Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor
[2020] QPEC 25
•25 May 2020
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25
PARTIES:
DEVELOPMENT WATCH INC
(First Appellant)SUNSHINE COAST ENVIRONMENT COUNCIL INC (Second Appellant)
v
SUNSHINE COAST REGIONAL COUNCIL
(Respondent)And
SH COOLUM PTY LTD (ACN 146 376 972)
(Co-Respondent)FILE NO/S:
D166/18
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
25 May 2020
DELIVERED AT:
Brisbane
HEARING DATE:
18 – 30 November and 2 – 6 December 2019 and further evidence received 19 March 2020 and 28 April 2020 and further written submissions received 17 March 2020, 23 and 26 March 2020 and 28 April 2020
JUDGE:
Kefford DCJ
ORDER:
I order the Appeals be dismissed. The development application will be approved subject to conditions in due course.
I further order:
(a) by 4 pm on 8 June 2020, the Respondent is to deliver a draft Judgment attaching the conditions of approval to the other parties; and
(b) the appeal is to be listed for review at 9 am on 15 June 2020 for the purpose of making final orders in the appeal.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – submitter appeal against Council’s decision to approve a development application for a mixed use development – where development application sought preliminary approval for material change of use (request to change the effect of planning instruments) – where the development application sought development permits for reconfiguration of a lot and for material change of use – whether proposed development complies with relevant assessment benchmarks – whether proposed mix of land uses achieves the Planning Scheme’s intention for a tourism focus area – whether the proposed development would involve inappropriate commercial development
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where there are no unacceptable impacts in relation to setbacks, overshadowing, overlooking, overbearing or site cover – whether the proposed development is appropriately designed – whether there is an overdevelopment of the subject land reflected in the scale, height and intensity of the proposed development – whether development was of a bulk and scale compatible with the built form intent of the Emerging community zone code – whether the proposed development will have unacceptable impacts on the character and amenity of the area – whether development sensitively transitions to local setting and enhances the character of the area – whether the proposed development accords with reasonable community expectations
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where the proposed development is proximate a nesting beach for loggerhead turtles – whether the proposed development poses an unacceptable risk to the loggerhead turtle – whether the purpose of the Planning Act 2016 is achieved with respect to the risk to the loggerhead turtle – whether the precautionary principle warrants refusal
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – whether there are relevant matters that support refusal or approval – whether there is an economic, planning or community need for the proposed development – whether there is hotel, residential or retail need for the proposed development – whether the proposed development will provide economic benefits to the locality, region and State – whether the proposed development supports investment in the Sunshine Coast Airport – whether the Hyatt preliminary approval supports approval of the proposed development – whether the locational attributes of the subject land and the design response to it supports approval – whether the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018 – whether it is within the public interest for the proposed development to be approved
LEGISLATION:
Planning Act 2016 (Qld), s 45, s 59, s 60, s 85, s 311
Planning and Environment Court Act 2016 (Qld), s 10, s 43, s 45, s 47
Planning Regulation2017 (Qld), s 31
CASES:
Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, approved
Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, approved
Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, followed
Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, cited
Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, approved
Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved
Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved
JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4, cited
K & K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, considered
Kangaroo Point Residents Association v Brisbane City Council & Anor [2014] QPEC 64, [2015] QPELR 203, approved
K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; [2011] QPELR 406, approved
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46, approved
Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26; [2013] QPELR 557, approved
The Purcell Family v Gold Coast City Council & Ors [2004] QPELR 521, approved
United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, approved
Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, followed
COUNSEL:
P Hack QC and A Skoien for the First Appellant
C Hughes QC, M Batty and H Stephanos for the Respondent
D Gore QC and J Houston for the Co-RespondentSOLICITORS:
p&e Law for the First Appellant
N McCarthy as agent for the Second Appellant
Legal Services, Sunshine Coast Council for the Respondent
Corrs Chambers Westgarth for the Co-RespondentTABLE OF CONTENTS
Introduction........................................................................................................................... 7
The decision framework....................................................................................................... 8
What is the nature of the proposed development?.............................................................. 10
What is the effect of the Yaroomba Beach Master Plan?............................................... 11
What is proposed for Stage 1?........................................................................................ 12
What is sought as part of the development permit for reconfiguration of a lot?............ 13
What are the assessment benchmarks?............................................................................... 13
What assessment benchmarks do the Appellants rely on to contend for refusal?.............. 14
Will the proposed land uses satisfactorily address the Planning Scheme’s intention for a tourism focus area?............................................................................................................................................ 16
What are the tourist-oriented elements of the proposed development?.......................... 17
Does the proposed development comply with the applicable tourism focus provisions of the Strategic framework?..................................................................................................................... 17
Does the proposed development comply with s 3.4.6.1?................................................ 18
Is the proposed development in a tourism focus area?................................................... 19
Is the proposed development consistent with the intended role of the Yaroomba tourism focus area? 20
Is the proposed development otherwise worthy of consideration as a meritorious opportunity for tourism development?.................................................................................................................. 23
Does the proposed development comply with other provisions of the Strategic framework relevant to the tourism focus area?......................................................................................................... 24
Conclusion regarding compliance with tourism focus provisions of the Strategic framework 26
Does the proposed development comply with the applicable tourism focus provisions of the Emerging community zone code?................................................................................................... 27
Does the proposed development comply with the applicable tourism focus provisions of the Coolum local plan code?....................................................................................................................... 29
Conclusion regarding the appropriateness of the proposed land uses in the Yaroomba tourism focus area......................................................................................................................................... 34
Will the proposed development involve inappropriate commercial development?........... 36
Does the proposed development comply with the provisions of the Strategic framework that guide commercial development?.............................................................................................. 36
Does the proposed development comply with applicable provisions of the Emerging community zone code that guide commercial development?............................................................................. 39
Does the proposed development comply with the provisions of the Coolum local plan code that guide commercial development?.............................................................................................. 39
Does the proposed development comply with the provisions of the Business uses centre design code? 43
Conclusion regarding acceptability of the commercial development............................. 44
Is the design of the proposed development appropriate?.................................................... 44
Does the design of the proposed development comply with the Coolum local plan code? 45
Does the proposed development provide for a design that has an appropriate character? 49
Does the proposed development respect the scale of the surrounding area and vegetation? 61
Does the proposed development provide for an appropriate configuration of built form and landscaping?......................................................................................................................................... 62
Does the proposed development provide for a design and siting that appropriately protects views and visual amenity?.......................................................................................................................... 64
Conclusion regarding compliance with the Coolum local plan code............................. 69
Does the design of the proposed development comply with the Strategic framework?. 69
Does the design of the proposed development comply with the Emerging community zone code? 74
Does the design of the proposed development comply with the Height of buildings and structures overlay code?............................................................................................................................... 75
Does the design of the proposed development comply with the Multi-unit residential uses code? 77
Does the design of the proposed development comply with the Transport and parking code? 77
Will the proposed development involve unacceptable traffic generation?..................... 78
Does the proposed external roadworks militate against approval?............................... 79
Does the proposed development provide sufficient car parks?...................................... 81
Conclusion regarding compliance with the Transport and parking code...................... 81
Conclusion regarding the acceptability of the design of the proposed development..... 81
Will the proposed development pose an unacceptable risk to the loggerhead turtle?........ 82
Does the proposed development comply with the Biodiversity, waterways and wetlands overlay code? 82
What measures are proposed to address potential impacts on turtles?......................... 84
Does the design of the proposed development and the proposed conditions and management plans satisfactorily address potential impacts on turtles?....................................................... 87
Conclusion regarding compliance with the Biodiversity, waterways and wetlands overlay code 97
Does the proposed development comply with the environmental impact requirements of the Strategic framework?..................................................................................................................... 97
Does the proposed development comply with the environmental impact requirements of the Emerging community zone code?................................................................................................... 98
Does the proposed development comply with the environmental impact requirements of the Coolum local plan code?....................................................................................................................... 98
Conclusion regarding the risk the proposed development poses to the loggerhead turtle? 99
What are the relevant matters relied on by the parties?...................................................... 99
Will there be an unacceptable traffic impact?.................................................................. 100
Will the scale, bulk and nature of the proposed development exceed reasonable community expectations?.......................................................................................................................................... 100
Does the loss of submission rights for future stages support refusal of the proposed development? 100
Does the extent of community opposition, and the substance of it, support refusal of the proposed development?.................................................................................................................... 101
Will the proposed development advance the purpose of the Planning Act 2016 having regard to the risk to the loggerhead turtle?............................................................................................................. 103
What is the precautionary principle?............................................................................ 103
Does the precautionary principle warrant refusal?....................................................... 106
Is the proposed development supported by an economic, planning or community need? 107
Is there a need for the hotel component of the proposed development?....................... 108
Is there a need for the residential component of the proposed development?.............. 110
Is there a need for the retail component of the proposed development?...................... 115
Conclusion regarding need........................................................................................... 116
Will the proposed development provide economic benefits to the locality, region and State that support its approval?........................................................................................................................... 116
Will the proposed development increase tourism and economic activity in the locality and the region that supports the investment in the Sunshine Coast Airport?.................................................. 119
Can the proposed development be provided without any unacceptable impacts?........... 120
Does the Hyatt preliminary approval support an approval of the proposed development? 120
Do the locational attributes of the subject land and the design response to it support approval? 121
Is the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018?.......................................................... 123
Is it within the public interest for the proposed development to be approved?................ 124
Conclusion........................................................................................................................ 125
Introduction
Approximately eight kilometres north of the Sunshine Coast Airport, between the coastal townships of Coolum and Marcoola, there is a vacant parcel of land of approximately 18.5 hectares (“the subject land”). It is located between Yaroomba Beach and David Low Way. In the past the subject land was used as part of the Hyatt Coolum Resort facilities, including as part of the golf course. The private resort facilities associated with the Hyatt Coolum Resort have since been demolished, but two waterbodies associated with the golf course remain.
The land adjoins the privately owned Yaroomba parabolic dune to the north, and the beach and Marcoola Yaroomba Conservation Reserve to the east. To the south is a gated, low-density beachside residential community title development known as “Coolum Beachside”. David Low Way separates the subject land from the Palmer Coolum Resort. Although the golf course associated with the Palmer Coolum Resort remains operational, the resort otherwise lies abandoned since its closure in approximately 2015. It has fallen into a state of disrepair.
The subject land has a history of planning approvals dating back to the 1980s when it was part of the original Coolum Hyatt resort development and golf course. In February 2007, Sunshine Coast Regional Council (“the Council”) issued a preliminary approval to vary the effect of the then-current planning scheme (Maroochy Plan 2000) to establish the “Coolum Hyatt Integrated Resort and Residential Community” (“the Hyatt preliminary approval”). That approval has been implemented in part and remains current. It anticipates development of the subject land for a mix of dwelling types, including multiple dwellings, detached houses and duplexes, as well as retail and commercial uses up to a maximum of 500 square metres.
