Brades Property Agnes Water Pty Ltd v Gladstone Regional Council [2025] QPEC 24

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Brades Property Agnes Water Pty Ltd v Gladstone Regional Council [2025] QPEC 24 PARTIES: BRADES PROPERTY AGNES WATER PTY LTD (ACN 655 708 802) (Appellant) v GLADSTONE REGIONAL COUNCIL (Respondent) FILE NO: 3872/2023 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 24 October 2025 DELIVERED AT: Brisbane HEARING DATES: 14-17 October 2025 JUDGE: Everson DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of applications for reconfiguring a lot and a variation request to create a residential housing precinct. PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with planning scheme – whether there is an overwhelming or overriding community and economic need for the proposed development – non-compliance with the biodiversity code – weight to be given to an existing approval over the land LEGISLATION: Planning Act 2016 (Qld) Planning Regulation 2017 (Qld) Planning and Environment Court Act 2016 (Qld). CASES: Abeleda & Anor v Brisbane City Council & Anor [2020] QR 44 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 -- 1 of 14 -- 2 Fabcot Pty Ltd v Cairns Regional Council & Ors [2021] QPELR 40 Landarch Properties Pty Ltd v Logan City Council & Anor [2024] QPEC 47 Palmer v Council of the City of Gold Coast [2023] QPEC 47 Yu Feng Pty Ltd v Brisbane City Council (2007) 156 LGERA 399 Zappala Family Co Pty Ltd v Brisbane City (2014) 201 LGERA 82 COUNSEL: E J Morzone KC and W D J MacIntosh for the appellant M Rodgers for the respondent SOLICITORS: Gantt Legal for the appellant Holding Redlich for the respondent Introduction [1] This is an appeal against the decision of the respondent to refuse a development application which was originally made for a preliminary approval (including a variation request) for a material change of use for a number of components and for reconfiguring a lot at Lot 3 Tavern Road, Agnes Water (“the site”). As a consequence of an order made on 8 November 2024, the development application has been changed and reduced in scope. The proposed development comprises: (a) a preliminary approval for a material change of use to establish a low-density residential precinct over the site; (b) a variation request to vary the effect of the Gladstone Regional Council Planning Scheme 2015 (Version 2) (“the planning scheme”); and (c) a development permit for reconfiguring the site from one lot into 158 residential lots; (“the proposed development”).1 [2] The site has the benefit of an existing development approval for a Retirement Facility (Manufactured Housing Estate) which was approved by the respondent on 7 May 2019 (“the existing approval”).2 Pursuant to the existing approval, a total of 1 Exhibit 7, para 15. 2 Exhibit 5(a), p 5. -- 2 of 14 -- 2 360 dwellings were proposed to be created on small sites.3 It contemplates the complete clearing of the site,4 and extensive earthworks.5 [3] It is the tension between the development rights conferred by the existing approval and the non-compliance of the proposed development with assessment benchmarks in the planning scheme which lies at the heart of this appeal. The site and the surrounding area [4] The site is undeveloped, irregularly shaped and has a total area of 18.26 ha.6 It has a fall from the highest point in the middle of the site to the lowest point in the south- western corner of approximately 22 m.7 It is well vegetated with mature trees.8 It is located to the south of a hub of local community uses.9 Adjoining land to the west is being developed for 201 dwellings in a manufactured housing estate.10 Adjoining land immediately to the east is also approved for 190 such dwellings.11 Adjoining land to the northeast is part of a residential housing estate. To the south is a rural residential area.12 The balance of the surrounding land is undeveloped.13 It is broadly identified within the strategic framework of the planning scheme as within the new neighbourhoods, urban centre and strategic environmental areas and corridors.14 It is shown as suitable for urban development pursuant to the Agnes Water and Seventeen Seventy Structure Plan.15 [5] The site is zoned emerging community pursuant to the planning scheme. It is subject to the bushfire hazards overlay, the steep land overlay and the biodiversity overlay.16 The site appears within the Our Environment and Heritage Strategic Framework map 3 Exhibit 2, p 15. 4 Exhibit 10, para 13. 5 Exhibit 5(a), pp 14–23. 6 Exhibit 7, para 20. 7 Ibid, para 24. 8 Ibid, para 25. 9 Ibid, para 32. 10 Ibid, para 34. 11 Ibid, para 36. 12 Ibid, para 35. 13 Ibid, p 7, fig 1. 14 Ibid, para 56 and p 15, fig 3. 15 Ibid, paras 64–65 and p 18, fig 5. 