Planning and Environment Quarterly Case Review – April 2025

In the latest Planning and Environment Quarterly Case Review, we discuss four recent court decisions including;

• a case where a developer sought leave to appeal refusal of a luxury hotel in Port Douglas;
  
• a submitter appeal against an “other change” approval for a mixed use development;
• flooding concerns related to a proposed camping ground; and
• a dispute over road access to a redevelopment site.

Decision 1: Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153

This Court of Appeal decision relates to a proposal for a five-star hotel at Port Douglas. The impact assessable application had been refused by Council and refused by the P&E Court following an appeal. The developer sought leave to appeal the P&E Court’s decision to the Court of Appeal.

Two interesting points of law were argued.

The first concerned the approach to an assessment against one of the performance outcomes in the relevant local plan code – the argument being if the application was separately assessed against that PO (said to relate only to landscaping and not built form) and found to comply, it followed from the structure of the scheme, that no consideration need be given to the overall outcome (which pulled in built form considerations). The relevant scheme stated that, for code assessment, compliance with the code could be achieved through compliance with the purpose and overall outcomes or through compliance with the performance or acceptable outcomes. The developer contended that, if compliance had been found with the PO, that approach would have had a “domino effect” in that the development would have been compliant with the planning scheme which was reflective of the public interest. This point of law was dismissed on both a construction and materiality basis, with the Court of Appeal finding that the P&E Court had appropriately carried out the assessment and determined that the relevant PO was not complied with.

The second point of law argued was a relatively technical one. It involved an argument as to the construction of a number of assessment benchmarks that required development to “retain” or “protect, maintain and enhance” certain landscape values, or “maintain” the character and amenity of an area. The developer pointed to a line of authority that provisions of that kind should not be applied “too strictly” but should be applied subject to the qualification “to an acceptable degree”. It was accepted that the P&E Court had approached the amenity issues from the basis that new development will often affect existing amenity, and the real issue was whether it would have a detrimental effect to an unreasonable extent. In that context, the point of law argued was a relatively fine one, seeking to draw a distinction between a construction issue and a discretion issue, and did not gain traction. The Court held that the purported test was not a discrete principle of construction in addition to the established statutory interpretation principles. Those principles establish that the starting point is the text of a planning scheme, read in context with a common sense approach adopted to achieve a practical balancing between outcomes.

Again, the Court of Appeal determined that even if the error had been established, it would not have materially affected the decision. The Court of Appeal concluded that the primary judge’s ultimate findings regarding the unacceptable impact on character and visual amenity were decisive.

The application for leave to appeal was dismissed with costs, affirming the P&E Court’s decision to refuse the development application.

Decision 2: McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32

This case involved a submitter appeal to the Planning and Environment Court (at first instance) arising out of the Council’s decision to approve an “other change” application.

The development was originally approved in 2014 and involved a mixed-use development for multiple dwellings, short term accommodation, a resort complex, food and drink outlets, office and shops among other things, across four buildings, in four stages. Since 2014, the approval had undergone a series of changes (both “minor” and “other”). The “other change” that was the subject of the appeal involved the introduction of a gym (a new use), changes to architectural design, and consolidation of built form from four buildings into three as follows:

• Building 1: approved at 16 storeys (no change);
• Building 2: approved at 10 storeys, proposed at 14 storeys;
• Building 3: approved at 4 storeys, proposed at 7 storeys;
• Building 4: approved at 3 storeys (no longer proposed).

The original approval included a height uplift, consistent with the key provision in the Council’s strategic framework. The heart of the submitter’s contentions seemed to be that the decision to approve buildings over three storeys in height, did not justify approving the “other changes” which saw a further increase in height for two of the buildings. The Court observed this contention ignored the decision rules for an “other change” application, which require that the changes are assessed “in the context of the (existing) development approval”.

On the evidence, the P&E Court was satisfied that the revised proposal continued to satisfy the qualitative requirements of the uplift provision and was otherwise meritorious. The submitter appeal was dismissed. The P&E Court’s decision was upheld in a subsequent Court of Appeal challenge, which will be covered in our next Quarterly Case Review, as will the costs application determined earlier this year in the P&E Court.

