Gillion Pty Ltd v Scenic Rim Regional Council & Ors

SUPREME COURT OF QUEENSLAND

CITATION: Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 21

PARTIES: GILLION PTY LIMITED ACN 102 972 001 (applicant) v SCENIC RIM REGIONAL COUNCIL (first respondent) CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (second respondent) SCOTT GUERIN KATHRYN GUERIN (third respondents) STUART WRIGHT (fourth respondent) M J RUSSELL (fifth respondent) E D RUSSELL (sixth respondent) S U RANKINE (seventh respondent) COLLEEN BRIGGS (eighth respondent) ELWYN PATON (ninth respondent) HANNELOR BRAUN (tenth respondent) HENRY BRAUN (eleventh respondent) FAYE HAY (twelfth respondent) JOHN HAY (thirteenth respondent) TANIA KING (fourteenth respondent) JUDITH ORTH (fifteenth respondent) HAL ORTH (sixteenth respondent) MARIE McCREERY (seventeenth respondent) DAVID HENDERSON (eighteenth respondent) ASTRID KENNEDY (nineteenth respondent) JENNIFER WILTON (twentieth respondent) AMANDA HAY (twenty-first respondent) WALLACE RANDOLPH (twenty-second respondent) BASIA PUSZKA (twenty-third respondent) RON RUSHBROOKE (twenty-fourth respondent) FRANK COULTER (twenty-fifth respondent) MARY COULTER (twenty-sixth respondent) ALLAN ROSSER (twenty-seventh respondent) JOCELYN ROSSER (twenty-eighth respondent) PAMELA WIDDICOMBE (twenty-ninth respondent) DAWN HOOPER (thirtieth respondent) LANCE BRAY (thirty-first respondent) PENNY AAGAARD (thirty-second respondent) ATHOL McDONALD (thirty-third respondent) SANDRA McDONALD (thirty-fourth respondent) JAMES McDONALD (thirty-fifth respondent) DENISE MERRIN (thirty-sixth respondent) J CROSS (thirty-seventh respondent) PAULINE MAGAN (thirty-eighth respondent) PETER BUTLER (thirty-ninth respondent) VINCENT HEUSTON (fortieth respondent) TERRY EAVES (forty-first respondent) GLENDA EAVES (forty-second respondent) GRETEL BUTLER (forty-third respondent) CATHERINE HEATON (forty-fourth respondent) KEVIN ALEXANDER (forty-fifth respondent) JANET ALEXANDER (forty-sixth respondent) ELAINE LONGTON (forty-seventh respondent) MAL LONGTON (forty-eighth respondent) GERARD ELLEN (not a party to the appeal/forty-ninth respondent) J W GRAY (not a party to the appeal/fiftieth respondent) R J GRAY (not a party to the appeal/fifty-first respondent) JENNIFER PEAT (fifty-second respondent) ALISON RIP (not a party to the appeal/fifty-third respondent) JOHN STOTSCHEK (fifty-fourth respondent) BLAKE TAYLOR (not a party to the appeal/fifty-fifth respondent) MICHELLE TAYLOR (not a party to the appeal/fifty-sixth respondent) TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC (fifty-seventh respondent) EAGLE HEIGHTS VILLAGE ASSOCIATION INC (fifty-eighth respondent)

FILE NO/S: Appeal No 5377 of 2013 / DC No 4506 of 2011

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Sustainable Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 21 February 2014

DELIVERED AT: Brisbane

HEARING DATE: 6 November 2013

JUDGES: Margaret McMurdo P and Fraser and Morrison JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal refused with costs.

CATCHWORDS: ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – CONSIDERATION OF PLANNING SCHEMES – where the applicant applied to the first respondent Council for a development permit for a material change of use of land for the purpose of Commercial Groundwater Extraction – where the proposed use of land conflicted with the local government Planning Scheme – where Council’s refusal to approve the application was upheld by the Planning and Environment Court – whether the primary judge erred in law in holding that a stated precinct intent applied across the Shire instead of merely to the relevant zone – whether that error diminished the importance of a deficiency in the planning scheme – whether that error influenced the primary judge’s decision that the proposed development’s conflict with the planning scheme was significant / ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – FAILURE TO CONSIDER RELEVANT MATTERS – where there was a deficiency in the relevant Planning Scheme – whether the primary judge erred in not considering that deficiency when considering the exclusion of the proposed development from the Consistent Use Development Table – where the Planning Scheme contained general provisions applicable to any Commercial Groundwater Extraction development and the proposed development did not contain every element of the general Commercial Groundwater Extraction definition – whether the primary judge erred in failing to consider that definition – where the primary judge made a detailed assessment of the development proposal against specific provisions of the Planning Scheme – whether the primary judge erred in failing to consider that assessment – where it is for the court to determine the importance of a deliberate planning policy underlying the exclusion of Commercial Groundwater Extraction from the Consistent Use Development Table – whether the judge erred in failing to determine the degree of importance / Sustainable Planning Act 2009 (Qld), s 326(1) / CPT Manager Ltd v Central Highlands Regional Council & Ors (2010) 174 LGERA 412, [2010] QCA 183, cited / Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302, [2012] QCA 370, cited / Weightman v Gold Coast City Council [2003] 2 Qd R 441, [2002] QCA 234, cited

