Mantle Pty Ltd v Maroochy Shire Council - [2002] QPEC 47

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Mantle Pty Ltd & Ors v Maroochy Shire Council & Ors [2002] QPEC 047

FILE NO: 68/2002

PARTIES:

MANTLE PTY LTD, VYNARA PTY LTD,
BODAON PTY LTD and

PHILIP McGRATH AND WENDY McGRATH

And  Appellants

MAROOCHY SHIRE COUNCIL                     Respondent
And
HALCAGNI PTY LTD                        First Co-Respondent
And
STATE OF QUEENSLAND            Second Co-Respondent

FILE NO: 1012/02

PARTIES:

DEREK JOHN KENYON and ANDREW MELVILLE RENSHAW  Appellants
And
MAROOCHY SHIRE COUNCIL                     Respondent
And
HALCAGNI PTY LTD   First Co-Respondent
And
STATE OF QUEENSLAND            Second Co-Respondent

FILE NO: 1015/02

PARTIES:

ANGELA COLEMAN  Appellant
And
MAROOCHY SHIRE COUNCIL                     Respondent
And
HALCAGNI PTY LTD   First Co-Respondent
And
STATE OF QUEENSLAND            Second Co-Respondent

FILE NO: 1016/02

PARTIES:

ROWAN BERNARD STANLEY and
JANET ALLISON STANLEY  Appellants
And
MAROOCHY SHIRE COUNCIL                     Respondent
And
HALCAGNI PTY LTD    First Co-Respondent
And
STATE OF QUEENSLAND            Second Co-Respondent

DIVISION:

Planning & Environment Court, Brisbane

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

16 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

24 – 28 June, 1 – 5 July 2002

JUDGE:

Judge Robin QC

ORDER:

Appeal allowed

CATCHWORDS:

Submitter appeal against Council approval of material change of use for “stand alone tourist facility to be called Surfing World” – site located within Planning Area No. 9 North Shore under Maroochy Plan 2000 and in Precinct (12) Mudjimba (Precinct Class = Neighbourhood Residential) – Statement of Desired Precinct character called for low density residential development – Strategic Plan provisions calculated to advance tourism were said to justify approval of tourist facilities anywhere in the planning area where they were not expressly excluded – whether tourist facility “compatible” with developed amenity of locality – conflict with planning scheme found - no sufficient “planning grounds” to justify approval.

Integrated Planning Act 1997 s3.5.14(2)

Ecovale Pty Ltd v Gold Coast City Council (1999) 2 Qd R 35; 104 LGERA 341
Wootton v Woongarra Shire Council (1984) QPLR 206
Moodie v Albert Shire Council (1983) QPLR 316
Anton v Mulgrave Shire Council (1988) QPLR 203
Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council (2001) QPELR 382
Kelly v Toowoomba City Council 1995) QPELR 3
Randall v Northcote Corporation (1910) 11 CLR 100
Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455
SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36
Wooden v Woongarra Shire Council (1984) QPLR 206
Phil Fletcher Planning and Investment Services Pty Ltdv Brisbane City Council (1999) QPELR 16
Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143
Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206
Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) QCA 277
Weightman v Gold Coast City Council & Anor [2002] QCA 234
Ballymont Pty Ltd & Anor v Ipswich City Council & Ors [2002] QCA 233

COUNSEL:

Mr T.N. Trotter for appellants
Mr A.N. Skoien for the respondent
Mr S.M. Ure for the first co-respondent
Mr W.L. Cochrane for the second co-respondent

SOLICITORS:

Connor O’Meara for the appellants
Maroochy Shire Council Legal Services for the respondent
Lestar Manning for the first co-respondent

Crown Law for the second co-respondent

In the end, these submitter appeals succeed because the first co-respondent/developer, Halcagni Pty Ltd, fails to establish, as it has to under s. 4.1.50 of the Integrated Planning Act 1997 (“the IPA”), that they should be dismissed. There is a strong case available that the co-respondent’s proposal was and remains such as to:

“(a)Compromise the achievement of the desired environmental outcomes for the planning scheme area”

and to:

“(b)Conflict with the planning scheme ... (without) ... sufficient planning grounds to justify the decision”

of the Council to approve the development application; (a) and (b) quote s3.5.14(2) of the IPA. The matter comes completely under the IPA regime, the Council having “IPA-ised” its planning scheme by the adoption as from 1 June 2000 of Maroochy Plan 2000. As the second co-respondent played only a fleeting role in the appeals, it is convenient to refer to Halcagni as the co-respondent.

The only street frontage of the vacant 4.445 hectare site, described as Lots 1 and 2 of RP 175157 Parish of Maroochy, County of Canning according to the Blinmap, is to David Low Way, Mudjimba, and is about 240 metres. There is established residential development on the other (north western) side of the road extending inland a block or so the short distance to the perimeter of the Maroochy Airport. Immediately to the west of the site is a larger (cleared) property earmarked for a service station (and shop) fronting David Low Way, and likely to go over to residential development otherwise. To the east is another large parcel, substantially vegetated, and presently used for low impact swim-school and nursery activities. The site is partly cleared, and said to be “degraded”, but has substantial trees around the perimeter. As it turned out, the issues the appellant ventilated focussed on impacts of Halcagni’s proposed development on residential development to the south.

The principal of Halcagni, Mr Mal Pratt, is an experienced and successful developer. He has had a lengthy association with the surfing movement, which led him to devise an innovative scheme for a “stand-alone tourist facility to be called Surfing World”. The co-respondent’s written submissions describe the proposal as one for an integrated tourist facility designed to celebrate and promote the surfing culture on the Sunshine Coast, comprising a surfing museum to display and celebrate the history of surfing and surf lifesaving, affordable accommodation involving the provision of 516 beds (40 of them in 10 family units) and an indoor dining and recreation area; there will also be a wave pool in which people could be taught to surf in controlled conditions (one of a kind yet to be installed in Australia) retail outlets having surfing themes, restaurants and eateries which, at least for the main part, are proposed to be licensed. The size of the proposed development is indicated by non-residential components to be located in five main “Pavilion” type buildings suggestive of a Hawaiian village, all of one storey only, with a maximum height of nine metres. There is a proposed 1550 square metre Surfing Museum containing static, interactive and mobile displays, educational displays, hall of fame, history of lifesaving and surfing features, film and photos, gift shop etc. There will also be a 200 square metre restaurant and 720 square metres of cafe/eateries, 2000 square metres of retail outlets for surfing related goods, for example a Billabong factory outlet, an “educational cinema” and a surfboard-making demonstration area. Outdoors, in addition to the 1800 square metre wave pool with rideable waves, a swimming pool/sandy beach is proposed adjacent to the accommodation buildings.

The Council required relocation of the originally proposed “five separate, but connected three storey accommodation buildings” (typically sleeping four per room) to be located near the southern boundary of the site. The changes required by the Council involved “stringing” accommodation buildings end to end parallel to the boundary, rather than having them grouped as proposed. This was a noise attenuation measure, bolstered by requirements that windows on the southern side not be openable and that connections from building to building be sealed to contain noise – the co-respondent is proposing to enclose the linkages in perspex.

Pursuant to a concern expressed by the court that accommodation buildings of the height proposed might unnecessarily offend a planning scheme provision (3.9.4(12)) whereby “exceeding the predominant building height of two storeys” was expressed to be “undesirable use”, the proposal was re-designed so that there would be seven two-storey accommodation buildings end to end along the southern boundary. Everyone agreed this change not only had the merit of reducing vertical bulk, but also that of offering better attenuation of noise that might escape from the site towards the south, but complaints of allegedly unacceptable horizontal bulk were reinforced. It is plain that the reduced height would tend to render more effective proposed screening by trees in a 10 metre landscaped strip between the accommodation building and the boundary. It was accepted that the court could permit changes to be made to the application, on the basis of Ecovale Pty Ltd v Gold Coast City Council (1999) 2 Qd R 35; 104 LGERA 341. A declaration was made during the hearing of the appeals that no further public notification was required.

The size of the venture is indicated by the Council’s having required 440 carparking spaces. The developer intends to provide 480, perhaps an indication that no-one is able to say with confidence what clientele Surfing World might attract. Mr Pratt acknowledged responsibility for setting various hares running by indicating the application was in part for a “Backpackers’ Surf Camp containing 516 beds.” He says this was a misdescription, that although backpackers will be welcome, he envisages an emphasis on organised school groups, particularly from schools remote from surfing beaches. Mr and Mrs Edwards (he in particular), having experience of organising school groups, suggested that even if the proposed accommodation were not too expensive for school groups (they anticipated it would be), Surfing World would not offer the requisite facilities for close supervision of children by those in charge. There was uncontested evidence that if backpackers in any numbers were to be attracted, substantial numbers of places would have to be “guaranteed” to those who arrange travel or tours for backpackers.

It was the “backpacker” aspect that excited much of the opposition of local people, a number of whom gave evidence, including at least one who was greatly in favour of the wave pool idea. Witnesses who had been backpackers themselves not very long ago were concerned that the peace and safety of their little community at Mudjimba would be compromised or threatened by backpackers more or less rowdily moving through their quiet streets. A court ought to be slow to stigmatise any group of people. I think it is the case that local residents may honestly harbour reservations about the introduction into their communities of significant numbers of outsiders; an example in the news recently concerned a proposal by the Commonwealth Government to establish a detention centre to house people who have entered Australia without approval of the authorities. Mr Ure, who appeared for Halcagni, referred to a group of cases in which the Local Government Court declined to give effect to genuinely held opinions that “caravan dwellers are more lawless and irresponsible than people who live in houses” (Wootton v Woongarra Shire Council (1984) QPLR 206, 210, restating an opinion of the same judge in similar terms in Moodie v Albert Shire Council (1983) QPLR 316, 322); in Anton v Mulgrave Shire Council (1988) QPLR 203, at 208, Judge Dodds was “not prepared to assume that persons who visit a caravan park will be of anti-social type nor ... that they will be necessarily more noisy than other residents of the area.”

