Lewiac Pty Ltd v Gold Coast City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Lewiac P/L v Gold Coast City Council & Anor [2011] QPEC 23
PARTIES:	Lewiac Pty Ltd ACN 008 524 801 (Appellant) v Gold Coast City Council (Respondent) and Chief Executive, Department of Transport & Main Roads (Co-respondent by election)
FILE NO:	D129/2009
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court, Southport
DELIVERED ON:	11 March 2011
DELIVERED AT:	Southport
HEARING DATES:	26, 27 and 28 October 2010; 2 & 3 November 2010.
JUDGE:	Newton DCJ
ORDER:	Appeal Dismissed
CATCHWORDS:	Environment and planning – environmental planning – development control – matters for consideration in appeal against refusal of an application for preliminary approval overriding the Planning Scheme – generally – conflict with forward planning provisions of the Scheme including the Key Strategies; Activity Clusters and Land Use Themes – Industry – compromise of the achievement of DEOs – conflict with Industry 2 (Low Impact) Domain provisions of the Scheme – whether there are sufficient grounds to justify the decision despite the conflict. Acts Interpretation Act 1954 Environmental Protection Act 1994 Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 (Repealed) Sustainable Planning Act 2009 Cases cited: Aldi Stores v Redland City Council [2009] QCA 346. Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157. Brazier v Brisbane City Council (1972) 26 LGRA 322. Brown v Brisbane City Council [2005] QPEC 26. Brown v Brisbane City Council (2005) QPELR 629. Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117. Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126. Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209. Grosser v Council of City of Gold Coast (2001) 117 LGERA 153. Holts Hill Quarries P/L v Gold Coast City Council [2000] QCA 268. Koerner & Ors v Maroochy Shire Council, Barnes & Ors [2003] QPEC 54. Leda Holdings P/L v Caboolture Shire Council & Ors [2006] QCA 271. Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58. Ross Nielson Properties P/L v Caloundra City Council & Ors [2008] QPEC 55. Sheezel & Anor v Noosa Shire Council [1980] QPLR 130. Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245. Webster v Caboolture Shire Council [2008] QPEC 82. Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161.
COUNSEL:	Mr D R Gore QC, with Mr B Job for the appellant Mr S M Ure for the respondent
SOLICITORS:	Freehills for the appellant King & Company Solicitors for the respondent

This is an appeal against a refusal by the respondent local government relating to aged persons accommodation (a retirement resort). The application involved several components including a preliminary approval for a change of use and also a development permit for some of the stages of the proposed development. The application also included a reconfiguration application. The primary aspect of the application for the purposes of this hearing is the preliminary approval aspect relating to the change of use. The co-respondent by election played no active part in the hearing of this appeal.

The subject land is situated in the current Industry 2 domain under the respondent’s planning scheme. In that domain an aged persons accommodation or retirement resort is not a desirable development. This appeal, then, may be said to be akin to an old rezoning case with the types of considerations that arose in those cases being relevant to this particular matter. The case for the appellant (“Lewiac”) is that:

(1) the site is unsuitable for the existing industrial uses[1];
(2) conversely, the site is suitable for the proposed use for a retirement resort;
(3) there is no need for the site for Industry 2 domain purposes; and
(4) conversely, there is a need for the site to be developed for the purpose of a retirement resort.

[1] The site is currently vacant.

Under the transitional provisions of the Sustainable Planning Act 2009 this matter falls to be determined under the provisions of the repealed Integrated Planning Act 1997[2]. The admitted conflict with the intent of the Industry 2 domain means that for Lewiac to succeed in its appeal it must persuade the Court that there exist sufficient grounds to justify an approval despite that conflict.[3]
[2] Section 819(2) of the Sustainable Planning Act 2009 provides that the appeal is to be decided under the repealed Integrated Planning Act 1997 (“IPA”) as if the Sustainable Planning Act had not commenced.
[3] Pursuant to section 4.1.50(1) of the Integrated Planning Act 1997, the appellant bears the onus of proof.

The issues identified by the parties which fall for consideration in this appeal are:

· amenity relating to noise, air quality and visual amenity;

· traffic;

· need; and

· general town planning considerations including:

(i) conflict with the forward planning provisions of the Scheme, including the Key Strategies:-

(a) Activity Clusters; and
(b) Land Use Things-Industry;

(ii) compromise of the achievement of the DEOs[4];
[4]Desired environmental outcomes.

(iii) conflict with the Industry 2 (Low Impact) domain provisions of the Scheme; and

(iv) whether there are sufficient grounds to justify the decision despite the conflict.

Expert evidence was called by both sides in relation to each of these issues.

The subject site

The subject site[5] includes a total area of approximately 9.4530 hectares. The site has an irregular shape with an approximate 30 metre frontage to Harbour Town Drive to the east and an approximate 330 metre frontage to Compass Drive to the north. It is bounded by a man-made waterway to the west and industrial land uses to the south.[6]
[5]Lot 901 on SP190584 and Lots 1-17 on SP190851.
[6] Experts Joint Statement on town planning issues, paragraph 24, page 7. The experts were Mr Ransom on behalf of the appellant and Mr Vann on behalf of the respondent.

Vehicle access to the site is provided via Compass Drive and Harbour Town Drive. Harbour Town Drive links with Oxley Drive (a north/south arterial road) running along the eastern edge of the Harbour Town precint. Compass Drive links through the existing residential development to the north, and eventually links up with both Pine Ridge Road and Oxley Drive to the north.[7]
[7] Ibid, paragraph 26.

The site is generally level with the exception of an existing earthen bund located along the southern boundary of the site. This bund varies from between approximately 5.6 metres in height at its eastern end to 2.7 metres in height at its western end when compared to the adjacent land to the north. An existing contour step with a height of approximately 3 to 3.5 metres is located to the south of the 17 residential lots which form part of the 2004 ROL[8] approval (Lots 1-17 on SP190851). This contour step causes the main body of the site to be approximately 500 millimetres to 2.5 metres higher than the 17 allotments situated on Compass Drive.[9]
[8] Reconfiguration of a lot.
[9] Ibid, para 27.

Most of the site is level with no trees apart from the southern boundary of the contour step at the rear of the 17 residential lots which include recently planted trees of around 2-3 metres in height, and the earthen bund adjacent to the southern boundary of the site which is covered in a substantial area of vegetation of approximately 5 to 10 metres in height above the top of the earth bund.[10] The site has been filled to a level which is above the Q100 flood level for this locality. There are no issues in the appeal relating to stormwater, soil stability, or any other physical development constraint.[11]
[10] Ibid, para 28.
[11] Ibid, para 30.

The proposal

The proposed development application comprises a number of components including a preliminary approval overriding the Planning Scheme, under section 3.1.6 of the IPA, for the entirety of the site, to facilitate a staged “Aged Persons Accommodation” and ancillary support facilities. A development permit for a Material Change of Use has also been sought in relation to the first stage of the development, and a Reconfiguration of a Lot (ROL) application has also been sought to regularise the existing boundaries of the subject site to accommodate the proposed development.[12]
[12] Ibid, para 31.

The Preliminary Approval component of the application is accompanied by a development code and plans which seek to establish the following development parameters:

· 550 dwelling units;

· building heights between one and seven levels (although some development may technically constitute up to eight stories as defined in the Planning Scheme);

· approximately one dwelling per 171.8 m² of net site area or one bedroom per 85.9 m²of net site area;

· site coverage not exceeding 50 per cent for the entire site; and

· a basic plot ratio of 2:1.

The preliminary approval component of the application is accompanied by a development code and plans which are set out at figure 4 of the Experts Joint Statement on Town Planning Issues.[13]

[13] Exhibit 1, volume 4, tab 35.

The application was also accompanied by plans showing indicative design parameters so as to provide the respondent council with some certainty in relation to the intended built form of the development. These plans identify:

· sixteen distinct stages;

· a variety of housing retirement stock including 123 villas; 260 apartments; 80 serviced apartments and ancillary support services;

· approximately 463 accommodation units;

· community facilities in the form of a community centre, bowls green, pool, gymnasium, dining room, coffee lounge, hairdressers and medical consulting rooms located in the central portion of the site;

· proposed villas primarily located along Compass Drive including maximum building heights of between one and three stories;

· apartment buildings which have a maximum building height of between five and eight stories; and

· a total open space area of between 28,660 m² consisting of bowls green, tennis courts, pool area, bocce lawn, footpath network and bund landscaped area.[14]

[14] Ibid, para 33.

The development proposal also involves an ROL component to create one additional freehold lot and public road dedication to enable the proposal to exist under one title and for access to be provided from Harbour Town Drive. The ROL component will result in the splitting of Lot 901 on SP190584 into two lots and the amalgamation of Lots 1-17 on SP190851. This will result in a net reduction of 16 lots on the application site.[15]
[15] Ibid, para 34.

In his written submissions counsel for the respondent notes that as a consequence of the existence of the established Industry 1 (High Impact) industries on the southern boundary of the site proximate to the five, seven and eight storey buildings a high level of acoustic consideration is required. This will result in smaller and fewer windows along the southern façade, orientation of the balconies along the shielded northern and north-eastern façades, denser glass to the southern façade and screening of the southern and western windows. Mechanical ventilation will also be required to ensure an acceptable level of amenity when external openings are closed.[16] During the hearing of the appeal, senior counsel for the appellant indicated that the recreational facilities depicted in Exhibit 3, Plan LC02-A including the tennis court and the bocce lawn would be removed from the application as a consequence of acoustic impact.
[16] The properties requiring the acoustic design are depicted in Exhibit 1, volume 2 at page 486.

Although the Place Code envisages a maximum of 550 dwelling units the plans show an indicative design parameter of 463 dwelling units with a maximum total site coverage of 39% of the subject site. The development proposal incorporates a total indicative gross floor area of 42,191m² across all 16 development stages. The basic plot ratio of the overall development is 0.44:1. An indicative total of 728 car parks (comprising 529 resident and 199 visitor spaces) are intended to be provided at grade and within basements across the site for the proposed 16 development stages.

Vehicle access is proposed via Compass Drive, which is located to the north of the subject site along with a secondary vehicular access point to Harbour Town Drive through the establishment of a cul-de-sac at the end of Harbour Town Drive. The proposal incorporates a setback of some 28 metres from the Industry Domain to the south. The existing bund is to be maintained and enhanced.[17]
[17]Transcript, p3-31, lines 24-29.

The proposal seeks to provide both independent living and assisted living accommodation and ancillary support services. The residents of the independent living units will be expected to be able to care for themselves. Accordingly the two and three bedroom villas will have full cooking facilities and garaging for cars to encourage independence of those residents. Nevertheless to assist residents to “age in place” they will have access to other village services as required including medical, cleaning and personal assistance.

The proposed 80 serviced apartments would provide a low level of care, below that which would be provided in a nursing home. Residents would be generally in good health, mobile and to a degree able to care for themselves, but would benefit from living in a supported environment with services such as a clinic staffed by full-time nursing staff, the provision of two meals a day in the dining room, or delivered to apartments, with provision for self-service breakfasts and weekly cleaning and laundry services. There would also be a supervisor provided to monitor mobility.[18]
[18]Written submissions of the appellant, paragraph 26.

