In this Alert, David Nicholls considers a recent decision of the Planning and Environment Court in which HopgoodGanim were involved where the Court interpreted the SEQ Regulatory Provisions regarding Material Change of Use (MCU) outside the Urban Footprint (UF).

Key Points:

  • The criteria for approval of MCU outside the UF set out in column 2 of Table 2E of the SEQ Regulatory Provisions, while appearing to be separate issues, actually overlap;
  • The issue of locational requirements is integral to determination of overriding need;
  • The word “necessitate” in criteria (a), when referring to the need for location outside the UF means practically necessary rather than either absolute necessity on the one hand or mere preference on the other;
  • MCU requires assessment against the SEQ Regulatory Provisions but, unlike subdivision, is not inconsistent with the regulatory provisions per se and therefore not absolutely precluded; and
  • Failure to satisfy the assessment criteria is not fatal in the case of MCU.

This Alert is a footnote to our paper “SEQ Regional Plan – The Regulatory Provisions Should Be Repealed” published in February 2014.

In that paper, we postulated a hypothetical factual scenario involving a specialised industrial facility proposed on land outside but near the boundary of the UF.  The factual scenario was based upon an appeal to the Planning and Environment Court in which we were involved at the time, which has since been decided.  The case is Hymix Australia Pty Ltd v Brisbane City Council & Ors (2014) QPEC 35.

The point we made in our paper about the substantial hurdle created by the SEQ Regulatory Provisions for development outside the UF is amply demonstrated by the facts of the Hymix case, and the submissions put strongly to the Court by the Brisbane City Council as to why the development application had to be refused.

Notwithstanding the significant difficulties faced by Hymix in overcoming the overriding need in the public interest test, the appeal was allowed and the development was approved.

Section 314(2) of the Sustainable Planning Act 2009 (SPA) requires development applications to be assessed against the Regional Plan’s Regulatory Provisions, which are a statutory instrument having the force of law.  Under Section 324(3) of the SPA the assessment manager’s decision, and that of the Court, cannot be inconsistent with the Regulatory Provisions.  While certain subdivision applications are absolutely precluded, MCU must be assessed against the statutory criteria which, although strict, requires application of a merits based test.

The Court found that while the two elements of locational requirements and overriding need in the public interest are stated separately in column 2 of Table 2E of the Regulatory Provisions, they in fact overlap and have to be considered together.  Where the criteria speak of “locational requirements ... necessitate ... location outside” the UF they should be taken to mean practically necessary rather than either absolute necessity on the one hand or a mere preference on the other.  The term “necessitate” should be approached in a practical and reasonable way.

The assessment of MCU outside the UF is an evaluative exercise involving consideration of locational requirements and over-riding need in the public interest, as the latter term is defined for the purpose of the Regulatory Provisions.  There is, accordingly, an element of discretion involved and the two elements are inter-related.  His Honour Judge Rackemann declined to take a strict or fine grained approach to the locational criteria.  His Honour concluded that it would be practically difficult to locate the facility inside the UF and significant community disbenefit in both environmental and economic terms would result were the proposal not allowed to proceed.

The case is also noteworthy because it is the first case in which the Court has considered development lawfully established under a statutory exemption that has expired.  The case involved seeking approval for an existing but mothballed concrete pre-casting/prestressing plant, which was possibly the largest in Australia, to allow it to reopen.  The concept of “economic efficiency” featured prominently in the expert evidence of the economists, and in the Court’s reasons.  The Court accepted that when assessing the strength of economic need the economic efficiency in utilising an existing asset is a relevant factor.  His Honour Judge Rackemann said:

        “I accept that care must be taken in considering the economic efficiency argument so that it does not become a matter of allowing the recommencement of use simply to suit the convenience and economic position of the applicant.  It is matters of public interest which are important.  While there can be no precision about the extent to which the benefits of economic efficiency will pass onto the community, it is obviously in the community’s interests to ensure, by appropriate planning decisions, that an efficient and competitive market is created from which the community is likely to benefit.”

The case is also remarkable in that, on the evidence, there was not one policy of the SEQ Regional Plan offended by the proposed development yet the Council submitted that it ought not to be permitted because it failed to meet the overriding need criteria for MCU outside the UF.  The case demonstrates the point made in our earlier paper about the disconnect between the desired regional outcomes on the one hand and the effect of the SEQ Regulatory Provisions on the other.  The Regulatory provisions assume that the regional policies are breached.  The case provides a practical example which supports our argument for allowing the Regional Plan’s policies to be applied according to the merits of a proposal, rather than by application of quasi-prohibition.