Mr Trotter, for the appellants, referred to Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council (2001) QPELR 382, an interesting case in which an injunction was sought on the basis that a material change of use had occurred when premises formerly used as a convalescent home or nursing home for elderly residents came to be used for accommodation of mentally handicapped persons and also some short-term accommodation of immigrants. At 397, Judge Newton, who thought that there had been understatement of the noise generated by the old nursing home use, said:

“[76] I have formed the view that in relation to the perception of noise being a problem for neighbours, proper management procedures would be capable of controlling such occurrences. Neighbouring residents could easily be made aware of a contact number to register any complaints or concerns they may have in this regard. Indeed, many of the unpleasant incidents experienced by some of the local residents were never brought to the attention of the operators of the present facility. Instead of the patronizing letter which was sent by the operators to nearby residents shortly after the facility began operating, it would have been far more useful to explain the types of conditions that residents of the Lodge may have and to invite neighbours of the facility to discuss any concerns directly with management. The owners and operators of Herston Lodge must bear much of the blame for the problems that have arisen through lack of communication between neighbouring residents and the Lodge management. I accept that some people with mental illness may appear unkempt and quite different. I further accept that some people in the community are fearful of mental illness and of the mentally ill. However, there is no evidence before me to suggest that properly medicated persons with mental illness present any more or less risk to public safety than other members of the community.
[77] It must always be a matter of degree in attempting to assess the overall impact of the scale and intensity of the current use compared to the previous use and whether there has been a "material change”. The evidence adduced on this application satisfies me that while the intensity and scale of operation has somewhat intensified in relation to mobility of residents and their contact with the community, there has been a corresponding decrease in intensity and scale of operation in relation to noise from visiting vehicles including ambulances, staff and visitors. There is some evidence which would tend to support a conclusion that the intensification arising from increased contact with the community by residents may have created a greater perception of intrusion among some members of the local community. Whilst I accept that fear and perception are valid concerns of amenity, in my view the evidence does not establish a material change of use. IPA requires an impact-based assessment and on the evidence adduced during the hearing of this application, I have formed the view that there has not been established a significant change of impact. I conclude, therefore, that under the criteria set down by IPA, there has been no material change of use.”

Mr Trotter’s other authority on this aspect was Kelly v Toowoomba City Council (1995) QPELR 3. Judge McLauchlan QC dismissed a developer’s appeal against the Council’s refusal of an application for a free-standing bottle shop in close proximity to a high school. The only issue was amenity, especially in relation to vandalism and anti-social behaviour, as to which the court shared the Council’s view that the proposal boded to introduce additional anti-social behaviour and vandalism in and around the school, exacerbating a situation which was already troublesome. Authorities mentioned by his Honour include Randall v Northcote Corporation (1910) 11 CLR 100, 108 where Griffith CJ said:

“The third objection pressed was that many of the councillors thought that it was not desirable that a sports ground should be in the immediate neighbourhood of a public house – that both should be practically on the same ground, and the one an appanage of the other. It was objected that that was a matter which the Council had no right to take into consideration. No one doubts that in granting a licence of a public house the licensing authority is entitled to consider the situation of the house – that it is in immediate proximity to a sports ground, a church, a school, a factory, a racecourse or any other particular place. If they think that the opening of a public house in such a position is likely to encourage drunkenness or disorder, that is a very good reason for refusing a licence to the public house. If that applies to the granting of a licence to a public house in the vicinity of a sports ground, it must also apply to the licensing of a sports ground in the vicinity of a public house. That matter, therefore, was very properly taken into consideration by the Council.”

Isaacs J agreed with those views (118). O’Connor J said at 112:
“... It is clear that in the granting of licences to public amusement grounds (councillors) may consider that it is in the best interests of persons within the municipality that a public amusement should be carried on in an orderly fashion, that nothing should be allowed to take place in or in the neighbourhood of public amusement grounds that would be offensive or shocking to ordinary notions of decency and good order. The fact that an hotel carried on by the applicant adjoined the ground in which football would be played and watched by crowds, probably by excited crowds, and the facilities afforded for drinking and the likelihood of drunkenness in the crowd under these circumstances, were clearly facts and considerations which might properly influence the exercise of the discretion.”

In these appeals there was evidence of behaviour by backpackers in various contexts which, from their point of view, was simply having a good time, but which, from the point of view of others affected by it, was inconsiderate, noisy or otherwise intrusive, perhaps even generating concerns about peace and safety. No-one had experience of a backpacker facility anywhere near as large as Surfing World would be. The main concern of residents related to the behaviour of people moving along residential streets of the new estate of Mudjimba Shores, adjacent to the site on the south, and through Mudjimba more generally in the course of moving from Surfing World to the beach and vice versa, especially at night time, when alcohol might have been consumed. One witness expressed a specific concern that dangerous implements connected with drug use might be left about, not so much in the streets, as around the beach, specifically in a large park-playground area near the patrolled beach of Mudjimba. I am not prepared to proceed on the basis that backpackers as a class would be any more anti-social in these respects than others of similar ages in the general community. I do accept, however, the likelihood that “outsiders” moving through a residential area will be less respectful of it, and of the peace and quiet of residents, than the residents themselves, and that unwelcome intrusions, if only by way of noisy and disorderly behaviour, will happen. The court ought to be concerned about such impacts on amenity, especially in the night time. Compare Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455, 460E.

Halcagni acknowledges such concerns, to the extent of proposing that fencing not only along the southern boundary, but also along the eastern and western boundaries of the site, be such as will prevent egress from the site; it also proposes to provide a path (gravel if not sealed) from the site’s frontage to David Low Way along that road to the beach, and suggests that guests of Surfing World will be directed to the beach accordingly. I would rely on my own experience or, if necessary, Mr Beard’s evidence, that, by and large, people can be expected to find and use the shortest, quickest route from one place to another. Mr Skoien, who appeared for the Council, has demonstrated that if a guest’s destination is simply “the beach”, access via David Low Way may be marginally shorter for Surfing World guests. However, if their destination is the patrolled beach, or the park and limited retail/commercial facilities there, the shortest route (subject to being able to get across the drainage reserves in the area) would be along Coolibah Street or Sassifras Street, Mudjimba Shores which, linking with pedestrian walkways, give access to the beach in a straight line. Cul-de-sacs at the end of such streets may be entered from parkland to the west. To get to this point may, depending on what happens on land to the west of the site, involve traversing private land. If the service station approved immediately to the west of the site at the David Low Way frontage is established, it may well be that “ducking through” there is feasible; it may well be that those operating the service station and associated approved shop would welcome passing custom emanating from the site. I think there would, more likely than not, be movement through the streets of Mudjimba associated with the proposed residential use of Surfing World, even if Halcagni’s efforts to prevent it and direct guests northwards along David Low Way are partly successful. That is not to say that this impact on amenity would, on its own, defeat Halcagni’s proposal. Mr Skoien dwelt on the possibility that the local residents would find themselves saddled with use by cyclists and pedestrians of pathways proposed in Maroochy Plan 2000 linking, inter alia, sporting fields to the west with the beach and facilities there (for example, for skateboarders). There are links to and through Mudjimba in the proposed network of paths, one of which (from which Surfing World guests are intended to be shut out) follows the drainage reserve mentioned. I took Mr Skoien to argue that the addition of some backpacker traffic could not reasonably be complained of. What the local people fear, I think rightly, is a different kind of intrusion, and intrusion at night, in particular.

Noise Impacts

As to noise aspects involving activity on the site itself, the appellants called Mr King as their expert, the co-respondent called Mr Rumble. The background noise levels, for which the surf and traffic on David Low Way seem to be chiefly responsible, are higher than one might expect. These do not include the noise of aircraft taking off or landing at nearby Maroochy Airport, such movements being too intermittent. Mr Rumble is less willing than Mr King to admit that the ordinary operations of Surfing World will add enough to background noise to be detectable by the closest residents. Mr King, however, accepts that the ordinary operations ought not to produce any noise problem, so far as noise generated on the site is concerned, given the conditions limiting noise levels for plant and equipment imposed by the Council. He does not expect any problem of noise made by people in indoor activities, but there is room for concern about noise from outdoor activities which may occur in defiance of the “curfews” imposed by the Council, particularly in respect of the wave pool, if they are not effective. As to the wave pool, the court itself has some concerns as to what the situation may be when it is operating. It is surprising that no information was forthcoming as to noise produced by the waves of varying heights generated in the pool, or by the mechanical steps implemented to generate those waves. The court does not know whether noise levels would be comparable with those associated with different technology at another venue in southeast Queensland, or whether the surmise that the noise corresponds with that made by a wave in the real surf is justified. It is an unsatisfactory aspect of the application that there is this uncertainty. As things stand, the matter has to be controlled by the general noise related conditions set by the Council.

Relevant Provisions of Maroochy Plan 2000

Volume 1 of the Plan identifies assessment requirements where a “material change of use” is desired to be made, dealing separately with “Precincts” of different kinds. Section 5.3, relating to Residential Precincts, provides as follows:

“(1) The Planning Scheme incorporates five classes of residential precinct – four urban residential and a rural residential. It is intended that land within these precincts be developed and used for residential purposes and compatible uses in accordance with the orderly provision of development and community infrastructure, and having proper regard to the environmental characteristics and values of such lands.

