Spondor Pty Ltd as trustee for the Gardiner Family Trust v Maroochy Shire Council - [2004] QPEC 72

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Spondor Pty Ltd as trustee for the Gardiner Family Trust v. Maroochy Shire Council & Anor [2004] QPEC 072

PARTIES:

SPONDOR PTY LTD AS TRUSTEE FOR THE GARDINER FAMILY TRUST (Appellant)

v.

MAROOCHY SHIRE COUNCIL (Respondent)

And

FKP CONSTRUCTIONS PTY LTD (Co-Respondent)

DIVISION:

Planning and Environment

PROCEEDING:

Adverse Submitter Appeal

ORIGINATING COURT:

Planning and Environment Court Maroochydore

DELIVERED ON:

12 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18-22 October 2004 (Maroochydore) 25 October 2004 (Brisbane)

JUDGE:

P.D. Robin QC, DCJ

ORDER:

Appeal allowed, but only to the extent of varying approval conditions in minor respects

CATCHWORDS:

Integrated Planning Act 1997 s.3.5.14(2) – whether sufficient planning grounds existed to justify approval of development application relating to golf course land – proposed redevelopment would excise almost two percent (1.011 hectares) to accommodate two buildings rising to 9 storeys to contain 131 apartments – proposed use integrated tourist facility incorporating new buildings and golf course facilities – golf course had its own planning precinct, in which no other uses than “ancillary” ones were intended – no building height limit specified for precinct, but proposal conflicted with requirement that in Planning Area No 1 Maroochydore, heights should fall away from Town Centre Core – what are proper planning grounds to justify approval despite conflict as to height and residential use considered

COUNSEL:

Mr Hinson SC for appellant
Mr Hughes SC for respondent
Mr Gallagher QC with him Mr O’Brien for co-respondent

SOLICITORS:

Clayton Utz for the Appellant
Maroochy Legal Service for the Respondent
Hopgood Ganim for the Co-Respondent

This is an Adverse Submitter Appeal by a neighbouring landowner

“…against the whole of the negotiated decision of the Respondent, Maroochy Shire Council made on 15 March 2004 to grant approval to an application by the co-respondent, FKP Constructions Pty Ltd … on land described as Lot 42 on Strategic Plan 130328, Mungar Street, Maroochydore for a Material Change of Use (Integrated Tourist Facility).”

The development proposed would be upon 1.011 hectares to be excised from Lot 42 as “Lot 43”, the balance becoming Lot 44 with an area of 7.947 hectares. Lot 42 presently forms part of the Horton Park Golf Course at Maroochydore, which also includes Lot 41 (5.467 hectares) and Lot 2 on RP 868296 (39.66 hectares) producing a total area of 54.087 hectares. Reconfiguration and other aspects of the development application, including a preliminary approval for operational works, were not contentious; whether they proceed depends on whether the material change of use continues to be approved.

The site, considered as proposed Lot 43, is a most unusual one. It will be narrow and deep, fitting between an obtuse angle (not far from a straight line) forming part of the northern boundary of the golf course, west of Mungar Street, and (roughly) part of the circumference of a circle of 400 m radius whose centre, off to the north-north west, coincides with that of the Maroochydore Key Regional Centre. The site has narrow ends, and broadens most at the mid-part of its depth. It presently is, and will be, landlocked except for its very short frontage to the western side of Mungar Street, barely adequate to accommodate driveways required. The only other properties on this side are the appellant’s two suburban size blocks where houses are erected. The corner property immediately adjoining them has a Plaza Parade address. Necessarily the buildings proposed by the co-respondent will be set well back from the “street alignment”. There may be relaxations necessary in respect of the inadequate frontage (of the kind apparently permitted in cul-de-sacs). It was not suggested that anything along those lines, or to do with set-backs etc, might stand in the way of the development. Accepting that the Code for Multi-Storey Residential Premises in Volume 4 of the Maroochy Plan 2000 applies, and its Objective of ensuring that such premises “respect the amenity of the surrounding area and maintain the intended role and desired character of the precinct in which they are situated”, the only effect of its provisions is to reinforce provisions elsewhere in the Plan which have to be considered in this appeal.

Integrated Tourist Facility Or Not?

The Preliminary Issue

In Spondor Pty Ltd v.Maroochy Shire Council & FKP Constructions Pty Ltd [2004] QPEC 38 (20 August 2004), his Honour Judge Dodds determined against the appellant an issue regarding whether the development application had properly characterised the proposed development as an “integrated tourist facility” and a further issue under s.3.2.1(3)(ii) of the Integrated Planning Act 1997 (IPA) as to whether the written consent of the owner of the land, Horton Park Golf Club Maroochydore Inc (an association incorporated under the Associations Incorporation Act 1981) was properly provided. There has been no appeal against those determinations. As to the former question, his Honour noted that the development “could be characterised as multiple dwelling units” (as the appellant contended it should be), or as a motel. He said:

“[29] Differing views about these definitions were expressed by several town planners who gave evidence. The point of this for the appellant was to have the court conclude the public notification requirements of IPA were not complied with and the overturning of the respondent’s approval of the application.
[30] I thought the evidence of Mr Brown on the topic made sense. Another town planner Mr Reynold’s, research into other existing golf oriented integrated tourist resorts provided information about how such concepts are managed elsewhere. When it all boils down, I think the application, which included the supporting material which was lodged with the respondent, was one which could properly (or reasonably) be considered for approval of an integrated tourist facility. Part of the overlying intention of both FKP and the club disclosed in the application and supporting material was to use the development to attract accommodate and entertain holiday makers who could marry a holiday on the Sunshine Coast with lots of golf at their doorstep. Moreover what was proposed did not offend, rather was capable of being within the terms of the other criteria of the definition.
[31] More to the point the public notification described the proposal as “Material change of use – Integrated Tourist Resort and for the reconfiguration of Lot (minor urban subdivision)”. I am unable to see how any interested person could have been affected in understanding the potential for the intensity of the use being proposed, the full detail of which could be seen at the respondent’s offices.
[32] As the Court of Appeal and this court has noticed on a number of occasions, the current legislation’s focus is on an interested person being able to search and consider the full details of such a proposal.
…
In my opinion there was nothing misleading by commission or omission in the description in the public notification in this case. A description of multiple dwelling units for instance was no more likely to alert interest persons to investigate the detail of the proposal than the description which was in fact provided.
[33] I add that if it were necessary to do so I would apply the provisions of Section 4.1.5A IPA. I am satisfied the preliminary legal issues raised by the appellant are not such that the appeal should be allowed on either basis.”

It seems clear that the characterisation of the proposal finally adopted (and applied for) was not that indicated in “pre-lodgement” discussions had with the Council, and that its adoption, presumably in accordance with the Council’s suggestion, was opportunistic. The proposal is for two (to comply with the definitional requirement for an integrated tourist facility that there be more than one building) nine storey buildings containing a total of 131 units (35 having three bedrooms, 96 having two bedrooms) with car parking facilities for 223 vehicles (190 in a basement car park), also for service vehicles. The buildings, to be placed end to end (so that from some viewpoints they will present as a single long building, one end of which is 180 metres from the other), will each be stepped at both ends, where they will reduce to four or five storeys. The maximum height will be 25 metres. Judge Dodds’ reasons set out in para. [25] the relevant “use definition” from s.3.3 of the Maroochy Plan 2000 (Volume 1):

“integrated tourist facility means premises which:

- (a) are used primarily for facilities and activities which attract
accommodate and entertain tourists where some facilities are open
to public use; and

- (b) are on a land extensive site; and

- (c) include two or more building; and

- (d) are developed in an integrated way; and

- (e) may include provision for conference facilities and for permanent

residential accommodation

The term includes integrated resorts, tourist theme parks and the like.”

The buildings will incorporate a reception area and (in a location not shown on the plan) a gymnasium. There will be an outdoor swimming pool in landscaped grounds to the north of the buildings, and a large artificial lake straddling the boundary between Lots 43 and 44.

The Council relaxed its original higher demand to one that the proposed buildings be used at least 55% for tourist accommodation. It is difficult to imagine how such a restriction can be practically enforced, given that the units proposed will be sold to individual owners. The evidence strongly suggests that there will be ample tourist demand, so that, if there is a problem, it will be one of owners wishing to enjoy the pleasant amenity of accommodation overlooking the golf course for themselves, rather than make it available for tourist use. Whether or not the clubhouse on the golf course is viewed as a third building, it seems that Lot 43 with its two accommodation buildings and the golf course with its facilities must be turned to to meet the elements of the definition. Public use will be limited to the golf course (in practical terms would-be golfers will be limited to week days and Sunday afternoons). Golf club members (limited to about 1400 playing numbers) will have the use of the gymnasium facilities to be provided in the as yet unspecified location in the new buildings (where the court was told parking facilities for golf carts will be incorporated as well). The golf club may acquire the management rights for the new buildings; it appears to have some kind of right of first refusal. Any conference facilities will be located in a new club house, such as are available in the present one being of a standard which is unlikely to attract much patronage from the conference market. Occupants of the new buildings will have freedom of access to the 18 hole golf course (but will have to pay for a game if they can get one). There will be no barriers to prevent movement between the golf course and the new buildings. Of course, one cannot say whether any future body corporate(s) might not require some boundary fencing, or fencing elsewhere. Much of the common boundary will pass through the proposed lake.