16 Ibid, para 75. -- 3 of 14 -- 3 where it is identified as an area of high ecological significance and within a strategic environmental area and corridor.17 The proposed development [6] The proposed development involves a preliminary approval for a material change of use to establish a low-density residential precinct over the site coupled with a variation request and a reconfiguration of the site to create 158 residential lots. The variation seeks “to establish a new residential enclave providing a mix of residential types and styles conveniently located on serviced land”, with “road and pedestrian linkages to the broader community.”18 This is envisaged as “a predominantly low density area, characterised by low-rise housing typologies including dwelling houses and dual occupancy”.19 The planning scheme is sought to be varied by assessment against the proposed Lot 3 Tavern Road Development Code. [7] The proposed reconfiguration contemplates residential lots predominately between 600 m 2 and 800 m2 in five stages.20 [8] As was the case for the existing approval, it is proposed that all vegetation be removed from the site and that extensive earthworks be undertaken.21 The statutory assessment framework [9] Pursuant to the Planning and Environment Court Act 2016 (Qld) (“PECA”), the appeal is by hearing anew,22 and the appellants must establish that the appeal should be upheld.23 Section 46 of the PECA addresses the nature of an appeal and relevantly provides: (2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if— (a) the P&E Court were the assessment manager for the development application; and (b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision. 17 Exhibit 2, p 8 and Exhibit 10, p 27. 18 Exhibit 3(a), p 23. 19 Ibid. 20 Exhibit 2, p 9 and Exhibit 8, para 6. 21 Exhibit 3(a), p 94. 22 Planning and Environment Court Act 2016 (Qld), s 43. 23 Ibid, s 45(1)(a). -- 4 of 14 -- 4 [10] As the proposed development was impact assessable, s 45 of the Planning Act 2016 (Qld) (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorizing instrument for the development which, in the circumstances before me, are the relevant provisions of the planning scheme. It must also be carried out having regard to matters prescribed by regulation. In this regard, s 31(1) of the Planning Regulation 2017 (Qld) (“PR”) states that I must have regard to “any development approval for, and any lawful use of, the premises or adjacent premises” and “the common material”,24 which includes the properly made submissions. However, I may consider these matters “only to the extent” I consider “the matter is relevant to the development”.25 There were 10 mainly adverse submissions, including a petition with 252 signatories.26 Common themes in the submissions were the ecological impacts of the proposed development and the lack of infrastructure in the local area to accommodate more residents.27 [11] The assessment may be carried out having regard to any other relevant matter other than a person’s personal circumstances, financial or otherwise.28 [12] In determining the appeal, the court is conferred a wide discretion pursuant to s 60 of the PA to approve all or part of the application, impose development conditions on the approval, or refuse the application. As the Court of Appeal observed, the ultimate decision of the court is “a broad evaluative judgment”.29 The weight to be given to each of the factors in undertaking this assessment is a matter for the decision-maker.30 [13] The appropriate principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council,31 notably that the same principles which apply to statutory construction apply to the construction of planning documents,32 and that such documents need to be read as a whole in a way which is practical and intending to achieve a balance between outcomes.33 24 Section 31(1)(f) and (g). 25 Section 31(2). 26 Exhibit 7, para 51. 27 Exhibit 6. 28 Planning Act 2016 (Qld), s 45(5)(b). 29 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 at 1001, [59]. 30 Abeleda & Anor v Brisbane City Council & Anor [2020] QR 441 at 458, [43]. 31 (2014) 201 LGERA 82. 32 Ibid at [52]. 33 Ibid at [56]. -- 5 of 14 -- 5 [14] The variation request is subject to specific criteria set out in s 61 of the PA, including “the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied”.34 However, I must also consider “the result of the assessment of that part of the development application that is not the variation request”.35 In this context, the approach set out by McDonnell DCJ in Palmer v Council of the City of Gold Coast36 is appropriate. The assessment of the preliminary approval for a material change of use is undertaken first, and if the development application for the preliminary approval is refused, then the variation request must be refused.37 The disputed issues [15] The extent of the agreed list of issues in dispute narrowed considerably in the course of the hearing of the appeal. At the commencement of the hearing, shortcomings of the proposed development in terms of infrastructure provision and the management of bushfire hazards were agitated by the respondent as grounds for the refusal. This occurred in the context of aspects of the proposed plan of development being woefully inadequate. These issues have resolved by clarification of aspects of the proposed development in the course of evidence given at the hearing of the appeal, and by the offering of additional conditions of approval by the appellant.38 [16] To the extent that the respondent contends that the Lot 3 Tavern Road Development Code permits development which has “low-medium density character”,39 this does not appear at variance with the new neighbourhoods designation of the site which contemplates a “diverse range of low-medium residential detached and attached housing types” as being appropriate.40 34 Section 61(2)(b). 