Sandstrom v Sunshine Coast Regional Council and Windansea Boardriders Club
[2020] QPEC 62
•18 December 2020
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Sandstrom & Ors v Sunshine Coast Regional Council & Windansea Boardriders Club [2020] QPEC 62
PARTIES:
DEAN SANDSTROM & ORS
(appellants)
v
SUNSHINE COAST REGIONAL COUNCIL
(respondent)
and
WINDANSEA BOARDRIDERS CLUB
(co-respondent)
FILE NO: 3720 of 2019
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
18 December 2020
DELIVERED AT:
Cairns
HEARING DATE:
2, 3, 4, 5, 6, and 9 November 2020
JUDGE:
Fantin DCJ
ORDER:
1. By 4 pm on 22 January 2021, the respondent is to deliver to the other parties a draft Judgment attaching the conditions of approval; and
2. The appeal is adjourned to 9 am on 29 January 2021 for the purpose of making final orders in the appeal.
3. Liberty to relist the matter on 2 business days’ notice if the parties seek alternate dates.
CATCHWORDS:
ENVIRONMENT AND PLANNING – APPEAL – submitter appeal against council’s approval of a development application seeking development permit for material change of use for a club – whether the proposed development complies with the planning scheme – whether the proposed development is suitably located – whether the proposed development will have unacceptable impacts on matters of environmental significance, ecologically important areas and visual amenity – whether other relevant matters support approval or refusal of the proposed development.
LEGISLATION:
Planning and Environment Court Act 2016 (Qld) s 43, s 45, s 47
Planning Act 2016 (Qld) s 45, s 59, s 60, s 62
Planning Regulation2017 (Qld) s 31CASES:
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793
Bell v Brisbane City Council [2017] QPEC 26
Bell v Brisbane City Council (2018) 230 LGERA 374
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
Cowen & Anor v Brisbane City Council & Anor [2015] QPEC 50
Cut Price Stores, Retailers v Caboolture Shire Council [1984] QPLR 126
Friend v Brisbane City Council [2014] QPELR 24
QPEC 50
Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132
Harris v Scenic Rim Regional Council [2014] QPELR 324
Isgro v Gold Coast City Council [2003] QPELR 414
Lipoma Pty Ltd & Anor v Redland City Council & Anor (28 August 2020) [2020] QCA 180
Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661
Prime Group Properties Ltd v Caloundra City Council [1995] QPLR 147
Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41
Seabridge Pty Ltd & Anor v Beaudesert Shire Council & Anor [2001] QPELR 191
Wilhelm v Logan City Council & Ors [2020] QCA 273
48 Stuart Pty Ltd v Brisbane City Council (2017) QPELR 133COUNSEL: A Skoien for the appellants
H Stephanos for the respondent
M McDermott for the co-respondentSOLICITORS: McCarthy Durie Lawyers for the appellants
Sunshine Coast Council Legal Services for the respondentAndrew Davis Planning Lawyers for the co-respondent
Table of Contents
Introduction
The site and locality
The club and its activities
History of development application
The proposed development
Statutory framework
Overview of planning scheme
Is the proposed development appropriately located?
Strategic framework – Settlement pattern theme
Strategic Framework – Economic development theme
Strategic framework – Infrastructure and services theme
Strategic framework – Natural environment theme
Strategic framework – Community Identity, Character and Social Inclusions theme
EMC zone code
Sport and recreation uses code
Bushfire
Conclusion on the nature and extent of any non-compliance with assessment benchmarks
Ecology: will the proposed development result in unacceptable impacts on matters of environmental significance and ecologically important areas?
Biodiversity, waterways and wetlands overlay code
Caloundra Local Plan code
EMC zone code
Conditions of approval
Consideration
Ecological values of the site
Regional ecosystem and wetland classification
Threatened species
Frogs
Flying foxes
Koalas
Ecologically significant area
Impacts on ecological values
Offset
Conclusion on the nature and extent of any non-compliance with assessment benchmarks
Will the proposed development have unacceptable impacts on visual amenity?
Conclusion on the nature and extent of any non-compliance with assessment benchmarks
Other relevant matters under s 45(5)(b) PA relied upon to support approval
Community and town planning need
Nexus
Public benefits
Appropriateness of the use in the EMC Zone
The strong community support for the proposed development;
The existence of council support in the commitment to lease and Federal support in the form of funding
Clearing for bushfire purposes
Advancing the purpose of the Act
Other relevant matters under s 45(5)(b) PA relied upon to support refusal
Reasonable community expectations
Absence of planning need
Absence of public interest
Inability to impose conditions of approval to address non-compliance
Conclusion and orders
Introduction
This is a submitter appeal against the respondent council’s decision to approve the co-respondent’s development application for a material change of use for a Club on the foreshore at Currimundi on the Sunshine Coast.
The co-respondent (the club) is a local longstanding non-profit community association whose objects include the promotion and development of the sport of surfing. It wants to develop a modestly sized clubhouse on the northern side of a park at the end of Buderim Street, within the southern edge of a strip of coastal vegetation and open space.[1] The site is on Crown land that is part of a reserve for recreation purposes, under the trusteeship of the council, with an area of 12.8 hectares.
[1]See Ex 23B, Aerial Photographs with Development Footprint and Ex 10, Joint Expert Reports, tab 6, p 2.
The reserve is a small part of a long strip of coastal vegetation that runs from the north of Caloundra to Currimundi Lake and further north towards Mooloolooba. South of Currimundi Lake, the coastal vegetated strip runs along the foreshore of surf beaches, divided by creeks and an inlet, down to Currimundi, Dicky Beach and further south.
Buderim Street at Currimundi runs generally west to east from Nicklin Way, terminating in a cul-de-sac at a foreshore park. The park interrupts the strip of coastal vegetation, which continues to the north and south. Offshore are two well-known surf breaks: the Ann Street break and the Ann Street reef. There is parking along both sides of Buderim Street and within and around the cul-de-sac head. The cleared and grassed part of the park contains open space, landscaping, and infrastructure. The infrastructure includes a public toilet block, shower, picnic tables, rubbish bins, beach access pathways, a wheelchair access ramp to the beach, and elevated decking leading to a beach observation/viewing platform.
Adjoining the reserve are two schools. On the southern side of Buderim Street, with street frontage for the length of the block, is the Currimundi Special School. On the northern side of Buderim Street are detached houses which back onto the Currimundi State School. About 10 metres west of the site of the proposed clubhouse is a two‑storey house at 1 Buderim Street. A coastal pathway running north south divides the house and school to the west from the coastal vegetation and park to the east. The wider locality is characterised by low-density residential detached dwellings, local shops, hotels and community facilities such as schools and childcare centres and coastal recreation reserves.
The proposed clubhouse is intended to have a building footprint of only 210m2, comprising a building of 178m2 and external unenclosed deck area of 33m2. It is a simple, lightweight, single-storey rectangular building with a maximum height of 5.36 metres, designed to blend into the surrounding environment. It has an access ramp on the southern side and a small deck on the northern side. It would comprise a meeting room, three storerooms, a modest kitchen, a boardroom, and amenities. There is no bar, restaurant facilities or vehicle access.
The club intends to use the clubhouse for storage, meetings and events, as well as coaching, training and community gatherings,[2] and it would be accessible to a number of other identified community groups. The clubhouse is intended to be a not-for-profit community building dedicated to surfing, other ocean based sport, recreation, education and culture.[3]
[2]Ex 2 Development Application, p 11. Ex 13 Co-Respondent’s Lay Witness Statements, tab 2, Affidavit of Don Smith and TS 1-55-56.
[3]Ex 2, pp 20-21.
The relevant State Assessment and Referral Agency (SARA) issued a referral response with conditions to be imposed on any approval.
The development application was impact assessable and publicly notified. There were 330 properly made submissions: 311 submissions supported the proposed development, and 23 submissions opposed, or raised concerns with, it.
The respondent (the council) approved the development application, subject to conditions.
Sixteen submitters who opposed the development now appeal against the approval (the appellants). Four of those own the house at 1 Buderim Street. The others include owners of houses in the same street or locality.
In the appeal, the council maintains its position and continues to actively support approval of the proposed development. It conducted a positive case, calling evidence from independent expert witnesses and making submissions in support of the proposed development.
The appellants say that the proposed development is not an appropriate use in this location and will have unacceptable impacts on ecology and visual amenity.
Summarising, the disputed issues[4] concerned whether the proposed development complies with the relevant planning scheme and specifically:
(a)whether the proposed development:
(i)is appropriately located;
(ii)will result in unacceptable impacts on matters of environmental significance and ecologically important areas;
(iii)will have unacceptable impacts on visual amenity; and
(b)whether there are other relevant matters (including need and public benefit) that support, or militate against, approval of the proposed development.
[4]As identified by the parties in Ex 18, the List of Issues in Dispute, and amended in final addresses and written submissions.
The appeal involved expert evidence in the fields of ecology, bushfire, visual amenity and town planning. There was a degree of overlap in the issues, particularly ecology and bushfire.
For the reasons that follow, I am satisfied that the proposed development should be approved subject to lawful appropriate conditions.
The site and locality
The visual amenity experts agreed that the reserve extends along the dune system for approximately 850 metres to the north of the site taking in Coondibah Creek and approximately 1,020 metres to the south, extending to Dicky Beach headland. They agreed that within or adjacent to the reserve is a variety of built form, including the Dicky Beach skate park, Dicky Beach Surf Lifesaving Club, life guard tower, various shelters and smaller structures and housing. Otherwise, most of the reserve is vegetated.
In 2017, the council resolved to grant the club a lease of part of the reserve, with an area of 590m2 (the site). It comprises only 0.46% of the entire reserve, which has an area of 12.8 hectares.
The club has a longstanding connection with the Ann Street surf break, offshore from the end of Ann and Buderim Streets. The Ann Street break is a nationally recognised surf break. Surf conditions in this location are covered daily on websites, radio, and sometimes television, with advice about the break and prevailing conditions. Further offshore is another surfing location known as the Ann Street reef, and keener riders will paddle out to that location. While most surf breaks involve only one break, the Ann Street break benefits from a left-hand and a right-hand break, as waves break either side of a rock formation. It also has useful shore breaks further to the left and right, providing up to four sets of breaks, conditions prevailing.
