The case of Northern Sands Pty Ltd v Cairns Regional Council [2023] QPEC 31 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Northern Sands Pty Ltd (Appellant) against the decision of the Cairns Regional Council (Council) to refuse a development application for a development permit for a material change of use for a service station and truck stop (Proposed Development) on the Captain Cook Highway on the outskirts of Cairns, Far North Queensland (Site). 

The impact assessable development application was assessed in accordance with the repealed Sustainable Planning Act 2009 (Qld) (SPA), which was in force at the time the development application was made in December 2015, against the Far North Queensland Regional Plan 2009-2031 (Regional Plan) and CairnsPlan 2009. The Court also decided that substantial weight ought to be given to the CairnsPlan 2016 which came into affect after the development application was made.

The Appellant submitted that the Proposed Development would improve the current use of the highway and provide a unique contribution to the area by accommodating a variety of highway-traveller needs. The Council however argued that there is nothing about the Proposed Development which would trump the significant conflicts with the relevant planning instruments that are aimed at protecting the rural character and scenic amenity of the inter-urban break (at [5]). 

The Court considered the following critical issues (at [6]):

"(a) Does the scope of the development application include decoupled truck parking facilities? 
(b) Does the proposal conflict with the planning instruments, in relation to: 

(i) The proposed land use and location? 
(ii) The rural character and scenic amenity? 

(c) Is the proposal inconsistent with existing approvals over the land? and 
(d) If the proposal conflicts with the planning instruments, are there sufficient grounds to approve the application, including whether there is a need for the proposal?"

The Court upheld the Council’s decision to refuse the development application and dismissed the appeal. The Court concluded that there are significant conflicts with the relevant planning instruments and that there is no need for the Proposed Development which would support its approval. 

A preliminary question for the Court was whether the decoupled truck parking facilities adjacent to the service station formed part of the "Service Station" use under the CairnsPlan 2009 as well as the narrower definition under the CairnsPlan 2016. 

The Court found that the decoupled truck parking facilities use does not fall within the definition of "Service Station" under either version of the relevant planning scheme, even if that definition is construed broadly. The Court went on to find that the decoupled truck parking facilities use is "…more aptly caught by the definition of 'Transport depot'" (at [34]). 

The Court went on to assess the Proposed Development against a number of overlapping provisions under the Regional Plan, CairnsPlan 2009 and CairnsPlan 2016 with respect to "…the proposed land use and location, and the surrounding rural character and scenic amenity…" (at [36]).

The relevant provisions of the Regional Plan were Part C (Strategic directions) and Part E (Regional policies); section 2.1 (Regional landscape values), and section 2.3 (Scenic amenity, outdoor recreation and inter-urban breaks).

Part C of the Regional Plan relevantly requires that "planning and development must be responsive to these strategic directions to ensure long-term ecological sustainability of the region" (at [37]). The Court was particularly concerned with the Strategic Direction - Protecting regional landscape and rural production values, which "…seeks to maintain regional landscape and rural production values and features by protecting them from 'inappropriate urban development, urban sprawl and fragmentation'…" (at [38]).

Part E of the Regional Plan, in particular policy 2 - Regional landscape and natural resources includes the desired regional outcomes that "the environmental, cultural, social and economic features that comprise the region’s unique tropical and rural landscapes are identified, maintained and managed sustainably”, and (relevant to this case) that “the forested hills, regional landscapes and abundant tropical greenery make the region’s scenery special and distinct from other parts of Australia. … [The region’s landscape]…provides a backdrop for tourism, outdoor recreation and spiritual and cultural pursuits." (at [41]).

Section 2.1 of the Regional Plan describes the regional landscape values, and includes references to "areas that form inter-urban breaks". The Court referenced that "Inter-urban breaks" means "non-urban land areas that separate or surround urban villages, towns and metropolitan areas" (at [43]). 