A very extensive range of ancillary support services and facilities is planned to be centrally located in the proposal so as to create a “community heart” within the development enabling easy access by all residents. Those facilities would include a bar, beauty salon, hairdresser, billiard room, bocce court, bowling green, business centre, cinema, coffee shop, deli, kiosk, community hall, community activities, craft room, domestic cleaning service, other services including a carwash and garden maintenance, golf buggies, indoor heated pool for hydrotherapy, library, lounge area, rooms for visiting medical practitioners, a “nostalgia room” for events, an additional outdoor swimming pool, restaurant, a shuttle bus, tennis courts and workshop for male activities.[19]
[19]Ibid, para 27.

Generally speaking, the development graduates building height from north to south. The majority of the western half of the proposal as planned is low-rise, while the eastern developments located closer to existing commercial, retail and show-room activities would be more dense providing two- and three-storey buildings. Up to eight-storey apartments are planned for the southern side of the development. The orientation of the buildings is generally away from existing industrial development. As previously noted the planned development is separated from the existing industrial development by the grassed and vegetated bund.[20]
[20]Ibid, paras 28 and 29.

The town planning context

The subject site is located within the Industry 2 (Low Impact) domain. On 23 December 2009 the respondent council endorsed a Planning Amendment to amend the Domain designation underlying the 17 residential lots fronting Compass Drive to Residential Choice. The balance 8.279 hectares will retain its Industry 2 designation. This is the most recent expression of the respondent’s planning intent for the subject site and it confirms the Industry 2 designation. The land to the east of the subject site is located within the Fringe Business domain. The land to the north on the other side of Compass Drive is in the Residential Choice domain and the land to the south and to the west is located in the Industry 1 (High Impact) domain.

The assessment regime

Although the preliminary approval component of the application may fairly be said to be akin to a “rezoning”, the relevant considerations under the IPA differ from those which apply to a rezoning application under the repealed Local Government (Planning and Environment) Act 1990.

The development is impact-assessable and therefore is to be assessed having regard to those matters set out in section 3.5.5 of the IPA including the common materials, the planning scheme; State Planning Policies and any Regional Plan. Furthermore, pursuant to section 3.5.11 of the IPA the application is to be decided based on the assessment made under section 3.5.5. Pursuant to section 3.5.14(2) of the IPA the decision must not compromise the achievement of DEOs for the Scheme area, or conflict with the Scheme, unless there are sufficient grounds to justify the decision despite the conflict.

This concept was considered by the Court of Appeal in relation to the legislation in force immediately prior to the introduction of the IPA. Although the Court of Appeal decision in Weightman v Gold Coast City Council & Anor[21] specifically relates to section 4.4(5A)(b) of the Local Government (Planning and Environment) Act 1990 it remains of relevance in this appeal. The Court of Appeal confirmed that a proposal which is in conflict with the planning scheme must be refused in the absence of sufficient planning grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. In order to determine whether or not there are sufficient planning grounds to justify approving an application despite the conflict the decision-maker should firstly examine the nature and extent of the conflict; secondly determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; and thirdly, determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict. The Court recognised that the conflict may be minor or major in nature or indeed anywhere on the continuum between those two extremes.
[21](2002) 121 LGERA 161 at 173.

Legislative tests –“compromise of a DEO, or conflict with planning scheme”

The appellant contends in written submissions that “pursuant to s3.5.14(2) the decision must not compromise the achievement of DEO’s for the Scheme area, or conflict with the Scheme, unless there are sufficient grounds to justify the decision despite the conflict”.

The respondent submits there are two separate tests to be applied. First, if a development would “compromise” a DEO it must be refused without any consideration of the grounds that would support the application. Secondly, if the development would “conflict” with the “planning scheme” then it must be refused “unless there are sufficient grounds to justify the decision despite the conflict”.

The relevant section (IPA s 3.5.14(2)) is in these terms:

“(2) If the application is for development in a planning scheme area, the assessment manager’s decision must not—

(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or

(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”

In my view, the legislation mandates that any development application that would compromise a DEO must be refused regardless of the sufficiency or otherwise of any grounds that would support the application. This is clear from the terms of the legislation which only place the “sufficient grounds to justify the decision” proviso under paragraph 2(b).

This construction is consistent with, for example, the judgment of Skoien SJDC in Brown v Brisbane City Council where his Honour noted in relation to that subsection:

“While paragraph (b) enables the assessment manager to consider whether sufficient planning grounds exist to approve an application which “conflicts” with the planning scheme, no such entitlement is given by paragraph (a) when the application is considered to “compromise” the achievement of a desired environmental outcome (“DEO”)”.[22]

In the same judgment his Honour referred to the fact that:

“[A] consideration of the existence of sufficient planning grounds is not afforded when para (a) applies.”

[22]Brown v Brisbane City Council [2005] QPEC 26.

Any DEO, then, may not be “compromised” in any development application. However where they are also incorporated into planning schemes, as in this appeal, they will also form part of a planning scheme for the purposes of “conflict with the planning scheme”. As such, if a development is said to interfere with a DEO it will need to be considered in two ways:

1. Does the interference lead to a conclusion that the outcome would be “compromised”? If so, the development must be refused.

2. If the interference would not amount to a “compromise” of the DEO then such interference will be considered as part of the nature and extent of conflict with the planning scheme (and considered against any grounds that would support the application).

The test for ‘compromise’ of a Desired Environmental Outcome (“DEO”)

As any development application that would “compromise” a DEO must be refused, close judicial attention has been given to the meaning of the term. The appellant cites Brown v Brisbane City Council[23] (“Brown”) where Skoien SJDC decided that it meant that the outcome will be threatened, imperilled or endangered in terms of the planning scheme area – i.e, the shire – as a whole:

“[T]he Explanatory Notes to IPA provide, in relation to section 3.5.14, that an impact assessment decision must not “threaten” the achievement of a DEO. That accords with the most appropriate definition of “compromise” in the SOED which is “imperil” or “endanger”. So for a development proposal to compromise the achievement of a DEO, it must be of such a nature it will clearly threaten, imperil or endanger the planning outcome which is sought by the DEO. Relevantly that planning outcome is expressed by para (a) to be one for a “planning scheme area”… rather than for a specific site or locality, or, as is the case for para (b), the planning scheme generally. Further, as a consideration of the existence of sufficient planning grounds is not afforded when para (a) applies it is obvious that the provision contemplates a threat to the DEO which is so serious that no regard to ameliorating planning grounds can be had.”

[23] (2005) QPELR 629.

Brown
contains two propositions. First, that the relevant sense in which

“compromise” is used is to mean to threaten, imperil or endanger. Second, that such a threat, imperilment or endangerment must relate to the entirety of the planning scheme area (the “entirety” aspect).

The appellant also referred to the decision of Alan Wilson SC DCJ in Koerner & Ors v Maroochy Shire Council, Barnes & Ors[24] which elaborated on the “Shire-wide” interpretation:

“For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised. The first part of the section, concerning DEOs, looks to the macrocosm of the entire planning area and the possibility that the “vision” for it is, as a whole, adversely affected.”[25]

[24] [2003] QPEC 54.

[25]At p8, paragraph 25. This decision was followed in Ross Walmore Property Pty Ltd v Maroochy Shire Council [2008] QPEC 050: “there would…have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a shire wide basis had plainly been compromised.” (Robertson DCJ).

Both sides refer to a different perspective taken by Brabazon QC DCJ on the “entirety” issue in Webster v Caboolture Shire Council[26] which departed from the view expressed in Brown and Koerner that any “compromise” must relate to the entirety of the planning scheme area. Brabazon DCJ instead concluded that:
[26] [2008] QPEC 82.

“In my respectful opinion, the statutory words in s 3.5.14(2)(a), “desired environmental outcomes for the planning scheme area” do not mean that the achievement of a DEO “on a shire wide basis” is the correct application of the statute”[27]
[27] At paragraph 106. See also Handley v Brisbane City Council [2005] QPELR 80; [2004]
QPEC 39 which followed Brown.

His Honour went on to list a number of persuasive reasons against reading that any compromise must relate to the whole of the planning scheme area. Amongst the persuasive reasons his Honour noted are these considerations:
·the section does not include such an expression;

·“the desired environmental outcomes for the planning scheme area” is equally sensibly read as a simple reference that the relevant DEOs as those specified for the area, and not some other area;

·DEOs may themselves only relate to a particular locality, a particular thing, or small part of the planning scheme area (or indeed areas outside of the planning scheme) and adding a judicial gloss of a “shire wide” compromise would defeat the protection against compromises of such outcomes as the legislation intends.

His Honour preferred to simply ask the question of whether the achievement of the DEO was “threatened”, “exposed to risk or danger”, “imperilled” etc., without any implication that it must be a shire- or city-wide compromise.

The appellant noted that the Court of Appeal has considered whether any “compromise” needs to relate necessarily to the entire planning scheme area.[28] In Aldi Stores v Redland City Council[29] the Chief Justice stated that:

“I would however prefer the Webster approach. The construction of such schemes should not be governed by notions not expressed, or not necessarily implied…”[30]

The Chief Justice, with the agreement of Holmes and Muir JJA, preferred the Webster approach of paying attention to the term of each particular DEO to determine the scope of “threats” rather than add the “shire wide” implication put forward in Brown. In oral submissions the appellant conceded that any “compromise” with a DEO need not be “shire wide” as suggested in Brown.[31]

[28]ALDI Stores (A Limited Partnership) v Redland City Council [2009] QCA 346.

[29] [2009] QCA 346.

[30] Ibid, p6, paragraph 19.

[31]Transcript, p6-12, lines 12-16.

That a DEO is “for a planning scheme area” sensibly reads as simply referring to what DEOs are relevant. Courts are required to interpret statutes in a manner that best achieves their purpose.[32] It is clear that the intention of IPA s3.5.14(2)(a) demonstrates a primary purpose of ensuring the achievement of DEOs in planning decisions. The Webster approach invites a consideration of the scope and content of each DEO on its terms in order to assess “compromise”. If a DEO is general in nature and applicable to the entire planning area then any “compromise” to its achievement will require consideration of a “shire wide”, or entire, effect on the planning scheme area at any event. However, if a DEO is sectional or local in its terms, it would defeat the purpose of the legislation to require a “shire wide” or “city wide” test.
[32]Acts Intepretation Act 1954, s 14A.

The appellant, in oral submissions, correctly noted that Brown, was still good law for the proposition that the notion of “threaten, imperil or endanger” was the relevant sense in which “compromise” was to be understood.

Less attention has been given in the authorities to what level of “threat” amounts to a “compromise”. Does it require a catastrophic, or complete interference, with the outcome, or merely a substantial and appreciable worsening of the desired outcome? It can be suggested that the terms of a particular DEO should, as well as providing the geographical scope for the outcome, determine what level or nature of threat would amount to a “compromise”. For a DEO such as the “minimisation of airborne pollution” it would be inappropriate to suggest that any sort of development producing airborne pollution would amount to a compromise. An evaluation should be undertaken to determine tolerable or reasonable levels of airborne pollution in deciding whether a particular DEO is “compromised” by a specific development.

