Development out of the dark as the Planning and Environment Court of Queensland allows an appeal against conditions requiring underground electrical infrastructure

In brief

The case of Bridgeman Enterprises Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 25 concerned an appeal to the Planning and Environment Court of Queensland (Court) against conditions imposed by the Sunshine Coast Regional Council (Council) on a development approval for a development permit for a material change of use to expand an existing shopping centre, and to reconfigure seven lots into two lots on land in the Mooloolah Valley Township.

The Council approved the development application and included two conditions that would affect the installation and relocation of electricity infrastructure. Electricity in Mooloolah Valley was supplied by overhead poles and cables.

The Appellant lodged change representations seeking to have the conditions removed. The Council gave a negotiated decision notice which included conditions requiring the following:

1. Remove an existing electrical transformer and replace it with a transformer mounted on a pad.

2. Provide underground conduits below the footpath to facilitate underground electrical cables.

3. Relocate the existing overhead electrical power lines to run underground.

The Appellant appealed to the Court, arguing that the conditions were not relevant or reasonably required under section 65 of the Planning Act 2016 (Qld) (Planning Act).

The Court allowed the appeal and ordered that the first and second conditions be deleted and that the third condition be amended to give effect to the tensioning of the overhead wires on Hatten Street.

Undergrounding of electrical infrastructure was not reasonably required

The issue for the Court to determine was whether the conditions imposed on the development approval were relevant to or reasonably required for the proposed development.

Section 65(1) of the Planning Act relevantly states:

“A development condition imposed on a development approval must—

(a) be relevant to, but not an unreasonable imposition on, the development or the use of the premises as a consequence of the development; or

(b) be reasonably required in relation to the development of the use of the premises as a consequence of the development.”

The Council argued that it had used its role as an assessment manager under section 45 and section 60(3) of the Planning Act to impose the development conditions. The Court made reference to the power of this role from the case of Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53 (see [24] to [25]):

“…The power to impose lawful conditions on an approval is a broad residual discretion to be exercised for a proper planning purpose…

The planning purpose underlying the exercise of the conditions power in any given case is to be ascertained from the [Planning Act], and the documents to which regard must, or may be had, in the assessment of the application.”

The Court therefore had to determine the reasonableness and relevance of the imposed conditions in the context of the assessment benchmarks of the relevant planning scheme provisions of the Sunshine Coast Planning Scheme 2014 (Planning Scheme), which in general terms provided the following:

• The Planning Scheme encourages the undergrounding of electrical infrastructure.

• Scenic amenity and aesthetics are highly valued in relation to the subject land in Mooloolah Valley.

• The Planning Scheme draws a distinction between new or greenfield development and other development when encouraging the efficient use and extension of existing infrastructure.

The Court sought to balance these themes and their relevance to the proposed development.

Conditions were not reasonable as the subject land was well serviced by existing electrical infrastructure with no plans to change

The Court held that the scale of the required work was not reasonable when balanced against the benefit of securing underground electrical infrastructure for the following reasons:

• None of the work required by the conditions were necessary for the proper operation of the proposed development.

• The surrounding area was completely serviced by overhead electrical infrastructure and there was no evidence to suggest it would be undergrounded in the future.

• Any theoretical benefit from the undergrounding of the electrical infrastructure was outweighed by the expense of implementing the conditions.

Conditions were not relevant as the goals of the Planning Scheme could be achieved without the undergrounding of electrical infrastructure

The Court also held that any relevance the conditions had towards the goals of the Planning Scheme was so slight that it could not be said they met the requirements of section 65 of the Planning Act for the following reasons:

• The Court did not find any benefit to visual or scenic amenity by moving the transformer to a pad-mounted position.

• Whilst the Council had argued that the primary benefit from undergrounding the electrical wires in respect of scenic amenity was that the wires would not be seen, the Court held that the improvements to scenic amenity as required by the Planning Scheme could be achieved without the undergrounding of the electrical wires.

• The Court also held that any benefit to scenic amenity from the undergrounding of the electrical wires was insignificant and any substantive benefit would only come from removing the poles and wires, and that was not required by the conditions.

• The Court also found that the better approach is to impose a condition that the electrical wires be raised so as to facilitate the planting of vegetation, which provides scenic amenity benefits.

Conclusion

The Court allowed the appeal and held that the decision to impose the disputed conditions be set aside for the reasons that:

• The electrical infrastructure was not relevant because any contribution towards scenic amenity goals were “…so slight as to deprive the conditions of the necessary relevance.” (at [58]).

• Even if the Court’s finding in respect of the relevance of the conditions was wrong, the conditions were in any event an unreasonable imposition when the slight benefit is weighed against the expense.