Paradise Holdings (Qld) Pty Ltd v Sunshine Coast Regional; Council & Ors

[2025] QPEC 21

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Paradise Holdings (Qld) Pty Ltd v Sunshine Coast Regional Council & Ors [2025] QPEC 21
PARTIES:	PARADISE HOLDINGS (QLD) PTY LTD (ACN 650 013 871) (appellant)
v
SUNSHINE COAST REGIONAL COUNCIL (respondent)
And
DEVELOPMENT WATCH INC (first co-respondent by election)
And
ORGANISATION SUNSHINE COAST ASSOCIATION OF RESIDENTS INC (second co-respondent by election)
And
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING
(third co-respondent by election)
FILE NO/S:	208 of 2023
DIVISION:	Planning and Environment
PROCEEDING:	Appeal against refusal
ORIGINATING  COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	26 September 2025
DELIVERED AT:	Brisbane
HEARING DATE:	5, 6, 7, 8, 11, 12, 14 & 15 August 2025
JUDGE:	Williamson KC DCJ

ORDER:	1.	The appeal is dismissed.
2.	The respondent’s decision to refuse the appellant’s development application is confirmed.

CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the appellant seeks approval for a service centre comprising a
Service station and two Food and drink outlets in the Rural zone – whether the proposed development is infill development in an existing developed area – whether there is an overriding need in the public interest for the proposed development – whether the development will give rise to adverse amenity and character impacts – whether the proposed development is appropriate in the Rural zone – whether an approval should be granted in the face of non- compliance with the respondent’s planning scheme.
CASES:	Abeleda v Brisbane City Council (2020) 6 QR 441
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850 Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 Harburg Investments Pty Ltd v Brisbane City Council & Anor [2000] QPELR 313 Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 Isgro v Gold Coast City Council & Anor [2003] QPELR 414 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309 Wilhelm v Logan City Council & Ors [2021] QPELR 1321 Yu Feng Pty Ltd v Brisbane City Council (2007) 156 LGERA 399
LEGISLATION:	Planning Act 2016, ss 45, 59 and 60 Planning Regulation 2017, s 31 Planning and Environment Court Act 2016, ss 43, 45 and 46
COUNSEL:	Mr M Batty KC with Ms J Bowness for the appellant Mr C Hughes KC with Mr B Rix for the respondent Ms M Hobson (agent) for the second co-respondent by election Ms M Rodgers for the third co-respondent by election
SOLICITORS:	Connor O’Meara for the appellant Sunshine Coast Council Legal Services for the respondent McInnes Wilson Lawyers for the third co-respondent by election

Introduction

[1]      This is an applicant appeal against Council’s decision to refuse an impact assessable application for a mixed use commercial development on land in the Rural zone. The proposed development is a ‘service centre’, comprising a Service station (BP), associated convenience store and two quick service restaurants (McDonald’s and KFC).

[2]      The land the subject of the application is located at Pacific Paradise on the western side of the Sunshine Motorway. It has lengthy frontages to two major roads: David Low Way, and an offramp from the Sunshine Motorway.

[3]      The appeal was resisted by Council and a community organisation.

[4]      While a dense list of issues were notified on both sides of the record, the questions that have the greatest influence in the exercise of the discretion are: (1) whether an exception to a forward planning decision about flood affected land is met; and (2) whether the scale and intensity of the proposed development is appropriate on undeveloped rural land, which is intended to be, inter alia, protected and enhanced for its landscape value and contribution to the intended settlement pattern.

[5] The appeal is a hearing anew: ss 43 and 46(1) of the Planning & Environment Court Act 2016.

[6] It is for the appellant to establish the appeal should be upheld: s 45 of the Planning & Environment Court Act 2016.

The land and locality

[7]      The land the subject of the development application is large, vacant and irregularly shaped. It is 30.48 hectares in size. The irregular shape is the product of its northern and western boundaries. Unlike the other boundaries, which effectively align with the points of the compass, the northern and western boundaries follow the alignment of David Low Way in a south-west/north-east orientation. Traffic counts for 2023 indicate David Low Way carries in the order of 17,600 vehicles per day in the vicinity of the land: Ex.55. Access to the land is obtained via the frontage to David Low Way, which is in the order of 895 metres in length.

[8]      The road network wraps around three sides of the northern tip of the land. It is surrounded by a combination of David Low Way, an offramp from the Sunshine Motorway and a roundabout that controls the intersection of these roads. Visual aids show this roundabout sitting beneath an elevated part of the motorway above: Ex.16, Figure 2. With these features in mind, two points were made by the experts called by the appellant. It was opined that the northern tip of the land ‘hugged’ two adjoining roads and sits within a ‘nook’ created by the road network. It was also pointed out that the land, when viewed from a westerly location (looking east), can be seen against the backdrop of significant road infrastructure for the motorway. I accept both points. They are made good by the photographs included in the amended visual amenity joint report and the photomontages prepared for the appeal.

[9]      The eastern boundary of the land adjoins an offramp for the Sunshine Motorway. The length of this frontage is in the order of 532 metres. No direct access is available from the offramp, which departs from the Sunshine Motorway about 250 metres south of the land: Ex.60. The motorway carries in the order of 57,700 vehicles per day (two way traffic count) in the vicinity of the land. This volume reduces as the motorway heads north towards Coolum.

[10]      With a commercial use in mind, the land is well located in the road network to intercept vehicles travelling north on the Sunshine Motorway and east/west on David Low Way. Access to the land would be convenient for this passing traffic.

[11]      The land is presently vacant and unconstrained by vegetation.

[12]      Aerial photography confirms that, historically, the land and surrounding locality has been used for the growing of sugar cane: Ex.79. This activity ceased more than 10 years ago. Mr Thompson, who is an agricultural land expert, examined the soil qualities of the land. In conjunction with the cessation of sugar cane cropping on adjoining parcels and the local area generally, Mr Thompson concluded the land was no longer suitable for commercial cropping. This evidence was not challenged. I accept it. The evidence makes good the appellant’s point that the loss of part of the land for agricultural pursuits does not warrant refusal. The respondents pressing for refusal did not contend otherwise.

[13]      The land is generally flat, low lying and constrained by flooding impacts. This is the product of its location in the Maroochy River floodplain. Flooding events are associated with local catchment and regional flooding in the Maroochy River.

[14]      The southern part of the land is subject to a Key Resource Area designation (KRA): Exs.11 and 60. The appeal was conducted on the footing that the proposed development would not compromise the extraction of the mapped resource if, and when, that occurred. The resource of interest is sand. It is suitable for use in construction. A haul route has been identified on KRA mapping to the north along Finland Road: Ex.12.

[15]      The appellant sought to draw support for its case from the KRA designation and associated haul route. They were relied upon to contend that the acceptability of the impacts of the proposed development on character and amenity ought take into account forward planning; the adopted planning controls anticipate an extractive industry use on the land as well as an associated haul route. The approach suggested by the appellant in this regard is correct: Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850, [86]. The planning associated with the KRA informs future amenity and character expectations. In my view, reasonable expectations about character and amenity here are informed by the KRA designation and the following context, namely: (1) the evidence did not suggest steps have been taken to quantify the available sand resource; (2) the evidence did not suggest steps have been taken to win/extract the resource; and (3) the KRA designation is not a licence to scar the landscape – it should be expected that an extractive industry will comply with the adopted planning controls, particularly requirements going to the maintenance of landscape and scenic amenity values, and the rehabilitation of land upon the cessation of an extractive industry use: cf Sunshine Coast Planning Scheme 2014 s 3.9.6.1(g).

[16]      Turning to the surrounding locality, the area of primary interest is a tract of land bounded on the eastern side by the Sunshine Motorway, and on the south and west by the Maroochy River. This area can be seen in Figure 1 of the amended joint report of the visual amenity experts: Ex.16, p.11. Figure 1 is attached to these reasons and marked ‘A’.

[17]      The following elements can be identified in Figure 1:

(a)	a band of 20 dwelling houses on traditional suburban lots to the north and north- west of the land on David Low Way and Finland Road;
(b)	a large band of rural land to the north of David Low Way;
(c)	the Maroochy River Golf Club (and associated driving range) on the northern side of David Low Way, which is partly developed and has the benefit of an approval to expand to the size depicted in exhibit 18;
(d)	the existing Bli Bli water sports complex;
(e)	rural land of similar character to the subject land, which is located to the south and south-west; and
(f)	a radio station and associated infrastructure adjoining the south-east corner of the land.

[18]      A review of the area described in paragraph [17], with the benefit of a number of visual aids before the Court, indicates the existing character of the area is predominantly open space/green fields. The landscape is visually attractive and open. Built form is still evident in that landscape but is not visually dominant. It comprises a mixture of houses and non-residential structures. Those structures are surrounded, and subservient in visual terms, to large, expansive areas of open space.

[19]      The largest building in the area identified in paragraph [16] appears to be the Golf Club (Ex.69). The club has frontage to David Low Way and is included in the Sport and Recreation Zone: Ex.37, p.26. The building, taken in combination with the associated at-grade carpark and supporting single storey shed structures, expresses a low-rise non- rural (commercial) character. The built form and hardscaping is subservient to the predominant visual feature of the use, which is the expansive area of open space for the golf course.

[20]      Paragraphs [17](b) and (e) are intended to capture that part of the area identified in paragraph [16] which is vacant; it is an expansive area. It exhibits a strong open space/landscape character despite the uses identified in [17](a), (c), (d) and (f). This is vividly illustrated in Figures 2 to 7 of the amended visual amenity joint report: Ex.16. The figures are attached to these reasons and marked ‘B’. The open space/landscape character evident in the figures can be contrasted with the urban character evident to the east of the Sunshine Motorway.

