) as they all are used for non-habitable shelter or storage.
  5. The pool cover was assessable development, for which a development permit was required by making a code assessable development application to the council, or alternatively a private certifier (class A). It ought to be assessed with appropriate requirements having regard to its unusual nature and lightweight construction, unlike more stringent requirements applicable to typical fixed and permanent structures with foundations.
  6. The satellite dish was not considered assessable development as it satisfied the prescription of exempt development under Item 1 of Schedule 2 of SPA. Even if the satellite dish was assessable development, the Court accepted the dish had been removed and it was unlikely to be reinstated and in those circumstances declined an enforcement order on the grounds of it being unnecessary.
  7. In determining whether to exercise a discretionary power to make orders for declaratory and mandatory injunctive relief, the Court considered whether the breach was purely technical in nature, and any delay, on behalf of the council, in proceeding with the action. The Court was required to consider the clear legislative intent of planning law to promote integrated and co-ordinated development.
  8. The Council had failed on all except the pool cover, which was deemed to be assessable development which required a development permit. Although the Respondent has belatedly taken steps to regularise the pool cover work, her conduct was born from limited comprehension confusion and uncertainty about how to deal with the matter. The Court did not accept that the development offence was “flagrant”, as submitted by the Council.
  9. The Court accepted the Respondent’s intention to remove or regularise an offending building work within a reasonable time. It was an appropriate case to make declarations about the lawfulness of the pool cover development and consequential orders about that declaration. However the Court declined to make enforcement orders in mandatory terms sought by the Applicant.
  10. In evaluating costs the rule is one of fairness to compensate a successful party for bringing a meritorious proceeding. The court’s discretion must be exercised judicially involving consideration of: nature and complexity of the case; relative strengths of competing claims; outcome; parties’ conduct, misconduct or contravention of any law; and anything else that the Court deems relevant.
  11. This was an appropriate case where each party ought bear their own costs of the proceeding. The Applicant’s failure to provide sufficient evidence to the Court in relation to the armouring work and the satellite dish was taken into account by the Court in deeming costs. The Applicant’s limited success in relation to the pool cover was mainly facilitated by photographic evidence, the Respondent’s own affidavit and concessionary submissions made during the hearing by the Respondent’s agent and builder. The success of the Respondent on the other issues outweighed the limited success of the Applicant.

54/15 JIMBOOMBA LAKES PTY LTD v LOGAN CITY COUNCIL & ANOR [2015] QPEC 52

(Everson DCJ - 23 October 2015)

Environment and planning – environmental planning – whether changes to a development application are a minor change – whether changes to a development application result in a substantially different development

Facts: This was an application in pending proceeding in which the appellant (Jimboomba Lakes) sought orders including a declaration that changes it wished to make to a development application were a minor change as defined in s 35 of the Sustainable Planning Act 2009 (SPA).

The development application sought a development permit for a material change of use for accommodation units (relocatable home park) on land at 5376 Mount Lindesay Highway, Jimboomba.

The respondent (Council) opposed the application, arguing that the changes were not a minor change as defined in s 350 of SPA.

The development application had been made under the repealed Integrated Planning Act 1997 (IPA) but not decided until after the commencement of SPA. The repealed IPA continued to apply as if SPA had not commenced, and the appeal was to be heard and determined under the repealed IPA as per ss 802(2), 819(5), (6) of SPA.

Pursuant to s 4.1.52 of IPA the court “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”. The meaning of a “minor change” is defined in s 350 of SPA as inter alia, a change that “does not result in a substantially different development”.

The development application was originally lodged on 26 October 2006. It was accompanied by a plan showing 533 relocatable home sites, 297 parking spaces and the only access to the proposed development was to be from the Mount Lindesay Highway to the west of the land.

The plans had been amended multiple times since the application was lodged. The changes the subject of this application involved:

  1. an increase to the setback along the southern and western boundaries;
  2. relocation of certain car parks in the vicinity of the community building to enable retention of trees;
  3. removal of certain relocatable home sites from the south western corner of the development to enable stormwater infrastructure to be placed there and make provision for increased boundary setbacks;
  4. further reduction to the number of relocatable home sites to 390; and
  5. the making of provisions for an emergency access to the east of the land over two adjoining parcels of land to a cul-de-sac in Swan Road.

