SDA Property Nominees Pty Ltd v Scenic Rim Regional Council - [2022] QPEC 39

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39

PARTIES:

SDA PROPERTY NOMINEES PTY LTD ACN 634 072 030 ATF SDA HOLDINGS TRUST

(appellant)

v

SCENIC RIM REGIONAL COUNCIL
(respondent)

and

AMANDA HAY
(eighth co-respondent by election)

and

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC

(twentieth co-respondent by election)

FILE NO/S:

2001 of 2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Applicant appeal against deemed refusal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

6 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13, 14 and 15 September 2022

JUDGE:

Williamson KC DCJ

ORDER:

The appeal is listed for review at 10:00 am on 13 October 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – applicant appeal against deemed refusal of a superseded planning scheme application for short term disability accommodation – whether the development complies with the respondent’s superseded planning scheme – whether the development can be conditioned to comply with the respondent’s superseded planning scheme – whether there is a need for the proposed development – whether there are matters that favour approval or refusal of the application – whether the application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221
Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPELR 139

Harris v Scenic Rim Regional Council (2014) 201 LGERA 12
Mackay v Brisbane City Council [1992] QPLR 65
Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPELR 675
Wilhelm v Logan City Council & Ors [2021] QPELR 1321

LEGISLATION:

Integrated Planning Act 1997, s 1.2.1
Planning Act 2016, ss 3, 45 and 60
Planning and Environment Court Act 2016, ss 10, 43 and 45

COUNSEL:

Mr M Batty and Ms J Bowness for the appellant
Mr M McDermott for the respondent
Ms A Hay (self-represented)
Ms J Lockey for the twentieth co-respondent by election

SOLICITORS:

MacDonnells Law for the appellant
King & Company Solicitors for the respondent

Index

Introduction

The land and surrounding locality

The proposed development

The statutory assessment and decision making framework

The planning scheme

The disputed issues

Community expectations

Compliance with the planning scheme

Specific Assessment Criteria for the Escarpment Protection Precinct

General Assessment Criteria for the TMZC

Tourist Cabin Code

Desired Environmental Outcomes

Strategic Framework

Is the proposed development an appropriate use of the site?

Would the proposed development result in unacceptable visual amenity impacts?

Is the proposed development consistent with the amenity and character of the surrounding area?

Relevant matters favouring approval

Need

Relevant matters favouring refusal

Exercise of the planning discretion

Disposition of the appeal

Introduction

This is an applicant appeal against Council’s deemed refusal of an impact assessable superseded planning scheme application. The application seeks approval to develop land at Eagles Retreat Place, Mount Tamborine with 11 Tourist Cabins and an ancillary communal leisure facility. The Cabins are designed to provide short-term accommodation for people with disabilities and their carers/families.[1]
[1]Ex.33, Appendix A.
The appeal is a hearing anew.[2]
[2]s 43, Planning & Environment Court Act 2016.
The applicable statutory assessment and decision making framework is prescribed by the Planning Act 2016 (PA). The PA requires the superseded planning scheme application be assessed against the Beaudesert Shire Planning Scheme 2007. The assessment starts on a sound footing for the appellant. For the purposes of the planning scheme, the subject land is included in the Escarpment Protection Precinct of the Tamborine Mountain Zone. In that precinct, Tourist Cabins, which is a defined use,[3] is consistent development.[4] This is relevant to, and informs, community expectations about future development on land in the Escarpment Protection Precinct of the Tamborine Mountain Zone.[5]
[3]Ex.22, p.924.
[4]Ex.22, Table 3.7.7, p.419.
[5]Harris v Scenic Rim Regional Council (2014) 201 LGERA 12, [218]; cfBell & Anor v Noosa Shire Council & Ors [1983] QPLR 311, 313 Line C.
Whilst Council notified in the initial stages of the appeal that it would contend for refusal,[6] it is now supportive of the application.[7] Central to its support is an expectation that any approval granted would be subject to conditions, in particular, a condition requiring the development be designed for specialist disability accommodation.[8] The appellant readily accepts such a condition should be imposed.[9]
[6]Ex.1, p.668.
[7]Ex.34, para 8a and Ex.37, para 3(e).
[8]Ex.37, para 18.
[9]Ex.26 and Ex.33, para 12.
The appeal, and an approval, is resisted by two co-respondents by election, Ms Hay and the Tamborine Mountain Progress Association (the co-respondents). They contended the application should be refused for reasons identified in an agreed consolidated list of issues in dispute (list of issues).[10] The order made on 15 September 2022 defines the disputed issues in the appeal by reference to the list of issues.[11]
[10]Ex.1, p.7; T2-13, L2-7.
[11]Ex.40.
An examination of the list of issues, in conjunction with the planning scheme, reveals the reasons for refusal relied upon are wide ranging. Non-compliance is alleged with 27 provisions of the planning scheme. The alleged non-compliances require consideration to be given to matters with respect to visual and scenic amenity, character, landscaping, noise, lighting, bushfire, traffic, infrastructure, community/economic need and community expectations.
To discharge its onus,[12] the appellant engaged 10 experts.[13] Council engaged five experts for some, but not all, of the fields of expertise raised by the reasons for refusal.[14] The co-respondents did not call any expert evidence in support of their respective refusal cases. Nor did they challenge, by way of cross-examination, the evidence of the appellant’s and Council’s experts. Individual statements of Ms Lockey and Ms Hay were tendered.[15] Whilst described as witness statements, they are more akin to submissions.[16]
[12]s 45(1)(a), Planning & Environment Court Act 2016.
[13]Messrs Mewing, Curtis, Healey, Duane, Moffitt, King, Clowes, Petersen, Lenny and Dr Johnson.
[14]Messrs Ovenden, Trevilyan, Brown, Tolliday and Dr McGowan.
[15]Ex. 30 and 31.
[16]Both statements were the subject of objection (Ex.27). The objections are technical and not without merit. I have however assumed the statements are admissible. They express the opinions of Ms Hay and Ms Lockey in the same way as opinions are expressed in submissions received during the public notification process. The issue is what weight, if any, should be given to the opinions expressed in those statements about the merits of the development application.
I will deal with some relevant background before turning to the disputed issues.

The land and surrounding locality

The land the subject of the appeal is a steep undulating site located at 1-11 Eagles Retreat Place, Mount Tamborine (the site).[17]
[17]Ex.7, Figures 3 to 5.
The site:
(a)is 19,959m² in area;[18]
(b)is ‘L-shaped’, with the long axis orientated east-west and the short north-south axis located at its eastern end; [19]
(c)is cleared, save for vegetation along the southern boundary and in the south-eastern and north-western corners;[20]
(d)is vacant, but has the benefit of a development approval authorising a substantial dwelling in the north-eastern corner close to, and highly visible from, Eagles Retreat Place;[21]
(e)slopes steeply from north to south, with levels ranging between 487m AHD in the north-western corner down to 437m AHD in the south-eastern corner;[22] and
(f)has a frontage of 113 metres to Eagles Retreat Place along its north-eastern boundary.[23]
[18]Ex.1, p.1.
[19]Ex.1, p.1.
[20]Ex.1, p.4 and Ex.9, p.13.
[21]Ex.1, p.605 and Ex.3, p.7, paras 21-23.
[22]Ex.3, para 12.
[23]Ex.3, para 12.
Access to the site is obtained via Eagles Retreat Place, which was described by the traffic engineers as a local access street.[24] Traffic counts suggest the road carries low volumes, equating to 25 vehicle movements in the weekday peak.[25] Visual aids[26] in evidence confirm its construction is consistent with that expected in a rural residential area; it is sealed; it is narrow;[27] and does not incorporate kerbing and channelling.[28] The road provides access to existing residential properties and runs effectively, east-west, intersecting with Cliff Way to the west. Cliff Way, which is U shaped, intersects in two locations with Central Avenue further to the west again.
[24]Ex.4, p.2, para 18.
[25]Ex.11, para 32.
[26]Ex.7, Figures 10 to 13.
[27]Ex.4, p.3; 5.5 to 6 metres wide.
[28]The traffic engineers agreed the road has a ‘rural cross-section’: Ex.4, p.3, para 19.
The Court had the benefit of a site inspection during the hearing. The inspection assisted in appreciating the evidence in relation to topography and the visibility of the site from public vantage points. The evidence establishes that the site has a limited visual catchment. This is due to two things; first, topography and second, the shape of the site. As I have said, the site is sloping. It falls dramatically away from the street. This impacts on the extent to which it is visible from the public realm. Visibility is also impacted by the very shape of the site, it steps behind adjoining land to the north-west (11 Witherby Crescent). This land is improved with a dwelling that obscures a view from the north to south-western end of the land. With these points in mind, I accept Mr Mewing’s evidence that:[29] (1) the ‘site has a steep topography, which falls steeply away from the street, such that much of…[it] is not perceptible when viewed from the…street’; and (2) ‘there are limited other public vantage points from which the site can be observed, due to the topography, street network, and site position’. Mr Mewing’s evidence is consistent with the visibility assessment undertaken by Council’s visual amenity expert, Dr McGowan, which I also accept.[30]
[29]Ex.3, para 104(a) and (b).
[30]Ex.7, para 78.
The development approval referred to in paragraph [10](d), if activated, would facilitate the construction of a very substantial multi-level dwelling in the north-eastern corner of the site.[31] The dwelling has a height of 16.3 metres above natural ground level[32] and will be highly visible from Eagles Retreat Place. It will occupy 52 metres of the 113 metre road frontage.[33] The dwelling, if constructed, will limit views into the site from the north and north-east.[34]
[31]Ex.2, p.126, Item 9.
[32]Ex.3, para 30.
[33]Ex.7, para 35.
[34]Ex.7, para 78(c).
Save for one exception, existing development in Eagles Retreat Place comprises substantial multi-level detached dwellings on large lots. The exception is an existing bed and breakfast facility,[35] which is located across the road to the north of the site. As Mr Mewing correctly observed,[36] the existing built form is designed and sited to step across the hilly landscape. It is also designed and sited to take advantage of a spectacular aspect to the east. To the east of the site and Eagles Retreat Place is a national park and conservation area. This provides an attractive foreground for an unencumbered view towards the Gold Coast in the distance. The width of the view appears to stretch from Paradise Point in the north to Coolangatta in the south.
[35]Ex.7, Figure 9.
[36]Ex.3, para 104(g).
Unsurprisingly, land adjoining the site is improved with dwellings that are designed and sited to take advantage of the aspect described above. It is their primary view. As I have already mentioned, Dr McGowan helpfully undertook a detailed visual catchment analysis[37] to examine the extent to which the site is visible from the adjoining land and forms part of the primary view. That analysis, considered with the benefit of the site inspection and visual aids before the Court, confirms the site has a limited visual catchment. Further, it confirms ‘because of existing vegetation surrounding the subject site, no neighbouring property would achieve clear views across the entirety of the site’.
[37]Ex.7, para 78.
I accept this is correct having regard to the following matters.
Adjoining land to the east is a large lot improved with a substantial multi-level dwelling.[38] The dwelling is located towards, and visible from, Eagles Retreat Place. It is orientated to enjoy the aspect described in paragraph [14] and turns its back on the site. This, in combination with existing vegetation, limits visibility into and across the site. Visibility would be further impaired if the approved dwelling referred to above was constructed.
[38]Ex.7, Figure 13.
To the immediate south of the site is a large lot improved with a substantial detached dwelling and shed. The lot is vegetated. The existing dwelling is orientated to enjoy the aspect described above and sited proximate to the south-western corner of the site (tip of the L). The improvements are not visible from Eagles Retreat Place. They are obscured by the thick vegetation along the southern boundary of the land.[39] The same vegetation limits visibility to the site from the south.
[39]Ex.7, Figure 5.
The north-western end of the site adjoins the rear boundaries of three properties situated at 7, 9 and 11 Witherby Crescent.[40] Each property is considerably smaller in size than the site and is more elevated. Number 11 is improved with a visually prominent dwelling orientated to overlook the site such as to enjoy the aspect described in paragraph [14].[41] Numbers 9 and 11 are also improved with detached dwellings. They are sited towards Witherby Crescent. Significant landscaping (in the north-western corner of the site) screens views from these dwellings into and across the site.
[40]Ex.7, Figures 6-8.
[41]Ex.7, Figures 6 and 7.
Further to the south and west, the site is adjoined by two improved properties with frontage to Cliff Way.[42] In terms of land area, they are considerably smaller in size than the site. They are also significantly more elevated. The dwellings that improve each of these lots are located towards the road frontage, with the rear of the land terraced and vegetated. Each dwelling is orientated to enjoy the aspect described in paragraph [14] above. The elevation difference is such that, whilst the site is in the foreground of that aspect, it forms a very small part of it. Dr McGowan thought the site may even sit beneath the primary view of the dwellings looking east. Figure 17 of the visual amenity joint report confirms this to be correct.
[42]Ex.7, Figure 17.
With respect to local character and amenity, it is informed by matters discussed above. It is also informed by the existing subdivision pattern. The intersection of Eagles Retreat Place with Witherby Crescent marks a change in the local subdivision pattern.[43] To the west of that intersection, the subdivision pattern is described as low density residential in nature. To the east of that intersection, the subdivision pattern is described as a large lot residential neighbourhood. The land sits within the second of these areas, but at a point where there is a transition from one to the other. This area of transition was described by Mr Curtis and Dr McGowan. They said it comprised single houses (many of which are relatively large) that are well separated from neighbouring houses and within large areas of open space.[44] I accept this evidence. I would add to this that the character is also informed by the following features: (1) that the single houses referred to are large dwellings; (2) large sheds can also be identified on nearby land; and (3) a high level of acoustic amenity is enjoyed in the area.[45]
[43]Ex.7, Figure 19.
[44]Ex.7, s 2.1.3.
[45]Ex.11, para 19.
Mr Curtis and Dr McGowan agreed the eastern part of the low density residential area and the large lot residential area enjoy high visual amenity.[46] I accept this evidence. This, in my view, is the product of: (1) the natural landscape setting that can be observed; (2) the aspect discussed in paragraph [14]; and (3) the low level of activity in the area, providing a sense of peace and quiet.
[46]Ex.7, para 24.

