GTH Project No. 4 Pty Ltd v Noosa Shire Council
[2024] QPEC 26
•30 May 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
GTH Project No. 4 Pty Ltd v Noosa Shire Council & Ors [2024] QPEC 26
PARTIES:
GTH PROJECT NO. 4 PTY LTD ACN 607 629 149
(Appellant)
v
NOOSA SHIRE COUNCIL
(Respondent)
AND
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING
(Co-respondent)AND
COOROY AREA RESIDENTS ASSOCIATION INC
(Co-respondent by Election)FILE NO/S:
970 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
30 May 2024
DELIVERED AT:
Brisbane
HEARING DATE:
26 to 28 and 31 July 2023, 1 and 4 August 2023, 31 October 2023, 9 November 2023, 22 December 2023, 20 and 21 and 23 February 2024, and further submissions received 29 February 2024, 14 March 2024, 9 April 2024 and 17 May 2024, and further hearing on 24 May 2024
JUDGE:
Kefford DCJ
ORDER:
I ORDER THE APPEAL BE DISMISSED. THE DEVELOPMENT APPLICATION SEEKING A DEVELOPMENT PERMIT FOR MAKING A MATERIAL CHANGE OF USE AND A DEVELOPMENT PERMIT FOR RECONFIGURATION OF LOTS IS REFUSED.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s refusal of development application seeking a development permit for a material change of use for a seniors’ living community and golf course clubhouse and reconfiguration of lots – whether the proposed material change of use complies with the assessment benchmarks in Noosa Plan 2006 – whether the admitted non-compliances with the assessment benchmarks in Noosa Plan 2006 are deserving of significant weight – whether the proposed seniors’ living community is an appropriate use of land outside the urban growth boundary – whether the proposed seniors’ living community involves unacceptable built form and density – whether the proposed seniors’ living community will result in unacceptable visual amenity and character impacts – whether the proposed seniors’ living community presents an unacceptable risk to the water catchment of Lake Macdonald – whether consideration of Noosa Plan 2020 tells against approval of the proposed development – whether there is a need for the proposed seniors’ living community – whether there is a need for the proposed development – whether there are other benefits that support approval – whether the development application for a material change of use should be approved in the exercise of the planning discretion – whether the code assessable proposed reconfiguration of a lot complies with the assessment benchmarks
LEGISLATION:
Planning Act 2016 (Qld) ss 43, 45, 59, 60, 65, 66
Planning and Environment Court Act 2016 (Qld), ss 43, 46, 47
CASES:
AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied
Allan & Anor v Noosa Shire Council [1983] QPLR 227, cited
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965, approved
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved
Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27, approved
Brisbane City Council v Klinkert [2019] QCA 40; (2019) 236 LGERA 88, considered
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, applied
Cooroy Golf Club Inc. & Anor v Noosa Shire Council [2005] QPEC 16; [2005] QPELR 561, approved
Duncombe v Council of the Shire of Caboolture & Anor [1990] QPLR 257, approved
Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied
Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved
Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, approved
Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved
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
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
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied
Purcell Family v Gold Coast City Council [2004] QPELR 521, approved
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied
Smout v Brisbane City Council [2019] QPEC 10; [2019] QPELR 684, approved
SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied
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
Walker v Noosa Shire Council [1983] 2 Qd R 86, applied
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied
Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:
B Job KC and M Batty for the Appellant
C Hughes KC and B Rix for the Respondent
M Rodgers for the Co-respondentSOLICITORS:
HopgoodGanim for the Appellant
Thynne + Macartney for the Respondent
McInnes Wilson for the Co-respondent
The Co-respondent by Election was self-represented
TABLE OF CONTENTS
Introduction
What does the progress of the development application reveal?
What does the common material for the development application reveal?
What does the progress of the appeal reveal?
What is the nature of the proposed development?
What does the proposed reconfiguration of lots entail?
What does the proposed seniors’ living community use entail?
What does the proposed golf course clubhouse use entail?
What are the other attributes of the proposed development?
What are the issues in dispute?
What is the applicable framework for the decision?
Key issue 1 – Is the proposed seniors’ living community appropriately located when assessed against Noosa Plan 2006?
What land use outcomes are sought for the subject land in the relevant assessment benchmarks in Noosa Plan 2006?
Does the proposed development involve uses that are contemplated on the subject land under Noosa Plan 2006?
Is the proposed seniors’ living community appropriately located having regard to its density and its proximity to essential services and facilities?
Is the proposed seniors’ living community compatible with the surrounding community?
What is the significance of the non-compliances relating to the proposed location of the seniors’ living community use?
Key issue 2 – Does the proposed seniors’ living community involve unacceptable built form and density and result in unacceptable visual amenity and character impacts?
What built form, density, visual amenity and character outcomes are sought by the relevant assessment benchmarks in Noosa Plan 2006?
What is the amenity and character of the locality?
What are the design features of the proposed seniors’ living community?
Are the buildings appropriately designed and sited to allow for landscaping between buildings?
Are the buildings appropriately designed and sited to maintain the visual continuity and pattern of buildings in the street?
Is the density of the proposed seniors’ living community and its site cover, gross floor area and plot ratio, compatible with surrounding development?
Will the proposed seniors’ living community present an appearance of bulk to adjacent properties, roads or other areas in the vicinity?
Are the proposed buildings and other structures designed and sited to encourage the co-location of a range of open space uses?
Will the proposed seniors’ living community have a detrimental impact on the amenity of the locality?
Will the proposed seniors’ living community have a detrimental impact on the character of the locality?
Conclusion regarding whether the proposed seniors’ living community involves unacceptable built form and density and results in unacceptable visual amenity and character impacts
Key issue 3 – Does the proposed seniors’ living community present an unacceptable risk to the water catchment of Lake Macdonald?
What outcomes are sought for the Lake Macdonald water supply catchment in the relevant assessment benchmarks in Noosa Plan 2006?
Does the proposed seniors’ living community comply with the assessment benchmarks with respect to protection of the Lake Macdonald water catchment?
Key issue 4 – Does consideration of Noosa Plan 2020 tell against approval of the proposed material change of use?
Does the proposed seniors’ living community integrate with the surrounding community?
Do the facts and circumstances establish that Noosa Plan 2006 is out of step with the contemporary expressions of planning intent in Noosa Plan 2020?
Key issue 5 – What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
Key issue 6 – Is there a need for the proposed use?
What are the general principles that inform and guide an assessment of need?
Do Noosa Plan 2006 and Noosa Plan 2020 recognise the important principles about the need for seniors’ accommodation?
Does the evidence establish a need for the proposed seniors’ living community?
Is there a need for the upgrade to the golf course clubhouse?
Conclusion regarding need
Key issue 7 – Does the new golf course clubhouse benefit the community?
Key issue 8 – Is the proposed development consistent with ShapingSEQ?
