Development Watch Inc. v Sunshine Coast Regional Council - [2023] QPEC 24

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 v Beaudesert Shire Council (1978) 37 LGERA 404, applied
Ashvan Investments Unit Trust v Brisbane City Council &
Ors [2019] QPEC 16; [2019] QPELR 793, approved
Baptist Union of Queensland v Brisbane City Council & Anor
[2003] QPELR 61, approved
Brisbane City Council v Klinkert [2019] QCA 40; [2020]
QPELR 579, considered
Brisbane City Council v YQ Property Pty Ltd [2020] QCA
253; [2021] QPELR 987, applied

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, applied

Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country
Choice Group v Brisbane City Council & Anor [2022] QCA
246, applied
Development Watch Inc. v Sunshine Coast Regional Council
& Anor [2022] QCA 6, applied
Development Watch Inc. v Sunshine Coast Regional Council
& Anor [2022] QCA 79, applied
Development Watch Inc. & Anor v Sunshine Coast Regional
Council & Anor [2020] QPEC 25; [2021] QPELR 200, cited
Gaven Developments Pty Ltd v Scenic Rim Regional Council
& Ors [2010] QPEC 51; [2010] QPELR 750, approved
I B Town Planning v Sunshine Coast Regional Council
[2021] QPEC 36; [2022] QPELR 791, approved
Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC
21; [2018] QPELR 763, approved
Jeteld Pty Ltd v Council of the City of Toowoomba & Anor
[1997] QPELR 213, approved
King & Ors v Australian Securities and Investments
Commission [2018] QCA 352, applied
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174
CLR 178, applied
K Page Main Beach Pty Ltd v Gold Coast City Council
[2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR
406, approved
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242
CLR 573, applied
Lockyer Valley Regional Council v Westlink Pty Ltd [2012]
QCA 370, cited
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305,
(2001) 52 NSWLR 705, applied

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor
[2021] QPEC 42; [2022] QPELR 963, approved
McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the
City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC
56, approved
Murphy v Moreton Bay Regional Council & Anor; Australian
National Homes Pty Ltd v Moreton Bay Regional Council &
Anor [2019] QPEC 46; [2020] QPELR 328, approved
Murphy & Sons Ltd v Secretary of State for the Environment
[1973] 2 All ER 26, applied
Owners of the Ship “Shin Kobe Maru” v Empire Shipping
Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied
Purcell Family v Gold Coast City Council [2004] QPEC 9;
[2004] QPELR 521, approved
Sanad Capital Pty Ltd v Sunshine Coast Regional Council &
Anor [2023] QPEC 8, cited
Tricare (Bayview) Pty Ltd v Council of the City of Gold
Coast [2022] QPEC 31, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd
& Ors [2021] QCA 95; [2022] QPELR 309, applied
Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors;
Dexus Funds Management Limited v Fabcot Pty Ltd & Ors
[2021] QCA 276, applied
Walker Corporation Pty Ltd v Sydney Harbour Foreshore

Authority [2009] NSWCA 178; (2009) 168 LGERA 1, applied
Wattlevilla Pty Ltd v Western Downs Regional Council &
Anor [2014] QPEC 47; [2015] QPELR 21, approved

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied
Wilhelm v Logan City Council & Ors [2020] QCA 273;
[2021] QPELR 1321, applied
COUNSEL: P Hack KC and A Skoien for the First Appellant
C Hughes KC and M Batty for the Respondent
D Gore KC and J Houston for the Co-respondent
SOLICITORS: Ray Barber Solicitor for the First Appellant
N McCarthy self-represented as agent for the Second
Appellant
Legal Services, Sunshine Coast Council for the Respondent
Corrs Chambers Westgarth for the Co-respondent
No. D166 of 2018.

TABLE OF CONTENTS

Introduction .......................................................................................................................... 7

What are the issues that require determination? ................................................................... 8

What do the Appellants contend are the issues for determination? .................................. 8

What is the approach to be adopted for a hearing on remitter? ...................................... 10

What were the findings of the Court of Appeal as to the errors of law? ........................ 12

What were the submissions of the parties about the task to be undertaken? .................. 20

What are the errors that require correction and what is the scope of the remitted hearing?

........................................................................................................................................ 28

What is the relevant legislative framework for determining the appeal? ........................... 33

What are the features of the proposed development that are to be assessed? .................... 37

What are the expectations of the local community about the height of buildings and

structures? ...........................................................................................................................

What is the evidence relevant to the issue of expectations of the local community? ..... 39

What do the submissions reveal about local community expectations? ......................... 41

What is the evidence of the lay witnesses? ..................................................................... 54

What is revealed by the evidence in the certificate of the Chief Executive Officer? ...... 57

Conclusion regarding expectations of the local community about the height of buildings and structures ................................................................................................................. 64

Are the expectations of the local community about the height of buildings and structures findings? ............................................................................................................................. 78

reasonable? ......................................................................................................................... 74
Is the proposed development consistent with the reasonable expectations? ...................... 77
Does the proposed development comply with the overall outcome in s 8.2.8.2(2)(b) of the
Height of buildings and structures overlay code in version 8 of the Planning Scheme? ... 78

Does the additional evidence or changed findings alter my reasons for rejecting

Mr Arno King’s evidence? ............................................................................................. 78

Does the additional evidence or changed findings alter my unchallenged finding of compliance with the overall outcome in s 8.2.8.2(2)(a) of Height of buildings and structures overlay code? ................................................................................................. 79

Does the additional evidence or changed findings alter my findings about whether the

scale, bulk and nature of the proposed development exceeds reasonable community

expectations? ...................................................................................................................

Does the additional evidence or changed findings alter my findings about whether the extent of community opposition, and the substance of it, support refusal of the proposed development? .................................................................................................................. 90

Does the additional evidence or changed findings alter my findings about whether it is in the public interest for the proposed development to be approved and the exercise of the planning discretion? ................................................................................................ 104

What are the unchallenged and undisturbed findings from my earlier decision that are
relevant to the exercise of the discretion? ........................................................................ 104
What is the significance of the non-compliance with the Height of buildings and structures
overlay code? .................................................................................................................... 104
Should the development application be approved in the exercise of the planning
discretion? ........................................................................................................................ 107

Conclusion ........................................................................................................................ 112

Annexure A: Response to the questions posed in the Appellants’ Lists of Issues ........... 113

Question 1 – At what time are the community expectations to be found? ................... 113

Question 2 – What are the expectations of the local community? ............................... 114

Question 3 – Are the expectations of the local community unreasonable? .................. 114

Question 4 – Are the proposed heights consistent with the reasonable expectations of

the local community? .................................................................................................... 114

Question 5 – What is the nature and extent of inconsistency? ..................................... 115

Question 6 – Does the proposed development comply with the overall outcomes in

ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code in version

8 of the Planning Scheme? ........................................................................................... 115

Question 7 – What do the public submissions convey to the Court? ........................... 115

Question 8 – What weight should be given to the community views? ......................... 115

Question 9 – Does the extent and content of opposition in the public submissions

militate against approval? ............................................................................................. 116

Question 10 – What weight should be given to the amendments to the Height of

buildings and structures overlay code? ......................................................................... 116

Question 11 – Does the proposed development comply with the overall outcomes in

ss 8.2.8.2(2)(a), (b) and (c) of the Height of buildings and structures overlay code in

version 24 of the Planning Scheme? ............................................................................. 116

Question 12 – What weight should be given to any non-compliance with the overall

outcomes in the Height of buildings and structures overlay code in version 24 of the

Planning Scheme? ......................................................................................................... 117

Question 13 – How should the discretion of the Court be exercised? .......................... 117

Annexure B: Examples of the pro-forma submissions with handwritten comments ....... 119
Annexure C: Corrections to cross-references in original reasons for judgment .............. 130
Annexure D: Original reasons for judgment .................................................................... 144