The proposed development

The plans of development reveal the proposal has the following components:
(a)11 self-contained stand-alone Tourist Cabins (across six different typologies), each containing two to three bedrooms, bathrooms, kitchen/dining/living area and an external balcony;
(b)a communal leisure facility for the exclusive use of guests, which comprises a wellness centre, massage room, gym, club house and swimming pool. A car parking/servicing area is provided underneath the facility. The communal leisure facility has a combined gross floor area of 362.36m² and building height of between 2-3 storeys;
(c)vehicle access is obtained from the Eagles Retreat Place frontage, with a new driveway crossover proposed. A 6m wide internal driveway is to be constructed to provide access from the street to the proposed cabins, communal leisure facility, and internal parking areas;
(d)the development provides a total of 14 on-site car parking spaces, including 6 PWD (person with disability) car parking spaces, 5 SDA (specialist disability accommodation) car parking spaces, and 3 standard car parking spaces. It also provides for a mini-bus parking space and a servicing bay for a Medium rigid vehicle (MRV). The car parking spaces are provided throughout the proposed development, including underneath the communal leisure facility and near to cabins;
(e)an on-site wastewater disposal area and management system to service the development;
(f)a vegetated area in the south-east corner of the site that is retained and protected for koala habitat. Mr Mewing calculated this area to be approximately 6,100m²in size; and
(g)extensive landscaping to boundaries, between buildings and throughout the site. Mr Mewing calculated the area of landscaping proposed to be, approximately, 12,660m² (inclusive of the south-east corner area, but excluding the approved house and its surrounds).
The architectural and landscaping plans demonstrate that considerable thought has been given to the design, and siting, of the proposed development.[47]
[47]Contained in exhibit 2. See also Ex.12, Figure 2.
The development footprint is located within cleared parts of the site.[48] In so doing, it avoids an area of recognised ecological value in the south-eastern corner of the site. This area is earmarked for retention and rehabilitation. This will involve planting a suite of native species with a structure aiding native fauna movement through the area.[49] The revegetation will ensure a net increase in vegetation and habitat for the site is achieved.[50]
[48]Ex.9, para 25i.
[49]Ex.9, para 14.
[50]Ex.9. paras 19-23 and para 25ii.

Architectural sections through the development confirm the footprint is sited such that, save for a few limited exceptions, built form is set back 10 metres[51] from the southern and western boundaries, and buildings are cut into the undulating topography of the site.[52] This is to limit the visibility of built form from surrounding properties and the public realm. That this has been achieved by the design is clear from figure 23 of the visual amenity joint report. This figure overlays a landscape plan for the development on an aerial photograph.[53] A review of the figure reveals that Cabins 1 to 7 (inclusive), and the communal facilities, are to be located in the south-western corner of the site. This part of the site is separated from Eagles Place Retreat by adjoining development on Witherby Crescent. The view of this part of the site from Eagles Retreat Place will be obscured. The figure also reveals that Cabins 1 to 7, and the communal facilities, which is the most intense part of the proposed development, is to be located towards the low density residential area to the west discussed in paragraph [21]. The existing development to the west, in my view, is similar in scale and bulk to the Cabins and central facilities proposed.
[51]Ex.2, p.3.
[52]Ex.2, pp.12-14.
[53]Ex.7, p.28.
Figure 23 of the visual amenity joint report also provides a useful visual representation of the balance struck in the design between landscaping and built form. As Mr Mewing correctly pointed out, the balance favours landscaping; the built form is proposed in a landscaped setting. This setting only serves to reduce the visibility of the development from external viewing points.
The following metrics for the Tourist Cabins and central facilities can be identified from the proposed plans:

Cabin #

Type

Max Height[54]

GFA

Bedrooms

1

B

8.167[55]

188.92

3

2

B

8.39[56]

188.92

3

3

B

8.729[57]

188.92

3

4

B

11.831[58]

188.92

3

5

D

9.317[59]

192.94

3

6

F

9.478[60]

148.72

2

7

F

11.627[61]

148.72

2

8

C

10.526[62]

210.68

3

9

E

10.448[63]

159.53

2

10

F

10.360[64]

148.72

2

11

A

8.889[65]

211.64

3

Central facilities

-

>8.5

253.16

-

Total

-

-

2,229.79

-

[54]In metres above Natural Ground Level.
[55]Ex.2, p.20.
[56]Ex.2, p.24.
[57]Ex.2, p.25.
[58]Ex.2, p.26.
[59]Ex.2, p.32.
[60]Ex.2, p.36.
[61]Ex.2, p.41.
[62]Ex.2, p.49.
[63]Ex.2, p.57.
[64]Ex.2, p.62.
[65]Ex.2, p.66.