Whether an interference to a DEO amounts to a “threat” consitituting a “compromise” should be determined against the nature of the DEO. A DEO that is to protect unique, specific and essential outcomes may be compromised by specific or sectional developments. The same may be said for DEOs that protect finite resources that cannot be reclaimed easily or at all. Other DEOs may be capable of tolerating a considerable amount of interference and throughout a planning scheme area before it could be said they are “compromised”.

In summary, then, for a DEO to be “compromised”, its achievement must be threatened, imperilled or endangered by a proposed development. In determining what constitutes a “threat”, a comparison should be undertaken between the interference occasioned by the development and the scope and nature of the DEO.

Interference with the Planning Strategy of the Gold Coast City Council?

Both the appellant and respondent have referred to authorities dealing with particular considerations said to arise when it is claimed that a development application would interfere with the broad planning strategies of a planning authority, or intended outcomes of a planning strategy.

What is frequently taken as the starting point for the various authorities on this point is the following statement by Quirk DCJ in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors[33] (“Elan Capital”):

“It should not be necessary to repeat it but this Court is not [a] Planning Authority… It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority … has… adopt[ed]… Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to ‘cut across’ in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.”[34]

[33] [1990] QPLR 209.

[34] At p211.

Also relevant is an earlier statement of Carter DCJ (as he then was) in Sheezel & Anor v Noosa Shire Council[35] (“Sheezel”) where his Honour stated:
[35] [1980] QPLR 130

“In the context it is useful to bear in mind what Mylne D.C.J. said in Canine Caterers Pty Ltd v Torres Shire Council 33 L.G.R.A. 182 at 188:—

'The function of the Court is not to conduct an overall review of the planning scheme or to amend the planning authority's zoning.'

That is in my view a salutory reminder of the role of the Court in this context. The Court cannot in an appeal such as this conduct an overall review of the town planning scheme... Nor indeed can the Court be expected to have an encyclopaedic knowledge of all matters affecting planning in the area of a particular Local Authority. The enquiry before it is necessarily limited although the material placed before it should be sufficiently comprehensive to permit of a proper adjudication in the individual case.”

Also in support of this proposition in Elan Capital, Quirk DCJ cited an earlier holding in Brazier v Brisbane City Council[36], where Mylne DCJ held, on the facts of that case:

“It must be assumed that there was an overall review of the whole scheme by those entrusted with the planning with many advantages which are not possessed by the Court such as details of future development and the preservation of a proper balance of uses in the town plan…”[37]

[36] (1972) 26 LGRA 322.

[37] At p327.

As the respondent points out, the view expressed by Quirk DCJ in Elan Capital was subsequently affirmed by the Court of Appeal in Holts Hill Quarries P/L v Gold Coast City Council[38] (“Holts Hill”) where it was cited with apparent approval, the Court[39] describing it as “a commonsense proposition for which no authority was required”.[40]
[38] [2000] QCA 268.
[39] de Jersey CJ, Thomas JA & Helman J.
[40] At p12, para 46.

Later, in Grosser v Council of City of Gold Coast[41] (“Grosser”) White J, with whom Thomas and White JJA agreed, noted the approval of Elan Capital by the Court of Appeal in Holts Hill, and stated:

“The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach.”[42]

The Court referred to the passages from Sheezel and Brazier referred to above. It was held that failing to take into account a Strategic Plan for the area as an important factor led to an impermissible “cutting across” of Council’s planning strategy and exceeding this Court’s jurisdiction.[43]

[41] (2001) 117 LGERA 153.

[42] At p163, paragraph 38.

[43] At p166, paragraph 47.

A separate line of authority, speaking generally to the importance of regard to the planning strategies of planning authorities was summarised by Jerrard JA in Leda Holdings P/L v Caboolture Shire Council & Ors:[44]

“[A]uthorities were cited to show that conflict between a development application and strategic plan was often fatal to the application, even prior to the introduction of s 4.13(5A) and its counterparts in 1992. Those decisions included McLennan v Maroochy Shire Council [1990] QPLR 113 (“A Strategic Plan is of importance when assessing a rezoning application as it is a forward planning strategy, for the future development of a local authority area.”); Duncombe v Caboolture Shire Council [1990] QPLR 257 (“As has been said repeatedly, this Court is not the planning authority for this area and it is my view that it would be inappropriate for the Court to approve a proposal which is squarely in conflict with the formally expressed planning strategies of that authority.”); McPherson v Caloundra City Council [1990] QPLR 272 (“the Strategic Plan and the Strategic Plan Map are legitimate planning tools adopted by a Local Authority for the future planning of the Local Authority Area. The Local Authority in those circumstances is planning ahead and endeavouring to direct its future planning process in an orderly manner.”); Beck v Atherton Shire Council [1991] QPLR 56 (“The Court has however, repeatedly stressed the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the Strategic Plan is. There may be cases where a departure from the Strategic Plan could be justified; where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on the basis that was and remains invalid”); Bowden & Ors v Brisbane City Council & Anor [1991] QPLR 271 (“The significance of strategic planning, particularly on rezoning applications, has been recognised by the Court on many occasions. Since the forward planning documents of a Local Authority are indicative of the intent of a planning authority as to the future preferred form of development that it sees for its Local Authority area, considerable weight ought to be given to the provisions of forward planning documents of a Local Authority.”).” (footnotes omitted).

[44] [2006] QCA 271.

More recently, in Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors[45] (“Australian Capital Holdings”) the Court of Appeal has confirmed the correctness of the authorities considered by Jerrard JA in Leda.[46]
[45] [2008] QCA 157.
[46] See at p16-18, paragraphs 54-57.

The respondent, in written submissions, also cites Brabazon QC DCJ in Ross Nielson Properties P/L v Caloundra City Council & Ors[47] at paragraphs 6-7 of his Honour’s judgment which echoes the concerns cited in this line of authorities and emphasised Muir JA’s reference to “the importance of local authorities’ planning strategies and strategic plans”.[48]
[47] [2008] QPEC 55.
[48] At p9, paragraph 56.

The appellant, in written submissions, takes issue with the applicability of Elan Capital and Grosser to the present case.

In written and oral submissions, the appellant contends that Elan Capital was a case where the “Coty[49] principle” had been applied.[50] However, the Court of Appeal has confirmed the applicability of Elan Capital to a non-Coty case.[51] The Court simply noted that it was immaterial whether the source of the proposition had been confused because the Elan Capital proposition was, in a non-Coty case, regardless, applicable as a “commonsense proposition for which no authority was required”[52].
[49] From Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.
[50] Transcript, p6-13, lines 42-53, and written submissions of appellant at p13, paragraph 44.
[51]Holts Hill Quarries P/L v Gold Coast C C & Ors [2000] QCA 268 at p12, paragraph 46.
[52]Holts Hill Quarries P/L v Gold Coast C C & Ors [2000] QCA 268 at p12, paragraph 46.

Senior counsel for the appellant also argues that Grosser should be applied with care.[53] It was submitted that Grosser in fact confirmed that this Court must, when faced with a conflict between a proposed development and a planning scheme or zoning, not consider the correctness or appropriateness of the planning scheme or zoning but instead simply set about the task of determining whether the conflict between the planning scheme is justified in a particular case. This submission can be accepted.
[53] See written submissions of appellant at p14, paragraphs 47-50.

It was submitted by the appellant that to read the Elan Capital and Grosser propositions regarding “cutting across” planning strategies, or that Courts should exercise restraint and self-limitation, would be to deprive the Court of the authority that the relevant legislation has commanded it to exercise, which is to consider the merit of developments and approve them if they are sufficiently justified, despite any conflict with planning strategy. This submission correctly draws attention to the specific way in which Elan Capital was cited and applied in Grosser. It is not a proposition that the Court should defer to planning strategies at all events, which would indeed effectively render this Court's role otiose. Elan Capital and Grosser, as well as the cases of Holts Hill and Australian Capital Holdings seem clearly enough to merely remind this Court that it has no jurisdiction to disregard planning strategies simply because, in a particular case, their appropriateness is not apparent. They note that a Court must take planning strategies seriously, and acknowledge the primary role of a planning authority in deciding strategy for an entire planning area. Where a proposed development might be said to “cut across” a planning strategy by effecting its implementation in a way which squarely affronts a strategy, or contradicts important and specific decisions about land use domains, as in the present case, then Elan Capital and the cases following it should be understood to require this to be treated as a conflict with the planning strategy of a serious nature and of considerable extent. But it can be accepted, in favour of the appellant, that this should not divert or distract the Court from its task in fulsomely considering the benefits of a proposed development.

It can also be accepted that planning strategies must be read as a whole and as intending to achieve balance between outcomes.[54] The corollary of what was said in Elan Capital and the cases that follow it about the importance of planning strategies can also be marshalled in favour of a development where its beneficial aspects would promote the outcomes identified as important in a planning strategy.
[54] Written submissions of the appellant, p12, paragraph 41.

In summary, then, it can be accepted that a Court cannot, for itself, decide that a planning strategy is not applicable or appropriate. Once a conflict with a proposed strategy is identified then a Court is required to consider the nature and extent of the conflict and assess it against what is favourable about the development. An approval that squarely conflicts or might appear to “cut across” a specific considered decision contained in a planning strategy should be approached with restraint and self-limitation. However, such restraint is merely an indication of the care to be taken in assessment and not a denial of jurisdiction to approve such a development. In particular, aspects of such a development that promote the outcomes identified as very important within the same strategy should be regarded highly in favour of the development.

Conflict with the forward planning provisions

The Planning Scheme, Part 3, Planning Strategy, sets out the strategic planning for Gold Coast City. This is a broad city-wide strategy adopted by the Scheme to achieve ecological sustainability. The Planning Scheme relevantly provides as follows:

“…

The Planning Strategy will therefore be used to assist in assessing application for Impact Assessment by providing the Assessment Manager with a broad context within which to determine whether there are sufficient planning grounds to justify a decision.

The Planning Strategy draws upon the DEOs to provide a specific outline with over three strands of ecological sustainability (i.e. ecological, economic and social) had been brought together within the local context.

The Planning Strategy, in combination with the DEOs, may influence decisions on development applications to the extent that a decision in an application should not compromise the Planning Scheme’s achievement of ecological sustainability. The Planning Strategy will also be used to assist in assessing applications for Impact Assessment by providing the Assessment Manager with a broad context within which to determine whether there are sufficient planning grounds to justify the decision.”[55]

[55] Ex.9, Tab 2, Chapter 1, Context para 4.

The Key Strategies are set out in Planning Strategy Part 3. Chapter 5 provides relevantly:

“Chapter 5 ACTIVITY CENTRES

The principal concentrations of activity in the City include the major catchment based service centres where retail, office and government functions are located, and the clusters of specialised activities that are not necessarily related to catchment areas. The first group includes traditional town centres and shopping complexes, while the second contains major industrial areas, universities and tourist nodes. These Activity Centres are the focus for employment and investment activity within the City. They are important as drivers of the local economy and as the locations for the delivery of important services. The Activity Centres are also the location of essential business, cultural and social interaction.

