Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council
[2013] QPEC 54
•14 June 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Virdian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54
PARTIES:
VIRIDIAN NOOSA PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
(Appellant)
v
SUNSHINE COAST REGIONAL COUNCIL
(Respondent)
FILE NO/S:
3087/11
DIVISION:
Appellate
PROCEEDING:
Hearing
DELIVERED ON:
ex-tempore 14 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
Hearing :11-14 June 2013
Site Inspection: 11 June 2013
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed and application refused
CATCHWORDS:
Appeal against Council refusal of development application - Application for material change of use of 38 of 198 apartments in an approved, fully constructed resort development on Noosa Hill - application sought use for permanent residence as a new use- existing approval limited in accordance with the planning scheme to temporary visitor accommodation - whether grounds to justify a favourable decision notwithstanding conflict with the planning scheme - “additional choice and flexibility” held insufficient
COUNSEL:
N J Kefford for the appellant
C L Hughes QC, J G Lyons for the respondent
SOLICITORS:
Hopgood Ganim Lawyers for the appellant
Wakefield Skyes for the respondent
HIS HONOUR: I apprehend difficulties in preparing reasons for judgment within a reasonable time in this matter, given my existing obligations in that regard in appeals recently heard and others likely to accumulate in the period ahead. In those circumstances, I propose to give judgment now, which is not at all a comment on the quality of the evidence and submissions that have been placed before the court. I've reached a clear view that the appeal ought to be dismissed.
The bulk of my reasons will be delivered after lunch, given the time at the moment, and I don't expect the parties or their representatives to attend out of courtesy to the court, the process is likely to be very untidy.
Summarising it, I think there is conflict with the planning scheme established only in the respects that Mr Reynolds identified. Those are in respect of one or more, I don't think it matters how many, of outcomes 39 to 41 which are pertinent in the Attached Housing zone which applies to the appellant’s site
The conflict is more than the narrow technical one Mr Reynolds characterised it as. It's a clear conflict with an important aspect of the planning scheme. Where the appellant's case falls down is in failing to show the court there are sufficient grounds for the purposes of section 326 of the Sustainable Planning Act 2009 (SPA) or a favourable decision in the appeal notwithstanding conflict with the planning scheme.
The only ground which Mr Reynolds advanced was in terms of paragraph 102, a joint report written with his opposite number Mr Schomburgk. Paragraph 2 reads:
“Mr Reynolds says that the proposal provides choice and flexibility for which there is a community need. The proposal provides owners and occupiers with the opportunity to stay in the resort for a period of time longer than 'short term' to suit their lifestyle and needs. The proposal also provides owners and occupiers the opportunity to live within the resort and enjoy the benefits that resort living provides, such as access to resort services, restaurants, pool, gym and other facilities ‑ and the high standard of living being offered in a resort of this calibre. The proposal provides choice and flexibility.”
He concludes with the repetition of his opening which perhaps bespeaks an acknowledgement of the thinness of the grounds proposed. It's the case that this planning scheme, like others, favours flexibility and choice in respect of housing for residents, also affordability, perhaps another consideration here.
It is not possible, in my view, to identify a ground which satisfies the schedule 3 definition of ground in the SPA which effect ought to be given to. In essence, what the proposal offers is the opportunity to 38 privileged and necessarily wealthy purchasers to acquire prime residences on Noosa Hill at the expense of the visitors or potentially at the expense of the visitors which the planning scheme clearly desires to favour as the class who ought to enjoy this strategically located site.
I mention at this stage that I agree with Mr Shimmin that there is a suggestion of a ground in benefits to the retailers of Noosa, if permanent residents were able to occupy the units. The benefit would, in my view, be of slight dimensions just as the negative effect which Mr Shimmin at an earlier stage and Mr Duane had agreed might flow from the proposal being accepted.
I'll adjourn now till 2 o'clock. As I indicated, I don't expect the parties to attend unless you indicate there's something that might have to be dealt with. It's up to you. You’re very welcome to come or go.