Caution needs to be exercised with the building heights identified above. They represent the maximum height of each cabin, in metres, above natural ground level. A close examination of the relevant Cabin sections reveals that the maximum height in each case is that presented to the east; the height dimension also applies to only a small part of each cabin. For example, in the case of Cabins 3 and 6, save for a small projection at roof level, they are below 8.5 metres in height.
Mr Ovenden, Council’s town planning witness, drew attention to the gross floor areas of each cabin and the number of storeys. He described each cabin as ‘supersized’.[66] The evidence establishes this is not a product of entrepreneurial skill or a desire to maximise development yield. Rather, the evidence is replete with references to a connection between the size of each cabin and the design requirements for Specialist Disability Accommodation (SDA).[67]
[66]For example, Ex.3, para 28(a) and Ex.36, para 2.3.
[67]The references were helpfully identified by Mr Batty and Ms Bowness in the closing submissions (Ex.33) at paragraphs 21-23 and Annexure A.
The purpose of the proposed development is to provide short-term accommodation in a recognised tourist area for people with disabilities, along with their families/carers. This is reflected in the design of the 11 Cabins. The internal design of each cabin is such that the entry level is directly accessible, and contains the main living area, bedroom, toilet and shower, for the occupant with a disability.[68] The design will be suitable for occupancy by guests that have a disability assessed to the NDIS/SDA criteria for Improved Liveability, Fully Accessible and High Physical Support.[69] The internal design of the cabins will exceed the minimum prescribed provisions of the Disability (Access to Premises – Buildings) Standards 2010.[70]
[68]Ex.5, para 60.
[69]Ex.18, para11.
[70]Ex.18, para 11 and Ex.5, para 62.
The National Disability Insurance Scheme (NDIS) enables people with a disability, and their families, to, inter alia, access short-term accommodation options. The evidence of Mr Rushton and Ms Ivanyi, who have particular experience in this industry, spoke of the need for accommodation accessed under the NDIS to meet an SDA Code. Often, existing short term accommodation does not meet this code.[71] This is a barrier to people with accessibility needs utilising short-term accommodation.
[71]Ex.21, para 11.
In order to operate the proposed development as SDA, it must be certified. A recognised professional is required to certify that it is Specialist Disability Accommodation suitable for people with particular needs. Here, it is proposed that the facility will be suitable for people requiring up to High Physical Support. A property suitable for this level of care is also suitable for people who require Fully Accessible and Improved Liveability. The facility would not be suitable for people requiring Robust Physical Support.[72]
[72]Ex.20, para 15-18.
Site cover for the proposed development ranges from 11.8% to 22.4%.[73] The variation is explained by different assumptions that underpin the calculation. Little turns on the actual site cover percentage.
[73]Ex.3, p.10.
Exhibit 26 is a list of conditions the appellant has indicated it will accept in the event an approval is granted. The document is attached to these reasons and marked ‘A’. It reflects the recommendations of a range of expert witnesses. I have taken these conditions into account when assessing the application against the superseded planning scheme. Conditions are proposed with respect to a range of matters, including certification of the design and ongoing use, landscaping, building materials and colours, on-site effluent treatment and noise, light and odour, and bushfire management.
Conditions with respect to certification of the design and ongoing use are of significant importance. It is these conditions that are relied upon by the appellant to ensure the development is suitable for the type of accommodation proposed. The conditions are also intended to ensure the use, if approved, is limited for its life to the provision of accommodation for persons with disabilities and their family/carers. With this in mind, Mr Batty and Ms Bowness submitted two types of conditions are appropriate in the circumstances[74]: (1) conditions requiring proof of certification, from an accredited third party SDA assessor, that the requirements of the SDA Design Standard 2019 are met prior to the commencement of use; and (2) conditions limiting the approved use to persons with a disability and persons having a connection to them, such as family members or support persons. I accept that conditions of this kind are of critical importance. They go to the heart of the approval sought.
[74]Ex.33, para 12.
Extensive landscaping is proposed.[75] It will include landscaping to boundaries; between cabins; between cabins and the central facilities; and between cabins and the location of the approved dwelling. Dense buffer planting along the western and southern boundaries of the site is proposed in a 10 metre setback area. This will provide complete screening of the cabins when viewed from the south.[76] A photomontage prepared for the view from the west indicates the roofs of Cabins 1 to 4 will be visible. The impact of that built form on this view is significantly mitigated by, inter alia, the proposed landscaping in conjunction with the colour of building materials proposed.[77]
[75]Including further landscaping suggested by Dr McGowan in his separate statement, marked exhibit 29.
[76]Ex.16, 3.4(v) and para 10(c)
[77]Ex.15.
The site does not have the benefit of access to a reticulated sewage system. Effluent will be disposed on-site. To do this, an approved aerobic sewage treatment plant will be provided. It is to achieve advanced secondary treatment of effluent.[78] The treated effluent will be dispersed in a wastewater area of 950m², located to the south of Cabin 8.[79] I accept Mr King’s evidence that an effluent disposal system of this kind will ensure no unacceptable odour impacts are experienced by people on, and off, the site.[80]
[78]In accordance with the recommendations of Dr Johnson, identified in Ex.8.
[79]Ex.12, p.7.
[80]Ex.11, para 37-38 and Ex.12, paras 24-25.
Mr King examined the noise, lighting and odour impacts of the proposed development. His evidence, which was well considered, was not challenged. I accept it. The evidence suggests the following conditions should attach to any approval to protect local amenity:
(a)the hours of operation for the outdoor area of the central facilities be limited to 7am to 10pm to manage noise impacts; [81] and
(b)site lighting be designed to comply with Australian Standard AS4282:2019 to manage the impacts of light spill and glare.[82]
[81]Ex.11, para 30 and Ex12, para 18.
[82]Ex.11, paras 47 and 53 and Ex.12, para 26.
These conditions are reflected in exhibit 26.
Mr Clowes examined bushfire risk management. I have reviewed his statement of evidence. After examining the site, the proposed development and relevant bushfire risk designations under the planning scheme, Mr Clowes concluded the relevant risk is one that can be managed by conditions. In this regard he recommended that an approval include a typical condition requiring a Bushfire Hazard Assessment and Management Plan.[83] The plan is to include management measures identified by Mr Clowes at paragraph 31 of his report. The measures include provision of a dedicated static water supply reserved for firefighting purposes, and establishment of asset protection zones between buildings and hazardous vegetation. Such areas are identified indicatively on the site plan for the proposed development.[84] I accept Mr Clowes evidence.
[83]Ex.19, para 29.
[84]Ex.2, p.3.
The bushfire risk management conditions are reflected in exhibit 26.

The statutory assessment and decision making framework

The superseded planning scheme application was made under the PA. As an impact assessable application, it must be assessed and decided in accordance with, inter alia, ss 45(5) and 60(3) of that Act. The former provision requires the development application be assessed against the assessment benchmarks in a categorising instrument. The latter, in combination with s 59(3), confers a broad discretion to approve a development application, be it in whole or part. Appellate authority confirms that the exercise of this discretion calls for a broad evaluative judgment,[85] where non-compliance with an adopted planning control is a relevant fact and circumstance.[86] The same authority confirms that the broad evaluative judgment is to be based upon the assessment carried out under s 45 of the PA.
[85]Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987, per Henry J at [59].
[86]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2021] QPELR 1321.
In the ordinary course, ss 45(6) to (8) apply to the assessment of an impact assessable application. In simple terms, the provisions require the assessment to be carried out against the assessment benchmarks in force at the time an application is properly made. Weight may also be given to amended or new planning documents that come into force at a later point in time. The provisions are displaced in this appeal by s 29(9)(b) of the PA. It applies because the application before the Court is a superseded planning scheme application,[87] and states:
“(9) If the local government decides to agree, or is taken to have agreed, to a request under subsection (4)(a)––
…
(b) despite section 45(6) to (8), the assessment manager for the superseded planning scheme application must assess the application as if the superseded planning scheme to which the application relates was in effect instead of––
(i) the planning scheme; and
(ii)a planning scheme policy for the local government area.”
[87]It was uncontroversial that Council had agreed on 30 April 2020 to a request made under s 29(4)(a) of PA to accept, assess and decide the development application before the Court as a superseded planning scheme application; Ex. 3, p.7, para 24.
Section 46(6) of the Planning and Environment Court Act 2016 confirms this Court on appeal is to assess and decide a superseded planning scheme application consistently with s 29(9)(b) of the PA. This provision states:
“(6) If the appeal is against a decision about a superseded planning scheme application under the Planning Act, the P&E Court must–
(a)consider the aspect of the appeal relating to the assessment manager’s consideration of the superseded planning scheme in question as if the application had been made under the superseded planning scheme; and
(b)in considering the aspect, disregard the planning scheme in force when the application was made.”
The superseded planning scheme for this appeal is the ‘Beaudesert Shire Planning Scheme 2007’, in force as at 20 June 2018 (the planning scheme).[88]
[88]Ex.22.

The planning scheme

The planning scheme was adopted when the repealed Integrated Planning Act 1997 (IPA) was in force.
The stated purpose of the planning scheme is to provide a framework for managing development in a way that advances the purpose of IPA.[89] It does that by, inter alia:
(a)identifying Desired Environmental Outcomes for the planning scheme area (the Shire);
(b)identifying the Zones and Overlays within the Shire; and
(c)identifying, in respect of the Zones and Overlays, development which is ‘Consistent Development and inconsistent Development’.
[89]Ex.22, p.23, s 1.1.3.
Part 2 of the planning scheme describes the composition of the document.[90] Section 1.2.1 identifies that it comprises: (1) Desired Environmental Outcomes for the Shire; (2) a Strategic Framework; (3) planning scheme measures; and (4) a statement of the State Planning Policies reflected in the planning scheme.
[90]Ex.22, p.26, s 1.2.1.
With respect to item (1), namely the Desired Environmental Outcomes, s 1.2.2 states:
“The planning Scheme identifies Desired Environmental Outcomes for the Shire which are––
(a)     based on ecological sustainability established by the Integrated Planning Act 1997; and
(b)     an expression of the Strategic Framework upon which the Planning Scheme is based; and
(c)     the basis for the Planning Scheme measures.”
With respect to item (2), the Strategic Framework is contained in Part 2 of the planning scheme. Its purpose is to provide ‘an explanation of the Strategic Framework, which is the vision’ for the planning scheme area.[91] The relevance of it to development assessment is addressed in s 2.2.2 of the planning scheme, which states:[92]
“Part 2 (Strategic Framework) does not have a direct role in the assessment of development under the Planning Scheme.”
[91]Ex.22, p.52, s 2.2.1.
[92]Ex.22, p.52.
With respect to item (3), the planning scheme measures comprise Zone and Overlay Maps, Assessment Tables, Consistent Development Tables and Codes.
The planning scheme is divided into 7 zones.[93] Each zone is divided into a number of precincts. As I have already observed, the land is included in the Tamborine Mountain Zone and the Escarpment Protection Precinct. Development proposed in that Zone and Precinct is to be assessed against the Tamborine Mountain Zone Code (TMZC),[94] in particular the General Assessment Criteria for the Zone[95] and the Specific Assessment Criteria for the Escarpment Protection Precinct.[96]
[93]Ex.22, pp.27-29.
[94]Ex.22, p.420, Part 7, Division 4.
[95]Ex.22, p.421; Part 7, Division 4, Subdivision 2.
[96]Ex.22, p.456, Part 7, Division 4, Subdivision 10.
Section 3.7.8 of the planning scheme identifies how compliance is demonstrated with the TMZC. The provision states, in part:[97]
“Development complies with the Tamborine Mountain Zone Code if in the case of––
…
(c) Impact-assessable development, there is compliance with the Specific Outcomes of the Tamborine Mountain Zone Code and the purpose of the Tamborine Mountain Zone Code being the Overall Outcomes for the Tamborine Mountain Zone.”
[97]Ex.22, p.420.
A review of the TMZC reveals it comprises a stated purpose, a table of Overall Outcomes for the Zone, a table of Specific Outcomes and Prescribed Solutions for the Zone and tables of Specific Outcomes and Prescribed Solutions for Precincts in the Zone. As s 3.7.8 makes clear, to demonstrate compliance with the TMZC the appellant must demonstrate there is compliance with the Specific Outcomes and Overall Outcomes of the code.
At first blush, it may be thought that compliance with the TMZC is informed by the content of Probable Solutions; however, care needs to be taken with provisions of this kind. Section 1.2.17 of the planning scheme provides that compliance with a Probable Solution does not necessarily establish compliance with the corresponding Specific Outcome. The provision states, in part:
“The Codes comprise––
…
(c) an Assessment Criteria that is a precise criteria that Self-assessable development must comply with (Acceptable Solution); and
(d) an Assessment Criteria that provides for assessable development a guide for achieving a Specific Outcome in whole or part but does not necessarily establish compliance with the Specific Outcome (Probable Solution).” (emphasis added)
Against the background of s 1.2.17 of the planning scheme, Mr McDermott submitted on behalf of Council that an Acceptable Solution is distinct from a Probable Solution in the planning scheme. I accept this submission.[98] The former is precise criteria for compliance with a Specific Outcome. The latter is only a guide to achieving compliance with a Specific Outcome. Mr McDermott also pointed out that s 1.2.17(d) makes clear that careful consideration needs to be given to the content of a Probable Solution and the Specific Outcome to which it relates. This is required to determine, as s 1.2.17(d) anticipates, whether the Probable Solution provides guidance ‘in whole or part’ for achieving compliance. I also accept this submission.
[98]Ex.37, para 37.
There is, in my view, good reason to conclude that the Probable Solutions prescribed by the TMZC have little, if any, influence in the determination of this appeal.
The tables setting out Specific Outcomes and Prescribed Solutions for the TMZC comprise two columns. Column 1 contains Specific Outcomes. Column 2 contains ‘Acceptable Solutions’ for Self assessable development. The same column provides ‘Probable Solutions’ for Code assessable development. No Probable Solutions are provided for Impact assessable development.[99] This, in my view, means it can be said with confidence, in this case, that: (1) compliance with the TMZC is to be demonstrated in accordance with s 3.7.8(c) of the planning scheme; (2) a departure from a Probable Solution in the TMZC does not equate to non-compliance with the planning scheme.
[99]The same point can also be made in relation to the Tourist Cabin Code.