Key issue 9 – Is there a community benefit associated with contributions to the upgrade of the intersection of Myall and Elm Streets?
Key issue 10 – Is there an absence of unacceptable adverse amenity impacts?
Key issue 11 – Does the absence of evidence of support from the owner of the Cooroy golf course tell against approval?
Key issue 12 – Should the proposed use be approved in the exercise of the planning discretion?
Key issue 13 – Should the proposed reconfiguration of lots be approved?
Conclusion
Introduction
On the outskirts of the rural hinterland township of Cooroy, near the Bruce Highway, there is a 38.1654 hectare parcel of land that comprises four allotments, being Lot 33 on MCH 2281 (“Lot 33”) and Lots 1, 2 and 3 on SP 115864 (respectively referred to as “Lot 1”, “Lot 2” and “Lot 3”). They are located at 30, 114, 122 and 144 Myall Street (“the subject land”).
Part of the subject land, being Lot 33 and Lots 1 and 2, is improved by an existing golf course that is operated by Cooroy Golf Club. The golf course contains 18 holes in conventional fairway configurations demarcated by trees and other vegetation. The current clubhouse is at the very northern extent of the golf course, opposite Myall Street’s intersection with Crystal Street. The golf course also appears to occupy Lot 1 on RP 78962 and Lot 1 on RP 86447, but those lots do not form part of the subject land.
The remainder of the subject land, being Lot 3, has an area of 7.033 hectares. It is at the southern end of the subject land and is currently vacant. It is surrounded by the golf course on three sides. Lot 3 enjoys frontage to Myall Street and its extension into Nandroya Road and is adjacent the roundabout interchange that provides access to the Bruce Highway. It has a history of use for small-scale agricultural activities.
When the four irregularly shaped, contiguous allotments that comprise the subject land are viewed in plan format and on aerial images, their outline presents a shape reminiscent of a bottle of wine or champagne, where:
(a)the cork and neck of the bottle points north towards the intersection of Myall and Elm Streets and the Cooroy township centre, which provides a wide array of services and facilities in a vibrant main street configuration;
(b)the top of the cork adjoins land to the north that contains a single detached dwelling house;
(c)the neck and sides of the bottle are defined by:
(i)the North Coast Rail Line, which flanks the eastern boundary of the subject land; and
(ii)the formed pavement and road reserve for Myall Street and its extension into Nandroya Road, which flanks the western boundary of the subject land;
(d)the bottle is positioned such that its label faces Myall Street, which label is represented by the vacant land of Lot 3;
(e)the base of the bottle is defined by a golf course fairway, including the linear arrangement of vegetation that demarcates the fairway, which sits between the vacant land of Lot 3 and the disused business enterprise (formerly the Eumundi Smokehouse) on the adjoining land to the south; and
(f)a small shard is missing from the centre of the bottle, being that part of the golf course that operates on Lot 1 on RP 78962 and Lot 1 on RP 86447.
GTH Project No. 4 Pty Ltd wants to make a material change of use of the subject land to develop Lot 3 and a small portion of existing golf course fairways on Lots 1 and 2 for a seniors’ living community and a new golf course clubhouse. It also wants to reconfigure the subject land so that:
(a)the seniors’ living community is on proposed lot 4, being an area comprised of all of Lot 3 and part of Lot 1;
(b)the golf course is on Lot 33 and proposed lot 5, being an area comprised of all of Lot 2 and part of Lot 1; and
(c)there is a proposed access easement over parts of both proposed lot 4 and proposed lot 5 to facilitate a single, internal access road that will provide access from Myall Street to the new golf course clubhouse and the seniors’ living community.
To facilitate its goal, GTH Project No. 4 Pty Ltd made a single development application to Noosa Shire Council (“the Council”) in which it sought a development permit for the material change of use and a development permit for reconfiguration of lots.
The Council refused the development application. This is an appeal against the Council’s decision.
Under s 45 of the Planning and Environment Court Act 2016 (Qld), GTH Project No. 4 Pty Ltd bears the onus of establishing that the appeal should be allowed and the Council’s decision set aside and replaced with a decision to approve its development application.
Ultimately, GTH Project No. 4 Pty Ltd says that its development application should be approved because the subject land presents a vast number of opportunities for development of the type proposed and no material constraints. This submission is at the heart of GTH Project No. 4 Pty Ltd’s approach to its case.
What does the progress of the development application reveal?
Before turning to the detail of the issues in dispute in this case, it is helpful to briefly consider the evolving nature of GTH Project No. 4 Pty Ltd’s development application. The development application was changed several times during the development assessment process before the Council. It was also changed several times after the commencement of this appeal.
Consideration of the issues raised by the Council and others throughout the development application and appeal process, and GTH Project No. 4 Pty Ltd’s response to them, provides a better appreciation about the difficulties faced by GTH Project No. 4 Pty Ltd in discharging its onus. It provides relevant context for testing GTH Project No. 4 Pty Ltd’s contention that the subject land presents a vast number of opportunities for development of the type proposed and no material constraints.
What does the common material for the development application reveal?
The evidence before me includes some, but not all, of the material about GTH Project No. 4 Pty Ltd’s development application that the Council received before it decided the development application. That material is defined under the Planning Regulation 2017 (Qld) as “the common material”. It is information to which regard must be had in an assessment under s 45 of the Planning Act 2016.
The development application forms described the proposed use as “Seniors Living Community” with 232 dwelling units and “Golf Club House”. The forms identified the relevant planning scheme definition as “Multiple Housing – Type 5 (Relocatable)” and “Entertainment and Dining Business – Type 2 (Recreation, Amusement and Fitness)”. The forms also identified that the reconfiguration of lots involved boundary realignment and creation of an easement to give access to a lot from a construction road.
On 26 September 2019, the Council gave a confirmation notice under the Planning Act 2016, in which it confirmed that the development application was properly made on 12 September 2019. The notice states that the development application sought development approval for:
“• Development Permit for Material Change of Use – Multiple Housing - Type 5 Relocatable and Entertainment & Dining Type 2 (Recreation amusement fitness)
•Development Permit for Reconfiguration of a Lot (Boundary realignment and Access Easement).”
(emphasis added)
At the time that GTH Project No. 4 Pty Ltd’s development application was properly made, the Planning Scheme for the Noosa Shire 2006 (Amendment 10, effective 8 June 2018 to 31 July 2020) (“Noosa Plan 2006”) was in effect.
