41/14 Masonre Pty Ltd v Logan City Council [2014] QPEC

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(Everson DCJ - 4 September 2014)
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Environment and Planning – appeal – conflict with planning scheme – grounds – land subject to flooding – whether proposals for evacuation in the event of a flood justify residential development on the land

Facts: This matter concerned an appeal against the Logan City Council's (Council) decision to refuse a development application for a material change of use for four houses in respect of land at 41, 45, 47 and 49 Bompa Road, Waterford West (Land).

The Land was located in an established residential area, with the lots being created in or about 1965. The Land was in the immediate vicinity of the Logan River, and was subject to the flood plain area management code which was part of the 2006 Logan Planning Scheme (Planning Scheme).

The Council's Temporary Local Planning Instrument 2013 (TLPI 2013) and Council's draft planning scheme (Draft Planning Scheme) which came in to effect, or were advertised in 2014, being over 2 years after the Council's decision, were also considered by the parties.

The key issues in dispute between the parties included:

1. The extent of conflict with the Planning Scheme in effect at the time the application was made;
2. The weight to be given to the TLPI 2013;
3. The weight to be given to the Draft Planning Scheme;
4. Whether there were sufficient grounds to justify the approval of the proposed development despite the conflicts with the relevant planning instruments.

Decision: The Court held, in dismissing the appeal:

1. The TLPI 2013 reflected the Council's current position with respect to planning for flooding and should be given considerable weight. It was significant that the relevant provisions were replicated in the Council's Draft Planning Scheme.
2. The proposed development was not only substantially in conflict with the identified specific outcomes of the flood plain management area code in the Planning Scheme, but it also was in substantial conflict with specific outcomes in the TLPI 2013.
3. here there was no assurance that prospective residents would evacuate in a timely way, the desirability of utilising otherwise appropriate residential land was insufficient on balance to justify approval of the development application, notwithstanding the significant conflicts which related not just to desirable planning outcomes generally but to minimising risks to human safety in particular.
4. he desirability of utilising otherwise appropriately located residential lots for residential development did not on balance justify approval of the development application.