MS KEFFORD: Thank you, your Honour.
ADJOURNED [12.59 pm]
RESUMED [1.59 pm]
[10]HIS HONOUR: This is an appeal against Council’s refusal to approve the permanent residential use of 14 penthouses and 24 villas in the existing Viridian Resort, now known as Outrigger, which is the name of the operator located - in a prime position on Noosa Hill above Hastings Street. An earlier appeal, 57 of 2010, raised the same issue, which was not resolved favourably to the appellant according to the judgment which brought it to a conclusion on 22 December 2011. That judgment changed the existing development approvals for the resort in other respects. There was no determination on the merits in relation to current issues. The appellant accepted that its attempt to change the development approval was an inappropriate process, given that the outcome it hoped to achieve would only be available pursuant to an application for change of use which would be impact-assessable. Presently, the 38 penthouses or villas, like the 160 other units in the resort, are restricted to use as “short term” visitor accommodation. Only the manager’s unit on the site is approved for permanent residence.
[11]The court is left to speculate as to the reasons for the application. There may be a clue in the appellant’s name now bearing the subscript “receivers and managers appointed”. It seems to be the owner of most but not all of the subject lots, sales of which continue to be made. The development application included consents of the other owners at the relevant time. Not all of the penthouse and villa owners elected to participate. Outrigger, whose consent was required pursuant to contractual arrangements, elected to consent to the application, which might well have been contrary to its interests as boding to reduce the rental pool to be placed under its management. It offers this evidence that success for the appellant will not preclude the Resort operating effectively- Owners of the lots are free to utilise the services of Outrigger or any other letting agent and are also free to manage the use of their units personally.
It’s unknown, as in Abacus Funds Management v Sunshine Coast Regional Council [2012] QPELR 669, what proportion of the owners who became entitled to take up permanent residence would participate in the letting pool in the event of this application succeeding. Apropos the circumstances considered in Abacus, it is important to note the much more flexible planning scheme provisions which were relevant there. They left it open in the respects relevant to the decision whether North Shore Apartments would be used for permanent residence or placed in a letting pool to be available to visitors. The effects of the global financial crisis and the high Australian dollar are among the causes of poor visitor demand for the premium accommodation represented by the penthouses and villas the subject of the present application. They are much larger than the typical two-bedroom units and other ones; they are the ones enjoying spectacular views over Laguna Bay.
I accept generally the evidence of Outrigger’s director and man on the spot, Mr Mason, which was not the subject of any challenge, and, in particular, his evidence that currently visitor occupancy of these premium units is at 33 per cent, falling far short of what is achieved in other parts of the resort. The evidence suggests that returns to owners, principally the appellant itself, are poor. There’s evidence of complaints as to the cost of cleaning between short-term tenancies, for example. For the owners, flexibility which would allow permanent occupation of their units would be welcome, and one would think it would inevitably increase the values of their property. It’s simply not known or, in my view, possible to predict how many would become permanent residents, although in Mr Ball’s survey of 10 of them, only one indicated no interest at all in living permanently in the property three out of the seven who responded indicated an intention to move permanently, if they could, within five years, and more within nine to 10 years.
Ms Kefford, who appeared for the appellant, is correct in reminding the court that the applications being inspired by financial considerations is of no relevance. Such considerations presumably underlie most development applications. However, no development application can succeed unless it’s allowed by the planning scheme, or can call on sufficient grounds to justify approval, notwithstanding conflict with the planning scheme.
The Council’s refusal of the application is based on conflict with the planning scheme. There has been a long history of embracing a vision for this site as a location for accommodation of visitors. It’s clear from the planning scheme, and, indeed, from any reasonable perspective, that the site is an ideal one, where the potential clientele for the Hastings Street and other traders in Noosa Heads can be warehoused in an attractive nearby location. The Council’s vision has been to keep out permanent residents who are thought not only to tie up visitor accommodation, long term provision of which is vital to Noosa’s future as a tourist destination, but who also spend less per day.
