Desbois v Chief Executive, Department of Transport and Main Roads; Chief Executive, Department of Transport and Main Roads v Desbois [2022] QLAC 1 (2022) 252 LGERA 70

LAND APPEAL COURT OF QUEENSLAND CITATION: Desbois v Chief Executive, Department of Transport and Main Roads; Chief Executive, Department of Transport and Main Roads v Desbois [2022] QLAC 1 PARTIES: Chief Executive, Department of Transport and Main Roads (appellant) v Clive John Desbois (respondent) FILE NOs: LAC No LAC001-22 Land Court No AQL696-19 PARTIES: Clive John Desbois (appellant) v Chief Executive, Department of Transport and Main Roads (respondent) FILE NOs: LAC No LAC002-22 Land Court No AQL696-19 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 23 May 2022 DELIVERED AT: Townsville HEARING DATE: 21 April 2022 THE COURT: North J PG Stilgoe OAM, Member of the Land Court Preston J, Acting Member of the Land Court -- 1 of 43 -- 2 ORDERS: 1. The appeal by the Chief Executive, Department of Transport and Main Roads, proceedings No LAC001-22, is dismissed. 2. The Chief Executive, Department of Transport and Main Roads is to pay the costs of Mr Clive Desbois of proceedings No LAC001-22. 3. The appeal by Mr Clive Desbois, proceedings No LAC002-22, is upheld. 4. The Chief Executive, Department of Transport and Main Roads is to pay the costs of Mr Clive Desbois of proceedings No LAC002-22. 5. The matter is remitted to the Land Court for determination in accordance with the reasons of this Court. CATCHWORDS: APPEAL – resumption of land – compensation determination – highest and best use – service station in rural zone – whether hypothetical approval likely to have been granted for such use – whether correct area of such use – condition of approval requiring acceleration lane – whether condition would require a longer acceleration lane and widening of bridge – whether error in determining the discount for the risk of such a condition – value to be derived from comparable sale – analysed rate per hectare too low – whether error in failing to adjust rate per hectare – whether error in reducing discount to counterbalance too low rate per hectare Acquisition of Land Act 1967 Land Court Act 2000 Planning Act 2016 Sustainable Planning Act 2009 Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 Bell v Brisbane City Council [2018] QCA 84 Desbois v Chief Executive, Department of Transport and Main Roads [2021] QLC 43 -- 2 of 43 -- 3 Department of Transport and Main Roads v Mahoney (2014) 201 LGERA 257; [2014] QLAC 1 Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; (2020) QPELR 631 Mio Art Pty Ltd & Ors v Brisbane City Council [2009] QLC 177 Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (No 3) (1991) 71 LGRA 441 Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Ltd & Ords [2021] QCA 95 Wilhelm v Logan City Council & Anor [2020] QCA 273 APPEARANCES: Mr R J Anderson QC with Mr J Ware (instructed by Clayton Utz) for Chief Executive, Department of Transport and Main Roads Mr E J Morzone QC with Ms D C Whitehouse (instructed by Kelly Legal) for Mr Clive John Desbois [1] NORTH J: I have had the benefit of reading the Reasons of Preston J. I agree with his Honour and with the orders proposed. [2] MEMBER STILGOE: I have had the advantage of reading the reasons prepared by Preston J and respectfully agree with the reasons and the orders proposed. [3] MEMBER PRESTON J: The Department of Transport and Main Roads (DTMR) resumed 1.934 hectares (ha) of a total area of 59.556ha owned by Mr Desbois for the Mackay Ring Road Project. The land adjoined the Bruce Highway west of Mackay. Mr Desbois applied to the Land Court to decide his compensation entitlement under the Acquisition of Land Act 1967 (Qld). [4] The President of the Land Court (the primary judge) determined compensation under s 20 of the Acquisition of Land Act in the sum of $948,961. This sum comprised the loss in land value of $781,355, interest of $83,576.08 and disturbance of $84,000: Desbois v Chief Executive, Department of Transport and Main Roads [2021] QLC 43. [5] Both DTMR and Mr Desbois, being dissatisfied with the amount determined for the loss in land value, have appealed under s 58 of the Land Court Act 2000 (Qld). To succeed on appeal, either party must ordinarily establish that the primary judge’s -- 3 of 43 -- 4 decision resulted from factual, legal or discretionary error: Department of Transport and Main Roads v Mahoney [2014] QLAC 1 at [26]. The issues on this appeal [6] Both parties sought to establish that the primary judge erred at different steps in the process of determining the land value of the resumed land. The Land Court used the before and after method of valuation (at [4] of the judgment). This involved first valuing the whole site of 59.556ha before the resumption, valuing the residue of the site after resumption of 1.934ha, and then deducting the latter land value from the former land value to derive the value of the resumed land. [7] The parties had agreed upon the land value of the residue land after the resumption, the subtrahend in the subtraction sentence, which was its rural value (at [124] of the judgment). The disagreement between the parties concerned the minuend in this subtraction sentence, being the land value of the whole site before resumption. [8] Mr Desbois had contended that the highest and best use of a part of the site fronting the Bruce Highway was for a service station/truck stop, a type of commercial use. Mr Desbois contended that the area of this part of the site would be 2.25ha. Mr Desbois contended that there were good prospects of planning approval being granted for the use of this area of 2.25ha for a service station/truck stop. Accordingly, this area of the site should be valued for this commercial use, with the balance of the site being valued for rural use. [9] DTMR contested that the highest and best use of any part of the site would be a commercial use, such as the proposed service station/truck stop. DTMR contended that planning approval would not be granted for a commercial use in a rural zone. As a consequence, DTMR contended that the whole site only had rural value. [10] The primary judge noted at the outset that where there is a dispute about whether the highest and best use of the land would be approved and if so on what conditions, the Court’s function is not to decide, as a fact, whether the planning authority would approve the use and on what conditions. Instead the Court must decide how a hypothetical developer would have viewed the potential to use the land for that purpose in settling on the sale price (at [10]). -- 4 of 43 -- 5 [11] The primary judge found that the hypothetical developer would have been advised that there were good prospects of obtaining planning approval for a service station/truck stop and that this use was a realistic potential use of the disputed part of the site (at [23], [82], [123] of the judgment). Because there were good prospects of planning approval, the primary judge found that there was no need to reduce the land value for use as a service station/truck stop to account for the risk of not obtaining planning approval (at [141] of the judgment). [12] The issue of whether planning approval was likely to have been granted to use part of the site for the proposed commercial use of a service station/truck stop was raised by DTMR in grounds 1, 2, 4 and 5 of its appeal (the town planning grounds). DTMR argued that the primary judge erred in finding that there were good prospects of planning approval for a service station/truck stop in the rural zone. [13] Alternatively, if any part of the site should be valued for its potential commercial use as a service station/truck stop, DTMR contended that the area of this part of the site would not be the 2.25ha proposed by Mr Desbois but rather would be a smaller area of 1.8ha. DTMR contended that the Land Court erred in using an area of 2.25ha rather than 1.8ha in determining the commercial value of this part of the site (at [128]-[131] of the judgment) (the area of commercial use ground). [14] The parties agreed that the balance of the site, other than the disputed part of 2.25ha or 1.8ha, had only rural value. The parties agreed on the rate per hectare for such rural value (at [124] of the judgment). [15] Related to the issue of the prospects of planning approval being granted for a service station/truck stop was another issue concerning the risk of a condition of approval being imposed requiring an acceleration lane of such a length that it would require the widening of a nearby rail bridge. The cost of widening the rail bridge was agreed to be very high ($1,175,000), making any development that was required by a condition of approval to do so economically unviable. [16] Mr Desbois had argued that any condition of approval would likely require an acceleration lane of no longer than 315m, which would avoid the need to widen the railway bridge. DTMR had argued that any condition of approval would likely require an acceleration lane of 435m, which would necessitate widening the railway bridge. -- 5 of 43 -- 6 [17] The primary judge found that a hypothetical developer would be advised that a probable condition of approval would require an acceleration lane (at [99] of the judgment). The primary judge found, however, that there were reasonable prospects of a traffic safety condition of approval requiring an acceleration lane of no longer than 315m (at [123] of the judgment). [18] The issue of the length of the acceleration lane that might be required by a condition of approval was raised by DTMR in ground 3 (the length of the acceleration lane ground). [19] Both parties agreed, however, that there was a risk that the condition of approval might not limit the length of the acceleration lane to 315m but instead require an acceleration lane of 435m, which would then necessitate widening the railway bridge. For this reason, both parties accepted that the commercial value of the part of the land to be used as a service station/truck stop should be discounted by a percentage to reflect this risk. Mr Desbois had accepted a discount of 30% to account for the risk of being required to widen the bridge (at [126] of the judgment). DTMR argued that the risk of widening the railway bridge was so high and the discount so large that there was no potential for the land to be used as a service station/truck stop (at [126], [147] of the judgment). [20] The primary judge applied a discount of 15%. This lower percentage discount was adopted to counterbalance using a lower rate per hectare to determine the commercial value of the part of the site to be used for a service station/truck stop (at [153] of the judgment). [21] Mr Desbois challenged this discount of 15% in grounds 2 and 3 of his appeal, arguing that the primary judge had conflated the two steps of determining the appropriate rate per hectare and the percentage discount to be applied to that appropriate rate per hectare. DTMR challenged the discount of 15% in ground 2 of its appeal as being far too low to account for the near certainty of the hypothetical development being required to widen the railway bridge. I will refer to these grounds collectively as “the risk discount grounds”. [22] Once the primary judge decided that there were good prospects of obtaining planning approval to use an area of 2.25ha of the site for a service station/truck stop, and -- 6 of 43 -- 7 reasonable prospects of a traffic safety condition that required an acceleration lane of no longer than 315m, the next step was to determine the land value of that area of the site to be used for this commercial use. The parties had agreed that the most comparable sale was of land bought for a service station at Gracemere. The parties’ valuers agreed that the analysed rate for the sale was $400,000 per hectare (at [7], [134] of the judgment). The parties’ valuers disagreed, however, on the adjustment that should be made to the analysed rate of $400,000 per hectare in order to derive the value of that part of the subject site to be used for a service station/truck stop. Mr Desbois’ valuer relied on the difference in the passing traffic statistics for the two properties in 2016 (the year the land was resumed) to increase the analysed rate for the sale by 86% to $750,000 per hectare (at [135] of the judgment). DTMR’s valuer made no adjustment in applying the analysed rate for the sale of $400,000 per hectare to the subject site (at [135] of the judgment). [23] The primary judge found that the analysed rate for the sale of $400,000 per hectare was too low to be applied to the subject site, as