SH Coolum Pty Ltd (“SHC”) owns the subject land and wants to develop it in a number of stages. In the first stage, SHC wants to develop a five-star resort complex. It is proposed to contain a 220-room hotel, approximately 1 000 square metres of conference and meeting space[1] and about 133 multiple dwellings (provided as serviced apartments for permanent and temporary accommodation). These uses are proposed to be located across a series of buildings between five and seven storeys in height. In association with the resort, and as part of Stage 1, SHC seeks approval for 2 770 square metres of commercial space (but with no tenant exceeding 300 square metres), an educational establishment, a community use (being Surf Life Saving Queensland amenities), parklands, coastal pathway, boardwalks, public car parking, and a utility installation.
[1]The plans show an interior area of 1 009 square metres and additional external areas as exhibition or marquee function area and function lawn. Condition 81 of the Council’s decision notice required a minimum of 1 000 square metres for the conference or banqueting floor area. SHC did not dispute the imposition of the condition.
SHC also seeks to reconfigure the existing ten lots into 13 lots.
SHC has not designed Stages 2 to 5 in detail. Instead, with respect to those stages, it seeks approval to vary the effect of the Sunshine Coast Planning Scheme 2014 (“the Planning Scheme”). This is to obviate the need for public notification of future development applications that seek approval to develop the balance land for a mix of residential dwellings, including houses and dual occupancy dwellings at two storeys, and multiple dwelling units in buildings up to four storeys in height.
SHC’s development application underwent two rounds of public notification, during which it attracted considerable interest from the local community. Over 11 000 submissions were received, a large portion of which were opposed to the development.
The Council approved the application and two community organisation submitters, Development Watch Inc and Sunshine Coast Environment Council Inc, each appealed the decision.[2] In broad terms, the Appellants oppose the development on the basis that it will have an unacceptable impact on the loggerhead turtles that nest on Yaroomba Beach, it will have unacceptable impacts on visual and scenic amenity and views, it involves an overdevelopment of the land, and it involves an inappropriate mix of uses.
[2]The appeals were consolidated into a single appeal.
The issue for me to determine is whether SHC’s application should be approved or refused.
The decision framework
The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies to the appeal.[3] In deciding the appeal, the Court must confirm the decision appealed against, 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]
[3]The appeal against the Council’s decision to approve SHC’s application was filed after the commencement of the Planning Act 2016. As such, even though SHC’s application was made under the Sustainable Planning Act 2009, the applicable regime is that in the Planning Act 2016. See s 311 of the Planning Act 2016 and Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, [16]–[89].
[4]Planning and Environment Court Act 2016 (Qld), s 47.
The appeal proceeds by way of hearing anew.[5] SHC bears the onus.[6]
[5]Planning and Environment Court Act 2016, s 43.
[6]Planning and Environment Court Act 2016, s 45.
SHC seeks a number of different types of approval to implement its proposed development, namely:
(a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan Preliminary Approval Document (“Yaroomba Beach Master Plan”);
(b) a development permit for a material change of use to authorise those uses proposed for Stage 1; and
(c) a development permit for reconfiguration of ten lots into 13 lots.
There is a broad discretion in determining the appeals.[7] The exercise of the discretion must be based on an assessment that:[8]
[7]Planning and Environment Court Act 2016, s 47; Planning Act 2016, s 60(3).
[8]Planning Act 2016, s 59 and s 45(5).
(a) must be carried out:
(i) against the assessment benchmarks in the Planning Scheme to the extent relevant;[9]
[9]Version 8 of the Sunshine Coast Planning Scheme 2014 was the categorising instrument for the development in effect when SHC’s application was properly made. Any reference to the Planning Scheme is a reference to version 8 unless expressly stated otherwise or unless otherwise apparent from the context.
(ii) having regard to, relevantly, the South East Queensland Regional Plan and any development approval for, and any lawful use of, the premises or adjacent premises. In this case, this includes the Hyatt preliminary approval;[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); and
(c) may give the weight the Court considers appropriate to any amendments to the Planning Scheme. (While there were amendments to the Planning Scheme following the lodgement of the development application, the Appellants did not allege any non-compliance with later versions of the Planning Scheme.[11])
[10]See s 31(1)(f) of the Planning Regulation 2016 (Qld).
[11]Later versions of the Planning Scheme are only raised as “contextual provisions”.
As the application also seeks to vary the effect of the Planning Scheme, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[12]
[12]Planning Act 2016, s 61(3).
The exercise of that discretion must be based on an assessment that considers:[13]
[13]Planning Act 2016, s 61(2).
(a) the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;
(b) the consistency of the variations sought with the rest of the Planning Scheme;
(c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and
(d) any other matter prescribed by regulation.
His Honour Judge Williamson QC comprehensively, and in my view correctly, analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council.[14] I have also further considered the approach in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[15] All of the parties contend that the approach referred to in those judgments is the correct one.
[14][2019] QPEC 16; [2019] QPELR 793, [35]-[86].
[15][2019] QPEC 46, [12]-[22].
What is the nature of the proposed development?
As I have mentioned in paragraph [12] above, SHC seeks:
(a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan;[16]
(b) a development permit for a material change of use to authorise those uses proposed for Stage 1; and
(c) a development permit for reconfiguration of ten lots into 13 lots.
[16]This is now known as a variation approval under the Planning Act 2016. That part of the application that seeks the preliminary approval to vary the effect of the planning scheme is referred to in the Planning Act 2016 as a variation request.
The development is proposed to be developed over a period of six to ten years.[17]
[17]The currency period under s 85 of the Planning Act 2016 is six years from when the development approval takes effect. Condition 18 of the decision notice stipulates a sunset clause. It states that if development, or an aspect of development to which the approval relates is started but not completed, the preliminary approval, to the extent it relates to the development or aspect not completed, lapses if the Sunshine Coast Planning Scheme 2014 is amended to reflect the provisions of the preliminary approval, or otherwise at the end of ten years starting on the day the preliminary approval takes effect.
SHC and the Council propose that any approval be conditioned to comply with an Infrastructure Agreement dated 29 June 2018. That agreement requires SHC to provide infrastructure contributions identified in the Infrastructure Contributions Schedule. The identified contributions benefit the proposed development’s local community and the Sunshine Coast Region generally. They include land and works contributions for roads, pedestrian and cycle access and public car parking, and financial contributions for road improvements and other improvements to the Mount Coolum public amenities and car park.
What is the effect of the Yaroomba Beach Master Plan?
The Yaroomba Beach Master Plan includes a map that identifies the area the subject of the preliminary approval. It is described as the Yaroomba Beach Local Plan Precinct. That area contains individual sub-precincts – Yaroomba Beach North, Yaroomba Beach Central, Yaroomba Beach South, Lakeside North and Lakeside South.
The Yaroomba Beach Master Plan would vary the effect of the Planning Scheme by:
(a) the Table in s 6.1, which identifies variations to categories of development and categories of assessment for a material change of use for a defined use specified in the Planning Scheme in Table 5.5.17 (Emerging Community Zone) for each sub-precinct;
(b) the Table in s 6.2, which identifies variations to the categories of development and categories of assessment for reconfiguration of a lot specified in the Planning Scheme in Table 5.61 (Reconfiguration of a Lot);
(c) the Addendum to the Coolum local plan code (Yaroomba Beach), which effectively replaces the purpose and overall outcomes and the performance outcomes and acceptable outcomes for the Coolum local plan code; and
(d) the Addendum to the Height of Buildings and Structures Overlay Map OVMIIH, which effectively replaces Map OVMIIH in the Planning Scheme with Map 3.
The Yaroomba Beach Master Plan sets the development intensity for the subject land across all stages. It provides for a maximum residential development density of a 220-room hotel and 740 equivalent dwellings. There is a table and plan of residential density for each precinct to ensure the distribution of the proposed density across the subject land. Aside from the units in the serviced apartment building, this density is intended to provide for approximately 537 apartments and 71 townhouses across the future stages of development, subject to the grant of further development permits.
The commercial and retail uses (bar, food and drink outlet, office, shop and shopping centre) are limited to tenancies not exceeding 300 square metres. The aggregate gross floor area of the village centre is not to exceed 2 770 square metres.
The Yaroomba Beach Master Plan sets maximum building heights for future dwellings. It provides for buildings with a maximum height of four storeys towards the centre of the subject land, stepping down to three storeys at the western edge of the subject land, and two storeys at the southern edge (adjacent to the existing residential development). Otherwise, the design parameters of the Planning Scheme remain applicable to future development. This includes requirements in the existing applicable Planning Scheme codes for any future proposed development type that regulate the setbacks, site cover, landscaping, parking and communal or private open space requirements.
The Yaroomba Beach Master Plan is also to include an incorporated green space masterplan.[18] The green space masterplan will require regular green breaks and identify vegetation to be protected.
[18]The Council’s decision notice required this amendment to the Yaroomba Beach Village and International Resort prepared by Project Urban (Exhibit 109). SHC accepts this requirement.
The proposed development will deliver a significant amount of open space. There will be a total of 46 507 square metres of publicly accessible open space. This equates to 25 per cent of the subject land. Of that open space, a total of 17 741 square metres, or 9.6 per cent of the subject land, will be retained vegetation.
An access and mobility plan shows the proposed public and private pedestrian, cycle and vehicular routes. Access to the proposed development will be gained from David Low Way at only two points. The main entry will be via a new roundabout and there will be a secondary access further to the north. The majority of car parking will be provided underground, but there will be over 105 public parking spaces at grade for beach access. Further at grade car parking will be provided at the northern end of the main entry road and at the eastern boundary (in the order of 28 spaces and 33 spaces respectively).
The proposed development will be connected (both within and beyond the subject land) by a comprehensive arrangement of pedestrian pathways and roadways in a low speed environment. They will be designed to encourage walkability and a highly pedestrianised environment. The pathways will connect to the existing coastal walkway.
The proposed development also includes the provision of a new public beach access, a lifeguard tower, and various other infrastructure components.
What is proposed for Stage 1?
Stage 1 comprises a resort complex, multiple dwellings, short-term accommodation, a shopping centre, education establishment, community use and utility installation.
The resort complex will include a 220-room hotel. It is proposed that the hotel be conditioned to be operated as a “5-star or higher luxury hotel”. Starwood Australia Hotels Pty Ltd (a division of Marriott Hotels) has expressed interest in being the operator of the hotel and to operate it as a “Westin” resort. There will be extensive function and conference facilities, which are intended to serve the growing business traveller and “MICE” (meetings, incentives, conferences and events) market. In addition, the resort will contain two restaurants and a lobby bar; a day spa, kid’s club, and gym; pool (including a kid’s pool, spa and recreation area); retail and commercial spaces within the resort complex; and a rooftop bar on the seventh storey.