The development application was made under the Sustainable Planning Act 2009, and has to be assessed under its provisions, commencing with section 314. The application has to be decided in accordance with sections 324 and 326. By the latter, the decision must not conflict with the planning scheme, here the “relevant instrument”, unless there are “sufficient grounds to justify the decision despite the conflict”. For the purposes of that provision, schedule 3 enacts that: (1) “grounds” means matters of public interest, and (2) “grounds” does not include the personal circumstances of an applicant, owner, or interested party.
This is an appeal about grounds. Turning to planning scheme provisions, the starting point at page 3-9 is the desired environmental outcomes for tourism. It requires that:
“a tourism industry is development (sic) and sustained which –… j(iv) offers visitors a range of experiences and accommodation types; rule j(v) contributes to the economic wellbeing of Noosa.”
Those provisions are followed by what appears to be explanatory material in a shaded box. Mr Hughes QC referred the court to the second and third dot points in the box which provide that:
“…The loss of visitor accommodation, to permanent residential housing reduces visitor choice and it has a negative effect on the economy.
Mixing long-term accommodation for residents with short-term accommodation for visitors is avoided because it erodes the visitor accommodation base and has potential to cause conflicts.”
Those sentiments were echoed by witnesses in the appeal. It is difficult to attach weight to them, however, to the extent that they come within the general command of paragraph 2.3.2: “Text within the Noosa Plan contained in shaded boxes is intended to provide guidance to the reader but is not part of the planning scheme.” Shaded boxes appear to be in two categories. There are certain definitions, in particular, of present relevance of categories of housing which likewise appear in shaded boxes. Their context suggests they are important definitions to be taken seriously. They are printed in a different font. Resolving an issue of their precise status seems to be unimportant as, to an extent, these shaded box definitions have the function of headings introducing other definitions that serve the same purpose and in more detailed ways.
The Council relies on 1.7.8 Visitor Facilities in the strategic framework which introduces the planning scheme. It provides that “(a) Noosa Heads and Noosaville will remain the principal focus of visitor accommodation with some sites protected for the exclusive use of visitor accommodation”. Telling against that provision constituting a relevant basis for a finding of conflict is 1.3.2: “This division does not have a role in development assessment under the planning scheme.” Conflict is something to be established with reasonable clarity, and in the circumstances I do not consider that it exists with either of the provisions set out above, although the Council sought to rely on it in that regard. Here I accept Mr Reynolds’ planning evidence.
There are two relevant classes of residential uses: visitor accommodation and multiple housing. At page 2-16 are definitions of four categories of visitor accommodation introduced by the explanation in a shaded box:
“Visitor accommodation means accommodation that is designed and predominantly used for visitors to the Shire and where social, recreational and dining services may be provided for visitors by owners or staff, including four types [listed] below:
Type 1, Home hosted; Type 2, Caravan park; Type 3, Rural; and Type 4, Conventional”, which, as will be seen, is what the site is presently limited to. The definition is:
“Two or more dwelling units or accommodation units, for the purpose of providing short-term visitor accommodation. The use may include common recreation or dining facilities and includes an ancillary dwelling unit for an onsite manager. The use includes a guesthouse, visitor hostel, motel, resort and serviced rooms, but does not include Visitor accommodation Type 1 Home hosted, or Type 3 Rural as separately defined.”
Above in the same table, under the shaded boxed heading:
“Multiple housing means the use of premises for two or more dwelling units or accommodation units, as the case may be, occupied by permanent or semipermanent residents where the occupants may share common facilities on the site. The term includes the following types: Type 1, Relative or employee; Type 2, Duplex; Type 3, Retirement and special needs; Type 4, Conventional; and Type 5, Relocatable. The appellant seeks an approval for use as type 4, conventional.”
Other relevant definitions in the planning scheme include at page 2-21 the following one of inconsistent use: it “means the use is strongly inappropriate in the relevant zones because it is incompatible with the other uses generally expected in the zone”. This is part of a set of provisions which bring the planning scheme as close to being prohibitive of uses as was possible under the Integrated Planning Act 1997 section 2.1.23(2). See also section 6.1.2(3).
