Abacus Funds Management v Sunshine Coast Regional Council - [2012] QPEC 46

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46

PARTIES:

ABACUS FUNDS MANAGEMENT LIMITED (ACN 007 415 590) AS TRUSTEE FOR ABACUS NORTH SHORE TRUST II TRADING AS ABACUS PROPERTY GROUP
(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL
(respondent)

And

JANE BECK
(co-respondent by election)

FILE NO/S:

2537 of 2010

DIVISION:

Appellate

PROCEEDING:

Developer Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23-24; 26-27; 30 April 2012, 1 and 9 May 2012

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed, appellant’s development application refused

CATCHWORDS:

Sustainable Planning Act 2009 s 314(3), s 326, s 819

Integrated Planning Act 1997 s 3.5.5(2)(d), s 3.5.14

Developer appeal against refusal of impact-assessable development application – site adjoins applicant’s established major tourist resort whose character (“small clusters of buildings set in extensive parklands and naturally vegetated areas”) is sought to be preserved by the precinct intent under the planning scheme – building height limited by planning scheme to two storeys with the possibility of three storeys “surrounding the lake” – proposal for 158 self-contained apartments (providing an accommodation type in demand but not available in the resort) in three large buildings of four storeys and one of three storeys placed end to end, half of the apartments facing the rear of the resort across its car park, half facing designated wetlands with minimal setback – applicable codes contemplated significant separation or buffering for protection of wetlands – visual amenity issues for road and Mudjimba Beach, also the Resort – whether established “need” for the proposal (as tourist or residential accommodation) and other factors overcame conflict with the planning scheme – significance of earlier approvals, one for material change of use (MCU) for similar buildings (with somewhat smaller footprints) contained in a court order made by consent, one allowing clearing of the site and its wetland vegetation (implemented) and construction of a podium or platform (said to provide a “hard edge” effective to protect the adjacent wetlands) – MCU approval extended once by Council to prevent lapsing, but subsequently lapsing when Council refused two further requests (in refusals subject to pending appeals) – whether 2005 approvals (for 56 or so units) were a “starting point” – 2005 approval and current proposal compared – current proposal said to be “over development”.

COUNSEL:

Mr D. Gore QC and Mr M. A. Williamson for the appellant

Mr C. L. Hughes SC and Ms N. J. Kefford for the respondent

Ms J. Beck (self-represented) co-respondent by election

SOLICITORS:

Connor O’Meara Solicitors for the appellant

Sunshine Coast Regional Council Legal Services for the respondent

Introduction

This is a developer appeal by Abacus against the respondent Council’s refusal of a development application. The approval applied for is presented as one “to facilitate the development of land within the Twin Waters Resort Planning Precinct for self-contained units … [specifically] for 158 units in four buildings of … from three to four storeys” (three of four storeys). There will be 31 one bedroom units, 113 two bedroom and 14 of three bedrooms. The idea is to provide a combination of self-contained accommodation for guests and access for them to the facilities of the Resort, which has been operating successfully for 20 years or more. The Resort is described as a hotel/conference facility with some 366 rooms. It cannot provide that style of accommodation (ie self-contained); would-be guests requesting it are directed to a rival tourist operation based on self-contained units in the adjacent North Shore Coastal Village, a more recently developed area of the precinct.

The Resort development was approved and largely constructed before the presently relevant planning scheme, Maroochy Plan 2000, came into effect. The Scheme acknowledges the importance of it for the local government area, to the extent of allocating it to its own precinct (North Shore Planning Area, Precinct 16), and envisages its expansion. Reconfigurations have taken place such that the appellant’s Site (like North Shore Coastal Village, which operates under a Group Titles structure, presumably) has been subdivided off. It and Resort land are both owned by the appellant, but most if not all of the 158 units will be sold into separate ownership, and put beyond the appellant’s control. It is suggested that 70% of the units may be made available for some or all of the time for use as part of the Resort’s letting pool, but the appellant will have no control in this respect. One of the buildings is to contain a reception and office area.

The appellant’s difficulty has been that the planning scheme provisions for the precinct impose strict caps on further development, which the proposal exceeds. It contends that certain development approvals covering the Site granted in 2005 have rendered those caps of less or no relevance. Where not the neighbour of the Resort or the Village[1] the Site abuts wetlands recognised in the planning scheme (and in State-level planning documents); the proposal effectively offers no set-backs or buffers to protect the wetlands, as contemplated by the planning scheme. These features are an essential basis of the Council’s decision which (supported by the co-respondent by election Ms Beck) it defends in this appeal. It contends that the proposal is “over development” – and that (contrary to the appellant’s case) there is no need or demand for what it offers sufficient to overcome the conflict with the planning scheme and justify approval under s 3.5.14 of the Integrated Planning Act 1997 (IPA). It is convenient to deal first with that issue and the views of the economic experts.
[1]The Village is described as a six stage mixed density residential development on the eastern and southern sides of the Resort lagoon comprising 144 beach villas, beach homes, apartments and two-storey penthouses of which about 80 are “currently operated by Mecure Apartments”.

Economics

The joint economic experts report of Mr Duane and Mr Coghlin addresses issues of need and demand for the proposed development. This is against the background of the planning scheme’s specifically recognising Twin Waters as one of two significant tourist resorts in Planning Area No 9 - North Shore (see 3.9.1 in Statements of Desired Character for Planning Areas and Precincts) and that expansion of the “existing Integrated resort” would be considered, where due regard was had to the precinct’s environmental values (at 3.9.4(16)); future approvals to cater for “any additional demand” were clearly contemplated in this “important tourist facility for the Shire” (Ibid). The experts set out to evaluate the appellant’s contentions that:

“(d) The proposed development:
i.is needed and is intended to achieve a flexible mix of accommodation that responds to existing and future market demands.

ii.represents an appropriate and logical extension of the existing Twin Waters Resort;

iii.will support the ongoing viability and sustainability of the Twin Waters Resort, including its commercial facilities and its ability to attract tourists to the location by allowing the Twin Waters Resort to diversify and respond to changing market needs;

iv.will support the retention and creation of jobs within the Twin Waters resort, which is already a major employment node within the Shire.”

For an agreed “Local Area” (essentially east of the Sunshine Motorway and stretching from the South Maroochy River in the south to Mount Coolum in the north) analyses were prepared for both additional visitor accommodation and additional residential needs. This was because the 158 units to be added to the Area’s accommodation were expected to be used “for a mix of short term (ie tourist) accommodation and longer term owner (ie residential) occupation”; the appellant does not specify and probably cannot predict what the mix will be. All will depend on the choices made by future owners about putting their properties into a rental pool.

Putting it shortly, the experts disagreed. Mr Coghlin, based on information regarding occupancy rates and the like, found no demonstrated need for visitor accommodation in the Area. As to residential need, his view was that “the need for additional residential land was mitigated by the availability of residential land beyond the local area; [what the proposal] offered would not make a substantial or extended contribution to additional supply”. In this respect, I prefer Mr Duane’s view that the need for beach front “land” which may be counted a luxury, but one for which there is demand, is not mitigated by additional land outside the agreed Local Area.

As to visitor accommodation, while contention (i) set out above may literally cover the point, there was a significant change of emphasis by Mr Duane (consistent with evidence from the Resort’s management) whereby the demand and need were presented in terms of providing self-contained accommodation for holiday makers who want the ability to prepare their own meals and do their laundry “at home”. The Resort does not offer self-contained accommodation at present, and it would appear quite unfeasible to refurbish to provide such facilities without amalgamating some of the present rooms, a costly exercise which would reduce the Resort’s guest capacity. This refined argument for the need for additional self-contained visitor accommodation I found compelling. That self-contained units may be available to tourists in other locations does not answer the point in my view; speaking generally, these possibilities do not offer the advantages of co-location with Twin Waters Resort and its facilities and the adjacent patrolled surfing area located on a magnificent, uninterrupted expanse of sandy beach. Those facilities would be enjoyed by long term residents and short term residents alike, in the latter case advancing the planning scheme’s goal of increasing tourism. Mystery as to the split between categories does not preclude the court’s being comfortably satisfied that the proposal meets an established planning or community need, as the appellant contends, in one or both categories.

At the end of the day, however, this positive aspect of the proposal does not outweigh the significant conflicts between the proposal and the planning scheme requirements, notwithstanding the Scheme’s recognition in 8.4.6 of the Strategic Plan of ensuring that Major Tourist Facilities such as the Resort need to change to protect and “continually strengthen” their place in the market. It is a complication for the appellant’s case that there is no assurance that many, if any, of the new units will in the event be made available for use by tourist visitors.