The purpose of this strategy is to provide a framework for the effective delivery of services, continuing investment and the generation of new employment in Gold Coast City’s Activity Centres.

1.0 KEY ISSUES

…

Centres may be divided into two main groups, to highlight the relationship between consumption based activity located in the catchment based centres, and production based activity located in the Activity Clusters. Gold Coast City’s economy is well served in consumption functions and less well represented in terms of productive activity. This is not unexpected, as Gold Coast City’s tourism industry and the lifestyle/retirement component of the population are both heavily reliant on consumption based activity.

…

The strategy seeks to deliver benefits for the community in promoting selected functions in particular centres.”[56]

[56] Ex.9, Tab 2, para 3, p.9 of 51.

The subject land is allocated in Planning Strategy Map PS-4 to an Industrial Employment Cluster.[57]
[57] Ex.9, Tab 10, Second Map.

The concept of Activity Clusters recognises that benefits accrue to firms which locate in the same area, in terms of the services that they can attract and support and also in terms of the linkages and opportunities that may arise from their interaction.[58]

[58] Ex.9, Tab 2, para 3, p.12 of 51, para 1.6.

Activity Cluster Policy 2 is:

“A recognition and facilitation of the development of Activity Clusters within the city as major locations for employment, investment and production activity.

2.2.1 Explanation

The identified Activity Clusters present the best prospects for new employment and continuing investment in the City. These are the areas that are likely to be the most productive in terms of wealth generation for the City. Land use intent and development processes should encourage the further growth and emergence of these Activity Clusters.

2.2.2 Planning Objective to Support AC Policy 2

AC2.1: to support and encourage the co-location and agglomeration of industrial and commercial activity into identifiable precincts.

…

AC2.4: to promote the consolidation and redevelopment of Activity Clusters for uses which are consistent with the individual focus of each cluster.

…

AC2.6: to ensure that land uses within Activity Clusters are compatible.”[59]

[59] Ibid, p.13 of 51.

The individual Activity Clusters identified on Planning Strategy Map PS-4 are further described in the Land Use Themes Division. Division 3 provides relevantly:

“Chapter 8 INDUSTRY

This Land Use Theme acknowledges the need to provide viable serviced industrial land that is protected from non-industrial uses that could diminish its value in supporting the effective implementation of the Activity Centres Strategy and Council’s Economic Development Strategy. It indicates Council’s preferred locations and broad planning intent for industrial development, including manufacturing, processing, repair and storage. This Land Use Theme does not include extractive or waterfront industries.

1.0 PLANNING INTENT

The City’s potential industrial development is yet to be realised, and there is significant scope for major manufacturing and processing operations to be accommodated, without compromising important social and environmental assets. The Yatala/Staplyton area has been specifically designated for major industrial and economic development, and significant potential exists for further investment in other industrial areas.

Development in this Land Use Theme are will be expected to ensure that land remains available for legitimate industrial development and is not eroded by incompatible non-industrial developments, which could otherwise be located in other Land Use Themes.

The Industry Land Use Theme acknowledges the potential for industry to cause impacts on residential and other non-industrial activities. Accordingly, the spatial location of the various types of industrial activity is intended to avoid or reduce this impact. Additionally, appropriate environmental controls will be applied to industrial developments, including the provision of vegetated buffers, and industrial traffic will be encouraged to use appropriately designated road networks that avoid residential streets.”[60]

[60] Ex.9, Tab 3, Division 3, p.5 of 18.

The extent to which the proposal conflicts with the forward planning provisions of the Scheme is very much in issue in this case.

Compromise of the achievement of the Desired Environmental Outcomes

The respondent Counsel contends that the decision to approve the proposal is likely to compromise the achievement of the following Desired Environmental Outcomes (DEO’s). The DEO’s in Part 2 provide context for the Key Strategies and Land Use Themes in Part 3 and subsequently for the Scheme’s Codes.[61] They are expressed in terms of broad policy outcomes which seek to achieve ecological sustainability. I accept that a balancing exercise is anticipated, given that each DEO is sought to be achieved to the extent practicable having regard to each of the other DEO’s.[62]

“1.0 DEO ECON.1

The provision of an efficient land use pattern that is conducive to business activity, and attractive for new business opportunities, particularly those that complement existing or emerging business activity and those that offer opportunities for sustainable new businesses which diversify the existing economic base of the city.

[61] Part 2, div 1, Chap 1.

[62] Ibid.

1.2.1 Planning Objectives to Support DEO Econ.1

Econ.1.1: to ensure the supply of adequate land that can be efficiently developed in appropriate locations to implement the City’s Economic Development Strategy

Econ.1.2: to provide opportunities for the expansion of existing businesses and the establishment of new businesses in the following industry groups which have been identified as having significant prospects:

· lifestyle related industries;

· information technology and telecommunications;

· cultural industries (including film, TV and multimedia);

· education and training;

· construction and building

· marine related industries (including craft and components of manufacturing);

· general manufacturing industries (including food processing);

· transport, storage and distribution industries; and

· environmental industries (including waste treatment and recycling equipment and services)

· extractive industry (including innovation in the production of aggregates such as manufactured sand.”[63]

[63] The DEO is further addressed in the Key Strategies for Activity Centres particularly with respect to the Industrial Activity Cluster in which the subject land is found.

Clause 1.3 of the Planning Measures to Support DEO Econ.1 makes it clear that the DEO will be largely achieved through the provisions of the Planning Scheme relating to Industry 2.

The appellant submits that although the respondent Council asserts conflict with this DEO, the evidence does not justify a conclusion to that effect. It is contended by the appellant that the most efficient use of the site is for the proposal rather than low intensity, low employment, Industry 2 development. It is submitted that the proposal will be more conducive to business activity in the nearby shopping centre (at Harbour Town). Further, given its traffic difficulties, and lack of prominence, Industry 2 development of the site is not attractive to new business. The respondent contends that, notwithstanding the attractiveness of these contentions, it should not be overlooked that the DEO is designed to ensure an adequate supply of land for Industry 2 purposes and to promote the availability of land to support local businesses. Clearly, if the subject land was used for the purposes of a retirement village, such use would permanently alienate the land from availability for the purposes of the DEO. In this sense, the respondent contends, the proposal is fundamentally contradictory to the DEO and would compromise its achievement.

I do not understand the respondent Council to suggest that there exists any compromise of or conflict with DEO Econ.2. This DEO seeks enhanced employment and investment opportunities through better integration of residential and business activity, whilst protecting residential amenity. Supporting objectives include facilitating mixed use developments within Activity Centres and Activity Clusters where an “acceptable” level of residential amenity can be achieved; and facilitating increased residential densities in the area surrounding the Activity Centres and Activity Clusters.[64] The respondent contends that the proposal contributes towards the achievement of the DEO to a greater extent than would the use of the subject site for Industry 2 purposes.
[64] Objectives Econ.2.1 and 2.3.

DEO Econ.3 provides as follows:

“3.0 DEO ECON.3

The provision of a viable system of Activity Centres (based service catchments) and Activity Clusters (based on the locational needs of productive business sectors) to ensure that the City’s communities have access to a wide range of suitably planned and located goods and services.

3.2 Planning Objectives to Support DEO Econ.3

…

Econ.3.2: to facilitate the development of a range of specialised Activity Clusters that maximise the economic advantages resulting from the agglomeration of complementary business activities in desirable locations.

Econ.3.3: to maximise the viability of all Activity Centres by discouraging incompatible development within the centres and by precluding the development of competing new centres that would erode the catchments of centres within the preferred Activity Centre system.

Econ.3.4: to facilitate the orderly and efficient development of Activity Centres.”

It is intended to achieve the DEO through the provisions of the Planning Scheme including the Industry Domain Provisions.[65]
[65] Clause 3.3.

Because Harbour Town encompasses both a sub-regional Activity Centre, as well as an Industrial Employment Cluster (Activity Cluster), some tension in terms of competing objectives within the Scheme is identified by the appellant. Whether there is unlikely to be any economic advantage to the Cluster which would accrue from Industry 2 development of the site, particularly given its dislocation from other industry is in issue. So too is the question whether the use of the site for the proposed retirement resort is likely to enhance the viability of the Activity Centre and therefore likely to facilitate the orderly and efficient development of the Activity Centre. In particular, the appellant contends, the traffic issues resulting from industrial development are likely to militate against the orderly and efficient development of the Activity Centre. These issues require consideration of the view expressed by Mr Vann that the provision of Industry 2 use on the subject site would complement both the adjoining centre and the Industry 1 area, based on the locational needs of the existing Industry 2 type uses which are considered best located in locations readily accessible day-to-day by the surrounding areas.[66]
[66] Joint Expert Report, Ex.1, Vol 4, Tab 35, p.17, Comments of Mr Vann.

It should be noted, however, that the area is specifically recognised in Planning Strategy Map PS-4 as part of an Industrial Employment Cluster forming one of the specialised Activity Clusters referred to in the DEO and Strategies. Its removal in favour of a retirement village residential use would compromise the achievement of the DEO. Indeed, it is fundamentally in conflict with Objective Econ.3.3 as it introduces incompatible development both on and adjacent to industrial land. The difficulty confronting the respondent Council in this regard, however, is that the traffic issues likely to be created by industrial development on the subject site cannot be said to facilitate the orderly and efficient development of the Activity Centre as proposed by Econ.3.4 of the DEO. This will be further considered in due course.

DEO Econ.6

DEO Econ.6[67] intends that the use and safe operation of existing and committed infrastructure is maximised and future infrastructure is provided efficiently. Supporting strategies involve the maximisation of the value of existing and planned infrastructure facilities by consolidating appropriate development in well-serviced areas; and maximising accessibility to social infrastructure facilities such as health, education, recreation, entertainment and community support services. The appellant submits that the subject proposal positively achieves the DEO, and that Industry 2 development would compromise its achievement. It is not necessary to reach a concluded position with respect to either of those contentions as for present purposes, it is sufficient to note that the respondent does not suggest that the DEO would be compromised by the proposal.
[67] Part 2, div 1, Chapter 3, s6.

DEO Soc.2[68]

[68] Part 2, div 1, Chapter 4, s2.0.

DEO Soc.2 encourages the location and design of residential areas and support facilities to maximise accessibility to community facilities and places of employment, and to maximise opportunities for community interaction. The “explanation” for the DEO provides that access to community facilities and employment opportunities is a fundamental component of social well-being. The objectives in support of the DEO include the facilitation of an efficient urban form that offers high levels of accessibility between residential areas and Activity Centres and Activity Clusters; the maximisation of residential densities in and around Activity Centres and Activity Clusters where an “acceptable” level of amenity can be achieved; and the maximisation of opportunities for social interaction through the use of shared and multiple use areas and facilities. In this regard, the appellant again suggests that the proposal positively achieves the DEO and its objectives, in direct contrast to the suggested Industrial 2 use of the site. It is sufficient for present purposes to simply observe that the respondent does not submit that the proposal would compromise the achievement of the DEO.