The subject land is within the Council’s local government area and subject to Noosa Plan 2006. Under Noosa Plan 2006, the subject land is:
(a)designated on the Planning Scheme Strategy Map as having preferred land use patterns of “Rural” and “Areas of Ecological Significance”;
(b)within the Cooroy and Lake Macdonald Locality Plan area and mapped as:
(i)partly in the Open Space Recreation Zone (Lot 33 and Lot 1);
(ii)partly in the Rural Zone (Lots 2 and 3); and
(iii)entirely outside of the Urban Growth Boundary;
(c)mapped on the Cooroy & Lake Macdonald Natural Resources Overlay as part of the water supply catchment for Lake Macdonald, which is identified in Noosa Plan 2006 as:
(i)one of two primary sources of water supply for the Noosa Shire; and
(ii)the primary source of water supply for the coastal urban areas of Noosa and the rural towns and villages of Cooroy, Pomona, Cooran and Cooroibah; and
(d)mapped on the Cooroy & Lake Macdonald Biodiversity Overlay as containing a major waterbody and as requiring an associated riparian buffer area.
The development application required referral to the Chief Executive, Department of State Development, Infrastructure, Local Government and Planning (“the Chief Executive”) as:
(a)the material change of use is assessable development under a local government’s planning scheme and involves more than 200 dwellings to be used for accommodation for older members of the community, or retired persons, in independent living units or serviced units and an ancillary manager’s residence;
(b)the material change of use is assessable development under a local government’s planning scheme and the subject land is within 25 metres of a State transport corridor in that the subject land has frontage to the State-controlled Myall Street and adjoins a State-controlled railway corridor to the east; and
(c)the reconfiguration of lots relates to premises that is within 25 metres of a State transport corridor and is to involve a new or changed access between the premises and the State transport corridor.
By letter dated 1 October 2019, the Department of State Development, Manufacturing, Infrastructure and Planning confirmed that the development application had been properly referred to the Chief Executive. The letter identified the development application to be one seeking development permits for:
“Material change of use for multiple housing – Type 5 (seniors living community – 232 independent living units), entertainment and dining business – Type 2 (Cooroy Golf Club house)
Reconfiguring a lot for a boundary realignment and access easement.”
(emphasis added)
On 18 October 2019, the Council sent GTH Project No. 4 Pty Ltd an information request under the Planning Act 2016 in which it requested further information to enable it to satisfactorily assess the development application. The information request identified numerous difficulties with the development application, including with respect to:
(a)the proposed tenure arrangements for the occupiers of the proposed relocatable dwellings given that, under the Planning Act 2016, the definition of reconfiguration of a lot includes:
“dividing land into parts by agreement rendering different parts of a lot immediately available for separate disposition or separate occupation, other than by an agreement that is—
(i)a lease for a term, including renewal options, not exceeding 10 years; or
(ii)an agreement for the exclusive use of part of the common property for a community titles scheme under the Body Corporate and Community Management Act 1997 …”
(b)the absence of detail about how the proposed use would provide for aged care given it was defined by reference to the definition in Noosa Plan 2006 of “Multiple Housing – Type 5 Relocatable”, being:
“Premises used for relocatable dwellings (whether they are permanently located or not) that provides long-term residential accommodation. The use does not include a Type 2 Caravan Park as separately defined.”
(c)a lack of clarity about how the proposed dwellings and associated club house are consistent with the prevailing character of Cooroy and reflect the typical Queensland domestic vernacular that is predominant in older parts of Cooroy;
(d)the inability to impose a condition that requires the provision of 10 years’ membership to the Cooroy Golf Club for residents of the seniors’ living community;
(e)the absence of detail about how satisfactory walking distances (of about 400 metres) to public transport services for residents of the development will be achieved;
(f)traffic and car parking arrangements; and
(g)the paucity of information about:
(i)the impact of the proposed development on aspects and vistas around the subject land;
(ii)ecological impacts; and
(iii)the extent of private open space available to the residents of the individual dwellings for gardening, clothes drying and enjoyment.
By letter dated 6 May 2020, GTH Project No. 4 Pty Ltd responded to the Council’s information request. The response included a change to the development application. GTH Project No. 4 Pty Ltd increased the number of proposed dwelling units from 232 to 246 dwelling units and increased the extent of the subject land proposed to be used for the seniors’ living community from 10.56 hectares to 11.03 hectares.
Otherwise, in the response to the information request, GTH Project No. 4 Pty Ltd indicated, amongst other things, that:
(a)it maintained that the use for which it sought a development permit was one that accords with the Noosa Plan 2006 defined use of “Multiple Housing – Type 5 Relocatable”;
(b)in its view, no reconfiguration of a lot would result from the occupation of sites within the seniors’ living community because:
(i)there are a significant number of retirement communities operating under the Manufactured Homes (Residential Parks) Act 2003 (Qld) across Queensland, the Sunshine Coast and in the local area and GTH Project No. 4 Pty Ltd is not aware of a single example of one of these communities where approval has been required for the reconfiguration of a lot;
(ii)the proposed seniors’ living community will operate under the Manufactured Homes (Residential Parks) Act 2003 and, under the proposed arrangements:
(A) the resident will own the house, which will be capable of being moved or relocated;
(B) the site operator will own the land on which the house is located;
(C) site rent will be paid to the operator by the homeowner to obtain occupation rights to permit the house to be located on the subject land and to cover the cost of utilities and other outgoings such as rates, water, maintenance of lawns and communal facilities; and
(D) the site agreement between the homeowner and the owner and operator of the site is not required to specify a term, with each party retaining the right to terminate the agreement at any time in accordance with the provisions of the Manufactured Homes (Residential Parks) Act 2003; and
(c)it intended to request an amended referral agency response that endorsed the revised plans included with GTH Project No. 4 Pty Ltd’s response to the information request.
A letter dated 28 May 2020 from Queensland Treasury indicates that:
(a)the Chief Executive, through the State Assessment and Referral Agency, gave a referral agency response on 14 February 2020;
(b)on 6 May 2020, the State Assessment and Referral Agency received representations from GTH Project No. 4 Pty Ltd requesting a change to the referral agency response; and
(c)the referral agency response was changed as outlined in the letter of 28 May 2020. It related to those uses referred to in the letter of 1 October 2019, as outlined in paragraph [18] above.
The development application was publicly notified. During the public notification period, the Council received more than 390 properly made submissions about the development application. One of the submissions was from Cooroy Area Residents Association Inc., who opposed the grant of development permits.
