Noosa Chamber of Commerce and Industry v Noosa Shire Council

Case •

[2004] QPEC 16

•

12 May, 2004.

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Noosa Chamber of Commerce and Industry and Ors v. Noosa Shire Council and Ors [2004] QPEC 016

Tetrex Pty Ltd v. Noosa Shire Council and Ors

PARTIES:

NOOSA CHAMBER OF COMMERCE AND INDUSTRY INC.
1ST Appellant
NOOSA PARKS ASSOCIATION INC.
2nd Appellant
v
NOOSA SHIRE COUNCIL 
Respondent
MIROSE PTY LTD
Co – respondent

TETREX PROPERTIES PTY LTD
Appellant
v
NOOSA SHIRE COUNCIL
Respondent
MIROSE PTY LTD
Co – respondent

FILE NO/S:

48/03 and 49/03

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

12 May, 2004.

DELIVERED AT:

District Court, Maroochydore

HEARING DATE:

19th – 21st  and 29th  April, 2004

JUDGE:

K.S. Dodds, DCJ.

ORDERS:

Appeal 48 / 03 - Appeal Dismissed

Appeal 49 / 03 – Appeal Allowed.  Application approved subject to condition 143 of the negotiated decision notice being amended

CATCHWORDS:

ENVIRONMENT AND PLANNING – Submitter Appeals – appeal against respondent’s approval of co-respondent’s development application for stage 1 of the Shire Business Centre, subject to conditions.  Appeal against conditions. Whether conflict with strategic plan ; whether sufficient planning grounds for approval despite conflict; impact on environment.

Legislation cited: Integrated Planning Act (1997) ss. 6.1.28, 6.1.29, 6.1.30 (a);

Local Government (Planning and Environment) Act (1990) ss. 8.2 (1), 4.4 (3), 4.4 (5), 4.4 (5A).

Cases Cited: Harburg Investments Pty Ltd v. Brisbane City Council 2000 QPELR 313;

Degee & Anor v. Brisbane City Council & Anor 2002 QCA 90;

Yu Feng Pty Ltd v. Maroochy Shire Council 1996 92 LGERA;

ZW Pty Ltd v. Peter R Hughes & Partners Pty Ltd;

Des Forges v. Brisbane City Council & Anor 2002 QCA 90;

Starich v. Redland Shire Council & Anor 2003 QPELR 3;

Grosser v. Council of the Gold Coast (2001) 117 LGERA;

Weightman v. Gold Coast Council (2004) 121 LGERA

COUNSEL:

Mr G. Gibson QC  (Co-respondent)

Mr R. Litster (Co-respondent)

Mr T. Trotter (Respondent)

Mr M Williamson (Appellant)

Mr R Milne  (Appellant in the second matter)

SOLICITORS:

P& E Law (Appellant)

Allens Arther Robinson (Respondent)

Hopgood Ganim Lawyers (Co - Respondent)

  1. This is a submitter appeal.  The appellants are the Noosa Chamber of Commerce and Industry Inc (NCCI) and the Noosa Parks Association Inc (NPA).  The appeal is against the decision of the respondent, Noosa Shire Council (Noosa) approving subject to conditions a development application of the co -respondent Mirose Pty Ltd (Mirose) for a material change of use of land for stage one of the Shire Business Centre.

  1. This appeal was to be heard together with another submitter appeal by Tetrex Pty Ltd (Tetrex) the owner of land adjoining Mirose’s land on its western side.  The Tetrex appeal sought only an alteration to conditions.  I was informed the condition issue had been agreed between Tetrex, Mirose and Noosa.  This is reflected in the document marked “A” for identification.

The Application

  1. On 19 June 2002, Mirose lodged its application with Noosa.  It was for a development approval for a material change of use for land for stage one of the Shire Business Centre on part of Lot 2 on SP 110885.  Following an information request on 6 November 2002  Mirose changed the application.

  1. On 1 May 2003, Noosa resolved to approve the application and granted a preliminary approval subject to conditions.  Mirose suspended the appeal period and made representations and provided further information to Noosa.  On 14 August 2003, Noosa resolved to issue a negotiated decision notice, granting a development permit with 225 conditions. There were also 25 concurrence agency conditions. Over the period of the assessment Noosa engaged a number of consultants to assist.