Part 7, Division 3 of the planning scheme contains the Consistent Development Table for the Tamborine Mountain Zone.[100] The structure of the table is to identify, inter alia, where a defined use is Consistent Development in the Zone. Here, it was uncontroversial that:
(a)the proposed development is characterised as Tourist Cabins, which is defined in the planning scheme as follows:[101]
“Tourist Cabins means any premises used, or intended to be used, for accommodating persons away from their normal place of residence in cabins that may or may not be self-contained.
The term may include the provision of limited leisure facilities, meals and services for guests as ancillary activities.”
(b)Tourist Cabins are consistent development in the Escarpment Protection Precinct where ‘the total number of on site cabins does not exceed 20’.[102]
[100]Ex.22, p.415 and onwards.
[101]Ex.22, p.924.
[102]Ex.22, p.419.
Section 1.2.13(2) identifies the status ascribed to Consistent Development under the planning scheme:
“A Consistent Development is potentially consistent with the applicable Zone Code and the relevant Overlay Code.”
Neither of the co-respondents allege non-compliance with an Overlay Code in this appeal.
Consistent Development can be contrasted with Inconsistent Development under the planning scheme. The latter is not specified as Consistent Development in the relevant table for a Zone. Section 1.2.14(2) of the planning scheme provides that development of this kind is ‘inconsistent with the applicable Zone Code and the relevant Overlay Code’.
Chapter 5, Part 2 of the planning scheme contains ‘Use Codes’.[103]
[103]Ex.22, p.643.
Impact assessable development complies with a ‘Use Code’ if there is ‘compliance with the Specific Outcomes of the…Code and the purpose of the…Code being the Overall Outcomes for the use’.[104]
[104]Ex.22, p.643, s 5.2.1(c).
The applicable Use Code in this appeal is the Tourist Cabin Code (TCC).[105] Like the TMZC, it includes a stated purpose, Overall Outcomes and a table of Specific Outcomes and Prescribed Solutions for the Code. The table of Specific Outcomes and Prescribed Solutions bears the same structure as the TMZC. It comprises two columns. Column 1 contains Specific Outcomes. Column 2 contains Acceptable Solutions for Self assessable development and Probable Solutions for Code assessable development. No Probable Solutions are prescribed for Impact assessable development. Section 5.2.1(c) provides that Impact assessable development complies with the TCC where there is compliance with the Specific Outcomes and Overall Outcomes of the code. Compliance is not required with Probable Solutions in the code to demonstrate compliance. Equally, a departure from Probable Solution in the code does not equate to non-compliance with the planning scheme.
[105]Ex.22, p.749.
Adopting a broad overview of the planning scheme, it can be seen that it contains a number of layers, each exhibiting different levels of planning particularity. The most particular level of planning (of relevance here) is that provided by the Specific Assessment Criteria for the Escarpment Protection Precinct, followed by the General Assessment Criteria for the TMZC. At the other end of the spectrum, the broadest level of planning is that articulated in the Desired Environmental Outcomes. They apply across the entire planning scheme area and are the basis for the more particular planning scheme measures expressed through the maps, Assessment Tables, Consistent Development Tables and Codes. Given the structure of the planning scheme, I will examine alleged non-compliances with the most particular level of planning first.

The disputed issues

The disputed issues to be determined in the appeal with respect to the planning scheme can be stated as follows:
1.   Whether compliance has been demonstrated with the Specific Assessment Criteria for the Escarpment Protection Precinct?
2.   Whether compliance has been demonstrated with the General Assessment Criteria for the TMZC?
3.   Whether compliance has been demonstrated with the TCC?
4.   Whether compliance has been demonstrated with Desired Environmental Outcomes?
5.   Whether compliance has been demonstrated with the Strategic Framework?
The balance of the disputed issues to be considered are as follows:
1.   Whether the proposed development is an appropriate use of the land?
2.   Whether the proposed development would result in unacceptable visual amenity impacts?
3.   Whether the proposed development is consistent with the amenity and character of the surrounding area?
4.   Whether there are relevant matters that individually, or cumulatively, favour approval of the proposed development?
5.   Whether there are relevant matters that individually, or cumulatively, favour refusal of the proposed development?
An assertion repeatedly made by the co-respondents in relation to all of the issues is to the effect that the proposed development is contrary to the community’s reasonable expectations. I will deal with this first, followed by the disputed issues considered in turn.

