Chiodo Corporation Operations Pty Ltd v Douglas Shire Council - [2023] QPEC 44

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 44

PARTIES:

CHIODO CORPORATION OPERATIONS PTY LTD (ACN 619 297 997)

(Appellant)

v

DOUGLAS SHIRE COUNCIL

(Respondent)

FILE NO/S:

2827 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

14 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 to 8 September, 11 to 15 September, 19 September, 21 September and 12 October 2023

JUDGE:

Kefford DCJ

ORDER:

THE APPEAL IS DISMISSED. THE DEVELOPMENT APPLICATION IS REFUSED.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s refusal of a proposed development – where the proposed development is for a new resort complex in Port Douglas – where the appellant seeks a development permit for a material change of use to facilitate a luxury, five-star, resort complex contained in a single building – whether the proposed development is inconsistent with the character of Port Douglas – whether the proposed development disregards Port Douglas’ distinctive tropical vernacular – whether the proposed development results in an unacceptable visual amenity impact – whether the proposed development includes appropriate landscape works – whether the proposed landscaping is functional and durable and provides for ease of ongoing maintenance – whether the scale of the proposed development is appropriate given its location – whether the proposed development will create a major tourist accommodation and entertainment area that will draw focus from the Port Douglas Town Centre – whether the proposed development provides adequate car park numbers and car park management – whether there is a need for the proposed development – whether the proposed development should be approved in the exercise of discretion

LEGISLATION:

Planning Act 2016 (Qld), ss 43, 45, 59, 60, 65

Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47

Planning Regulation 2017 (Qld) s 31, sch 24

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, applied

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251, approved

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council[2018] QPEC 52; [2019] QPELR 221, approved

Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26, approved

Garyf Pty Ltd v Maroochy Shire Council& Ors [2008] QPEC 101; [2009] QPELR 435, approved

Harris v Scenic Rim Regional Council [2014] QPEC 16; [2014] QPELR 324, cited

Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved

I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, approved

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25, approved

McBain v Clifton Shire Council & Ors (1996) 2 Qd R 493, applied

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved

Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347, applied

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied

Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor [2023] QPEC 8, approved

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

Southway Services No. 2 Pty Ltd v Brisbane City Council [2022] QPEC 8; [2023] QPELR 544, approved

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

The Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited

Westfield Management Limited v Pine Rivers Shire Council & Anor [2005] QPEC 15; [2005] QPELR 534, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved

Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

E Morzone KC and D Whitehouse for the Appellant
M Batty and J Bowness for the Respondent

SOLICITORS:

Mills Oakley for the Appellant
King & Company Solicitors for the Respondent

TABLE OF CONTENTS

Introduction

What is the applicable framework for the decision?

What are the issues that require determination?

Will the proposed development have an unacceptable impact on character?

What do the assessment benchmarks stipulate in relation to character?

What is the character of Port Douglas?

What is the character of the local area surrounding the subject land?

What are the design attributes of the proposed development?

Will the proposed development have an unacceptable impact on the character and sense of place of Port Douglas and the local area?

Will the proposed development result in an unacceptable visual amenity impact?

What do the assessment benchmarks require in terms of amenity impacts?

Does the proposed development incorporate building materials and external finishes that are compatible with the visual amenity?

Does the proposed development minimise visual impacts on the setting and views in terms of its scale, height and setback?

Will the proposed development be visually dominant or visually intrusive?

Will the proposed development have a detrimental visual impact on major scenic routes and scenic outlooks?

Does the proposed development protect, maintain and enhance the region’s landscape values?

Conclusion regarding visual amenity impact

Does the proposed development include appropriate landscape works?

What do the assessment benchmarks require in terms of landscape works?

What is proposed in terms of landscaping?

Is the proposed landscaping functional and durable and does it provide for ease of ongoing maintenance?

Is the scale of the proposed development appropriate given its location?

What do the assessment benchmarks require?

What is the extent of the tourist, retail, dining and entertainment facilities that are proposed?

Will the proposed development create a major tourist accommodation and entertainment area that will draw focus from the Port Douglas Town Centre?

Does the proposed development provide adequate car park numbers and car park management?

What do the assessment benchmarks require in terms of car parking?

Are the proposed car parking arrangements satisfactory?

What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?

Is there a need for the proposed development?

Are there other benefits provided by the proposed development that lend weight to its approval?

Should the proposed development be approved in the exercise of the planning discretion?

Conclusion

Introduction

Approximately 65 kilometres north of Cairns is the tropical resort town of Port Douglas. It is situated between two internationally renowned, UNESCO World Heritage natural attractions being the Great Barrier Reef to the east and the Daintree Rainforest to the west. These natural attractions, coupled with the outstanding scenic setting and character of Port Douglas, contribute to Port Douglas’ status as one of Australia’s premier tourist destinations.
Chiodo Corporation Operations Pty Ltd wants to develop a new resort complex in this tropical resort town. It seeks to do so on a vacant parcel of land at 71 to 85 Port Douglas Road, Port Douglas (“the subject land”). It applied to Douglas Shire Council (“the Council”) for a development permit for material change of use to facilitate that goal.
On 28 September 2021, the Council refused the development application. This is an appeal against that decision.
Since the appeal was commenced, Chiodo Corporation Operations Pty Ltd has made several changes to its development application. It now seeks a development permit for a material change of use to facilitate a luxury, five-star, resort complex contained in a single building. The building has five levels and a rooftop terrace containing roofed structures. It is approximately 165 metres long and 75 metres wide (“the proposed development”). The resort complex is to comprise tourist and visitor accommodation in 240 guest rooms integrated with extensive leisure facilities, including restaurants and bars, meeting and function facilities, and sporting, fitness and recreation facilities.
The Council contends that, even in its latest form, the development application should be refused. Its case is premised on non-compliance with several assessment benchmarks in version 1.0 of the Douglas Shire Planning Scheme 2018 (“the Planning Scheme”). At the hearing, the Council confined its case to a small number of assessment benchmarks that it says are most representative of the planning difficulties presented by the proposed development.
The Council’s primary contention is that the design of the built form and the landscape character of the proposed development is unacceptable. It says that the design, including its overall height, bulk and scale, leads to unacceptable impacts on the character and sense of place of Port Douglas and the local area. It says it will result in unacceptable visual amenity impacts. In addition, the Council contends that the proposed development is incompatible with the landscape character intended for the local area.
The Council says that Port Douglas, and the local area, is characterised by:
(a)a relatively dispersed and modulated built form pattern;
(b)a prevailing low-rise built form character (up to three storeys); and
(c)resorts designed by reference to the distinctive architectural language of tropical Queensland, with built form dispersed amongst areas of landscaping and pools.
According to the Council, the overall presence and density of tropical vegetation surrounding development typically reduces its visibility and contributes to the character, identity and sense of place of Port Douglas.
The Council contends that the proposed development will instead present as an over-scaled, intense resort development that disregards the distinctive tropical vernacular that makes Port Douglas special and informs the sense of place for both residents and visitors. The Council also contends that the character and amenity impacts occasioned by the proposed built form are not ameliorated by the proposed landscaping. The Council says that the proposed landscaping is inconsistent with the landscape character of the area and is not functional.

Another of the Council’s key contentions is that the proposed development, by reason of its incorporation of intense dining, function and entertainment uses, is not appropriately located. The Council says that the proposed leisure facilities are of a scale that would draw focus away from the Port Douglas town centre, contrary to the Council’s deliberate forward planning strategy.
The Council also raises an issue about the adequacy of the proposed carpark arrangements.
Chiodo Corporation Operations Pty Ltd disputes the alleged non-compliances with the Planning Scheme.
Chiodo Corporation Operations Pty Ltd contends that the sense of place, character and style of Port Douglas is not fixed. Rather, it is reflective of its historical context, tourism expansion and the planning intentions for shaping the future. Chiodo Corporation Operations Pty Ltd says that the Planning Scheme intends to enhance Port Douglas’ national and international reputation as a premier tourism destination, thereby creating a “buzz” and providing tourism and employment opportunities and experiences that are unique to the region.
Chiodo Corporation Operations Pty Ltd contends that the character of the immediate area is one of tourist activities and buildings that are dominated by landscaping and only partially visible by reason of the location of the activities and buildings adjacent to roads that are enclosed by avenues of native and non-native vegetation. It says that the proposed development is designed to be a five-star resort that is special and attractive to international and national visitors. Chiodo Corporation Operations Pty Ltd accepts that the built form is different to existing built form in the area, but nevertheless says that aligns with the character of the area as the built form is dominated by tropical vegetation and appropriate landscaping.
With respect to the size and location of the proposed development, Chiodo Corporation Operations Pty Ltd says that the proposed development is appropriately located. It says that the purpose of the Tourist accommodation zone is to provide for short-term accommodation for visitors. It asserts that the integrated leisure facilities, provided in conjunction with the proposed short-term accommodation, will not result in any unacceptable impact on the Port Douglas town centre.
Chiodo Corporation Operations Pty Ltd also advances an alternative case that, to the extent that the proposed development does not comply with the assessment benchmarks, having regard to the economic need for the proposed development and the other benefits it provides, the development application should be approved in the exercise of the planning discretion.
Chiodo Corporation Operations Pty Ltd bears the onus of establishing that the appeal should be allowed, and the development application approved.[1]
[1]Planning and Environment Court Act 2016 s 45.
What is the applicable framework for the decision?
The appeal proceeds, generally, by way of hearing anew.[2] The Court assesses the development application under s 45 of the Planning Act 2016 (Qld) as if it were the assessment manager.[3]
[2]Planning and Environment Court Act 2016 s 43, subject to ss 46(2) and (5) of the Planning and Environment Court Act 2016.
[3]Planning and Environment Court Act 2016 s 46(2).
The Court has a broad discretion in determining the appeal. It has power to confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[4]
[4]Planning and Environment Court Act 2016 s 47. The type of decision that may be made is also governed by s 60 of the Planning Act 2016.
The Court’s broad discretion should be exercised judicially[5] and subject to the limitations in the relevant statutes.[6] The Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 provide relevant guidance.
[5]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.
[6]Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).
The development application required impact assessment. For that reason, the exercise of the discretion is to be based on an assessment that:[7]
(a)must be carried out:
(i)against the assessment benchmarks in the Planning Scheme[8] to the extent that they are relevant;[9]
(ii)having regard, to the extent they are relevant, to:
(A) any development approval for, and any lawful use of, the premises and adjacent premises, including the development permit for a material change of use with respect to the subject land, the details of which are recorded in the decision notice dated 22 August 2017 (“the existing approval”); and
(B) the common material;[10]
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
[7]Planning Act 2016 ss 45 and 59.
[8]Douglas Shire Planning Scheme 2018 is a local categorising instrument: Planning Act 2016 s 43. Version 1.0 of the Planning Scheme was the categorising instrument for the development in effect when the development application was properly made on 5 January 2021. There are no relevant amendments to the Planning Scheme.
[9]In the appeal, it is only necessary to carry out an assessment against the assessment benchmarks in the Planning Scheme to the extent that they are put in dispute by the parties.
[10]Planning Regulation 2017 s 31 and sch 24.
The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[11] Abeleda & Anor v Brisbane City Council & Anor,[12] Wilhelm v Logan City Council & Ors[13] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[14] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[15] That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[16]
[11][2020] QCA 253; [2021] QPELR 987.
[12][2020] QCA 257; [2021] QPELR 1003.
[13][2020] QCA 273; [2021] QPELR 1321.
[14][2021] QCA 95; [2022] QPELR 309.
[15][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[16][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