  1. Consequent upon the negotiated decision notice, stage one of the Shire Business Centre was to comprise:

·     A retail centre with shop floor space not exceeding 18,000 square metres total use area, containing a supermarket, mini – major, discount department store, specialty retail and professional offices.  Also included was a service station, restaurant, centre management, staff areas and public toilets;

·     A showroom component, not exceeding 7000 square metres total use area;

·     A commercial and business component not exceeding 5000 square metres total use area;

·     Areas of at grade vehicle parking. 

In all 15.47HA was involved in the above uses.

·     An open space component.  The open space component had an area of 12.5 HA approximately which included part of an existing electricity easement on its eastern boundary. It comprised the lower part of Lot 2, mostly below RL 3.0 metres AHD towards Eenie Creek. 

·     Extension of Eenie Creek Road and a proposed new roadway, Walter Hay Drive, which would link an existing roundabout in Eenie Creek Road with the Sunshine Coast Motorway to the south.

The Subject Land

  1. Lot 2 on SP 110885 has a total area of 50.77 ha. It is approximately five kilometres from Noosa Heads and four kilometres from Tewantin.  It is bounded on the north by Eenie Creek Road,  on the south by Eenie Creek and on the east by Noosa National Park.  To the west beyond the Tetrex land is an existing medium to heavy industrial precinct.  To the north across Eenie Creek Road is further industrial development.  The northern part is zoned “Future Urban”, and the southern part “Rural Pursuits”.  In Noosa’s Strategic Plan, gazetted 5 September 1997 the generally corresponding preferred dominant land use designations are respectively Shire Business Centre and Open Space – Conservation and Waterway Protection.

  1. Before proceeding further it is useful to state that the Shire Business Centre envisaged in the planning instruments is a very large project involving Lot 2 and the Tetrex land.  The development approval under appeal is only in respect of Stage 1 on part of Lot 2.

The Appeal

  1. At the outset of the hearing paragraphs 20 and 21 of the amended notice of appeal were abandoned. The remaining grounds of appeal called up provisions of the Strategic Plan and the Local Government (Planning and Environment) Act 1990 (the P&E Act). The primary focus was a 3.7 HA area for at grade parking which inevitably will involve clearing of vegetation and some excavation and filling. It asserted that in view of the provisions of the Strategic Plan about Noosa’s strategic vision, strategic principles, development principles and strategic aims regarding character and lifestyle, environment, landscape integration, flora and fauna protection, pollution prevention, road transport, and car parking the proposed development ought to be refused. It asserted that in view of the provisions of the Strategic Plan regarding its vision, objectives, and implementation provisions for the Noosa Heads / Noosaville locality the proposed development ought to be refused. It asserted that the approval was in conflict with the Strategic Plan and it listed a large number of ways in which it asserted that occurred. It asserted Sections 8.2 (1) and 4.4(3) of the P&E Act required the proposed development ought to be refused It asserted there were not sufficient planning grounds to justify approving the development.

  1. During the hearing it became apparent, as the appellant ultimately submitted, that there were three matters in issue:

·     Whether an area of the at grade parking in what had become sub precinct B2 had a deleterious effect on the environment;

·     Whether that at grade car parking area was in conflict with the strategic plan and master plan 2 (MP2);

·     Whether there were sufficient planning grounds to approve the application despite the conflict.

The appellant submitted that MP2 should be regarded as of significant weight, so much so that failure to comply with its provisions meant that the proposal was in conflict with the strategic plan, (paragraph 13 of the appellant’s submissions), or did not comply with the objectives of the strategic plan, (paragraph 15 of the appellant’s submissions). 

The Planning Legislation

  1. Noosa’s planning scheme is a transitional planning scheme for the purposes of Chapter 6 of the Integrated Planning Act 1997 (IPA).

  1. Impact Assessment of the application was required by Section 6.1.28 IPA.

  1. Section 6.1.29 IPA provides for matters which so far as relevant, apply in assessing such an application , here, the common material, the transitional planning scheme policies, the matters stated in Section 8.2 (1) of the P& E Act, the matters stated in Section 4.4 (3) of the P& E Act, and any other matter to which regard would have been given if the application had been made under the P& E Act.

  1. Section 8.2(1) of the P&E Act required Noosa to take into consideration whether any deleterious affect on the environment would be occasioned by the implementation of the proposal the subject of the application.