Community expectations

Central to the refusal cases is a contention that the proposed development is contrary to community expectations. Evidence with respect to what the community expects can be found in the submissions[106] received by Council during the public notification process, along with the statements of Ms Hay and Ms Lockey.
[106]Ex.1, Part 3, Tab 9.
The town planning joint report records that 232 adverse submissions were received by Council during the public notification process.[107] This is incorrect. A total of 243 adverse submissions were received.[108] The vast majority, 221, were proforma submissions. The balance, 22, were non-proforma submissions. The objections articulated in the submissions were fairly summarised at paragraph 38 of the town planning joint report.
[107]Ex.3, para 36.
[108]Ex.33, para 41.
There is an immediate difficulty that must be confronted about the submissions received during the public notification process. It is clear that they respond to a different form of development to that which the Court is asked to consider. During the public notification process, the proposed development comprised 12 Tourist Cabins. The development now comprises 11 Cabins. Further, the development the subject of the objections does not reflect the minor change authorised by the order of 14 July 2022. This impacts on the weight that can be attributed to the submissions.
Putting this difficulty to one side, an examination of the proforma submissions (which accounts for 221 of the total) reveals submitters ‘objected’ for the following reasons:
(a)the development proposes 12 three storey accommodation buildings, with substantial central facilities on land in the Escarpment Protection Precinct;
(b)the development is not consistent with the ‘outcomes’ sought for the Tamborine Mountain Zone, in particular, the provisions of the Escarpment Protection Precinct;
(c)the development is a significant overdevelopment of the land;
(d)the development does not represent a scale, form and intensity intended in the zone;
(e)the development is not low impact and has excessive building height over 8.5 metres;
(f)the development is of a bulk, scale and nature that exceeds what could be reasonably expected of a typical tourist cabin, namely a cabin having a maximum GFA of 100m², excluding verandahs;
(g)the development will involve extensive cut and fill, which will impact on scenic amenity and landscape character values;
(h)the development will alter overland flow and hydrological conditions and require significant infrastructure to mitigate runoff;
(i)the development will negatively impact on the ecological values of the site;
(j)the development will increase traffic and introduce new traffic into a predominantly semi-rural area;
(k)the development will increase noise and introduce additional adverse noise impacts into the local area;
(l)the development is inappropriate because it will introduce a vulnerable use into a bushfire prone area; and
(m)there is no demonstrated need for short-term disability accommodation in this location.
An examination of the non-proforma submissions reveals similar points of objection were articulated to those above. Of note, is that each of the non-proforma submissions call in aid exceedances of Probable Solutions in the planning scheme to support refusal.[109] The same submissions also suggested that the development should be refused because: (1) there was a potential for the developer to convert the proposed Cabins into luxury residential townhouses;[110] (2) the application did not seek approval for Tourist Cabins as defined in the planning scheme;[111] and (3) the risk of Slope instability was not properly addressed.[112]
[109]Ex.1, p.195-196, 221, 240, 259, 271, 301, 327, 365-366, 382, 388, 390, 392, 394, 413, 416-417, 422, 436, 440-441, 446-448, 460, 470, 472, 473 and 562.
[110]Ex.1, p.288.
[111]Ex.1, p.293, 327, 375, 443
[112]Ex.1, p.314 and 317.
I have examined Ms Hay’s submission.[113] The document identifies her postal address. The address provided is well removed from the site, Eagles Retreat Place generally, Cliff Way and Central Avenue. Ms Hay’s submission indicates she agreed with, and relied on, the contents of the TMPA submission, which objected to the development.
[113]Ex.1, 396-400.
Ms Lockey lodged her own submission with Council objecting to the development.[114] It is a proforma submission. Like Ms Hay, the postal address given in the submission is well removed from the site, Eagles Retreat Place generally, Cliff Way and Central Avenue.
[114]Ex.1, p.415.
I have examined TMPA’s submission.[115] It comprises an assessment prepared by a town planning consultant. The assessment traverses a number of planning issues, including compliance with Probable Solutions in the planning scheme. Refusal is recommended for a range of reasons, including a contention that inconsistencies with the planning scheme could not be managed through conditions.
[115]Ex.462-480.
What do the submissions and lay witness statements suggest is the community’s expectation as to development on the site?
The expectations of the community, based on the submissions and evidence of Ms Hay and Ms Lockey, appear to be that:
(a)development will comply with Probable Solutions in the planning scheme with respect to site cover (10% or less), building height (8.5m or less) and cabin size (100m2 of GFA or less);
(b)development of the site may include Tourist Cabins;
(c)development of the site for Tourist Cabins may include ancillary facilities that are small in scale;
(d)development of the site will be low-impact, respecting ecological and hydrological constraints; and
(e)development will comply with the requirements of the planning scheme, particularly those specified for the relevant precinct.
In my view, there can be little doubt that subparagraph (a) above played an important part in the ‘expectations’ held by Ms Hay, Ms Lockey, TMPA and those members of the public who made submissions to Council. To the extent there is any doubt about this, it was removed by Ms Hay, who made the following oral submission:[116]
“Your Honour, what’s become apparent from reading through these documents is that the planning scheme is so poorly written, it leaves issues open to interpretation. I think we can all agree on that.
The issue now is whether the probable solutions contained in the planning scheme inform community expectations. The community may reasonably expect tourist cabins and central facilities and a wellness centre, and so on, on the site, but they do also expect them to comply with the probable solutions contained within the planning scheme.
If there are no probable solutions or if they mean nothing, then there’s little guidance on the outcome that’s expected for each SO or OO. So that’s why the community places reliance on the probable solutions where they are specific about size, gross floor area, height, and so on.” (emphasis added)
[116]T2-49, L36 to T2-50, L2.
It can be observed that there is a connection between subparagraph [80](a) and (e). The submitters and lay witnesses drew upon Probable Solutions in the TMZC and TCC to inform many aspects of the assessment against the planning scheme. Particularly those provisions calling for an examination of building bulk, form, scale and intensity of use.
I do not accept, in light of the matters discussed in paragraphs [54] to [59] and [66], that it is reasonable to expect development of the kind proposed will comply with Probable Solutions in the TMZC and TCC. Despite this, the submissions, and statements of Ms Hay and Ms Lockey, are redolent of an expectation that there is to be strict adherence to Probable Solutions. Indeed, one might be forgiven for thinking the Probable Solutions were treated by submitters, and the co-respondents, as if they were limits or maximums that may only be exceeded in exceptional circumstances. To form expectations and assess the merits of the proposed development on this footing, in my view, sits uncomfortably with ss 1.2.17, 3.7.8(c) and 5.2.1(c) of the planning scheme.
The community’s expectations about development of the kind proposed on the site should start from the footing that the following matters are evident on the face of the planning scheme.
First, the site is included in the Tamborine Mountain Zone and Escarpment Protection Precinct. Land in that Zone and Precinct may be developed with up to 20 Tourists Cabins. It is Consistent Development in the Zone, and Precinct.[117] The importance of this is reflected in s 1.1.3 of the planning scheme. This provision makes clear that the identification of development as Consistent Development in the Zone is one of the ways the planning scheme seeks to advance the purpose of the legislation in force at the time of its adoption, IPA.[118] The purpose of that Act was to achieve ecological sustainability.[119] The PA seeks to achieve the same end.[120]
[117]Consistent with the reasons in Harris (Supra).
[118]Ex.22, p.23, s 1.1.3(d).
[119]s 1.2.1.
[120]s 3.
Second, an impact assessable application may be made to Council to develop the site with up to 20 Tourist Cabins on the footing it is Consistent Development under the planning scheme. It is assessed from the starting point that it is ‘potentially’ consistent with the TMZC and relevant Overlay codes.[121]
[121]Ex.22, p.35, s 1.2.13(2).
Third, an impact assessable development application seeking approval for up to 20 Tourist Cabins on the site is to be assessed against the planning scheme as whole, to the extent it is relevant.
Fourth, in the assessment of an impact assessable development application seeking approval for up to 20 Tourist Cabins on the site, attention is to be given to, inter alia, relevant Overlay codes, the TMZC and the TCC. Compliance with the TMZC and the TCC is demonstrated in accordance with ss 3.7.8(c)[122] and 5.2.1(c).[123] Neither provision requires compliance with Probable Solutions. Rather, compliance is to be demonstrated with Overall Outcomes and Specific Outcomes of each Code, which are expressed in qualitative, rather than quantitative, terms.
[122]Ex.22, p.420
[123]Ex.22, p.643.
Fifth, the Specific assessment criteria for the Escarpment Protection Precinct in the TMZC and the TCC do not include Probable Solutions for development that is subject to impact assessment.[124]
[124]They will apply to, inter alia, Tourist Cabins that are Code assessable. Such an application is anticipated in the Park Living Precinct of the Zone and on land identified in the Assessment table by real property description (Ex.22, p.409).
Sixth, the planning scheme provides flexibility to approve development that is of a scale, form and intensity greater than anticipated for a locality where two things are demonstrated: (1) there is an overwhelming community need for the development; and (2) there is an overwhelming economic need for the development.[125]
[125]Ex.22, p.48, s 2.1.3(2)(l).
When the planning scheme is approached in this way, it can be said that expectations about the scale, form and intensity of Tourist Cabins on the site cannot be stated in the abstract, let alone by reference to empirical measures only. The very nature of the qualitative criteria against which the development is to be assessed turns on matters of fact and degree, judged by reference to the details of the particular proposal. This is demonstrated by relevant provisions of the planning scheme. First, Overall Outcome OO52 of the TMZC, which states the intent for the Escarpment Protection Precinct. Second, Specific Outcome SO1 of the Specific assessment criteria for the Escarpment Protection Precinct. The provisions bear a strong similarity.
Overall outcome OO52 in the TMZC states:
“Development within the Escarpment Protection Precinct is typified by low-impact uses which protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”
SO1 of the Specific Assessment Criteria for the Precinct states:
“Development must demonstrate that it is low-impact and can protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”
Mr Batty and Ms Bowness submitted there are additional matters that negatively impact on the weight to be given to the submissions in the exercise of the planning discretion here. They pointed out that:[126]
(a)the views expressed in the submissions about unacceptable impacts are not supported by expert evidence before the Court;
(b)the views expressed do not take into account the proposed conditions in exhibit 26, which will address concerns raised with respect to bushfire risk, landslip, effluent disposal, noise, light, odour, wastewater management, landscaping and ecology; and
(c)the submissions do not reflect that the proposed development is Consistent Development under the planning scheme.
[126]Ex.33, pp.10-11.
I accept (a) and (b) are made out, and negatively impact on the weight to be given to the submissions.
I do not accept (c) can be accepted without very significant qualification. It is clear on the face of some non-proforma submissions that it was acknowledged the proposal was Consistent Development in the Zone. Proforma submissions are silent on the point. In such circumstances, I am not persuaded that the weight to be given to the submissions is reduced by reason of the point made at (c) above.
I pause to observe that a number of submissions suggested that the development for which approval is sought was not Tourist Cabins as defined in the planning scheme. This is a contention that I do not accept. The evidence comfortably demonstrates that the site is intended to be developed with a use that accommodates persons away from their normal place of residence in cabins that are self-contained. It has also been established that the central facilities proposed are ‘ancillary activities’ of the kind anticipated by the definition. The ancillary activities are limited, and undoubtedly take their colour from, and serve the primary use of the site for Tourist Cabins.[127]
[127]Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221, [14].
That submissions assume to the contrary is a further matter that negatively impacts on the weight to be attributed to expressions of ‘expectation’.
It is my view that the evidence of community expectations, to be found in the submissions and lay witness statements of Ms Hay and Ms Lockey: (1) sits uncomfortably with the planning scheme, particularly the provisions identifying how compliance is achieved with the TMZC and TCC; and (2) finds little support in the evidence before this Court about the proposed development and its impact on amenity, character, ecological features of significance, scenic amenity and landscape values. As a consequence, little weight can be afforded to the expectations (and grounds for objection founded upon those expectations) stated in the submissions and lay witness statements.

Compliance with the planning scheme

The co-respondents contend the development does not comply with 27 provisions of the planning scheme.
For the reasons that follow, the appellant has demonstrated compliance with the planning scheme.

