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Development Watch Inc v Sunshine Coast Regional Council[2018] QPEC 6

Development Watch Inc v Sunshine Coast Regional Council[2018] QPEC 6

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2018] QPEC 6

PARTIES:

DEVELOPMENT WATCH INC

(First Appellant)

and

COOLUM RESIDENTS ASSOCIATION INC

(Second Appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(Respondent)

and

YAKOLA PARADE PTY LTD ACN 167 675 069

(Co-Respondent)

FILE NO/S:

D 10/17

DIVISION:

Planning and Environment 

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

16 February 2018 (Decision); 26 February 2018 (Reasons)

DELIVERED AT:

Planning and Environment Court, Maroochydore

HEARING DATE:

5 June 2017 to 8 June 2017

JUDGE:

Long SC DCJ

CATCHWORDS:

ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – DEVELOPMENT AGREEMENTS Where the Council approved a development for land the subject of stage 3 of a previously approved development and where stages 1 and 2 have been completed – where development of the final stage has not been undertaken over  some 15 years – where the development application sought development permits to reconfigure the lot and for material change of use – where there is an appeal by submitters to the development assessment – whether there is a conflict with the Maroochy Plan 2000, including having regard to acceptable measures provided in the Code for Reconfiguring a Lot – whether  despite any conflict, there are sufficient grounds justifying approval of the development

LEGISLATION:

Integrated Planning Act 1997 s 1.3.3

Sustainable Planning Act 2009, ss 7, 232, 238, 314, 315, 321, 326, 397, 462, 493(2), 495, sch 3

CASES:

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1

Arksmead v Council of the City of Gold Coast [1999] QPELR 322

Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPELR 624

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15

Heath & Anor v Gold Coast City Council [2008] QPEC 33

Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13.

Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41

Kangaroo Point Residents Association v Brisbane City Council [2014] QPEC 64

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302

Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661

Main Beach Progress Association Inc v Gold Coast City Council 2008 QPELR 675

Parmac Investments Pty Ltd v Brisbane City Council & Anor [2008] QPELR 480

Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593

Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355

SDW Projects Pty Ltd v Gold Coast CC 2007 QPELR 24

Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPELR 468

Silverton Ltd v Maroochy Shire Council [1982] QPLR 182

Tanby Gardens Pty Ltd v Livingstone Shire Council [2007] QPEC 97

WBQH Developments Pty Ltd v Gold Coast CC 2010 QCA 126

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Westlink Pty Ltd v Lockyer Valley Regional Council (2014) 198 LGERA 1

Wingate Pty Ltd v Brisbane City Council [2001] QPELR 272

Woolworths Ltd v Maryborough Regional Council (No 2) [2006] 1 Qd R 273

Zappala Family Co Pty Ltd v Brisbane City Council and Ors [2014] QCA 147

COUNSEL:

P Hack QC for the appellant (directly instructed)

M Bizzell (president of the Coolum Residents Association Inc) for the second appellant

A Skoien for the respondent

D Gore QC with M Batty for the Co-Respondent

SOLICITORS:

Sunshine Coast Council Legal Services for the respondent

Connor O'Meara for the Co-Respondent

INDEX

Introduction

5

The Appeal

8

General Principles 

10

The Issues

12

Construction of the Planning Scheme

18

Traffic and Parking 

22

Overview

22

Identification of Traffic Issues  

25

Analysis

27

Conclusion

31

Identification & Analysis of On-Site Parking Issues

31

Conclusion

35

Identification of On-Street Parking Issues

35

Analysis

37

Conclusion

39

Overall Conclusions

40

The Planning Scheme – more generally

41

Identification of the issues

41

Relevant Scheme Provisions

51

Analysis

79

Conclusion as to extent and nature of conflict

88

Grounds

91

Overall Conclusion

95

Introduction

  1. [1]
    This is an appeal pursuant to s 462 of the Sustainable Planning Act 2009 (the “SPA”), against the decision of the Respondent Council (“Council”) to approve a development application (“the Development Application”) seeking a development permit to reconfigure a lot (1 lot into 44 lots) and a development permit for a material change of use (44 detached houses and 510m2 of shops), in respect of land situated at 1808 David Low Way, Coolum Beach (the “Subject Land”).[1]
  1. [2]
    The Development Application proposes the reconfiguration of the single allotment, which includes the Subject Land, into 44 new allotments and proposes the construction and use of 43 two-storey buildings on the Subject Land. Thirty three of the new buildings would be used exclusively as dwelling houses. Each of the remaining ten buildings (the “SOHO Buildings”) would be used for both commercial use at ground level and residential use above. The Development Application also proposes the use of the forty-fourth allotment for the purposes of a swimming pool and communal open space. Access to the 44 new Lots is to be achieved by:
  1. (a)
    An internal, two-way access road (“the Proposed Internal Road”), connecting thirty-three of the 44 Lots (including access to the Communal Facilities) to the existing road network; and
  1. (b)
    Eight driveways directly servicing ten of the 44 Lots (including by the use of two shared driveways) from the existing road network;[2] and
  1. (c)
    A pedestrian path running north/south through the Subject Land and connecting at each end with the existing road network.[3]
  1. [3]
    The Proposed Development is to effectively replace previously approved development, being Stage 3 of a development known as “Element on Coolum Beach” and which involved provision for 96 multiple dwelling units (“the Element Stage 3 Development”). Stages 1 and 2 of Element on Coolum Beach (“Element Stages 1 & 2”) have already been developed, on the land fronting David Low Way. Prior to the development of this eastern portion of it, the land was used as a caravan park. On 6 November 2002, the Maroochy Shire Council gave approval (MCU01/0162) for the Element Development, comprising Stages 1, 2 and 3.[4] That approval was given under the 1985 town planning scheme. Stages 1 and 2 were subsequently undertaken and resulted in the three storey mixed use development: Element Stages 1 and 2, comprising retail spaces (banks, restaurants, clothing and other shops) at ground level, with apartments above and behind. The Element Stage 3 Development, as approved in November 2002 and changed, as to conditions, by further approval on 16 July 2003 (CCC03/0007),[5] comprised 96 accommodation units grouped within seven three-storey buildings. That development has never been undertaken and the balance of the land, comprising an area of 1.051 hectares out of the total area of the Subject Land of 1.815 hectares, has remained vacant.
  1. [4]
    The Subject Land is located at 1808 David Low Way, Coolum Beach and is properly described as Lot 103 on SP 159953. The land is bounded by David Low Way to the east, William Street to the north, Heathfield Street to the west and Elizabeth Street to the south. To the east and fronting David Low Way, otherwise known as Coolum Esplanade, is the mixed use development comprising Element Stages 1 & 2. The adjoining land fronting Coolum Esplanade has been developed, to both the north and south, for various commercial purposes, largely with active street frontages (including the use of awnings, display windows and dining areas addressing pedestrian traffic, on the western side of Coolum Esplanade).[6]
  1. [5]
    To the north, across William Street, and further north, across Birtwill Street, land has been developed predominantly for commercial purposes, including the larger-scale supermarket based shopping centre between Birtwill Street and Margaret Street. To the south, down to Beach Road, land has similarly been developed predominantly for commercial purposes and non-residential purposes (including the bowls club on the southern side of Elizabeth Street, the public car park south of Elizabeth Street and the collection of community facilities immediately west of that car park).
  1. [6]
    As was clarified in the course of the hearing, whilst the development application has been styled as seeking approval to reconfigure 1 lot into 44, the obvious intention is to create 45 lots, including a separate lot upon which the Element Stages 1 & 2 development exists. The frontage to William Street directly relating to the Development Application, is unformed and is approximately 107m long. The frontage to Elizabeth Street is a similar length. The related frontage to Heathfield Road is some 96m long.[7]
  1. [7]
    Seven detached house designs are proposed comprising:
  1. (a)
    SOHO + house – proposed Lots 1, 2, 3, 4, 9, 16, 22, 23, 24 and 25 ranging in size from 140m2 to 163m2 and comprising 51m2 ground floor retail space, double garage and, except in the case of proposed Lots 9 and 16, a single car space for the retail/commercial tenancy, and 3 bedroom dwelling house above;
  1. (b)
    AGAVE – proposed Lots 7 (166m2) and 18 (171m2) comprising a three bedroom dwelling with single covered garage;
  1. (c)
    PANDANUS – proposed Lots 6, 19, 31, 34, 36, 39 and 43 (manager’s unit), ranging in size from 142m2 to 161m2 and comprising a three bedroom house with double covered garage;
  1. (d)
    ACACIA – proposed Lots 5, 8, 17, 21, 27, 28, 30, 32, 35, 37, 40, 41 and 42, ranging in size from 159m2 to 175m2 and comprising a three bedroom house with double covered garage;
  1. (e)
    SEAGRASS – proposed Lots 12, 20, 26, 29, 33 and 38, ranging in size from 146m2 to 163m2 and comprising a three bedroom house and single covered garage;
  1. (f)
    BANKSIA – proposed Lots 10, 13 and 15 (all 163m2), comprising a three bedroom house and double covered garage;
  1. (g)
    FLAX – proposed Lots 11 and 14 (both 163m2), comprising a three-bedroom house and double covered garage.
  1. [8]
    Lot 8 is to be accessed directly from William Street. Lots 9, 10, 11, 12, 13, 14, 15 and 16 are to be accessed directly from Heathfield Road and Lot 17 is to be accessed directly from Elizabeth Street. The remaining proposed lots are to be accessed from the internal road, with connection to William Street.

The Appeal

  1. [9]
    The appeal is brought by submitters in the assessment made by the Respondent Council and the Co-Respondent is the developer, who seeks to uphold the Negotiated Development Approval, finally given by the Respondent on 21 December 2016. The notice of appeal was filed on 27 January 2017. In the hearing of the appeal, the Second Appellant played a lesser role and apart from calling two lay witnesses, simply sought to support or adopt the approach of the First Appellant.
  1. [10]
    Although no objection or issue was raised in respect of the standing or entitlement of the Appellants to bring this appeal, some criticism is raised in the submissions of the Co-Respondent as to the extent of the evidence provided by them to the Court[8] and the absence of information as to “their reasons for participating in this appeal” or “their objectives as an organisation.”[9] Whilst it may be true that there is an absence of information as to the objectives of each of the Appellants, it is clear that each, as their name indicates, is an incorporated association[10] and has a statutory right of appeal pursuant to s 462 of the SPA, each having made a properly made submission about the development application.[11]
  1. [11]
    It is at least difficult to understand what relevance the contentions of the Co-Respondent may have in determining the merits of this appeal and in respect of which the Co-Respondent bears the onus of persuasion. Each of the properly made submissions of the Appellants sought to raise issues as to conflict with the planning scheme and on the hearing of the appeal, the First Appellant called an experienced town planner to support such contention. The Second Appellant relied upon some statements of lay witnesses, which ultimately may be seen, consistently with the absence of any attempt by either Appellant to rely on this material, in respect of the issues to be determined by the Court. In this context, the Co-Respondent also sought to point out that the only submitters objecting to the proposal during the public notification phase were the Appellants and that on the other hand, there were 186 submissions made in support of the proposal,[12] and that the development application attracted a letter of support from “Coolum Business and Tourism”.[13] Similarly to the Co-Respondent’s criticism of the position of the Appellants, that entity and its objectives are not otherwise identified, and the Co-Respondent acknowledges that the Court does not normally place weight on the number of individual statements or submissions.[14] In any event, there is little weight that could be given to the bare number of supportive submissions here, when it is noted that many of them contain such similarity of statement as to positive features of the proposal and which are reflective of evidence and contentions put forward by the Co-Respondent, so that the prospect of some common underlying motivation or campaign cannot be ruled out. There could be no suggestion of any abuse of process. However, in this context, the Co-Respondent only sought ultimately to engage the point noted in Kangaroo Point Residents Association v Brisbane City Council:[15]

“While “realistic” expectations do, to some extent, at least, depend upon the expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of such expectations”.

As will be discussed further below and despite the submissions of the First Appellant in respect of the engagement of the concept of “reasonable expectations” in a subjective sense and as held by other landholders or residents in the vicinity,[16] the essence of the Appellant’s contention is that any sense of reasonable expectation as to the acceptable use of the Subject Land is to be found objectively and as Mr Adamson contends, upon the basis of maintaining consistency with the planning scheme.[17]

General Principles

  1. [12]
    Accordingly and pursuant to s 493(2) of the SPA, the onus is upon the Co-Respondent, as the applicant for development approval, to establish that the appeal should be dismissed.
  1. [13]
    While the Development Application was lodged after Maroochy Plan 2000 (“MP2000”) ceased to have effect,[18] the Co-Respondent requested that the Development Application be assessed against that superseded planning scheme. Council agreed to accept the Development Application as a “development application (superseded planning scheme)” under the SPA and to assess the Development Application under MP2000.[19] Pursuant to s 315 of the SPA, Council was required to assess and decide the Development Application only against MP2000 (disregarding the subsequent planning scheme). And pursuant to s 495 of the SPA, this Court is similarly required to assess and decide the Development Application only against MP2000 (disregarding the subsequent planning scheme).
  1. [14]
    As the appeal is by way of “hearing anew”, the assessment process and therefore potential issues are framed by s 314 of the SPA. This is because that section “applies to any part of the application requiring impact assessment”[20] and:
  1. (a)
    the application sought development approval of two types of assessable development, being reconfiguring a lot and making a material change of use of premises (Detached House);[21]and
  1. (b)
    MP 2000 requires impact assessment for each type of development.[22]
  1. [15]
    The definition of “impact assessment” in Schedule 3 of the SPA is relevantly as follows:

“impact assessment means the assessment of the following by the assessment manager under section 314 …..—

(a) the environmental effects of proposed development;

(b) the ways of dealing with the effects.”

The term “environment” is also defined in Schedule 3, but in a non-exclusive manner:

“environment includes—

  1. ecosystems and their constituent parts including people and communities; and
  2. all natural and physical resources; and
  3. the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony, and sense of community; and
  4. the social, economic, aesthetic and cultural conditions affecting the matters in paragraphs (a), (b) and (c) or affected by the matters.”

In this matter and as will become apparent, it is the environmental effects of the proposed development as referred to in sub-paragraphs (c) and (d) which are particularly engaged.

  1. [16]
    Subsection 314(2) of the SPA lists the “matters or things” against which the application must be assessed. However in bringing this appeal and framing the issues to be determined, the Appellants do not suggest anything other than “a planning scheme” (s 314(2)(g) of the Act) as requiring consideration.
  1. [17]
    Additionally, s 314(3) of the Act relevantly requires that the application be assessed “having regard to”:
  1. (a)
    The “common material”, a term also defined in Schedule 3 and which includes, in addition to the material received in the IDAS process and any approval for the development that has not lapsed, “an infrastructure agreement applicable to the land the subject of the application”; and
  1. (b)
    Any development approval for, and any lawful use of, the premises the subject of the application.
  1. [18]
    Reference should also be made to s 326(1)(b) of the Act. It requires that the assessment manager’s decision must not conflict with a relevant instrument (eg; a planning scheme: see s 397(2)(d) and (5) of the Act) unless, relevantly, “there are sufficient grounds to justify the decision, despite the conflict”. The term “grounds” is defined in Schedule 3 as meaning, for the purposes of s 326(1)(b), “matters of public interest” but it “does not include the personal circumstances of an applicant, owner or interested party”.
  1. [19]
    Conflict must be plainly identified.[23] In Woolworths Ltd v Maryborough City Council (No 2),[24] it was determined in respect of s 3.5.14(2)(b) of the Integrated Planning Act 1997 and in relevant respects the pre-cursor to s 321(1)(b), that

“’Conflict’ in this context means to be at variance or disagree with”.

  1. [20]
    Also and for the Co-Respondent, it is correctly pointed out that it has been recognized that it is not the function of this Court to conduct an inquiry as to whether a better proposal might be possibly formulated or to insist that the land be put to better use, or to refuse an approval on the basis that a proposed use is not the best possible use of the land.[25] Rather and as noted in Wingate Pty Ltd v Brisbane City Council,[26] the Court is only required to determine whether the proposal before it is acceptable, having regard to the statutory constraints.

The Issues

  1. [21]
    Although the Co-Respondent bears the onus of persuading the Court that the proposed development should be approved, that is in the context that it has already been subjected to an assessment process and obtained the approval of the Respondent Council. Accordingly, the issues to be determined are typically informed by reference to that assessment, albeit that they may be enlarged upon in evidence given and submissions made to the Court and usually are primarily identified in the case presented by an Appellant. In this instance and although it may be noted that a wider ambit of issues was identified in the particulars provided by the First Appellant,[27] the issues requiring determination may be identified by first noting the contentions in the final submissions of the First Appellant.
  1. [22]
    The First Appellant contends, broadly, that the proposal does not meet the expectation that land in the village centre precinct is to be used primarily for retail and commercial facilities, in order to meet the demand of residents and visitors and in providing the requisite certainty to developers, investors and the general public and in providing for expected growth as a tourist centre.[28]  Although reference is made to authorities touching on the concept of satisfaction of the reasonable expectations of residence, as an aspect of amenity and thereby a relevant town planning consideration,[29] primary reliance is placed on the evidence of the town planner called by the First Appellant, Mr Adamson, as to such an expectation being based on consistency with the Retail and Commercial Centres Hierarchy and the Statement of Desired Precinct Character in MP2000 (the later statement being in s 3.11.4 of Volume 3 and relating to these specific precinct in which the land is located).[30] 
  1. [23]
    More specifically, it is contended that upon an overall assessment of MP 2000 and more particularly those aspects relating particularly to the Coolum Beach Planning Area and the Coolum Beach Village Centre, the proposal conflicts with the scheme in that:
  1. (a)
    There is fragmentation of the Village Centre by the use of land available for commercial development;[31]
  1. (b)
    It is not consistent with the desired character of the precinct or locality, particularly in that the proposal is not for the type or scale of development that is envisaged by the Code for Town and Village Centres;[32]
  1. (c)
    It does not meet the performance criteria of the Code for Reconfiguring a Lot[33] and particular attention is drawn to;
  1. (i)
    The proposal for a multiplicity of lots in sizes ranging from 140m2 to 175m2 (with road frontages of 10-11 metres), in the context of the provided acceptable measure of a minimum lot size of 1200m2 and minimum frontage of 40 metres, as not providing an environmental outcome that is consistent with the desired character of the precinct and the diverse and changing needs of the community;
  1. (ii)
    The contended failure to safely and conveniently provide for the vehicular parking and pedestrian movement;[34]
  1. (d)
    It does not meet the performance criteria in the Code for Transport, Traffic and Parking,[35] particularly as to:
  1. (i)
    Providing for both on-site and on-street parking; and
  1. (ii)
    The location of driveways so as to minimise adverse impacts on the external traffic system, most particularly in respect of pedestrian movement[36].
  1. [24]
    And it is further contended that there are no sufficient grounds warranting approval, despite such conflict.
  1. [25]
    Whilst it will be necessary to come back to these contentions and the responses of the Respondents, in a more detailed discussion, for present purposes it suffices to note that the Co-Respondent broadly contends that:
  1. (a)
    The proposed development is for an entirely appropriate use;
  1. (b)
    No conflict with MP2000 arises; and
  1. (c)
    Alternatively and if a different conclusion as to conflict with MP2000 is reached, there are sufficient grounds to nevertheless warrant the approval of the Court.
  1. [26]
    The Respondent Council supported these contentions, including by placing particular emphasis on the absence of any conflict with MP2000,[37] which may be noted to be a departure from its earlier decision, in which it found grounds to approve the development despite identified conflict with MP2000. That is a consideration that necessarily detracts from the submission of the Co-Respondent that the fact of prior rigorous assessment and approval by a Council is a relevant factor of discerning weight in the determination to be made by this Court, at least as far as the determination as to any conflict with MP2000 is concerned.[38] And in any event and consistent with the de novo nature of the rehearing that is conducted in this Court, the real significance lies in the persuasiveness of any support lent by the Council in that rehearing. As observed by Robin DCJ in Mackay Shopping Centre Pty Ltd v Mackay Regional Council:[39]

“Although this appeal is a rehearing, in which the Co-Respondent must establish before the court a case for approval of its proposal (that is that the appeal should be dismissed), uninfluenced by the Council’s favourable determination, the Council is the planning authority, and its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of in line with certain judicial utterances ... A developer with council support would usually be in a better situation. Of course, what counts in the end is the persuasiveness of the Council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears.”

  1. [27]
    In the circumstances of this case, it may be noted that the position taken by the Respondent Council in this appeal is different to that taken in the assessment phase. That phase was concluded by the negotiated decision notice issued on 20 December 2016.[40]  That decision notice reflected the assessment as to the conditions of the approval after negotiations engaged as a consequence of the initial approval of the development application, given on 29 June 2016.[41]
  1. [28]
    Each decision notice is indicative of an approval upon the finding of sufficiency of grounds despite conflict with the planning scheme. In each instance the notice contains the same statement of:

“15. REASONS/GROUNDS FOR APPROVAL DESPITE CONFLICT WITH SCHEME.

  1. The previous approval for the Element utilised this vacant southern land for medium density residential purposes. The proposed changed is for a lower yield of medium density residential development.
  2. The proposed residential development will introduce some additional floor space providing commercial uses, consistent with the intent of the planning scheme.
  3. The current body corporate arrangements are highly restrictive and limit the achievement of the new planning scheme objectives.
  4. The proposal is consistent with the originally approved land use, but simply achieves a lower yield of residential development.
  5. The proposed development continues to account for the parking required in respect of the earlier existing stages of the Element development and which has been temporarily provided at grade on this vacant land.[42]
  1. [29]
    Although not expressly identified, in either notice, the perception of conflict with the planning scheme would appear to be reflected in the recommendation of the Respondent’s Senior Development Planner.[43]  Leaving aside some matters that were made the subject of conditions of approval and in concentrating on issues that were agitated in this appeal, the following may be noted from the executive summary of that report:

“The land is located within the Village Centre Precinct in the Maroochy Plan 2000, which intends to be the core of the Coolum Beach tourist and business area and accommodate a range of business, retail, entertainment and community uses and provide a range of goods and services to the local population.  The proposed development is a small lot residential sub-division containing only a small component of home offices and is inconsistent with the strategic intent of the planning scheme and the intent for the Coolum Beach Village Centre.