Stage 1 will also include a serviced apartment building containing short-term accommodation and multiple dwellings totalling 132 units. The western end of the serviced apartment block of units are “dual key” units, with a limited number of “triple key” units also provided at the far western end of each level. The dual and triple key units have very limited kitchen facilities and will be used exclusively for short-term accommodation. The eastern end of the serviced apartment block contains larger format units that may be used for either short-term or long-term accommodation.
A separate building will contain a shopping centre with a maximum gross floor area of 2 770 square metres. It will be comprised of individual shop tenancies that must not exceed a gross floor area of 300 square metres. The centre is intended to accommodate a tenancy mix typical of an integrated tourist and residential precinct.
An educational establishment, with an area of 327 square metres, will be used for providing information on the ecological surrounds and the indigenous history of the subject land and the locality. There will be community uses in the form of Surf Life Saving Queensland amenities, and a utility installation use (being a waste transfer station).
What is sought as part of the development permit for reconfiguration of a lot?
SHC seeks a development permit to reconfigure the existing ten lots into 13 lots and an access easement. There are two commercial lots, three park and car park lots, two buffer lots, one lot for the transfer station, two access lots, one principal body corporate lot, two balance management lots and one access easement.
What are the assessment benchmarks?
Many integers can inform the combination of assessment benchmarks that apply to any particular proposed development. The Sunshine Coast Planning Scheme, like many others that apply throughout Queensland, is a voluminous document. It comprises numerous components, including a strategic framework, zones and precincts (with associated zone codes), local plans (with associated local plan codes), mapping overlays and overlay codes, and use and other development codes. Each of these components contains provisions that may form part of the assessment benchmarks for a particular development application and inform the assessment.
Here, the Strategic framework sets the policy direction for the Planning Scheme area. It forms the basis for ensuring appropriate development occurs within the Planning Scheme area for the life of the Planning Scheme.[19] For the purpose of articulating the policy direction, the Strategic framework identifies a strategic intent, eight “themes” to achieve the strategic intent and specifies strategic outcomes sought for development in the Planning Scheme area for each theme. A list of key concepts is provided at the beginning of each theme to summarise the overarching principles expressed in the theme. Those parts of the Strategic framework are not framed in a manner that directly regulates development. Rather, they assist in identifying the rationale for, and the importance of, the various planning strategies that underpin the provisions that regulate development. Although each theme has its own section, the Strategic framework is to be read in its entirety as the policy direction for the Planning Scheme. The Strategic framework also identifies “elements” that refine and further describe the strategic outcomes and stipulates the specific outcomes sought for the elements.[20] The elements, specific outcomes and Strategic framework maps form the implementation framework for the Strategic framework.[21]
[19]See s 3.1(1) of the Planning Scheme.
[20]See s 3.1(2) of the Planning Scheme.
[21]See note to s 3.1 of the Planning Scheme.
The policy direction in the Strategic framework is supported, at a finer grained level, by other parts of the Planning Scheme. The zones and precincts (and the associated zone codes) organise the Planning Scheme in a way that facilitates the location of compatible land uses.[22] The local plans (and associated local plan codes) organise the Planning Scheme area at the local level and provide more detailed planning for the zones.[23] The mapping overlays and overlay codes identify areas in the Planning Scheme that reflect State and local level interests and have a particular characteristic, such as a particular sensitivity to the effect of development.[24] The use and other development codes apply to an assessment of development if identified as an applicable code in the table of assessment in the Planning Scheme.[25]
[22]Section 6.1 of the Planning Scheme.
[23]Section 7.1 of the Planning Scheme.
[24]Section 8.1 of the Planning Scheme.
[25]Section 9.1 of the Planning Scheme.
In this case, the subject land is mapped on Strategic Framework Map SFM 2 Economic Development Elements as part of the Urban area. Zone Map ZM 11 maps the area as within the Emerging community zone and the Urban Grown Management Boundary.[26] The Coolum local plan area is mapped on Local Plan Map LPM 11. The subject land is part of “Precinct LPP-1 Palmer Coolum Resort and the Coolum Residences”. It is also subject to a number of overlays that apply to varying degrees. The subject land is in the Native Vegetation Area and Wetlands and Constructed Waterbodies Areas on the Biodiversity, Waterways and Wetlands Overlay Maps and in the Coastal Protection Area on the Coastal Protection Overlay Map. It is within the area subject to the 8.5 metre maximum height of buildings and structures on the Height of Building and Structures Overlay Map. A note on that map records that “In certain circumstances pre-existing development approvals may override the operation of an overlay”.
[26]Save for a small area in the southeast part of the subject land, which is in the Low density residential zone.
Each of the proposed uses and the proposed reconfiguration of a lot is impact assessable. It is to be assessed against the entire Planning Scheme, to the extent relevant.
What assessment benchmarks do the Appellants rely on to contend for refusal?
The Appellants rely on allegations of non-compliance with an imposing list of provisions of the Planning Scheme to contend for refusal.[27] On a number of occasions during the hearing, the other parties noted the extensive nature of the list of provisions and queried whether the list, in truth, reflected the real issues in dispute.[28] By the end of the hearing, compliance with 63 provisions of the Planning Scheme remained in issue. They are:[29]
[27]Unless otherwise specified, the allegations and submissions attributed to the Appellants reflect allegations and submissions by the First Appellant. The Second Appellant adopted each of them.
[28]See, for example, T1-14 – T1-18 and T7-111 – 7-114.
[29]The provisions relied on can be identified by reference to Exhibit 28G.
(a) s 3.2.4, s 3.3.1(a), (i) and (m), s 3.3.2.1(a)(i), (ii), (iii) and (iv), s 3.3.3.1(d)(v), s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.2.1(b)(i), s 3.4.2.1(c)(v), s 3.4.3.1(c), s 3.4.6.1(c), (e)(ii) and (e)(v), s 3.5.1(d) and (i), s 3.7(4), s 3.7.1(f), s 3.7.2.1(a) and (b), s 3.8.1(d), (g) and (h), s 3.8.2.1(c) and (g), and s 3.8.3.1(c) and (d) of the Strategic framework;
(b) the purpose in s 6.2.17.2(1)(a), (c) and (d) and overall outcomes (2)(c)(i), (v), (vi) and (viii) of the Emerging community zone code;
(c) overall outcomes (2)(a), (c), (j) and (k), and performance outcomes PO1, PO2, PO3 and PO16 of the Coolum local plan code;
(d) the purpose in s 8.2.3.2(1)(a), overall outcomes (2)(a), (b), (c) and (d) and performance outcomes PO2 and PO4 of the Biodiversity, waterways and wetlands overlay code;
(e) the purpose in s 8.2.8.2(1), overall outcomes (2)(a) and (b) and performance outcome PO1 of the Height of buildings and structures overlay code;
(f) the purpose in s 9.3.1.2(1)(a), overall outcome (2)(a) and performance outcome PO1 of the Business uses centre design code;
(g) the purpose in s 9.3.11.2(1), overall outcome (2)(b) and performance outcome PO6 of the Multi-unit residential uses code; and
(h) overall outcome (2)(c) of the Transport and parking code.
The Appellants rely on additional provisions for context, including provisions from version 18 of the Planning Scheme.
SHC and the Council join issue with the Appellants’ allegations of non-compliance. They each contend that the outcome of the case will turn on only a handful of provisions. In opening the case for SHC, Mr Gore QC identified those provisions that SHC regard as the key provisions. Mr Gore QC gave examples of provisions that SHC says are self-evidently irrelevant or marginal.[30] At the end of the trial, the written submissions provided by SHC and the Council also explained why each of those parties regarded many of the provisions relied on by the Appellants to be irrelevant or marginal. The Appellants did not provide any meaningful response to those submissions. In addition, on many occasions throughout the hearing I asked Mr Hack QC and Mr Skoien to explain the basis on which they allege non-compliance. This was generally to no avail. Despite the opening and submissions of the other parties, and the Appellants inability to explain the basis of the alleged non-compliances, the Appellants did not take up the invitation of the other parties to consider their position and notify any provisions that they no longer wished to pursue. Instead, the Appellants maintain allegations of non-compliance with an exhausting list of provisions.[31] Although each of the allegations is addressed below, it is convenient for me to deal with them by reference to the topics that they raise.
[30]See T1-18 – T1-24.
[31]I directed that the written submissions provided by each party address all matters of statutory interpretation that the party seeks to raise in relation to the proper construction of each provision of the Planning Scheme with which the Appellants allege non-compliance and any other matter of statutory interpretation relied on. I also directed that the written submissions provided by each party address the evidence relied on in relation to each assertion made in the submissions. I informed the parties that they should prepare the written submissions on the understanding that they would be their only opportunity to refer to the evidence they relied on. The parties indicated that there was sufficient time allowed in the timetable to prepare written submissions on that basis. The written submissions provided by SHC and the Council complied with the direction. The written submissions prepared by Mr Hughes QC, Mr Batty and Ms Stephanos on behalf of the Council were particularly helpful. Although I do not accept them in all respects, the written submissions addressed every alleged issue of non-compliance and all of the contentious evidence. Where there was material disagreement between experts, their submissions addressed why the Council says I should prefer the evidence they ask the court to rely on in preference to the other evidence. Despite being delivered late, the written submissions provided by each of the Appellants did not comply with my directions. In many respects, the written submissions by the First Appellant contained no more than bare assertions. Although the written submissions by the Second Appellant did not comply, Ms McCarthy did an admirable job for a non-legally trained individual. Her submissions allowed me to easily appreciate the Second Appellant’s position and, importantly, the evidence it relied on in support of its position.
The assessment benchmarks call for consideration of four issues.
1. Will the proposed uses of the subject land satisfactorily address the Planning Scheme’s intention for a tourism focus area?
2. Will the proposed development involve inappropriate commercial development?
3. Is the design of the proposed development appropriate?
4. Will the proposed development pose an unacceptable risk to the loggerhead turtle?[32]
Will the proposed land uses satisfactorily address the Planning Scheme’s intention for a tourism focus area?
[32]Although Exhibit 28D identified seven questions for consideration as part of the assessment against the Planning Scheme, the issues they raise for consideration overlap. They are more conveniently dealt with by considering these four issues. Question 1 will address those issues raised in paragraph 1 and part of the contentions from paragraph 4 of Exhibit 28D. Question 2 will address the issue raised in paragraph 5 of Exhibit 28D. Question 3 will address those issues raised in paragraphs 2, 3, 4 (in part) and 5 of Exhibit 28D. Question 4 will address the issue raised in paragraph 7 of Exhibit 28D.
