Chiodo Corporation Operations Pty Ltd v Douglas Shire Council
[2024] QCA 153
•23 August 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153
PARTIES:
CHIODO CORPORATION OPERATIONS PTY LTD
ACN 619 297 997
(applicant)
v
DOUGLAS SHIRE COUNCIL
(respondent)FILE NO/S:
Appeal No 16149 of 2023
P & E Appeal No 2827 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Planning and Environment Court Act
ORIGINATING COURT:
Planning and Environment Court at Brisbane – [2023] QPEC 44 (Kefford DCJ)
DELIVERED ON:
23 August 2024
DELIVERED AT:
Brisbane
HEARING DATE:
29 May 2024
JUDGES:
Flanagan JA and Brown AJA and Bradley J
ORDER:
Application for leave to appeal dismissed with costs.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant seeks leave to appeal, pursuant to s 63 of the Planning and Environment Court Act2016 (Qld), against the decision of the Planning and Environment Court dismissing an appeal against the decision of the respondent council to refuse a development application by the applicant – whether, as contended by the applicant, the Planning and Environment Court erred in exercising its discretion to refuse the development application – whether the alleged errors materially affected the decision of the Planning and Environment Court – whether leave to appeal should be granted
ENVIRONMENT AND PLANNING – PLANNING – PLANNING CONTROLS – QUEENSLAND – GENERALLY – LOCAL PLANNING INSTRUMENT – where the applicant appeals from the decision of the Planning and Environment Court, which dismissed an appeal against the decision of the respondent council to refuse the applicant’s development application – where the applicant contends that the primary judge conflated her consideration of two relevant criteria in exercising their discretion – whether an analysis of the primary judge’s reasons reveals that separate consideration was given to both criteria – whether the alleged error was material
COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – DUTY TO GIVE REASONS FOR DECISION – where the applicant appeals from the decision of the Planning and Environment Court, which dismissed an appeal against the decision of the respondent council to refuse the applicant’s development application – where the applicant contends that the primary judge failed to refer to a line of authority about the interpretation of planning schemes, which demonstrated a failure to apply it in the reasoning – whether the line of authority asserted by the applicant constitutes a discrete principle of construction – whether the primary judge failed to properly interpret the relevant planning scheme – whether the alleged error was material
Planning Act 2016 (Qld), s 45, s 60(3)
Planning and Environment Court Act2016 (Qld), s 63Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342; [2007] QPEC 112, considered
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QPELR 982; [2018] QCA 75, considered
Glass House Mountains Advancement Network Incorporated v Caloundra City Council & Excel Quarries [1997] QPELR 438, cited
HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230; [1992] QCA 384, cited
Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41; [1994] QPEC 47, considered
Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63; [2011] QCA 358, considered
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QCA 147, appliedCOUNSEL:
D R Gore KC, with J G Lyons, for the applicant
M J Batty and J E Bowness for the respondentSOLICITORS:
King & Wood Mallesons for the applicant
King & Company Solicitors for the respondent
FLANAGAN JA: On 28 September 2021, the respondent (“Council”) refused an application by the applicant (“Chiodo”) for a development permit for a material change of use to facilitate the development of a luxury five‑star resort complex on vacant land at 71‑85 Port Douglas Road, Port Douglas (“development application”).
On 14 November 2023, Chiodo’s appeal to the Planning and Environment Court of Queensland (“P&E Court”) against the refusal was dismissed and the development application was refused.[1]
[1]Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 44 (“Reasons”).
By application filed 20 December 2023, Chiodo applies to this Court for a grant of leave to appeal the decision and orders of the P&E Court. The application is made pursuant to s 63 of the Planning and Environment Court Act2016 (Qld), which provides:
“(1)A party to a P&E Court proceeding may appeal a decision in the proceeding, but only on the ground of error or mistake in law or jurisdictional error.
(2)However, the appeal may be made only with the leave of the Court of Appeal”.
For leave to be granted, Chiodo must not only demonstrate an arguable error or mistake in law but must also establish that the error is material in that it could have materially affected the decision of the P&E Court.[2]
[2]HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 at 237; Savage v Cairns Regional Council (2016) 214 LGERA 192 at 195, [8].
The P&E Court, pursuant to s 45 of the Planning Act 2016 (Qld), was required to assess the development application as if it were the assessment manager. The development application required impact assessment. While the P&E Court had a broad discretion in determining the appeal, as the development application required impact assessment, it was necessary that the exercise of the discretion be based on an assessment carried out against the assessment benchmarks in the Planning Scheme to the extent that they were relevant. Further, as identified by the learned primary judge, it was only necessary to carry out an assessment against the assessment benchmarks in the Planning Scheme to the extent that they were put in dispute by the parties.[3]
[3]Reasons [21], footnote 9.
The primary judge therefore had to assess the development application, relevantly, by reference to the following instruments:
(a)Version 1.0 of the Douglas Shire Planning Scheme 2018 (“Planning Scheme”);[4]
(b)Strategic Framework;[5]
(c)Tourist Accommodation Zone Code;[6]
(d)Port Douglas/Craiglie Local Plan Code (“Local Plan Code”);[7]
(e)Access, Parking and Servicing Code;[8] and
(f)Landscaping Code.[9]
[4]RB, vol 5, page 870.
[5]RB, vol 5, page 892.
[6]RB, vol 5, page 1045.
[7]RB, vol 5, page 1078.
[8]RB, vol 6, page 1225.
[9]RB, vol 6, page 1259.
If granted leave, Chiodo seeks to raise four grounds of appeal. The issue raised by grounds 2 and 3 concern the Local Plan Code. The alleged error is that the primary judge failed to give separate consideration to the issue of whether the development complied with Performance Outcome 4 (“PO4”) of the Local Plan Code, but rather conflated the consideration of PO4 with the consideration of the Overall Outcome in s 7.2.4.3(3)(d) of the Local Plan Code. The significance of this error, according to Chiodo, is that if PO4 were satisfied, that meant that the development complied with the Local Plan Code as a whole (“the first alleged error”).
As to ground 1, the error asserted by Chiodo is that the primary judge failed to apply the correct legal test in the application of four provisions of the Planning Scheme, being two provisions of the Strategic Framework, one provision of the Tourist Accommodation Zone Code, and one provision of the Landscaping Code. Chiodo’s complaint is that the primary judge failed to refer to a line of authority to the effect that such provisions should not be construed “too strictly” but, instead, subject to the qualification “to an acceptable degree”.[10] That failure, according to Chiodo, demonstrates that the primary judge failed to apply the correct test in construing these four provisions (“the second alleged error”).[11]
[10]Applicant’s Amended Outline of Argument, paras 25–26.
[11]Applicant’s Amended Reply, para 13.
As to ground 4, the applicant’s complaint is that the primary judge failed to recognise an inconsistency between a provision of the Tourist Accommodation Zone Code and a provision of the Access, Parking and Servicing Code (“the third alleged error”).
