Starco Developments Pty Ltd v Noosa Shire Council

[2002] QPEC 16

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Starco Developments Pty Ltd v Noosa Shire Council [2002] QPEC 016

PARTIES:

STARCO DEVELOPMENTS PTY LTD
  Appellant       
And
NOOSA SHIRE COUNCIL
  Respondent

FILE NO/S:

4401 of 2002

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 April, 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 & 21 February, 2002

JUDGE:

Judge Quirk

ORDER:

Appeal allowed

CATCHWORDS:

Integrated Planning Act 1997; s 4.1.53
Starco Developments v. Council of the Shire of Noosa
(1998) QPELR 265

COUNSEL:

Mr J Haydon for the appellant

Mr C Hughes SC for the respondent

SOLICITORS:

Clayton Utz for the appellant

Lestar Manning Lawyer for the respondent

1. This appeal is against the respondent’s refusal an application for approval (requiring impact assessment) of the development of a further stage of the well known Noosa Springs Resort.  The estate is on the shores of Lake Weyba to the south of Noosa Heads and comprises a series of developed housing precincts set about a golf course.

1. It is a discreet development in the sense that its design has set it apart from the developed urban area of Noosa.  It is oriented towards Weyba Creek to the west and Lake Weyba to the south.  There is no visual link between Noosa Springs and the wider Noosa community.  The important result of this is that whatever amenity impacts might result from development on the site will be felt only within the estate itself or in the surrounding land which is in its natural state.

1. The golf course and a number of the residential precincts are already in place. The development has proceeded in accordance with Plan of Development which was considered by this court in Appeal No 3607 of 1997 (judgment 19 November 1997; 1998 QPELR 265). It is gratifying to note that the high level of “quality control” promised on that occasion has been attained. The level of excellence of the design and landscaping which has been achieved is a credit to the developer’s principal, Mr Starkey and has been recognised by acclaim from the highest levels.

1. When the court dealt with the earlier appeal, a modified Plan of Development was approved.  The matter in contention on that occasion was principally that of development unit yield and, as can be seen from the text of the judgment, that was accommodated by a condition drawn by the court in these terms:

“Dwelling Unit Yield Schedule

·     Maximum 544 dwelling units

·     Maximum GA of dwelling units shall be 10,000 square metres in Precinct A; 90,000 square metres in Precincts B to D; and 5000 square metres in Precinct E.  The average dwelling size shall be 193 square metres

·     Maximum Dwelling Unit Yield per precinct shall be:

Precinct A   59
Precinct B and B2            92
Precinct C1 and C2        193
Precinct D1 ad D2          164
Precinct E1   18
Precinct E2   18

Notwithstanding the above, the Dwelling Unit Yield or GA may be transferred between precincts provided that prior town planning consent approval of council is first obtained.”

1. Because of events that have occurred and trends which have become evident in the market, the appellant has sought to take advantage of the “portability” provisions of that condition.  Precinct D has now been established and comprises 68 (rather than 164) allotments; a reduction of 96. It is proposed that 24 allotments be transferred to Precinct E1 providing a total of 42 allotments.  Precinct E and the intended Resort Precinct are located on and at the base of the eastern ridge line.

1. The Council’s attitude to the proposal is not easily understood. Its planning officers seem to have little difficulty with it and their views were confirmed by an independent advice obtained from Mr Challenor, a respected town planning consultant with extensive experience both as a local authority planner and as a private consultant.  Notwithstanding these carefully considered (and in my view, patently valid) opinions, the Council’s opposition to the proposal was maintained.

1. It was suggested, with little conviction, that the proposal did not constitute a “minor amendment” of the Plan of Development.  A moment’s sensible reflection indicates that the proposal does not involve any amendment to the Plan of Development at all.  The Plan, and a condition drafted by the court, specifically contemplated “portability” of unit yield to precincts provided of course that such a proposal was subject to an application for approval which was required to be examined on its merits.