The circumstances stated above explain why there has been room for argument as to whether there truly will be an integrated tourist facility rather than (as the appellant maintains) two large blocks of flats next to the golf course. The appellant’s expert town planner, Mr Schomburgk, and landscape architect, Mr Chenoweth, both frankly conceded they felt difficulty in accepting Judge Dodds’ ruling. It plainly binds the parties in this appeal.

Mr Hinson SC, Counsel for the appellant, accepted as much, but made the following submission:

“The proposal barely qualifies as an “integrated tourist facility” as defined. In terms of paragraph (a) of that definition, condition 2 of the Council’s approval sets a low threshold (55 per cent) for tourist accommodation. There is nothing in the proposal which consists of “facilities and activities” which “attract … and entertain tourists”. There are no facilities open to public use. Condition 2 refers only to the gymnasium (not shown on the plans) and limits its use to occupants of the residential buildings and patrons and members of the “Golf Course” (presumably the Golf Club). Use of the gymnasium by the general public is expressly forbidden.
The Golf Club has intentions to offer its proposed facilities (not the subject of the application) and use of the golf course to occupants. No condition of approval requires that. The Club is not the applicant for approval. There is no enforceable mechanism which mandates any relationship between the Club and occupants of the buildings. The applicant’s case is that circumstances have changed and the planning scheme has not kept up to date with those changes. At the same time, it says, in effect, that the Court should assume that the Club (not a party to the appeal) will implement its stated intentions about access to and use of the golf course land (not the subject of the application) and to assume that there will be no future change of intention.
Mr Reynolds’ approach (T 133) was that the “integrated tourist facility” is the subject proposal plus the golf course. What was applied for and approved is two residential buildings. Nothing in the approval prevents those buildings operating as a separate and independent development, divorced from any connection with the golf course and the Club other than the requirement that a gymnasium be provided for use by patrons and members of the Club.
In terms of paragraph (b) of the definition, an area of 1.011 hectares scarcely qualifies as a “land extensive site”. In terms of paragraph (d), the premises (proposed Lot 43) are to be developed in an integrated way in the sense that the premises are a single development. Nothing in the Council’s approval requires integration with the golf course land or uses conducted on that land. In terms of paragraph (e), the development on proposed Lot 43 does not include provision for conference facilities. It does include, and condition 2 permits, the permanent residential occupation of 45 per cent or 59 units out of the 131 units.”

His argument was that the problematic characterisation of the proposed use demanded severe discounting of any planning ground based on that use relied upon to justify approval of the development application notwithstanding conflict with Maroochy Plan 2000 to the extent permitted by s.3.5.14(2) of the IPA. (Compare the non-mandatory language of s.3.5.13 (4) – the present application requires impact assessment.)

Notwithstanding that the Council approved (and continues to support) the development application, it is for the co-respondent to establish that the appeal should be dismissed: s.4.1.50 (2). The co-respondent’s task does not extend to establishing again that the material change of use relates to an integrated tourist facility. That such is a proper description of the proposal is res judicata. Mr Reynolds’ approach, I think, is necessarily the one that was taken.

While the appellant is able to point to respects in which the proposal might turn out not to operate as an integrated tourist facility, essentially because co-operation with the golf club breaks down, the present are not circumstances in which the court entertains serious misgivings about the future. All indications are that the proposal would be highly successful as a tourist and golf focused venture. I would expect future lot owners to be promoting the relationship with the golf course rather than not promoting it. Successful marketing to potential owners will depend on showing that the relationship can be expected to last; those who become owners are likely to vigorously defend the relationship, and their outlook over the golf course.

Maroochy Plan 2000 divides the Shire of Maroochy into 30 planning areas, of which Planning Area 1 is Maroochydore. Like the other planning areas, it is divided into Precincts (28 of them) in the Plan. Volume 3, 3.1.4 contains “Statements of Desired Precinct Character”. The first five Precincts are:

“1. Traditional Town Centre
2.Maroochydore Central Office Precinct
3.Sunshine Plaza
4.Maroochydore Centre Waterfront
5.Maroochydore Centre Frame.”

The last is assigned the Precinct Class of Town Centre Frame (like other precincts, such as Aerodrome Road and two parts of a large vacant parcel of land traditionally referred to as “Wise’s Farm”, namely (7) Cultural/Office and (8) Mixed-Use Commercial and Residential). The first four precincts are all assigned to Town Centre Core. The desired precinct character of the golf course, which is the only land in Precinct 12 (Precinct Class = Special Purpose) is extraordinarily brief:

“Intent
This precinct is occupied by the Maroochydore Golf Course and ancillary facilities. It is intended that this precinct continue to be used for this purpose.
A transit corridor may also be located within this precinct, on a portion of land running parallel to the proposed Southern Access Road.
Preferred and Acceptable Uses
The preferred use for the precinct is a golf course, including the existing clubhouse. Minor extensions to buildings and ancillary uses that do not impact upon the existing character or amenity of the golf course and surrounding development, may also be provided.
Landscape and Built Form
The current open space and landscape character of the golf course is to be maintained.”

Typically, the Statements of Desired Precinct Character incorporate height limits for building. There is none for Precinct 12, nor for Precinct 21 - Maroochy River Esplanade, nor Precinct 28 – Sunshine Motor Way Significant Vegetation. All of these three precincts are in the Special Purpose Class. Precinct 21 is already public land. Precinct 28 may well be, too. The failure to state height limits for buildings may mean there is no height limit (subject to the general Design Intent for the planning area in 3.1.3(2) (f) which is:

“The built form of the Town Centre Core will convey a sense of ‘central place’ and intensity, with buildings up to 10 storeys (but no more than 40m in height envisaged in parts of the Core. The surrounding Town Centre Frame and Periphery will support buildings of a lesser height and intensity.”)

The likelihood is that the planners who drafted Maroochy Plan 2000 did not contemplate that there would be any building. Also, I think the likelihood is that, so far as Precinct 12 is concerned, at any rate, they did not contemplate any new uses, but simply recorded what the historical use had been, assuming that it would continue. That is arguably a curious approach to take towards privately owned land. On the other hand, it would not be expected that the land would cease to be used for golf. (The Council may harbour hopes that the golf course may come into the public domain: see s.11 of the Strategic Plan, set out in [19] below.)

The Horton Park Golf Club

There was no occasion in the appeal to inquire behind the common assumption that the land is privately owned. The golf club arose from a generous gift of Robert Ernest Horton who, according to the club history, in 1930 donated 13.6 hectares of land “to the people of Maroochydore to be used for playing golf or other sporting purposes”. There was a Nomination of Trustees. It proved impracticable to establish a golf course, largely because of the small local population. Two decades passed before a keen golfer, Mr W (Bill) Coffey, learned of the existence of the Deed of Trust which had been lodged in the ES&A Bank and set in train events which led to the establishment of the Horton Park Golf Club, whose inaugural meeting was held on 15 June 1950. A huge amount of work had to be done to establish the golf course and some club facilities; a shed and an outhouse were purchased and erected in 1952. At the 1955 AGM (when the membership stood at 41, plus 28 associates, two country members and one country associate), those attending were “offered the choice of continuing the hard, slow task of building their own club or to join in with the new club at Buderim. The vote resulted in 21 to stay at Horton Park and one against.” Things then moved more quickly: “In February 1956 approval was sought from the QGU to declare the course fit to play and in May 1956 Mr M R Hornibrook, President of the QGU, officially opened the course”.

During the hearing of the appeal, some consideration was given to the present viability of the club. Suggestions were committed to paper by the club (HPGC) that:

“The probable consequences of a rejection by Council of the FKP proposal are:-
• HPGC would have no option but to pick up discussions on offers made by major national developers to acquire the Club’s existing land in exchange for a new 36 hole Course (ie twice our existing size) and Clubhouse out of the city centre. (Refer CONFIDENTIAL correspondence previously provided separately to the Council’s Planning Manager).
• Should a modified approval be given such that the Club could not afford to carry out all of the works detailed above then the Club would need to investigate further as to whether the cut back on funds was sufficient to jeopardize the long term tenure at the existing site. On current estimates any reduction below the income received from the proposed 130 unit facility is likely to seriously jeopardize that long term viability.”