35 Section 61(2)(a). 36 [2023] QPEC 47. 37 Ibid at [25]. 38 Exhibit 35. 39 Exhibit 3(a), p 25, PO2. 40 Exhibit 4, p 45. -- 6 of 14 -- 6 [17] Having regard to concessions made in oral addresses at the conclusion of the hearing,41 the issues in dispute remaining for determination can broadly be described as: 1. whether there is an overwhelming (or overriding) community and economic need for the proposed development; 2. whether the proposed development will give rise to unacceptable ecological impacts; 3. the weight to be given to the existing approval; and 4. whether there are other relevant matters justifying approval of the proposed development despite non-compliances with the relevant assessment benchmarks identified in Exhibit 1A. Economic and community need [18] In s 3.4.1 of the planning scheme, strategic outcomes contemplate the region’s urban footprint (including designated new neighbourhoods) being able to accommodate housing growth over the next 20 years.42 Subsequently it is stated “Residential development within the region occurs where it can be demonstrated that there is both overwhelming community and economic need”.43 Thereafter in s 3.4.2 it is stated: The timely supply of land ensures that new housing can be provided to meet these periods of growth without significant adverse impact on affordability and access to the necessary physical and social infrastructure. In instances of new house supplies, this timely delivery is to be demonstrated through specific needs analyses which illustrate both overwhelming community and economic need.44 Subsequently it is stated that this balance between greenfield and infill development “ensures that the Gladstone region has sufficient housing land supply to last for at least 20 years.”45 41 T4-18, ll 40–46 – T4-19, ll 1–20. 42 Exhibit 4, p 31, s 3.4.1(2). 43 Ibid, s 3.4.1(4). 44 Ibid. 45 Ibid, pp 31–32. -- 7 of 14 -- 7 [19] The same requirement for demonstrating “overwhelming community and economic need” for new dwellings is set out in the new neighbourhoods designation in the planning scheme.46 [20] The overall outcomes in the emerging community zone include: Development for the purpose of new urban communities is undertaken only where there is overriding community and economic need and in accordance with a Plan of development.47 Subsequent performance outcomes in PO6 use this same language.48 [21] The concepts of community need and economic need were the subject of unanimous agreement by the need experts who gave evidence in Fabcot Pty Ltd v Cairns Regional Council & Ors49 where, in the context of a development proposal for predominately retail uses, including a shopping centre, they stated: We have proceeded on the basis that: (a) Community Need refers to an assessment as to the extent to which the physical wellbeing of the community is improved. A range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc; (b) Economic Need refers to an assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level. This assessment is typically more quantitative in nature; …50 The appellants submit that it is appropriate that I apply these definitions although they were not the subject of evidence before me. I accept the appellant’s submission. Further, in Yu Feng Pty Ltd v Brisbane City Council, Williams JA observed: There would almost be an infinite variety of facts which could impact upon the decision whether or not there was an “overwhelming need” for a proposal under consideration.51 [22] Two suitably qualified experts gave evidence in respect of need: Mr Duane on behalf of the appellant; and Mr Stephens on behalf of the respondent. Curiously, in 46 Ibid p 45. 47 Ibid p 138, s 6.2.19.2(1)(c). 48 Ibid p 139. 49 [2021] QPELR 40. 50 Ibid at [29]. 51 (2007) 156 LGERA 399 at [26]. -- 8 of 14 -- 8 calculating the supply of dwellings in the study area, they took into account development approvals for dwellings on other land but ignored the 360 approved dwelling sites the subject of the existing approval. To its credit, Mr Morzone KC who appeared on behalf of the appellant conceded that this was not appropriate.52 Their analysis was of the need for dwellings in the study area, regardless of the type. Mr Duane concluded that there is an economic and community need for the proposed development,53 and Mr Stephens concluded there is a modest level of economic and community need for the proposed development.54 That was the extent of the assessment of the relevant level of need by the experts. While the drafting of the planning scheme is sloppy – requiring the demonstration of “overwhelming community and economic need” in the relevant provisions of the strategic framework but “overriding” community and economic need in the emerging community zone code – it is clear that something more than a modest level of need is required to be demonstrated. [23] I accept the evidence of Mr Stephens that there is a modest level of community and economic need for the proposed development. Of course, when the approved dwellings the subject of the existing