COUNSEL: M Williamson for the applicant / G Gibson QC, with P Djohan, for the first respondent / O S Williamson (sol) for the second respondent / R E Laidely for the fifty-second, fifty-fourth, fifty-seventh and fifty-eighth respondents / No appearance for the third to fifty-first, fifty-third, fifty-fifth and fifty-sixth respondents

SOLICITORS: HWL Ebsworth Lawyers for the applicant / Corrs Chambers Westgarth for the first respondent / Hopgood Ganim for the second respondent / McCarthy Durie Lawyers for the fifty-second, fifty-fourth, fifty-seventh and fifty-eighth respondents / No appearance for the third to fifty-first, fifty-third, fifty-fifth and fifty-sixth respondents

1. MARGARET McMURDO P: This application for leave to appeal under s 499 Sustainable Planning Act 2009 (Qld) must be refused for the reasons given by Fraser JA. The applicant has not demonstrated any error of law¹ on the part of the primary judge which influenced his conclusion that there was a significant conflict between the applicant’s proposed use of its land for commercial ground water extraction and the Beaudesert Shire Planning Scheme 2007. It follows that it is unnecessary to consider the notice of contention.

2. I agree with Fraser JA that the appropriate order is that the applicant’s application for leave to appeal be refused with costs.

3. FRASER JA: The applicant applied to the first respondent (“the Council”) for a development permit for a material change of use of land at Mt Tamborine (“the Land”) for “Commercial Groundwater Extraction”. That term is defined in the Beaudesert Shire Planning Scheme 2007 (“the Planning Scheme”) as meaning “the extraction of ground water resources and the removal of that resource from a property for the purpose of sale. The term includes the treatment and storage of extracted groundwater resources.” The application contemplated a maximum weekly extraction of groundwater of 564,000 litres.

4. When the Council refused to approve the application the applicant appealed to the Planning and Environment Court. As a result of the applicant’s acknowledgment in that court that the proposed use of the Land conflicted with the Planning Scheme the question ultimately was whether “sufficient planning grounds” existed to justify approval of the application despite the conflict: Sustainable Planning Act 2009, s 326(1), Weightman v Gold Coast City Council.² The primary judge found that the grounds upon which the applicant relied were insufficient to overcome what the primary judge considered to be a significant conflict between the proposed use of the Land and the Planning Scheme. The appeal to the Planning and Environment Court was therefore dismissed.³

5. The applicant seeks leave to appeal from that decision. Such an appeal is confined to error of law or want of jurisdiction.⁴ The applicant contends that the primary judge made four errors of law.

The Planning Scheme

6. I will set out and discuss each of those contentions after first referring to some basic provisions of the Planning Scheme.

7. The Planning Scheme divides the Planning Scheme area into six zones. The Land is within the Tamborine Mountain Zone, which is subdivided into 17 precincts. The Land falls within the Village Residential Precinct. The Planning Scheme includes Assessment Tables, Consistent Development Tables, and Codes for each Zone. The Planning Scheme provides that “[a] Consistent Development is potentially consistent with the applicable Zone Code and the relevant Overlay Code”.⁵ Section 1.2.14 provides:

“(1)An Inconsistent Development is a development which is not specified as a Consistent Development in a Consistent Development Table for the Zone (Inconsistent Development).

(2) An Inconsistent Development is inconsistent with the applicable Zone Code and the relevant Overlay Code.”

