The case of Middle Pond Pty Ltd v Whitsunday Regional Council & Ors [2024] QPEC 45 concerned an appeal to the Planning and Environment Court of Queensland (Court) brought by Middle Pond Pty Ltd (Applicant) against the decision of the Whitsunday Regional Council (Council) to refuse part of the Applicant's development application for a development permit for a material change of use to facilitate the construction of a self-storage facility (Proposed Development) at 82 Shute Harbour Road, Cannonvale (Subject Land). The appeal also related to particular development conditions imposed by the Council on that part of the development application which was approved.

The Court had to decide whether the Proposed Development should be approved, approved in part, or refused, and in doing so considered the following key issues (see [10] and [20]):

1. Is the Proposed Development consistent with the planning goals sought to be achieved in the Low-medium Density Residential Zone (LMDR Zone)?

2. Does the Proposed Development comply with the Industry Activities Code (IA Code)?

3. Are there relevant matters relied on by the parties under section 45(5)(b) of the Planning Act 2016 (Qld) (Planning Act)?

4. Is there a need for the Proposed Development?

5. Should the Court exercise its discretion to approve the Proposed Development?

The Court found that the Applicant had failed to demonstrate that the Proposed Development should be approved. The part of the appeal relating to the Proposed Development was dismissed.

The Applicant applied to the Council for a development permit for reconfiguring a lot (1 lot into 2 lots, and 1 lot into 6 lots) on the Subject Land, as well as for the Proposed Development. The Council granted the development permit for reconfiguring a lot subject to conditions, however, refused the part of the development application relating to the Proposed Development (at [7]).

The Applicant appealed against certain development conditions, as well as against the decision to refuse the Proposed Development. At the time the case was heard, the Applicant only sought determination of the part of the appeal relating to the Proposed Development (at [10]). 

The Subject Land is located within the LMDR Zone under version 3.7 of the Whitsunday Regional Council Planning Scheme 2017 (Planning Scheme), being the version in force at the time the Applicant's development application was properly made.

The Proposed Development fell within the use definition of "Warehouse" under the Planning Scheme, forming part of the defined activity group "Industry activities". Such an activity did not fall within the accepted defined activity groups for the LMDR Zone.

The Council argued that the Proposed Development "…involves material non-compliance with, and gains no relevant support from, assessment benchmarks in the Low-medium density residential zone code" (LMDR Zone Code) (at [69]) and that the built form of the Proposed Development "…is not 'compatible with the intended scale and character of the streetscape and surrounding area'" (at [134]).

The Applicant conceded the non-compliances with the relevant assessment benchmarks in the LMDR Zone Code but argued that the Proposed Development was nonetheless consistent with the underlying planning goals and therefore the non-compliances are not significant and should be afforded little weight (at [74]).

The Applicant further argued that the design of the Proposed Development is appropriate, the commercial nature of the Proposed Development is an appropriate type of use for the LMDR Zone, the Proposed Development would function in the manner intended for non-residential uses, and the Proposed Development performed favourably in terms of its location and accessibility (see [76] to [79]).

Whilst the Court was satisfied that the Proposed Development complies with certain height requirements in the LMDR Zone Code, is commercial in nature, and is consistent with some outcomes sought in the LMDR Zone Code, the Court was not persuaded that the Proposed Development is appropriately located (see [192] and [193]).

The Court noted that the LMDR Zone Code contains a number of qualifications in respect of non-residential uses in the LMDR Zone, for example relating to scale, function, form, and accessibility, and that the qualifications differ from zone to zone (see [63] and [65]). The Court found it apparent from these provisions that the protection of residential character and amenity is an important planning policy for land within the LMDR Zone (see [67] and [201]).

The Court ultimately found that:

1.  the Planning Scheme reflected sound town planning strategy with respect to the LMDR Zone;

2. the commercial character and other positive attributes of the Proposed Development did not alleviate the significant conflicts with the LMDR Zone Code in respect of inappropriate scale, visual amenity, and character impacts; and

3.  the non-compliances with the assessment benchmarks in the LMDR Zone Code provide a "…compelling reason to refuse the [Proposed Development]" (at [201]).