it was heavily discounted for the sale’s uncosted flood mitigation risks and did not reflect the superior locational attributes of the subject site (at [140], [152] of the judgment). Nevertheless, the primary judge applied this analysed rate for the sale of $400,000 per hectare to the subject site without making any upward adjustment to account for these factors. The primary judge’s stated reason was that there was no information that would allow an adjustment of the analysed rate for the sale (at [152] of the judgment). To compensate for using too low a rate per hectare, the primary judge reduced the percentage discount to be applied to the rate per hectare from the 30% that had been proposed by Mr Desbois’ valuer to 15% (at [153] of the judgment). [24] The issue of the rate per hectare that should be derived from the comparable sale was raised by Mr Desbois in grounds 1 and 3 of his appeal (the land value grounds). DTMR also obliquely raised the issue in its ground 7, where it contended that the primary judge had erred in applying the liberal estimate principle to reduce the percentage discount to counterbalance using a lower rate per hectare. At the hearing of the appeal, DTMR did not press this ground as a separate ground, only as informing the other grounds. Accordingly, I will not address this ground separately. -- 7 of 43 -- 8 The resolution of the appeal [25] I find that, with one exception, DTMR and Mr Desbois have not established that the primary judge’s decision resulted from any factual, legal or discretionary error, so that the grounds of their respective appeals have not been made out. [26] The exception concerns the primary judge’s failure to determine separately the appropriate rate per hectare that should be derived from the comparable sale for the subject site and the appropriate discount that should be applied to that derived rate per hectare. Instead, the primary judge conflated the two valuation tasks by attempting to counterbalance the effect of applying a rate per hectare that the primary judge had found was too low by reducing the discount to be applied to that rate per hectare to 15%. This involved a constructive failure to exercise jurisdiction to determine the appropriate land value of that part of the site before resumption to be used as a service station/truck stop. This failure to determine the appropriate land value could not be overcome by reducing the percentage discount that was to be applied to the land value to account for the risk that a condition of approval to use the site for a service station/truck stop might require a longer acceleration lane and concomitantly the widening of the railway bridge. [27] To this extent, grounds 1, 2 and 3 of Mr Desbois’ appeal should be upheld. None of DTMR’s grounds of appeal concerning the land value should be upheld, as DTMR sought to challenge the primary judge’s use of the $400,000 per hectare rate and 15% discount for different reasons that have not been made out. [28] Mr Desbois’ appeal should therefore be upheld and DTMR’s appeal dismissed. The matter should be remitted to the Land Court to be determined in accordance with this Court’s reasons. DTMR should pay Mr Desbois’ costs of both DTMR’s appeal and Mr Desbois’ appeal. The town planning grounds [29] DTMR contended that the primary judge erred in finding that there were good prospects of obtaining planning approval for a service station/truck stop in four ways: (a) incorrect reliance on a superseded version of the relevant planning scheme; -- 8 of 43 -- 9 (b) misdirection or misapplication of the relevant provisions of the planning scheme; (c) misapplication of the test to be applied under s 326 of the Sustainable Planning Act 2009 (Qld); and (d) failure to find the demonstration of need required to support the proposed development. [30] I will deal with each in turn. Reliance on superseded planning scheme [31] On the date of resumption of 12 August 2016, the Mackay City Planning Scheme 2006 (Mackay Planning Scheme) was in force. By that date, Amendments 4 of 2010 had commenced (on 19 December 2011). [32] The Mackay Planning Scheme was annexed to the parties’ planners’ joint report. The Mackay Planning Scheme that was annexed was the unamended version, although the 2010 amendments were attached. It would appear that the primary judge referred to the unamended version of the Mackay Planning Scheme and overlooked the amendments in the attachment. The primary judge quoted the unamended version of s 1.4(2)(k) of the Strategic Framework (in [38] of the judgment) and the unamended version of Desired Environmental Outcome s 3.1(3)(c)(xi) (in [37] of the judgment). [33] The primary judge’s reference to the unamended version of Mackay Planning Scheme was understandable as the evidence of the parties’ planners and the parties’ submissions relied largely on the unamended version of the Mackay Planning Scheme. Nevertheless, the planning scheme that was in force at the time of the resumption was the Mackay Planning Scheme. [34] The unamended provisions referred, in various ways, to “economic activities” while the amended provisions refer to “rural activities”. Thus, s 1.4(2)(k) as amended described the strategy and outcomes for the rural areas as: “Rural land is developed and used for a wide range of rural activities including extractive industries, forestry, grazing, intensive animal husbandry and water supply development.” and “The use and development of rural land for uses other than a rural activity is not consistent with the scheme’s outcomes”. -- 9 of 43 -- 10 [35] Desired Environmental Outcome s 3.1(3)(c)(xi) as amended reads: “Rural land: (A) is protected from incompatible land uses, particularly urban (including but not limited to residential, industrial and commercial) uses; (B) is maintained in agricultural use, where possible, in order to ensure the viability of the sugar industry in the City; and (C) provides opportunities for a wide range of rural activities (including agriculture, animal husbandry, aquaculture, extractive industries, forestry, intensive animal husbandry, kennels or a rural industry) and water supply development.” [36] DTMR argued that the primary judge’s error in referring to the unamended provisions of the Mackay Planning Scheme materially affected the primary judge’s approach to the likelihood of a service station/truck stop being approved. The primary judge, relying on the language in the unamended s 1.4(2)(k) of “economic activities”, found that language to be “broad enough to encompass a service station/truck stop” (at [39] of the judgment). The primary judge, referring to the reference in the unamended Desired Environmental Outcome s 3.1(3)(c)(xi)(A) to protect rural land from “incompatible land uses”, observed that whether a service station/truck stop is “an incompatible land use as that term is used in the high level desired environmental outcome requires consideration of more specific provisions within the scheme” (at [39] of the judgment). [37] DTMR submitted that the primary judge may not have made these findings had she referred to the amended provisions of the Mackay Planning Scheme. DTMR argued that a service station/truck stop is not a rural activity, for which rural land is to be developed and used under s 1.4(2)(k), but rather is a use other than a rural activity. A service station/truck stop is also an incompatible land use, particularly an urban (a commercial) use, from which rural land is to be protected under Desired Environmental Outcome s 3.1(3)(c)(xi)(A). DTMR submitted that had the primary judge referred to the amended provisions she would have found a clear conflict between approving a service station/truck stop on rural zoned land and these provisions of the Mackay Planning Scheme. [38] Mr Desbois acknowledged that the primary judge did refer to the unamended rather than the amended provisions of the Mackay Planning Scheme. He submitted, -- 10 of 43 -- 11 however, that this error was immaterial and did not vitiate the primary judge’s decision. [39] Mr Desbois first pointed out that the Strategic Framework in Division 2 of Part 1 of the Mackay Planning Scheme does not have a role in development assessment under the planning scheme, as s 1.3(2) clearly states. The role of the Strategic Framework is limited to providing the context for understanding how policy contained in the planning scheme was determined (s 1.3(3)). The Strategic Framework serves an interpretive role, not a substantive role. Hence, there can be no conflict between an assessment manager’s decision to approve a proposed development and the provisions of the Strategic Framework. Any error in the primary judge referring to the unamended provisions of the Strategic Framework rather than the amended provisions cannot therefore have affected the primary judge’s finding that approval of a service station/truck stop would not conflict with the Mackay Planning Scheme. [40] Mr Desbois submitted that the primary judge’s reference to the unamended Desired Environmental Outcome s 3.1(3)(c)(xi) was also immaterial. This Desired Environmental Outcome, like all of the Desired Environmental Outcomes in s 3.1, are for the city of Mackay area as a whole, not just the Mackay Framework Locality, the Rural Zone and the Goosepond Creek precinct within which the subject land is located. Section 3.1(2) provides that: “The Desired Environmental Outcomes are to be read as a whole. Each Desired Environmental Outcome is to be achieved to the extent practicable having regard to the other Desired Environmental Outcomes.” [41] The particular Desired Environmental Outcome in s 3.1(3)(c)(xi) is expressed at a high level of generality, both in the unamended version and the amended version. Both versions seek in (xi)(A) for rural land to be protected from “incompatible land uses”. The amended version particularises the incompatible land uses as being urban (including commercial) uses, but this does not add to what would otherwise be implied from the expression “incompatible land uses”. Both versions sought in (xi)(C) for rural land to provide opportunities for a wide range of activities and particularise the types of activity. The unamended version described these activities as “economic” activities, while the amended version describes them as “rural” activities and adds some more types of rural activities, but the intent of both -- 11 of 43 -- 12 provisions remained the same – rural land should provide opportunities for rural activities. [42] Mr Desbois submitted that this Desired Environmental Outcome – that rural land provide opportunities for rural activities and be protected from incompatible land uses – is entirely unremarkable. Mr Desbois submitted that the proposed use of the site for a service station/truck stop “could not conceivably conflict with a provision with such broad application”. Indeed, that was the evidence of Mr Desbois’ planner, Mr Schomburgk, with which evidence DTMR’s planner, Mr Gaskell, did not seriously disagree. The only rural activity currently undertaken on the site of nearly 60ha was the agistment of two horses. Using 2.25ha of this site for a service station/truck stop would have no impact on this nominal rural use of the site. [43] Mr Desbois submitted that it was reasonably open to the primary judge to accept this evidence that the use of a relatively small area of the site for a service station/truck stop would not conflict with this Desired Environmental Outcome, regardless of how it is expressed in the unamended or amended versions. The decision would be the same. [44] I agree with Mr Desbois’ submissions. The primary judge’s reference to the unamended rather than the amended version of s 1.4(2)(k) of the Strategic Framework and Desired Environmental Outcome s 3.1(3)(c)(xi) was not a material error. Section 1.4(2)(k) of the Strategic Framework has no role to play in development assessment under the Mackay Planning Scheme (s 1.3(2)). The primary judge’s error in referring to the unamended provision was therefore immaterial. [45] Desired Environmental Outcome in s 3.1(3)(c)(xi) does have a role to play, but it is an overarching and aspirational one. This Desired Environmental Outcome has to be read with all of the other Desired Environmental Outcomes in s 3.1(3) and is to be achieved to the extent practicable having regard to the other Desired Environmental Outcomes (s 3.1(2)). The terms in which the Desired Environmental Outcome in s 3.1(3)(c)(xi) are expressed are common place for rural land. Rural land is to provide opportunities for rural activities, and to be protected from incompatible land