  1. Section 4.4 (3) of the P&E Act sets out a number of matters to which, to the extent they are relevant, Noosa was required to give consideration. The one in issue here was sub paragraph (f) “the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared)”.

  1. Section 6.1.30 (3) (a) IPA requires the application be decided under Sections 4.4(5) and 4.4(5A) of the P&E Act.

·     Section 4.4 (5); the application be approved, approved with conditions or refused;

· Section 4.4(5A); “The local government must refuse to approve the application if-

(a) the application conflicts with any relevant strategic plan or development control plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict”.

The Strategic Plan

  1. Noosa’s Strategic Plan came into existence in 1997. It contains broad based shire wide provisions and provisions for specific identified localities in the shire.  In its introduction Section 1 it is described as having three broad levels; Strategic Vision, Strategic Aims and Implementation Provisions by Locality.  The strategic vision is supported by four Strategic Principles and nine Development Principles.  It provides that all development should adhere to the strategic principles and development principles.  It then deals with the shire’s strategic aims for land use and planning.  These include, amongst others, environmental management aims, business retail and administrative development aims, industrial development aims, transport aims, and conservation and heritage aims.  All development must be consistent with the strategic aims.  The plan then moves “from broadly based visions, principles and aims” to more detailed provisions for eleven identified localities in the shire.  The vision statement for each locality  “identifies its physical setting, its levels of convenience, accessibility and servicing, its communities, its intent and key concepts for the future”.  Section 1.1.3.1.  Also provided is an indication of the preferred dominant land uses and other designations, objectives for the preferred dominant land uses for the particular locality, other objectives and criteria for implementation of the objectives.  Sections 1.1.3.2 to 1.1.3.5.

  1. The broad shire wide provisions of the Strategic Plan contain amongst its strategic principles that of “character” in which it is said that an “important development aspect of shire and locality character” includes “integration of the built environment with the natural landform and landscape”.  Section 25.1.1.3.  Amongst its development principles are a “landform integration principle” for “integration of development with the natural landform rather than modification of the land form to suit the development”. Section 26.1, and a “landscape integration principle” for “integration of development with the natural landscape rather than the modification of the landscape to suit the development or the introduction of a landscape which conflicts or threatens the viability of the natural landscape fabric”. Section 26.2.  Amongst its “strategic aims” for “business retail and administrative development” which    includes its economic role is “the business retail and administrative sectors are important contributors to the shire economy.  Nevertheless their significance is not so great as to warrant the setting aside of the shire’s core values and character, lifestyle and environment … in order to achieve short term economic and employment goals”.  Section 27.2.2.1.  Also included amongst these “strategic aims” are Sections 27.2.3.2 and 27.2.3.3 to which I will refer later.

  1. The vision for the Noosa Heads / Noosaville locality, includes that “a new business centre (Shire Business Centre) will be established which will service shire wide needs … The highest level of business, retail and administrative services will be accommodated in a multi function centre on Eenie Creek Road, east of the industrial estate.  Development of the centre will be staged consistent with the needs of the resident and visitor populations of the shire …”   Section 18.4.   Key concepts include “the development of the highest level of retail, business and administrative and industrial services in the shire in a multi function centre on Eenie Creek road east of the industrial estate.” 

Objectives and implementation of objectives for this vision for the locality included;  Section 19.3.1 to “provide for a multi function employment node serving shire wide needs and including provision for business, retail, administrative, community and industrial functions” and Section 19.3.1.1., “Land on Eenie Creek Road and a new road between Emu Mountain Road and Eenie Creek Road (Walter Hay Drive) will be developed as a multi function employment node catering for the highest level of business, retail and administrative facilities in the shire consistent with strategic aim 27.2.3.2”.

  1. Section 27.2.3 sets out strategic aims for business, retail and administrative development.  Section 27.2.3.2 is to “encourage development of the principal business retail and administrative centre on Eenie Creek Road Noosaville in stages consistent with the needs of the population of the shire” and, Section 27.2.3.3, to “protect the long term viability of the principal business retail and administrative centre to the extent that:

·     Short term needs may be set aside to ensure the medium long term implementation of the centre;

·     No other centres are developed in the coastal urban areas with the exception of those servicing predominantly neighbourhoods and local communities.”