The club and its activities
The club adduced affidavit evidence from 10 lay witnesses. Only one of those, Mr Smith, who was authorised on behalf of the club to swear his affidavit, was required for cross-examination. The evidence of the club’s other lay witnesses was unchallenged.[5]
[5]Save for limited objections to the expressions of opinion by lay witnesses. Those opinions were not relied upon for the truth of the expression, and I have taken the objections into account in considering the weight to be given to the evidence.
The club was established in 1970 and is 50 years old. It has approximately 145 members ranging in age from children to retirees. Half of the members are younger than 12 years old. The mission of the club is “[t]o promote the sport of surfing and actively being involved with the local community, encouraging and attracting young surfers on the Sunshine Coast to become new members while promoting the integrity and sportsmanship in the sport of surfing.”[6]
[6]Ex 17 Affidavit of Don Smith pp 22-57, Exhibit DS-1, Constitution of Windansea Boardriders Club Inc.
The current constitution of the club was adopted on 7 November 2018.[7] Its objects include:
(a)To promote and develop the sport of surfing and such other sports, games, and pastimes, as the associate may deem expedient in the Region;
(b)To affiliate with Surfing Queensland Inc. and such other associations as shall be considered desirable;
(c)Actively support the preservation and conservation of the environment, and join with or affiliate with bodies or organisations concerned with the conservation and preservation of the environment;
(d)To establish and operate a viable surfing and community clubhouse that can also be used by the wider community; and
(e)To promote a strong and caring image supporting surfing in the community.
[7]Ibid.
Membership of the club is open to the public, and the club conducts and promotes a number of events and activities.
The club hosts the annual Pa and Ma Bendall Memorial Surfing Contest at Moffat Beach in honour of two local prominent surfing identities described as “Queensland surfing’s patron saints” and “grandad of Queensland surfing”. The inaugural contest was held in 1974, and it is the second longest surfing contest in Australia (after the Bell’s Classic). The contest attracts national competitors and is a substantial boost to the local economy. The age of the club, its history, and conduct of that annual surfing contest are important to the club’s heritage and culture.
In addition, every month on a Sunday between 7am and 2pm, the club hosts a surfing contest at the Ann Street surf break. Some 80 to 100 people compete, and 100 to 200 people attend. This is authorised by a local law permit issued by council. The proposed clubhouse is to be located at the end of Buderim Street and adjacent to the open space containing the toilet block, judging/viewing platform and wheelchair access ramp to the beach. That infrastructure complements the use of the Ann Street break for surfing competitions. Indeed, Mr Smith’s evidence is that the club was one of the entities involved in seeking improvements at the Buderim Street Park that led to construction of the platform some 20 years earlier, which is used for judging surfing competitions at the Ann Street break.
The monthly competitions occur at the Ann Street surf break unless weather or prevailing conditions prevent them from being held there. Mr Smith said that conditions at the break are pretty constant and you can usually surf there.
In addition, the club also conducts meetings (monthly), junior development sessions (weekly) and interclub competitions (regionally). The club runs a junior program in conjunction with the Currimundi State School, and juniors usually surf from the beach in front of the school (accessed from the foreshore park).
Mr Williams, club member and town planner, deposed to the diverse and multi‑generational membership of the club, and its commitment to fostering in young people an appreciation of surfing and the coastal environment. He confirmed the club’s membership includes students, parents and teachers from the two neighbouring schools. He deposed to the club’s “strong relationship with the site and its local area”, describing it as the “spiritual home” of the club and the “epicentre” of the majority of its recreational and competitive surfing activities.
Mr Reef Heazelwood, lifelong club member and professional surfer, deposed to the benefits of club membership to young people, the prevalence of families within the club membership, and members’ connection to the adjoining schools and local community.
Mr Daley, club member and architect, deposed to the diversity of the club’s membership, in terms of occupation and age. He said that the club had more junior members than senior, with most not old enough to consume alcohol. He deposed to the problems associated with club members attending a hotel for club meetings, and the undesirability of this with children.
Mr Cover, club treasurer and accountant, deposed to the club’s family orientated focus and large membership of young people. He further deposed to club members’ care for the coastal environment and in regular beach cleanups. He said the club’s focus was on coaching and supporting young members to State, National and International competitive success, and that the club was first and foremost a sporting organisation, rather than a social club.
Ms Burke, club member and clinical midwife, repeated many of the above statements. She added that most members live in the immediate area and all volunteer with the club, as well as other community organisations and the schools. She spoke of the benefit to the local community of the proposed development in this location.
Mr Hindley, club member and former club President and landscape architect, deposed to the club’s success in developing competitive surfers, including a world champion, who act as mentors for young members. He said that proximity to the “sporting arena” is vital for maximising the value of the clubhouse facility to its members. He said that the proposed site is the best location for the club in terms of its proximity to the Ann Street surf break, and the council and community built surfing infrastructure in the form of the judging platform and disability boardwalk access, thus allowing “the broadest church of the board riding surfing community to be involved”. He also referred to the other attributes of the location including the grassy open space with public toilet, available parking for club meetings during the evenings, and access to a safe cycle network and well-lit street.
Ms Heazlewood, club member and member of Disabled Surfers and Christian Surfers, deposed to the positive influence of the club on many families and the high level of volunteer involvement over many years.
Dr Heazlewood, club member and medical practitioner, emphasised the club’s positive impact on children, saying it had helped hundreds of children to mature, develop confidence, and improve behaviour. He deposed to the inclusive and diverse nature of the club’s membership. He emphasised the importance of caring for people in the community particularly during the COVID-19 pandemic, and said that encouraging and supporting the club and its proposed clubhouse would make a material positive impact.
Mr Warner, the Indigenous Surfing Chapter representative to the club, member of the clubhouse governance committee, and cultural consultant, deposed to the other community groups and clubs likely to be interested in using the proposed facility. He confirmed that it had been difficult to find available meeting places for club meetings. He confirmed that in recent years meetings had been held at the hotel, which was not ideal because the club has so many underage members, and that the club is keen to move to non-licensed premises.
History of development application
Mr Smith is the chair of the club’s taskforce formed for the purpose of establishing the clubhouse. He gave unchallenged evidence that the club has been pursuing its goal of establishing a clubhouse to support its members since 2011. It established a taskforce. It consulted with the community, including with the traditional owners, who supported the proposed clubhouse.
Currently the club conducts its monthly meetings at the Currimundi hotel, which provides room for the meetings on the understanding that members will buy drinks and/or meals. Most members of the club do not like this arrangement because they prefer not to attend licensed premises with their children (who are members).
Mr Smith gave evidence that the club has had great difficulty finding available premises. He was cross-examined at length about this. He accepted that the club had once held meetings at the Caloundra events centre, at a school (but said they were not permitted inside) and that they held their Christmas party at the rugby union club. He confirmed that the club may continue to hold its annual Christmas function at a licensed premises. In cross-examination, he rejected the suggestion that there was no reason that the club could not hold its monthly meetings at the school(s). He said that the club had approached the schools about holding meetings on their premises, but the answer was “no”, that they could not at present due to Covid-19 considerations, that it was difficult to get the times sought by the club, that there were issues with access to the school grounds including after hours, and that was why they currently used the hotel for monthly meetings. He said he had even asked if they could put the club on land used by the Special School. He said it would not be possible to display the club’s large collection of surfing memorabilia at a school. He also rejected the suggestion that there was no reason the club could not use the land at Graham Stewart park where it currently stored its larger items, explaining that it was three kilometres from the beach which was not conducive to running a surf club. He said that the club had also approached the Sunshine Coast recreation centre to use their premises but it was hard to get the times they needed, and it was expensive to use.
In 2018 the club amended its Constitution to reflect its intention to establish a clubhouse, not only for its club members, but for other clubs in the community.
On 22 June 2018, the club lodged an impact assessable development application for a development permit for a Material Change of Use for a Club (the development application). The Department of Natural Resources, Mines and Energy, as the owner of the land, gave owner’s consent to the development application. Consent was conditioned upon the club complying with the purpose of the reserve, which was recreation, and entering a trustee lease with the council.[8]
[8]Ex 2, Development Application, p 200 (subpage 33 of 34).
The development application was treated as properly made on 7 August 2018. It was publicly notified in November and December 2018. An evaluation of the submissions found overwhelming community support for the proposal.
Having read the submissions,[9] I agree with that assessment. It is often said that it is the quality or content of the submissions that matters more than the quantity. Here, the submissions were notable for their lack of pro forma responses. On the whole, they were hand written, individualised and referred to different issues. In addition to supporting submissions from club members, there were also many submissions from local community organisations. I have taken all of them into account but some warrant particular mention.
[9]Ex 5, Submissions.
The principal of the Currimundi State School, a primary school of almost 600 students, provided a submission in support. The school is adjacent to the development site to the northwest, and adjoins the coastal path. It has beach and marine activities embedded in the school program and has surfing development, surfing excellence, and surf lifesaving programs as part of its curriculum. It has an annual beach carnival and various surfing competitions. The school is strongly connected to the marine, intertidal, foreshore and dune environment. It envisages a very close relationship with the club and hopes to use the clubhouse, including for community workshops and activities for youth. Many club members have connections to the school because they or their children attended it. Another aspect of the school’s relationship with the club which would benefit the students and community is access to club members as mentors and support for young people, including indigenous students (the club has an indigenous chapter) and students with behavioural problems. It referred to the potential for schools in the region to use the facility for surf programs, and said that the development would benefit a great many people and community groups, including Sunshine Coast Disabled Surfers Association, Indigenous Surfers and Women in the Waves.
The principal of the Currimundi Special School provided a submission expressing, on behalf of the school community, “full support” for the proposed development. It said the special school has received “enormous support” from the club over many years. Its students regularly use the beach to develop surf skills, beach awareness and to participate in a range of activities. The establishment of the clubhouse will strengthen the already strong relationship. The special school considers that the proposed development will be an asset to the community and will benefit its students, staff and parents in the short and long-term.