[21]      The land identified in Figure 1 as ‘Council acquired land’ has been earmarked for future sport and recreation uses. The evidence indicates that Council is currently investigating the extent to which this land is developable for sport and recreation purposes. Until those investigations are complete, there is some uncertainty about the nature and extent of future development. That said, it is reasonable to expect that future sport and recreation uses on this land have the potential to introduce urban character elements into the local area. It is likely that uses of this kind will: (1) require an upgrade to the road network in the form of a signalised intersection on David Low Way; (2) include at-grade carparking areas for patrons; (3) introduce structures in the form of club houses and sheds; and (4) require field lighting to facilitate use at night. Elements of this kind will not, in my view, diminish the open space landscape of the locality.

The proposed development

[22]      The development application before the Court is impact assessable and seeks a development approval for a material change of use, namely the start of a new use on part of the land. The part of the land to which this relates is 2.675 hectares in size (the site) and is the northern tip of the land described as the nook.

[23]      The proposed development comprises a Service station and two Food and drink outlets, both of which are defined uses in the planning scheme. The proposed operating hours are 24 hours/day and 7 days/week. Access to the site is to be obtained via a new all- turns signalised intersection on David Low Way.

[24]      The proposed development is depicted in architectural and landscape plans (Exs.5 & 6A). The plans are complemented by a list of draft conditions: Ex.75. Taken in combination, the plans and conditions reveal the following in relation to the form, layout and operational characteristics of the proposed development.

[25]      Starting with a high level view of the site, the plans depict a large commercial use. The built form presents its primary face to David Low Way. Perimeter landscaping is proposed to soften the built form but will not conceal it. A feature of note is an elevated structural platform (and ramp) that provides the development pad. Visually, the pad has the hallmarks of an engineer’s design solution. The objective of such a design is to resolve an engineering constraint; here, that is flooding. Aesthetics are not a priority. Landscaping is proposed to screen and soften the impact of the pad. The pad and supporting structure will not be concealed from view.

[26]      The development comprises a single main building that accommodates the Service station and two Food and drink outlets. The Food and drink outlets each have their own drive-through facility. Two car fuelling forecourts with overhead canopies are proposed, one for cars and one for trucks. Truck facilities are a feature of the proposal, along with electric charging stations for passenger vehicles.

[27]      The built form is characterised by rectilinear forms, flat rooves and parapets, with the exception of a small sloping roof above the elevated flood refuge area. A variety of building materials are proposed, with a recessive colour palette. This is intended to facilitate the integration of the built form into its surroundings. While careful attention was given to the choice of building materials and colours, the photomontages do not demonstrate, in my view, that the built form will integrate with its surroundings in an acceptable way. The development, despite the use of soft colours and materials, will stand out in its open landscape setting as a large commercial use.

[28]      The development has a gross floor area of 890 m² and a site cover of 5.78%, or 0.5% of the total land area. The balance of the land will remain undeveloped.

[29]      As I have already observed, the proposed development sits on a platform, which is elevated above the floodplain below. The top of the platform is in the order of 2.1 metres above natural ground along the north-western edge of the site near David Low Way. It is in the order of 2.4 metres above natural ground along the eastern edge and 2.24 to 2.34 metres above natural ground along the southern edge. The area of the platform, excluding the ramp providing access to and from David Low Way, is 9,200 m2 in size.

[30]      The site has ample space for landscaping. The landscape plans reveal the proposed development makes provision for: (1) street trees along David Low Way; (2) large feature trees disbursed through the site outside of the elevated platform; (3) screen planting and mounding around the base of the elevated platform; and (4) podium planters/planted areas on top of the elevated platform. I accept the landscaping design is well considered.

[31]      Photomontages (Ex.61) demonstrate the development will be visible during the day and night, to varying degrees. This is unsurprising given the land uses are commercial in nature and require visual exposure to the road network. The development will be lit at night for visibility and safety reasons.

[32]      The main building has generous setbacks to David Low Way, the north-eastern boundary and the eastern boundary. It will be separated from the existing houses across David Low Way by at least 91.7 metres and the motorway exit by a further 97.6 metres.

[33]      The plans reveal that provision has been made for standard car parks, truck car parks and vehicle manoeuvring areas.

[34]      Commercial pylon signage will be provided to attract customers to the site. A separate approval is required for this signage. I have assumed signage of the type and number depicted on the proposed plans and photomontages would likely be provided for the purposes of assessing character and amenity impacts.

[35]      The evidence before the Court establishes the proposed operator for the Service station is BP. McDonald’s is the proposed tenant for Tenancy 2. KFC is the proposed tenant for Tenancy 3. Evidence was given by representatives of BP, McDonald’s and KFC. Their evidence confirmed the proposed development, if approved, would be successful and fill gaps in their respective networks.

[36]      The section of David Low Way adjoining the land is a state controlled road. Given this, the application required referral to the Chief executive. A referral agency response was given and amended during the appeal. The amended response contains conditions to be included in any approval: Ex 35. There was no dispute about the substance or form of the conditions. They require, inter alia, the proposed access from David Low Way to be located and constructed with a signalised intersection. This is to occur in accordance with specific plans. The plans depict an all-turns signalised intersection with provision for, inter alia: (1) through lanes; (2) departure and approach lanes; (3) signalised pedestrian crossings; (4) cycle lanes; and (5) a dedication of land to accommodate future road works.

Statutory assessment framework

[37]      The statutory assessment framework for this appeal is prescribed by the Planning Act 2016 (the Act). The Act requires the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.

[38]      Section 45(5)(a)(i) calls for an assessment, to the extent relevant, against assessment benchmarks in a categorising instrument. Section 45(7) confirms this is a reference to an assessment benchmark in effect when the development application was properly made. Version 23 of Sunshine Coast Planning Scheme 2014 (the planning scheme) was in force at this time: Ex.9. Version 27 of the planning scheme was in force at the time the appeal was heard. No party suggested a part, or parts of this later version of the planning scheme required consideration of the kind anticipated by s 45(8) of the Act.

[39] Section 45(5)(a)(ii) requires an assessment manager, and this Court on appeal (by operation of s 46(2)(a) of the Planning and Environment Court Act 2016), to have regard to matters prescribed by regulation. One such matter is the common material (s 31(1)(g) of the Planning Regulation 2017), which includes submissions. During the application process, Council received 49 submissions: Ex.37, para 20. The town planning witnesses prepared an agreed summary of the issues raised in the submissions, both for and against approval: (Ex.37, paras 24 and 25). After reading the submissions I accept their summary is accurate, which is in the following terms:

“24. As noted above the application attracted 49 submissions, 40 being properly made, nine being in support of the proposal and the remainder in opposition. The issues of concern raised by the submissions are summarised as follows:

(a)	Impacts on natural amenity and environmental quality, including littering and the risk of fuel spills;
(b)	Impacts on residential amenity in terms of noise and lighting;
(c)	Inconsistency with the intent and character expectations of the Rural zone;
(d)	Inadequate local infrastructure unable to support the proposed development;
(e)	Loss of good quality agricultural land;
(f)	Existing service stations are available to service local and motorway traffic;
(g)	The proposed development amounts to a new centre that would detract from Bli Bli local centre;
(h)	Development of this site on a floodplain is inconsistent with the Respondent’s Coastal Hazard Adaptation Strategy; and

(i)       Worsened traffic conditions at the Sunshine Motorway Bli Bli/Twin Waters exit and between Bli Bli and the Sunshine Coast Airport.

25. The points of support raised in the submissions are summarised

as follows:

(a)	A need exists for additional service station and fast food options, including north-bound on the motorway;
(b)	The proposed development is in line with community expectations;
(c)	The proposed development would complement

surrounding local centres;

(d)	Adjacent dwellings are adequately buffered from the proposal; and
(e)	The subject site is not ecologically sensitive.”

[40]      The properly made submissions and lay witness statements before the Court attract weight in the exercise of the discretion. They are not decisive in and of themselves but, in this case, particularly support refusal to the extent they are consistent with findings I have made about adverse impacts on character and amenity.

[41]      The reasons for refusal advanced in the appeal did not rely upon the issues identified in paragraph 24(d), (e) and (g) of the town planning joint report. Paragraph 24(h) was initially relied upon as a reason for refusal in the form of a ‘Coty’ point. It was however abandoned in final submissions. Traffic impacts of the kind identified in paragraph 24(i) were initially raised as a reason for refusal but resolved during the joint expert meeting process.

[42]      The statutory assessment framework is to be approached in accordance with the following Court of Appeal authorities, namely: Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441; Wilhelm v Logan City Council & Ors [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309. The authorities confirm, among other things, that: (1) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the Act admits of more flexibility to approve an application in the face of non-compliance with a planning scheme; and (2) a planning scheme remains a reflection of the public interest.

Planning scheme context

[43]      After examining the need, flooding, traffic and agricultural evidence, I was satisfied the site, on a first principles basis, was a good candidate for a Service station and ancillary convenience store. This is due to: (1) its size, allowing ample room to provide for a flood management solution, generous setbacks and a generous landscaping design; (2) the location of the land in the road network – it is conveniently located to serve, and intercept, passing traffic heading north along the Sunshine Motorway and David Low Way; (3) the location of the site access on a major road, avoiding the introduction of non-residential traffic into a residential street; (4) the absence of adjoining residential neighbours that may suffer tangible adverse amenity impacts; and (5) its visibility to attract patrons from David Low Way and the Sunshine Motorway.

[44] As this case however demonstrates, it is important not to be drawn too far along the path towards approval by a first principles assessment: a first principles assessment is a start, but by no means an end to the assessment required by the Act. The Act requires the material change of use proposed to be assessed, not just the Service station component. The Act also mandates an assessment of the whole development against prescribed assessment benchmarks. Such an assessment here, which is directed to the planning scheme, exposes that the task facing the appellant to secure an approval is far more difficult than a first principles assessment of the Service station component suggests. Indeed, the planning scheme, considered in the light of the disputed issues, reveals there is a thick web of provisions to be navigated to find support for the whole development. The web is made up of a series of overlapping forward planning decisions and associated implementation provisions. The forward planning decisions at the centre of the appeal are directed towards: (1) the management of future growth in the planning scheme area and the resulting settlement pattern; (2) floodplain and flood hazard management; and (3) the protection and enhancement of scenic and landscape values of importance to the character and identity of the planning scheme area.