The assessment table for the relevant attached housing zone lists under residential uses at pages 9-11 and 9-12 consistent and inconsistent uses. The former include detached house or community residence “if not on lot 889 SP203086, being the Viridian Noosa Resort at Viewland Drive or part of lot 603 on SP188270, being the Settlers Cove resort site (as identified as lots 10 and 11 on plan 1128RHDOA, amendment A, prepared by Ken Hicks & Associates, and dated 23 July 2004)”, or multiple housing “if not on lot 889, (etcetera)”, or, as further consistent use “visitor accommodation, type 1, home-hosted, type 2, caravan park, or, type 4 conventional”. The inconsistent use is “those residential uses listed in section 9.20”. This is sufficient to establish inconsistency with the proposal. To the extent that conflict may require more than inconsistency, it primarily emerges, in my view, from the Noosa Heads locality code, commencing at page 9-26.
Section 9.8.2 lists the overall outcomes sought for the Noosa Heads locality; (a) calls for new uses and works to be located, designed, and managed, to be compatible with other uses and works, and, among other things, avoid significant adverse impacts on the amenity enjoyed by users of other premises. More significant is “(a) Noosa Heads remains a primary focus for visitor accommodation and associated services in Noosa.” Also (l), “substantial key sites are protected for resort developments, which focus on Noosa’s natural low-key outdoor appeal and cultural values”. By (o), “for the attached housing zone, residents and visitors are accommodated in predominantly multiple housing forms, that (i) offer a high level of residential amenity, design, quality, and safety; and (ii) respect the scale and character of the streetscape and surrounding development.”
I’m not inclined to find conflict thus far, in view of features which Ms Kefford justifiably notes early in her helpful written submissions: “(a) the land the subject of the application (‘the site’) is currently improved by a five-star resort development (‘resort’), containing 198 units, and associated resort facilities, managed and operated by Outrigger Hotels & Resorts. The Outrigger resort currently operates under an existing development permit for the resort, being that recorded in negotiated decision notice dated 19 April 2007, as amended by changes to the approval made on 27 February 2008, 27 January 2009, 30 November 2009, and 22 December 2011.”
Even if the application is approved, the site will continue to be used for the purpose of a resort containing visitor accommodation, type 4, conventional. (c) the application does not (i) physically change the built form of the resort, or (ii) involve any new works, or (iii) change the intensity of the site or the population density.” Further, so far as an inquiry for conflict with these overall outcomes is concerned, Ms Kefford relies on outcome (p), which applies to the Visitor mixed use zone, which is the commercial parts of Hastings Street on both sides. It is prescriptive, in comparison with what’s said immediately above regarding the attached housing zone. It requires that :
“development – (ii) comprises residential development that includes a mixture of building sizes, and are designed for visitor accommodation, are set back from the street and beach frontages, and have a landscaped character consistent with the street landscaping themes. (v) enhances the traditional focus for visitor accommodation in the coastal part of Noosa. (vii) contributes to the economy of Noosa through the tourism and hospitality sectors.”
A finding of conflict becomes inescapable as in the specific outcomes that follow at pages 9-42 and 9-43, consistently with the site-specific provisions recited above, one encounters, under the heading 9.19 Consistent uses:
“O39: The following defined uses and use classes are consistent uses…
Commercial business Type 1 if an estate sales office; home-based business type 1; detached house; or community residence if not on lot 889 (etcetera);
multiple housing if not on lot 889 (etcetera), and (e) visitor accommodation, types 1, 2, or 4.”
The next section, 9.20, sets out inconsistent uses. I’ll read the provisions:
“O40 The following defined uses and use classes are inconsistent uses and are not located in the Attached Housing zone -
All Agricultural uses;
Commercial business unless Type 1 and an estate sales office;
Entertainment and dining business;
Home-based business Types 2 or 3,
Industrial business,
Retail business,
All Community uses,
All Infrastructure Uses,
Detached House; or Community residence if on lot 889 (etcetera),
Ancillary dwelling unit; and
Multiple housing if not on lot 889 (etcetera), (l) visitor accommodation type 3.”