Specific Assessment Criteria for the Escarpment Protection Precinct

The co-respondents allege non-compliance with three provisions in Table 3.7.19 of the planning scheme, namely Specific Outcomes SO1, SO4 and SO5.
SO1 is in the following terms:[128]
“Development must demonstrate that it is low-impact and can protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”
[128]Ex.22, p.456.
The Specific Outcome requires development to protect and maintain the nature conservation, scenic amenity and landscape character values associated with the escarpment.
With respect to nature conservation values associated with the escarpment, the co-respondents do not allege non-compliance with the Nature Conservation Overlay Code. This code was examined by Mr Moffit in his statement of evidence.[129]
[129]Ex.9, pp.47 to 49.
Mr Moffit’s evidence, which I accept, establishes that the ecological values of the site will be protected and maintained. The value is to be found in the south-eastern corner of the site, which is contiguous with well-vegetated areas further east. The proposed development footprint is sited outside of, and setback from, this corner of the site. Further, it is proposed that this area will be rehabilitated and revegetated. This will ensure the nature conservation values of the site will be protected and maintained. The values will also be enhanced. Mr Moffit said the proposal would deliver a net increase in vegetation and habitat for the site.[130]
[130]Ex.9, para 22.
The scenic amenity values associated with the escarpment can be identified in aerial photography before the Court. The most obvious and significant contributors to that amenity include: (1) the escarpment itself; (2) the national park/conservation area to the west of the escarpment; and (3) the absence of development in the area of the national park/conservation area leading to the escarpment, which provides an attractive foreground to the spectacular aspect available to the east. The evidence comfortably establishes that the proposed development is located to the west of the areas identified in (1) and (2) above, leaving them intact. Item (3) would not change as a consequence of an approval. In these circumstances, it can be said with confidence that the scenic amenity values of the escarpment will be protected and maintained.
It can also be observed that the introduction of built form on to the site will not detract from the scenic amenity values of the escarpment. As a starting point, development of the kind proposed is to be anticipated on the site by reason it is Consistent Development in the Precinct. A careful examination of the built form proposed and the matters discussed in paragraphs [12] to [20] reveal, in any event, that there is a limited visual catchment from which the development is capable of being observed, let alone observed in its entirety.
Dr McGowan concluded from his visibility mapping assessment that the development will have a limited visual catchment to the west. The catchment is such that no neighbouring property would achieve a clear view across the entirety of the site. Four of the eleven Cabins will be visible for adjoining development to the west. A photomontage prepared for this view demonstrates the site will sit within a landscaped setting below a spectacular view to the east over the escarpment and vegetated foreground.[131] The photomontage comfortably demonstrates that the scenic amenity values discussed above will be protected and maintained (see ‘B’ attached to these reasons).
[131]Ex.7, Figure 24.
I pause to observe that the planning scheme recognises and identifies ‘view protection areas’. Planning controls have been provided to regulate development that may have an adverse impact on such areas.[132] The site, and land to the east, is not subject to this designation or controls. They do however apply to land to the west. For reasons given above, the development will not adversely impact on the views from the west towards the Gold Coast. The view will be protected and maintained.
[132]Ex.22, p.602, SO30-SO32.
The built form proposed will be visible from Eagles Retreat Place. The extent of visibility will be limited having regard to: (1) the matters identified by Mr Mewing with respect to the topography; (2) the stepping of the built form with the profile of the land (walking down the hill); (3) the proposed landscaping work; (4) the length of the frontage available (56 metres) to view the built form; and (5) Dr McGowan’s evidence that no one viewpoint would enable the development to be seen in its entirety. The architectural perspectives provided for the proposed development do not suggest that the extent of development that can be seen from Eagles Retreat Place impacts on the scenic amenity values of the escarpment.
With respect to landscape character values, Mr Mewing concluded that the local area is characterised by buildings that step across the hilly landscape and are surrounded by vegetation or cleared areas.[133] Visual aids before the Court make good on this opinion.
[133]Ex.3, para 104(g).
The plans of development, examined with the benefit of exhibit 26 and the evidence of Dr McGowan and Mr Curtis, illustrate a proposal that is consistent with this landscape character. The built form steps across undulating topography and is proposed to be sited in a well landscaped setting. As Mr Mewing observed, the design achieves an appropriate balance between built form and landscaping.[134] That balance comfortably favours landscaping.
[134]Ex.3, para 106(d).
Specific Outcome SO1 also requires development be low-impact. This is demonstrated in this case by: (1) the matters traversed in paragraphs [105] to [113]; and (2) Mr King’s evidence, which establishes that noise, lighting and odour emissions from the development can be managed appropriately by conditions.
Ms Hay did not address SO1 in her written submissions[135] or statement.[136]
[135]Ex.39.
[136]Ex.31.
Ms Lockey did not address SO1 in her written submissions.[137] She did however address alleged non-compliance in her statement. Non-compliance was asserted with the provision on two bases:[138] (1) by restating the provision in the negative; and (2) because the proposed development was far too intensive for the escarpment.
[137]Ex.38.
[138]Ex.30, p.7.
I do not accept that it is sufficient to restate the Specific Outcome to address the allegation of non-compliance. I also do not accept the proposed development is ‘far too intensive for the escarpment’. The evidence establishes the proposed development: (1) is of a bulk and scale consistent with built form existing in the locality (paragraph [26] and [128] to [133]); (2) will be landscaped in a manner that is consistent with the landscape character of the locality (paragraphs [112] and [113]); and (3) will, in any event, have limited visibility from external viewing points. These points taken in combination do not support Ms Lockey’s assertion. That they provide no support is made good by figure 24 of exhibit 7, which is attached and marked ‘B’. The figure is one of the few viewpoints where the development can be seen. It demonstrates how little built form will be visible. It also demonstrates the development will protect, rather than detract, from the character and amenity of the escarpment.
Specific outcome SO4 is in the following terms:[139]
“Development provides for a limited range of non-residential uses where it can be demonstrated that the scenic amenity can be maintained.”
[139]Ex.22, p.457.
The proposed development is a non-residential use, which is Consistent Development in the Precinct. The particular issue for consideration in the context of SO4 is whether it is has been demonstrated that scenic amenity can be maintained.
For the reasons given at paragraphs [107] to [113] and [117], I am satisfied the development complies with SO4.
Ms Hay did not address SO4 in her written submissions[140] or statement.[141]
[140]Ex.39.
[141]Ex.31.
Ms Lockey did not address SO4 in her written submissions.[142] She did however address the provision briefly in her statement. Non-compliance was asserted with the provision by restating it in the negative.[143] I reject the stated assertion. It is not supported by any analysis of the evidence. It is also contrary to unchallenged evidence that I accept.
[142]Ex.38.
[143]Ex.30, p.8.
Specific outcome SO5 is in the following terms:[144]
“Development ensures a building height, bulk and setback consistent with the character of the Escarpment Protection area.”
[144]Ex.22, p.457.
For completeness, it can be observed that a Probable Solution is prescribed for Code assessable development assessed against SO5. It is in the following terms:
“S5.1Development in the Escarpment Protection area provides a minimum building setback distance of 10 metres from—
(a) Tamborine Oxenford Road; and
(b) Main Western Road; and
(c) Henri Robert Drive.”
Assuming S5.1 is relevant to an impact assessable application, it is of little assistance to this case. The site does not share a boundary with any of the named road reserves. Further, the Probable Solution does not address all parts of the Specific Outcome; it does not provide a solution with respect to building height and bulk considerations.
SO5 requires the following to be considered: Is the height, bulk and setback of the development consistent with the character of the Escarpment Protection area?
This question is resolved in the affirmative.
The proposed Cabins and central facilities are designed and sited to step with the sloping topography of the land. This has the consequence that Cabins 1 to 10 present as one or two storeys to the west, and two to three storeys to the east. The difference in height from west to east is not so dramatic for Cabin 11.[145] It reads as two storeys from the west and two and a half storeys to the east. The central facilities building presents as a two storey building to the west and three storeys to the east.[146] That the built form straddles the slope of the land is, as I have already found at paragraph [112], consistent with the existing built form in the Escarpment Protection Precinct and the locality to the west.
[145]Ex.2, p.66.
[146]Ex.2, p.75.
At Eagles Retreat Place, Cliff Way and Central Avenue, the evidence establishes there are large single dwellings that are designed to step with the topography and take advantage of the easterly aspect beyond the escarpment.[147] Some of those dwellings read as two storeys from particular viewing points.[148] Some read as two to three storeys.[149] The existing short term accommodation building located on Eagles Retreat Place is no exception. It straddles the sloping topography and presents as a two storey structure from the south, and a three storey structure from the east. A similar point can be made about existing dwellings on Eagles Retreat Place.
[147]Ex.7,pp.16-19 and 22-23.
[148]Ex.7, p.19.
[149]Ex.7, pp.13, 15 and 22.
The height and bulk of the proposed Cabins and central facilities can be compared with existing built form in the Escarpment Protection Precinct. This comparison is undertaken using visual aids before the Court. Those aids establish that the bulk and height of the existing built form is fairly characterised as large two storey detached dwellings. A useful visual aid in this respect is contained in Mr King’s supplementary report.
Figure 2 of Mr King’s supplementary report is an aerial photograph with a site plan overlay. The figure can be used to examine the footprint of existing development and the approved dwelling on the site, which can then be compared with each Cabin and the central facilities. This comparative exercise reveals that: (1) the footprint of each Cabin is appreciably smaller than existing dwellings to the north and east; (2) the footprint of each Cabin is appreciably smaller than the short-term accommodation facility to the north; (3) the footprint of each Cabin is appreciably smaller than the dwelling approved in the north-east corner of the site; and (4) the central facilities building is comparable in footprint to the short-term accommodation facility to the north, and smaller than the footprint of the approved dwelling on the site.
The height of each Cabin and the central facilities building, coupled with an appreciation of their respective development footprints (length and width), enables building bulk to be examined. That examination, in the light of paragraphs [128] to [131], and with the benefit of the architectural perspectives, leads me to conclude that the height and bulk of the built form will be consistent with the character of the Escarpment Protection Precinct. The height and bulk of the built form will not, in any event, be visible in its entirety from one location. It will be sited to step with the topography of the land. It will sit within a landscaped setting.
Figure 2 of Mr King’s supplementary report also enables setback distances to be considered for existing and approved development in the Escarpment Protection Precinct. It is clear from this figure that front, side and rear boundary setbacks vary considerably in the Precinct. The setbacks for the proposed development, which are discussed at paragraph [26], will be consistent with that character. The setbacks to the south and west are worthy of particular note. They are in the order of 10 metres. This setback area will be landscaped and will function as a buffer zone. The buffer will provide a sensitive interface for development located to the south and west of the site.
Ms Hay did not address SO5 in her written submissions[150] or statement.[151]
[150]Ex.39.
[151]Ex.31.
Ms Lockey did not address SO5 in her written submissions.[152] Ms Lockey did however address non-compliance in her statement.[153] Non-compliance was asserted on two bases: (1) by restating the provision in the negative; and (2) by reference to exceedances of Probable Solutions for building height and gross floor area.
[152]Ex.38.
[153]Ex.30, p.8.
Item (1) is unhelpful. It does not disclose the basis for the alleged non-compliance. It is a mere assertion.
Item (2) does not advance an argument with respect to non-compliance. As I have already said, departure from a Probable Solution does not equate to non-compliance with the TMZC or TCC. Further, it can be observed that the Probable Solutions to which Ms Lockey referred do not apply to SO5. They apply to Code assessable development assessed against a different part of the planning scheme, namely Specific Outcome SO8 in the TMZC (height) and Specific Outcome SO2 (GFA) in the TCC.
The alleged non-compliances with the planning scheme in this case do not turn on whether Probable Solutions are exceeded or complied with. Rather, the case calls for an examination of the evidence against provisions such as SO5. That examination here comfortably demonstrates compliance.
I also note that Ms Lockey asserted non-compliance with Specific Outcome SO2 of Specific Assessment Criteria for the Escarpment Protection Precinct. This assertion appears in her statement.[154] It is not identified in the list of issues. It is not an issue in the appeal.
[154]Ex.30, p.8.
Reliance upon SO2 is, in any event, misguided.
Specific outcome SO2 requires development to ‘maintain(s) and protect(s) the existing undeveloped landscape character comprising heavily forested areas and a mixed farming environment’. This provision has no application to the site because the landscape character is not heavily forested. Nor is it a mixed farming environment. TMPA did not: (1) lead evidence to the contrary; (2) direct me to evidence that assisted its case in relation to this point. As to (2), there was no such evidence in any event.

General Assessment Criteria for the TMZC

Non-compliance is alleged with five Overall Outcomes of the TMZC. The co-respondents jointly allege non-compliance with Overall Outcomes OO2, OO5 and OO58. TMPA alleges non-compliance with Overall Outcome OO52. Ms Hay presses non-compliance with Overall Outcome OO38.
Ms Hay’s written submissions do not address Overall Outcomes OO2, OO5, OO38 and OO58 of the TMZC.[155]
[155]Ex.39.
Ms Lockey’s written submissions do not address Overall Outcomes OO2, OO5, OO52 and OO58 of the TMZC.[156]
[156]Ex.38.
Overall outcome OO2 is in the following terms:[157]
“Overall Vision
OO2 Development provides that tourist activities are concentrated in recognised tourist areas or otherwise located so as not to adversely impact on the amenity of the area.”
[157]Ex.22, p.421.
The proposed development is a tourist activity. It is not proposed in a tourist area. The issue, as a consequence, is whether the evidence of Messrs Mewing, Ovenden, Curtis and King and Dr McGowan establishes that the proposed development will be located so to not adversely impact on the amenity of the area. For reasons already given, I accept this body of evidence without reservation. Compliance is demonstrated with OO2.
Ms Hay addressed OO2 in her statement.[158] The statement asserts non-compliance with the provision by re-stating it in the negative.
[158]Ex.31, p.28.
Ms Lockey addressed OO2 in her statement.[159] She asserted non-compliance with the provision on the basis that the proposed development ‘is located in a predominantly low key residential area and adversely impacts on the amenity of the area’.
[159]Ex.30, p.6.
I reject Ms Hay’s assertion with respect to OO2. Whilst I accept the area is predominantly low key residential in nature, I do not otherwise accept Ms Lockey’s assertion with respect to OO2. The assertions in both statements are not supported by evidence. They are also inconsistent with the evidence I accept.
Overall outcome OO5 is in the following terms:[160]
“Amenity, Environmental Management and Greenspace
OO5 Development through location and design minimises risks and nuisance to people and property”
[160]Ex.22, p.421.
The evidence of Mr King, Mr Clowes and Dr Johnson is relevant to OO5. That body of evidence, which I accept, establishes that: (1) the potential for noise, light and odour nuisance can be appropriately managed by way of conditions; (2) even allowing for the nature of the use, and known risks, bushfire risk to people and property can be safely managed by way of conditions.
Ms Hay addressed OO5 in her statement.[161] Non-compliance is asserted on two bases. First, the proposed development will not minimise risk with respect to bushfire hazard. Second, the proposed development will not minimise nuisance to people and property.
[161]Ex.31, p.21.
Ms Hay made the point that the use proposed is a vulnerable one given: (1) the known bushfire risk, which is high; and (2) the occupants will not be abled bodied. Ms Hay also criticised the design of the proposal because she was unable to identify water storage facilities (for firefighting purposes) on the proposed plans.[162]
[162]Ex.31, p.25.
A review of Mr Clowes’ evidence reveals he took into account the points made by Ms Hay in items (1) and (2). He also recommended, and the appellant accepts, that a bushfire management plan should be required by a condition of approval; that plan is to identify the location of water storage facilities for firefighting purposes. The plans of development reveal provision has been made in the design of the Cabins for these very facilities.
In the context of nuisance, Ms Hay asserted the proposed development will introduce extra traffic into Eagles Retreat Place and will have an adverse amenity impact by reason of its scale and intensity.[163] This was consistent with the points made by Ms Lockey in her statement.[164]
[163]Ex.31, p.28.
[164]Ex.30, p.7.

