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Sandstrom v Sunshine Coast Regional Council & Windansea Boardriders Club[2020] QPEC 62

Sandstrom v Sunshine Coast Regional Council & Windansea Boardriders Club[2020] QPEC 62

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sandstrom & Ors v Sunshine Coast Regional Council & Windansea Boardriders Club [2020] QPEC 62

PARTIES:

DEAN SANDSTROM & ORS

(appellants)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

and

WINDANSEA BOARDRIDERS CLUB

(co-respondent)

FILE NO:

3720 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

18 December 2020

DELIVERED AT:

Cairns

HEARING DATE:

2, 3, 4, 5, 6, and 9 November 2020

JUDGE:

Fantin DCJ

ORDER:

  1. By 4 pm on 22 January 2021, the respondent is to deliver to the other parties a draft Judgment attaching the conditions of approval; and
  2. The appeal is adjourned to 9 am on 29 January 2021 for the purpose of making final orders in the appeal.
  3. Liberty to relist the matter on 2 business days’ notice if the parties seek alternate dates.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPEAL – submitter appeal against council’s approval of a development application seeking development permit for material change of use for a club – whether the proposed development complies with the planning scheme – whether the proposed development is suitably located – whether the proposed development will have unacceptable impacts on matters of environmental significance, ecologically important areas and visual amenity – whether other relevant matters support approval or refusal of the proposed development.

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) s 43, s 45, s 47

Planning Act 2016 (Qld) s 45, s 59, s 60, s 62

Planning Regulation 2017 (Qld) s 31

CASES:

Abeleda & Anor v Brisbane City Council & Anor  [2020] QCA 257

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793

Bell v Brisbane City Council [2017] QPEC 26

Bell v Brisbane City Council (2018) 230 LGERA 374

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253

Cowen & Anor v Brisbane City Council & Anor [2015] QPEC 50

Cut Price Stores, Retailers v Caboolture Shire Council [1984] QPLR 126

Friend v Brisbane City Council [2014] QPELR 24 QPEC 50

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132

Harris v Scenic Rim Regional Council [2014] QPELR 324

Isgro v Gold Coast City Council [2003] QPELR 414

Lipoma Pty Ltd & Anor v Redland City Council & Anor (28 August 2020) [2020] QCA 180

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

Prime Group Properties Ltd v Caloundra City Council [1995] QPLR 147

Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41

Seabridge Pty Ltd & Anor v Beaudesert Shire Council & Anor [2001] QPELR 191

Wilhelm v Logan City Council & Ors [2020] QCA 273

48 Stuart Pty Ltd v Brisbane City Council (2017) QPELR 133

COUNSEL:

A Skoien for the appellants

H Stephanos for the respondent

M McDermott for the co-respondent

SOLICITORS:

McCarthy Durie Lawyers for the appellants

Sunshine Coast Council Legal Services for the respondent

Andrew Davis Planning Lawyers for the co-respondent

Table of Contents

Introduction

The site and locality

The club and its activities

History of development application

The proposed development

Statutory framework

Overview of planning scheme

Is the proposed development appropriately located?

Strategic framework – Settlement pattern theme

Strategic Framework – Economic development theme

Strategic framework – Infrastructure and services theme

Strategic framework – Natural environment theme

Strategic framework – Community Identity, Character and Social Inclusions theme

EMC zone code

Sport and recreation uses code

Bushfire

Conclusion on the nature and extent of any non-compliance with assessment benchmarks

Ecology: will the proposed development result in unacceptable impacts on matters of environmental significance and ecologically important areas?

Biodiversity, waterways and wetlands overlay code

Caloundra Local Plan code

EMC zone code

Conditions of approval

Consideration

Ecological values of the site

Regional ecosystem and wetland classification

Threatened species

Frogs

Flying foxes

Koalas

Ecologically significant area

Impacts on ecological values

Offset

Conclusion on the nature and extent of any non-compliance with assessment benchmarks

Will the proposed development have unacceptable impacts on visual amenity?