The Club appeared by Counsel (Mr Everson) to resist the production of documents including the “confidential correspondence”, which the appellant subpoenaed. On the basis that the appellant seemed to face an “in terrorem argument” that the golf club and golf course might be lost if the development application did not go ahead, the court let the subpoena stand. An order of the kind made in Ex parte Fielder Gillespie Ltd (1984) 2 Qd.R. 339 was made, limiting access to the subpoenaed documents to Mr Hinson and the appellant’s solicitor on the record.

The club’s membership of nearly 1400 are a diverse group, mainly local people, a good many of them members of many years’ standing. Membership fees (and charges levied on non-members who get the opportunity play the course) have been held to modest levels, far below rates charged at some other golf courses in Queensland, of which the court was told. While it was open to the appellant to suggest that the club embrace the “user pays” principle, increasing charges towards market levels and/or borrowing to finance replacement of the clubhouse and improvement of the course, the membership, as a whole, are averse to that. The membership doubtless includes retired people on fixed incomes who might encounter difficulty in meeting increased exactions.

The golf course occupies prime land in the heart of Maroochydore. It is only to be expected that developers would be interested in it, and that enticements to the club to relocate elsewhere, of the kind alluded to in the club’s letter, will be forthcoming from time to time and attract serious consideration. Of course, there are planning hurdles to be surmounted before the golf course land as a whole could become available for development, but there may be developers prepared to take the risk. If the land is privately owned, as appears to be the case, there is nothing to prevent the club’s selling it and/or ceasing to operate a golf course there. It is a matter of speculation whether anything remains of the trust established by Mr Horton which might preclude the sale for development of the trust land. Over the years, additional land has been acquired for expansion of the course, and some land has been sold off. Restrictions flowing from the trust, if any, probably relate only to the land Mr Horton donated. The club has been spared exposure to the potentially heavy liability for rates and taxes which the site might attract. According to Mr Nicholson, the director of finance, this depends upon its not-for-profit or “charitable” status.

What Uses Are Contemplated For Precinct 12?

Is the Integrated Tourist Facility an Ancillary Use?

Mr Hinson’s written submissions set out above go on to assert that the proposed use is not an ancillary use for the purposes of the Recreation designation and the Statement of Desired Precinct Character for Precinct 12. Requiring ancillary use to be “minor” is not justified, in my view. In Strategic Plan mapping, the site, like other local golf courses, in particular Headland Golf Course at Buderim and the Coolum Golf Course, which lack the distinction of constituting a precinct in their own right, is included in the Preferred Dominant Land Use of Recreation. The Strategic Plan (Vol 2) offers the following explanation of the open space and recreation designation:

“11.1 Explanation
“Open Space and Recreation” refers to the system of public and private land and facilities as well as coastal areas and waterways. These areas can have nature conservation, environmental, scientific, social, recreational, cultural, spiritual, scenic, health and economic benefit for the community, both now and in the future. It excludes entertainment areas such as cinemas and video game parlours. Outdoor Recreation includes sustainable nature based recreation and will be ecologically sustainable and accessible for enjoyment of local, district, regional, national and international visitors. It will involve land which is or ultimately may be in public ownership as part of the recreation and conservation resources of the Shire, or which may be in private ownership, but because of its recognised contribution to recreation, conservation, biodiversity or landscape and amenity should be managed and protected using various statutory or voluntary mechanisms.”

Section 11.4.1 relating to recreation explains that “The preferred dominant land use of ‘Recreation’ has been attributed to existing and proposed major recreational facilities recognising their potential for establishment and/or expansion, and the need to protect the resources from the encroachment of incompatible land uses. It is intended that the extension of the existing recreational use or the establishment of an appropriate new recreational use as well as a range of ancillary uses are likely to be permitted, having regard o its impact on existing land uses in the surrounding area.” Section 11.5.3 emphasises the need to protect existing open space and recreational facilities which are “important community resources” and that in the case of “large sporting fields and other recreational facilities … shown on the Strategic Plan Map … it is important to recognise existing facilities, to plan for their continued development and to protect them from potential conflict with incompatible uses.”

Volume 1 of Maroochy Plan 2000 in 3.3 provides Use Definitions, including:

“Recreational Uses
“Sport and Recreational use” means use or intended use for a public park or for either of the following purposes (see Figure 3.5);
“Indoor recreation” means the use of premises for any sporting or other recreational activity or leisure pastime which is conducted wholly or mainly indoors. The term includes such typical premises as theatres, cinemas, nightclubs, amusement centres, licensed and unlicensed clubs, indoor sports centres, gyms and the like (including other premises having more than two pinball or electronic game machines). The term does not include a clubhouse or ancillary building used in association with an Outdoor recreation or public park, or an Hotel;
“Outdoor recreation” means the use of premises for any sporting or recreational activity, or other leisure pastime, which his conducted wholly or mainly outdoors. The term includes such typical premises as showgrounds, (outdoor) public swimming pools, drive-in theatres, race tracks, golf courses and driving ranges, outdoor courts and sportsgrounds, and the like. The term also includes the provision of clubhouse and other ancillary facilities, but does not include a public park.
“Park” means the use of premises for the purpose of parks and gardens open to the public. The term includes associated ancillary buildings or structures, including a picnic area, playground equipment, amenities block and the like. The term does not include an Indoor recreation, outdoor recreation or Special use as separately defined.”

which is proceeded by 3.2 – Administrative Definitions, including the following:

“Ancillary activity” refers to a subordinate activity which is associated with the main activity on the site.”

The Plan exhibits little rigour in the use of defined terms. Thus, the adjective “ancillary” is found qualifying nouns such as buildings, facilities and uses, rather than its partner in the definition. It was common ground among the parties (and I agree) that such a definition may be taken as indicating the meaning to be attributed to “ancillary”, for example, in any context. This particular definition may seem more consistent with the Australian Concise Oxford Dictionary’s meaning of “subservient, subordinate”, than with the Macquarie Concise Dictionary’s “accessory; auxiliary”. The latter defines the noun use as “an accessory, subsidiary or helping thing or person”. I find no indication in the Plan that the idea of something “incidental to and necessarily associated with” some use of relevant land, as referred to in the definition of “use” in Schedule 10 of the IPA, and its predecessor in s.1.4 of the Local Government (Planning and Environment) Act 1990, considered in Boral Resources (Qld) Pty Ltd v. Cairns City Council (1996) 91 LGERA 323 forms any part of the Plan’s concept of what is “ancillary”. The concept of ancillary uses of land occurs only once in the IPA in s.2.6.4 in the special context of designation of land for community infrastructure. The defined term ‘ancillary works and encroachments’ is used in various places, and ‘ancillary drainage’ is mentioned by way of an example of a condition which a State infrastructure provider may impose under s.5.1.28 (2). The IPA provides no guidance as to the meaning of ‘ancillary’ where used in Maroochy Plan 2000.

I was intrigued at the lack of enthusiasm among the planning experts who gave evidence for taking up the prospect of characterising what is proposed as ancillary to the existing use. As Mr Reynolds, the expert called by the developer said at p.110 of the transcript:

“I don’t see this proposal in terms of being an ancillary use. I see this proposal in terms of a whole in that the resort, the integrated tourist facility which, effectively, is a golf resort, will comprise the resort accommodation which are these buildings and the resort course being the existing Maroochydore Golf Club course, and I see them as one and the same. They’re part of one another. They’re integrated. So, in that way, I don’t see these buildings as ancillary to the course. They’re really part of the course. They’re part of an expansion of the course.”

It is worth setting out Mr Hinson’s next questions, and Mr Reynolds’ responses:

“Can you tell me what is the extent of integration between this proposal and the golf course? What does it consist of? -- Yeah. Firstly, the siting of the buildings are within the course and sited in a way that one must – if you go down Mungar Street and at the moment, you turn left to go to the clubhouse. Right at that same point where you turn to go to the clubhouse, there will be the turn into this resort accommodation. And what that does is a couple of things. Number 1 is that the buildings themselves will be within the course, looking over the course and the course from nearby will have a view back to those buildings. Secondly, there’s no separate street frontage to those buildings. They won’t have a street address in a traditional sense. They will, in effect, be accessed through the golf course. Now, further to that, there is a lake which is proposed on the southern side of the buildings and the intention of that is to integrate the landscape of the golf course right through and up to the buildings so that the buildings are even more so seen to be part of the golf course landscape. The building itself includes certain facilities. It includes buggy storage in the basement level. It includes a dedicated reception and porte-chchere type of arrangement which would facilitate people being able to make bookings, inquiries and so on about the golf course from within their residential apartment. It’s not an apartment building without a front office. And when one leaves this – when a visitor leaves this building, they don’t have to go out onto the public street network. They can walk straight to the first tee or over to the clubhouse on a dedicated pathway which is actually within the golf course. That’s an example of how it is integrated.
When you said it’s within the course, of course, this area will be created as a separate title?-- Yes. But I, as I said yesterday, I don’t see that that is material. I have looked at the tenure arrangements for tourists resorts, including golf courses in Queensland and every one of them has a similar arrangement.”