Chiodo accepts that the Court only needs to consider the third alleged error if the applicant succeeds in relation to either or both of the first or second alleged errors. This is because the issue of carparking raised by the third alleged error only arises if the use is approved.[12]
[12]Applicant’s Amended Outline of Argument, para 33.
For the reasons which follow, Chiodo has failed to establish the first and second alleged errors. Further, even if these errors had been established, Chiodo has failed to demonstrate that the errors are material errors, as they could not materially have affected the decision of the P&E Court.
In order to place the first and second alleged errors into context, it is first necessary to undertake an analysis of the Reasons.
The Reasons
At [102]–[118] of the Reasons, her Honour gave a detailed description of the design attributes of the proposed development. From the west, the building presents as a building with five levels plus a rooftop terrace containing structures, and from the east, it presents as four levels plus a rooftop terrace containing structures. The distance between the proposed lower ground level and the top of the lift overrun is approximately 20.8 metres. The building outline has a site coverage of approximately 11,253 square metres, which is about 54 per cent of the area of the subject land. The proposal is to construct the building diagonally across the subject land from the front south-east corner to the rear north-west corner. The overall building envelope measures approximately 165 metres in length and 75 metres in width.
The minimum setbacks for the building are seventeen metres from the eastern front boundary, which fronts Port Douglas Road; seven metres from the northern side boundary, which adjoins the Mirage Country Club; four metres from the western rear boundary, which adjoins the Mirage Country Club golf course; and six metres from the southern side boundary, which adjoins the Oaks Port Douglas Resort. As well as containing a central multi-storey atrium, the proposed building provides external private balconies for each unit on the upper ground floor and those floors above. Almost all of the balconies terminate with prominent planters at their outer edge. These landscape planters extend beyond the line of the balconies at each level and are approximately 1.2 metres deep.
Her Honour described the landscape and open space elements of the proposed development as including:[13]
[13]Reasons [113].
“(a)three communal pool areas, of which:
(i)one pool area is on the south-eastern corner with natural ground;
(ii)one pool area is on the south-western corner; and
(iii)one pool area is on the rooftop;
(b)…
(c)balcony planters on each floor and on the roof terrace;
(d)a combination of deep planting and podium planting areas around the building; and
(e)containerised planters on the roof terrace.”
Her Honour summarised the combined effect of the various elements of the building as follows:
“[116] Overall, considering the combined effect of the various elements of the building, the proposed development conjures an image reminiscent of the shape and structure of Uluru. It is oblong and organic in shape. The curve in the building creates a similar dome-like effect to that of Uluru. Visually, the relativity of the building’s height to its length and width reinforces a visual appearance reminiscent of Uluru. In addition, like Uluru, the proposed development’s hill-like form stands out as a distinctive element that is discordant with the surrounding landscape character.
[117]Chiodo Corporation Operations Pty Ltd’s election to define its proposed development by reference to a visual outcome that is generally in accordance with photomontages suggests that it accepts the evidence of Mr Butcher that, absent landscaping that hides the built form from view, the proposed development would be visually jarring.
[118]Having regard to the landscape plans and photomontages, it seems to me that Chiodo Corporation Operations Pty Ltd proposes to disguise the building’s indomitable form by shrouding it in vegetation and by incorporating other landscaping on the subject land and in the Port Douglas Road verge.”
The photomontages referred to by her Honour at [117] show a five-storey building with extensive and dense planter box landscaping on each balcony and the roof terrace.[14]
[14]RB, Book 4, pages 783–786.
From the parties’ “Agreed list of issues”,[15] her Honour distilled nine issues to be determined; namely:
[15]RB, Book 4, pages 857–862.
“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?”[16]
[16]Reasons [28].
Her Honour further noted that it was 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”.[17]
[17]Reasons [29].
As to the first issue concerning the unacceptable impact on the character and sense of place of Port Douglas and the local area, her Honour commenced her analysis by first identifying what were described as “uncontentious” provisions of the Strategic Framework, the Local Plan Code, the Tourist Accommodation Zone Code and the Landscaping Code, which together constituted the relevant assessment benchmarks. In paragraph [32](b) of the Reasons, her Honour identified that these benchmarks included the Overall Outcome in s 7.2.4.3(3)(d) and PO4 of the Local Plan Code.
Her Honour observed that the first assessment benchmark relied on by the Council to found its allegation of unacceptable character impact was s 3.2.2.2(5) of the Strategic Framework,[18] which provides:
“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.”
[18]Reasons [35]–[36].
At Reasons [38] to [39], her Honour set out the Overall Outcome in s 7.2.4.3(3)(d) and PO4. Section 7.2.4.3(3)(d) provides:
“(d)All forms of development will complement the tropical image of the town through distinctive tropical vernacular, urban design and landscaping.”
PO4 provides:
“Landscaping of development sites complements the existing tropical character of Port Douglas and Craiglie.”
Having considered these and other provisions in the broader statutory context,[19] her Honour observed:
“[51] 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.”
[19]Reasons [50].
In assessing the proposed development against the assessment benchmarks that the Council had put in issue concerning the design of the built form and the landscaping, and the character and amenity impact of it, her Honour identified 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?”[20]
[20]Reasons [56].
Her Honour observed that the issue of whether the development appropriately responded to the sense of place, character and identity of Port Douglas and the local area within which the subject land was situated, required consideration of the impression created by the aggregation of the built-form metrics, the use, and the building’s design.[21] The architecture expert called by Chiodo, Mr Curtis, opined that the proposed development was not over-scaled. Her Honour, however, noted Mr Curtis’ evidence that the proposed development adopted a biophilic design approach, such that “the proposed development resembles a low, rounded vegetated hill rising from the ground amidst the landscape.”[22] Her Honour noted that this description:
“…is contrary to the geographic and topographic context of Port Douglas where the physical references of Flagstaff Hill to the north and the distant National Parks to the west are the natural landmarks. There is no immediate reference to low rounded hills within the surrounding context. Given that context, a biophilic design approach that endeavours to impose, or manufacture, a man-made hill as a built form response is contrived and an inappropriate response to the established sense of place and identity of Port Douglas.”[23]
[21]Reasons [142].
[22]Reasons [146].
[23]Reasons [147].
At Reasons [154], her Honour considered the incorporation of landscape planters into the built form:
“Further, although the building is proposed to incorporate landscape planters to balcony edges and the roof area, from an architectural perspective this manufactured landscape response does not contribute to the tropical landscape character that is characteristic of Port Douglas or the local area, being a series of smaller building envelopes (either interconnected or stand-alone) that are located within and around a landscape environment. Rather, the proposed development will be perceived as a single large building envelope with landscape planters applied to the edge.”