The Appellants allege that the uses proposed as part of the proposed development do not satisfactorily address the Planning Scheme’s intention for a tourism focus area in the vicinity of the subject land. They say the intention for tourist development in the area is for continuation and protection of the existing Coolum Resort on the western side of David Low Way and continuation of residential development (with the potential for visitor accommodation) on the eastern side of David Low Way.
Another issue that the Appellants put in dispute is whether the proposed development will achieve an appropriate mix of residential and tourist-oriented development. Their written submissions do not clarify their position with respect to this allegation. However, in oral submissions they confirmed that the Council’s understanding of their contentions, as outlined in the Council’s written submissions, was correct. The Appellants contend:
(a) that the tourist-oriented components of the proposed development are not intended to be provided on the subject land because only residential development consistent with the Coolum Residences is intended for the subject land; and
(b) the extent of residential development is excessive, resulting in an inappropriate mix of tourist-oriented and residential development.
During final submissions, Mr Hack QC explained that the First Appellant’s allegations regarding the inappropriate mix of residential and tourist-oriented development reflects its position with respect to the intentions of the Yaroomba tourism focus area. It is therefore convenient to consider this issue, and the assessment benchmarks relied on in support of it, as part of the question of compliance with the intent for the Yaroomba tourism focus area.
The Appellants say their contentions are supported by the assessment benchmarks in the Planning Scheme, in particular:
(a) s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.2.1(c)(v), and s 3.4.6.1(c) and (e)(ii) and (v) of the Strategic framework;
(b) the purpose in s 6.2.17.2(1)(c) and overall outcomes (2)(c)(i) and (v) of the Emerging community zone code; and
(c) overall outcomes (2)(a) and (j) and performance outcome PO16 of the Coolum local plan code.
What are the tourist-oriented elements of the proposed development?
As I have already noted above, the proposed development includes a range of tourist-oriented elements. The resort complex will include a 220-room hotel that will be operated as a “5-star or higher luxury hotel”. In addition to the hotel, the tourist-oriented elements include:
(a) the serviced apartments, which include short-term accommodation;
(b) conference and seminar facilities designed to attract the meetings, incentives, conferences and events market;
(c) food catering premises (i.e. restaurants and food and drink outlets);
(d) retail facilities, which the economic experts agree will be convenient to and will attract onsite tourist spending, as well as attracting tourists and visitors from surrounding areas;
(e) public and common area parklands;
(f) significantly improved beach access, including well in excess of 100 public car parking spaces for public use and lawful vehicular access;
(g) surf lifesaving amenities to improve tourists’ and residents’ use of the beach;
(h) an educational centre providing information on the ecological surrounds and indigenous history of the subject land and locality more broadly.
The resort complex and the associated benefits will be developed alongside a range of residential accommodation, including approximately 608 equivalent dwellings.
Does the proposed development comply with the applicable tourism focus provisions of the Strategic framework?
The key provisions of the Strategic framework regulating tourism development and development in tourism focus areas are in s 3.4.6.1 of the Strategic framework. It contains the specific outcomes for Element 5 – Tourism and tourism focus areas of the Economic development theme. As such, it is helpful to first consider the Appellants’ allegations of non-compliance with s 3.4.6.1(c) and (e)(ii) and (v).
Does the proposed development comply with s 3.4.6.1?
Section 3.4.6.1 of the Strategic framework states:
“3.4.6. Element 5 – Tourism and tourism focus areas
3.4.6.1 Specific outcomes
(a)To support the preferred pattern of settlement, development provides for tourist oriented activities and services to be concentrated within the tourism focus areas identified conceptually on Strategic Framework Map SFM 2 (Economic development elements) and described in further detail in Table 3.4.6.1 (Tourism focus areas).
(b)Tourism, sports, major events and leisure activities provide unique experiences and products in well planned and serviced locations.
(c)Tourism focus areas provide for a range of visitor accommodation and tourist services consistent with the intended role of the respective tourism focus area with a particular emphasis on those uses that are well suited to and compatible with existing tourism development.
(d)New tourist attractions cluster in designated tourism focus areas in a manner consistent with the intended role of the particular tourism focus area.
(e)Other opportunities for tourism development may be considered by Council on their merits where such development: -
(i)provides regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities;
(ii)does not incorporate a range or scale of uses and activities which would compromise the Sunshine Coast Activity Centre Network;
(iii)is located on or with direct access to a major road;
(iv) provides all of the necessary infrastructure for the development;
(v)is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity; and
(vi) would enhance the Sunshine Coast’s tourism brand and reputation.
(f)A tourism activity is undertaken on a sustainable basis that protects and capitalises upon the natural values and key lifestyle attributes of the Sunshine Coast.”
(emphasis added)
The issue of compliance with specific outcomes in s 3.4.6.1(c) and (e)(ii) and (v) calls for consideration of three questions.
1. Is the proposed development in a tourism focus area?
2. Is the proposed development consistent with the intended role of the Yaroomba tourism focus area?
3. If the proposed development is not consistent with the intended role of the Yaroomba tourism focus area, is it otherwise worthy of consideration as a meritorious opportunity for tourism development?
Is the proposed development in a tourism focus area?
Strategic Framework Map SFM 2 (Economic development elements) identifies tourism focus areas by a green star. The map contains a green star west of David Low Way in about the location of the Palmer Coolum Resort. The notation “Yaroomba (Palmer Coolum and Sekisui House Beachside)” appears immediately under the star. The map is at an approximate scale of 1:120 000 if produced at A1 size. A note on the map records:
“This Strategic Framework map graphically represents elements of the Economic Development theme at a conceptual level and is not intended to be interrogated at the cadastre level.”
Table 3.4.6.1 is in the following terms:
Table 3.4.6.1 Tourism focus areas
Tourism focus areas
Location
Coastal tourism focus areas
Areas within the coastal urban area accommodating a concentration of visitor accommodation and related tourism services.
(i) Alexandra Headland;
(ii) Bokarina Beach;
(iii) Bulcock Beach and Kings Beach;
(iv) Coolum Beach;
(v) Cotton Tree and Maroochydore;
(vi) Golden Beach;
(vii) Marcoola/Mudjimba;
(viii) Mooloolaba;
(ix) Twin Waters; and
(x) Yaroomba (Palmer Coolum Resort and Sekisui House Beachside).
Nature and hinterland tourism focus areas
Areas with a primary emphasis on nature and hinterland/rural based tourism experiences and accommodating low impact visitor accommodation and related tourism services.
(i) Blackall Range (including Maleny and Montville);
(ii) Beerwah (along Steve Irwan Way in the vicinity of Australia Zoo or other existing activity nodes);
(iii) Eumundi;
(iv) Glass House Mountains;
(v) Mary Valley (including Kenilworth); and
(vi) Pumicestone Passage.
Man-made tourism focus areas
Areas with a primary emphasis on accommodating major man-made tourist attractions and facilities.
(i) Beerwah (Australia Zoo)
(ii) Bli Bli (Sunshine Castle/Go Wake);
(iii) Palmview (Aussie World);
(iv) Yandina (Ginger Factory); and
(v) Woombye (Big Pineapple).
It is common ground between the parties that the reference to the Palmer Coolum Resort is to be read as a reference to the Coolum Resort. It is also common ground that the reference to “Sekisui House Beachside” is a reference to existing residential development to the east of David Low Way and to the south of the subject land that is in the Emerging community zone. That area was developed under the Hyatt preliminary approval. All of the parties agree that the Yaroomba tourism focus area includes the subject land. The Appellants say that the description of the Yaroomba tourism focus area indicates a planning intent that the subject land be developed for residential development. That is a contentious issue.
There is no dispute that the coastal tourism focus area described in paragraph (x) of Table 3.4.6.1 is coincident with the Emerging community zone on Zone Map ZM11 and Precinct COL LPP-1, Palmer Coolum Resort and The Coolum Residences on Local Plan Map LPM11.
Having regard to the Planning Scheme maps and the provisions of the Planning Scheme referred to in these reasons, I am satisfied that the subject land is within the Yaroomba tourism focus area.
Is the proposed development consistent with the intended role of the Yaroomba tourism focus area?
Section 3.4.6.1(c) contains two requirements. First, tourism focus areas are to provide for a range of visitor accommodation and tourist services consistent with the intended role of the respective tourism focus area. Second, there is to be a particular emphasis on those uses that are well suited to and compatible with existing tourism development.
With respect to the first requirement, the First Appellant says the intended role of the Yaroomba tourism focus area is that identified in the purpose statement, overall outcome (2)(j) and performance outcome PO16 of the Coolum local area plan.[33] On the Appellants’ case, only the Palmer Coolum Resort is intended to satisfy the “tourism” aspect of this particular tourism focus area. They say all of the land east of David Low Way is intended to be developed for a residential use only. The Appellants do not explain the basis for their submission. They do not identify those features of the Planning Scheme that they say support such a construction, nor do they identify the evidence on which they rely to support their submission.
[33]The First Appellant’s position was clarified on day 10 of the hearing.
Mr Adamson, the town planner retained by the Appellants, expressed an opinion consistent with the position adopted by the Appellants. The basis of Mr Adamson’s opinion is not clear. He notes that the tourism focus area symbol is to the west of David Low Way, coincident with the Palmer Coolum Resort. However, the location of the symbol on the map does not appear to inform Mr Adamson’s opinion that the subject land is only to be developed for residential development given he accepts that the subject land is designated a tourism focus area under the Strategic framework. Mr Adamson’s opinion appears to be founded only on the fact that the Planning Scheme used a description for the tourism focus area that referenced the existing (or perhaps approved) uses. Mr Adamson does not explain why the words “Sekisui House Beachside” should be construed as limiting use of that part of the tourism focus area east of David Low Way to residential accommodation only. He does not explain how his approach can be reconciled with his acceptance that the subject land is part of the identified coastal tourism focus area, which is intended to accommodate “a concentration of visitor accommodation and related tourism services.” The Appellants’ submissions also provide no clarity about these matters.
I do not accept the Appellants’ construction of the intended role of the Yaroomba tourism focus area. Both s 3.4.6.1(c) and s 3.4.6.1(d) refer to “the intended role” of a tourism focus area. The specific outcomes in s 3.4.6.1 are immediately followed by Table 3.4.6.1. The table has two functions. It identifies the location of each tourism focus area for the purpose of s 3.4.6.1(a). It also groups those tourism focus areas into three broad categories – coastal, nature and hinterland, and man-made – and outlines the intended role of each category of tourism focus area.