  1. Section 19.3.1.3 provides “The shire business centre site will be developed in stages consistent with the needs of the community.  The first stages of development will only proceed following :

·     The construction of Eenie Creek Road between Eumundi Road and Reef Street;

·     Commitments being made for the construction of a new road between Emu Mountain Road and Eenie Creek Road ( Walter Hay Drive).”

  1. Section 19.3.1.4 provides “Planning and development principles are critical to the development of the Shire business Centre.  These principles, defined in 19.3.1.5 to 18 are to be refined as part of a master plan process.”

  1. Section 19.3.1.5 and 19.3.1.6 provide for preparation of a master plan to guide overall development in consultation with relevant stakeholders including the developer, Noosa Council, State Government Agencies, the local design community and key stakeholders in the area.  It was to be approved by Noosa Council and relevant state government agencies..  Sections 19.3.1.8 to 19.3.1.18 provide for design considerations and internal and external traffic movements.  The development was to have an internal focus and not be reliant on main road exposure.  Significant landscape buffering was required. The design was to be distinctive and unique, to be achieved by an outdoor focus “with the site’s topographic vegetation and local climatic features integrated into the development” including:

·     “Retention of existing vegetation as key landscape elements”;

·     “Existing drainage paths as key drainage patterns”;

·     Buildings were to be low rise “of mainly single storey buildings”;

·     Buildings were to be separate “rather than large bulky developments under a single roof”;

·     Design of buildings and the operation of the centre was to be energy efficient.

  1. There is no reference in the design considerations to underground or under building car parking.

  1. The broad shire wide provisions of the Strategic Plan contain strategic transport aims.  There is a program of guidelines for the construction of new roads which may be necessary to service developments envisaged by the strategic plan, to be determined by future assessment and environmental and amenity considerations including the extension of Eenie Creek Road and what is to become Walter Hay Drive. Section 27.10.3.4.   Car parking aims are set out at Section 27.10.4.  No reference is made to underground or under building car parking in that part of the Strategic Plan.  The only reference to that anywhere in the strategic plan is in the locality specific part of the plan for the Noosa Heads / Noosaville locality.  In the implementation provisions under this objective to encourage the consolidation of the Noosa Junction business centre “the design of developments within (this designation) will be predominantly 1 -2 storeys in height with any parking provided on site comprising a basement or a single deck which is not visible from public spaces.”

MP 2

  1. In early 1999 Noosa commenced preparation of the Shire Business Centre Master Plan Stage One Concepts (MP1). This was published in May 2001.  In September 1999, another developer lodged an application to develop the Shire Business Centre.  This application was refused in February 2001.  On 10 April 2003, Noosa adopted the Shire Business Centre Master Plan Stage 2 (MP 2).  MP 2 had been the subject of considerable consultation of the nature earlier described, including with Mirose whose application had been with Noosa since June 2002.  It is not confined to Stage 1 but addresses all the development envisaged to occur in all stages. 

  1. There can be no argument MP2 is not a very important planning tool for the Shire Business Centre. It must have considerable weight. However it is not a part of the strategic plan for the purposes of the P&E Act. Reference in Section 19.3.1.4 of the strategic plan to planning and development principles being critical to the development of the shire business centre and to the principles in Section 19.3.1.5 to 19.3.1.18 being refined as part of a master planning process do not make it so. Section 2.4 of the P& E Act sets out what is to be included in a strategic plan. The definition of strategic plan in section 1.4 of the Act requires that a strategic plan comply with section 2.4 of the Act and be “approved by the Governor in Council”. MP2 is not such a document.

  1. In Section 1.0 of MP2, its introduction, it claims to address the objectives of the 1997 strategic plan to provide for a multi function employment node serving shire wide needs and including provision for business, retail and administrative, community and industrial functions and to comply with the strategic plan.  In  Section 3 it sets out planning and design guidelines and principles.  It deals with amongst other things Retail Development, (Section 3.3), the Development Sequencing, (Section 3.4), Transport, (Section 3.5) Ecologically Sustainable Development, (Section 3.6) and Open Space and Landscaping, (Section 3.7).  It divides the identified land for the Shire Business Centre into identified sub precincts. Table 4.1.  Under its Planning and Design Guidelines and Principles, retail development is to occur in the first stage of development.