Introduction

SH Coolum Pty Ltd wants to develop a vacant parcel of land located between the coastal townships of Coolum and Marcoola in five stages, starting with a five-star resort complex. It made a development application to Sunshine Coast Regional
Council (“the Council”) to facilitate that end.
The Council approved the development application on 21 June 2018, subject to conditions.
Two community organisation submitters, Development Watch Inc. and Sunshine
Coast Environment Council Inc. (“the Appellants”) appealed the Council’s decision
to this Court. They sought orders that the development application be refused.
For reasons provided in a judgment delivered on 25 May 2020, I dismissed the appeal, confirming the decision of the Council to approve the development application.[1] As part of that decision, I found that the proposed development complied with some of the relevant assessment benchmarks in the Height of buildings and structures overlay code, including the overall outcome in s 8.2.8.2(2)(b). That overall outcome requires
[1] Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200.
that “the height of the buildings and structures is consistent with the reasonable
expectations of the local community”.
Development Watch Inc. applied for leave to appeal my decision to the Court of Appeal. The Court of Appeal described the appeal as having a narrow basis. The challenge was said to be focused on my finding that the development complied with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures
overlay code in version 8 of the Sunshine Coast Planning Scheme 2014 (“the Planning Scheme”[2]).[3] My finding about the achievement of the overall outcome in
[2]            A reference in these reasons to “the Planning Scheme” should be understood as a reference to version
[3]            Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28].
s 8.2.8.2(2)(a) was not challenged,[4] nor were my many findings about other issues.[5] There was no allegation of non-compliance with the overall outcome in s 8.2.8.2(2)(c) of the Height of buildings and structures overlay code.
[4]            Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [5] and [41].
[5]            Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [8].
The application for leave to appeal was heard by the Court of Appeal on 10 March 2021. On 9 February 2022, the Court of Appeal delivered its substantive reasons for judgment.[6] Leave to appeal was granted, the appeal was allowed, and my decision was set aside. A majority in the Court of Appeal found three errors of law in my decision, all of which are discussed in further detail below. In its reasons for judgment, the Court of Appeal invited further submissions from the parties in respect of the question of remittal. On 17 May 2022, the Court of Appeal delivered further reasons for judgment remitting the case to the P&E Court to be determined according to law.[7]
[6] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6.
[7] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79.
The parties now return before me for the matter to be re-determined. The ultimate question for me is whether, in the exercise of the planning discretion, the proposed development should be approved. For the reasons set out below, that question is answered in the affirmative.
What are the issues that require determination?
There is a dispute between the parties about the scope of the remitted hearing and the issues that require determination.
What do the Appellants contend are the issues for determination?
In response to a Court order made on 24 May 2022, each Appellant filed a list of issues that it contends require determination because of the errors identified by the majority of the Court of Appeal.
Development Watch Inc. contends that the issues are as follows:
“Error of Law 1 ([2022] QCA 6 at [45])
1. Are the reasonable expectations of the local community about the height of buildings and structures to be erected on the subject land to be determined by reference to those expectations:

(a) as at the time of the making of the development application by the co-respondent;
(b) as at the time of the assessment by this Court?
2.        What are the expectations of the local community about the height of the buildings and structures to be erected on the subject land at the time determined by reference to Issue 1 above?
3.        Has it been demonstrated that those expectations are not reasonable?
4.        Has it been demonstrated that the heights of the buildings and structures proposed for the subject land are consistent with the reasonable expectations of the local community at the time determined by reference to Issue 1 above?
5.        If the Court is not satisfied that the heights of the buildings and structures proposed for the subject land are consistent with the reasonable expectations of the local community, what is the nature and extent of that inconsistency?

6. Does the subject development comply with Overall Outcomes 8.2.8.2(2)(a) and 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code specified in Version 8 of the Sunshine Coast Planning Scheme 2014 (the Scheme)?

Error of Law 2 [2022] QCA 6 at [46] & [47]
7.        What do the public submissions convey to the Court about the reasonable views of the community regarding the character and amenity of the locality, the merits of the proposed development (as to its proposed scale, its building heights, its visual impacts, its effect on character and amenity, its effect on marine life, and its effects on traffic), and any need for the proposed development?
8.        What weight ought the Court give to the reasonable views of the community as articulated in the public submissions?
9.        Does the extent of community opposition, and the substance of it, as articulated in the public submissions, militate against approval of the proposed development and, if so, to what extent?

Error of Law 3 [2022] QCA 6 at [51]
10.      What weight ought the Court give to the amendment of the Height of Buildings and Structures Overlay Code of the Scheme made by the Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 with effect on and from 14 May 2018, as further amended by Sunshine Coast Planning Scheme 2014 (Major Amendment) No. 20 with effect on and from 11 November 2019?
11.      Does the subject development comply with Overall Outcomes 8.2.8.2(2)(a), 8.2.8.2(2)(b) and 8.2.8.2(2)(c) of the Height of Buildings and Structures Overlay Code, as amended after the making of the development application, now reflected in version 24[8] of the Scheme?
[8]            The current version of the Scheme, with effect on and from 16 May 2022, which incorporates the amendments to the Height of Buildings and Structures Overlay Code of the Scheme made by Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 with effect on and from 14 May 2018, as further amended by Sunshine Coast Planning Scheme 2014 (Major Amendment) No. 20 with effect on and from 11 November 2019.
12.      If the Court finds that the proposed development does not comply with the Height of Buildings and Structures Overlay Code of the Scheme as it is now in force, what weight should that fact be given in the overall assessment of the proposed development?

Decision
13. How should the discretion of the Court be exercised in the assessment of the development application, in particular the assessment:

(a)

that must be made against the assessment benchmarks for the development application, including Overall Outcomes 8.2.8.2(2)(a) and 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code of Version 8 of the Scheme;

(b)

that must have regard to the public submissions made in respect of the development application; and

(c)

that may be made against, or have regard to, Overall Outcomes 8.2.8.2(2)(a), 8.2.8.2(2)(b) and 8.2.8.2(2)(c) of the Height of Buildings and Structures Overlay Code as amended after the making of the development application, reflected in the Scheme as it is now in
force?”[9]
[9] Court Doc. 94 (original footnote).

The issues advanced by Sunshine Coast Environment Council Inc. are identical.
SH Coolum Pty Ltd and the Council dispute that those issues arise from the errors identified by the Court of Appeal.
What is the approach to be adopted for a hearing on remitter?

[13]     The New South Wales Court of Appeal provided guidance about relevant considerations for the conduct of a remitted hearing where the subject matter of an appeal is a question of law in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.[10] In that case, Basten JA, with whom Beazley and Young JJA agreed, found:
[10] [2009] NSWCA 178; (2009) 168 LGERA 1.

(a)

where an appeal against a decision on a question of law is upheld, the consequences for the further determination of the matter in the trial court will depend on the precise nature of the decision and the nature of the error;[11]

(b)

it is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than
[11]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 10-1 [30].
“according to law”, which is a phrase that undoubtedly includes the
conclusions of the appellate court as to the applicable law;[12]
[12]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 11 [33].

(c)

where the terms of the order are unclear, it is appropriate to have regard to the judgment constituting the reasons for the order;[13]

(d)

in considering the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute;[14]

(e)

where the trial court has adopted a legally incorrect approach to the question to be resolved, it may have made factual findings that are no longer relevant, or factual findings that now have greater relevance, or relevant facts may not have been found;[15]

(f)

once the judgment of the trial court has been set aside, there are extant proceedings which have yet to be finally determined. Superficially, they are proceedings in which both parties have closed their cases, but further steps may be required before the case is reserved for judgment;[16]

(g)

on the pending remitter, the undisturbed findings stand and all that is called for is a determination of the outstanding issues on the existing evidence in accordance with the law, subject to the admission of any further evidence and any leave to amend, which are in the discretion of the trial judge;[17] and

(h)

having regard to the public interest in the finality of litigation, there is no reason why the evidence at the earlier hearing should be supplemented or the undisturbed findings of the primary judge should be rewritten unless the errors of law found on appeal require it, or other circumstances make it appropriate to do so.[18]
[13]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 12 [37] citing Repatriation Commission v Nation (1995) 57 FCR 25 and Peacock v Repatriation Commission (2007) 161 FCR 256 at [19] (Downes, Lander and Buchanan JJ).
[14]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 13 [38].
[15]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 16 [56].
[16]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 21 [81].
[17]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 22 [86] and 27 [118].
[18]           Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 22 [87]-[88].