This construction sits comfortably with other provisions of the Planning Scheme that deal with tourism focus areas.[34] There are two additional features of the Planning Scheme that support such a construction. First, the division of tourism focus areas into the three broad categories has no other apparent function in the Planning Scheme: the Planning Scheme does not otherwise make reference to coastal tourism focus areas, nature and hinterland tourism focus areas, or man-made tourism focus areas. Second, other elements in the Economic development theme of the strategic framework utilise a similar drafting style. For example, s 3.4.3.1 contains specific outcomes for Element 2 – Sunshine Coast activity centre network. Those specific outcomes include a requirement for development to be commensurate with the role and function of the activity centre as specified in the activity centre network. They are immediately followed by Table 3.4.3.1, which contains a description (or role) for each type of activity centre. Similarly, s 3.4.4.1 contains specific outcomes for Element 3 – Employment areas, including a requirement for uses to be aligned to the primary focus of the employment area. Those specific outcomes are immediately followed by Table 3.4.4.1, which groups the various employment areas into different types and contains a description (or focus) for each type of employment area.
[34]The other provisions include s 3.2.1, s 3.2.2, s 3.2.8, Figure 3.2.8B, s 3.3.4.1(a)(i), s 3.3.4.1(b), s 3.4(9), s 3.4.1(c), (u) and (v), s 3.4.2.1(a)(iii), s 3.4.2.1(b), s 3.4.2.1(c)(v), s 3.4.9 and Strategic Framework Map SFM2, s 6.2.17 and s 7.2.8.2.
As the Yaroomba tourism focus area is a coastal tourism focus area, its intended role is to accommodate a concentration of visitor accommodation and related tourism services.
Mr Schomburgk, the town planner retained by the SHC, opines that the proposed development incorporates a number of tourism-focussed elements. He says they include the hotel itself, apartments (for both visitor accommodation and permanent occupation), restaurants and food and drink outlets, a tourist shopping area, public and resort parklands, public beach access and public car parking, surf lifesaving amenities and an educational centre. The educational centre will provide information on the ecological surrounds and the indigenous history of the subject land and the locality. Mr Schomburgk says the proposed development is aimed squarely at the tourism market. This aspect of his evidence was unchallenged.
Mr Perkins, the town planner retained by the Council, gave evidence to similar effect. He opines that the proposed development will provide infrastructure to facilitate the public enjoyment of the nearby beaches. This is evident from the requirements of the Infrastructure Agreement, compliance with which can be secured by a condition of the development approval.[35]
[35]See s 65(2)(c) of the Planning Act 2016.
I accept the evidence of Mr Schomburgk and Mr Perkins. Their evidence satisfies me that the proposed development is consistent with the coastal tourism focus role intended for the subject land.
As I noted in paragraph [59] above, in addition to requiring development to be consistent with intended role, s 3.4.6.1(c) of the Strategic framework requires an emphasis on uses that are well suited to and compatible with existing tourism development.
The economists agree that, in terms of tourism accommodation, the relevant existing tourism development is that within the Coolum, Maroochy North Shore and Peregian South local plan areas. Figure 11 of the Second Economic Need Joint Report maps the location of relevant accommodation facilities, and Table 8 details their size.
The nearest tourism development is the Palmer Coolum Resort and associated golf course on the western side of David Low Way. Historically, it offered 324 hotel rooms, suites and villas. The golf course component of the resort remains operational, but the balance of the resort is not.
The largest facilities in the Yaroomba study area are Novotel Twin Waters Resort and the Ramada by Wyndham at Marcoola Beach. Each has over 100 rooms. There are less than 100 rooms in each of the other identified facilities. There is no five-star facility in the locality. All of the existing facilities have a rating of 4.5 stars or less.
Tourism is, and will continue to be, a major contributor to the Sunshine Coast regional economy and the Coolum local economy. The economists agree that there will be ongoing demand for tourist accommodation. This will be driven by increasing demand in the domestic overnight visitor market as the South East Queensland region continues to grow. The natural attributes of the area, including the world class beaches, are also a driver for the demand. Mr Ganly and Mr Duane, the economists retained by the Council and SHC respectively, opine that the redevelopment of the Sunshine Coast Airport will also drive the demand for tourist accommodation. Whether the Sunshine Coast Airport is a key driver of accommodation demand or not, all of the economists agree that there is a gap in the market for a five-star resort facility. They agree that the subject land has characteristics that differentiate it from other resort facilities on the Sunshine Coast and that would make it popular to the tourist (and conference) market.
Mr Ganly and Mr Duane opine that the proposed development would enable the Sunshine Coast to compete more effectively with the Gold Coast for the premium international and conference-based markets. At present, it is difficult to compete as the five-star hotels on the Sunshine Coast are typically small boutique developments. They are all less than 200 rooms. The only branded hotel chains are Sofitel Noosa, Peppers Noosa, Spicers Clovelly Estate and RACV Noosa. None are located in the agreed Yaroomba study area. Spicers Clovelly Estate only has ten rooms or units. It is the only five-star facility located in the Sunshine Coast local government area.
The economists all agree that the area does not presently attract the visitor segment of the tourist market that a five-star resort would attract, including those attracted by facilities for meetings, incentives, conferences and events. The experts agree it is an important sector of the tourism market. The key difference between the economists about the need for a five-star resort on the subject land relates to the prospect that the Palmer Coolum Resort might reopen.
Mr Brown, the economist retained by the Appellants, considers there is a “real prospect” that there would be a redevelopment of the Palmer Coolum Resort. He expressed concern that approval of the proposed resort facilities would militate against refurbishment and redevelopment of the Palmer Coolum Resort as a new resort. I do not accept this evidence of Mr Brown. As was acknowledged by Mr Brown, apart from the golf course, the Palmer Coolum Resort is currently closed and in a state of disrepair. Mr Palmer acquired the resort from Hyatt in about 2011. He closed it in about 2015. While it was operating, the resort was permitted to run-down. Mr Brown acknowledged that even if the Palmer Coolum Resort reopened, it may not be operated as, or managed consistently with the expectations of, a five-star facility. He opines that in order to meet the expectations of a five-star facility, the Palmer Coolum Resort would need to be refurbished. Mr Ganly gave evidence to the same effect. Further, there is no credible evidence that an approval of the proposed development would militate against the reopening of the Palmer Coolum Resort. Mr Brown’s opinion is nothing more than speculation: it is not underpinned by any credible explanation. Mr Ganly and Mr Duane, on the other hand, opine that the proposed development and the Palmer Coolum Resort could operate side by side. They gave credible explanations for the basis of their opinions. I accept their evidence.
Having regard to the evidence of the economists referred to above, I am satisfied that the proposed development incorporates uses that are well suited to and compatible with existing tourism development.
For the reasons provided above, I am satisfied that the proposed development complies with s 3.4.6.1(c) of the Strategic framework.
Is the proposed development otherwise worthy of consideration as a meritorious opportunity for tourism development?
The Council submits that the words “Other opportunities for tourism development” indicate that s 3.4.6.1(e) is directed to outlining the circumstances when tourist-oriented development outside of a tourism focus area may be supported. The Council submits that this construction is apparent from a plain reading of s 3.4.6.1(e) in the context of the provision overall, where s 3.4.6.1(a), (c) and (d) all refer to tourism focus areas and s 3.4.6.1(a) states that to support the preferred pattern of settlement, tourism-oriented development is to be concentrated in tourism focus areas. No other party contended otherwise. I agree with the Council’s construction.
SHC has discharged the onus with respect to compliance with s 3.4.6.1(c). As such, it is unnecessary for it to demonstrate that the proposed development should otherwise be considered on its merits under s 3.4.6.1(e). In any event, I am satisfied that the proposed development complies with s 3.4.6.1(e) for the following reasons.
The proposed development is located on or with direct access to David Low Way, which is a major road.[36] The Appellants do not dispute that the proposed development will provide the entire necessary infrastructure for the development.
[36]Major road is defined to include a road classified as an arterial road. David Low Way is so classified.
The evidence of the economists demonstrates that the proposed development will provide regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities.[37] The proposed development will enhance the Sunshine Coast’s tourism brand and reputation. These matters are not disputed.
[37]The relevant evidence is detailed in paragraphs [494] to [505] below.
In this case, the only issues the Appellants raise about compliance with s 3.4.6.1(e) relate to:
(a) whether the proposed development incorporates a range or scale of uses and activities that would compromise the Sunshine Coast Activity Centre Network;[38] and
(b) whether the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes that contribute to the region’s natural (competitive) advantage.[39]
[38]See s 3.4.6.1(e)(ii).
[39]See s 3.4.6.1(e)(v).
All of the economic experts agree that, with the proposed 300 square metre limit on the size of each individual tenancy, the proposed development will not have an impact on other centres within the hierarchy. I accept their opinions in this regard. They were supported by sound reasons. As such, I am satisfied that the proposed development does not incorporate a range or scale of uses and activities that would compromise the Sunshine Coast Activity Centre Network.
Further, for the reasons provided in paragraphs [179] to [331] below in relation to the design of the proposed development and in paragraphs [332] to [404] below regarding environmental impacts, I am satisfied that the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity.
The proposed development’s compliance with s 3.4.6.1(e) is a matter that supports approval of the development application.
Does the proposed development comply with other provisions of the Strategic framework relevant to the tourism focus area?
The Appellants allege the proposed development does not comply with s 3.3.4.1(c), s 3.3.9.1(a) and s 3.4.2.1(c)(v) of the Strategic framework.
Each of s 3.3.4.1(c) and s 3.3.9.1(a) is a specific outcome identified as part of the “Settlement pattern” theme.
Section 3.3.4.1(c) relates to “Element 3 – Efficient and functional urban form”. It requires urban consolidation to be “compatible with and sympathetic to the preferred character of the local area”.
A footnote to the provision notes that:
“the preferred character of each coastal urban, rural town and rural village community is described in the applicable local plan code.”
Section 3.3.9.1(a) relates to “Element 8 – Local settings and local planning responses”. It requires:
“The Sunshine Coast is maintained as a community of communities where the character and identity of each community is recognised and protected in accordance with a local plan.”
These provisions are only marginally relevant to the question of whether there is an appropriate mix of residential and tourist-oriented development. Compliance with them, in terms of the appropriateness of the mix of uses proposed, is dependent on compliance with the Coolum local plan.[40] For reasons explained in paragraphs [109] to [137] below, I am satisfied that the mix of uses proposed is appropriate having regard to the provisions of the Coolum local plan.
[40]It seems, from the First Appellant’s submissions with respect to the nature of the non-compliance, that the First Appellant appreciated this. In those circumstances, it is difficult to appreciate how the Appellants’ conduct in alleging non-compliance with these provisions accords with their obligations under s 10 of the Planning and Environment Court Act 2016 (Qld).