The proposed sub-division results in the fragmentation of centre zoned land with lot sizes that would be unsuitable for any other purposes over the long term.  Therefore, the proposal would compromise the possibility of the land ever being able to be used for its intended purpose, to the detriment of the broader Coolum community into the future. 

The development results in the loss of public on-street car parking and has not proposed to provide the parking (24 spaces) that is required on this land as a requirement of the Element approval.”[44]

  1. [30]
    As far as the references to the Element or pre-existing approval for the third stage of that development and the conditions in respect of the provision of car parking therein is concerned, it is only necessary to note that the materials relating to the negotiated decision notice disclosed that:
  1. (a)
    Negotiations occurred in relation to a requirement of that pre-existing approval, which in effect required the provision of “23 visitor parking spaces…located in the undercover basement” to “remain as common property in the ownership of the body corporate”. And for the facilitation of the staging of the development, further allowed that: “temporary on-site car parking is permitted”;[45]
  1. (b)
    Some further context is to be found in indications from those acting in the interests of the existing body corporate for the Element Stages 1 and 2.  Those indications were as to views as to the absence of impetus, since 2003, towards moving to stage 3 of that approval, despite various changes of ownership of the site (including as to opined infeasibility issues) and the need for separation of a distinct development on the balance of the land and if necessary, a separate building management statement or community management statement.  In addition, there were firmly indicated objections to any emphasis on or significant “retail” development on the balance of the site;[46]
  1. (c)
    The ultimate resolution of this issue effectively lay in the following steps:
  1. (i)
    Conditions in the approval requiring the submission of any proposed community management statement, for endorsement by the Council “at the same time as submission of the sub-division plan to council for compliance assessment;[47]
  1. (ii)
    After negotiations in respect of adjustment as to the requirement for visitor carparks, in consequence of the scale of the development then proposed for the balance of the site,[48] on 9 December 2016, the execution of a deed by Cube Develop Pty Ltd trading as Cube Developments, the Co-Respondent Yakola Parade Pty Ltd as trustee for the Elizabeth Street Development Trust and the Respondent Council (“Infrastructure Deed”), in respect of payment of infrastructure contributions for car parking and requiring the payment to Council of a contribution in the sum of $266 000, for the “short fall of 7 car parking spaces provided in the development application;”[49]
  1. (iii)
    The approval, on 22 December 2016, by the Respondent Council of a request to make a change to the existing approval, to add the following to cl 11:

“Counsel may consider the payment of an agreed monetary contribution in lieu of the provision of car parking as part of the future assessment of any changes to the proposed staging and configuration of the development”.[50]

  1. [31]
    Although and as will be seen subsequently, the submissions for the First Appellant seek to refer to this context, in respect of the impact of the proposed development as far as car parking in the Coolum Village Centre Precinct is concerned, it is otherwise, correctly, pointed out for the Co-Respondent, that both the joint expert reports on traffic and also town planning issues make reference to the original requirement of the existing approval and that the Court is aware that those contextual agreements and decisions were made the subject of a separate originating application by the Appellant,[51] which has been discontinued. Although it will be necessary to return to the submissions for the First Appellant as to an effect of this context as an impact of the proposed development, it may be noted that, as submitted for the Co-Respondent, there remains no other relevance in the contextual agreement and decision.[52] And as pointed out for the Respondent, with the determination of the application for change to the pre-existing approval, there remains no issue as to any potential conflict of the proposed development and that pre-existing approval for the site.[53]

Construction of the Planning Scheme

  1. [32]
    As was most recently confirmed by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council and Ors,[54] the usual principles of statutory construction are applicable to the interpretation of construction of planning schemes. In particular, the following extracts from Project Blue Sky Inc v Australian Broadcasting Authority,[55] were approved:[56]

“[69]  The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70]  A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]  Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”

…

[78]  However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …”

  1. [33]
    In Zappala, it was then further observed:

“[53]  This Court, in AAD Design, endorsed that ‘the established principles and canons of statutory construction should be applied’ when construing planning documents.

[54]  Chesterman JA took the same view, adding:

“[37]  The starting point in the task of construing statutes and like instruments remains, I think, that explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5:

‘It is an elementary and fundamental principle that the object of the court, in interpreting a statute, “is to see what is the intention expressed by the words used”: River Wear Commissioners v Adamson. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v JH Nelson Pty Ltd. Of course, no part of a statute can be considered in isolation from its context – the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking “nothing remains but to give effect to the unqualified, words”: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Ltd … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature.”

[55]  The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the “modern approach to statutory interpretation …(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and  (b) uses “context” in its widest sense ...”

[56]  The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.

[57]  As was said by Chesterman JA in AAD Design:

“Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360:

“To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure (cf. Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, 162; Brown v Idofill Pty Ltd (1987) 64 LGRA 218, 227; Tainui Pty Ltd v Brown (1988) 65 LGRA 22, 27).”

[58]  However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.”[57] (citations omitted).[58]

  1. [34]
    An essentially consistent conclusion was expressed in Luke & Ors v Maroochy Shire Council & Westpac Developments:[59]

“The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole, and, by that process, to discover whether or not the proposed development accords with the scheme.”

  1. [35]
    As may be discerned from the outline of issues above, the appropriate construction of the planning scheme and the determination of any conflict with the scheme, is critical to the determination of this matter. It is convenient to first consider that question in respect of the issues identified in relation to traffic and parking.

Traffic and Parking

Overview

  1. [36]
    The issues raised in respect of traffic and parking impacts of the proposed development involved reference to the Code for Transport, Traffic and Parking, in MP 2000,[60] and in particular:
  1. (a)
    The following statements of purpose in s 2.4 of that Code:[61]

“(b) Achieve safety for all road users, particularly for the most vulnerable road users (children, pedestrians and cyclists), taking account of society's reasonable expectations;

……

  1. Ensure that development does not unreasonably compromise the capacity and legibility of the road and street system or diminish the amenity of nearby land uses; and
  2. Achieve on-site parking, access, circulation and servicing areas that are safe, convenient and sufficient to meet the needs of expected users, with minimal impact on the external road and street network or adjacent sites.”
  1. (b)
    Some aspects of the performance criteria and noted acceptable measures for the stated purposes, in particular noting that site access requirements performance criteria P2[62] requires that “driveways are located so as to minimise adverse impacts on external traffic systems”, with an acceptable measure described as:

“A2.1 The number of site access driveways is minimised (usually one), with access to the lowest order road to which the site has frontage, consistent with amenity impact constraints, and located in accordance with the requirements of planning scheme policy No. 6-transport traffic and parking”.

  1. (c)
    It is also pointed out that performance criteria P2 provides, under the heading “(5) Pedestrian Facilities”,[63] that provision be made:

“for the safe and convenient movement of pedestrians on-site and between public pedestrian facilities and on-site activity nodes”.

And in respect of car parking, it is noted that the code prescribes performance criteria as follows:

“P1 on-site car parking areas are provided with adequate capacity to accommodate peak parking demands;

“P2 carparks and their site access systems must be designed to provide safe and convenient parking and circulation for all the different users of the facility;”[64]

  1. (d)
    It is also noted as common ground that Schedule 2 to the Code[65] details the minimum on-site car parking requirements as respectively requiring two spaces per dwelling or detached house (which may be provided in tandem) and that shops require one space per 20m2 of gross floor area and additionally that planning scheme policy No 6 requires that on-street parking must be provided at a minimum of two spaces per three detached dwellings[66].
  1. [37]
    The submissions of the Co-Respondent point out the reality that the expert evidence on traffic engineering issues and these matters generally, as adduced for the Respondents, is not, unlike the evidence from town planners in this case, contradicted by any such evidence called by the Appellants. But and as is correctly contended for the First Appellant, the question is as to whether the Court accepts any part of that evidence and then what benefit is obtained in the Court’s assessment as to whether any conflict with the relevant aspects of the planning scheme, is established.
  1. [38]
    In any event, it may be noted that there are differences that emerged in the evidence of each of the Respondent’s experts, on matters that are in issue and that there are a number of valid criticisms raised for the First Appellant as to the evidence of the expert called by the Co-Respondent: Mr Viney. Some of those will be touched upon in due course, but for present purposes it may be noted that Mr Viney’s evidence came without the benefit of some of the detailed analyses included by way of the traffic and car parking survey, as undertaken by Mr Pekol, notwithstanding that Mr Viney ultimately had access to that material. As will be noted, Mr Pekol, the expert called by the Respondent, has in contradiction of some of the views expressed by Mr Viney, identified some short comings in compliance with some of the noted requirements of the planning scheme, but has proposed options as acceptable solutions, which in each case are accepted by the Co-Respondent as appropriate conditions of any approval grated by this Court.
  1. [39]
    Moreover, Mr Viney’s evidence presented an appearance of greater generalisation and less consideration of detail, as might be explained by his references to having limited time in the preparation of his report after returning from being overseas.[67]  For instance and unlike Mr Pekol, he had little practical understanding of the relative traffic demands of the street network around the proposed development and had only attended to inspect the locality, on a Sunday about 2 weeks before giving evidence.[68] Accordingly, it would not be appropriate to give any substantial weight to the evidence of Mr Viney, at least in preference to that of Mr Pekol and particularly where there are departures from that evidence.  And even in respect of matters where they are in agreement, it may be appropriate to primarily have regard to and assess the evidence of Mr Pekol. 
  1. [40]
    The submission for the First Appellant sought to implicitly engage the evidence of Mr Adamson by drawing attention to the explicit assertion in the Statement of Desired Precinct Character for the Coolum Beach Village Centre Precinct, at s 3.11.4 of MP 2000, that:

“Vehicular parking is a major issue in this Precinct”.

  1. [41]
    By contrast, the Co-Respondent contends that in the context of the evidence of the traffic experts, “the appellants’ case on traffic issues evaporated” having regard to Mr Adamson’s concession “that he would defer to the traffic engineers on traffic engineering issues”.[69]  However, that aspect of Mr Adamson’s evidence should be noted in full context:

“If we go to your individual statement, exhibit 10, to page 15, you there deal with the provision of parking, correct?   Yes.

And as a general proposition, in the practice of your profession, you would defer to a competent traffic engineer on these issues?   Yes.

And you’re well familiar with Mr Viney as a competent traffic engineer?   Yes, I am.

And you’re well familiar with Mr Pekol as a competent traffic engineer?   Yes.

And do you accept that, being an independent expert, you would say to his Honour in these proceedings that you would defer to the opinions of each of those gentlemen?   Cer – cer – yes, I would, certainly in – in terms of – of traffic impacts, required car parking numbers and things certainly of a traffic engineering nature.  But – but as a town planner, I’ve still got some concerns about the configuration of the development on the land and – and – and the loss of public parking, taken up by some of the driveways, really because of the nature and type of the use of the land.

Well, you accept in the body of your individual statement that with Mr Pekol’s changes, there is compliance with the requirements of MP2000 about the number of spaces that ought to be provided?   Overall, that’s correct, yes.

Yeah.  So when, in your statement at page 16, in paragraph 67, in the third-last line, you speak of an overall loss of eight parking spaces, what you really mean to say is that with a different design, there could have been eight further on-street spaces; isn’t that a more accurate way of putting your position?   That’s – that’s correct, yeah.  That’s correct.”

Identification of Traffic Issues

  1. [42]
    Ultimately, in respect of traffic issues, and whilst there was no abandonment of the general expression of concerns as to impact on general vehicular movement on and into the local streets and particularly Heathfield Road, the particular emphasis in the Appellant’s submissions was in relation to impact on pedestrian safety and particularly in terms of the provision for direct vehicular access to the lots fronting Heathfield Road. The point is exemplified by noting another of the First Appellant’s valid criticisms of the evidence of Mr Viney. That is, in his conclusion as to the proposed design being consistent with normal property access in residential areas:
  1. (a)
    First this was premised on reference to the overall frontage length of the Subject Land proposed development being 300 metres, when as pointed out for the First Appellant, the particular concern is with the collection of driveways in Heathfield Road and over a frontage of approximately 91 metres.[70] That is, as proposed, 8 driveways giving access to 15 parking spaces for proposed lots 9 to16.[71] Also and as noted in respect of another validly criticised contention by Mr Viney, there is capacity in the other instances for additional car parking for lot occupants in those areas external to the double car ports, on each lot. Otherwise it may be noted that there are only two further lots with proposed driveway access directly to the street network.  That is lots 8 and 17, being, respectively, the lot in William Street and Elizabeth Street, closest to the intersection with Heathfield Road;
  1. (b)
    Secondly, it is correctly contended that this is not a proposal for development in a residential area as contemplated in the scheme, notwithstanding the residential aspects of it.  However that contention is complicated by understanding that the Heathfield Road frontage of the Subject Land constitutes the western boundary of the Coolum Beach Village Centre Precinct, at that location, and that the boundary continues in an easterly direction at the corner and along the frontage of the Subject Land in Elizabeth Street, until it precedes Southwood and immediately adjacent to the Coolum Beach Bowls Club and along the western boundary of that property.  Further and whilst the position is different on both sides of Heathfield Road, between Williams and Birtwill Street, on the opposite side of Heathfield Road to the Subject Land, and whilst there remains some obvious past residential development, there is related indicia of commercial uses of those properties.  However and in Elizabeth Street and on the southern side, to the west of the bowls club, there is distinctly residential development constituting the border of development which is continued in both directions and on the northern side of Elizabeth Street, to the west of Heathfield Road, the same observation applies, once an observer moves past the immediate uses as churches. 

Analysis

  1. [43]
    These concerns are not to be lightly dismissed. Whilst it is a local road and not in the nature of a thoroughfare for traffic, such as the nearby David Low Way or Coolum Esplanade, it is correct to note that Heathfield Road, in particular, provides a significant link with other parts of the locality and particularly between Elizabeth and Birtwill Streets, with the latter street evidencing substantial aspects of concentration of commercial development. That includes a major supermarket and shopping complex, which development has occurred within the Coolum Beach Village Centre Precinct. And there is separate commercial development both to the east and west of Heathfield Road, on the southern side of Birtwill Street.
  1. [44]
    Also, some recognition of the issue is reflected in the proposal of Mr Pekol, which is accepted by the Co-Respondent as a modification to be subject of a condition to any approval, to reduce the number of separated driveways on Heathfield Road from eight to six. That is to be achieved by having combined driveways for respectively lots 12 and 13, and lots 14 and 15. Whilst it is correct to point out that this proposal does not address the potential number of vehicles that may be driven across these driveways, nor the extent to which the footpath has driveways which may be traversed by those vehicles, Mr Pekol’s explanation for this should be noted. First, there was the following evidence in chief:

“Now, in paragraph – dealing with the issue of pedestrians, paragraph 68 of his report, exhibit 10, Mr Adamson expresses some views about the combining of crossovers in Heathfield Street to provide a crossover for, in effect, two dwellings rather than just the one?‑‑‑Yes. 

Is that something which you consider to be, firstly, a negative aspect of the proposal or neutral or otherwise?‑‑‑No.  In fact, the recommendation was put forward so that the application could comply more fully with the planning scheme.  The planning scheme’s quite specific about providing the opportunity to joint or aggregate driveways, where they’re very close to one another.  And I guess the logic behind that, from a traffic engineering perspective, is that it sends a clearer message to pedestrians that they – that they have a driveway – a single wider driveway to cross rather than two narrower driveways.  And keeping in mind also that the recommendation only applies to two driveways and the net result is a reduction in the number of driveways in Heathfield Street – Heathfield Road.  Sorry.

Now, in terms of the number of driveways and obviously the consequent use of the driveways by vehicles, as we know, in a reversing gear from both locations, does that cause you any concern as a traffic engineer in terms of movements, either pedestrians or vehicles in the – either Heathfield Street or in Williams Street and Elizabeth Street in those instances?‑‑‑No, that’s a typical arrangement for how vehicles enter and exit detached dwellings.  It would be very rare, particularly on small lot sizes like this, to have the sort of facility where vehicles would be able to turn around on-site and drive out forward…” 

Then in cross-examination, there was the following exchange:

“But of those 10 points, many of them would be adjacent to each other, wouldn’t they?‑‑‑No, well, that was the whole idea of amalgamating the ones that – that I recommended.  Because in those – for those two pairs of units in the approved plan, the driveways for those pairs of units were so close together that it made more sense, from a traffic engineering perspective, to amalgamate them into one, rather than keep them as two separate driveways that might’ve only been a metre apart. 

But I just don’t understand what difference it makes if the volume of traffic’s going to be the same.  There’s a smaller driveway – a smaller width of driveways over the whole of the street.  You accept that?‑‑‑Yes.

Why does that improve safety?‑‑‑Okay.  So that improves safety for two reasons.  In terms of pedestrians, by having a narrower – a single, narrower driveway, rather than two wider ones, it minimises the pedestrian crossing distances across the driveways, so it minimises the time that – think of – this way.  it minimises the time that the pedestrians are actually on the driveways if those – if those driveways are narrower.  So that’s the first benefit.  And the second benefit is, as I was trying to explain – maybe I haven’t – I haven’t explained it properly.  Put it this way.  If we could amalgamate all the 10 driveways into one driveway, then the same number of cars would out of one driveway and meet the traffic on Heathfield Road at a single point.  I guess that would be almost the ultimate in terms of traffic safety. 

That’s what was in the original stage 3 element.  The single exit and entrance?‑‑‑Yeah.  Possibly.  Of course, the – the – the best way to guarantee traffic safety is not to have the access at all, and we all walk and cycle everywhere, but given that we have to accommodate these cars somewhere, we have to find a – a solution that – that provides an acceptable level of – of safety, and by combining the driveways for the – the two pairs of – of – of units, we’re able to reduce the number of conflict points from 10 to 8.  So they’re – they’re the two benefits.”

  1. [45]
    The Co-Respondent points to authorities which have noted the difficulty of an approach to traffic arrangements that tends towards achievement of perfection or best outcome, rather than arrangements that are reasonable or acceptable.[72]  More specifically and importantly, it may be noted that such an approach is expressly encompassed within those aspects of the planning scheme upon which the Appellants place reliance and by reference to which the Appellants seek to establish conflict.  For instance, the need to meet “reasonable [societal] expectations” in respect of the safety of road users and the need to ensure that development “does not unreasonably compromise the capacity and legibility of the road and street system”.[73]
  1. [46]
    Moreover, there is the need to have regard to the effects or impact of the whole proposal, notwithstanding that an important feature of it may be the frontage of the Subject Land to Heathfield Road. As both Respondents correctly point out, the evidence of both Mr Viney, and more particularly Mr Pekol, recognizes that the conditions of approval for the development will have the significant consequence of the provision or construction of pedestrian pathways surrounding the Subject Land and as well a pedestrian walk way through the Subject Land connecting William and Elizabeth Streets.[74]
  1. [47]
    It should also be noted that the views expressed by Mr Adamson as to traffic and parking issues, from a town planning perspective, are encapsulated in the following passage in his separate statement to the Court:[75]

“67.  Under Part 3.11.4, it is specifically stated that vehicular parking is a major issue in this Precinct.  There is a recognised need for public parking, providing it does not interrupt views to the beach and is designed to be unobtrusive from the street.  In my opinion, these are unusual site specific provisions to be included in a planning scheme, which highlights the importance of this issue at this location.  It is suggested that given the overall loss of 8 parking spaces due to the access driveways, this is likely to worsen the provision of public parking in the locality, which is contrary to the planning scheme (Part 3.11.4). 

  1. It is also noted that at TEJER 16, additional design changes have been suggested to some of the access driveways serving the Detached Houses, as shown shaded on TEJER Appendix C.  In my opinion, this worsens the streetscape appearance of the development given the combined driveways for Lots 12 & 13 and Lots 14 & 15.  This results is(sic) in a continuous span of concrete of about 9m in width at the boundary, which is akin to an industrial or commercial development.  This is caused by the nature and type of the development, being for small lot housing comprised of 43 Detached Houses on 43 separate allotments, each having individual access points, either internally or externally.  This is not the type of development expected in the Village Centre Precinct, which would have limited access points and at ground or basement car parking.
  1. In contrast, the approval Element Stage 3 Development provides for an integrated access and basement car parking system with Stages 1 & 2, while providing 96 Accommodation Units. Under this approval, the density is more than double the current proposal and there is no increase in the number of driveways.  This is because of the integrated nature of the Element Development as a whole, which utilises the existing access driveways for Stages 1 & 2, located in William and Elizabeth Streets.  Under this scenario, there is no loss of on street parking fronting William Street, Heathfield Road and Elizabeth Street. From a town planning perspective, this is more desirable in terms of limiting access points and maintaining public parking.  Further, the basement parking can be used by visitors and patrons in an integrated manner. 
  1. In my opinion, the proposed development will have a significant adverse impact upon public parking and is not a desirable town planning outcome for land included in the Village Centre Precinct.” 
  1. [48]
    Accordingly, it may be seen that apart from noting the incidental consequence of some multiplicity of driveway access to the surrounding streets because of the small lot nature of the proposal and the purported relationship of this consideration to his view as to this not meeting expectation as to type of development in the Village Centre Precinct, a particular focus is upon the undesirable town planning outcome in terms of what was stated to be “a significant adverse impact upon public parking”.

Conclusion

  1. [49]
    In the context of the evidence before the Court, it should not be concluded that the proposed development, including the design of Heathfield Road frontage, does not meet reasonable societal expectations as to safety for road users, including pedestrians, or unreasonably compromises the capacity or legibility or the local road and street system, or that the location of the driveways as proposed by Mr Pekol is not such as to minimise the adverse impacts on external traffic systems, in the context of the development as proposed.