The Site

There has been some confusion (perhaps complexity) in identifying the real property description of the Site, which forms part only of the land covered by the 2005 approvals; most of the dozen or more numbered buildings were located along North Shore Drive south of the present Site, which has been taken to be Lot 2 on SP 210929, 1.379ha in area. Lot 1 appears to be the balance of an original 1.8ha parcel (Lot 8 on RP 836649) subdivided off under the 2005 approval to accommodate the “southern beach houses” being approved, Lot 2 accommodating “apartments” and “condos”. It is hatchet shaped with a narrowing “handle” lying north to south along North Shore Drive. The roughly rectangular “head”, on the inland side, has its longer (northern) frontage abutting public land containing an important wetland. Proposed Buildings 1 and 2 are placed end-to-end along that boundary with minimal setback. Buildings 3 and 4 are likewise end-to-end on a “narrower” “rectangle” constituting the fatter northern part of the “handle” with frontage to North Shore Drive across from the lifesaving/bathing reserve on the beach. A wetland in the road reserve immediately abuts the site’s eastern boundary where the setback will be even tinier.

The only substantial swathe of land in Lot 2 not proposed to be built upon lies in the rounded (obtuse) angle between the head and handle of the “hatchet”. Much, if not most, of that swathe is within Easement Y (using the nomenclature in Mr Robinson’s report, Exhibit 10): 4246.2m² on his figures, leaving only 9549m². The easement runs along Lot 2’s meandering southern/western boundary, affording vehicle access to North Shore Coastal Village, which has the benefit of Easement Y. The road there will also carry traffic to and from “basement” parking areas under Buildings 1, 2 and 3 and 4. So narrow is the handle south of Building 4 that Easement Y occupies the full width of Lot 2 from the North Shore Drive reserve in the east to Lot 1 to the west. At the southern extreme, at a broadening “heel” of the handle, the Lot 1 boundary bears westward, as does the Easement which is of fairly uniform width, producing an unencumbered triangle of 282m² in the south-east corner of Lot 2. This small area is said to be used for parking unassociated with Lot 2 or the proposal. I agree with the view that it is irrelevant so far as regards providing useful space for any proposed use, even for landscaping of Lot 2, given that it is cut off by the road constructed along Easement Y.

There are other easements crossing Lot 2 for services. While the services are located underground, construction on them is precluded. The main one, Easement S stretches from a Council facility on North Shore Drive between Buildings 2 and 3, then bears south to overlap (or underlap) Easement Y in places. The services protected may be benefiting Lot 1 and the Resort, rather than the North Shore Coastal Village (this affects nothing). There are other Easements (W and Z) crossing the handle south of Building 4 and immediately north of point where Easement Y joins the eastern boundary of Lot 2. It is not clear whether Easement J, depicted as traversing Lot 1 opposite the 282m² triangle impinges on Lot 2: see Exhibit 10 Appendix 2; I assume it does not. Mr Robinson’s calculations show that the available area of Lot 2 excluding Easements is only 8516m², that, bringing in useable parts of Easements W, S and Z, the “net area” of Lot 2 is only 9030m².

History of development approvals

On 14 July 2004 the Maroochy Shire Council (the predecessor of the respondent) decided to issue to Lend Lease Developments Pty Ltd a development approval in respect of Lot 8 on RP 836649 at 270 Ocean Drive, Twin Waters (adjacent to the existing Twin Waters Resort) as follows:

“Development Permit
Material Change of Use of Premises (Integrated Tourist Facility (Multiple Dwelling Units and Detached Houses) – Buildings 4-14 as shown on the Approved Plans)
Reconfiguration of a Lot (Minor Urban Subdivision)
Operational Works (Excavation, Extraction or Filling) (Bulk Earthworks)
Preliminary Approval
Material Change of use of Premises (Integrated Tourist Facility (Multiple Dwelling Units) – Buildings 1-3 as shown on the Approved Plans)
Currency Period
The following currency period/s apply to the following aspects of development in this approval – 4 years.” (See Mr Birks’ affidavit, Exhibit 46.)

Code assessability of a future development application for buildings to three storeys generally in the location of Buildings 1, 2 and 3 was offered in Condition 2. Appeal BD3836 of 2004 was instituted in this court by Lend Lease complaining that a preliminary approval rather than a development permit had been issued in respect of Buildings 1, 2 and 3. Those correspond with the four storey components of the proposal now under consideration, as proposed in the development application of the appellant lodged on or about 18 May 2009; Buildings 4 and 5 together as proposed in 2004 correspond with the remaining three storey components, now aggregated into a single building. The 2004 appeal also concerned conditions. It was resolved by a final order of 29 June 2005, which the court is told was made “by consent”. A development permit (now for Buildings 1-13, given the aggregation mentioned) formed part of a new approval. The currency (relevant) period for the approval now ran to 29 June 2009. The approved plans allowed four storeys for Buildings 1, 2 and 3 as sought in the original development application by Lend Lease.

The respondent Council’s letter of 21 April 2009 (loc cit Exhibit 9) advises Abacus Property Group of a 24 month extension of the “relevant period” to 29 June 2011, under IPA s 3.5.23, enclosing a “signed Infrastructure Agreement” for the present appellant. The decision so advised was preceded by a “delegated assessment and decision report” (loc cit Exhibit 8) which records assertions that market conditions necessitated the two year extension. There is a useful planning history:

“Application Number:	EXT08/0072	File Number:		MCU03/0209
Planning History	A number of approvals have been granted by the Queensland Government and by Council in respect of the Twin Waters Resort and North Shore Coastal Village since the 1980’s. Approvals include the provision of tourist accommodation and, more recently, permanent accommodation. Major approvals are as follows: 29 November 1989 (DA No. 2767) – Town Planning Permit for Sports and Recreation – Golf Course and Facilities (including clubhouse, gymnasium, tennis courts and swimming pools). 6 April 1993 (DA No. 3175) – Town Planning Permit for Sports and Recreation – Golf Course 21 January 2000 (DA No. M987348) – Development Permit for Material Change of Use for Temporary Caterer’s Room and Preliminary Approval for Operational Works for Landscaping (on Lot 8 RP836649) 19 October 2000 (DA No. MCU00/0029) – Development Permit for Material Change of Use for Unlimited Period of Occupation to the Accommodation in the North Shore Precincts on the Twin Waters Resort (on Lots 1 to 7 RP836650 and Lot 8 RP836649) Two Deeds of Agreement dated 18 December 1987 and 16 February 1988 also exist between Maroochy Shire Council and the resort developers 29 June 2005 (DA No. MCU03/0209) – Development Permit for Material Change of Use (Integrated Tourist Facility (Multiple Dwelling Units and Detached Houses)), Reconfiguration of a lot (Minor Urban Subdivision) & Operational Works (Excavation, Extraction and Filling) (Bulk Earthworks). This decision was made by the Planning and Environment Court and included a 4 year currency period. A request for two (2) year extension of the relevant period of this approval was lodged on 4 December 2008 and forms the subject of this report.
Land Access:	Ocean Dr TWIN WATERS QLD 4564
Property Number:	124481		Land Area:		17.93Ha
RP Description:	Lot 1 & 2 SP 210929
Existing Use of Land:	Twin Waters Resort
Strategic Designation:	Urban
Planning Area:	9 – North Shore
Planning Precinct:	16 – Twin Waters Resort
Precinct Class:	Master Planned Community
Special Management Areas	Nature Conservation Management Areas Waterways, Wetlands and Fish Habitat Areas Acid Sulfate Soils
Level of Assessment	Extension to Currency Period of Development Approval - Impact”

The assessment report revealed the following thinking:

“Council’s original Decision Notice issued a preliminary approval for these buildings with the requirement that their height be reduced to 3 storeys in accordance with the precinct intent before a full approval would be issued. However, the court ruling of 29 June 2005 on this application gave full approval to buildings 1-3 with a height of 4 storeys. As such, the court has interpreted that 4 storeys in this location is generally consistent with the requirements of Maroochy Plan 2000. As this element of the precinct intent has not changed since the 2005 court ruling, the proposal must still be considered to be consistent with the planning scheme with regard to building height.

As such, it is considered reasonable to grant an extension to the relevant period subject to the payment of the additional development contributions that were not applicable at the time of the original approval.”

On 31 August 2010 the appellant’s agent sought from the respondent an additional four years of “relevant period” under s 383 of the Sustainable Planning Act 2009 (SPA), now the relevant statutory power, to 29 June 2015, given “fluctuating property market conditions”. This time the delegated report of the respondent’s Planning Assessment Branch noted the rejection on 4 August 2010 of the appellant’s development application, the subject of this appeal, and the currency of the appeal; a sceptical approach was taken to the implications of the court’s order in the compromised 2004 appeal.