Section 3.4.2.1(c)(v) forms part of the implementation framework for the Economic development theme. In particular, it relates to “Element 1 – Natural (competitive) advantage and key economic sectors”. It requires that:
“New investment and re-investment in high value industries including … tourism are supported through the following:-
…
(v)protection of existing tourism, sport and leisure facilities and encouragement of the establishment of new facilities that contribute to active, healthy living and community wellbeing”.
As I have also noted in paragraph [75] above, there is no credible evidence that the provision of these new facilities fails to adequately protect existing tourism facilities, such as the Palmer Coolum Resort.
The subject land has a beachside location. The economists identify this as an attribute that underpins its natural competitive advantage. The proposed development will draw on that attribute to provide new tourism facilities that will contribute to active, healthy living and community well-being. The provision of community facilities (such as the educational centre), improved beach accesses and access to the coastal pathways proposed on the Yaroomba Pedestrian and Cycle Movement Plan are particularly notable in this regard. As such, I am satisfied the proposed development accords with specific outcome s 3.4.2.1(c)(v).
For the reasons that follow, I am also satisfied that the proposed development complies with the Planning Scheme’s intention for tourism focus areas evident in other provisions of the Strategic framework about tourism.
Consistent with the strategic intent in s 3.2.2, the proposed development will assist in strengthening the region’s “national and international appeal as a visitor destination”. It will be the first major hotel development on the Sunshine Coast in 30 years. The resort complex will include a hotel that will be operated either as a “Westin” (a well-known, internationally branded hotel chain by an operator already secured by SHC) or some other five-star hotel.[41] As I noted in paragraph [74] above, the proposed development will cater to a presently unserved segment of the tourism market. Further, community use components such as the educational centre are recognised as contributors to the economic and social fabric of the Sunshine Coast.
[41]The decision notice contains a condition that secures this.
As I have noted above, and consistent with the tourism key concept in s 3.4.1(9) of the Strategic framework, the proposed development will add to the attraction of the Yaroomba tourism focus area. It will offer conference facilities and accommodation types of sufficient size to support major events.
In accordance with s 3.4.6.1(a), the proposed development will support the preferred pattern of settlement by providing tourist orientated activities and services within the tourism focus areas identified on Strategic Framework Map SFM2 and described in Table 3.4.6.1.
The Council submits that the proposed development also assists in achieving a “cluster” of tourist attractions as sought in s 3.4.6.1(d). “Tourist attraction” is defined as “Premises for providing on-site entertainment, recreation or similar facilities for the general public”. The definition gives examples of theme park and zoo and specifically excludes “Hotel”. The Appellants say this provision does not support the proposed development. It says the provision is directed at the clustering of man-made tourist attractions at Beerwah, Bli Bli, Palmview, Yandina and Woombye. I accept that the provision applies to those man-made tourist attractions. That does not demonstrate that this provision is not supportive of an approval. The proposed development is for a “Resort complex”, which is not an excluded use. It includes a range of restaurants, retail and community uses (such as the educational centre, improved beach accesses and access to the coastal pathway) that are all likely to attract tourists and local visitors. It is proximate to an existing tourist attraction, namely the golf course attached to the former Palmer Coolum Resort. Mr Schomburgk was of the view that the proposed development assists in achieving this “cluster”. I accept his evidence. Even if the proposed development did not include things considered to be a “tourist attraction” as defined, the clustering of the facilities within the proposed development, as well as proximate to the existing golf course, is nevertheless consistent with the underlying planning policy to cluster uses that provide entertainment, recreation and similar facilities for the general public in a tourism focus area. This is a matter that is supportive of approval of the proposed development.
Conclusion regarding compliance with tourism focus provisions of the Strategic framework
For the reasons provided above, I am satisfied that the proposed development complies with the applicable tourism focus provisions of the Strategic framework. Compliance with these provisions is a factor that lends support to approval of the proposed development.
Does the proposed development comply with the applicable tourism focus provisions of the Emerging community zone code?
Zones organise the Planning Scheme area in a way that facilitates the location of compatible land uses. As I have noted already, the subject land is in the Emerging community zone.
The Appellants submit that the proposed development fails to comply with the Emerging community zone code in that it does not reflect the specific intent for the locality in the Coolum local plan code. They also submit that the proposed development involves an inappropriate mix of uses (tourist or commercial and medium to high density residential) and fails to integrate the uses on the subject land with the Coolum Resort.
The purpose of the Emerging community zone code is recorded in s 6.2.17.2(1). It states:
“The purpose of the Emerging community zone code is to ensure that development is designed and coordinated to achieve safe, healthy and sustainable new urban communities which:-
(a) are well integrated with existing communities;
(b) deliver affordable living opportunities;
(c) provide an appropriate mix and arrangement of activities; and
(d)provide a best practice benchmark for ecological sustainability and the implementation of environmental enhancement and rehabilitation programs.”
(emphasis added)
The purpose of the zone will be achieved through the overall outcomes.[42] They include:
[42]Section 6.2.17.2(2) of the Planning Scheme.
“(c)development in other areas not subject to Part 10 (Other plans) is undertaken in accordance with a plan of development that appropriately addresses the matters identified below, and which is implemented via a preliminary approval pursuant to section 242 of the Act[43] or an amendment to the planning scheme:-
[43]This refers to s 242 of the Sustainable Planning Act 2009.
(i)development reflects any specific intent statements and local structure planning elements for the area identified in a local plan code;
(ii)development avoids as far as practicable, or where avoidance is not practicable, minimises and otherwise mitigates, adverse impacts on ecologically important areas, including creeks, gullies, waterways, wetlands, coastal areas, habitats and vegetation through location, design, operation and management;
(iii)development is designed and sited to sensitively respond to the physical characteristics and constraints of land, including flooding, steep land, landslide hazard and bushfire hazard, where applicable;
(iv)the scale, density and layout of development facilitates an efficient land use pattern that:-
(A) is well connected to other parts of the urban fabric and planned future development;
Third, the subject land is already approved for medium density development (up to four storeys) pursuant to the Hyatt preliminary approval. Although the proposed development will provide a greater residential density than the Hyatt preliminary approval, this design option chosen more than a decade ago for that proposal does not operate as a limit on the density of proposed development.
Fourth, the proposed development will make efficient use of infrastructure and contribute to a more compact urban form. This is an outcome desired by the Planning Scheme[120] and the South East Queensland Regional Plan. It does so without comprising the planning outcomes sought by the Planning Scheme, including in terms of character, visual impact and ecological impact.
[120]See, for example s 3.3.1(f) of the Planning Scheme.
The demonstrated need for the residential component of the proposed development is a relevant matter that supports approval of the proposed development.
Is there a need for the retail component of the proposed development?
The proposed development provides for a maximum of 2 770 square metres of retail and commercial space with tenancies limited to a maximum size of 300 square metres. The retail facilities are to be provided as part of Stage 1, prior to the majority of the residential development.
The ultimate tenancy mix will be subject to final design and leasing arrangements. Nevertheless, as I have noted in paragraph [150] above, the economists all agree the likely tenants for the retail and commercial area. They would be a convenience or food store; a range of food catering outlets including breakfast or lunch café, some night time restaurants together with juice or ice-cream gelato store; potential pharmacy; liquor store; giftware or souvenir or resort shop containing a range of products such as beachwear; and hair and beauty and spa treatment tenants. This likely mix of retail and commercial development is supported by performance outcome PO16(f) of the Coolum local plan code.
The economists agree that it is appropriate for the proposed development to provide retail facilities of the nature proposed. They also agree that the majority of spending within the retail facilities will be by on-site tourists. They all opine that, based on the likely tenancy mix and scale, the proposed retail centre will not undermine the viability of other centres in the hierarchy.
The only disagreement between the economists relates to the timing of the retail component and the size of the retail component.
Although Mr Brown accepts the use is appropriate, he does not support the timing of the retail development or the size of the retail component. Mr Brown says there is a need for only 1 800 square metres of retail floor space, and only once all other aspects of the development are delivered. He says the retail floor space required for Stage 1 is significantly less than 1 800 square metres. Despite Mr Brown’s position that there is an overprovision of retail floor space and his view that it is provided prematurely, Mr Brown does not anticipate that the retail and commercial component of the proposed development will have trading impacts sufficient to undermine the viability of other centres. Rather, he says that the overprovision will sound in on-site underperformance of the retail and commercial component of the proposed development.
Mr Duane and Mr Ganly opine that there is need for the proposed 2 700 square metres of retail and commercial space. They accept that the retail and commercial component of the proposed development is likely to trade at lower levels in the first instance given the absence of the residential population but opine that it will be sustainable and will not affect the viability of other retail facilities in the surrounding area. They say it may take some time to lease some of the stores but consider that a private economic issue for the developers of the subject land.
I am satisfied that there is a need for the retail and commercial component of the propoed development for three reasons.
First, I accept that it is appropriate for a modern, five-star resort to incorporate a range of facilities to meet the reasonable needs of the resort guests immediately upon opening. I accept the evidence of Mr Duane and Mr Ganly that this may mean that the developer will achieve lower trading levels initially. This is a matter of private economics and is not a matter of concern to me. It is significant that the proposed development will deliver a range of retail and commercial facilities that will be of a small scale, primarily consisting of local services to support the resort complex and local convenience needs. With the tenancy limit of 300 square metres, it will not compete with other centres, nor impact upon other centres in the hierarchy. As is acknowledged by Mr Brown, there is no prospect that the proposed tenancy mix will morph into a local centre, nor any prospect that the proposal will position itself as a convenience centre, including because the recent refurbishment of the Mount Coolum Local Centre militates against that possibility.
Second, although the retail component of the development will predominantly serve tourists staying at the resort complex, and tourists and visitors from within the wider area, it will also provide a benefit to residents of the trade area in the locality. They will benefit from the availability of convenience goods, particularly when they visit the beach or the resort complex or hotel. In addition, the experts all agreed that the food catering premises (i.e. the restaurants and cafes) would be the key attractor of trade area residents. As such, the retail component of the proposed development will provide additional choice and convenience for both local residents and tourists at the proposed development, as well as those in the broader region, through its provision of food catering and other facilities in a modern integrated tourist facility.
Third, the retail and commercial facilities will provide a further community benefit in terms of the additional opportunities for employment within the proposed development.
For the reasons provided above, I am satisfied that there is an economic need for the retail component of the proposed development.
