Aqua Blue Noosa Pty Ltd v Noosa Shire Council
[2004] QPEC 74
•12 November, 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Aqua Blue Noosa Pty Ltd v. Noosa Shire Council [2004] QPEC 074
PARTIES:
Aqua Blue (Noosa) Pty Ltd (applicant)
And
Noosa Shire Council (respondent)
FILE NO/S:
200 /04
DIVISION:
Planning and Environment Court
PROCEEDING:
Application for declaration
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
12 November, 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
11TH & 12TH OF September, 2004
JUDGE:
K.S. Dodds DCJ
ORDER:
The multiple dwellings referred to in TPC No. 2645 in respect of land situated at 94 Noosa Drive Noosa Heads in the State of Queensland and described as Lot 2 on SP 110327 Parish of Weyba may be lawfully used for permanent residential accommodation.
CATCHWORDS:
APPLICATION for declaration –
Whether “multiple dwellings” in a development approval may be lawfully used for permanent residential accommodation.
Determination of use rights derived from a development approval.
Legislation Cited:
Integrated Planning Act 1997, sections 4.1.21, 3.5.33
Local Government (Planning & Environment) Act 1990, section 4.13 (14)
Cases Cited:
Leichardt Municipal Council v. Terminals Pty Ltd (1970) 21 LGERA 44;
Sydney Serviced Apartments Pty Ltd v. North Sydney Municipal Council (No. 2) (1993) 78 LGERA 404;
Auburn Municipal Council v. Szabo (1989) 67 LGERA 427;
Woolworths v. Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244;
Hawkins & Izzard v. Permarig Pty Ltd & BCC (No. 1) (2001) QPELR 414;
Parramatta City Council v. Shell Co. of Australia Ltd (1992) 2 NSWLR 632;
House of Peace Pty Ltd v. Bankstown CC (2000) 106 LGERA 440;
Eaton & Sons Pty Ltd v. Warringah Shire Council (1972) 129 CLR 270;
Ryde Municipal Council v. The Royal Ryde Homes & Anor (1970) 19 lgra 321.;
Sericott Pty Ltd v. Snowy River Shire Council (1999) 108 LGERA 66
Shroff v. McSporran (1988) 65 LGRA 33;
Mariner Construction Pty Ltd & Ors v. Maroochy Shire Council (2000) QPELR 334;
Willoughby Municipal Council v. Bell (1974) 29 LGRA 423;
Matijesivic v. Logan City Council (1984) 1 QR 599
COUNSEL:
Mr G Gibson QC for the applicant.
Mr PJ Lyons, Mr M Williamson for the respondent.
SOLICITORS:
Scott’s Lawyers for the applicant.
Wakefield Sykes for the respondent.
This is an application pursuant to Section 4.1.21 Integrated Planning Act 1997 (IPA) for a declaration that the multiple dwellings referred to in town planning consent (TPC) number 2645 in respect of land situated at 94 Noosa Drive Noosa Heads (the subject land) may be lawfully used for permanent residential accommodation. The respondent’s position is that they may not.
It is useful to set out the background to the present conflict. The subject land was once part of a large area of land the subject of a rezoning deed executed by the then owner of the land and the respondent on 21 August 1986. The land was consequently rezoned by Order in Council published in the Government Gazette on 25th October 1986 to be part Special Facilities (resort accommodation and ancillary facilities) Zone, part Special Facilities (tourist facilities) Zone and part Open Space Zone. The present applicant was not then the owner of the subject land.
At its meeting on the 19th of December 1991 the respondent, because of a lack of activity in the contemplated development on the subject land, resolved to rescind the rezoning deed and so advised the then owner by letter dated 20 December 1991. This was a different owner than when the land was rezoned.
On or about 24 November 1993, an application was made to the respondent for a town planning consent permit for the development of multiple dwellings and ancillary facilities (resort administration, shop, restaurant and recreation facilities) on the subject land. The application was approved with conditions. An appeal against some of the conditions resulted in Quirk DCJ making orders by consent on 19 June 1997. On 1 July 1997 the respondent issued TPC 2645 for development of the subject land for “multiple dwelling (216 units) and ancillary facilities (resort administration, shop, restaurant and recreation facilities)”. Conditions fixed the maximum number of units at 216 two bedroom units, required the provision of at least 236 off street car parking spaces and six bus spaces and the dedication at no cost to the respondent of “the area included within the Open Space Zone and the Special Facilities (Tourist Facility) Zone (being an area of approximately 5,400m2) as public parkland”. In November 1998 8.7 ha of the rezoned land was dedicated as public open space.
