Hunt v Douglas Shire Council - [2025] QPEC 19

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Hunt v Douglas Shire Council [2025] QPEC 19

PARTIES:
GARY JOHN HUNT

(Appellant)

v

DOUGLAS SHIRE COUNCIL

(Respondent)

FILE NO:

D14 of 2024

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Cairns

DELIVERED ON:

5 September 2025

DELIVERED AT:

Cairns

HEARING DATE:

31 March 2025, 1, 2 & 17 April 2025

JUDGE:

Morzone KC DCJ

ORDER:

1.   Appeal dismissed.

2.   The development application seeking a development permit for reconfiguring a lot (one lot into four lots) is refused.

3.   I will hear the parties as to any other consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against refusal of development application seeking a development permit for reconfiguring a lot (1 lot into 4 lots) for Agricultural Land Class A land with an area of 53.53 hectares – code assessable development under planning scheme – whether the proposed development complies with the assessment benchmarks in the planning scheme – whether compliance with the assessment benchmarks can be achieved by the imposition of lawful development conditions – ought the development application be approved in the exercise of the discretion under s 60(2)(b) of the Planning Act.

LEGISLATION:
Planning Act 2016 (Qld), ss 45(3), 59(3), 60 & 229.

Planning and Environment Court Act 2016 (Qld), ss 43, 45, 47.

CASES:

Brisbane City Council v Klinkert [2020] QPELR 579.
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987.
Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103.
CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412.
Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208.
GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 16.
Gracemere Surveys Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126.
Harburg Investments v Brisbane City Council (2000) QPELR 313.
Landarch Properties Pty Ltd v Logan City Council & Anor [2024] QPEC 47.
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328.
Traspunt No 14 Pty Ltd v Moreton Bay Regional Council [2021] QPELR 1286.
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337.
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82.

COUNSEL:
A Skoien for the Appellant

J Bowness for the Respondent

SOLICITORS:
P&E Law, solicitors for the Appellant

King & Company, solicitors for the Respondent

Summary

The appellant developer appeals against the respondent Council’s decision to refuse his development application seeking a development permit for reconfiguring a lot (one lot into four lots) for Agricultural Land Class A land with an area of 53.53 hectares at 291 Mowbray River Road, Mowbray, in the State of Queensland, and described as Lot 34 on SP 331786.
The appellant contends that the proposed development complies with the Rural Zone Code and Reconfiguration of a Lot Code, asserting that no mandatory minimum lot size exists, and the proposal will not impact the productive capacity of rural land for primary production or compromise its long-term rural use.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QPEC 19
Decision Date: 5 September 2025

CaseChat Overview and Summary

In Hunt v Douglas Shire Council, the applicant sought a development permit for the reconfiguration of a 53.53-hectare lot of Agricultural Land Class A into four separate lots. The Douglas Shire Council refused the application, leading the applicant to appeal to the Queensland Planning and Environment Court. The primary legal issues before the court were whether the proposed development complied with the assessment benchmarks in the planning scheme and whether compliance with those benchmarks could be achieved through the imposition of lawful development conditions. Additionally, the court had to determine whether the development application should be approved under the discretionary powers granted by s 60(2)(b) of the Planning Act.

The court meticulously reviewed the planning scheme and relevant legislative provisions, concluding that the development did not comply with the assessment benchmarks. However, the court noted that where planning provisions are worded in vague and flexible terms, there are no clear or definitive criteria to determine compliance, providing the court with considerable discretion. The court found that compliance could not be achieved through the imposition of lawful development conditions. Therefore, the court refused the development application, dismissing the appeal and refusing the development permit. The court will hear further submissions regarding any consequential orders.