Conclusion regarding need
For the reasons provided above, I am satisfied that there is a need for the proposed development. It will improve the well-being of the community by meeting the latent unsatisfied demand for a five-star resort in the locality. The residential component will also provide an important choice to the community, by making provision for “the missing middle” form of accommodation proximate the beach. The retail and commercial component will improve the facilities and services available in the locality. The proposed development can meet these needs absent unacceptable impacts and in a manner that is consistent with the intended outcomes under the Planning Scheme. Further, the proposed development will improve the well-being of the community through the benefits it will provide to the Coolum locality and the Sunshine Coast region more generally by generating economic and community benefits, particularly in terms of employment.
Will the proposed development provide economic benefits to the locality, region and State that support its approval?
The Council submits that the proposed development will improve the well-being of the community through the benefits it will provide to the Coolum locality and the Sunshine Coast region and State more generally by generating economic and community benefits, particularly in terms of employment. I accept the Council’s submission for the reasons that follow.
I accept the evidence of Mr Duane and Mr Ganly that the proposed development will provide employment in the tourist sector (on a permanent basis) and in the construction sector (for some 10 years). It is evident from the data presented by the economists that these are important employment sectors for the Sunshine Coast.
Mr Ganly’s opines that, generally, a five-star hotel has a workforce of approximately 20 jobs per ten rooms, which he says equates to between 400 and 500 jobs associated with the operation of the proposed hotel. He says this will be significantly more than other three-star and four-star hotels in the locality. Mr Ganly says that the workforce for a five-star hotel is significantly greater than the workforce required for a four-star hotel, which generally supports 12 jobs per ten rooms, and well beyond that required for a three-star hotel, which generally supports eight jobs per ten rooms. His evidence was unchallenged in this respect and I accept it. It was consistent with the evidence of Mr Hunt.
Mr Hunt is an Area Vice President (Australia, New Zealand and Pacific) for Marriott International Inc. He has a lifetime of experience in the hospitality industry, including managing a five-star resort hotel on the Sunshine Coast (the then Sheraton Noosa Resort), which gives him the knowledge and experience to provide evidence of likely local employment, including with respect to career opportunities that this proposal will likely provide to the community. Mr Hunt estimates that a five-star Westin hotel on the subject land would employ between 400 and 500 staff, sourced locally. Moreover, in terms of public and community benefits, Mr Hunt said that a hotel such as the Westin would provide training for staff. He is a living example of those benefits provided by five-star resorts. He commenced employment with the Sheraton Hotel chain as an apprentice chef and advanced through his career to the Starwood chain as a vice president. He also says that employment would be offered in a number of hotel divisions or cells including management, front office, house-keeping, food and beverage, grounds staff, engineering and maintenance and allied services including airport transport, concierge and tours.
Mr Hunt’s evidence persuades me that the five-star hotel component of the proposed development will provide the local community with both employment and opportunities for advancement in the hospitality industry.
Significant new employment will also be created during the construction phase of the development. Given the multiple stages of the proposed development, employment for construction purposes is likely to continue for a number of years. The sunset date for completion of the development will be ten years from the date that any approval takes effect.
Having regard to the evidence referred to in paragraphs [495] to [499] above, I am satisfied that the provision of jobs for the local community will be a key benefit provided by the proposed development.
In terms of the local economy generally, an approval of the proposed development will attract a significant number of new visitors to the local area. This is evident from Mr Brown’s admission that the Yaroomba area does not currently attract the visitor segment that would be attracted by the proposed development. The evidence of Mr Hunt supports it. He anticipates that a five-star Westin hotel would have 100 per cent weekend occupancy rates, year round and that the meetings, incentives, conference and events offer would make a substantial contribution to maintaining high occupancy rates even during the week, which is otherwise a quieter time on the Sunshine Coast (other than during the holiday periods). Mr Hunt’s evidence about the contribution made by the meetings, incentives, conference and events offer is consistent with the evidence of the economists (particularly Mr Duane and Mr Ganly).
Mr Perkins opines that the additional visitors to the Yaroomba area may benefit local businesses within the area through increased spending by the tourists and visitors. His opinion was unchallenged, and I accept it.
Members of the local community also stand to benefit from the range of infrastructure secured by the infrastructure agreement entered into between SHC and the Council. It requires a number of improved public and community access outcomes, including a coastal discovery trail; a three-metre wide pedestrian and cycle access way; a three-metre wide coastal pathway; a motor vehicle, pedestrian and cycle access road; and two refurbished beach access ways. It also requires the provision of community-based infrastructure. That infrastructure includes a “Coastal Discovery Centre” (being a centre for the holding of educational material, art and displays); a 7 000 square metre civic park; a 4 600 square metre beach side park; public amenities ( including toilets, end of trip facilities and beach showers); a surf life saving tower and amenities; a minimum 4 500 square metre “green link” (involving vegetation retention and management); a new public car parking facility providing for a minimum of 80 car parking spaces; a financial contribution of $1.2 million towards road improvements in the locality; a financial contribution of at least $500 000 (or works in kind) to fund an upgrade of the car park and toilets at Mt Coolum, or other recreational facilities in the Coolum and Yaroomba areas; and a financial contribution of $500 000 for the funding of a local indigenous arts program. The provision of these items means that a significant area of the subject land, totalling approximately 3.22 hectares, will be dedicated to the Council for the community benefit. Mr Perkins notes that these community benefits will be available beyond the residents and users of the proposed development.
The Appellants seek to diminish the economic and community benefits because, on their case, such benefits would also be provided through the continuation of the Coolum Residences on the subject land and through (to at least some extent) the development of the subject land consistent with the Planning Scheme and under the Hyatt approval. I do not accept their position. There is no evidence as to how the same, or even similar, economic benefits would follow from a continuation of the Coolum Residences (or for that matter the speculative refurbishment of the Palmer Coolum Resort). There is no evidence to demonstrate that the delivery of the extensive list of parks, pedestrian pathways, publicly available facilities, public parking, and so forth (listed above), would be reasonably required by a development consistent with the Planning Scheme and under the Hyatt preliminary approval.
An approval of the proposed development would allow SHC to deliver the economic and community benefits to which it has committed. This relevant matter supports approval of the proposed development.
Will the proposed development increase tourism and economic activity in the locality and the region that supports the investment in the Sunshine Coast Airport?
The Council submits that an approval of the proposed development, particularly the resort complex, will both support and be supported by the significant investment in the expansion of the Airport.
The importance in town planning and economic terms of the recent investment in the expansion of the Airport is reflected in the Planning Scheme. It identifies the Airport expansion as a “game changer” project, with the Airport a specialist activity centre that provides a range of opportunities that promote the region and support tourism on the Sunshine Coast. The Regional Economic Development Strategy 2013 – 2033 also recognises the Airport expansion as a “game changer” project and states that it will, amongst other such projects, have a transformational effect on business, employment and investment growth – and on the Sunshine Coast economy overall.
The expansion of the Airport is underway, with completion due in the next two years. The expansion includes:
(a) a new 2 450 metre long and 45 metre wide runway;
(b) an expanded aircraft parking apron;
(c) runway and taxi loops;
(d) a new air traffic control tower and associated infrastructure;
(e) passenger terminal upgrades; and
(f) new access roads and utilities.
The expansion is intended to cater for larger, more fuel-efficient aircraft that can fly longer distances and open the Sunshine Coast up to direct access from destinations across Australia, Asia and the Western Pacific.
The Council relied on passenger projections in the Sunshine Coast Airport 2040 Masterplan to support its submission. Mr Brown suggests that there is a high risk of optimism bias in those Airport passenger forecasts but recognises that passenger projections are typically a trend projection. Since 2015, passenger numbers have been increasing steadily each year.
The Council submits that the Airport expansion is both relevant and important because of the relationship between the Airport and tourism and the subject land’s proximity to the Airport. If approved, the proposed development would be the closest five-star resort complex to the Airport. It would be located just eight kilometres north and a ten-minute drive from the Airport, which is considerably closer than the 35 kilometres distance to the only relevant competitor, the Sofitel at Noosa. Mr Adamson accepted that the Airport expansion is a relevant consideration.
I accept that the proposed development will be ideally located to cater for both business and leisure travellers arriving at the Airport. Mr Brown opines that business travellers would be drawn towards the Principal Centre of Maroochydore, or one of the Sunshine Coast’s other Major Centres (which he does not identify). Those destinations will have attraction to business travellers, but that does not detract from the obvious attraction that will be provided by a new, luxury and quality conference facility located ten minutes from the Airport nor from the clear convenience of such facilities for business travellers.
The proposed development is well placed to provide tourist and business traveller accommodation facilities that will support, and be supported by, the expansion to the Airport. This relevant matter lends some (limited) support to approval of the proposed development.
Can the proposed development be provided without any unacceptable impacts?
A relevant matter identified by the Council is that the proposed development, through the imposition of reasonable and relevant conditions, and its many associated benefits (particularly in achieving the planning intentions for the subject land and providing economic benefits to the community) can be provided with no unacceptable amenity impacts and no unacceptable environmental or other impacts.
For the reasons already provided, I am satisfied that the proposed development, as conditioned by the Council (subject to recommended amendments referred to herein), can be provided without any unacceptable impacts in terms of traffic, visual amenity and character, and turtles.
The absence of unacceptable impacts is a relevant factor that, where coupled with an economic, community and planning need for the proposed development, lends support to approval of the proposed development.
Does the Hyatt preliminary approval support an approval of the proposed development?
As I have noted in paragraph [3] above, the subject land has the benefit of a current development approval, being the Hyatt preliminary approval. It anticipates development of the subject land for a mix of dwelling types, including multiple dwellings, detached houses and duplexes, as well as retail and commercial uses up to a maximum of 500 square metres. As such, the exercise of the planning discretion must be based on an assessment that is carried out having regard to the Hyatt preliminary approval.[121]
[121]See s 45(5)(a)(ii) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017.
The Hyatt preliminary approval includes development across a number of precincts, relevantly including Precincts 1C, 3C, 3D, part of 3E, 3F and part of 3H (buffer precinct). These are the precincts that most closely align with the subject land. The uses provided for within these precincts include:
(a) non-residential uses, including restaurant, shop and outdoor recreation up to a maximum of 500 square metres; and
(b) residential uses comprising a mix of dwelling types, including multiple dwellings, detached houses and duplexes.
The form of development that could occur on the subject land is usefully depicted in Figure 1 of Exhibit 21. It is also graphically depicted on the last page of Exhibit 82, which graphically depicts the likely extent of built form when viewed from the type of aerial oblique view one would get from Mt Coolum. The extent of development facilitated by the Hyatt approval is significant.
The subject land is located within part of the “Beachside” precinct (Precinct 3) in the Hyatt preliminary approval. That precinct also included land to the south of the subject land. In that precinct, the preliminary approval allowed a maximum density of 450 dwellings across the precinct. The southern portion of the precinct, to the south of the subject land, has been developed predominately for detached houses of two storeys in height. That development is known as “Coolum Beachside” and “Belle Mare”. It provides approximately 110 dwellings. The Hyatt preliminary approval also authorised units within sub-precinct 3F, which is located within the subject land. In that sub-precinct, the approval authorised 140 dwelling units and buildings up to 16 metres and four storeys in height.