The Proposed Development was also assessed against the IA Code, as it falls within the "Industry activities" defined activity group.

The Council submitted that the Proposed Development did not comply with several assessment benchmarks in the IA Code. The alleged non-compliances related to (at [203]):

1. amenity, scale, and intensity being compatible with location and setting;

2. buildings and structures for the activity being appropriate and positively contributing to the visual character and streetscape of the area; and

3.  the Proposed Development generally being designed to avoid or mitigate potential adverse impacts on adjoining or nearby sensitive land uses.

The Applicant's position was that the non-compliances with the assessment benchmarks should be afforded little weight as, in its submission, the underlying planning goals are achieved (at [205]).

The Court accepted evidence from the Council's town planning expert that the scale and intensity of the Proposed Development is "well beyond" what would be compatible with its location, the Proposed Development will not contribute positively to the visual quality of the zone and locality, and the Proposed Development represents a significant intrusion into a predominantly residential area (at [206]).

The Court was not persuaded that the Proposed Development complies with the assessment benchmarks in the IA Code. The Court concluded that the non-compliance with the IA Code, in addition to the non-compliances with the LMDR Zone Code, were matters telling against approval of the Proposed Development (at [209]).

The Applicant relied on several relevant matters under section 45(5)(b) of the Planning Act.

The Applicant alleged that there is a strong town planning, community, and economic need for the Proposed Development, there is insufficient appropriate land in the Low Impact Industry Zone within the catchment to accommodate the Proposed Development, self-storage is not a typical industrial use but is more akin to a commercial use, the loss of the Subject Land will have no material impact on the Planning Scheme's ability to accommodate residential development, and the design of the Proposed Development is compatible with the character and amenity of the surrounding area (at [210]).

The Council opposed each of these relevant matters (at [211]).

The Court accepted that the matters raised by the Applicant were relevant matters for the purposes of section 45(5)(b) of the Planning Act, however was not persuaded that they represented compelling reasons to approve the Proposed Development (see [212] to [214]).

The Applicant noted three recent decisions by the Council approving similar self-storage development proposals within the locality of the Proposed Development (at [217]). The Applicant submitted that, despite these approvals, there is still a need for the Proposed Development (at [218]).

The Council contended that there is no need for the Proposed Development (at [219]).

The Court considered the parties' need experts' assessments of the demand for the Proposed Development and found that there was a latent unsatisfied demand which is "…more than adequately addressed by the three recent self-storage facility approvals" (at [231]).

Whilst the Court was satisfied that the well-being of the community would be enhanced by the benefits offered by the Proposed Development, the Court was not persuaded that there is a demand for the Proposed Development which would not be adequately met by the three recent approvals (see [261] to [262]).

The Court acknowledged that the Proposed Development is of a commercial nature, performed well when assessed against the LMDR Zone Code in terms of accessibility, and "…would offer a superior standard of facility and service to that provided by the existing and approved developments" (see [265] to [266]).

The Court weighed these benefits against the significant non-compliances with the relevant assessment benchmarks in the Planning Scheme relating to inappropriate scale and impacts on the visual amenity and character of the area (at [269]).

The Court was not persuaded that it should exercise its discretion to approve the Proposed Development, in full or in part, and stated that the non-compliances with the LMDR Zone Code were serious and compelling reasons against approval (at [270]).

The Court found that the Applicant had not discharged the onus of demonstrating that the Council's decision to refuse the Proposed Development should be replaced with an approval (at [271]).

The part of the appeal relating to the Proposed Development was dismissed and the hearing of the balance of the appeal was adjourned.

The Court's decision in this case highlights the following important considerations for those seeking approval of a development application:

• Compliance with the assessment benchmarks relevant to a particular development is likely to be afforded significant weight by the Court, and the existence of relevant matters in favour of approving development will not always be sufficient to outweigh non-compliance with the relevant assessment benchmarks.

• An assessment of the need for a particular development should have regard to other existing development approvals for the same type of development, even if those development approvals have not been carried out.