A copy of all the submissions were before me in Exhibit 2.006. My analysis of the submissions reveals that:
(a)most of the submissions are pro-forma submissions that support approval of the development application for reasons that include, but are not limited to:
(i)the benefit to the community associated with increased golf membership to the Cooroy Golf Club by reason of the guaranteed membership proposed for the residents of the seniors’ living community;
(ii)the benefits associated with the proposed new golf course clubhouse, car park area and golf buggy storage facilities;
(iii)the employment that would be generated by the proposed development;
(iv)the economic stimulus and increase in business for the local area; and
(v)the provision of development that provides needed retirement living;
(b)most of the submissions that express support for approval of the development application are from residents of the Sunshine Coast area generally who are not residents of the local community;
(c)several of the letters of support are from golf clubs in the Sunshine Coast area;
(d)the submissions in support that are from members of the local community generally include additional comments on the pro forma letter, from which I infer that the improvements for Cooroy Golf Club are material to the local residents’ support of the development application;
(e)many of the submissions that oppose approval of the proposed development are from members of the local community; and
(f)the reasons for opposition cited by the local community include, but are not limited to:
(i)the proposed development would have an unacceptable adverse impact on the amenity of the area;
(ii)there is no need for the proposed development;
(iii)the proposed development would have an unacceptable impact on the major road network;
(iv)the density of the proposed development is not compatible with surrounding development;
(v)the proposed development does not protect the Lake Macdonald water supply in the manner anticipated by Noosa Plan 2006;
(vi)the proposed development has the potential to impact on local fauna, which has not been adequately investigated in the reports provided by GTH Project No. 4 Pty Ltd;
(vii)the proposed gated, introspective community adds no value to the Cooroy community nor the Noosa Shire;
(viii)the location of the proposed development at the “gateway” into Cooroy would ruin the country town feel; and
(ix)the intensity of the proposed development jeopardises Cooroy’s charm as a hinterland rural community.
On 31 July 2020, the Council’s most recent planning scheme, Noosa Plan 2020, took effect. It was amended on 25 September 2020.
Under Noosa Plan 2020 (as amended on 25 September 2020) (“Noosa Plan 2020”), the subject land is:
(a)designated on Strategic Framework Map 1 Settlement, Strategic Framework Map 2 Economy & Employment and Strategic Framework Map 3 Infrastructure as being intended to be part of the “Rural Residential Area” and “Major Recreation Area” and outside the Urban Boundary;
(b)designated on Strategic Framework Map 4 Biodiversity as having areas of significance as “Connecting Habitat Area” and “Ecological Linkage”;
(c)within the Cooroy Local Plan Area and mapped as:
(i)partly in the Recreation and Open Space Zone (Lot 33 and Lot 1);
(ii)partly in the Rural Residential Zone (Lots 2 and 3); and
(iii)entirely outside of the Urban Boundary;
(d)is mapped on the Regional Infrastructure Overlay as within the water resource catchment and water supply buffer; and
(e)mapped on the Biodiversity, Waterways and Wetlands Overlay as containing a waterway and areas of biodiversity significance.
Bearing in mind the designation of the subject land outlined above, it is of note that directly across the street from Lots 2 and 3 sits a 6.665-hectare vacant parcel of land, being Lot 4 on SP 248479 (“Lot 4”). Under Noosa Plan 2006, Lot 4 was in the Rural Zone and mapped as outside of the urban growth boundary. Under Noosa Plan 2020, Lot 4 is predominantly in the Community Facilities Zone, except for that part of Lot 4 that fronts Myall Street and the roundabout intersection of the Bruce Highway exit and Myall Street, which is in the Environmental Management and Conservation Zone. An annotation on the zoning map indicates that it is intended for use for “Residential Care Facility”. Lot 4 is also mapped as within the urban boundary under Noosa Plan 2020.
By email dated 17 November 2020, GTH Project No. 4 Pty Ltd notified the Council of a change to its development application to seek approval for use for a seniors’ living community that accords with the Noosa Plan 2006 defined use of “Multiple Housing - Type 3 Retirement and Special Needs” rather than “Multiple Housing – Type 5 Relocatable”.
By decision notice dated 25 March 2021, the Council refused the development application. The decision notice states that the development application the subject of its decision sought development approval for:
“Material Change of Use – Entertainment & Dining Type 2 Recreation amusement fitness (Cooroy golf clubhouse), Multiple Housing - Type 3 Retirement and Special Needs (Seniors Living Community), and Lot Reconfiguration (Boundary Realignment & Access Easement).”
The reasons for refusal cited by the Council in its decision notice include unacceptable town planning, visual amenity and character, water quality, civil engineering, ecological, environmental, agricultural and reverse amenity, acoustic, and traffic impacts, and the absence of need for the proposed use.
Those aspects of the common material, Noosa Plan 2006 and Noosa Plan 2020 referred to above indicate that GTH Project No. 4 Pty Ltd’s contention that the subject land presents a vast number of opportunities for development of the type proposed and no material constraints should be approached with a degree of caution (and perhaps even a degree of scepticism). Its contention requires scrutiny in this appeal.
What does the progress of the appeal reveal?
On 23 April 2021, GTH Project No. 4 Pty Ltd commenced its appeal against the Council’s decision. It seeks an order that the appeal be allowed and its development application approved subject to reasonable and relevant conditions.
Cooroy Area Residents Association Inc. elected to join the appeal as a Co-respondent by Election.
The Chief Executive did not elect to join the appeal even though:
(a)the development application proposes to change the existing access to Myall Street, being a State-controlled road, and proposes upgrades to a State-controlled intersection, being the intersection of Myall and Elm Streets; and
(b)unless it does so, the Chief Executive has no entitlement to be heard about:
(i)changes to the development application that are made during the appeal process, which may undermine the relevance of the conditions contained in its referral agency response; and
(ii)the conditions imposed by the Court if the Court determines that the development application should be approved subject to conditions.
The Chief Executive’s election not to join the appeal was a potential source of difficulty for GTH Project No. 4 Pty Ltd from the outset. This is because, on its face, the referral agency response relates to a form of the development application that differs from that the subject of the Council’s decision (and the focus of the appeal as instituted). In those circumstances, GTH Project No. 4 Pty Ltd would likely face difficulties persuading the Court to infer from the referral agency response that the proposed development would not have unacceptable traffic impacts on the State-controlled road network. The acceptability of traffic impacts was an issue that was live in the appeal when it was instituted.
On 5 May 2022, GTH Project No. 4 Pty Ltd obtained an order permitting it to make a minor change to its development application to:
(a)revise the layout to reduce the number of proposed dwelling units in the seniors’ living community from 246 to 214; and
(b)amend the design, subdivision and staging.
On 10 February 2023, GTH Project No. 4 Pty Ltd applied for an order permitting it to make a further change to its development application to:
(a)relocate the proposed intersection of its internal access road and Myall Street to a position on Myall Street that is further to the north;
(b)revise the development footprint to ensure that the built form does not intrude into the identified rehabilitation area;
(c)change the extent of earthworks proposed;
(d)change the sanitary system; and
(e)increase the height of the proposed acoustic barriers.
At the time that the application was made, the Chief Executive had no entitlement to be heard about the proposed change to the development application as it was not a party to the appeal.
On 17 March 2023, his Honour Judge Williamson KC ordered that the Chief Executive be joined to the proceeding under r 69(1)(b) of the Uniform Civil Procedure Rules 1999, which contemplates joinder of a person whose presence before the Court:
(a)is necessary to enable the Court to adjudicate effectually and completely on all matters in dispute in the proceeding; or
(b)would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
On 14 April 2023, GTH Project No. 4 Pty Ltd obtained an order permitting it to make the further minor change to its development application.