(2) Such compatible uses may include premises providing for the local and convenience shopping and other business and community needs of individual neighbourhoods, and may be in the form of:
·an individual ‘general store’ or similar ‘corner shop’,
·a convenience local centre (ie. having a total commercial use gross floor area of up to about 2000m²), or
·a neighbourhood local centre (ie. having a total commercial use gross floor area of up to about 5000m²).

Such uses may also include public parkland, churches and child care centres.
(3) The residential precinct classes are:
·Hillslope Residential precincts – providing for housing on steeper lands at densities and in forms which have particular regard for the environmental characteristics of such lands; and in accordance with the orderly provision of urban infrastructure,
·Neighbourhood Residential precincts – providing for housing at gross densities of not more than 15 dwellings per hectare; and in accordance with the orderly provision of urban infrastructure,
·Mixed Housing precincts – providing for mixed forms and densities of housing in buildings not exceeding 2 or 3 storeys (8.5 or 12 metres) in height,
·Multi-storey Residential precincts – providing for long term and tourist residential accommodation in coastal locations, with some supporting business and entertainment uses, in buildings that may be higher than 3 storeys (12 metres).
·Sustainable Rural Residential – providing for areas suitable for residential use at densities of less than 2 dwellings per hectare in rural settings where the range of infrastructure and other services is less than that in urban areas; and areas with significant habitat and ecological values are identified conserved and/or otherwise managed to protect their values.”

One central issue is identified in these appeals, namely, whether Surfing World is compatible with the relevant Mudjimba Precinct (Precinct Class = Neighbourhood Residential). The following tables in Volume 1 indicate purposes giving rise to material changes of use and circumstances in which “material change of use” may be self-assessable (even exempt, when a code is applying) or code assessable. The size and intensity of the proposed use are such that no feature of them or of the present use of the site renders applicable these particular tables.

Strategic Plan

Volume 2 of Maroochy Plan 2000 is the strategic plan; Volume 3 contains the Statements of Intent and Desired Character for each of the Planning Areas of the Maroochy Shire and, within them, the Statements of Desired Character for the Precincts and the General Statements of Intent for the classes into which the Precincts have been categorised. These volumes contain an identical preface:

“The Statements of Strategic and local policy in Volumes 2 and 3 of this Planning Scheme respectively, may include somewhat different statements of policy or intent for the same areas of land. Where there is no direct inconsistency in those statements, all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme. If in any case the different statements are inconsistent, that statement of policy or intent which would result in the least detriment to the environment shall prevail in determining if a proposal conflicts with the Planning Scheme.”

The introduction of Volume 2 identifies it as establishing the Strategic Policy to be considered in the assessment of impact assessable development, which Halcagni’s project involves. It “includes Desired Environmental Outcomes (DEO’s), Strategic Implementation Measures and more detailed measures to address broad strategic issues across the Shire,” the DEO’s identified “to assist in the achievement of ecological sustainability as required by the IPA”. Their achievement is to be facilitated by “broad measures known as Strategic Implementation Measures” describing how DEO’s are to be achieved, and more detailed measures regarding how issues across the Shire should be addressed in light of the goal of seeking to achieve ecological sustainability.

There are seven DEO’s, among which the following may be noted:

“2.3 Social Equity and Livability
(1)    Desired Environmental Outcome No. 2
Vibrant, attractive and safe local communities provided with quality lifestyle choices and amenity for all people (including youth, aged people and people with disabilities), with each community:
·     exhibiting a distinctive character and sense of place, and
·     having convenient access to a diversity of housing, shopping and other business services, community and recreational facilities and jobs – all located and designed to sustain the significant ecological and scenic resources of the Shire.

(2) Strategic Implementation Measures

...
(c)separation and management of potentially conflicting land uses;

2.4    Economic Sustainability
(1)   Desired Environmental Outcome No. 3
A prosperous, productive and broad economy which reinforces the Shire’s strengths in tourism, commercial/business services, rural activities, educational and health facilities, and transport infrastructure, whilst diversifying this base in a manner consistent with the Shire’s character...
(2)   Strategic Implementation Measures
...
(c) maintain a vibrant, diverse and sustainable tourism industry
     through the protection of tourist nodes as identified on the
     Strategic Plan Map;
2.5    Transport and Accessibility
(1)    Desired Environmental Outcome No. 4
Residential, visitor and business communities serviced by an efficient, safe, convenient and attractive transport network achieving:
...
This includes compatible uses and premises being established in the vicinity of the Sunshine Coast Airport which maintain the long term operational and safety requirements for air traffic.
(2)    Strategic Implementation Measures
...

(h)protect and enhance the Sunshine Coast Airport’s economic and transport roles in accordance with its Master Plan and having regard to the environmental values of its surrounding lands and the amenity of nearby communities; and

2.6 Urban Design, Heritage and Character
(1) Desired Environmental Outcome No. 6
A high quality, built environment characterised by premises which:
·are consistent with local desired character which reflects the Shire’s diverse range of subtropical coastal, mountain and rural settlements,

...
·respect the natural environmental characteristics and capacities of the locality in which they are situated.

(2) Strategic Implementation Measures
...

(a)ensure that individual development, landscaping and signage complement and strengthen the key elements of character reflected in the intent statements for the Planning Areas and Precincts;

...

(c)maintain a generally low rise built form whilst allowing for a range of housing types and densities in appropriate areas;”

The Strategic Plan provides:

“3.4 Preferred Dominant Land Uses
3.4.1Urban

The Urban allocation identifies areas suitable for residential premises of varying densities, but allows for retail, commercial, community services and general industrial activities required to serve the day-to-day needs of local communities.
The Urban areas may include land which is considered to have significant ecological value and sensitive development options would be appropriate to adequately incorporate this land into the urban fabric with minimal impact.”

The Strategic Plan explains what it means by “Visual Amenity” in 7.1:

“...a measure of the visual quality of a site or area experienced by residents, workers or visitors. It is the collective impact of the visual components which make a site or an area pleasant to be in. In this section, the term assumes a broad context, relating to elements which contribute to the visual pleasantness and character of towns, localities and neighbourhoods rather than any site specific considerations.”

Key issues as identified in 7.2 include:
“. the compatibility of new development to the scale, character and visual quality of the existing urban fabric and landscape with the potential impact on local character and identity;”

7.3 outlines the planning strategy developed to address the issues, stating that:
“4. Visual amenity has been considered in formulating the Planning
Area and Precinct provisions (in Volume 3 of the Planning
Scheme).”

Objectives and Implementation measures follow, including:
“7.4.4 To Retain and Enhance the Townscape Character of
Discrete Local Communities and Rural Towns

One of the major attractions of living in and visiting the Shire’s rural towns and some of its discrete local communities is their village character, the general subservience of the buildings to the natural environment and the compatibility of building scale and character evident throughout the towns and localities. Enhancement of that character is beneficial to residents and to the Shire’s image as an attractive and interesting place in which to live or holiday.
Implementation
1. ... in discrete urban centres that display cohesive characters, the
Council will encourage the enhancement of that character having
regard to:
·the intent and desired character of the Planning Area and Precinct in which the site is situated;
·the scale and general design elements of buildings and structures relative to that town or locality in general and to that on adjoining land in particular.

...

3. Considerations will be given to such design and aesthetic features as:
·the height, scale and form of buildings;

4. Local area planning has been undertaken to address broader community issues including road network, streetscape, character, parks, car parking, pedestrian and bicycle access, and the like in conjunction with the issues noted in (3) above.”

and
“7.4.9 To Encourage the Design of Buildings and Landscapes
which Relate to their Physical Context and are User Friendly

... The visual character of the building is important if it is to be reflective of the Sunshine Coast and respect the immediate amenity in which it is to be located. ...
Implementation
...
3. Council in assessing applications will have regard to
the visual character of a development to ensure that the character of the particular Planning Area, the immediate amenity and the historical and cultural character of the area in which it is located has been considered.”

Next comes the Strategic Plan’s treatment of tourism which constitutes the lynchpin of the respondent’s and co-respondent’s cases. It is useful to set out extensively Strategic Plan provisions regarding tourism in section 8.

“8. TOURISM
8.1 Explanation
‘Tourism’ is the activity of promoting visitation to an area and accommodating and servicing the visitors en route and in the area.
8.23Key Issues

The key issues forming the basis for a Tourism strategy include:
·the diversified tourism base of Maroochy Shire ...
·the concentration of tourist accommodation and facilities in Mooloolaba, Coolum and Montville, ...
·the trend throughout the Shire to stand-alone destination resorts and tourist activities, such as tourist parks, providing a special part of the tourist experience and exhibiting different landscapes;
·theme parks, resorts, caravan parks, tourist routes, beaches, art and craft workshops and galleries which account for 1 to 20% of the area of the Shire, but which are the Shire’s largest employer and industry sector;
·the number of visitors to the Shire which is growing at a faster rate than the growth rates for permanent residents;
·...
·the fact that tourism will not only remain the most important single employer and industrial sector within the Shire, but is expected to increase proportionally in importance, ensuring strong growth in the coastal population centres and driving other strong sectors, such as the building and retail and commercial sectors.
...

8.3 Tourism Strategy
...
8.3.3The establishment of stand-alone facilities is encouraged in appropriate locations throughout the Shire where they contribute to the whole-of Shire tourist experience and their development and use is ecologically sustainable.
8.3.4Tourist facilities will be required to be compatible with surrounding development and display an affinity for the character of the Sunshine Coast.