1. Mr Venn, a town planning consultant who was engaged to support the Council’s position argued that the proposal was at variance with the Plan of Development to an unacceptable extent.  He pointed out that Precinct E1 was intended to provide only 18 units and that the intended increase to 42 was excessive.  He believed that the proposal would involve intense attached housing development of the type contemplated in the “semi-detached and attached residential” designation.  He added:

“It is my view that the development proposed for Precinct E1 is an over intensification given the generous nature of the living environment that has been created to date and the character of the estate that has resulted from it.  The proposal tends more towards the style of the plethora of holiday accommodation that is available elsewhere in Noosa.”

1. The further point was made that the Plan of Development was discriminatory in occupation types for Precinct A-E and Mr Venn was also concerned that the proposal would, in some way, prevent appropriate development of Precinct E2.

1. In numerical terms the increase from 18 units to 42 units is not insubstantial.  However acceptability in town planning terms is not simply a matter of numbers.  What has to be considered is the implication in terms of amenity and character of such an increase.  As mentioned impacts in these areas will largely be confined within the estate.  What is here proposed could on no sensible view of the matter be seen as out of character with what has already occurred and the manner in which the estate is presented.  To suggest that the appellant would put at risk the level of excellence that has already be achieved borders on the ridiculous.

1. I am satisfied that the more appropriate approach was adopted by Mr Buckley who stated:

“The Noosa Springs Estate has been proceeding in accordance with a Plan of Development which attaches to the Special Facilities zone.  The Plan of Development enables densities and gross floor areas to be transferred within precincts, and for “multiple dwellings” to be developed.  This use facilitates wide ranging occupation styles.  The use of these by a range of persons of varying terms of stay and tenure is to be expected particularly in a holiday destination such as Noosa.  Tourist use for Precinct E was identified at rezoning stage”.

1. The prospect of Precinct E1 being used for some form of occupation as opposed to another was adequately dealt with by Mr Buckley in this way:

“The Plan of Development promotes multiple dwellings. … the Plan of Development does not distinguish with respect to Precincts A-E in terms of the type of residential occupation, length of stay or tenure of accommodation.  In a holiday community such as Noosa it is to be expected that many multiple dwellings and attached apartments and even some single dwelling houses (which have facilities for full time living), at particular times of year are used by a number of families for short-term stays ie tourism.  Indeed, Noosa is well known for its use by interstate visitors during the southern winter months for periods of accommodation somewhere between 1-3 months.  This style of accommodation is quite different to that of a resort or more standard motel where internal in-room facilities do not cater for these longer periods of accommodation and where, accordingly, the turnover of people is higher.

In Precinct E1 and E2 it is likely that there will be a semi-permanent focus.  Documents associated with the original rezoning and the preparation of the overall master plan clearly indicated the likelihood of Precincts E and F being used for visitor accommodation; Precincts A to D, separated by the golf course and road access, cater for permanent accommodation.  The fact that some units in E1 and E2 may be used for more permanent occupation is of no consequence from a planning point of view.  The type of development, its setting and relative separation from the core tourist areas of Noosa do not give rise to the likelihood of permanent/visitor tensions, sometimes experienced in mixed use tourist precincts.”

1. It was also suggested, somewhat surprisingly in view of the court’s earlier decision, that the proposal gives rise to the conflict with the Strategic Plan. I am satisfied that the Plan of Development establishes a planning framework on the estate which is consistent with the Strategic Plan’s principles and themes for residential development.

1. I am unable to see, on the evidence given, how further development of the estate  (particularly in Precinct E2) would be compromised by the approval of this application. If further development of Precinct E2 also involves some departure from the present Plan of Development an application for impact assessment will have to be made and will be examined on its merits which, of necessity, will involve taking into account development of Precinct E1.

1. On the whole of the evidence I am satisfied that the onus is showing that the application is one which should be approved as being discharged.  The appeal will accordingly be allowed.