The Queensland Court of Appeal considered the approach to be adopted for the conduct of a remitted hearing in this Court in Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[19]
[19] [2021] QCA 276.
In that case, Morrison JA, with whom Bond JA and Bradley J agreed, observed:
“[19] … in so far as the learned primary judge said that all of the findings of fact are undisturbed, that was true. None of the challenges in the previous appeal had succeeded except in respect of the error by failing to take into account the
noncompliance with the requirements of a “local community”
in the LMDR Zone Code. This Court’s decision did not disturb
any findings of fact. By saying so his Honour cannot be understood to have foreclosed any necessary new findings that might need be made when considering that area the subject of
the error.”[20]
[20] Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot
Bond JA, with whom Morrison JA and Bradley J agreed, also observed, with reference to Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority:

“[71] … Consequent upon such a remitter, the primary judge had a

broad discretion as to how the appeal should be concluded in a fair and just way and it was open to him to conclude that undisturbed findings of fact stood, and that what was called for was a determination of the outstanding issues on the existing evidence in accordance with law, subject to the discretionary
admission of further evidence …”[21]
[21] Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot

With these principles in mind, I turn to the findings of the Court of Appeal about the errors of law in the original reasons for judgment.
What were the findings of the Court of Appeal as to the errors of law?
As was noted by the Court of Appeal, although Development Watch Inc. raised a host of issues for determination in the original hearing, the attack on my decision in the Court of Appeal was a narrow one.[22]
[22] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28].
Burns J, with whom Morrison JA agreed, noted that the draft notice of appeal contained three grounds of appeal. He considered that the first and second grounds of appeal were related because they both concerned my finding that the proposed development complies with the Height of buildings and structures overlay code and, more particularly, my finding that the height of the proposed buildings and structures is consistent with the reasonable expectations of the local community. By the third ground, Development Watch Inc. sought to argue that I erred by misunderstanding the evidence about a planning need for the development and misapplied the onus of proof in that respect.[23]
[23] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [36].
McMurdo JA made similar observations in his reasons. He recorded that there was no challenge to my finding that there is satisfaction of the overall outcome that requires development to contribute to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it will occur.[24] He said that my finding that the height of the building and structure is consistent with the
[24] See the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme.

reasonable expectations of the local community[25] was “at the core of the applicant’s
case” in the Court of Appeal.[26]
[25] See the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme.
[26] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [5].

The Court of Appeal determined that there was no substance to the third ground of appeal. Burns J, with whom Morrison JA agreed, found:
“… The primary judge correctly found that the question whether there
was a planning need for a proposed development was a question of fact to be determined having regard to all of the evidence in the case of relevance to that issue. In carrying out that exercise, the feature that her Honour preferred one body of opinion over another was
unremarkable. Likewise, her Honour’s consideration of the evidence
on this topic (including, but by no means limited to, the evidence of the three economists) was not only regular and appropriate, it left no room for thinking that the onus of proof was either misunderstood or
misapplied.”[27]
[27] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [56].
However, a majority in the Court of Appeal found that my reasons for judgment were affected by three errors of law, which all related to my finding that the height of the proposed buildings and structures is consistent with the reasonable expectations of the local community.[28] The nature of each error is identified, and explained in the context of the nature of the decision, in paragraphs [37] to [54] of the reasons of Burns J.
[28] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [42] and [57].
Although the passage is lengthy, given the dispute between the parties about the scope of the remitted hearing, it is helpful to set out in full the reasons of Burns J with respect to the relevant grounds of appeal and the errors. Burns J states:[29]
[29]           Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6.
“Proposed grounds 1 and 2 – the finding that the development
complied with the Height of buildings and structures overlay code
[37]      By the first ground, Development Watch seeks to argue that the primary judge failed to pay proper regard to the
community submissions opposing the development,
dismissing them instead as being “misguided”,[30] “not
[30]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [530].
reasonable”[31] and “out of step with the effect of the planning
[31]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [524].
scheme when read as a whole”[32] and consequently erred when
[32]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [301].
determining the “reasonable expectations of the local
community” for the purposes of overall outcome
8.2.8.2(2)(b) of Version 8 of the Sunshine Coast Planning Scheme. By the second ground, Development Watch would contend that the primary judge misconstrued the requirements of the same overall outcome and, further, failed to take into account, and give significant weight to, the version of the planning scheme current at the time of the appeal i.e., Version 18.
[38]      It is convenient to first deal with the construction argument.
[39] Development Watch submitted that the primary judge misconstrued s 8.2.8.2(2)(b) of Version 8 as importing considerations of character and amenity when that provision was solely concerned to promote consistency between the height of the buildings and structures in the proposed development and the reasonable expectations of the local community. It was submitted that subparagraphs (a), (b) and (c) of s 8.2.8.2(2) are cumulative and that paragraph [302] of the judgment below[33] is revealing of an approach whereby the primary judge did not give the subparagraphs separate consideration. In that paragraph, her Honour recorded a finding
[33]           Extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [31].
that the “concerns of the local residents” were not “reasonable
expectations” because, in part, although it could reasonably be
thought that the Height of Buildings and Structures Overlay
Map showed any development to be subject to a “height parameter of two storeys”, the residents “should also reasonably
expect that development … may be approved if it has a height
of greater than two storeys but complies with the character and
amenity requirements for” the planning scheme. Mr Horton QC,
who appeared for Development Watch on this application but not in the court below, contended that this was the wrong approach because the requirements of subparagraphs (a), (b) and (c) were “collapsed into each other”[34] when they should
[34]           T. 1-5, l. 41.
have been separately considered. Doing so, he submitted, drew attention away from the need to be satisfied about subparagraph (b) and thereby diluted its importance.
[40]      Here, the primary judge found that the proposed development complied with the Height of buildings and structures overlay code but, at the same time, recognised that it did not comply with performance outcome PO1. As such, the only remaining route to a finding of compliance with the code required her Honour to be satisfied that the purpose specified in s 8.2.8.2(1) was achieved and that, in turn, depended on her Honour being satisfied about compliance with each of the overall outcomes in s 8.2.8.2(2).
[41]     There can be no doubt that each subparagraph of s 8.2.8.2(2) required separate consideration and, to the point
of Mr Horton’s argument, it would be wrong to meld the
consideration of one subparagraph with the others, but that
is not what her Honour did. After recording that Development Watch alleged the proposed development did not comply with the purpose specified in (1), overall outcome (2)(a), overall outcome (2)(b) and performance outcome PO1, her Honour dealt in turn with performance outcome PO1, overall outcome (a) and overall outcome (b). Although nothing was expressed about overall outcome (2)(c), there was no issue between the parties about compliance with that subparagraph. Otherwise,
her Honour was not under any misapprehension; each of the overall outcomes required separate consideration and each had to be achieved to meet the purpose specified in
s 8.2.8.2(1). If her Honour mistakenly thought that achieving just one overall outcome was enough to meet the purpose, there would have been no need to go beyond the finding of compliance with overall outcome (2)(a). It follows that the
part of the proposed second ground of appeal which contends that the primary judge misconstrued the provision cannot be accepted although, for reasons to which I will now turn, I am of the opinion that her Honour misunderstood and then misapplied part of that provision.
[42]      Accepting then as I do that the primary judge gave separate consideration to each of the overall outcomes in s 8.2.8.2(2),
it is necessary to look more closely at her Honour’s
treatment of overall outcome (b) and, with that, to consider the first proposed ground of appeal and what remains of the second.
[43]      As to that, the primary judge was of course obliged to consider whether the height of building and structures in the proposed development was consistent with the reasonable
expectations of the local community. To do so, her Honour
was required to first determine what the expectations of the local community were about the height of buildings and
structures and once that was done, as her Honour recognised,[35] the reasonableness of those expectations
[35]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [296]- [300].
needed to be assessed in light of the planning provisions
applying to the subject land. Then, after the reasonable
expectations were identified, the extent to which those expectations were consistent with what was proposed for the development had to be determined.
[44]      At paragraph [301] of the judgment,[36] the primary judge referred to the many submissions received in opposition to the proposed development along with statements from local residents to the same effect, some of whom were crossexamined
[36]           Extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [31].
at the hearing. Then, after accepting that the “concerns of the
local residents about the impact of the proposed development” were “genuinely held”, her Honour dismissed all of them as
being “out of step with the effect of the planning scheme when
read as a whole”. Next, her Honour held that the “concerns of
the local residents can be discounted” when regard was had to the “independent evidence” assessed earlier in the judgment
with respect to the design of the proposed development and, as part of that, its character and amenity,[37] before expressly finding that the development complied with the Height of buildings and structures overlay code.[38] In my respectful view, this process
[37]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [302].
[38]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [303].
of reasoning was flawed.
[45]      First, there was no base to work from because the primary judge did not find what the expectations of the local community were as to the height of buildings and structures
in the proposed development. Although her Honour noted substantial opposition to the development and, by implication, concerns about the height of some of the buildings and
structures, no finding was made as to the local community’s
expectations regarding height. When later in the judgment[39] her Honour discussed the content of the submissions, that was for the purpose of deciding whether the level of community opposition to the development warranted its refusal and, in any event, no finding about height was made. Indeed, the closest her Honour came to expressing a finding about the local
[39]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [420]- [431], extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [32].
community’s expectations regarding height was when the 2007
Approval was discussed.[40] To that point in the judgment, her Honour recorded that the 2007 Approval contemplated buildings of up to two, three and four storeys in height, depending on the part of the land where construction was to occur. After acknowledging that the subject development was much greater in scale than that contemplated in the 2007 Approval, her Honour held that it was not reasonable for the community to expect that the extent of development be limited to that contemplated under that approval because it was granted
[40]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [518]- [525], extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [33].
“about 12 years ago” and, furthermore, the community should
reasonably expect that the 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”. Beyond that, no specific finding
about the local community’s expectations regarding height
was made. In the result, all that can be said is that the primary judge expressed the view that the local community ought reasonably expect that a more intensive form of development (than that contemplated under the 2007 Approval) might be approved. Absent any finding as to the expectations of the
local community regarding the height of buildings and
structures, the reasonableness of the local community’s
expectations in light of the planning provisions applying to the subject land could not be assessed, let alone compared to the actual proposal to determine whether the two were consistent. The failure to make such a finding was an error of law.
[46]      Second, although the planning scheme may be regarded as a prima facie expression of what will constitute, in the public
interest, the appropriate development of the land,[41] there
[41]           Bell v Brisbane City Council (2018) 230 LGERA 374, [66]. And see Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409, [67]; Redland City Council v King of Gifts (Qld) Pty Ltd [2020] 3 QR 494, [161].
was in this case a credible source of evidence as to the expectations of the local community, and a substantial one
at that. Indeed, the body of material from the local
community in the form of submissions following the public notification process along with the evidence given at the hearing by residents may properly be regarded as the most direct expression of the expectations about which overall
outcome (b) of s 8.2.8.2(2) is concerned. In any event,
properly made submissions about the development formed part of the common material[42] and, as such, the assessment
[42] Planning Regulation, reg 31(1)(g) and Sch 24.
was required to be carried out having regard to them.[43] There were 11,666 such submissions and, of those, 9,288 (including 3,167 local residents) opposed the development. A large proportion of the opposing submission received were in a pro forma style but there were 16 different variations of those. The height of the proposed development was a recurring ground of objection in virtually all the opposing submissions that were placed before the primary judge. However, although her Honour acknowledged the strength of opposition to the proposal in a general way, no detailed analysis of the content of the
[43] Planning Act, s 45(5).
submissions appears to have taken place. Indeed, the view seemed to be taken that any submission expressing opposition because of concerns about the height of the
development was “out of step with the planning scheme
when read as a whole”[44] and was, for that reason, to be
[44]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [302].