8.4 Objectives and Implementation Measures

8.4.1To Promote the Growth of Tourism in Recognition of its Importance to the Shire’s Economy in a Manner Compatible with the Natural Environment and the Existing Amenity

... The image which appeals to tourists is that of a broad range of good quality accommodation, commercial facilities and tourist facilities and the preservation of the integrity of the natural environment and its precedence over the built environment.
Tourist facilities should exhibit characteristics of scale, site planning and design which are compatible with the natural features thereby taking advantage of the inherent tourist attraction and compatible with the developed amenity of an area.
Implementation
1. The Council will preserve and retain the context of the
Shire’s natural features by:
·implementing the relevant criteria in Section 7.0 of this Volume of the Planning Scheme;

...

3.   Council in considering applications for tourist facilities
      will have regard to the compatibility of these facilities
      with the amenity of the surrounding area and the
      character of the Sunshine Coast.
8.4.2To Focus Tourist Activity into the
Preferred Areas of Mooloolaba,
Coolum and Montville

By promoting the concentration of tourist activity into a small number of nodes, the Strategic Plan intends creating compact and interesting tourist centres. ...
Implementation
1. Council will generally support development applications for
     tourist accommodation and facilities in the identified Tourist
     Nodes
...
8.4.3    To Provide Adequate Opportunity for a Wide Range of
Appropriately Themed and designed Tourist
Developments within a Range of Locations and
Environments Across the Shire.
...
Although there is a small number of well established tourist centres in the Shire, it is recognised that there is a legitimate demand for tourist facilities outside these centres, both in smaller centres and by way of stand-alone facilities. Stand-alone facilities may be supported in areas otherwise unsuited to urban development because of their overriding benefits to the Shire’s tourist image. The concentration of such facilities is not encouraged, as the benefits of the stand-alone facilities stem from their contribution towards a network of facilities across the Shire. Concentration may highlight the disadvantages associated with dislocation from urban centres and minimise opportunities for whole-of-Shire tourist experiences to the extent where the advantages to the Shire’s image would be overridden.
Implementation
1. It is recognised that tourist development may be
     appropriate in a variety of locations throughout the Shire.
     In assessing relevant applications for such development
     outside identified tourist areas, the Council will have
regard to:

·any impact on the dominance of important natural features;
·the ability of the natural environment to sustain the proposal and its impacts;
·the relevant Planning Area, precinct and, if applicable, Special Management Area provisions of the planning scheme;
·the potential for traffic generation, particularly on arterial roads;
·the impact on the character of an area, the nature of which is important to the Shire’s image, likely to be caused by the development itself, the premises or associated advertising devices;
·infrastructure demands;
·whether the proposal implies the establishment or urban development where that would otherwise be contrary to the urban and rural objectives of this Strategic Plan;
·the potential for the loss of good quality agricultural and other rural land;
·whether the proposal contributes towards the objective of providing tourists with a range of whole-of-Shire experiences.”

In the appeals attention was focussed on the third of the nine bullet points immediately above. It should be seen in its context, which indicates the relevant Planning Area and Precinct provisions are one only of the considerations to be consulted. References to compatibility with surrounding development and (developed) amenity in 8.3.4 and 8.4.1 will be noted.

The following might be noted from 8.4.7:

“The visual character of the building is important if it is to be reflective of the Sunshine Coast and respect the immediate amenity in which it is to be located.”

Mr Ure (for the Co-respondent) suggested in his written submission that the test of acceptability of tourist development in a particular location was whether:

“…the proposal is “compatible with the developed amenity of an area”. The development amenity of the subject area comprises the residential development 30 metres away from the proposed development on its southern boundary but also comprises the David Low Way with its attendant 12,000 vehicles per day, the airport and will involve the development of the service station in the future.”

Precinct Classes, Planning Areas and Precincts

Volume 3 of Maroochy Plan 2000 has the following explanation in section 1.2:

“... development is intended to be responsive to the individual character and needs of the many different localities across the Shire. This has been reflected in the way the Shire has been divided for the purposes of this Planning Scheme.
This Volume of the Planning Scheme includes descriptions of the following for the whole Shire:
·Precinct Classes,
·Planning Ares, and
·Precincts.

As previously described, the Shire of Maroochy has been divided into 30 Planning Areas. These Planning Areas have been divided into over 300 Precincts. For easier use, theses Precincts have been categorised into 18 Precinct Classes.
...
Each Precinct Class identifies a general intent for individual precincts which are similar in nature throughout the Shire, eg. low density residential.
Each Planning Area provides an overall description of the character and relevant issues for the district or local area ...
Each individual Precinct describes the unique character of the particular locality within the relevant Planning Area.
The applicable Precinct Class intent should be read in conjunction with the relevant Planning Area and specific Precinct description when an application for development requires impact assessment.”

Section 2.2 contains the General Intent for Residential Precincts, in particular:

“(2) Neighbourhood Residential
...
These precincts are intended to provide for development for low density urban, town and village residential purposes and for compatible purposes which directly service residents in the locality. The establishment of quality residential neighbourhoods in a cost-effective manner, is desired and the provision of choice in housing is encouraged. Housing densities are to be consistent with the desired character of individual precincts.
While an overall average density of around 8 to 9 dwellings per hectare is envisaged, pockets of higher density (ie. 9 to 12 dwellings per hectare) residential development may be located within easy walking distance of shopping, public transport and/or school facilities, and/or close to major public open space. Lower density development (ie. less than about 8 dwellings per hectare), or clustered pockets of higher density development, may be alternative means of achieving minimum environmental impact on land which may be steeper or low-lying, have significant remnant vegetation, or adjoin productive rural land.
...
Council intends that all residential development should respond to and respect local climate, landscape and character. This includes the provision of continuous and linked open space corridors along rivers, creeks and other major drainage lines intended to be developed for multiple use purposes which may include:
...
·providing opportunities for the development of a network of paths and trails for walking, horse-riding, cycling and bushfire management, and

..
Some of these precincts comprise older residential areas containing buildings, groups of buildings and streetscapes which have heritage and character values. This value is intended to be recognised through either conservation of the existing buildings, structures and spaces or sympathetic new development.
...
Non-residential purposes that may be appropriate on land in these precincts include parks, churches, local shops, community facilities, and businesses carried out by residents in their own homes where such business activity does not adversely affect the amenity of the locality by way of noise, traffic generation or otherwise.
Neither industrial nor higher order commercial uses are intended as such uses are likely to have an adverse impact on residential amenity, and are better located on land in other, more appropriate, precincts.”

Provisions such as the last paragraph set out were said to go just about as far as planning schemes may under the IPA towards prohibiting uses. There are similar provisions, as will be seen, applicable to the relevant Precinct. It might be noted that an identical paragraph completes the description of Multi-Storey Residential Precincts (in which six, sometimes ten storeys may be permitted). In Mixed Housing Precincts, the word “intended” is replaced by “considered consistent with the desired character of these precincts” – in Multi-Storey Residential, the Mixed Housing provision is repeated with the sole explanation given being that the disapproved uses are better located in more appropriate precincts. The proscription for Hillslope Residential Precincts is stronger:
“Few, if any non-residential purposes are considered appropriate on land in these precincts.”

Section 2.3 identifies “Local Centres” as the preferred locations for local community facilities such as local parks, community halls, childcare and churches. The provision has some relevance insofar as Surfing World has an educational aspect which may qualify it as a community facility.

Relevant provisions in respect of Planning Area No. 9 – North Shore are as follows:

“3.9.1 Location and Role
This Planning Area includes the Sunshine Coast Airport and surrounding lands, including the localities of Mudjimba, Pacific Paradise, North Marcoola and South Marcoola and the emerging residential development of Twin Waters.
...
The role of the area is to provide for residential communities, the significant tourist resorts of Twin Waters and Surfair, and the regional Sunshine Coast Airport, which are all in close proximity to the regional centre of Maroochydore.
3.9.2Vision Statement

(1) It is intended that:
The natural environmental qualities ... be retained to preserve the environmental qualities of the locality and to provide a natural setting for residential and tourist development occurring within the Planning Area.
The Sunshine Coast Airport will continue to expand ..
New development is to occur in recognition of the constraints presented by airport operations and the drainage characteristics of the area. ...
(3) This means that:

(a) ...

(b) the residential amenity, existing character and community needs for the area will be retained and enhanced where possible;

(c) the tourism potential of the area will be recognised and promoted;

(d)the Airport’s existing and potential future operational needs will be recognised and protected;

(e)development and use of surrounding premises will be compatible with the airport’s existing and future operations, such that airport operations will not be affected and land use conflict is minimised;
(f)airport operations will have some impacts on surrounding residential communities, particularly in terms of noise, which will require resolution;
(g)the airport’s operational requirements are acknowledged as a significant constraint to new development in the surrounding area;
(h)...
(i)drainage is recognised as a significant constraint to new development; and
...

3.9.3Key Character Elements

(1)    Location of Uses and Activities
(a) ... The airport is to remain and be allowed to be developed to
      meet regional growth in air transport.
(b) ... Council intends to protect the Airport’s existing and future
      operational requirements, and to provide for the most
      appropriate and compatible development and use of surrounding
      premises.
(f)Tourist facilities at Mudjimba and Marcoola are to be retained and enhanced to maximise tourist and economic opportunities. The strip of land between the David Low Way and the beach (the ‘tourist accommodation strip’) is intended as a focus for tourists and other visitors through the provision of extensive tourist accommodation and limited commercial activity, mainly in the form of restaurants and entertainment facilities.
(g)A commercial and community focus is to be encouraged in a

central location based on the existing commercial centre in
Timari Street.
....
(h)Commercial development is not encouraged elsewhere in the
Planning Area – in particular commercial ribbon development is not to occur along the David Low Way.