  1. Its transport section (3.5) contains principles to apply to the development of transport, and transport infrastructure.  Of particular relevance are “(h) key parking areas need to be located immediately adjacent to key generators.  In this respect the key generators will be the main retail areas and the key employment nodes” and “(j) car parking should be designed to avoid the appearance of large car parks.  This can be achieved through landscape and preferably retention of existing established vegetation in key areas to frame the car parking into almost discreet areas.  It is acknowledged that the car parks need to be visible with clear accesses.  Car parking is preferred under ground or under building for reasons of efficiency of land use, weather protection and an opportunity for more open space to be provided.  However it is acknowledged that the high cost of such parking can be prohibitive for the uses proposed without some other means of encouragement.  Covered parking at ground level can also be considered for the purpose of offering weather protection.  For non retail (my underlining) development, Council is prepared to reconsider the maximum plot ratio for development if under ground or under building parking constructed provided there is also a significant increase in open space on the site.  Retention of existing vegetation is preferred to landscaping treatment should the circumstances allow.”

  1. Its “Ecologically Sustainable Development”, (Section 3.6) provides “Development and operation of the site shall be undertaken in a manner that works within the ecological constraints and does not place ecological values at risk.  This approach is reflected in the objectives, intents and performance standards for individual sub precincts (see table 4.3).”

  1. In Table 4.3 (it is incorrectly shown as Table 4.2 in MP2) the primary and secondary functions, objectives, and intent and performance standards for every precinct are set out.  The large area of at grade parking which is at the heart of the appeal is in sub precinct B2.  The primary function of sub precinct B2  in Table 4.3, is “business” and the secondary function is “car parking and offices (3.1 ha)”.  The objective is “provision of principal parking and access for retail development in sub precinct B1.  These facilities will be added to by office functions if land is available.”

  1. In Table 4.3, the primary function of sub precinct B1 is “retail”.  The secondary function is “Retail centre and business (Shops including a discount department store) (3.7ha)”.  Its objective is “provision of the highest order retail facilities in Noosa shire in a centre of distinctive design that is unique, has an outdoor focus and is integrated with the site’s topographic vegetation and local climatic features.”  In its intent and performance standards it is said to comprise “the retail core of the Shire Business Centre site.  Most vehicular parking will be provided as part of parking facilities in Sub Precinct B2”.  In its intent and performance standards it is said that “sub precinct B2 comprises a car parking orientated precinct with additional commercial offices if land is available after provision is made for car parking.   Along with Sub Precincts B1 and E1, Sub Precinct B2 comprises the core of the Shire Business Centre.  Its functioning is critical to the successful operation of traffic management, parking schemes and pedestrian movements through the overall site.

(a) Parking facilities servicing sub precincts B1, B2 and E1 with primary points of access located along the loop road.  It is desirable for  a substantial part of the parking to be at basement level under a building or otherwise covered.

(b) An important objective of the design shall be to avoid the appearance of a large single car park.  This can be achieved through landscape and preferably retention of existing vegetation in key areas to frame the car parking into almost discrete areas.  It is acknowledged car parks need to be visible with clear accesses.

(c) The design of the parking area shall include adequate provision for pedestrians, cyclists, bus transport and taxis.”

  1. Sub precinct E1 is not part of Stage 1.

Discussion

  1. Most of the evidence in the appeal was from Noosa and Mirose.  The evidence from NCCI and NPA was from a town planner Peter Priddle (Priddle).  The appellants also tendered a document by the Noosa Parks Association Inc, entitled “Submissions made by Noosa Parks Association Inc” addressed to the Chief Executive Officer of Noosa, Exhibit 43.

  1. The evidence from Mirose was from a town planner Stephen Reynolds (Reynolds) a landscape architect Gregory O’Brien (O’Brien) an architect John Mainwaring (Mainwaring), a principal of Mirose, Mark Stockwell (Stockwell) an engineer Dr Trevor Johnson (Johnson) an environmental consultant James Warren (Warren), a botanist Dr Michael Olsen (Olsen), and a zoologist, Dr Frank Carrick (Carrick). 

  1. The evidence from Noosa was from an engineer and hydrologist, Neil Collins (Collins) regarding stormwater management, a fauna expert Jason Richards (Richards), a landscape and vegetation consultant Alan Chenoweth (Chenoweth) a traffic engineer Colin Beard (Beard), and a town planner James Adamson (Adamson).