Identification and Analysis of On-Site Parking Issues

  1. [50]
    The issues raised in respect of parking relate to both on-site and on-street parking and in the first instance are framed by Mr Adamson’s identification of some short comings:[76]

“59.  Since the preparation of the JER, I have been provided with and reviewed the JER prepared by the traffic experts (TEJER).  The traffic engineers have agreed (TEJER 20) under the Code for Transport, Traffic and Parking (Part 2.4) the development is to provide:

  • Detached dwellings: 43 dwellings x 2 spaces per dwelling= 86 spaces;
  • Shop: 510m2 x 1 space per 20 m2 = 25.5 or 26 spaces;

Consequently, the proposed development is to provide a total of 112 spaces. 

  1. The proposed development currently provides for 111 car parking spaces (TEJER 22); however the majority of these spaces (91) are provided for the Detached Houses, a number of which are in tandem and could only be used with the Detached Houses.  Consequently, the spaces are not allocated on the land in proportion to the demand of the uses being proposed, which is acknowledged by Mr Viney at TEJER 22.
  1. With respect to the individual shop components, 1 additional space is provided for 8 of the proposed shops on Lots 1-4 and Lots 22-25 (SOHO A & B), refer Attachment 1.  However, no additional parking is provided for the shops on Lots 9 & 16 (SOHO C) (Attachment 1). In effect only 8 spaces are provided for the 10 shops.  A further 12 visitor spaces are provided internally to the development as a whole.  Consequently, even if all of visitor spaces provided are taken up by the shop component, there is a shortfall of 6 spaces for the shop component. 
  1. Mr Pekol seeks to remedy this situation (TEJER 21) by providing an additional 8 on-site visitor spaces, on the internal ring road, but located over the proposed bio-retention swale area of the development, shown in green on Appendix C (TEJER).  From a stormwater management perspective it might be of some concern that a substantial portion of the internal bio-retention swale system will now to(sic)  be used to provide an additional 8 visitor parking spaces.  While this increases the total number of carparks provided internally to the development, in my opinion this does not overcome the parking issue associated with the shops on Lots 9 & 16 (refer SOHO C-Attachment 1) and availability of parking for the shop component, given the nature of the development, with the parking being located within a private residential housing development.
  1. In my opinion, the majority of visitor spaces provided internally to the proposed small lot housing development, will be utilised by residents and their visitors, given the development proposes a private internal rode, as labelled on Attachment 1.  While the total number of parking spaces provided (TEJR Appendix C) might technically meet the requirements under Schedule 2 of Code 2.4, minimum on site car parking requirements, the allocation of the spaces is not proportionate to the location of the uses on the subject land. 
  1. Of particular concern, no spaces are provided on site for the proposed shops on Lot 9 & 16 (SOHO C), with 2 spaces being provided for the Detached House.  It is not appropriate that the operator of the shop and or patrons park in tandem behind the parking spaces for the Detached Houses.  Further, there is no internal access provided from the visitor parking to these Detached Houses (Lots 9 & 16).  Consequently, the operator and or patrons of the shops (SOHO C), would need to park internally to the development in one of the visitor spaces and then walk out of the site onto the public roadway to access the shops.  From a town planning perspective this is not an appropriate town planning response for a new retail and commercial development located in the Village Centre. 
  1. At TEJER 23, the traffic engineers have undertaken an on street parking survey on the 21st and 22nd April 2017.  It is noted that the surveys were not undertaken during a peak holiday period and is not necessarily a reflection of the peak holiday demand period for the locality. 
  1. Under part 4.12 of the Planning Scheme Policy No. 6, on street parking is to be provided at a minimum rate of 2 spaces per 3 Detached Houses.  This equates to an additional 29 on-street spaces.  While it is acknowledged that the amended proposal plan shows 31 on street spaces (TEJER – Appendix C) this does not account for the loss of the on-street parking fronting the development, which currently amounts to 39 existing spaces.”
  1. [51]
    The submission for the First Appellant as to a conclusion that the on-site parking requirements of the Code for Transport, Traffic and Parking are not satisfied, is as follows:[77]
  1. (a)
    Whilst it is accepted that Mr Pekol has correctly identified the requirement for a total of 112 on-site car parking spaces and also the requirement of 86 of those spaces for the 43 detached dwellings, that leaves only 20 visitor car parking spaces to meet the required provision of 1 such car parking space for each 20m2 of gross shop floor area,[78] and therefore, as further correctly identified by Mr Pekol, a shortfall of 6 such spaces;
  1. (b)
    In that regard a particular and validly criticised aspect of the evidence of Mr Viney, is that he purported to identify the provision of 111 on-site car parking spaces, but upon a potentially unrealistically assumption that an additional 5 such spaces are to be found in a tandem situation in front of the garages for Lots 9-14,[79] on the Heathfield Road side at the site.  Such an expectation is not only inconsistent with the approach of Mr Pekol, but also assumes the availability of such space on what is proposed to be separately owned and used dwelling lots, except perhaps in respect of the SOHO Lot 9, where there is also at least the prospect of separate occupation rights as to the residential and commercial components.  In any event, the position of the Co-Respondent is acceptance of Mr Pekol’s position and his proposal to site an additional 8 visitor car parking spaces adjacent to the internal road on the site, as a condition of approval;[80] noting also Mr Pekol’s additionally accepted proposal of conversion of the space that had been marked V5 in exhibit 1, document 7, p8, so as to provide for the requirement of 1 disabled parking space.  Further and in support of the viability of that proposal, reliance is placed on the statement of an engineer, to confirm an expectation that the proposed reconfiguration can be achieved, in the operational works application, as a certifiable design outcome as to the integration of the additional parking and the pre-existing design intent of use of that part of the site for a joint water quality/on-site detention facility;[81] and
  1. (c)
    In this context, it is then contended that:
  1. (i)
    A fundamental problem which is thereby demonstrated is the eliding of the two quite different proposed uses, for detached dwellings and shops, in the provision of a combined requisite total of car parking spaces;
  1. (ii)
    That the particular difficulties in respect of the visitor car parking spaces referable to the shops, is that they are accessible only from the internal road, when the frontage of the shops is to the surrounding streets and that no specifically related such spaces are provided for the SOHO Lots 9 & 16 (as they are respectively located on the intersections William and Elizabeth Streets with Heathfield Road).  The contention is that this is an unsatisfactory and practically unrealistic proposal, as described by Mr Adamson and in terms of expectation of utilisation of use by visitors to those shops and particularly those in the SOHO Lots 9 & 16; and
  1. (iii)
    The proposed solution is only based upon the stated “expectation” of the engineer, Mr Green, that a “suitable design outcome” will be achieved. 

Conclusion

  1. [52]
    As to the last contention, it need only be noted that the Co-Respondent’s concession is as to the acceptance of a condition of the approval, which will necessarily be as to satisfactory achievement of the necessary outcome and at this stage, the relevance of Mr Green’s evidence is to demonstrate only the feasibility of such an outcome. The proposed visitor carparks are sufficiently proximate to the locations they are intended to support and it is not a question as to whether or not they are optimally so located.
  1. [53]
    Again and in the context of the development as proposed, it should be conclude that no particular conflict nor unacceptability of outcome is proposed, as far as on-site parking is concerned.

Identification of On-Street Parking Issues

  1. [54]
    In relation to the issue of on-street parking, the First Appellant’s submissions commence with reference to the acknowledgment in MP2000, at 3.11.4, that, “vehicular parking is a major issue in this Precinct.” The particular consideration noted by Mr Adamson, effectively as to the reduction of the total available area for car-parking along the street frontage, largely consequential to the proposed driveways, is sought to be supported by reference to the report of the Respondent’s Senior Development Planner, prepared prior to the decision notice dated 29 June 2016, as follows:

“The current site has 12 delineated on-street car parking spaces along Heathfield Road, and unmarked on-street parking along Elizabeth Street (approximately 12 spaces) and Williams Street (approximately 15 spaces).  There is also an existing onsite car park of about 27 spaces.  This totals approximately 66 spaces.  As a result of new driveways, the site entrance, and the loss of the onsite carpark, the proposed development would reduce this parking to the following: 5 spaces on Heathfield Road, 6 spaces on Williams Street and approximately 14 (unmarked) spaces on Elizabeth Street, resulting in a total of 25 on-street spaces.  Overall, this would result in a loss of approximately 41 public parking spaces (14 of those on the street) in Coolum’s village centre.”[82]

And also by reference to a draft local area parking plan, published by the Respondent in March 2017 and which included apparent results of some prior analysis of parking occupancy in and around the Coolum Beach Village Centre Precinct.[83]  The following submissions were made:[84]

“(85)  Neither Mr Viney nor Mr Pekol suggested that this ‘major issue’ had eased since then.  On the contrary, the council’s own study (Exhibit 13) suggested that Heathfield Road in the vicinity of the proposed development was operating at 90-100% capacity during weekdays and that on-street car parking in William Street is little better.

  1. (86)
     The survey undertaken by Mr Pekol confirms that view.  Despite its obvious shortcomings, it demonstrates that demand for parking in the adjoining streets will exceed supply even without consideration of any demand created by the proposed development.”
  1. [55]
    From these premises, some further propositions are made:
  1. (a)
    On the basis that 27 existing on-site spaces are included, there is an absolute reduction of 38 spaces;[85]
  1. (b)
    Even on what is contended as the most favourable view to the Co-Respondent, of a deficiency or reduction of 1 space, it is submitted that this ignores the loss of 7 spaces arising from the Infrastructure Deed and wherein it is expressly agreed that the Respondent Council is under no obligation to provide on-street parking with the contribution moneys paid by the Co-Respondent;[86]
  1. (c)
    The identified obligation in Planning Scheme Policy No. 6 that on-street parking at the rate of 2 spaces per detached dwelling ‘must be provided’, does not allow the Co-Respondent “to point to existing spaces as satisfying the requirement to provide car parking spaces” (as emphasised);[87]
  1. (d)
    In any event, the matter is compounded by the likelihood that the development itself will add to demand for on-street parking, particularly because of the already noted inadequacy of visitor parking lots being provided on the internal road.[88]

Analysis

  1. [56]
    The first difficulty with these propositions is in identifying any basis for a conclusion that any conflict arises with the Planning Scheme, as far as the requirements of that scheme in respect of on-street parking relate to this proposed development. This is particularly so when it is understood that a further recommendation of Mr Pekol is as to the identified prospect of including a further 3 spaces on William Street and the acceptance of that proposition by the Co-Respondent as a further matter for condition in any approval.[89]
  1. [57]
    The result is 31 designated or identified car parking spaces around the streets immediately adjacent to the boundary of the proposed development and adjacent to constructed verges and footpaths. It is noted that this will, in William Street, provide for an obvious improvement in respect of the present absence of any kerbing and channelling, or verge, to the footpath and roadway,[90] with the integration of the proposed parking spaces in William Street being incorporated or indented into the footpath rather than the edge of the roadway.
  1. [58]
    The submissions for the Co-Respondent accept the need for the 43 detached dwellings to be supported by 29 on-street parking spaces.[91]  As it is understood and once Mr Pekol’s suggestion is accepted, there is no contrary contention for the Appellants of shortfall in the requisite and identified number of spaces. And it must then be concluded that these identified car parking spaces meet the requirements of the Planning Scheme in the identified Policy Schedule and in respect of the “provision” of on-street car parking spaces.  As a requirement attaching to any particular development application or approval, the requirement as to provision of on-street car parking spaces is clearly able to be met by reference to the immediate configuration of the streets to which a development site adjoins, and it is difficult to see how this requirement could be logically or sensibly construed otherwise than as to such a conclusion.
  1. [59]
    Neither may the remaining contentions as to any relevant sense of unacceptability of the proposal in terms of impact in respect of on-street parking be accepted. As is correctly contended for the Respondent, any development of the subject site, whether consistent or inconsistent with MP2000, may affect demand for on-street parking in the vicinity. That is also to be noted as the reality of a Village Centre Precinct, such as that at Coolum, and it is a matter of realistic expectation that this Precinct experiences, at particular times and in some parts, high demand for parking and that such demand may at times exceed the available supply of on-street parking in particular parts of the Precinct. For example, adjacent or near to the focussed commercial uses on The Esplanade or David Low Way.[92] Accordingly, it is not just a matter of considering the supply of on-street parking in the streets immediately adjoining the development site but rather, and as was the approach of Mr Pekol in his survey and otherwise, to consider a wider context of potential availability of on-street parking.  The point may be exemplified by noting that, as far as the specific identification in Exhibit 13 of most of Heathfield Road having a typical peak weekday parking occupancy in the order of 90 to 100%, it may also be noted that the equivalent identification in:
  1. (a)
    Williams Street is 60 to 70%; and
  2. (b)
    In most of Elizabeth Street (including that section which is adjacent to the subject site), in the order of 0 to 50%.

It is also to be noted that this and Mr Pekol’s evidence generally supports a conclusion of general decrease in parking utilisation with distance from the beach, or The Esplanade or David Low Way.[93]

  1. [60]
    Some potential on-street parking impact may be logically recognised as following approval of this development, in the context of the noted change to the pre-existing approval and the Infrastructure Deed made with the Respondent Council. Further, this may be seen as a consequence of any approved development of the Subject Site, because of the recalculation of number of required carparks having regard to the scope of proposed development. However, and whilst the proposed development will mean that the larger number of temporary car parks on the site will no longer be available, the real issue is as to whether the requisite number of on-site car parking spaces are provided. As has been noted above, that requirement of the planning scheme, as far as it is referable to the proposed development, is met. Further and once it is understood that there is compliance with such requirements as are directly referable to the proposed development, the agreement with the Council and the change made to the pre-existing approval for the entire land, may be seen as primarily, if not entirely, referable to the previously identified demands of the existing Element Stages 1 & 2 and which, in the context that has been noted above, is likely to become separated from any development that may occur on the Subject Site. And accordingly and to the limited extent that this consideration is referable to the assessment of this application, because it is for the purpose of facilitating this application that the changed position has been negotiated, the only appropriate consideration is as to the potential impact of the loss of an expectation of a further 7 on-site parking spaces, upon the demand for on-street parking in the vicinity of this land.

Conclusion

  1. [61]
    Neither this consideration nor any other that has been raised in respect of the impact of this proposed development in respect of on-street parking in the Coolum Village Centre Precinct, leads to any conclusion that the proposed development is in conflict with the planning scheme. That scheme does not require that the proposed development maintain what may be calculated as the potential availability for car parking in the adjoining streets, particularly upon an undesignated or unformalised basis. As noted by Mr Pekol, any formalisation or regulation of street parking arrangements may have a tendency to reduce the number of available spaces.[94]  And in any event, issues relating to the formalisation and regulation of parking in this precinct remain as an issue for Council, irrespective of whether or not there is any specific commitment for the infrastructure contribution paid in respect of the change to the pre-existing approval.  And so much is expressly recognised in exhibit 13 and particularly in respect of expectation of the formalisation of parking arrangements in Williams Street.  That outcome, together with the formalisation of footpaths and the pedestrian access through the site from Williams to Elizabeth Street, are properly recognised as positive results of the proposed development.[95]
  1. [62]
    The planning scheme does not require that the proposed development maintain the existing potentiality for car parking in the streets adjoining the subject site. Further and as Mr Pekol conceded, it may be recognised that there is some reduction of that potentiality to be considered in respect of the proposal and due to the inclusion of driveways and the formalisation of on-street parking on Williams Street. However, and as correctly pointed out, the planning scheme only requires the provision (or perhaps it might be said retention) of a minimum number of on-street parking spaces, referable to the number of separate detached dwelling in the proposal and that requirement is met. Moreover, the evidence supports the conclusion that there is capacity in the street relatively near to the site of the proposed development to meet all of the expected demands of this proposal, in the context of overall demands of the precinct. Accordingly, there is no conflict demonstrated with the planning scheme having regard to the issue of on-street parking and nor is there any established unacceptable impact in this respect, arising from the proposed development.

Overall Conclusions

  1. [63]
    Moreover, and for the reasons that have been given, the evidence of Mr Pekol, in particular, may be regarded as of particular assistance in respect of the traffic and parking issues and not as contended for the First Appellant, to be dismissed as “superficial and glib”.[96]  Rather, his evidence demonstrated attention to detail and examination of the issues, including by empirical analysis.[97]  It is notable that his evidence included the identification of issues that became accepted as appropriate for conditions attaching to any approval granted by the Court and in order to remove any suggestion of non-compliance of conflict with the planning scheme.
  1. [64]
    For the reasons that have been given and on the evidence before the Court, it is to be concluded that:
  1. (a)
    There is no conflict with the planning scheme as far as it relates to traffic and parking issues related to the proposed development;
  1. (b)
    There are no identified unacceptable impacts arising from the proposed development, referable to traffic and parking issues.

However, as has been noted, those conclusions relate to the assessment of the use of the Subject Land in the way it has been proposed. Accordingly and whilst there is no identified conflict with the planning scheme and, more generally, no identified unacceptable impacts arising in respect of traffic and parking considerations, and in relation to what is referred to in the evidence as a proposed small lot largely residential development, that does not mean that noted aspects of and incidental to, the proposal, such as the number of driveways connecting to the street system and perhaps, to a lesser extent, the effective reduction in the expectation as to provision of on-site car parking spaces referable to the Element Stages 1 & 2 development, may not be considered as relevant impacts in the more general assessment of the proposal against the planning scheme. This is particularly because, as will be seen, the very nature of the proposal (as described) is at the heart of the matter more generally in contention.

The Planning Scheme – more generally

Identification of the issues

  1. [65]
    The remaining issues that are raised as to conflict with the planning scheme by the Appellants, require more general consideration of the planning scheme and the interpretation of it.  The issue is reflected in some detail in the evidence of Mr Adamson.  First, it may be noted that in his individual statement to the Court,[98] he sets out his overall concluding view:

“76.  The proposed development seeks to establish small lot housing and a small amount of disjointed retail development on land included in the Village Centre Precinct.  The small retail component appears to be an attempt to meet the provision of a range of goods and services expected in the Village Centre Precinct (3.11.4); however, in my opinion, the proposal falls well short of satisfying this need and is primarily a residential development, which should be located in a residential precinct.”

  1. [66]
    It may be further noted that Mr Adamson’s exposition of that view begins with the uncontroversial observations that:

“7.  The site is situated within the Village Centre of Coolum, which is comprised of a range of uses including restaurants and cafes, shopping complex including a Coles supermarket, speciality shops, local community services, offices and residential buildings including multiple-dwelling units, detached houses and accommodation buildings (refer JER Attachment B Land Use Plan).

  1. …There are in fact two (2) remaining Detached Houses in the Village Centre Precinct, both in Margaret Street, which are historic and pre-date the superseded Planning Scheme.  No new Detached Houses have been constructed in the Village Centre Precinct.  Importantly, a range of multiple-dwelling units and other multi-unit accommodation buildings have been constructed in the Village Centre.  A number of the multiple-dwelling and accommodation buildings provide for visitor accommodation, including the existing Element Holiday Apartments (15) and the Coolum Beach Resort (39) (refer to the Land Use Plan – JER Attachment B).  The majority of the development in the Village Centre Precinct is of a retail and commercial nature.”[99]
  1. [67]
    Also and by way of more specific reference to particular aspects of the Planning Scheme, Mr Adamson identified what he described as “fundamental conflict with the Retail and Centres Hierarchy under the planning scheme”,[100] by reference to:
  1. (a)
    The higher order provisions in respect of such a hierarchy, as located in the Strategic Plan in Volume 2 of MP2000 and particularly as found in Parts 2.4, 2.8, 4.2, 4.3 and 4.4 and the Strategic Plan Map 2.1; and
  1. (b)
    The more specific provisions in Volume 3, relating to planning areas, precincts and precinct classes and particularly that relate to Planning Area No. 11 Coolum Beach as found in Part 3.11 of Volume 3 of MP2000.[101]

Mr Adamson then summarised his views as follows:

“28.  In summary, the Village Centre of Coolum forms part of the Retail and Commercial Centres Hierarchy.  There are economic and community advantages in recognising and supporting the Retail and Commercial Centres Hierarchy, which provides for a range of retail and commercial facilities satisfying the needs of host towns, including Coolum Beach.  In particular, is stated in the Strategic Plan that development within a Village Centre which fragments the centre or creates a focus away from the established Centre in that locality will not be supported (4.3.3 – last dot point).

  1. The planning provisions consistently seek to maintain the Village Centre for commercial and retail development, which flows from the Strategic Plan (Volume 2, Part 2) to the Statement of Desired Precinct Character (Volume 3, Part 3.11).  The proposed development provides for 510m2 of retail and commercial development, as 10 separate commercial premises attached to 10 Detached Houses.  The 510m2 of retail development is over 1.05 ha (subject land), which falls well short of providing for the scale of retail and commercial development likely to be needed for residents and visitors in the future.  Instead, the proposed development is primarily a small lot housing development, which fragments the centre and creates a focus away from the established centre.  The provisions also specifically seek to consolidate and maintain the integrity of the Retail and Commercial Centre Hierarchy, in order to promote private and public sector confidence (4.4.1).” (Some citations omitted).[102]
  1. [68]
    Mr Adamson also identified what he viewed as “serious” conflict with the specific provisions under Part 3.11 Planning Area Number 11 Coolum Beach, for the following reasons:

“38. Under Part 3.11.4 it is specifically stated that redevelopment opportunities for mixed accommodation, commercial and entertainment uses of the caravan site will be encouraged.  It is intended to provide for a mixed use development, which comprises mixed accommodation, commercial and entertainment uses.  These provisions need to be read in conjunction with the other provisions in this part, which state that the land in the Village Centre be used to provide for a range of retail goods and services, to cater for the needs of residents and visitors.  Further, given the subject land forms part of a Major Tourist Node, higher density residential uses are also intended to provide for visitor accommodation.  In my opinion, the site specific provisions need to be read as a whole.