Two staff members of the Currimundi Special School separately provided submissions reiterating the benefit of the proposal to their students, and confirming the club’s association with and support for the Sunshine Coast Disabled Surfers Association.
There were also submissions in support from other community groups, including:
(a)the Caloundra Rugby Union Club Inc (stating the clubhouse would be an asset to the surfing community);
(b)the Caloundra Junior Rugby League Club (emphasising that the clubhouse would help promote junior sports);
(c)the Caloundra Golf Club (emphasising the benefits to other community organisations and the contributions that the club makes to the community);
(d)the Maleny Golf Club (approving the development plans, stating that the proposal would increase options for residents and visitors to engage in outdoor beach based activities, noting the club’s “long and distinguished history” in particular, “by encouraging young boys and girls to develop into responsible and well-rounded adults”, noting its commitment to working with other community clubs to share and use facilities for sporting and outdoor activities, and the opportunity for closer strategic relationships with the club to ensure wider community benefits).
There were numerous individual submissions supporting the proposed development.
Of the submissions opposing or raising concerns with the development, concerns were raised with club capacity, whether the facilities would be exclusive to club members and not accessible by members of the public, private use of public land, concerns about liquor licensing and alcohol consumption, excluding the public from the viewing platform, and whether approval of the proposal would create a precedent. The affidavits of Mr Smith and other lay witnesses responded to many of those concerns, particularly to fears about alcohol misuse, and the nature of the proposed use. The evidence of the club’s lay witnesses on those issues was unchallenged, and I accept it. In the end, those issues were not pursued as disputed issues in the appeal or grounds for refusal.
Some adverse submissions also raised concerns with traffic, car parking, noise and amenity impacts on nearby houses, and vegetation clearing and habitat destruction. The club provided reports on noise and traffic as part of the development assessment process. Traffic, parking and noise impacts were not pursued as disputed issues in the appeal or grounds for refusal. The impacts of vegetation clearing remained a disputed issue in the appeal.
The proposed development was referred to SARA for work in a coastal management district, clearing native vegetation, water quality and contaminated land (unexploded ordinance).
In response to an information request and advice from SARA, the club relocated the proposed development 5.89 metres to the west and 3.85 metres to the south to ensure it did not result in a significant residual impact on the identified wetland and high valued vegetation on site.[10]
[10]Ex 10, tab 6, town planning JER, para 3.18, 3.19. Compare the original Site Locality plan at Ex 2 p 74 with the Site Plan – Revised Siting at Ex 16.
SARA issued a referral agency response with conditions that must attach to any approval of the application.[11] Its conditions required the proposed development be located in accordance with the revised siting plan and clearing to be limited to an area identified as Area A. Its reasons included ensuring that the proposed development avoided clearing, or where avoidance is not reasonably possible, minimised clearing. Council considered the change to the development application to be a minor change, so the assessment process was not required to be restarted.
[11]Ex 6; Ex. 10, Tab 6, town planning JER, p. 7, para. 3.18; Ex 4; Ex 7.
On 20 June 2019 council resolved to approve the development application (including the revised siting plan). Following representations by the club, council issued a Negotiated Decision Notice. On 15 October 2019 the submitters lodged the appeal.
The club has received financial and other support for the proposal from a number of sources. In 2019 the Federal government approved a grant of $140,000 for the proposed development on the site. The council approved a grant of $40,000 to help build the clubhouse. The club has also received in-kind pledges from members of the community (materials, labour and professional help) worth approximately $100,000.
The proposed development
The primary purposes of the proposed clubhouse are to be a “home for the club”, a place for the club and other community groups to conduct meetings, and a place to store the club’s memorabilia and equipment (such as chairs, trestle tables and a stage). Larger items such as its trailer, tents and other equipment will continue to be stored off site at Graham Stewart Park.
The club is not intended to be, nor can it be, a licensed venue, bar or social club, nor will it be let for private functions such as weddings. Presently, some members may have an alcoholic drink at the conclusion of some club competitions, but no alcohol is available for sale, and this arrangement is proposed to continue.
No additional carparking is proposed.
I agree with the council’s submission that the conditions of approval[12] limit the nature and extent of the approved use to ensure that adverse impacts upon surrounding amenity and the local area are minimised.
[12]Ex 9, Negotiated Decision Notice.
Condition 3 states:
The approved use is for a Club in accordance with the definitions and provisions of the Sunshine Coast Planning Scheme 2014 for the purposes of storage of competition equipment, the hosting of club meetings and the administration of Club competitions, along with other activities such as coaching, training and community gatherings associated with the WindanSea Boardriders Club. The use of the building for any other purpose, as defined in the planning scheme, is not permitted without the prior written consent of Council.[13]
[13]Ibid p 4.
Condition 4 requires that the kitchen must not be used for commercial purposes of serving food and drink to the general public.
Condition 5 requires the floor area must not exceed that shown on the approved plans, being a building of 178m2 and 33m2 of external unenclosed deck area.
Condition 6 requires that the premises must not be used for any purpose requiring a liquor or gaming licence.
Condition 7 requires that the use must not operate outside the hours of 6am to 10pm, 7 days per week, unless otherwise agreed in writing by council.
Condition 8 requires that the use must not involve live or amplified entertainment or devices. Condition 9 prohibits the use of megaphones or public address systems.
Condition 10 requires that use must not preclude free and equitable access to the recreation reserve and existing public facilities. Condition 11 requires all components of the use must occur within the lease boundary area.
Other conditions relevant to the disputed issues will be referred to in the course of these reasons.
The appellants do not challenge the lawfulness of the conditions of approval. Mr Smith confirmed the club’s intention to fully abide by these conditions.
In deciding this application, the Court is to proceed on the basis that the applicant will comply with the conditions of approval, rather than proceed on the basis of an assumption that people would flout those conditions and commit a development offence.[14] As will appear later in these reasons, certain experts did not proceed on this basis and that error infected some of their evidence.
[14]Seabridge Pty Ltd & Anor v Beaudesert Shire Council & Anor [2001] QPELR 191 at [18]; Harris v Scenic Rim Regional Council [2014] QPELR 324 at [244]; 48 Stuart Pty Ltd v Brisbane City Council [2017] QPELR 133 at [19].
Statutory framework
The statutory framework in the Planning and Environment Court Act 2016 (Qld) (PECA) and the Planning Act 2016 (Qld) (PA) applies. The court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the council with directions the court considers appropriate.[15]
[15]PECA s 47.
The appeal is by way of hearing anew.[16] The applicant (the club) must establish the appeal should be dismissed.[17] The court is to determine the appeal standing in the shoes of the assessment manager and on the law applicable at the date of the proceeding.
[16]PECA s 43.
[17]PECA s 45.
As the proposed development was impact assessable, s 45(5) of the PA requires that the assessment:
(a)must be carried out:
(i)against the assessment benchmarks in a categorising instrument for the development (in this case, the planning scheme[18]); and
(ii)having regard to any matters prescribed by regulation for this subparagraph; and
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[19] [emphasis added].
[18]Sunshine Coast Planning Scheme 2014 (Version 15) (‘the planning scheme’).
[19]PA ss 59, 45(5).
It was common ground that there were no matters prescribed by regulation in issue. “Any other relevant matter” in s 45(5)(b) is not defined. It excludes a person’s personal circumstances, financial or otherwise. Examples given (which are not exhaustive) include a planning need. It is intended that any such matters be matters of public, not private, interest, given that the planning and development assessment system is intended to serve the public interest.[20]
[20]Explanatory Notes, Planning Bill 2015 (Qld) 53.
Impact assessment must be carried out having regard to the common material, to the extent it is relevant to the development.[21]
[21]PA s 45(5)(a)(ii), Planning Regulation 2017 ss 31(1)(g), 31(2)(a).
Subject to s 62, s 60(3) requires the assessment manager, after carrying out the impact assessment, to approve all or part of the application, or to do so but impose conditions, or to refuse the application.
Section 62 requires an assessment manager’s decision to comply with all referral agency’s responses, and if a referral agency’s response requires conditions to be imposed on a development approval, to include the conditions exactly as stated in the response.
At the hearing, the parties submitted that the correct approach to assessing and deciding applications under the PA was generally as described by Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793, which has been applied in other decisions of this court.
After the hearing but before these reasons were delivered, the Court of Appeal delivered a number of decisions considering the statutory regime under the PA.
In Brisbane City Council v YQ Property Pty Ltd the court confirmed that the ultimate decision called for when making an impact assessment under s 45 and s 60 PA is a broad, evaluative judgment, and that s 60(3) stipulates the potential decision outcomes without proscribing which decision should be reached. [22]
[22][2020] QCA 253 [59], [62], [63] (Henry J, with whom Fraser and Morrison JJA agreed).
In Abeleda & Anor v Brisbane City Council & Anor the court confirmed that the relevant assessment and decision-making framework under the PA is different to the former regime under s 326 of the Sustainable Planning Act 2009 (Qld) (SPA). [23]
[23][2020] QCA 257 [38]-[51] (Mullins JA, with whom Brown and Wilson JJ agreed) (‘Abeleda’).
In earlier decisions under s 326 of the SPA, the Court of Appeal had confirmed that conformity with the planning scheme is, prima facie, in the public interest,[24] and that a decision maker must take a planning scheme to be an expression of the public interest in terms of land use.[25]
[24]Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 [47] (‘K & K’); Bell v Brisbane City Council (2018) 230 LGERA 374, 392 [70] (‘Bell’).
[25]Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 [67].
In Abeleda, the court referred to earlier decisions including Bell, K & K and Redland City Council v King of Gifts (Qld) Pty Ltd,[26] and said that the change to the assessment and decision-making framework under the PA by eliminating the former two stage test has not altered the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of the land.[27] The court went on to say:
[40] The absolute terms in which McMurdo JA expressed in [67] and [70] of Bell that it is in the public interest that the planning scheme is applied, unless the contrary is demonstrated, are no longer applicable to the exercise of the discretion by the decision-maker under s 60(3) of the Act, as the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is permitted to have regard to other relevant matters, in addition to the mandatory assessment against the assessment benchmarks in the planning scheme. I would anticipate in most instances, where a planning scheme is not affected by changed circumstances of the type referred to in Bell at [68], that the decision-maker would give significant weight to the public interest expressed in the planning scheme in undertaking the decision-making under s 60(3) of the Act.
