The case of Grundy & Anor v Fraser Coast Regional Council [2024] QPEC 17 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Barry and Maree Grundy (Applicants) against the refusal by the Fraser Coast Regional Council (Council) of a development application for a development permit for a material change of use for an open warehouse for the storage of vehicle parts for the facilitation of a towing and transport business (Proposed Development) on land owned by the Applicants at 674 Torbanlea Pilba Road, Takura (Site).

The primary issues considered by the Court were as follows:

1. whether the proposed use of the land is incompatible with, and unacceptable in, the Rural Area and Rural Zone; and

2. whether the proposed development will have unacceptable effects on visual and acoustic amenity in the surrounding area.

The Court found that the Proposed Development departed from important provisions of the relevant planning scheme, being the Fraser Coast Planning Scheme 2014 (version 11) (Planning Scheme) and that the Council’s decision to refuse the application should be upheld.

The Applicants applied to the Council for a material change of use for a 2,500m² storage yard on part of the Site, to be used for the collection and temporary storage of vehicles and vehicle parts (at [6]). The application was described as a means of "seeking to regularise an existing unlawful use" by the Applicants (at [6]).

It was proposed to locate the Proposed Development adjacent to the western boundary of the Site, approximately 100 metres to the north of Torbanlea Pialba Road (at [10]). The southern side of the storage facility on the Site was proposed to also consist of a 100-metre long row of shipping containers, a two-metre high noise barrier, and an eight-metre wide vegetation buffer (at [10]).

The Council refused the development application for the Proposed Development on 30 April 2021 on the basis that it is "…fundamentally incompatible with the Rural Zone Code" (at [6]).

The Court considered what the Planning Scheme generally intends for the Rural Zone in which the Site is located, and noted that urban development, of the kind proposed, should be focused in the major regional population centres of Maryborough and Hervey Bay (at [16]).

The Court held that the Rural Zone Code contemplates some non-rural uses but only uses which "…are compatible with a rural setting and support rural enterprise and tourism…and do not compromise the use of the land for rural activities" (at [20]).

The Council’s town planning expert gave evidence that the clear intent of the Planning Scheme is "…to discourage inappropriate urban and industrial uses in the rural zone" (at [23]) and opined that the Proposed Development is "an industrial use of an urban character" (at [24]).

The Applicants' town planning expert placed weight on the absence of any explicit prohibition on development, such as that proposed by the Applicants, in the provisions of the Planning Scheme and the private economic benefits which the Applicants would gain from the approval of the Proposed Development.

The Court preferred the evidence of the Council’s town planning expert. The Court held that the Proposed Development "…would not satisfy the performance outcomes of the Rural Zone Code that the use be 'located, designed and operated to minimise conflicts with existing and future rural uses and activities on the surrounding rural lands'" (at [31]).

The Court therefore held that the Proposed Development is incompatible with and unacceptable in the Rural Zone.

The Court noted that the relevant provisions of the Planning Scheme make clear that any permitted industrial use in the Rural Zone "…is to have minimal effect on visual and acoustic amenity and surrounding land uses" (at [37]).

Both parties' visual amenity experts gave evidence indicating that the plans for the Proposed Development were currently uncertain and there was a general lack of information as to many aspects of it.

The Council's visual amenity expert gave evidence that the Proposed Development is "eye-catching and inconsistent with the rural character of the area" (at [40]), citing concerns with the open storage, row of shipping containers, and the movement of vehicles on the Site.

The Applicants' visual amenity expert was only able to give evidence that the Proposed Development "…had 'the potential to satisfy the planning provisions'" (at 41]) related to visual amenity via the imposition of development conditions and that the Proposed Development "…would not add much clutter to an already disrupted vista" (at [43]).

The parties' acoustic amenity experts agreed that the Proposed Development "…could be operated in a way that did not diminish the acoustic amenity of the area to an unacceptable degree" by, for example, imposing time restrictions on the operation of machinery (at [46]). The Council's acoustic amenity expert had concerns about compliance with conditions, which the Court shared.

The Court ultimately concluded that even if the Proposed Development could be conditioned to comply with the Planning Scheme provisions related to acoustic amenity, the other significant non-compliances with the Planning Scheme indicated that the Proposed Development should be refused.

The Court found that the Proposed Development substantially departed from important provisions of the Planning Scheme, and there was nothing to demonstrate that it should otherwise be approved, aside from economic benefits to the Applicants.

The Court upheld the Councils decision to refuse the Proposed Development and the appeal was dismissed.