uses, otherwise it risks losing its rural character and utility as rural land. The definition of “rural area” in the Mackay Planning Scheme embodies a similar aspiration. A “rural area” is a “non-urban area where rural activities predominate”. The notion of rural -- 12 of 43 -- 13 activities predominating accepts that activities other than rural activities can still be carried out in a rural area provided that rural activities predominate. [46] The amendment of Desired Environmental Outcome s 3.1(3)(c)(xi) did particularise the uses that might be incompatible land uses, from which rural land is to be protected, as including commercial uses, and also particularised the rural activities for which rural land should provide opportunities. But this was to make express what was already implied. The amendments did not materially affect the substance of the provision. [47] In this regard, the primary judge’s reference to the unamended provisions rather than the amended provisions would not have materially affected her finding that use of a part of the site for a service station/truck stop would not conflict with this Desired Environmental Outcome. The primary judge was entitled to rely on the evidence of the planners that a use of a part of the site for a service station/truck stop would not conflict with the Desired Environmental Outcome. The current nominal use of the site to agist two horses would not be affected by using 2.25ha of the site for a service station/truck stop. This use would not foreclose opportunities to use the site for rural activities and in that regard would not be an incompatible land use. [48] In this circumstance, the primary judge’s findings that there was no conflict with the provisions of s 1.4(2)(k) or s 3.1(3)(c)(xi) of the Mackay Planning Scheme was not affected legally or factually by her reference to the unamended versions of those provisions. Misconstruction or misapplication of provisions of planning scheme [49] DTMR contended that the primary judge, in finding that there would be no conflict with certain other provisions of the Mackay Planning Scheme, misconstrued or misapplied those other provisions. In its submissions in chief, DTMR identified two provisions which it said the primary judge had misconstrued or misapplied: (a) the additional overall outcome for the Goosepond Creek precinct in the Mackay Frame Locality in Division 6, (5)(a); and (b) the overall outcome for the Rural Zone in the Mackay Frame Locality in Division 12, (2)(d). -- 13 of 43 -- 14 [50] In its reply submissions, DTMR added specific outcome P1 for the Mackay Frame Locality and specific outcome P5 for the Rural Zone in the Mackay Frame Locality. [51] At its broadest, DTMR’s contention was that the commercial use of a service station/truck stop is an inherently incompatible land use in rural zoned land, so that there must necessarily be conflict with these overall and specific outcomes. Overall outcome (5)(a) for Goosepond Creek precinct [52] Starting with overall outcome (5)(a) for the Goosepond Creek precinct of the Mackay Frame Locality, DTMR’s planner, Mr Gaskell, identified as a conflict with the Mackay Planning Scheme the inconsistency of the proposed use of a service station/truck stop, which is a type of commercial activity, with overall outcome (5)(a). This overall outcome provides: “commercial activity occurs within the boundaries of the commercial zone and accords with the network of centres described in the Desired Environmental Outcomes and as shown on the Information Map – Network of Centres”. [53] Mr Desbois’ planner, Mr Schomburgk, disagreed with Mr Gaskell that there was any conflict. [54] The primary judge accepted Mr Schomburgk’s opinion, finding: “[57] Although Mr Schomburgk agreed the activity is commercial, he did not agree either that they were best supported in a commercial or industrial zone, or that the scheme actively discouraged them in the rural zone. [58] I prefer Mr Schomburgk’s opinion on that point. To prohibit all commercial activity outside the commercial zone is contrary to the Assessment Table for this Locality and the rural zone. In the absence of a clear statement to that effect, this overall outcome for the Precinct should be read in the context of those higher order indications.” [55] DTMR submitted that there were three errors in the primary judge’s finding. First, DTMR submitted that the primary judge’s reference to “those higher order indications” was a reference to s 1.4(2)(k) of the Strategic Framework and Desired Environmental Outcome s 3.1(3)(c)(xi). DTMR submitted that these provisions as amended provide no support for commercial activity occurring in the rural zone. [56] Secondly, DTMR submitted that the primary judge made a wrong finding of fact. A service station/truck stop is a commercial activity, which overall outcome (5)(a) states is to occur within the boundaries of the commercial zone. There is thus a clear conflict -- 14 of 43 -- 15 in approving a service station/truck stop in the rural zone. The evidence of Mr Schomburgk, which the primary judge preferred, could not overcome a finding of conflict. Mr Schomburgk’s disagreement that the commercial activity of a service station/truck stop was best supported in a commercial or industrial zone was not to the point; overall outcome (5)(a) provides that commercial activity is to occur within the commercial zone. DTMR submitted that Mr Schomburgk’s opinion that the planning scheme did not actively discourage the commercial activity of a service station/truck stop in the rural zone was incorrect, having regard to s 1.4(2)(k) of the Strategic Framework and Desired Environmental Outcome s 3.1(3)(c)(xi), and in any event could not avoid a finding of conflict with overall outcome (5)(a) for the Goosepond Creek precinct. [57] Thirdly, DTMR submitted that the primary judge was in error in reading overall outcome (5)(a) as “prohibiting” all commercial activity outside the commercial zone, as the word “prohibit” was not used in overall outcome (5)(a) and it applies only to land in the Goosepond Creek precinct. [58] Mr Desbois submitted that any misconstruction or misapplication of additional overall outcome (5)(a) for the Goosepond Creek precinct of the Mackay Frame Locality could not affect the primary judge’s finding that the use of the site as a service station/truck stop did not conflict with the Mackay Planning Scheme. This inevitably flows from s 5.8(1) of the Mackay Planning Scheme. Section 5.7(1) specifies the provisions that comprise the Mackay Frame Locality Code. These include relevantly the overall outcomes for the Mackay Frame Locality in Division 6, the specific outcomes for the Mackay Frame Locality in Division 7 and the specific outcomes for each zone in the Mackay Frame Locality in Divisions 8 to 20. Section 5.8(1), however, focuses only on the specific outcomes for the locality in Division 7 and the specific outcomes for the relevant zone in Divisions 8 to 20 but not the overall outcomes for the Mackay Frame Locality in Division 6. Section 5.8(1) provides: “Development that is consistent with the following complies with the Mackay Frame Locality Code: (a) the specific outcomes for the locality Division 7; (b) the specific outcomes for the relevant zone (Division 8 to Division 20).” -- 15 of 43 -- 16 [59] The consequence is that, even if the development is not consistent with the overall outcomes for the Mackay Frame Locality in Division 6 (which includes the overall outcomes for the Goosepond Creek precinct of the Mackay Frame Locality in (5)), provided the development is consistent with the specific outcomes for the locality in Division 7 and the specific outcomes for the relevant zone in Divisions 8 to 20, the development will comply with the Mackay Frame Locality Code. [60] In this circumstance, it is immaterial whether the proposed use of a service station/truck stop would or would not conflict with overall outcome (5)(a) of the Goosepond Creek precinct of the Mackay Frame Locality. Even if it were to be in conflict, contrary to the primary judge’s finding, this would not cause the development not to comply with the Mackay Frame Locality Code. [61] In any event, Mr Desbois submitted that the primary judge’s finding that the use of the site as a service station/truck stop would not conflict with the planning scheme revealed no error of misdirection or misapplication of overall outcome (5)(a). Mr Desbois submitted that the overall outcomes for the Goosepond Creek precinct are “in addition” to the overall outcomes for the Mackay Frame Locality. These additional overall outcomes for the precinct need to be read together with the overall outcomes for the Mackay Frame Locality. In this context, it matters not that the particular overall outcome for the Goosepond Creek precinct in (5)(a) does not refer to non-rural activity, such as commercial activity, occurring in rural areas. Other overall outcomes allow for non-rural activities in rural areas provided that they do not adversely affect the operation of rural uses (see overall outcome (2)(m)) and that rural land is protected from the constraining effects of encroaching urban (including commercial) development (overall outcome (2)(k)). [62] The possibility of commercial activity outside the commercial zone is thus admitted in the Mackay Frame Locality. Furthermore, within the Rural Zone in the Mackay Frame Locality, overall outcomes seek to ensure the ongoing protection of rural uses from encroachment of incompatible land uses (see Desired Environmental Outcome s 3.1(3)(c)(xi)(A)). [63] Mr Desbois submitted that this possibility of a service station use in the Mackay Frame Locality is emphasised by the planning scheme. Assessment Table 5-1 does not note that use as a service station is an inconsistent use in the Rural Zone, so that -- 16 of 43 -- 17 it is a consistent use in that zone (s 5.6(2)), and does note that use as a service station is impact assessable. This designation of a service station use as being a consistent use and impact assessable in the Rural Zone in the Mackay Frame Locality informs the construction of the overall outcomes for the Mackay Frame Locality and the additional overall outcomes for the Goosepond Creek precinct in the Mackay Frame Locality. These overall outcomes should not be construed as being inconsistent with the Assessment Table, such as by construing the overall outcomes as not admitting of the possibility of approval of a service station use, which is a type of commercial activity, in a rural area that is not within the boundaries of the commercial zone. [64] I find that DTMR has not established that the primary judge misconstrued or misapplied additional overall outcome (5)(a) for the Goosepond Creek precinct in the Mackay Frame Locality. I accept Mr Desbois’ submissions. [65] The primary judge accepted that the proposed use of a service station/truck stop was a “commercial activity” and that the site was in the Rural Zone in the Mackay Frame Locality and hence not “within the boundaries of the commercial zone” for the purposes of additional overall outcome (5)(a) (at [55], [57], [58] of the judgment). The primary judge found, however, that this did not necessarily lead to the proposed use being in conflict with the planning scheme. The primary judge noted that the additional overall outcome for the Goosepond Creek precinct needed to be read in the context of the Assessment Table for the Mackay Frame Locality and the Rural Zone (at [58]). That Assessment Table notes that use as a service station is a consistent use in the Rural Zone and impact assessable. This admits of the possibility of approving use as a service station, a type of commercial activity, on land in the Rural Zone, which is evidently not within the boundaries of the commercial zone. [66] This is what the primary judge was referring to in [58]. To construe additional overall outcome of (5)(a) as not permitting (or prohibiting) the commercial activity of a service station in the Rural Zone in the Mackay Frame Locality would be contrary to the Assessment Table for this locality and the Rural Zone. The primary judge noted that “in the absence of a clear statement to that effect”, referring to the absence of the Assessment Table noting that a service station use is an inconsistent use or is otherwise prohibited in the Rural Zone, overall outcome (5)(a) for the Goosepond Creek precinct should be read in the context of “those higher order indications”, -- 17 of 43 -- 18 referring again to the Assessment Table. No error is revealed by this reasoning of the primary judge at [58]. [67] The primary