  1. Under the preferred and acceptable uses (Part 3.11.4), a range of retail, commercial and residential uses are provided for, including an Accommodation Building, Multiple Dwelling Units and a Detached House.  In my opinion, the reference to a Detached House allows for ‘shop-top’ residential uses, where appropriately designed and sited.  ‘Shop-top’ housing is not defined under the planning scheme, but is considered to be one or more dwelling units located above the ground floor retail or business premises.  In this case only 10 of the proposed 43 Detached Houses could be considered a ‘shop-top’ residential use.  Stage 1 of the Element development contains this very concept, with a range of retail and commercial uses at ground level with multiple dwelling units above, which are three (3) storeys in height.  There is no reason why this type of development could not occur on the subject land now or in future, consistent with the planning scheme.
  1. Under the provisions for landscape and built form (Part 3.11.4) for the Village Centre Precinct, a preferred maximum density for multi-unit residential or mixed use premises is provided, with a maximum building height of three (3) storeys.  The maximum density of dwelling units allowed for the subject land is 75.[103]  This number of dwelling units (sic) considerably more than that being proposed and would be in a form of a Multiple Dwelling Unit or Accommodation Building.  Further, this would not result in the fragmentation of the land into small housing allotments.  Having regard to the provisions, including the Table of Development Assessment (JER Attachment D), Multiple Dwelling Units or an Accommodation Building are code assessable, where above the ground level, but otherwise subject to impact assessment.  This suggests that the intended form of development in the Village Centre Precinct, is for retail and commercial development at the ground level and Multiple Dwelling Units or an Accommodation Building above the ground level (which is effectively ‘shop-top’ housing).
  1. In my opinion when considering the higher order provisions under the Strategic Plan and the more site specific provisions as a whole, the land should be used for a mix of uses, being primarily comprised of retail and commercial uses at the ground floor, consistent with the Village Centre Precinct, with residential accommodation above, that would cater for visitors to the Coolum Beach Precinct area.  The density and type of the residential component is expected to be in the order of 75 dwelling units,[104] which can be in a three (3) storey building, being located on top of commercial and retail development and a basement carpark.
  1. In my opinion, the Element Stage 3 approval only goes part of the way to satisfying the requirements under the superseded planning scheme.  This is because there is no retail or commercial development provided with Stage 3.  In contrast the proposed development is primarily a small lot housing development, with a limited amount of retail or commercial development, in the form of 10 ‘shop-top’ housing sites and an additional 33 Detached Houses. 
  1. The proposed development is primarily a long-term residential use, rather than a mixed-use, retail, commercial and visitor accommodation development.  Nowhere under the site specific provisions for the Village Centre Precinct (Part 3.11.4) is there any reference to Detached Housing other than as ‘shop-top’ residential uses.  In my opinion, the sub-division of the subject land to provide for Detached Housing is not the preferred and acceptable use of the land.”[105]
  1. [69]
    Further Mr Adamson also identified what he described as “serious conflict with the Code for Reconfiguring a Lot and the Code for Town and Village Centres, in terms of the overall built form outcomes intended to be achieved on the subject land”.[106]  The essence of this reasoning is to be found in the following:

“48. As expressed above, in my opinion, the proposed development is not consistent with the intended role and the desired character of a Village Centre.  This is because the development is primarily for a small lot housing development, this being a Detached House on a single allotment.  Whilst some ‘shop-top’ housing is being provided, this provides for a relatively small amount of retail and commercial development, which does not contribute to the creation of a successful and attractive Centre.  Further, the amount of commercial development is not at an appropriate scale intended role and function as part of the Village Centre Precinct. 

  1. Under the Code for Reconfiguring Lots (Part 8), the minimum allotment size is 1200m2 for land in the Village Centre Precinct (Table 8.2).  In my opinion, it is not intended that a small lot housing development comprising allotments that range in size from 140m2 to 175m2 occur in the Village Centre Zone.  The allotment sizes and dimensions are not consistent with the desired character of the precinct in which it is situated.  Further, the proposed development reconfigures the land and does not reconfigure existing or approved buildings.

….

  1. At JER 89, reference is made to Detached Houses having been designed to represent small scale interpretations of the traditional beach house should not be applied to the Village Centre Precinct.  The reference to traditional beach house design under Part 3.11.3, needs to be read as a whole including the references to commercial and business activities.  Further, under the more specific site provisions under 3.11.4 for the Village Centre Precinct, no mention is made of Detached Housing other than ‘shop-top’ housing.
  1. At JER 91, the reference made to a Detached House under the table of assessment for the Village Centre Precinct (Attachment AD of the JER), relates to ‘shop-top’ housing.  Importantly, Multiple Dwelling Units are only code assessable where located above ground level.  This suggest that the intended development form is for retail and commercial development at the ground level, activating the street frontages, with higher density residential above the ground level.  This mixed use development approach would also be consistent with the Major Tourist Node designation under the Strategic Plan (4.3.5), having the role of a Local Centre.
  1. At JER 92, 95 and 96, reference is made to the current approval over the land for 96 accommodation units, grouped in three (3) storey buildings over a basement carpark.  This development was approved under the 1985 Planning Scheme and is integrated with Stages 1 & 2 of the Element development.  The integration is in terms of access and the provision of basement car parking for the entire development.  The proposed development is not integrated with the Element development and has no resemblance to it.  In my opinion, this is no justification to allow for a 43 allotment small lot housing development.  While there is a small retail and commercial component attached to the proposal, this falls well short of the providing the scale of retail and commercial development intended in the Village Centre Precinct, needed to serve residents and visitors to Coolum Beach in the future.
  1. At JER 99, the subject land is included in the Village Centre Precinct.  All of the provisions relating to the Retail and Commercial Centres Hierarchy under the Strategic Plan (Part 4 – Retail and Commerce) seek to provide for retail and commercial development to meet the future needs of residents and visitors (4.3.3 Village Centres).  While the more site specific provisions also provide for a mix of uses, this is primarily to be in the form of providing a range of retail goods and services for every day needs of the local population, but can also provide Multiple Dwelling Units and Accommodation Buildings above ground level (3.11.4).

….

  1. At JER 138 and 144, it is suggested that the development is similar to a Multiple Dwelling Unit development, which is not the case.  The proposed development reconfigures the land into separate allotments, which then allows for a Detached House to be established on each, mostly being separated by open space.  The establishment of a Multiple Dwelling Unit development is a more intensive form of development, such as Element (Stage 3).  This would not result in the reconfiguration of the land into individual allotments and would not have the appearance of a number of detached houses, which is completely out of character in a Village Centre Precinct.”
  1. [70]
    By way of contrast, the contentions of each of the Co-Respondent and Respondent were similarly reflective of the largely agreed position of each of the town planners called by them, respectively Mr Perkins and Mr Schomburgk. The contentions are consistent as to a conclusion of absence of conflict with the planning scheme and, it may be observed, are particularly influenced by what is identified as a site specific (that is, in respect of all of Lot 103 as it exists) provision in part 3.11.4 in Volume 3 of MP2000 and in the Statements of Desired Precinct Character for the Coolum Beach Village Centre, as follows.

“Redevelopment opportunities for mixed accommodation, commercial and entertainment uses of the caravan park site in Elizabeth Street will be encouraged.”

  1. [71]
    The particular consideration and influence of this statement in the views expressed by Mr Perkins and Mr Schomburgk may be gleaned from the summation of their opinions in the Joint Expert’s Report – Town Planning,[107] in support of the following conclusory summation:

“177.  Mr Schomburgk and Mr Perkins say that the proposed development does not offend or conflict with any of the relevant planning scheme provisions.  Rather, they agree that the proposed development is a mixed use development, appropriate on this part of the site, and will add to the mix of land uses and to the vitality of the centre as a whole.  They say that the residential component of the proposed mixed use is, in practical effect, a multi-unit development, with the distinction from traditional multi-unit developments being that the units are to be physically separated, and will be individually titled.  The proposed development is also at a lower building height and lower density that the currently-approved 96 units on this part of site.  We note that the current approval has no non-residential component.”

The more detailed expressions of opinion and to which that summary relates, may also be noted to include contentions, variously, that the proposal is consistent, and not in conflict, with MP2000 because of:

  1. (a)
    The contribution of the proposed development in the context of the already established uses on the site, to the mix of accommodation types, with the addition of some retail and commercial use opportunities;[108]
  1. (b)
    The intent of MP2000 in respect of a mix of retail, commercial and accommodation uses is to be achieved and has already been achieved across the planning area;[109] and
  1. (c)
    The proposal is not dissimilar and effectively, or practically, a multiple dwelling units outcome;[110] and they are each dismissive of any concerns as to conflict with the Code for Reconfiguring a Lot, upon the basis that the considerations as to reconfiguration are merely as to land tenure.[111]  And each confirmed views as to acceptability of the proposed land uses, by reference to the Table of Development Assessment for Centre Precincts in Volume 1 of MP2000, which identifies that preferred or acceptable uses, for Village Centre Precincts, include “Detached House” and various commercial uses, and note that this would have allowed for code, rather than impact, assessment of the application for approval of material change of use of the Subject Land, in the absence of the application for approval of the reconfiguration of the lot.
  1. [72]
    In the context of the last noted premise, in particular, it should immediately be recognised that these contentions as to the practical equation with a use in the nature of “Multiple Dwelling Units”, and as to consequent insignificance of the aspect of the development application relating to the reconfiguration of the lot and, particularly, to the extent such were picked up in the submissions of the Respondent, should not be accepted. For the purposes of MP2000, “Multiple Dwelling Units” and “Detached House” are separately defined, as identified “Residential Uses”.[112]  And the obvious significance of the need to obtain approval for the reconfiguration of the lot, is the very fact that impact assessment was thereby engaged, with the ultimate consequence of these proceedings. It is clearly not just an issue as to the timing and arrangement of titling,[113] but rather a critical and integral aspect of the development application.
  1. [73]
    Further, and whilst each Respondent is, legitimately, at pains to contend as to the absence of any direct or express indication of conflict with MP2000 (which approach particularly proceeds by reference to more specific parts of the scheme, in turn), that position does also seek to embrace the view that issues in respect of reconfiguring the lot may be largely put aside. However and alternatively, and to the extent that the Code for Reconfiguring a Lot is viewed as relevant, particular emphasis is placed upon the contention that Mr Adamson has relied on a stated acceptable measure as to lot size and dimension and the principles noted in prior decisions, in respect of the difficulty in finding conflict in statements of acceptable measures in such a code.[114]
  1. [74]
    However these contentions do not necessarily meet those put forward by Mr Adamson, which, at least at face value, have the virtue of the support of the authorities which establish the appropriate approach to interpretation or construction of planning schemes, as requiring a holistic approach and so as to discern the tenor of the scheme.[115]
  1. [75]
    As has been noted, this is ultimately a matter for the Court but, and in terms of any assistance that may be gleaned from the evidence of Mr Adamson and more importantly, the reliance upon his views in the submissions for the First Appellant as to the interpretation or construction of the scheme, it should first be noted that a number of matters are, correctly, pointed out by the Co-Respondent, as concessions made by Mr Adamson:
  1. (a)
    That the existing Element Stages 1 and 2 “is an example of the type and scale of mixed-use development that is expected on the subject land”;[116]
  1. (b)
    That having regard to the absence of any retail or commercial component in the pre-existing approval for Stage 3, the subject proposal is more consistent with MP2000 but “it doesn’t go far enough in terms of scale for the retail component”;[117]
  1. (c)
    By further comparison, the pre-existing approval for Stage 3 is not “small scale” and exceeds the maximum or preferred residential density of 70 units,[118] whereas and in the context of many statements in the planning scheme of intention of “small scale” development, the subject proposal is “small scale” and within the preferred maximum residential density for the Precinct;[119]
  1. (d)
    That, in the context of the statement of Design Intent for the Planning Area,[120] the proposed design of the houses (including the SOHO components) meets the statement of:

“modern interpretations of traditional beach-house design which provide high quality but informal and relaxed commercial environments”.

 As was a feature noted by Mr Perkins and Mr Schomburgk;[121] and

  1. (e)
    That in its current vacant form, the Subject Land does fragment the Village Centre.[122]

Relevant Scheme Provisions

  1. [76]
    Given the nature of the suggested conflict with MP2000 and the breadth of those parts of the scheme that have been contended to be potentially relevant to the question of conflict, it is desirable to set out, in some detail (including for relevant contextual purposes), what appear to be the more germane provisions to the issues that have been raised in submissions. That will not include detailed reference to that part of the Strategic Plan in Volume 2 of MP2000, which constitutes Part 2 “The Vision” or the stated “Desirable Environmental Outcomes”.[123] That is not because such provisions are to be regarded as irrelevant to the question but rather because, in the context of the relevant issues, it is not possible to discern conflict with this planning scheme in any such broadly stated objectives, if such is not to be found in the progressively more specific and subsequently stated strategies and policies, for the purpose of achieving such vision and objectives.
  1. [77]
    Further and whilst some reference was also made to the South East Queensland Regional Plan 2009-2031,[124] I am not satisfied that anything is relevantly engaged in the broadly applicable and expressed, desired regional outcomes and which may overcome any identified conflict with MP2000 as such is contended in the submissions of the Appellants.
  1. [78]
    As noted in Volume 1, MP2000 is, relevantly, structured as follows:

“(1)  This volume (Volume 1) comprises:

  1. (a)
     an explanation of the background to the Planning Scheme and the approaches used in the Planning Scheme;
  1. (b)
     Performance indicators by which the effectiveness of the Planning Scheme in achieving the desired environmental outcomes will be measured;
  1. (c)
     guidance in the use of the Planning Scheme
  1. (d)
     a dictionary of terms used throughout the scheme;

…

  1. (2)
     Volume 2 comprises the Strategic Plan which sets out:
  1. (a)
     the Vision and desired environmental outcomes (DEOs) for the Shire as a whole; and
  1. (b)
     the broad, Shire-wide measures (including objectives and implementation criteria) by which the desired environmental outcomes are intended to be implemented.
  1. (3)
     Volume 3 comprises the statements of desired character and intent for each of the Planning Areas and Precincts, and Precinct Classes, into which the Shire is divided for the purposes of the Planning Scheme.
  1. (4)
     Volume 4 comprises the Planning Scheme codes.
  1. (5)
     Volume 5 comprises Structure Plans for declared master planned areas identified as requiring more detailed guidance in respect to planning and infrastructure outcomes.

…”[125]

  1. [79]
    More particularly, Volume 1 provides for the “Administration and Assessment Requirements”. Section 1.2 sets out the role of the scheme:

“1.2 Role of the Planning Scheme

  1. (1)
     This Planning Scheme has been prepared under the provisions of chapter 6 of the Integrated Planning Act and it applies to the whole of the Shire of Maroochy.
  1. (2)
     This Planning Scheme is intended:
  1. (a)
     to help advance the purpose of the Integrated Planning Act in seeking ecological sustainability;
  1. (b)
     to regulate the development on, and use of, premises in a way which encourages orderly and sustainable growth having proper regard to environmental values, community needs, availability of services and facilities, and choice;
  1. (c)
     to recognise the individual character and needs of different areas across the Shire;
  1. (d)
     to provide a framework for the efficient and equitable development and funding of infrastructure;
  1. (e)
     to facilitate the integration of State, regional and local policies and interests;
  1. (f)
     to provide a basis for assessing development applications; and
  1. (g)
     to provide residents, public authorities and investors with confidence about future land use and development within the Shire.”[126]

Section 2.2 serves to explain that the Shire to which MP2000 applies, is divided first into Planning Areas, in respect of which it is stated:

“2.2 Explanation of the Way the Shire is Divided for the Purposes of this Planning Scheme

  1. (2)
     The Planning Areas have been defined on the basis of previously undertaken local area planning, the dominant established and preferred future land use pattern, broad landscape character, and major physiographical and biological systems. These Planning Areas provide a link to the Strategic Plan through setting each area’s context and role within the Shire.”[127]

And then divided into Precincts, within each Planning Area and in respect of which, it is explained:

“(3)  The Precincts have been defined on the basis of previously undertaken local area planning, the distribution of existing and preferred future land uses, landscape/townscape character considerations, transport networks, community views and values and environmental systems and values. These Precincts establish each locality’s context and role within the Planning Area, and the desired future local character.”[128]

It is otherwise stated that:

“(4) Proposals for impact assessable development will be assessed against the statements of desired local character (made up of the Location and Role, Vision Statement and Key Character Elements) for the Planning Area and the Statement of Desired Precinct Character for the individual Precinct in which the development site is situated which are set out in Volume 3.

  1. (5)
     Proposals for impact assessable development will also be assessed against the Strategic Plan (Volume 2). The detailed local planning provisions in Volume 3, are intended to be based upon and reflective of the general principles in the Strategic Plan. However, it is the Planning Area Provisions in Volume 3 which represent Council’s specific planning intent for the relevant localities.
  1. (6)
     Where there is no direct inconsistency between Volumes 2 and 3, but merely different or additional outcomes or requirements indicated, Volume 3 constitutes the primary basis for assessment, but all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme. If the different statements in Volumes 2 and 3 are inconsistent, statements in Volume 3 prevail over inconsistent statements in Volume 2. This reflects the fact that Volume 2 provisions are either broad strategic statements or statements of general principle, whereas Volume 3 provisions state specific and considered planning intents for identified localities. It is an incorrect use of the Strategic Plan, and an incorrect interpretation of this Planning Scheme, to rely on anything in the Strategic Plan to support or justify as being consistent with the Planning Scheme, an outcome which is contrary to the Planning Area provisions.”[129]

Further and pursuant to subsection 2.2(8), it is noted that each precinct is to fall within one of the stated classes. In this case the proposed development is to be located within “Planning Area No. 11 Coolum Beach”, “Precinct 1 Coolum Beach Village Centre”. It may be noted that pursuant to subsection 2.2(8) of MP2000, “Village Centre” is a sub-class of the class “Centre” and that the other stated classes are “Rural”, “Residential”, “Industry” and “Other”. Otherwise, it may be noted that Volume 1 of MP2000 provides for definitions of terms used in the scheme and in designation of the uses of land under the scheme and for the assessment of material change of use of land. As has been noted, it is necessary to have regard to some aspects of these definitional provisions.

  1. [80]
    Volume 2 contains the Strategic Plan, which by way of introduction, is described as intended to “establish the strategic policy to be considered in the assessment of impact assessable development.” It is further stated that:

“It is intended that the Desired Environmental Outcomes, the Strategic Implementation Measures and the more detailed measures included in Sections 3 to 20 of this Volume be used as assessment criteria for the preparation and assessment of applications for impact assessable development as determined by the Tables of Development Assessment contained within Volumes 1 and 5 of this Planning Scheme.

Applications will be assessed to determine if the proposed development is compatible with the Desired Environmental Outcomes for the Shire and with strategic policy as established in Sections 3 to 20 of this Volume. Development proposals will also be considered in terms of cumulative impacts, and the extent to which such impacts may compromise the achievement of the Desired Environmental Outcomes.”[130]

Of the ten “Preferred Dominant Land Uses” identified in subsection 1.3, it is the “Urban” category which is relevant. Subsection 3.1 contains the following explanation:

"Urban Development" embraces development in those areas where residential uses of an urban density dominate and includes those other uses (principally commercial and retail, social and educational facilities and industry) which are required to service the residential areas and are normally integral components of such areas.”[131]

Then and under the heading “Urban Strategy” in subsection 3.3, the following may be noted:

“3.3.2 The Urban allocation indicates areas existing and preferred for predominantly residential use. A range of ancillary uses such as commercial and retail, social and education facilities and industry may also establish within Urban areas…

3.3.5  Strategies and policies relating to matters such as lot configuration design, building siting, the location of commercial, transport and community facilities and the relationship between transport modes will be employed. These controls are aimed at improving social interaction and accessibility, primarily in new urban areas and commercial centres.

3.3.6  The spread of urban areas is contained in the interests of preserving the identity of individual communities, maximising the efficiency of urban infrastructure and minimising the loss of good quality agricultural and rural land and land possessing high habitat or scenic values. Containment strategies, such as urban renewal and infill techniques, are facilitated.”[132]

In respect of the Preferred Dominant Land Use – Urban, the following is noted:

“The Urban allocation identifies areas suitable for residential premises of varying densities, but allows for retail, commercial, community services and general industrial activities required to serve the day-to-day needs of local communities and which are of a scale appropriate to these needs.”[133]

And in respect of the identified objective of providing for a “Diverse Range of Housing and Residential Lots”, it is noted:

“While it is anticipated that the single detached dwelling will remain the dominant form of housing within the Shire, consideration needs to be given to the particular and changing demographic and economic characteristics of the Shire. This will be achieved by adopting residential standards which encourage a diversity of housing types and housing mix which meet community expectations.

Implementation

  1. Residential development will generally be in accordance with the desired character of the Planning Area and Precinct in which the premises are proposed to be situated.
  1. The Planning Scheme’s development provisions facilitate a range of lot sizes, housing types and higher density accommodation.”[134]

Another identified objective is identified as follows:

“3.5.5 To Enhance the Amenity of Existing and Proposed Residential Areas and Permissible Areas for Rural Residential

Appropriate lot reconfiguration design and land use planning contribute towards the well-being of residents and the broader community. This can be achieved by ensuring reasonable accessibility to services, improving safety for motorists, pedestrians, cyclists and the community generally, maximising the potential of the landform and providing useable recreation space linked where possible to regional open space systems.”

And the noted implementation strategies include:

“1. Council will have regard to the following criteria for applicable applications in the Urban areas and Permissible Areas for Rural Residential shown on the Strategic Plan Map:

  • the desired character of the Planning Area and Precinct in which the site is located;
  • the desired character of the Planning Area and Precinct in which the site is located; …
  • the adequacy of existing and proposed roads to cope with the level of traffic and on‑ street parking likely to be generated; …”
  1. Council will have specific regard to the following criteria for applicable lot reconfiguration applications and other applications which involve the layout of urban communities:
  • the design and layout of access ways, demonstrating that the location of lots, retail and community facilities, schools, recreation or open space, roads and pedestrian and cycle paths facilitate and provide easy access between homes and the places where the community shops, gathers and recreates, with priority being given to non-vehicular modes of transport;
  • the location of retail and community facilities to reflect their role as the focal point for the community in which they are located; …
  1.  Further detail on lot reconfiguration is provided in the Code for Reconfiguring a Lot.”[135]
  1. [81]
    And further identified objectives and implementation criteria are identified as follows:

“3.5.6 To Provide for Retail Commercial and Service Industrial Activities Appropriate to Service the Residential Communities without Compromising Residential Amenity

Local retail, commercial and service uses should be part of the urban fabric, as they can desirably form a part of the community to which they provide a service. However, they may cause detrimental impacts on residential amenity because of their potential to generate traffic and people movements, to produce noise and smell and to shed light. The concentration of such activities maximises community focus objectives and localises any potential amenity problems.