Following the further minor change, the Council:
(a)indicated that it would no longer persist with its allegations that refusal was warranted by reason of unacceptable impacts with respect to ecology, civil engineering, agriculture and reverse amenity, traffic, acoustics and air quality or golf course safety netting; but
(b)maintained that the development application should be refused because:
(i)the proposed development is an inappropriate use of the subject land as it involves urban development outside:
(A) the urban growth boundary in Noosa Plan 2006; and
(B) the urban boundary in Noosa Plan 2020;
(ii)the proposed development involves unacceptable built form and density and will result in unacceptable character impacts;
(iii)the proposed development represents an unacceptable risk to the water catchment for Lake Macdonald; and
(iv)having regard to the non-compliances with Noosa Plan 2006 and Noosa Plan 2020, and other relevant matters, the exercise of discretion does not favour approval.
GTH Project No. 4 Pty Ltd sought, and obtained, a listing for hearing, with the appeal scheduled to be heard between 26 July 2023 and 3 August 2023.
Shortly prior to the commencement of the hearing, the Chief Executive applied to be excused from further participation in the appeal. It contended that there were no traffic matters that warranted refusal of the development application, subject to the imposition of the conditions that the Chief Executive considered appropriate. At that time, the Chief Executive did not provide a copy of those conditions. The Chief Executive was of the view that the proposed conditions could be delivered after delivery of judgment in this appeal.
The Chief Executive’s position did not appropriately recognise that the ultimate decision to approve subject to conditions rests with the Court, not the Chief Executive. Consequently, the Chief Executive’s application to withdraw from participation in the appeal was not successful.
On the first day of the hearing, the parties opened their evidence, and the Chief Executive made another application to be excused from participation in the appeal. The application was premised on the basis that:
(a)it had provided a set of conditions that differed from its amended referral agency response but which the Chief Executive then contended should be imposed on the development application;
(b)correspondence between the parties to the appeal indicated that the terms of the conditions were not agreed, particularly insofar as they related to pedestrian connections and the introduction of a concrete path along Myall Street; and, notwithstanding that,
(c)in the view of the Chief Executive, the existence or absence of a pedestrian path was not a matter that would give rise to a basis for refusal of the development application.
The Chief Executive’s position did not appropriately recognise that, in this case, the Chief Executive’s conditions have the potential to materially influence an issue in the appeal. The existence or absence of a pedestrian path is relevant to the respective cases of GTH Project No. 4 Pty Ltd and the Council about whether the proposed development is located within reasonable access to a variety of essential services and facilities and whether the proposed seniors’ living community is appropriately located.
The Chief Executive’s position also ignores that the planning legislation anticipates that the ultimate decision maker will be provided with assistance of referral agencies on issues that relate to matters within the jurisdiction of the referral agency when determining whether to approve a development application and, if so, the conditions that should be imposed.
For those reasons, I refused the Chief Executive’s application to be excused.
On the second day of the hearing, the parties arranged a site inspection of the local area. Although my observations on the site inspection do not form part of the evidence, my appreciation of the photographic evidence, and the opinions expressed by the experts, is greatly enhanced with the benefit of that site inspection.
On the third, fourth and fifth days of the hearing, the parties called experts who gave evidence about need, visual amenity and character issues in the appeal.
On several occasions during that initial hearing, I expressed concern about the difficulties that I was having with appreciating the evidence of the experts. I explained that my difficulties were informed by a lack of clarity in the evidence about the parameters of the development application that I was to assess.
On what was to be the final day of evidence, being 2 August 2023, GTH Project No. 4 Pty Ltd applied for an adjournment to permit it time to consider:
(a)the adequacy of its evidence; and
(b)making a further minor change to its development application.
These matters do not engender confidence in the case advanced by GTH Project No. 4 Pty Ltd.
GTH Project No. 4 Pty Ltd agreed to pay the Council’s costs thrown away by reason of the adjournment. I granted the adjournment on that basis.
On 10 November 2023, I made an order permitting GTH Project No. 4 Pty Ltd to further progress its appeal based on yet another minor change to its development application. As a result of that order:
(a)further expert reports (both joint and individual) were prepared; and
(b)many of the exhibits tendered during the initial hearing between 26 July 2023 and 3 August 2023 are now of limited relevance as they address a form of development that is no longer pursued.
The parties identify those many exhibits that they say are now of little relevance in Exhibit 7.030. Unfortunately, the exhibits referenced therein cannot be completely ignored as much of the cross-examination of the experts occurred by reference to them.
The development application that I am now to assess is the development application refused by the Council on 18 March 2021 as changed by the plans and documents in Exhibit 7.021 (“the proposed development”). The development application includes a suite of conditions, set out in Exhibit 8.006, that GTH Project No. 4 Pty Ltd proposes would form part of any approval. I will describe the proposed development in further detail shortly.
On 20 February 2024, being the first day of the further hearing of the appeal, the Chief Executive tendered Exhibit 12.008, which contains the conditions that it now contends should be imposed. The acceptability of the conditions proposed by the Chief Executive remained a live issue until final submissions, at which stage all parties agreed that any approval should be subject to the proposed conditions in Exhibit 12.008.
Despite GTH Project No. 4 Pty Ltd’s further changes to its development application and agreement about the Chief Executive’s conditions, the Council and the Cooroy Residents Association Inc. maintain that GTH Project No. 4 Pty Ltd’s development application should be refused. They say that the proposed development is still inappropriate for those reasons advanced at the commencement of the hearing. I have identified them in broad terms in paragraph [41](b) above.
The matters referred to above demonstrate that the prospect of developing the subject land for intense residential development of the type proposed by GTH Project No. 4 Pty Ltd is fraught with many challenges. Throughout the course of the development application process and the appeal, the Council and others have repeatedly raised many concerns about the suitability of the subject land for the urban development proposed by GTH Project No. 4 Pty Ltd. Time after time, GTH Project No. 4 Pty Ltd’s response to those concerns was to change its development application. Those matters do not bespeak of an inherent suitability of the subject land for the form of urban development proposed. Rather, the evolution of the issues and development application indicates that, through changes to its development application, GTH Project No. 4 Pty Ltd has sought to overcome some of the development constraints presented by the subject land. It has overcome some of them. Some persist.
It is convenient to now turn to consider the details of the iteration of the development application that I am to assess and those issues that remain in the appeal.
What is the nature of the proposed development?