[45]      The planning scheme is now considered against this background.

[46]      The planning scheme was adopted under the Sustainable Planning Act 2009 and amended for alignment with the Act in July 2017: ss 1.1(1) and (2). The document bears a familiar structure, exposing high level forward planning decisions in a Strategic framework, which are then implemented through various codes. The codes having the most influence on the exercise of the discretion in this appeal are a zone code and two overlay codes.

[47]      Part 3 of the planning scheme contains the Strategic framework. It sets the policy direction for the planning scheme area and forms the basis for ensuring that appropriate development occurs for the life of the planning scheme: s 3.1(1). The planning scheme has a 17 year horizon, ending in 2031: s 1.1(3). For the purposes of describing the policy direction, the Strategic framework has several layers that build on a broad statement of Strategic intent for the planning scheme area: s 3.1(2). The Strategic framework is to be read in its entirety: s 3.1(3).

[48]      Section 3.2 of the planning scheme contains the statement of Strategic intent. The intent is articulated under eight headings.

[49]      Section 3.2.1 is an overview about shaping growth. It has a settlement pattern in mind. The intended settlement pattern differentiates between locations inside and outside of well-defined urban and rural residential areas. Locations outside of the well-defined urban and rural residential areas are intended to be protected and enhanced for a particular purpose. The provision states, in part:

“The pattern of settlement is characterised by well-defined urban and rural residential areas and the progressive transition towards a more compact, efficient and functional urban form.

… areas are protected and enhanced for their rural enterprise, landscape and environmental values. These areas separate the Sunshine Coast from other parts of metropolitan South East Queensland and provide the landscape setting and biological diversity for which the Sunshine Coast is renowned.” (emphasis added)

[50]      Here, the land is located outside of a defined urban or rural residential area; it is located in a rural area. In the light of the above statement of Strategic intent, it can be said there is a forward planning decision to protect and enhance land such as the subject land for its contribution to, inter alia, landscape values. Its contribution to the landscape value of the area is material: see paragraphs [16] to [20] and attachments A and B.

[51]      Section 3.2.4 of the statement of Strategic intent builds upon s 3.2.1 in the context of character and identity considerations. The provision, which speaks of, inter alia, places reflecting a particular ‘setting’ states, in part:

“In 2031, the Sunshine Coast has a strong sense of community identity based upon the retention of its character, lifestyle and environment attributes.

The character and identity of the Sunshine Coast continues to be defined by the diverse range of distinctive and sensitive landforms and landscapes which contain and weave in and around urban and rural residential communities.

from each other, with each displaying an individual character and identity. Places reflect their coastal urban, rural town and village, rural residential or rural setting.” (emphasis added)
…

[52]      The area identified in paragraph [16], displays, in my view, a rural setting. This setting is appreciably different to the coastal urban setting to the east of the Sunshine Motorway. The former is characterised here by an expansive area exhibiting open landscape. The latter is characterised here as urban footprint, which is located to the east of a significant demarcation point, being the Sunshine Motorway.

[53]      The major elements of the intended settlement pattern are identified by Figure 3.2.8A of the statement of Strategic intent. The figure is described as a ‘spatial concept’. Reference to the figure, and the accompanying text in s 3.2.8, reveals the ‘major elements’ in the settlement pattern include urban areas, rural residential areas, rural enterprise and landscape areas, and a regional inter-urban break.

[54]      Figure 3.2.8A can be divided into four discrete areas:

(a)	the area extending from the southern boundary of the planning scheme area north to an east-west line co-incident with Beerwah – this part of the planning scheme area is earmarked as a Regional Inter-urban break;
(b)	the area north of the Regional Inter-urban break and west of the Bruce Highway – this area is a predominantly rural, punctuated with pockets of urban, rural residential and conservation areas;
(c)	the area east of the Bruce Highway between the northern edge of the Regional Inter-urban break up to and including Maroochydore – this area is divided (north-south) by the Sunshine Motorway and is predominantly urban, with rural residential, rural and major conservation areas towards the centre and western edge; and
(d)	the area east of the Bruce Highway between Maroochydore and the northern boundary of the planning scheme area – this area, which includes the land, is predominantly rural with urban areas on the eastern edge (east of the Sunshine Motorway) and rural residential areas towards the centre and western edge.

[55]      Figure 3.2.8A is not cadastrally based. The land can, however, be identified as having a Rural Area designation. This designation applies to a triangular swathe of land framed by the Maroochy River to the south and west, David Low Way to the north and the Sunshine Motorway to the east. It also extends to the north of David Low Way for a considerable distance.

[56]      The Rural area can be distinguished from the urban areas. The closest urban areas are located to the immediate east of the Sunshine Motorway, to the north-west at Bli Bli and south of the Maroochy River. The separation, and clear distinction, between the rural area and nearby urban areas is consistent with s 3.2.1 of the Strategic framework (see para [49]).

[57]      Eight themes are intended to achieve the statement of Strategic intent.

[58]      The ‘Settlement pattern’ theme is set out in s 3.3. Key concept (2) for the theme is as follows:

“Urban and rural residential development…is contained within
defined local growth management boundaries.”

[59]      The importance the planning scheme ascribes to the management of growth, and the part it plays in the identification of places with particular character, can be seen from the strategic outcomes in s 3.3.1. These provisions build upon, inter alia, key concept (2) above. Specific outcomes of note include:

“(a) In 2031, the Sunshine Coast is renowned for its range of distinctive and sensitive landforms and landscapes, its large and diverse areas of open space and its unique and well defined communities. Growth is carefully managed and well-designed to maintain and enhance the character, lifestyle and environment attributes which make such a significant contribution to the Sunshine Coast’s natural (competitive) advantage.

(b)	Growth is contained within defined local growth management boundaries that apply and refine the land use categories in the SEQ Regional Plan. These local growth management boundaries reflect the outcomes of detailed local investigations.
(c)	Urban development and rural residential development is contained within local growth management boundaries so as to protect biophysical and landscape values and natural resources, avoid natural hazards, maintain the individuality of communities and provide for the efficient delivery of infrastructure and services.
(d)	Outside these areas, rural lands and natural areas are maintained predominantly for their rural enterprise, landscape and environmental values. These areas reinforce the character of the Sunshine Coast as a place with large areas of open space surrounding distinct and separate urban and rural residential areas. The Regional Inter-urban Break preserves the geographic separation between the Sunshine Coast and the greater Brisbane and Caboolture urban area.
…
(m)	Communities within the Sunshine Coast are distinct and separate from each other displaying an individual character, identity, culture and in some cases, strong associations with the past. Places reflect their coastal urban, rural town and village, rural residential or rural setting.” (emphasis added)

[60]      Strategic outcome (d) above applies to the land and the area described in paragraphs [17](b) and (e) and [55]. Visual aids, assisted by a site inspection, confirm the swathe of land described therein has a rural setting. The same area is also fairly described as open space that is separate and distinct from the urban and rural residential footprint. Open space of this kind is intended by strategic outcome (d) above to be, inter alia, ‘maintained predominantly for…landscape values’. It is protected by containing urban and rural residential growth within the local growth management boundary (strategic outcome (c)).

[61]      Elements in the Strategic framework refine and further describe strategic outcomes: s 3.1(2)(d). The strategic outcomes for the Settlement pattern theme are refined and further described by eight elements. Elements 1 and 2 have application here.

[62]      Element 1 deals with character, lifestyle and environment attributes: s 3.3.2. The specific outcomes for element 1 include s 3.3.2.1(a)(i). This provision reinforces that open space of the kind discussed in paragraph [17](b) and (e) and [55] is intended to be protected and enhanced. The specific outcome states:

“(a) The character, lifestyle and environment attributes of the Sunshine Coast are recognised as essential contributors to the region’s natural (competitive) advantage by:-

(i)       protecting and enhancing the natural environment and undeveloped rural and coastal landscapes that create large, uninterrupted and diverse areas of open space which weave throughout the region and define the boundaries of urban and rural residential areas;” (emphasis added)

[63]      The area described in paragraphs [17](b) and (e) and [55], when viewed in the context of Figure 3.2.8A, is a rural landscape that is large and, for the most part, uninterrupted. It is also part of a mosaic of rural areas weaving through this part of the planning scheme area. They can also be clearly differentiated from urban and rural residential areas. The differentiation is deliberate and serves a planning purpose – it is part and parcel of the intended settlement pattern.

[64]      Element 2 deals with growth management boundaries and land use categories. The element explains how the intended settlement pattern is informed by growth management boundaries and land use categories. The boundaries and use categories can be identified on Strategic Framework Map SFM 1. Reference to the map reveals the land is located outside a local growth management boundary and within the ‘Rural Enterprise and Landscape Area’ land use category. The land use category has the following ‘note’ attached to it:

“Note 2: The Rural Enterprise and Landscape Area includes land within rural, natural and landscape values and community facilities – refer to Strategic Framework Map 5…. and Map 6…The Rural Enterprise and Landscape Area also includes Rural Residential zoned land outside of the SEQ Regional Plan Urban Footprint and Rural Living Areas.”

[65]      Strategic Framework Map 5 identifies elements of the Strategic framework relevant to the Natural environment theme. The map does not suggest the land is affected by this theme.

[66]      Strategic Framework Map 6 identifies elements of the Strategic framework relevant to the community identity, character and inclusion theme. The map: (1) designates the land as ‘Rural Setting’; and (2) indicates the land adjoins two scenic routes (David Low Way and the Sunshine Motorway). Further, the area described in paragraph [55] is designated ‘Rural setting’, with the predominant part located to the south of the land subject to an additional overlay of ‘High Value Scenic Area’. The land, and land to the south, exhibit similar landscape character and value despite the additional overlay. The same point can be made for land to the north of David Low Way to the extent it exhibits an expansive open space character: paragraph [17](b) and (e).