Subsequently on 22 December 1998 the applicant acquired the subject land. An application was made to the court pursuant to section 3.5.33 IPA seeking modification of some of the conditions of TPC 2645. It may be accepted that the modifications sought resulted in development of a reduced scale and intensity. On 10 August 1999 it was ordered the alterations sought be made. On 10 November 1999, Quirk DCJ made further orders altering conditions.
As a result of the changes, the conditions attaching to TPC 2645 fixed the maximum number of units at 149 “all to be generally self contained”, required provision of at least “two hundred off street car parking spaces and six bus spaces” and dedication at no cost to the respondent of the area included in the Open Space Zone and the Special Facilities (Tourist Facilities) Zone (being an area of approximately 5,400m2) as public parkland.
By letter dated 21 November 2001 the respondent advised the applicant that it considered TPC 2645 had lapsed. An application was made to the court for a declaration that it had not. On 24 July 2002 Wilson SCDCJ declared it had not lapsed. In doing so he concluded that the right to develop the subject land arose under TPC 2645. Subsequent alterations to the conditions created no new right or new development approval. All that had occurred subsequently was that the conditions upon which the right was to be exercised had altered. With respect I agree.
Planning Instruments.
At the time the application which led to the issue of TPC 2645 was made on or about 24 November 1993 and at the time TPC 2645 was issued on 1 July 1997 the respondent’s operative Planning Scheme was that gazetted on 15 December 1990. Its Strategic Plan was that which came into force on 13 February 1988. On 13 December 1996 (prior to the issue of TPC 2645) a new strategic plan was exhibited in draft form for public comment. It came into force on 5 September 1997 subsequent to the issue of TPC 2645.
The 1990 Planning Scheme
At the time of the application in 1993 the subject land was zoned Special Facilities (resort accommodation and ancillary facilities).
According to the 1990 planning scheme the special facilities zone was described as: “this zone caters specifically for particular uses of a non government nature and will be utilised when the combination of uses may not be readily achieved within any of the zones, or when it is undesirable for a conventional zone to be created over an area. The particular uses will be denoted in blue lettering upon the scheme maps. At the time of application for rezoning it would normally be required that a detailed plan of development be submitted in conjunction with the proposal. This plan will be gazetted as part of the scheme maps. Substantial departures from the approved plan of development shall necessitate the submission of a further rezoning application accompanied by a new plan of development …”
No plan of development was gazetted in the planning scheme’s maps. The rezoning deed had been rescinded in 1991. The upshot was that according to the Table of Zones in the planning scheme there was no permitted use of the subject land. The respondent’s consent was required for development which was consistent with the uses denoted in blue lettering on the scheme maps, that is, for resort accommodation and ancillary facilities. Any other development was prohibited.
In the Planning Scheme, “multiple dwelling” was defined as “Any premises used or intended for use as three or more dwelling units. The term does not include an accommodation building, aged persons home, cabin park, duplex dwelling, group housing development, host farm, hotel, institution, relocatable home park or retirement community as hereby defined”. “Dwelling unit” was defined as any part of a building used or intended for use as a self contained dwelling place for the exclusive use of one family.
Some of the uses excluded from multiple dwelling are plainly only for short term accommodation while others contemplate permanent accommodation. “Multiple dwelling” plainly includes both temporary or tourist and long term or permanent use.
The 1988 Strategic Plan
In the 1988 strategic plan maps designating preferred dominant land uses, the subject land is partly in the Urban and partly in the Public and Open Space designation. Urban designated areas are areas “which will be developed for residential uses, comprising both permanent and tourist accommodation.” Additionally a Tourist Facility Growth Area was identified over part of the subject land. Weyba Drive to which the subject land has frontage is shown as a Tourist Route.