…
[42] … The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.
[43] In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision-making in a way that advances the purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.
[26][2020] QCA 41 (‘King of Gifts’).
[27]Ibid at [37].
In Wilhelm v Logan City Council & Ors the court made statements to similar effect.[28]
[28][2020] QCA 273 at [79] – [80].
Overview of planning scheme
It is useful to start with an overview of the structure of the planning scheme.
The strategic framework sets the policy direction for the planning scheme area and forms the basis for ensuring appropriate development occurs within the planning scheme area for the life of the planning scheme.[29] For the purposes of articulating the policy direction, the strategic framework identifies a strategic intent, eight “themes” to achieve the strategic intent, and specifies strategic outcomes sought for development in the planning scheme area for each theme.[30] Although each theme has its own section, the strategic framework is to be read in its entirety as the policy direction for the planning scheme.[31] A list of key concepts is provided at the beginning of each theme to summarise the overarching principles expressed in the theme.[32] Those parts of the strategic framework are not framed in a manner that directly regulates development. Rather, they assist in identifying the rationale for, and the importance of, the various planning strategies that underpin the provisions that regulate development. The strategic framework also identifies “elements” that refine and further describe the strategic outcomes and stipulate the specific outcomes sought for the elements.[33] The elements, specific outcomes and strategic framework maps form the implementation framework for the strategic framework.[34]
[29]Sunshine Coast Planning Scheme 2014 (Version 15) s 3.1.
[30]Ibid s 3.1(2).
[31]Ibid s 3.1(3).
[32]Ibid note to s 3.1(3). Pursuant to s 1.3.2(3), notes are part of the planning scheme.
[33]Ibid s 3.1(2).
[34]Ibid note to s 3.1(3).
The policy direction in the strategic framework is supported, at a finer grained level, by other parts of the planning scheme. The zones (and the associated zone codes) organise the planning scheme in a way that facilitates the location of compatible land uses.[35] Local plans (and associated local plan codes) organise the planning scheme area at the local level and provide more detailed planning for the zones.[36] The mapping overlays and overlay codes identify areas in the planning scheme that reflect State and local level interests and have a particular characteristic, such as a particular sensitivity to the effects of development or a constraint on land use or development outcomes.[37] Thus, there is a cascading series of provisions of increasingly narrow focus.
[35]Ibid s 6.1.
[36]Ibid s 7.1.
[37]Ibid s 8.1.
Impact assessable development must be assessed against all of the assessment benchmarks identified for the assessable development, and “is to have regard to the whole of the planning scheme, to the extent relevant”.[38]
[38]Ibid s 5.5.5(3)(b).
In terms of assessment against the codes, development that complies with:
(a)the purpose and overall outcomes of the code complies with the code; and
(b)the performance outcomes or acceptable outcomes of the code complies with the purpose and overall outcomes of the code.[39]
That applies to impact assessment.[40]
[39]Ibid s 5.3.3(3)(c).
[40]Bell v Brisbane City Council [2017] QPEC 26 [27]. Whilst that was the subject of challenge in the Court of Appeal, the Court was unpersuaded that the criticism was justified: Bell v Brisbane City Council(2018) 230 LGERA 374, 387 [50].
Is the proposed development appropriately located?
Under the planning scheme, the site is:
(a)in the Strategic Framework: outside the Urban Area and the Urban Growth Management Boundary (UGMB), and within the Major Conservation Area;
(b)within the Caloundra Local Plan area;
(c)within the Environmental management and conservation zone (EMC zone); and
(d)subject to a number of overlays, including the Biodiversity, Waterways and Wetlands Overlay.
The land is also located within the “urban footprint” pursuant to the South East Queensland Regional Plan.[41]
[41]Ex 10 Joint Expert Reports, tab 6 p 8 [4.1]. Although no party relied upon the provisions of the SEQRP in the appeal.
The parties agreed upon the relevant provisions of the planning scheme applicable to the development,[42] but disagreed on whether the proposed development complied with them. Some of the provisions relied upon by the appellants were described as “focal” and others were merely “contextual”.
[42]Ex 18 List of Issues in Dispute, as amended in final oral and written submissions.
The appellants submitted that “the Court ought to give particular, indeed determinative, weight to provisions of the Planning Scheme that pervade all levels of the Planning Scheme, from the Strategic Framework to the Caloundra Local Plan that evince a planning intent that:
(a)urban development (being development of the sort proposed here, involving urban built form) ought be located west of the urban growth management boundary, not east of that boundary as proposed here;
(b)development protect, and not detract from, existing landscape and scenic values;
(c)development protect, and not detract from, existing ecological values; and
(d)development enhance landscape, scenic and ecological values.”[43]
[43]Outline of Argument on behalf of the Appellants [3.9].
The appellants’ submission that the development is in an inappropriate location having regard to reasonable community expectations is based upon matters including the development’s location outside of the UGMB, within the EMC zone, on land affected by overlays, in an area that is not an activity centre, and that the Sport and Recreation Use Code requires a Club use to be developed in “appropriate locations” where not impacting upon amenity.
Strategic framework – Settlement pattern theme
The main strategic framework theme relied upon by the appellants for non‑compliance was the “settlement pattern” theme. A key concept of this theme is retaining urban and rural residential development within defined “local growth management boundaries”. A number of more specific provisions in the zone codes and the local plan flow from this key concept of growth management boundaries.
Relevantly, the strategic outcomes for the settlement pattern theme in s 3.3.1 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.
…..
[emphasis added]
The relevant specific outcomes for the settlement pattern theme relied upon were:
3.3.2 Element 1 - character, lifestyle and environment attributes
3.3.2.1 Specific outcomes
(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;
….
(iv) maintaining a relaxed lifestyle derived from an appreciation of the character, lifestyle and environment attributes offered by the Sunshine Coast as a place.
3.3.3 Element 2 – Growth management boundaries and land use categories
3.3.3.1 Specific outcomes
(a)Local growth management boundaries and land use categories are identified for the region.
(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.
….
(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;
….
(v) protect the discrete identities of individual places and communities;
….
3.3.4 Element 3 – Efficient and functional urban form
3.3.4.1 Specific outcomes
(a)The pattern, form and structure of urban areas contributes to the achievement of:- …
(vii) access to quality recreational open space;
3.3.9 Element 8 - Local settings and local planning responses
3.3.9.1 Specific outcomes
….
(c)Coastal urban areas are urban areas adjacent or near the coast that offer a range of lifestyles with generally high levels of access to employment, infrastructure and services and a strong affinity with the coastal environment. These areas also often have high tourism visitation values. Coastal urban areas in the southern and central part of the region form the Sunshine Coast Enterprise Corridor.”
[emphasis added]
Thus the defined local growth management boundaries are drawn to contain the physical extent of urban and rural residential development so as to achieve certain purposes. The purposes relevant here are to protect biophysical and environmental values, maintain natural areas for their landscape and environmental values, and protect the discrete identities of individual places and communities.
The Caloundra local plan code, s. 7.2.6.3(2)(b), similarly directs urban development within the Caloundra local plan area to land within the UGMB “so as to protect the integrity of foreshore and creek side environmental reserves”.
Thus, locating “urban development” outside of the UGMB in an area designated as an EMC zone would not, on its face, achieve these strategic and specific outcomes.
Is the proposed use “urban development”? Urban development is not defined in the planning scheme. Urban purposes is defined in the administrative definitions:[44]
For the purposes of the local government infrastructure plan, … [it] includes residential (other than rural residential), retail, commercial, industrial, community and government related purposes.
[44]Table SC1.2.2.
The definition of Urban zone merely lists certain zones, but the list does not include the EMC zone. The PA and associated regulation do not assist. The parties agreed that urban development should be given its ordinary meaning, consistent with the context in which it appears. The relevant Macquarie Dictionary definition of “urban” includes “of, or relating to, or comprising a city or town”, “occurring or situated in a city or town” and “characteristic of or accustomed to cities; citified”.[45]
[45]Macquarie Dictionary (3rd Edition, 2005) ‘urban’.
Club is a defined use in the planning scheme[46]:
“Premises used by persons associated for social, literary, political, sporting, athletic or other similar purposes for social interaction or entertainment. The use may include the ancillary preparation and service of food and drink.”
[46]Ex 14 Schedule 1 Definitions.
The definition provides examples including “Club house, guide and scout clubs, surf lifesaving club, RSL club, bowls club”. Club is part of the Sport and Recreation Activity group, not part of the Rural Activity group.
I agree with the opinion expressed by Mr Schomburgk, the town planning expert engaged by council, that there is nothing in the character of these examples that is inherently urban.[47] Put another way, a Club as defined is not necessarily characteristic of cities, because it is conceivable that the use could occur other than in a town or city.
[47]Ex 10 Joint Expert Reports, tab 6, p 11 [4.10] per Schomburgk.
Mr Schomburgk did not accept that the proposed development was “urban development”. He said that a Club can be, but does not have to be, urban development and that this particular clubhouse was not urban development. He observed that a Club is a land use not uncommonly found outside such a boundary, for example scout and girl guide halls, or “men’s sheds” are often found in rural areas or in open space areas.
Consistent with his opinions, of the seven clubs listed by Mr Clegg, the town planning expert engaged by the appellants, in the joint expert report,[48] both the Caloundra Power Boat Club and the TS Onslow Navy Cadets Club are located outside of the UGMB.[49] I accept the council’s submission that the location of these clubs outside of the UGMB notwithstanding subsequent scheme amendments tends to indicate that there may be circumstances when the location of a Club outside the UGMB can be considered acceptable.
[48]Ibid p 30, [5.44(s)].
[49]Ibid p 34[5.65].
