Bell 13Nov2019 · RAL19/0011

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 Blake Bell                                                                           13 November 2019



           b. owned by Kaymond Pty Ltd;
           c. an estate in fee simple;
           d. zoned Rural under the Noosa Planning Scheme; and
    3. Lot 481 on MCH524, which is:
           a. 96.315ha;
           b. owned by Gregory Malcolm Walsh and Tammy Walsh;
           c. an estate in fee simple;
           d. zoned Rural under the Noosa Planning Scheme.

The Applicant made an application for a development permit to Council on or before 12 April 2019.

The proposed development is to realign the boundaries of the three subject lots to better reflect
their usage. The effect of the realignment is to amalgamate the area of Lot 528 with Lot 481 so that
Lot 481 becomes 96.68 ha, and to then excise from Lot 480 an area of about 1.451 ha, which would
re-establish the third title in a more usable form, without detracting from the productive capacity of
Lot 480. The net effect is that Lot 481 is enlarged in a logical way and Lot 480 is reduced slightly to
provide a suitable dwelling lot, whilst remaining above the 100 ha probable solution minimum.

The Application is Code Assessable.

Council issued a Confirmation Notice dated 1 May 2019, which notes that the application was
properly made on 12 April 2019.

Council issued an Information Request dated 13 May 2019. The Information Request included the
following:

        Issue

        Upon examination of historic survey plans, it is understood excess land in the Happy Jack
        Creek Road reserve that was not occupied by the road formation was reconfigured into lots
        with individual freehold titles.

        It is likely the intent for the creation of Lot 528 MCH 1930 was to dispose the land to the
        adjoining property for rural land use purposes (cattle grazing etc.) rather than for the
        purpose of an individual rural-residential lot.

        Information Required

        Provide details of the suitability and functionality of Lot 528 MCH 1930 as a rural lot in its
        current stand-alone form. Details must include the following:
              a.    A suitable house site taking constraints into consideration (e.g. setbacks,
                    flooding); and
              b.    A suitable effluent disposal area; and
              c.    Suitable area for other associated structures, services and land use of a rural
                    property.

A response was made to the Information Request on or about 22 May 2019.

The Decision Stage has now been stopped, to enable consideration of this advice.




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    Blake Bell                                                                         13 November 2019



Fundamentals of the Application

The Applicant has the right to make a development application.1

The application is properly made because it appears to comply with the relevant formal
requirements and has been accepted by Council as being properly made.2

The subset of “development” which is proposed is “reconfiguring a lot”.3

“Reconfiguring a lot” is defined4, relevantly, as follows:

           reconfiguring a lot means—

           …

           (c) rearranging the boundaries of a lot by registering a plan of subdivision under the Land Act
           or Land Title Act; or

           …

“Lot” is defined5, relevantly, as follows:

           lot means—

           (a) a lot under the Land Title Act; or
           (b) …

Under the Land Title Act, “Lot” is defined, relevantly, as follows:

           lot means a separate, distinct parcel of land created on—

           (a) the registration of a plan of subdivision; or
           (b) …

Each of the subject lots is a lot under the Land Title Act 1994.

The application is to rearrange boundaries of lots.

If approved, the development will be completed by registering a plan of subdivision under the Land
Title Act 1994.

We are of the opinion that there is no fundamental reason why the subject application could not be
made, notwithstanding one of the lots is of an unusual shape.




1
  Section 50 Planning Act
2
  Section 51 Planning Act
3
  Schedule 2 Planning Act, definition “development”
4
  Schedule 2 Planning Act, definition "reconfiguring a lot"
5
  Schedule 2 Planning Act, definition "lot"

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 Blake Bell                                                                          13 November 2019



Assessing and Deciding the Application

As noted above, the application is code assessable.

The application must be assessed in accordance with section 45 (3) of the Planning Act 2016 which
requires that the assessment be carried out only:

    1. against the assessment benchmarks in a categorising instrument for the development; and
    2. having regard to any matters prescribed by regulation for this paragraph.

Sections 26 and 27 of the Planning Regulation identifies additional matters for the assessment of
code assessable applications.

Of the assessment benchmarks identified in the Act and Regulations, the assessment against the
applicable parts of the Planning Scheme is the most relevant for present purposes.

By reference to Table 8.9 in the Planning Scheme, the application is to be assessed against the
following codes:

    1.   Mary River Catchment Locality Code; and
    2.   Reconfiguring a Lot Code; and
    3.   Landscaping Code; and
    4.   Engineering Works Code.

The Locality Code and the Reconfiguring a Lot Code are the most relevant to this advice.

We have reviewed both of those Codes and have been unable to identify a provision which
stipulates minimum, pre-existing characteristics of the lots proposed to be reconfigured, nor have
we identified any requirement for an applicant to demonstrate the utility of the existing lots.

The application must be decided in accordance with section 60 of the Planning Act. The Planning and
Environment Court has said this about deciding code assessable applications:

         [7] As the development application giving to the appeal was code assessable, s 45 of the PA
         states that the assessment must only be carried out against, relevantly, the assessment
         benchmarks which, in the circumstances before me, are found in the planning scheme.
         Unlike impact assessment, the court cannot have regard to relevant matters as defined in s
         45(5) of the PA. Pursuant to s 59(3) of the PA, the decision of the court must be based on an
         assessment against the assessment benchmarks, subject to s 60, with relevantly provides:

                 “(2) To the extent the application involves development that requires code
                 assessment… the assessment manager, after carrying out the assessment –

                         (a) must decide to approve the application to the extent the development
                         complies with all of the assessment benchmarks for the development; and

                         (b) may decide to approve the application even if the development does not
                         comply with some of the assessment benchmarks; …”

         [8] As Williamson QC DCJ observed in Klinkert v Brisbane City Council:

                 “The discretion is expressed in permissive (‘may’) and broad terms. It is subject to an
                 important constraint, namely the constraint expressed in s 59(3) of the PA requiring


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    Blake Bell                                                                        13 November 2019



                    the decision to be based on an assessment carried out pursuant to earlier provisions
                    of the Act, which in this case, includes, inter alia, s 45.”6

Council’s decision must be based upon the assessment of the application as prescribed in the Act.

We can see no basis for Council’s suggestion that the utility of the land in its current form has any
relevance in the assessment of this application against the Planning Scheme and so it should not
have a bearing on the Council’s decision on the application.

It is relevant to have regard to the lawful use of the premises when carrying out the assessment.7
We are instructed that Lot 528 is presently used for agricultural purposes, in association with the use
of Lot 481 (which is the adjoining land, but under separate ownership). Lot 528 could lawfully be
used for the purposes which are Accepted Development in Table 8.9, including a Detached House,
without a development permit. We cannot see how having regard to those circumstances could
warrant refusal of the application.

Conclusion

There does not appear to be any lawful basis for Council’s position that the application must be
refused because of the existing characteristics of Lot 528.


Yours faithfully




Andrew Williams LLB BBus(Accy)
Director - Maroochydore Office
e [email protected]




6
    Di Carlo v Brisbane City Council [2019] QPEC 4
7
    Section 27(1)(f) of the Planning Regulations

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