What are the issues that require determination?

The parties agree that the disputed issues to be determined have been identified in a document titled “Agreed List of Issues”.[17] An attachment to the Agreed List of Issues contains extracts of the relevant assessment benchmarks, with those parts of each assessment benchmark that are not in issue shown struck through.
[17]Exhibit 8.09.
I am grateful to the parties for their efforts in producing this document. As compared to the 12-page document titled “Appellant’s Amended List of Matters relied upon to Support Approval” and the 10-page document titled “Respondent’s Further Amended List of Matters”, the Agreed List of Issues appropriately confines the case to the real issues in dispute. The provision of the Agreed List of Issues with the attachment at the outset of the hearing allowed me to quickly gain a sense of the factual determinations that would be called for in deciding the appeal.
That said, the structure of the document does not identify:
(a)whether an issue is raised as a reason for refusal or approval; or
(b)whether an issue is relied on in combination with other issues or is said to be determinative of the appeal on its own.

The need to identify such matters when articulating issues in an appeal was identified some years ago by His Honour Judge Williamson KC in Ashvan Investments Unit Trust v Brisbane City Council & Ors[18] and was more recently the subject of comment by His Honour in Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors[19] and Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors.[20]
[18][2019] QPEC 16; [2019] QPELR 793, 809-10 [65]-[69].
[19][2023] QPEC 25, [182]-[188].
[20][2023] QPEC 26, [205]-[207].
Although it would have been helpful to have a document structured in that manner, during their openings, Counsel for each of the parties provided that assistance. I thank Mr Morzone KC and Ms Whitehouse, Counsel for Chiodo Corporation Operations Pty Ltd, and Mr Batty and Ms Bowness, Counsel for the Council, for their assistance in that regard. The clarity with which Counsel outlined the nature of their client’s respective cases at the outset of the hearing assisted me to efficiently rule on objections during the case. I was also readily able to appreciate the significance of the witnesses’ evidence while it was given thanks to the efforts of the respective Counsel in identifying, during opening addresses:
(a)those issues that were said to have the greatest potential to influence the exercise of the discretion under s 60(3) of the Planning Act 2016;
(b)those issues that inform the exercise of the discretion but that are not, of themselves, sufficient to warrant refusal; and
(c)the matters raised in support of approval.
With the Agreed List of Issues and the cases for approval and refusal in mind, in my view, there are nine issues to be determined, namely:
1.   Will the proposed development have an unacceptable impact on the character and sense of place of Port Douglas and the local area?
2.   Will the proposed development result in an unacceptable visual amenity impact?
3.   Does the proposed development include appropriate landscape works?
4.   Is the scale of the proposed development appropriate given its location?
5.   Does the proposed development provide adequate car park numbers and car park management?
6. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
7.   Is there a need for the proposed development?
8.   Are there other benefits provided by the proposed development that lend weight to its approval?
9.   Should the proposed development be approved in the exercise of the planning discretion?
It is common ground between the parties that the outcome of the case is likely to be informed, in large measure, by my findings about the appropriateness of the design and landscaping of the proposed development having regard to its character and amenity impacts and the appropriateness of the scale of the use proposed to be located on the subject land.
I now turn to consider each of the issues.
Will the proposed development have an unacceptable impact on character?
As identified in paragraphs [6] to [9] above, the Council contends that the design of the built form and the landscape character of the proposed development is inappropriate and will have unacceptable impacts on the character and amenity of the area. It says that the proposed development will present as an over-scaled, intense resort development which disregards the distinctive tropical vernacular that makes Port Douglas special and informs the sense of place for both residents and visitors.[21]
[21]Written opening on behalf of the Respondent p 4 [10].
The Council’s contentions about the unacceptable character impact are informed by the requirements of the Planning Scheme, particularly:
(a)s 3.2.2.2(5) of the Strategic framework;
(b)the overall outcome in s 7.2.4.3(3)(d) and performance outcome PO4 of the Port Douglas / Craiglie local plan code;
(c)the overall outcome in s 6.2.14.2(3)(b) and performance outcomes PO1, PO1 (Setbacks), PO2 and PO3 of the Tourist accommodation zone code;
(d)the overall outcome in s 8.2.6.2(2)(h) and performance outcome PO3(c) of the Landscape values overlay code; and
(e)the overall outcome in s 9.4.6.2(2)(a) and performance outcomes PO1(c) and PO2 of the Landscaping code.
It is uncontentious that the provisions to which the Council refers are relevant assessment benchmarks. This is unsurprising given:
(a)impact assessable development must be assessed against the whole of the Planning Scheme, to the extent relevant;[22]
(b)the subject land is in the Tourist accommodation zone[23] and the assessment benchmarks in the Tourist accommodation zone code apply to development in that zone;[24]
(c)the subject land is in the Port Douglas / Craiglie local plan area as identified on the Port Douglas / Craiglie local plan map[25] and the Port Douglas / Craiglie local plan code applies to that local plan area;[26]
(d)part of the subject land is mapped as a scenic route buffer on the Landscape values overlay map[27] and the Landscape values overlay code applies to impact assessable development that is in the scenic route buffer sub-category on the Landscape values overlay map;[28] and
(e)the Landscape code applies for assessing a proposed material change of use that is impact assessable.[29]
[22]Planning Scheme s 5.4(1)(d): Exhibit 9.01 pp 70 and 133.
[23]Exhibit 9.01 paragraph (g) and p 506.
[24]Planning Scheme s 6.2.13.1(1): Exhibit 9.01 p 176.
[25]Exhibit 9.01 paragraph (g) and p 506.
[26]Planning Scheme s 7.2.4.1(1): Exhibit 9.01 p 209.
[27]Exhibit 9.01 paragraph (g) and pp 506 and 513.
[28]Planning Scheme ss 8.2.6.1(1) and (2): Exhibit 9.01 p 263.
[29]Planning Scheme s 9.4.6.1(1): Exhibit 9.01 p 390.
Chiodo Corporation Operations Pty Ltd disputes the alleged non-compliances with the Planning Scheme.
What do the assessment benchmarks stipulate in relation to character?
The first assessment benchmark relied on by the Council to found its allegation of unacceptable character impact is s 3.2.2.2(5) of the Strategic framework.
Section 3.2.2.2(5) forms part of the strategic intent for “Shaping the future” by “Reinforcing Douglas Shire’s sense of place and identity”. It states:
“Port Douglas will retain it (sic) lively tropical tourism ‘buzz’ as a premier tourist destination. Development will be carefully planned to achieve sensitive incremental change, rather than instant, over-scaled development projects, that have little local context or character.”
The next two assessment benchmarks relevant to the character issue are in the Port Douglas / Craiglie local plan code. They are the overall outcome in s 7.2.4.3(3)(d) and performance outcome PO4.
The overall outcomes in s 7.2.4.3(3)(d) states:
“(d)All forms of development will complement the tropical image of the town through distinctive tropical vernacular, urban design and landscaping.”
Performance outcome PO4 applies to development in the Port Douglas / Craiglie local plan area generally. The performance outcome, and the associated acceptable outcome, state:

Performance outcomes

Acceptable outcomes

PO4

Landscaping of development sites complements the existing tropical character of Port Douglas and Craiglie.

AO4

Landscaping incorporates the requirements of Planning scheme policy SC6.7 – Landscaping, in particular landscaping should be capable of achieving a 60% screening of development within 5 years and predominantly consists of endemic vegetation.