The appellant’s suspicious attitude towards the vaunted “integration” is understandable. Other aspects explored included the uncertainty affecting the prospect of the club’s actually taking up management rights (which would be entrusted to person(s) suitably qualified to provide day-to-day management).

Doubt would be fuelled by the “separate title” situation. The court was not favoured with the detail of Mr Reynolds’ researches. The risk of diverse ownership frustrating Mr Reynolds’ expectations in the event is obviously there. However, logically, there is no basis for requiring ownership to be integrated as a condition of there being an integrated tourist facility. The court harbours sufficient concern to invite the parties (collectively or individually) to suggest approval conditions which might be both practical and likely to generate more assurance than exists presently that integration will occur, and continue. To the extent Judge Dodds’ decision may leave the matter open, the court is not minded to allow the appeal on the basis that the co-respondent (which bears the onus) has failed to show that there will be integration under the present set of conditions – which is not to say they cannot be improved on.

I speculated during the appeal hearing that something along the lines of a University of Golf, perhaps a campus of the Australian Institute of Sport, might be established at Horton Park Golf Course, including teaching, administrative and residential facilities for students in buildings of the dimensions proposed here – which might qualify as “ancillary” under the Plan[1]. It was suggested that large buildings dedicated to the accommodation of golfers wanting to play the course would also qualify.
[1]Subsequent researches led to the Victoria University Golf Program at which uses seven identified courses in or outside Melbourne (two golf clubs and one (in each case) Lakes, Public Course, Country Club, Links and Resort. According to the website: “The Bachelor of Applied Science – Sport Science (Golf) has been developed to meet the needs of the golf industry both within Australia and internationally. It is suitable for those students interested in both professional golf playing and coaching. It is the only degree in the world that offers skills related to the science of golf as well as practical skills and coaching to improve individual performance. The course is a joint program run by the TAFE and higher education divisions of Victoria University.”

Mr Schomburgk included the Council officer’s report on the development application in his own report (prepared for the appellant) as Annexure 2. At p.12 of 46, the officer wrote:

“In relation to the current proposal it is considered that the key element of the statement contained in Maroochy Plan 2000 regarding preferred and acceptable uses is that Maroochy Plan 2000 does contemplate ancillary uses on the subject land, which do not impact upon the existing character of amenity or the golf course and surrounding development.
It is, therefore, considered that an Integrated Tourist Facility, which integrates with the use of the golf course with accommodation facilities, and which does not impact upon the existing character or amenity of the golf course and surrounding development, may be regarded as an ancillary use.
The question whether the actual development proposed by the Applicant complies with the above stated criteria, is assessed in subsequent sections of this Report.”

I find myself in agreement with the Council officer. The conclusion regarding ‘ancillary use’ does not determine the outcome of the appeal, for, as the officer recognised, other issues had to be considered, in respect of one of which (height) the proposal was considered unacceptable. The exercise envisaged by s.3.5.14(2) must still be undertaken in the circumstances, as it was by Mr Schomburgk and Mr Brown, the planning expert called by the Council, the two of them reaching contrary opinions in the end. That the proposed use which undoubtedly is a “material change of use” for purposes of the definition in s.1.3.5 of the IPA under (a) and/or (c) qualifies as ‘ancillary’ would count as a planning ground for purposes of s.3.5.14. That apart, it is a feature of the IPA regime that ‘nothing is prohibited’ (an expression used several times during the appeal), everything, in a context such as the present, depending upon assessment of impacts of a proposal. See IPA s.6.1.2 (3) and s.6.1.9 (3A).

Another respect in which the Council officer’s views are endorsed by the court is the inappropriateness of an argument here that the Maroochy Plan 2000 has been overtaken by events. The argument had been made that the planning arrangements jeopardised the continuation of the Horton Park Golf Course in some way, if development approval were refused, or if they precluded the necessary construction of a new clubhouse. The evidence does not support the first contention. I consider it would be an unreasonable interpretation of the Plan to construe it as precluding construction of a new clubhouse by its reference to the “existing clubhouse. Minor extensions”. There is nothing to show that the planning intent for Precinct 12 cannot be achieved. That the drafters of the Plan may have regarded something like the present development proposal as a very good idea, had they turned their minds to it, does not mean the Plan is somehow inappropriate or obsolete.

Proposal’s Impacts on Character/Amenity of Golf Course/Surrounds

The indicated condition for provision of ancillary uses in Precinct 12 is that they do not impact upon the existing character or amenity of the golf course and surrounding development. This is replicated in the Code for Multi-Storey Residential Premises. It was common ground that the digital photo montages prepared by Mark Elliott (to be found in Exhibit 8) reliably illustrated the visual/amenity impact of the proposed buildings, as they would be appreciated from various locations, and did so more accurately than some earlier equivalents prepared by others. I am of the view that there is nothing unacceptable in the changes illustrated from the point of view of visual impact. There does not appear to be any adverse impact on existing character or amenity. So far as the golf course is concerned, the appearance of the proposed buildings located on the periphery behind an extensive lake with the appearance of being integrated with the golf course will be an improvement, replacing a backdrop of the rear walls of quite undistinguished two storey buildings with something more dramatic and visually appealing, large, but nowhere near large enough to dominate views enjoyed by persons anywhere on the course.

The appellant owns No. 3 Mungar Street, the northern neighbour of proposed Lot 43 at the eastern end (where a two storey house also used as an office is erected) and No. 5 Mungar Street, adjacent to No. 3, where there is a vacant single story house. Mr Elliott’s work does not show impact on views from the appellant’s properties or other adjoining properties. These are located in Plaza Parade (north of the golf course), Carnaby Street (to the west), Dalton Drive (to the south) and Maud Street (to the east). The Plan has some relevant things to say. Dalton Drive is the name of Precinct 13, the Intent for which states:

“This precinct enjoys views across the Maroochydore Golf Course and attractive lagoons. Some of the precinct has recently been developed for medium density housing. Future development should also comprise medium density housing which maintains a high standard of architectural and landscape design and takes advantage of views over the neighbouring open spaces …”.

Expanding on the theme, it is provided under “Landscape and Built Form”:

“New premises should be low to medium rise and contribute to a high standard of residential amenity. A variety of architectural expression should be encouraged within the ‘Sunshine Coast style’ and consistent with the gateway position. Development sites should incorporate extensive and attractive landscaping which complements the formal character of Dalton Drive and the informal landscapes of the adjacent lagoons and Golf Course.
…
A range of building heights between 2 to 4 storeys is anticipated in the precinct. A primary consideration for building heights is in reducing the apparent massing when viewed from outside of the site, in particular from the golf course. Accordingly, buildings will be designed to step upwards from the north and eastern boundaries with heights then reducing towards the extension of Dalton Drive. Spacing between buildings and interesting roof forms will assist in breaking down the visual bulk of the development and positively responding to the visual exposure of the site when viewed both from the golf club and adjacent existing and planned major transport routes.

Within the Dalton Drive Precinct, building heights immediately adjacent to the golf course are generally lower than elsewhere. There is a determined attempt to protect the visual amenity of the golf course. Likewise, in my opinion, the Plan envisages preservation of the open amenity of the golf course for the benefit of the amenity of Precinct 13. Proposed Lot 43 is as remote from Precinct 13 as it could be. The proposed buildings will have no adverse impact there. If they were to be located close to Precinct 13, there may be insurmountable difficulties in satisfying s. 3.5.14(2)(b) of the IPA: cf Mantle Pty Ltd v. Maroochy Shire Council [2002] QPEC 247.

So far as the proposal’s impact on existing character or amenity of surrounding development otherwise is concerned, the Plan’s focus is on protecting the amenity of the golf course. The more southerly section of Maud Street is Precinct 16 Maroochydore Residential, the Intent for which notes “pockets of more recent housing which display more contemporary building and landscaping styles, for example, the housing located adjacent to the Golf Course”; it states that “existing residences with frontage to Maud Street … have potential for low scale professional offices due to road exposure and low residential amenity”, so that Preferred and Acceptable Uses include “the provision of low scale offices on residential property with frontage to Maud Street … where they maintain a residential amenity and appearance”. This Precinct has building height limits of two storeys (but not more than 8.5 metres). The Maud Street development, which is obviously increasingly commercial, appears not to seek to take any advantage of the exposure to the golf course (from which it is separated by a bike path, screened by trees). The praised “recent housing” further to the south is remote from proposed Lot 43. There would be nothing untoward about the prospect of the proposed buildings viewed across the golf course.