8. The Consistent Development Table for the Tamborine Mountain Zone (Table 3.7.7) did not specify Commercial Groundwater Extraction as a Consistent Development, so that s 1.2.14 required it to be regarded as being inconsistent with the Tamborine Mountain Zone Code and Overlay Code. In the assessment table for material change of use in the Tamborine Mountain Zone (Table 3.7.4), Commercial Groundwater Extraction is in the “impact-assessable” assessment category and the assessment criteria refer to the Tamborine Mountain Zone Code (section 3.7.8) and the Commercial Groundwater Extraction Code (section 5.2.11). The Tamborine Mountain Zone Code provides, in s 3.7.8, that development complies with that code if, in the case of Impact Assessable Development, “there is compliance with the Specific Outcomes of the Tamborine Mountain Zone Code and the purpose of the Tamborine Mountain Zone Code being the Overall Outcomes for the Tamborine Mountain Zone”.⁶ Commercial Groundwater Extraction does not comply with the specific outcomes of the Tamborine Mountain Zone Code because specific outcome S01 in the table of specific outcomes and prescribed solutions for the Tamborine Mountain Zone (Table 3.7.11) describes consistent development as “Development is limited to development which is ‘Consistent Development’ as identified in Table 3.7.7 Consistent Development in the Tamborine Mountain Zone”, and for that development the “prescribed solution” is “[n]o solution is prescribed”.

9. Accordingly, and as was conceded in the Planning and Environment Court and again in this application, a decision to approve the applicant’s development application would conflict with the Planning Scheme.

Ground (a): The primary judge misconstrued the planning scheme in that the statement of Precinct Intent set out in Overall Outcome OO46 for the Tamborine Mountain Zone Code applied across the Shire

10. Overall Outcome OO46 appears under the heading “Precinct Intent” in the Table of Overall Outcomes for the Tamborine Mountain Zone, which is referred to in s 3.7.8. Under that heading “Precinct Intent” appears a statement relating to each of the 17 precincts within the Tamborine Mountain Zone. Overall Outcome OO46 is “Development within the Village Residential Precinct i (sic) is typically urban residential in character with a moderate to high level of amenity on lots not served by a reticulated water and sewerage system. The Precinct, in close proximity to the Business Precinct, provides the principal location for additional urban residential accommodation.”

11. The applicant argued that the primary judge was mistaken in law in holding, in paragraph 171 of the following passage of the primary judge’s reasons, that the precinct intent in OO46 “applies across the Shire”:

“[170]The character of the surrounding area in Power Parade, as agreed to by all the town planners, is set out above. Mr Brown conceded (reasonably in my view) that the extraction of groundwater and its storage onsite were aspects of the use not out of character with the surrounding area. When a use is viewed as a whole, and in particular the eight heavy vehicle movements a day, transporting 28,400 litres on each journey to the factory at Staplyton (sic), his opinion was that this directly conflicted with OO46. In the JER Mr Brown misdescribed the terminology of OO46, and conceded that he had proceeded on the basis at that time, that the Overall Outcome for the Village Residential Precinct designated an area intended to have a high level of amenity, whereas it is intended to have a ‘moderate to high level of amenity’. To be fair to him, he made this correction in his evidence-in-chief, but he conceded in cross-examination that he had proceeded on the basis of an incorrect understanding of the wording of OO46. It is clear that all the planners regarded OO46 as an important part of the Planning Scheme for the purposes of assessing the proposal. Mr Lyons’ opinion was that it was drafted in such a way that it did not describe in any meaningful way the site and surrounding area.

[171]It is also clear that the statement of Precinct Intent set out in OO46 does not describe the character of the surrounding area as agreed by the planners. This is not in itself surprising as the Precinct Intent applies across the Shire, and it is rare to ever find an area which perfectly fits the description ascribed to it by the Planning Scheme: Stappen Pty Ltd v Brisbane City Council & Ors [2005] Q.P.E.L.R. 466 at 473 and at para [32]. That is why Planning Schemes are to be construed broadly and not pedantically and with a sensible and practical approach.

[172]Mr Brown agreed that the area surrounding the site described in the joint experts report is not typically urban, and he agreed that the Intent for the Precinct as ‘a principal location for additional urban residential accommodation’ could not be achieved because the Reconfiguration of Lot Code discourages further subdivision because of the lack of water supply and sewerage.

