Approval of a subdivision of productive agricultural or rural land in Mothar Mountain

The Planning and Environment Court delivered a decision in the case of Wason v Gympie Regional Council [2017] QPEC 34, which involved an appeal by Lee Wason against the Gympie Regional Council’s decision to refuse a development application for a development permit for reconfiguring a lot (1 into 2) on land located in Mothar Mountain.

Wason v Gympie Regional Council – What’s the case about?

The land is 48 ha in size and divided into two portions by Cullinane Road and a road reserve. The effect of the reconfiguration would result in two discrete parcels being created on either side of Cullinane Road.

The Council refused the development application on the basis that the proposed development would not preserve good quality agricultural land and the land as productive agricultural land or rural land.

The Court had regard to the evidence put forward by both parties and held that the development application should be approved on the basis that the proposed reconfiguration would not of itself further fragment the following:

• GQAL characteristics of the land – as the land had already been fragmented by the presence of roads which dissected through the land, its capacity was limited to growing viable commercial crops currently and after the reconfiguration (due to the size of the land), and the presence of water available to irrigate the crops before and after the reconfiguration would not change;
• Agricultural and rural characteristics of the land – as the proposed reconfiguration would result in lots consistent in size and dimensions with other lots in the vicinity, any prospective incompatible land use would require an application for a material change of use, and there was no conflict with the provisions of the strategic framework.

Snapshot of the Court’s consideration and findings

Assessment regime

The hearing of the appeal was by way of a hearing anew and it was for Mr Wason to establish that the appeal should be upheld. A decision of the Court must not conflict with a planning scheme unless there were sufficient grounds to justify the decision despite the conflict.

The Council alleged that the development application conflicted with the following parts of its planning scheme:

• the strategic outcomes and rural zone code as they related to the preservation of GQAL land;
• the reconfiguring a lot code as it related to preserving the land as productive agricultural land or rural land, having regard to the size, dimensions and development pattern for the area.

The Court noted that the planning scheme also provided that development would comply with a code in the following circumstances:

• where acceptable outcomes were identified for performance outcomes, development which complied with the acceptable outcomes would comply with the performance outcomes, code overall outcomes and the purpose of the code;
• development which complied with the performance outcomes would comply with the code overall outcomes and the purpose of the code.

Preservation of GQAL Land

The evidence put forward by Mr Wason’s experts was that:

• 68% (33.09 ha) of the land was GQAL with an agricultural land class ranking of A or B, but only if irrigation was available and a water licence was in effect that authorised the irrigation of 13 ha of land, and could be subdivided in the event the proposed reconfiguration of the land occurred; and
• the current use would not result in the alienation of GQAL land and the GQAL land had already been fragmented by the terrain and road running through the land.

The Council’s expert witnesses were generally in support of the findings of their counterparts and went on to say that there was sufficient water available to irrigate all of class A and class B GQAL land. Further, there were no commercially viable cropping businesses in the area and the land was currently being used for animal husbandry which was a use contemplated in the rural zone in which the land was included.

Having regard to the evidence put forward by the parties’ experts, the Court was satisfied that the application did not conflict with the relevant provisions of the strategic framework and met the acceptable outcomes under the rural zone code.

Preservation of productive agricultural and rural land

The evidence put forward by Mr Wason’s experts was that:

• no change of use was occurring and the land remained available for primary production however, the utility of the land for primary production was compromised due to the size and terrain of the land;
• any prospective incompatible land use would require an application for a material change of use and therefore further assessment by the Council; and
• the additional reconfiguration would create a rural lot which was of a size and dimension consistent with the surrounding lots.

Having regard to the evidence put forward, the Court was satisfied that the application met the performance outcomes of the reconfiguring a lot code and strategic framework.

In the event that there was any conflict, there were sufficient grounds to overcome the conflict. That was, the reconfiguration would improve the safety of Cullinane Road as it would create two discrete parcels on either side of the road.