The case of Cheep Stays Pty Ltd v Ipswich City Council [2024] QPEC 34 concerned an appeal by Cheep Stays Pty Ltd (Applicant) to the Planning and Environment Court of Queensland (Court) against the decision of the Ipswich City Council (Council) to refuse a development application (Development Application) for a development permit for the proposed use of land as a camping ground (Proposed Development) in respect of land located at 84 Chubb Street, One Mile (Land).

The Court considered whether the Development Application complied with the Ipswich Planning Scheme 2006 (Planning Scheme) and the draft Ipswich Planning Scheme 2024 (Draft Planning Scheme), and whether there were sufficient relevant matters to warrant approval of the Development Application despite any non-compliance with the relevant assessment benchmarks in the Planning Scheme (see [3] and [11]).

The issues in dispute included those relating to flood risk, amenity, land use, need, and the Draft Planning Scheme (at [5]).

The Court allowed the appeal for the reason that the issues do not amount to reasons for refusal.

The Land is a large parcel of approximately 6.6 hectares and the Proposed Development relates to a use of approximately 15,222 square metres of the Land (Site) (at [2]). The Land is partly within the residential zone and the Site relates to land within the recreation zone (at [14]).

The Proposed Development includes 46 camping sites, 16 of which include power supply, an internal road network, a detached building for a communal area and amenity facility, a separate office building, outdoor communal recreation areas, and a formalised playground (at [2]).

The Land is enclosed by the arc of the Bremer River and is subject to flooding (see [6] and [8]).

The Applicant asserted that the Council's experts unfairly characterised the Proposed Development as a residential use which is not suitable as the Land is subject to flooding and argued that the issues relating to the Proposed Development are more nuanced than a residential house as occupants are mobile and lack connection with the Site (at [20]).

The Court found that the Proposed Development is for a residential use, but appreciated the distinctions from a normal residential housing subdivision (at [20]).

The Court agreed with the Applicant's argument that it will take a considerable period to respond to rainfall and for flooding to occur because of the relatively large catchment area of the Bremer River, such that there is significant warning time to respond to a potential flood (at [21]).

The Development Application seeks to mitigate the flood risk by the following measures (at [22]):

1. The permanent buildings are to be above the level of the defined flood and otherwise flood resistant.

2. The occupants and their possessions are required to be movable at short notice.

3. Evacuation of the Site in a flood event is required to be in accordance with the Flood Emergency Plan (FEMP). The FEMP includes that there is to be a warning sign at the entrance of the Site, which electronically operates to indicate the current status of a flood event, a loudspeaker system, a notice handed to occupants upon entry about the potential problem of flooding, arrangements for the alert, warning, and evacuation stage, and trigger levels for varying stages based on the actual river levels.

Although the Council's flood expert agreed with the proposed trigger levels and accepted the approach set out in the FEMP, he opposed the FEMP because the trigger levels would be exceeded frequently and lower the effectiveness of the FEMP (at [24]).

The Applicant argued that the Proposed Development mitigates the risk to people and property to an acceptable level and is consistent with the relevant assessment benchmarks (at [25]).

The Court accepted that the Proposed Development intensified the residential uses into a floodplain (at [34]). However, the Court accepted the evidence of Applicant's flood expert that the time available for preparation and evacuation is sufficient (at [35]).

The Court found that the risk to property of a failed evacuation is low because people are not permanent residents and can take possessions with them (at [35]). Although there is a risk to life due to a failed evacuation, flood risks are mitigated to an acceptable level by the Proposed Development (at [35]). Therefore, the Court found that flood risk is not a reason to refuse the proposal (at [37]).

Both parties' experts agreed that the Proposed Development can operate without adversely impacting on the noise amenity of nearby sensitive uses (at [38]). The experts recommended conditions of the approval which include restricting the hours of refuse collection, the hours of guest check-in, and acoustic barriers (at [38]).

The Council's visual amenity expert accepted that the visual amenity is addressed by installing a new solid front fence and removing housing pads to promote and blend the visual qualities of the existing streetscape and neighbourhood. The Council's expert asserted that there is no detrimental unacceptable impacts because the Proposed Development is compatible with other uses and works without detracting from the residential character and amenity of the area (at [39]).