(4)    Access and Movement
...
(d)   Development of a clearly defined and easy to understand
     pedestrian and bikeway network to facilitate commuter and
      recreational walking and cycling is intended, especially to
      provide and strengthen links to and along the beachfront,
      riverfront and adjacent foreshore areas. New development will
      facilitate the pedestrian and bicycle network.”

The site is located in Planning Area No. 9, in Precinct 12, Mudjimba. It does not come within the “tourist accommodation strip” which is Precinct 2 Marcoola Tourist Precinct (nor in Precinct 5 Marcoola Business Incubator). The whole of the provisions made are relevant:

“A. This precinct comprises most of the existing seaside village of Mudjimba and includes some adjacent undeveloped land. The village has an attractive relaxed character. This is a reflection of its origins as a seaside holiday destination and extensive strands of melaleuca trees within the street reserves and in private gardens. The precinct’s character is also influenced by the predominance of soft verges in the streets and the low density and small-scale of development.

B. A naturally vegetated esplanade area separates the precinct from the surf beach, which contributes significantly to the pleasant character of the precinct, as well as providing significant protection against coastal erosion. This vegetation is to therefore to be protected.

C. A considerable portion of the precinct is likely to be affected by aircraft noise from the existing runway configuration of the Sunshine Coast Airport. Many new premises are therefore to be designed and constructed in accordance with relevant Australian Standards to mitigate the operational impacts, in particular noise, of aircraft using the nearby Sunshine Coast Airport.

D. In addition, the eastern part of the precinct is located with(sic) a Coastal Management Control District (Area Prone to Coastal Erosion) and is subject to the requirements of the Coastal Protection and Management Act and any Regional Coastal Management Plan.

E. The precinct’s proximity to a fine surf beach is likely to generate a gradual increase in demand for housing and some pressure for redevelopment. However, the development potential of the precinct is constrained by the extent and relative newness of establishing housing, poor access to community infrastructure, the Coastal Management Control District (Erosion Prone Area) and in particular, exposure to aircraft noise. Therefore, future development should be limited to low density premises to reduce the extent of noise impact, and any impacts from coastal erosion, and to retain the coastal village character of the precinct. Detached housing is therefore appropriate throughout the developed part of the precinct as the predominant form of use.

F. Part of the precinct at the north western corner remains undeveloped. This part of the precinct has lagoons and flat low-lying land, much of which is subject to periodic inundation. The precinct contains areas of ecological significance that are directly related to hydrological characteristics and warrant conservation. The land has frontage to existing streets from the developed areas of the precinct as well as from the David Low Way.

G. Some of this land has been previously proposed for residential use but much of the land in the precinct is not considered suitable for conventional urban residential development due to locational constraints, flood susceptibility, wetland and ecological values, infrastructure provision and exposure to aircraft noise. Consequently most of this land should be protect from conventional residential development to:
·provide for the conservation of valued habitats,
·enhance the existing coastal wetlands landscape character,
·allow for more innovative and sensitive residential development that can better respect and complement the landscape and environmental values of the precinct,
·allow for premises to be established only on those location that are least constrained by biophysical, infrastructure and airport related constraints, and
·provide for sensitively designed, low impact and quite low density premises compared to conventional suburban residential use.

Preferred and Acceptable Uses

H. Preferred uses within this precinct are those referred to in the Table of Development Assessment (refer Vol 1) for the Neighbourhood Residential precinct class. In the north western undeveloped section of the precinct, such uses are appropriate where the landscape and environmental values and constraints of the area are respected.

I. Undesirable use includes residential uses at higher densities and commercial and industrial uses, or buildings which are not in keeping with the desired residential character by exceeding the predominant building height of two storeys.

J. Other forms of residential use may be appropriate in the north western undeveloped section of the precinct where developed in response to the site characteristics and environmental characteristics. A range of alternative forms and patterns of built form may be considered in this part of the precinct. This range may include compact groupings of small lot housing, clustered dwellings and attached or detached dwellings on very large lots, where overall density does not exceed that indicated by the Preferred Maximum Density provisions below. Proposals should respond to the characteristics of individual sites and demonstrate their appropriateness.
Landscape and Built Form

K. New development should contribute to a high standard of residential amenity. Buildings should exhibit a residential character and respect the scale and amenity of adjacent existing premises. Premises should incorporate attractive landscaping that complements the character of the precinct’s established gardens. Any substantial existing trees or areas of garden considered to be of significance to the character of the precinct should be retained and incorporated within the new premises. The precinct’s streetscapes should be enhanced with additional planting of appropriate trees.

L. Development in the Coastal Management Control District (Area Prone to Coastal Erosion) is to comply with the requirements of the Coastal Protection and Management Act and any Regional Coastal Management Plan for the area. The area affected is outlined in the Special management Area regulatory map found in Volume 1 of this Planning Scheme.

M. New premises in the areas affected by airport operations should be designed and constructed in accordance with relevant Australian Standards to mitigate the operational impacts of aircraft using the nearby Sunshine Coast Airport. These requirements are outlined in the Local Area Code – Development in the Vicinity of the Airport found in Volume 4 of this Planning Scheme.

N. Development in the north western undeveloped section of the precinct is to:

·be designed and located such that its visual and physical impact on significant habitats and the landscape character of the precinct is minimal,
·not be located in wetlands,
·not involve large amounts of landfill,
·be preferably located where vegetation has previously been cleared and access can be achieved without adverse impact on the landscape or the amenity of the locality,
·minimise clearing of the native vegetation other than for previously approved sites for dwellings and ancillary buildings and necessary infrastructure,
·conserve and enhance existing mature vegetation,
·provide landscaping which blends development into the predominant landscape character of it environs, and
·restore areas which may have been damaged by construction work or previous inappropriate vegetation clearing.

Preferred Maximum Density

O. For development in the north western undeveloped section of the precinct:

The density of any new lot created in this precinct shall be in accordance with the Code for Reconfiguring a Lot. However land in the precinct should not be simply divided into the minimum area. Such lots may be appropriate in some parts of the precinct but inappropriate in others.
The minimum area per dwelling may be used as an average density that can be applied over a site to derive a maximum Dwelling Unit Factor for alternative forms of residential premises.
Individual buildings should not exceed a building plan envelope area of 300 square metres where the maximum dimension in any single direction is 30 metres.
Buildings should be located such that they have minimal visual impact on the predominant densely vegetated character of the precinct. The positioning of buildings should therefore be determined having regard to the nature of individual sites with respect to matters such as:

-     degree of exposure to nearby streets and roads and adjacent premises
-     degree of visibility when viewed from further afield
-     opportunities afforded by areas which may be partially clearly or of lower conservation value
-     the need to avoid destruction of mature habitat vegetation

For ease of reference paragraphs have been identified by (added) capital letters.

There are some curiosities about Precinct 12. It does not include “the central portion of the original seaside village of Mudjimba”, which is Precinct 13 Mudjimba Village East (Precinct Class = Mixed Housing). Attractions such as proximity to a fine surf beach have been regarded as giving rise to a demand for housing and pressure for redevelopment; this part of Mudjimba is said to be suitable for higher density housing to fulfil that need. Shops, fast food stores, restaurants, offices, medical centres and veterinary clinics “may .... be appropriate”, likewise community uses including childcare centres, community hall, meeting room or church, but “undesirable use includes other forms of commercial and industrial uses, or buildings which are not in keeping with the desired residential character by exceeding the predominant building height of two storeys.” Precinct 13 is surrounded by Precinct 12, except for the southern half of the zig-zag eastern boundary, where the frontage is to Mudjimba Esplanade and for the eastern 20 per cent (or thereabouts) of the zig-zag southern boundary where the link is with Precinct 14 Mudjimba Community Land (Precinct Class = Special Purpose) – across Ironwood Street.

Precinct 12 itself in the south extends to Cottonwood Street and then to Noojoor Road coming to the point where the latter turns to become a north/south thoroughfare. The western boundary (another zig-zag) is roughly represented by an imaginary projection of Noojoor Road to the David Low Way. The site itself contains the only part of the northern boundary of the Precinct which extends to David Low Way. Immediately to the west is a very large site in Precinct 11 North Shore Rural (General Rural Lands), a service station and shop development having been approved in the area fronting the road; to the east of the site lies more Precinct 11 land with a frontage to David Low Way. This is the property of Mr Le Compte, who gave evidence for the co-respondent favourable to its proposal. The last part of the eastern side of David Low Way, to the point where it turns to become a north/south road at Precinct 2, is Precinct 17 North Shore Waterfront and Islands which, in this area, includes Mudjimba Esplanade and most of the land south of Precinct 14 all the way to the Maroochy River. But for the Le Compte Precinct 11 land and a similar sized portion of Precinct 17 land immediately to its east, Precinct 12 would extend along David Low Way to Mudjimba Esplanade, which forms its eastern boundary. I have yet to mention (and no particular mention was made during the appeals of) more Precinct 12 land which appears to be a subdivision of a couple of dozen residential blocks on either side of Mudjimba Beach Road west of Mudjimba proper and separated from the bulk of Precinct 12 in Planning Area 9 by the Precinct 11 area to the west of the site, which extends much further to the south, having as its neighbour in the east (and south of the site) a low density residential development which has recently been completed (Mudjimba Shores).

Suitability of site for residential development.