Orders

Orders of the court

1. Appeal dismissed.

2. The development application seeking a development permit for reconfiguring a lot (one lot into four lots) is refused.

3. I will hear the parties as to any other consequential orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Since s 1.3.2(3) of the scheme specifies that notes form part of the planning scheme, the second note to s 5.4(1)(c)(iv) requires that “the strategic framework (where relevant) is considered to be the purpose of the instrument containing an applicable code”. And s 6.2.10.2(2) of the Purpose of the Rural Zone Code includes a local government purpose that:“(a)implement the policy direction set in the Strategic Framework, in particular:…(ii)Theme 3: Natural resource management, Element 3.6.2 – Land and catchment management, Element 3.6.3 Primary production, forestry and fisheries, Element 3.6.4 – Resource extraction.(iii)Theme 5 Economy, Element 3.8.2 – Economic growth and diversification, Element 3.8.4 – Primary production.”Code Assessment and Decision Framework The appeal is brought under s 229 and Sch I of the Planning Act and the provisions of the Planning and Environment Court Act 2016 (Qld). The appeal is to be heard by way of hearing anew[1] and must be decided by the court standing in the shoes of the assessment manager. The court may confirm or change the decision appealed against, or set it aside and either replace it or remit the matter to the Council.[2] [1] Planning and Environment Court Act 2016 (Qld) s 43.[2] Planning and Environment Court Act 2016 (Qld) s 47. The appellant bears the onus in the appeal.[3][3] Planning and Environment Court Act 2016 (Qld) s 45. The Planning Act and the Planning and Environment Court Act apply to the appeal. As the development application required code assessment, the decision of the court pursuant to s 60(2) must be based, subject to s 62, upon the assessment required by s 45(3) and s 59(3) of the Act. Accordingly, the court must assess the development application only: (a)Against the assessment benchmarks in a categorising instrument for the development; and(b)Having regard to any matters prescribed by regulation. And after carrying out the assessment, the court:(a)Must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; (b)May decide to approve the application even if the development does not comply with some of the assessment benchmarks; (c)May impose development conditions on an approval; and(d)May, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions. Importantly, non-compliance with the planning scheme should be “plainly identified”.[4] Further, where planning provisions are worded in vague and flexible terms, where there are no clear or definitive criteria by which the court can determine whether there is conflict between a proposal and the planning scheme, the court has great width in the decision-making process.[5][4] Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103 at 106; Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 at 212; Harburg Investments v Brisbane City Council (2000) QPELR 313 at 328.[5] Gracemere Surveys Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126 at [30]; CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412 at [25]-[27].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hunt v Douglas Shire Council [2025] QPEC 19
PARTIES:	GARY JOHN HUNT (Appellant) v DOUGLAS SHIRE COUNCIL (Respondent)
FILE NO:	D14 of 2024
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Cairns
DELIVERED ON:	5 September 2025
DELIVERED AT:	Cairns
HEARING DATE:	31 March 2025, 1, 2 & 17 April 2025
JUDGE:	Morzone KC DCJ
ORDER:	1. Appeal dismissed. 2. The development application seeking a development permit for reconfiguring a lot (one lot into four lots) is refused. 3. I will hear the parties as to any other consequential orders.
CATCHWORDS:	PLANNING AND ENVIRONMENT – Appeal against refusal of development application seeking a development permit for reconfiguring a lot (1 lot into 4 lots) for Agricultural Land Class A land with an area of 53.53 hectares – code assessable development under planning scheme – whether the proposed development complies with the assessment benchmarks in the planning scheme – whether compliance with the assessment benchmarks can be achieved by the imposition of lawful development conditions – ought the development application be approved in the exercise of the discretion under s 60(2)(b) of the Planning Act.
LEGISLATION:	Planning Act 2016 (Qld), ss 45(3), 59(3), 60 & 229. Planning and Environment Court Act 2016 (Qld), ss 43, 45, 47.
CASES:	Brisbane City Council v Klinkert [2020] QPELR 579. Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987. Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103. CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412. Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208. GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 16. Gracemere Surveys Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126. Harburg Investments v Brisbane City Council (2000) QPELR 313. Landarch Properties Pty Ltd v Logan City Council & Anor [2024] QPEC 47. Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328. Traspunt No 14 Pty Ltd v Moreton Bay Regional Council [2021] QPELR 1286. Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337. Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82.
COUNSEL:	A Skoien for the Appellant J Bowness for the Respondent
SOLICITORS:	P&E Law, solicitors for the Appellant King & Company, solicitors for the Respondent