The town planning expert engaged by the club, Mr Ovenden, accepted that a Club was an urban use or activity, but gave examples where Clubs also occurred outside urban areas, in rural locations.
Mr Clegg also acknowledged and was aware of Clubs that are located outside urban areas.[50]
[50]Ibid p 12[4.14].
I accept that the use of Club as defined may be, but is not necessarily, urban development. Nonetheless, on the facts of this particular case I am satisfied that the proposed use is “urban development”. That is because of the nature of the use proposed, comprising built form located in a city or town area which is intended to be used by persons in a city or town area.
The proposed development is consistent with the principles of social and lifestyle objectives embodied in the Strategic Framework. For the reasons explained below, I am satisfied that allowing the proposed development on this site outside, but immediately adjacent to, the UGMB would achieve many aspects of the relevant assessment benchmarks in the Strategic Framework settlement pattern theme, in that:[51]
(a)it 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)it achieves the efficient delivery of infrastructure and services;
(c)natural areas will be maintained predominantly for their landscape and environmental values;
(d)it promotes maintenance of a relaxed lifestyle derived from an appreciation of the character, lifestyle and environment attributes offered by the Sunshine Coast as a place;
(e)it protects the discrete identities of individual places and communities;
(f)it achieves, and encourages, access to quality recreational open space; and
(g)it is adjacent to and promotes a coastal urban area with a strong affinity with the coastal environment and high tourism visitation values.
[51]Sections 3.3.1(a), (c), and (d), 3.3.2.1(a)(iv), 3.3.3.1(d)(v), 3.3.4.1(a)(vii) and 3.3.9.1(c).
I do not consider s 3.3.1(g) relevant because it relates to the provision of “living opportunities”, i.e. housing.
The UGMB is an important tool to contain urban growth. Assuming that the proposed development is urban development, it will involve the construction of built form outside the UGMB and associated vegetation clearing for the development footprint. To that extent, it necessarily results in some non-compliance with the relevant provisions of the Strategic Framework settlement pattern theme directed towards containing growth within the UGMB, protecting biophysical and landscape values, and protecting, enhancing and maintaining natural areas for their landscape and environmental values.[52]
[52]Sections 3.3.1(b), (c), (d), 3.3.2.1(a)(i), 3.3.3.1(b), 3.3.3.1(d)(i).
However I am satisfied that the extent of that non-compliance, both quantitatively and qualitatively, will be minor for reasons explained below and in the ecology, bushfire, and visual amenity sections.
The building footprint of the clubhouse is modest. The site (lease) has an area of 590m2. That comprises only 0.46% of the entire reserve, which has an area of 12.8 hectares. I agree with Mr Schomburgk’s opinion that “the development will take up a minutely small part of the overall provision of open space and environmental areas across the region, and is part of an open space already committed to buildings and structures…the proposed development, with its minimal scale and impact, will make a positive contribution to the social and recreation networks of the Sunshine Coast, and will not detract from the broad strategic framework intentions to such a degree as to warrant refusal of the application.”[53]
[53]Ex 10 tab 6, [4.9].
I accept his opinion that the proposed development will protect the integrity of the foreshore, including by encouraging participation and appreciation of the foreshore. I am satisfied that the integrity of the foreshore as a whole will not be impacted to any significant degree and there will be negligible adverse impact on it. The foreshore is already impacted in this location by the cul de sac head, the toilet block, the bins, pathways and areas of mown lawn.
I agree with Mr Ovenden’s evidence that the proposed development is a Club with facilities, very much like an Outdoor sport and recreation use, that exists to promote the sport of surfing and has a direct nexus to the beach. He likened it to a golf club where the clubhouse is inextricably linked to the golf course, where its sport is played. I agree that the proposed development will be low impact and low key. The proposed Club use stands in marked contrast to urban development in the form of a restaurant, café, commercial or residential uses.
I am further satisfied that the proposed development will not offend in any meaningful way the purpose of limiting urban development to the UGMB in the circumstances of this case, because of the limited (and not unacceptable) impacts upon the matters that are relevantly sought to be protected, maintained or enhanced. Specifically the biophysical and landscape values and foreshore environmental reserves: in this location in the local plan, the integrity of foreshore and creek side environmental reserve, which are discussed below.
In my view, the non-compliance with the Strategic Framework settlement pattern theme is not determinative, and the location of the proposed development outside the UGMB does not warrant refusal of the development.
Strategic Framework – Economic development theme
In the Economic Development theme, the proposed development in this location complies with, and draws some support from specific outcomes 3.4.1(u) and (v):
“(u) Tourism, sport and leisure related activities offer unique and world class tourism, sport and leisure experiences and products as well as major events; and
(v) Creative industries and cultural and community activities occur across the region in activity centres, tourism focus areas and other locations as appropriate.
The proposal is also consistent with the broad policy objectives promoting active and healthy living in Element 1 – Natural (competitive) advantage and key economic sectors, specific outcome 3.4.2.1(c)(v) “protection of existing tourism, sport and leisure facilities and encouragement of the establishment of new facilities that contribute to active, healthy living and community wellbeing.”
The council also referred to Element 5 – Tourism and tourism focus areas, specific outcome 3.4.6.1(e), but I do not consider this relevant because the proposed development is not tourism development. Although I accept that it will assist in promoting the area to tourists as a surfing destination.
No issues of non-compliance are raised with this theme.
Strategic framework – Infrastructure and services theme
In the Infrastructure and services theme, strategic outcomes 3.6.1(a) and (b), 3.6.2, 3.6.9 and 3.6.10 were referred to but I do not consider those relevant because they are directed towards the delivery of infrastructure and services to meet community needs, and although included in the list of issues in dispute,[54] they were not relied upon in submissions.
[54]Ex 18.
The proposed development complies with, and draws some support from, the policy objectives in Strategic outcome 3.6.1(j) which provides:
“Communities have access to high quality and well located open space and community facilities which are easy to access, contribute to the character and identity of places and improve opportunities for active living, community health and wellbeing and social inclusion.”
No issues of non-compliance are raised with this theme.
Strategic framework – Natural environment theme
The key concepts of the Natural Environment theme include protection of the natural environment and “avoidance of, or if avoidance is not practicable, minimisation and mitigation of, individual and cumulative adverse impacts of development on the natural environment.”[55] The strategic outcomes are directed towards protecting and enhancing the natural environment.
[55]Section 3.7 (3) and (4).
The following elements and specific outcomes are relevant in this theme:
“3.7.2 Element 1 – Natural habitats and biodiversity
3.7.2.1 Specific outcomes
(a)Development is located, designed, constructed and operated to avoid, as far as practicable, or where avoidance is not practicable, minimise and mitigate, adverse impacts on the ecologically important areas identified conceptually on Strategic Framework Map SFM 5 (Natural environmental elements) which include remnant native vegetation, riparian areas and natural waterways, wetlands and waterbodies.
…
(c)Ecologically important areas are not disturbed or diminished by development except where:-
(i) on the balance of social, economic and environmental considerations, it is demonstrated that the development is in the interests of the community [see note 13 below]; and
(ii) any adverse impacts incurred are compensated by the provision of a biodiversity offset that results in a net gain and enhancement to the overall habitat values of the Sunshine Coast.
13 Note—in determining whether development has satisfied these criteria Council may consider such matters as:-
(a) whether alternative options are reasonably available;
(b) the size, type and condition of the ecologically important area affected;
(c) the extent to which the ecologically important area has significant hydrological, biodiversity, landscape or character values;
(d) the extent to which a biodiversity offset can reasonably compensate for the loss of the ecologically important area; and
(e) whether the development proposed is reasonably anticipated by and consistent with the planning scheme.”
[emphasis added]
The site is not included in the ecologically important areas identified conceptually in Strategic Framework Map SFM5, Natural Environment Elements. Therefore, strictly speaking, 3.7.2.1(a) does not apply.
However ecologically important area is defined in the administrative definitions in the planning scheme as follows: “Except where separately defined in a structure plan, means:
(a)a natural waterway or wetland;
(b)an area of remnant or non-remnant native vegetation identified on a Biodiversity, Waterways and Wetlands Overlay Map; or
(c)an area which otherwise:
(i)contains or is likely habitat for scheduled species under the Nature Conservation (Wildlife) Regulation (Qld) 2006;
(ii)contains or is likely to contain listed threatened species and/or ecological communities, protected critical habitat or listed migratory species as defined by the Environmental Protection and Biodiversity Conservation (Cth) Act 1999;
(iii)contains a spring as defined under the Water Act (Qld) 2000;
(iv)contains habitat for flora and/or fauna species of local ecological significance.”
The ecology experts agreed that the site satisfied some limbs of this definition.
Specific outcome 3.7.2.1(c) states that ecologically important areas are not disturbed or diminished by development “except where” certain conditions are satisfied. Thus it is clear that development in ecologically important areas is not completely precluded, and that development is contemplated in certain circumstances. Where avoidance is not practicable, adverse impacts are to minimised and mitigated. The provisions contemplate that ecologically important areas may be disturbed or diminished but only where on the balance of social, economic and environmental considerations, it is demonstrated that the development is in the interests of the community, and there is a biodiversity offset provided.
Those considerations are relevant to informing the extent of any non-compliance or conflict with other provisions of the Natural Environment theme in the Strategic Framework, and with the finer grained provisions of the EMC zone code and Biodiversity, waterways and wetlands overlay code (dealt with below).
The appellants allege non-compliance with specific outcomes 3.7.5.1(a) and (b) of the Natural environment theme:
“3.7.5 Element 4 – Coastal foreshores, processes and systems
3.7.5.1 Specific outcomes
(a)Coastal foreshores, including near shore marine environments, beaches, dunes, rocky headlands, coastal lagoons, beach shores and river mouths are maintained predominantly in their natural state.
(b)Development is located, designed, constructed and operated to avoid, as far as practicable, or where avoidance is not practicable, minimise and mitigate, any adverse impacts on coastal resources, processes and values.”