DEO Soc.3

DEO Soc.3[69] is “The provision of a range of diverse housing choice, including affordable housing, that is responsive to the changing demographic structure of the city’s population and promotes equity and access to goods and services”. The explanation to the DEO specifically acknowledges that the resident population is aging. Demands are acknowledged as changing dramatically as the local population ages. The DEO is intended to assist in diversifying housing choice by introducing opportunities for the development of a wide range of dwelling types and densities in appropriate locations. This enables the changing accommodation needs for local communities to be met in the local area, and a greater social mix to be achieved. It is intended that increased densities are to be provided close to community and transport facilities. The proposal clearly achieves the DEO and its objectives and the respondent does not contend to the contrary.
[69] Part 2, div 1, Chapter 4, s3.0.

DEO Soc.5

DEO Soc.5 as relevant provides as follows

“5.0DEO SOC 5

The maintenance of residential amenity through the minimisation of any environmental harm or adverse social impacts occurring from the construction and operation of commercial, community, tourism, industrial and extractive industry activities.

5.1 Explanation

…

The Planning Scheme is able to provide considerable influence tin this regard. Initially, it is able to position the various land uses so as to separate conflicting activities, through the Land Use Themes, domains and LAP provisions. It is then able, through the application of the various codes for assessing development proposals, to further minimise potential conflicts through controls on construction activity, the design and layout of the development and the nature of its operations.

5.2 Planning Objectives to Support DEO Soc.5

Soc.5.1: to ensure that land uses that have the potential to conflict with residential amenity are adequately separated and/or buffered from residential areas.

…

Soc.5.4: to ensure that new residential development does not unreasonably constrain productive or community facilities or significant transport infrastructure, including extractive resource haulage routes, by locating in areas where reasonable expectations for residential amenity, cannot be met.”

DEO Soc.5[70] intends the maintenance of residential amenity, through the minimisation of any environmental harm from the construction and operation of activities, including industrial activities. The explanation identifies that the DEO is initially achieved by separating conflicting activities through Land Use Themes, and Domains, and that it is then able, through the application of Codes, to further minimise potential conflicts. Objectives in support refer to ensuring adequate separation and/or buffering; and that new residential development does not unreasonably constrain productive facilities. It was submitted by the appellant that the DEO refers to the minimisation of environmental harm occurring from the operation of industry. Further, the buffering between the proposed development and the existing industry is appropriate. The appellant contends that the DEO and objectives would also apply equally to considerations of impact between Industry 2 development of the site and existing and future residential development nearby. However, as the respondent submits, the proposal involves the introduction of a sensitive residential use, a Retirement Village, to a location planned for industry and adjacent to existing Industry 1. This, it is submitted, is fundamentally in conflict with the DEO.
[70] Part 2, div 1, Chapter 4, s5.0.

The respondent suggests that Mr King may have underestimated likely noise impacts by adopting a source sound level of 104db whereas the appellant’s consultants, Belleng VDM, when preparing the acoustic report to accompany the application measured a sound pressure level of 116db from the activity of loading a truck. Given that industry is defined to include “the manufacture, production, processing, repair or storage of any article, material or thing”[71] is Self Assessable in the Industry 1 Domain, it is submitted that it is likely that even noisier activities than those measured by Belleng VDM will occur on the subject land.
[71] Ex.9, tab 4, p7 of 33.

Tables 3.2A and 3.2B[72] prepared by Ms Richardson adjust Mr King’s Tables 1 and 2 by 2dB for tonality and impulsivity. A further 12dB would have to be added to the daytime and evening columns for each parameter to reflect the sound pressure level measured by Belleng VDM. The respondent submitts that this would result in significant exceedances of the EPA noise goals. It follows that if the noise source levels experienced are higher than those measured by Belleng VDM, the exceedances will be correspondingly greater.
[72] Ex. 10, p 23.

The respondent suggests that Mr King has wrongly assumed that the industry on the Industry 1 land would have to meet Performance Criteria PC13 and PC14. The Scheme provides in Part 5 Domains Division 1 Introduction to Domains[73];

“The place code is set out in table format, with Performance Criteria in the left hand column and associated Acceptable Solutions in the right hand column. Any self assessable development must comply with the Acceptable Solutions of those Performance Criteria identified as relevant to self assessable development. Any code assessable development must comply with the Performance Criteria in order to be consistent with the Planning Scheme. Any impact assessable development must comply with the relevant parts of the whole Planning Scheme. Development that is consistent with the Acceptable Solutions of the code is considered to have complied with the code’s requirements.”

[73] Ex. 9, tab 5, p.6 of 7.

The Industry 1 (High Impact) Domain place code[74] provides in Clause 5.2.2;

“5.2.2 Performance Criteria PC1-PC22 apply to all code or impact assessable development in this domain. For development identified as self assessable in Clause 3.0, only the Acceptable Solutions to Performance Criteria PC1-PC4 apply.”

[74] Ex. 9, tab 7, p7 of 12.

PC 13 and PC14, then, do not apply to the Self Assessable development listed in Table 3 on p1 of 12. These uses include Industry and Motor Vehicle Repair which clearly have significant potential to generate noise.

In his written submissions, Counsel for the respondent suggests that common sense and human experience establish that even with the best attempts of the operators, industries generate impacts on surrounding uses which are the source of legitimate complaint. The respondent submits that it is highly likely that the introduction of new residential development on the subject land will unreasonably constrain the productive industrial land. In particular, the potential noise and air quality impacts from the Industry 1 (High Impact) uses are said to be likely to constrain the use of the Industry 1 land. The respondent contends that it is almost inevitable that there will be complaints in respect of the Industry 1 impact on the Retirement Village given the exceedances over the EPP goals which will occur. The DEO seeks to avoid this situation. The proposal would, it is submitted, compromise the achievement of the DEO. However, it should not be overlooked that the DEO and Objectives would equally apply to considerations of impact between Industry 2 development of the site and existing and future residential development nearby.

DEO Soc 6[75]

[75] Part 2, div 1, Chapter 4, s6.0.

DEO Soc 6 pertains to the city’s transport system. The supporting objectives include ensuring that land use patterns support planned transport infrastructure. I accept that this is likely to be achieved by the proposal and may well be compromised by Industry 2 development of the site.

Planning Strategy – Key Strategies and Land Use Themes

Part 3 contains the Planning Strategy which is the broad city-wide strategy to achieve ecological sustainability. It contains two major components namely 15 Key Strategies that apply across the entire City, and 18 Land Use Themes that apply to particular parts of the City.[76]
[76] Part 3, div 1, Chapter 2.

The Key Strategies reflect the objectives of the DEOs and include;

(a) GM Policy 2 (relating to population growth management) of achieving the efficient use of land identified for residential purposes. Its objectives include encouraging infill development, and mixes of medium and high density development where appropriate, and increased residential densities in town centres, commercial areas and transport nodes where it does not conflict with the principal functions of the location[77];
[77] Part 3, div 2, Chapter 3, s2.2 and GM2.1 and 2.4.

(b) Infrastructure Planning and Provision Policies[78] which generally seek to maximise the efficient use of infrastructure;
[78] Part 3, div 2, Chapter 4.

(c) Activity Centres Policies which relate to both Activity Centres and Activity Clusters. They include the promotion of residential development within and close to Activity Centres[79]; and the facilitation of Activity Clusters as major locations for employment and production activity[80], including collocation of Industrial activity, enhancing movement and accessibility, and access in Clusters.
[79] Part 3, div 2, Chapter 5, s2.0, AC1.10 and 1.11.
[80] Part 3, div 2, Chapter 5, s2.2.

(d) Housing Policies which include “particular housing needs” including aged accommodation. H Policy 1 is to achieve a range of housing options that are closely matched to the needs of existing nad future households; and H Policy 2 is to facilitate provision of housing designed for the aged and disabled in a range of locations throughout the urban area – particularly “close to services, transport, shopping and recreation facilities”, and providing opportunities for higher levels of care when circumstances arise[81]; and

(e) Transport Policies which include facilitating higher density housing close to existing and proposed public transport[82].

[81] Part 3, div 2, Chapter 8.

[82] Part 3, div 2, Chapter 9, Tr Policy 3 and Supporting Objectives.

The Land Use Themes are ‘indicative’ of the types of Domains that could be expected in the various areas of the City[83];
[83] Part 3, div 3, Chapter 1.

(a) The Urban Residential provisions[84] repeat the intention that a diverse range of dwelling types will be provided, with medium and mixed densities encouraged within reasonable proximity to the major activity centres. Development is to support planned transport infrastructure;
[84] Part 3, div 3, Chapter 7, s1.0.

(b) For the Industry Land Use Theme there is an intention that land remains available for legitimate industrial development[85]; and

(c) The Major Activity Centre provisions identify Harbour Town as a sub-regional centre. Such a centre is intended to include medium density residential development.[86]

[85] Part 3, div 3, Chapter 8.

[86] Part 3, div 3, Chapter 12, s4.0.

The Domains

No specific domain is identified in the Planning Scheme as suitable for development of retirement facilities, although they are code assessable within the Tourist and Residential, and Residential Choice Domains.

The Industry 2 (Low Impact) Domain is intended to;

“…provide secure land for industrial, manufacturing and storage activities required to meet the industrial needs of the City, which do not have a substantial adverse impact on the amenity of the surrounding area. it is intended to provide opportunities for the establishment and expansion of industrial activities, with potential to create new employment in the City and to earn increased export income.

The primary purpose of this domain is to accommodate those industrial uses which, by reason of the process involved, the method of manufacture or the nature of the goods and materials manufactured or stored, may contain any adverse impacts almost wholly within their own site boundaries. It is intended that appropriate services are provided to industrial land, that generated waste is adequately managed and that industrial activities are controlled to further reduce their environmental impact. It is expected that all industrial establishments will be attractively designed and presented, and positively contribute to the overall City image of the Gold Coast City.

As suitable land for industrial activities is a limited resource in the Gold Coast City area, it is intended to protect this domain from encroachment by uses that can be better accommodated in other domains. It is also intended that land in this domain be used as a buffer between high impact industrial land and sensitive uses such as residential use.”[87]

[87] Part 5, div 2, chapter 11, s1.0.

Self Assessable development in the Domain includes a “manufacturer’s shop” (premises within industrial premises where goods resulting from industrial processes undertaken are sold to the public, and where the gross floor area of such premises does not exceed 20 per cent of the gross floor area of all buildings on the site[88]), and service industry (Group B).
[88] Definitions – Part 4, div 1, chapter 2.

Code Assessable development includes industry, motor vehicle repairs, service industry (Group A) and transport terminal.

The Industry 1 (High Impact) Domain has a similar intent. The principal differences are that large scale industrial uses are contemplated which requires that they be carefully controlled with measures including the provision of extensive buffer areas.

Self Assessable development in the Domain includes industry, manufacturer’s shop, motor vehicle repairs, service industry (Group B), storage and warehouse. Code assessable development includes service industry (Group A) and service stations.

Whilst the statements of intent for the Industry 1 and Industry 2 Domains differ in those respects, the Purpose of each of the Domain Place Codes is in identical terms with the exception of reference to “high impact industry” and “low impact industry” respectively.