There are two aspects to the proposed development, namely:
(a)an application for a development permit for the reconfiguration of lots by way of boundary realignment, amalgamation and creation of an access easement; and
(b)an application for a development permit to make a material change of use for:
(i)a seniors’ living community, which use is defined by reference to the definition of Multiple Housing – Type 3 Retirement and Special Needs in Noosa Plan 2006; and
(ii)a golf course club house, which use is defined by reference to the definitions of Entertainment and Dining Business – Type 2 Recreation, amusement & fitness, Entertainment and Dining Business – Type 1 Food & beverages (Restaurant, café and function room), and Entertainment and Dining Business – Type 3 Bar in Noosa Plan 2006.
The relevant definitions in Noosa Plan 2006 are:
Multiple housing means the use of premises for two or more dwelling units or accommodation units as the case may be, occupied by permanent or semi-permanent residents, where the occupants may share common facilities on the site. The term includes the following types:
Type 3 Retirement and special needs
Means the use of premises for dwelling units or accommodation units that house persons who are aged, being nursed or are convalescing. In each case, communal facilities may be available to residents for social interaction, recreation and emergency medical attention. The use may also include a caretaker’s residence and medical centre where they are ancillary to the residential care facility. The use includes a retirement village, residential aged care and a group house, however does not include health uses or community residence as separately defined.
Entertainment and dining business means the conduct of a business activity, where entertainment, amusement, recreation or meals are afforded. The term includes the following types:
Type 1 Food & beverages
The use of premises involving the sale of food and beverages for consumption on the premises. The use class includes a function room or restaurant or café with dining facilities for 10 or more people.
Type 2 Recreation, amusement & fitness
The use of premises involving recreation or amusement activities, including cinema, health & fitness club, gym, sport activity or brothel.
Type 3 Bar
The use of premises primarily for the serving of liquor for consumption on the premises. The use may include ancillary sale of food for consumption on the premises and may include amplified music, live entertainment and a dance floor. The use includes a hotel, tavern, bar or nightclub but does not include a restaurant.
What does the proposed reconfiguration of lots entail?
As I have mentioned in paragraph [5] above, GTH Project No. 4 Pty Ltd wants to reconfigure the subject land so that:
(a)the seniors’ living community is on proposed lot 4, which comprises all of Lot 3 and part of Lot 1;
(b)the golf course is on Lot 33 and proposed lot 5, which comprises all of Lot 2 and part of Lot 1; and
(c)there is a proposed access easement over parts of both proposed lot 4 and proposed lot 5 to facilitate a single, internal access road that will provide access from Myall Street to the new golf course clubhouse and the seniors’ living community.
An emergency access is proposed approximately 130 metres south of the main access point.
GTH Project No. 4 Pty Ltd does not oppose the imposition of the Chief Executive’s proposed conditions 10 and 11, which require:
(a)the emergency access be for use by emergency vehicles only and must be gated and remain locked at all other times; and
(b)all redundant existing vehicular property accesses located between the proposed development and Myall Street are to be permanently closed and removed.
What does the proposed seniors’ living community use entail?
As I have mentioned above, the seniors’ living community is to be established on proposed lot 4. It will have a frontage to Myall Street, be proximate to the Bruce Highway, and will interface with the golf course to the north, east and south.
As is evident from the definition of Multiple Housing – Type 3 Retirement and Special Needs in Noosa Plan 2006 set out in paragraph [63] above, the proposed seniors’ living community use is for housing of persons who are aged.
GTH Project No. 4 Pty Ltd’s proposed condition 2 requires the proposed development to be undertaken in accordance with the plans in Exhibit 7.021, including:
(a)a master plan, which depicts the overall layout of the seniors’ living community and shows that it is to contain 214 detached dwelling units, a manager’s unit, a community clubhouse and other communal facilities;
(b)a staging plan, which shows the golf course clubhouse and the clubhouse for the seniors’ living community in stage 1;
(c)a site area plan, which designates the dimensions for the 214 dwelling unit sites and shows the site areas range between 273 and 408 square metres;
(d)plans that show that the community clubhouse will be located at about a mid-point of an internal road, proximate to the new boundary for the golf course, and will provide extensive facilities, including:
(i)on the ground floor, an indoor pool and spa, a tennis court, a bowling alley, a hall, a bar and formal lounge, a meeting or private dining space, an alfresco area overlooking the golf course, a gym, a sauna, medical consultation rooms, a hairdressing salon, and a kitchen area; and
(ii)on the first floor, an undercover lawn bowls area, two rooftop terraces, a billiards room, cinema, golf simulator, gaming lounge, bar, wine room, library, multi-purpose room and craft room; and
(e)plans that show:
(i)a “summer house” with an outdoor pool, pickleball court, barbeque area, recreation room and residents’ workshop located near the manager’s workshop to the south;
(ii)a bocce court near the mapped waterway in the northern part of proposed lot 4; and
(iii)a path connecting the proposed new golf course clubhouse to the seniors’ living community.
GTH Project No. 4 Pty Ltd’s proposed conditions stipulate that:
(a)prior to the commencement of occupancy of any dwelling unit in any of stages 1 to 5 of the seniors’ living community, the golf course clubhouse stage and the internal access road from Myall Street to the new golf course clubhouse must be completed;
(b)stages 1 to 5 are to occur sequentially as shown on the staging plan;
(c)stage 1 must include a clubhouse for the seniors’ living community;
(d)the facilities within the seniors’ living community are to be available only to residents, employees or bona fide visitors, and visitors are to be accompanied by a resident;
(e)a bus service is to be provided and maintained for residents from stage 1, with a minimum of weekly services to Cooroy, medical and public transport facilities;
(f)the number of dwelling units is not to exceed 214 plus the manager’s unit;
(g)no more than two people may occupy each dwelling unit, unless otherwise permitted under a site agreement;
(h)all building walls and roofs are to be treated with recessive and low-light reflectance colours and finishes;
(i)each new dwelling unit must:
(i)have a different façade and a different roof articulation to the dwelling units that adjoin on each side;
(ii)be designed to facilitate wheelchair access with wider doors into the home, master bedroom and bathroom, and space to easily install ramps at entry and exit points externally to the home; and
(iii)provide an age-friendly kitchen design, for example by providing easy pull-out drawers and a walk-in pantry;
(j)all dwelling units must have a minimum separation of:
(i)two metres from the front wall to the internal road;
(ii)1.5 metres from the rear wall to the wall of any other dwelling unit; and
(iii)0.9 metres between the wall of the dwelling unit and the walls of the dwelling units that adjoin on each side or zero separation between the wall of the dwelling unit and the wall of any dwelling on one side provided that there is a minimum of 0.9 metres separation to any built form on the other side of the dwelling unit;
(k)the maximum height of dwelling units, other than the manager’s unit, is 5.5 metres above the approved finished ground level;
(l)landscaping must be provided in accordance with the Landscape Concept Plan; and
(m)landscaping (other than driveways and walkways) must be provided:
(i)at the front of each dwelling unit within the two-metre separation between the front dwelling unit wall and the internal road; and
(ii)to the sides of each dwelling unit’s built form except where zero separation is achieved.