The Maroochy Plan 2000 provisions regarding Precinct 12 are somewhat curious in their emphasis on undeveloped land, which most of the provisions are concerned with, rather than having general application throughout the Precinct. Essentially, the site seems to be the only undeveloped land in Precinct 12, now that Mudjimba Shores is developed, although there appears to be a further undeveloped area at the south-west of the Precinct behind the subdivided homesites on the western side of Conebush Street. All or most of an undeveloped area at the north eastern tip (ie diagonally opposite the area just mentioned) is being developed for residential purposes pursuant to this court’s decision in SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36. The court there considered that noise issues did not justify refusal of such development. Suggestions made in these appeals that the site is unsuitable for residential development because of the airport were not at all persuasive.

On the evidence given in the appeals there is nothing about the site to justify a concern expressed in the Plan about areas of ecological significance warranting conservation. There are no lagoons on the site – or, for that matter, on other undeveloped land in the Precinct. The site, while it has a David Low Way frontage, does not have “frontage to existing streets from the developed areas of the Precinct”; indeed, the Council and Halcagni based much of their cases on amenity aspects on the extent to which the site and the nearby “developed areas”, that is, Mudjimba Shores, had been deliberately divided by a combination of street layouts and a drainage reserve which is not easily crossed.

I toyed with the idea that the use of expressions such as “north western corner” and “north western undeveloped section” might have been adopted to indicate a division of the Precinct into a north western sector and a south eastern sector, to one of which land must be assigned, by analogy with the former division of Germany and Berlin in particular into “east” and “west”. There is probably little future in this approach. One cannot overlook the reference to “the eastern part of the Precinct” in paragraph D (in [25]); as noted, it seems that a search of the expanded “north west” would yield no more “wet land and ecological values” and the like than would the site alone. One might speculate that adjacent Precinct 11 areas might offer more. Whether or not other land in the Precinct is referred to as well, it is certainly the case that the site “has been previously proposed for residential use.” There was an approval, since lapsed, for rezoning of the bulk of the site Residential A, for which 32 residential lots were proposed. An area roughly the shape of an equilateral triangle in the north eastern corner was rezoned Residential B; its area was 7,100 square metres (Lot 33) and attached/duplex style housing was proposed for it. The evidence in the appeal was that this area, which might well have been more intensively developed, was said to be the lowest lying part of the site and the location of more mature trees which it might be desirable to retain. One could not be sanguine at all about the retention of the trees there should residential development occur, but if Surfing World goes ahead, only those trees will be retained which can be accommodated in the 480 space carpark, which occupies the north and west of the site, albeit at double the density of tree planting normally required.

The drainage system being established in the general area defies the land contours. In Mudjimba the system being developed will drain surface water away from the coast towards the west and south. Abutting the southern boundary of the site is a ten metre drainage reserve behind the last row of residential sites in Mudjimba Shores. Development of the site as now proposed and also as formerly proposed would be accompanied by provision of an additional ten metres width for that drainage reserve. The flow is to be westerly, to the point where water will be collected in the “airport drain” which is there to drain the Airport Reserve to the south. The drain is designed to be slow flowing; indeed, for most of the time it is expected there will be water in it. (Not too much should be made of the barrier it presently is between Mudjimba Shores and all the land to the north. I think the likelihood is that the drain will be bridged to provide connectivity for pedestrians and cyclists, at least. The proposed pathway designated MU3 in Maroochy Shire Open Space Policy Map 2(b) will not realise its potential if accessible to one side of the drainage reserve only.)

Substantial filling on the site will be necessary, however it is developed, of the order that has already happened in Mudjimba Shores.

Although at times Mr Skoien, who represented the Council, seemed to be submitting that the site was unsuitable for residential development on the basis of statements in the Plan’s discussion of Precinct 12, on the evidence the site is entirely suitable for low density residential development. It is plain that low density, as opposed to medium or higher density, has been selected in deference to noise (and possibly safety) impacts from the airport. The Codes in Volume 4 of the Plan make detailed provision (which no one contended was inadequate) for residential development by reference to established and predicted noise contours reflecting aircraft movements near the site. There are zones (not included on the site) where the relevant code precludes residential development, other zones (which are relevant to parts of the site at least) where the relevant Code provides for suitable noise attenuation measures to be incorporated in buildings. So far as the evidence goes, local residents, who are fully aware of the airport, accept its noise impacts; there are some who regard the movements of aircraft as a positive point of interest in the locality. Accepting that short term residents of an area are likely to be more tolerant of noise than residents who know they must confront and deal with it in the long term, there is nothing about this feature which points to the proposed development as more appropriate for the site than low density residential development. There was no suggestion that the airport would have any adverse impact on guests or patrons of Surfing World.

Does the proposed development conflict with the Planning Scheme?

It has been noted already as to preferred and acceptable uses for the Precinct that nothing in the Table of Development Assessment in Volume 1 assists Halcagni. The appellants argue that the proposed use incorporates a “commercial” one which is specifically designated “undesirable”. Until an amendment to its application made at the beginning of the second week of the appeal hearing, Halcagni was intent on “rubbing salt into the wound”, as it were, by “exceeding the predominant building height of two storeys.” Cf I in paragraph [25]. In my opinion, where a special case is established for an unanticipated use in a precinct, prima facie that use ought to conform with other precinct requirements, such as height restrictions – unless, of course, a convincing case is shown for relaxation. While there is in respect of the site an invitation to “other forms of residential use” (than detached housing), in my opinion that invitation does not extend to non-residential uses. The residential accommodation aspect of the proposal is, on any view, well in excess of the number of persons per hectare contemplated under the Preferred Maximum Density provisions. The Surfing World proposal is at once “an undesirable use” because it “includes residential uses at higher densities” and because it is a commercial use. Cf I again. The proposal is not harmonious with “the precinct’s character ... of ... low density and small scale of development” (A). There is nothing anywhere in the vicinity coming near the “bulk” of the residential buildings, which will be visible from south of the site, even after screen planting has been in place for some years. The proponents of the proposal argue that none of this matters. Relying on s. 8 of the Strategic Plan, they contend that a stand-alone tourist facility may be established – if not in any precinct, at least in Precinct 12 of Planning Area 9. As to the provision in 8.4.3 that such facilities “may be supported in areas otherwise unsuited to urban development”(see [19]), Halcagni argued that on the proper interpretation “supported” should be regarded as followed by “even” as opposed to “only”. The ambiguity revealed in the sense when this issue is posed suggests it may be advisable to redraft the sentence to make its meaning clearer. It is difficult to appreciate what work is done by the word “otherwise”.

On amenity issues, Halcagni placed reliance on Wooden v Woongarra Shire Council (1984) QPLR 206, 210, where it was noted that a consent use is “always one which residents of the area ought to have had in mind as a possible use.” A collection of dicta to similar effect appears in Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455, 456-57. So far as issues bearing on the amenity of residents of a local area are concerned, I cannot accept that the provisions of s. 8 of the Strategic Plan give anything like comparable notice to residents or would-be residents of the possibility of a large stand-alone tourist facility being established in a low density residential Precinct.

The court is grateful to Mr Ure who, after the hearing, responded to an inquiry whether in Maroochy Plan 2000 there were any Precincts in which tourist facilities were singled out expressly as inappropriate. The provision:

“Large scale, intensive uses which are proposed to attract tourists are likely to detract from the general rule amenity and character of the precinct and are therefore considered inappropriate”

is encountered in Planning Area No. 29 – Obi Obi Creek Valley in Precinct 2, Obi Obi Creek Pastoral (Precinct Class = Sustainable Pastoral Lands), Planning Area 30-Mary River Precinct (1) Mary River Valley – General Rural (Precinct Class = General Rural Lands) and Precinct (2) Mary River Valley Pastoral (Precinct Class = Sustainable Pastoral Lands), with the addition in the last case of “and pastoral production” after the word “character”. Different formulae are used for Planning Area No. 29 Precinct (3) Obi Obi Valley State Forests and National Parks (Precinct Class = Special Purpose) and Planning Area 30 Precinct (3) Mary River Valley State Forests and National Park (Precinct Class = Special Purpose):

“It is not envisaged that high impact facilities, such as tourist resorts, shops or large structures be located in the precinct. Rather, if necessary, these facilities should be located in adjacent rural areas or in Kenilworth (or Mapleton).
It is intended that the precinct be managed by the State government in accordance with relevant legislation ...
Commercial or residential uses, such as shops and integrated resorts and other high impact tourist facilities, are inappropriate in this precinct.

The special provision made for State Forests hardly requires explanation. As to the other three instances, the explanation for this minor triumph of Mr Ure’s (noting that there is nothing similar in Planning Area 9) may be special pleading by local people. It is unsurprising that special pleading might lead to some success. One interesting example is found in Planning Area 9 Precinct (10) Pacific Paradise where “the intent ... is to remain a neighbourhood of detached houses, with maintenance and enhancement of existing character” and “undesirable uses include all commercial use ... also buildings which are not in keeping with the desired residential character by exceeding the predominant building height of two storeys”, it also being noted there is “little justification for commercial development which intrudes into an established residential neighbourhood”. The Intent provisions nevertheless conclude:
“A tourist facility (Nostalgia Town) is located on Lot 3 RP 195794. It is intended that the facility be retained and enhanced to maximise tourist opportunities in the area.”

There is no similar “foot in the door” for tourist facilities in Precinct 12.

“Urban development” is explained in s. 3 of the Strategic Plan as embracing:

“Development in those areas where residential uses of an urban density dominate and includes those uses (principally commercial and retail, social and educational facilities and industry) which are required to service the residential area and are normally integral components of such areas.”