The more northerly section of Maud Street falls within Precinct 6 Aerodrome Road. This precinct is seen as a gateway entry to Maroochydore, but “never consciously … developed as a gateway, resulting in uncoordinated building form and signage, which is compounded by traffic conflicts”. The golf course is not mentioned. The maximum building height limit for all premises is three storeys (but not more than 12 metres). The development on the western side of Maud Street effectively conceals the existence of the golf course, aided by the distractions of coping with the traffic there.

Precinct 5 borders the Town Centre Core (Sunshine Plaza) on the west and the Traditional Town Centre on the northwest. In the south, it borders Sunshine Plaza, accommodating the busy thoroughfare of Plaza Parade, which divides the Precincts. Proposed Lot 43 is located at what was described as a “waist” where the only privately owned land (neighbour to Lot 43) is owned by Mr Ryan, or entities associated with him. In advance of the notification period (so that it was not treated as one of the submissions collected by the Council in Exhibit 15), he sent the Council Exhibit 20, a letter strongly supportive of the proposed development. As he noted, the southern sides of his buildings have been constructed without an outlook over the golf course, with the exception of a balcony at the back of his office. He noted that the proposed buildings had been separated by a 10 metre gap in order to allow a vista from that balcony in the direction of the golf course. He thought the tiered silhouette of the proposed buildings “attractive” and serving to reduce bulk. He supported taller rather than squatter buildings, on the basis they would reduce the building footprint and secure a wider landscaped setback across his southern boundary. He referred to arrangements in place for a public access linking the proposed development and Plaza Parade located between his buildings and aligned with the 10 metre gap, at the narrowest point of the “waist”. His buildings are used for commercial and professional purposes, incorporating among other uses a significant medical centre and a couple of large surfing-related retail outlets. Of the pedestrian access referred to, he noted that it “certainly needs upgrading and will provide additional foot traffic past our business. This will make our area a more vibrant part of town”. Mr Ryan’s eastern neighbour is a block of four flats facing Plaza Parade, from the rear of which advantage can be (and is) taken of the outlook across the golf course. No submission associated with those flats was forthcoming. It seems unlikely that residential use of that site has any long term future. The parcel of land next to the east is owned by GJ and EM Robinson. They own the adjoining parcel immediately to the east as well; it is on the corner of Plaza Parade and Mungar Street where it has a common boundary with the appellant’s No. 5 Mungar Street. Exhibit 15 contains an adverse submission from Mr Greg Robinson quoting heavily from the Intent for Precinct 12 and identifying conflict with the Plan. No assertion is made that loss of or separation from open space would affect the Robinson land or any use of it adversely. Specific mention is made of another circumstance which would:

“Apart from the obvious statutory considerations which demand refusal of this application there are unresolved matters surrounding future roadworks in this area (west of Mungar Street to Carnaby Street). We have dedicated land for road widening in this area to the Plaza 2 road widening option which allowed for a road providing rear access to all properties fronting Plaza Parade. The current proposal renders provision of this rear access impossible and to avoid consequentially breaching a Consent Order of the Planning and Environment Court must be refused.”

Although the court raised the possibility that this particular consideration might be looked into, no party sought to adduce any evidence about it. Therefore, it cannot be treated as having any relevance in the appeal, in which the Robinsons chose to play no part. The buildings on their parcels have been demolished, and vegetation shown in aerial photographs removed. Approval has been or is being obtained for the construction of a single storey commercial development facing Plaza Parade, which one would think is necessarily in the nature of a “holding development”, turning the land to useful account pending identification of some suitable long term development. The present proposal hardly takes advantage of proximity to the golf course, the land immediately adjacent being devoted to car parking.

While the Notice of Appeal alludes to current residential use of the appellant’s properties, (the full extent of it now appears to be some occasional residential use of No 3, incidental to its principal use as an office), and correctly notes that each property has potential for re-development, including for residential uses, according to the evidence of the planners, which is surely correct, the principal future use will be commercial, taking advantage of the Plaza Parade location, as has happened to the west and to the east, across Mungar Street. There is no evidence of any desire by the appellant to increase or even continue residential use. For the moment, the two storey building at No. 3 and a shed behind that building deprive No. 5 of any real view of the golf course. The proposed buildings will be constructed well back from Mungar Street and, except for a small part of a porte cochere, behind the boundary of the appellant’s property. While “sweeping views over the driving range and golf course” will be cut off to the south west, for the most part the equivalent views to the south and southeast will be retained.

Across Mungar Street is a long two storey commercial building used at least largely for television purposes. It turns its back on the golf course, facing Plaza Parade. The land at the rear is a large car park, separated from the golf course by an extension of Mungar Street where it makes a right angled turn to the east, to provide access to the golf course and clubhouse. Such access was formerly via Golf Street from Plaza Parade. For traffic management reasons, presumably, Golf Street, located immediately to the east of the television building, which used to provide the access to Plaza Parade, has been closed off. There is no other access to the course. The Council resumed golf course land for the purposes of extending Mungar Street. Attention in the appeal more than once turned to the “sacrifice of 10,000 m² of land and its sale” to ensure the viability of the golf course and its continuing to be a “green lung” for Maroochydore and an invaluable location for native trees and other flora, likewise “wildlife habitats” (to quote Mr Morse’s submission). It is a commentary on modern circumstances that the pillaging of a substantial area of the golf course land for roadworks has occurred very recently; moreover, the one new use for Precinct 12 clearly contemplated by the Plan is a “transit corridor”. (At the time of the appeal it was thought that the corridor will be located on other land.)

The only other property in the vicinity mentioned during the appeal whose amenity might be affected by the proposal was a block of flats across Plaza Parade from the television building. Mr Elliott’s Figures 8 and 9 give relevant before and after views. It is true that an impression of open space behind buildings across Plaza Parade will be lost, to be replaced by a backdrop of two large buildings rising behind other development (all observed across a large and busy signalised intersection). The most dominating feature of that view will be the Robinsons’ new commercial building on the corner diagonally opposite. That will block the view of the new buildings in much the same way as Mr Ryan’s slightly taller buildings depicted in Figure 11. No concern was or could be expressed about Sunshine Plaza itself, which determinedly turns its back to Plaza Parade, presenting a blank façade (which, unlike the back wall of the Maroochydore Court House facing Horton Parade, escaped criticism during the appeal).

The Plan Statement regarding this area of Precinct 5 seeks establishment of offices, shops, art and craft centres, fast food stores and restaurants, particularly at ground level, also “stand alone car parks … where they are designed to resemble the appearance of an office building”. It was said there may be some prospect of residential development above the commercial uses. Special provision is made for the Carnaby Street area, to the west. Broadly, the expectations are the same except that fast food stores and restaurants “preferably in a courtyard setting” are seen as providing for the needs of office workers located in that part of the precinct, and “should not function as an end destination in themselves”. Temporary showrooms, with a life span not exceeding 10 years, are permitted. In the Carnaby Street area:

“… particular attention should be paid to the design of buildings located adjacent to the golf course, including the design of the roof line, as flat roofs are considered inappropriate”.

Carnaby Street has a height limit of six storeys (but not more than 25 metres) except on sites “having a common boundary with the golf course” where, in common with sites in the vicinity of Plaza Parade, the limit is 4 storeys (but not more than 16 metres).

Proposed Lot 43 is relatively remote from the Carnaby Street area. The proposed buildings will be more dominant than as they are depicted in Mr Elliott’s Figure 13, taken from further away. I do not think there is anything unacceptable about this impact on a small segment of the views available.

Mr Chenoweth, who took the position that the buildings will stick out “like a sore thumb”, was taken to task by Mr Gallagher QC for having praised a similar proposal in Palmer Street, Townsville, which would dominate immediately surrounding development in a similar way as a “landmark”. Although no witness said it, I think that the buildings here are likely to be regarded in a similar way by residents of and visitors to the Shire as signifying the location of the golf course, thoughts of which are likely to be positive, rather than the negative ones supposedly engendered by a use such as crematorium. The Precinct 5 Intent specifically identifies a funeral parlour as not suitable in any part of the precinct where residential uses are encouraged. For the moment, the landmarks in the area indicate the location of the beach and the nearby reaches of the river. While club members and many others are aware of the existence of the golf course and its facilities (particular mention has been made of the importance of the club house facilities by virtue of the proximity to the Town Centre Core), the Horton Park Golf Course probably deserves to be called (as it was in evidence) Maroochydore’s best kept secret. It is astounding, in view of its size, that people are not more aware of it. Moving around Maroochydore for ordinary purposes simply does not bring people close enough to the golf course to see it. One can be very close, but denied a view by the surrounding buildings.