Conclusion on the nature and extent of any non-compliance with assessment benchmarks

Other relevant matters under s 45(5)(b) PA relied upon to support approval

Community and town planning need

Nexus

Public benefits

Appropriateness of the use in the EMC Zone

The strong community support for the proposed development;

The existence of council support in the commitment to lease and Federal support in the form of funding

Clearing for bushfire purposes

Advancing the purpose of the Act

Other relevant matters under s 45(5)(b) PA relied upon to support refusal

Reasonable community expectations

Absence of planning need

Absence of public interest

Inability to impose conditions of approval to address non-compliance

Conclusion and orders

Introduction

  1. [1]
    This is a submitter appeal against the respondent council’s decision to approve the co-respondent’s development application for a material change of use for a Club on the foreshore at Currimundi on the Sunshine Coast.
  2. [2]
    The co-respondent (the club) is a local longstanding non-profit community association whose objects include the promotion and development of the sport of surfing. It wants to develop a modestly sized clubhouse on the northern side of a park at the end of Buderim Street, within the southern edge of a strip of coastal vegetation and open space.[1] The site is on Crown land that is part of a reserve for recreation purposes, under the trusteeship of the council, with an area of 12.8 hectares.
  3. [3]
    The reserve is a small part of a long strip of coastal vegetation that runs from the north of Caloundra to Currimundi Lake and further north towards Mooloolooba. South of Currimundi Lake, the coastal vegetated strip runs along the foreshore of surf beaches, divided by creeks and an inlet, down to Currimundi, Dicky Beach and further south.
  4. [4]
    Buderim Street at Currimundi runs generally west to east from Nicklin Way, terminating in a cul-de-sac at a foreshore park. The park interrupts the strip of coastal vegetation, which continues to the north and south. Offshore are two well-known surf breaks: the Ann Street break and the Ann Street reef. There is parking along both sides of Buderim Street and within and around the cul-de-sac head. The cleared and grassed part of the park contains open space, landscaping, and infrastructure. The infrastructure includes a public toilet block, shower, picnic tables, rubbish bins, beach access pathways, a wheelchair access ramp to the beach, and elevated decking leading to a beach observation/viewing platform.
  5. [5]
    Adjoining the reserve are two schools. On the southern side of Buderim Street, with street frontage for the length of the block, is the Currimundi Special School. On the northern side of Buderim Street are detached houses which back onto the Currimundi State School. About 10 metres west of the site of the proposed clubhouse is a two‑storey house at 1 Buderim Street. A coastal pathway running north south divides the house and school to the west from the coastal vegetation and park to the east. The wider locality is characterised by low-density residential detached dwellings, local shops, hotels and community facilities such as schools and childcare centres and coastal recreation reserves.
  6. [6]
    The proposed clubhouse is intended to have a building footprint of only 210m2, comprising a building of 178m2 and external unenclosed deck area of 33m2. It is a simple, lightweight, single-storey rectangular building with a maximum height of 5.36 metres, designed to blend into the surrounding environment. It has an access ramp on the southern side and a small deck on the northern side. It would comprise a meeting room, three storerooms, a modest kitchen, a boardroom, and amenities. There is no bar, restaurant facilities or vehicle access.
  7. [7]
    The club intends to use the clubhouse for storage, meetings and events, as well as coaching, training and community gatherings,[2] and it would be accessible to a number of other identified community groups. The clubhouse is intended to be a not-for-profit community building dedicated to surfing, other ocean based sport, recreation, education and culture.[3]
  8. [8]
    The relevant State Assessment and Referral Agency (SARA) issued a referral response with conditions to be imposed on any approval.
  9. [9]
    The development application was impact assessable and publicly notified. There were 330 properly made submissions: 311 submissions supported the proposed development, and 23 submissions opposed, or raised concerns with, it.
  10. [10]
    The respondent (the council) approved the development application, subject to conditions.
  11. [11]
    Sixteen submitters who opposed the development now appeal against the approval (the appellants).  Four of those own the house at 1 Buderim Street. The others include owners of houses in the same street or locality.
  12. [12]
    In the appeal, the council maintains its position and continues to actively support approval of the proposed development. It conducted a positive case, calling evidence from independent expert witnesses and making submissions in support of the proposed development.
  13. [13]
    The appellants say that the proposed development is not an appropriate use in this location and will have unacceptable impacts on ecology and visual amenity.
  14. [14]
    Summarising, the disputed issues[4] concerned whether the proposed development complies with the relevant planning scheme and specifically:
    1. (a)
      whether the proposed development:
      1. is appropriately located;
      2. will result in unacceptable impacts on matters of environmental significance and ecologically important areas;
      3. will have unacceptable impacts on visual amenity; and
    2. (b)
      whether there are other relevant matters (including need and public benefit) that support, or militate against, approval of the proposed development.
  15. [15]
    The appeal involved expert evidence in the fields of ecology, bushfire, visual amenity and town planning. There was a degree of overlap in the issues, particularly ecology and bushfire.
  16. [16]
    For the reasons that follow, I am satisfied that the proposed development should be approved subject to lawful appropriate conditions.