According to the Strategic Plan Tourist Facility Growth Areas are “considered to have significant and extensive potential for tourist growth. Further investigations would be required to ascertain the form of development which would be suitable at these locations”.
The Strategic Plan recognised a potential for conflict between tourist development and adjacent land uses such as residential accommodation and open space areas. It sought to negate that potential. All new tourist and entertainment facility development was required to meet criteria to achieve that. The amenity of residential neighbourhoods was recognised and was to be carefully assessed in determining applications for tourist developments.
The Strategic Plan comprised a Part A and a Part B. Part B comprised writings containing supporting information used or in connection with the preparation of the Strategic Plan. Section 33 (2D) Local Government Act 1936. In Part B, the subject land was identified as one of a number of sites available for a range of tourist related developments, sites which had potential for development within the life of the strategic plan. It was “intended to be developed on a water related theme of a resort nature.”
The 1997 Strategic Plan
In the 1997 Strategic Plan which had come into force after the issue of TPC 2645 the subject land is included within the Noosa Heads / Noosaville locality. In this locality, objective 19.2.4 was to “Protect sites for resort developments which focus on the shire’s natural low key outdoor appeal and cultural values”. It identifies the Noosa Heads / Noosaville locality as including “a number of larger sites where there is opportunity for the provision of visitor accommodation in resorts which are based on the shire’s low key outdoor appeal and cultural values”. 19.2.4.1. 19.2.4.2 provides “because of the limited number of these sites in serviced areas and their size location and character, they will be protected for visitor accommodation in resort developments. The sites comprise:
……
- Lot 2 MCH 2618 located at Noosa Drive Noosa Heads east of Weyba Creek” This is the subject land.
Throughout the life of the 1990 Planning Scheme, the 1988 Strategic Plan and the 1997 Strategic Plan rights of use of land derived from the zoning of the land. The Strategic Plans indicated broad future preferred land uses. The 1997 Strategic Plan was the first occasion the subject land was indicated for “visitor accommodation in resort developments (my underlining). In the 1988 Strategic Plan there had been an indication at least part of the subject land had potential for tourist growth.
Discussion
It has long been recognised that rights to use land deriving from a development approval are to be determined from the terms of the approval itself, which may include expressly or by necessary implication, other material Leichardt Municipal Council v. Terminals Pty Ltd (1970) 21 LGERA 44 at 50 – 51, Sydney Serviced Apartments Pty Ltd v. North Sydney Municipal Council (No. 2) (1993) 78 LGERA 404 at 407, Auburn Municipal Council v. Szabo (1989) 67 LGERA 427 at 433 – 4, Woolworths v. Campells Cash and Carry Pty Ltd (1996) 92 LGERA 244 at 249, Hawkins & Izzard v. Permarig Pty Ltd & BCC (No. 1) (2001) QPELR 414. In Auburn Municipal Council v. Szabo Hope J said at 434 … “it would create a confusing and difficult, if not impossible position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in the development approval either expressly or by necessary implication but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved.” In Parramatta City Council v. Shell Co of Australia Ltd (1992) 2 NSWLR 632 Hope JA with the concurrence of Jacobs J and Manning JA said “it is not permissible in order to determine what development has been approved to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. The nature and extent of the approved development must be determined by construing the document of approval, including any plan or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council”. “The search is not for what the council actually intended or what, if it had been interrogated about various possibilities it would have said it intended.” The approval “speaks” according to its written terms including other incorporated material “construed in context but having regard to its enduring function” House of Peace Pty Ltd v. Bankstown CC (2000) 106 LGERA 440 at 449. It is “not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful in a town planning context what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor” Eaton & Sons Pty Ltd v. Warringah Shire Council (1972) 129 CLR 270 at 293 , Stephen J. It is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects, a consent is equivalent to a document of title”. Ryde Municipal Council v. The Royal Ryde Homes & Anor, Else – Mitchell J at 324.