The above provision contemplates that tourism related uses may occur in one of two locations. The second is relevant to this case. The site is located in a precinct that has a rural residential character. The character and amenity of that precinct will be protected by the proposed development, as envisaged by subsection (c) of the same provision. Compliance is, as consequence, demonstrated with subsection (3) as a whole.
With respect to subsection (11), I accept Mr Clowes’ evidence. It establishes that conditions can be imposed to manage the risk of bush fire. It can also be observed that, for the purposes of subsection (11), the site is not located on the ‘western slopes’ or the ‘escarpment’. The site is located in the Escarpment Protection Precinct on the south-eastern extent of Tamborine Mountain.
Ms Hay did not address the Strategic Framework in her written submissions.
Ms Hay addressed the Strategic Framework in her witness statement. In particular it was addressed in the context of bushfire mitigation and minimisation.[237] I do not accept her submissions about this point. The submissions are contrary to the evidence of Mr Clowes.
[237]Ex.31, p.21.
Ms Lockey did not address the Strategic Framework in her written submissions.[238]
[238]Ex.38.
Ms Lockey addressed non-compliance with the above Strategic Framework provisions in her witness statement. She suggested non-compliance arose with the Strategic Framework because the proposed development:
(a)would not protect the scenic and environmental values of the Tamborine Mountain Zone, which are very low key and non-urban (s 2.2.11(1));
(b)was not designed, nor of a scale and intensity, that would enhance the character of Tamborine Mountain (s 2.2.11(2));
(c)would not enhance the low key character of the Tamborine Mountain Zone (s 2.2.11(3));
(d)would not preserve the landscape (ss 2.2.11(3) and (6)); and
(e)was not designed, nor managed, to minimise the risk of severe bushfire in circumstances where there is no provision for dedicated 10,000 litre water tanks for firefighting purposes (s 2.2.11(11)).
These assertions are contrary to the evidence I accept.

Is the proposed development an appropriate use of the site?

For reasons given above, the evidence establishes compliance with the planning scheme. This is in circumstances where the proposal is Consistent Development in the Zone and Precinct.
The proposed development, which complies with the planning scheme, is fairly regarded as an appropriate use of the site.
Ms Hay submitted the proposed development is not an appropriate use of the site. It was contended that an appropriate use would be one that has already been approved, namely a dwelling.[239] I reject this submission. It is inconsistent with the evidence. It also does not take into account that the proposed development complies with the planning scheme and is Consistent Development in the Zone and Precinct.
[239]Ex.39, p.1, para 1.
Ms Lockey’s statement asserts the proposed development is not an appropriate use of the site.[240] The reasons given for this were as follows:
(a)the proposed development is not consistent with the amenity and character of the surrounding area;
(b)the scale, bulk, built form and intensity of the proposal will have a different character to the built form of the area;
(c)the proposed development will impose many adverse impacts on the amenity of residents and the character of the surrounding area; and
(d)not all the ‘large adverse impacts can be mitigated by conditions’.
[240]Ex.30, para 20.
I reject these assertions. They are not supported by evidence. They are contrary to the evidence I accept. The assertions also fail to take into account that the proposed development complies with the planning scheme and is Consistent Development in the Zone and Precinct.

Would the proposed development result in unacceptable visual amenity impacts?

The evidence establishes the proposed development has a limited visual catchment. As a consequence, impacts on visual amenity are confined to a small number of properties. The analysis undertaken by Mr Curtis and Dr McGowan establishes that an approval, including conditions with respect to landscaping, will not give rise to unacceptable visual impacts.

Is the proposed development consistent with the amenity and character of the surrounding area?

For reasons given above, I am satisfied this question is also resolved in the affirmative.

Relevant matters favouring approval

The appellant’s primary case for approval assumes: (1) the proposed development complies, or can be conditioned to comply, with the planning scheme;[241] and (2) there are no planning reasons to justify refusal in circumstances where (1) is established.
[241]Ex.1, p.7, para 5(a).
In the alternative, the appellant contends there are a number of relevant matters that favour approval of the development in the event of non-compliance with the planning scheme. The matters can be identified as follows:[242]
(a)the proposed development will provide an exceptional tourism facility that is short-term respite accommodation for people with disabilities in circumstances where accommodation of this kind is not available within the region;
(b)it is in the public interest that tourism facilities providing short-term respite accommodation for people with disabilities is provided;
(c)the design of the proposed development caters for people with disabilities;
(d)the site has outstanding locational features for the type of development proposed;
(e)the proposed development will have no unacceptable impacts;
(f)there is a need for the proposed development;
(g)any non-compliances with the planning scheme are not of a nature that call for refusal; and
(h)the referral agency for the development application is supportive given it issued conditions to form part of a development approval, if granted.
[242]Ex.1, p..7, para (5)(b) – (i)
Save for the word ‘exceptional’, I am satisfied subparagraph (a) has been established.
I am satisfied subparagraphs (b) and (c) have been established.
With respect to subparagraph (d), it is a broad assertion. It adds little to the exercise of the discretion and will be given no weight.
I am satisfied subparagraph (e) has been established.
The issue of need raised by subparagraph (f) is dealt with below.
Subparagraph (g) does not arise for consideration. I have found the proposed development complies with the planning scheme.
I do not regard subparagraph (h), in this case, as being a matter of substance. It will be given no weight in the exercise of the discretion.
Overall, the matters favouring approval, save for subparagraphs (d) and (h), attract weight in the exercise of the discretion. They favour approval, but, in terms of weight, pale against a consideration that attracts very significant weight: compliance has been demonstrated with the planning scheme.

Need

The appellant and co-respondents disagree about whether a community and economic need has been demonstrated for the proposed development.
An examination of this issue starts from the position that the planning scheme recognises the importance of, and need for, short-term tourist accommodation on Tamborine Mountain. Provision is made for that use, in a town planning sense, through the zones and precincts. This is clear from the following provisions of the planning scheme, namely:
(a)the following broad strategy for the planning scheme area:[243]
“The tourism potential of the Shire for short-stay and day visitors is protected by encouraging tourism activities in appropriate areas of the Shire in a manner that respects and enhances the Shire’s natural attributes, intrinsic rural character, existing tourist attractions and outdoor recreation facilities.” (emphasis added)
(b)the following local strategy for Tamborine Mountain Zone:[244]
“Development for tourism related uses is…(b) dispersed within the rural residential and rural areas;…”
(c)the Consistent Development Table for the Tamborine Mountain Zone, which provides that up to 20 Tourist Cabins are Consistent Development in the Escarpment Protection Precinct.
[243]Ex.22, p.53, s 2.2.5(10).
[244]Ex.22, p.57, s 2.2.11(3).
To assist with the question of need, I had the benefit of evidence from two economists; Mr Duane and Mr Brown. They prepared a joint report.[245] There are no points of disagreement recorded in the report.
[245]Ex.6,
It was agreed by Mr Duane and Mr Brown that tourism is a very important contributor to the economy of the Scenic Rim.[246] This was supported by published reports.[247] It was also supported by available research. The research indicated, inter alia, that for the year 2019 (pre-covid): (1) day trippers to Scenic Rim, totalling in excess of 1,200,000 visitors, came from Brisbane, the Gold Coast and the Sunshine Coast; (2) 369,000 visitors (83% of which were from Queensland) to the Scenic Rim stayed overnight, equating to a total of 909,000 nights of accommodation; and (3) 18,000 international visitors to the Scenic Rim stayed overnight, equating to 139,000 nights of accommodation.
[246]Ex.6, para 33.
[247]Ex.6, para 35 and 36.
Map 1 to the joint report identified existing tourist accommodation facilities on Tamborine Mountain.[248] An examination of the map, in conjunction with Table 1 of the same report, reveals there are 59 facilities providing 260 accommodation units/rooms. The type of accommodation varies from motels, apartments, bed and breakfast facilities and cottages.[249] Notably, only 9 of the facilities have full disability access. Two of the facilities have limited disability access to one room only.[250] In total, there is a supply of 40 units suitable for persons with a disability. This accommodation is, however, different to what is proposed.[251] The proposed development, if approved, would be conditioned to ensure it is SDA compliant short-term accommodation under the NDIS. It will service those members of the community who have high physical support needs and have access to NDIS funding.
[248]Ex.6, para 37 and p.15.
[249]Ex.6, para 38.
[250]Ex.6, para 39.
[251]Ex.6, para 39.
The economists examined the demand for, and supply of, accommodation akin to that proposed. A study area was chosen. Unsurprisingly, it is representative of a one hour drive time from Tamborine Mountain.[252] This was an entirely reasonable approach given the substance of the research referred to in paragraph [296]. The research indicates that more than 80% of the domestic demand for overnight accommodation in the Scenic Rim was derived from Brisbane, the Gold Coast and the Sunshine Coast. The first two of these areas are within the one hour drive time selected by the economists.
[252]Ex.6, para 40.
The assessment carried out by Mr Duane and Mr Brown to determine the ‘demand and supply’ balance established the following:
(a)there are about 22,000 NDIS participants in the study area that would be able to access the site;[253]
(b)there is a large and growing population of persons with a disability in the study area;[254]
(c)the number of NDIS participants in parts of the study area is projected to double over the next 10 years;[255]
(d)as at June 2021, there were 178 SDA compliant dwelling units in the study area, not all of which are available for short-term accommodation;[256] and
(e)there are a number of facilities (at least 70 units) that are approved and may be suitable for short-term SDA accommodation in the study area.[257]
[253]Ex.6, para 41.
[254]Ex.6, para 46.
[255]Ex.6, para 42.
[256]Ex.6, para 57.
[257]Ex.6, paras 59 and 60.
Mr Duane and Mr Brown recorded that the NDIS will fund up to 28 days of short-term accommodation per year. Taking the NDIS participants currently in the study area, and assuming a demand of 28 days of short-term accommodation per year per participant, results in 614,700 nights of accommodation.[258] This far exceeds the current supply in the study area, which equates to approximately 36,500 nights of accommodation per year. Both of the experts accepted that not all demand for SDA would be fulfilled within the study area for NDIS participants – it is reasonable to assume there would be outflows and inflows. However, even allowing for this, it did not dissuade Mr Duane and Mr Brown from concluding that the difference between supply and demand indicates there is substantial and ongoing demand for accommodation of the kind proposed.[259] In this regard, they agreed[260]
“it is clear there is substantial and ongoing unmet demand for STA accommodation in the study area and significantly more facilities will be required to meet ongoing demand.”
[258]Ex.6, para 61.
[259]Ex.6, para 66.
[260]Ex.6, para 64.
I accept Mr Duane and Mr Brown’s evidence. It establishes there is currently a limited supply of short-term accommodation to meet the reasonable demands and requirements of people with disabilities. It bespeaks the existence of a need. The need exists today.
The proposed development can meet the identified need in circumstances where: (1) the adopted planning controls recognise that it is Consistent Development in the Zone and Precinct; and (2) an approval would not result in unacceptable impacts on local amenity or character. In such circumstances, it is not difficult to conclude there is considerable public interest in the proposed development being approved to meet the existing need. This factor is supportive of approval.
I pause to observe that the support for approval must be qualified in this case. The economic evidence does not establish that the identified need has a nexus with the site. This impacts on the weight that can be attributed to need in the exercise of the discretion.
The weight to be given to need in the exercise of the discretion is not fixed. It must be examined in the light of a range of considerations, including relevant context provided by the adopted planning controls. In all the circumstances here, I am satisfied that a need has been demonstrated; this factor favours approval and is entitled to weight. However, given the proposed development is Consistent Development in the Zone and Precinct and complies with the planning scheme, need is not a consideration that attracts significant weight. The point of greater significance in the exercise of the discretion is that compliance has been demonstrated with the planning scheme.