approval are factored into the need analysis, the need for dwellings reduces further. The proposed development will result in less dwellings in the study area, but more of a different type. The separate need for different types of dwellings was not meaningfully analysed, however. Although an extremely large number of manufactured home sites are approved in the vicinity of the site, this is probably reflective of the fact that residents of the study area are significantly older and earn less income than the Queensland average.55 [24] The appellant has not demonstrated the requisite level of need for the proposed development. The appellant argues that this is not required as the proposed development is not a new urban community contemplated by the relevant provisions of the emerging community zone code. This argument ignores both the provisions of the strategic framework which contemplate the site as part of a wider 20 year land bank in the new neighbourhoods designation, and the fact that the variation request clearly seeks to establish a new community. 52 T4-53 ll 1–5. 53 Exhibit 8, para 94. 54 Ibid para 95. 55 Ibid, p 25, table 4. -- 9 of 14 -- 9 Ecology [25] There is a strong theme running through the planning scheme which seeks to protect places with national and state environmental significance, beginning in the strategic framework.56 It finds its most precise expression in the biodiversity overlay code where numerous overall outcomes seek to prevent ecological destruction.57 In particular are requirements that development avoid adverse impacts on matters of state environmental significance (“MSES”) and matters of national environmental significance (“MNES”) and their associated ecological processes and diversity values. If these impacts cannot be avoided, they are to be minimised and an environmental offset is to be provided.58 Numerous performance outcomes follow to achieve the overall outcomes referred to above. PO16 addresses environmental offsets, stating: Where it is not possible to avoid adverse impacts on MSES and development has minimised adverse impacts to the greatest extent possible, development provides an offset for any significant residual impact in accordance with the Queensland Environmental Offset Policy 2014.59 [26] For the sake of completeness, there are provisions of the reconfiguring a lot code which seek to ensure that a reconfiguration is responsive to topography, natural drainage systems, vegetation and habitat corridors, and protects the landscape character of the locality.60 These provisions are also raised in the context of earthworks contemplated by the proposed development failing to adequately minimise impacts on the site.61 [27] It is uncontentious that the appellant has made no attempt to comply with the assessment benchmarks identified above. This occurs in the context of the site being mapped as an environmental corridor in the strategic framework.62 Two terrestrial ecology experts gave evidence: Mr Moffitt on behalf of the appellant; and Mr Delaney on behalf the respondent. They agreed the majority of the site is correctly identified 56 Exhibit 4, p 50, s 3.7.1. 57 Ibid p 143, s 8.2.3.2(2). 58 Ibid, overall outcome 2(a). 59 Ibid, p 149. 60 Ibid p 179, s 9.3.7.2(2)(b) and p 181, PO5 and PO6. 61 Exhibit 1A, para 3. 62 Exhibit 10, p 27. -- 10 of 14 -- 10 as Category B (Remnant) RE12.12.11 vegetation.63 Mr Delaney confirmed that the site had both MNES and MSES, providing habitat to native wildlife species listed as threatened species.64 Mr Moffitt expressed the view that the MSES were “more clearly defined” while not denying the existence of MNES present at the site.65 Mr Moffitt asserted that were it not for the existing approval, he would not support the proposed development. He proposed an environmental offset otherwise than in accordance with the relevant provisions of the planning scheme. This is offered effectively as a relevant matter.66 [28] I accept the evidence of Mr Delaney that the proposed development makes no attempt to avoid or minimise impacts to the biodiversity values of the site which are significant.67 The site contains a high abundance of large old growth trees and is likely to be of particular importance to hollow dependant fauna species within the broader locality.68 The proposed offset is to be at Benaraby approximately 60 kilometres to the north-west of the site. Apart from some fauna species with wide ranges, such as flying foxes, it would not be utilised by any of the individual fauna that are dependent upon the habitat contained within the site.69 The proposed offset is located in an industrial area adjacent to the Bruce Highway.70 It is secured by a deed which the owner of the offset site can cancel at his election within 21 days of receiving notice of the reasons for judgment in this appeal.71 An offset was offered in similar circumstances in Landarch Properties Pty Ltd v Logan City Council & Anor72 where the court observed: [58] Proposing an environmental offset otherwise than in accordance with the relevant planning policy is not to be encouraged. The mapping of protected vegetation is an important responsibility of a local government and to be respected. A proponent for a development cannot simply put forward a planting regime at a site several kilometres away to avoid the obligation to comply with provisions in the Biodiversity overlay code.73 63 Exhibit 10, para 25. 