As Brabazon QC DCJ said in Hawkins and. Izzard at 416 sometimes “there is some room for extrinsic material”. Sericott Pty Ltd v. Snowy River Shire Council (1999) 108 LGERA 66 is an example where the issue was whether the applicant had existing use rights for an integrated tourist resort which involved the whole of the subject land. The application to the council had been for subdivision in the context of a staged development for an integrated tourist resort. In dispute was whether the council’s approval was only for subdivision of the land, or was for an integrated tourist resort. In order to be able to determine what the consent was for, it was necessary to construe what had been applied for. That involved the amended application and the accompanying documents which went to explain it. Beasley JA with whom Handley JA agreed, decided that reference to further stages in the development in the documents was to enable the application, which was for subdivision, to be “understood in the context of the overall project” and did not have the effect of enlarging the application. The council’s consent was therefore for the first stage of subdivision only. Another example is Shroff v. McSporran (1988) 65 LGRA 33. It was an appeal from convictions by a magistrate for undertaking “development” without the necessary planning consent and for failing to comply with a condition of the local authority’s town planning consent. The factual matrix underlying the convictions included the terms of the local authority’s consent to a development application by the appellant which included a condition that there be “substantial compliance in all respects with the amended plan submitted to council (SH 285).” White J with whom von Doussa J agreed said at 37 “Although consents are public documents which should be plain and unambiguous … reference may be made to other documents such as the Development Plan and the plan insofar as such plan is referred to and incorporated in the consent …” The reference to the Development Plan was a reference to the local authority’s Development Plan which prescribed certain parking ratios for various uses, relevantly for shops office and consulting rooms. It was necessary to have reference to it in this particular case to interpret plans which had been expressly incorporated into the consent for without reference to it, their full meaning could not be understood. At 38 White J said “the figures, signs and symbols on the plan and the marks representing eight car spaces. These measurements, marks, figures and symbols are only intelligible by reference to the Port Augusta Development Plan. I hold that a development plan may be used as an extrinsic aid to the interpretation of a consent unless the consent is completely unambiguous and is contained in a document which plainly shows that it contains the whole of the terms and conditions of the consent”.
In this case the approval was for multiple dwelling and ancillary facilities (resort administration, shop, restaurant and recreation facilities). In ordinary understanding ancillary indicates subordinate, providing support to. The term is defined in the 1990 Planning Scheme as “associated with but incidental and subordinate”. The lawful uses authorised by TCP 2645 to be derived from the terms of the approval are therefore multiple dwellings and other uses associated with but incidental and subordinate to multiple dwellings being in the nature of resort administration, shop, restaurant, recreation facilities, limited by the conditions attached to the approval.
Reference to resort administration as an ancillary facility is an indicator that the multiple dwellings in contemplation were to function in the nature of a resort. This is consistent with the zoning. “Resort” is not the subject of definition in the respondent’s Planning Scheme documents current at the time the application was made and since. As generally understood a resort is a specific place frequented or visited especially for holidays, recreation or some specific purpose. There may be a variety of features eg pool, tennis courts, gymnasium, restaurants, shops, administration. However the word resort does not necessarily exclude permanent residency within it. In point of fact the approved plans resulting from the 1999 changes display numerous features which are consistent with a high quality resort development.
The following conditions which attached to TPC 2645 when it issued on 1 July 1999 were referred to by the parties or one or other of them as incorporated into the terms of the approval and relevant to the lawful uses to which the subject land may be put.
“Building”
1 - Submission to and approval by council of building plans in accordance with the Building Act, Council By Laws and Policies the conditions of this approval and substantially in accordance with plans 870 – 3B2C, 3B3B, 3B4B, 3B10B, 3B11A, 3B5 to 3B9 inclusive, drawn by John Mainwaring and Associates dated June 1995 and the Shire of Noosa Planning Scheme apart from where amendments are required or dispensations have been granted in conjunction with this approval” .
“Engineering”
7 - Provision of at least 236 off street car parking spaces and six bus spaces and access thereto which are to be provided with a sealed pavement…”
“13 – An Environmental Management Plan and a Site Control Plan shall be submitted to and approved by Council prior to the lodgement by the applicant of the building application. … The Site Control Plan is to reflect the requirements contained within the associated EIS (Environmental Impact Statement)”
“26 – The two water pollution control ponds shown on John Mainwaring Pty Ltd drawing No. 870/3B3B dated June 1995 and described in “WBM Pty Ltd document Noosa Sanctuary response to EIS issues raised by Council” are to be constructed at the commencement of works on the site.”