There is a third heading of relevance, 9.21 Effects of Use. It provides,
“O41 The following sites are developed and maintained for visitor accommodation type 4 and associated business uses – Part of Lot 603 ... being the Settlers Cove resort site; and lot 889 (etcetera).”
Ms Kefford restricted her concession of conflict to O40, but went further, and conceded it in respect of lot 39. Relying on Mr Reynolds’ expert views, she resisted a finding of conflict with O41. The basis of that approach is that O41 has no role to play now that the Viridian Noosa Resort has been constructed, and, indeed, is operating.
That point was amplified by reference to specific outcomes for the Visitor Mixed Use zone, which feature the same rather unusual heading, 9.25 Effects of Use. For Hastings Street, there are eight of them, the last of which is:
“Visitor accommodation Type 4, O55 Lot 7 on RP802632, being the Noosa Sheraton Resort in Hastings Street, is developed and maintained for visitor accommodation Type 4, and offers associated Business Uses”.
It’s obvious that insofar as the Sheraton Resort is concerned, it was not considered appropriate to refer to that particular site - in the way that Mr Reynolds’ helpful marked-up copy of the planning scheme, exhibit 19, showed was typical for the Noosa planning scheme - to be dealt with under the headings for consistent uses and inconsistent uses, of both of which there are many examples set out. The difference in respect of the Sheraton Resort is that when the planning scheme was adopted, that resort was already constructed.
There seems to be nothing to be gained by the court declaring a position in relation to O41. It’s the fact that the site has been developed, and it seems to me strongly arguable that even if the present proposal goes ahead, it will be “maintained for visitor accommodation type 4”. The conflict with the preceeding outcome is undeniable. I disagree with Mr Reynolds’ characterisation of it as low-level technical conflict. The planning scheme could hardly be clearer or more specific that visitor accommodation is wanted on the site; accommodation for permanent residence is not.
It is necessary now to consider the grounds proposed by the appellant for overcoming that conflict. It ought to be said at once that I’m satisfied there are no negative impacts of the proposal. While important, in the sense that negative impacts will embarrass a developer applicant, in a way that lack of them does not, lack of negative impacts has traditionally not been regarded as a ground for the purposes of a provision like section 326. It may be that the approach of the Court of Appeal in this regard is changing.
In Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, [2012] 191 LGERA 452, in a judgment agreed in by all members of the Court, one reads at paragraph [25]:
“It may be accepted as Grosser says, and Palyaris implies, that the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration. In any case, Grosser and Palyaris, it should be remembered, were concerned with a different expression, ‘planning grounds’, and hence a narrower inquiry than that entailed in assessment of the unqualified and broadly defined ‘grounds’ which are now relevant. It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity. The isolation and screening of the project were properly considered as a ground, to be weighed with other grounds in considering their sufficiency.”
I am in agreement with Mr Hughes that given the present state of the authorities, what was said in paragraph 25 applies where there is some other ground accepted by the Court. In the context of that decision, it must have been the need for a power station. In other words, lack of negative impacts, if that is what isolation and screening of a power plant amounted to, adds weight to a ground which exists independently, though it’s difficult to see that isolation and screening, however effective, to hide a project, would get a developer anywhere if the project were not otherwise a good idea. Lest this approach be too restrictive, in fairness to the appellant, it ought to be made clear that it did establish to this court’s satisfaction a lack of negative impacts.
In particular, there might be noted Ms Kefford’s obtaining from Mr Schomburgk the Council’s planner, concessions that even if the application were approved:
“(a) Noosa Heads will continue to be the primary focus for visitor accommodation; (b) Noosa Heads will continue to be known internationally as a tourist destination; (c) step one of specific outcome O41 for the attached housing zone capitals, being the development of the site for visitor accommodation, has already been achieved; (d) the site will continue to be used for a five-star resort managed by Outrigger Hotels & Resorts, an international hotel/resort operator; (e) 160 of the 198 units on the site will continue to be limited to use for short-term visitor accommodation; (f) a resort will continue to exist on the site; and (g) visitor accommodation type 4 will be maintained on the site.”