Her Honour’s conclusion that the proposed development would have an unacceptable impact on the character and sense of place (of Port Douglas and the local area) was supported by the following detailed reasoning, which is set out in full:
“[160] Due to the combined effect of the height, setbacks, site cover, the adoption of a single, enclosed building design, the flat roof profile, and a design that fails to moderate its scale through the adoption of a Queensland tropical vernacular architectural style, the built form of the proposed development will be perceived as a dominant, bulky structure. It will be perceived as one large building form with minimal punctuation and modulation and no separation into a pattern of smaller building envelopes. … [T]he proposed development conjures an image reminiscent of the shape and structure of Uluru. The proposed development’s hill-like form stands out as a distinctive element that is discordant with the built-form character of the area and the surrounding landscape.
[161]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.
…
[163]Of itself, a design that incorporates landscaping into the design of the building is not out of character for Port Douglas. There are other examples of development that incorporate vegetation into the building.
[164]The incorporation of vegetation into building design is a design feature that is within contemplation when one reads performance outcome PO2 of the Landscaping code together with its associated acceptable outcomes. While acceptable outcome AO2.1 says that no acceptable outcomes are specified, acceptable outcome AO2.2 of the Landscaping code… provides for tropical urbanism to be incorporated into building design. The associated note explains that tropical urbanism includes many things such as green walls, green roofs, podium planting and vegetation incorporated into the design of a building. In those circumstances, I am prepared to assume that the incorporation of vegetation into the design of a building is not, of itself, out of character for Port Douglas. Nevertheless, I am not satisfied that the incorporation of vegetation into the building design for the proposed development is consistent with the landscape character of the area.
[165]The landscape character of Port Douglas is not simply characterised by the dominance of vegetation over built form, or by the incorporation of vegetation into building design, or by a combination of those two attributes. As was identified by Mr Butcher, it is the inter-relationship between the built form and the surrounding landscape that meaningfully contributes to the character, identity and sense of place of Port Douglas. That interplay between built form and landscaping provides a sense of visual, physical and environmental permeability within a tropical landscape context.
[166]By virtue of the adoption of a single, large built form covered in vegetation, rather than a decentralised resort layout with a series of small buildings interspersed with landscaping at ground level, the landscape character of the proposed development is discordant with that which exists in the local area. To adopt the words of Mr Curtis, “the proposed development will resemble a low, rounded vegetated hill rising form the ground”. It lacks permeability. I accept the opinion of Dr McGowan that there is an obvious difference in visual effect as between a vegetated hill or form emerging from the landscape and more scaled-back building forms being dispersed amongst densely planted landscaping. In this local area and region, the dominance of tropical landscaping is provided by the landscaping forming lush, multi-layered planting that softens and complements the built form, rather than hiding it. The proposed development does not provide the interplay between built form and landscaping that is characteristic of the resort‑style tourist accommodation development in the central section of Port Douglas Road. The landscaping seeks to disguise, not enhance.
[167]Overall, the character of the resort-style tourist accommodation development in the central section of Port Douglas Road is one of 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. The proposed development is discordant with this character. It is inconsistent with the Douglas Shire and Port Douglas sense of place and identity and will not offer a positive or meaningful contribution to the character of the township or the local area within which it sits.
[168]For the reasons provided above, I am satisfied that the proposed development does not:
(a) achieve sensitive incremental change, rather it represents an instant, overscaled development project that will have little local context or character;
(b)complement the tropical image of the town through distinctive tropical vernacular, urban design and landscaping;
(c)complement the existing tropical character of Port Douglas and Craiglie;
(d)have an appropriate scale and achieve an attractive built form that incorporates the character and natural attributes of the subject land and surrounding area as integral features of the theme and design of the development;
(e)have proportions and a scale that is consistent with the character of the area and local streetscape;
(f)achieve consistency with the prevailing landscape character of its setting;
(g)incorporate external finishes that are compatible with the landscape character;
(h)enhance the tropical, lush landscape character of the region;
(i)provide landscaping that contributes to and creates a high quality landscape character for the subject land, street and local area by enhancing the appearance of the proposed development from within and outside the development and that makes a positive contribution to the streetscape; and
(j)have landscaping that contributes to a sense of place, is functional to the surroundings, and enhances the streetscape and visual appearance of the development.
[169]As such, an assessment of the development application against s 3.2.2.2(5) of the Strategic framework; the overall outcome in s 7.2.4.3(3)(d) and performance outcome PO4 of the Port Douglas / Craiglie local plan code; the overall outcome in s 6.2.14.2(3)(b) and performance outcome PO3 of the Tourist accommodation zone code; the overall outcome in s 8.2.6.2(2)(h) and performance outcome PO3(c) of the Landscape values overlay code; and the overall outcome in s 9.4.6.2(2)(a) and performance outcomes PO1(c) and PO2 of the Landscaping code weighs in opposition to approval of the development application.”
Her Honour dealt with the second issue concerning unacceptable visual amenity impact at Reasons [170] to [227]. Her Honour accepted that the visual amenity of the proposed development would not be as extensive as that alleged by the Council, but ultimately found that the development would have an unacceptable visual amenity impact. Her Honour’s conclusion was arrived at by reference to the development being assessed against a number of benchmarks, including the requirements of s 3.5.5.1(1) and (2) of the Strategic Framework (which are two of the provisions relevant to the second alleged error). Her Honour set out these two provisions at Reasons [174]:
“(1)Development protects, maintains and enhances the region’s Landscape values as shown on the Landscape values overlay maps contained in Schedule 2.
(2)Major scenic routes and scenic outlooks, as shown on the Landscape values overlay maps contained in Schedule 2, are protected from both the detrimental visual impacts of development and inappropriate vegetation clearing that may detract from the scenic qualities of the scenic route, outlook or ocean-side views.”
In relation to s 3.5.5.1(1) of the Strategic Framework and the definition of “landscape values” in the Planning Scheme, her Honour considered that the landscape character along Port Douglas Road that contributed to the distinctive visual imagery of the Douglas Shire:
“…is one of 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.”[24]
Her Honour considered that the proposed development was discordant with this character and was therefore inconsistent with s 3.5.5.1(1) of the Strategic Framework.
[24]Reasons [223].
Her Honour considered the application of s 3.5.5.1(2) of the Strategic Framework at Reasons [198] to [220]. Her Honour concluded that the proposed development was inconsistent with this provision. Her Honour accepted that the loss of glimpses of the vegetated hill to the west was not a consideration that weighed against approval. Rather, her Honour’s conclusion was based on her finding that the proposed development was discordant with the character along Port Douglas Road, being one of “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”.[25]
[25]Reasons [209]–[211].
In considering the ninth issue, namely whether the proposed development should be approved in the exercise of the planning discretion, her Honour identified five matters that lent weight to an approval of the proposed development. First, the Planning Scheme made 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. Secondly, there was no suggestion of any hard amenity impacts (such as noise impacts) occasioned by the use. Thirdly, the evidence established that there was an existing need for a further luxury resort complex in Port Douglas. Fourthly, the proposed development would deliver economic benefits in terms of employment, and flow‑on benefits to the economy from such employment. Fifthly, the proposed development would deliver cultural benefits.[26]
[26]Reasons [389]–[394].
