Services

HG Planning Alert: South East Queensland Regulatory Provisions considered by Court 31 October 2014

In this Alert, Partner David Nicholls considers the recent decision of His Honour Judge Rackemann of the Planning and Environment Court in Jimboomba Lakes v Logan City Council & Ors [2014] QPEC 61 where His Honour interpreted the SEQ Regulatory Provisions (SEQRPs) in their application to material change of use (MCU) outside the Urban Footprint (UF).

Our research paper dated  27 February 2014 which contains a detailed discussion about the SEQRPs and our recent alert of 2 July 2014 concerning His Honour Judge Rackemann’s decision in Hymix Pty Ltd v Brisbane City Council, which is also relevant to interpretation of the SEQRPs, can be found here.

Key Points

  • Inclusion of land in a “rural” zone does not always mean that it is not zoned for an “urban purpose”.

  • In each case it will be necessary to examine the provisions of the planning scheme to see if they admit of use for an urban purpose.

  • In this case the rural zone accommodated urban uses to service the rural area and the premises were therefore zoned for an urban purpose.

  • The exception in section 3(2) was accordingly engaged and the proposed development was not required to satisfy the test of overriding need in the public interest.

The appellant, Jimboomba Lakes, applied for MCU of land located outside the UF on the Mount Lindsay Highway, Jimboomba for a relocatable home park.The then Department of Local Government and Planning had recommended refusal of the application on 4 February 2011, which required the Council as assessment manager to reject the application.The refusal decision, reflected in the Council’s reasons for refusal was based upon the proposed development’s conflict with the following provisions of the SEQRPs:

"(i)   2.5(h)(i) as the proposed development is an Urban Activity and the locational requirements or environmental impacts of the proposed material change of use do not necessitate its location outside the Urban Footprint; and

(ii)  2.5(h)(ii) as the proposed development is an Urban Activity and there is not an overriding need for the proposed material change of use in the public interest.”

These provisions were discussed in our July alert relating to the Hymix Judgment.They are not engaged when the exemption contained in section 3(2) of the SEQRPs applies.That provision is as follows:

“3.(2)Subsection (1) does not apply to the extent the –

(a)    premises is zoned for an urban purpose under an IPA planning scheme; or

(b)    activity is outdoor recreation.”

The two questions for the Court in Jimboomba Lakes were:

“(1)     whether the premises, the subject of the development application, were zoned for an urban purpose under an IPA Planning Scheme; and

(2)      whether the development application is for an ‘urban activity’ as defined in South East Queensland Regional Plan 2005-2006 Draft Amendment 1.”

There was no dispute about the nature of a relocatable home park being an “urban activity”.The real contest concerned the phrase “zoned for an urban purpose” because the relevant planning scheme included in the land in the rural zone.The terms “zoned” and “urban purposes” were defined as follows:

zoned for premises means allocated or identified as a zone or other like term such as domain or area in a planning scheme, including in a strategic plan under a transitional planning scheme.”

urban purposes means purposes for which land is used in cities or towns, including residential, industrial, sporting, recreation and commercial purposes, but not including environmental, conservation, rural, natural or wilderness area purposes.”

It was common ground that the planning scheme included as-of-right uses to serve the rural area even though they might also be found in cities or towns.As His Honour observed, the planning scheme conferred the right to use premises in the rural zone for purposes which are neither quintessentially rural nor required to serve a function which is, or is associated with, a rural function.

As His Honour noted:

“The question therefore, is not whether the premises were zoned for the urban purpose for which approval is sought, but rather whether they were zoned for ‘an’ urban purpose.It was submitted on behalf of the appellant that, even leaving the Column IV purposes to one side, it is clear that the premises are ‘zoned for’ a range of urban purposes, although any one would be sufficient to engage s 3(2) of the Draft Regulatory Provisions on the appellant’s approach.It matters not that the premises are also ‘zoned for’ other purposes, including rural purposes.”[1]

His Honour declined to read down the scope of the exemption to the application of SEQRPs by implying words into the definition of “urban purposes” to restrict its meaning to purposes which only arise in cities or towns.His Honour was urged to apply a purposive approach to the construction of the relevant provisions by considering them in the context of the planning scheme read as a whole.His Honour answered this submission as follows:

“On the approach contended for by the co-respondent, the question of whether premises are zoned for an urban purpose is not to be determined by asking whether the zoning favours the development of the premises for one or more urban purposes (in addition to any other purposes), but rather is to be determined in a ‘holistic way, considering the zoning in which the premises are located ‘globally’ to characterise the zone as for an urban purposes or not.This, it was submitted, involves an evaluative exercise to determine the primary, predominant, overall, overarching or main purpose of the zoning.Senior Counsel embraced my summary of the suggested approach as asking, in a ‘generic sense, whether the zone would be described as being an urban zone.That involves a somewhat ambulatory and impressionistic exercise.”[2]

“The construction for which the respondents contend would obviouslyprovide greater scope for the operation of s 3(1) and (3) of the Draft Regulatory Provisions and thereby give those provisions more work to do in supporting the intent for the RLRPA.It might be thought that that is a more desirable planning outcome, but the extent to which the considerations underlying that intent are given sway over the considerations which underlie the provision for an exception (in s 3(2)) is a policy decision resolved in the statutory instrument by the words which have been chosen.I am ultimately unpersuaded that the purposive approach to interpretation justifies, less still requires, in this case, the construction contended for by the respondent and co-respondent.”[3]

Since it would be difficult to find a planning scheme that did not provide for at least some urban uses in the rural zone, the SEQRP’s quasi-prohibition of urban uses in the regional landscape and rural production area (RLRPA) will probably operate more effectively in open space and environmental conservation zones, however the prospect of development applications in respect of land so zoned is much lower.Consequently the effectiveness of the SBQRPs is reduced.

Clearly the utility of the quasi-prohibitions contained in the SEQRPs have been weakened in consequence of this judgment because the RLRPA in large part reflects rural zonings under the various planning schemes for the SEQ region.Leaving aside an appeal to the Court of Appeal, there appears to be two possible responses from the government.One is to clarify and strengthen the drafting of the relevant provisions to narrow the scope of the exemption.The other is to do nothing and to repeal the SEQRPs when the regional plan is replaced following the review which is currently underway.For the reasons outlined in our paper of 27 February 2014 the latter is the preferable course.

For more information on Planning and Development matters, please contact HopgoodGanim’s Planning and Development team.

HopgoodGanim is a legal firm of trusted experts. Founded in Brisbane 40 years ago, the HopgoodGanim of today remains fiercely independent and proud of our sustained growth and ongoing success. We deliver exceptional commercially-focused legal advice to clients throughout Australia and internationally and in addition to our corporate and commercial teams, we also house one of Australia’s most highly regarded family law practices.

 


[1] at paragraph [30]

[2] at paragraph [36] (footnotes omitted)

[3] at paragraph [54]