disregarded. This is of course the complaint made in support
of the first proposed ground of appeal.
[47]      The problem with such a broad-brush approach is two-fold because it overlooks the need to first determine what the expectations of the local community were concerning the height of any development and gives primacy to the planning scheme to such a degree that it set to nought the
evidence sourced from the local community. The court was
required to take that evidence into account as part of the common material but that did not occur because any opposition to the proposed development was seen to be trumped by the planning scheme. This was another error of law.
[48]      Third, and in accordance with the complaint made in what remains to be considered of the proposed second ground of appeal, the primary judge had no regard to the version of the planning scheme current at the time of the appeal.
Version 18 not only required the height of buildings and structures to be consistent with the reasonable expectations of the local community, it mandated compliance with the specified height limits, that is to say, 8.5 metres. Indeed, as
“an expression of a means by which, in the public interest,
the scale of any development would be kept in alignment
with community expectations”,[45] Version 18 would seem to
[45]           Bell v Brisbane City Council (2018) 230 LGERA 374, [70].

reflect much of the sentiment expressed in the submissions
made in opposition to the development.
[49]      As earlier discussed,[46] a discretion was conferred on the
[46]           At [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] paragraphs [25]-[27]
primary judge to give Version 18 such weight as her Honour
considered appropriate.[47] In order to determine whether
[47] Planning Act, s 45(8).
any weight should be attached to a change in the planning scheme, the change at least had to be considered, but that did not occur because, her Honour ruled, compliance with
the changed scheme had not been put in issue in the case. As to that, although no express mention of Version 18 was made in
an “Agreed List of Issues for Determination” filed by the parties
five days prior to the hearing, it was included among a number
of “contextual provisions” in a “List of Planning Scheme
Provisions Relevant to Disputed Issues” that was prepared two
days later and filed on the first day of hearing. Reference was also made to Version 18 by the town planning experts in their various reports as well as in their joint report where it was stated
that the proposed development “clearly departs from this
outcome”.[48] There was also some limited evidence from the
[48]           Exhibit 14, paragraph 162. Version 18 was also mentioned by senior counsel for SH Coolum, Mr Gore
town planners at the hearing regarding the changed scheme. However, after closing written submissions had been
exchanged, the primary judge questioned Development Watch’s
reliance on Version 18. Her Honour did not consider that non- compliance with Version 18 had been sufficiently raised as an issue for consideration by the court. This led counsel for Development Watch to make an instanter application for leave
to “raise” Version 18 as “a matter to which we would ask your
Honour to have regard”.[49] That application was opposed by both
[49]           AR 1486 ll. 34-36.
respondents who claimed that they were taken by surprise and would be prejudiced if leave was granted. Her Honour refused
the application, remarking that the “parties are entitled not to be taken by surprise”, that extensive case management steps had
been taken to ensure that such a thing did not occur, that it would be causative of prejudice and that such an issue should not be “added at this late stage”.[50] In the result, the only treatment of
[50]           AR 1489 l. 38.
Version 18 in the judgment was parenthetic. Her Honour noted that, while there were amendments following the lodgment of
the development application, the submitters “did not allege any
non-compliance with later versions of the planning scheme” and these later versions were only raised as “contextual provisions”.[51]
[51]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [13]© and footnote 11.
[50]      In this Court, Mr Hughes QC for the Council and Mr Gore QC for SH Coolum submitted that the time for applying for leave to appeal the primary judge’s ruling had long since expired,[52] that
[52] Planning and Environment Court Act, s 64.
there was no power to grant an extension of time within which to make such an application and that it was not an appropriate case in any event for leave to appeal from an interlocutory ruling. Otherwise, they submitted that the weight to be given to Version 18 was a matter of discretion only and not appellable. Faced with these objections, Mr Horton QC made an instanter
application for leave to challenge her Honour’s ruling.
[51]      In my view, Development Watch does not need the leave of this Court to challenge the ruling. In the first place, I am by no means persuaded that the primary judge was free to ignore Version 18, regardless of whether or not it was framed as a compliance issue. As it was, the changed scheme was raised for its
contextual relevance and that should have been enough to convey to the respondents as well as the court that, although the development was required to be assessed by reference to the planning scheme current at the time of the application as well as the 2007 Approval, regard could be had to the feature that the scheme had changed by the time of the hearing. After all, the changed scheme was the most current indicator of what was considered to constitute, in the public
interest, the appropriate development of the land. Of course, that does not mean that Version 18 should have been allowed to become a “vehicle for displacement or modification”[53] of
[53]           Brisbane City Council v Klinkert (2019) 236 LGERA 88, [6].
Version 8, but the changed scheme ought to have at least been considered for its contextual value. To illustrate this point, the primary judge made specific reference to the 2007 Approval
having been granted “12 years ago” before observing that “the
planning needs of the community are not static or immutable”.[54]
[54]           Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [524].
Whilst that may be accepted, her Honour went on to hold that it
“is reasonable for the community to expect that the subject land
might be developed for a more intensive form of development
…” than that which was permitted under the 2007 Approval.
However, if contextual notice had been taken of Version 18, it would have been readily appreciated that the planning scheme had headed in the opposite direction. Simply, the change to the
planning scheme brought about by Version 18 was a relevant consideration in that sense and ought to have been accorded significant weight. The failure to do so was another error of law.
[52]      Lastly, the submission on the part of the respondents that any application for leave to appeal from the ruling is out of time and cannot be entertained is wrong; interlocutory decisions which affect the final order may generally be challenged as of right within an appeal brought from that order. As Griffith CJ said in Nolan v Clifford:[55]
[55]           Nolan v Clifford (1904) 1 CLR 429.
“On an appeal from a final judgment, all points raised in
the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising
it.”[56]
[56]           Nolan v Clifford (1904) 1 CLR 429, 431.