Relevant matters favouring refusal

The co-respondents contend the following matters, individually, or cumulatively, favour refusal, namely:[261]
(a)the proposed development is an overdevelopment of the site, with a scale and intensity that is incompatible with the character and amenity of the area and the scenic values and constraints of the site;
(b)the proposed development is inconsistent with reasonable community expectations for development in the area and on the site, as evidence by non-compliance with the planning scheme and the significant quantum of detailed community objections to the proposal;
(c)there is no community, economic or planning need for the proposal that warrants the non-compliance with the planning scheme and the associated impacts of the development;
(d)local infrastructure (to the extent called up by the alleged planning scheme non-compliances) in this location does not support a proposal for non-residential purposes in this location;
(e)the proposed development significantly exceeds the gross floor area per cabin as prescribed by Probable Solution in the planning scheme; and
(f)the expectations of the local community should be given significant weight.
[261]Ex.1, p.8, para 6.
The proposed development complies with the planning scheme. As a consequence, I do not accept the matters stated in subparagraphs (a), (b) and (d); the underlying assumption for subparagraph (c) has not been established; and subparagraph (e) is of no town planning consequence.
With respect to subparagraph (b), Ms Hay and Ms Lockey both drew attention to the fact that no submissions were made in support of approval.[262] This is correct as a statement of fact. It is a relevant consideration in the exercise of the discretion.
[262]Ex.39, p.1, para 2, Ex.30, p.11 and Ex.38.
With respect to subparagraph (f), I accept the proposed development is inconsistent with the community expectations articulated in the submissions and the statements of Ms Hay and Ms Lockey. This is deserving of weight in the exercise of the discretion. However, what is more important than number of submissions is the content of the submissions.[263] The content of the adverse submissions are not based on reasonable expectations, in my view. They also find little support in the technical evidence of the expert witnesses. The submissions are deserving of little weight.
[263]Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750, [34] citing Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPELR 675, [14].
Ms Lockey submitted the proposed development was inconsistent with reasonable local community expectations.[264] This was also addressed in her statement. At paragraph 20, she said this was ‘evidenced by non-compliance with the planning scheme’ and should be given ‘significant weight’. At paragraph 18 of her statement she also said:
“Many features of this development do not align with community expectations for development at this site…The Tamborine Mountain community strongly supports its well established low key semi-rural character and relies on the planning scheme to protect this….”
[264]Ex.38.
This contention reflects what is stated in the adverse public submissions received during the public notification process. It will be taken into account in the exercise of the discretion. For reasons already given, it is a point that attracts little weight.

Exercise of the planning discretion

The proposed development complies with the planning scheme. This factor is entitled to very significant weight in the exercise of the discretion under s 60(3) of the PA.
As I observed in Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793, at [61], ‘one would need strong reasons for refusing an application, which on its face, was consistent with the adopted planning controls’.[265] The reasons that could be said to warrant refusal in the face of planning scheme compliance here are dealt with at paragraphs [305] to [310]. I am satisfied those ‘reasons’ ought not stand in the way of an approval. This is so even assuming the matters discussed in paragraphs [284] to [292] are put to one side to the extent they are not reflected in the assessment against the planning scheme.
[265]Citing Mackay v Brisbane City Council [1992] QPLR 65 at 67.
The proposed development is a meritorious proposal. It: (1) will have no unacceptable impacts on amenity and character; (2) complies with the planning scheme; and (3) will provide appropriate, and modern tourist accommodation, for a part of the community that are not well catered for on Tamborine Mountain. The case for approval is compelling.
The matters that could be said to favour refusal are underwhelming. They are deserving of little weight and, even adopting the most generous view, are devoid of town planning merit. They should not stand in the way of an approval.
In my view, the refusal cases advanced on behalf of Ms Hay and TMPA were so devoid of merit to be groundless and vexing. This was particularly troubling given TMPA, and Ms Lockey, are experienced litigants in this Court. It is not unreasonable, in my view, to expect experienced litigants to be aware of the implied undertaking they give to the Court and other parties under s 10(2) of the Planning & Environment Court Act 2016. Nor is it unreasonable to expect that an entity such as TMPA would appreciate the difference between Specific Outcomes and Probable Solutions in a planning scheme it has sought to uphold in this Court over many years.[266]
[266]For example, Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750, [6] & [54]; Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711, [30]; Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPELR 139, [17]-[19].

Reaching a conclusion that the refusal cases were devoid of merit and, in turn, groundless and vexing is inevitable once it is appreciated that the co-respondents agitated for refusal in the following circumstances:
(a)they did not call expert evidence in support of their respective cases;
(b)they did not cross-examine any witness in the appeal, including experts expressing views that were directly at odds with their refusal cases;
(c)they alleged, and pressed, non-compliance with provisions of the planning scheme that have no application to the site or proposed development;
(d)they maintained non-compliance with many provisions of the planning scheme on the footing that quantitative measures prescribed by Probable Solutions were exceeded, in circumstances where:
(i)the Probable Solutions relied upon do not expressly apply to Impact assessable development; and
(ii)the planning scheme, properly construed, does not suggest that compliance with the TMZC and TCC codes require compliance be demonstrated with Probable Solutions in any event;
(e)written submissions prepared on behalf of TMPA were one page and did not address each provision of the planning scheme with which non-compliance was alleged;
(f)TMPA, through Ms Lockey, led evidence that asserted non-compliance with provisions of the planning scheme that were not identified in the list of issues; and
(g)Ms Hay did not establish how, and in what way, she would be adversely impacted by the development if approved – her interest in the development was not the subject of evidence.
The decision by TMPA and Ms Hay to persist with their refusal cases resulted in a waste of public and private resources. The public resources to which I refer include the resources of the Court.
I am comfortably satisfied the appellant has discharged its onus.

Disposition of the appeal

The superseded planning scheme application will be approved in due course, subject to conditions.
The appeal is listed for review on 13 October 2022.

A

B

CITATION:	SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39
PARTIES:	SDA PROPERTY NOMINEES PTY LTD ACN 634 072 030 ATF SDA HOLDINGS TRUST (appellant) v SCENIC RIM REGIONAL COUNCIL (respondent) and AMANDA HAY (eighth co-respondent by election) and TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC (twentieth co-respondent by election)
FILE NO/S:	2001 of 2021
DIVISION:	Planning and Environment Court
PROCEEDING:	Applicant appeal against deemed refusal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	6 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	13, 14 and 15 September 2022
JUDGE:	Williamson KC DCJ
ORDER:	The appeal is listed for review at 10:00 am on 13 October 2022.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – applicant appeal against deemed refusal of a superseded planning scheme application for short term disability accommodation – whether the development complies with the respondent’s superseded planning scheme – whether the development can be conditioned to comply with the respondent’s superseded planning scheme – whether there is a need for the proposed development – whether there are matters that favour approval or refusal of the application – whether the application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793 Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221 Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750 Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711 Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPELR 139 Harris v Scenic Rim Regional Council (2014) 201 LGERA 12 Mackay v Brisbane City Council [1992] QPLR 65 Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPELR 675 Wilhelm v Logan City Council & Ors [2021] QPELR 1321
LEGISLATION:	Integrated Planning Act 1997, s 1.2.1 Planning Act 2016, ss 3, 45 and 60 Planning and Environment Court Act 2016, ss 10, 43 and 45
COUNSEL:	Mr M Batty and Ms J Bowness for the appellant Mr M McDermott for the respondent Ms A Hay (self-represented) Ms J Lockey for the twentieth co-respondent by election
SOLICITORS:	MacDonnells Law for the appellant King & Company Solicitors for the respondent

Cabin #	Type	Max Height[54]	GFA	Bedrooms
1	B	8.167[55]	188.92	3
2	B	8.39[56]	188.92	3
3	B	8.729[57]	188.92	3
4	B	11.831[58]	188.92	3
5	D	9.317[59]	192.94	3
6	F	9.478[60]	148.72	2
7	F	11.627[61]	148.72	2
8	C	10.526[62]	210.68	3
9	E	10.448[63]	159.53	2
10	F	10.360[64]	148.72	2
11	A	8.889[65]	211.64	3
Central facilities	-	>8.5	253.16	-
Total	-	-	2,229.79	-