[67]      Specific outcome 3.3.3.1(b) contains a clear statement of planning intent to contain future growth to specific areas. The provision states:

“(b) Urban development is limited to land within the urban growth management boundary identified conceptually on Strategic Framework Map SFM 1 (Land use elements) and in further detail on the zoning maps.”

[68]      The planning rationale for this is set out in specific outcome 3.3.3.1(d) as follows:

“(d) The physical extent of urban development and rural residential development is contained within defined local growth management boundaries so as to:-

(i)       protect biophysical values including those within habitat areas, ecological linkages and natural waterways, wetlands and water bodies;

(ii)     protect natural resources including agricultural land class A and class B, strategic cropping land and potential strategic cropping land, rural land in general and extractive resources;

(iii)   avoid natural hazards, including an allowance for the predicted impacts of climate change that may worsen these hazards;

(iv)    maintain the largest possible area of land for rural, landscape and environmental protection purposes into the future;

(v)      protect the discrete identities of individual places and communities; and

(vi)    maximise opportunities for the efficient delivery of infrastructure and services.” (emphasis added)

[69]      Section 3.3.3.1(b) and (d), read with Strategic Framework Map SFM 1, make clear that the land: (1) is not included within an urban growth management boundary: (2) is not intended for urban development; and (3) is not intended for urban development for a particular purpose, which is to, inter alia, maintain the largest possible area for landscape purposes and protect the discrete identity of the place. Collectively, these matters take on significant force. They represent a clear statement of forward planning. That statement does not support the introduction of urban development on the land. Further, it does not, in my view, support approval here once it is appreciated that: (1) the proposed development involves the opportunistic development of Rural zoned land with development that has the appearance of an urban design solution; and (2) no exception is provided to the clear forward planning position articulated in s 3.3.3.1: cf s 3.10.5.1(b).

[70]      The ‘Community identity, character and social inclusion’ theme is set out in s 3.8. Key concepts (3) and (5) for this theme are as follows:

“(3) Protection of prominent landscape features so that they remain intact and undiminished with high levels of scenic and cultural significance.

(5) Distinct coastal urban, rural town, rural village, rural residential
and rural communities.”

[71]      The strategic outcomes for the theme are set out in s 3.8.1 and include the following:

(a) In 2031, the Sunshine Coast is still a special place with a unique identity derived from the strong interrelationships that exist between character, lifestyle and environment attributes. These attributes are protected and enhanced as the basis for the region’s natural (competitive) advantage.

…

(c)	The prominent landscape features which contribute to the diversity and richness of the Sunshine Coast landscape, including beaches, headlands, high dune systems, creeks and rivers, islands, mountains, ridgelines, foothills and escarpments remain intact and undiminished. In 2031 these features are clearly identifiable in the landscape and retain a high level of visual, scenic and cultural value.
(d)	The Sunshine Coast continues to be renowned for the many important views and vistas which contribute to the identity and attractiveness of the region. Local views of importance to residents are recognised and respected.

…

(g) The individual character of urban and rural residential areas is recognised within the context of coastal urban, rural town, rural village and rural residential settings. The diversity of rural settings and communities is also recognised and respected.” (emphasis added)

[72]      The implementation framework for the ‘Community identity, character and social inclusion’ theme comprises six elements and associated specific outcomes. Element 1 deals with landscape elements and features.

[73]      The specific outcomes for element 1 are to be read with Strategic Framework Map 6. It will be recalled the map indicates the land is included in the ‘Rural Setting’ and adjoins two scenic routes. Further, the map provides that the area described in paragraph [55] is designated ‘Rural setting’. The predominant part of the area described therein is subject to a further overlay of ‘High Value Scenic Area’. The land falls outside of this overlay area.

[74]      The strategic outcomes for element 1 include:

“(a) The landscape elements identified conceptually on Strategic Framework Map SFM 6 (Community identity, character and social inclusion elements) which include regional and sub- regional inter-urban breaks, high value scenic areas, regional gateways and scenic routes are protected and enhanced.

…

(d)	Scenic routes are protected and enhanced as major transport routes providing a high level of scenic and visual amenity to travellers.
(e)	The prominent landscape features identified in Table 3.8.2.1 (Regionally significant landscape features) and important views to these features are protected from intrusion from buildings and other aspects of urban development.

…

(g) Other views and vistas, including those identified in local plans or which are important in a local context are also protected, particularly from development which exceeds specified building heights.” (emphasis added)

[75]      As I have already observed, David Low Way and the Sunshine Motorway are scenic routes. Specific outcome (d) speaks of them being protected and enhanced. They provide ‘a high level’ of scenic and visual amenity to travellers.

[76]      Specific outcome (e) refers to Table 3.8.2.1. The table is titled ‘Regionally significant landscape features’. Two of the landscape features identified in the table are Mount Ninderry, which can be seen in the distance to the west of the land, and the Maroochy River.

[77]      Section 3.9 of the Strategic framework deals with the ‘Natural resources’ theme. The theme is relevant to the land in two respects. First, the land is rural land. Second, the land is subject, in part, to a KRA designation.

[78]      Element 1, and the associated specific outcomes, for the Natural resources theme, touch upon rural and agricultural land resources. The specific outcomes include the following:

“(a) Rural land is retained predominantly for rural production, natural habitat and landscape protection purposes.

…

(d) Rural land that is not agricultural land class A or class B, strategic cropping land or potential strategic cropping land is used in ways that supports rural enterprise and protects the landscape character and scenic amenity of the Sunshine Coast.” (emphasis added)

[79]      Specific outcome (a) states a clear intention for rural land to be retained for one of three purposes, including landscape protection. The word ‘predominantly’ qualifies this statement. It admits of the prospect that rural land may be used for a purpose other than as stated. This prospect is not however unconstrained. Specific outcome (d) provides a constraint. It has in mind that rural land, which does not exhibit specific agricultural values, may be used for a purpose that supports rural enterprise and protects landscape character and scenic amenity. For reasons that follow, the design, scale and intensity of the proposed development is such that it would not protect landscape character and scenic amenity.

[80]      Section 3.10 of the Strategic framework contains provisions with respect to the ‘Natural hazards’ theme. This theme is relevant to the land because, as is common ground, the land is subject to flooding in a defined event.

[81]      Key concept (6) for the Natural hazards theme draws a connection to the forward planning associated with the pattern of settlement. The key concept states:

“(6) Reshaping the pattern of settlement to avoid development in areas subject to the critical natural hazards of…flooding.”

[82]      Section 3.10.1 of the Strategic framework sets out the strategic outcomes for the Natural hazards theme. They include the following:

“(a) In 2031, the Sunshine Coast has a high level of resilience to

natural hazards including…flooding…
…

(c) Hazard avoidance and management strategies reflect a precautionary and conservative approach…

…

(e) Where natural hazards cannot be practically avoided, appropriate adaptation responses are adopted to reduce the risk and severity of the impact of the hazard.”

[83]      Element 4, and the associated specific outcomes, deal with flooding. Specific outcome (b) for the element states, in part:

“(b) Urban and rural residential development, and other development involving the erection of a building or significant earthworks, is not located on land subject to flooding in the defined flood event or defined storm tide event except where…” (emphasis added)

[84]      Specific outcome (b) applies to the appellant’s development, which proposes, at the very least, the erection of a building on land subject to a defined event. Specific outcome (b) is a clear expression of a forward planning strategy that does not support approval here. There is, however, a stated exception. The relevant parts of the exception are contained in specific outcomes (b) and (c) as follows:

“… except where satisfying at least one of the following criteria:-

(i)      the development is for a single dwelling house or associated structure on a lot existing prior to the commencement of the planning scheme;

(ii)      the development is on land that is already committed to urban or rural residential development by an approval granted prior to the commencement of the planning scheme;

(iii)   the development is on land specifically identified in a structure plan or a local plan as an area intended for urban development;

(iv)    the development is redevelopment or infill development within an existing developed area;

(v)     an overriding community need in the public interest has been demonstrated that warrants approval of the development despite its occurrence within an area subject to flooding; or

(vi)    the development is for the infrastructure identified on the planning scheme maps.

(c) Where development satisfies one or more of the criteria specified in (b) above, it is demonstrated that the impacts of flooding can be effectively mitigated such that there is no foreseeable risk to life or property.” (emphasis added)

[85]      The appellant contends specific outcomes (c), (b)(iv) and (v) are satisfied. This can be accepted with respect to (c). It is consistent with the agreed position of the flood engineers, Mr Giles and Dr Johnson. Compliance with (b)(iv) and (v) is however disputed.

[86]      As a general statement, strategic outcome (d) of element 4 requires development to ensure, inter alia, that:

“(i)	the flood storage and conveyance capacity of floodplains and waterways is maintained or enhanced;
(ii)	natural hydrological systems, landforms and drainage lines are protected;
(iii)	there is no worsening in flood conditions;”

[87]      The evidence of the flooding engineers demonstrates compliance with strategic outcome (d) is achieved.

[88]      This marks the end of the review of the Strategic framework. It exposes there are three matters of importance calling for careful consideration in this appeal. The matters are: (1) whether one or more of the exceptions to s 3.10.5.1(b) are satisfied; (2) whether the development will protect and enhance the scenic and visual character of two scenic routes; and (3) whether the development will adversely impact on the Rural setting and associated landscape value. The adverse resolution of item (1) for the appellant is, in and of itself, a weighty consideration in the exercise of the discretion. An adverse finding points squarely to refusal because it means there is non-compliance with a deliberate forward planning strategy, and the stated exception to it. Non-compliance with such a strategy (and its exception) should be given its full force and effect, particularly where, as here, it is not said to be unsoundly based or overtaken by events.

[89]      The planning scheme area is divided into 22 zones which are, in turn, grouped under one of six categories: s 6.1(8). The land is included in the Rural zone. This zone sits within the ‘Other zones category’.

[90]      Zones organise the planning scheme area in a way that facilitates the location of compatible land uses: s 6.1(1). Assessment benchmarks for each zone are contained in a zone code: s 6.1(4).