It is unsurprising that the planning arrangements for Planning Area No. 1 show a considerable amount of concern for the golf course and sites on its perimeter. Thus, for “all sites located in the vicinity of Plaza Parade and in Carnaby Street, where having a common boundary with the Golf Course”, the preferred maximum density for commercial premises stipulates a maximum plot ratio of 1.75, whereas for all other sites in the vicinity of Carnaby Street it is 2.5.

To the west of the golf course, beyond Carnaby Street and adjoining the golf course for about half of its boundary is Precinct 7 Cultural/Office (Town Centre Frame) - part of Wise’s Farm. South of it, extending to the Sunshine Motorway, but having no common boundary with the golf course, is Precinct 8 Mixed-Use Commercial and Residential (Precinct Class = Town Centre Frame), also part of Wise’s Farm. The land in Precinct 7 is too remote from the site to suffer or enjoy any impact from the proposed development. It will be developed far more intensively itself. It will lose land to the proposed southern access road. Development envisaged includes a Convention Centre/International Hotel of 10 storeys (but not more than 37.5 metres). All other development is limited to 6 storeys (but not more than 25 metres). Precinct 8 has the same 6 storey and 25 metre limit (reduced to 3 storeys and 12 metres adjacent to the proposed southern access road) and 2 storeys (not more than 8.5 metres) adjacent to waterways. The Plan says of the intended Landscape and Built Form (Plan, Vol 3, p.36) that:

“Buildings will be graduated down in height from the centre of the precinct to the proposed Southern Access Road and the waterways. This will generally enable all premises to be provided with a view to either water bodies, the Horton Park Golf Course, the Buderim Mountains, or the Maroochydore Town Centre”.

There is no threat posed by the proposal to views of the golf course from Precinct 8; to the extent it can be seen, it will be part of the backdrop. The same may be said about observation points further away, such as Buderim.

The Plan envisages numerous buildings to 25 metres (that is, the height of the proposal) dispersed over much of Precinct 7 and Precinct 8 (there will be more about Carnaby Street). One would think that the first ones will satisfy the qualifications for sore thumbs. The 37.5 metre hotel will certainly do so.

The Issues:Conflict With Maroochy Plan 200 Justified

Mr Hinson’s submissions identified the principal issues in the appeal as:

(a) the nature of the use and its conflict with the Planning Scheme;

(b)
the height and bulk of the proposal and its conflict with the Planning

Scheme.

Judge Dodds’ decision largely takes (a) out of the case, although the implications of the residential aspect of the use must be considered. As to (b), if “bulk” is to be considered separately, it is only from the sites in the Plaza Parade – Mungar Street area that there are any concerning issues. With the exception of the flats, all existing and likely future development on those sites determinedly turns its back (or perhaps side) to the golf course, so that changed visual impacts will hardly be noticed. The appellant’s and the Robinsons’ aside, there were no relevant adverse submissions. The site across Plaza Parade where flats remain is as likely to go to commercial uses as the general area surrounding the “waist”. The proposal will add only in a small way to the adverse impacts of surrounding development from the point of view of that location. Sunshine Plaza and the television building are both very long buildings (although not high).

“Height” represents the great planning issue in the case. A key idea of the Plan in Planning Area 1 is that the tall buildings will be in the Town Centre Core. Thus, in Precinct 1 the limit is 10 storeys (not more than 40 metres for commercial premises, or 37.5 metres for residential premises) and, in Precinct 2, 10 storeys (not more than 40 metres) west of First Avenue, 6 storeys (not more than 25 metres) east of First Avenue. Precinct 18 Maroochydore Promenade south of the river allows 6 storeys (not more than 25 metres) and Precinct 19 Picnic Point, west of the river the same. Precinct 4 Maroochydore Centre Waterfront seen as part of the Town Centre Core allows 10 storeys (not more than 37.5 metres). The Intent expresses the hope that “new development does not turn its back on Duporth Avenue”. The western portion of the Town Centre Core is Sunshine Plaza, dedicated to a vast drive in shopping centre, where existing development is not particularly tall. Maximum building heights envisaged depend on their use and range from 12 metres (3 storeys) to 25 metres (6 storeys). Surrounding the Core, for present purposes, is Precinct 5 with limits of 4 storeys (16 metres) near the golf course, otherwise 6 storeys (25 metres) in the vicinity of Carnaby Street. In Precinct 6 Aerodrome Road, to the east, the limit is 3 storeys (but not more than 12 metres).

The goal of reducing building heights from the Town Centre Core outwards, producing a particular built form, will be difficult to achieve. Ignoring provisions for the adjacent Planning Area 7 (Alexandra Headlands/Cotton Tree), where 10 storeys (37.5 metres) are permitted in the 6^th Avenue Precinct and 6 storeys (25 metres) in Alexandra Parade North, market and developer preferences are almost certain to result in the tallest development near sea and river foreshores, falling away as one proceeds inland. If the court may venture a prediction, it is that the tallest development will be located on the edge, in Duporth Avenue, rather than at the centre of the Town Centre Core, which is located further inland. The Core corresponds roughly with the Regional Centre indicated by a large circle on the planning maps. Maroochydore has wrested the honour and responsibility of providing the “key” regional centre from Nambour. No one has suggested that there was any particular significance in the location of that circle in mapping. For what it is worth, proposed Lot 43 fits within that circle, just inside the south/southeast perimeter. Proposed Lot 43, inevitably dealt with as part of Precinct 12 for planning purposes, as part and parcel of the golf course, happens to satisfy the key requirement for inclusion in the Core of being “contained within approximately 400m radius to support uses establishing within convenient walking distance of each other (justifying) the highest intensity of use” (Plan Vol. 3, 3.1.3(1)). There are presently buildings in Duporth Avenue which exceed the height restrictions in the Plan. One of the supportive submitters, Mr Eckert, wrote that:

“Although opposed to high rise developments in coastal areas I believe this particular development is perfectly positioned to provide maximum benefits to Maroochy residents.”

Of course, such views, even if they appealed to the court, are beside the point. The court is not the planning authority. It must accept the Intent and general planning philosophy of Maroochy Plan 2000. Conflict with it must be identified, and can be overridden or ignored only to the extent permitted by the IPA. The proposal conflicts with the Plan to the extent that occupation of units in the buildings for wholly residential purposes, with no touristic aspect, can hardly be regarded as ancillary to the golf course use. It is difficult to know what to make of a case like that of supporting submitter, Mr Morrison, a member of the club for 40 years, who plans to purchase a unit:

“There is a limited amount of property on the boundary of the golf club. As Council keeps letting the Maud Street houses change to business zoning, the chances of me being able to retire on the golf course is limited. The FKP units will allow me to live in a new premises on the golf course.”

The proposal also conflicts with the Plan in failing to comply with the deliberately structured pattern of building heights reducing as one moves out of and away from the Town Centre Core. Further out, they reduce to a typical 8.5m limit for residential areas. A conflict may be assessed as less concerning than it otherwise might be given, among other considerations, the presence in Duporth Avenue (as far from the “centre” of the town centre as proposed Lot 43) of taller buildings, with the prospect of more. More important, there will be buildings equally tall about Carnaby Street and throughout Precincts 7 and 8, and a 37.5m hotel in Precinct 7. All of these buildings will conflict with the notion of a mounding effect on the skyline, with the tallest buildings in the middle, and be more remote from the Core than the proposal. In this regard it hardly matters that they are assigned to Frame, whereas the proposal is not. The outcome may be a crater effect, rather than a mound effect. (These observations are not to gainsay what the Plan requires.)

The Council officer’s report, having noted the Precinct 5 provisions (described elsewhere in these Reasons) proceeded:

“It is noted that the provisions of Maroochy Plan generally provide for a progressive reduction in building height as development moves away from the Town Centre Core. A development of 9 storeys is, therefore, inconsistent with this principle, where development separating the subject land and the Town Centre Core is limited to 4 storeys (but not more than 16m).
A height more consistent with that permitted for the directly adjoining Town Centre Frame area (ie: 16m) is therefore considered a more appropriate outcome:
·Such height is consistent with the height of adjoining development;
·A reduced height should assist in reducing the bulk of the proposed buildings;
·A reduced height will mean that the proposed development is not overly visible from Plaza Parade or the future Southern Access Link, consistent with Objective 7.4.3 of the Strategic Plan;
·A reduced height is consistent with the provisions of Maroochy Plan which provide for a progressive reduction in building height as development moves away from the Town Centre Core ie: 25m in the Town Centre Core to 16 m for the relevant section of the Town Centre Frame and the proposed development; and
·A reduced height will reduce the amenity impacts of the proposed development upon adjoining properties.