judge expressed a preference in the opening sentence of [58] for Mr Schomburgk’s opinion over Mr Gaskell’s opinion “on that point”. The point to which the primary judge was referring was explained in the balance of her reasoning in [58]. This is the point that additional overall outcome (5)(a) for the Goosepond Creek precinct needs to be read in the context of the Assessment Table designating use of a service station as being a consistent use and impact assessable in the Rural Zone. The primary judge’s summary of Mr Schomburgk’s opinion in [57] of the judgment is consistent with this point. A service station use, although a commercial activity, is not only permitted by the planning scheme in the commercial zone but can also be approved in the Rural Zone. Whether or not the way in which Mr Schomburgk expressed his opinion, as summarised by the primary judge in [57], accords precisely with the language of the Mackay Planning Scheme is not material. What is important is the point the primary judge draws from Mr Schomburgk’s opinion. That point is what the primary judge stated in [58], which does accord with the planning scheme and in particular the Assessment Table. No error is therefore revealed by the primary judge saying that she preferred Mr Schomburgk’s opinion. [68] In any event, however, even if the primary judge were to be seen to have misconstrued or misapplied overall outcome (5)(a) for the Goosepond Creek precinct in the Mackay Frame Locality, such error would not be material or vitiate the primary judge’s finding that the service station use did not conflict with the Mackay Planning Scheme. By operation of s 5.8(1) of the Mackay Planning Scheme, the service station use will comply with the Mackay Frame Locality Code if it is consistent with the specific outcomes for the locality in Division 6 and the specific outcomes for the relevant zone in Divisions 8 to 20. Such compliance with the Mackay Frame Locality Code will result regardless of whether or not the service station use is consistent with the overall outcomes for the Mackay Frame Locality in Division 6. The additional overall outcome (5)(a) for the Goosepond Creek precinct of the Mackay Frame Locality is an overall outcome for the Mackay Frame Locality in Division 6. Hence, even if the proposed use as a service station/truck stop were not to be consistent with overall outcome (5)(a), this would not cause that use not to comply with the Mackay Frame Locality Code. -- 18 of 43 -- 19 Overall outcome (2)(d) for Rural Zone in Mackay Frame Locality [69] Division 12 of the Mackay Planning Scheme identifies both overall outcomes and specific outcomes for the Rural Zone in the Mackay Frame Locality. Overall outcomes for the zone, identified in (2), are the purpose of the code (see (1)). The specific outcomes for the zone are identified in (3). [70] DTMR focused on the overall outcome for the Rural Zone in the Mackay Frame Locality in (2)(d), namely that “Non-rural activities do not occur”. DTMR submitted that the proposed use of a service station/truck stop, which is a non-rural activity, was clearly in conflict with this overall outcome. That was Mr Gaskell’s evidence. The proposed use which Mr Gaskell characterised as commercial, was not a non-rural activity, and hence was not to occur in the Rural Zone in the Mackay Frame Locality. [71] DTMR contended that the primary judge erred in not so finding. The meaning of the text of overall outcome (2)(d) is clear – non-rural activities are not to occur in the Rural Zone in the Mackay Frame Locality – and should have been given that meaning. DTMR submitted that the primary judge did not do so, but instead read the overall outcomes for the Rural Zone with the indication in the Assessment Table that a service station use is a consistent use and impact assessable in the Rural Zone (at [48]- [53] of the judgment). DTMR submitted that was in error. [72] DTMR submitted that the primary judge also was in error in using Mr Schomburgk’s evidence to interpret the overall outcomes. Mr Schomburgk’s evidence was that Mr Gaskell’s interpretation of overall outcome (2)(d) would prevent any commercial activity (which is a non-rural activity) in the Rural Zone (at [47] of the judgment). Mr Schomburgk drew attention to the Assessment Table which noted that use as a service station is a consistent use and impact assessable in the Rural Zone (at [48], [49] of the judgment). That designation in the Assessment Table demonstrates that a service station is not inherently inconsistent with the objectives or intentions for the Rural Zone in the Mackay Frame Locality (at [51] of the judgment). [73] DTMR submitted that this evidence could not change the conclusion that the proposed use as a service station/truck stop was in conflict with overall outcome (2)(d). A finding that a conflict arose would not “prevent” such a commercial activity within the Rural Zone, contrary to Mr Schomburgk’s evidence. Rather, it would lead -- 19 of 43 -- 20 to the application of the decision-making rule in s 326 of the Sustainable Planning Act, which sets out the circumstances where an approval may be granted where such a conflict arises. [74] DTMR submitted that the primary judge erred in fact in finding (at [51] of the judgment) that the evidence of both planners, Mr Schomburgk as well as Mr Gaskell, accorded with Mr Desbois’ submission that the Assessment Table is a clear statement that a service station is not inherently inconsistent with the objectives or intentions for the Rural Zone in the Mackay Frame Locality (at [50] of the judgment). DTMR submitted that the planners had expressed considerable reservations about the weight to be given to the consistent/inconsistent dichotomy in the Assessment Table. [75] DTMR further submitted that the primary judge erred in fact in accepting Mr Schomburgk’s evidence “that a service station is not an incompatible land use or a non-rural use in this zone, merely because it is commercial in nature” (at [53] of the judgment). DTMR submitted that the primary judge erred in referring to “non-rural uses” when overall outcome (2)(d) refers to “non-rural activities”. DTMR submitted that the proposed service station/truck stop must be a “non-rural activity”, particularly when this overall outcome is read with other provisions of the Mackay Planning Scheme, such as Desired Environmental Outcome s 3.1(3)(c)(xi) and overall outcome (5)(a) of the Goosepond Creek precinct in the Mackay Frame Locality. These provisions indicate a demarcation between rural activities and commercial activities. [76] Mr Desbois again relied on s 5.8(1) of the Mackay Planning Scheme to dispute the materiality of any error in construction or application of overall outcome (2)(d). The overall outcomes for the Rural Zone in the Mackay Frame Locality in Division 12 do not comprise the Mackay Frame Locality Code. Section 5.7(1)(d) identifies only the specific outcomes, not the overall outcomes, for each zone in the Mackay Frame Locality in Divisions 8 to 20. Section 5.8(1)(b) provides that development that is consistent with the specific outcomes for the relevant zone in Divisions 8 to 20 complies with the Mackay Frame Locality Code. Accordingly, in Division 12, only the specific outcomes, and not the overall outcomes, for the Rural Zone in the Mackay Frame Locality comprise the Mackay Frame Locality Code and development will comply with the Mackay Frame Locality Code if it is consistent with the specific outcomes for the Rural Zone in the Mackay Frame Locality, irrespective of whether -- 20 of 43 -- 21 or not it is consistent with the overall outcomes of the Rural Zone. It matters not, therefore, whether the proposed use as a service station/truck stop is in conflict with overall outcome (2)(d), as even if there be a conflict it cannot cause the development not to comply with the Mackay Frame Locality Code. [77] Mr Desbois submitted that, in any event, the primary judge did not err in her construction and application of overall outcome (2)(d) for the Rural Zone in the Mackay Frame Locality. Mr Desbois submitted that the primary judge correctly construed this overall outcome for the Rural Zone in the context of other overall outcomes for the Rural Zone in the Mackay Frame Locality as well as overall outcomes for the whole of the Mackay Frame Locality. The primary judge also correctly construed overall outcome (2)(d) for the Rural Zone in the Mackay Frame Locality in the context of the Assessment Table, noting that a service station use is a consistent use and impact assessable in the Rural Zone. [78] Mr Desbois further submitted that the primary judge’s finding that the proposed service station/truck stop did not conflict accorded with the evidence of both planners. Mr Gaskell and Mr Schomburgk agreed that the proposed use could consistently go in the Rural Zone. [79] I find that DTMR has not established that the primary judge misconstrued or misapplied overall outcome (2)(d) for the Rural Zone in the Mackay Frame Locality. I accept Mr Desbois’ submissions. [80] The primary judge did not misconstrue overall outcome (2)(d). She accepted that the proposed use of a service station/truck stop was to be characterised as commercial (at [46]). This did not necessarily mean, however, that it was “an incompatible land use or a non-rural use” in the Rural Zone in the Mackay Frame Locality (at [53]). The reason the primary judge gave was that the Assessment Table designated a service station use as a consistent use and impact assessable in the Rural Zone. That designation in the Assessment Table reveals that use of land in the Rural Zone in the Mackay Frame Locality as a service station is not inherently inconsistent with the objectives or intentions for the Rural Zone in this locality (at [50]). Overall outcome (2)(d) cannot, therefore, be interpreted to mean that non-rural activities can never occur in the Rural Zone in the Mackay Frame Locality, as such activities are permitted with approval in the Rural Zone in that locality. This is what the primary judge was -- 21 of 43 -- 22 referring to when she accepted Mr Schomburgk’s evidence that a service station is not an incompatible land use in the Rural Zone in the Mackay Frame Locality. The primary judge did not therefore err in construing overall outcome (2)(d) for the Rural Zone in the Mackay Frame Locality in the context of the Assessment Table. [81] The primary judge did not err in her application of overall outcome (2)(d). The primary judge accepted the evidence not only of Mr Schomburgk but also Mr Gaskell that the proposed use of a service station was not an inconsistent use in the Rural Zone in the Mackay Frame Locality and that this kind of use could consistently go in the Rural Zone (at [52]). The primary judge’s findings were reasonably open on the evidence. The fact that DTMR considers that different factual findings should have been made on the evidence does not establish that the primary judge’s findings were in error. [82] In any event, even if there were to be an error in construing or applying overall outcome (2)(d) for the Rural Zone in the Mackay Frame Locality, this would be of no legal consequence. The overall outcomes for the Rural Zone in the Mackay Frame Locality in (2) of Division 12 do not comprise the Mackay Frame Locality Code. Section 5.7(1)(d) specifies that only the specific outcomes for each zone in the Mackay Frame Locality comprise the Mackay Frame Locality Code. Section 5.8(1) provides that a development that is consistent with the specific outcomes for the relevant zone complies with the Mackay Frame Locality Code. Accordingly, even if the proposed use of a service station/truck stop were not to be consistent with overall outcome (2)(d) for the Rural Zone in Division 12, this would not cause the development not to comply with the Mackay Frame Locality Code. Specific outcomes P1 and P5 for the Rural Zone in the Mackay Frame Locality [83] In reply submissions, DTMR added two specific outcomes, which DTMR contended the primary judge misconstrued or misapplied, being specific outcome P1 in Division 7 and specific outcome P5 in Division 12. [84] Specific outcome P1 for the Mackay Frame Locality provides: “Commercial development is located in the commercial zone and does not detract from the network of centres referred to in the Desired Environmental Outcomes.” -- 22 of 43 -- 23 [85] DTMR submitted that specific outcome P1 reflects overall outcome (5)(a) for the Goosepond Creek precinct in the Mackay Frame Locality. DTMR contended that the proposed use of a service station/truck stop conflicts with specific outcome P1 for