[53]      More recently, in Gerlach v Clifton Bricks Pty Ltd,[57] Gaudron, McHugh and Hayne JJ explained:
[57]           Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.
“In the course of a trial, and even before the trial
commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that
are made in the course of trial about which evidence
will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.”[58] [Emphasis added]
[58]           Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, [4]. And see Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, [103].

[54] It follows that, even if on case management grounds it was correct to require Development Watch to seek leave to add Version 18 as an issue to be considered in the court below, and then rule against it in that application, that ruling could be challenged, as it has been, in this Court. It is however unnecessary to determine that challenge because of the view I have taken that Version 18 was sufficiently raised as a
contextual issue from the start of the hearing.”[59]
[59] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6 (original footnotes).

(emphasis added)

With those reasons in mind, I now turn to the competing submissions about the approach to be taken on the remitter in this appeal.
What were the submissions of the parties about the task to be undertaken?
The First Appellant’s Further Written Submissions were silent on the principles
relating to the scope of the remitted hearing. They provided no assistance as to why Development Watch Inc. says it is necessary to answer each of the questions posed by it, which are set out in paragraph [10] above. Nor did Sunshine Coast Environment Council Inc. provide any assistance in that regard.
In The First Appellant’s Reply Submissions, Development Watch Inc. provides some
assistance about why, by its question 6, it invites me to revisit my undisturbed finding of compliance with the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code. It submits that compliance with the Height of buildings and structures overlay code cannot be undertaken by a consideration of the overall outcomes in each of s 8.2.8.2(2)(a) and s 8.2.8.2(2)(b) in isolation. It says that each of them informs the content of the other. As such, it submits that, to correct the identified errors, it is necessary to answer question 6 (identified in paragraph [10] above).
The Court of Appeal considered the proper construction of the overall outcomes in ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme in its reasons for judgment. In paragraphs [37] to [42] of his reasons (extracted at paragraph [23] above), Burns J records that, in the hearing before the Court of Appeal, Mr Horton KC appeared for Development Watch Inc. and argued that my original reasons for judgment were infected by an error in the way I construed the Height of buildings and structures overlay code. In the Court of Appeal, Development Watch Inc. argued that I did not give the overall outcomes in ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code separate consideration. It argued that this was the wrong approach because the requirements
of subparagraphs (a), (b) and (c) were “collapsed into each other” when they should

have been separately considered.[60] It bears repeating that Burns J, with whom
Morrison JA agreed, found:
[60] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [39].
“There can be no doubt that each subparagraph of s 8.2.8.2(2)
required separate consideration and, to the point of Mr Horton’s
argument, it would be wrong to meld the consideration of one subparagraph with the others, but that is not what her Honour did.
… her Honour was not under any misapprehension; each of the overall
outcomes required separate consideration and each had to be achieved
to meet the purpose specified in s 8.2.8.2(1). … It follows that the part
of the proposed second ground of appeal which contends that the
primary judge misconstrued the provision cannot be accepted.”[61]
[61] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [41] (emphasis added).

Given the findings of Burns J in paragraphs [37] to [42], Development Watch Inc.’s
submission that it is necessary to revisit my findings about the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code because it would be wrong to give it separate consideration is not only unpersuasive: it is vexing. The
submission appears to be advanced in wilful disregard of Development Watch Inc.’s

own arguments in the Court of Appeal about the proper construction of the code and
the findings of the Court of Appeal.

During oral submissions in reply, Development Watch Inc. raised four points in support of its contention that questions 7 and 8 from its list of questions (identified in paragraph [10] above) arise from the errors identified by the majority of the Court of Appeal.
First, Development Watch Inc. asserts that the submissions in Exhibit A3 are “a
statutory instrument by which the community gets to express its views about the local
community and the direction of the planning scheme in which they live”.[62] I do not
[62] Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 59.
accept this submission. It is wrong at law. Submissions made by the public about a development application are not documents of the type identified in s 7(3) of the Statutory Instruments Act 1992. It is also wrong at law to characterise the
submissions in Exhibit A3 as a means by which “the community gets to express its views about the local community and the direction of the planning scheme” (emphasis
added). The development application was made under the Sustainable Planning Act 2009 (Qld).[63] The submissions were made under that legislative regime, which permitted submissions to be made “about the application”.[64] Submissions were
[63] See Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 205 footnote 3.
[64] Sustainable Planning Act 2009 s 305 and sch 3 definition of “properly made submission”.
properly made if they included “the grounds of the submission and the facts and
circumstances relied on in support of the grounds”.[65] As such, under the legislative
[65] Sustainable Planning Act 2009 s 305 and sch 3 definition of “properly made submission”.
regime in place at the time the submissions were made, their intended focus was the development proposed in a development application, not broader issues such as those to which Development Watch Inc. refers.
In any event, this submission does not explain the nexus between the errors identified
by the majority in the Court of Appeal and Development Watch Inc.’s questions 7
and 8.
Development Watch Inc.’s second contention is that the views expressed in the
submissions cannot be regarded as unreasonable simply because they express different conclusions to that reached by the Court.[66] I accept this proposition. Many of the matters referred to in the submissions[67] are matters about which reasonable minds might differ. Also, the difference between my views and those expressed by
[66] Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 60.
[67] Excluding matters such as profanities, crude drawings and racist comments.
the community is to be expected as the public’s views were:

(a) expressed in relation to a different design; and
(b) provided without the benefit of the expert evidence presented to me at the hearing.

Third, Development Watch Inc. says that the “reasonable expectations of the local community” for the Height of buildings and structures overlay code and what the
Court takes from the submissions by the community are two separate and distinct concepts. There may be overlap, but they are separate concepts for the purpose of this case.[68] I accept this proposition, but it does not explain why it is necessary to answer questions 7 and 8.
[68] Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 60.
Fourth, Development Watch Inc. submits that the errors identified by the majority of the Court of Appeal were not limited to matters related to height. In support of that submission, Mr Hack KC drew my attention to two observations of Burns J,[69] namely:
[69] Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 66-8.

(a) his Honour’s observation in the middle of paragraph [46] that:
“In any event, properly made submissions about the
development formed part of the common material and, as such, the assessment was required to be carried out having regard to
them.”[70]
[70] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46].

(b) his Honour’s observation later in paragraph [46] that:
“However, although her Honour acknowledged the strength of
opposition to the proposal in a general way, no detailed analysis
of the content of the submissions appears to have taken place.”[71]
[71] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46].

Development Watch Inc. submits that focussing on those two sentences to the exclusion of all others in the reasons of Burns J provides a fair reading of the reasons for judgment.[72] It says that the two observations by Burns J demonstrates that my error was in failing to consider the submissions as credible evidence in relation to all issues agitated in the appeal including, for example, with respect to potential impacts on turtles and traffic.
[72] Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 68-9.
During the remitted hearing, I asked Mr Hack KC to assist me with how such a reading could be reconciled with the other observations in the reasons of Burns J, such as:

(a) Burns J’s observation that the attack was a narrow one;[73]
(b) Burns J’s acceptance, without criticism, that I dealt with the submissions in
[73] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28].
detail for the separate and distinct purpose of dealing with the Appellants’
contention that the nature and extent of community opposition was an
important consideration;[74]
[74] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [32].

(c) Burns J’s observations that the grounds of appeal related to my finding that the
proposed development complied with the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community;[75] and
[75] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [36].

(d) Burns J’s observation that the alleged error was:

“when determining the ‘reasonable expectations of the local
community’ for the purposes of overall outcome 8.2.8.2(2)(b)
of Version 8 of the Sunshine Coast Planning Scheme.”[76]
[76] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [37].
(emphasis added)

The only assistance provided by Mr Hack KC was to submit that Mr Horton KC’s

submissions to the Court of Appeal on behalf of Development Watch Inc. inviting
narrow consideration were made erroneously.[77]
[77] Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 64-70.