While a maximum height of 16m is considered appropriate, consideration must be given to the maximum number of storeys appropriate within this height limit. While traditionally, Maroochy Plan 2000 provides for a maximum of 4 storeys (not exceeding 16m), it is considered that approving a maximum of 6 storeys (not exceeding 16m) is appropriate in the circumstances:
·It promotes a maximum density of development immediately adjacent to the Town Centre;
·As the development is “tucked behind” existing development fronting Plaza Parade and is not overly visible in terms of its “built form” ie: it will not be obvious that an additional 2 storeys have been accommodated; and
·Development of the site for the use proposed is considered to have merit. Permitting a possible additional 2 storeys of development will assist in ensuring that future buildings of the site have architectural merit and do not assume a “box-like” configuration.

On the basis of the above assessment, it is considered that a maximum height of 6 storeys (but not exceeding 16m) is appropriate for the subject land.”

It is not clear to me whether the officer was regarding the restriction suggested as having the effect of avoiding conflict with the Plan. The court accepts that 9 storeys, rising to 25m, represents conflict or inconsistency. Mr Schomburgk’s approach is that the extent of conflict is greater or less depending on the size of the building; he says any building on proposed Lot 43 represents conflict.

There are, however, ample planning grounds which would justify approval, despite the conflict. Mr Brown came under criticism for his opinion regarding the conflict which he thought existed between the proposal and the Preferred Dominant Land Use designation of Recreation (as a residential use). He said:

“82. No doubt when this designation of Recreation was put in place, as stated above, it was thought that the land was necessarily required for the activities of the Golf Club.
83. In my opinion there are however sufficient planning grounds to approve the Application despite this conflict. These grounds are as follows –

(a) The Site is land not presently used, nor intended to be used for golf course purposes and the subdivision of the land as proposed will not fragment the golf course;

(b) The proposal has the active support of the Horton Park golf club who are the owners of the land;

(c) This support is because the golf club sees substantial benefits in having a facility of this type adjacent to the golf course given the use to be made of the golf club by clients of this integrated tourist facility;

(d) There is no suggestion that this proposal will inhibit or restrict the operation of the golf course. The opposite is the case. It will facilitate the continued existence of Golf Club activities and support expansion of activities on the remainder of the golf course land; and

(e) The proposal fits in with the existing (and planned) golf course development. Indeed, it forms the financial basis of planned improvements.”

I agree that considerations to do with the financial interests of the club and its members cannot constitute planning grounds. The Plan does seek to protect all space designated Recreation, although its provisions expressly permit indoor facilities in buildings which might well be very substantial. Mr Brown summarised the favourable planning grounds more pertinently in the conclusions in his report following para. 185 in this way:
"(i)        the proximity of the Site to the Town Centre Core of Maroochy Key Regional centre, and the fact that it promotes appropriate higher density residential development;
(ii)         the specific nature of the proposal and its intended integration with the operations of the Horton Park Golf Course and the likelihood that the proposal will enhance the prospect of this appropriate “greenspace” use continuing in the centre of Maroochydore;
(iii)        the compatible nature of surrounding land uses, which are principally commercial or retail;
(iv)         the intention that Precinct 5 in the Planning Area No. 1 be developed for commercial purposes and the likelihood that the existing residences in Mungar Street will be removed;
(v)          the intended height of other residential buildings both within the Town Centre Core and the Town Centre Frame in Planning Area No. 1."
Essentially, Mr Gallagher QC, for the co-respondent, at p.52ff of the co-respondent’s Outline of Closing Submissions, relied on the “planning grounds” advanced by Mr Brown in his two lists. Mr Hughes SC, for the Council, who had called Mr Brown, presented in written form a more expansive submission:

“Planning Grounds

1. The planning documents, in so far as they contemplate the fact that all of the club’s land is required for golf course purposes and that only minor refurbishment of the clubhouse facilities is required, are overtaken by time and events or at least new knowledge in that:

(a) the subject land is surplus to those requirements; and

(b) the clubhouse facility has “passed its use-by-date” and needs to be completely re-built.

2. There is a genuine community need, and therefore a town planning need, for the upgrading of the club’s facilities, not only for the benefit of the 1,400 members but also for the benefit of the 8,000 to 10,000 visitors including tourists who play the course each year. This development will, on the balance of probabilities, lead to the improvement of such facilities.

The need and community benefit aspects of the planning reasons are underlined by the following facts:

(i) the planning documents unequivocally promote the continued existence of a golf course on the subject land;

(ii) the 1,400 members of the club (a significant proportion of the community) support the development;

(iii) there is strong support in the submissions lodged;

(iv) there were only 2 adverse submissions.

3. The proposed development, which involves higher density residential accommodation for both permanent residents and tourists is, in planning terms, ideally located to provide support and vitality for the regional centre of Maroochydore and convenient access to many facilities for its future residents.

4. The ideal location of the proposed development in town planning terms is recognised in many of the planning documents:

(a) in terms of the Desired Environmental Outcomes:

(i) Design Element Objectives 2 (Volume II, p6) promotes local communities having “convenient access to a diversity of housing, shopping and other business services, community and recreational facilities …” and in particular, in sub paragraph (d) speaks of consolidation of “residential forms around centres so as to optimise support for public transport”;

(ii) Design Element Objectives 3 (Volume II, p6) which speaks of a prosperous productive broad economy reinforcing tourism states in particular in sub paragraph (d) that it is necessary to “meet the demands of resident and visitor population growth by providing accommodation, employment, recreational and social opportunities…” and in (f) seeks to reinforce the role of, inter alia, Maroochydore as a key regional centre.

(b) in terms of the Strategic Plan, both Section 11.4.1 and 11.5.3 (Volume II, p53 and p54) promote the continued recreational use of areas designated “recreation” and the latter describes such areas as “important community resources” worthy of protection and worthy of proper maintenance (which will result from this development);

(c) the general provisions with respect to Planning Area No. 1 are emphatic in their promotion of the consolidation of Maroochydore with residential uses including tourist accommodation being integrated at appropriate locations and densities throughout Maroochydore”

(i) Section 3.1.2(2) (b) at Volume III, p15 refers to residential uses including tourist accommodation in Maroochydore;

(ii) Section 3.1.3(1) promotes the highest intensity of use being concentrated within 400 metres of the core area with such uses including tourist facilities, residential accommodation and tourist accommodation (see Section 3.1.3(1) at Volume III, p16);

(iii) This section also promotes residential premises including tourist accommodation at medium to high densities at appropriate locations in Maroochydore with the highest density of residential development within 800 metres of the town centre core (See “Residential/Tourist Accommodation at Volume III, p17”)

5. In terms of traffic engineering, the proposed development is ideally located (as Mr McClurg gave evidence about in various parts of Exhibit 2B);

(i) it is well serviced by public transport (see Exhibit 2B, p14); and

(ii) residents will enjoy remarkable accessibility to nearby facilities including the golf course, retail recreation (cinemas), cafes, restaurants, Sunshine Plaza generally and, even the beaches Exhibit 2B, p15).

Both of these matters are consonant with good town planning in that they encourage the reduction of the use of private motor vehicles.

6. The proposed development will add a building of considerable architectural merit to the locality – no witness suggested otherwise – the building has been the subject of careful design in terms of articulation and fenestration and includes interesting gradation which will ensure that it fits comfortably with nearby building heights (and likely future nearby building heights).

7. The proposal will fit comfortably with the height of other buildings likely to be built around the Maroochydore town centre core.

8. The proposed development will have no unacceptable impact on the amenity of adjoining properties:

(i) adjoining properties in Precinct 5 are promoted for commercial use – not residential use;

(ii) in so far as the appellant is concerned, its properties will still enjoy aspects over the golf course;

(iii) in so far as other properties to the north and Plaza Parade are concerned, not only is there a level of support from a significant owner, Mr Ryan, but more importantly those properties, as they redevelop for commercial and retail purposes, will no doubt be focused on Plaza Parade (with its 15,800 vehicles per day).”

(I have taken the liberty of making some minor corrections.)

There is considerable uncertainty, accordingly much room for argument, as to what are “planning grounds” for IPA purposes, and more specifically, with a view to overlooking conflict with planning instruments in granting approval to development applications which do not strictly comply.