the same reasons that it had advanced for why the use conflicts with overall outcome (5)(a) for the Goosepond Creek precinct. [86] Specific outcome P5 for the Rural Zone in the Mackay Frame Locality provides: “Non-rural activities are not located within the Rural Area unless the use specifically requires that particular rural location for synergies or co-location. [87] DTMR submitted that there was no evidence before the primary judge that the proposed use of a service station/truck stop specifically requires that particular rural location for synergies or co-location with rural activities. In this circumstance, the proposed use is contrary to specific outcome P5. [88] DTMR submitted that as a consequence of the proposed use not being consistent with these two specific outcomes, the development did not comply with the Mackay Frame Locality Code (see s 5.8(1)). [89] Mr Desbois accepted that the specific outcomes for the Mackay Frame Locality in Division 7, including specific outcome P1, and the specific outcomes for the Rural Zone in the Mackay Frame Locality in Division 12, including specific outcome P5, do comprise the Mackay Frame Locality Code (by s 5.7(1)(c) and (d)) and that development that is not consistent with these specific outcomes for the locality in Division 7 or the specific outcomes for the Rural Zone in Division 12 will not comply with the Mackay Frame Locality Code (by s 5.8(1)). However, Mr Desbois argued that DTMR has not established that the primary judge erred in relation to either of these two specific outcomes. [90] The primary judge did not directly deal with these specific outcomes as no issue concerning them had been raised by the parties in the court below. Nevertheless, the primary judge indirectly addressed these specific outcomes by her consideration and determination of the overall outcomes that were to the same effect. The primary judge’s finding that the proposed use of a service station in the Rural Zone would be consistent with overall outcome (2)(d) in Division 12 for the Rural Zone in the Mackay Frame Locality was sufficient to support a finding that the proposed use would be consistent with specific outcome P5 in Division 12 for the Rural Zone in -- 23 of 43 -- 24 the Mackay Frame Locality, as the two outcomes are to a similar effect. The primary judge’s finding that the proposed use of a service station would be consistent with overall outcome (5)(a) in Division 6 for the Goosepond Creek precinct in the Mackay Frame Locality is sufficient to support a finding that the proposed use is consistent with specific outcome P1 in Division 7 for the Mackay Frame Locality, as again the two outcomes are to similar effect. [91] I find that DTMR has not established that the primary judge’s decision that the proposed use of a service station/truck stop does not conflict with the Mackay Planning Scheme is affected by any error in relation to specific outcome P1 in Division 7 for the Mackay Frame Locality or specific outcome P5 in Division 12 for the Rural Zone in the Mackay Frame Locality. I accept Mr Desbois’ submissions. [92] DTMR, as the appellant, needed to establish that the primary judge had erred in not finding that the proposed use is not consistent with these two specific outcomes. Only if the proposed use is not consistent with these specific outcomes would the development not comply with the Mackay Frame Locality Code (s 5.8(1)). Although the primary judge did not directly address the two specific outcomes, as she was not asked by the parties to do so, her reasons for finding that the proposed use would be consistent with overall outcome (2)(d) in Division 12 for the Rural Zone in the Mackay Frame Locality and overall outcome (5)(a) in Division 6 for the Goosepond Creek precinct would equally justify a like finding that the proposed use would be consistent with specific outcome P5 in Division 12 and specific outcome P1 in Division 7 respectively. I have found that DTMR has not established that the primary judge erred in making her findings in relation to the overall outcomes, so that it follows that DTMR has not established that the primary judge erred in relation to the specific outcomes that are to the same effect as the overall outcomes. Misapplication of s 326 of Sustainable Planning Act [93] It is convenient to deal with the third and fourth of DTMR’s town planning grounds together. At the date of the resumption, the Sustainable Planning Act was still in force. A new planning law, the Planning Act 2016 (Qld), had been passed and had received royal assent but was not yet in force. The Planning Act commenced on 3 July 2017. Section 326 of the Sustainable Planning Act provides so far as is relevant: -- 24 of 43 -- 25 “(1) The assessment manager’s decision must not conflict with a relevant instrument unless— (b) there are sufficient grounds to justify the decision, despite the conflict”. [94] The primary judge found that the proposed service station/truck stop use did not conflict with any of the provisions of the Mackay Planning Scheme. The primary judge did not accept Mr Gaskell’s views on the asserted conflicts: at [71] of the judgment. In these circumstances, it was not necessary for the primary judge to determine, under s 326 of the Sustainable Planning Act, whether there were sufficient grounds to justify a decision to approve the use, despite the conflict. The primary judge did note, however, that “grounds” in s 326(1) referred to matters of public interest and that need for a development to be approved would fall within that concept: at [70]. Nevertheless, the primary judge considered that the evidence before the Court about need was insufficient, either to persuade her if she had been conducting a planning appeal (at [72]) or so as to cause a hypothetical developer not to be uncertain about the prospects of approval without further investigation (at [78]). [95] DTMR contended that the primary judge erred in fact in finding that the proposed use would not conflict with the provisions of the Mackay Planning Scheme. As a consequence, DTMR submitted the primary judge erred in failing to have regard to s 326 in order to determine whether there were sufficient grounds to justify a decision to approve the proposed use despite the conflicts. It was necessary for the primary judge to find that there were sufficient grounds before the primary judge could conclude that a hypothetical developer would have been advised that there were good prospects of obtaining planning approval for a service station/truck stop. DTMR submitted that sufficient grounds to overcome a conflict will only occur in exceptional circumstances: Bell v Brisbane City Council [2018] QCA 84 at [66], [70]. DTMR submitted that the evidence before the Court did not establish that exceptional circumstances, of the kind contemplated in Bell v Brisbane City Council, existed. [96] Need was the only possible “sufficient ground”, but not just any need will do. It was insufficient merely to prove that there was a need for the proposed use. The existence of a need for a particular use is only the starting point; it is necessary to identify why that need should not be met by a development on the site that does not give rise to a conflict with the planning scheme: Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; (2020) QPELR 631 at [48]. DTMR submitted that the primary -- 25 of 43 -- 26 judge found, correctly, that the need case for the proposed use was weak. No other evidence was available to establish need of the sort referred to in Gold Coast City Council v K & K (GC) Pty Ltd. This meant that need was not established. [97] As a consequence, DTMR submitted, the primary judge should have found that there were not sufficient grounds to justify a decision to approve the proposed use, despite the conflicts with the planning scheme, and accordingly the prospects of approval were poor. [98] Mr Desbois submitted at the outset that the primary judge was correct in finding that there was no conflict with the provisions of the Mackay Planning Scheme, for the reasons it had earlier advanced. In the absence of a conflict, it was unnecessary for grounds to be relied upon for the purposes of s 326 of the Sustainable Planning Act. The primary judge did not, therefore, err in not considering and applying s 326 to determine the prospects of approval of the proposed use as a service station/truck stop. [99] Even if it were to be necessary to consider s 326, Mr Desbois contested that the only sufficient ground to justify the conflict was need. Whilst the primary judge did consider the need case advanced by Mr Desbois, that was not the only ground advanced. Mr Schomburgk had identified a number of positive grounds why, in his opinion, approval of the proposed use was justified. These could also be sufficient grounds for the purposes of s 326. [100] In any event, Mr Desbois submitted there was sufficient evidence to establish need as a positive case to justify approval. First, Mr Desbois gave evidence of being approached by two persons interested in the development of the site for a service station. Secondly, the service station experts, who had the benefit of the town planners’ joint reports as well as the traffic experts’ reports, agreed as to the unique attractiveness of the subject site and having assessed the site against eight criteria, both experts agreed that the land achieved an 8/8 network assessment score, which would have been attractive to a large, first-tier oil company or developer. The primary judge correctly identified the finding of the service station experts in relation to “network fit” inferred that there was a need. -- 26 of 43 -- 27 [101] Finally, Mr Desbois submitted that it was relevant, in assessing the prospects of approval of the proposed use, to consider what would be the applicable planning law at the time of determining any application for approval. Mr Desbois submitted that the hypothetical developer would consider that the Planning Act, which had received royal assent but had not yet commenced at the date of resumption, would likely commence by the time any application seeking approval for the proposed service station/truck stop use would be determined. Section 63(3) of the Planning Act permits more flexibility to approve an application for development that conflicts with a planning scheme than did s 326(1) of the Sustainable Planning Act: Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Ltd & Ords [2021] QCA 95 at [178]-[181]. Under s 63(3), the exercise of the planning discretion involves a balanced decision: Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257 at [42], [43], [55], [57]; Wilhelm v Logan City Council & Anor [2020] QCA 273 at [77], [80], [84] and Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 at [43]. The assessment under the Planning Act is on “the merits of the proposal based on established policy and other relevant considerations to reach a balanced decision in the public interest”, where it is apparent the reference to “established policy” is to assessment benchmarks, such as the relevant planning scheme, and the reference to “other relevant considerations” is to those matters which the decision-maker is permitted to consider under s 45(5)(b) of the Act: Abeleda v Brisbane City Council at [57]; Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 at [59]. Shortly stated, “the ultimate decision called for when making an impact assessment under s 45 and s 60 of the Planning Act, is a broad, evaluative judgment”: Brisbane City Council v YQ Property Pty Ltd at [59]. [102] I find neither of these grounds concerning s 326 of the Sustainable Planning Act to be established. First, the primary judge can only have erred in failing to consider whether there were sufficient grounds to justify a decision to approve a service station/truck stop use if such use was in conflict with the Mackay Planning Scheme. This is clear from the terms of s 326(1), both the chapeau (that the decision to approve “must not conflict with a relevant instrument”) and the closing phrase of paragraph (b) (“despite the conflict”). -- 27 of 43 -- 28 [103] In the present case, the primary judge found that approval of the proposed use as a service station/truck stop would not conflict with the Mackay Planning Scheme, rejecting DTMR’s planner’s evidence to the contrary. DTMR’s challenge to those findings has not been made out, for the reasons I have given earlier. Hence, the primary judge’s findings that there was no conflict with the Mackay Planning Scheme stands and it was not necessary for the primary judge to determine whether there were