The site and locality

  1. [17]
    The visual amenity experts agreed that the reserve extends along the dune system for approximately 850 metres to the north of the site taking in Coondibah Creek and approximately 1,020 metres to the south, extending to Dicky Beach headland. They agreed that within or adjacent to the reserve is a variety of built form, including the Dicky Beach skate park, Dicky Beach Surf Lifesaving Club, life guard tower, various shelters and smaller structures and housing. Otherwise, most of the reserve is vegetated. 
  2. [18]
    In 2017, the council resolved to grant the club a lease of part of the reserve, with an area of 590m2 (the site). It comprises only 0.46% of the entire reserve, which has an area of 12.8 hectares.
  3. [19]
    The club has a longstanding connection with the Ann Street surf break, offshore from the end of Ann and Buderim Streets. The Ann Street break is a nationally recognised surf break. Surf conditions in this location are covered daily on websites, radio, and sometimes television, with advice about the break and prevailing conditions. Further offshore is another surfing location known as the Ann Street reef, and keener riders will paddle out to that location. While most surf breaks involve only one break, the Ann Street break benefits from a left-hand and a right-hand break, as waves break either side of a rock formation. It also has useful shore breaks further to the left and right, providing up to four sets of breaks, conditions prevailing.

The club and its activities

  1. [20]
    The club adduced affidavit evidence from 10 lay witnesses. Only one of those, Mr Smith, who was authorised on behalf of the club to swear his affidavit, was required for cross-examination. The evidence of the club’s other lay witnesses was unchallenged.[5] 
  2. [21]
    The club was established in 1970 and is 50 years old. It has approximately 145 members ranging in age from children to retirees. Half of the members are younger than 12 years old. The mission of the club is “[t]o promote the sport of surfing and actively being involved with the local community, encouraging and attracting young surfers on the Sunshine Coast to become new members while promoting the integrity and sportsmanship in the sport of surfing.”[6]
  3. [22]
    The current constitution of the club was adopted on 7 November 2018.[7] Its objects include:
    1. (a)
      To promote and develop the sport of surfing and such other sports, games, and pastimes, as the associate may deem expedient in the Region;
    2. (b)
      To affiliate with Surfing Queensland Inc. and such other associations as shall be considered desirable;
    3. (c)
      Actively support the preservation and conservation of the environment, and join with or affiliate with bodies or organisations concerned with the conservation and preservation of the environment;
    4. (d)
      To establish and operate a viable surfing and community clubhouse that can also be used by the wider community; and
    5. (e)
      To promote a strong and caring image supporting surfing in the community.
  4. [23]
    Membership of the club is open to the public, and the club conducts and promotes a number of events and activities.
  5. [24]
    The club hosts the annual Pa and Ma Bendall Memorial Surfing Contest at Moffat Beach in honour of two local prominent surfing identities described as “Queensland surfing’s patron saints” and “grandad of Queensland surfing”. The inaugural contest was held in 1974, and it is the second longest surfing contest in Australia (after the Bell’s Classic). The contest attracts national competitors and is a substantial boost to the local economy. The age of the club, its history, and conduct of that annual surfing contest are important to the club’s heritage and culture.
  6. [25]
    In addition, every month on a Sunday between 7am and 2pm, the club hosts a surfing contest at the Ann Street surf break. Some 80 to 100 people compete, and 100 to 200 people attend. This is authorised by a local law permit issued by council.  The proposed clubhouse is to be located at the end of Buderim Street and adjacent to the open space containing the toilet block, judging/viewing platform and wheelchair access ramp to the beach.  That infrastructure complements the use of the Ann Street break for surfing competitions.  Indeed, Mr Smith’s evidence is that the club was one of the entities involved in seeking improvements at the Buderim Street Park that led to construction of the platform some 20 years earlier, which is used for judging surfing competitions at the Ann Street break.
  7. [26]
    The monthly competitions occur at the Ann Street surf break unless weather or prevailing conditions prevent them from being held there. Mr Smith said that conditions at the break are pretty constant and you can usually surf there.
  8. [27]
    In addition, the club also conducts meetings (monthly), junior development sessions (weekly) and interclub competitions (regionally).  The club runs a junior program in conjunction with the Currimundi State School, and juniors usually surf from the beach in front of the school (accessed from the foreshore park). 
  9. [28]
    Mr Williams, club member and town planner, deposed to the diverse and multi‑generational membership of the club, and its commitment to fostering in young people an appreciation of surfing and the coastal environment. He confirmed the club’s membership includes students, parents and teachers from the two neighbouring schools.  He deposed to the club’s “strong relationship with the site and its local area”, describing it as the “spiritual home” of the club and the “epicentre” of the majority of its recreational and competitive surfing activities.
  10. [29]
    Mr Reef Heazelwood, lifelong club member and professional surfer, deposed to the benefits of club membership to young people, the prevalence of families within the club membership, and members’ connection to the adjoining schools and local community.
  11. [30]
    Mr Daley, club member and architect, deposed to the diversity of the club’s membership, in terms of occupation and age.  He said that the club had more junior members than senior, with most not old enough to consume alcohol. He deposed to the problems associated with club members attending a hotel for club meetings, and the undesirability of this with children. 
  12. [31]
    Mr Cover, club treasurer and accountant, deposed to the club’s family orientated focus and large membership of young people.  He further deposed to club members’ care for the coastal environment and in regular beach cleanups.  He said the club’s focus was on coaching and supporting young members to State, National and International competitive success, and that the club was first and foremost a sporting organisation, rather than a social club.
  13. [32]
    Ms Burke, club member and clinical midwife, repeated many of the above statements. She added that most members live in the immediate area and all volunteer with the club, as well as other community organisations and the schools. She spoke of the benefit to the local community of the proposed development in this location.
  14. [33]
    Mr Hindley, club member and former club President and landscape architect, deposed to the club’s success in developing competitive surfers, including a world champion, who act as mentors for young members. He said that proximity to the “sporting arena” is vital for maximising the value of the clubhouse facility to its members.  He said that the proposed site is the best location for the club in terms of its proximity to the Ann Street surf break, and the council and community built surfing infrastructure in the form of the judging platform and disability boardwalk access, thus allowing “the broadest church of the board riding surfing community to be involved”. He also referred to the other attributes of the location including the grassy open space with public toilet, available parking for club meetings during the evenings, and access to a safe cycle network and well-lit street.
  15. [34]
    Ms Heazlewood, club member and member of Disabled Surfers and Christian Surfers, deposed to the positive influence of the club on many families and the high level of volunteer involvement over many years. 
  16. [35]
    Dr Heazlewood, club member and medical practitioner, emphasised the club’s positive impact on children, saying it had helped hundreds of children to mature, develop confidence, and improve behaviour.  He deposed to the inclusive and diverse nature of the club’s membership. He emphasised the importance of caring for people in the community particularly during the COVID-19 pandemic, and said that encouraging and supporting the club and its proposed clubhouse would make a material positive impact.
  17. [36]
    Mr Warner, the Indigenous Surfing Chapter representative to the club, member of the clubhouse governance committee, and cultural consultant, deposed to the other community groups and clubs likely to be interested in using the proposed facility.  He confirmed that it had been difficult to find available meeting places for club meetings. He confirmed that in recent years meetings had been held at the hotel, which was not ideal because the club has so many underage members, and that the club is keen to move to non-licensed premises.

