Kenfrost (1987) Pty Ltd v CRC & Ors

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PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Kenfrost (1987) Pty Ltd v CRC & Ors [2024] QPEC 15
PARTIES:

KENFROST (1987) PTY LTD (ACN 082 384 325) TRUSTEE UNDER INSTRUMENT 716471770 (appellant)

v

CAIRNS REGIONAL COUNCIL (respondent)

and

PILEBRIDGE PTY LTD
(first co-respondent)

and

MSF SUGAR PTY LTD

(second co-respondent)

FILE NO:

PEC 16 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Cairns

DELIVERED ON:

10 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 7 & 8 November 2022

JUDGE:

Morzone KC DCJ

ORDER:

1.   Appeal dismissed.

2.   The development application for a preliminary approval for a material change of use (including a variation request) and a development permit for reconfiguring a lot (3 into 65 lots, new roads and balance lot) is refused.

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

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against refusal of preliminary approval for material change of use of premises – variation request and reconfiguration of a lot (3 lots into 65 lots, new roads and balance lot).

Preliminary approval for material change of use of premises - Compliance with Assessment Benchmarks - Whether the proposed material change of use complies with the assessment benchmarks having regard to the inclusion of the land within the 'Rural Zone' under CairnsPlan - Whether the proposed material change of use results in unacceptable impacts on the landscape values of the rural area in which the land is located - Whether  the proposed material change of use results in acceptable flood immunity to the land; adverse interference with the function of the drainage catchment; adverse flooding impacts having regard to the likely impacts on other land in the locality; an acceptable response to the natural features and constraints of the land; complex engineering solutions; and significant ongoing maintenance works to be assumed by the local authority - Whether the proposed material change of use results in: any unacceptable loss of agricultural land; and any unacceptable impacts on the capacity of rural land in the locality (other than the land) to be used for agricultural purposes - Whether the degree of any non-compliance with assessment benchmarks, when considered as a whole, is such that the proposed material change of use fails to advance the planning policy for the land, and the strategic intent for the planning scheme area expressed in the Strategic Framework in CairnsPlan - Whether, having regard to the matters listed below, there are relevant matters sufficient to warrant approval or refusal of the proposed material change of use; Whether in the exercise of the Court’s discretion under s 60(3) of the Planning Act 2016, the proposed material change of use should be approved.

Variation request - Whether the variation request should be approved having regard to assessment of the proposed material change of use; the consistency of the variation request with the planning scheme, regional plan, state planning policy; common material and future submitter rights.

Development permit for reconfiguring a lot - If the proposed…

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Details
Case
[2024] QPEC 15
Decision Date

CaseChat Overview and Summary

Kenfrost (1987) Pty Ltd appealed against the Cairns Regional Council's refusal to grant preliminary approval for a material change of use of its premises, a variation request to alter the planning scheme, and a development permit for reconfiguring a lot. The court was tasked with determining whether the proposed changes complied with the assessment benchmarks and other relevant criteria under the Planning Act 2016, including the impact on the landscape, flood immunity, and agricultural capacity. The court also had to consider whether the proposed changes were consistent with the planning scheme, regional plan, and state planning policy, and whether the variation request would unduly affect submission rights for future development.

The court found that the proposed material change of use significantly conflicted with the assessment benchmarks and the planning scheme. The court highlighted that the proposed changes would result in unacceptable impacts on the landscape, inadequate flood immunity, and interference with the function of the drainage catchment. Additionally, the court noted that the variation request was inconsistent with the planning scheme, regional plan, and state planning policy, and would deny submission rights for future development. The court concluded that the proposed material change of use and the variation request should not be approved, and that the development permit for reconfiguring the lot should also be refused.

In the exercise of its discretion under section 60(3) of the Planning Act 2016, the court refused the proposed material change of use, the variation request, and the development permit for reconfiguring the lot. The court found that the nature and extent of conflict with the assessment benchmarks, the relevant matters, and the contradiction to the public interest warranted refusal of the proposed changes. The court also found that the variation request was inconsistent with the planning scheme and would deny submission rights for future development.

The court ordered that the appeal be dismissed, the development application for a preliminary approval for a material change of use, including a variation request, and a development permit for reconfiguring a lot, be refused, and that the parties be heard as to any other consequential orders.

Orders

Orders of the court

1. Appeal dismissed.

2. The development application for a preliminary approval for a material change of use (including a variation request) and a development permit for reconfiguring a lot (3 into 65 lots, new roads and balance lot) 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

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Decision

Reasons for decision

In contrast, the Council (which the other parties join) distinguishes this appeal from the merits or otherwise of the approvals for stages 1, 2 and 3, which were applied for, and approved, under a previous planning regime, and on grounds that include circumstances materially different to here. I agree. And further, it seems to me that Stage 3 was approved on the basis that it was to be the final stage, and that the appellant would dedicate the land it now seeks to develop. Further, the deprivation of the community of land of all or part of the transfer land subject to condition 28 is contrary to the public interest.CONCLUSION In the exercise of the discretion under s 60(3) of the Planning Act 2016, having assessed of the proposed material change of use against the assessment benchmarks, having regard to and assessing against the relevant matters above, the public interest, and the purpose of the PlanningAct 2016, I’m bound to conclude that the proposed material change of use should not be approved because of the nature and extent of conflict with the assessment benchmarks, my findings in respect to the relevant matters, the contradiction to the public interest; and failure to advance the purpose of the Planning Act 2016.VARIATION REQUEST The appellant makes a variation request to vary the effect of CairnsPlan to create use rights consistent with the Low Density Residential Zone on those parts of the parent land intended to be proposed lots 137-201 (inclusive), by reference to the plan. In Metroplex Management Pty Ltd v Brisbane City Council,[108] this Court affirmed that the gravity of conflict between an application for approval of a material change of use and the existing planning scheme cannot be put at nought simply because the applicant applies to vary the effect of the planning scheme so as to obviate the conflict.[109][108]Metroplex Management Pty Ltd v Brisbane City Council [2010] QPELR 270 at [9].[109]Metroplex Management Pty Ltd v Brisbane City Council [2010] QPELR 270 at [11]. Pursuant to s 61 of the Planning Act when assessing the variation request, the Court must consider:(a)the result of the assessment of that part of the development application that is not the variation request, above; and(b)the consistency of the variations sought with the rest of the local planning instrument sought to be varied; and(c)the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters. The appellant does not seek approval of some of the variations sought or different variations from those sought.[110][110]Planning Act (Qld) 2016, s 61(3)(a). It follows from the assessment and conclusions above that the variation request should also be refused. The result of the assessment of Part A warrants the refusal of the proposed material change of use. The variation request is inconsistent with CairnsPlan, Regional Plan and State Planning Policy 2017 Part E, and would undesirably deny submission rights for later development on the land.DEVELOPMENT PERMIT FOR RECONFIGURING A LOT

Ratio Decidendi

Legal Principle Established

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