The Court stated that the "[Site] itself is well outside the world heritage area, and it is not itself an area of high ecological significance or of high scenic amenity or of landscape heritage value" (at 71]). The Court noted the total area of the Proposed Development, being 6,863m², and that in comparison to the existing use "…will be exposed with less screening in the inter-urban break" (at [74]). The Court therefore found that the Proposed Development would present "…an incursion into the preservation of the inter-urban break promoted by the [Regional Plan]" (at [74]) and that there is a conflict with the Regional Plan (at 75]). 

The relevant provisions of CairnsPlan 2009 were the relevant 'Desired Environmental Outcomes', the relevant 'Planning for Districts' provisions, the 'Rural 1 Planning Area Code', the 'Service Station Code', and the 'Development Near Major Transport Corridors and Facilities Code'. 

Most notably:

1. The Court considered Desired Environmental Outcomes 2.2.5 and 2.3.2 in the CairnsPlan 2009. Desired Environmental Outcome 2.2.5 emphasises the high scenic value of the region, and the performance indicator "rhetorically asks that 'where development has occurred, has it adversely affected the scenic landscape of the city or any of the essential elements of the scenic landscape?'" (at [45]). Desired Environmental Outcome 2.3.2, which is in respect of Economic Activity and Employment Centres, relevantly states that "[t]own centres, subregional, district and local centres are intended to be developed to contribute to a sense of community life and belonging for the people they serve". The corresponding performance indicator asks "[w]here significant new business, community and industrial development has occurred, has it been located within the Town Centres, Sub-Regional and District Centres and the major industrial and employment areas?'" (at [45]).
2. The relevant district for the Site is the 'Barron-Smithfield District', which in accordance with section 3.7.1 of the CairnsPlan 2009 has dominant features including the Barron Delta floodplain, forested hillslopes of the Kuranda Range and extensive cane field and wetlands (see [46]). Applying section 3.7.1, the Court recognised that the Site is intended to be "…utilised as productive agricultural land because of the susceptibility to flooding; the value of the good quality agricultural land; and the contribution the area makes to the scenic amenity of the City with views of cane fields, wetlands and hillslopes" (at [46]).
3. The Site is within the Rural 1 Planning Area and is therefore subject to the Rural 1 Planning Area Code under the CairnsPlan 2009, which facilities the retention of the natural scenic landscape character of land in the planning area, and its protection from urban uses (at [47]).  

With respect to the strategic provisions in the Desired Environmental Outcomes, the Court observed that they are predominantly concerned with an assessment of the impacts on the rural character and scenic amenity of the area. The Court had the benefit of photomontages of day and night photos to assist with its consideration of the impacts. The Court found that the illuminated signage, removal of vegetation, and limited landscaping contributed to the visual impact of the Proposed Development, and such impacts would extend into the night (at [88]).

With respect to the other CairnsPlan 2009 provisions, the Court referred to the Appellant's town planning expert's summary of such provisions as requiring a consideration of the following (at 78]):

"(a) whether rural activities are protected from the intrusion of incompatible uses; 
(b) whether the site is important to the scenic landscape value of the City; and 
(c) whether the Proposed Development can be protected from the identified flooding issues." 

The Court accepted evidence from the Appellant that the Site had "…limited agricultural potential in the mid to long term" and that "[t]he land itself is not identified as being important to the scenic landscape value…" (at [79]). However this could not be separated from the "…wider impact considerations of whether it is an inappropriate urban development that impacts the rural character and scenic amenity…" (at [80]). 

On balance, the Court found that the impacts of the Proposed Development would result in an inappropriate urban intrusion into the Barron Delta area (at [80]). 

The relevant provisions of the CairnsPlan 2016 were the relevant strategic intent and strategic outcomes statements in the 'Strategic Framework', the 'Rural Zone Code', the 'Service Station and Car Wash Code', and the 'Flood Inundation Hazards Overlay Code'. 