Decision 3: Cheep Stays Pty Ltd v Ipswich City Council [2024] QPEC 34

Flooding was the key issue in this case.

Council had refused an impact assessable development application for a camping ground at 84 Chubb Street, One Mile, Ipswich. The site was prone to flooding, becoming inundated at around the 2% Annual Exceedance Probability (AEP). The site became isolated in more frequent events (the 10%AEP). The developer had advanced a Flood Emergency Management Plan (FEMP), but the Council was concerned that the flood risk was not adequately addressed.

The Court was ultimately satisfied that the flood risk was adequately addressed. Key factual findings included that:

• There were significant warning times prior to flood event, which provided sufficient time to prepare, respond and evacuate the site.
• The nature of the use –occupants of the site were not permanent residents. There was a “mobility” factor as campers, or those towing caravans could pack up and leave quickly, taking all their possessions with them.

Council was concerned that, because flood events would be relatively frequent, that would increase complacency and diminish the effectiveness of the FEMP. However, there was no particular evidence led to displace the presumption that conditions would be complied with – or to establish a proper basis for finding that the FEMP would not be complied with.

The “Coty” principle was also at play, as Council’s new planning scheme was in an advanced state. The Court determined, however, that the proposal would not inhibit the ability of Council to implement the scheme and, further, that there was no new planning direction in respect of flooding identified by the draft scheme. The present scheme already acknowledges the significant risk of flooding and required development to appropriately mitigate risk and because the Court was satisfied the development appropriately did so, the appeal succeeded and the application was approved.

Decision 4: Capital 22 Pty Ltd v Chief Executive, Department of Transport and Main Roads; Capital 22 Pty Ltd v Sunshine Coast Regional Council & Anor [2024] QPEC 35

This case involved the interaction between a development application, assessed and decided by Council under the Planning Act 2016 (Planning Act) and a decision by the Department of Transport and Main Roads (DTMR) relating to access to the State controlled road under section 62 the Transport Infrastructure Act 1994 (TIA).

The development site involved two existing crossovers to Aerodrome Road (a State controlled road). The redevelopment proposal proposed one left in, left out access remain on Aerodrome Road, with another primary access off a local road (Fairway Drive). The development application made to Council under the Planning Act was taken to include an application to DTMR for a new or changed access under the TIA.

Council’s decision notice for the development application included SARA’s referral agency response, where conditions prohibited site access via Aerodrome Road. SARA’s conditions reflected the section 62 decision made by DTMR. There were two separate appeals – the first, a Planning Act appeal against SARA’s conditions, the second – a TIA appeal against DTMR’s section 62 decision.

The judge dealt first with the appeal relating to the section 62 decision. He noted that the decision-making framework under the TIA lacked prescription, and that the discretion was broad and largely unfettered – subject to the implied limitation that the ultimate exercise of the discretion be consistent with the subject-matter, scope and purpose of the relevant Act. The TIA is concerned with the safe, efficient operation and management of transport infrastructure. In that context, the Judge examined the reasonableness and justification of the conditions which restricted access to the State-controlled road.

A key factual matter was that all of the traffic experts agreed that the development could acceptably rely on access via Fairway Drive only. The Court also accepted that removal of all vehicle access to the site via Aerodrome Road would improve the efficiency of the road (reduce friction, particularly in relation to public transport such as buses travelling along the road) and improve safety for pedestrians.

The Court recognised that there would be some traffic engineering benefits associated with the developer’s proposal to retain access on Aerodrome Road, but these were not sufficient to displace the other compelling reasons to refuse the TIA application. Central to this conclusion was the Court’s finding that the access on Aerodrome Road would give rise to adverse safety and efficiency impacts, which would not arise if access was limited to Fairway Drive. The Court found that approving vehicle access to Aerodrome Road would represent a poor traffic planning and engineering outcome.

The TIA appeal was dismissed. The finding in that proceeding was essentially determinative of the issues raised in the Planning Act appeal.