[emphasis added]
The proposed development will maintain the coastal foreshore predominantly in its natural state. For the reasons further discussed in the bushfire and ecology sections below, the extent of vegetation clearing will be limited, and the impact of that small amount of clearing on the coastal foreshore as a whole will be negligible.
The proposed development has been relocated at the direction of SARA to avoid significant residual impact on the identified wetland and high valued vegetation on site. It has been designed to minimise and mitigate any adverse impacts on coastal resources, processes and values. I am satisfied that is complies with specific outcome 3.7.5.1.
Returning to specific outcome 3.7.2.1 and the considerations in note 13, I am satisfied on the evidence of the club’s lay witnesses that the club has been unable to locate alternative options to this site that are reasonably or readily available which have a nexus to the beach (let alone a nexus to the Ann Street surf break).
Having regard to the unchallenged evidence of the club’s lay witnesses and the submissions in support of the proposal and the ecological evidence which I accept (discussed below), I am satisfied, on the balance of social, economic and environmental considerations, that the development is in the interests of the community.
Condition 39 of the Negotiated Decision Notice requires the club to secure vegetation offsets for all land to be cleared in accordance with the Biodiversity, waterways and wetlands overlay code, the vegetation management code and the Planning scheme policy for biodiversity offsets. I am satisfied that the proposed development ensures that any adverse impacts incurred are compensated by the provision of a biodiversity offset.
Therefore I am satisfied that the proposed development complies the assessment benchmarks in the Natural environment theme.
Strategic framework – Community Identity, Character and Social Inclusions theme
In the Community identity, character and social inclusions theme, the proposed development complies with, and draws support from, the following policy objectives in Strategic outcome 3.8.1:
“(h)Communities continue to value their history and cultural associations and retain a strong sense of place. In 2031 the Sunshine Coast is still a community of communities.
(m)Each community is provided with meeting places, community facilities and open space, and sport and recreation opportunities that promote social inclusion and healthy active living.
(n)People with disability have the same opportunity as other people to access and utilise places of community interest.”
The club has a long history in the community, and an historic association with the surf break adjacent to the site. The proposed use provides a meeting place for community organisations which promote outdoor sport and recreation associated with the beach and ocean. The club specifically promotes social inclusion (including for surfers with disabilities, indigenous surfers and women surfers). The development would facilitate and promote access by young people with disability from the adjoining Special School.
Strategic outcome 3.8.1(d) provides that “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.”
The appellants allege non-compliance with that Strategic Outcome and the following Specific outcomes of this theme.[56]
[56]The appellants abandoned reliance on 3.8.2.1(f) and (g) in their written submissions, para 2.1.
3.8.2 Element 1 – Landscape elements and features
“3.8.2.1 Specific outcomes
(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.
…..
(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.
…
(i)Building forms, landscaping and signage complement landscape features and provide for these features to remain intact and undiminished.”
With respect to Strategic outcome 3.8.1(d), for the reasons in the visual amenity section below, I am satisfied that the proposed development will not adversely affect any of “important views and vistas which contribute to the identity and attractiveness of the region” and that “local views of importance to residents are recognised and respected”. There was no suggestion that the proposed development would affect regionally important views. There is no suggestion that the proposed development would affect or intrude upon views to the beach or ocean. The only impact on local views raised was that from the open space in the foreshore park, and from 1 Buderim Street. Even the visual amenity expert engaged by the appellants was not so concerned about the impact on views from 1 Buderim Street. That house currently has a view (from its second storey) over the coastal vegetation. The proposed development will be lower (at only a single storey), will be adequately screened from the house by existing vegetation and additional landscaping, and will not affect in any meaningful way the views from the house. To the extent that local views from the open space in the park to the coastal vegetation may be affected, the current view is not of a wilderness or pristine area: it is a view that currently includes existing infrastructure in the form of paths, bins and a toilet block. The proposed building is lightweight, low set and will have architectural treatments to ensure it blends into the surrounding vegetation. The local views from the park will continue to be respected.
In Strategic Framework map SFM1, Land Use Elements, the site is within the Major Conservation Area. The Major Conservation Area designation identifies large areas of land (generally greater than 50 hectares) that are either owned by the State or the council for conservation purposes: note 4. The Major Conservation Area mapping includes the long narrow strips of coastal vegetation from Caloundra to Coolum, which are not continuous (interrupted in some places by centres), but are substantial.[57] In the context of the Major Conservation Area as a whole, the site comprises a miniscule component.
[57]Ex 15(a) p 198; Ex 15(c).
In the Strategic Framework map SFM6, the site forms part of the landscape elements the Major Conservation Area and the High Value Scenic area. To the extent the proposed development involves some vegetation clearing of the site, it would not protect and enhance those landscape elements contained in the vegetation cleared and not replaced. Therefore there is non-compliance with that provision. In considering the extent of the non-compliance, it is relevant that the site comprises a negligible portion of the Major Conservation Area and High Value Scenic area as a whole. For that reason, and the reasons in the ecology and visual amenity sections below, the extent of non-compliance with this provision is minor.
In Table 3.8.2.1 the only relevant “regionally significant relevant landscape features” are “beaches” and “ocean”. The proposed development will not affect or intrude onto the beach and it will not affect such views to the beach and ocean as currently exist from the open space park at the end of Buderim Street. The building has been designed in such a way to be set back from the beach on the edge of open space in the foreshore park, and is nestled into the coastal vegetation. For the reasons given in the visual amenity section, it will complement those landscape features.
In my view, the statement in 3.8.2.1(i) that building forms complement “landscape features” and that those features remain intact and undiminished, is directed towards the “regionally significant landscape features” identified in Table 3.8.2.1, not any other landscape features. The proposed development complies with this provision.
The appellants also allege non-compliance with the following Specific outcomes:
“3.8.5 Element 4 – Community, educational and cultural facilities
3.8.5.1 Specific outcomes
…..
(c)Other types of social infrastructure and services and community and cultural facilities are generally established within regional activity centres to support their role in servicing the needs of sub-regional population catchments.
(d)Community meeting places that are integrated with community facilities and/or open space and sport and recreation facilities and which encourage the congregation or people and community interaction are established within activity centres.
3.8.6 Element 5 – Open space and sport and recreation facilities
3.8.6.1 Specific outcomes
….
(b)All communities have the opportunity to access green areas and green corridors throughout the urban environment including through ensuring that new development contributes to the availability of useable on-site open space, public space and communal areas to promote activity and community interaction.”
The appellants’ reliance upon these provisions is inconsistent with its approach in this case, whereby it sought to suggest that there was other sport and recreation use land, such as Graham Stewart Park, or other educational facilities, such as the two schools located in Buderim Street, where the club could conduct its activities.[58] These provisions were also not relied upon in the appellants’ cross-examination of the town planners. Nonetheless I deal with them below.
[58]T3-54, L15 to 27; T3-96, L3 to 27.
With respect to specific outcome 3.8.5.1, a Club use as defined is part of the Sport and recreation activity group, not the Community activity group, which includes uses such as Community use and Educational establishment. In my view, a Club is not strictly a “community facility” within the meaning of this provision, the location of which is directed towards regional activity centres. But even if it is, the use of “generally” makes it clear that community facilities are not precluded from establishing outside of regional activity centres. Here the proposed use is located and integrated with existing community facilities (amenities, paths, structures) in a foreshore park, and the proposed use has a connection to an outdoor sport and recreation use, surfing, which will occur directly offshore at the Ann Street break.
With respect to specific outcome 3.8.6.1, the proposed use is a Club but that use does fall within the Sport and recreation activity group. The proposal complies with the specific outcome because public access to open space in the foreshore park and the coastal path is maintained, and the proposal facilitates the use of communal areas to promote activity and community interaction.
In conclusion, I am satisfied that the proposed development generally complies with the relevant assessment benchmarks of the Community identity, character and social inclusions theme. To the extent there is some minor non-compliance, it is not determinative and would not warrant refusal.
EMC zone code
In Table 5.5.15, the table of assessment for the EMC zone, the proposed use Club falls within the generic description “All other uses defined in Schedule 1”. Therefore the proposed development is impact assessable, and the assessment benchmarks are “The planning scheme”. The development must be assessed having regard to the whole of the planning scheme, to the extent relevant.
The following provisions of the EMC zone code are relevant:
“6.2.15.2 Purpose and overall outcomes
(1)The purpose of the Environmental management and conservation zone code is to provide for the protection and rehabilitation of land to maintain biodiversity, ecological processes, coastal processes, water quality, landscape character, scenic amenity, cultural heritage significance and community well-being.
(2)The purpose of the Environmental management and conservation zone code will be achieved through the following overall outcomes:-
(a)areas identified as having natural environmental values in terms of biological diversity, water catchment management, ecological functioning, beach protection or coastal management, and/or historical or cultural significance are:-
(i) protected for their importance in contributing to ecological sustainability; and
(ii) appropriately managed to the general exclusion of most forms of development;
(b)parks, environmental facilities[59] and associated activities may be established in the zone where such development:-
[59]Although this provision refers to environmental facility, the defined use is environment facility.
(i)supports environmental values and provides opportunities for appreciation or study of those values;
(ii)promotes nature-based tourism activities and other low intensity, low key activities that are compatible with and have a direct connection to the protection of the environmental values; and
(iii)provides opportunities for recreational pursuits that have a direct connection with, and are consistent with the protection and appreciation of, the environmental values;
I accept Dr McGowan’s opinion that the existing character of the area includes the attractive landscape features and coastal vegetation but also detached dwellings, community buildings, open space, the parking area and traffic, the amenities block and other facilities in the park. They combine to create an appealing and memorable beachside character.
The proposed development is a similar length to the neighbouring house at 1 Buderim Street, but is only single storey whereas that house is two storey, and the deck and ramp contribute little to the bulk of the proposed building. The proposed building is modest, single storey and will be screened by landscaping as recommended by the experts.
For the reasons given by Dr McGowan, I do not accept Mr Curtis’s opinions in the joint expert report that the proposed building will be obviously larger than the neighbouring house, or that it will be seen as having a size 10 times larger than the size of the existing amenities block. They were overstatements and not supported by the evidence. I also do not accept Mr Curtis’s opinion that the proposed development will visually dominate the entire open space and change its fundamental character, or that it will erode the abrupt edge to the developed area.
