The case of Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) by Chiodo Corporation Operations Pty Ltd (Applicant) against the decision of the Planning and Environment Court of Queensland
(Planning and Environment Court) to dismiss an appeal in respect of the refusal by the Douglas Shire Council (Council) of a development application for a development permit for a material change of use to facilitate the development of a luxury resort
(Proposed Development).

The case of Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 44 relates to the decision of the Planning and Environment Court, which was summarised in our July 2024 article. In short, the Planning and Environment Court did not accept the Applicant's arguments that regard should be had to the economic need and other benefits of the Proposed Development and the Proposed Development should be approved in the face of some alleged non-compliances with the relevant assessment benchmarks under section 60(2)(b) of the Planning Act 2016 (Qld) (Planning Act). 

The Planning and Environment Court upheld the Council's decision to refuse the development application and dismissed the appeal because of the unacceptable impact of the Proposed Development on the character and amenity of Port Douglas, the unacceptable scale of the Proposed Development, and the limited relevant matters for approval in the exercise of its planning discretion.

On application to the Court of Appeal for leave to appeal, the Applicant argued that the Planning and Environment Court erred in exercising its planning discretion and that the alleged errors materially affected the decision of the Planning and Environment Court to refuse the Proposed Development.

The Court of Appeal did not agree and found that none of the proposed grounds of appeal had merit and therefore dismissed the application for leave to appeal with costs.

The Applicant sought to rely on four grounds of appeal, if the Court of Appeal granted leave to appeal. The issues raised by the four grounds of appeal concern the following alleged errors (see [7] to [9]):

• First Alleged Error  – The Planning and Environment Court failed to give separate consideration as to whether the Proposed Development complied with Performance Outcome (PO) PO4 of the Local Plan Code of the Douglas Shire Planning Scheme 2018 (version 1) (Planning Scheme).

• Second Alleged Error  – The Planning and Environment Court failed to apply the correct test in construing four provisions of the Planning Scheme.

• Third Alleged Error  – The Planning and Environment Court failed to recognise an inconsistency between a provision of the Tourist Accommodation Zone Code and a provision of the Access, Parking and Servicing Code in the Planning Scheme.

​​​​​The Third Alleged Error concerns carparking and therefore is only a relevant consideration if the Applicant is successful in respect of the First Alleged Error and Second Alleged Error and the Proposed Development is approved (at [10]).

In respect of the First Alleged Error, the Applicant asserted that the Planning and Environment Court conflated the consideration of PO4 with the Overall Outcome in section 7.2.4.3(3)(d) of the Local Plan Code of the Planning Scheme (at [35]).

The Court of Appeal recited the Planning and Environment Court's reasoning which demonstrated that the Planning and Environment Court considered whether the Proposed Development complied with PO4 (see [52] to [57]).

Therefore, the Court of Appeal found no error in respect of the First Alleged Error.

In respect of the Second Alleged Error, the Applicant asserted that the Planning and Environment Court failed to apply the correct test in construing the following four provisions of the Planning Scheme by reason of the Planning and Environment Court's failure to refer to a line of authority in its construction and application of those provisions (see [67], [69] and [70]):

• Section 3.5.5.1(1) and section 3.5.5.1(2) of the Strategic Framework.

• PO1(a) of the Tourist Accommodation Zone Code.

• The Overall Outcome in section 9.4.6.2(2)(a) of the Landscaping Code.

In its written submissions, the Applicant submitted the following test (at [77]) [emphasis in original]:

"This case turns largely on questions related to character and amenity. In respect of character and amenity, it has been recognised by this Court that proposed development will often affect existing amenity. What the Court considered to be unacceptable, is a detrimental effect to an unreasonable extent according to the reasonable expectation of other land holders in the vicinity given the sorts of uses permitted under current town planning controls, answered according to the standards of comfort and enjoyment which are expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity."

The Court of Appeal observed that the Applicant did not refer the Planning and Environment Court to the relevant line of authority or make a submission by reference to that line of authority as to how the four provisions of the Planning Scheme ought to be construed or applied (at [76]).

The Court of Appeal held that the "…notion of reasonableness in a consideration of amenity (and character) is informed more generally by the principle of construction of planning provisions, that they be read in a way that is practical and as intending to achieve balance between outcomes. That is, courts will endeavour to adopt a commonsense approach…" (at [80]).

The Court of Appeal recited the Planning and Environment Court's reasoning and found that it correctly appreciated the principles and canons of statutory interpretation in interpreting the relevant provisions of the Planning Scheme, which involved the adoption of a commonsense approach that implicitly encompassed the asserted test identified by the Applicant (at [84]).

Therefore, the Court of Appeal found no error in respect of the Second Alleged Error.

It was unnecessary for the Court of Appeal to consider the Third Alleged Error given that it found no error in respect of the First Alleged Error and Second Alleged Error.

The Court of Appeal concluded that the Applicant failed to establish the First Alleged Error and Second Alleged Error (at [11]). Thus, the Court of Appeal dismissed the Applicant's application for leave to appeal with costs (see [101] to [103]).