The next five assessment benchmarks in issue with respect to the character impacts are in the Tourist accommodation zone code. They are the overall outcome in s 6.2.14.2(3)(b) and performance outcomes PO1, PO1(a) (Setbacks), PO2 and PO3.
The overall outcome in s 6.2.14.2(3)(b) states:
“Tourist development is of an appropriate scale and achieves an attractive built form which incorporates the character and natural attributes of the site and the surrounding area as integral features of the theme and design of the development.”
The performance outcomes in the Tourist accommodation zone code achieve the overall outcomes and the purpose of the code.[30] The associated acceptable outcomes are not mandatory. They are technical measures or standards that set a benchmark for assessment of individual applications that may be varied on the merits of an assessment of the corresponding performance outcomes and the purpose and overall outcomes.[31]
[30]Planning Scheme s 6.1(7): Exhibit 9.01 p 135.
[31]Planning Scheme s 5.4(1)(c)(iii) and associated note: Exhibit 9.01 p 70.
The performance outcomes in issue, and their associated acceptable outcomes, state:

Performance outcomes

Acceptable outcomes

PO1

The height of all buildings and structures must be in keeping with the residential character of the area.

AO1

Buildings and structures are not more than 13.5 metres and 3 storeys in height.

Note – Height is inclusive of roof height.

Setbacks (other than for a dwelling house)

PO1

Buildings are setback to:

(a)     maintain the character and amenity of the area;

(b)     achieve separation from neighbouring buildings and from road frontages.

AO1

Buildings are setback:

(a)     a minimum of 6 metres from the main street frontage;

(b)     a minimum of 4 metres from any secondary street frontage;

(c)     4.5 metres from a rear boundary;

(d)     2 metres from a side or an average of half of the height of the building at the side setback, whichever is the greater.

Site coverage (other than for a dwelling house)

PO2

The site coverage of all buildings does not result in a built form that is bulky or visually obtrusive.

AO2

The site coverage of any building is limited to 50%

Building proportions and scale (other than for a dwelling house)

PO3

The proportions and scale of any development are in character with the area and local streetscape.

AO3.1

The overall length of a building does not exceed 30 metres and the overall length of any continuous wall does not exceed 15 metres.

AO3.2

Balconies, patios and similar spaces are not enclosed or capable of being enclosed and used as a habitable room.

AO3.3

Balconies, patios and similar spaces are designed to be open and light weight in appearance with a maximum of 20% of the façade being fully enclosed.

AO3.4

Roof forms, materials and colours of buildings enhance the amenity of the street and locality, including:

(a)     the roofs of buildings are light coloured and non-reflecting;

(b)     white and shining metallic finishes are avoided on external surfaces in prominent view.

Note – The building incorporates building design features and architectural elements detailed in Planning scheme policy SC 6.2 – Building design and architectural elements.

(emphasis added to reflect the allegations made by the Council)

The assessment benchmarks in the Landscape values overlay code that are put in issue with respect to character are the overall outcome in s 8.2.6.2(2)(h) and performance outcome PO3(c).
The overall outcome in s 8.2.6.2(2)(h) states:
“development is consistent with the prevailing landscape character of its setting, and is neither visually dominant nor visually intrusive.”
(emphasis added to reflect the allegations made by the Council about character)
Performance outcome PO3 and the associated acceptable outcome state:

Performance outcomes

Acceptable outcomes

Development within a Scenic route buffer / view corridor area

PO3

Development within a Scenic route buffer / view corridor area as identified on the Landscape values overlay maps contained in Schedule 2:

(a)     retains visual access to views of the surrounding landscape, the sea and other water bodies;

(b)     retains existing vegetation and incorporates landscaping to visually screen and soften built form elements whilst not impeding distant views or view corridors;

(c)     incorporates building materials and external finishes that are compatible with the visual amenity and the landscape character;

(d)     minimises visual impacts on the setting and views in terms of:

(i)     the scale, height and setback of buildings;

(ii)     the extent of earthworks and impacts on the landform including the location and configuration of access roads and driveways;

(iii)    the scale, extent and visual prominence of advertising devices.

Note - A visual impact assessment is undertaken in accordance with Planning scheme policy SC6.6 – Landscape values in order to satisfy performance outcomes.

AO3.1

Where within a Scenic route buffer / view corridor area, the height of buildings and structures is not more than identified within the acceptable outcomes of the applicable zone code.

AO3.2

No clearing of native vegetation is undertaken within a Scenic route buffer area.

AO3.3

Where within a Scenic route buffer / view corridor area development is set back and screened from view from a scenic route by existing native vegetation with a width of at least 10 metres and landscaped in accordance with the requirements of the landscaping code.

AO3.4

Development does not result in the replacement of, or creation of new, additional, or enlarged advertising devices.

(emphasis added to reflect the allegations made by the Council about character)

The final three assessment benchmarks relating to character impacts are in the Landscaping code. They are the overall outcome in s 9.4.6.2(2)(a) and performance outcomes PO1(c) and PO2.
The overall outcome in s 9.4.6.2(2)(a) states:
“(a)The tropical, lush landscape character of the region is retained, promoted and enhanced through high quality landscape works”
Performance outcomes PO1 and PO2, and their associated acceptable outcomes, state:

Performance outcomes

Acceptable outcomes

Landscape design

PO1

Development provides landscaping that contributes to and creates a high quality landscape character for the site, street and local areas of the Shire by:

(a)     promoting the Shire’s character as a tropical environment;

(b)     softening the built form of development;

(c)     enhancing the appearance of the development from within and outside the development and makes a positive contribution to the streetscape;

(d)     screening the view of buildings, structures, open storage areas, service equipment, machinery plant and the like from public places, residences and other sensitive development;

(e)     where necessary, ensuring the privacy of habitable rooms and private outdoor recreation areas;

(f)     contributing to a comfortable living environment and improved energy efficiency, by providing shade to reduce glare and heat absorption and re-radiation from buildings, parking areas and other hard surfaces;

(g)     ensuring private outdoor recreation space is useable;

(h)     providing long term soil erosion protection;

(i)     providing a safe environment;

(j)     integrating existing vegetation and other natural features of the premises into the development;

(k)     not adversely affecting vehicular and pedestrian sightlines and road safety.

AO1

Development provides landscaping:

(a)     in accordance with the minimum area, dimensions and other requirements of applicable development codes;

(b)     that is designed and planned in a way that meets the guidelines for landscaping outlined in Planning Scheme Policy SC6.7 – Landscaping;

(c)     that is carried out and maintained in accordance with a landscaping plan that meets the guidelines for landscaping outlined in Planning Scheme Policy SC6.7 – Landscaping.

Note - Planning scheme policy SC6.7 – Landscaping provides guidance on meeting the outcomes of this code. A landscape plan submitted for approval in accordance with the Planning policy is one way to achieve this outcome.

PO2

Landscaping contributes to a sense of place, is functional to the surroundings and enhances the streetscape and visual appearance of the development.

AO2.1

No acceptable outcomes are specified.

Note - Landscaping is in accordance with the requirements specified in Planning scheme policy SC6.7 – Landscaping.

AO2.2

Tropical urbanism is incorporated into building design.

Note – ‘Tropical urbanism’ includes many things such as green walls, green roofs, podium planting and vegetation incorporated into the design of a building.

(emphasis added to reflect the allegations made by the Council)

When these provisions are read in their broader statutory context,[32] it is evident that:
[32]Consistent with the principles and canons of statutory construction that apply to the construction of planning documents and noting that the Planning Scheme is to be read as a whole and as intending to achieve balance between outcomes: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58]. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].
(a)the Strategic framework sets the policy direction for the Planning Scheme and forms the basis for ensuring that appropriate development occurs within the Planning Scheme area for the life of the Planning Scheme;[33]
[33]Planning Scheme s 3.1(1): Exhibit 9.01 p 23.
(b)local plan codes addresses matters at the local level,[34] including by:
[34]Planning Scheme s 7.1(1): Exhibit 9.01 p 181.
(i)identifying the qualities that make the local plan area special, including environmental and built form characteristics;
(ii)promoting gateway treatments, nodes of activity, viewing corridors and landmark sites; and
(iii)defining an interface boundary between urban and rural areas to reinforce the sense of town and country;[35]
[35]Planning Scheme s 3.2.2.2(3): Exhibit 9.01 p 38.
(c)the Port Douglas / Craiglie local plan code:
(i)facilitates development outcomes consistent with community values, the local tropical built-form and protection of the natural environment within the Port Douglas / Craiglie local plan area;[36]
[36]Planning Scheme s 7.2.4.3(1): Exhibit 9.01 p 210.
(ii)does not include the subject land as part of an identified precinct, but intends that it will form part of the Craiglie area that is to be developed as an integrated residential community with some low scale tourism;[37]
(iii)is largely silent as to specific built form parameters for the subject site, but seeks to ensure that all forms of development in the local plan area will complement the tropical image of Port Douglas and Craiglie, through distinctive tropical vernacular, urban design and landscaping;[38]
(d)the assessment benchmarks in the Tourist accommodation zone code are directed at providing short-term tourist accommodation at an appropriate scale that is supported by community uses and small-scale services and facilities in locations that are close to commercial and recreational services and facilities to:[39]
(i)support the economic growth of the Shire;[40] and, simultaneously
(ii)maintain and enhance the distinctive character and identity of the Shire’s towns, including by site specific tropical design which adapts franchise corporate designs to integrate with the established urban qualities of the Shire’s local communities and that make those communities distinct from other places;[41]
(e)to the extent that it is relevant to this case, the Landscape values overlay code is directed at the protection of scenic amenity, sense of place and landscape character;[42] and
(f)the Landscaping code is primarily directed at ensuring the landscaping aspects of a particular proposal are functional and of a high quality, and enhance the visual quality, amenity and identity of the area.[43]
[37]Planning Scheme s 7.2.4.3(3)(c): Exhibit 9.01 p 210.
[38]Planning Scheme ss 7.2.4.3(3)(d) and (g) and performance outcomes PO2, PO3 and PO4: Exhibit 9.01 pp 210 and 215.
[39]Planning Scheme ss 6.2.14.2(1), (2), (3)(a), (c), (d), (e) and performance outcomes PO1, PO1 (setbacks), PO2, PO3, PO4, PO6, PO7, and PO9: Exhibit 9.01 pp 176-8.
[40]Planning Scheme ss 3.8.2.1(1), 3.8.3(1) and (2), 3.8.3.1(1), (4) and (5), 6.2.14.2(2)(a)(ii): Exhibit 9.01 pp 59 and 176.
[41]Planning Scheme ss 3.7.4(1), (2) and (3), and 3.7.4.1(1) and (3), and 6.2.14.2(2)(a)(i): Exhibit 9.01 pp 55-6 and 176.
[42]Planning Scheme ss 3.5.5(1), 3.5.5.1(1) and (2), and 8.2.6.2(1)(a)(i): Exhibit 9.01 pp 50 and 263.
[43]Planning Scheme ss 9.4.6.2(1), (2)(a), (c), (e), (f), and (g) and performance outcomes PO1, PO2, PO3, PO4, PO6, PO7 and PO10: Exhibit 9.01 pp 390-2.