“27 – All development is required to be undertaken in accordance with the EIS submitted with the application and the document entitled “Noosa Sanctuary response to EIS issues raised by Council and any other conditions contained herein.”
“Health”
“38 –, any flat or unit intended to be let out for fee or reward is to be licensed annually with the Council’s health department in accordance with the provisions of Chapter 43 of Council’s by laws prior to such letting”.
Originally, building plans were to be substantially in accordance with specified plans which accompanied the application (drawn by John Mainwaring and Associates). Those plans became incorporated into the terms of the approval. They were subsequently supplanted by different plans the subject of the orders by Quirk DCJ in 1999, which reduced the number of units to 149. being a mix of one, two and three bedroom dwelling units. These latter plans were prepared by an architectural company DBI Design Pty Ltd (DBI)
The dwelling units shown in the Mainwaring plans are not large, about 62m2. The respondent contended that they were only consistent with visitor use and were inconsistent with permanent accommodation. The plans show two bedrooms, a lounge, kitchen, bathroom and balcony. In my view, they are not plainly and only suitable for visitor accommodation. One or two people could live in them quite comfortably on a permanent basis. An architect Mr Coyle from DBI gave evidence that at the present time his company is designing apartments for long term accommodation of the same scale.
The respondent referred to the car parking provision in the Mainwaring plans accompanying the application and incorporated in the approval. In those plans the car parking is for the most part in the open and in clusters. It is not the sort of parking provision which would more typically accompany accommodation for permanent occupancy. The respondent contended that the number of car park spaces provided in the plans was in keeping only with visitor accommodation. I do not consider this is necessarily so. I do accept that the car parking requirements in the respondent’s Planning Scheme in force at the time would, unless some relaxation was applied, have required a greater number of car parking spaces for multiple dwellings that were all to be used for permanent residence.
Condition 27 under the Engineering heading provided that all development was required to be undertaken in accordance with the EIS submitted with the application and the document entitled Noosa Sanctuary Response to EIS issues raised by Council and any other conditions contained therein. The condition followed two other conditions 13 and 26 dealing with a site control plan and water pollution control ponds in response to matters raised in the EIS.
The respondent contended that condition 27 had the effect of incorporating the whole content of the EIS into the approval. The EIS had acknowledged that the subject land was identified in the respondent’s planning instruments for tourist accommodation and that development as a resort would be optimal use of the site. There is no reference in the EIS to use of any of the dwellings for permanent accommodation as opposed to visitor accommodation. There is reference to “units being strata titled and sold separately with a lease back arrangement to the resort operator.” Page 1 executive summary. There is reference to the subject land being “a tourist resort facility” to units being “sold off the plan to investors and then returned to a short term letting pool…” Included was a traffic engineering report which referred to the application as proposed development “for the purpose of a tourist resort”. Included also was an economic impact assessment by KPMG Peat Marwick which described the proposed development as “planned to incorporate 276 strata tile two and three bedroom units which are to be sold off the plan to investors and then returned to a short term letting pool for the operation of a budget to medium priced tourist resort”
“Development” is defined in the 1990 Planning Scheme as including “the carrying out of building … or engineering operations in, on, or under land for the making of any material changes in the use of any premises.”
The requirement in Condition 27 of TPC 2645 that “all development is required to be undertaken in accordance with the EIS” is, I think, to be understood as a reference to the physical infrastructure and works involved in translating the approved plans onto the subject land. I do not think it is to be understood as referring to the uses to which the result of the works and infrastructure is to be put or envisaged by the authors of or contributors to the EIS.
Condition 38, under the Health heading according to the submission of the applicant, would indicate permanent occupancy of units was in contemplation. Standing alone I do not think it does. It is, I think, a standard condition which requires licensing before any dwelling unit is let for fee or reward. It is to be read with the other conditions of approval none of which limit use of dwelling units to short term visitors or tourist occupancy.
A permit such as TPC 2645 was pursuant to Section 4.13 (14) of the Local Government (Planning and Environment) Act 1990, required to “contain such information as is required to identify the details of the approval granted and is to include –
… …
(d) the use consented to by the local government.