With some of that, Mr Duane, the Council’s economics and tourism expert, agreed. So far as incompatibility of the proposed new use with the currently-approved and largely-continuing use is concerned, noting that there were submissions against the proposal raising such grounds, I accept the evidence that there are no such concerns in the circumstances. Accepting that there is some potential incompatibility between visitor and permanent residency uses, it should be noted that here the 14 penthouses the subject of the application are isolated in the sense of being located on the top levels of some of the accommodation blocks, and that overwhelmingly the relevant villas which are, or are for the most part, three level structures at the northern end of the resort in their own street, are located remotely from the major buildings where in the future visitors would be accommodated. North of the site are some privately owned villas which are not subject to condition 23 of the existing approval. Condition 23 is:
“The resort (comprising the restaurant and conference room facility building, health spa, resort accommodation buildings (dwelling units & accommodation units), reception area and shop) shall be operated and maintained as a resort. The accommodation and resort will not be used for the purpose of permanent residential accommodation with the exception of the manager’s accommodation. The resort shall operate in accordance with the defined use of “visitor accommodation – type 4 conventional in the Noosa Plan, which provides for short-term visitor accommodation. The community management statement for all or anybody’s corporate having control of the resort or only part thereof shall incorporate this condition.”
The owners of the villas on Moorwong Drive immediately to the north of the resort proper, which are difficult to distinguish in appearance from those in the resort, 24 of which are the subject of the application, complain about the effect on the values of their properties if they face competition in the market from additional ones offering the prospect of permanent residence. That’s not a species of objection which is likely to be persuasive in the court. The appeal at an early stage did involve co-respondents by election, who were the owners of the so called Bayview houses. The Bayview Houses all located adjacent to the resort in a street running parallel to Moorwong Drive further up the hill. Those co-respondents by election withdrew. It’s a matter of speculation whether the “offsite Morwong Villas” were granted permanent residential use rights in some compromise with the Council. In dealing with Mr Schomburgk’s evidence, I ought to have noted Ms Kefford’s successfully disposing of certain negative grounds, that he suggested might trouble the court, in particular, dilution of the value of the management rights in respect of the resort Mr Mason’s evidence confirms that the holders of the management rights has no problems with the application.
As indicated at the commencement of these reasons, when I indicated to the parties. in case they should be unable or disinclined to attend after lunch, the essential views I’ve reached, Mr Reynolds’ proposed section 326 “ground”, while true, is of limited weight from the point of view of overcoming the clear planning strategy which the council incorporated in its planning scheme and vigorously defended in this proceeding. The respect which the court owes such a clear and strongly pursued strategy is helpfully explained in Lewiacv Gold Coast City Council [2011] QPEC 23; [2011] QPELR 494 at paragraphs [41] and following, especially paragraph [54]. If the application is approved, the availability of units or penthouses and villas for visitors to this key location will become less certain, and may end completely. Although invited by me during the course of the hearing to entertain an outcome representing less than complete success for the appellant, for example, by a time limited approval for permanent residence being permitted or by reducing the number of units granted the expanded use right; nothing came of those suggestions.
The appellant’s was an all or nothing approach. There were other grounds put up at a rather late stage. Meeting desiderata such as the DEO for residential uses, being satisfaction of “(ii) the expectations of Noosa’s population to have access to a broad range of safe, secure and affordable housing” was referred to. Economic benefits of the kind which Mr Shimmin ultimately predicted are not sufficiently weighty, I would diffidently add – worthy to amount to sufficient grounds to overcome conflict. The housing aspect, as indicated, I would discount on the basis that the beneficiaries are likely to be a privileged few, the economic one, on the basis that while persuaded by Mr Shimmin that there was something there, insufficient work has been done to confirm the positive value of it or of the emerging of benefits for Noosa Heads in different areas such as provision of more professional services like accounting.