These submissions are not persuasive. The submissions are also curious given, when it comes to the substantive point sought to be raised, Development Watch Inc. urges me to adopt the same approach that it urged, and that I adopted, in the original hearing,[78] and yet it expects this to yield a different result.
[78] That is to consider only the small selection of submissions tendered by the parties and the analysis of the submissions by Mr Schomburgk and others, rather than considering all the submissions now before me.
SH Coolum Pty Ltd submits that Burns J’s approach makes a direct link between the
first error of law and the second error of law. SH Coolum Pty Ltd says that this is illustrated by what His Honour said in paragraphs [43] and [47]. According to SH Coolum Pty Ltd, although Burns J identified the errors in a different order, as a matter of logic, the step the subject of the second error should be taken before the step the subject of the first error. SH Coolum Pty Ltd submits Burns J appears to take the view that, particularly in relation to paragraph [430] of my original reasons for judgment, the Court should have first assessed the public submissions in finding the expectations of the local community before then determining whether those expectations were reasonable in the light of the planning provisions applying to the subject land. To put it in the vernacular, Burns J appears to have taken the view that
this Court “put the cart before the horse”, by first assessing the planning scheme
provisions and the compliance of the proposed development with those provisions before deciding what the community expectations were in the light of the public submissions.
SH Coolum Pty Ltd submits that it is important to appreciate that there was a division of thinking in the Court of Appeal. Morrison JA agreed with the reasons of Burns J. McMurdo JA agreed with the orders proposed by Burns J, but not with his reasons, saying “… [I] wish to add only the following”. The observations added by McMurdo
JA were:

“[3] The primary judge had to assess the proposed development against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014.[79] This included the requirements of the Height of Buildings and Structures Overlay Code (the Code). The purpose of the Code was expressed to be the protection of the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium rise built form.[80] The Code provided that this purpose was to be achieved through three “overall outcomes”.[81] Those outcomes are set out at
paragraph [22] in the judgment of Burns J. They were related
but distinct outcomes, each of which had to be achieved.
[4] The Code also specified “performance outcomes”, the
achievement of which would result in the achievement of the overall outcomes, and thereby fulfill the purpose of the Code. However, as the primary judge held, the performance outcomes were not the only means of achieving that result. Her Honour
correctly held that under the Code, in its terms in the planning scheme against which the development was to be considered, there was no requirement that every building or
other structure should be no higher than 8.5 metres.
[5] The applicants put in issue the satisfaction of two of the overall outcomes. The first was that the development would contribute to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it would occur. The second was that the height of the buildings and structures was consistent with the reasonable expectations of the local community. There is no challenge
to the judge’s finding that the first of those outcomes would
be achieved. At the core of the applicant’s case in this Court are complaints of errors in considering the development’s
compliance with the second outcome.
[6] On this issue, more was required than an assessment of whether any development with a building or structure in excess of 8.5 metres in height would be beyond the reasonable expectations of the local community. What was required was an assessment of whether the buildings and structures proposed by this development would be within those expectations.
[7] The finding which was most relevant to this question was in the primary judgment at [302], where her Honour said that:
[79] Planning Act 2016 (Qld), s 45(5).
[80] Clause 8.2.8.2 of the Code.
[81] Clause 8.2.8.2(2) of the Code.
“[The community] should also reasonably expect a
development, such as proposed here, may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements of the
Planning Scheme.”

In my respectful opinion however, that did not answer the question which the judge had to consider, namely whether the height of the buildings and structures in this development exceeded the reasonable expectations of the
community. The same error is evident from her Honour’s
reasoning, later in the judgment,[82] that it would be reasonable for the community to expect, having regard to the Hyatt preliminary approval, that development might be approved above 8.5 metres in height, and beyond a height of four storeys.
[82]           At [523]-[524].
[8]        Further, as Burns J has explained, the primary judge erred in law in failing to consider whether any weight should be given to the content of the equivalent code in the 2018 planning scheme.
[9]        It follows that there was no consideration, according to law, of the question of whether the proposed development complied with the planning scheme, in so far as its compliance with the Code was concerned. It cannot be
thought that this was immaterial to the outcome of the case, notwithstanding the many other issues upon which the present respondents succeeded. In particular, a need for the
development, according to the judge’s findings which
contain no legal error, would have an importance which would vary depending upon whether there was a countervailing consideration of an inconsistency with an
important element of the planning scheme.”[83]
[83]           Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6 (original footnotes).

(emphasis added)

SH Coolum Pty Ltd says that the statement by McMurdo JA at paragraph [6] was central to his approach. It also relies on the statement by McMurdo JA at paragraph [4], and the statement by McMurdo JA in the further reasons that:

“[2]

McMURDO JA: I joined in the orders which were made by this Court’s judgment handed down earlier this year. My reasons

differed from those of Burns J (with whom Morrison JA agreed), but of course the case will have to be reconsidered
according to his Honour’s judgment.
[3] I agree with his Honour’s reasons as to the terms of the
remitter and the costs in this Court, and the orders which he
proposes.”[84]
[84] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79.
(emphasis added)

Based on those submissions, and for additional reasons articulated in its written submissions when responding to the questions posed by the Appellants (which I have quoted in paragraph [10] above), SH Coolum Pty Ltd submits that:

(a) question 1 is new and was not raised by Development Watch Inc. at the original hearing or before the Court of Appeal;
(b) question 3 departs from the steps in the analysis identified by Burns J, particularly at paragraph [43] of his reasons;
(c) question 4 is poorly expressed given the language of the Height of buildings and structures overlay code;
(d) question 6 does not arise from the decision of the Court of Appeal;
(e) questions 7 and 8 are poorly framed and raise issues that are beyond the scope of the remitted hearing;
(f) question 9 unnecessarily overlaps with questions 2 and 13;
(g) questions 11 and 12 fall outside the scope of the remitted hearing; and
(h) question 13 is defective and raises issues outside the scope of the remitted hearing.

The Council also takes issue with the list of questions posed by the Appellants. It submits that the observations made by Burns J at paragraph 10 of the reasons with respect to remittal[85] suggest that three tasks are to be undertaken on remittal in determining compliance with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code.
[85] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79.
According to the Council, the first task is clearly identified. The Court should make a finding about the expectations of the community. The finding is to be based on the evidence. The Council submits that the evidence includes the submissions and the evidence given at the hearing by the residents.[86] The Council says that, having made a finding about the expectations of the community, the Court should:
[86] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46].

(a) assess the reasonableness of the expectations found in light of the relevant planning provisions and controls applying to the subject land pursuant to which the application had to be assessed and having regard to the existing approvals attached to the subject land;[87] and
(b) compare the reasonable expectations to the proposed development to determine whether the two are consistent.
[87] Planning Act 2016 s 45.

The Council submits that the second task is a component of the first. It says that in considering the evidence of the expectations of the local community, the Court will
need to have regard to the submissions by way of a “detailed analysis of the content
of the submissions”.[88] The purpose of this analysis is two-fold.[89] First, the Court
[88] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46].
[89] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [47].
would use its analysis to assist in determining the expectations of the community, being the first step of task one above. Second, the Court would consider its analysis of the submissions when exercising the planning discretion having regard to the common material.
The Council submits that the third task is to give consideration and weight, even “significant” weight,[90] to version 18 of the Planning Scheme in the context of:
[90] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51].

(a) assessing the reasonableness of the established community expectations as part of the exercise outlined above at paragraph [44](b) above; and
(b) the overall exercise of the planning discretion, for which it is a “relevant consideration”.[91]
[91] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51].