sufficient grounds to justify a decision to approve the proposed use under s 326(1)(b). [104] Even if there were to have been a conflict, however, it would not necessarily follow that the primary judge would have had to apply the decision-making rule in s 326(1) of the Sustainable Planning Act instead of that in s 63(3) of the Planning Act. The task for the primary judge was not to determine for herself whether she would have granted approval for the proposed use as a service station/truck stop, as if she were to be sitting in the Planning and Environment Court, or to decide whether a planning authority would have granted such approval, but rather to find what advice a hypothetical developer would have been given as to the prospects of approval being granted for the proposed use. That advice would inform the price the hypothetical developer would be prepared to pay to purchase the resumed land at the date of resumption: see Mio Art Pty Ltd & Ors v Brisbane City Council [2009] QLC 177 at [12]. [105] Obtaining approval necessitates applying for approval. Any application for approval would not be made and any grant of approval would not be given by the date of resumption, but rather both would be done after that date. Any advice given about the prospects of approval would have regard to the planning law that would likely govern the making and approval of any application for approval. In circumstances where the Planning Act had been passed and assented to, although not commenced, it would be reasonable for such advice to be given on the basis that the Planning Act, and not the repealed Sustainable Planning Act, would likely govern the making and approval of any application to use the subject site land as a service station/truck stop. [106] Section 63(3) of the Planning Act allows greater flexibility in approving proposed development that conflicts with the planning scheme than did s 326(1) of the Sustainable Planning Act. The confined grounds upon which courts have held that a decision-maker can find there are sufficient grounds to justify a decision to approve -- 28 of 43 -- 29 a development that conflicts with a planning scheme do not apply in making a decision under the Planning Act, including s 63(3). In these circumstances, the primary judge cannot be said necessarily to have erred in failing to consider and apply s 326(1) of the Sustainable Planning Act to determine the prospects of approval being granted to the proposed use. [107] For these reasons, I reject each of the town planning grounds. Area of commercial use ground [108] DTMR challenged in ground 6 the primary judge’s finding that the area that would be approved for use as a service station/truck stop would be 2.25ha, rather than the lesser area of 1.8ha that had been proposed by DTMR’s planner, Mr Williams. [109] The issue arose because Mr Desbois’ planner, Mr Schomburgk, had originally proposed an area of 2.25ha to be used for a service station/truck stop as well as a motel. He later removed the motel component but did not reduce the area proposed for the use as a service station/truck stop. Instead, he replaced the motel with a motor vehicle repair workshop and associated hardstand (at [15] of the judgment). In effect, he spread the use of service station/truck stop over the area of 2.25ha. DTMR’s planner, Mr Williams, contested that the whole 2.25ha would be used as a service station/truck stop, and opined that once the motel had been removed, which occupied 0.45ha, the area for the service station/truck stop should have been reduced to 1.8ha. [110] The primary judge found that the evidence did not support Mr Williams’ approach (at [129] of the judgment). The primary judge accepted Mr Schomburgk’s evidence about the mix of uses that could be applied to the 2.25ha under the modified concept plan (at [130]). She also accepted the evidence of the service station experts called by the parties, Mr Lunney for Mr Desbois and Mr Coudrey for DTMR, that “the mix of facilities and activities identified in the modified concept plan would be attractive to a developer” (at [130]). The primary judge noted in [131]: “When asked whether 2ha would be the minimum needed for a highway site, Mr Lunney said ‘That would be comfortable. Yes.’ Mr Coudrey was not asked to comment. Neither expert was asked whether the area was excessive given the removal of the motel proposal.” [111] DTMR argued that the primary judge erred in fact in accepting the evidence of Mr Schomburgk and the service station experts instead of Mr Williams’ evidence. Mr -- 29 of 43 -- 30 Desbois contested that the primary judge had made a wrong finding of fact. In any event, however, the finding was one the primary judge was entitled to make on the evidence before her. [112] I find that DTMR has not established that the primary judge erred in fact, law or discretion in finding that the area to be used as a service station/truck stop would have been 2.25ha. There was an evidentiary basis for that finding, being the evidence of Mr Schomburgk and both parties’ service station experts. The primary judge identified that evidence as supporting her finding. There was no error in the primary judge preferring the evidence of these experts over the evidence of another expert, Mr Williams. [113] I reject the area of commercial use ground. The length of the acceleration lane ground [114] Both parties agreed that if approval were to be granted for the proposed use of a service station/truck stop, it would be subject to a condition requiring the construction of an acceleration lane. The primary judge so found (at [99]). Mr Desbois had contended that the length of the acceleration lane would be no more than 315m, while DTMR contended that the length of the acceleration lane would be 435m. The primary judge found that there were reasonable prospects that the condition of approval would require an acceleration lane of no longer than 315m: at [123] of the judgment. [115] DTMR contended that the primary judge erred in three respects in so finding. First, the primary judge gave insufficient weight to the Austroads Guide to Road Design. DTMR submitted that the primary judge’s statement that the Guide “is not prescriptive and does not have regulatory force” (at [86] of the judgment) and her rejection of DTMR’s approach to the Guide as being “at odds with its purpose and elevates it to a regulatory instrument” (at [121] of the judgment) involved a failure to give real weight to the Guide. DTMR accepted that the Guide was not prescriptive and was not a regulatory instrument, but submitted that that was not what it had argued in the court below. Rather, it had argued that the Guide would be followed strictly by DTMR in its consideration, as a referral agency, of any application for -- 30 of 43 -- 31 development approval. It was in this context that DTMR submitted the primary judge ought to have given, but did not give, real weight to the Guide. [116] Secondly, DTMR contended that the primary judge erred in finding that the traffic in the through lane was low, one of the circumstances in which departure from the acceptable design tables was permissible. Table 5.4 of the Guide indicates the length of the acceleration lane by reference to the design speed of the entry curve (here, from the site into the acceleration lane) and the design speed of the road entered (here, the Bruce Highway). Both parties’ traffic engineers assumed a design speed of entry curve of 20km/hour, because vehicles would accelerate within the site before entering the acceleration lane (at [102] of the judgment). The design speed of the road entered was 100km/hour, being the posted speed limit at the point where the acceleration lane would join the Bruce Highway. According to Table 5.4, these parameters would give the length of acceleration lane as being 435m (at [103] of the judgment). [117] Section 5.4.2 of the Guide, however, allows for a shorter acceleration lane in certain circumstances: “While it is desirable in most cases that the accelerating vehicle reaches the mean free speed of the adjacent through lane (about numerically equal to the posted speed limit) before merging, in some situations where the site is constrained and the volume in the through lane is low it may be acceptable to design for a speed decrement of 20km/h within the merge area (i.e. a merging vehicle travelling at 80km/h enters a traffic stream of vehicles travelling at 100km/h).” (Quoted by the primary judge at [104] of the judgment). [118] The parties’ traffic engineers agreed as to the first circumstance that the site was “constrained” by there being a railway bridge within the length of the acceleration lane that would be required by Table 5.4 (435m) and by the cost of widening the bridge to provide an acceleration lane (at [109] of the judgment). The primary judge found that the site was constrained by the bridge and the cost of widening it (at [117]). [119] The traffic engineers disagreed as to the second circumstance of whether the volume of traffic in the through lane was low. Mr Desbois’ traffic engineer, Mr Camilleri, considered the volume was low, while DTMR’s traffic engineer, Mr Johnston, considered it was not low. The primary judge preferred Mr Camilleri’s view that the volume of the through traffic was low (at [117]). The primary judge noted that: “Mr Camilleri considered the traffic volumes were low at the relevant time, having regard to the operating capacity of the road. During the peak hour there are about 500 vph, -- 31 of 43 -- 32 less than a third of the operating capacity of the highway. At other times of the day there are in the order of 300 vph.” (at [113]). The primary judge noted that Mr Johnston disagreed (at [114]). [120] The primary judge also referred to DTMR’s upgrade of the intersection of Glendaragh Road and the Bruce Highway in 2010. That intersection was only 900m to the west of the site. DTMR did not provide an acceleration lane at all and the deceleration lane was shorter than the table in the Guide indicated. The primary judge noted that volumes at Glendaragh Road were approximately 9,500 a day in 2010 and 9,000 a day in 2016, and that the traffic volumes adjacent to the site were near identical (at [116]). The primary judge inferred that DTMR’s decision not to provide an acceleration lane and to provide a deceleration lane shorter than the Guide would otherwise require indicated that the through traffic volumes at that site were accepted to be low (at [115], [116]). [121] DTMR contended that the primary judge erred in accepting Mr Camilleri’s view that the traffic volumes were low having regard to the operating capacity of the road. DTMR submitted that the operating capacity of the through lane was not a relevant referent for ascertaining whether the volume of traffic in the through lane was low. Rather, regard should be had to the nature of the through lane. Here, it was the Bruce Highway known to carry in 2016 more than 9,000 vehicles per day in both lanes, including in the a.m. peak approximately 600 vehicles per hour in the eastbound through lane. DTMR submitted that this volume could not be considered to be “low”. [122] Thirdly, DTMR contended that the primary judge erred in her consideration of DTMR’s upgrading of the intersection of Glendaragh Road and the Bruce Highway without providing an acceleration lane. DTMR submitted that the primary judge erred in inferring that the non-provision of an acceleration lane indicated that the volume of traffic in the through lane (the Bruce Highway) at the intersection was low. DTMR submitted that there were other factors in the Guide that might have supported DTMR not providing an acceleration lane at the intersection. The Guide distinguishes between greenfield sites (such as the subject site) and brownfield sites (such as Glendaragh Road), applying more stringently to the former than the latter. The design of the Glendaragh Road intersection uses different traffic standards than those proposed for the subject site. The Guide provides for the intersection treatments that -- 32 of 43 -- 33 should be used with major roads, depending on traffic and turn volumes. These treatments are different to those applicable to the subject site. The Glendaragh Road intersection used an alternative traffic treatment, a stop sign (which is a type of BAL treatment), so that there was no need for an acceleration lane. DTMR submitted that these matters provide no support for the primary judge’s finding that DTMR’s upgrade of the intersection of Glendaragh Road and the Bruce Highway indicated that through traffic volumes at that site were accepted to be low. [123] For these reasons, DTMR submitted that the primary judge erred in finding that the volume of the through traffic was low and hence that the circumstances in s 5.4.2 of the Guide would exist justifying a shorter acceleration lane than indicated by Table 5.4 of the Guide. [124] Mr Desbois disputed that the primary judge had erred in concluding that there were reasonable prospects of a traffic safety condition requiring an acceleration lane of no longer than 315m. In so finding, the primary judge preferred the evidence of Mr Camilleri, as she was entitled to do. There was no error of law or principle of assessment in the primary judge preferring the evidence of one expert over the evidence of another: Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (No 3) (1991) 71 LGRA 441 at 451. [125] Mr Desbois submitted that the primary judge did not err in her consideration and application of the Guide. She did not fail to give real weight to the Guide, as DTMR had submitted, but rather recognised that it provides valuable guidance, quoting directly from the Guide in [86]: “It ‘provides valuable guidance to designers in the production of safe, economical and efficient road designs.’ It adopts a ‘safe system approach’ to road safety that recognises human fallibility. In a safe system ‘roads should be designed to reduce the incidence and severity of crashes when they inevitably occur.’” [126] The primary judge correctly applied the Guide. She quoted Table 5.4 of the Guide (in [101]). She found that “strictly applied, the Table indicates an acceleration lane of 435 m” (at [103]). She recognised that s 5.4.2 provides flexibility in determining the length of the acceleration lane. She noted the situations referred to in s 5.4.2 of the Guide where it may be acceptable to provide an acceleration lane of a length less than what Table 5.4 requires, quoting the passage from s 5.4.2 at [104]. The primary judge -- 33 of 43 -- 34 noted that this passage in s 5.4.2 “refers to what is desirable and identifies when a different design might be acceptable.” (at [108]). [127] Mr Desbois submitted that the primary judge’s consideration and application of the Guide reveals no error. [128] Mr Desbois rejected DTMR’s argument that the primary judge erred in finding that the traffic volumes were low, so that it would be acceptable to provide an acceleration lane of 315m rather than the 435m required by Table 5.4. The question of whether the traffic volumes were low was a question of fact to be determined on the evidence. There was sufficient evidence before the court below, particularly that of Mr Camilleri, on which the primary judge was entitled to find that the traffic volumes were low. That Mr Camilleri’s opinion that the traffic volumes were low had regard to the operating capacity of the through lane (the Bruce Highway) revealed no error. That was his opinion, and the primary judge committed no error of fact or law in accepting that opinion. [129] Mr Desbois submitted that the primary judge was also entitled to find that DTMR’s upgrade of the intersection of Glendaragh Road and the Bruce Highway in 2010 indicated that the through traffic volumes at that site in 2010 were accepted to be low because DTMR did not provide an acceleration lane. That too was an inference of fact open to the primary judge on the evidence. Contrary to DTMR’s submission, the fact that the intersection had a stop sign BAL treatment rather than an acceleration lane might also indicate that the volume of through traffic was low. The Guide provides that BAL treatments are most appropriately used where the volume of through traffic is low. Mr Desbois noted that the primary judge found that the traffic volumes at the intersection of Glendaragh Road and the Bruce Highway, which was approximately 900m west of the subject site, were near identical to those at the subject site (at [116] of the judgment). [130] In these circumstances, Mr Desbois submitted it was reasonably open to the primary judge to rely on what DTMR had done in the upgrade of that intersection in determining what would be required for an acceleration lane at the subject site. [131] I find that DTMR has not established that the primary judge’s finding that there were reasonable prospects that the traffic safety condition would have required an -- 34 of 43 -- 35 acceleration lane of no more than 315m resulted from any factual, legal or discretionary error. [132] The primary judge did not misconstrue or misapply the Austroads Guide to Road Design. The primary judge’s reasons reveal that she understood and correctly applied the Guide. Her statement in [86] that the Guide “is not prescriptive and does not have regulatory force” was correct, a point not disputed by DTMR. In the balance of [86], the primary judge explained the purpose of the Guide as providing valuable guidance for the safe, economical and efficient design of roads, quoting from the Guide. [133] DTMR misreads the primary judge’s statement in [121] of the judgment. The primary judge did not find that adherence to the Guide would elevate it to the status of a regulatory instrument. To the contrary, the primary judge well understood that the Guide was not a regulatory instrument. That was what the primary judge had said at [86]. What she was saying at [121] was that she perceived DTMR to be arguing that the Guide should be strictly followed. DTMR’s traffic engineer had said that there was no discretion in applying Table 5.4 of the Guide to determine the length of the acceleration lane unless what he referred to as the “preconditions” in s 5.4.2 of the Guide were met (at [119]). These “preconditions” were that “the site is constrained and the volume in the through lane is low”. While Mr Johnston accepted that the first precondition was met, he disputed that the second precondition was met. In that circumstance, Mr Johnston said that Table 5.4 must be strictly applied. This was the approach that DTMR had submitted the primary judge should adopt. [134] The primary judge did not accept that this was the approach to be followed, for the reasons she gave in [121]. The full paragraph makes this clear and puts the reference to the Guide being elevated to a regulatory instrument in context: “The Guide is ambiguous and lacks definition for terms that DTMR purports to treat as ‘pre-conditions’ to the ‘relaxation’ of a ‘requirement.’ I have already observed that approach to the Guide is at odds with its purpose and elevates it to a regulatory instrument. The Guide uses discretionary language and invites the exercise of professional judgment. The specific discretion provided by s 5.4.2 does not limit the discretion that otherwise applies in using the Guide.” [135] The primary judge in this passage referred not only to the specific discretion provided by s 5.4.2, but also to a general discretion in applying the Guide. The Guide specifically affords discretion in s 5.4.2 to accept a shorter acceleration lane than -- 35 of 43 -- 36 would be indicated in Table 5.4 in certain circumstances, but that does not exclude the general discretion to apply the Guide differently in other circumstances. [136] The primary judge had dealt with the specific discretion in s 5.4.2 in [104]-[117], concluding that both circumstances in s 5.4.2 did exist, as the site was constrained and the volume of the through traffic was low. The primary judge went on to consider the general discretion “if I am wrong in that finding” that the circumstances in s 5.4.2 were met (at [118]). The primary judge’s statements in [121] were the culmination of her discussion of the general discretion in the application of the Guide. [137] In summary, the primary judge’s discussion of the Guide, and of the specific and general discretion in applying the Guide, does not reveal any error in construction or application of the Guide. [138] In particular, DTMR’s contention that the primary judge did not give any real weight to the Guide is demonstrably wrong. The primary judge’s discussion reveals that she did give real weight to the Guide. The primary judge applied the Guide, both Table 5.4 in order to ascertain the length of the acceleration lane indicated by that table, and the specific discretion in s 5.4.2 to find that a shorter acceleration lane would be acceptable. This involved giving real weight to the Guide. The primary judge went on to exercise the general discretion in the Guide if she were to be wrong in her finding applying the specific discretion in s 5.4.2. DTMR does not challenge that there is a general discretion in applying the Guide. Hence, the primary judge’s exercise of the general discretion in the Guide in itself gave real weight to the Guide. [139] In any event, the weight to be given to the Guide was within the discretion of the primary judge. Questions of the weight, or the relative significance, to be accorded to particular facts or to particular aspects of the Guide, once it is determined that different conclusions are reasonably open, are questions of fact: Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334. See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. That DTMR urged different conclusions of fact or weight than were found by the primary judge does not reveal any error justifying appellate intervention. [140] DTMR also has not established that the primary judge’s finding that the second circumstance in s 5.4.2, that the volume of traffic in the through lane was low, was in -- 36 of 43 -- 37 error. There was an evidentiary basis for that finding. First, there was the evidence of Mr Camilleri. Mr Camilleri considered the traffic volumes to be low, having regard to the operating capacity of the through lane (the Bruce Highway). The circumstance in s 5.4.2 that the volume of traffic in the through lane is “low” requires some referent: low compared to what? Mr Camilleri considered a reasonable referent to use was the operating capacity of the road. That DTMR considered this referent to be “irrelevant” matters not; it was a referent reasonably open to be used to ascertain whether the volume of traffic in the through lane could be described as low. The primary judge did not err in preferring Mr Camilleri’s evidence that used this referent. [141] Secondly, there was evidence before the Court that DTMR had upgraded the intersection of Glendaragh Road and the Bruce Highway without providing an acceleration lane. The primary judge drew the inference that DTMR must have considered the volume of traffic in the through lane (the Bruce Highway) at this intersection to be low, otherwise DTMR would have required an acceleration lane in accordance with the Guide. That inference was reasonably open to be drawn. It matters not whether this was expressly put to the traffic engineers, a point made by DTMR. The inference was one of fact that the primary judge was able to draw without the need for the traffic engineers to opine as to why DTMR did not provide an acceleration lane. [142] DTMR referred to other factors that could possibly explain why DTMR did not provide an acceleration lane. But all this serves to indicate is that other inferences were available to be drawn. It does not demonstrate that the inference drawn by the primary judge was not reasonably open. Where multiple inferences are open to be drawn on the evidence, the drawing by the primary judge of one of these inferences rather than another inference reveals no error of fact or law. [143] I reject the length of the acceleration lane grounds. The risk discount grounds [144] Both parties challenged the primary judge’s selection of a discount of 15% for the risk that the traffic safety condition might require an acceleration lane of 435m, which would necessitate the widening of the railway bridge at a cost that would make the proposed development economically unviable. -- 37 of 43 -- 38 [145] DTMR contended that the primary judge wrongly applied only a 15% discount for the risk that the condition might require a longer acceleration lane and the widening of the railway bridge, when she should have found that the risk was much higher and the discount so large that the proposed development was unfeasible (see grounds 2 and 3). Mr Desbois contended conversely that the primary judge erred in finding that a discount of 15% was an appropriate basis upon which to assess compensation (grounds 2 and 3). [146] The primary judge did not apply a discount for the risk in obtaining planning approval, because she had found that there were “good prospects” of obtaining planning approval (at [82] and [123] of the judgment). On this finding, there was no need to reduce the