Decision: The Court held, in dismissing this application:

  1. Each of the proposed changes, with the exception of the emergency access, involved a change to the internal design of the proposed development with a view to lessening impacts. None of these items resulted in a substantially different development.
  2. The only access to the proposed development was from the Mount Lindesay Highway to the west. The appellant proposed that this be the primary access and that emergency access to the east be limited to use by emergency vehicles when the primary access is inundated by floodwater. The primary access to the land, however, was likely to be cut off by floodwater. The proposed emergency access to the east would require significant infrastructure.
  3. When assessing whether changes to an application resulted in a substantially different development the starting point was the words of the relevant statutory provision. Macquarie Concise Dictionary defined “substantial” as, inter alia, “essential, material or important”. The question for determination was whether the proposed changes fell within this definition in the context of the development application.
  4. Conversely, pursuant to s 4.1.2(2)(b) of IPA the court must not consider a change to an application on which the decision being appealed was made unless the change is only a minor change. This is because an assessment of proposed changes to a development application ought not be otherwise constrained by and subject to the exigencies of litigation in the absence of important assessment and decision making tools conferred by IPA, in the IDAS process.
  5. The limitation in s 350 of SPA that the change not result in a substantially different development meant that the proposed change must not be essential, material or important in the context of the development application.
  6. The proposed emergency access to the east was to be the only terrestrial link for residents of the proposed development to the outside world in flooding events which were forecast to occur on average once every five years. The Court was of the opinion that without the emergency exit, the development application could not be supported, making it essential to the proposed development.
  7. The Macquarie Concise Dictionary defined “material” as “of substantial import or much consequence”. Not only was the proposed emergency access of much consequence in providing for the evacuation of stranded residents in the foreseeable flooding occurrences which were forecast to inundate the primary access to the west, but the construction of it would involve significant engineering works.
  8. Consequently, the Court was satisfied that the proposed change for the emergency access was material. While each of the proposed changes with the exception of the change incorporating the emergency access to the east did not result in a substantially different development, the proposed emergency access would result in a substantially different development. It therefore had the consequence that the proposed changes were not a minor change as defined in s 350 of SPA.

55/15 KARREMAN QUARRIES PTY LTD v SOMERSET REGIONAL COUNCIL & ORS [2015] QPEC 53

(Everson DCJ -29 October 2015)

Environment and planning – environmental planning – where appellant seeks to add issues as disputed issues in the appeal – where there was a delay by the appellant in seeking this amendment – whether leave should be granted

Facts: This was an application seeking an order that the appellant be granted leave to add issues as disputed issues in the appeal. The appellant was a commercial competitor of the co-respondent and had appealed the decision of the respondent to approve the co-respondent’s development application for an extractive industry on land situated at Gregors Creek.

The additional issues were that the disturbance footprint shown on the approved plans did not demonstrate compliance with a stormwater runoff imposed by the Department of Environment and Heritage Protection’s referral agency response and showed haul roads which were too steep and unsafe.

The issues in dispute had been the subject of an Order made on 23 January 2015. The meetings of experts had subsequently concluded with the exception of the town planners. The further issues had been raised by the appellant’s need expert.

The issues were first raised on 7 July 2015. A meeting was then held with the appellant’s counsel before commencing the expert meeting process with his counterpart. The need joint report was not completed until 18 September 2015. The appellant’s solicitor wrote to the other parties on 15 September 2015 alerting them to the potential additional issues. On 30 September 2015 a further letter was sent detailing the issues.

The appellant’s need expert expressed the opinion that until the proposal was amended he was of the view that it firstly conflicted with Specific Outcome SO12 of the Rural Zone Code of the Esk Shire Planning Scheme, which required land stability to be managed having regard to, among other things, the location and design of roads and access driveways. Secondly it further conflicted with Specific Outcome SO2 of the Extractive Industry Code of the planning scheme which required the development to provide for the systematic rehabilitation of the site in a stable condition and landform suitable for alternative uses.

The expert alleged that the design of the proposed quarry would not allow systematic rehabilitation of the site to occur, as required by SO2 of the Extractive Industry Code. He asserted that this was because a considerably larger detention basis system would be required as the proposed quarry expanded and because in order to achieve safe and practicable gradients for proposed heavy equipment, the haul road network would have to be designed to traverse the hillside in a zig zag manner through previously quarried levels.

Decision: The Court held:

  1. There was insufficient evidentiary basis for alleging a conflict with SO12 of the Rural Zone Code.
  2. The raising of a disputed issue was not of itself sufficient to ensure the success of the application in that respect.
  3. Relevant factors included the nature and importance of the amendment, and the issue of whether or not it is possible to achieve a systematic rehabilitation of the site was one which was important. Other relevant factors were the extent of the delay, together with the costs associated with it and the prejudice of allowing the amendment.
  4. The dates for the hearing had not yet been set and the co-respondent could not point to any specific prejudice should the issue be added to the dispute between the parties.
  5. The price of adding the additional issues is that the appellant should pay the costs thrown away and any additional costs as a consequence of the late adding of the additional disputed issue. The delay in seeking the amendment was not satisfactorily explained.
  6. It was not only in the interests of the parties that the additional issues be litigated as part of the appeal but it was also in the public interest that this occur.


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