When the provisions on which the Council relies are read in the context of the whole Planning Scheme, one readily discerns a strong planning policy to maintain the distinctive sense of place and character of Port Douglas and the various communities within Port Douglas. Various assessment benchmarks align with, and support achievement of, this policy.
The character and sense of place that is sought to be achieved is not one that is “distinctive” in terms of being different to the design and character of built form present in the local area. Rather, the built form is to integrate with established urban qualities that distinguishes the local area from other parts of Queensland. The distinctive sense of place is informed by the Shire’s natural and rural settings; its unmistakeable built form, being Queensland tropical vernacular; and its landscape setting. Combined, these attributes make a vital contribution to the Shire’s identity which, in turn, contributes to the everyday experiences of residents and visitors alike.
The protection of Port Douglas’ character is not the only planning policy sought to be achieved in the Planning Scheme. The Planning Scheme also has an economic growth policy. That policy seeks the provision of tourist accommodation of an appropriate scale to support economic growth. That said, the character and sense of place of Port Douglas underpins achievement of both the policy with respect to character and the economic policy. This is evident from the acknowledgment in the Planning Scheme that the character and sense of place of Port Douglas is critical to the tourism industry, which is one of two principal determinants of economic activity and employment in Douglas Shire.
Collectively, the assessment benchmarks are directed at achieving the provision of tourist accommodation while ensuring that such accommodation is:
(a)designed for the tropical climate; and
(b)maintains and enhances the distinctive character and identity of Port Douglas generally and the relevant local area.[44]
[44]Planning Scheme ss 3.2.1.1(3) and (4), 3.2.1.2(9) and (10), 3.2.1.3(1), 3.2.1.4(3)(e)(i), 3.2.1.6(1), (2) and (3), 3.2.1.7(1) and (3), 3.2.2.1(1), 3.2.2.2(1), (2), (3) and (5), 3.5.5(1), 3.5.5.1(1) and (2), 3.7.1(2), (3) and (4), 3.7.4(1), (2) and (3), 3.7.4.1(1) and (3), 3.8.2.1(1), 3.8.3(1) and (2), 3.8.3.1(2), (4) and (5), 6.2.14.2(1), (2), and (3)(a), (c), (d), and (e) and 6.2.14.3 performance outcomes PO1, PO1 (setbacks), PO2, PO3, PO4, PO6, PO7, and PO9, 7.2.4.3(1) and (3)(c), (d) and (g) and 7.2.4.4 performance outcomes PO2, PO3 and PO4, 8.2.6.2(1)(a)(i), 9.4.6.2(1), (2)(a), (c), (e), (f), and (g), and 9.4.6.3 performance outcomes PO1, PO2, PO3, PO4, PO6, PO7 and PO10: Exhibit 9.01 pp 29-30, 32-4, 37-8, 50, 53-6, 59-60, 176-8, 210, 215, 263, and 390-2.
Given the importance that the Planning Scheme places on its planning policy with respect to character, it is unsurprising that both parties submit that the outcome of this appeal will largely turn on my determinations with respect to character.
With those matters in mind, I return to an assessment of the proposed development against the assessment benchmarks that the Council has put in issue about the design of the built form and the landscaping, and the character and amenity impact of it. Those assessment benchmarks raise the following four key factual questions for determination.
1.   What is the character of Port Douglas?
2.   What is the character of the local area surrounding the subject land?
3.   What are the design attributes of the proposed development?
4.   Will the proposed development have an unacceptable impact on the character and sense of place of Port Douglas and the local area?