In cross examination, Mr Curtis accepted that the building would be low key, or low impact in terms of built form, that it could be painted to be recessive, that it would be partially screened, and that the impact on the view from 1 Buderim Street was not significant.
Mr Curtis did not identify any particular local views of importance to residents which will not be respected, save perhaps to maintain that impacts on the views of the open space would be adversely affected.
I accept Dr McGowan’s opinion that the proposed development will be compatible with the existing character of the area.
The site of the proposed development is not a pristine area of high ecological value with no intrusions. The vegetation to be removed does not share the same values as that much further to the north. The proposed site is located partly within open space with existing community infrastructure and landscaping. The open space adjoins a busy carpark. It is flanked by a concrete pathway, a house and a primary school. The proposed development will be another low key building in an area where there are already buildings.
That will continue to be the character even if the proposed development proceeds. The proposed development can be contrasted with a case where the intended development would permanently change the desired character and amenity of the local area. This is not such a case. Nor would it substantially erode or detract from the attractive landscape features that define the character, or change the values contributed by the dune reserve and the park-like setting of the open space.
I accept Dr McGowan’s opinion that the proposed building will only be partially visible from the upper level of 1 Buderim Street at a distance of over 11 to 15 metres. The majority of the views available from the upper level of 1 Buderim Street will not be affected by the proposed development, with it occupying only a limited part of the entire viewshed available. The proposed development will not block views to any specific landscape features, including views of the beach or ocean or much of dune vegetation. I accept Dr McGowan’s evidence that there is no prospect of significant visual impacts arising from glare from solar panels on the roof. In cross examination, Mr Curtis agreed that the impact on the view from 1 Buderim Street was not significant.
Conclusion on the nature and extent of any non-compliance with assessment benchmarks
I am satisfied that the proposed development largely complies with the relevant assessment benchmarks because it provides for the retention and enhancement of key landscape elements including significant views and vistas, and areas of significant vegetation contributing to the setting, character and sense of place of the local plan area. To the extent that it involves clearing of a small section of vegetation mapped as character vegetation, I accept there is some non-compliance with performance outcome PO3 of the Caloundra local plan code.
For the reasons above, I am satisfied that the nature and extent of that non-compliance is minor and not significant.
I am satisfied that the proposed development is compatible with the existing character, will adequately protect the visual amenity of existing surrounding premises, and would not result in a significant loss of visual amenity for surrounding development.
The visual amenity impacts will not be unacceptable particularly given:
(a)its low key nature and ability to blend into the reserve (assisted by screening provided by both the current landscaping within the park, which will grow to a substantial height and width, and proposed landscaping required by conditions 51 and 52);
(b)the development is located at the most western portion of the park area, also at the western extent of the vegetated area, reducing impacts compared to if it was located more centrally within the park;
(c)the impact of the development can be considered limited in relation to its overall character of the dune reserve and its character visualisation, and the “visual prominence” with which Mr Curtis was still concerned can be appropriately mitigated by landscape screening; and
(d)as Mr Curtis conceded, there will continue to be a significant amount of character vegetation located to the east of the development, which will continue to contribute to the character of the open space park area, ensuring that a sufficient extent of vegetation on the foredune reserve is protected, demonstrating compliance with the purpose of limiting growth to the UGMB.
There are no visual amenity grounds, individually or cumulatively, that warrant refusal of the development.
Other relevant matters under s 45(5)(b) PA relied upon to support approval
The council and the club also rely upon six other relevant matters[93] to support approval of the application:
(a)The existence of a community and town planning need for the proposed development, and the importance of establishing a facility of this nature in an appropriate location for this particular longstanding community organisation;[94]
(b)The public benefits that will be provided by the proposed development to the community, including by way of promoting matters of importance for the broader community and supporting other community organisations;[95]
(c)The appropriateness of the use in the EMC Zone having regard to its low impact nature, location, scale and intensity;[96]
(d)The strong community support for the proposed development;[97]
(e)The existence of the council’s support in terms of a commitment for a lease agreement, and Federal support in terms of approval for funding for the construction of the facility;[98]
(f)That clearing for bushfire purposes is limited to ensure that no adverse ecological impacts arise.[99]
[93]Ex 18 List of Issues in Dispute [3(c)(ii)].
[94]Respondent’s Particularised List of Matters Relied Upon to Support an Approval dated 17 June 2020 (“Respondent’s Approval Matters”) [1].
[95]Respondent’s Approval Matters [2].
[96]Respondent’s Approval Matters [3] and [4].
[97]Respondent’s Approval Matters [6].
[98]Respondent’s Approval Matters [7] and the Co-Respondent’s Particularised List of Matters. Relied Upon to Support an Approval dated 18 June 2020 [9].
[99]Respondent’s Approval Matters [8].
Community and town planning need
Here, need is relied upon as a “relevant matter” for the purposes of s 45 PA.
The Explanatory Notes to the Planning Bill 2015 (Qld) state, with respect to a planning need, that:
“There is considerable judicial authority about need in a planning sense. Generally it does not refer to a pressing or urgent need, but refers to whether the community’s interests in general, as opposed to the proponent’s or another individual’s interests would be well served by a particular decision. For this reason need cannot be conflated with demand for a facility or service. It is a relative concept so it is not desirable to seek to define it in statute. It is best established on a case by case basis having regard to the circumstances of each case.”[100]
[100]at 54.
The general principles that inform and guide an assessment of planning need are well settled. They are conveniently summarised by Wilson SC DCJ in Isgro v Gold Coast City Council.[101] As His Honour stated:[102]
“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community... Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.”
[101][2003] QPELR 414, 417-20 [20]-[30].
[102]Ibid 418 [21].
Other relevant principles referred to in the analysis of the authorities in Isgro v Gold Coast City Council include: [103]
(a)need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire, but relates to the well-being of the community;
(b)a thing is needed if its provision, taking all things into account, improves the services and facilities available in a locality such that it will improve the ease, comfort, convenience and efficient lifestyle of the community;
(c)the question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors;
(d)need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority is to take into account; and
(e)in some instances, public or community need for a service or facility may not be great, and other considerations may be of greater moment.
[103][2003] QPELR 414, 417-20 [20]-[30].
The court in Abeleda clarified that statements in earlier Court of Appeal decisions for the purpose of the application of s 326(1)(b) of the SPA do not support the transposition of the strict site specific focus of the planning need to the regime under the PA.[104] The court said:
“The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[105] [emphasis added]
[104]Abeleda at [83].
[105]Ibid [51].
Thus the strict site specific focus of the planning need under s 326 of the SPA does not apply here. To the extent the appellants submitted that it did, and that the club must demonstrate a need for the proposed development on this particular site,[106] that submission is incorrect.
[106]For example, Ex 18 List of Disputed Issues [3(c)(iii)(B)]; Outline of Argument on behalf of the Appellants at [3.11(d)]; [4.56], [4.57], [5.22(a)].
Nonetheless there are matters particularly relevant to assessing the need for the proposed development. One is the nexus between the club’s historical activities and the Ann St surf break, located proximate to the proposed development. Another is the location of the proposed development adjacent to two schools, both of which support and intend to use the proposed development, in conjunction with the club, its members and other like-minded community organisations. A third is the community support and interest from other clubs and organisations for an additional meeting place. In this case, I am satisfied that an approval will satisfy a community and town planning need.
Nexus
I do not accept the appellants’ submission that there is no nexus between the club and the site. I am comfortably satisfied, on the basis of the evidence discussed earlier about the history of the club, its connection to the Ann Street surf break, and the regular activities it has and will conduct there, that there is a clear and demonstrated nexus between the club and the site of the proposed development. I agree with Mr Ovenden’s opinion that the nexus with this beach is compelling.
Although it is not necessary to be so, I am satisfied that there is a need for a clubhouse that would be appropriately satisfied by the development on this site. I am also satisfied that the need for the proposed development on this site constitutes a matter of public interest because an identified section of the public has an interest in seeing that need satisfied by the development in this particular location, rather than another location.
As set out earlier in these reasons, Mr Smith gave evidence, and was cross examined, about steps taken by the club to identify a suitable site for its proposed clubhouse. I accept his evidence about the attempts made to identify a suitable site for the clubhouse before deciding on the subject site.
Although he was cross examined about other sites for which the proposed development may have been permitted under an applicable code, his evidence was not undermined or challenged in any significant way.
I do not accept the appellant’s submissions that there are alternative readily available sites upon which the development could readily be located and where the development is permitted under the applicable codes. The sites referred to by the appellants did not enjoy the same benefits as the subject site. Most were not proximate to the ocean. They did not have the benefit of co-location with schools who would use and support the club. Some alternative sites suggested no more than hypothetical or speculative.
I am satisfied that the community’s interests in general, as opposed to the proponent’s or another individual’s interests, would be well served by the proposed clubhouse in this location. In my view, the provision of the proposed development, taking all things into account, would improve the physical wellbeing of the community[107].
[107]Cut Price Stores, Retailers v Caboolture Shire Council [1984] QPLR 126 at [131]; Prime Group Properties Ltd v Caloundra City Council [1995] QPLR 147 at [149].
Therefore I am satisfied that there is a planning and community need for the proposed development.
Public benefits
For reasons explained earlier, including in the club’s lay witness statements and supporting submissions, I am satisfied that there will be significant public benefit to the wider community from approval of the proposed development.
Appropriateness of the use in the EMC Zone
“Outdoor sport and recreation (where low impact)” is a potentially consistent use in the EMC zone. The proposed use, Club, is part of the Sport and Recreation Activity Group[108] of uses. In addition, the proposed development has a sport and recreational aspect to it because its primary purpose is to promote an outdoor sport, surfing, and the proposed site would facilitate the conduct of surf training, coaching and competitions immediately offshore. I am satisfied that the proposed use is appropriate in the zone.
[108]Figure SC1.1.2E, planning scheme.