The Residential Choice Domain applies to land to the immediate north of the subject site (including on the northern side of Compass Drive when the anticipated amendment is made to the current Scheme). Its intent is to support the provision of a range of housing choice that is responsive to the changes in demographic structure of the City. It is intended to support the development of a residential pattern compromising mixed dwelling types and seeks to support residential densities that are moderately higher than traditional detached dwelling areas.[89] Code Assessable development includes Aged Persons Accommodation, and Apartments.

[89] Part 5, div 2, Chapter 5, s1.0.

Aged Persons Accommodation Code

The purpose of the Aged Persons Accommodation Code is to;

“…ensure that accommodation for aged persons is designed to meet the needs of the residents and that it is located close to services and public transport facilities. It also facilitates the provision of necessary support services, amenities, and facilities in association with the development. The scale and intensity of the development is to be consistent with the predominant development character of the surrounding area.”[90]

[90] Part 7, div 2, chapter 3, s1.0.

Planning Scheme - Conclusions

The above analysis of the Planning Scheme was helpfully formulated in the written submissions of the appellant. It is submitted by the appellant that the following general objectives appear from the analysis:

(a) Provision of a range of housing choice which is responsive to changes in demographic structure, including the aging population;

(b) Increased residential density in areas around Activity Centres, including sub-regional centres such as Harbour Town;

(c) The achievement of an efficient urban form, including the maximisation of use of public transport and other infrastructure;

(d) The maintenance of amenity, including the minimisation of environmental impact (and environmental harm); and

(e) The provision of land which is attractive for business, and which compliments existing business.

The appellant submits that a balancing exercise is required in achieving those objectives. It is contended that this is evident from the DEOs in that they are to be achieved to the extent practicable, having regard to each of the other DEOs. It is contended by the appellant that they are more readily achieved by development of the site in the manner proposed, than by low intensity, low employment, high traffic generating, Industry 2 development.

On the other hand, the respondent points to conflict between the proposal and the Industry 2 (Low Impact) Domain Provisions and describes such conflict as fundamental. It was emphasised that the domain intent makes it clear that land suitable for industrial activity is a limited resource in the Gold Coast City area and the intent of the domain is to provide for the present and to secure for the future land for Industry 2 purposes. The Scheme provides that:

“It is intended to protect this domain from encroachment by uses that can be better accommodated in other domains. It is also intended that land in this domain be used as a buffer between high impact industrial land and sensitive uses such as residential use.”

The respondent submits that the use of the subject land for Industry 2 purposes would be completely in accord with this intent, whereas the use of the subject land for residential purposes provides an Industry 1 Residential interface without the Industry 2 buffer contemplated by the Scheme. The respondent submits that the problems attendant with this are revealed by the design constraints on the proposal to attempt to achieve an appropriate acoustic amenity.[91]
[91] Written Submissions of the respondent, para 58, p19.

The Industry 1 land is intended to be used for high impact industrial purposes. I accept that it cannot be predicted what industries may locate there in the future. As the respondent points out it is entirely possible that industries with even greater noise generation than those measured by Belleng VDM presently locate in the Industry 1 land. It is likely that by locating a sensitive residential use such as a Retirement Village adjacent to the Industry 1 (High Impact) land will result in complaints as a consequence of acoustic and air quality impacts resulting in the intended operation of the Industry 1 land being restricted. I am of the view that the proposal is in conflict with the Industry 2 (Low Impact) domain provisions and that the conflict is justifiably categorised as major.

The South East Queensland Regional Plan

The following provisions of the South East Queensland Regional Plan are identified by the appellant as supporting the proposal:

(a) Desired Regional Outcome 6 – “cohesive, inclusive and health communities have a strong sense of identity and place, and access to a full range of services and facilities that meet diverse community needs”[92]. Principle 6.1 responds to changing community characteristics including by planning for an ageing population, including housing options suitable for older people, retirement and aged-care accommodation, access to services and public transport and enabling people to “age in place”. The explanatory notes referred to the ageing population needing access to a diverse range of housing and accommodation choices, appropriate services, and public transport to “age in place”[93];
[92] SEQRP 2009-2031, page 77.
[93] Page 80.

(b) Desired Regional Outcome 8 seeks a compact urban structural well-planned communities supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations[94]. Principle 8.1 is supported by policies which include focusing higher density and mixed-use development in and around regional activity centres and public transport modes and corridors[95]; Principle 8.2 is supported by similar policies[96]; Principle 8.5 seeks the provision of a variety of housing options to meet diverse community needs, and achieve housing choice and affordability[97]; Principle 8.6 intends focusing employment, infill housing and community services in well-planned vibrant and accessible regional activity centres, and the long high-frequency transit corridors[98]; Principle 8.9 intends enduring new development uses existing infrastructure. The policies in support include applying transit oriented development (Table of Development) principals[99];

(c) Desired Regional Outcome 12 seeks a connected and accessible region based on an integrated transport system[100].

[94] Page 90.

[95] Page 91.

[96] Page 92.

[97] Page 95.

[98] Page 96.

[99] Page 101.

[100] Page 139.

I accept that the broad brush statements in the South East Queensland Regional Plan are not of themselves sufficient planning grounds to warrant approval of the proposal despite the conflict. As Mr Vann points out in the Expert’s Joint Statement on Town Planning Issues there is equally a range of provisions which could be advanced to support the use of the land for industry purposes (see for example, page 20 of the Sub-Regional Narrative for the Gold Coast, which identifies the need for substantial employment growth to support projected population growth, DRO9 about the need to plan for employment by, among other aspects, setting aside sufficient land for future economic use, and the principle and policies in s9.3 about providing sufficient land for business and industry).

The broad provisions of the South East Queensland Regional Plan must be implemented at the local level through the Planning Scheme, which will involve strategic choices about the best use for land in different areas. The respondent Council is currently preparing a new planning scheme, in which these decisions will be formulated.[101]
[101] Experts Joint Statement on Town Planning Issues, p47.

Need

Need does not connote pressing urgency.[102] A thing is needed if its provision, taking all things into account, will improve the physical well-being of the community[103], or would improve the services and facilities available in a locality. As was said in Skateway Pty Ltd v Brisbane City Council[104]

“In a rezoning application the need contended for is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned in which the facility can be provided. Rather it connotes the idea that the physical well-being of a community or some part of it can be better and more conveniently served by providing the means for ensuring the provision of that facility, subject always to considerations of a town planning kind…”

[102]Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58, at 60.

[103]Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126 at 131.

[104] [1980] QPLR 245 at 249-250.

The appellant submits that the following principle is apposite to the use proposed:

“As to the question of the weight to be ascribed to need here, while this is a development of a “special” kind with a specific purpose, suggesting the issue should be looked at further critically (as Skoien SJDC suggested in Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313) the proper care of children and the provision of adequate facilities for that purpose are of manifestly greater importance, and of a more critical kind for the well-being of an important group in the community…, than such things as service stations, liquor barns, hardware houses and cinemas, or the like. On any view, the existence or otherwise of a latent unsatisfied demand for childcare facilities is a matter of greater significance to the community than, say, having to drive a few extra miles or minutes to fill a car with petrol, or reach a cinema complex”[105].

Report of Ms French

A report under the hand of Ms Valerie French was received into evidence.[361] The report contains the author’s opinion with respect to the proposed development having regard to her expertise and experience in the area of the aged and aged care, including accommodation. Ms French expresses the view that the proposed retirement village will satisfy the increasing demand for a new style of retirement village accommodation in the following ways:
[361] Ex. 27.

· It offers a range of accommodation options within close proximity to each other, from villa accommodation units and self-contained apartment units, both of which are independent living units (ILUs), as well as serviced apartments which include a low level of care;

· The features and facilities of the retirement village will suit the lifestyle to which “baby boomers” are accustomed and which they are likely to seek with respect to their retirement accommodation; and

· The retirement village has two outstanding factors: namely, its location in the Biggera Waters/Labrador community, and also its close proximity to the Harbour Town Shopping Centre, Bunnings Warehouse and transport facilities.[362]

[362] Ibid, p8, para 4.1.

Ms French notes that, unlike their parents, most baby boomers will engage in complex mixtures of work, leisure and socialisation through retirement. She considers it important that older people, like other members of the community, are offered choice with respect to their accommodation, including the ability to positively age “in place”. In her opinion, the ageing community of this locality should be offered this versatile, well-serviced retirement village in a prime location close to employment opportunities, particularly the Harbour Town Shopping Centre, transport services and other important facilities such as TAFEs and universities, primary schools and hospitals. Ms French considers that the fact that the proposed retirement village will offer low care accommodation in the same place as the independent living units is a great benefit as it will mean that older people who only need a low level of care can still live in a place with younger, active older people. It will also, in Ms French’s opinion, mean that the older people who need to transition from an independent living unit to a serviced apartment can still be close to their friends at the village and continue to enjoy the facilities and services with which they are familiar.[363]

[363] Ibid, p11 and 12, para 5.

The Parties’ Submissions with Respect to the Planning Scheme Provisions

The appellant submits that the DEOs (in Part 2) provide context for the Key Strategies and Land Use Themes (in Part 3) and subsequently for the Scheme’s Codes. They are expressed in terms of broad policy outcomes which seek to achieve ecological sustainability. A balancing exercise is anticipated, given that each DEO is sought to be achieved to the extent practicable having regard to each of the other DEOs. This is a sensible and practical approach to reconciling the broadly expressed outcomes and I accept these submissions.

DEO Ecol 3 includes planning objectives which envisage an urban form that reduces the need to travel, and one which supports the maximum use of public transport systems. It also seeks to minimise pollutants which contribute to unhealthy air quality and reduced local amenity. The appellant submits that it is apparent that the proposal achieves this DEO, and also that the existing industrial development is expected to minimise air pollution and protect local amenity. These submissions should be accepted.

With respect to DEO Econ 1, it intends the provision of an “efficient land use pattern”; and one which is “conducive to business activity” and “attractive to new business opportunities”, particularly those which complement existing or emerging business activity. Its objectives include ensuring the supply of adequate land that can be efficiently developed in appropriate locations. The appellant submits that although the respondent Council asserts conflict with this DEO, the evidence does not justify a conclusion to that effect. The most efficient use of the site, it is submitted, is for the proposal rather than low intensity, low employment, Industry 2 development. It is further submitted that the population of the proposal will be more conducive to business activity in the nearby shopping centre. Further, given its traffic difficulties, and lack of prominence, Industry 2 development of the site it not attractive to new business. However, the proposal, in my view, would clearly permanently alienate the site from ensuring an adequate supply of land for Industry 2 purposes and from promoting the availability of land to support local businesses. It is primarily in this respect that the proposed use would compromise the achievement of the DEO.

DEO Econ 2 seeks enhanced employment and investment opportunities through better integration of residential and business activity, whilst protecting residential amenity. Supporting objectives include facilitating mixed use developments within Activity Centres and Activity Clusters where an “acceptable” level of residential amenity can be achieved; and facilitating increased residential densities in the area surrounding the Activity Centres and Activity Clusters. The appellant submits that there is no justification for any asserted compromise of, or conflict with, this DEO. It is submitted that, rather, the proposal contributes towards its achievement, and far more so than would the use of the site for Industry 2 purposes. In my view, these submissions are clearly supported by the evidence and should be accepted.