The Council submits that, after undertaking each of the three tasks, and considering the results of each and the undisturbed findings of fact in the original reasons for judgment, pursuant to s 60 of the Planning Act 2016, the Court will need to undertake the ultimate task of re-exercising the planning discretion in respect of the proposed development.
The Council says that answering Development Watch Inc.’s 13 questions does not
assist in undertaking the three tasks that arise upon remittal. It submits that the list is a significant overreach and beyond the true issues in the appeal for determination on this remitted hearing. Notwithstanding this, in the hope of bringing this long-standing
litigation to a close, and to assist the Court, the Council’s submissions address each
of the 13 questions put in issue by the Appellants on the remitter.
Although I do not accept them in their entirety, there is much force in SH Coolum
Pty Ltd and the Council’s submissions about how the proceeding should be dealt with
on the remitter.
What are the errors that require correction and what is the scope of the remitted hearing?
The appeal to the Court of Appeal was upheld based on three errors of law. When determining the consequences for the further determination of the matter, it is necessary to have regard to the precise nature of the decision and the nature of the errors.[92] They are identified in the reasons of Burns J set out in paragraph [23] above.
[92] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 10-1 [30].
Those paragraphs constitute the reasons for the Court of Appeal’s order to:
“Remit the decision of the Planning and Environment Court made on
15 June 2020 in Appeal No. D166 of 2018 to the Planning and
Environment Court to be determined according to law”.
The scope of the issues to be addressed to correct the errors is also evident from the
Court of Appeal’s reasons for judgment with respect to the terms of the remitter.
In the reasons with respect to remitter, Burns J (with whom Morrison and McMurdo JJA agree) observes that Development Watch Inc. sought to have the whole of the case remitted to the Planning and Environment Court for rehearing before a different judge. Development Watch Inc. argued that this was necessary because of the strong findings made by me on critical matters that were averse to its interests. Development Watch Inc. contended that remittal of the whole case for rehearing before a different judge was also consistent with the approach taken by the Court of Appeal in Lockyer Valley Regional Council v Westlink Pty Ltd[93].[94]
[93] [2012] QCA 370.
[94] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [7].
Burns J notes that the respondents, Sunshine Coast Regional Council and SH Coolum Pty Ltd, submitted that the usual practice should be followed of remitting the appeal to the Planning and Environment Court for determination by the primary judge in accordance with the reasons of the Court of Appeal. The respondents submitted that the Court of Appeal has always been hesitant to remit a case to a different judge because of the potential unnecessary waste of resources of the Planning and Environment Court, and the burden that such an outcome would inevitably place on the parties. The respondents submitted that the case below was substantial, occupying over 15 sitting days and involving the tender of over 100 exhibits. In contest at the hearing was a considerable range of other issues in addition to those about which the appeal was concerned, and no complaint was made about any of those other issues. Burns J found that there was much force in these submissions.
The Court of Appeal was not persuaded that the case should be remitted for rehearing before a different judge. Burns J (with whom Morrison and McMurdo JJA agreed) found:

“[10]

In the first place, Lockyer Valley Regional Council v Westlink Pty Ltd was a different case. There, the procedural history was such as to require remittal to a different judge.[95] Second, and as previously recorded,[96] the challenge to the decision in the
court below was a narrow one, it being focused on the
primary judge’s finding that the development complied with

Version 8 of the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community. That challenge was successful because, it was held, her Honour erred in the respects identified in the judgment.[97] Each went to the
question whether the proposed development complied with

the Height of buildings and structures overlay code and the reasons explain why her Honour fell into error in these

respects.[98] Assisted by that explanation, there is no reason to think that her Honour will do other than determine the question afresh according to law. Indeed, once it is appreciated that a
finding needed to be made as to the local community’s

expectations regarding height, that there was a credible and substantial source of evidence as to those expectations in the form of the submissions which needed to be considered as part of the assessment and that, freed of any case management considerations, the change to the Planning Scheme brought about by Version 18 should be considered, I expect that much of the foundation for the findings about which Development Watch complains may be seen to fall
away.”[99]
[95]           As to which, see Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, [4] and [34].
[96]           Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28].
[97]           Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [45], [47] and [51].
[98]           Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [49]-[51].
[99]           Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [10].
(emphasis added)

For those reasons, the Court of Appeal remitted the matter to this Court to be determined according to law.[100]
[100] Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79.
It is apparent from the reasons of Burns J set out in paragraph [23] above that:[101]
[101] These matters are supported the findings of Burns J in Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [10].

(a)

each of the errors relate to my assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme;[102]

(b)

an assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme requires consideration of whether the height of building and structures in the proposed development is consistent with the reasonable expectations of the local community;[103]

(c)

the assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme calls for three factual determinations, namely:
[102]         Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [37], [41], and [42]. See, also, Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [36].
[103]         Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43].
(i)       what are the expectations of the local community about the height of buildings and structures;
(ii)      are those expectations reasonable when assessed in light of the planning provisions applying to the subject land; and
(iii)     to what extent are the identified reasonable expectations consistent with the proposed development;[104]
[104]         Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43].

Original reasons p 120

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.[514]
[514] 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

Original reasons p 121

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

Original reasons p 122

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,[515] I accept the evidence of Mr Thompson.
[515] 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.

Original reasons p 123

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

Original reasons p 124

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.

Original reasons p 125

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.
8, unless specified otherwise or the context otherwise requires.
Pty Ltd & Ors [2021] QCA 276, [19].
Pty Ltd & Ors [2021] QCA 276, [71].
QC, in his opening as “an issue of weight … to address”, although it was submitted at the hearing of
this application that this was in error: T. 1-44 ll. 21-24.
Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock
v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.
was filed after the commencement of the Planning Act 2016. As such, even though SH Coolum Pty Ltd’s development application was made under the Sustainable Planning Act 2009, the applicable
regime is that in the Planning Act 2016: Planning Act 2016 s 311 and Jakel Pty Ltd v Brisbane City

Council & Anor [2018] QPEC 21; [2018] QPELR 763, [16]–[89].
envelope, they displayed the Council’s address (as though on the front of an envelope), and they
contained a notation about the location to affix a stamp.

Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of
Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 19-20.
Pty Ltd [2022] QPEC 56, [175].
Act 2016 sch°2 definition of “building assessment provisions”; Building Act 1975 s 30. See, also,
Planning Act 2016 ss 16 and 43.
outcomes, performance outcomes and acceptable outcomes. That is apparent from his evidence during cross-examination when he was unable to explain whether he has assumed that compliance with acceptable outcomes was mandatory, despite being provided multiple opportunities to do so. Nevertheless, it is clear from his report that he has assumed that the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality. Regardless of whether that assumption was based on his erroneous understanding about the operation of the Planning Scheme or instructions provided by others, the flawed assumption affects the reliability of the opinions he expressed. In forming his opinions, Mr King also relied on what he accepted were misleading statements about the effect of other provisions of the Planning Scheme.
750, 763 [34]. Although His Honour’s observations related to submissions made under the Integrated
Planning Act 1997 (Qld) and their relevance to an assessment under that legislation, that planning legislation also required an impact assessment to be carried out having regard to the common material including submissions made during public notification: see Integrated Planning Act 1997 s 3.5.5(2)(a) and sch 10.
QPELR 406, 414 [54]–[56]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council
& Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49].
“It is not incumbent upon a judge to deal with every argument and issue that might arise in
the course of a case, but where an argument is substantial or an issue is significant, reasons
for the rejection of the argument or the resolution of the issue should be given.”

referred is referenced by Development Watch Inc. in paragraph 62 of the First Appellant’s Further
Written Submissions.
above).
Australian Country Choice Group v Brisbane City Council & Anor [2022] QCA 246, [13] and [17].
March 2021.

Scheme provisions with respect to low rise and medium rise built form. His opinion was unchallenged.
It is compelling.

Scheme provisions with respect to low rise and medium rise built form. His opinion was unchallenged.
It is compelling.
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.
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].
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.
International Resort prepared by Project Urban (Exhibit 109). SHC accepts this requirement.
Appellant’s position and, importantly, the evidence it relied on in support of its position.
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).
the First Appellant appreciated this. In those circumstances, it is difficult to appreciate how the
Appellants’ conduct in alleging non-compliance with the purpose statement in s 6.2.17.2(1)(c) and

overall outcomes 2(c)(i) and (v) of the Emerging community zone code accords with their obligations
under s 10 of the Planning and Environment Court Act 2016 (Qld).
word in this provision. It is “any land on which development is carried out or proposed to be carried
out whether such land comprises the whole or part of one lot or more than one lot if each of such lots
is contiguous”.
“Premises used for tourist and visitor short-term accommodation that includes integrated leisure
facilities such as:-

• restaurants and bars;
• meeting and function facilities;
• sporting and fitness facilities;
• staff accommodation;
• transport facilities directly associated with the tourist facility such as a ferry terminal and air
services.”

“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.”
However, during final submissions, Mr Hack QC acknowledged that the Council’s characterisation of

their allegations in paragraph 140 of the Written Submissions on behalf of the Respondent was
accurate.
(f) elsewhere in my reasons for judgment.
the Council’s submission that sub-paragraphs (a) and (b) are cumulative.
outcomes, performance outcomes and acceptable outcomes. That is apparent from his evidence during cross-examination when he was unable to explain whether he has assumed that compliance with acceptable outcomes was mandatory, despite being provided multiple opportunities to do so. Nevertheless, it is clear from his report that he has assumed that the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality. Regardless of whether that assumption was based on his erroneous understanding about the operation of the Planning Scheme or instructions provided by others, the flawed assumption affects the reliability of the opinions he expressed. In forming his opinions, Mr King also relied on what he accepted were misleading statements about the effect of other provisions of the Planning Scheme.
AO1.3, I do not accept the Appellants’ submission that the provision should be read as requiring a

substantial proportion of existing mature trees. This reinforces that it is a design with an acceptable
character.