[173]The same difficulty arises when the one drills down further in the Planning Scheme to the Specific Assessment Criteria for the Precinct at 3-389. Mr Brown fairly conceded that in the surrounding area in this Precinct in the Tamborine Mountain Zone, Specific Outcome SO1 could not be achieved, and could never be achieved without changes to settlement patterns and, inferentially the Planning Scheme, particularly the Reconfiguration of Lot Code. Mr Brown conceded that OO46 would have to be ‘read down’ in order to achieve what it intends with the surrounding area in this Precinct. Neither Mr Clegg nor Mr Forsythe were prepared to concede the difficulties with OO46 accepted by Mr Brown.”

12. The applicant argued that the error in paragraph 171 that OO46 applied across the Shire diminished the importance of the “significant deficiency in the Planning Scheme”⁷ and that this led to the primary judge unreasonably characterising the existing development in the Village Residential Precinct as an area which did not “perfectly” fit OO46 when there was no fit at all. The applicant then argued that this error influenced the primary judge’s decision that the grounds upon which the applicant relied were not sufficient to overcome what the primary judge regarded as a significant conflict with the Planning Scheme. This influence was said to be shown by evidence of the Council’s town planning witness (Brown) that the inconsistent development provisions in the Planning Scheme were drafted against the background of the statement of precinct intent, so that the deficiency identified in OO46 undermined the planning significance which could be attributed to the identification of Commercial Groundwater Extraction not being consistent development.

13. This argument placed too much weight upon the primary judge’s use of the word “Shire” rather than “Zone” in paragraph 171 of the reasons. The substantial point made in the second sentence of that paragraph was that the statement of precinct intent in OO46 did not apply only to the area immediately surrounding the Land. Reference to the Planning Scheme maps shows that the Village Residential Precinct was not confined to that area but extended to six other separate areas in the Tamborine Mountain Zone. The reference to “Shire” in paragraph 171 does not reflect a mistaken view that the Village Residential Precinct extended beyond the Tamborine Mountain Zone; the primary judge noted, for example, that the subject Land was “in the Village Residential Precinct in the Tamborine Mountain Zone”.⁸ Furthermore, the primary judge’s reasons for rejecting the applicant’s argument that the conflict was merely “mechanical or technical”⁹ make it plain that his Honour appreciated that the relevant Planning Scheme provisions related to the Tamborine Mountain Zone rather than any other Zone within the Shire:

“[188]… not only is [Commercial Groundwater Extraction] a defined use, a Commercial Groundwater Extraction Code is provided and the use is specifically provided for in the Assessment Table for a Material Change of Use in the Tamborine Mountain Zone. It follows that its exclusion from the Consistent Table of Uses in the Tamborine Mountain Zone and indeed in all other Zones in the Shire was as a result of a deliberate policy decision.

[189]… when it is read as a whole, and in a practical and sensible way, it is clear from its Planning Scheme that Council did not want a use such as this anywhere in the Shire but, in anticipation that such a use may be applied for, it set a high bar in by making the use an inconsistent use in all Zones and relevantly, in the Tamborine Mountain Zone.

[190]Its designation therefore as an inconsistent use in the Tamborine Mountain Zone is significant in this case. … to concentrate too much on assessing the proposal against the Overall Outcomes for the Zone and the Specific Intent for the Precinct, to determine the degree of conflict would be an error, as (a) it would offend the principles applicable to the construing of Planning Schemes and (b) would, contrary to the proper construction of s 1.1.12 of the Planning Scheme together with SOl in Table 3.7.11, have the unintended tendency of converting ‘Inconsistent Development’ into ‘Consistent Development’ subject to Impact Assessment. … [the applicant] refers to a lack of ‘higher order’ provisions in support of its argument that Council did not properly provide for this use in its Scheme. … In particular, Gillion refers to 2.2.11 (4) and makes the point that this is the only direct provision dealing with groundwater on Mount Tamborine in the Strategic Framework section of the Planning Scheme, and it does not refer to the use and inferentially does not exclude the use in the Tamborine Mountain Zone. This can be accepted as the whole of the Planning Scheme reveals. It is not a consistent use in any Zone but it is only in the Tamborine Mountain Zone that a level of assessment is provided specifically for the use whereas in other Zones it would come within the ‘catchall’ ‘Other Defined Uses’ and still be Impact Assessable.”

14. In the context of the primary judge’s repeated references to the Village Residential Precinct being in the Tamborine Mountain Zone and the focus upon that Zone in the essential passages in the primary judge’s reasons, it is difficult to attribute any particular significance to the primary judge’s reference to “Shire” rather than “Zone” in paragraph 171 of his Honour’s reasons. The only apparent relevance of the sentence in that paragraph which the applicant challenges is as support for the primary judge’s conclusion that “Planning Schemes are to be construed broadly and not pedantically and with a sensible and practicable approach.” That principle of construction of Planning Schemes is not in issue in this application.