award for loss in land value for the risk of not obtaining planning approval (at [141] of the judgment). The primary judge adopted a different approach for the risk that a condition of approval might require a longer acceleration lane and hence the widening of the railway bridge. As the primary judge found that there were “reasonable prospects”, rather than “good prospects”, of a traffic safety condition requiring an acceleration lane of no longer than 315m (at [123]), she recognised that there was a risk that the condition might require a longer acceleration lane and that it was therefore appropriate to discount the award for loss of land value to account for this risk (at [150]). [147] Mr Desbois’ valuer, Mr Eales, had assessed that risk as justifying a 30% discount, but this discount was applied to a high starting valuation of $750,000 per hectare that he had derived from comparing the passing traffic statistics for the sale site and the subject site. After hearing the evidence of the traffic experts, Mr Eales conceded that his initial allowance of a 30% discount on an applied rate of $750,000 per hectare was a “very liberal allowance for this perception of risk”. DTMR’s valuer, Mr Williams, did not quantify as a percentage the risk that the condition would require a longer acceleration lane and consequently the widening of the railway bridge. Nevertheless, consistent with DTMR’s traffic engineer’s view, he considered the risk to be so high and hence the discount for that risk to be so large that the proposed development was unfeasible (at [126], [147] of the judgment). [148] The primary judge did not accept Mr Williams’ assessment of the high risk, and hence the large discount, because she found that there were “reasonable prospects” of the -- 38 of 43 -- 39 traffic safety condition requiring an acceleration lane of no more than 315m (at [148] of the judgment). That finding was reasonably open to the primary judge on the evidence, as I have explained when dealing with the length of the acceleration lane grounds. No error is established in the primary judge not accepting DTMR’s valuer’s evidence that the discount should be so large as to make the proposed development unfeasible. I therefore reject DTMR’s risk discount grounds. [149] The primary judge also did not accept Mr Eales’ evidence that the discount should be 30%. That discount was dependent on Mr Eales’ valuation that the rate should be $750,000 per hectare. That valuation was based on the differential traffic volumes at the sale site and the subject site. The primary judge rejected Mr Eales’ method as not providing a reliable indication of value (at [139] and [153] of the judgment). [150] The rejection of Mr Eales’ method of valuing the rate per hectare raised doubt about the 30% rate that Mr Eales had applied to his rate per hectare that the primary judge had rejected. Nevertheless, the primary judge did not determine what should be the appropriate discount having regard to her assessment of the risk of the condition of approval requiring a longer acceleration lane and hence the widening of the railway bridge. Instead, the primary judge reduced the discount to 15% to counterbalance her assessment that the value derived from the sale of $400,000 per hectare was too low. This is evident in [153] of the judgment: “Mr Eales applied a 30% discount from his starting rate of $750,000/ha. I have rejected that rate/ha. After hearing the evidence from the traffic engineers, in particular the possibility of an alternative to an acceleration lane, Mr Eales said he thought that discount was too high. I have found that a hypothetical developer would be advised they had good prospects of securing planning approval and reasonable prospects of achieving a traffic condition that did not require them to widen the bridge. In those circumstances, and given my view that $400,000/ha is too low, I will apply a 15% discount, resulting in a value of $765,000 for the 2.25ha ($400,000 x 85% x 2.25 ha). I consider that adequately compensates Mr Desbois for the loss of his land.” [151] Mr Desbois challenged the primary judge’s determinations of both the discount and the rate per hectare on a number of related grounds. At the core of all of these grounds, but particularly ground 3, was the contention that the primary judge failed to determine separately, and to explain her reasons for so determining, the appropriate discount and the appropriate rate per hectare. Instead, the primary judge conflated these two tasks. The primary judge selected a discount of 15% to counterbalance her view that the rate of $400,000 per hectare was too low. But the primary judge -- 39 of 43 -- 40 determined neither what should be the appropriate rate per hectare if $400,000 per hectare was too low nor what should be the appropriate discount to reflect the risk that the condition of approval might require a longer acceleration lane and consequently the widening of the railway bridge. These errors are common to Mr Desbois’ risk discount grounds and land valuation grounds. [152] Mr Desbois further contended, in ground 2, that the discount of 15% was too high. Mr Desbois submitted that having regard to the traffic engineers’ evidence, and the primary judge’s findings on that evidence that there were reasonable prospects of the condition of approval requiring an acceleration lane of no more than 315m, the discount should have been in the range of 10% to 20% but closer to 10%. [153] I find that the primary judge did err in conflating the two tasks of determining the appropriate rate per hectare and the appropriate discount to apply to that rate per hectare to account for the risk that the condition of approval might require a longer acceleration lane and consequently the widening of the railway bridge. [154] The primary judge’s downward adjustment of the discount from the 30% suggested by Mr Eales to 15% was seemingly undertaken to counterbalance the value of $400,000 per hectare being too low. But that was to adjust the discount for a purpose other than the purpose for which the discount was being applied, which was to reflect the risk that a condition of approval might require a longer acceleration lane and hence the widening of the railway bridge. As a consequence, the primary judge’s discount of 15% did not necessarily reflect this risk. [155] To this extent, the primary judge erred on a principle of assessment in determining the loss of land value. Once the primary judge had determined that it was appropriate to discount the award for loss of land value to take account of the risk that a condition of approval for the proposed use might require a longer acceleration lane and hence the widening of the railway bridge, the primary judge can be seen to have constructively failed to exercise jurisdiction to determine what was the appropriate discount that reflected that risk. To this extent, Mr Desbois’ risk discount grounds should be upheld. [156] I do not uphold Mr Desbois’ contention that the primary judge erred in not fixing the discount closer to 10% rather than the 15% the primary judge selected. The error lies -- 40 of 43 -- 41 not in the particular percentage selected as such, but in the selection of that percentage for a reason other than to reflect the primary judge’s assessment of the risk that the condition might require a longer acceleration lane. That task has yet to be performed by the primary judge. On remitter, the primary judge will need to do so. The parties can make submissions as to what percentage discount should be used, based on the evidence before the Court. The land value grounds [157] The primary judge applied the rate of $400,000 derived from the Gracemere sale to the subject site without adjustment, notwithstanding that she had found that rate to be too low. The rate was too low because it was heavily discounted for the sale’s uncosted flood mitigation risks and did not reflect the superior locational attributes of the subject site (at [152] of the judgment). The reason the primary judge gave for not adjusting that rate was that she had no information that would allow her to adjust the rate (at [152]). [158] In that circumstance, the primary judge sought to counterbalance her using too low a rate by reducing the discount that she applied to that rate to 15% to account for the risk that the condition of approval might require a longer acceleration lane and hence the widening of the railway bridge. [159] Mr Desbois challenged the primary judge’s use of the rate of $400,000 per hectare on two sets of grounds. The first, in grounds 1 and 3, were to the same effect as Mr Desbois’ risk discount grounds. The primary judge conflated the two tasks of determining the appropriate rate per hectare and the appropriate rate of discount. She was required to, but failed to, undertake these tasks independently of each other. Having found that the analysed rate of $400,000 per hectare was too low to be applied to the subject site, the primary judge was required to determine what was the appropriate rate per hectare. That task could not be avoided by reducing the discount that was to be applied to the rate per hectare. The primary judge was equally required to determine the appropriate discount that reflected the risk of the condition requiring a longer acceleration lane and hence widening of the railway bridge. The selection of a lower discount than might otherwise be appropriate simply to counterbalance using too low a rate per hectare avoided undertaking that task. -- 41 of 43 -- 42 [160] The second challenge, in ground 1, was that the rate of $400,000 per hectare was too low on the evidence and should have been at least $600,000. That figure was derived by adjusting the analysed rate of $400,000 per hectare for the sale for the differential flooding risks and costs of the sale site and subject site. [161] I find that the primary judge did err in applying a rate of $400,000 per hectare, which she had found was too low. As I explained when dealing with the risk discount grounds, the primary judge was required to determine separately both the appropriate rate per hectare and the appropriate discount to be applied to that rate per hectare. The primary judge’s failure to do so was an error of principle of assessment and a constructive failure to exercise jurisdiction. To this extent, I uphold Mr Desbois’ land valuation grounds. [162] I do not accept the other ground that the rate of $400,000 was too low and should have been $600,000. It may be accepted that, if the primary judge had assessed what should be the appropriate rate per hectare, she would have found the rate should be higher than $400,000 per hectare. After all, she did find that the rate of $400,000 was too low, as that rate was heavily discounted for the sale’s uncosted flood mitigation risks and did not reflect the superior locational attributes of the subject site. But how much higher than $400,000 per hectare the primary judge would have found the rate should be, if the rate was adjusted for these two factors, has not been determined. This is the error – the failure to determine the appropriate rate – not that the primary judge did not determine the rate at $600,000 per hectare as Mr Desbois submitted. On remitter, the primary judge will determine what is the appropriate rate per hectare to be used, having regard to the evidence before the Court. Conclusion and orders [163] DTMR has not established any of its grounds of appeal. DMTR’s appeal should be dismissed, with costs. Mr Desbois has established aspects of his grounds of appeal concerning the constructive failure of the primary judge to determine separately the appropriate rate per hectare and the appropriate discount to be applied to that rate per hectare to assess the loss of land value. Mr Desbois has not otherwise established his grounds of appeal. Nevertheless, having established the primary aspects of his grounds of appeal, Mr Desbois’ appeal should be upheld with costs. -- 42 of 43 -- 43 [164] I propose this Court make the following orders: 1. The appeal by the Chief Executive, Department of Transport and Main Roads, proceedings No LAC001-22, is dismissed. 2. The Chief Executive, Department of Transport and Main Roads is to pay the costs of Mr Clive Desbois of proceedings No LAC001-22. 3. The appeal by Mr Clive Desbois, proceedings No LAC002-22, is upheld. 4. The Chief Executive, Department of Transport and Main Roads is to pay the costs of Mr Clive Desbois of proceedings No LAC002-22. 5. The matter is remitted to the Land Court for determination in accordance with the reasons of this Court. -- 43 of 43 --