The layout of the relocatable homes is proposed in a regular pattern with a series of parallel roads on an east-west axis connecting to two roads on a north-south axis. The development application includes plans that depict what are described as “typical” house designs. There are six typical designs for the relocatable homes. They contain either two or three bedrooms. The development application does not specify which design will occur on each dwelling unit site. The selection is to be made later, subject to compliance with the proposed conditions.
GTH Project No. 4 Pty Ltd’s proposed conditions require:
(a)provision to be made for equitable access for persons with disabilities to and within the site in accordance with the Anti-Discrimination Act 1991 (Qld), other legislation and nominated standards; and
(b)internal paths, ramps and hallways of communal areas to accommodate a mobility scooter with sufficient passing areas where appropriate.
The site plan depicts the proposed setbacks to the external boundaries of the subject land. Sections depict the intentions for the Myall Street frontage. In the greenspace area to the northwest, development is about 40 to 50 metres from the road frontage. There is a 10 metre setback to the road frontage other than where the boundary skews towards the east and the road verge widens to between 40 and 50 metres width, at which location the setback is more than seven metres from the road frontage. Retaining walls, acoustic barriers and other fencing are proposed on the subject land’s side of an extensive landscaped buffer.
Proposed condition 14 in Exhibit 8.006 purports to require compliance with a contract, which is referred to as the Myall Street Agreement. The Myall Street Agreement is a private contractual arrangement between Cooroy Golf Club Inc., GTH Project No. 4 Pty Ltd, and GTH Resorts No. 9 Pty Ltd dated 27 July 2023. GTH Resorts No. 9 Pty Ltd is an entity that has entered a contract to purchase Lots 2 and 3.
The Myall Street Agreement contains requirements such as those one might expect to see in a private contract about the development of land. For example, it contains requirements about grants of indemnity, maintenance of insurance and other such matters.
I have serious reservations about the legality of a condition that requires compliance with a contract of this type given the constraints in ss 65 and 66 of the Planning Act 2016. I also have serious reservations about the relevance of the matters referred to therein, given s 45(5)(b) of the Planning Act 2016 expressly excludes a person’s personal circumstances (financial or otherwise) from consideration as a relevant matter.
In response to my request for assistance about the legality of the condition, Mr Job KC for GTH Project No. 4 Pty Ltd initially indicated that the condition was not abandoned but later submitted “we don’t press the Myall Street agreement in terms of condition 14”. When I consider that submission against the background of my other exchanges with Counsel about condition 14, although Mr Job KC was not explicit in his later submission, I infer that GTH Project No. 4 Pty Ltd abandons its reliance on condition 14 as part of its development application. If I am wrong about that, it does not affect the outcome of this appeal. That is because, regardless of the legality of the condition, GTH Project No. 4 Pty Ltd has the onus in the appeal, and it has not persuaded me to impose the condition. Even if a condition is lawful, its imposition is a matter that is in the Court’s discretion: Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965, 968-70 [11] to [20] and the cases cited therein.
What does the proposed golf course clubhouse use entail?
The new golf course clubhouse and car parking is to occur on proposed lot 5. It will include a “pro shop”, golfing support facilities, dining and café areas, a function room, places to view the golf course, car parking and golf buggy parking. It is proposed that there will be minor reconfiguration to the existing fairways to accommodate the new golf course clubhouse and access.
GTH Project No. 4 Pty Ltd’s proposed conditions stipulate that the golf course clubhouse stage and the internal access road from Myall Street to the golf course clubhouse are to be completed prior to any occupancy of any dwelling unit.
What are the other attributes of the proposed development?
Parts of the golf course are proposed to be altered to provide a shorter, 18-hole layout that will facilitate use of part of the existing fairways for the new golf course clubhouse and internal access road from Myall Street.
An overall landscape concept master plan shows an intention to:
(a)retain existing native vegetation in the road reserve;
(b)plant a 10-metre-wide native buffer along the Myall Street frontage;
(c)plant a three-metre-wide native buffer along the interface with the golf course to the east; and
(d)undertake restoration works in the existing waterway.
No built form is proposed in the mapped watercourse. That area is to be rehabilitated in accordance with various plans including a concept rehabilitation plan, concept waterway revegetation plan and vegetation restoration plan. The waterway rehabilitation plan identifies that, at present, the existing waterways on the subject land are highly disturbed and have waterway barriers that impact on aquatic ecological function and cause on-site and off-site impacts. The waterway rehabilitation plan provides for the removal of those barriers, or the addition of appropriate fish-ways, that will significantly benefit the ecology of those waterways and promote a range of other benefits to aquatic ecology, including increased bank stability.
The tree disturbance plan identifies that 213 trees are to be removed. The proposed ecological restoration works will result in the planting of approximately 7,400 new plants, including approximately 2,265 trees.
The development is to be carried out generally in accordance with a stormwater quality management plan.
GTH Project No. 4 Pty Ltd’s proposed conditions stipulate that a new 1.5-metre-wide wide footpath is to be constructed along Myall Street. It is to be constructed between a new pedestrian crossing on Myall Street north of the northbound bus stop and the existing footpath on the northern side of the intersection of Myall Street and Ferrells Road. Those works are also to include a two-metre-wide wheelchair or mobility scooter passing bay at two locations.
Under GTH Project No. 4 Pty Ltd’s proposed conditions, the existing footpath between Ferrells Road and Maple Street is also proposed to be widened at up to four locations to allow wheelchairs or mobility scooters to pass. Each of the widened sections are to be two metres in width and traverse three metres.
The conditions sought by the Chief Executive, which are not opposed, require:
(a)provision of two bus stops on Myall Street;
(b)the construction of a pedestrian crossing on Myall Street and paved pedestrian footpaths to each bus stop; and
(c)roadworks comprising a median treatment at the intersection of Myall Street and Elm Street.
What are the issues in dispute?
In accordance with the usual practice of the Court at the time of the hearing, GTH Project No. 4 Pty Ltd identifies the issues that it says are in dispute in a document titled “Further Updated Appellant’s Issues in Dispute”: Exhibit 7.023. The Council produced its own document, titled “Respondent’s Particularised List of Matters that Support Refusal”: Exhibit 8.003. As is apparent from those documents, over 60 provisions of Noosa Plan 2006 and Noosa Plan 2020 have been put in issue. In addition, each party identifies the relevant matters on which they rely to support their position.
Despite that, GTH Project No. 4 Pty Ltd has not satisfied me, to the requisite standard, of any of its three fundamental propositions.
Having regard to my findings above, I am not persuaded that a combination of partial compliance with Noosa Plan 2006 and Noosa Plan 2020 alongside the matters supportive of approval provide a sound town planning basis to approve the proposed seniors’ living community and new golf course clubhouse.