  1. All of the evidence with the exception of that of Priddle supported the decision in the negotiated decision notice. 

  1. Priddle’s evidence called on the broad based provisions of the strategic plan. In his opinion they had the effect that “maintenance of a low key character and of the integration of development with the natural landform and landscape appear to be paramount considerations” and that a principal theme of the provisions of the Strategic Plan was the “requirement to maintain and promote the existing distinctively “low key” character of the Noosa locality” to be achieved in part by “encouraging a high level of integration between development and its prevailing natural landform and landscape as a way of attaining high quality visual outcomes throughout the Shire and minimising overall environmental impacts”.

  1. An aspect of the appellant’s submission was that the approved development is in conflict with section 3.5 of MP2 – Transport, in that it does not include all or some under ground or under building parking in Stage 1, and further, that the design of the at grade parking for the retail area in sub precinct B2 has the appearance of a large car park.

  1. The two specific parts of Section 3.5 of MP2 which have relevance to the submission, subparagraph (h) and subparagraph (j) are set out above.  Subparagraph (h) requires key parking areas to be located immediately adjacent to key generators namely the main retail area and the key employment nodes.  This has been achieved by the design approved although other designs, for instance underground parking may also have achieved this.  Subparagraph (j) says that car parking should be designed to avoid the appearance of large car parks.  It then discusses ways that may be achieved, whilst acknowledging other matters that must be kept in mind.  For instance, it says car parking is preferred underground or under buildings for reasons of efficiency of land use, weather protection and opportunity for open space, but acknowledges the high cost of such parking can be prohibitive for the uses proposed without some other means of encouragement.  It then says that for non retail  development the maximum plot ratios will be reconsidered if underground or under building parking is constructed.  It also says that covered parking at ground level can also be considered for purposes of weather protection.

  1. Other parts of MP2 are relevant. In section 3.6, “ecologically sustainable development”, it says that Table 4.3 in its objectives intents and performance standards for individual sub precincts reflects development “that works within the ecological constraints and does not place ecological values at risk”.

  1. Table 4.3 sets out in more detail the primary and secondary functions, objectives, strategic plan provisions and intents and performance standards for each sub precinct.  Sub precinct B2 is plainly seen as orientated to car parking. 

  1. MP2 does not purport to require that for stage one of the development or indeed for any subsequent stage there be underground or under building parking.  It seeks to encourage it, for reasons of retention of vegetated open space, but its primary concern is to avoid the appearance of single large at grade car parks.

  1. It is plain that a great deal of consideration and work has gone into the concept of the shire business centre.  It is part of the 1997 strategic plan which envisaged the master planning process and is the focus of MP 1 and MP 2. There has been widespread consultation and commissioning of persons with expertise in a wide range of disciplines by Noosa.  The proposal by Mirose appears to have undergone thorough assessment.  Reynolds described it as “one of the most comprehensive development assessments I have ever seen” Beard described it “in all my professional life I don’t think I’ve ever seen a development of this scale which has been subject to anything like as intense a scrutiny as this development received” Priddle agreed it would be hard to envisage a proposal which had received as much consultation  over such a long period of time as this proposal.

  1. The proposed at grade parking in sub precinct B2 was an ongoing issue for Noosa’s planning staff.  Of concern was an appearance as a large at grade vehicle park, and as part of that that no under building or underground parking was provided.  This may be seen in meeting notes over the period 24 July 2002 – 27 May 2003, exhibits 38 -42 inclusive.  In Noosa’s planning staff response to representations about the preliminary approval notice under tab 5 in exhibit 6, the concern is thought to have been addressed to the extent that what Mirose proposed may be approved.

  1. There is a very considerable body of evidence that the proposal for the vehicle parking on sub precinct B2 as finally approved with conditions would to any ground level observer on the loop road or  inside the developed area have the appearance of a number of smaller discreet vehicle parks separated by landscaped vegetation rather than a large hard surface vehicle park.  To anybody on the external roads outside the subject land, the landscaping on its perimeters would block any but the most transient of views of the development inside.  The proposed landscaping in the parking area in sub precinct B2 will of course take some years to establish to optimum. 

