Environment and planning – development control – matters for consideration of consent authority – consideration of planning schemes – application for development permit for commercial groundwater extraction – conflict with planning scheme – where Council's refusal was upheld by the Planning and Environment Court – whether primary judge erred in law

Facts: This was an application for leave to appeal against the Planning and Environment Court's decision to uphold Council's refusal of a development application for a development permit for a material change of use for "Commercial Groundwater Extraction" on land at Mt Tamborine.

During the appeal to the Planning and Environment Court, the applicant had acknowledged that the proposed use conflicted with the planning scheme. The question for the Planning and Environment Court to decide was therefore whether "sufficient grounds" existed to justify approval of the application despite the conflict.

The primary judge found that the grounds relied upon by the applicant were insufficient to overcome the significant conflict with the planning scheme.

The planning scheme divided the planning scheme area into six zones. The subject site was within the Tamborine Mountain Zone, which was divided into 17 precincts. The subject site was within the Village Residential Precinct.

Overall Outcome OO46 listed under the heading "Precinct Intent" for the Tamborine Mountain Zone was relevant to the Village Residential Precinct and stated that "Development within the Village Residential Precinct i (sic)is typically urban residential in character with a moderate to high level of amenity on lots not served by a reticulated water and sewerage system. The Precinct, in close proximity to the Business Precinct, provides the principal location for additional urban residential accommodation".

The applicant contended that the primary judge had erred in law in finding that OO46 applied "across the Shire". The applicant argued that the error led to the primary judge unreasonably characterising the existing development in the Village Residential Precinct as an area which did not "perfectly" fit OO46 when there was no fit at all. The applicant also argued that the error influenced the primary judge's decision that there were not sufficient grounds to overcome what was regarded as a significant conflict with the planning scheme.

The applicant further contended that the primary judge did not take into account that various provisions of the Tamborine Mountain Zone Code were general provisions applicable to any development characterised as "Commercial Groundwater Extraction" and that the proposed use did not include each of the elements contemplated by that use definition.

The applicant also contended that the primary judge erred in law by not taking into account the outcome of his detailed assessment of the applicant's proposal against specific provisions of the planning scheme, such as the Overall Outcomes for the zone.

Decision: The Court held, in refusing leave to appeal with costs:

  1. The applicant's argument in relation to OO46 placed too much weight on the primary judge's use of the work "Shire" rather than "Zone". The substantial point was that the statement of precinct intent in OO46 did not apply only to the area immediately surrounding the land. It was plain that the primary judge appreciated that the relevant planning scheme provisions related to the Tamborine Mountain Zone rather than any other zone within the shire.
  2. It was apparent that the primary judge's analysis of the deficiency in the statement of precinct intent set out in OO46 did not contribute to any error in the primary judge's conclusion that the exclusion of Commercial Groundwater Extraction from the consistent table of uses in the Tamborine Mountain Zone was significant because it was the result of a deliberate policy decision. The finding was open on the evidence.
  3. The generality of the "default provisions" in the Tamborine Mountain Zone Code did not of itself indicate that the conflict found by the primary judge was not significant. The fact that not all elements of the definition were in play was of no significance in circumstances in which the proposed use nevertheless fell within the definition.
  4. The primary judge did take into account his assessment of the proposal against the Overall Outcomes for the zone and other provisions of the planning scheme.
  5. The applicant had not established that the primary judge made any error of law.
  6. The appropriate order was that the applicant's application for leave to appeal be refused with costs.

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