Most notably:

1. The Court considered section 3.2 of CairnsPlan 2016 which sets out the strategic intent representing the vision for the Cairns region in 2031. "…including that: 'Growth has occurred in an efficient manner and urban development is consolidated within the identified urban area'; 'The expected population growth for the region is accommodated through the redevelopment of existing urban area …; 'Rural land has been protected and is used for rural purposes'; 'The hillslopes, waterways and natural areas and rural surrounds sit alongside the urban environment. They are protected and enjoyed by the community for their character and identity, landscape value and contribution to the local economy" (at [51]). 

2. The Court also considered section 3.4 of CairnsPlan 2016 which contains a number of strategic outcomes for the Natural Areas and Feature Theme, which provide that development projects should "protect, maintain and enhance the region's landscape values" (see section 3.4.4.1(1)); "rural and inter-urban breaks are to be protected from visual intrusion" (see section 3.4.4.1(2)); and, specific to the element of Natural Hazards, "development, other than agricultural activities, is not to occur within the Barron River Delta flood plain" (see section 3.4.6.1(7)). 

3. Section 6.2.19.2(4)(b) of the CairnsPlan 2016, being the "Rural zone code" (Rural Zone Code), supported by Performance Outcome PO3 to PO6 in Table 6.2.19.3.a, provides that the purpose of the zone is to, among other things, "provide for uses and activities that are compatible with - (i) existing and future rural uses and activities; and (ii) the character and environmental features of the zone…"

The Court considered the objectives of protecting and enhancing the visual amenity of the scenic landscape, as emphasised in the strategic provisions of both the CairnsPlan 2009 and the CairnsPlan 2016. The Court found that because the Proposed Development would require the removal of vegetation and the visibility of the use would be increased when compared to the existing use, the development would have a negative impact on the scenic value of the area and is therefore in conflict with the relevant strategic provisions (see [98] to [101]). 

The Court also agreed with the Council that the Proposed Development "…will have an intrusive effect on the rural and scenic values of the land, and the development fails to respond to the land's characteristics and surroundings" in conflict with the Rural Zone Code (at [103]).

The Court concluded that the Proposed Development "…will have an unacceptable impact on the rural character and scenic amenity being central to [CityPlan 2009 and CityPlan 2016] planning instruments"]), and, as such, there is a significant and fundamental conflict (at [104]). 

The Court also had regard to the existing approvals for the Site in accordance with section 314(3)(b) of the SPA. 

The existing approvals for the Site are subject to landscaping conditions requiring the dedication of a strip along the frontage, vegetation buffers and other measures aimed at safeguarding the future use of the Site and retaining its aesthetic quality (see [106] to [109]). 

The Proposed Development would require the removal of existing vegetation along approximately 135 metres of the front of the Site and in the road reserve. The Court concluded that the Proposed Development involved a clear contravention of the conditions of the existing approvals for the Site and thus approval of the Proposed Development would be inconsistent with the conditions of those approvals (at [110]). 

The Court finally had to determine whether there were grounds to approve the Proposed Development despite the substantial conflicts with the planning instruments, as required by section 326(1)(b) of the SPA.  

The Appellant argued, among other things, that there is a clear need for the Proposed Development and the site has specific "locational and spatial characteristics" suited to the Proposed Development (at [112]).

The Council argued that there is no reason the Proposed Development should be located on the Site given the substantial conflicts with the relevant planning instruments, and particularly in light of the expert evidence as to the rural character of the area. 

The Court considered a range of factors with respect to whether there is a need for a service station in the area. Such consideration included the fuel market, the number of vehicles passing through the area, the residential population, existing service stations within the area, and other competitor developments. 

The Court concluded that the demand for a service station is "…likely to be lower than the typical demand for highway service centres" (at [151]). 

Accordingly, the Court decided that there is no demonstrated economic, town planning or community need for the Proposed Development despite the conflicts with the planning instruments. 

The Court concluded that the Proposed Development is in substantial conflict with the relevant planning instruments and there are no sufficient grounds to justify the approval of the Proposed Development. The Court therefore upheld the refusal of the development application and the appeal was dismissed.