[91]      The Rural zone code (the RZC) applies to assessable development within the Rural zone. The RZC includes a purpose statement and overall outcomes that achieve the purpose: s 6.1(7) and 6.2.19.

[92]      The purpose of the RZC is as follows (s 6.2.19.2(1)):

“The purpose of the Rural zone code is to provide for a wide range of rural activities and a limited range of non-rural activities which complement, value add or provide a service to rural areas.

Activities in rural areas maintain and enhance the character, visual amenity and rural production capability of the area.” (emphasis added)

[93]      The purpose of the RZC is consistent with element 1 of s 3.9.2.1(a) of the Strategic framework in that the provision anticipates a ‘limited range’ of non-rural activities in the zone. The limited range of activities are to ‘complement’, ‘value add’ or ‘provide a service to’ rural areas. The balance of the purpose statement suggests that all ‘activities’ in the zone are intended to maintain and enhance, inter alia, the character and visual amenity of the area.

[94]      The proposed development is a non-rural activity.

[95]      The purpose of the RZC will be achieved through identified overall outcomes: s 6.2.19.2(2). The overall outcomes of note for this appeal are as follows:

“(e) other non-rural activities that are compatible with a rural setting and support rural enterprise or tourism are also encouraged where they do not compromise the use of the land for rural activities;

(f) non-rural activities are located, designed and operated to… avoid significant effects on rural amenity including through adverse noise or traffic generation;

…

(l) the built form of development integrates with and complements the predominant rural character intended for the zone and sensitively responds to the environmental and topographic features of the landscape;

…

(n) development maintains and enhances the significant scenic and landscape values of the area;

…

(r) development is designed and sited to sensitively respond to the physical characteristics and constraints of land, including flooding … where applicable;

…

(v)      development provides for the following:-

(ii) a use listed as a potentially consistent use in column 2 of Table 6.2.19.2.1 to occur in the Rural zone only where further assessment has determined that the use is appropriate in the zone having regard to such matters as its location, nature, scale and intensity.” (emphasis added)

[96]      Column 2 of Table 6.2.19.2.1 lists ‘Service station’ and ‘Food and drink outlet’ as ‘Potentially Consistent Uses’. A use not listed in Table 6.2.19.2.1 is an inconsistent use and is not intended to occur in the Rural zone.

[97]      Part 8 of the planning scheme sets out overlay provisions. Overlays identify areas that reflect state and local level interests. The areas also have one or more of the following characteristics (s 8.1(1)):

“(a)	there is a particular sensitivity to the effects of development;
(b)	there is a constraint on land use or development outcomes;
(c)	there is the presence of valuable resources; or
(d)	there are particular opportunities for development.”

[98]      Subparagraphs (a), (b) and (c) have application to the land. The land: (1) has particular sensitivity to the effects of development in a landscape and scenic amenity context; (2) is constrained by flooding and flood hazard considerations; and (3) exhibits valuable resource characteristics (the KRA designation).

[99]      Two overlays are raised for consideration, namely the Flood hazard overlay code (the FHO code) and Scenic amenity overlay code (the SAO code).

1. The purpose of the FHO code is as follows (s 8.2.7.2(1)):

   “(1) The purpose of the Flood hazard overlay code is to ensure development protects people and avoids or mitigates the potential adverse impacts of flood and storm tide inundation on property, economic activity and the environment, taking into account the predicted effects of climate change.”

2. The disputed issue of particular focus in the FHO code is related to overall outcome (2)(a) and Performance outcome PO2 in Table 8.2.7.3.2 (PO2). Their effect is similar to the Strategic framework provisions set out in paragraphs [83] and [84]. The two provisions of the FHO code are in the following terms:

   “(a) development does not occur on land subject to flooding except in specified circumstances and only where the impacts of flooding can be effectively ameliorated such that there is no foreseeable risk to life or property;”

   And:

   “PO2 defined flood event (DFE) or defined storm tide event (DSTE):-

   In a flood and inundation area, as identified on a Flood Hazard

(a)

any development involving physical alteration to land does not occur; or

(b)

urban and rural residential development, and other development involving the erection of a building or structure or significant earthworks satisfies at least one of the following criteria:-

(i)	the development is on land that is already committed to urban or rural residential development by an approval granted prior to the commencement of the planning scheme;
(ii)	the development is on land identified in a structure plan or a local plan as an area intended for urban development;
(iii)	the development is redevelopment or infill development within an existing developed area;
(iv)	an overriding community need in the public interest has been demonstrated that warrants approval of the development despite its occurrence within an area subject to flooding; or
(v)	the development is for the infrastructure identified on the planning scheme maps; and

(c)

achieving flood immunity for the development minimises physical alteration to the floodplain.” (emphasis added)

1. The observation in paragraph [88] about non-compliance with s 3.10.5.1(b) of the Strategic framework applies equally to the above provisions of the FHO code. The FHO code is a tool to implement the forward planning decision articulated in s 3.10.5.1(b).

2. The purpose of the SAO code is as follows (s 8.2.12.2(1)):

   “…to ensure that development does not adversely affect scenic
   amenity and landscape values within the Sunshine Coast.”

3. The purpose of the SAO code will be achieved through the following overall outcomes (s 8.2.12.2(2)):

   “(a) development protects the significant landscape elements and features which contribute to the unique character and identity of the Sunshine Coast, including:-

   (i)       the scenic amenity values visible from scenic routes;

   (ii)     the regional inter-urban break which provides continuity of separation between the Sunshine Coast and the Brisbane to Caboolture metropolitan area and defines the Sunshine Coast as a separate place in the South East Queensland Region;

   (iii)   the sub-regional inter-urban breaks which provide continuity of separation between urban communities within the Sunshine Coast and define individual communities as separate places within the sub-region; and

   (iv)     significant views and vistas.” (emphasis added)

4. The scenic amenity value visible from the two scenic routes adjoined by the land is a ‘rural setting’. This setting sits in the foreground of an attractive view to Mount Ninderry. The setting can also be described using the words of specific outcome 3.3.2.1(1). This provision speaks of, inter alia, an undeveloped rural landscape creating large and uninterrupted areas of open space. Open spaces of this kind are intended to be protected. The purpose for doing so is, inter alia, to maintain clearly defined areas of urban and rural residential development that are non-contiguous. As Strategic Framework Map 6 demonstrates, the clear intention is for areas earmarked as rural setting to weave their way in and around the urban and rural residential development footprint to create a sense of space and separation. This is a deliberate decision to avoid a contiguous development footprint that spreads in all directions of the compass.

5. Table 8.2.12.3.1 contains Performance outcomes and Acceptable outcomes for the SAO code. Performance outcome PO1 applies to scenic routes. The provision (omitting the corresponding Acceptable outcome) states:

   “PO1 route and:-

(a)	is visually unobtrusive, relative to its urban or non-urban setting and surroundings, when viewed from the scenic route;
(b)	maintains or enhances important view corridors or distance views from the scenic route to significant landscape features; and
(c)	is low key, both visually and in scale, so as not to detract from the scenic amenity offered from the scenic route.”

1. The final aspect of the planning scheme to be touched upon is the Service station code: s 9.3.18. The code is use specific and applies throughout the planning scheme area.

2. The purpose of the Service station code is as follows (s 9.3.18.2(1)):

   “The purpose of the Service station code is to ensure service stations are developed in appropriate locations and in a manner which meets the needs of users, provides safe access and protects the environment and amenity of surrounding premises.”

3. Table 9.3.18.3.1 contains Performance outcomes and Acceptable outcomes for the Service station code. The parties advancing a case in favour of refusal do not allege non-compliance with Performance outcome PO1 of the code. This provision goes to the sufficiency of the area and dimensions of the site to accommodate the Service station use. Non-compliance is however alleged with Performance outcome PO2, which states:

   “PO2 upon the amenity of existing or future planned residential areas.”

4. The appellant contends compliance with PO2 has been demonstrated by reference to the corresponding Acceptable outcome, which states in part:

   “AO2 least 15 kilometres from any existing or approved service station on the same trafficable route….”
   …

5. Compliance has been assumed with AO2 in the appellant’s favour. For reasons given later, the Service station code does not have a strong influence in the exercise of the discretion in this appeal.

   The disputed issues

6. The issues in dispute are defined by an order of the Court dated 9 September 2025. The order, which was made on the papers and a little over three weeks after the hearing finished, reflects concessions made by all parties as to the disputed issues to be determined.

7. Council, at paragraph 29 of exhibit 47 and paragraph 11 of exhibit 81, identified the issues in dispute in identical terms. The list of issues set out therein is dense, comprises composite propositions and does little to focus the dispute on the real issues. The Appellant identified the issues in dispute at paragraphs 40 and 41 of exhibit 2. Like Council’s submissions, the issues were not identified in a way that focuses the dispute. This is the product of the submissions being responsive to the form of the issues said to warrant refusal.

8. In my view, the focus in the appeal should be towards those disputed issues that can have a material influence on the exercise of the discretion one way or another. The issues of this character can be stated as questions:

   1.          Is the location of the development contrary to a forward planning policy because it is subject to flooding in a defined event?

   2.          Will the proposed development adversely impact on landscape and scenic values?

   3.          Is the proposed development appropriate in the Rural zone?

   4.          Whether there are further town planning considerations that support approval?

   5.          Whether, in the exercise of the discretion, the development application ought be approved subject to conditions?

9. Before turning to consider these questions, an observation needs to be made about the Service station code.

10. The parties advancing refusal allege non-compliance with the Service station code. A finding of compliance or otherwise with this code is, I accept, relevant to the exercise of the discretion.

11. While the assessment against the Service station code is relevant, the outcome of that assessment, in the context of the disputed issues in this appeal, is far from a determinative, let alone weighty consideration. The key issues in the appeal arise in the Strategic framework, two overlay codes and a zone code. The Service station code does not add to the force of these parts of the planning scheme. Further, the assistance the code provides is not, in any event, particularly great given it is directed towards only one of the uses applied for and is not location, zone or area specific.