Before answering those questions, it is useful to make four general observations.
First, to assist me with the assessment of the proposed development against the applicable assessment benchmarks, including the determination of the issues to which I refer in paragraph [56], I had the benefit of:
(a)a statement of agreed facts;[45]
[45]Exhibit 8.11.
(b)the plans of the proposed development,[46] which depict, amongst other things, design details of the proposed building, including the height, setback and extent of site cover of the floorplates for the various levels of the building, and building elevations and sections;
(c)a landscape design;[47]
(d)many photographs of the area, including photographs of other buildings in the area and of the streetscape;[48]
(e)documents providing details about other development sites and other development in Port Douglas;[49]
(f)expert evidence with respect to digital photomontages given by Mr Zac Petersen, an expert retained by Chiodo Corporation Operations Pty Ltd;[50]
(g)expert evidence with respect to visual amenity and landscape architecture given by Mr Dean Butcher and Dr Nicholas McGowan, the visual amenity experts retained by Chiodo Corporation Operations Pty Ltd and the Council respectively;[51]
(h)expert evidence with respect to architecture given by Mr Leslie Curtis and Mr Scott Peabody, the retained by Chiodo Corporation Operations Pty Ltd and the Council respectively;[52]
(i)expert evidence with respect to town planning given by Ms Jennifer Morrissy and Mr Greg Ovenden, the town planners retained by Chiodo Corporation Operations Pty Ltd and the Council respectively;[53]
(j)evidence of lay witnesses about their perceptions of the local area and Port Douglas;[54] and
(k)the Planning Scheme,[55] which informs the reasonable expectations people may hold about the place.[56]
[46]Exhibits 7.02, 7.06 and 8.20. The plans are understood in conjunction with the evidence in Exhibits 1.78, 1.79, 1.81, 1.82, 1.83 and 1.84.
[47]Exhibit 7.03.
[48]Exhibits 5.08. 5.09, 5.11, 6.11, 6.12, 8.15, 8.38, 8.41, and 9.21.
[49]Exhibits 6.09, 8.01, 8.02, 8.03, 8.13, 8.15, 8.38, 8.41, 9.07, 9.13, 9.14, 9.16, 9.17, and 9.23.
[50]Exhibits 6.11, 6.12, 6.22, 8.21, 8.27, 8.28, and 9.06, and oral testimony by the expert.
[51]Exhibits 5.04, 5.08, 6.04, and 8.24, and oral testimony by the experts.
[52]Exhibits 5.09, 6.05, and 6.06, and oral testimony by the experts.
[53]Exhibits 5.11, 6.01, 6.02, 6.31, and 9.24 and oral testimony by the experts.
[54]Exhibits 6.17, 6.18, 6.19, 6.20 and 6.21.
[55]Exhibits 7.01, 8.07 and 9.01.
[56]Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40].
There was a strongly contested issue about the accuracy and reliability of the digital photomontages prepared by Mr Petersen and the weight to be afforded to them. The Council submits that the photomontages cannot be relied on and that, given their heavy reliance on the photomontages, nor can the opinions of the other experts who were called by Chiodo Corporation Operations Pty Ltd. This is because:
(a)Mr Butcher prepared the tree removal and retention plan, but was unable to explain how the tree removal plan fit together with the additional trees depicted on the photomontages;
(b)Mr Petersen was unable to explain how the tree retention plan and the new vegetation in the photomontages fit together;
(c)the photomontages have been prepared using a methodology that is based on hearsay evidence, being a model prepared by architects, which Mr Petersen accepted at face value and inserted into the montages;
(d)the accuracy of the model cannot be tested in circumstances where there is an admitted discrepancy between the photomontages and plans in the form of an absence of deep planting area in the plans about the roof;
(e)the photomontages depict landscaping in the planter boxes which Dr McGowan is concerned cannot, or will not, materialise as proposed due to insufficient soil volume and the impacts of a maintenance regime;
(f)the addendum to the photomontage report imports a “building height line” purportedly at 13.5 metres from natural ground level, which has been measured six metres in from the front boundary. The building height line is premised on a depiction of natural ground level that relies upon the model prepared by Dr Johnson that has arbitrarily “filled in” the large, excavated lake on the subject land;
(g)for viewpoints 13 to 15, which depict views from Flagstaff Hill and the Captain Cook Highway, Mr Petersen used a process whereby he decided himself what vegetation should be removed or included in the photomontages. His process of reasoning was not fully outlined in his report in a manner that permitted it to be replicated; and
(h)Dr Johnson has noted the potential need for cut and fill processes to create a development pad for any future residential development on the “golf course land” with the area of vegetation relied upon to the immediate north of the subject land being included within the “Residential” precinct under the Integrated Resort Development Act 1987 (Qld), unbeknownst to Mr Petersen, such that the off-site vegetation relied upon to shield the proposed development may not exist in the future.
The Council’s criticisms of the photomontages are borne out by the evidence.
The lack of clarity from the experts called by Chiodo Corporation Operations Pty Ltd is hardly surprising in circumstances where the collection of plans before the Court reflect various iterations of the design of the proposed development. Some plans that are sought to be approved reflect the current design of the proposed development, while others do not. This is a symptom of the appeal process being used as a vehicle to design the proposed development and several minor changes being made to a proposal without proper consideration being given to a cohesive set of plans that reflect the present design of the proposed development that Chiodo Corporation Operations Pty Ltd seeks to have approved. My experiences with resulting difficulties in other cases informed my reluctance to accept the tender of expert reports to the extent that they addressed a form of development that was different to the development that I am to assess. Although developers may proceed to trial on a changed development application where the change is no more than a minor change, careful consideration needs to be given to the admissibility of expert reports that do not address the changed development application.
Here, the Council concedes that its criticisms are not such that the evidence is inadmissible, rather it submits they should be afforded little, if any, weight. Having regard to the matters referred to by the Council, I accept that the photomontages should be treated with a degree of caution. I do not accept them to be a photo real depiction of the proposed development. Nevertheless, I am prepared to afford them weight for the reasons that follow.
It is reasonable to expect that the final details of the landscaping will be the subject of detailed design at a later stage. This is borne in mind when considering the weight to be attributed to the photomontages. Here, Chiodo Corporation Operations Pty Ltd has sought to limit the uncertainty that arises in that respect by, at the last minute, changing its development application to define its development as a luxury five star resort complex up to five levels and a roof top terrace that is generally in accordance with the architectural plans and landscaping plans and that achieves the outcome shown in the photomontages.
Even though Mr Petersen did not detail his process for identifying the vegetation to be removed from the photomontage for viewpoints 13 to 15 in his report, he provided a detailed and sound explanation of the process during cross-examination.
Mr Petersen also explained his familiarity with the process of building models as compared to the results obtained by adopting a Revit model prepared by the architects. His experience with both satisfies me that he has sufficient experience with converting information in architectural plans to a photomontage as to ensure that if there was a significant discrepancy in the product, such discrepancy would have been noticed by him.
Considering all the evidence of Mr Petersen about the preparation of the photomontages, and my comparison of the depiction of the proposed development in the photomontages with the architectural and landscape plans, I am satisfied that the photomontages provide a useful guide when assessing the character and visual amenity impacts of the proposed development.
My second general observation is that issues about the character and amenity of the local area loom large in this appeal. To assist me in appreciating the photographic, photomontage and other expert evidence about such matters, the parties arranged an extensive site inspection of Port Douglas and its surrounds. Although my observations on the site inspection do not form part of the evidence, my appreciation of the photographic evidence, and the opinions conveyed by the experts, was greatly enhanced by that site inspection.
Third, the determination of the matters to which I refer in paragraph [56] above calls for value laden judgments about which reasonable minds may differ. The opinions expressed by the experts retained by Chiodo Corporation Operations Pty Ltd and the Council respectively were generally consistent about issues such as the features that inform the character of Port Douglas and the area surrounding the subject land and, to an extent, the design and visual impact of the proposed development. The experts differed in their views about the acceptability of the visual and character impacts. Although I respect the views of Mr Butcher, Mr Curtis and Ms Morrissy, with respect to most of the matters in dispute, I do not accept their evidence to the extent that it differs from that of the other experts. I generally prefer the evidence of Dr McGowan, Mr Peabody and Mr Ovenden, whose evidence is more closely aligned with, and supported by, the other evidence that I accept. That other evidence includes the photographs that show the appearance of the area and the plans that depict the design attributes of the proposed development.
Fourth, my findings below reflect the aggregate impression that I have formed having regard to the collective effect of the evidence, to the extent that it is accepted by me.
What is the character of Port Douglas?
The character of a locality, and of a streetscape, is the aggregate impression formed having regard to the individual features and traits of the existing development, landscaping and natural environment in the street or locality.[57] It may also be informed by the perceptions or expectations that people hold about a place. This is recognised in s 3.2.2.2 of the Strategic framework, which relevantly states:
“3.2.2.2 Reinforcing Douglas Shire’s sense of place and identity
(1)Sense of place is a dual characteristic that derives from certain distinctive features of a place and the feelings and perceptions that people hold with regard to that place. In planning, it is usually used to promote positive places that foster community attachment.”
(emphasis added)
[57]McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 990 [72].
Douglas Shire is characterised by four primary landscape types, namely:
(a)elevated landscapes that are comprised of the vegetated and grassed hillslopes and the mountainous terrain of the Great Dividing Range which:
(i)bound the Shire to the north, south and west;
(ii)extend to the coastline in several locations;
(iii)are prominent from most of the open and elevated viewpoints around the Shire; and
(iv)often form an attractive, scenic backdrop to views;[58]
(b)lowland landscapes that are comprised of:
(i)alluvial coastal plains, river plains, valleys and estuarine flats, which are characterised by riparian and wetland vegetation;
(ii)cane and agriculturally productive landscapes; and
(iii)landscapes around settlement;
(c)coastal landscapes comprised of the water and coastal strip along the Coral Sea and headlands; and
(d)urban landscapes, including the urban areas of Mossman, Port Douglas, Craiglie and smaller towns.
[58]Revised Visual Amenity Joint Expert Report: Exhibit 5.08 p 10 [17] and [18]; Planning Scheme s 3.2.1.1: Exhibit 9.01 p
The topography of Douglas Shire acts as a substantial point of difference to other parts of the Far North Queensland region. The contrast between the four primary landscape types is also a defining feature of the character and identity of Douglas Shire. The elevated landscapes rise dramatically above the horizontal lowland landscapes, prominently so when viewed from scenic outlooks such as the north-eastern headland of Port Douglas, known as Flagstaff Hill. The dominance of the natural environment throughout the Shire and the unique value of forests growing down to the shoreline are features that are recognised.
Residents identify closely with the Shire’s physical setting as defining the boundaries to their community. This contributes significantly to the Shire’s heightened sense of identity.
The character, identity, and sense of place of Port Douglas are not only influenced by the four primary landscape types described in paragraph [71] above and its topography and setting. The tropical climate is an ever-present element that contributes to people’s experience and perception of Port Douglas. The Shire’s physical setting in a wet tropical climate that is framed by lush World Heritage listed forests, fringed by the Coral Sea, and associated World Heritage listed Barrier Reef Marine Park to the east makes the Shire a desirable location for its residents and for tourists alike.
The character, identity, and sense of place of Port Douglas is also derived from the landscape values and built form elements that are perceptible at a local level within the settled areas. They are comprised of:
(a)the prominent landscape features;
(b)the tropical landscape setting; and
(c)the built-form character of the area as informed by the road networks, the interplay between the built form and local landscape features and the predominant, observable activity.
The prominent landscape features include:
(a)the beach, which is both a prominent structuring element of the settlement and an important attraction;
(b)the oil palms that line both sides of Port Douglas Road for almost its entire length into the heart of Port Douglas and which form an iconic avenue of oil palms that accentuates the entrance to Port Douglas; and
(c)Flagstaff Hill, which is a prominent, recognisable headland on the northern side of Port Douglas town centre that provides a green tropical backdrop to the town.
The dominance of vegetation over built form is an important element in the townscape of Port Douglas. The perception of a tropical landscape setting is conveyed by the combined effect of:
(a)the enclosed character of the roads, where the private and public landscapes form avenues of native and non-native planting, including the iconic avenue of oil palms;
(b)the high-quality, lush landscaping that complements the tropical resort town atmosphere, including:
(i)the dense stands of tropical vegetation that form distinctive edges, such as that along the coastal edge;
(ii)the semi-enclosed, resort-style landscapes with an informal semi-natural character that combine a diverse range of exotic and native plant species to provide lush, multi-layered planting around the built form;
(c)the open, golf-course landscapes; and
(d)the landscapes around the town centre that interface with the commercial and higher-density residential built forms.