“Council’s original Decision Notice issued a preliminary approval for these buildings with the requirement that their height be reduced to 3 storeys in accordance with the precinct intent before a full approval would be issued. However, the court ruling of 29 June 2005 on this application gave full approval for buildings 1-3 with a height of 4 storeys. This court ruling was the result of a settlement between Council and the appellant, and therefore the matter was never debated in court. The previous extension to relevant period approval for this development was granted on the basis that the court ruling had determined that 4 storeys in this location was generally consistent with the requirements of the Maroochy Plan 2000. However, it has since come to light that the court made no such determination as the appeal was settled out of court.
The development is excessive in terms of density, visual bulk and mass and is considered out of context with the established character of surrounding development. The proposed buildings are in excess of the maximum height in storeys and metres stated for the Precinct and directly conflict with the intent for the precinct. Parts of the proposed buildings would be visible from North Shore beach above the existing tree line and represent an inappropriate visual transition from the natural environment to the built environment.
For these reasons, the proposal is not consistent with the current planning scheme and this forms one of the recommended reasons for refusal.”

Other reasons included the view taken of “the community’s current awareness of the development approval”, said to be made relevant by s 388(1)(b) of SPA (loc cit Exhibit 10A). It was considered that a huge volume of submissions (202) opposing the “similar built form outcome” of the 2009 development application the subject of this appeal made it “reasonable to expect that in accordance with s 388(1)(c)(i) of SPA, the community would exercise their further rights to make a submission if this request to extend … were refused and the same MCU application was submitted to Council.” The changes that occurred in the Twin Waters community over seven years were noted. That residential community is Precinct 17, which is four or five times the area of Precinct 16 and surrounds it. One of the residents is Ms Beck. There is concern that the Council’s entitlements to infrastructure charges may be prejudiced if the old approval were extended, rather than a new (impact assessable) development application being made, leading to an approval. Appeal 4006 of 2010 seeks to have the refusal of a four year extension reviewed by the court.

By letter of 29 June 2011, Abacus Funds Management Pty Ltd made a new request for a more modest extension of two years (loc cit Exhibit 13), this second application being justified on the basis that earlier legislation (Local Government (Planning and Environment) Act1990) expressly restricted re-submission of certain applications, whereas SPA does not. On 5 October 2011 the respondent advised the refusal of the request; the refusal is challenged in Appeal 4494 of 2011.

As well as the material change of use approval finally encapsulated in the court order of 29 June 2005, Lend Lease obtained from the Council an operational works approval of 17 March 2005 which has been implemented. Essentially, that allowed Lot 8 to be completely cleared of wetland vegetation which was part of larger wetland areas extending to the north and to the east, also the construction of a podium requiring substantial filling more or less to the boundaries. It has been convenient to refer to this approval and the approval constituted by the court’s order as the 2005 approvals. Regard must be had to the past planning decisions by virtue of s 3.5.5(2)(b) of IPA in the assessment regime that applies. The appellant says in its written submissions that “if past planning decisions are taken into account in this case, the futility of insisting that strict compliance be achieved with the statement of desired character for Precinct 16 becomes readily apparent. Furthermore, it is not difficult in this context to arrive at the conclusion there are sufficient grounds to warrant approval of the application before the court” (paragraph 14). The operational works approval, to the extent implemented, plainly precludes any insistence now that the natural wetland vegetation on the Site facing wetland areas outside it be retained: that vegetation is gone. It is drawing too long a bow to suggest that any requirement for separation or buffering of the remaining wetlands is likewise precluded. The 2005 MCU approval arguably has greater potency. It was current at the time the applicant’s development application was lodged on 18 May 2009, when the Council made its decision to refuse, and when this appeal was instituted. It was also current when the appellant’s requests for extensions were made, but immediately after the date of the last one, it lapsed. The Council’s position is that the appellant has no more than the prospect of the court granting some extension. The court must take cognizance of that prospect and should not assume that it will not come to fruition - which does not require the prospect to be treated as equivalent to a current, effective approval that can be implemented as of right.

On the other hand, it is untenable in my opinion for the appellant to suggest that the Council is bound to any proposition that anything it decided to do in 2004 or 2005 – or on 21 April 2009 when it extended the relevant period for two years – was a correct or appropriate decision. I can see no reason in principle why any Council is estopped or precluded from contending that a planning decision was inappropriate (except, of course, that it could never prevent implementation of any current approval) or should not be extended. See Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226; on appeal [2002] QCA 446 at [10] - [19]-[22]. The 2005 and 2009 approvals/decision cannot, in my opinion, be taken to establish anything about the meaning of the planning scheme. It is trite to observe that under our regime, the development proposals that are in conflict with planning schemes may be approved if sufficient grounds for disregarding the conflict have been established. I can see no reason in principle why a judgment (if one was made) that there were sufficient grounds in 2005 would indicate that there were sufficient grounds for a different development (albeit one with some similarities) years afterwards.

Something might be said about the appellant’s expectations. It came in as a buyer on the basis of the Resort being up and running and of approvals for expansion of it in 2005. The court accepts that the principals harboured expectations that it might be a straightforward exercise to obtain Council consent to a new development application proposing somewhat larger buildings in the same general locations, and containing more units (an additional 100 or so). The April 2009 decision may have given further encouragement. Even if it had been the case that Council officers had given indications that the appellant’s development application, calculated to produce the best return from its investment at Twin Waters, would be favourably entertained, that would not fetter the Council in its decision making when things came to the crunch: Russell v Brisbane City Council [1955] St R Qd 419.

In this connection, I reject any suggestion that the 2005 approvals, which may be seen as having been confirmed by the April 2009 decision, have the effect of moving the starting position, so to speak, so that no more need be justified in the current assessment than the respects in which the proposal exceeds what has previously been approved. In my opinion, while the past approvals are of statutory relevance, and to that extent are to be respected, the appellant’s new and different proposal should succeed or fail on its own merits, the starting point being no development on the site.

In my view, the Council is entitled to take whatever view of the current development application it considers appropriate. It may be mischevious to allow the Council to disavow the June 2005 approval on the basis its participation was somehow forced upon it. Any reluctance or private reservations the Council have would be irrelevant. The approval was effective and ran with the land. There is nothing, however, to preclude the Council’s now asserting that it made wrong decisions in 2005 and 2009.

The buildings now proposed

The four storey Buildings, 1, 2 and 3 are proposed to be 45.7m long and at a maximum building height of R.L.16.50m, on ground storey platforms at R.L.3.20m. Building 4 will reach R.L.15.60m on a ground storey platform at R.L.4m. The gaps between the buildings are minimal, and from most locations the four buildings will “read” as a single façade. Mr Simpson, an architect, has correctly identified many respects in which the façades of the buildings are articulated and variously textured to incorporate components of light and shade in an agglomeration which he expressed enthusiasm for. He says it introduces a new architectural typology to the Resort which already contains long linear buildings of two storeys with a less fine grained texture than the proposal. He finds the buildings “exciting”, and he says they offer a “crescendo” of increasing heights. The features appraises are not ones which the planning scheme provisions wants to see.

I accept Mr Robinson’s work analysising the bulk of the proposal as broadly correct. He compares the 2005 “extant” proposal with what he calls the appellant’s proposal. The increase in numbers of units apart, which sees a notional DUF (Dwelling unit factor) based on area of 9030m² reduced from 161.25m² to 57.15m², site cover (excluding the basement storey and pool terrace) increases from 3530m² to 5125m² (up 45.2%); if one includes the above ground elements, the increase is 4205m² to 6699m² (up 59.3%). Or – disregarding the pool terrace – 6391m² (up 51.95%). Site coverage based on 13795m² area increases from 25.6% (or 30.55% if the basement storey where it projects above adjoining ground is included) to 37.2% (or 48.6% in the appellant’s proposal); if 9030m² be adopted, site coverage of 39.1% (or 46.6%) goes up to 48.6% (or 74.2%). Plot ratio (using the smaller notional area exclusive of the impact of easements) goes from 0.91 to 1.67, in each case excluding balconies, as they cover less than 25% of the total floor area.

I accept these workings as broadly correct, even if it should prove that there is some imprecision. (Working out the setbacks at the sensitive wetland interfaces has not been easy, partly because of articulation of the façades which feature various projections. Typically, they are around 2 metres, in some places closer to 1 metre.) The consequence is that the appellant’s proposal must be assessed as so much bigger and more intensive than the “extant” proposal that the approval of the earlier one provides no useful argument for approving the new one. The work recognised in the above paragraphs shows the proposal the court considers is big, but does not demonstrate conflict with the planning scheme which is silent about matters such as site cover, plot ratio or DUF in Precinct 16. Unlike some schemes, it is silent as to whether site area includes restricted zones such as easements. It would be wrong to infer against an owner or developer that they must be excluded. No process of calculation of some ratio is available to embarrass the proposal. It may nevertheless be that on qualitative analysis reference to useable area or Mr Robinson’s “net area” shows undesirable features by way of too much being crammed onto the net area or of the proposal’s inability to provide facilities that could reasonably be expected to be found there for users of the Site.