12. As a consequence, the exercise of the discretion will proceed on the footing that the assessment against the Service station code: (1) does not call for refusal of the development application; and (2) does not appreciably enhance the appellant’s case in favour of approval for the proposed development.

    Is the location of the development contrary to s 3.10.5.1 of the Strategic framework?

13. Section 3.10.5.1(b) of the Strategic framework provides that, inter alia, ‘other development involving the erection of a building’ is not located on land subject to flooding in a defined event. The proposed development is captured by this provision because it involves the erection of a building on land that is subject to flooding in a defined event. The proposed development is, as a consequence, expressly discouraged by s 3.10.5.1(b) unless one or more of the criteria in that same provision are met. A failure to meet one or more of the stated criteria, in my view, means an approval, if granted, would be contrary to a deliberate forward planning decision to preclude development on particular land by reason of flooding and flood hazard considerations. This is in circumstances where it is not suggested the forward planning is: (1) unsoundly based; or (2) has been overtaken by events.

14. The appellant submits subparagraphs (b)(iv) and (v) of s 3.10.5.1(b) are met. The provisions are, for all intents and purposes, identical to Performance outcome PO2(b) of the FHO code.

15. For reasons that follow, I was not satisfied compliance was demonstrated with subparagraphs (b)(iv) and (v) as contended by the appellant.

16. The appellant submitted (b)(iv) of the Strategic framework was satisfied, which states:

    “The development is…infill development within an existing developed
    area;”

17. The phrase ‘infill development’ is not defined in the planning scheme. Nor is the phrase ‘existing developed area’. Each phrase is to be given its plain and ordinary meaning, consistent with the context in which they appear.

18. Looking firstly at ‘infill development’, it means what it says: it describes development that fills a gap, space or hole in an ‘existing developed area”. The gap, space or hole can take the form of vacant land or land that is under-developed.

19. As to the phrase ‘existing developed area’, again, it means what it says: the relevant search is for an area that is developed, which is a question of fact and degree.

20. There was little contest between the parties about the concept of infill development. The dispute was directed to whether the land is in a locality that can be described as an ‘existing developed area’ for the purposes of the stated exception. The appellant contended the land is located in such an area, which is defined by: (1) the nook created by the alignment of David Low Way; (2) the existing houses located to the north and west of David Low Way; (3) the presence of the Sunshine Motorway; and (4) the presence of existing urban development to the west of the Sunshine Motorway at Pacific Paradise and Twin Waters.

21. I was not satisfied the proposed development is infill development. Nor was I satisfied it would occur within an existing developed area.

22. First, the local area to be considered is identified in paragraph [16]. That area does not include, contrary to the appellant’s submissions, land to the east of the Sunshine Motorway. It is physically disconnected from the area by a significant piece of road infrastructure: see annexure B, Figure 2. The infrastructure marks, in a planning sense, the western edge of the urban footprint, of which the land does not form part. The eastern side of the Sunshine Motorway marks the edge of the urban growth boundary. Urban development is limited to land within the boundary: s 3.3.3.1(a) and Map SFM 1.

23. Second, annexure A is an aerial photograph. It shows the local area identified in paragraph [16]. That area is not credibly characterised as ‘developed’. Much of the land is vacant, forms part of a floodplain and is disconnected from the urban footprint to the east by road infrastructure. It is the urban footprint that is the ‘existing developed area’.

24. Third, the development is not ‘filling a gap’ within an existing developed area. The settlement pattern of the local area is such that an approval here would result in a disconnected extension to the developed area. The extension would be separated from the developed area by the Sunshine Motorway.

25. Finally, adverse findings are made later in these reasons in relation to the impact of the development on landscape and scenic values. In the context of the planning scheme here, impacts of this kind are symptomatic of development that is not infill development in an existing developed area. That the proposed development will adversely impact upon these values suggests an approval would result in development that adversely intrudes into a rural/open space setting rather than an existing developed area.

26. The reasons given above assume relevant context is provided by s 3.3 and Map SFM 1 of the planning scheme in terms of the location of a developed area. If this context is put to one side, I still do not accept the proposed development is infill development in an existing developed area. This, in my view, is borne out by annexure A. The exhibit depicts the land and the proposed development footprint: (1) removed from a existing developed area; (2) contiguous with, and forming part of a rural/open space setting, which can be contrasted with the area to the east of the Sunshine Motorway; (3) forming part of a floodplain that is largely undeveloped; and (4) physically removed from existing development by two major roads, namely David Low Way and the Sunshine Motorway.

27. Section 3.10.5.1(b)(v) of the Strategic framework provides an opportunity to depart from the stated important forward intent where an overriding community need in the public interest is demonstrated. The planning scheme does not prescribe how overriding need is to be demonstrated. Nor is the phrase defined.

28. Given the absence of a definition and prescription as to how an overriding need is to be demonstrated, the approach to be adopted is one consistent with the observations of Williams JA in Yu Feng Pty Ltd v Brisbane City Council (2007) 156 LGERA 399. In that decision, his Honour was dealing with an overriding community need test stated in Brisbane City Plan 2000. His Honour, after characterising ‘overwhelming need’ as a ‘motherhood statement’, said that the factors constituting an overwhelming need will vary enormously. In particular, his Honour held there would be an infinite variety of facts that could impact on the decision whether or not there was an overwhelming need. The relevant facts are not limited to an examination of demand and supply considerations. The range of considerations applicable will include matters that are both qualitative and quantitative in nature.

29. The assessment against s 3.10.5.1(b)(v) of the Strategic framework requires, in the first instance, a clear picture of the physical extent to which the proposed development will, if approved, intrude into flood affected land. The extent of the intrusion is significant; it is at least 9,200 m2, representing the area of the elevated pad on which the proposed development will sit. The pad is suspended over the floodplain in the order of 2.2 to 2.4 metres.

30. To examine the question of economic need for the proposed development, I had the benefit of evidence from two experts, Mr Duane and Mr Leyshon. They prepared a joint report and agreed there was a need for the proposed development: Ex.13, paras 207 and 208. This conclusion was founded on agreement about: (1) the trade area (Map 2); (2) the trade area population of 58,013, which is projected to grow at a modest rate of 0.7% per annum and reach 62,963 persons by 2036; (3) the socio- economic profile of the trade area; (4) the existing and projected volume of passing traffic; (5) the estimated trade area spend for food catering expenditure; (6) the fuel market size for the trade area; (7) the location of nine existing service stations serving the trade area – eight include a convenience store offer and seven operate 24 hours a day (Table 9); (8) the location of existing food catering outlets (Maps 5 and 6); and (9) an absence of alternative sites to accommodate the proposed development. The point of disagreement between Mr Duane and Mr Leyshon was about the strength of the identified need. Mr Duane described the need for the proposed development as obvious. Mr Leyshon described the need as low/medium.

31. I was satisfied the evidence demonstrated a need for the service station component of the proposed development. This was not precisely for the reasons given by Mr Duane or Mr Leyshon. In my view, the need is the product of seven considerations taken in combination, namely:

(a)	the predominant demand for the proposed service station will come from passing traffic (i.e. a mixture of non-residents and residents of the trade area);
(b)	the volume of north bound traffic on the Sunshine Motorway and west bound traffic on David Low Way is significant and forecast to grow (Ex.13, Map 1 and Table 1);
(c)	the site is well positioned to intercept significant volumes of passing traffic heading north on the Sunshine Motorway and west on David Low Way, particularly heavy vehicles who could make use of dedicated truck facilities;
(d)	the nearest competitive facility is located on the Sunshine Motorway at Sippy Downs (more than 15km south of the land);
(e)	the site is conveniently located to serve residents of the primary trade area, who would benefit from the addition of a modern service station between now and 2036;
(f)	the proposed service station would be commercially viable; and
(g)	there is an absence of appropriately zoned alternative sites for the proposed development.

1. Subparagraph (e) above requires further elaboration. The point is underpinned by the following two matters.

2. The evidence suggests there is a theoretical undersupply of one (1) service station in the agreed primary trade area between now and 2036. The theoretical undersupply is calculated using a combination of: (1) the typical benchmark for provision of service stations; (2) population figures (existing and forecast) for the primary trade area; and (3) a count of existing service stations in the primary trade area.

3. The typical benchmark for the provision of service stations in a metropolitan area is one per 4,000 to 5,000 people. This range should not, in my view, be applied in this case without moderation. In this regard, I accept Mr Leyshon’s view that the primary trade area is not a typical metropolitan area. The settlement pattern is more dispersed, suggesting the higher end of the range, and beyond, is appropriate.

4. The 2026 population of the primary trade area, which is served by four existing service stations, is forecast to be 23,786 persons. This is expected to increase to 25,286 persons by 2036.

5. With the figures in paragraphs [141] and [142] in mind: (1) there is a theoretical undersupply of 0.76 service stations in 2026, assuming a benchmark of 1 per 5,000 is applied; and (2) there is a theoretical undersupply of 1.06 service stations in 2036, again assuming a benchmark of 1 per 5,000 is applied.

6. In addition to the theoretical undersupply, I was persuaded the physical well-being of the primary trade area would be improved by an approval of the service station component. The service station is intended to be a modern BP facility offering, in addition to fuel, electric vehicle charging stations and truck parking facilities. This can be contrasted with the existing BP facility at Pacific Paradise. It is a dated facility and in need of investment to update it to modern standards. The evidence also reveals there is a need to update the facility to address a queuing issue. Photographs of vehicles queuing at the facility suggest this phenomenon is explained, in large measure, by a combination of: (1) the shape of the site; and (2) the area available for vehicles to stand between the access point and occupied refuelling stations.

7. It is well established that need is a relative concept to be given greater or lesser weight depending on the circumstances the assessment manager, or this Court on appeal, is to take into account: Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 at [20]. One of the circumstances considered is the nature of the development for which approval is sought: Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313, 317.

