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Development Watch Inc. v Sunshine Coast Regional Council

Development Watch Inc. v Sunshine Coast Regional Council

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Case Copied 8 June 2023 74 min read

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PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION: Development Watch Inc. & Anor v Sunshine Coast Regional
Council & Anor [2023] QPEC 24
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: 8 June 2023
DELIVERED AT: Brisbane
HEARING DATE: Original hearing on 18 to 30 November and 2 to 6 December
2019 and further evidence received 19 March 2020 and 28
April 2020 and further written submissions received on 17
March 2020, 23 and 26 March 2020 and 28 April 2020
And further hearing on 1 and 2 August 2022
JUDGE: Kefford DCJ
ORDER: I order:

(a) the appeal is dismissed; and
(b) the Respondent’s decision to approve the
development application subject to conditions
recorded in the decision notice dated 21 June 2018
is changed to a decision to approve the
development application subject to the conditions
in the development approval package attached as
“Annexure A” (and paginated as pages 1 to 639
and 70A and 70B) to the Judgment that is court
document number 90 on the court file for Appeal

CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where the
Court of Appeal found an error of law in assessment against
one assessment benchmark – where the Court of Appeal
remitted the matter to the Planning and Environment Court
for redetermination – whether the issues raised by the
submitters fall within the scope of a remitted hearing –
whether the height of the proposed development is consistent
with the reasonable expectations of the local community

PLANNING AND ENVIRONMENT – APPEAL – where submitters 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 the
proposed development should be approved in the exercise of
the Court’s discretion
LEGISLATION: Building Act 1975 (Qld), s 30

Coastal Protection and Management Regulation 2017 (Qld), sch 3
Integrated Planning Act 1997 (Qld), s 3.5.5, sch 10
Local Government Act 2009 (Qld), s 251

Planning Act 2016 (Qld), ss 8, 16, 43, 45, 59, 60, 61, 311, sch 2
Planning and Environment Court Act 2016 (Qld), ss 43, 45,
46, 47

Planning Regulation 2017 (Qld), s 31, sch 9, sch 10, sch 11, sch 12, sch 24
Queensland Heritage Regulation 2015 (Qld), sch 2
Sustainable Planning Act 2009 (Qld), ss 305, 314, sch 3
CASES: Abeleda & Anor v Brisbane City Council & Anor [2020]
QCA 257; [2021] QPELR 1003, applied
Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors
[2007] QPEC 112; [2008] QPELR 342, approved

approved

Aldred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QPEC 24
Decision Date: 8 June 2023

CaseChat Overview and Summary

Development Watch Inc. sought to appeal a decision of the Sunshine Coast Regional Council, which had approved a mixed use development application from SHC. The development application sought preliminary approval for a material change of use and development permits for reconfiguration of a lot and for material change of use. The primary concern of the appeal was whether the proposed development complied with relevant assessment benchmarks and whether the development should be approved in the exercise of the court's discretion.

The legal issues before the court included whether the issues raised by the submitters fell within the scope of a remitted hearing and whether the height of the proposed development was consistent with the reasonable expectations of the local community. The court had to determine whether the proposed development complied with relevant assessment benchmarks, and whether the development should be approved in the exercise of the court's discretion.

The court found that the issues raised by the submitters did fall within the scope of a remitted hearing. The court found that the height of the proposed development was consistent with the reasonable expectations of the local community. The court found that the proposed development complied with relevant assessment benchmarks and that the approval of the development was in the public interest. The court concluded that, in the exercise of the planning discretion, the development application should be approved subject to conditions. The appeal was dismissed, and the respondent's decision to approve the development application subject to conditions was changed to a decision to approve the development application subject to the conditions in the development approval package attached as "Annexure A" to the judgment.

Orders

Orders of the court

I order:

(a)

the appeal is dismissed; and

(b)

the Respondent’s decision to approve the

development application subject to conditions

recorded in the decision notice dated 21 June 2018

is changed to a decision to approve the

development application subject to the conditions

in the development approval package attached as

“Annexure A” (and paginated as pages 1 to 639

and 70A and 70B) to the Judgment that is court

document number 90 on the court file for Appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the
Court of Appeal found an error of law in assessment against
one assessment benchmark – where the Court of Appeal
remitted the matter to the Planning and Environment Court
for redetermination – whether the issues raised by the submitters fall within the scope of a remitted hearing –
whether the height of the proposed development is consistent with the reasonable expectations of the local community
PLANNING AND ENVIRONMENT – APPEAL – where submitters 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 the
proposed development should be approved in the exercise of
the Court’s discretion
LEGISLATION:	Building Act 1975 (Qld), s 30
Coastal Protection and Management Regulation 2017 (Qld), sch 3
Integrated Planning Act 1997 (Qld), s 3.5.5, sch 10
Local Government Act 2009 (Qld), s 251
Planning Act 2016 (Qld), ss 8, 16, 43, 45, 59, 60, 61, 311, sch 2
Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47
Planning Regulation 2017 (Qld), s 31, sch 9, sch 10, sch 11, sch 12, sch 24
Queensland Heritage Regulation 2015 (Qld), sch 2
Sustainable Planning Act 2009 (Qld), ss 305, 314, sch 3
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied
Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors
[2007] QPEC 112; [2008] QPELR 342, approved
approved
Aldred…