The strong community support for the proposed development;
There were over 300 submissions supporting the proposed development. They were not only from members but from a broad cross section of individuals, schools and community organisations.
The club has also received in-kind pledges from members of the community (materials, labour and professional help) of approximately $100,000 in value.
The support of the two schools who can use the facility is compelling in terms of community support and public interest.
I am comfortably satisfied that there is strong community support for the proposed development. That is a matter that strongly favours approval.
The existence of council support in the commitment to lease and Federal support in the form of funding
In 2019 the Federal government approved a grant of $140,000 and the council approved a grant of $40,000 to help build the clubhouse, and has granted the lease.
“Any other relevant matter” in s 45(5)(b) excludes a person’s personal circumstances, financial or otherwise. Matters of private economics are irrelevant. Thus, the mere fact that the club has received government funding for the proposed development is not, in my view, a matter that may be taken into account under s 45(5)(b). However the court must have regard to the common material, which includes the documents provided with the development application. Evidence of the funding grant was part of the common material[109] and is arguably relevant to the likelihood of the development being constructed, if approved, and to show that the application is not merely aspirational.
[109]Ex 2.
Of the same character is the evidence of council’s preparedness to grant a trustee lease to the club for the proposed development. Council’s preparedness to grant a lease over the proposed site is in no way determinative. But it is consistent with its approval of the development application and it supports an argument that to the extent the proposed development requires other regulatory approvals before it could proceed, they have been, or are likely to be, obtained.
Finally on the question of council support, while by no means a decisive factor, the unreserved support for the proposal by the council, as the relevant local authority, is a matter I have taken into account. Although this appeal is a rehearing, in which the co-respondent must establish before the court a case for approval of its proposal, uninfluenced by the council’s favourable determination, the council is the planning authority. And its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of, as might have been strong council opposition. Of course, what counts in the end is the persuasiveness of the council’s case, from the standpoint of assisting the co-respondent to satisfy the onus that it bears.[110] I have also taken into account the fact that the relevant State referral agency issued a referral response with conditions to be imposed on any approval.
[110]Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661 [44]; [2013] QPEC 29 (Robin QC DCJ), considered in Lipoma Pty Ltd & Anor v Redland City Council & Anor (28 August 2020) [2020] QCA180 [41], [119] (Morrison and McMurdo JJA and Ryan J). See also Friend v Brisbane City Council [2014] QPELR 24 at 50 and Cowen & Anor v Brisbane City Council & Anor [2015] QPEC 50 at [85], [86].
Clearing for bushfire purposes
For the reasons explained earlier, I am also satisfied that clearing for bushfire purposes will be limited to minimise any adverse ecological impacts.
Advancing the purpose of the Act
The assessment and decision must be performed in a way that advances the purpose of the Act: s 5(1).
The purpose of the PA is “to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning, development assessment and related matters that facilitates the achievement of ecological sustainability”: set out in s 3(1). Ecological sustainability is a balance that integrates the protection of ecological processes and natural systems at local, regional, State, and wider levels; and economic development; and the maintenance of the cultural, economic, physical and social wellbeing of people and communities: s 3(2).
“Maintaining the cultural, economic, physical and social wellbeing of people and communities” includes relevantly, “providing for integrated networks of pleasant and safe public areas for aesthetic enjoyment and cultural, recreational or social interaction”: s 3(3)(c).
The expression “advancing the purpose of this Act” is expanded upon in s 5(2) of the Act and includes aims for achieving the balance between preserving the environment and cultural heritage and meeting the demands on the environment of a functioning and expanding diverse community or, in other words, the balance between the interests of the present and future generations. It also includes “avoiding, if practicable, or otherwise minimising the adverse environmental effects of development”.
The proposed development, while having some environmental impacts by virtue of vegetation clearing, has been sited to minimise adverse environmental impacts. In my view, the proposed development will advance the purpose of the PA by:
(a)continuing to protect ecological processes and natural systems in the reserve;
(b)maintaining the physical and social wellbeing of people and communities, including children, and contributing to healthy communities by encouraging outdoor activities in the form of surfing, training and coaching; and
(c)providing for a pleasant and safe building to be used by community members, including children, for aesthetic enjoyment and recreational and social interaction.
To the extent the proposed development achieves those things and thereby advances the purpose of the PA, those are also relevant matters that favour its approval.
Other relevant matters under s 45(5)(b) PA relied upon to support refusal
The submitters rely upon four other relevant matters[111] to support refusal of the application:
(a)The community expectations that the proposed development not be located on the subject land, having regard to the provisions of the planning scheme raised by the appellants, including that the proposed development is an inconsistent use in the EMC zone, and that ecologically important areas are to be protected, rehabilitated and enhanced;
(b)The absence of planning need for the proposed development to be located on the subject land;
(c)The absence of any public interest in locating the proposed development on the subject land given the nature and extent of inconsistencies with the provisions of the planning scheme; and
(d)The inability to impose conditions of approval to address non-compliance with the assessment benchmarks.
[111]Ex 18 List of Issues in Dispute [3(c)(iii)].
Reasonable community expectations
The appellants contend that the proposed development is inconsistent with reasonable community expectations. They rely upon the evidence of Mr Clegg, which I have already dealt with, as well as statements from local residents.
I have considered each of the lay witness statements tendered on behalf of the appellants[112], along with all the properly made submissions made during the public notification process.
[112]Taking into account the other parties’ objections in those lay witness statements to expressions of opinion and to matters of parking and noise on the basis of relevance (those matters no longer being issues in dispute in the appeal).
In addition to issues already dealt with, the appellants’ lay witness evidence raised concerns that the proposed development would: detract from the public nature of the reserve; cause noise, crowding and damage the ecosystem; detract from their property; result in an application for an alcohol licence; and benefit a select few members of the club.
I am satisfied that similar views to those identified above are expressed in the properly made submissions. I accept that the views expressed by each of the lay witnesses in their statements, and in the properly made submissions, are honestly and sincerely held.
However some of the concerns raised in the submissions did not, in the end, form part of the disputed issues raised for determination in the appeal (for example, traffic and parking, and diminution in property values).
The concerns raised are not made out on the evidence that I accept, for the reasons given earlier. In particular, the club does not propose to apply for an alcohol licence and condition 6 of the approval (which was not appealed by the club) prohibits the development being used for any purpose requiring a liquor or gaming licence. The club’s membership is open, the club’s constitution anticipates the use of the clubhouse by the wider community, the park is already well used, including by the club and the club hosts monthly competitions at the site, pursuant to local law permits issued by the Council. There is extensive community support for the development. There is a public benefit to be gained by the groups that have a connection with the ocean being able to meet at the proposed clubhouse, and which represent a broad spectrum of backgrounds.
It is well accepted that reasonable community expectations are to be derived from the statutory planning controls.[113] Reasonable community expectations that are objectively formed based upon a correct interpretation of the applicable planning scheme would be a relevant matter for the purposes of s 45(5)(b). Conversely, expectations that are subjective or emotionally informed, or which proceed upon an incorrect interpretation of the planning scheme, would not be relevant.
[113]K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540 at [84].
I accept that there is a reasonable community expectation that urban development not be located outside the UGMB and that uses other than those described as consistent or potentially consistent would generally not be expected in the EMC zone.
But reasonable community expectations under the planning scheme would include the prospect of some built form within the EMC zone. It would also include the prospect of an Outdoor sport and recreation use (where low impact activity) in that location. The built form of the proposed development would not be beyond what the community might reasonable expect could be developed in this zone. Indeed, it is potentially more modest than what might reasonably be expected. In my view, the proposed development would not be contrary to reasonable community expectations based upon the zoning of the land and the scheme provisions that refer to protection, rehabilitation and enhancement of ecologically important areas, for the reasons explained earlier.
Absence of planning need
I have dealt with this issue above.
Absence of public interest
I have dealt with this issue above. Approval of the proposal is in the public interest, based upon the benefits that will flow to the club and the wider community, and the proposal’s consistency with the broad policy objectives that promote social inclusion, active and healthy living, and the Sunshine Coast lifestyle.
Inability to impose conditions of approval to address non-compliance
The conditions proposed by the experts (and council) to be imposed on the development approval will, in my view, satisfactorily limit and ameliorate to an acceptable degree the environmental and amenity impacts of the proposed development. I do not accept that conditions cannot be imposed to address non-compliance.
Conclusion and orders
The proposed use, while not a consistent use in the EMC zone, is acceptable in the EMC zone for the reasons earlier explained.
There is no unacceptable town planning consequence that would follow from an approval of the club on this land, notwithstanding the zoning.
There are no relevant matters which warrant refusal. There are a number of matters that strongly support approval. The proposed development is needed and would provide a public benefit. Approval of the development is in the public interest.
The need for the proposed development in this particular place constitutes a matter of public interest including because an identified section of the public (club members, and other members of the public who will be able to access and benefit from the facilities, particularly the students of the two adjoining schools) have an interest in seeing that need satisfied by the proposed development in this particular location with its nexus to the Ann Street surf break.
Those matters constituting matters of public interest are greater than the opposing public interest in maintaining those parts of the planning scheme with which there is non-compliance.
The limited inconsistency or non-compliance with scheme provisions is not determinative and does not warrant refusal of the development, when weighed against the other relevant matters that favour its approval. I find that the balance of the factors favour the approval of the application, despite the non-compliance with certain assessment benchmarks.
In all the circumstances of this case and in the proper exercise of the discretion under the PA, I am satisfied that the proposed development should be approved subject to appropriate lawful conditions. They will be the conditions in council’s decision notice but with the amendments proposed by the experts.
The proceeding will be adjourned to allow the parties the opportunity to prepare a judgment and amended conditions of approval reflecting these reasons. In due course, final orders will be made approving the proposed development subject to lawful appropriate conditions.
I order that:
(a)By 4 pm on 22 January 2021, the respondent is to deliver to the other parties a draft Judgment attaching the conditions of approval; and
(b)The appeal is adjourned to 9 am on 29 January 2021 for the purpose of making final orders in the appeal.
(c)Liberty to relist the matter on 2 business days’ notice if the parties seek alternate dates.
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