I think that tourist facilities come within commercial development. Indeed, s. 4.2 identifies “tourist centres, primarily at Mooloolaba, Coolum and Montville, which provide a range of commercial, retail, service and entertainment facilities satisfying the needs of tourists” as part of the retail hierarchy and, in 4.3.6, part of the hierarchy or system of centres. 4.3.6 provides that “the concentration of tourist facilities in the identified tourist nodes is encouraged.” Section 4.4.1 indicates that:

“26.Tourist centres are intended to be developed in accordance with the implementation criteria of s.8.0”.

What might take tourist facilities out of “urban development” is their servicing a far wider market than the local area. Some flexibility is called for in applying planning scheme restrictions to facilities expected to have a local clientele. Cf Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143, 147, Phil Fletcher Planning and Investment Services Pty Ltdv Brisbane City Council (1999) QPELR 16, 17. In some respects, local residents would be served by Surfing World. Some may be interested in using the wave pool, or viewing entertainments, others might be interested in patronizing the restaurants or takeaway food and commercial outlets. The discordant note may be introduced by the attraction of thousands of outsiders daily to the proposal, if it is successful. It could hardly be said Surfing World is “required” to serve the residential area or was a use “normally integral”. It would be difficult to challenge Mr Beard’s assessment (at 573-74):
“It's a substantial development and the traffic generations, the car parking provisions, all the rest of it, we are talking about the equivalent of a large neighbourhood shopping centre. We're not talking about, you know, Myer Chermside or Garden City, we are talking about a large neighbourhood shopping centre, perhaps something of the equivalent of four or 5,000 square metres, a major supermarket and a bunch of specialty shops. That's the sort of traffic generation, parking demand that we are talking about.
A major supermarket of what 2,800 square metres or thereabouts?-- Probably in the order of 3,000 square metres.
And 1,200 metres of specialty shops. That would create a parking demand for about 440 cars?-- Of that order, yes.
In that respect, in traffic engineering terms, are you able to say whether this proposal will have a character that is clearly a commercial character in traffic, pedestrian and vehicular terms or whether it will have something more akin to a residential development?-- I don't see it as being even vaguely residential. It's a straight commercial development.”

(It was not claimed that Mudjimba would bear the traffic impacts, which are likely to be confined to David Low Way.)

Mr Trotter’s written submission (on behalf of the appellants) picked up some Strategic Plan provisions relating to the Urban designation, over and above those noted already and similar statements in ss. 7 and 8:

“At page 14, Volume 2 in the implementation provision of 3.5.6, when Council is considering applications for non residential uses in the urban areas that:
“Approval is only likely to be granted to development of retail, commercial and service uses which offer a service only (my emphasis) to local communities (other than in the key regional centre of Maroochydore) and are consistent with the intent for, and the desired character of, the planning area in the precinct in which it is to be situated.” (Again, my emphasis).

Further at paragraph 3 on page 14 of Volume 2, the following words appear:
“Consideration will be given to the impact of noise, dust, smell, light and traffic on neighbouring properties by assessing the nature of the proposed activities, the proposed buildings and the site layout,…”

And at page 15, sub-paragraph 4:
The Council is unlikely to support applications for development which may (my emphasis) create significant impacts on residential amenity and therefore should be located in designated industrial areas.”

As the co-respondent’s development application required impact assessment, s. 3.5.14(2) of the IPA applies:

“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 planning grounds to justify the decision.”

In my opinion, while there may be room for arguments both ways, it does not appear that the implementation of the proposal would unduly “compromise the achievement of the desired environmental outcomes for the planning scheme area”, given that a Shire-wide approach is to be taken. So far as references to local communities or residential communities are concerned, Surfing World ought not to be seen as compromising safety (notwithstanding the views of some residents). However, as to DEO No.2 there is an issue of “separation and management of conflicting land uses”. Again, there is room for argument about whether the proposed premises “are consistent with local desired character” and “respect the natural environmental characteristics and capacities of the locality”. See DEO No.6. The isolation of the site tends to allay concerns. It is somewhat difficult to see that the development would “complement and strengthen the key elements of character reflected in the intent statements for the planning area and precincts” (ibid. Strategic Implementation Measures); once again, in practice, once the three storey accommodation buildings were removed from the proposal, and on the basis that landscaping would be as successful as the co-respondent’s evidence suggests, I would find it difficult to say achievement of the DEO’s for the planning scheme area is compromised. However, I find the conclusion inescapable that the proposal conflicts with the Planning Scheme, which I am unable to read as giving “carte blanche”, as it were, to tourist facilities. The conflict is less easily overlooked given the relative recency of the planning documents.

Speaking generally, I agree with the areas of conflict suggested by the appellants’ expert planner, Mr Ryter. One group of conflicts identified is with provisions which indicate tourist facilities of the kind proposed ought to be in some other place, consistent with locations identified as desirable. The other group of conflicts, the more important group, to my mind, indicates that in Planning Area No. 9, Precinct 12 in particular, the proposal is not desirable, not to be supported, and the like, to adopt the formulae now appropriate where outright prohibition of uses is impermissible under the IPA.

Dealing first with the Strategic Plan, although local residents would undoubtedly use Surfing World in practice, it is not reasonably characterized as providing “activities required to serve the day to day needs of local communities”. There is conflict with Clause 8.3.2, not set out above, which provides:

“The role of the larger coastal communities as the dominant tourist precincts is recognised through identification and promotion of specific tourist nodes enabling the concentration of tourist facilities and minimising the impact of tourist areas on other residential areas.”

In Planning Area 9 itself, the “tourist accommodation strip” (Precinct 2) is indicated as a focus for tourist activities, while the focus for commercial and community activities generally “is to be encouraged in a central location based on the existing commercial centre in Timari Street.” What exists at that location at present will be expanded. For example, a tavern has been approved. I think Mr Ryter is correct in saying that the proposal would create a significant commercial node outside, and significantly removed from the identified commercial focus for the Planning Area at Timari Street. Notwithstanding Mr Ure’s argument that the proposal envisages a single access point, rather than a multiplicity of accesses, it also tends to commercial ribbon development upon the David Low Way, in my view, particularly bearing in mind that its southern neighbour will be a service station and shop. Although there will be some planting, the site would present to the road as a 480 space car park. There is conflict with 3.9.2(2)(b) applicable in Planning Area 9 whereby new development within the existing residential communities at Mudjimba Beach, Pacific Paradise and North and South Marcoola having “a village character nestled alongside the foreshore” must “respect and enhance this established character.” Objections of a semantic character were directed to inclusion of Pacific Paradise in the list (I thought inappropriately); no similar objection could be made regarding Mudjimba. The scale, bulk and intensity of the proposal are difficult to reconcile with the established village character asserted.

Turning to Statements of Desired Character specifically applicable to Precinct 12, there is conflict with the proscription that “future development should be limited to low density premises” notwithstanding anticipated pressure for redevelopment, (given inter alia) poor access to community infrastructure, erosion and aircraft noise issues, “and to retain the coastal village character” of the precinct: “Detached housing is therefore appropriate throughout the developed part of the precinct as the predominant form of use.” See E, in paragraph [25]. At this point it might be noted that the site is not in the “developed part of the precinct” but that on the evidence it lacks the environmental/ecological/natural values which somehow or other have come to be ascribed to the undeveloped north western section. I think there is conflict with preferred and acceptable uses intended for Precinct 12 insofar as higher density residential uses and commercial uses are proposed. These are said to be “undesirable”: paragraph I.

Indeed, working through the 15 paragraphs of the relevant Statement of Desired Precinct Character set out in [25], although there is a certain amount of repetition involved, one finds conflict with the majority of them. Thus:

AThe proposal is hardly harmonious with “predominance of soft verges in the streets and the low density and small-scale of development.”
EThe proposal does little “to retain the coastal village character of the precinct (with) detached housing … as the predominant form of use.”
GThe proposal is not for “sensitively designed, low impact and quite low density premises compared to conventional suburban residential use.”
HThe proposal finds no support in the Table of Development Assessment (refer Vol 1) for the Neighbourhood Residential Precinct class. It is difficult to see that, being in the north western undeveloped section, it meets the additional requirement of respecting “the landscape and environmental values … of the area.”
I“Undesirable Use”, being “residential use … at higher density and commercial use”, remains, even with building heights reduced so that they are no longer out of “keeping with the desired residential character by exceeding the predominant building height of two storeys.”
JThe proposal goes beyond the latitude extended in the “north western undeveloped section” to permit, for example, “compact groupings of small lot housing … where overall density does not exceed that indicated.”
KThe proposed buildings do not “exhibit a residential character and respect the scale and amenity of adjacent existing premises.”
NIt cannot be said the buildings proposed are “designed and located such that … visual and physical impact on … the landscape character of the precinct is minimal.” (Although the proposal may “involve large amounts of landfill”, it seems to me to involve no more potential problems for the environment in this regard, or in other desiderata indicated in N calculated to preserve native and mature vegetation, than would conventional residential development.)
OApart from preferred maximum density levels being exceeded, the buildings proposed will not comply with the requirement that they “not exceed a building plan envelope area of 300m² where the maximum dimension in any single direction is 30m” nor will they be “located such that they have minimal visual impact on the predominant densely vegetated character of the precinct” or positioned sensitively having regard to the considerations set out in this closing paragraph of the Statement of Intended Character.