DEO Econ 3 seeks the provision of a viable system of Activity Centres and Activity Clusters to ensure that the City’s communities have access to a wide range of suitably planned and located goods and services. Supporting objectives include facilitating the development of a range of specialised Activity Clusters that maximise economic advantages resulting from the agglomeration of complementary business activities in desirable locations; maximising viability of Activity Centres by discouraging incompatible development within the Centres; and facilitating the orderly and efficient development of Activity Centres. The appellant points out that Harbour Town encompasses both a “subregional” Activity Centre, as well as an Industrial Employment Cluster (Activity Cluster). There is, accordingly, some tension in terms of competing objectives within the Scheme. The appellant submits that there is no evidence of any economic advantage to the Cluster which would accrue from Industry 2 development of the site (particularly given its dislocation from other Industry). The use of the site for the proposed retirement resort will, it is submitted, maximise the viability of the Activity Centre, and is both orderly and efficient. Industrial development, and the traffic issues it would create, would not, it is submitted, be orderly or efficient. I am unable to accept this submission, in that the proposal seeks to introduce incompatible development on, and adjacent to, industrial land.

DEO Econ 6 intends that the use and safe operation of existing and committed infrastructure is maximised and future infrastructure is provided efficiently. Supporting strategies involve the maximisation of the value of existing and planned infrastructure facilities by consolidating appropriate development in well-serviced areas; and maximising accessibility to social infrastructure facilities such as health, education, recreation, entertainment and community support services. The appellant submits that the proposal positively achieves the DEO and that Industry 2 development would compromise its achievement. I accept that the proposal would achieve this DEO.

DEO Soc 2 encourages the location and design of residential areas and support facilities to maximise accessibility to community facilities and places of employment, and to maximise opportunities for community interaction. The appellant submits that, consistent with its case, the “explanation” for the DEO provides that access to community facilities and emplkoyment opportunities is a fundamental component of social well-being. The objectives in support of the DEO include the facilitation of an efficient urban form that offers high levels of accessibility between residential areas and Activity Centres and Activity Clusters; the maximisation of residential densities in and around Activity Centres and Activity Clusters where an “acceptable” level of amenity can be achieved; and the maximisation of opportunities for social interaction through the use of shared and multiple use areas and facilities. The appellant submits that, again, the proposal positively achieves the DEO and its objectives, in direct contrast to the suggested Industrial 2 use of the site. Again, I am satisfied that the proposal achieves this DEO.

DEO Soc 3 is “the provision of a range of diverse housing choice, including affordable housing, that is responsive to the changing demographic structure of the City’s population and promotes equity and access to goods and services”. The explanation to the DEO specifically acknowledges that the resident population is now ageing. Demands are acknowledged as changing dramatically as the local population ages. It is intended to assist in diversifying housing choice by introducing opportunities for the development of a wide range of dwelling types and densities in appropriate locations. That enables the changing accommodation needs for local communities to be met in the local area, and a greater social mix to be achieved. It is intended that increased densities are to be provided close to community and transport facilities. The appellant submits that the proposal undoubtedly achieves the DEO and its objectives. I agree.

DEO Soc 5 intends the maintenance of residential amenity, through the minimisation of any environmental harm from the construction and operation of activities, including industrial activities. The explanation identifies that the DEO is initially achieved by separating conflicting activities through Land Use Themes, and Domains, and that it is then able, through the application of Codes, to further minimise potential conflicts. Objectives in support refer to ensuring adequate separation and/or buffering; and that new residential development does not unreasonably constrain productive facilities. The appellant submits that, whilst the respondent Council asserts compromise of, or conflict with, the DEO, it should be observed that the DEO itself refers to the minimisation of environmental harm occurring from the operation of industry. Further, it is submitted, the buffering between the proposed development and the existing industry is appropriate. The appellant submits that the DEO and its objectives would apply equally to considerations of impact between Industry 2 development of the site and existing and future nearby residential development. I am unable to accept that the proposal would achieve this DEO in that the introduction of new residential development on the site is likely to unreasonably constrain the productive industrial land.

DEO Soc 6 relates to the City’s transport system. The supporting objectives include ensuring that land use patterns support planned transport infrastructure. The appellant submits that this will be achieved by the proposal and will be compromised by Industry 2 development. I accept that the proposal will achieve this DEO.

The written submissions of the appellant include an analysis of the Key Strategies and Land Use Themes in Part 3 of the Planning Scheme. The submissions also include an analysis of the relevant Domains and the Aged Persons Accommodation Code. The appellant submits that the following general objectives are revealed in such analysis:

(a) Provision of a range of housing choice which is responsive to changes in demographic structure, including the ageing population;

(b) Increased residential density in areas around Activity Centres, including sub-regional centres such as Harbour Town;

(c) The achievement of an efficient urban form, including the maximisation of use of public transport and other infrastructure;

(d) The maintenance of amenity, including the minimisation of environmental impact (and environmental harm); and

(e) The provision of land which is attractive for business, and which complements existing business.

The appellant submits that a balancing exercise is required in achieving those objectives. That is evident from the DEOs, in that they are to be achieved to the extent practicable, having regard to each of the other DEOs. The appellant submits that they are more readily achieved by development of the site in the manner proposed, than by low intensity, low employment, high traffic generating, Industry 2 development.

The following provisions of the SEQ Regional Plan also support the proposal in the submission of the appellant:

(i) Desired Regional Outcome 6 – “cohesive, inclusive and healthy communities have a strong sense of identity and place, and access to a full range of services and facilities that meet diverse community needs”. Principle 6.1 responds to changing community characteristics including by planning for an ageing population, including housing options suitable for older people, retirement and aged-care accommodation, access to services and public transport and enabling people to “age in place”. The explanatory notes refer to the ageing population need access to a diverse range of housing and accommodation choices, appropriate services, and public transport to “age in place”;

(ii) Desired Regional Outcome 8 seeks compact urban structurally well-planned communities supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations. Principle 8.1 is supported by policies which include focusing higher density and mixed-use development in and around regional activity centres and public transport nodes and corridors. Principle 8.2 is supported by similar policies. Principle 8.5 seeks the provision of a variety of housing options to meet diverse community needs, and achieve housing choice and affordability. Principle 8.6 intends focusing employment, infill housing, and community services in well-planned vibrant and accessible regional activity centres, and the long high-frequency transit corridors. Principle 8.9 intends ensuring new development uses existing infrastructure. The policies in support include applying transit oriented development (TOD) principles; and

(iii) Desired Regional Outcome 12 seeks a connected and accessible region based on an integrated transport system.

The respondent, in its written submissions, notes that the strategic planning for Gold Coast City is contained in the Planning Scheme, Part 3, Planning Strategy. It is the broad City-wide strategy adopted by the Planning Scheme to achieve ecological sustainability. The Scheme provides relevantly:

“…

The Planning Strategy is the broad citywide strategy adopted by the Planning Scheme to achieve ecological sustainability. As such, it provides an overview of how the main influences on ecological sustainability, contained in Part 1, Division 2, have been synthesised with the Desired Environmental Outcomes (DEOs) in Part 2, Division 1 to form generalised proposals for development, related infrastructure provision and the conservation of valuable feature. It therefore provides the context and policy foundation for the specific development requirements contained in the remaining parts of the Planning Scheme.

In translating the preceding Divisions into broad planning proposals, the Planning Strategy draws upon the DEOs to provide a specific outline of how the three strands of ecological sustainability (i.e. ecological, economic and social) have been brought together within the local context.

…

The Planning Strategy, in combination with the DEOs, may influence decisions on development applications to the extent that a decision on an application should not compromise the Planning Scheme’s achievement of ecological sustainability. The Planning Strategy will therefore be used to assist in assessing application for Impact Assessment by providing the Assessment Manager with a broad context within which to determine whether there are sufficient planning grounds to justify a decision.

…”

The Key Strategies are set out in Planning Strategy, Part 3.

Chapter 5 provides relevantly:

“Chapter 5 Activity Centres

The principal concentrations of activity in the City include the major catchment based service centres where retail, office and government functions are located, and the clusters of specialised activities that are not necessarily related to catchment areas. The first group includes traditional town centres and shopping complexes, while the second contains major industrial areas, university and tourist nodes. These Activity Centres are the focus for employment and investment activity in the City. They are important as drivers of the local economy and as the locations for the delivery of important services. The Activity Centres are also the location of essential business, cultural and social interaction.

The purpose of this strategy is to provide a framework for the effective deliver of services, continuing investment and the generation of new employment in Gold Coast City’s Activity Centres.

The respondent emphasises that the second group referred to (being the clusters of specialised activities that are not necessarily related to catchment areas) contains major industrial areas, universities and tourist nodes, which are the focus for employment and investment activity within the City and which are seen as important drivers of the local economy and as the locations for the delivery of important services. The respondent also notes that in Planning Strategy Map PS4 the subject land is allocated to an Industrial Employment Cluster. The concept of Activity Clusters is, submits the respondent, a recognition that there are benefits that accrue to firms located in the same area, in terms of the services that they can attract and support, and also the linkages and opportunities that can arise from their interaction.

The respondent notes that Activity Cluster Policy 2 is:

“A recognition and facilitation of the development of Activity Clusters within the city as major locations for employment, investment and production activity”.

The explanation contained in section 2.2.1 indicates that the identified Activity Clusters present the best prospects for new employment and continuing investment in the City. These are the areas that are likely to be the most productive in terms of wealth generation for the City. Land use intent and development processes should encourage the further growth and emergence of these Activity Clusters. The respondent notes that several of the Planning Objectives to support AC Policy 2 are relevant. Thus, AC 2.1 seeks to support and encourage the co-location and agglomeration of industrial and commercial activity into identifiable precincts. AC 2.4 seeks to promote the consolidation and redevelopment of Activity Clusters for uses which are consistent with the individual focus of each cluster; and AC 2.6 seeks to ensure that land uses within Activity Clusters are compatible.[364]

[364] Ex. 9, tab 2, p13 of 15.

The respondent notes that the individual Activity Clusters identified on Planning Strategy Map PS-4 are further described in the Land Use Themes Division. Division 3, Chapter 8 refers to the Industry Land Use Theme and acknowledges the need to provide viable serviced industrial land that is protected from non-industrial uses that could diminish its value in supporting the effective implementation of the Activity Centre’s Strategy and Council’s Economic Development Strategy.[365] The planning intent for the Land Use Theme recognises that development in this Land Use Theme area will be expected to ensure that land remains available for legitimate industrial development and is not eroded by incompatible non-industrial developments, which could otherwise be located in other Land Use Themes. The intent for the Land Use Theme also acknowledges the potential for industry to cause impacts on residential and other non-industrial activities. Accordingly, the spatial location of the various types of industrial activity is intended to avoid or reduce this impact.
[365] Ex. 9, tab 3, Div 3, p5 of 18.

The respondent submits that the proposal is in conflict with the forward planning provisions of the Scheme as discussed above. I accept this submission.