Considering all those issues raised for consideration in the appeal, I am of the view that it would be inappropriate for the Court to exercise the planning discretion to approve the proposed use. A decision to approve a material change of use for the seniors’ living community would conflict with the formally expressed planning strategy to preclude urban development on the subject land. GTH Project No. 4 Pty Ltd has not demonstrated the policy to be unsoundly based or overtaken by events. The strategy is deserving of respect, and, in this case, it is entitled to be given its full force and effect.
Key issue 13 – Should the proposed reconfiguration of lots be approved?
As I identified in paragraph [62] above, there are two aspects to the proposed development. I have already dealt with the aspect of the development application that seeks a development permit for a material change of use. I now turn to assess that aspect that involves the application for a development permit for the reconfiguration of lots by way of boundary realignment, amalgamation and creation of an access easement.
This aspect of the proposed development requires code assessment. As such, it must be assessed in the manner identified in paragraphs [106] to [110] and [113] to [116] above. As I have identified in those paragraphs:
(a)I must approve the proposed reconfiguration to the extent it complies with all the assessment benchmarks; and
(b)to the extent that the proposed reconfiguration of lots does not comply with all or some of the assessment benchmarks, I may decide to refuse the application for the reconfiguration of lots only if compliance cannot be achieved by the imposition of development conditions.
Despite these statutory limitations on me, in oral submissions Mr Job KC said:
“Can I indicate just in terms of the reconfiguration component - - -
- that that’s very much tied to the MCU. So, accordingly, we can indicate to your Honour that should your Honour determine to refuse the MCU components, GTH won’t press the reconfig.”
When I expressed concern about how that position accords with the statutory limitations and fits within the legal framework, Mr Job KC continued to urge me to refuse that aspect of the development application that requires code assessment.
I gave GTH Project No. 4 Pty Ltd an opportunity to provide further written submissions on this issue. Those written submissions did not address my abovementioned concern.
Assistance on that issue was only provided by GTH Project No. 4 Pty Ltd, through its counsel Mr Batty, later when I again called the parties back. With the benefit of the assistance provided by Mr Batty and Counsel for the Council, I accept that it is necessary for me to undertake an assessment of the reconfiguration of a lot component even though I have determined that the part of the application that sought a development permit for a material change of use should be refused. That said, given the lack of interest in this aspect of the development application expressed by GTH Project No. 4 Pty Ltd through its Counsel Mr Job KC, this matter can be disposed of in short measure.
I describe the details of the proposed reconfiguration of lots in paragraphs [64] to [66] above. This reconfiguration is to be assessed against the applicable assessment benchmarks in the Cooroy & Lake Macdonald Locality Code and the Reconfiguration of a Lot Code in Noosa Plan 2006.
It is readily apparent from the details of the proposed reconfiguration of lots that the reconfiguration is sought to facilitate the end use of proposed lot 4 for the proposed seniors’ living community. This was confirmed by Mr Job KC for GTH Project No. 4 Pty Ltd in final submissions. As would be apparent from my reasons above, I have found that the proposed seniors’ living community is an inappropriate use of the subject land and should be refused. These are relevant considerations when assessing this aspect of the development application as the overall outcome in s 14.181.2 a) of the Reconfiguring a Lot Code requires that any reconfiguring of lots results in lot sizes and dimensions that are appropriate for their intended use.
In those circumstances, it seems to me that the best outcome that GTH Project No. 4 Pty Ltd could achieve with respect to its proposed reconfiguration of lots is a preliminary approval, rather than a development permit: see s 60(5) of the Planning Act 2016. Any such preliminary approval would also appropriately be subject to a condition that the reconfiguration of lots is not to proceed until the proposed material change of use is authorised by a development permit or otherwise becomes lawful. It would also be appropriate that any such preliminary approval be subject to the conditions that are now proposed by the Chief Executive and that the matter be remitted to the Council with directions that it is to give a decision notice to that effect, coupled with any additional lawful conditions that it considered appropriate: see s 47(1)(c)(ii) of the Planning and Environment Court Act 2016.
That said, GTH Project No. 4 Pty Ltd has not persuaded me that even a limited approval in those terms is appropriate. It has not discharged its onus with respect to the issues in dispute that relate to this aspect of its development application.
Relevantly, in that respect, the Council contends that in Noosa Plan 2006, the proposed reconfiguration does not comply with:
(a)the overall outcomes in ss 6.7.2 c), f), r), s) ii and iii, y), cc), gg), rr) ii, and specific outcomes O6, O7, O8, O9, O80, O86, and O88 of the Cooroy & Lake Macdonald Locality Code; and
(b)the overall outcomes in ss 14.181.2 g) and l) and specific outcome O23 in Table 14-66 of the Reconfiguring a Lot Code.
I have already set out the assessment benchmarks from the Cooroy & Lake Macdonald Locality Code above: see paragraphs [132], [133], [213], [214] and [293] above.
The overall outcomes in ss 14.181.2 g) and l) of the Reconfiguring a Lot Code state:
“14.181.2The overall outcomes sought by the Reconfiguring a Lot Code are to ensure that any reconfiguring of lots results in—
g)lots that avoid significant adverse effects on the natural environment and landscape and minimise the risk of hazards for people and property;
l)residential development which is consistent with the developed character of its particular neighbourhood.”
Specific outcome O23 in Table 14-66 of the Reconfiguring a Lot Code states:
“O23 Buildings and other structures do not have a significant adverse impact upon the visual amenity of surrounding areas.”
It is unnecessary to deal with each of these assessment benchmarks to dispose of this part of the development application. It is sufficient to observe that GTH Project No. 4 Pty Ltd has not persuaded me, to the requisite standard, that the proposed reconfiguration of a lot complies with the overall outcome in ss 14.181.2 g) of the Reconfiguring a Lot Code. That is so for two reasons.
First, it seems to me, on the balance of probabilities, that if the proposed reconfiguration of lots was to proceed, it would necessitate earthworks on the subject land to alter the golf course. This would be necessary to ensure that the golf course did not protrude into proposed lot 4. Given such earthworks would be on land in the catchment of Lake Macdonald, and having regard to the earthworks plans in Exhibit 7.021 and the water quality evidence referred to above, I am not satisfied that the proposed reconfiguring of lots would result in lots that avoid significant adverse effects on the natural environment and landscape.
Second, the proposed reconfiguration of lots would result in the bioretention basins that are necessary to treat water quality associated with the proposed seniors’ living community being located on a separate title. I have explained my concerns in this regard already.
Having regard to each of those reasons, considered individually, GTH Project No. 4 Pty Ltd has not persuaded me that the proposed reconfiguration will result in lots that avoid significant adverse effects on the natural environment and landscape, nor that compliance could be achieved by way of conditions. This issue alone warrants refusal of the proposed reconfiguration.
Conclusion
I order that the appeal be dismissed. The development application for a development permit for making a material change of use and reconfiguration of lots is refused.
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