15. The primary judge did have regard to the “deficiency” in the statement of precinct intent in OO46. Having recorded in paragraph 171 that the statement in OO46 did not describe the character of the surrounding area, the primary judge elaborated upon that in paragraphs 172 and 173 and formulated the “reasonable expectations of the residents informed by the Planning Scheme” “[w]hen one has regard to the deficiencies identified above in the Zone Precinct Planning Scheme Provisions and the evidence …”.¹⁰ After describing those “reasonable expectations” and analysing the evidence, the primary judge found that there was “unacceptable impact on amenity and character to the residents of Power Parade [the road adjacent to the land] … who are most directly affected by the truck movements in particular. It is unacceptable impact on amenity in the intangible sense but real impact on character. Having regard to my other findings, I would categorise this conflict with the Planning Scheme as minor if considered in isolation …”. Thereafter the primary judge rejected the applicant’s argument that the conflict was merely “mechanical or technical” in the passage quoted in earlier in these reasons.

16. It is apparent that the primary judge’s analysis of the deficiency in the statement of precinct intent set out in OO46 did not contribute to any error in the primary judge’s conclusion that the exclusion of Commercial Groundwater Extraction from the consistent table of uses in the Tamborine Mountain Zone was significant because it was the result of a deliberate policy decision. That conclusion was available upon the face of the Planning Scheme and the applicant’s own planner (Lyons) agreed in cross-examination that the specification of consistent development in the relevant Zone could be regarded as deliberate rather than a “mechanical expression”.¹¹ The finding was therefore open on the evidence and unaffected by the error of law for which the applicant contended.

Ground (b)(i): The primary judge determined the nature and extent of conflict with the First Respondent’s planning scheme as being “significant” in circumstances where … he failed to take into account a relevant consideration, namely that the deliberate planning policy decision referred to in paragraph [188] of the reasons was unsoundly based because of the findings of fact made in paragraphs [171] to [174] of the reasons

17. As the applicant acknowledged in submissions, the error asserted in this ground overlapped with the error asserted in the first ground of appeal. Under this ground, the applicant identified the relevant consideration not taken into account by the primary judge as being that the deficiency in the Planning Scheme materially undermined the degree of planning significance attributable to the identification of the proposed development as not being consistent development. This was submitted to impact upon the findings that the exclusion of the development from the Consistent Use Development Table was a deliberate policy decision and that the conflict was significant. For reasons already given, my conclusion is that the deficiency in the Planning Scheme was taken into account by the primary judge. There is no reason to think that the primary judge overlooked his findings that “the statement of Precinct Intent set out in OO46 does not describe the character of the surrounding area” and “the Intent for the Precinct as ‘a principal location for additional urban residential accommodation’ could not be achieved because the Reconfiguration of Lot Code discourages further subdivision because of the lack of water supply and sewerage”¹² when his Honour categorised the conflict in paragraphs 188 – 190 of his reasons.

18. In the absence of the asserted legal errors in the primary judge’s conclusion, his assessment of the degree of conflict between the proposed development and the Planning Scheme involved only questions of fact which are not amenable to challenge in this Court.¹³

Grounds 1(b)(ii) and (iii): the learned primary judge erred in law in that … he determined the nature and extent of conflict with the First Respondent’s planning scheme as being “significant” in circumstances where:

*(ii)*he failed to take into account a relevant consideration, namely that s.1.1.12 and Specific Outcome SO1 in Table 3.7.11, where general provisions of the planning scheme which worked conflict with the proposed development irrespective of:

*(A)*its scale, design and impacts;

*(B)*the fact that the proposed use did not include each of the elements contemplated in the definition for “Commercial Groundwater Extraction”; and

(C) the fact that an assessment of the proposal on the merits against specific provisions of the Respondent's planning scheme worked no more than a minor conflict as found in paragraph [184] of the reasons; and

*(iii)he erred in principle, namely failing to define the nature and extent of the conflict from reading the First Respondent's planning scheme as a whole, which in higher order strategic planning provisions of the planning scheme specific to the Tamborine Mountain Zone were inconsistent with the so‑*called deliberate planning decision held to exist in paragraph [188] of the reasons;

