Court of Appeal

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Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 021; (2014) QPELR 168 (13/5377) Margaret McMurdo P and Fraser and Morrison JJA 21/02/2014

Full-text: QCA14-021.pdf

Catchwords

ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – CONSIDERATION OF PLANNING SCHEMES – where the applicant applied to the first respondent Council for a development permit for a material change of use of land for the purpose of Commercial Groundwater Extraction – where the proposed use of land conflicted with the local government Planning Scheme – where Council’s refusal to approve the application was upheld by the Planning and Environment Court – whether the primary judge erred in law in holding that a stated precinct intent applied across the Shire instead of merely to the relevant zone – whether that error diminished the importance of a deficiency in the planning scheme – whether that error influenced the primary judge’s decision that the proposed development’s conflict with the planning scheme was significant

ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – FAILURE TO CONSIDER RELEVANT MATTERS – where there was a deficiency in the relevant Planning Scheme – whether the primary judge erred in not considering that deficiency when considering the exclusion of the proposed development from the Consistent Use Development Table – where the Planning Scheme contained general provisions applicable to any Commercial Groundwater Extraction development and the proposed development did not contain every element of the general Commercial Groundwater Extraction definition – whether the primary judge erred in failing to consider that definition – where the primary judge made a detailed assessment of the development proposal against specific provisions of the Planning Scheme – whether the primary judge erred in failing to consider that assessment – where it is for the court to determine the importance of a deliberate planning policy underlying the exclusion of Commercial Groundwater Extraction from the Consistent Use Development Table – whether the judge erred in failing to determine the degree of importance

Summary Notes

Application for Leave Sustainable Planning Act – where the applicant applied to the first respondent Council for a development permit for a material change of use of land for the purpose of Commercial Groundwater Extraction – where the proposed use of land conflicted with the local government Planning Scheme – where Council’s refusal to approve the application was upheld by the Planning and Environment Court – whether the primary judge erred in law in holding that a stated precinct intent applied across the Shire instead of merely to the relevant zone – whether that error diminished the importance of a deficiency in the planning scheme – whether that error influenced the primary judge’s decision that the proposed development’s conflict with the planning scheme was significant – where the primary judge’s reasons for rejecting the applicant’s argument that the conflict was merely “mechanical or technical” make it plain that his Honour appreciated that the relevant Planning Scheme provisions related to the Tamborine Mountain Zone rather than any other Zone within the Shire – where in the context of the primary judge’s repeated references to the Village Residential Precinct being in the Tamborine Mountain Zone and the focus upon that Zone in the essential passages in the primary judge’s reasons, it is difficult to attribute any particular significance to the primary judge’s reference to “Shire” rather than “Zone” in paragraph 171 of his Honour’s reasons – where it is 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 – where that conclusion was available upon the face of the Planning Scheme and the applicant’s own planner (Lyons) agreed in cross-examination that the specification of consistent development in the relevant Zone could be regarded as deliberate rather than a “mechanical expression” – where the finding was therefore open on the evidence and unaffected by the error of law for which the applicant contended. Application refused with costs.