Her Honour, however, did not consider that the collective weight of these matters, which supported approval, provided a sound town planning basis to approve the proposed development in the face of the identified non‑compliances with the assessment benchmarks in the Planning Scheme. Her Honour considered that these non-compliances related “to a matter of significant town planning consequence, namely the character and sense of place of Port Douglas”.[27] Her Honour continued:
“[399] 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.”
[27]Reasons [398].
By reference to ss 3.2.1.6, 3.2.1.7, 3.2.2.1(1), 3.2.2.2 and 3.7.4 of the Strategic Framework, her Honour concluded as follows:
“[409] 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.
[410]The proposed development is not, as I have outlined above, without merit. Strong arguments have been made for its approval. That said … 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.
[411]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.”
The first alleged error
As already observed, the first alleged error concerns the primary judge’s failure to give separate consideration to whether the development complied with PO4 of the Local Plan Code. Chiodo asserts that her Honour conflated her consideration of PO4 with her consideration of the Overall Outcome in s 7.2.4.3(3)(d) of the Local Plan Code.
Section 7.2.4.3(3)(d) and PO4 are set out at [22] and [23] above. Chiodo submits that the structure of the Planning Scheme is such that, if PO4 were satisfied, then no consideration needed to be given to the Overall Outcome. By reference to the wording of PO4 and the Overall Outcome, Chiodo submits that PO4 is concerned only with landscaping, and not with built form, whereas the Overall Outcome is concerned with built form. By reference to Reasons [32](b), [38]–[39] and, in particular, [56], [116], [160], [166], [167] and [169], which are all set out above, Chiodo submits that her Honour impermissibly conflated the landscaping and built form issues.[28] This approach, according to Chiodo, involved three overlapping errors of law:
“First, the primary judge failed to identify and address the right question, namely, whether, considered separately, there was compliance with PO4. Secondly, the primary judge erred in principle, in failing to apply the decision-making structure dictated by the Planning Scheme. Thirdly, the approach taken by the primary judge necessarily involved a misconstruction of the Planning Scheme.”[29]
[28]Applicant’s Amended Outline of Argument, para 16.
[29]Applicant’s Amended Outline of Argument, para 18.
According to Chiodo, the structure of the Planning Scheme, which necessitates separate consideration of PO4, arises from two provisions. The first provision falls within Part 5 of the Planning Scheme which concerns tables of assessment. Section 5.4 is headed “Additional matters about determining the assessment criteria”. Section 5.4(1)(c)(iii) provides:
“(1)In addition to the above, the following rules apply in determining assessment criteria for each level of assessment:
(a)…
(b)…
(c)Code assessable development.
(i) …
(ii) …
(iii) that complies with:
(A)the purpose and overall outcomes of the code – complies with the code;
(B)the performance or the acceptable outcomes, where prescribed – complies with the purpose and overall outcomes of the code.”[30]
[30]RB, Book 5, page 939.
The second provision is s 7.1(6)(e) which falls within Part 7 of the Planning Scheme which concerns local plans. Section 7.1(6)(e) provides that each local plan code identifies the performance outcomes that achieve the overall outcomes of the local plan code.[31] The effect of these provisions is that if a proposed development complies with the performance outcomes of a code, it is taken to comply with the purpose and overall outcomes of the code, which in turn means that the development complies with the code as a whole.[32]
[31]RB, Book 5, page 1050.
[32]Applicant’s Amended Outline of Argument, para 11.
Section 5.4(1)(c)(iii) operates so as to provide two distinct paths for a proposed development to comply with the relevant code, in this case the Local Plan Code. Pursuant to s 5.4(1)(c)(iii)(A), if a proposed development complies with the purpose and overall outcomes of the Local Plan Code, then it is taken to have complied with the code. The second path, established by s 5.4(1)(c)(iii)(B), is that if a proposed development complies with the performance outcomes of the Local Plan Code, it is taken to have complied with the purpose and overall outcomes of the Local Plan Code and therefore, by operation of s 5.4(1)(c)(iii)(A), to have complied with the code.
In the present case, although s 5.4(1)(c)(iii)(B) refers to the “performance … outcomes”, it may be accepted that PO4 of the Local Plan Code was the only performance outcome relevant to the issue of compliance.
The essence of Chiodo’s submission is that the Reasons do not disclose any separate consideration by her Honour of PO4, as PO4 is concerned only with landscaping, and not with built form, whereas the Overall Outcome was concerned with built form. This submission fails at the threshold as it proceeds on an incorrect premise; namely, that in assessing the proposed development’s compliance with PO4, her Honour could not have regard to the built form of the proposed development. Once it is accepted that in considering PO4, her Honour was entitled to have regard to built form, a plain reading of the Reasons does not establish that her Honour failed to give separate consideration to PO4.
PO4, in terms, requires a consideration of the “landscaping of development sites” for the purposes of determining whether that landscaping “complements the existing tropical character of Port Douglas and Craiglie”. In circumstances where a significant aspect of the landscaping of the proposed development site is incorporated into the built form, a commonsense approach to the interpretation of PO4 is that it is appropriate in such circumstances to have regard to built form.[33]
[33]Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [57] per Morrison JA (with whom Margaret McMurdo P and Douglas J agreed).
In the course of oral submissions, Mr Gore KC, who appeared with Mr J Lyons for Chiodo, made the following two concessions:
(a)For the purposes of considering PO4, the P&E Court is permitted to take into account the landscaping encompassed in the built form;[34] and
(b)The application of PO4 requires some consideration of the interrelationship between the built form as proposed and the landscaping.[35]
[34]Transcript of Proceedings, 29 May 2024, T1-18, lines 41–46.
[35]Transcript of Proceedings, 29 May 2024, T1-22, lines 36–41. The second concession was consistent with the evidence of Chiodo’s own visual amenity expert, Mr Butcher, which her Honour set out at Reasons [165] set out at [28] above.
In assessing whether her Honour gave separate consideration to PO4, the Reasons should be read not only in light of these concessions, which reflect a commonsense approach to the interpretation of PO4, but also by having regard to the issues identified by the parties at first instance.
The third issue identified in the agreed list of issues was whether the impacts of the proposed development on the landscape values, sense of place and landscape character were appropriate and acceptable, having regard to a number of provisions of the Planning Scheme. The two provisions listed as relevant to the Local Plan Code were the Overall Outcome in s 7.2.4.3(3)(d) and PO4. The agreed list of issues therefore implicitly invited her Honour to consider both provisions. The fact that her Honour considered both provisions does not, in itself, establish a failure on the part of the primary judge to give separate consideration to PO4.
In its written submissions at first instance, Chiodo made reference to the effect of s 5.4(1)(c)(iii) of the Planning Scheme:
“For the subject land, development that complies with those PO’s are also to be taken to comply with the overall outcomes of the code. There are no PO’s applicable to the subject land that relate to the built form. The only PO of relevance is PO4 which relates to landscaping. Notwithstanding, it is submitted that the proposed development complements the tropical image of the town through distinctive tropical vernacular, urban design and landscaping.”[36]
[36]RB, Book 6, page 1521, para 93.