It is submitted by the respondent that a decision to approve the proposal would compromise the achievement of DEO Econ 1. The respondent submits that clause 1.3 Planning Measures to Support DEO Econ 1 makes it clear that the DEO will be largely achieved through (in the instant case) the provisions of the Planning Scheme relating to Industry 2. The DEO is designed to ensure an adequate supply of land for Industry 2 purposes and to promote the availability of land to support local businesses. It is contended that the use of the subject land for a retirement village would permanently alienate it from availability for these purposes and that, therefore, it is fundamentally contradictory to the DEO and would compromise its achievement. This contention, in my view, should be accepted.

With respect to DEO Econ 3 the respondent notes that it is intended to achieve the DEO through the provisions of the Planning Scheme including the industry domain provisions. The respondent submits that the Court would accept the evidence of Mr Vann that the provision of Industry 2 use on the subject site will complement both the adjoining centre and the Industry 1 area, based on the locational needs of the existing Industry 2 type uses which are considered best located in locations readily accessible day-to-day by the surrounding areas. The respondent notes that the area is specifically recognised in Planning Strategy Map PS-4 as part of an industrial employment Cluster forming one of the specialised Activity Clusters referred to in the DEO and Strategies. The respondent submits that its removal in favour of a retirement village residential use will compromise the achievement of the DEO and that the application is fundamentally in conflict with Objective Econ 3.3 as it introduces incompatible development both on and adjacent to industrial land. I accept this submission.

In relation to DEO Soc 5, the respondent submits that the proposal involves the introduction of a sensitive residential use, a retirement village, to a location planned for industry and adjacent to existing Industry 1. This, submits the respondent, is fundamentally in conflict with the DEO as the introduction of new residential development onto the subject site will unreasonably constrain the productive industrial land.

The respondent summarises its submissions by contending that the proposal will compromise the achievement of the abovementioned DEOs and that pursuant to section 3.5.14(2) of the IPA, it must be refused.

The proposal, in the respondent’s submission, is fundamentally in conflict with the Scheme provisions relating to the Industry 2 (Low Impact) designation in which the subject land is found. The respondent notes that the Domain intent makes it clear that land suitable for industrial activity is a limited resource in the Gold Coast City area and the intent of the Domain is to provide for the present and to secure for the future, land for Industry 2 purposes. Locating a sensitive residential use such as a retirement village adjacent to the Industry 1 (High Impact) land will, contends the respondent, inevitably result in complaints as a consequence of acoustic and air quality impacts which will result in the intended operation of the Industry 1 land being restricted. The respondent submits, therefore, that the proposal is in conflict with the Industry 2 (Low Impact) Domain provisions and that the conflict is major.

In response to the suggestion of the appellant that the site is unsuitable for industrial use, the respondent submits that the site is eminently suitable for Industry 2 purposes. The respondent contends that the site adjoins Industry 1 land to the south and to the west, and that it is proximate to the Harbour Town Centre with the attendant advantages it would provide for both the administration of the businesses and their staff. Furthermore, the respondent submits that the site is not unsuitable from a traffic point of view in respect of an industrial use. From a visual amenity point of view the respondent submits that the industrial uses on the land are capable of being readily screened and that the majority of signage would be internal to the subdivision and would have no adverse impact on the amenity of the area. The respondent further submits that the subject land is perfectly placed to fulfil the planning function as a buffer between the Industry 1 land to the south and to the west from residential development to the north.

In relation to the suitability of the land for a retirement village, the respondent submits that there will be unacceptable impacts upon the acoustic amenity and also on the air quality amenity as a consequence of the release of odour and other gaseous emissions. Further, the use of the land for retirement village purposes would have a significant adverse impact on the operation of the Industry 1 land to the south and the west as a consequence of the inevitability of complaints with respect to noise and air quality. The respondent submits that the residential amenity of the retirement village would be diminished as a consequence of the need to constrain the noise and air quality impacts.

With respect to the contention of the appellant that the site is not needed for industrial purposes, the respondent submits that the Planning Scheme adopts the strategy of securing industry land for present and future use and that it is not to the point that there may be other industrial lands available. It is contended by the respondent that it is a sound planning approach to ensure a supply of vacant industrial land in the area and that there be a bank of industrial land for future use.

With respect to the issue as to whether the subject land is needed for retirement village purposes, the respondent contends that for the next few years there will be a choice of ample supply of independent living units of appropriate quality in the catchment. There is no immediate or pressing need for any new ILUs and the existing supply will meet demand for years to come. Furthermore, the respondent submits that the two sites to the east of Oxley Avenue controlled by the appellant are available to be developed for retirement village purposes notwithstanding the current approvals for low density canal residential living. The respondent submits that it is not in accord with sound planning principles for the appellant to eschew development of those sites for retirement village purposes because it can obtain a higher return from an alternative development and to seek to use a parcel of land in conflict with the planning authority’s strategic planning for that land for the retirement village.

The respondent submits that there is no need sufficient to constitute a planning ground to approve the proposal despite the major conflict with the Planning Scheme. The suggested sufficient planning grounds identified in the joint planning report by Mr Ransom are rejected by the respondent. With respect to industrial connectivity the respondent submits that this is not a prerequisite to the use of the land for industry purposes. In relation to traffic safety, it is submitted that the Industry 2 use could be carried out on the subject land with appropriate traffic safety. In relation to the suitability of adjoining Industry 1 land for High Impact industrial activity, the respondent submits that the current Industry 1 land is already being used for High Impact industrial activities and will continue to do so. The allotments are of sufficient size to accommodate these industries. As to the Planning Scheme requirement for separation of industrial and residential development, the respondent submits that the appropriate test is whether the proposal will cause issues of amenity impact and land use conflict, rather than meet or exceed an acceptable solution. The existence of such impacts are, it is submitted, sufficient in conjunction with the Scheme intent, to justify refusal of the proposal. With respect to issues relating to industrial land supply, the respondent submits that although other industrial land may have been taken up for other uses, that, of itself, provides no sufficient planning ground for the current proposal. The respondent contends that the Court would need a fuller understanding of the context of these uses particularly as some of them arise directly from Planning Scheme amendments which are normally indicative of a specific strategy of the planning authority, rather than an ad hoc decision which is developer driven. The respondent submits that the mere fact that the Department of Transport and Main Roads might support the proposal is of little moment. The existence of an approval for canal development on nearby land holdings controlled by the appellant does not preclude their use for aged persons accommodation, in the submission of the respondent. Their development for that purpose would be consistent with the domain and would result in a better planning outcome than the proposal given their proximity to the centre and proposed lightrail route. With respect to the Southeast Queensland Regional Plan, the respondent submits that the broad brush statements in the Plan are not of themselves sufficient planning grounds to warrant approval of the proposal despite the conflict. The broad objectives of the SEQRP are implemented by the more detailed provisions of the Planning Scheme. As to the alternative industrial use of the subject site, the respondent submits that the land can provide a not insubstantial amount of industry development which can present a local convenient opportunity to access a range of services and provide local employment in accordance with the intent of the designation. With respect to the identified differences between Industry 1 and Industry 2 land uses, the respondent submits that the Planning Scheme intent for each of these is different. All industry is Self Assessable in the Industry 1 (High Impact) Domain and is required only to comply with the Acceptable Solutions 1 – 4 of the Domain Place Code. This, contends the respondent, is significantly different from the circumstances relating to the Industry 2 designation. The respondent submits that Industry 2 use is capable of providing a useful buffer function. Finally, the respondent submits that compliance with a DEO is not a planning ground in support of a proposal. Had it not been compliant, that would have been another reason for refusal.

The respondent submits that the proposal will compromise the achievement of some of the DEOs in the Planning Scheme and is squarely in conflict with the Industry 2 (Low Impact) provisions of the Scheme and that there are not sufficient grounds to approve the proposal despite the conflict.

Conclusions

In my view the evidence establishes that the achievement of DEO Econ 1 would be compromised by a decision to approve the proposal. I accept that the use of the subject land for a retirement village would permanently alienate the land from being available to contribute to ensuring an adequate supply of land for Industry 2 purposes. Furthermore, such use would fail to promote the availability of land to support local businesses. It is, in these respects, contradictory to the DEO and would compromise its achievement.

With respect to DEO Econ 3, I accept that the application is in conflict with Objective Econ 3.3 in that it introduces incompatible development both on and adjacent to industrial land. I accept the evidence of Mr Vann in this regard that the provision of Industry 2 use on the subject site will complement the adjoining centre and the Industry 1 area. I cannot disregard the fact that the area is recognised in Planning Strategy Map PS-4 as part of an industrial employment Cluster forming one of the specialised Activity Clusters referred to in the DEO and Strategies. The use of the subject site for a retirement village will, in my view, compromise the achievement of the DEO.

As to DEO Soc 5, I am satisfied that the introduction of new residential development onto the subject site is likely to unreasonably constrain the productive industrial land and that, therefore, the DEO would be compromised.

There can be no doubt, in my view, that the proposal is in conflict with the Scheme provisions relating to the Industry 2 (Low Impact) designation in which the subject site is located. The Domain intent is to provide for the present and to secure for the future, land for Industry 2 purposes. The intent notes that land suitable for industrial activity is a limited resource in the Gold Coast City area. If, as I think is likely, the location of a retirement village adjacent to the Industry 1 (High Impact) land would result in complaints as a consequence of acoustic and air quality impacts, there will be consequential restrictions upon the intended operation of the Industry 1 land.

I am of the view that the subject site is suitable for Industry 2 purposes in that it adjoins Industry 1 land to the south and to the west, and that it is proximate to the Harbour Town Centre thus advantaging both the administration of the businesses and their staff. However, the site is, in my opinion, more suitable from a traffic point of view to the proposal rather than to an industrial use. Similarly, with respect to visual amenity considerations, the proposal would clearly, in my view, have less adverse impacts on the amenity of the area than would result from industrial uses. Moreover, the use of the subject site for a retirement village would better fulfill the planning function as a buffer between the Industry 1 land to the south and to the west from residential development to the north than would the use of the site for industrial purposes.

I have already indicated that I accept that the use of the land for retirement village purposes would have a significant adverse impact on the operation of the Industry 1 land to the south and the west resulting from the likelihood of complaints with respect to noise and air quality. I am satisfied that the residential amenity of the proposed retirement village would be diminished by the need to constrain the noise and air quality impacts. In these regards, the subject site cannot be said to be suitable for a retirement village.

The issue of need has several facets. Firstly, having regard to the Planning Scheme’s strategy of securing industrial land for present and future use, I consider that the site is needed for industrial purposes notwithstanding the present availability of other industrial sites. However, the evidence establishes, in my view, that there is also a need for the subject site to be utilised for retirement village purposes in that such use would present an opportunity to co-locate aged residents with existing urban services and social networks to ensure that they remain connected to the existing community.

Ultimately, the issues on which the appellant has succeeded are not sufficient to persuade me that there exist sufficient grounds to approve the proposal despite the conflict with the Industry 2 (Low Impact) provisions in the scheme.

This conclusion, together with those relating to the compromising of the achievement of some of the DEO’s in the Planning Scheme require that the appeal be dismissed.

[2011] QPEC 23

11 March 2011