The Shire’s natural environmental features are recognised to play an important role in defining the area’s identity. The prominent landscape features and the visual predominance of landscape vegetation over built form are defining character traits of Port Douglas. That said, the relationship between landscape and built form is not one-dimensional. It is not simply characterised by the visual presence and prominence of vegetation or the predominance of the landscape elements over the built form elements. It is informed by a more nuanced consideration of the interplay between built form, landscape and topographic characteristics. This was acknowledged by Mr Butcher. It is also identified in the Planning Scheme, which defines “neighbourhood character” as:
“The qualitative interplay of built form, vegetation and topographic characteristics that make one place different from another.”
With respect to the built environment, the Shire is characterised by a variety of buildings that contribute to the sense of place and have informed the character and style of the settlement areas in the Shire. A distinct tropical vernacular is established in the Shire. It is represented in buildings from a wide variety of different eras of Shire development and progress. This distinctive tropical vernacular is recognised in the Planning Scheme as contributing significantly to the identity of the Shire, making the place special for visitors and residents alike.
For this appeal, the settled areas of Port Douglas are of relevance. They are generally contained along a peninsula that terminates at Flagstaff Hill in the north and extends north-south between the estuarine and wetland landscape of Packers Creek to the west and the coastal edge to the east.
Port Douglas Road, which becomes Davidson Street towards the Port Douglas town centre, is the main armature along this linear settlement area. It is the principal route by which people experience the locality. This is recognised on the Landscape Values Overlay Map in the Planning Scheme, which marks the length of the road as a scenic route and an area of about 100 metres width on either side of the road as a “Scencic route buffer”.[59]
[59]Exhibit 9.01 pp 451 and 477-8.
The built form typologies and uses differ along the length of Port Douglas Road but there are three discernible sections, namely:
(a)the southern section, which is characterised by a range of residential and commercial uses, with the residential uses mainly taking the form of detached houses;
(b)the northern section, where Port Douglas Road becomes Davidson Street, which is characterised by a greater mix of uses, including resorts, smaller multiple dwellings and community facilities; and
(c)the central section, between Port Douglas Road’s intersection with Port Street in the north through to its intersection with Old Port Road and Barrier Street in the south, which is predominantly characterised by resorts.
Despite the varying built form typologies in the three distinct sections along Port Douglas Road, the built form character within the township exhibits a recognisable consistency across a range of building typologies, scale, use and age. It is a character that is recognisable in both heritage and contemporary buildings. It generally reflects a European, tropical colonial style of architecture comprised of rectilinear buildings with:
(a)expressed and steep pitched roofs, including gable and hipped roof forms;
(b)generous projecting eave overhangs;
(c)verandas and breezeways; and
(d)consistent building heights in the order of three storeys.
The built-form character of the existing development in Port Douglas accords with the description of the tropical Queensland vernacular architectural style in Planning Scheme Policy – Building design and architectural elements. That policy provides guidance on achieving consistency with the requirements and outcomes of various parts of the Planning Scheme. The purpose of the Planning Scheme Policy is to:
(a)specify and illustrate the architectural elements and building design features considered appropriate for residential, commercial and tourist developments in the Shire;
(b)encourage high quality tropical vernacular architecture throughout the Shire;
(c)provide for the development of a distinctive architectural style in the Shire; and
(d)encourage architecture that is relevant to and compatible with the tropical climate of the Shire.
The Planning Scheme Policy – Building design and architectural elements explains that a tropical Queensland vernacular architectural style has developed in response to the tropical climate of the Shire. It says that many of the elements and features of the architectural style originate from older style Queenslander buildings. However, modern interpretations have resulted in a distinctive architectural style that is aesthetically appealing and responsive to the tropical climate. It is those architectural elements and building design features that are responsive to the tropical climate which are said to be representative of the tropical Queensland vernacular architecture and encouraged in the Planning Scheme.
The Planning Scheme Policy describes the key architectural elements as:
(a)large open balconies and verandahs with balustrading that:
(i)provide an interface between indoor and outdoor areas;
(ii)are of a size and configuration that facilitates their use as outdoor living spaces year round in the tropics;
(iii)are designed and positioned to provide privacy, access to cooling breeze and refuge from intense heat while affording protection from intense rains;
(iv)appear open and light weight with strong horizontal, vertical or diagonal lines;
(b)awnings, eaves and overhangs that:
(i)are responsive to the climate and sited to afford weather protection;
(ii)provide for filtered light to enter the building;
(iii)articulate the building’s façade and add visual interest;
(iv)for eaves, are a minimum of 700 millimetres;
(c)a variety of roof profiles that:
(i)are a distinctive element of the building and which are well-articulated with several apexes and profiles. They typically include hipped roofs, gable roofs and a combination of the two, but may include a curved roof;
(ii)are steeply pitched or have an angle generally greater than 30 per cent to provide good air circulation;
(iii)include roof ventilation systems, such as ridge vents, to improve air circulation within the roof cavity, thereby assisting in climate control;
(iv)are generally of light weight metal construction;
(d)gables that:
(i)articulate the roof and the façade of the buildings;
(ii)provide visual interest at roof level;
(iii)reduce the overall bulk of the building; and
(iv)may extend from the building façade to provide additional eaves and screening;
(e)columns and posts that:
(i)assist in articulating the building facades;
(ii)are light weight and slim line;
(iii)are structural and which may also be decorative;
(f)shutters and screens that:
(i)protect windows, doors and other openings in a building from the sun and other climatic elements such as wind and rain;
(ii)facilitate air circulation;
(iii)are often adjustable or moveable;
(iv)may provide privacy;
(v)may be a functional and an aesthetic element of a building;
(vi)may be timber, metal or glass;
(vii)may be perforated surfaces such as battens, lattice and mesh to provide privacy while facilitating ventilation;
(viii)screen utility areas and undercrofts; and
(g)expansive windows and doors that:
(i)can be opened or adjusted to allow flow through ventilation; and
(ii)facilitate good circulation of people between indoor and outdoor spaces.
The Planning Scheme Policy – Building design and architectural elements further explains that key building design features that are representative of tropical Queensland vernacular architecture are:
(a)repetitive design features in a building that reduce the bulk of the building;
(b)elevation of a building on lightweight pier foundations and incorporating lightweight exterior building materials;
(c)articulation to a building façade and roof profile to reduce the bulk of the building and provide weather protection;
(d)large recesses under the roof creating indoor and outdoor living spaces as a main feature of a building; and
(e)the reduction of the scale and bulk of buildings through a mix of articulation, use of architectural elements and exterior finishes.
What is the character of the local area surrounding the subject land?
The subject land is of an irregular shape and has a total area of 20,670 square metres. It has an approximate frontage of 169 metres to the western side of Port Douglas Road. It is separated from the carriageway of Port Douglas Road by a wide road verge, ranging between 31 and 38 metres in width, which slopes steeply away from the road. The subject land sits approximately two to three metres below the level of the carriageway of Port Douglas Road. There is a concrete path in the road verge, which is positioned close to the boundary of the subject land and at a similar level to the subject land.
The subject land is in a local area comprised of the central section of Port Douglas Road. It sits within an urban context of resort-style tourist accommodation and recreation land uses. Consistently with the character of Port Douglas township, those urban uses are set within a dominant landscape setting where the built form is only partially visible.
To the west, the subject land is adjoined by the open landscape of the Mirage Country Club golf course. Beyond this are views of the lowland in the foreground and the elevated landscapes of the Shire in the background. To the north, the subject land is bounded by the Mirage Country Club and golf course. Along the subject land’s boundary, on the Mirage Country Club land, there is a group of large, established shade trees, which are mapped as a major area of vegetation on the Port Douglas / Craiglie Townscape Plan in the Planning Scheme. Beyond those trees is an open, grassed putting green and the two-storey club house and facilities of the Mirage Country Club. The clubhouse sits in vegetated and open-grassed surrounds. The Mirage Country Club golf course also occupies the land on the eastern side of Port Douglas Road, opposite the subject land.
To the south, the subject land is adjoined by the Oaks Port Douglas Resort. Along the boundary, there is a band of vegetation that includes established and establishing palms trees. Some of the vegetation is on the subject land, and some is within the adjoining land. The resort is comprised of a central building that houses the hotel facilities and several, separate accommodation buildings. The buildings are up to three storeys in height and are arranged in a pavilion-style layout. The space between the buildings is punctuated by landscaping. Breezeways link the accommodation buildings to the centrally located swimming pool and the central facilities building. Dense landscaping is provided in the front setback and road reserve. It conceals most of the resort from views obtainable from the Port Douglas Road carriageway. Only the central facilities building is visible from Port Douglas Road.
Further south, on the western side of Port Douglas Road, is the Reef Resort. It is comprised of multiple buildings with heights of up to two storeys.
Approximately 110 metres north of the subject land is the nearest roundabout on Port Douglas Road, where the avenue of oil palms exits toward the Sheraton Grand Mirage Resort. The Sheraton Grand Mirage Resort is approximately 540 metres to the northeast of the subject land, on the eastern side of Port Douglas Road. The central facilities and guest room buildings are located behind car parking. They are well set back from the landscaped frontage. The buildings have a height of up to three storeys. They are situated within a large, landscaped site, which provides extensive swimming pools and water features adjacent the buildings. The three main hotel buildings are centrally located, adjacent to Four Mile Beach. Several smaller groups of buildings are located to the north and south of the main resort complex. The spaces between the buildings are interspersed with dense, tropical landscaping, pools and parts of the golf course.
The local area also contains other resort-style tourist accommodation with frontage to Port Douglas Road, including Mantra PortSea, Port Douglas Sands, the Ramada Resort, Silkari Lagoons and the Niramaya Villas.
The resort-style tourist accommodation in the local area, and Port Douglas generally, incorporates the key architectural elements that are identified and explained in the Planning Scheme Policy – Building design and architectural elements as those that are representative of tropical Queensland vernacular architecture. These developments have adopted what the architects described as “passive” responses to achieving comfortable micro-climates for common spaces including lobbies, lounges, food and beverage facilities and access corridors. These passive responses are spaces that are typically open to the environment and hosted under large roof forms offering shelter and allowing for air flow. Reliance on air conditioning in these developments is often limited to individual hotel suites and enclosed function and administration facilities. These resort-style tourist accommodation developments illustrate an appropriate design response to the tropical climate and reinforce to residents and visitors a sense of place particular to Port Douglas, being built-form designed to allow one to comfortably appreciate the tropical climate.
Port Douglas Road is a well-vegetated road. It has a range of vegetation along its alignment, the most visible of which is the iconic oil palms that sit in a predominantly grassed verge. The oil palms are an established feature of the Port Douglas landscape and streetscape. They are complemented by a range of other tropical trees species along the road’s alignment that help reinforce the tropical character of Port Douglas. Although views of the broader landscape setting from Port Douglas Road are available through gaps in the existing vegetation, the broader setting is not prominent in the immediate vicinity of the subject land. Along some sections of Port Douglas Road, the verge landscapes present as near impermeable screens to the adjoining built form behind.
In the central section of Port Douglas Road, the visibility of the built form of the development is typically reduced due to dense tropical vegetation. This is a feature of the area that contributes to the character, identity and sense of place of Port Douglas. Nevertheless, the character of the built form is appreciable from:
(a)the glimpses of the resorts obtained from the carriageway of Port Douglas Road;
(b)the extensive lengths of existing concrete paths located along the road verge;
(c)the beach; and
(d)the resort facilities that are open to the public, such as the golf course and spa facilities.
The central section of Port Douglas Road exhibits the recognisable built-form character of Port Douglas described in paragraph [83] above. In addition, the character of the local area is informed by:
(a)buildings that typically do not exceed three storeys in height; and
(b)resort-style tourist accommodation development that comprises a main building surrounded by several smaller building modules, such that the built form is dispersed amongst areas of landscaping and pools.
Whether the buildings within the resort-style tourist accommodation development are modulated and stepped or separated into smaller building envelopes, they have a built form pattern of smaller building envelopes that collectively contribute to a larger development.
Although the developments in the central section of Port Douglas Road, and elsewhere in Port Douglas, were constructed at different times and under different planning regimes, they are nevertheless relevant to an appreciation of the character of the area. To disregard existing development because it was approved prior to the planning controls would attribute to the area a character that it simply does not have.[60]
[60]The Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49].
The character of this resort-style tourist accommodation development in the central section of Port Douglas Road is one of Queensland tropical vernacular, built form arranged in a pattern of smaller building envelopes within a tropical landscape context that provides a sense of visual, physical and environmental permeability.
What are the design attributes of the proposed development?
The development application seeks a material change of use for a luxury, five-star resort complex. The use is to be conducted in a single building with five levels and a rooftop terrace containing roofed structures.
After the conclusion of the evidence in the trial, Chiodo Corporation Operations Pty Ltd made a minor change to its development application.[61] Relevantly, it now seeks to make a material change of use that is defined by reference to architectural plans, landscaping plans and the outcome depicted in the photomontages.
[61]Exhibit 1.86.
There is uncertainty about the natural ground level. Consequently, there is disagreement between the experts about the precise height of the building. Leaving those issues aside, the experts agree that:
(a)from the west the building presents as a building with five levels plus a roof top terrace containing structures; and
(b)from the east the building presents as a building with four levels plus a roof top terrace containing structures.
The distance between the proposed lower ground level and the top of the lift overrun (being the highest element on the rooftop terrace) is approximately 20.8 metres.
The building outline has a site coverage of approximately 11,253 square metres (or about 54 per cent of the area of the subject land).[62]
[62]Exhibit 7.06 p 2.
The building is proposed to be constructed diagonally across the subject land from the front southeast corner to the rear northwest corner. The overall building envelope measures approximately 165 metres in length and 75 metres in width.
Due to the adoption of curved floor plans and tapering floor plates at the upper levels, the distance between the building and the boundaries varies at different locations across the subject land. The setbacks to the northern and southern boundaries increase where the building curves away from these boundaries. The plans depict the building with approximate minimum boundary setbacks of:
(a)17 metres from the eastern boundary, which fronts Port Douglas Road;
(b)seven metres from the northern side boundary, which adjoins the Mirage Country Club;
(c)four metres from the western rear boundary, which adjoins the Mirage Country Club golf course; and
(d)six metres from the southern side boundary, which adjoins the Oaks Port Douglas Resort.
The single, enclosed building envelope is to contain a central, multi-storey atrium that will incorporate the hotel lobby, lounges, and food and beverage facilities. Hotel suites, and various function rooms, food and beverage facilities, administration spaces, and back of house areas are proposed across the balance five functional levels of the building.