While Chiodo’s written submissions below separately addressed the Overall Outcome in s 7.2.4.3(3)(d) and PO4 of the Local Plan Code, overlapping considerations were identified. For example, in relation to the Overall Outcome, Chiodo submitted:
“The proposed development is designed to be responsive to local landscape values and tropical character in a contemporary way by adopting a biophilic design that incorporates landscape elements in around the built form and by reinforcing the visual ‘dominance’ of that vegetation over built form. The size and nature of the building, otherwise, is not such as to affect the tropical image or character of the township of Port Douglas or the local surrounding area.”[37]
[37]RB, Book 6, page 1544, para 221.
As to PO4, Chiodo submitted below:
“The on-site landscape consists of deep planting, podium planting and on-building planters within the subject site. …
The Appellant otherwise repeats its submissions set out above in relation to section 7.2.4.3(3)(d) above.”[38]
[38]RB, Book 6, page 1544–1545, paras 223 and 226.
In applying PO4 to the proposed development, the primary judge appreciated that significant aspects of the landscaping of the development site were to be incorporated into the built form.[39] This included landscape planters which extended beyond the line of the balconies at each level and were approximately 1.2 metres deep, as well as a combination of deep planting and podium planting areas around the buildings and containerised planters on the roof terrace. At Reasons [118] (which is set out in [16] above), her Honour identified from the landscape plans and photomontages that Chiodo proposed to disguise the building’s “indomitable form by shrouding it in vegetation and by incorporating other landscaping on the subject land and in the Port Douglas Road verge”.
[39]See [15]–[16] above.
At Reasons [168](b)–(c), her Honour, by way of conclusion in relation to the issue of whether the proposed development would have an unacceptable impact on character, separately concluded that she was not satisfied that the proposed development either complemented the tropical image of the town through distinctive tropical vernacular, urban design and landscaping (the Overall Outcome), and that she was also not satisfied that the proposed development complemented the existing tropical character of Port Douglas and Craiglie (PO4).
Chiodo submits that the separation of the issues at Reasons [168](b)–(c) does not demonstrate that her Honour gave separate consideration to PO4. According to Chiodo, what was required was for her Honour to expose reasoning which revealed separate consideration.
Upon a plain reading of the Reasons, these submissions cannot be accepted.
As already observed, the application of PO4 required a consideration of whether the landscaping of the development site complemented “the existing tropical character of Port Douglas and Craiglie”. Her Honour at Reasons [154] specifically addressed the issue of whether the “manufactured landscape response” contributed to “the tropical landscape character that is characteristic of Port Douglas or the local area”.[40] Her Honour identified the tropical landscape character as being a series of smaller building envelopes (either interconnected or stand-alone) that are located within and around a landscape environment. Her Honour compared this to the proposed development, which would “be perceived as a single large building envelope with landscape planters applied to the edge”.[41]
[40]Reasons [154].
[41]Reasons [154].
Further, at Reasons [166], her Honour accepted the opinion of Dr McGowan, the Council’s visual amenity expert:
“I accept the opinion of Dr McGowan that there is an obvious difference in visual effect as between a vegetated hill or form emerging from the landscape and more scaled-back building forms being dispersed amongst densely planted landscaping. In this local area and region, the dominance of tropical landscaping is provided by the landscaping forming lush, multi-layered planting that softens and complements the built form, rather than hiding it. … The landscaping seeks to disguise, not enhance.”
By way of conclusion in relation to the issue of character at Reasons [169], her Honour specifically listed PO4 and the Overall Outcome in s 7.2.4.3(3)(d) of the Local Plan Code (as well as other provisions) in determining that these matters weighed against the approval of the proposed development.
Her Honour’s findings at Reasons [154] and [166] correlate, in terms, with a consideration of whether the proposed development complied with PO4.
Chiodo has therefore failed to establish the first alleged error.
Even if the first alleged error had been established, such an error would not be material, in the sense that it could not materially have affected the decision at first instance.
In considering the issue of materiality, it is necessary to consider the first alleged error in context. The first contextual matter is that PO4 is a provision of the Local Plan Code. As correctly submitted by Chiodo:
“(a)the [Local Plan Code] addresses matters at the local level, and may be expected to provide more detailed planning for a site; [42]
(b)the [Local Plan Code] is ‘tailor-made to suit local needs’;[43]
(c)the [Local Plan Code] identifies 5 precincts within the [Local Plan Code] area,[44] but the subject land is not within one of those precincts (with the Planning Scheme provisions for those precincts being more specific and comprehensive than the provisions that apply to the subject land).”[45]
According to Chiodo, these matters are material, because they reinforce the importance of giving separate consideration to PO4.[46]
[42]Planning Scheme, s 7.1(1); RB, Book 5, page 1050.
[43]Planning Scheme, s 3.2.2.2(3); RB, Book 5, page 907.
[44]Local Plan Code, s 7.2.4.3(4); RB, Book 5, page 1079.
[45]Applicant’s Amended Outline of Argument, para 12.
[46]Applicant’s Amended Outline of Argument, para 13.
The second contextual matter is that Chiodo enjoyed reasonable success on a range of disputed issues. As outlined at [32] above, her Honour identified five matters that lent weight to an approval of the proposed development. Further, in relation to the issue of the proposed development’s impact on character, her Honour made determinations which either favoured an approval or were neutral including that the height of the proposed development was not determinative,[47] that the site coverage exceedance was of little moment,[48] that, at least viewed in isolation, the setbacks and site coverage were generally acceptable,[49] and that there were aspects of the proposed development that provided a degree of consistency with the character of Port Douglas.[50]
[47]Reasons [130].
[48]Reasons [137].
[49]Reasons [138].
[50]Reasons [139]–[141]; Applicant’s Amended Outline of Argument, para 8.
As to the issue of visual amenity impact, her Honour also made findings that either favoured an approval or were neutral. These included that the loss of glimpses of the vegetated hills to the west did not weigh against approval,[51] that the proposed development would not interfere with views from the Captain Cook Highway,[52] and that the scenic outlook on Flagstaff Hill would not be detrimentally impacted to a material extent.[53]
[51]Reasons [203]–[208].
[52]Reasons [214].
[53]Reasons [218]; Applicant’s Amended Outline of Argument, para 8.
Chiodo submits that if the first alleged error is established, it would have what is described as a “domino effect”.[54] Chiodo submits that if the primary judge had given separate consideration to PO4 and found that the proposed development complied with it, it would follow that the proposed development complied with the Local Plan Code. Such compliance would amount to an expression of what constitutes the public interest, which would then be the starting point for the exercise of the discretion under s 60(3) of the Planning Act 2016.[55]
[54]Applicant’s Amended Outline of Argument, para 32.