64 Ibid, p 96. 65 T2-72 ll 10–25. 66 T2-83 ll 30–45. 67 Exhibit 21, para 19. 68 Ibid para 29. 69 Ibid para 28(e). 70 Exhibit 15, p 19. 71 Exhibit 18, p 6. 72 [2024] QPEC 47 73 Ibid at [58]. -- 11 of 14 -- 11 These observations are most apposite to the facts before me. I find the proposed offset of negligible value when compared to the extent of the ecological destruction contemplated by the proposed development. It is offered in somewhat conditional terms, and in the context of the failure of the appellant to even attempt to comply with the relevant assessment benchmarks designed to protect the ecological values of the site. Existing approval [29] The appellant seeks to overcome the non-compliances with the assessment benchmarks in the planning scheme by submitting that the existing approval should be given determinative weight. It is uncontentious that it lapses at the end of the currency period on 3 April 2026.74 Mr Brades, the sole director and secretary of the appellant, asserts that he will proceed to develop the site in accordance with the existing approval should the appeal be unsuccessful. However, this needs to be seen against the realities of what still needs to occur within the very limited timeframe which remains for doing so. Pursuant to condition 4 of the existing approval, a number of applications for operational works need to be made. These include earthworks, roadworks, water infrastructure, sewer infrastructure and stormwater management works.75 It is difficult to see how compliance could be achieved with s 85(1)(b) of the PA by giving the plan for the reconfiguration under the existing approval to the respondent within what remains of the currency period. Should an attempt be made to extend the currency period pursuant to s 86 of the PA, the respondent is permitted to consider any matter that it considers relevant in assessing and deciding such extension application.76 In circumstances where the existing approval was given without a proper appreciation of the ecological values of the site, apparently due to a deficient ecological assessment,77 such an application would clearly be problematic for the appellant. [30] Further, the development of the adjoining site to the west appears to have resulted in areas which were designated for a park and for stormwater infrastructure pursuant to the existing approval being built upon.78 This would appear to necessitate the making 74 Written Submissions of Appellant – Part B filed 17 October 2025 and T4-38 ll 35–40. 75 Exhibit 5(a) p 15. 76 Planning Act 2016 (Qld), s 87(1). 77 Exhibit 10, para 24. 78 Exhibit 23. -- 12 of 14 -- 12 of an application for a change to the development approval in addition to the other applications referred to above. [31] I accept that the appellant has the right to clear the site pursuant to the existing approval. I find that this is so regardless of Temporary Local Planning Instrument 01/2024 which makes operational work in the biodiversity overlay subject to code assessment, and which commenced on 30 July 2024.79 I am satisfied that the clearing of the site comes within the definition of “exempt vegetation clearing” pursuant thereto, as it would be clearing in accordance with “a current development approval for material change of use, reconfiguring a lot or other operational work.”80 Any such clearing would amount to wanton destruction of an area of recognised environmental significance without apparently advancing the existing approval given my observations above. The site is suitable for residential development at an appropriate time, but this needs to minimise the impacts on the identified environmental values present on the site. [32] In all of the circumstances, the existing approval should not be given determinative weight in the outcome of the appeal. It has been given without a proper appreciation of the ecological values of the site. The requisite level of need for the proposed development is not present. It is therefore unlikely that there is a sufficient level of need to justify the development of the site for 360 dwellings in a manufactured home estate. This is even more so when there appears to be something of an oversupply of such dwellings in the immediate vicinity of the site. The logistical hurdles to overcome within what remains of the currency period also appear such that it is unlikely that development in accordance with the existing approval can occur in any event. Conclusion [33] The proposed development is in serious conflict with a number of provisions of the planning scheme. A sufficient level of community and economic need for the proposed development has not been demonstrated. Further, the proposed development makes no attempt to address the significant biodiversity and ecological values of the site. 79 Exhibit 7, para 80. 80 Exhibit 4, p 261. -- 13 of 14 -- 13 [34] There are no relevant matters or discretionary considerations which justify approving the proposed development. [35] The appeal is therefore dismissed. -- 14 of 14 --