Aria Property Group P/L v Maroochy Shire Council & Ors

Aria Property Group P/L appealed against the Maroochy Shire Council's conditional approval of their development application for a material change of use to multiple dwelling units. The primary judge in the Planning and Environment Court had set aside the approval, finding that the proposed development was not compatible with the "preferred use" under Precinct 5 of the Planning Scheme for Maroochy Shire and exceeded the maximum building height of 15 metres or four storeys. The appeal raised questions about the interpretation of the planning provisions, particularly the meaning of "maximum" in relation to building height, and whether a failure to meet an acceptable measure necessarily results in a conflict with the Scheme.

The court considered whether the primary judge erred in law by adopting an erroneous construction of the Scheme, which prevented a proper assessment of the development proposal on its merits. The court examined the legislative context, including section 2.1.23 of the Integrated Planning Act 1997 (Qld), which states that a description of a height or site coverage as a "maximum" does not impose an absolute prescriptive limit. The court concluded that the primary judge had erred in law by treating the maximum building height as an absolute limit and by failing to properly assess the development proposal on its merits. The court found that the proposed development was compatible with the preferred use under Precinct 5 and did not exceed the maximum building height as it was not an absolute prescriptive limit.

The appeal was allowed, and the orders of the Planning and Environment Court made on 30 October 2007 were set aside. The appeal to the Planning and Environment Court was dismissed, and the development application was allowed. The applicant was granted leave to appeal and was ordered to pay the costs of the appeal.