(e) the conditions (if any) which attach to the permit.
It was submitted that because there was no express reference to use of the land for permanent residency in TPC 2645 and against the background of the zoning of the land, and the indication of its future use expressed in the Strategic Plan/s, TPC 2645 should be construed as precluding long term or permanent residency in any of the multiple dwellings.
The submission necessarily means that in addition to the terms of an approval such as TPC 2645 (and of any other material included expressly or by necessary implication) an owner or occupier of premises the subject of the approval is required to consider the lands zoning and its Strategic Plan designations (and pending Strategic Plan designations) at the time of approval to determine lawful use rights.
The respondent relied upon the decision in Shroff as authority supporting the submission. However the distinguishing feature is that in Shroff the plan which had been incorporated as a part of the approval could only be interpreted by resort to the Development Plan.
I reject the submission in this case. There may be cases where, as in Shroff or Serricott, it may be necessary to go to other material to be able to interpret an approval. In this case there is no necessity to do that. I do not regard Shroff as deciding that in all cases the terms of the Planning Scheme are to become a part of the terms of approval so that an owner or occupier of premises must go to the terms of the Planning Scheme to understand what the terms of the approval mean. Nor Serricott with respect to the application. In this case, the terms of the approval are clear enough. The use of the word “resort” in the ancillary facilities does not necessarily connote tourist or temporary accommodation or preclude long term or permanent accommodation. Moreover, the evidence disclosed there were other venues in Queensland which were described as resorts which included as part of the mix, long term or permanent occupation of dwelling units.
It was open to the respondent to have attached or sought to attach conditions to TPC 2645 restricting use of the multiple dwellings in the development to visitor or tourist occupancy. In August and November 1999, when the matter was back before the court on application by the applicant for modification of conditions attaching to the TPC the matter was not raised. By that time it is apparent the respondent had given consideration to controlling use of “resort” development for in April 1998 it had approved a modification of an approved tourist accommodation resort and leisure complex by the conversion of approved two and three bedroom units into two and one bedroom multiple dwelling units with an attached condition that “The development is to comprise a tourist accommodation resort and accommodation on the site is to be used for tourist purposes. Permanent residency within the resort complex is not consistent with the zoning of the land.”
It may be the case that for the development on the subject land the respondent did not turn its planning mind to the question of attaching a use limiting condition. In the final analysis its intention and assumptions are irrelevant. “The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities it would have said it intended … (The approval) “must speak according to it written terms, construed in context but having regard to its enduring function”. House of Peace at 449.
The responsibility to ensure approvals of development are clear and unambiguous rests with the approving authority. I adopt with respect the words of Else Mitchell J in Ryde Municipal Council v. The Royal Ryde Homes & Anor (1970) 19 LGRA 321 at 324 “the legal qualities a consent possesses or which flow from a consent are so important that care should be taken to ensure that consents are framed in clear terms and conditions are framed with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject”. See also Mariner Construction Pty Ltd & Ors v. Maroochy Shire Council (2000) QPELR 334 at 336 Skoien SDCJ. Willoughby Municipal Council v. Bell (1974) 29 LGRA 423 at 434 Wooten J, Matijesivic v. Logan City Council (1984) 1 QR 599 at 605, Connolly J. In Bell, Wooten J expressed it at 430 “The council seeks to read into the condition something against the defendants which it did not choose to say clearly. If there is any ambiguity I think it is a proper use for the application of the contra proferentem rule. In Matijesivic, Connolly J said at 605 “planning decisions are apt to have considerable effects on the value of property and in my judgment it would accord with principle where planning decisions are ambiguous to construe them in the way which places the least burden on the landowner”
Neither the terms of the approval nor any of the conditions to which it is subject restrict the use to letting of the dwelling units therein to tourists or visitors. Absent some lawful prohibition owners of units in a “resort” may choose to live in their unit long term rather than let it or provide it to the letting pool.
I declare that the multiple dwellings referred to in Town Planning Consent No 2645 in respect of land situated at 94 Noosa Drive Noosa Heads in the State of Queensland and described as Lot 2 on SP 110327 Parish of Weyba may be lawfully used for permanent residential accommodation.
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