  1. Priddle held a contrary view which he expressed, that is, that the end result of the approval would have the appearance of a very large at grade car park.  He agreed that if the parking area in issue did not have the appearance of a single large car parking area, underground car parking was not required and the application should not be refused.  He said the overriding objective of the master plan is to “ensure that the car parking for the retail centre did not appear as a large car parking area.”

  1. Regarding this conflict of views in the evidence, I prefer the body of evidence in Mirose and Noosa’s cases to that of Priddle. 

Conflict with the Strategic Plan

  1. The only reference to underground or under building parking in the strategic plan is for the Noosa Junction area.  Parking for a very considerable number of vehicles is inherent in what is envisaged for the Shire Business Centre particularly for Stage 1.  Also inherent in the extensive development envisaged for  the Shire Business Centre  is some interference with  and alteration to  landform and landscape.  Plainly the development envisaged could not proceed without it. 

  1. If the provisions of the strategic plan were to have the result that any clearing of vegetation or alteration of  landform or landscape for a development area meant the development was in conflict with the strategic plan, most developments of any scale would have to show there were sufficient planning grounds to proceed.

  1. Strategic plans setting out statements of intent, aims and objectives as Skoien SDCJ observed in Harburg Investments Pty Ltd v. Brisbane City Council 2000 QPELR 313 at 319 “are not drawn with the precision of Acts of Parliament” rather “are intended to provide guidance in the difficult task of balancing the relevant facts circumstances and competing interests in order to decide if a particular proposal should be approved or rejected Degee & Anor v. Brisbane City Council & Anor 1998 QPELR 287,289”. They should be read broadly rather than pedantically, Yu Feng Pty Ltd v. Maroochy Shire Council 1996 92 LGERA 41.

  1. In ZW Pty Ltd v. Peter R Hughes & Partners Pty Ltd Thomas J described the approach to interpreting town planning documents as one “which seems to make most sense out of provisions which may be contradictory as well as obscure” P. 360.  In Des Forges v. Brisbane City Council & Anor 2002 QCA 90 21 March 2002 the Court of Appeal referred to the often present difficulties in reading town planning documents.  “They should be read in a practical common sense way determining ambiguities or inconsistencies in context and adhering to the intent of the planning document.”  Para 41.  “…a town planning document is not a carefully drafted piece of legislation: ambiguities must be determined in a practical common sense way according to the planning intent.”  Para 44.  In Starichv. Redland Shire Council & Anor 2003 QPELR 3 at 7, Wilson SCDCJ endorsed the “correct approach” summarised by Skoien SDCJ in Harburg Investments.

  1. In Grosser v. Council of the Gold Coast (2001) 117 LGERA 153 White J explained that Section 4.4 (5A) of the P&E Act “is a simple two stage process which first requires the identification of conflict with the Strategic Plan, then if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict”. In Weightman v. Gold Coast Council (2004) 121 LGERA 161 Atkinson J explained the second stage process referred to by White J in Grosser.  Before that stage is reached however there must be identified a conflict with the Strategic Plan.

  1. The at grade vehicle park in issue, as approved, requires some alteration to landform and landscape because it is necessary in the interests of public safety that such car parks be reasonably level and it necessarily involves the clearing of existing vegetation over its footprint.  It is useful to consider what the alternatives involve if an equivalent large amount of parking is to be provided for the retail areas.  Underground car parks are much more costly than at grade parks.  Unless the whole of Sub precinct B2 is given to underground parking under ground car parking will not be sufficient unless there are a number of levels at very high cost.  Under ground car parks are said to have less customer support that at grade parking and, with one exception at Noosa Junction, are unfamiliar to the Noosa shire.  There are also maintenance and security issues.  Under building car parking unless underground will have the effect of elevating buildings, rendering them more visually intrusive which is contrary to other outcomes sought to be achieved by the Strategic Plan.  Underground car parking in all or part of sub precinct B2 apart from the significant added cost will inevitably  involve destruction of vegetation over its footprint during construction, interference with the landform, create a large quantity of spoil to be disposed of somewhere else, and preclude deep planting for landscaping on top of it.  Unless the whole area of sub precinct B 2 was given over to an underground car park there would then be some at grade car parking and some underground parking, both involving vegetation destruction and alteration to landform but perhaps involving a lesser area.  There would be some  area required for construction of the access to the underground parking.