The Council argued that although noise or visual amenity are not of themselves reasons for refusal, they should be considered cumulatively (at [41]). The Council's town planning expert opined that the Proposed Development tends to contrast with the amenity and character of the area as it represents high intensity activity (at [42]). The Council also argued that detrimental unacceptable impacts on amenity "…would manifest in adverse impacts upon neighbouring uses…" (at [42]).

The Court found that although some local residents may be discomfited by the camping ground in their suburb, it is difficult to conclude amenity is a reason for refusal because noise amenity and visual amenity do not negatively impact surrounding properties (at [43]).

The Court accepted that the Proposed Development is within the definition of "camping ground" and "…is one of a number of provisionally consistent uses that may be accommodated within the zone of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds…" specified in specific outcome 4.17.5(2)(p) of the Planning Scheme (at [45]).

The Applicant argued that the Proposed Development is appropriate with regard to specific outcome 4.17.5(2)(p) of the Planning Scheme because the Proposed Development appropriately deals with flood risk and the Proposed Development complements the proposed sporting facilities (at [51]).

The Court found that the Proposed Development is consistent with the outcomes sought for the recreation zone (at [71]).

The Court accepted the Council's argument that the Draft Planning Scheme is relevant to the appeal as it is in a relatively advanced stage and strengthens some relevant planning themes involving flood risk and hazards (see [17], [18], and [53]).

The Council argued that the Proposed Development is inconsistent with the land use and planning envisaged by the Draft Planning Scheme (at [53]).

The Applicant considered the Coty principle restated in the case of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 (at [19]). The Court accepted the Applicant's argument that the approval of the Proposed Development would not hinder the Council's ability to implement the Draft Planning Scheme and there is no new planning direction regarding flooding in the Draft Planning Scheme (see [54], [55], and [72]).

The Court recognised that need "…must be a genuine and not a contrived one, but does not necessarily amount to a pressing or critical need or even a widespread desire…" (at [57]).

The Applicant's economic expert analysed the number of sites per capita of population as a benchmark and opined that the Ipswich local government area is significantly less than the Queensland average which supports a need for this type of development (at [58]). The Applicant's economic expert also gave evidence that the camping industry is growing and contributed to a growing need for accommodation facilities (at [58]).

The Council's economic expert noted that the Council has strategies to increase outdoor recreation and physical activity (at [60]). The Council's economic expert gave evidence that the occupancy rates are anticipated to remain relatively low and the Proposed Development could have significant impacts on other facilities (at [61]). As a result, the expert opined that the Proposed Development will more likely underperform (at [61]).

The Court acknowledged that the evidence of the two experts is finely balanced and it is difficult to resolve the differences between them. The Court accepted that need for the type of development was not pressing, critical, nor widespread desire. The Court found that need is slightly, not strongly, in favour of approval and does not represent a reason to refuse approval (at [65]).

The Applicant argued that even if there is non-compliance with an assessment benchmark, the discretionary matters broadly favour approval (at [66]).

1. The Applicant asserted the following discretionary matters (at [67]):

2. The intensification of residential uses in a flood hazard area is acceptably managed by the FEMP.

3. The intent of the Planning Scheme is confused as the part of the Land planned to contain a future sporting facility is not in the recreation zone, but the Site is. The Proposed Development will not frustrate the future use of the Land.

4. The Proposed Development will support tourism activity throughout the local government area.

5. The Proposed Development will improve accessibility to surrounding sporting and recreation facilities.

6. The Site is not needed for specific future sport or recreation trunk infrastructure.

7. The Site is not proposed to be in recreation zone in the Draft Planning Scheme.

8. The Proposed Development is an efficient use of privately-owned flood constrained land.

9. The Proposed Development is complementary and will support the use of surrounding sport and recreation facilities.

The Court found that the balance of discretionary matters favours acceptance of the Proposed Development because the discretionary matters ameliorate the flood risk to a sufficient extent (see [70] and [73]).

The Court allowed the appeal and approved the Development Application (at [74]). The Court will hear the parties as to concluding the appropriate conditions of approval (at [74]).