The existence of other possible sites that might deliver similar economic benefits to the community is a matter that tempers the weight to be attributed to the existence of a need in the balancing exercise. Nevertheless, the recognised planning need, coupled with evidence of an existing economic need, is a matter that lends considerable weight to the case for approval.
Are there other benefits provided by the proposed development that lend weight to its approval?
Chiodo Corporation Operations Pty Ltd raises two additional benefits that it contends lend weight to an approval.
The first is the economic benefits associated with the initial investment in construction of the proposed development and the ongoing operational employment. This was the subject of evidence from Mr Duane.
In Mr Duane’s view, the key employment benefits include:
(a)construction expenditure in excess of $290 million spent over a two-year construction period;
(b)direct and indirect economic value added to the Douglas Shire in excess of $200 million over the construction period;
(c)more than “350 person years” (full-time equivalent) onsite over the construction period;
(d)direct and indirect employment in the Douglas Shire of about “480 person years” (full-time equivalent) over the construction period;
(e)on an ongoing basis:
(i)annual revenue of more than $30 million;
(ii)direct and indirect economic value to the Douglas Shire of over $20 million;
(iii)more than 200 full-time employees onsite; and
(f)direct and indirect employment in the Douglas Shire in excess of 300 full-time equivalent persons.
In his report, Mr Duane does not reveal the basis for his calculations about the extent of benefits to the Port Douglas economy in monetary terms, nor does he provide a cogent explanation for his opinions in that regard. When tested about those matters during cross-examination, Mr Duane revealed that his opinions about the benefits delivered during construction were based on information provided by Chiodo Corporation Operations Pty Ltd and its solicitors. He accepted this at face value. The source information was not appended to his report nor was it the subject of evidence from Chiodo Corporation Operations Pty Ltd.
In those circumstances, I am not persuaded to accept Mr Duane’s evidence about the monetary value of economic benefits that the proposed development would deliver, or about the number of people who would be employed during the construction period. Although Mr Duane’s report also did not reveal the basis for his opinions about the monetary and employment benefits of the resort from its ongoing operation, during cross-examination he provided a cogent explanation for those opinions, and I accept them.
I have reservations about the extent of benefits described by Mr Duane, particularly as it relates to the benefits associated with construction of the proposed development. Nevertheless, I am persuaded that the proposed development would deliver economic benefits associated with the initial investment in construction and the provision of ongoing operational employment. It would also provide additional economic benefits by reason of the flow on benefits to the economy associated with increased employment and the attraction of additional tourists to Port Douglas. The public benefit of this is obvious enough, particularly when one recalls the importance of tourism to the local economy. This is a matter that lends weight to approval of the proposed development.
The second benefit on which Chiodo Corporation Operations Pty Ltd relies is a cultural benefit. The cultural benefit is said to flow from the inclusion of local First Nation’s Peoples cultural activities and experiences as part of the integrated leisure facilities to be delivered by the proposed development. They are to be provided generally in accordance with a Statement of Cultural Intent. This is a relevant matter that lends weight to the approval of the proposed development.
Should the proposed development be approved in the exercise of the planning discretion?
The appropriate approach to the exercise of the planning discretion is explained in paragraphs [18] to [22] above.
Chiodo Corporation Operations Pty Ltd’s case in support of approval is founded on its contention that the proposed development complies with all the assessment benchmarks put in issue by the Council.
As I have already identified above, Chiodo Corporation Operations Pty Ltd has not demonstrated compliance with all the assessment benchmarks put in issue by the Council.
Chiodo Corporation Operations Pty Ltd’s alternative case is founded on the proposition that, in the event that the Court finds non-compliance with any of the assessment benchmarks, the non-compliances do not sound in any planning consequences in terms of:
(a)the suitability of the land use;
(b)hard impacts; or
(c)intangible impacts.
The case for approval has merit. There are five matters that lend weight to an approval of the proposed development.
First, the Planning Scheme makes express provision for a town planning and community need for land in Port Douglas, including the subject land, to be used for tourist accommodation facilities. The Planning Scheme anticipates that those accommodation facilities may be provided in the form of a resort complex that provides short-term accommodation for tourists and visitors that is integrated with leisure facilities of the type proposed. This is a matter to which weight should attach, in support of approval, in the exercise of discretion.
Second, there is no suggestion of any hard amenity impacts, such as noise impacts, occasioned by the use. This is a matter that weighs in support of approval.
Third, the evidence establishes that there is an existing need for a further luxury resort complex in Port Douglas. This is a matter of importance that weighs in favour of approval, particularly given the importance of tourism to the economy of Douglas Shire.
Fourth, the proposed development would deliver economic benefits in terms of employment and flow-on benefits to the economy from such employment. This is a matter of importance that weighs in favour of approval.
Fifth, the proposed development will deliver cultural benefits by reason of the inclusion of local First Nation’s Peoples cultural activities and experiences as part of the integrated leisure facilities to be delivered by the proposed development. This is a matter of public interest that weighs in favour of approval.
Against those matters, it is necessary to weigh the non-compliances with the Planning Scheme.
As a consideration of the cases referred to in paragraphs [18] to [22] above reveals, whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion. A planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.[133] The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. It is not a matter of mere caprice. The decision must withstand scrutiny against the background of the applicable planning scheme and proper planning practice.[134] It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other. It should recognise that the provisions of a planning scheme are seen to embody the public interest and, as such, there is a public interest in compliance with them.[135] However, not every non-compliance is contrary to public interest or will warrant refusal. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”.[136]
[133]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 808 [60].
[134]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, 809 [63] citing Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, 102.
[135]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [178]-[179] citing Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003.
[136]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [178]-[179] citing Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003.
Here, given the Planning Scheme anticipates the type of use proposed on the subject land, and there is a need for it, careful consideration must be given to the verbiage of the Planning Scheme to ascertain whether the need for a luxury resort complex and the other matters that support approval would render the effect on character justifiable.[137]
[137]See Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27, [871] and Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, 357 [13].
In this case, the collective weight of the matters that support approval does not provide a sound town planning basis to approve the proposed development in face of the identified non-compliances with the assessment benchmarks in the Planning Scheme. The non-compliances relate to a matter of significant town planning consequence, namely the character and sense of place of Port Douglas.
The planning context traversed in my reasons above demonstrates an important planning strategy to protect the character and sense of place of Port Douglas. Although the Planning Scheme anticipates use of the subject land for a resort complex, it is apparent that the support is conditional upon any such development achieving consistency with the intended character of the area.
The importance of the planning strategy with respect to character and sense of place is well-explained by reference to but a small selection of the many provisions in the Planning Scheme that seek to protect Port Douglas’s character and sense of place.
With respect to the built environment, s 3.2.1.6 records:
“(1)Douglas Shire is characterised by a variety of buildings and places of heritage significance which contribute to the sense of place and have informed the character and style of the settlement areas in the Shire.
(2)A distinct tropical vernacular is established in the Shire, representing a wide variety of different eras of Shire development and progress. This distinctive tropical vernacular contributes significantly to the identity of the Shire, making the place special for visitors and residents alike.”
(emphasis added)
It is apparent from these statements of strategic intent that while the Shire’s natural environmental features are invaluable from a tourism perspective, so too is the distinctive tropical vernacular displayed by the variety of buildings constructed across different eras. The distinctive tropical vernacular is highly valued for its contribution to the identity of the Shire, which makes the place attractive for visitors.
The importance to the Shire of both the natural environment and the character of the built and landscaped environment is also evident from the strategic intent with respect to the economy in s 3.2.1.7, which relevantly states:
“(1)The tourism and sugar industries are the principal determinants of economic activity, employment and population growth in Douglas Shire. The development and construction industry and the retail service sectors are dependent on these important income generating industries. Other primary production activities, such as fisheries, although important, have a relatively minor role to play.
(3)Both domestic and international tourist visitation continues to be vital to the Shire’s economy. The tourism industry relies primarily on the internationally renowned natural attractions of the Great Barrier Reef and the World Heritage Area rainforests, as well as the Shire’s outstanding scenic setting. Port Douglas will continue to be one of Australia’s premier tourism destinations. Great care is needed to ensure that development not only protects the Shire’s natural assets, but promotes attractions that are relevant to, and appropriate for the Shire, so that the long-term unique attractiveness of the Shire to tourists is sustained.”
(emphasis added)
Having identified the important attributes of the Shire in terms of its physical setting, environment, historical context, built and landscaped environment and economy, the strategic intent in the Planning Scheme goes on to address its plans to shape the future in s 3.2.2. In s 3.2.2.1(1), the Planning Scheme records:
“(1)The planning scheme has a very important role to play in ensuring that growth in Douglas Shire is aimed at minimising human impact on the environment while continuing to support economic progress and social well-being. Essentially this entails strong stewardship and the pursuit of planning strategies that:
(a)conserve the Shire’s natural environment and outstanding biodiversity values;
(b)utilise the region’s natural resources efficiently, in particular water and energy, while reducing waste;
(c)ensure the region’s atmosphere remains clear and clean;
(d)contain urban growth to a defined footprint and promote the best use of land that is allocated for that purpose;
(e)support development of a diverse thriving economy that complements the region’s green and environmentally responsible image.
(f)provide opportunities that ensure everyone is able to participate, live, work and benefit in the healthy cohesive environment that the Shire promotes.”
How the planning strategies relate to sense of place and identity are explained in s 3.2.2.2, which relevantly states:
“3.2.2.2 Reinforcing Douglas Shire’s sense of place and identity
(1)Sense of place is a dual characteristic that derives from certain distinctive features of a place and the feelings and perceptions that people hold with regard to that place. In planning, it is usually used to promote positive places that foster community attachment.
(2)At the Shire-wide scale, the topography, creeks and rivers, and the coastline contribute significantly to the Shire’s sense of identity. Residents identify closely with the Shire’s physical setting, and this in part, contributes to a heightened sense of place and interest in local issues. This physical definition creates a range of smaller communities within the Shire’s boundaries, many with their own unique sense of identity, character, history and culture. It is important to protect this sense of place as it enhances the quality of life for its residents, and is of enormous value for tourism.