Implementation

Council will take into account the following criteria when assessing applications for non-residential uses in Urban areas and Permissible Areas for Rural Residential:

  1. Approval is only likely to be granted to development of retail, commercial and service uses which are to be located on a specific site (in a Centre Precinct or site specifically identified) and which offer a service only to local communities (other than in the Maroochydore Principal Activity Centre) and are consistent with the intent for, and desired character of the Planning Area and Precinct in which it is to be situated. Consideration will be given to the characteristics of the proposed use, including its location and scale, which determine its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity.
  1. It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities. In new communities, these nodes will generally have been established at the conceptual and detailed site planning stages. In older ones, they will be on specifically designated or referenced sites characterised by the existence of shopping groups or centres which are adequately accessible to a locality. In all Planning Areas the preferred site for the Local centre will be clearly referenced. Applications for retail, commercial and service uses outside these sites will not be supported.
  1. Consideration will be given to the impacts of noise, dust, smell, light and traffic on neighbouring properties by assessing the nature of the proposed activities, the proposed buildings and site layout, the roads from which access is obtained and the location and design of activity areas, parking areas, access points and sources of noise, smell or light relative to residential neighbours.

…

3.5.9 To Provide for Home Based Businesses which do not Impact on Surrounding Amenity

There is a growing demand for people to operate a low key business from their home for lifestyle reasons. These activities also have the benefit of reduced transportation and less demand on commercial areas. It will be necessary to ensure that the operation of any business does not impact on the amenity of others.

Implementation

…

  1. (2)
     Planning Scheme Code provisions define the Performance Criteria appropriate to acceptable homebased businesses and the performance standards to which they must operate.

3.5.10 To Provide for Increased Residential Densities in the Vicinity of Business Centres and Transport Nodes

The preferred urban forms of development include nodes and urban villages with a public transport interchange as a focus. The node would support higher densities of retail, commercial, industry and residential as well as civic and recreational spaces all within walking and cycling distances.

Implementation

…

  1. (2)
     The Planning Scheme consolidates existing opportunities for medium density residential developments in the vicinity of the commercial nodes of Bundilla, Buderim, Coolum, Maroochydore and Nambour in a manner which enhances their scope as transport nodes.”[136]
  1. [82]
    The Strategic Plan in relation to the retail and commercial activities is dealt with in section 4 and introduced by the following:

“4.1 Explanation

“Retail and Commerce” includes the people servicing activities which provide goods and services for the personal use of, or consumption by, the purchaser and which tend to collect as business centres in urban areas.

4.2 Key Issues

The key issues dictating the planning strategy in the identified Retail and Commercial areas include:

  • a Retail and Commercial Centres Hierarchy has formed with:
  1. –a Principal Activity Centre at Maroochydore as the highest order retail and commercial centre serving the Sunshine Coast Subregion, so identified because of its centrality to the coastal urban population, the existence of many regional public sector offices, the fact that it includes Sunshine Plaza, which at present houses the only large national department store on the coast, and its capability to be developed further as a multi-function centre with a distinct, attractive character and identity;
  2. –a Major Activity Centre at Nambour, servicing the town and its hinterland and providing a service role to local industry and the rural sector;
  3. –a Major Activity Centre at Sippy Downs, taking the form of a traditional town centre, containing retail, civic and commercial offices, key community facilities, medium density residential and a public transport interchange, serving the local community as well as sub-regional needs associated with the University of the Sunshine Coast;
  4. –traditional retail and commercial town centres in all of the rural towns;
  5. –Village Centres at Buderim and Bli Bli which act as neighbourhood centres, though their locations on arterial roads and roles as tourist centres distort the neighbourhood concept;
  6. –established individual shops or groups of shops taking on local functions; and
  7. –a number of Tourist centres, primarily at Mooloolaba, Coolum and Montville, which provide a range of commercial, retail, service and entertainment facilities primarily satisfying the needs of tourists.
  • economic and community advantages in recognising and supporting the Retail and Commercial Centres Hierarchy, particularly with respect to the Maroochydore Key Principal Activity Centre and Local centres which do not compromise higher order centres;
  • the need for the Shire’s retail and commercial services to cater for tourist as well as resident population, reflected in the relatively high retail floor space per capita ratio and the need for centres to absorb downturns in turnover during off peak times;
  • the demand for additional retail and commercial floor space in planned centres because of the likely continuation of high population growth in the short to medium term;
  • the expected continued demand for retail warehousing and need to manage demand to limit further ribbon commercial development along major roads in and around existing commercial centres and industrial estates;
  • the demand for additional office space for higher order facilities and perhaps for public service facilities;
  • the failure of some existing centres to meet appropriate aesthetic and social expectations, variously exhibiting the following –
  1. –retail and commercial centres which are disjointed and lack cohesion;
  2. –retail and commercial areas which fail to adequately address the street, placing parking areas abutting the street and containing facades which are out of context and demote civic profile;
  3. –inappropriate signage which detracts from the character of an area;
  4. –lacking community focus points which are accessible day and night;
  5. –inadequate access for pedestrians and cyclists;
  6. –inadequate street furniture; and
  7. –inappropriate structural landscape works which contrast strongly with the use of awnings on older buildings;
  • the need to address effects of the State controlled road network, including visual impacts and the impacts of traffic noise, dust and vehicle emissions;
  • excessive development of Local centres that provide services beyond convenience shopping levels and compete with higher order centres; and
  • the need for a clear policy on the location of centres in order to create certainty and clear expectations for the community and investment by the private and public sector.”[137]

The more specific strategies are relevantly provided as follows:

“4.3.3 Village Centres

  • these centres provide a range of retail and commercial facilities satisfying the needs of their host towns. The strategy seeks to enhance the character of the towns and their centres and it must therefore ensure that existing business areas retain their role as the principal retail and Commercial Service centres of their towns;
  • new commercial development in the rural towns is generally to occur in the Village centre, though corner or General stores may locate elsewhere in the surrounding urban areas strictly in accordance with the Code for Town and Village Centres;
  • land uses are generally expected to include small scale supermarkets that service the local community only, specialty shops, a range of local community services, such as libraries and health and education facilities, and small scale tourist facilities;
  1. –the total gross floor area for commercial uses in Village centres may consist of no more than 1,000m2 Gross floor area on any single development site;
  2. –uses such as retail showrooms, commercial recreation and repair and maintenance services are not generally considered appropriate in Village Centres;
  3. –some Village centres are to provide the level of service or perform the role of a Local centre; and
  4. –development within a Village centre which fragments the centre or creates a focus away from the established centre in that locality will not be supported

…

4.3.5 Tourist Centres

  • these centres are referred to as Major Tourist Nodes on the Strategic Plan Map;
  • these centres provide a range of tourist related facilities, including shops, take-away food shops, restaurants and cafes and a range of commercial facilities;
  • the concentration of tourist facilities in the identified tourist nodes is encouraged;
  • all 3 Major Tourist Nodes shown on the Strategic Plan Map are to provide the level of service or perform the role of a Local centre. No new Local centres will be approved in the locality of the Major Tourist Nodes.”[138]
  1. [83]
    It is common ground that the site is also located within a Major Tourist Node, as indicated on the Strategic Plan Map.[139] Accordingly, the relevant “Objectives and Implementation Measures”, as set out in subsection 4.4, are:

“4.4.1 To Consolidate and Maintain the Integrity of the Retail and Commercial Centres Hierarchy

The maintenance of the Retail and Commercial Centres Hierarchy protects the investments made in existing centres and promotes private and public sector confidence in, and public knowledge of, the Council’s continuing commitment to that investment. It also provides a basis for containing the growth and function of centres, limiting their spread into the residential areas in which they play a fundamental role and facilitating the concentration of certain uses in highly accessible and appropriately serviced areas.

Implementation

The Council will have regard to the following criteria when assessing relevant applications for development in the centres classified below…

Village Centres

  1. (20)
     All retail and commercial development in the rural towns will enhance and link with the existing business areas. The Council will not support applications seeking to expand the area of an existing centre unless such areas are fully and satisfactorily utilised. Support is not envisaged for retail or commercial development, other than a General store, in areas outside the Village centres.
  1. (21)
     Development in Village centres is to contribute towards a compact street level centre in which it is easy for the public to walk between all convenience retail and commercial facilities and car parking areas. The Council may seek modification of premises which consume an excessive amount of street frontage.
  1. (22)
     Showrooms and other land consumptive uses, which would fragment the continuity of retail shopfronts at street level, are generally considered at odds with the achievement of compact Village centres.
  1. (23)
     The existing David Low Way based facilities at Coolum are the Village centre. Retail and commercial activities in Coolum Beach will be concentrated between Beach Road in the south and Margaret Street in the north, to be consistent with the Coolum Beach Village centre Precinct in the Coolum Beach Planning Area in Volume 3 of this Planning Scheme.
  1. (24)
     The location of the centres intended to meet the needs of the Planning Areas are shown on the Planning Areas maps (or nominated in the specific provisions).
  1. (25)
     Development within Village centres will be consistent with established scale and character of small shopfronts unless otherwise specifically provided for in the Statements of Desired Character for Planning Areas and Precincts (in Volume 3)

…

Tourist Centres

  1. (32)
     Tourist centres are intended to be developed in accordance with the implementation criteria of Section 8.0, of the Strategic Plan.”[140]
  1. [84]
    Noting that the provisions in section 8 of the Strategic Plan are designed to have a broader application than to issues raised in this appeal and to locations extending beyond the Coolum Village Centre Precinct, it is only necessary to note the following:

“8.1 Explanation

“Tourism” is the activity of promoting visitation to an area and accommodating and servicing the visitors en route and in the area.

8.2 Key Issues

The key issues forming the basis for a Tourism strategy include:

  • the diversified tourism base of Maroochy Shire (including high rise and low rise tourist resorts by the sea, country villages with cottage industries, bed and breakfast accommodation and tourist oriented rural industries, rural retreats and host farms, and trails and walks through extensive tracts of National Parks and State Forests);
  • the concentration of tourist accommodation and facilities in Mooloolaba, Coolum and Montville, which are representative of a specific tourist experience;
  • the trend throughout the Shire to stand-alone destination resorts and tourist activities, such as tourist parks, providing a special part of the tourist experience and exhibiting different landscapes;
  • theme parks, resorts, caravan parks, tourist routes, beaches, art and craft workshops and galleries which account for 1 to 2% of the area of the Shire, but which are the Shire’s largest employer and industry sector;
  • the number of visitors to the Shire which is growing at a faster rate than the growth rates for permanent residents;
  • the recognition that the majority of visitors to the Sunshine Coast are day trippers while the most significant section of the market is the domestic family market, most of which are from Brisbane;
  • the increasing percentage of overseas visitors;
  • the fact that tourism will not only remain the most important single employer and industrial sector within the Shire, but is expected to increase proportionally in importance, ensuring strong growth in the coastal population centres and driving other strong sectors, such as the building and retail and commercial sectors.

…

8.4 Objectives and Implementation Measures

8.4.1 To Promote the Growth of Tourism in Recognition of its Importance to the Shire’s Economy in a Manner Compatible with the Natural Environment and the Existing Amenity

The long-term future of the tourist industry in the Shire and on the Sunshine Coast requires a commitment to enhancing the Shire’s image. The image which appeals to tourists is that of a broad range of good quality accommodation, commercial facilities and tourist facilities and the preservation of the integrity of the natural environment and its precedence over the built environment.

…

8.4.2 To Focus Tourist Activity into the Preferred Areas of Mooloolaba, Coolum and Montville

By promoting the concentration of tourist activity into a small number of nodes, the Strategic Plan intends creating compact and interesting tourist centres. It also signals the Council’s intention to favourably consider development for tourism purposes in particular areas and to honour its commitments to the ratepayers to focus investments into high quality schemes, such as streetscape upgrading, which improve the Shire’s tourist image. Within Mooloolaba, Coolum and Montville are relatively well established tourist nodes which best characterise the tourist experience of their respective localities without being unduly contaminated by non-tourist activities.

Implementation

  1. (1)
     Council will generally support development applications for tourist accommodation and facilities in the identified Tourist Nodes and at Montville in accordance with the Blackall Range Local Area Code.
  1. (2)
     Council will favourably consider development applications providing for the expansion or increased density of tourist or commercial centres in the identified Tourist Nodes where such applications are required to increase the area available for tourist activities.
  1. (3)
     Council may prepare Local Area Codes or other Planning Scheme provisions to better manage development in such areas.
  1. (4)
     Council may undertake local area improvement programmes in identified Tourist Nodes.
  1. (5)
     The realisation of this objective means that some tourist facilities are incompatible with the tourist and urban development being encouraged in these locations. In such instances, Council will have regard to the proposal’s theme, scale, character and compatibility with the existing or intended urban form and the relevant Planning Area intent and desired Precinct character.”[141]
  1. [85]
    Importantly and before moving to the more specific provisions in subsequent volumes of MP2000, effectively the following “Preface” common to both volumes 2 and 3, should be noted[142]:

“POTENTIAL INCONSISTENCIES BETWEEN STATEMENTS OF POLICY OR INTENT

The Statements of strategic and local policy contained in this volume, Volume [respectively, referring to Volume 3 & Volume 2] and Volume 5 (Structure Plans) may include somewhat different statements of policy or intent for the same areas of land. This will generally be an unintended outcome, as the detailed local planning provisions contained in Volumes 3 and 5 are intended to be based upon and reflective of the general principles in Volume 2. However, it may occur due to the diversity of character of the Shire.

In any such cases, Volume 3 and Volume 5 provisions represent Council’s specific planning intent for the relevant locality or master planned area, and are not intended to be weakened or overridden by anything in the Strategic Plan.

Where there is no direct inconsistency in those statements, but merely different or additional outcomes or requirements indicated, Volume 3 and Volume 5 constitutes the primary basis for assessment, but all elements of the policy or intent in Volumes 2, 3 and 5 are expected to be satisfied in order that development does not conflict with the Planning Scheme.

If the different statements are inconsistent, statements in Volume 3 and Volume 5 prevail over inconsistent statements in Volume 2. This reflects the fact that Volume 2 provisions are either broad strategic statements or statements of general principle, whereas Volume 3 and Volume 5 provisions state specific and considered planning intents for identified localities and master planned areas. It is an incorrect use of the Strategic Plan, and an incorrect interpretation of this Planning Scheme, to rely on anything in the Strategic Plan to support or justify as being consistent with the Planning Scheme, an outcome which is contrary to the Planning Area provisions or the provisions of a Structure Plan.”[143]

  1. [86]
    Volume 3 is then introduced by a statement of purpose:

“This Volume of the Planning Scheme contains the statements of intent and desired character (comprising the Location and Role, Vision Statement and Key Character Elements) for each of the Planning Areas, the Statements of Desired Character for the Precincts, and the General Statements of Intent for the classes into which the precincts have been categorised.

It is intended that these statements be used in the following ways.

  1. (1)
     To assist the determination of levels of assessment (only in a limited number of specific cases where the preferred maximum densities in individual Precincts are referenced in the Tables of Development Assessment in Volume 1 of this Planning Scheme).
  1. (2)
     As assessment criteria (as their primary function) for the preparation and assessment of applications for impact assessable development (to determine if the proposed development and/or use is compatible with the desired character of the locality).”[144]

Section 2 contains the “General Statements of Intent for Precinct Classes” and in subsection 2.3 “General Intent for Centre Precincts”, there is the following:

“(3) Village Centre

These Precincts are intended to provide for the continuation and consolidation of the “Main Street” areas of Palmwoods, Woombye, Bli Bli, Yandina, Eumundi, Montville, Mapleton, and Kenilworth, and of the business and community areas at Buderim and Coolum. These centres are intended to accommodate a mix of business, service industry, municipal and community uses which serve the needs of local residents, residents of surrounding rural areas, and tourists and other visitors.

In these Centres, premises are expected to remain relatively small-scale and in buildings mostly one or two storeys high. The Centres are intended to be focused on attractive and comfortable pedestrian oriented street environments. Parking on streets and in small well-landscaped on-site parking areas is intended in locations which allow easy access to nearby establishments.

Appropriate furniture and planting, footpaths with verandahs or awnings, and buildings built up to the road alignment, are intended to create attractive, pedestrian-friendly, street spaces.

A mix of non-residential and residential premises within these Centres is expected, including sites or buildings with shops or other commercial uses at the front and dwellings behind.”[145]

And more specifically:

“3.11 Planning Area No.11 – Coolum Beach

3.11.1 Location and Role

This Planning Area is located in the north-east of the shire and includes the coastal township of Coolum Beach and land immediately north and south of the township. The Planning Area is framed by a picturesque natural setting, including the South Peregian section of the Noosa National Park to the north, cane lands in the west, Mount Coolum in the south and the Pacific Ocean in the east. The rocky shoreline, including Point Perry and Point Arkwright and associated bays, is recognised as a valued and uncommon natural feature of the Shire’s coastline.

The key role of this Planning Area is to consolidate the existing residential neighbourhoods of Coolum Beach, Point Arkwright and north Yaroomba, whilst continuing to provide visitor accommodation in accordance with the planning area’s designation as a tourist node. The commercial centre will be developed to a level consistent with Coolum Beach’s village centre designation on the Strategic Plan.

It is also the role of this Planning Area to:

  • protect the inherent natural values which make the Planning Area an attractive and desirable place to live and contribute to the Shire’s biodiversity;
  • provide for Coolum Beach to remain a small scale tourist centre;
  • provide for the Coolum Beach Village Centre to retain a small scale providing goods and services to residents of and visitors to Coolum.

3.11.2 Vision Statement

  1. (1)
     It is intended that:

Coolum will remain a small coastal community focussed on its seaside location.

The Planning area will continue to be a popular place to live and visit on the Sunshine Coast, where the topography, vegetation and beaches contribute to a beautiful, diverse and livable residential environment.

The Coolum Beach township will continue to develop as an attractive coastal village, with a growing number of boutique eateries, shops and tourist facilities. The township will have a compact village centre and will provide only a limited range of goods and services to meet the immediate needs of residents and visitors to the locality.

The residential neighbourhoods of Coolum Beach and surrounding areas will be characterised by houses set in landscaped grounds containing native coastal species. Visitor accommodation will be allowed for in specific locations, provided it is of a relatively low density and includes design features such as stepped building forms and active street frontages and integrates with adjacent premises.

…

  1. (2)
     This means that:

(a)  Coolum Beach will remain a casual, seaside village serving local retail, business, dining and entertainment needs only. The residents of Coolum have indicated they are prepared to forgo the provision of higher order and larger scale retail and commercial services in order to maintain local character and identity. Infill development within the Village Centre but only is to be compatible with the small scale function of the centre and contributes to the casual beachside atmosphere of the locality.

  1. (b)
     New residential development will be designed to reflect the physical characteristics and constraints of the land on which it occurs. The extent to which development proposals achieve protection of sensitive slopes, remnant vegetation and downstream water quality will be key considerations in Council’s assessment of development proposals. Proposals which do not respond to natural land attributes will not be supported.
  1. (c)
     The predominant form of residential development will be detached dwellings on relatively large lots. The protection of views and view corridors has been identified by local residents as an important value to be retained in this Planning Area and new development will be designed so that it does not compromise views either to or from important landscape features.
  1. (d)
     A range of higher density accommodation forms is allowed for within Mixed Housing Precincts, and, where appropriately sited and designed in mixed use premises in the Village Centre. New premises in these areas will be of a modest height and will include design features which maximise natural lighting and capture prevailing ocean breezes.

…

3.11.3 Key Character Elements

(1) Location of Uses and Activities

  1. (a)
     Commercial and business activities will be concentrated in the area north of Beach Road, south of Margaret Street and east of Sunrise Street. This will be a small scale Village Centre, accommodating a mix of boutique retail, business and community facilities. Within this Planning Area, the scale of retail and commercial activities will be limited to serving the immediate catchment area of Coolum and will not serve a district or higher order function.

…

  1. (c)
     The residential areas of Coolum Beach will provide a mix of housing types to accommodate permanent residents and visitors.

(2) Design Intent

  1. (a)
     New residential premises in this Planning Area will incorporate the following elements:
  • new lot layouts and designs which respond to the natural characteristics of the land on which they occur and provide protection to significant landform features, natural vegetation, creeks, major drainage lines and preferred open space linkages;
  • buildings which use light-weight building materials and provide for climatically efficient design;

…

  1. (b)
     New premises in the Village Centre will reflect the relaxed character and seaside location of the area. In particular, the following design elements will be incorporated:
  • active street frontages which create a comfortable, attractive and interesting pedestrian environment and include features such as landscaping, outdoor dining areas and awnings;
  • a building form, scale and character which successfully integrates with surrounding premises and the informal, low-key seaside character of the area. Setbacks should be consistent with adjacent buildings and awnings, paving and landscape themes should be designed to integrate effectively with works already completed in accordance with the Coolum Master Plan;
  • modern interpretations of traditional beach house design which provide high quality but informal and relaxed commercial environments.

…

(4) Access and Movement

  1. (a)
     The Sunshine Motorway, David Low Way and Coolum-Yandina Road are the major road links within the Planning Area. New development is to recognise and protect the function, capacity and efficiency of these roads.
  1. (b)
     Within the Coolum Beach urban area, the David Low Way, or Coolum Esplanade, will be managed to provide a slowed speed environment conducive to safe pedestrian movement. Ultimately it is intended that the Sunshine Motorway will be the major north-south road link in this part of the Shire.