19. The applicant argued that the primary judge did not take into account that s 1.2.14(2) and Specific Outcome SO1 of the Tamborine Mountain Zone Code were general provisions in the Planning Scheme applicable to any development properly characterised as “Commercial Groundwater Extraction” irrespective of its size, location, intensity and scale and that the proposed use did not include each of the elements contemplated by the definition of “Commercial Groundwater Extraction”. The argument focused upon the proposition that the proposed use did not include the treatment of Commercial Groundwater, an element falling within the definition. However, the generality of these “default provisions” does not of itself indicate that the conflict found by the primary judge was not significant.¹⁴ It was unnecessary for the primary judge to make the self evident statement that these provisions were general provisions which applied irrespective of the size, location, intensity and scale of the proposed use and whether it included all of the elements of such a use within the meaning of the definition. The fact that not all elements of the definition were in play is of no significance in the circumstances in which the proposed use nevertheless fell within the definition.

20. The applicant next argued that the primary judge erred in law by not taking into account the outcome of his Honour’s detailed assessment of the applicant's proposal against specific provisions of the Planning Scheme such as the Overall Outcomes for the Zone. This submission also cannot be accepted. The primary judge analysed the Planning Scheme provisions in some detail,¹⁵ resolved the factual controversies, identified deficiencies in the Planning Scheme provisions, and made findings about the impact of the proposed use on amenity.¹⁶ Immediately after that analysis, the primary judge explained his conclusion that the exclusion of Commercial Groundwater Extraction from the Consistent Table of Uses in the Tamborine Mountain Zone was a result of a deliberate policy decision and his further conclusion that the designation of that use as an inconsistent use in that zone was significant. The applicant’s argument that the primary judge did not take into account his detailed assessment of the proposal against specific provisions of the Planning Scheme, such as the Overall Outcomes for this zone, is irreconcilable with the primary judge’s statement that it would be an error “to concentrate too much on assessing the proposal against the Overall Outcomes for the Zone and the Specific Intent for the Precinct … to determine the degree of conflict.”¹⁷ That reveals that the primary judge did take into account his assessment of the proposal against the Overall Outcomes for the Tamborine Mountain Zone and other provisions of the Planning Scheme. So much is consistent also with the primary judge’s earlier statement of the relevant provisions for construing Planning Schemes generally as including that they were to be construed “as a whole” and taking “a ‘purposive’ approach …”.

“(4)The water quality of the Tamborine Mountain Zone is protected and groundwater resources are primarily used for agricultural purposes …”.

22. The primary judge accepted in paragraph 190 of his Honour’s reasons, quoted earlier, that s 2.2.11(4) did not refer to the proposed use and inferentially did not exclude it in the Tamborine Mountain Zone, but that provision is merely one of the relevant provisions of the Planning Scheme which the primary judge was required to take into account.

Conclusion

23. For those reasons, which substantially accept submissions made on behalf of the Council, the applicant has not established that the primary judge made any error of law which influenced his decision. It is therefore unnecessary to consider the notice of contention sought to be filed on behalf of the 52nd, 54th, 57th and 58th respondents, which contended that the decision of the primary judge should be affirmed on grounds in addition to those relied upon by his Honour. At the hearing of the application, the Court granted leave to those respondents to file the notice of contention if leave to appeal were granted to the applicant. Since I would refuse leave to appeal, I would also refuse those respondents’ application for leave to file the notice of contention. I note that at the hearing of the application the court made an order striking out those respondents’ cross-appeal.

24. The appropriate order is that the applicant’s application for leave to appeal be refused with costs.

25. MORRISON JA: I have read the reasons of Fraser JA and agree with his Honour and the order he proposes.

Footnotes

1. Sustainable Planning Act, s 498(1)(a). ↩

2. [2003] 2 Qd R 441 at [36]. ↩

3. Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15. ↩

4. Sustainable Planning Act 2009, s 498. ↩

5. Planning Scheme, s 1.2.13(2). ↩

6. Planning Scheme, s 3.7.8(c). ↩

7. Applicant’s amended outline of argument paragraph 27. ↩

8. [2013] QPEC 15 at [25] and [143]. ↩

9. [2013] QPEC 15 at [187]. ↩

10. [2013] QPEC 15 at [176]. ↩

11. Transcript 30 January 2013 at 10-13 to 10-14. ↩

12. [2013] QPEC 15 at [171], [172]; see also [173]. ↩

13. CPT Manager Ltd v Central Highlands Regional Council & Ors [2010] QCA 183 at [28] – [30]. ↩