Planning scheme provisions

The appellant’s development application is to be assessed having regard to matters specified in s 3.5.5 of IPA and decided in accordance with ss 3.5.11 and 3.5.14. SPA s 819(4) enacts that the relevant regime is that of IPA notwithstanding that the appeal was instituted after the introduction of SPA. Given that the development application was lodged earlier, by s 3.5.14, the decision must not compromise achievement of a Desired Environmental Outcome (DEO) or (unless there are sufficient grounds) conflict with the planning scheme. Relevant DEOs are:

“2.2 Environmental Management
(1) Desired Environmental Outcome No. 1
The Shire’s unique natural, open space, climatic, rural and scenic attributes are protected to maintain biodiversity, ecological processes, and visually attractive and varied landscapes and managed so as to provide a sustainable focus and setting for the Shire’s community and economic development. This includes:
…
·prominent natural landscape elements such as escarpments, ridgelines, beaches, headlands and mountain peaks, which serve as distinctive visual landmarks within the Shire, being protected.

…
·premises which are sensitively sited and designed having regard to local climatic conditions, vegetation cover and topography.

(2)Strategic Implementation Measures

…
(c)appropriately manage environmental and visual impacts of new development on beaches and other coastal landforms and values and ensure new development in these areas complies with the Regional Coastal Management Plan;
(d)limit uses in rural, scenic and natural areas to low intensity, generally non-urban, activities to be consistent with the environmental capacities of such areas;

…
2.7Urban Design, Heritage and Character
(1)Desired Environmental Outcome No. 6
A high quality, built environment characterised by premises which:

· are consistent with desired local character which reflects the Shire’s diverse range of subtropical coastal, mountain and rural settlements;
...
· respect the natural environmental characteristics and capacities of the locality in which they are situated.
(2)Strategic Implementation Measures

…
(a)ensure that individual development, landscaping and signage complement and strengthen the key elements of character reflected in the intent statements for the Planning Areas and Precincts;

…
(f)provision of effective buffering by new development to areas of incompatible land use and environmental sensitivity; …”

It appeared to be common ground that “local desired character” was that indicated by the relevant Precinct Intent. It is not contended that the above are compromised by the development, unsurprisingly, as the authorities indicate that a Shire-wide perspective is to be adopted. However, the provisions may be a basis for identifying a conflict with the planning scheme.

The Strategic Plan contains a strategy that comes under consideration because the Council contends that the character and amenity of Twin Waters Resort would be deleteriously affected:

“8.4.5 To Ensure that Development Proposed for Land Adjacent to a Major Tourist Facility is Unlikely to Detract from that Facility

Tourist facilities are generally reliant upon their inherent character and attractiveness. To this end, development which is contrary to the character displayed by a tourist facility area or is likely to be deleterious to the attractiveness of a tourist facility or tourist areas should be discouraged from locating adjacent to such facilities or areas. …”

At the same time, the future of Major Tourist facilities (including Twin Waters Resort) is to be looked after:

“8.4.6 To Support the Strengthening of the Major Tourist Facilities as Needed to Cater for the Tourism Market

The Major Tourist Facilities have a high capital outlay and have developed a high profile in the tourism market place. The attractiveness of the facility to the tourist will dwindle if it offers no new incentives to encourage a revisit by previous patrons. To maintain its attractiveness to tourists the facility needs to undergo change to continually strengthen its place in the market and this should be recognised in the planning system.
Implementation
1.Council will generally support applications for the upgrading of or modifications to the Major Tourist Facilities subject to their retention of sensitivity to surrounding land uses and the adequate functioning of the facility in respect of environmental and land use planning issues. …”

Provisions specific to the location of the appellant’s Site are found under the heading “3.9 Planning Area No 9-North Shore”:

“3.9.1 Location and Role

…
The role of the area is to provide for residential communities, the significant tourist resorts of Twin Waters and Surfair, and the regional Sunshine Coast Airport.
3.9.2Vision Statement
(1)It is intended that:
The natural environmental qualities of the North Shore, being the foreshores of the Maroochy River, beachfronts and the wallum heathland plains will be retained to preserve the environmental qualities of the locality and to provide a natural setting for residential and tourist development occurring within the Planning Area.
…

(2) This means that:
(a)the significant environmental qualities of the area, including the … wetlands, … will be retained; …”

Proximity to the airport was advanced as a reason for allowing more intensive development on the Site because of enhanced tourist potential on that account. This is a minor supporting consideration in my view. Visitors arriving by air will require road transport to their chosen destinations (and would travel by vehicle to access the Resort), so that distance will not be likely to be a determinative factor in many situations.

Statements of Desired Character for particular Precincts in North Shore follow. Twin Waters Residential is Precinct 15; it is in the Master Planned Community Class. A continuing “village character” for residential communities is desired. Twin Waters Resort, Precinct 16, also in the Master Planned Community Class, is expected to realise the following Intent:

“This Precinct comprises the site of the Twin Waters resort. The resort is an important tourist facility for the Shire. The resort’s continued use is intended to be in accordance with past development approvals. Future approvals may provide for further development. Such development is intended to be carried out to be sustainable by respecting the environmental and landscape values of the area and ensuring the availability of development infrastructure with sufficient capacity to accommodate any additional demand.
It is intended that the building height throughout the Precinct be confined to 2 storeys (but not more than 8.5 metres), however, some taller buildings – to a maximum height of 3 storeys (but not more than 12 metres), may be permitted surrounding the lake. In addition it is intended that the existing landscape character of the resort is maintained - that is small clusters of buildings set in extensive parklands and naturally vegetated areas.

The Precinct is in close proximity to the Sunshine Coast Airport and may be subject to aircraft noise. However future planning for the Airport indicates that these noise levels will not be in excess of limits suitable for residential development.
Preferred and Acceptable Uses
Preferred uses within this Precinct are those referred to in the Table of Development Assessment (refer Vol 1) for the Master Planned Communities Precinct Class.
Council will also consider the expansion of the existing Integrated resort, where development has due regard to environmental and values of the Precinct.”

The Table of Development referred to was tendered. Nothing in it assists the appellant’s proposal.

Precinct 16 is surrounded by Precinct 17:

“(17) North Shore Waterfront and Islands
Environmental Area
(Precinct Class = Special Purpose)

Intent
The Precinct generally comprises land with frontage to the ocean and he Maroochy River including adjoining land of ecological and recreational significance. The Precinct includes:
·     the Maroochy Conservation Park (including Goat, Channel and Mudjimba Islands);
·     Chambers Island;
·     beachfront land along Mudjimba and Marcoola Beaches; and
·     the Apex Youth Camp and surrounding land.
This Precinct includes significant coastal and riverine vegetation communities, as well as coastal heathlands and small areas of littoral vine forest growing as low thickets as part of beach vegetation communities. Also contained within this Precinct are ecologically significant areas of mangrove and riparian vegetation along the Maroochy River estuary.
The Precinct should be managed to:
·     provide for the permanent preservation of the area’s natural condition and the protection of the area’s natural resources and values;
·     showcases the Precincts natural resources and their environmental values;
·     provides for nature-based and ecologically sustainable uses; and
·     retains important vegetation linkages throughout and beyond the planning area.

Much of this Precinct is included in a Coastal Management Control District (Area Prone to Coastal Erosion) and is subject to the Coastal Protection and Management Act and any Regional Coastal Management Plan. Consistent with these provisions, no new permanent structures or other built elements which may impede natural coastal or estuarine processes or significantly restrict views of the beach and ocean are intended in the Precinct.
The Precinct includes land which is part of or adjacent to a declared Fish Habitat Area. Fish Habitat Areas are declared by the State government as critical for fish breeding and feeding. It is important that the sustainability and values of the Fish Habitat Area be retained.
It is intended that most forms of development or activities which result in negative impacts upon existing remnant vegetation will be excluded from this Precinct.
…
The following measures are considered an appropriate means of achieving effective ecological control of the Precinct:
· prevent vehicular access to areas of ecological significance
…
Any new development should also frame or enhance view and vistas, or at least not intrude upon them.”