…

  1. (e)
     Safe, convenient and attractive links to the beach and foreshore areas, through the open space network and to local centres will be provided and/or strengthened.

3.11.4 Statements of Desired Precinct Character

(1) Coolum Beach Village Centre (Precinct Class = Village Centre)

Intent

Coolum Beach is to remain a small beachside village. The Village Centre Precinct is located at the core of the Coolum Beach tourist and business area and includes that section of the David Low Way known as the Coolum Esplanade. The intent for this Precinct is to provide a range of retail goods and services that provide for the everyday needs of the local population and visitors to the Centre.

The Coolum Esplanade presents a bustling area with a mix of shops and boutique eateries. Small scale retail outlets and a variety of small scale restaurants and cafes will be encouraged in this Precinct. The Coolum Esplanade will be the focus for the Village and accommodate a variety of shopping and dining experiences for the local community and tourist population. New development will be accompanied by appropriate landscaping and will be consistent with Council’s urban improvement works.

The Birtwill Street area currently operates as the main convenience shopping area of Coolum Beach and caters for a range of commercial, retail and eating premises.

It is not expected that any further convenience restaurants will establish in this Precinct, instead smaller boutique restaurants and eateries will be encouraged.

Redevelopment opportunities for mixed accommodation, commercial and entertainment uses of the caravan park site in Elizabeth Street will be encouraged.

The community has identified a need for an increased range of entertainment facilities. Such facilities will be supported in this Precinct where appropriately sited and designed. The library and community hall are located in this Precinct. The Precinct could provide a social focus and future urban improvement works could include a public meeting place with increased shade, adequate seating and bicycle parking.

Vehicular parking is a major issue in this Precinct. There is a recognised need for public parking, provided it does not interrupt views to the beach and is designed to be unobtrusive from the street.

Preferred and Acceptable Uses

Preferred uses within this Precinct are those referred to in the Table of Development Assessment (refer Vol 1) for the Village Centre Precinct Class.

“Shop-top” residential uses may also be considered consistent with the intent and desired character of the Precinct where appropriately sited and designed.

Landscape and Built Form

Any redevelopment or new development in this Precinct must provide off-street car parking preferably behind the building line to remove traffic from the David Low Way frontage.

Street trees, shade devices and inner block pedestrian paths will be provided or encouraged to provide shade, weather protection and assist in creating and maintaining the preferred “small township” character of Coolum Beach.

Council will seek the establishment of eating terraces, courts and verandahs on the ground and first levels. Lightweight awnings and deep shade structures should be used throughout all buildings and within the landscape.

Buildings fronting the Esplanade should be designed to address the issue of noise attenuation with the inclusion of elements such as double glazing and/or other appropriate measures in order to minimise the loss of amenity for residents and visitors at such premises.

Preferred Maximum Density for multi-unit residential or mixed use premises

Site area (m2)

Maximum plot ration

Site area per dwelling for calculating the DUF1

All sites

1.0

150

1 DUF = Dwelling Unit Factor (as defined in section 3.2 of this planning scheme)

Maximum building height

  • 3 storeys (but not more than 12 metres)”[146]
  1. [87]
    In Volume 4, it is the codes in “Part 5 – Codes for Commercial and Community Development and Use” (more particularly, the “Code for Town and Village Centres” in section 5.1) and “Part 8 – Code for Reconfiguring a Lot”, which are now relevant. Reference has already been made, as necessary, to the Code for Transport, Traffic and Parking.[147] The presentation of the codes is noted to be in a consistent format, with a “statement of the purpose intended to be achieved” at the outset, followed by the setting out of “Performance Criteria” and related “Acceptable Measures”, together with additional explanatory materials, where required. The following is stated:

“(2) Purpose

The statement of purpose is given at the start of each code and expresses Council’s planning intent. A further purpose statement may be given for any or all elements of the code. If such a further statement is given, it is to be taken as part of the code’s purpose.

(3) Performance Criteria

  1. (a)
     Performance Criteria are statements of the outcomes to be achieved in satisfying the stated purpose. They provide an opportunity for a variety of responses to the design of assessable development.
  1. (b)
     (i) There will be situations where not all Performance Criteria will be relevant. Development will not be required to meet any Performance Criteria that are not relevant.

(ii) There will also be situations where not all relevant Performance Criteria can be met (eg. where one criterion may be in conflict with another). In such cases the development application may be approved where Council is satisfied that there are sufficient planning grounds to justify the decision having regard to the purpose of the code.

(4) Acceptable Measures

  1. (a)
     Acceptable Measures are presented as Council’s preferred means of meeting the relevant Performance Criteria.
  1. (b)
     (i) The relevant applicable Acceptable Measures are mandatory for self-assessable development. Self-assessable development that does not comply with any applicable acceptable measure is to be taken to be code assessable. An application for code assessment in such circumstances will be assessed against the whole of the code or codes listed in the Tables of Development Assessment as applicable to the self assessable development. It will not be assessed against other codes.

(ii) For assessable development the Acceptable Measures provide an opportunity for streamlining approval processes while achieving the criteria and stated purpose. However, other ways of achieving the Performance Criteria of an applicable code may be proposed by applicants.

  1. (c)
     For some Performance Criteria, there may not be any Acceptable Measure presented. In such cases:
  • assessable development is to use proposal specific means of meeting the criteria, and
  • self-assessable development has no compliance requirement.

(d) Assessable development may be designed in accordance with the Acceptable Measures, or using other measures which still meet the Performance Criteria. Indeed, applicants may prefer to design using alternative measures for some aspects of the development and Acceptable Measures for others.

(e) Where Acceptable Measures are not used, the applicant must satisfy Council that the alternative measures satisfactorily meet the Performance Criteria in keeping with the purpose of the code and code element.”[148]

  1. [88]
    In respect of the “Code for Town and Village Centres”, it is first necessary to note the following statement of purpose:

“5.1 Code for Town and Village Centres

PURPOSE

(1) The purpose of this code is to achieve the following outcomes:

(a) development is consistent with the intended role and desired character of Town Centre Core, Town Centre Frame and Village Centre Precincts and the locality and street in which the development is to be carried out; and

(b) development contributes to the creation of successful and attractive Centres at a scale appropriate to the intended role and function of Centres.”[149]

And then in respect of the stated elements:

“(1) Element: Scale and Layout of Premises

PURPOSE

  1. (a)
     To create or maintain Centres that accommodate uses, facilities and buildings of a type and scale appropriate to each Centre’s desired role and character.
  1. (b)
     To create or maintain Centres that facilitate convenient and efficient access – especially for pedestrians, cyclists and public transport.

PERFORMANCE

CRITERIA

 

ACCEPTABLE MEASURES

 

“P1 Premises must be of a type and scale consistent with the desired character of the Precinct and locality in which it is situated.

 

A1.1 Any premises used for commercial purposes and having a gross floor area of over 1000m2 are located only in a Town Centre Core or Town Centre Frame precinct.

AND

A1.2 Where development is in the Maroochydore Planning Area (No. 1), all new buildings have a minimum height of:

(a) 3 storeys or 12 metres (whichever is the lesser) in the following precincts:

  • Traditional Town Centre;
  • Maroochydore Central Office (west of First Avenue);
  • Maroochydore Central Waterfront; and

(b) 2 storeys or 8.5 metres (whichever is the lesser) in the Maroochydore Central Office precinct (east of First Avenue).

AND

A1.3 Premises have a density that does not exceed the preferred maximum density provisions of the relevant precinct (Volume 3 of this Planning Scheme refers).

P2 Patterns of streets, lots, urban spaces, buildings and uses must:

(a) facilitate convenient access; and

(b) provide clear, safe and convenient connections to existing and/or proposed streets, public transport routes and paths for pedestrians and cyclists; and

(c) allow for the location of buildings close to frontages of streets and other urban spaces in order to facilitate navigation, access and casual surveillance of public and semi-public spaces.

 

A2 For assessable development, development is in accordance with an approved site development plan which demonstrates the following:

  • the provision of suitable inter-site pedestrian, cycle and vehicle links;
  • visual links to views or features of significance are created or maintained through development site, of landscaped public open space in the form of open plaza/courts accessible from the footpath;
  • all premises are fronting the open space incorporating layouts and windows that permit activity to “spill out” into the space; and
  • buildings are facing streets and public open spaces and having their entries visible clearly recognisable and accessible from the street or space.

(2) Element: Relationship of Building to Public Spaces

PURPOSE

To create or maintain attractive, comfortable and safe public and semi-public urban spaces (where ‘urban spaces’ include public streets and public and semi-public spaces including, but not limited to, parks, squares, plazas, courtyards, arcades and malls).

PERFORMANCE

CRITERIA

 

ACCEPTABLE MEASURES

 

P1 Buildings must clearly define, frame or enclose streets and other useable public and semi-public urban spaces.

 

A1.1 Buildings are located close to the frontages to streets and other important urban spaces for all or most of these frontages so that they create a continuous, or essentially continuous, edge of built form. This includes:

(a) at Maroochydore, buildings located along the whole of the front boundary along “core frontages” as shown in Figure 3 - 3.1.3(a); or

(b) where elsewhere in a Town Centre Core Precinct, a minimum of 85% of the front facade of the building at street and podium levels abutting or within 3 metres of the site frontage or principal site frontage; and

(c) in a Town Centre Frame Area Precinct and a Village Centre Precinct, a minimum of 70% of the front facade of the building at street and podium levels abutting or within 3 metres of the site frontage or principal site frontage.

AND

A1.2 Car parking areas, service areas and access driveways are located where they will not dominate the streetscape, and in Town Centre Cores and Village Centres will not unduly intrude upon pedestrian use of footpaths, through:

  • the use of rear access lanes,
  • parking and service areas situated at the rear of the site or below ground level, and
  • shared driveways.

LIVELY AND INTERESTING FRONTAGES TO URBAN SPACES

P2 Development must be developed in a way which enliven and enrich the experience of people using Centres.

 

A2 The ground storey level of premises with frontage to a public urban space:

(a) incorporates activities that are likely to foster casual, social and business interaction for extended periods (such as shopfronts, indoor/outdoor cafes and restaurants); and

(b) presents a minimum of 65% of building frontage as windows/glazed doors and a maximum of 35% as solid facade; and

(c) provide clear or relatively clear windows and, where provided, grille or translucent security screens rather than solid shutters, screens or roller-doors.

 

….

(3) Element: Distinctive and Legible Centres

PURPOSE

To create or maintain Centres that:

  • respond to and enrich the characterising of their setting,
  • conserve places of cultural significance,
  • are comfortable to be in,
  • are distinctive, memorable and visually attractive, and
  • are easy to move through and around in.

PERFORMANCE

CRITERIA

 

ACCEPTABLE MEASURES

 

DESIRABLE TOWNSCAPE AND LANDSCAPE CHARACTER

P1 Development must create or contribute to the desired townscape and landscape character of the precinct, the environs of the site and conserve

places of natural and/or cultural significance in which the development is to be carried out.

A1 Development that is consistent with the desired townscape and landscape character of the precinct or locality in which it occurs with respect to:

  • the pattern of streets and spaces,
  • the siting, form and scale of buildings,
  • design of buildings and outdoor space having regard to the subtropical climate (with appropriate responses for coastal, mountain or hinterland climatic variations),
  • use of building and landscaping materials and colours, and
  • conservation of valued landscape elements and places of cultural heritage significance, in accordance with the acceptable measures of this schemes Heritage Conservation Code.

….

(4) Element: Form and Design of Buildings

PURPOSE

To achieve new buildings within Centres that:

  • enhance the character and amenity of their environs,
  • promote contemporary architecture appropriate to their settings while respecting older attractive neighbouring premises, and
  • take advantage of the prevailing sub-tropical climate and actively minimise reliance on non-renewable energy sources for heating and cooling.

PERFORMANCE

CRITERIA

 

ACCEPTABLE MEASURES

 

BUILDING HEIGHT

P1 The height of buildings must be appropriate to the desired character of the Centre and the environs of the site.

 

A1.1 Buildings in Town Centre Core Precincts with a maximum height of:

  • that specified in the Statement of Desired Character for the particular Precinct (in Volume 3 of this Planning Scheme) where at Maroochydore,
  • 6 storeys (but not more than 25 m) where at Nambour or Sippy Downs,
  • 3 storeys (but not more than 12m) where being a wholly non-residential building at Mooloolaba.

AND

A1.2 Buildings in Town Centre Frame Precincts are limited to three storeys (but not greater than 12m) in height unless consistent with the height provisions specified in the relevant desired character statement for the particular Precinct (in Volume 3 of the Planning Scheme).

AND

A1.3 Buildings in Village Centres are limited to two storeys (but not greater than 8.5m) in height unless consistent with the height provisions specified in the relevant desired character statement for the particular Precinct (in Volume 3 of the Planning Scheme).

 

….

 

BUILDING SETTING AND CONTEXT

P3 Buildings and groups of buildings must be sited and designed to respect or enhance the character and amenity of their streets and neighbouring premises.

 

A3.1 Buildings are sited and designed to be compatible with the scale and significant elements of their streetscape and neighbouring buildings by having:

  • where development is in areas with no established building setbacks, setbacks from the street boundary are to comply with acceptable measure A1.1 of P1 above in Element 2: Relationship of Buildings to Public Spaces, or
  • where development is in an established area where the setback of an adjacent building is greater than 3m, infill development is to be set back;
  • the same distance as one or the other of the adjoining buildings, provided the difference between the setbacks of the two adjoining buildings is less than or equal to 2 m, or
  • the average of the setbacks of the adjoining buildings, if the difference between the setbacks of the adjoining buildings is greater than 2 m, or
  • where development is in established areas where the setbacks of adjacent buildings are 0-3 m, infill development is to be set back the same distance as one or the other of the adjoining buildings, or
  • setback of buildings in streetscapes of townscape significance are to match that of adjacent development unless an alternative policy has been developed for that street.

AND

A3.2 Building plan areas and/or facades are articulated and finished in ways that respond to notable, attractive elements of adjacent buildings (eg. in relation to continuity of colonnades, verandahs, balconies, eaves or parapet lines and roof forms), and in accordance with the desired character stated for the applicable precinct.

AND

A3.3 Buildings over three storeys or 12 metres (whichever is the lesser) in height incorporate:

distinctions between base or street levels, mid-levels and top levels, and

a podium up to 3 storeys at the base of buildings where they are six or more storeys or 25m (whichever is the lesser) high.

AND

A3.4 Top levels of buildings and roof forms are shaped to:

  • reduce their apparent bulk and provide visually attractive skyline silhouettes,
  • screen mechanical plant from view, and
  • provide roof-top terraces to take advantage of views where appropriate.

….”[150]

  1. [89]
    In respect of the “Code for Reconfiguring a Lot”, it is only necessary to note the statement of purpose, to the following extent:

“The purpose of this code is to achieve the following outcomes:

  1. (a)
     Lot reconfiguration facilitates the creation of safe, convenient, functionally efficient and attractive environments, which are consistent with the desired character of the precinct in which the development site is situated;
  1. (b)
     The diverse and changing needs of the community for a range of good quality housing and accessible community and commercial facilities, and local employment opportunities are met;

….

(k) The local street system safely and conveniently provides for the functions of traffic flow, property access, vehicle parking, pedestrian and cycle movement and public transport;”

And then to further note only the following:

“(2) Lot Size and Dimensions

PERFORMANCE

CRITERIA

 

ACCEPTABLE MEASURES

 

P1 Lot size and dimensions:

a) are consistent with the desired character of the precinct in which the lot is situated;

….

 

(f) enable the provision of:

….

(iii) convenient vehicle access and on site parking; and

….

A1.1

(a) Lot size and dimensions are consistent with Table 8.213; or

 

….”

 

And that Table 8.2 relevantly provides that for a “Village Centre”, the “minimum lot size and frontage” are respectively 1200m2 and 40m.

Analysis

  1. [90]
    The first thing to note by way of analysis of these relevant extracts from MP2000, is that there is no identified relevant conflict or inconsistency as between any of the statements of strategic and local policy contained in Volumes 2 and 3 of the scheme. Moreover, there is neither any identified “different or additional outcomes or requirements indicated”, so that Volumes 3 and 5 are to constitute “the primary basis for assessment”. In any event and even if the latter situation were to be found, the expressly stated intention is that nevertheless “all elements of the policy or intent in Volumes 2, 3 and 5 are expected to be satisfied in order that the development does not conflict with the planning scheme”. Rather and as is the expressly intended outcome, “the detailed local planning provisions contained in Volumes 3 and 5” are to be seen and interpreted as “based upon and effective of the general principles in Volume 2”.[151] It may also be noted that nothing of particular relevance was identified in Volume 5 of MP2000.
  1. [91]
    Next, regard may be had to some express statements of intention of the scheme, in Volume 1:
  1. (a)
    “to provide residents, public authorities and investors with confidence about future land uses and development within the shire”;[152] and
  1. (b)
    that “Precincts have been defined on the basis of… the distribution of existing and preferred future land uses” and to “establish each locality’s context and role within the Planning Area, and the desired future local character.”[153]

And, in Volume 2:

  1. (a)
    to the key issues noted as “dictating the planning strategy in the identified Retail and Commercial areas” which include:

“the demand for additional retail and commercial floor space in planned centres because of the likely continuation of high population growth in the short to medium term;” and

“the need for a clear policy on the location of centres in order to create certainty and clear expectations for the community and investment by the private and public sector.”[154]

  1. (b)
     as a more specific strategy for Village Centres that:

“development with a Village centre which fragments the centre or creates a focus away from the established centre in that locality will not be supported”;[155] and

  1. (c)
     the emphasis on maintenance of the integrity of the Retail and Commercial Centres Hierarchy as:

“…a basis for containing the growth and function of centres, limiting their spread into residential areas in which they play a fundamental role and facilitating the concentration of certain uses in highly accessible and appropriately serviced areas.”[156]

And more specific statements, referrable to Village Centres, that:

“…Council will not support applications seeking to expand the area of an existing centre unless such areas are fully and satisfactorily utilised. Support is not envisaged for retail or commercial development, other than a General store, in areas outside the Village centres.”[157]

And more specifically to this Village Centre:

“The existing David Low Way based facilities at Coolum are the Village centre. Retail and commercial activities in Coolum Breach will be concentrated between Beach Road in the south and Margaret Street in the north, to be consistent with the Coolum Beach Village centre Precinct in the Coolum Beach Planning Area in Volume 3 of this Planning Scheme”.[158]

  1. [92]
    Further and in Volume 3, the vision statement for Planning Area No 11 – Coolum Beach, includes:

“…The Coolum Beach township will continue to develop as an attractive coastal village, with a growing number of boutique eateries, shops and tourist facilities. The township will have a compact village centre and will provide only a limited range of goods and services to meet the immediate needs of residents and visitors to the locality...”[159]

  1. [93]
    And finally at this juncture, to note that in Volume 4 in the Code for Reconfiguring a Lot, a specifically stated purpose of the Code is achieving an outcome where:

“ (b)  The diverse and changing needs of the community for a range of good quality housing and accessible community and commercial facilities, and local employment opportunities are met…”[160]

  1. [94]
    In this particular context, some criticisms directed at the evidence of Mr Adamson may be seen as potentially superficial. In particular that:
  1. (a)
    it is “hard to resist the conclusion that [his] views are based on some personal (or professional) preference for some other form of development”; or
  1. (b)
    that he “considered that the Subject Land could be maintained for some higher or better use” and that should play no part in the assessment process.[161] 

Rather, the question is as to whether the proposal is in conflict, or at variance, with the scheme by reference to the intended role of the Village Centre Precinct as the reserved location of the commercial and more intensive residential uses, within the Planning Area.  And to consider that question in the further context, as Mr Adamson specifically recognised, of the statements of intention as to such concentration and avoidance of fragmentation of the Village Centre Precinct, both in terms of the type of development permitted in the precinct and so as to contain such development within the precinct.[162]

  1. [95]
    Notwithstanding these considerations, if the analysis is conducted in the manner that is effectively contended by the Respondents and so that the implications of the lot sizing and the Code for Reconfiguring a Lot is effectively put aside, it may not be appropriate to find that the proposed development conflicts with MP2000. That is particularly because:
  1. (a)
    A ‘Detached Dwelling’ is recognised as a preferred and acceptable use in a Village Centre Precinct;[163]
  1. (b)
    It may be accepted, consistently with the views expressed by the town planners called for the Respondents, that provisions expressing preference for mixed use development are capable of having application upon the basis of centre wide considerations, rather than upon the basis of land use at any and every site within the Precinct.[164]

Accordingly, the proposal may be seen as meeting such expectations, both when considered in the context of the entire village centre and also when considered in the context of the entire development of lot 103.[165] And seen as particularly consistent with the following inclusion in the statement of the “General Intent for Centre Precincts”:

“… a mix of non-residential and residential premises within the Centres is expected, including sites or buildings with shops or other commercial uses at the front and dwellings behind”;[166]

  1. (c)
    Although the proposal may be seen as a primarily residential development, it is not in contest that the SOHO aspects may been seen as consistent with the otherwise undefined statement that:

“Shop-top residential uses may also be considered consistent with the intent and desired character of the Precinct where appropriately sited and designed.”[167];

  1. (d)
    Further and whilst the proposal is as to only limited commercial development (10 x SOHO lots, each at 51m2), it is not appropriate to consider that as being only a token proposal.  However and quite apart from an inability to construe the scheme as requiring any commercial mix in the development of the Subject Land, such a mix may also be seen in conjunction with the existing Element Stages 1 & 2 development and such an outcome also may be seen to be supported by the specific notation in the “Statements of Desired Precinct Character” for the “Coolum Beach Village Centre” that the:

“… section of David Low Way known as the Coolum Esplanade …. will be the focus for the Village and accommodate a variety of shopping and dining experiences for the local community and tourist population”.[168]