  1. In my opinion there is no identifiable  clear conflict with the strategic plan when its broad whole of shire provisions are read together with its specific locality provisions and its site specific provisions for the shire business centre.  It contemplates extensive development on the site.  The sort of development contemplated inevitably will involve some alteration to landform and landscape and loss of vegetation.  The overall affect of the Strategic Plan for the Shire Business Centre is to focus attention on the development proceeding with as minimal an impact to landform and landscape as practically possible consistent with the nature of the development. 

  1. There are in any event more than ample planning grounds in favour of this proposal as approved to justify its proceeding.  The evidence satisfies me that the parking outcome of the proposal as identified and conditioned in the negotiated decision notice will, when established, break up the parking on sub precinct B2 so that it appears as vegetated smaller discrete  parking areas.  In terms of convenience to customers wishing to access the retail components of the development and in terms of the ambience of the area it will be more pleasant and probably more convenient than underground parking particularly multi level.  The development approved is only the first stage of establishing the Shire Business Centre and is instrumental in the provision of transport infrastructure for the site. Stage One of the Shire Business Centre, the commencement of Walter Hay Drive and the extension of Eenie Creek Road will proceed.  These are all planned for long held planning objectives.  The development secures dedication of part of Lot 2 which is identified as the most environmentally significant part.  I refer to the open space component of the approval.  The development approved is the first stage of a multi function centre for the services envisaged in Noosa’s planning strategy on a site long identified for the purpose for shire wide reasons including transport considerations.  It will relieve pressure on other areas for provision of the services it will provide.  It is envisaged that it will expand the shire’s economic base and provide employment opportunities.

Sections 8.2 and 4.4(3) Of the P&E Act

  1. Counsel for NCCI and NPA submitted that in this case there were two categories of effect on the environment or environmental impact, ecological and intangible, the latter encompassing values such as character and lifestyle. He submitted that consideration of the matters set out in Sections 8.2 (1) and 4.4 (3) of the P&E Act required consideration of the relevant planning instruments to understand the acceptable levels of impact a development may have on the environment. He referred to RE Marriott v. Maroochy Shire Council & Anor 1994 QPELR 178 at 180 where Quirk DCJ discussed this. He conceded that the environmental expert evidence in the appeal adequately dealt with the impact in terms of ecological values. He submitted however that the impact on intangible values by alteration of the landform and removal of vegetation for the at grade carpark was contrary to planning instrument provisions such as the requirement for developments to integrate with the landform and the landscape. He submitted that if it was concluded that the at grade parking in issue had a deleterious effect or impact on the environment in the context of intangible values, the application must be refused.

  1. The “environment” is defined in Section 1.4 of the P&E Act. It includes a range of matters. What the P&E Act does in the sections under discussion is direct an entity assessing an application to consider and assess what, if any effect or impact the proposed development has on the environment. It must take it into account. The context in which it must be taken into account is informed by the planning instruments. As I have observed most developments of any scale will have some deleterious effect or impact on the environment. This must be taken into account in the decision making process about the proposed development.

  1. Plainly there will be effects or impacts on the environment by the at grade parking on sub precinct B2.  They may be described as deleterious.  Whatever provision is made for parking for the development will have effects or impacts on the environment which may also be described as deleterious.  However I am satisfied that for the reasons already discussed and in the context of the whole development for the Shire Business Centre they are not such as to require the proposed development be refused.

  1. The notice of appeal and the particulars provided raised a number of issues.  These were responded to by Mirose and Noosa in the evidence of the large number of expert witnesses whose reports are in evidence.  In the end most were not challenged at all.  I accept their evidence.  In the end the only issue was the at grade parking in sub precinct B2.  That was the only matter litigated, consequently that is the matter that I have mostly addressed.

  1. Mirose has the onus of establishing the appeal by NCCI and NPA should be dismissed. It has discharged that onus.  That appeal is dismissed.   In the appeal by Tetrex, order per the document marked “A” which has been initialled by me.

  1. With the consent of all parties, (see Exhibit 48), the negotiated decision notice by the respondent dated 14 August 2003 is amended at page 30 thereof in the heading, by substituting for the words and numbers “ERA 12” the words and numbers “ERA 11(a)”.

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