[55]Applicant’s Written Outline of Oral Argument, para 15 citing Abeleda v Brisbane City Council (2020) 6 QR 441 at 457, [42].
There are a number of difficulties with Chiodo’s asserted “domino effect”. First, even if it was thought that the primary judge failed to give separate consideration to PO4, her Honour made a specific finding that the proposed development did not complement the existing tropical character of Port Douglas and Craiglie as provided in PO4. This finding was supported by her Honour’s reasoning at Reasons [154] and [166], which are set out above. This reasoning included a finding that the proposed development would resemble a low, rounded vegetated hill rising from the ground. Further, her Honour specifically found that the proposed development did not provide the interplay between built form and landscaping that is characteristic of the resort-style tourist accommodation development in the central section of Port Douglas Road.
Chiodo submits, however, that where the primary judge considered landscaping in isolation, her Honour effectively acknowledged:
“…that the landscaping proposed would generally disguise the built form, that the visibility of the built form would be quite limited, and that the incorporation of vegetation into the design of the building was not, of itself, out of character for Port Douglas.”[56]
[56]Applicant’s Amended Outline of Argument, para 20.
According to Chiodo, these are indicators that the decision of the primary judge in relation to PO4 might have been different, if separate consideration had been given to it. This submission cannot be accepted. Once it is accepted that in considering PO4, her Honour was able to have regard to the landscaping encompassed in the built form as well as the interrelationship between the built form and the landscaping, any assertion that upon the matter being remitted, her Honour would make any different finding as to compliance with PO4, is without substance.
Secondly, any alleged failure on the part of the primary judge to separately consider PO4 is comprehensively subsumed by her Honour’s ultimate findings in relation to the proposed development having an unacceptable impact on character and visual amenity. As observed by her Honour, it was common ground between the parties that the outcome of the case was likely to be informed, in large measure, by her Honour’s findings about the appropriateness of the design and landscaping of the proposed development, having regard to its character and amenity impacts.[57] Her Honour’s conclusions in relation to the issues of character and visual amenity were informed by numerous assessment benchmarks in the planning scheme, including s 3.2.2.2(5) of the Strategic Framework. As set out at [34] above, her Honour by reference to a number of provisions of the Strategic Framework concluded that the proposed development was inconsistent in the broader context of the Strategic Framework. Her Honour considered that the design was “wildly discordant” with the character of Port Douglas,[58] and that the proposed development’s “many merits do not eclipse” what her Honour described as an essential consideration; namely, the importance of protecting what is unique and special to Port Douglas’ character.[59]
[57]Reasons [29].
[58]Reasons [410].
[59]Reasons [411].
The second alleged error
This error concerns an alleged failure on the part of the primary judge to apply the correct test in construing four provisions of the Planning Scheme. Chiodo asserts that this test is established by a line of authority to which her Honour did not refer.[60] The first two provisions are ss 3.5.5.1(1) and (2) of the Strategic Framework. These provisions constitute specific outcomes with respect to scenic amenity and were relevant to issue two concerning whether the proposed development would result in an unacceptable visual amenity impact. Section 3.5.5.1(1) provides:
“Development protects, maintains and enhances the region’s Landscape values as shown on the Landscape values overlay maps contained in Schedule 2.”
[60]RB, Book 5, page 919.
Section 3.5.5.1(2) provides:
“Major scenic routes and scenic outlooks, as shown on the Landscape values overlay maps contained in Schedule 2, are protected from both the detrimental visual impacts of development and inappropriate vegetation clearing that may detract from the scenic qualities of the scenic route, outlook or ocean-side views.”
The third provision is PO1(a) of the Tourist Accommodation Zone Code,[61] which deals with setbacks and provides:
“Buildings are set back to:
(a)Maintain the character and amenity of the area.”
[61]RB, Book 5, page 1045.
The fourth provision is the Overall Outcome in s 9.4.6.2(2)(a) of the Landscaping Code,[62] which provides:
“The tropical, lush landscape character of the region is retained, promoted and enhanced through high quality landscape works.”
[62]RB, Book 6, page 1259.
The third and fourth provisions were relevant to the first issue concerning whether the proposed development would have an unacceptable impact on the character and sense of place of Port Douglas and the local area. As already observed, PO4 and the Overall Outcome in s 7.2.4.3(d) of the Local Plan Code were also relevant to this issue.
The primary judge set out these provisions in full in the Reasons.[63] Her Honour concluded that the proposed development was inconsistent with both s 3.5.5.1(1) and (2) of the Strategic Framework.[64] As to PO1, the setback provision, her Honour observed at Reasons [138]:
“Viewed in isolation, the setbacks and site coverage of the proposed development are generally acceptable. However, this is not sufficient to overcome the inappropriate character impacts occasioned by the overall design nor to ensure that the built form is not bulky or visually obtrusive. On balance, an assessment of the development application against performance outcomes PO1 (Setbacks) and PO2 of the Tourist accommodation zone code does not lend any meaningful weight to either the case for refusal or the case for approval.”
[63]Reasons [174], [43] and [48].
[64]Reasons [225] and [220].
As to the Overall Outcome in s 9.4.6.2(2) of the Landscaping Code, her Honour concluded that the proposed development did not enhance the tropical, lush landscape character of the region.[65] Her Honour further concluded that the Overall Outcome in s 9.4.6.2(2)(a), together with other provisions of the Strategic Framework, the Local Plan Code and the Tourist Accommodation Zone Code weighed against approval of the development application.[66]
[65]Reasons [168](h).
[66]Reasons [169].
By reference to the words emphasised in italics and underlining in each of the four provisions set out above, Chiodo submits that there is a line of authority that such provisions should not be applied “too strictly” but should be applied subject to the qualification “to an acceptable degree”.[67]
[67]Applicant’s Amended Outline of Argument, para 22.
It may be accepted, and Chiodo does not assert otherwise, that a mere failure on the part of the primary judge to refer to a particular line of authority does not constitute an error of law. Chiodo submits, however, that such a failure demonstrates that the primary judge failed to apply the correct test in construing and applying the four provisions.
The starting point for a consideration of the second alleged error is that Chiodo did not bring the relevant line of authority to the attention of the primary judge. Nor did Chiodo make any submissions at first instance, by reference to this line of authority, as to how the four provisions should be construed or applied.
By reference to Acland Pastoral Co Pty Ltd v Rosalie Shire Council,[68] Chiodo did make the following written submission before the primary judge:[69]
“This case turns largely on questions related to character and amenity. In respect of character and amenity, it has been recognised by this Court that proposed development will often affect existing amenity. What the Court considered to be unacceptable, is a detrimental effect to an unreasonable extent according to the reasonable expectation of other land holders in the vicinity given the sorts of uses permitted under current town planning controls, answered according to the standards of comfort and enjoyment which are expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity.” (emphasis in original)
[68][2008] QPELR 342 at 348–349, [40] (“Acland Pastoral”).
[69]RB, Book 6, page 1503, para 18.