Precinct 15 (to the west) is separated from Precinct 16 by Precinct 17, which contains all of the land east of North Shore Drive and all the land north and west of Ocean Drive. It is my view that when a proposed development in Precinct 16 is considered, the Intent for Precinct 17 should not be forgotten. (Compare (f) in the definition of “environmentally sensitive area” set out below.) The part of Precinct 17 of concern is the dunes along the beach across North Shore Drive from the Site.

Next, the relevant Codes must be noted:

“2.1 Environmental Management Codes
2.1.1Code for Nature Conservation and Biodiversity

PURPOSE
The purpose of this code is to ensure that development in and adjacent to environmentally sensitive areas:
(a)conserves and enhances the Shire’s nature conservation and biodiversity values;
(b)maintains and enhances ecological processes;

…

PERFORMANCE CRITERIA ACCEPTABLE MEASURES

P7.       Separation and buffering between development and adjacent environmentally sensitive areas (whether on the site or adjacent land) ensures environmentally sensitive areas are protected from potential adverse impacts on biodiversity values.
For land in the protected estate:

A7.1

(a)     All buildings, structures and operational works are setback a minimum of 100m from the nearest boundary of land in the protected estate;[2] and

(b)   Native vegetation in the buffer is to be retained or enhanced.

OR

For other environmentally sensitive areas not in the protected estate:

No Acceptance Measure is nominated.”

[2]The “protected estate” is defined in Volume 1 of the Planning Scheme: “Protected estate” means … as well as any area protected under other State legislation primarily for its conservation significance and any Council owned or managed area of conservation or bushland park managed primarily for its conservation significance.
…
2.12      Code for Waterways and Wetlands
PURPOSE
The purpose of this code is to provide for the protection and enhancement of the ecological values and processes, environmental values (as defined in Volume 1 or declared under an environmental protection policy or regulation pursuant to the Environmental Protection Act 1994) and functions of waterways, wetlands and fish habitat areas, by protecting and managing water quality, hydrological regimes, stream integrity and biodiversity.
[3]A rehabilitation plan may be required to demonstrate the ability to comply with this measure or as a condition of approval. Planning Scheme Policy No. 3 outlines the appropriate measures to be taken for rehabilitation.

PERFORMANCE CRITERIA ACCEPTABLE MEASURES

P1.       A buffer is maintained protect and enhance the environmental values and ecosystem services of waterways, wetlands and fish habitat areas having regard to:

•     fauna habitats;

•     adjacent land use impacts;

•     stream integrity;

•     sustainable aquatic and wetland ecosystems; and

•     recreational amenity.

A1.1     width of buffer vegetation is provided of at least:

(a.) 100m around the perimeter of a Significant Coastal Wetland shown on Figure 4-2.1.2(b); and

(b)   50m around the perimeter of a Local Wetland shows on Figure 4-21.2(b)

AND
…

AND

A1.3     All existing native vegetation within the buffer established under A1.1 or A1.2 is retained and, is supplemented using locally indigenous plant species so that a locally representative community is provided.[3]
AND
A1.4     Buildings, structures and on-site infrastructure are located outside the vegetated buffer areas provided in accordance with A1.1-A1.3.

P2        The hydrologic regime of wetland areas is maintained or enhanced to protect its natural integrity. A2.1     The existing hydrologic regime of surface and ground waters to and from a wetland is not altered through channelization, redirection or interruption of flows, other than where necessary for the natural enhancement of the wetland.
AND
A2.2     No interference or modification of channels within a wetland occurs, other than where necessary for the natural enhancement of the wetland.

P5        Buildings, structures, outdoor activity areas and on-site infrastructure are sited and designed so that they do not detract from the visual quality of waterways and wetlands and the adjacent vegetated buffers. No Acceptable Measure is nominated”

Planning scheme definitions to be noted include those of “dwelling unit” and “dwelling unit factor” (DUF)[4] and:
[4]“ ‘Dwelling unit’ means habitable rooms and other spaces used or intended for use as one self-contained residential unit, comprising at least bathroom, toilet and kitchen facilities, as well as other living and sleeping space to accommodate one or more persons;
‘Dwelling unit factor’ (DUF) means the hypothetical maximum number of dwelling units that is considered desirable to be developed on a site. The DUF is calculated by dividing the area of the site (in square metres) by the applicable site area (in square metres) per dwelling unit specified for the Precinct in which the site is located.
To determine the unit (or bed) yield, the DUF is multiplied by:
·     0.8 for each dwelling unit with three or more bedrooms;
·     1.0 for each two-bedroom dwelling unit;
·     1.3 for each dwelling unit having one bedroom or less;
·     2.0 for each rooming unit; and
·     4.0 for each nursing or dormitory bed; …”

“‘Environmentally sensitive areas’ means:
(a)land within the Special Management Area for nature conservation shown on Regulatory Map No. 1.1; or

…
(f)any land which adjoins an area of conservation or biodiversity significance that is identified in the Planning Scheme of another local government.”

Planning

The appellant concedes that on what it calls “a bare comparison” of the proposed development and the Intent for Precinct 16, there is conflict with that Intent in relation to height, and the preference for taller buildings to be located “surrounding the lake”. This is asserted to be conflict “at the lower end of the spectrum”. The basis for this prima facie surprising contention regarding a proposal for three large buildings of four storeys and one of three in a line as remote from the lake as could be on the margins of the Precinct in the face of a general two storey limit, is that the Council or its predecessor has established new ground rules by the 2005 approvals for the Site and also by approving buildings in excess of two storeys in North Shore Coastal Village, typically two storeys with a “pop-up” third storey, and in one instance, three storeys with a “pop-up” fourth. It is not necessary to embark on the exercise of attempting to attach a fixed meaning to “surrounding the lake” or “small clusters of buildings” which the appellant says invites a “small” cluster of large buildings (here “only four”), the Council says it envisages clusters of small buildings. On accepted principles of interpretation in the court, the tenable meaning most favourable to the developer/owner should be embraced. That “the Intent for the Precinct has been departed from” in constructed development in the Village does not, in my opinion, change the meaning of the planning scheme, or show that the planning scheme has been overtaken by events, or justify taking particular approvals as precedents that ought to be replicated or “followed” with even greater exceedences of planning scheme caps.

The appellant’s case avowedly “relies heavily on the 2005 development approvals”, and lambasts the Council’s refusal to acknowledge their relevance or significance. In essence, the predecessor Council approved four three storey buildings in the locations, and in the forms now proposed with similar, but smaller footprints, and joined in asking the court to resolve Lend Lease’s developer appeal by an order allowing three of the buildings to be of four storeys. There was confirmation of the foregoing by the 2005 operational works approval and by the Council’s decision to extend the currency (“relevant”) period for the material change of use approval. It was contended that suggestions that the Council acted under “duress” or the like should be accorded no weight. Certain it is that the 2005 approvals could not be challenged on any such ground if a developer chose to implement them. Any secret reservations the Council may have harboured cannot be relevant. However, I am not persuaded that, otherwise, the Council is irrevocably committed to accept the 2005 approvals as embodying appropriate planning arrangements that must be honoured in any future context. The appellant’s argument is that the 2005 approvals set the benchmarks for development of the Site, so that future proposals are to be assessed on the basis that what really matters is the extent to which they depart from what was approved in 2005. My view is that this approach is unsound, that future proposals are to be compared with a starting point of no development: Law v Beaudesert Shire Council [2000] QPEC 090. The court must be careful not to express, in this appeal, views about the appropriateness or continuing appropriateness of the 2005 MCU approval because appeals are pending against the Council’s refusals to extend the currency (“relevant”) period to permit implementation and overcome lapsing through effluxation of time.

Assuming the 2005 MCU approval to be a good and persisting one, and assuming (contrary to my view) that it represents a starting point with the consequence that the appellant need justify no more than the changes involved in the present proposal, the appellant’s task remains an uphill one in which it fails in the end. I agree with the Council that its compromise of the completed appeal 3836 of 2004 does not, and never did, amount to an acceptance that the 2005 approved development did not conflict with the planning scheme.

The Council contends that the lapsing of the 2005 approval leaves the appellant with no approval it can act upon, limiting its rights to its prospects in the appeals mentioned above. Presumably, the consequence would be that there is no point under s 3.5.5(2) of IPA (now s 314(3) of SPA) in taking note of that approval. The prudent course is to apply the section, cognisant that the circumstances are ones where the probabilities are that the 2005 approval will not come to anything on the ground. As indicated, I cannot proceed on the basis that the issue is whether the appellant should have approval for a variation by way of expansion of that 2005 approval. The expansion is of such an order that in my view it would not qualify as a minor change or permissible change involving a substantially different development of the kind that the court is frequently asked to endorse. It is enough to record that the footprint of the current proposal, ie the footprint that sticks out of the ground, is of the order of some 74% greater than its predecessor, and that the number of accommodation units is 158 rather than 56. The units no longer stretch from one side of their building to the other (facilitating cross-ventilation), but run off a long central corridor: half of them would have no view of the wetlands to the north or east, rather would look over the Resort carpark. The changes exacerbate the proposal’s inability to provide on the Site setbacks, landscaping and space for occupants to enjoy or recreate in.