Yaroomba Parabolic Dune. He provided a detailed explanation as to why he was of a different opinion.
I accept his evidence.

Scheme provisions with respect to low rise and medium rise built form. His opinion was unchallenged.
It is compelling.
Commonwealth of Australia, Canberra.
Light Pollution Guidelines for Wildlife: Including marine turtles, seabirds and migratory shorebirds’,
Commonwealth of Australia, Canberra.
Impact Guidelines 1.1, Environmental Protection and Conservation Act 1992’, Commonwealth of
Australia, Canberra.
Policy, Significant Residual Impact Guideline: Nature Conservation Act 1992, Environmental
Protection Act 1994, Marine Parks Act 2004’, December 2014, State of Queensland, Brisbane.
Joint Experts’ Report. As I have noted above, in her individual statement of evidence, Ms Thoburn

then undertook a quantitative risk assessment using the matrix developed under the Commonwealth
guidelines and consistently with the recently published Draft National Light Pollution Guidelines
and Biodiversity Conservation Act 1999 (Cth).
The tenor of Mr Brown’s evidence was that the absence of a qualitative analysis infected the opinions

expressed by Mr Duane and Mr Ganly about the planning need for the proposed development, but
somehow not his own.

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 v Beaudesert Shire Council (1978) 37 LGERA 404, applied
Ashvan Investments Unit Trust v Brisbane City Council &
Ors [2019] QPEC 16; [2019] QPELR 793, approved
Baptist Union of Queensland v Brisbane City Council & Anor
[2003] QPELR 61, approved
Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, considered
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, applied
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country
Choice Group v Brisbane City Council & Anor [2022] QCA 246, applied
Development Watch Inc. v Sunshine Coast Regional Council
& Anor [2022] QCA 6, applied
Development Watch Inc. v Sunshine Coast Regional Council
& Anor [2022] QCA 79, applied
Development Watch Inc. & Anor v Sunshine Coast Regional
Council & Anor [2020] QPEC 25; [2021] QPELR 200, cited
Gaven Developments Pty Ltd v Scenic Rim Regional Council
& Ors [2010] QPEC 51; [2010] QPELR 750, approved
I B Town Planning v Sunshine Coast Regional Council
[2021] QPEC 36; [2022] QPELR 791, approved
Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved
Jeteld Pty Ltd v Council of the City of Toowoomba & Anor
[1997] QPELR 213, approved
King & Ors v Australian Securities and Investments
Commission [2018] QCA 352, applied
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied
K Page Main Beach Pty Ltd v Gold Coast City Council
[2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, approved
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, applied Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, cited
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied
McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor
[2021] QPEC 42; [2022] QPELR 963, approved
McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the
City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, approved
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council &
Anor [2019] QPEC 46; [2020] QPELR 328, approved
Murphy & Sons Ltd v Secretary of State for the Environment
[1973] 2 All ER 26, applied
Owners of the Ship “Shin Kobe Maru” v Empire Shipping
Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied
Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved
Sanad Capital Pty Ltd v Sunshine Coast Regional Council &
Anor [2023] QPEC 8, cited
Tricare (Bayview) Pty Ltd v Council of the City of Gold
Coast [2022] QPEC 31, approved
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd
& Ors [2021] QCA 95; [2022] QPELR 309, applied
Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors
[2021] QCA 276, applied
Walker Corporation Pty Ltd v Sydney Harbour Foreshore
Authority [2009] NSWCA 178; (2009) 168 LGERA 1, applied
Wattlevilla Pty Ltd v Western Downs Regional Council &
Anor [2014] QPEC 47; [2015] QPELR 21, approved
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
COUNSEL:	P Hack KC and A Skoien for the First Appellant C Hughes KC and M Batty for the Respondent D Gore KC and J Houston for the Co-respondent
SOLICITORS:	Ray Barber Solicitor for the First Appellant N McCarthy self-represented as agent for the Second Appellant Legal Services, Sunshine Coast Council for the Respondent Corrs Chambers Westgarth for the Co-respondent

(c)	where the terms of the order are unclear, it is appropriate to have regard to the judgment constituting the reasons for the order;[13]
(d)	in considering the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute;[14]
(e)	where the trial court has adopted a legally incorrect approach to the question to be resolved, it may have made factual findings that are no longer relevant, or factual findings that now have greater relevance, or relevant facts may not have been found;[15]
(f)	once the judgment of the trial court has been set aside, there are extant proceedings which have yet to be finally determined. Superficially, they are proceedings in which both parties have closed their cases, but further steps may be required before the case is reserved for judgment;[16]
(g)	on the pending remitter, the undisturbed findings stand and all that is called for is a determination of the outstanding issues on the existing evidence in accordance with the law, subject to the admission of any further evidence and any leave to amend, which are in the discretion of the trial judge;[17] and
(h)	having regard to the public interest in the finality of litigation, there is no reason why the evidence at the earlier hearing should be supplemented or the undisturbed findings of the primary judge should be rewritten unless the errors of law found on appeal require it, or other circumstances make it appropriate to do so.[18]

“[71]	… Consequent upon such a remitter, the primary judge had a
broad discretion as to how the appeal should be concluded in a fair and just way and it was open to him to conclude that undisturbed findings of fact stood, and that what was called for was a determination of the outstanding issues on the existing evidence in accordance with law, subject to the discretionary
admission of further evidence …”[21]

“[3]	The primary judge had to assess the proposed development against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014.[79] This included the requirements of the Height of Buildings and Structures Overlay Code (the Code). The purpose of the Code was expressed to be the protection of the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium rise built form.[80] The Code provided that this purpose was to be achieved through three “overall outcomes”.[81] Those outcomes are set out at
paragraph [22] in the judgment of Burns J. They were related but distinct outcomes, each of which had to be achieved.
[4]	The Code also specified “performance outcomes”, the
achievement of which would result in the achievement of the overall outcomes, and thereby fulfill the purpose of the Code. However, as the primary judge held, the performance outcomes were not the only means of achieving that result. Her Honour
correctly held that under the Code, in its terms in the planning scheme against which the development was to be considered, there was no requirement that every building or
other structure should be no higher than 8.5 metres.
[5]	The applicants put in issue the satisfaction of two of the overall outcomes. The first was that the development would contribute to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it would occur. The second was that the height of the buildings and structures was consistent with the reasonable expectations of the local community. There is no challenge
to the judge’s finding that the first of those outcomes would
be achieved. At the core of the applicant’s case in this Court are complaints of errors in considering the development’s
compliance with the second outcome.
[6]	On this issue, more was required than an assessment of whether any development with a building or structure in excess of 8.5 metres in height would be beyond the reasonable expectations of the local community. What was required was an assessment of whether the buildings and structures proposed by this development would be within those expectations.
[7]	The finding which was most relevant to this question was in the primary judgment at [302], where her Honour said that:

“[2]	McMURDO JA: I joined in the orders which were made by this Court’s judgment handed down earlier this year. My reasons
differed from those of Burns J (with whom Morrison JA agreed), but of course the case will have to be reconsidered
according to his Honour’s judgment.
[3]	I agree with his Honour’s reasons as to the terms of the
remitter and the costs in this Court, and the orders which he
proposes.”[84]

“[10]	In the first place, Lockyer Valley Regional Council v Westlink Pty Ltd was a different case. There, the procedural history was such as to require remittal to a different judge.[95] Second, and as previously recorded,[96] the challenge to the decision in the
court below was a narrow one, it being focused on the
primary judge’s finding that the development complied with
Version 8 of the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community. That challenge was successful because, it was held, her Honour erred in the respects identified in the judgment.[97] Each went to the
question whether the proposed development complied with
the Height of buildings and structures overlay code and the reasons explain why her Honour fell into error in these
respects.[98] Assisted by that explanation, there is no reason to think that her Honour will do other than determine the question afresh according to law. Indeed, once it is appreciated that a
finding needed to be made as to the local community’s
expectations regarding height, that there was a credible and substantial source of evidence as to those expectations in the form of the submissions which needed to be considered as part of the assessment and that, freed of any case management considerations, the change to the Planning Scheme brought about by Version 18 should be considered, I expect that much of the foundation for the findings about which Development Watch complains may be seen to fall
away.”[99]

•	restaurants and bars;
•	meeting and function facilities;
•	sporting and fitness facilities;
•	staff accommodation;
•	transport facilities directly associated with the tourist facility such as a ferry terminal and air

(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.