Her Honour, in her conclusion regarding visual amenity impact, which involved a consideration of s 3.5.5.1(1) and (2) of the Strategic Framework, referred to Acland Pastoral as follows:[70]
“It has long been recognised by this Court that new development will often affect existing amenity. The real issue is whether a development will have a detrimental effect to an unreasonable extent according to the reasonable expectations of other landholders in the vicinity given the requirements of the Planning Scheme. This is to be answered according to the standards of comfort and enjoyment that are expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity.”
[70]Reasons [226].
Chiodo submits that in the above passage the primary judge was not seeking to construe the relevant provisions in accordance with the asserted test but was rather only giving some general consideration to impacts on amenity.[71] In oral submissions, Mr Gore KC, while accepting that the point was a “relatively fine one”, sought to draw a distinction between a construction issue and a discretion issue.[72] The distinction sought to be made is without substance. While it may be accepted that the test in Acland Pastoral is concerned with the exercise of discretion rather than the proper construction of planning instrument provisions, the test implicitly recognises that, almost invariably, there are questions of degree in the application of planning provisions because, as observed by the primary judge, “new development will often affect existing amenity”.[73]
[71]Applicant’s Amended Outline of Argument, para 30.
[72]Transcript of Proceedings, 29 May 2024, T1-28 lines 40–44.
[73]Reasons [226].
Further, as recognised in Acland Pastoral by Dodds DCJ:
“Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness”.[74]
This notion of reasonableness in a consideration of amenity (and character) is informed more generally by the principle of construction of planning provisions, that they be read in a way that is practical and as intending to achieve balance between outcomes. That is, courts will endeavour to adopt a commonsense approach. As discussed below, the primary judge expressly had regard to these established principles of construction.
[74]Acland Pastoral at 348, [40].
In considering issue one concerning character, which included a consideration of PO1(a) of the Tourist Accommodation Zone Code and the Overall Outcome in s 9.4.6.2(2)(a) of the Landscaping Code, her Honour recognised that such provisions are to be read in their broader statutory context.[75] Her Honour observed that such an approach is:
“[c]onsistent 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.”[76]
[75]Reasons [50].
[76]Reasons [50], footnote 32.
In support of that proposition, her Honour cited a number of cases including Project Blue Sky Inc v Australian Broadcasting Authority,[77] AAD Design Pty Ltd v Brisbane City Council,[78] and Zappala Family Co Pty Ltd v Brisbane City Council.[79]
[77](1998) 194 CLR 355, 381–2, [69]–[71].
[78][2013] 1 Qd R 1.
[79](2014) 201 LGERA 82, 94–96, [52]–[58].
In Zappala, Morrison JA set out the applicable principles relevant to the interpretation of planning schemes. In essence, this is a repetition of the applicable principles of statutory interpretation generally, with particular emphasis on the text of the provision and the need to consider the provision in context. His Honour did, however, observe that there may be some room to ensure planning schemes are read in a way which is reasonable and balanced:
“55The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the
‘modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense …’
56The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.
57As was said by Chesterman JA in AAD Design:
‘Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J … in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360:
“To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure…”.’
58However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.”
The primary judge therefore appreciated the principles and canons of statutory interpretation relevant to planning provisions. One of those principles is the adoption of a commonsense approach which, at least implicitly, encompasses the asserted test identified by Chiodo.
Quite apart from Chiodo’s failure to bring this line of authority to her Honour’s attention and the fact that her Honour appreciated the relevant principles and canons of statutory construction applicable to planning provisions, there are two further reasons why Chiodo has failed to establish the second alleged error. First, the line of authority to which Chiodo refers does not, in my view, establish a discrete principle of construction as asserted by Chiodo.
Chiodo seeks to establish this test first by reference to Jedfire Pty Ltd v Council of the City of Logan and White,[80] where Skoien SJDC observed:
“The raw words of the section have to be taken with a grain of salt. Any rezoning for a proposed development might be said in some degree to create or increase a traffic problem and to affect detrimentally the efficiency of the roads if it creates any extra traffic, which is what almost all developments will do. One must inject a qualifying adverb such as ‘unreasonably’ or ‘intolerably’ into the section. Traffic in modern urban settings is not assessed in Utopian terms. In Utopia all cars, driven only by skilful, courteous drivers, would carry the maximum number of passengers at reasonable speeds on roads perfectly designed for safe swift travel. But the legislature must be taken not to have been acting with Utopia in mind. So in this case I consider that what I have to do is to decide whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement.”
[80][1995] QPLR 41 at 43.
Chiodo submits that two decisions of this Court, Lockyer Valley Regional Council v Westlink Pty Ltd[81] and Boral Resources (Qld) Pty Ltd v Gold Coast City Council[82] lend support to this test. A number of other cases are referred to by Chiodo as containing similar views, including Glass House Mountains Advancement Network Incorporated v Caloundra City Council & Excel Quarries.[83]
[81](2011) 185 LGERA 63 (“Lockyer Valley”).
[82][2018] QPELR 982 (“Boral Resources”).
[83][1997] QPELR 438 at 441.
In Lockyer Valley Regional Council, Fraser JA (with whom White JA and Douglas J agreed) dealt with a submission by the council that the primary judge had erred in law by overlooking a requirement in s 3.1(3)(e) of the Gatton Planning Scheme that provided “that the rural character and landscape values of the Shire should be enhanced”. In rejecting that submission, Fraser JA observed:
“It is apparent from my summary of the primary judge’s reasons that his Honour did take into account the general provisions concerning “rural character”. It is also clear that the primary judge did not overlook the reference to “enhanced” in s 3.1(3)(e). His Honour referred to Glasshouse Mountains Advancement Network Inc v Caloundra City Council, where it was said that phrases such as “maintain and preserve” and “preserve and enhance” must be read in context and bearing in mind that when any development occurs some amenity impairment will generally result. As the primary judge also observed with reference to authority, planning schemes should be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach.”[84]
[84]Lockyer Valley at 73, [20].
In Boral Resources, Gotterson JA (with whom Holmes CJ and Morrison JA agreed) considered a provision of a strategic framework which provided in s 3.5.5.1(10):
“In the non-committed areas at Reedy Creek … operations only extend into the non-committed areas if it can be demonstrated that:
(a)the amenity of nearby residential land is maintained;
(b)critical corridors are accommodated and matters of environmental significance are conserved, protected, enhanced and managed; and
(c)the green backdrop provided by ridge lines is not reduced when viewed from major roads and surrounding residential land …” (emphasis in original)
Gotterson JA observed:
“The construction issue, to which I have referred, related to Boral’s contention that this section should be read as if each of the three limbs in it contained modifying words such as ‘appropriately’ or ‘to an acceptable level’. His Honour rejected that contention although he did accept that each limb ought not be construed ‘too strictly’.”[85]
[85]Boral Resources at 61, [43].