The court is left with serious reservations about the quality as accommodation for residents of or visitors staying in the 158 units of what the proposal offers. On-site they will have no more “space” than their own units and carparks, a shared swimming pool and access to them, which would appear to be rather substandard accommodation, even if a benchmark of 30% open space that can be found for certain purposes in the planning scheme happens to be met. The problem is that the building setbacks in the north and east (adjacent to the wetlands) are miniscule, leaving no useful space, and that the entire western/southern boundary is occupied by a road which provides access secured by easement to the Resort and North Shore Village, and in the future, Lot 1, presumably. At one point, Easement Y accounts for the entire width of the Site, cutting off a portion in the southern end in such a way as to deprive that portion of any relevant utility. The road is busy enough already (and the proposal would exacerbate this) and represent a safety hazard for pedestrians using it to move about, pedestrians who will have no alternative; children should not be allowed to play there. (These comments do not imply that the easement area, which also includes easements for services crossing the Site from North Shore Drive and then leading south or west are excluded for purposes such as Site coverage – given that the planning scheme is silent as to their inclusion or exclusion.)

The proposal is that occupants of the new buildings will have access to Twin Waters Resort and its impressive facilities. At the end of the appeal hearing, a document was tendered setting out arrangements the appellant would accept. This provided little assurance; one way or another, occupants of the Site would have to pay for the privileges to be made available, presumably at rates subject to change; there is no indication of what happens if agreement cannot be reached; if everything is worked out on a collective basis, with a body corporate representing Lot 2, it may well turn out that the view prevailing in the body corporate (as opposed to that of some members) is that the benefits of “free” access to the Resort are not worth the asking price, or are not wanted at all. It cannot be expected that the Resort interests would be prepared to tie their hands forever, or for any lengthy period, by granting easements to allow access to the lake, swimming pool and reception and commercial areas. Lot 2 and the Resort may be under common ownership and/or control for the moment, but that situation will not continue. They will be going separate ways if Lot 2 goes into multiple ownership in the way that disposal of units to independent buyers will lead to. Creative thinking may produce solutions that leave the Resort with flexibility as to its future use and development, and assure the denizens of Lot 2 of continuing enjoyment of facilities including useable open space that one would ordinarily expect to find provided in Lot 2 on a “as is” basis or by way of facilities at least equivalent. The appellant has not come to grips with this issue, one that was ventilated during the appeal to an extent by the court, which would not wish to approve anything like substandard, cramped accommodation in this salubrious location. Illustrative of the concern is the pokey nature of balconies illustrated in the drawings with tables and chairs shown. Scaling exercises indicate that the balconies are only “400mm to 1.5m to 2.5m” (T5-4), they are impractical locations for al fresco dining or the like.

I think that the same issue is raised by the Council’s broad argument that the proposal represents “overdevelopment”, that this is a case of a developer trying to squeeze as much as it possibly can on to a difficult site suffering several serious constraints, leaving no room for niceties such as on-site landscaping. It was effectively conceded that the proposal was based on identifying the maximum basement vehicle parking that could possibly be achieved on Lot 2 and then constructing as many accommodation units above as can be provided with parking.

Overdevelopment, meaning development to excess, is not a concept found in relevant legislation or in planning schemes, but has been referred to as a convenient way of condemning certain development proposals. The yardstick is, presumably and often expressly, whatever level of development the applicable planning arrangements invite. Thus the reasons of Davies JA and Mullins J in Stradbroke Management Organisation Inc v Redland Shire Council [2002] QCA 277 refer to “gross overdevelopment in terms of the DCP” (at [96]) and “gross overdevelopment of the site by the proposal compared to one which complied with development standards” (at [107]). The proposal there under consideration concededly failed to meet standards for vegetation retention, building height, building length and boundary clearances: [71]; the Court of Appeal identified failure to comply with site coverage standards as well.

The submitter appellants in des Forges v Brisbane City Council [2001] QPEC 061 complained of “overdevelopment”: [7]. Judge Brabazon found that separation distances and boundary clearances were insufficient, height and numbers of storeys excessive in expressing his concern in terms of “intensity” of development at [208], and agreeing with the appellant’s planner that the proposal “pushes the envelope too far”: [213]. His Honour agreed with the objectors in Herbert v Brisbane City Council [2004] QPEC 017 that a proposal was “overdevelopment”: [2], [114] - which “simply tries to put too large a building into a relatively small space”.

Similarly, Senior Judge Skoien in Bunnings Building Supplies Pty Ltd v Redland Shire Council [2003] QPEC 024, considering issues described as Planning Documents, Need, Overdevelopment, Traffic and Amenity ([22]) found that the proposal would be an overdevelopment of the site: [60], [68]. That conclusion was reached against a Strategic Plan provision that where a Centre adjoined existing or future residential development, “height, bulk, orientation and design of development [etc] … will be required to provide for the reasonable protection of the amenity of the adjoining residential development”: [26], [32] ff.

“Overdevelopment” was recognised as a basis for existing and potential objections in Rankeilor Developments Pty Ltd v Brisbane City Council [2010] QPEC 134 at p 4. It is a feature of the submissions lodged opposing this application (202, of which 192 were quite properly made).

Wetlands

The north-western, north-eastern and eastern boundaries of the Site abut designated wetlands. They are mapped as Significant Coastal Wetlands in the planning scheme (Figure 4.2.1.2(b), Exhibit 4B),[5] and are required to be protected under various provisions including Codes for Waterways and Wetlands and for Nature Conservation and Biodiversity. Among the Scheme’s desired environmental outcomes, DEO6 requires that “premises … respect the natural environmental characteristics … of the locality” and sets out strategic implementation measures which require complementing and strengthening key elements of character reflected in Intent Statements ((2)(a))” and provision of effective buffering by new development to areas of “environmental sensitivity”: (2)(f). Moreover, the wetlands in whole or in part have State significance, recognised in the Southeast Queensland Regional Coastal Management Plan, specifically Policies in s 2.4 Water quality and 2.8 Conserving nature. See maps 8 (Natural Resources), 9 (Coastal Wetland) and 10A (Coastal Biodiversity Significance). The first one requires development within 100m to be compatible with protecting (etc) the wetland values; generally there is required “appropriate” buffering. The appeal was argued by reference to the planning scheme provisions.
[5]It is difficult to tell from the mapping provided whether what is called Wetland 3 is a Significant Coastal Wetland (coloured green) or a Local Wetland (coloured light blue).

The Council provided as Exhibit 17 a summary of its reasons for refusal of the development application, a revised version of which became Exhibit 17A. It raises an important issue in complaining that “the proposal will result in unacceptable or unknown impacts on remnant vegetation and fauna in a significant coastal wetland both on the subject site and in the adjacent Council land and the beach.” That is a particular of a general complaint of “gross over-development of the site in regard to the nature of the site, its location adjacent to sensitive and valuable wetlands, the town planning scheme [etc]”; there is a related particular of “minimal (or potentially no) setback from the northern and eastern boundaries.” It seems obvious that having some dozens of apartment balconies so close and overlooking them implies a good deal of risk to the wetlands.

The relevant wetlands lie immediately across those boundaries. There is in addition an artificial wetland being the very large lake which is a focus of the Twin Waters Resort and the North Shore Coastal Village. The wetland hydrology experts, Messrs Bristow and Sutherland, were concerned with the impacts of development on that lake or “lagoon” (mapped as a “referable wetland trigger” by the Department of Environment and Resource Management) as well as impacts on the natural wetlands to the north and east of the Site; they are dominated by Melaleuca Quinquenervia forests which are considered from a wetland ecology perspective by Mr Chenoweth and Ms Conacher. Mr Chenoweth’s brief also extended to “visual amenity” and to vegetation, in which Dr Hassall was his opposite number.