All of the sub-precincts within Precinct 3, except for 3F, allowed for 20 per cent of dwellings to be multiple dwellings (units) of up to three storeys, and allowed for a further 20 per cent of dwellings to be dual occupancy, leaving the remainder of the sub-precincts (60 per cent) to be comprised of detached houses.
The development of Coolum Beachside with a predominance of detached houses of two storeys in height informs expectations about the likely development of the remainder of Precinct 3 under the Hyatt preliminary approval, given the approval contemplated up to 40 per cent of the development being other than detached houses.
Having regard to the Hyatt preliminary approval, the community could reasonably expect that development of the subject land would include residential and non-residential uses. The community could also reasonably expect that the residential development would include accommodation other than detached dwellings, being dual occupancies and multiple dwellings, and that some of the residential development might be above 8.5 metres in height (despite the mapping on the Height of Buildings and Structures Overlay Map).
The Appellants submit that the proposed development is a much greater scale than that contemplated in the Hyatt preliminary approval. I agree. However, it is not reasonable for the community to expect that the extent of development of the subject land will be limited to that approved in the Hyatt preliminary approval. The preliminary approval was granted about 12 years ago and the planning needs of a community are not static and immutable. It is reasonable for the community to expect that the subject land might be developed for a more intensive form of development where it complies with the assessment benchmarks that apply at the time the development application is made and meets an identified need, as the proposed development does.
Do the locational attributes of the subject land and the design response to it support approval?
SHC and the Council raise the strategic beachfront location of the subject land and the design responsiveness of the proposed development to the locational and shape constraints of the subject land as relevant matters that they say support approval of the proposed development.
The large size and beachside location of the subject land represents an uncommon and distinct opportunity to provide a large five-star luxury resort facility on the Sunshine Coast. As observed by Mr Schomburgk, large parcels of beachfront land are rare and even more so when that parcel is identified as being within a tourism focus area.
Mr Thompson gave evidence about the merit of the design of the proposed development. He was the only architect called. His evidence persuades me that a rigorous site analysis was undertaken prior to developing the design of the proposed development to inform a design that respects the natural ecology, environment, vegetation and other qualities of the subject land, including views to and views from the subject land from a range of vantage points. In paragraph [203] above, I record Mr Thompson’s evidence about the key principles that informed the design outcome, which evidence I accept.
Mr Thompson opines that the architectural design of the proposed development is exemplary, particularly having regard to his view that:
(a) the scale of the buildings (in particular the way in which they are broken down into smaller elements with variation in height) is positively responsive and deferential to the scale of the immediate and wider landscape of the natural environment, both in built form and architectural detail;
(b) the proportions of the architectural composition are elegant and well considered;
(c) the colours and materials are derived from, and will be harmonious with, the natural environment and landscape; and
(d) the tectonic detail of sun shading, screening, balustrading, recesses and steps, and other smaller elements of the façade provides a more intimate scale in a visually stimulating manner, which he says also serves to give the external form a seemingly non-repetitious and syncopated irregular pattern similar to that found in the natural landscape.
Mr Thompson opines that the dominant character and experience of the proposed development will be of the natural environment, both internally to the site and from external perceptions. He says this is achieved through the master planning concepts and design features that he addressed in his oral evidence.
As I have already indicated elsewhere in these reasons,[122] I accept the evidence of Mr Thompson.
[122]See, for example, paragraph [227] above.
Having regard to the built form design and the locational attributes of the subject land (including the significant size and beachfront location), Mr Perkins opines that the subject land presents an opportunity to develop an intensive tourism focus development without unacceptable, adverse impacts upon the surrounding community. I accept his evidence.
These relevant matters support approval of the proposed development, particularly as they can be achieved without compromising the planning outcomes sought in the assessment benchmarks.
Is the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018?
The Council submits that the proposed development is consistent with and supports the achievement of objectives and planned outcomes of the South East Queensland Regional Plan; the Regional Economic Development Strategy 2013-2033; and the Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018. The Appellants did not address this ground, other than to assert (without elaboration) that the relevant matters raised in support of the proposed development do not provide justification for approval of the proposed development.
I have already addressed the objectives and planned outcomes of South East Queensland Regional Plan in respect of dwelling supply and “missing middle” housing in paragraphs [468] to [481] above. The South East Queensland Regional Plan also identifies a goal of becoming a globally competitive region with close to a million jobs by 2041 by building on, amongst other things, South-East Queensland’s economic advantages in key export-oriented industries including tourism. I am satisfied that an approval of the proposed development is consistent with the South East Queensland Regional Plan’s objectives in respect of both tourism and residential growth.
Sunshine Coast – The Natural Advantage: Regional Economic Development Strategy 2013-2033 was developed by leading business and industry groups and key stakeholders, including the Queensland Government, Sunshine Coast Regional Council, the Sunshine Coast Economic Development Advisory Board, the Sunshine Coast Business Council. It provides a 20-year vision and blueprint for sustainable economic growth to seek to ensure that the Sunshine Coast region realises its full potential. It identifies five “pathways” for growth, and recognises that the construction, retail and tourism industries are, and will remain, significant elements of the Sunshine Coast’s economy. The tourism, sport and leisure industry is identified as a “high value” industry for which the region will “vigorously seek new investment opportunities”, because it has the potential to generate higher-paying enduring employment opportunities on the back of the region’s “game changer” projects. It identifies the expansion of the Airport as one of the “game changer” projects.
Mr Gschwind gave unchallenged evidence on behalf of the Queensland Tourism Industry Council. He identifies the importance of tourism to the Queensland economy, observing that tourism is a $27.3 billion industry for Queensland that sustains 237 000 Queensland jobs across 55 000 businesses. He also says that tourism is a major contributor to the Queensland economy.
By providing five-star luxury accommodation and conference facilities at the proposed development, in close proximity to the “game changer” expanded Airport, an approval of the proposed development would be consistent with, and support the achievement of, the planned outcomes of the Regional Economic Development Strategy 2013-2033.
The Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018 was developed by local industry stakeholders and is intended to be a guide to progressing and increasing the economic value of the tourism sector to the region. It corresponds with the five-year implementation plan in the Regional Economic Development Strategy 2013-2033. It recognises the expansion of the Airport, with international capability, as a priority development offering a suite of opportunities for tapping directly into a global tourist market including numerous international events.
In recognising the need to attract investment in new tourism experiences, the Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018 states that:
“… the visitor economy currently injects almost $2.81 billion dollars of direct expenditure into the destination. This in turn generates an estimated an overall expenditure impact of $4.6 billion dollars (direct and indirect expenditure) across sectors including transport, accommodation and food services, and retail trade which, in turn, supports an overall 42,251 jobs (direct and indirect).”
A key target area for growth of the Sunshine Coast visitor economy is mid-week event tourism, including business, leisure and sporting events as well as interstate fly/drive. For reasons already provided, I am satisfied that the proposed development will provide convenient facilities for the business and leisure markets and for interstate flyers.
For the reasons provided above, I am satisfied that a decision to approve the proposed development is consistent with, and supports the achievement of, the planned outcomes of the Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018.
These matters lend support to approval of the proposed development.
Is it within the public interest for the proposed development to be approved?
The Appellants allege that it is not in the public interest for the proposed development to be approved. The Appellants’ submissions did addressing their allegation. Their allegation appears to be founded on the case otherwise advanced by the Appellants.
Whether an approval is, or is not, in the public interest is a question of fact to be determined in the exercise of the planning discretion. The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the applicable planning scheme and proper planning practice. 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. 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”.
The Council submits that matters of public interest overwhelmingly support an approval of the proposed development. By way of summary, it provides six key reasons it says approval of the proposed development is in the public interest.
First, the three key components of the proposed development, being tourist and residential development with supporting retail and commercial development, are clearly supported by the Planning Scheme, which itself reflects the public interest.
Second, the extent of development does not involve “over development” and is compliant with the relevant provisions of the Planning Scheme.
Third, although the proposed development is inconsistent with the maximum height shown on the Height of Buildings and Structures Overlay Map, the built form of the proposed development is otherwise compliant with the relevant provisions of the Planning Scheme. The exceedance of the standard shown on the Height of Buildings and Structures Overlay Map does not result in an unacceptable departure from the Planning Scheme as there is an absence of visual amenity (and any other) impacts arising from the height. It also facilitates the satisfaction of the economic and planning need for a five-star resort hotel with conference facilities, while satisfying the relevant planning provisions regarding landscaping and open space.
Fourth, an approval of the proposed development will result in a significant increase in publicly accessible areas of open space, particularly because the subject land is privately owned and the proposed development will deliver considerably more open space than that which would be available under the Hyatt preliminary approval. It also makes excellent provision for public access to Yaroomba Beach through the proposed car parking, access ways and new surf lifesaving facilities.
Fifth, an approval would satisfy the economic, planning and community need for the proposed development. It says it is not in the public interest to refuse the proposed development on the basis that the Palmer Coolum Resort may re-open: because that resort is closed, there is a failure to achieve the planning intent for the Yaroomba tourism focus area and a failure to provide the associated public benefits to the Sunshine Coast economy.
Sixth, the proposed development will provide economic benefits to the Coolum locality and wider Sunshine Coast area, including employment and career opportunities that will be made available to members of the local community.
I accept the Council’s submissions. They reflect a fair summary of my findings set out in the reasons above.
In all of the circumstances of this case, an approval of the proposed development is in the public interest. Accordingly, the application should be approved, subject to conditions.
Conclusion
For the reasons provided above, I am satisfied that, in the exercise of the planning discretion, SHC’s application should be approved subject to the conditions in the Council’s decision notice but with the amendments recommended by the turtle experts. SHC has discharged the onus and the appeal will be dismissed in due course.
I will give the parties an opportunity to prepare a judgment document that attaches the conditions of approval. The orders of the Court will be:
(a) By 4 pm on 8 June 2020, the Respondent is to deliver a draft Judgment attaching the conditions of approval to the other parties.
(b) The appeal is to be listed for review at 9 am on 15 June 2020 for the purpose of making final orders in the appeal.
“Integrated tourist facility” means premises which:
(a)are used primarily for facilities and activities which attract, accommodate and entertain tourists where some facilities are open to the public use; and
(b) are on a land extensive site; and
(c) include two or more buildings; and
(d) are developed in an integrated way, and managed as one entity; and
(e)may include provision for conference facilities and for permanent residential accommodation.
The term includes integrated tourist resorts, tourist theme parks and the like.”
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