Gotterson JA continued:[86]
“The learned primary judge regarded s 3.5.5.1(10) as a provision which is not to be construed or applied too strictly. To similar effect, in Newing v Silcock, Rackemann DCJ had observed that it should not readily be inferred from the absence of an express qualification that a provision of a planning scheme relevant to a change of use application requires that the proposed use have no impact at all, no matter how insubstantial, trivial or insignificant. A like observation had earlier been made by Quirk DCJ in Glass House Mountains Advancement Network Incorporated v Caloundra City Council & Excel Quarries. Consistently with those observations, his Honour rejected the Council’s submission that this provision should be construed and applied strictly.
In Lockyer, decided in 2011, this Court noted that the primary judge, Rackemann DCJ, had referred to Glass House Mountains Advancement Network Inc. Fraser JA (with whom White JA and Douglas J agreed), implicitly endorsed his Honour’s observation made, with reference to authority, that planning schemes should be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach.”[87]
[86]Boral Resources at 65, [57].
[87]Boral Resources at 65, [58].
In rejecting Boral’s submission, Gotterson JA concluded as follows:
“Consistency with the decision in Lockyer does not require the interpolation of the words suggested by Boral in order for s 3.5.5.1(10) to operate sensibly and practically. In my view, that is sufficiently achieved by the not too strict manner in which the learned primary judge considered it should be construed and applied. Moreover, to interpolate those words would unjustifiably displace recognition of the different standards that the express language of s 3.5.5.1(8) and s 3.5.5.1(10) respectively indicate are to be applied to extractive resource committed areas on the one hand, and to the Reedy Creek extractive resource non-committed areas on the other.
The contention that the learned primary judge allowed general provisions relating to protection in situ to limit the meaning of s 3.5.5.1(10) does not withstand scrutiny. For that to have occurred, his Honour would have had to have construed and applied this specific outcome with inflexible stricture.”[88]
[88]Boral Resources at 65-66, [59]–[60].
A consideration of these passages does not lend support to the proposition that the test identified by Chiodo constitutes a discrete principle of construction additional to established statutory interpretation principles. These principles establish that the starting point is the text of each of the four provisions, which necessarily involves a consideration of the emphasised words as set out at [67] to [70] above. The provisions are to be read in context and a commonsense approach is to be adopted so as to achieve a practical balancing between outcomes.
Secondly, even if the asserted test constituted a discrete principle of construction, an analysis of the Reasons does not reveal that her Honour applied these provisions “too strictly” and without being subject to the qualification “to an acceptable degree”. As to PO1, the setback provision, as observed at [72] above, her Honour considered that the setbacks viewed in isolation were generally acceptable and did not lend any meaningful weight to either the case for refusal or the case for approval. The setbacks were not, however, “sufficient to overcome the inappropriate character impacts occasioned by the overall design nor to ensure that the built form is not bulky or visually obtrusive”.[89]
[89]Reasons [138].
Similarly, her Honour’s conclusion that the proposed development did not comply with the Overall Outcome in s 9.4.6.2(2)(a) was primarily based on a finding that the proposed development did not provide the interplay between built form and landscaping that is characteristic of the resort-style tourist accommodation development in the central section of Port Douglas Road. Her Honour identified that in the local area and region, the dominance of tropical landscaping was provided by the landscaping forming lush, multi-layered planting that softened and complimented the built form, rather than hiding it.[90] Her Honour’s application of PO1(a) and the Overall Outcome in s 9.4.6.2(2) does not reveal any error in construing these provisions.
[90]Reasons [166].
As to s 3.5.5.1(1) and (2) of the Strategic Framework, her Honour at Reasons [181] identified five key factual questions in relation to the issue of whether the proposed development resulted in an unacceptable visual amenity impact. Questions four and five were as follows:
“4.Will the proposed development have a detrimental visual impact on major scenic routes and scenic outlooks?
5.Does the proposed development protect, maintain and enhance the region’s landscape values?”[91]
[91]Reasons [181].
Question 4 is referrable to s 3.5.5.2(2) and question 5 is referrable to s 3.5.5.1(1). At Reasons [182], her Honour identified the material that was before her in relation to determining these issues and observed:
“As with the character issues, these issues call for value laden judgments about which reasonable minds may differ. My findings below reflect the aggregate impression that I have formed having regard to the collective effect of that evidence, to the extent that it is accepted by me.”[92]
[92]Reasons [183].
In considering s 3.5.5.1(2), her Honour identified a number of favourable or neutral considerations. One of those considerations was that the term “buffer” in the Landscape Values Overlap Map did not preclude the possibility of development within a scenic route buffer-view corridor. Further, her Honour noted that the built form of the proposed development was set back from the Port Douglas Road frontage behind the landscaping. Her Honour acknowledged that although the proposed development would partially obscure some limited views, that was reasonable “given the nature of the existing approval that attaches to the subject land”.[93] In relation to the loss of glimpses, her Honour concluded it was not a consideration that weighed against approval of the proposed development. Although the proposed development would be visible from the Captain Cook Highway, it would be not be prominent to persons travelling along the highway at speeds of 80 to 100 kilometres per hour.[94] Her Honour was satisfied that, when viewed from the Captain Cook Highway, the proposed development would not interfere with any identified scenic value on either the Townscape plan map or the Landscape values map.[95] Her Honour also noted that a degree of visibility of buildings or structures on land within the Tourist Accommodation zone was to be reasonably expected.[96] Her Honour was also satisfied that the scenic lookout on Flagstaff Hill would not be detrimentally impacted to a material extent.
[93]Reasons [204].
[94]Reasons [213].
[95]Reasons [214].
[96]Reasons [216].
The balancing of these considerations by her Honour does not reveal any error in either the construction or application of s 3.5.5.1(2). Her Honour’s conclusion that the proposed development was inconsistent with s 3.5.5.1(2) was primarily based on a determination that the proposed development was discordant with the landscape character along Port Douglas Road, given there was “an obvious difference in visual effect between a vegetated hill or form emerging from the landscape and more scaled‑back building forms that are dispersed amongst densely planted landscaping”.[97] Her Honour’s conclusion that the proposed development was inconsistent with s 3.5.5.1(1) was also based on this determination.[98]
[97]Reasons [210].
[98]Reasons [223].
Even if the second alleged error had been established, such error would not be material, in the sense that it could not materially have affected the decision at first instance. For the reasons identified at [66] above, the second alleged error could not have affected her Honour’s conclusions. The second alleged error, like the first alleged error, is comprehensively subsumed by her Honour’s ultimate findings in relation to the proposed development having an unacceptable impact on character and visual amenity. A favourable finding that the proposed development complied with each of the relevant four provisions, could not have materially affected the decision of the P&E Court in light of these ultimate findings.
Disposition
The application for leave to appeal should be dismissed with costs.
BROWN AJA: I agree with the reasons of Flanagan JA and the order proposed by his Honour.
BRADLEY J: I agree with the reasons of Flanagan JA and concur with the order proposed by his Honour.
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