  1. [96]
    In the context of Mr Adamson’s concession as to the quality and acceptability of the proposed built form, the town planning evidence is of consistent assistance in that respect and it would be inappropriate to conclude that the proposed built form would not be such as to “enhance the character and amenity of [the] environs”.[169] On the contrary, it should be concluded that it is likely to be both commensurate and compatible with the existing Element Stages 1 & 2 development, which will have both the more intensive residential and commercial components, consistently with the expectation of focus towards the Coolum Esplanade. And similarly, and in respect of the absence of features such as active frontages (particularly leaving aside the SOHO lots), again the obvious focus in that regard is on Coolum Esplanade.
  1. [97]
    Neither would it then be appropriate to conclude that the expectations of the scheme in respect of the commercial role of the Precinct, or the inclusion of it in a Tourist Node, would not be met, by inclusion of this proposed development in it. Although and as will require further reference later,[170] there is evidence before the Court as to some considerable interest in the pre-sold lots in the development and mainly for purposes of more permanent residence, it should not be assumed that no part of the development would be supportive of visitor accommodation or tourism objectives.  Also some permanency of residence in the Precinct is not to be regarded as in conflict with the objectives of the Precinct, including desirable outcomes in respect of economic sustainability.[171]  And the Strategic Plan in relation to retail and commercial activities expressly recognises, as one of the key issues dictating the planning strategy “in the identified Retail and Commercial areas” (which expressly includes the “Tourist Centre” at Coolum, as part of a “Retail and Commercial Centre’s Hierarchy” and as one of a number of such centres, described as “primarily satisfying the needs of tourists”):

“the need for the Shire’s retail and commercial services to cater for tourists as well as resident population, reflected in the relatively high retail floor space per capita ratio and the need for centres to absorb downturns in turnover during off peak times”.[172]

  1. [98]
    Therefore and if the implications of the lot sizing and Code for Reconfiguring a Lot is so put aside, the statements as to the “relatively small scale” nature of expected development in the Precinct and the references to the expectation of “small scale” as to both the village centre and some types of development,[173] as are emphasised in the submissions of the Co-Respondent,[174] are of significance to the expectation of satisfaction of all elements of relevant policy and intent in MP2000, including the elements relating to reservation and potential future uses of the Village Centre Precinct, and the balancing of tensions that arise in that respect. Although and as made clear at an earlier point in Volume 3 and as a statement of “General Intent for Centre Precincts”, the Village Centre Precincts “are expected to have premises that remain relatively small scale”, as compared, for instance, to that which is preferred and accepted in the higher order Precinct of “Town Centre Core”, this is to be considered in the context of the broader statements of expectation as to the concentration of the expected commercial and higher density residential development within the Village Centre Precinct.[175] Notwithstanding notation that the proposed development achieves only about 61% (43/70) of the preferred maximum residential density for the area of land on which it is situated,[176] in the absence of any indication of any intended or desired or preferred minimum aspect of relative scale, that balancing exercise more readily engages the consideration as to acceptability (rather than the prospect of better options) and would tend to confirm a conclusion to which I would be inclined: that the Co-Respondent would have satisfied the onus that the appeal should be dismissed on the contended basis of absence of clear conflict with MP2000.
  1. [99]
    However and from the summary of Mr Adamson’s conclusion,[177] and indeed the adoption of his evidence in the submissions for the First Appellant,[178] it may be discerned that particular emphasis is placed upon the individually titled and small lot nature of the proposal. And for the reasons already noted, it is neither conceivable nor appropriate that this matter may be approached without particular reference to the implications of the proposed lot sizing and dimensions and the Code for Reconfiguring a Lot.
  1. [100]
    Moreover and in this broader context, it may be immediately noted that a different complexion is put upon the expectation engendered as to the scale of development in the Village Precinct and in terms of the desired character of the Precinct. When the planning scheme, including the Code for Reconfiguring a Lot, is relevantly and holistically considered, it is discernible that such a result is indeed at variance with the scheme and particularly, having regard to preferred lot configuration, as an aspect of the desired character of the Village Centre Precinct.
  1. [101]
    To so conclude, does not offend the principles in respect of reliance upon acceptable measures contained in Codes. It may be accepted that, as contended for the Co-Respondent:[179]
  1. (a)
    Compliance with an acceptable measure is not to be regarded as mandatory;[180] and
  1. (b)
    The performance based approach to planning schemes admits the prospect of alternative solutions which may comply with the planning scheme by meeting the performance criteria and that the test is not necessarily even whether the proposal approximates the acceptable measure.[181]
  1. [102]
    However the application of such broadly expressed principles must depend on individual circumstances, as was the subject of analysis by Dorney QC DCJ, in Kangaroo Point Residents Association v Brisbane CC.[182] Two things may be particularly noted. First the correct identification of the qualifications in the earlier cited propositions, as to “generally” not interpreting planning schemes so as to require the adoption of acceptable measures or solutions, and that “it is not legitimate to regard departure from an acceptable solution as necessarily indicating non-compliance with the code”, providing it is an alternate way of achieving compliance with the relevant performance criterion. Moreover, there is particular reference made to the following observations of the Court of Appeal in WBQH Developments Pty Ltd v Gold Coast City Council & Anor:[183]

“[34]  WBQH submitted that her Honour failed to recognise that the reference to articulating “the desired outcome of density and built form …” in the relevant Land Use Theme was consistent with the statement in Part 7 of the Planning Scheme that “it is desirable that impact assessable development comply with the Acceptable Solutions”. It submitted that properly construed, the Planning Scheme did not require that the maximum building height in the OM6 maps be treated as prescriptive.

[35]  In my judgment nothing in the passage quoted suggests that her Honour treated the maximum building height as mandatory or prescriptive. On the contrary, she expressly recognised the true function near the beginning of her reasons (citations omitted):

“[7]  Its failure to meet AS1 triggered impact assessment, instead of code assessment of the project. However, that does not establish a conflict with PC1. Compliance with acceptable solutions is not mandatory. If WBQH can demonstrate an alternative solution meets PC1 there is no conflict.”

What her Honour wrote was undoubtedly correct.

[36]  As WBQH correctly conceded, that does not mean that the content of an acceptable solution is irrelevant. It may indicate what the planning scheme desires or prefers as development in the particular area. It takes but a small inference from such a conclusion to find that the intent of the Scheme is to favour such development in that area. I reject WBQH’s submission that an express statement of desire is irrelevant in indicating a planning scheme intent. Under the heading “Planning Intent” this Planning Scheme expressly asserts that the overlay maps articulate the desired outcome. Moreover the Scheme makes a development impact assessable if it does not comply with the map. For an applicant to have to jump through the extra hoops and pay the extra fees consequent upon that classification is not an indication of favour toward applications of that class.

[37]  Of course the existence of such an intent does not conclude the question whether there is conflict between the proposal and the Planning Scheme. That necessarily follows from the fact that compliance with performance criteria will satisfy the provisions of the code notwithstanding non-compliance with a corresponding acceptable solution. The existence or otherwise of such a conflict must be determined on all of the evidence and on the proper construction of the Planning Scheme as a whole. The weight to be given to the intent may be small. It is the task of the judge to evaluate all relevant matters in the exercise of the judgment of a specialist court.” [184]

  1. [103]
    Rather, it is to understand that in the context of the significance of the reconfiguration of the lot to this development proposal, the Code for Reconfiguring a Lot assumes some contextual importance, as is otherwise made clear by reference to some specific provisions in Volume 2 of MP2000 and which also identify the potential importance of lot configuration and scale in respect of the stated strategies and policies.[185]
  1. [104]
    Further the stated purposes of this code include, amongst others, achievement of the following outcomes:

“(a) Lot reconfiguration facilitates the creation of safe, convenient, functionally efficient and attractive environments, which are consistent with the desired character of the precinct in which the development site is situated;

….

(k) The local street system safely and conveniently provides for the functions of traffic flow, property access, vehicle parking, pedestrian and cycle movement and public transport;”[186]

  1. [105]
    Moreover and to the extent that it is recognised that attention is to be given to the relevant performance criteria in such a code, it is to be noted that the particularly critical criterion is as to lot size and dimensions that achieves consistency with the desired character of the precinct. The contextual influence of the acceptable measure is in determining not only the desired character of the precinct, as referred to in this Code, but also the cognate and similar assertions in other relevant parts of the planning scheme, including those relating to the desired or intended scale of development in this Precinct.

Conclusion as to extent and nature of conflict

  1. [106]
    Accordingly it should be concluded that in this context, the statement of an acceptable measure as to lot size and dimensions “consistent with” the stated “minimum lot size and frontage”, respectively 1200m2 and 40m, provides relevant context to assessing the intent of the performance criteria and the expression of “the desired character of the Precinct” in the Scheme more generally. In those circumstances, the extent of proposed departure from the stated minimums is obviously significant (frontages of 10 to 11m and sizes ranging from 140m2 to 175m2), relevant and not consistent with achievement of the performance criteria. Although there was little attention paid to it in the course of the hearing, that conclusion may also be seen to be contextually supported by the very next performance criteria, which relevantly provides:

“P2 Small residential lots (of less than 600m2) are created only where:

  1. (a)
     They are within easy walking distance of a centre; and
  1. (b)
     Where the development will be consistent with the desired character for the precinct in which the land is situated;

…”[187]

There was reference to it for the Respondent,[188] but with particular attention to sub-paragraph (a) and an attempt to make a virtueof the location of the proposed development within a centre, as a matter of consistency with that aspect of the performance criteria. However, the problems with such a contention are that these performance criteria are capable of being applicable across all precinct classes and it is only by application of the acceptable criteria and Table 8.2, as that table is engaged by such criteria, that the discernment of intent for each precinct class is discerned; and the next sub-paragraph expressly makes it clear that consistency with the intended or desired character for the precinct in which the land is situated remains as an aspect of this performance criterion. And further, a contextual reference back to the primacy of P1 and the particular application of that performance criterion to a Village Centre Precinct class is found in footnote 15 to P2, as follows:

“Applicants should also be aware that residential lots smaller than the minimum stated in Table 8.2 will only be favourably considered where they comply with P1.”[189]

  1. [107]
    Also and once this is recognized, there is engagement of the broader consideration of the other references to preferred or desired scale of development in this Precinct, the balance to be achieved in respect of the indications as to reservation of use in the Precinct and the more abstract question, as has been noted above, as to the remaining potential for consideration of the impact of the proliferation of driveways in order to provide vehicular access to the multitude of proposed lots. However it is important to note that, in that respect, the statements of purpose and desired outcome are relevantly in terms of “convenience” and that, as has already been found, there is no unacceptable impact identified as actually arising from the proposal, including in respect of safety. Also it is of relevance to again note that this proliferation of driveways occurs at or near the western boundary of the Coolum Village Centre Precinct in MP2000.
  1. [108]
    A difficulty that arises as to any assistance that may be gained from the evidence in the further characterisation of the conflict, is that the nature of the identified conflict is not to be regarded as having the extent of implication as contended by Mr Adamson and providing the basis upon which he has expressed any views on this topic. For example, it is only to the extent of the implications of the proposed lot configuration, that a development that otherwise meets the expectation of the scheme as to mixed use in this Precinct,[190] could result in fragmentation of the Centre and there is also the difficulty in reconciling Mr. Adamson’s concession that the existing vacant land has the effect of fragmentation of the Centre.[191] That difficulty also tends to underscore the problematic nature of the concept of fragmentation within a Village Centre, particularly when it is accepted that a mix of uses is intended across the centre rather than in any sense of homogenised development on all sites within the centre. On the other hand, there is a ready understanding of a concept of fragmentation of such a centre that may occur if development of the kind intended for the centre occurs outside of it.
  2. [109]
    In any event, the submissions for the First Appellant are directed at the weight to be attached to some propositions as to grounds put forward by the Respondent Council and by reference to some further evidence provided by Mr Perkins.[192] However and as is correctly pointed out, those matters are calculated to address the issue upon an inappropriate basis that the extent of the conflict is properly characterised as “the very low end of the scale, being technical in nature.”[193] The submissions for the Co-Respondent express a similar contention.[194] However and in each case, the contentions are not divorced from the primary position of these parties and are effectively premised on the assumption that the lot sizing considerations are largely inconsequential.[195]
  1. [110]
    For the reasons given, there is no warrant to regard the conflict as being technical or so minor as to be inconsequential. The point is that the consideration of the preferred lot dimensions means that the balancing of the various aspirations of the strategic plan, for this Precinct in MP2000, demands that more particular weight be given to the statements of intended reservation of the Precinct for the commercial and more intensive residential development. That is so notwithstanding the inclusion of Detached Dwellings as a preferred or accepted use in the precinct. The potential tension that might arise was the subject of an exchange with Mr Adamson, in cross-examination.[196] As he recognized, such a use is allowed and at least acceptable, but perhaps only upon an impractically large lot size, consistently with the weight he thought appropriate to be ascribed to reservation of the land for future and more intensive uses. The appropriate conclusion is that the consideration that a Detached Dwelling is a preferred use in the Village Precinct has lessened weight when the acceptable measure as to a minimum lot size is given weight in determining the appropriate balance of competing considerations in determination of the desired character of the Precinct.

Grounds

  1. [111]
    Having so identified the existence and nature or extent of conflict with the planning scheme, it is then a question as to whether 326(i)(b) of SPA is engaged on the basis that “there are sufficient grounds to justify the decision despite the conflict.”[197] That requires regard to be had to “matters of public interest” which “does not include the personal circumstances of an applicant, owner or interested party”.[198]
  1. [112]
    Notwithstanding the breadth of the potential application of it, some weight may be given to the circumstance that the proposed development is of a type that is explicitly encouraged by the South East Queensland Regional Plan,[199] as the pre-eminent planning document for South East Queensland.
  1. [113]
    Another of the matters contended is expressed to relate to “need” for the development.[200] That contention relies on evidence to the effect that the proposed development has been carefully designed to ensure that it can cater for both investors and owner occupiers,[201] and had attracted immediate interest in the market and by the time of the hearing, had been 80% pre sold, with 23 of those 34 sales being to individuals who are local residents of the Sunshine Coast.[202] A particular feature of the evidence of this enthusiasm for the proposed development, is the identified locational features of the proposed development, including that it is within walking distance to patrolled beaches, supermarkets, restaurants and cafes, surf and bowls club and other public amenities such as post office, banks, doctors and public transport.
  1. [114]
    For the First Appellant, it is correctly pointed out that in the present context “need” is referable to improvement of some availability in a community and as a matter of improvement of the general wellbeing of that community.[203] And that the concept is to be distinguished from and is not synonymous with “demand”.[204] However, the significance that the Co-Respondent seeks to put on this evidence, is as described in Indooroopilly Golf Club v Brisbane City Council. The Court said,

“It was submitted also that “need” should not be equated with “want” or “desire”. The question however is not one of mere semantics. If it can be shown, as indeed it has been in this case, that there is a demand, say, for residential allotments of a particular quality which is reflected in their ready acquisition by buyers, that surely is of some relevance in assessing the “need” for the rezoning which will make possible that type of residential development”[205]

  1. [115]
    More particularly and from there, the further developed (and acceptable) contention is that the proposed development will contribute towards achieving Desired Regional Outcome 8 of the SEQRP (including principles 8.1, 8.2 and 8.5):
  1. (a)
    as it represents an efficient form of infill development which takes advantage of its location, particularly by providing housing choice and diversity in this local government area and precinct and proximate to critical infrastructure and services;
  1. (b)
    the design of the proposed development as independent small houses, provides a diverse residential offering meeting (at least demand) in the market; and
  1. (c)
    approval of the proposed development will be an improvement to the general amenity of the local area, in the development of a site that has been vacant for a very long time.
  1. [116]
    As is also correctly contended for the Co-Respondent, it is necessary, pursuant to s. 314(3)(b) of SPA, to have regard to existing development approval for the premises, which for the part of the land subject to the proposed development is for 96 accommodation units grouped within 7 buildings, 3 storeys in height. And that is so, notwithstanding the reliance in the assessment phase of an appearance of some reluctance to pursue that development. However, it does not follow that the submission that the proposed development would be far superior to that existing development approval, in terms of character, amenity and mix of uses, should be entirely accepted.[206] As was conceded by Mr Adamson, there is the issue that this approval, which was granted under a previous scheme, is now inconsistent with the maximum residential density for the Subject Land, intended under MP2000. Otherwise and as noted by Mr Adamson, the Subject Land is well suited for a mixed use development, comprising retail and commercial uses and residential accommodation, including for visitors, as an integrated development which would allow for basement on-site parking, limitation of access points to the surrounding road network and maximization of related on-street parking.[207]
  1. [117]
    However, the other considerations that have already been discussed above and on the basis of putting the lot sizing considerations aside and indicative of the potentially positive contribution of the proposed development to the protection and enhancement of amenity currently enjoyed in and around the Precinct, also deserve weight in the balance against the nature and extent of the identified conflict, including any potentially detrimental impact in respect of convenience of pedestrian movement around the site. Once again it may be noted that the concern of the Court is with acceptability rather than perfection of the proposal and the final point which is correctly emphasized is that the proposed development would not result in any unacceptable offsite amenity impacts. This is a relevant matter of public interest.[208]
  1. [118]
    The last point also figures in the submissions of the Respondent, as does reference to the long period of absence of development of the Subject Land, notwithstanding the existing approval and some 15 years, or more, elapsing from the development of Element Stages 1 & 2. As well, particular attention is drawn to the benefit of the formalization of the William Street frontage (consistently with what has been noted above as to the prior public identification of this issue)[209] and the conjunction with the pedestrian link through to Elizabeth Street.
  1. [119]
    Even when the perspective of prospective subsequent redevelopment is included, it should not be concluded that the effect of the indication of intent in MP2000 to reserve the Village Centre Precinct for more intensive mixed uses, is for indefinite such reservation, within the life of MP2000 or otherwise. The long period of inaction in respect of the site may, in the circumstances, be taken as being indicative of the prospective need not yet being reflected by actual demand, whereas there is noted demand for the proposed development. From the perspective of public interest, it is at this point that it must be kept in mind that the identified balance as the desired character of the Precinct, is influenced by the statement of an acceptable measure and that there is no identified basis to conclude that this Village Centre Precinct is not otherwise meeting the expectations of MP2000 or would otherwise lack capacity to do so into the future.
  1. [120]
    In the circumstances, it should be concluded that there are sufficient matters of public interest to warrant approval of the proposal, despite the extent of conflict with MP2000. In particular, in that:
  1. (a)
    there is demand for the proposed development and it will contribute towards achieving Desired Regional Outcome 8, including principles 8.1, 8.2 and 8.5,[210] as it represents an efficient form of infill development which takes advantage of its location and it will add to accommodation choice and diversity in the locality, and particularly by the utilization of long underutilized land;
  1. (b)
    there will be no unacceptable impacts on surrounding amenity;
  1. (c)
    it will involve mixed use development, including relative density greater than nearby residential areas, in close proximity to (but not detracting from) the focal point of the Centre, including shops, restaurants and cafes, and with close proximity to the beach and exhibiting a high quality of design, in a way which adds to the amenity and character of the locality, predominantly in a positive way; and
  1. (d)
    the Village Centre Precinct is spatially extensive and there is no basis for conclusion that it is otherwise incapable of fully satisfying the role and function assigned to it by MP 2000.

Overall Conclusion

  1. [121]
    Accordingly and as indicated on 16 February 2018, the intention of the Court is to dismiss the appeal and to make the necessary orders on 16 March 2018, by which time it is expected that the parties will have sufficient time to consider these reasons and to formulate the necessary conditions of approval, including those noted to have been accepted additional conditions.

Footnotes

[1]See the Development Application and Acknowledgment Notice, together with the Negotiated Decision Notice: Appeal Book (Ex 2), documents 6 and 7 (vol. 1) and document 27 (vol. 3).

[2]Although the proposal had been for 10 separate driveways.

[3]See the plans of the Proposed Development at Book of Plans, Ex. 1, pp 8-40. 

[4]Appeal Book, document 28 (vol. 3).

[5]Appeal Book, document 29 (vol. 3).

[6]See the Land Use Map produced by Mr Perkins at page 8 of his trial report (Ex. 7).

[7]See the description of the land at Appeal Book, document 6 (vol. 1, p 27).

[8]The first appellant called a Town Planner, Mr Adamson, and the second Appellant called only two lay witnesses.

[9]Co-Respondents written submissions at [186].

[10]See Associations Incorporation Act 1981 ss 21 and 29.

[11]See s 462(1) and Schedule 3 (definitions of “application”, “person”, “properly made submission” and “submitter”) of the SPA. It was common ground that each had made such a submission. See Appeal Book, documents 10 and 11 (Vol 2). 

[12]See Ex 16.

[13]Exhibit 2, Appeal Book, Volume 1, p. 349

[14]For example, see: Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPELR 406.

[15][2014] QPEC 64 at [176].

[16]Reference is made to Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342 at [40]: See first appellant’s written submissions at [123]-[127] and Co-Respondent’s submissions at [143]-[147].

[17]First appellant’s written submissions at [127] and respondent’s submissions at [2.18]-[2.22].

[18]The Sunshine Coast Planning Scheme 2014 commenced on 21 May 2014.

[19]See the Acknowledgement Notice at Appeal Book, document 7 (vol. 1, pp 350-4) and sections 95 and 96 of the SPA.

[20]S 314(1).

[21]See ss 7 and 238 and the definition of “assessable development” in Sch. 3 of the SPA.

[22]See s 232 of the SPA and MP2000, Vol 1 at p 33, Chapter 4.1(2) (Ex. 3, p 33). MP 2000; Vol 1 at p 93-99, Chapter 4.4 Table of Development Assessment for Material Change of Use in Centre Precincts – Village Centre (Ex. 3, pp 42-48) and Vol 1 at pp168-169 and 170-172, 5.4 Table of Development Assessment for Lot Reconfiguration – Centre Precincts (Ex. 3 at pp 96-97 & 99-100).

[23]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212 and Parmac Investments Pty Ltd v Brisbane City Council & Anor [2008] QPELR 480 at [20].

[24][2006] 1 Qd R 273 at [23].

