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Planning and Environment Paper: The Decision Rules Revisited: An analysis of the Westlink saga - 15 Jan 2013

The decision rules under the Sustainable Planning Act 2009 (SPA) are unnecessarily complex and not conducive to achieving balanced performance-based planning outcomes. Indeed, in a recent paper, partner David Nicholls argued for the need for reform of the decision rules (see Unlocking the power of positive planning policy: Returning flexibility to Queensland’s planning system).

The suite of decisions by the Planning and Environment Court and the Queensland Court of Appeal relating to a proposed gas-fired peak demand electricity generator at Gatton in the Lockyer Valley demonstrates the complexity of the decision rules. In this series of four judgments, the appeal to the Planning and Environment Court against the Council’s decision to refuse the application was returned to the Planning and Environment Court for a second time for re-hearing. Without putting too fine a point on it, this appears to be a case in which the proponent won on the merits, but lost on the law due to the technical complexity of the decision rules. The primary judge attempted to balance the competing considerations at play in the application to arrive at a planning outcome that was in the public interest, but seems to have failed due to technical difficulties arising from the operation of the decision rules related to a use deemed to be ‘inconsistent’ under the planning scheme.

Partner David Nicholls analyses the four judgments and shares his observations on the outcomes of each.

Please click the Download PDF button to download this paper.