The experts’ brief extended to “Wetland 1”, a large area of more than 85ha, which does not abut the Site, lying as it does north of Ocean Drive. Although the hydrologists could not confidently agree, given limited information, it is probable that Wetland 1 is connected to the others about to be mentioned (they were said to share the same water level). Wetland 2 (3.2ha) is immediately south of Ocean Drive, west of North Shore Drive; 2(a) abuts what might be called the northern and western boundary of the Site, 2(b) the north-eastern boundary, which Buildings 1 and 2 face. Aerial photographs suggest there is a narrow partly cleared strip providing a separation. Wetland 3 abuts the Site’s eastern boundary close to Buildings 3 and 4. In quality and quantity it is markedly inferior to the others. The hydrologists referred to it as a “drainage depression” rather than a wetland, but its being mapped as a wetland cannot be gainsaid. Its area is .33ha and it is very narrow. Wetland 2’s width varies from 90m to 190m. The Wetland 3 trees are stunted compared with those further north. Wetland 3 is separated from Wetland 2 by a cleared area with a hard surface which allows the Council access to a substation providing services to the Resort and possibly North Shire Coastal Village also; it is located opposite the Surf Reserve. Further south, beyond Wetland 3, is a larger cleared area where a sealed carpark has been constructed, separating a continuation of the wetland to the south along North Shore Drive, also narrow, but rather greater in extent than Wetland 3. No development is proposed adjacent to this area. The gate giving access to the sealed parking area is presently locked. Piping underneath the carpark may connect to Wetland 3 which was confirmed to be connected by piping under the Council’s service area to Wetland 2. There was speculation as to what the future holds for Wetland 3. The Council may well come under pressure to provide parking for users of the popular surfing beach opposite and the popular recreation area at the river mouth at the end of North Shore Drive. While considerations of safety may dictate providing new parking on the eastern, dunal side, one would expect that its superior ecological/environmental qualities will count against Wetland 3. Its fate is significant, because the proposal depends on the vegetation there for screening of Buildings 3 and 4 from users of North Shore Drive and the beach, no screening being proposed or possible in that location on the Site itself. A clear view of Building 4 will be available across the carpark. The court proceeds on the basis that for the immediate future, Wetland 3 will offer visual screening, but there is no guarantee this situation will persist, as screening ought to do, if planning approvals required on-site screening to be provided by the developer.

It is a feature of the respondent Council’s area that in many locations, among which Ocean Drive and North Shore Drive must be numbered, the visual impacts of developments are tempered by reliance on screening by vegetation, “natural” in appearance, to prevent built forms from intruding on the notice of users of the area in a dominating way. In such areas, development may occur but should not flaunt itself. See generally DEO1 and the Strategic Implementation Measures (2.2(1), (2)) and what DEO6 says about new built premises. At planning area level in North Shore (3.9.2) the environmental qualities of beachfronts are to be retained “to preserve the environmental qualities of the area and provide a natural setting”. Those qualities of the “wetlands, beach dunal system and adjacent foreshore areas” are to be retained.

Development in Precinct 16 should be “respecting the environmental and landscape values of the area”. Buildings will be visible across the closed carpark, as noted. The vegetation, healthy at the present time, may thin out if tough conditions emerge. The break in vegetation at the Council service area, a diamond shape, half of which excises ground where the Site’s north-eastern and eastern boundaries would otherwise intersect, will permit views of buildings beyond. The screening provided by the narrow stand of trees in the cleared wetland area adjoining will be inadequate to preclude vistas of buildings beyond, very likely more inadequate at understorey level, even if less would be visible than in Mr Elliott’s photo montages with the screening vegetation shown “transparent”. The architects jointly describe North Shore Drive, which runs north-south, immediately east of the Site as “a significant scenic drive that is vegetated on both sides of the road all the way to Mudjimba before it reaches a more urban environment.” The proposal will impair that situation. The upper levels of the Buildings will be visible above the tree line from many vantage points, especially the dunes on the eastern side of North Shore Drive, creating a clear impression of the loftiness and bulk of the structures at odds with the character intended for the Precinct of a two storey maximum, except for the potential for three storeys “surrounding of the lake”.

Turning the focus to the integrity and health of the wetlands, while the hydrologists estimate any changes as likely to fall within 5% and agree that an approval of the project could be appropriately conditioned, the ecologists’ views differ. Mr Chenoweth believes that a “hard edge”, particularly one where the development occurs on a raised platform, as on the Site, can secure a healthy wetland. Of the examples instanced, the court was shown one example at a nearby shopping centre which appeared to confirm that view. However, Ms Conacher’s response, supported by photographs taken by her, indicates that it would be unsafe for the court to adopt the hard edge (rather than a setback or buffer) approach. The wetlands of concern in the appeal (2 and 3) have suffered weed incursion from North Shore Drive and (notwithstanding the platform already constructed) from the Site. It might be noted that the existing platform would have to be removed to accommodate the project and its basement parking. A replacement hard edge overtopped by the windows and the balconies of up to 80 apartments only a couple of metres back will replace what is there at present.

The planning scheme Codes, consistent with the State level policies, require separation and buffering (2.1.1 Code for Major Conservation and Biodiversity P7) and the acceptable solution in terms of a 100m setback for buildings. 2.1.2 Code for Waterways and Wetlands in P1 requires maintenance of a buffer to protect and enhance the environmental values of wetlands, the acceptable measure contemplating vegetation at least 100m wide around the permitter of a Significant Coastal Wetland, 50m around the perimeter of a Local Wetland. Mr Chenoweth says that the performance criteria can be achieved by a nil or miniscule setback. Dr Hassall does not suggest that 100m is required, or even a third of that in present circumstances. He recommends designing “a buffer that will carry out the functions that are required of the buffer, things like physical protection of the ecological values, looking after the nutrients, those kinds of things” (T4-51). He would require “a properly designed buffer of 10 – 20m”. Given that the Site is completely cleared (subject to the possibility of a few trees still on the Site being lost) and that there is no prospect of revegetating the buffer as a wetland area, it would be necessary to identify other suitable native species to plant. I accept Dr Hassall’s approach.

This conclusion in combination with the other features such as the likely visual impact of the proposal (especially off the Site), the proposal’s failure to provide any screening or other buffer on-site, and serious concerns about the quality of housing accommodation and recreation and the proposal offers means that there are insufficient grounds to approve the proposal, to overcome the conflict with the planning scheme as it applies in the Precinct. See IPA s 3.5.14. cf SPA s 326.

Visual impacts

The visual impacts of the proposal, referred to in various places elsewhere in these reasons, are all adverse, in my opinion, and will be more so if the authorities do not preserve what remains of Wetland 3. Visual amenity impacts on their own ought not to defeat the proposal, but in combination with other matters, make rejection appropriate. There was particular discussion about visual impacts within Twin Waters Resort, where the visual impacts will be at their greatest. It is from within the Resort that the impression of a single line of mostly four storey buildings nearly 200m long will be gained. It will not be possible to enter or leave the Resort without noticing the buildings, which would be bulkier than anything there at present. My inclination is to agree with Mr Simpson that the buildings and the use that will be made of them serve to enliven the Resort, making it more interesting by introducing forms different from those currently found in the Resort and in the North Shore Coastal Village, an interesting constructed backdrop from many perspectives. Another consideration that strikes me is that some respect should be paid to the appellant’s judgment as the proprietor of the Resort. Its judgment as to whether the proposal would make the Resort less attractive to potential patrons seems to me deserving of recognition.

Construction phase

As to whether construction could be achieved without impinging on Wetlands 2 and 3, there was difference of opinion between the architects. Mr Simpson expressed confidence at page 55 of the Transcript for Day 3:

“I’m not familiar, of course, with the detail, but I would be – I would expect that sheet piling would be inserted around the perimeter and then excavation as necessary would proceed, and then a basement structural wall would be built and the building would then proceed above that.
And what about the use of scaffolding in that location above during the construction of perhaps the other levels of the building. Would that need to protrude or intrude, as it were, into the wetland area? – I don’t believe so. In fact, I know so, that that is – I mean, there are methodologies now in constrained and special locations where scaffolding can be supported on the outside of the building as it rises.”

Mr Robinson thought that the techniques for inner-city building alluded to would not be used at Twin Waters and that construction could not occur without intrusion on the wetlands, or at least damage to the canopy and roots of the vegetation. Ms Conacher had similar concerns. It is unnecessary for the court to form a view on this aspect, but the risk the Council experts point to might be noted.

Concern for the protection of the wetlands vegetation, ecology, and hydrology is particularly acute in respect of the construction phase in the view of Ms Conacher and Mr Robinson, the architect called by the respondent. The platform/podium constructed pursuant to the 2005 approvals will be removed to permit construction of the “basement carparks”, one beneath (and having a greater footprint than Buildings 1 and 2, the other beneath (and having a greater footprint than) Buildings 3 and 4. These experts identified threats to the wetlands (Wetland 3 particularly) from shadowing by the upper levels of the Buildings and from water being drawn away from them if the basements are “wet”, rather than dry basements, which are more expensive.