[25]See: Heath & Anor v Gold Coast City Council [2008] QPEC 33 at [23] and the cases there referred to, and Silverton Ltd v Maroochy Shire Council [1982] QPLR 182 at 183F.

[26][2001] QPELR 272 at 276.

[27] See Ex. 6.

[28]First appellant’s written submissions at [48].

[29]First appellant’s written submissions at [123]-[127].

[30]First appellant’s written submissions at [127].

[31]First appellant’s written submissions at [61].

[32]MP2000, Vol 4 at pp 269-280, Chapter 5.1 (Ex. 3, pp 161-172).

[33]MP2000, Vol 4 at pp 399-418, Chapter 8 (Ex. 3, pp 173-192).

[34]First appellant’s written submissions at [112]-[122].

[35]MP2000, Vol 4 at pp 111-126, Chapter 2.4 (Ex. 3, pp 145-160).

[36]First appellant’s written submissions at [62]-[94].

[37]Respondent’s written submissions at [1.36].

[38]Co-Respondents written submissions at [42(a)] and [45].

[39][2013] QPELR 661 at [44].

[40]Appeal Book, document 27 (vol. 3, p 723).

[41]Appeal Book, document 16 (vol. 2, p 474).

[42]Appeal Book, document 16 (vol. 2, p 492) and document 27 (vol 3, p 741).

[43]Appeal Book, document 15 (vol. 2, p 453).

[44]Appeal Book, document 14 (vol. 2, p 454).

[45]See Notice: Change to or Cancel Conditions, dated 16/07/2003, conditions 10B and 11, at Appeal Book, document 29 (vol. 3, pp 811-12).

[46]Appeal Book, document 25 (vol. 3, pp 702-4).

[47]See conditions 9 and 10 in both the approval granted on 29/6/16 (see Appeal Book, document 16 (vol. 2, p 476)) and the negotiated approval granted on 20/12/16 (see Appeal Book, document 27 (vol. 3, p 727)). It would appear that the particular need for a community management statement may be related to the proposed internal common property, which allows for the internal road and the proposed swimming pool and related facilities.

[48]Such recalculation being expressly allowed by condition 11 of the pre-existing approval: see Appeal Book, document 29 (vol. 3, p 81).

[49]Appeal Book, document 26 (vol. 3, p 705).

[50]Appeal Book, document 31 (vol. 3, p 847).

[51]Ex. 17.

[52]Co-Respondent’s written submissions at [181].

[53]Respondent’s written submissions at [2.3].

[54][2014] QCA 147 at [51]-[52].

[55](1998) 194 CLR 355 at [69]-[71], [78] (footnotes omitted).

[56]Zappala Family Co Pty Ltd v Brisbane City Council and Ors [2014] QCA 147 at [52].

[57]Zappala Family Co Pty Ltd v Brisbane City Council and Ors [2014] QCA 147, at [53]-[58].

[58]See AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1.

[59][2003] QPELR 447 at [60] and in respect of an analysis of the same planning scheme.

[60]First appellant’s written submissions at [62]-[66].

[61]MP2000, Vol 4 at p 111, Chapter 2.4 (Ex. 3, p 145).

[62]MP2000, Vol 4 at p 114, Chapter 2.4(3) (Ex. 3, p 148).

[63]MP2000, Vol 4 at p 115, Chapter 2.4(5) (Ex. 3, p 149).

[64]MP2000, Vol 4 at p 117, Chapter 2.4(7) (Ex. 3, p 151).

[65]MP2000, Vol 4 at p 120, Chapter 2.4 (detached house) (Ex. 3, p 154), Vol 4 at p 122, Chapter 2.4 (shop) (Ex. 3, p 156).

[66]MP2000, Appendices, Maroochy Shire Planning Scheme Policy No. 6 at p 171 (Ex. 3 at p 242).

[67]T2-15.37 and 2-16.26.

[68]T2-14.25-2-15.2.

[69]Co-Respondent’s written submissions at [149].

[70]Ex. 4 at [9].

[71]Each lot provides for a double car port or two car parking spaces, except for lot 12 where the proposal is for the second space to be by tandem parking in the area external to the incorporated carport but not on the adjacent footpath or driveway.  

[72]Co-Respondents written submissions at [167]-[169]. See: Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41 at 43, Parmac Investments Pty Ltd v The Brisbane City Council [2008] QPELR 480 at [16], Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPELR 468 at 474 K and Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593 at [20]-[22].

[73]MP2000, Vol 4 at 111, Chapter 2.4 (Ex. 3, p 145).

[74]Co-Respondent’s written submissions at [157] and Respondent’s written submissions at [2.12]-[2.13].

[75]Ex. 10 at [67]-[70].

[76]Ex. 10 at [59]-[66].

[77]First appellant’s written submissions at [75]-[82].

[78]Ex. 1, Doc. 7, p 8. Noting the spaces marked V1-V12 and 8 additional spaces adjacent to and behind each of the SOHO Lots 1-4 and 22-25, respectively.

[79]As represented in exhibit 1, Doc 7, p 8.

[80]These are respectively marked as V21-28 in Ex. 1, Doc. 6, p 7.

[81]Ex. 15.

[82]Appeal Book, document 14 (vol. 2, p 466); noting that the reference to the existing on-site carpark area of about 27 spaces, is acknowledged to relate to the provision of a temporary parking arrangement in accordance with the pre-existing approval for stage development of the Element site, prior to the approved changes that have been noted above in para [30].

[83]Ex. 13.

[84]First appellant’s written submissions at [85]-[86].

[85]First appellant’s written submissions at [88].

[86]First appellant’s written submissions at [91].

[87]First appellant’s written submissions at [89], with emphasis noted as there it appears.

[88]First appellant’s written submissions at [92].

[89]See Ex. 1, document 6, p 7.

[90]A prospect specifically noted in Ex. 13 as a type of action to be targeted over a short term of 1 to 5 years.

[91]Co-Respondent’s written submissions at [177].

[92]Respondent’s written submissions at [2.10].

[93]CF Co-Respondents written submissions at [179(a)].

[94]T2-58.41-2-59.16.

[95]CF T2-37.30-42 and T2-38.41-2-39.4.

[96]First appellant’s written submissions at [69].

[97]Which analysis were not beyond some criticism by way of indicating limitations upon them, nevertheless sufficient to support the views expressed by him.   

[98]Ex. 10 at [76].

[99]Ex. 10 at [7] – [8].

[100]Ex. 10 at [32].

[101]Ex. 10 at [16] – [27].

[102]Ex. 10 at [28] – [29].

[103]Note: He later conceded in evidence that the correct calculation may be 70 rather than 75. See Transcript ref T3.21-T3.22.11

[104]Ibid.

[105]Ex. 10 at [38] – [43].

[106]Ex. 10 at [58].

[107]Ex. 4, particularly at [86]-[100], [116]-[125], [138]-[146] and [162]-[168].

[108]Ex. 4 at [87], [96], [99 (iv)] and [125].

[109]Ex. 4 at [99 (ii)].

[110]Ex. 4 at [138] and [144].

[111]Ex. 4 at [144]-[146] and T2-82.24-2-83.8.

[112]MP2000, Vol 1 at p 21-22 (Ex. 3, p 22).

[113]Ex. 4 at [144]-[146] and T2-82.24-38 and T4-58.1-16.

[114]See [101]-[103], below.

[115]See [32] – [35], above.

[116]T3-14.8-13.

[117]T3-14.35-45.

[118]MP2000, Vol 3 at p 201, Chapter 3.1.4 (Ex. 3, p 134).

[119]T3-20.14-3.22.41.

[120]MP2000, Vol 3 at p 200, Chapter 3.11.3(2) (Ex. 3, p 132).

[121]T3-29.22-3.30.15.

[122]T3-31.20-25.

[123]See Ex. 3A.

[124]Ex. 14. And see the Co-Respondent’s written submissions at [60] – [66].

[125]MP2000, Vol 1 at p 7, Chapter 2.1.1 (Ex. 3, p 7).

[126]See MP2000, Vol 1 at p 3, Chapter 1.2(2)(a) (Ex. 3, p 3). It is expressly noted that the reference to “ecological sustainability” is to the definition of that term in Chapter 1, Part 3, s 1.3.3 of the Integrated Planning Act 1997: “a ‘balance that integrates: (a) protection of ecological processes and natural systems at local, regional, State and wider levels; and (b) economic development; and (c) maintenance of the cultural, economic, physical and social well being of people and communities.”

[127]MP2000, Vol 1, Chapter 2.2, p 8 (Ex. 3, p 8).

[128]MP2000, Vol 1 at p 8, Chapter 2.2 (Ex. 3, p 8).

[129]MP2000, Vol 1 at p 8, Chapter 2.2 (Ex. 3 at p 8).

[130]MP2000, Vol 1 at p 8, Chapter 2.2 (Ex. 3, p 8); Vol 2 at p 3, Chapter 1 (Ex. 3, p 105).

[131]MP2000, Vol 2 at p 10, Chapter 3.1, p 10.

[132]Ibid.

[133]MP2000, Vol 2 at p 11, Chapter 3.4.1.

[134]MP2000, Vol 2 at pp 11-12, Chapter 3.5.2.

[135]MP2000, Vol 2 at pp 13-14, Chapters 3.5.4 – 3.5.5.

[136]MP2000, Vol 2 at pp 14-16, Chapters 3.5.6 – 3.5.12.

[137]MP2000, Vol 2 at p 18, Chapter 4.2 (Ex. 3, p 107).

[138]MP2000, Vol 2, Chapter 4.3, pp 19-20 (Ex. 3, pp 108-109).

[139]Ex. 1 at p 6.

[140]MP2000, Vol 2 at pp 20-22, Chapter 4.4 (Ex. 3, pp 109-111).

[141]MP2000, Vol 2 at pp 40-43, Chapter 8.

[142]Note: It appears in the same terms and with specific direction.

[143]MP2000, Vol 1 at p 3 (Ex. 3, p 3); Vol 3 at p 3, Chapter 1 (Ex. 3 at p 117).

[144]MP2000, Vol 3 at p 3, Chapter 1 (Ex. 3, p 117).

[145]MP2000, Vol 3 at p 11, Chapter 2.3 (Ex. 3, 125).

[146]MP2000, Vol 3 at pp 199-202, Chapter 3.11.1 (Ex. 3, pp 131-134).

[147]As constituting subsection 2.4 of “Part 2 – General Land Use and Development Codes (Environmental Management and General Matters)”: See Ex. 3 at pp 145-160.

[148]MP2000, Vol 4 at p 3-4, Chapter 1 (Ex. 3 at p 143-144).

[149]MP2000, Vol 4 at p 269, Chapter 5.1 (Ex. 3, p 161).

[150]MP2000, Vol 4 at pp 269-275, Chapter 5.1 (Ex. 3, pp 161-167).

[151]MP2000, Vol 1 at p 8, Chapter 2.2 (4)-(6) (Ex. 3, p 8); Vol 2 at p 3 (Ex. 3, p 105); Vol 3 at p 3 (Ex. 3, p 117).

[152]MP2000, Vol 1 at p 3, Chapter 1.2 (g) (Ex. 3, p 3) and Vol 2 at p 18 (Ex. 3, p 107).

[153]MP2000, Vol 1 at p 8, Chapter 2.2 (3) (Ex. 3, p 8).

[154]MP2000, Vol 2 at p 18, Chapter 4.2 (Ex. 3, p 107).

[155]MP2000, Vol 2 at p 19, Chapter 4.3.3 (Ex. 3, p 108).

[156]MP2000, Vol 2 at p 20, Chapter 4.4.1(Ex. 3, p 109).

[157]MP2000, Volume 2, 4.4.1 p 21 (20) (Ex. 3 at p 110).

[158]MP2000, Volume 2, 4.4.1, p 21 (23) (Ex. 3 at p 110).

[159]MP2000, Volume 3, 3.11.2 (1), p 199 (Ex. 3 at p 131).

[160]MP2000, Volume 4, 8 (b), p 399 (Ex. 3 at p 173s).

[161]See respondent’s written submissions at [2.16] and cf: the Co-Respondent’s written submissions at [97] – [98] and [100] – [104] (also [54]-][58]).

[162]MP2000, Vol 2 at p p13-14, Chapter 3.5.5 (7th dot point), Chapter 3.5.6; Vol. 2 at p 19, Chapter 4.3.3 (7th dot point), Vol. 2 at pp 20-22, Chapter 4.4.1 (including [20] under the heading “Village Centres”) (Ex. 3, pp 109-111 and Volume 3 at p 199-200, Chapter 3.11.2.

[163]MP2000, Vol 3 at p 201, Chapter 3.11.4 (Ex. 3, p 133) and Vol 1 at p 98 (Ex. 3, p 47)

[164]cf: Exhibit 4, TPJER at p 11, [64]-[65] and [68]-[69].

[165]MP2000, Vol 3 at p 11, Chapter 2.3(3) (last para), Vol 3 at p 201, Chapter 3.11.4 (1) (fifth para) (Ex 3, p133)

[166]MP2000, Vol 3 at p 11, Chapter 2.3(3) (last para) (Ex. 3, p 125).

[167]MP2000, Vol 3 at p 201, Chapter 3.11.4 (under the heading ‘Preferred and Acceptable Uses’) (Ex. 3, p133)

[168]MP2000, Vol 3 at p 201, Chapter 3.11.4(1) (first and second paras) (Ex. 3, p 133).

[169]MP2000, Vol 4 at p 273, Chapter 5.1 (Ex. 3, p 165).

[170]See para [112] below.

[171]MP2000, Vol 2 at p 6 (Ex. 3A).

[172]MP2000, Vol 2 at p 18, Chapter 4.2 (first and third dot points) (Ex. 3, p 107).

[173]MP2000, Vol 3 at p 199, Chapter 3.11 (second and third dot points) and 3.11.2(2)(a) (Ex. 3 p131), p 132, Chapter 3.11.3 (1)(a) (Ex. 3, p 132) and p 201, Chapter 3.11.4 (1) (first and second paras) (Ex. 3, p 133).

[174]Co-Respondent’s written submissions at [81] and T4-49.45 – 4-50.29.

[175]MP2000, Vol 3 at p 11, Chapter 2.3 (3) (second para) (Ex. 3, p 125).

[176]MP2000, Vol 3 at p 202 (Ex. 3, p 134).

[177]See [67] above.

[178]See [11] above.

[179]Co-Respondent’s written submissions at [127] – [128].

[180]Main Beach Progress Association Inc v Gold Coast CC 2008 QPELR 675 at [89]; WBQH Developments Pty Ltd v Gold Coast CC 2010 QCA 126 at [35]

[181]SDW Projects Pty Ltd v Gold Coast CC 2007 QPELR 24 at [48] and Kangaroo Point Residents Association v Brisbane CC 2014 QPEC 64 at [73]

[182] [2014] QPEC 64 at [73] – [74].

[183][2010] QCA 126 at [34] – [37], in the judgment of Fryberg J and with whom, the other members of the Court agreed.

[184]It may be noted that although not expressed in the same precise terms, there are statements in MP2000 to similar effect to that noted in [34] of this extract and as to the desired compliance with acceptable measures. See para [87], above and particularly the provisions at (4)(a) and (e) under the heading “Acceptable Measures”.

[185]See Volume 2 at 3.3.5, 3.4.1, 3.5.2 (Implementation Strategy 2) and 3.5.5. See [80] above.

[186]MP2000, Vol 4 at p 399 (Ex. 3, p 173).

[187]MP2000, Vol 4 at p 406 (Ex. 3, p 180)

[188]T4-16.9-38

[189]MP2000, Vol 4 at p 406 (Ex. 3, p 180)

[190]See para [98], above.

[191]T3-31.20-25.

[192]Ex. 7.

[193]First Appellant’s written submissions at [132]-[133].

[194]Co-Respondents’ written submissions at [193]

[195]Co-Respondents’ written submissions at [199] – [201].

[196]T3-26.22-43.

[197]See: Weightman v Gold Coast City Council (2002) 161 LGERA 173, Woolworths Ltd v   Maryborough Regional Council (No 2) [2006] 1 Qd R 273 at 28 , Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15 at 19  and Zappala v Brisbane City Council (2014) 201 LGERA 82.

[198]SPA, Schedule 3 (definition of ‘Grounds’).

[199]Cf: Westlink Pty Ltd v Lockyer Valley Regional Council (2014) 198 LGERA 1 at [13] and [45]

[200]Co-Respondent’s Written Submissions at [208(a)] and [211]-[221].

[201]Ex. 8, at p.16 [10].

[202]Ibid at p.16 [11]-]12] and p.17 [14].

[203]Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPELR 624, 632 at [50].

[204]  Arksmead v Council of the City of Gold Coast [1999] QPELR 322 at 330, Tanby Gardens Pty Ltd v Livingstone Shire Council [2007] QPEC 097 at [29].

[205][1982] QPLR 13 at 35.

[206]Co-Respondents’ written submissions at [203].

[207]Ex. 10, at [78].

[208]See: Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at [25].

[209]See para. [57], above.

[210]With no apparent or identified conflict with principles 8.7 or 8,8; cf: T3-10.25-47.

Close

Editorial Notes

  • Published Case Name:

    Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor

  • Shortened Case Name:

    Development Watch Inc v Sunshine Coast Regional Council

  • MNC:

    [2018] QPEC 6

  • Court:

    QPEC

  • Judge(s):

    Long DCJ

  • Date:

    26 Feb 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
2 citations
Jump To
Cite 1 - [2013] 1 Qd R 1
Cite 2 - [2013] 1 Qd R 1
Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342
1 citation
Jump To
Cite 1 - (2008) QPELR 342
Arksmead v Council of the City of Gold Coast (1999) QPELR 322
2 citations
Jump To
Cite 1 - (1999) QPELR 322
Cite 2 - (1999) QPELR 322
Brown v Idofill Pty Ltd (1987) 64 LGRA 218
1 citation
Jump To
Cite 1 - (1987) 64 LGRA 218
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPELR 624
2 citations
Jump To
Cite 1 - (2003) QPELR 624
Cite 2 - (2003) QPELR 624
Cf Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480
3 citations
Jump To
Cite 1 - [2008] QPELR 480
Cite 2 - [2008] QPELR 480
Cite 3 - [2008] QPELR 480
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
1 citation
Jump To
Cite 1 - (1981) 147 CLR 297
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
2 citations
Jump To
Cite 1 - (1997) QPELR 208
Cite 2 - (1997) QPELR 208
Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15
2 citations
Jump To
Cite 1 - [2013] QPEC 15
Cite 2 - [2013] QPEC 15
Heath & Anor v Brisbane City Council [2008] QPEC 33
2 citations
Jump To
Cite 1 - [2008] QPEC 33
Cite 2 - [2008] QPEC 33
Indooroopilly Golf Club v Brisbane City Council (1982) Q.P.L.R 13
2 citations
Jump To
Cite 1 - (1982) Q.P.L.R 13
Cite 2 - (1982) Q.P.L.R 13
Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41
2 citations
Jump To
Cite 1 - [1995] QPLR 41
Cite 2 - [1995] QPLR 41
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
4 citations
Jump To
Cite 1 - [2014] QPEC 64
Cite 2 - [2014] QPEC 64
Cite 3 - [2014] QPEC 64
Cite 4 - [2014] QPEC 64
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
2 citations
Jump To
Cite 1 - [2013] 2 Qd R 302
Cite 2 - [2013] 2 Qd R 302
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
1 citation
Jump To
Cite 1 - (2003) QPELR 447
Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661
2 citations
Jump To
Cite 1 - (2013) QPELR 661
Cite 2 - (2013) QPELR 661
Main Beach Progress Association Incorporated & Ors v Gold Coast City Council & JJ Foundation Pty Ltd (2008) QPELR 675
2 citations
Jump To
Cite 1 - (2008) QPELR 675
Cite 2 - (2008) QPELR 675
Pacific Seven Pty Ltd v City of Sandringham (1982) V. R. 157
1 citation
Jump To
Cite 1 - (1982) V. R. 157
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
1 citation
Jump To
Cite 1 - (2011) QPELR 406
Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593
2 citations
Jump To
Cite 1 - [2004] QPELR 593
Cite 2 - [2004] QPELR 593
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
2 citations
Jump To
Cite 1 - (2007) QPELR 24
Cite 2 - (2007) QPELR 24
Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPELR 468
2 citations
Jump To
Cite 1 - [2012] QPELR 468
Cite 2 - [2012] QPELR 468
Silverton Ltd v Maroochy Shire Council [1982] QPLR 182
2 citations
Jump To
Cite 1 - [1982] QPLR 182
Cite 2 - [1982] QPLR 182
Tainui Pty Ltd v Brown (1988) 65 LGRA 22
1 citation
Jump To
Cite 1 - (1988) 65 LGRA 22
Tanby Gardens Pty Ltd v Livingstone Shire Council [2007] QPEC 97
2 citations
Jump To
Cite 1 - [2007] QPEC 97
Cite 2 - [2007] QPEC 97
WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126
3 citations
Jump To
Cite 1 - [2010] QCA 126
Cite 2 - [2010] QCA 126
Cite 3 - [2010] QCA 126
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
1 citation
Jump To
Cite 1 - [2003] 2 Qd R 441
Weightman v Gold Coast City Council (2002) 161 LGERA 173
1 citation
Jump To
Cite 1 - (2002) 161 LGERA 173
Westlink Pty Ltd v Lockyer Valley Regional Council (2014) 198 LGERA 1
2 citations
Jump To
Cite 1 - (2014) 198 LGERA 1
Cite 2 - (2014) 198 LGERA 1
Wingate Pty Ltd v Brisbane City Council (2001) QPELR 272
2 citations
Jump To
Cite 1 - (2001) QPELR 272
Cite 2 - (2001) QPELR 272
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
3 citations
Jump To
Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Cite 3 - [2006] 1 Qd R 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
4 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Cite 3 - [2014] QCA 147
Cite 4 - [2014] QCA 147
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd[1992] 1 Qd R 352; [1991] QSCFC 123
1 citation
Jump To
Cite 1 - [1992] 1 Qd R 352

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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