As to Mr Hughes’ Planning Ground No. 1, accepting the assertions (a) and (b), I do not regard the Plan as overtaken by events. As indicated in para [30], I consider that the Plan, on the reasonable and practical (also correct) interpretation of it, would permit replacement of the club house, and by something grander. The use of the word “existing” does not limit the club house use to the buildings that are presently there, so much as acknowledge the existing use. In the circumstances of the present appeal, (a) should not be accepted as a planning ground. It might be otherwise if the club had 36 holes, an appropriate club house and ample parking facilities, and still land left over. The reality is that all of the golf course land is used at present, except for a limited part of proposed Lot 43. A driving range there would be relocated as part of some redesign of the course. Proposed Lot 43 plays a useful role as it is, and involves no glaring waste of resources. It is “surplus” to requirements only in the sense that, with some changing of arrangements, it can be dispensed with, in return for a handsome payment which the club should be trusted to put to the uses indicated (notwithstanding the appellant’s professed misgivings). Those circumstances do not mean that the Plan has been overtaken by events. If my interpretation of the Plan relevant to (b) were incorrect, this appeal is hardly a suitable vehicle for declaring the Plan obsolete: that would be more appropriately done in relation to some development application by the club in respect of the land it will retain.

I agree, generally, with Mr Hughes’ Planning Ground No. 2. It represents an important shift of emphasis to focusing on community needs, rather than those of club members. The 1,400 referred to may be supplemented by greater numbers of “social” members who would be attracted to new club facilities, the value of which is emphasised in a number of the supporting submissions. On the basis of publications seen in the course of circuit work in Maroochydore over years, I think I may take judicial notice of the literature available to visitors to the area which promotes the Horton Park Golf Club as a facility/attraction of interest to visitors, especially golfers. I accept that there is authority to the effect that the absence of adverse submissions cannot be taken as a positive planning ground.

As to the supporting submissions, of which there are about 20 in Exhibit 15, and an early one in Exhibit 20, it is noteworthy that they follow no common form; they are all thoughtful. Some of them are quite lengthy. As a group, they cover a very wide range of relevant considerations. A number single out the proposal as unusually worthwhile or praise its novelty. All expect it to succeed. By no means do all of the supporting submissions come from members. Mr Hughes was fortunate to be able to rely on Calligaris v. Bundaberg City Council [2002] QPELR 210. The Bundaberg Brothers Sports Club wished to reduce its debt level and obtain additional funding by realisation of some of its land (zoned Sport and Recreation, and designated Recreation/Open Space) by selling off some, which was proposed to be used for a “Hardware House” or Bunnings-style retail hardware, homeware and plant nursery complex. Planning grounds were found in the community benefit that would flow from redevelopment of the clubhouse, with a view to maintaining the level of services provided to the general community (as distinct from club members). A “need” was identified. The proposed new use was consistent with a good deal of development in the general area. It did not matter that the land was in private ownership. I think that the Council’s strong support for the proposal here may be taken as expressed on behalf of the general community and as confirmatory of a community “need” in the same way.

I agree with Mr Hughes’ suggested Planning Grounds Nos. 3, 4 and 5. Each constitutes a valid and relevant planning ground. Mr Brown’s favourable assessment of the proposal against the Urban Strategy and s. 3.5.7 of the Strategic Plan at para. 88ff of his report, Exhibit 2A, is also persuasive:

“88. The Urban Strategy at Section 3.3.7 intends that the regional centre at Maroochydore be one of the (limited) areas of high rise residential development within the Shire. The Site presents as a logical location for medium rise residential development –
(a) given its proximity to the Town Centre;
(b)the approvals given in the Town Centre Frame precincts to the west of the CAMCOS corridor to Southern Drive; and
(c)the location of the Site being mainly adjacent to retail/commercial development to the north.
89.This proposal is consistent with Section 3.5.7 of the Strategic Plan (relating to the impact of multi-storey residential development) for the following reasons –
(a)it satisfies a demand for tourist accommodation at an appropriate location;
(b)it realizes urban consolidation objectives (being adjacent to the Key Regional Centre);
(c)it has no impacts on any traditional low density residential area; and
(d)the proposed scale of the development is not inconsistent with approved development in the Town Centre Frame Precincts.”

He goes on to note the absence of adverse impacts on access to breezes and sunlight, or on shadowing or privacy. As to traffic, all three traffic engineers agreed that the additional pressure which would be placed on Mungar Street (relatively quiet) and on Plaza Parade, especially at the congested intersection, which is at one of the entrances to Sunshine Plaza, would fall within acceptable percentage limits. No one suggested the proposal should be rejected on traffic grounds. Suitable arrangements can be made for controlling the conflicting traffic movements that will be encountered in Mungar Street, without resorting to the ideal of incorporating a roundabout at the “elbow” (at the cost of some of Lot 43 and some of the remaining golf course land). Creation of a second lane for traffic coming out of Mungar Street into Plaza Parade should ensure that the development will not lead to “queues” of greater length than experienced at present. It was common ground that the reallocation of contributions required by conditions set by the Council (without affecting the aggregate of them) might serve to ensure that the works most needed will actually be implemented. There should be a variation of conditions accordingly.

Even accepting Mr Hughes’ planning grounds 6, 7 and 8 as factually correct, I doubt that any of them qualifies as a planning ground within s.3.5.14(2)(b). They are relevant only insofar as they confirm that adverse impacts of certain kinds need not be anticipated. It can be acknowledged that the architecture of a proposed building may be so striking, appealing, efficient or innovative (or its designer so famous) that there is some positive public good in having it constructed. That is not the ordinary case. For what it is worth, I have never encountered an appeal in which a proposed building was said by an architect to lack merit. Recently in Edwards v. Gold Coast City Council [2004] QPEC 061 at [48] his Honour Judge Wilson SC declined to accept architectural merit as sufficient justification to forgive “major areas of non-compliance, and conflict” where the proposed buildings were too tall. The key provision dealing with conflict with planning instruments applied there was found in the Local Government (Planning and Environment) Act 1990.

Edwards deserves some comment, since the outcome in this appeal is to the opposite effect. His Honour was unable to overlook conflict with careful planning arrangements similar to those encountered here indicating where the tallest buildings were intended and a system of height gradations moving outwards. The developer proposed a completely contrary arrangement, with the tallest structures not where the plan wanted them, close to the Gold Coast Highway at Palm Beach, but at the part of its large site furthest away, where the impact on nearby properties, including residences, would be greatest, and even more offensive to indicated height limits. Edwards offers support for the present appellant’s argument that no planning grounds have been put up or could be put up to justify ignoring the similar conflict here. I reject that argument. While the status of Maroochy Plan 2000 must not be downgraded, its “height” regime is already compromised by existing development, and will be further compromised by the development encouraged in Precincts 7 and 8 and about Carnaby Street in ways not reflected in Palm Beach at all. I suppose it can be said that Maroochy Plan 2000’s own commitment to what it preaches in this regard is half-hearted, at best. The building heights policy is neither strong, nor consistent. In such circumstances, conflict, which undoubtedly exists, may be more readily justified. The planning grounds available to be invoked here as justification are powerful, in a way that those called on in Edwards have proved not to be.

The appeal would be dismissed but for the minor change to conditions mentioned in para. [60] and for the possible formulation of conditions to promote integration between the development on proposed Lot 43 and those conducted on the land to be retained by the club, as referred to in para. [26].

CITATION:	Spondor Pty Ltd as trustee for the Gardiner Family Trust v. Maroochy Shire Council & Anor [2004] QPEC 072
PARTIES:	SPONDOR PTY LTD AS TRUSTEE FOR THE GARDINER FAMILY TRUST (Appellant) v. MAROOCHY SHIRE COUNCIL (Respondent) And FKP CONSTRUCTIONS PTY LTD (Co-Respondent)
DIVISION:	Planning and Environment
PROCEEDING:	Adverse Submitter Appeal
ORIGINATING COURT:	Planning and Environment Court Maroochydore
DELIVERED ON:	12 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18-22 October 2004 (Maroochydore) 25 October 2004 (Brisbane)
JUDGE:	P.D. Robin QC, DCJ
ORDER:	Appeal allowed, but only to the extent of varying approval conditions in minor respects
CATCHWORDS:	Integrated Planning Act 1997 s.3.5.14(2) – whether sufficient planning grounds existed to justify approval of development application relating to golf course land – proposed redevelopment would excise almost two percent (1.011 hectares) to accommodate two buildings rising to 9 storeys to contain 131 apartments – proposed use integrated tourist facility incorporating new buildings and golf course facilities – golf course had its own planning precinct, in which no other uses than “ancillary” ones were intended – no building height limit specified for precinct, but proposal conflicted with requirement that in Planning Area No 1 Maroochydore, heights should fall away from Town Centre Core – what are proper planning grounds to justify approval despite conflict as to height and residential use considered
COUNSEL:	Mr Hinson SC for appellant Mr Hughes SC for respondent Mr Gallagher QC with him Mr O’Brien for co-respondent
SOLICITORS:	Clayton Utz for the Appellant Maroochy Legal Service for the Respondent Hopgood Ganim for the Co-Respondent