Conflict with the planning scheme not overcome

There is conflict with the Precinct Intent which imposes a two storey (8.5m height) limit, subject only to three storeys (12m) potentially being permitted “surrounding the lake”. The proposal has three four storey buildings and one three storey one remote from the lake. For what it is worth the Maroochy Shire Council in the past felt no difficulty about the “surrounding the lake” requirement.

Independently, there is conflict with the express intention that the existing landscape character of the Resort is maintained. The proposal will leave Lot 2 almost entirely built over, or sealed for roadways. That character is identified as “small clusters of buildings set in extensive parklands and naturally vegetated areas”; such features are provided entirely off-site, not on the site at all. The planning scheme presumably was setting out to describe the character of the existing Twin Waters Resort. The clusters consist of quadrangles whose barrack-like two storey wings meet at hubs where the points of external corners of the quadrangles link. There is a line of three quadrangles along the western side of the lake south of the large central facilities building, and a line of two quadrangles to the east, fronting the lake. The quadrangles have larger or smaller open areas opposite and away from the lake. The eastern-most wing forms the top of a “T” with its neighbour, and in consequence, a full “quadrangle” to the north and a half one to the south. The Resort grounds are lushly vegetated. What I have called quadrangles are similarly vegetated: from within the prospect is of rainforest or similar, not of other accommodation buildings.

The Resort contains other buildings such as a function centre in the west and others built over the lake (a large circular “pier” that has been a restaurant and a number of smaller ones each containing four of the Resort’s most luxurious accommodation units). The requirement of smallness must be taken to apply to clusters rather than to individual buildings constituting clusters. There is room for argument whether the line of four large buildings proposed here which the respondent characterises as “nearly 200m long” constitutes a “cluster” small or otherwise, whether there is an analogy with the concept of a cluster of pearls, as opposed to a string of pearls. What I think is clear is that this collection of buildings (unlike the Resort’s accommodation buildings) are not set in parklands or vegetated areas. The sole respect in which they can pretend to qualify is in the proximity of the external faces of the buildings to wetlands off the Site. This cannot be characterised as the buildings “set in wetlands”. The “internal” faces are set in their own pool area and the roadway (easement) behind. Beyond that, off the Site is the Resort carpark and the nearer accommodation buildings, against which there is along the “rear” façades, a thin fringe of low vegetation. In my opinion, the parkland and naturally vegetated areas are envisaged as provided within a development site (consistently with the ordinary expectation that wherever visual screening or buffering is required to mitigate the impacts of development that is provided on-site rather than (assuming the cooperation of others), on adjoining land).

As indicated, even if off-site wetlands may be relied on as providing the required setting, they contribute only in the north or east as the case may be, with nothing in any other direction.

The other clear conflict with the planning scheme which tends to compromise achievement of the related DEO at Precinct level (although not to the extent of doing so more widely, as would be required to defeat the development application under s 3.5.14), is with the Codes expressly “protecting” environmentally sensitive areas (Nature Conservation and Biodiversity and Wetlands by buffering). The performance criteria of buffering are not satisfied by the “hard edge” proposed.

The Council did not particularly rely on general planning scheme provisions for residential development requiring the setbacks (eg, 6m from the frontage to a road reserve) which Mr Robinson considered applicable. There were other criticisms of the proposal which appeared to have no support from the planning scheme, eg, for its lack of “village” character – this being part of the Design Intent for other North Shore locations such as existing residential communities at Mudjimba Beach, Pacific Paradise and North and South Marcoola and emerging residential communities at Twin Waters (3.9.3(2)(b) and (c)). The conflicts identified in the two preceding paragraphs are enough to put the appellant’s proposal into trouble and merit being rejected under IPA s 3.5.14, unless sufficient grounds favourable to the proposal can be presented to outweigh the conflict.

The applicant establishes a planning need or needs in my view, which it may be seen in the public interest to have satisfied. But the need is not sufficiently great or pressing to overcome the conflict. The Resort stands to benefit, in my view, in the ways Mr Simpson suggests. However, the way in which the need is to be satisfied is problematic. This is essentially because so much is proposed to be constructed on the Site that the new accommodation, whether used by visitors or permanent residents, would be cramped and (a swimming pool excepted) devoid of on-site facilities such as would normally be expected. It is not shown that those facilities would be reliably available off-site.

I do not regard the lapsed approval in the court order of 29 June 2005 as providing a ground. If that view be wrong, then there is so much more in the new proposal which is bigger from every point of view that reliance on the 2005 one is inappropriate. (I am conscious of having approved a large rather dominating structure in an area where much smaller building forms prevailed in Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87; however that proposal was in a “precinct” (“Special Area”) of its own, and unlike the present Site, not subject to prescriptive planning provisions like those in the intent for Precinct 16.)

Conclusion

The appeal must be dismissed and the development application refused.

CITATION:	Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46
PARTIES:	ABACUS FUNDS MANAGEMENT LIMITED (ACN 007 415 590) AS TRUSTEE FOR ABACUS NORTH SHORE TRUST II TRADING AS ABACUS PROPERTY GROUP (appellant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) And JANE BECK (co-respondent by election)
FILE NO/S:	2537 of 2010
DIVISION:	Appellate
PROCEEDING:	Developer Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23-24; 26-27; 30 April 2012, 1 and 9 May 2012
JUDGE:	Robin QC DCJ
ORDER:	Appeal dismissed, appellant’s development application refused
CATCHWORDS:	Sustainable Planning Act 2009 s 314(3), s 326, s 819 Integrated Planning Act 1997 s 3.5.5(2)(d), s 3.5.14 Developer appeal against refusal of impact-assessable development application – site adjoins applicant’s established major tourist resort whose character (“small clusters of buildings set in extensive parklands and naturally vegetated areas”) is sought to be preserved by the precinct intent under the planning scheme – building height limited by planning scheme to two storeys with the possibility of three storeys “surrounding the lake” – proposal for 158 self-contained apartments (providing an accommodation type in demand but not available in the resort) in three large buildings of four storeys and one of three storeys placed end to end, half of the apartments facing the rear of the resort across its car park, half facing designated wetlands with minimal setback – applicable codes contemplated significant separation or buffering for protection of wetlands – visual amenity issues for road and Mudjimba Beach, also the Resort – whether established “need” for the proposal (as tourist or residential accommodation) and other factors overcame conflict with the planning scheme – significance of earlier approvals, one for material change of use (MCU) for similar buildings (with somewhat smaller footprints) contained in a court order made by consent, one allowing clearing of the site and its wetland vegetation (implemented) and construction of a podium or platform (said to provide a “hard edge” effective to protect the adjacent wetlands) – MCU approval extended once by Council to prevent lapsing, but subsequently lapsing when Council refused two further requests (in refusals subject to pending appeals) – whether 2005 approvals (for 56 or so units) were a “starting point” – 2005 approval and current proposal compared – current proposal said to be “over development”.
COUNSEL:	Mr D. Gore QC and Mr M. A. Williamson for the appellant Mr C. L. Hughes SC and Ms N. J. Kefford for the respondent Ms J. Beck (self-represented) co-respondent by election
SOLICITORS:	Connor O’Meara Solicitors for the appellant Sunshine Coast Regional Council Legal Services for the respondent

PERFORMANCE CRITERIA	ACCEPTABLE MEASURES
P1. A buffer is maintained protect and enhance the environmental values and ecosystem services of waterways, wetlands and fish habitat areas having regard to: • fauna habitats; • adjacent land use impacts; • stream integrity; • sustainable aquatic and wetland ecosystems; and • recreational amenity.	A1.1 width of buffer vegetation is provided of at least: (a.) 100m around the perimeter of a Significant Coastal Wetland shown on Figure 4-2.1.2(b); and (b) 50m around the perimeter of a Local Wetland shows on Figure 4-21.2(b) AND … AND A1.3 All existing native vegetation within the buffer established under A1.1 or A1.2 is retained and, is supplemented using locally indigenous plant species so that a locally representative community is provided.[3] AND A1.4 Buildings, structures and on-site infrastructure are located outside the vegetated buffer areas provided in accordance with A1.1-A1.3.
P2 The hydrologic regime of wetland areas is maintained or enhanced to protect its natural integrity.	A2.1 The existing hydrologic regime of surface and ground waters to and from a wetland is not altered through channelization, redirection or interruption of flows, other than where necessary for the natural enhancement of the wetland. AND A2.2 No interference or modification of channels within a wetland occurs, other than where necessary for the natural enhancement of the wetland.
P5 Buildings, structures, outdoor activity areas and on-site infrastructure are sited and designed so that they do not detract from the visual quality of waterways and wetlands and the adjacent vegetated buffers.	No Acceptable Measure is nominated”