8. With these matters in mind, I was satisfied a need had been demonstrated for the proposed service station. The proposed service station, if approved, would be a modern substitute for the existing BP service station at Pacific Paradise.

9. The weight to be ascribed to the identified need sits at the lower end of the spectrum. This is because the evidence does not suggest it is attended with immediacy, or is pressing. This is so for four reasons.

10. First, the evidence did not suggest this is a supply constrained market. Indeed, the evidence suggests to the contrary.

11. In a supply constrained market, one would expect this to manifest as, inter alia, adverse price impacts. An impact of this kind is symptomatic of a discord between demand and supply, with the former exceeding the latter. Here, the evidence does not indicate such an imbalance exists. The evidence does not establish there is an undersupply of service stations translating into above average prices at the fuel pump for residents or the travelling public. Rather, the evidence suggests to the contrary; the Sunshine Coast has a competitive fuel market, with an average unleaded petrol price cheaper than major parts of South east Queensland: Ex.13, para 128.

12. Second, while a theoretical undersupply for the agreed primary trade area was identified, the force of that undersupply, in my view, needs time to build in force. It will take on greater force as the population grows. The benchmarking exercise suggests the point at which this will occur for the primary trade area is closer to 2036 than 2026.

13. Third, it needs to be borne steadily in mind that the exercise undertaken by the need experts is theoretical. It was not supported by a body of current lay witness evidence that established, ‘on-the-ground’, members of the public were suffering from a supply constrained market. The absence of this evidence is perhaps unsurprising given the evidence about fuel prices on the Sunshine Coast; it is a competitive market. The assessment of existing facilities also revealed there are ample choices available within 5 to 10 minutes’ drive for those members of the public who wish to access a 24 hour facility with a convenience offer: Ex.13, p.30.

14. Fourth, I am comfortably satisfied the proposed service station, if approved, will be a successful one. It is well placed to meet the needs of passing traffic (travelling public and heavy vehicles). Traffic of this kind does not necessarily originate, or terminate, in the trade area. It can come from much further abroad. That being the case, it is artificial to limit an assessment of the supply of existing service stations to those in the trade area. When a broader lens is then adopted, it can be seen there is a reasonably high prospect of ‘escape’ expenditure to outside competitors. This is particularly so given the extent of service stations, and service centres, located on the Bruce Highway to the south-west, west and north-west.

15. Turning to the food and drink outlets, I was underwhelmed by the evidence about the need for these facilities. It struck me that the need identified by Mr Duane and Mr Leyshon was contrived, or at best, attracted little weight in the exercise of the discretion.

16. A review of the economic need joint report reveals there are five propositions that support approval of the proposed food and drink outlets from an economic perspective. The propositions are: (1) the land is well located; (2) there is limited nearby competition; (3) the experts agreed there is ‘sufficient demand in the trade area to support’ the facilities, which is likely to continue given forecast population growth; (4) the proposed development would be consistent with an increasing trend whereby fast food outlets co-locate with a service station; and (5) the proposed restaurant operators have identified a gap in their respective networks, which the proposed facilities can fill.

1. For present purposes, each of the above propositions can be accepted. Collectively, however, they do not establish there is a latent unsatisfied demand for the proposed food and drink outlets. At its highest, the evidence suggests there is sufficient population to support the uses now and into the future, which would fill a gap in KFC’s and McDonald’s network of restaurants. This falls well short of the mark required to demonstrate a latent unsatisfied demand in circumstances where a cluster of fast food outlets are located to the north (Coolum) and south (Maroochydore). The evidence does not establish that these clusters are insufficient to meet current and future needs. Nor does the evidence establish that the gap in the spatial distribution of nationally branded fast food stores yields an economic disadvantage for the public, particularly those residing in the agreed trade area.

2. The evidence established that the proposed food and drink outlets were an attractive proposition from a commercial operator’s perspective. Locationally, I accept they would fill gaps in the spatial distribution of two quick service restaurant networks. The difficulty for the appellant is that need is not examined from the perspective of a commercial operator; it is examined from the perspective of the community: Isgro v Gold Coast City Council [2003] QPELR 414, [22].

3. When considered from a community perspective, the evidence does no more than establish that the public would have access to additional quick service restaurants, which would be commercially viable.

4. For completeness, it can be observed that proposition (3) in paragraph [153] appeared to be founded on the application of an Australian average: on average, one nationally branded fast food restaurant is provided for every 3,200 persons. Applying this average to the trade area, Mr Duane said ‘the trade area would be able to support around 18 national brand fast food restaurants…there are only 8 national tenants currently’. The mathematics can be accepted, but I have difficulty with the notion that the application of this Australian average demonstrates a latent unsatisfied demand for the uses proposed. The Australian average does not, as I understand it, purport to be a measure of the sufficiency of supply; it is merely an expression of existing supply on a per capita basis. Whether existing supply is sufficient to meet a latent unsatisfied demand is a different question. Here, the resolution of that question would require two things to be acknowledged: (1) there are in existence a number of food and drink outlets, including national brands, north and south of the land; and (2) there is an absence of ‘on-the-ground’ evidence suggesting the current provision of food and drink outlets is inadequate to serve the public.

5. The appellant contends the overriding need test is met in this case having regard to four considerations: Ex.83, paras 98-105. They can be summarised as follows: (1) there is a strong and clear need for the development; (2) the development would improve the physical wellbeing of the community, in particular, having regard to matters of choice, competition and convenience; (3) to service members of the community travelling on the Sunshine Motorway in the way the proposal intends, it is inevitable that development will occur on flood affected land; and (4) the identified need for the proposed development cannot be met on appropriately zoned land. To these points I would add it is relevant to take into account (in the appellant’s favour) that the proposed development, if approved, would not give rise to adverse flooding impacts or unacceptably increase risk to life and property by reason of flood hazard.

6. For the reasons given above, I accept items (1), (2) and (3), subject to material qualification: I accept the points have been established to the extent they apply to the service station component of the proposed development and the weight to be attributed to that need sits at the lower end of the spectrum.

7. Item (4) advances the proposition that an identified need will, as a matter of practicality, be met on land that is flood affected. I have misgivings this statement is correct. That said, for the purposes of the overriding need test, I assumed the proposition is correct and favours the appellant’s case.

8. Against the background of paragraphs [159] to [160], I am not satisfied the appellant has demonstrated compliance with s 3.10.5.1(b)(v) of the Strategic framework. In simple terms, this is because the grounds advanced to establish an overriding need were not made out. To the extent they were, the grounds, individually and collectively, fell well short of a level that lends itself to departure, in the public interest, from a deliberate forward planning strategy.

9. The non-compliance with s 3.10.5.1(b)(v) of the Strategic framework is, in my view, a direct product of: (1) the scale and intensity of the proposal; and (2) the design adopted to address flooding issues. The scale and intensity of the proposal, in combination with the design solution in relation to flooding, yields a significant intrusion into a floodplain, contrary to the planning scheme. This non-compliance involves incongruity with a forward planning decision. It also sounds in adverse planning consequences, namely adverse amenity and character impacts. As will be seen later in these reasons, the impacts manifest as non-compliance with the RZC and SAO code.

10. Non-compliance with s 3.10.5.1(b)(v) of the Strategic framework is a weighty matter in the exercise of the discretion. It represents a material inconsistency with the planning scheme. It is of such weight as to call for refusal of the appellant’s development application in its own right. This follows because: (1) the non-compliance relates to a matter of planning strategy, which has an in-built exception that is not met; (2) it is not suggested the planning strategy and in-built exception to it are unsoundly based or overtaken by events; and (3) a decision to approve the development application, based on the relevant matters advanced by the appellant (see below), does not withstand scrutiny against the planning scheme.

    Will the proposed development adversely impact on landscape and scenic amenity values?

11. For the reasons that follow, this question is resolved in the affirmative.

12. A theme that works its way through the planning scheme is one directed to the protection and maintenance of landscape and scenic amenity values. The values to be protected are associated with land subject to, inter alia, the SAO code. Overall outcome (2)(a)(i) of the SAO code requires development to ‘protect’ the ‘scenic amenity values visible from scenic routes’. The scenic amenity values visible from David Low Way and the Sunshine Motorway include the rural setting that is described above. The land is part of this landscape, which is the predominant character component of the local area described in paragraph [16]. That predominance, even allowing for the introduction of ‘consistent’ or ‘potentially consistent uses’ in the Rural zone, is unlikely to be altered in any material way. One can have confidence this is so given uses visible from the two scenic routes need to comply with the SAO code like the subject proposal. I will return to this below.

13. To assess the impact of the proposed development on landscape and scenic amenity values, I had the benefit of a number of photomontages depicting the proposed development from various viewpoints: Ex.61. The photomontages demonstrate the development will adversely detract from, rather than protect, the rural setting viewed from two scenic routes. This is so for three reasons, namely: (1) the built form, despite the best efforts of architects and landscape architects, will be visually obtrusive (relative to its setting) when viewed from the Sunshine Motorway and David Low Way; (2) the built form will obscure part of the view (to the west) from the Sunshine Motorway towards Mt Ninderry, which is a significant landscape feature; and (3) the scale of the development is significant – it is neither low key nor unobtrusive.

14. The proposed development has the appearance of an urban design solution in a rural landscape setting. This manifests most vividly in the scale and likely intensity of the proposal, which will stand in stark contrast to its surrounding context. The stark contrast is not anticipated by the planning scheme. The contrast will be particularly evident, and diminish the views, from two scenic routes. This is an adverse impact on the visual amenity of two scenic routes.

15. The adverse impact on the visual amenity of the scenic routes works non-compliance with overall outcome (2)(a)(i) and Performance outcome PO1 of the SAO code. The non-compliance is material and points to refusal. This is reinforced, in my view, by an assessment against overall outcome (n) of the RZC. This provision requires development to maintain and enhance significant scenic and landscape values. Non- compliance also follows with this provision given the findings above.