(3)During the life of this planning scheme, the Shire will continue to grow while retaining the unique characteristics of individual communities and building upon these qualities through local variation in development requirements. This will be done through the Local Plans which are tailor-made to suit local needs. Amongst other things, each local plan will:
(a)identify the qualities that make the individual place special, including environmental and built form characteristics;
(b)promote gateway treatments, nodes of activity, viewing corridors and landmark sites;
(c)define an urban / rural interface boundary to reinforce the sense of town and country.”

It is in the context of these provisions about the sense of place that s 3.2.2.2(5) calls for development to be carefully planned to achieve sensitive incremental change, rather than instant, over-scaled development projects, that have little local context or character.
The planning goals with respect to built form design and character are also further explained in Theme 4 – Strong communities and identity, particularly in the element that relates to sense of place, community and identity. In that regard, s 3.7.4 relevantly states:
“(1)Sense of place is the dual characteristic that derives from certain distinctive features of a place and the feelings and perceptions that people hold with respect to that place. Fostering a good sense of place promotes community attachment. New development in the Shire should avoid the delivery of homogeneous development consisting of identical communities. In growth areas, gated enclave communities will not be encouraged. The larger new developments will be supplied with a range of facilities to support new residents and to ensure that these new developments are a good place to live.
…
(3)New development will not be characterised by off-the-shelf corporate designs that have little regard for the Shire’s unique communities and sense of place, in order to ensure the experience of living and visiting the Shire is not diminished.”
(emphasis added)
The specific outcomes sought for this element include:
“(1)The distinctive character and unique sense of place of towns and villages and other communities, including Aboriginal communities, throughout the Shire is maintained, promoting community pride and well-being and community safety and prosperity.
…
(3)Through site specific tropical design, franchise corporate designs are adapted to integrate with established urban qualities that make the Shire’s local communities unique and distinct from other places.”
(emphasis added)
Reading those provisions with which the proposed development is inconsistent in the broader context of the Strategic framework referred to above, one can readily discern a strong planning policy to maintain the distinctive sense of place and character of Port Douglas, and of the various communities within Port Douglas. The character and sense of place that is sought to be achieved is not one that is “distinctive” in terms of being different to the design and character of built form present in the local area. Rather, the built form is to integrate with established urban qualities that distinguish the local area from other parts of Queensland. The distinctive sense of place is one that is informed by the Shire’s natural and rural settings, its unmistakeable Queensland tropical vernacular built form, and its landscape setting. In combination, these attributes make a vital contribution to the Shire’s identity that, in turn, contributes to the everyday experiences of residents and visitors alike. They are identified as critical to the tourism industry – one of two principal determinants of economic activity and employment in Douglas Shire.

The proposed development is not, as I have outlined above, without merit. Strong arguments have been made for its approval. That said, as I have already observed in paragraph [161] above, the disparate character of the proposed development is material. It is not a matter that can simply be attributed to the adoption of a more modern design approach or the provision of a standard of service expected of a luxury five-star resort. Modernism can, no doubt, be achieved in a way that pays homage to the existing Queensland vernacular whilst remaining responsive to the tropical climate. The proposed development is not inappropriate because of a modern design, but because that design is wildly discordant with the character of Port Douglas. It has the potential to diminish the experience of those visiting Port Douglas by detracting from their perception that the built form of Port Douglas is one characterised by Queensland tropical vernacular architectural style buildings with built form arranged in a pattern of smaller building envelopes within a tropical landscape context that provides a sense of visual, physical and environmental permeability.

What rings through with great finality is the importance of protecting what is unique and special to Port Douglas’ character. The proposed development’s many merits do not eclipse this essential consideration.
In the circumstances, I am not persuaded that a combination of partial compliance with the Planning Scheme and the matters supportive of approval provide a sound town planning basis to approve the development in the face of the non-compliances with assessment benchmarks that relate to character and sense of place of Port Douglas and the local area.
Conclusion
Chiodo Corporation Operations Pty Ltd has not discharged its onus. The development application is refused.

CITATION:	Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 44
PARTIES:	CHIODO CORPORATION OPERATIONS PTY LTD (ACN 619 297 997) (Appellant) v DOUGLAS SHIRE COUNCIL (Respondent)
FILE NO/S:	2827 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	14 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	5 to 8 September, 11 to 15 September, 19 September, 21 September and 12 October 2023
JUDGE:	Kefford DCJ
ORDER:	THE APPEAL IS DISMISSED. THE DEVELOPMENT APPLICATION IS REFUSED.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s refusal of a proposed development – where the proposed development is for a new resort complex in Port Douglas – where the appellant seeks a development permit for a material change of use to facilitate a luxury, five-star, resort complex contained in a single building – whether the proposed development is inconsistent with the character of Port Douglas – whether the proposed development disregards Port Douglas’ distinctive tropical vernacular – whether the proposed development results in an unacceptable visual amenity impact – whether the proposed development includes appropriate landscape works – whether the proposed landscaping is functional and durable and provides for ease of ongoing maintenance – whether the scale of the proposed development is appropriate given its location – whether the proposed development will create a major tourist accommodation and entertainment area that will draw focus from the Port Douglas Town Centre – whether the proposed development provides adequate car park numbers and car park management – whether there is a need for the proposed development – whether the proposed development should be approved in the exercise of discretion
LEGISLATION:	Planning Act 2016 (Qld), ss 43, 45, 59, 60, 65 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47 Planning Regulation 2017 (Qld) s 31, sch 24
CASES:	AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, applied Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251, approved Caravan Parks Association of Queensland Limited v Rockhampton Regional Council[2018] QPEC 52; [2019] QPELR 221, approved Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26, approved Garyf Pty Ltd v Maroochy Shire Council& Ors [2008] QPEC 101; [2009] QPELR 435, approved Harris v Scenic Rim Regional Council [2014] QPEC 16; [2014] QPELR 324, cited Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, approved Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25, approved McBain v Clifton Shire Council & Ors (1996) 2 Qd R 493, applied McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347, applied Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor [2023] QPEC 8, approved SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied Southway Services No. 2 Pty Ltd v Brisbane City Council [2022] QPEC 8; [2023] QPELR 544, approved SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied The Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited Westfield Management Limited v Pine Rivers Shire Council & Anor [2005] QPEC 15; [2005] QPELR 534, approved Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:	E Morzone KC and D Whitehouse for the Appellant M Batty and J Bowness for the Respondent
SOLICITORS:	Mills Oakley for the Appellant King & Company Solicitors for the Respondent