Given the paucity of evidence, I think that those benefits, which may outweigh those from tourism, while it continues depressed, are not a ground of sufficient substance. It is possible that grounds might exist, as Mr Schomburgk, the Council’s planner, conceded, had there been evidence that the council’s and planning scheme’s vision for this site is not being realised and is incapable of being realised. Mr Schomburgk indicated and I agree that, if evidence had been forthcoming, that this prime accommodation, which would plainly be highly salubrious for permanent residential use, was simply going to waste because the tourism market was such that it couldn’t be used then, the community’s abhorrence of such waste would mean that a ground, in terms of public interest in avoiding it, might be established as opposed to matters dependent on the personal circumstances of an applicant owner or interested party.
The appellant simply did not seek to make such a case. Even the disappointing occupancy rates Mr Mason spoke of suggest that visitors are enjoying occupying these 38 units to the extent that they’re made available for letting. In the short term, the Hastings Street restaurants and other retailers might do marginally better if the owners were allowed the opportunity of permanent residents. Such short term considerations should not, in my view, lead to permanent residence being welcomed onto the site forever.
It’s interesting to note that the community titles scheme, which is approved by the Council and has in bylaw 16 the proscription as required by the development condition against permanent residential use, that’s in bylaw 18, contains in subparagraph (g) provision that “for clarity, a visiting owner or a related entity may occupy or use lot for a period or periods of, for example, three months or six months within a year, and a visiting owner or related entity doing so shall not be in contravention of these bylaws”. There’s a limited amount of flexibility permitted in that way, which will no doubt be a welcome surprise to one of the appellant’s witnesses, Mr Gowdie, who purchased believing he could not stay for more than a few weeks at his own unit. He has indicated foreseeing a desire to stay for periods of up to six months.
Finally, something ought to be said about the parking issue. One of the Council’s objections to the proposal was that it would remove from the 320 or thereabouts car spaces available on the site 28 attaching to penthouses. It would also remove the double car parks attaching to the 24 villas which in practical terms are not available for general use anyway, given that they can be closed off; technically it seems they may be available for general use. The spaces allocated to penthouses are double, but tandem spaces, which are hardly popular. Those are presently open for general use. Mr Beard’s opinion was that anyone purchasing a penthouse now would expect exclusive use of a car park. One of the 14 penthouses has only a single car park, albeit a wide disabled car park allocated in schedule E in the registered community titles scheme. It purports to allocate to all lots exclusive use of an area identified by number on common property for parking purposes. Mr Beard accepts that this like all well managed resorts features excellent management of car parking resources by the on-site managers.
At present the numbering of car spaces, the majority of which are by schedule E allocated to identified lots bears no relation whatever to numbers of the lots so that the users would have no idea where they were supposed to park. In practice they’re dependent on advice to that effect from reception or the concierge who no doubt do their best to provide the most convenient parking locations for guests. There’s little point in going into the intricacies of the car parking arrangements which are governed by development conditions, the community titles scheme and the “car park management plan” which to an extent I have not troubled to work out, prevailed over everything else - but perhaps not in regard to the penthouses spaces.
Reference might be had to clauses 50 and 51 of the community titles scheme. Even if, which is doubtful, the proposal would lead to withdrawal in a practical sense of the tandem car spaces allocated to 14 penthouses, there remain a greater number of tandem car spaces intended for use of staff which doubtless could be made available for guests or visitors or indeed anyone attending the site, if onsite management so directed.
Although Mr Beard appeared doubtful whether the observations of parking demand by his counterpart Mr Williams, at the time of the Noosa Food and Wine Festival when there was 97 per cent occupancy in the resort, were made at the most appropriate time, he appeared to accept the judgement of the on-site manager, Mr Mason. I accept his evidence that he has a soundly based confidence that parking will not be a problem if the application succeeded.
For the reasons I have indicated, at the end of the day my view is that the appeal should be dismissed and the application refused.
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