16. None of the above should be taken as suggesting the planning scheme requires the land to remain vacant in perpetuity. Development is anticipated on the land, which is in the Rural zone. The assessment I undertook, guided by the visual aids and planning scheme, started from the premise that all development on the land will make a change to the landscape and scenic amenity values visible from the scenic routes. The issue to be determined is therefore one of the acceptability of the change, in the context of existing and planned character. This is how I assessed the impact in this case.

17. My assessment of the impact on the landscape and scenic values took into account that the amenity and character of the locality surrounding the land is not pristine. While it is a rural or non-urban setting, existing character does extend beyond these descriptors. There are non-rural uses that contribute to the existing character of the locality. Those components include:

(a)	the Sunshine Motorway and associated infrastructure;
(b)	the band of detached housing on traditional suburban lot sizes fronting David Low Way and Finland Road (which is urban in nature);
(c)	the Maroochy River Golf Club and associated raised built form (and approved extension);
(d)	the Bli Bli Water Sports Complex; and
(e)	an Energex sub-station and amateur radio club transmission towers adjoining the land at its south-eastern corner.

1. The planned character is to be divined from the planning scheme. In particular, it is to be informed by the RZC and the SAO code. The RZC identifies the land uses anticipated for the zone, including potentially consistent uses. The range of uses anticipated include an extractive industry in the area of the KRA designation. I have also taken into account that the Council land to the south and south-west of the land may be used for significant sport and recreation uses, comprising sporting fields, built form, at-grade carparking and an associated level of activity.

2. The extent of future development in the locality, and its impact on character and amenity is not unconstrained. The KRA, sport and recreation use and any other use on the land and adjoining land would be required to comply with the SAO code and/or the RZC. Compliance with one or either of these codes requires development to maintain and enhance landscape values. The impact on the planned or future character and amenity of the locality have been examined with this constraint in mind. It is the same constraint that applies to the land and proposed development.

   Is the proposed development appropriate in the Rural zone?

3. The proposed development comprises two uses that are potentially consistent in the Rural zone. Overall outcome (2)(v)(ii) requires an assessment of potentially consistent uses against this test: whether ‘the use is appropriate in the zone’. The overall outcome provides that the assessment is to have regard to ‘such matters’ as the location, nature, scale and intensity of the development.

4. I am not satisfied the proposed development is appropriate in the Rural zone having regard to its location, scale and intensity. There are four matters, taken in combination, that support this conclusion. They are the product of non-compliances with other overall outcomes of the RZC.

5. First, the proposed development does not comply with overall outcome 2(n) of the RZC, which requires development to maintain and enhance the significant scenic and landscape values of the area. The reasons for this conclusion are set out above with respect to the SAO code. In short, the proposed development would unacceptably diminish landscape values visible from scenic routes. This is the product of its location in an open space landscape, coupled with the scale and intensity of the use.

6. Second, the elevated pad on which the proposed development sits is contrary to overall outcome (2)(r) of the RZC: it is not a sensitive design response to the inherent flooding constraint identified for the land. The purpose of the elevated pad is to avoid the underlying flooding constraint by suspending the proposed development above it. This is an acceptable engineering response to the constraint but gives rise to another issue – an adverse visual result. It is the visual result of the pad, even accounting for the landscaping proposed to mask it, that is the difficulty. The elevated pad appears as an engineering response. It is urban in character. The photomontages illustrate this will be evident from a number of viewing points in the local road network: Ex.61. It will be readily apparent and unacceptable. The unacceptability of the design response is the product of its location, elevation, scale and urban character when appreciated in its context. The visual result is not one that will maintain and enhance the visual amenity of the area, as is intended for non-rural activities in the Rural zone: s 6.2.19.2(1), purpose of the RZC.

7. Third, the proposed development does not comply with overall outcome 2(f) of the RZC. This provision applies to the development because it is a non-rural activity. An activity of this kind is required to be, inter alia, designed and located to ‘avoid significant effects on rural amenity’. I accept that, while conditions can be imposed to manage impacts associated with noise and light emissions, the proposed development will, however, adversely impact on the sense or feel of this part of the Rural zone. This is a product of its location, appearance, scale and intensity.

8. The proposed development is, as Mr Perkins opined, an urban solution in a rural setting. That solution involves an intense commercial development located on an elevated pad above a floodplain. The built form will be of appreciable scale. The use will operate 24 hours a day, 7 days a week. It will be accessed via a signalised intersection. All of these features, taken in combination are different to, and will change the feel, or sense of place, of the local area in an adverse way.

9. Amenity is a broad concept and includes notions of feel or sense of place. An impact on the feel or sense of place is an intangible one, but an impact nonetheless. The impact on the feel or sense of place here will be significant. This is due to the level of activity (intensity) the proposed development will generate in the context of its setting. The activity generated will not complement the local area: cf s 6.2.19.2(1) of the RZC. Nor will it maintain or enhance its character (cf s 6.2.19.2(1) of the RZC), which is a predominantly rural setting with high landscape values.

10. Fourth, overall outcome (2)(l) of the RZC requires ‘the built form of development’ to integrate with and complement the ‘predominant rural character intended for the zone’. The predominant character is a rural setting that exhibits high landscape values. All activities in the zone are expected to maintain and enhance, inter alia, the character and visual amenity of the area. The photomontages, in my view, demonstrate the proposed built form is not of a scale and appearance that will complement the predominant character and amenity of the local area. The scale and appearance of the proposed development is plainly urban and commercial in character.

11. The non-compliances with the RZC are material. They indicate the proposed development is inappropriate in the Rural zone. This, in my view, can be sheeted home to the scale and intensity of the development, rather than the type of land uses proposed.

    Are there planning considerations that support approval?

12. The appellant identified a number of planning considerations said to be supportive of approval. The considerations were as follows: (1) alleged non-compliances with the planning scheme were not made out on the evidence, or otherwise were not determinative; (2) there is a compelling need for the proposed development; (3) the compelling need for the proposed development can be met on the land in circumstances where there is a lack of alternative sites and an absence of unacceptable impacts; (4) the site is well-located, on a first principles basis, at the intersection of two major roads such that it can be conveniently accessed by locals and the public; (5) the proposed built form is of a high-quality design; and (6) the landscaping proposed will minimise the visual impact of the built form on the amenity of surrounding uses.

13. I am not satisfied the planning discretion should be exercised on the footing that items (1) and (6) have been established.

14. Item (2) overstates the force of the need demonstrated in this case. The need demonstrated is for the Service station component only. The weight to be given to that need sits at the lower end of the spectrum.

15. Item (3) overstates the true position. It correctly records there is a lack of alternative sites. I do not however accept it has been demonstrated the identified need can be met on the land absent unacceptable impacts.

16. I am satisfied the planning discretion should be exercised on the footing that items (4) and (5) have been established.

    Should the application be approved subject to conditions?

17. A deliberate forward planning strategy applying to the land is embedded in the Strategic framework (s 3.10.5.1) and implemented through the FHO code. For the purposes of this appeal, the strategy turns its face against approval here unless one of six criteria are met. The appellant has not demonstrated that one or more of the criteria are met. This is so for two reasons. First, the proposed development is not infill development within an existing developed area. Second, an overriding need in the public interest has not been demonstrated for the scale and intensity of development proposed.

18. In circumstances where, as here, development is contrary to a deliberate forward planning strategy, and it is not suggested the strategy is unsoundly based or overtaken by events, the strategy is to be respected: Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153. The strategy should also be given its full force and effect. This is undeniable in this case given the planning scheme provides limited circumstances where departure from the forward planning strategy is anticipated and those circumstances are not present.

19. The non-compliance with this aspect of the planning scheme has been plainly identified. It is also material in nature and attracts considerable, if not decisive, weight in the exercise of the discretion. In my view, it is fatal to the application unless cogent and weighty town planning considerations pointing to approval are established. The reasons falling into this category are those advanced by the appellant and dealt with above. The reasons I accept support approval are not of sufficient weight, either individually or collectively, to approve the application in the face of identified non- compliance with the planning scheme. Indeed, an approval of the proposed development at the scale and intensity proposed would not withstand scrutiny against s 3.10.5.1(b), let alone overall outcome (2)(a) of the FHO code. Council’s decision to refuse the development application should be confirmed.

1. In the event a different view was taken in relation to s 3.10.5.1(b) of the Strategic framework and the FHO code, it does not follow the development application should be approved.

2. The assessment of the proposed development against the SAO code and RZC reveals material non-compliances with the planning scheme. The non-compliances fall into one of two categories. First, those that are symptomatic of the proposed development, by reason of its design, scale and intensity, being inappropriate in the Rural zone. Second, non-compliances that demonstrate the proposed development will, contrary to a deliberate and clear forward planning strategy linked to the intended pattern of development, adversely impact on landscape and scenic amenity values.

[192]     While the statutory assessment regime does not mandate refusal in these circumstances, the non-compliance with the planning scheme is entitled to significant weight in the exercise of the discretion. It points to refusal. The issue that then remains is whether there are town planning reasons that warrant approval of the development application in the face of such non-compliance, which is otherwise entitled to its full force and effect.

1. In this context, it is again necessary to look at the grounds advanced by the appellant, which I accept, and favour approval. The relevant grounds, which include the existence of a town planning and community need for the Service station, are entitled to significant weight. They are not, however, sufficient to demonstrate an approval should be granted in the face of material non-compliance with the planning scheme. This is because, in my view, there is a disconnect between the grounds in support of approval and the underlying reason for the non-compliances with the planning scheme. In simple terms, the grounds in support of approval, in particular the need evidence, do not establish there is a sound town planning reason to approve development of the scale and intensity proposed. It is the scale and intensity of the development, rather than the uses per se, that underpin the findings of non-compliance.

2. For these reasons, Council’s decision to refuse the appellant’s development should be confirmed even assuming compliance is demonstrated with s 3.5.10.1 of the Strategic framework and the associated provisions in the FHO code.

   Conclusion

3. I am not satisfied the appellant has discharged the onus.

4. The appeal is dismissed.

5. Council’s decision to refuse the appellant’s development application is confirmed.