While I would accept Mr Ure’s submission that “density” provisions applicable in the precinct should not necessarily be applied rigorously when a different kind of development (tourist facility) is contemplated, rather than the expected residential development, “density” considerations remain a factor. The main difficulties the proposal must confront concern intensity, bulk and scale. On the southern boundary (more correctly, separated from it by a “landscaped buffer” of 10m serving to increase the separation from lots in Mudjimba Shores to 30m), there is proposed a line of accommodation buildings, difficult to distinguish from a single building, some 180m long, something plainly out of sympathy in its scale with the developed amenity of the surrounding area. Even if the co-respondent’s ambitious landscaping goals, which, on the evidence, markedly exceed what developers might normally aim for, are achieved, residents of and visitors to the locality will, nevertheless, be aware of the development. It defies credibility to assert there will be no perceptible impacts.

I agree with Mr Skoien’s submission that the current contribution of the subject land to the existing residential development in Mudjimba Beach is to provide a substantial vegetation screen in the northern extremity of that existing residential development. He went on to submit that the landscaping of the proposed development will likely perform the same function, maybe more effectively. I think that is difficult to accept. Although Mr Burrell’s evidence as to the extent of growth of the planting envisaged within, say, 3 years, was unchallenged, it requires something of a leap of faith to assume his expectations will be realised. Even if they are, it seems that mature vegetation in the open drainage area, which constitutes the foreground for the purpose being considered, will be lost.

By the end of the hearing, Mr Trotter was not asserting that noise or light impacts on their own, being real, but minor, would justify refusal of the development application. Traffic issues, which occupied some time at the hearing, went out of the picture. With support of their traffic expert, the appellants had asserted that Halcagni should dedicate a sufficient strip of land along the David Low Way frontage to accommodate widening of the road from two lanes to four, in accordance with one of the scenarios under consideration for its future; it was made clear by Mr Cochrane, for the second co-respondent, the State of Queensland, before he withdrew, that the Main Roads Department had no interest in a dedication of that strip (which, presumably, would result in a transfer of responsibility for management of it). The proposal, in fact, treats this strip of land as sterilised, and will not use it, except as additional open space. There is no reason to think that redesign of adjacent ‘slip lanes’ for vehicles entering or leaving the site could not easily be achieved to overcome apparent encroachment on neighbouring properties which may be depicted in current drawings.

The application should be refused. It is unnecessary to cite further justification than the gross conflict with what the planning documents state is intended for the precinct. Accepting, for the sake of argument, that a tourist facility is an appropriate use of the site, insufficient respect has been paid to designing it for compatibility with established amenity of the precinct, or, come to that, established residential amenity across David Low Way which is included in Precinct 6 South Marcoola (Precinct Class = Neighbourhood Residential). I appreciate little was said about Precinct 6, except for a demonstration on the “view” that access from the site could be so designed as to avoid or limit a nuisance from headlights of vehicles leaving at night. I do not think this means this court should have no regard to amenity impacts of the proposal on Precinct 6 land otherwise.

There is much about the site, and its location on a busy road that might have justified different provisions in the Maroochy Plan 2000; it might well have been recognised as an extension southwards of the “tourist accommodation strip” at Marcoola, to be developed similarly. The planning authorities did not take that approach. Mr Trotter referred to what Pincus JA said in Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206, 212:

“Citizens expect reasonable stability in the law’s treatment of permitted land use. It would be unfortunate if chapter 6 were used to defeat the reasonable expectations of those who have relied on, and perhaps expended substantial sums on the faith of, existing planning arrangements. The degree of flexibility which chapter 6 contemplates does not justify failure to give considerable weight to planning arrangements …”.

Accepting that the proposal would advance the Strategic Plan’s strategy in relation to tourism (and employment), there remains, here, unacceptable conflict with the planning arrangements applicable to the site, and a paucity of planning grounds that would support approval of the development application of Halcagni despite the conflict. In Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) QCA 277, it was indicated that, in the particular circumstances, where the developer had taken no steps to satisfy procedures in the relevant Development Control Plan itself which might have led to technical “conflict” being overlooked, “it would need to be an exceptional case” to justify approval, notwithstanding conflict, under s 4.14(5) and/or s 4.13(5A) of the Local Government (Planning and Environment) Act 1990. What appears to have led to the conclusion in that case was “the extent of the departure from (development standards set out in the DCP) and the consequent apparently gross overdevelopment of the site by the proposal”. (See para 107 of the Reasons for Judgment.) This is a rather different case, but I think it right to adopt a similar approach. I appreciate that the site could be regarded as isolated from the rest of its precinct, and be permitted to be developed in a special way, without impacts on the amenity of surrounding areas that would be too gross or unacceptable. In the circumstances, however, that is a determination which the planning authority ought to make, enshrined in planning instruments, rather than one for the court.

Stradbroke Island Management Organisation is not the only recent Court of Appeal decision to emphasise the essentially mandatory effect of the predecessor of s3.5.14(2)(b) of the IPA. See also Ballymont Pty Ltd & Anor v Ipswich City Council & Ors [2002] QCA 233 at [18] and Weightman v Gold Coast City Council & Anor [2002] QCA 234 at [15], [23] and [35]. Notwithstanding some difference in terminology, I think the same approach now has to be taken to s3.5.14(2) of the IPA, and that the authorities mentioned require the court to identify with some precision the extent of conflict with planning scheme provisions that will, in the end result, be excused. Since I am not contemplating an outcome excusing anything, it is not necessary to perform that exercise in detail.

I am conscious of the many statements found in the cases that one can find support in a planning scheme somewhere for almost any (relevant) proposition, and that caution should be taken before relying on any particular statement because it may in some way be inconsistent with the intent and meaning of the planning scheme, read as a whole. Here, there are too many statements in Precinct 12 Statement of Desired Character (most of them close to being site specific) indicating that the proposal represents over-development, for the court to ignore them. Putting it the other way, I think it would be a distortion of this very recently adopted planning scheme to allow its application to be controlled by Section 8 of the Strategic Plan and provisions there calculated to advance tourism in the planning area; even those provisions raise the issue of “compatibility”. A finding of compatibility (which I take to indicate ability to co-exist) would not be enough on its own to justify any and all conflict with other parts of the planning scheme.

The appeal is allowed, and the co-respondent’s development application is refused.

CITATION:	Mantle Pty Ltd & Ors v Maroochy Shire Council & Ors [2002] QPEC 047
FILE NO:	68/2002
PARTIES:	MANTLE PTY LTD, VYNARA PTY LTD, BODAON PTY LTD and PHILIP McGRATH AND WENDY McGRATH And Appellants MAROOCHY SHIRE COUNCIL Respondent And HALCAGNI PTY LTD First Co-Respondent And STATE OF QUEENSLAND Second Co-Respondent
FILE NO:	1012/02
PARTIES:	DEREK JOHN KENYON and ANDREW MELVILLE RENSHAW Appellants And MAROOCHY SHIRE COUNCIL Respondent And HALCAGNI PTY LTD First Co-Respondent And STATE OF QUEENSLAND Second Co-Respondent
FILE NO:	1015/02
PARTIES:	ANGELA COLEMAN Appellant And MAROOCHY SHIRE COUNCIL Respondent And HALCAGNI PTY LTD First Co-Respondent And STATE OF QUEENSLAND Second Co-Respondent
FILE NO:	1016/02
PARTIES:	ROWAN BERNARD STANLEY and JANET ALLISON STANLEY Appellants And MAROOCHY SHIRE COUNCIL Respondent And HALCAGNI PTY LTD First Co-Respondent And STATE OF QUEENSLAND Second Co-Respondent
DIVISION:	Planning & Environment Court, Brisbane
PROCEEDING:	Appeal
ORIGINATING COURT:
DELIVERED ON:	16 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	24 – 28 June, 1 – 5 July 2002
JUDGE:	Judge Robin QC
ORDER:	Appeal allowed
CATCHWORDS:	Submitter appeal against Council approval of material change of use for “stand alone tourist facility to be called Surfing World” – site located within Planning Area No. 9 North Shore under Maroochy Plan 2000 and in Precinct (12) Mudjimba (Precinct Class = Neighbourhood Residential) – Statement of Desired Precinct character called for low density residential development – Strategic Plan provisions calculated to advance tourism were said to justify approval of tourist facilities anywhere in the planning area where they were not expressly excluded – whether tourist facility “compatible” with developed amenity of locality – conflict with planning scheme found - no sufficient “planning grounds” to justify approval. Integrated Planning Act 1997 s3.5.14(2) Ecovale Pty Ltd v Gold Coast City Council (1999) 2 Qd R 35; 104 LGERA 341 Wootton v Woongarra Shire Council (1984) QPLR 206 Moodie v Albert Shire Council (1983) QPLR 316 Anton v Mulgrave Shire Council (1988) QPLR 203 Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council (2001) QPELR 382 Kelly v Toowoomba City Council 1995) QPELR 3 Randall v Northcote Corporation (1910) 11 CLR 100 Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455 SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36 Wooden v Woongarra Shire Council (1984) QPLR 206 Phil Fletcher Planning and Investment Services Pty Ltdv Brisbane City Council (1999) QPELR 16 Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143 Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) QCA 277 Weightman v Gold Coast City Council & Anor [2002] QCA 234 Ballymont Pty Ltd & Anor v Ipswich City Council & Ors [2002] QCA 233
COUNSEL:	Mr T.N. Trotter for appellants Mr A.N. Skoien for the respondent Mr S.M. Ure for the first co-respondent Mr W.L. Cochrane for the second co-respondent
SOLICITORS:	Connor O’Meara for the appellants Maroochy Shire Council Legal Services for the respondent Lestar Manning for the first co-respondent Crown Law for the second co-respondent