History of development application

  1. [37]
    Mr Smith is the chair of the club’s taskforce formed for the purpose of establishing the clubhouse. He gave unchallenged evidence that the club has been pursuing its goal of establishing a clubhouse to support its members since 2011.  It established a taskforce. It consulted with the community, including with the traditional owners, who supported the proposed clubhouse.
  2. [38]
    Currently the club conducts its monthly meetings at the Currimundi hotel, which provides room for the meetings on the understanding that members will buy drinks and/or meals. Most members of the club do not like this arrangement because they prefer not to attend licensed premises with their children (who are members). 
  3. [39]
    Mr Smith gave evidence that the club has had great difficulty finding available premises.  He was cross-examined at length about this. He accepted that the club had once held meetings at the Caloundra events centre, at a school (but said they were not permitted inside) and that they held their Christmas party at the rugby union club. He confirmed that the club may continue to hold its annual Christmas function at a licensed premises. In cross-examination, he rejected the suggestion that there was no reason that the club could not hold its monthly meetings at the school(s). He said that the club had approached the schools about holding meetings on their premises, but the answer was “no”, that they could not at present due to Covid-19 considerations, that it was difficult to get the times sought by the club, that there were issues with access to the school grounds including after hours, and that was why they currently used the hotel for monthly meetings. He said he had even asked if they could put the club on land used by the Special School. He said it would not be possible to display the club’s large collection of surfing memorabilia at a school. He also rejected the suggestion that there was no reason the club could not use the land at Graham Stewart park where it currently stored its larger items, explaining that it was three kilometres from the beach which was not conducive to running a surf club.  He said that the club had also approached the Sunshine Coast recreation centre to use their premises but it was hard to get the times they needed, and it was expensive to use.
  4. [40]
    In 2018 the club amended its Constitution to reflect its intention to establish a clubhouse, not only for its club members, but for other clubs in the community.
  5. [41]
    On 22 June 2018, the club lodged an impact assessable development application for a development permit for a Material Change of Use for a Club (the development application). The Department of Natural Resources, Mines and Energy, as the owner of the land, gave owner’s consent to the development application. Consent was conditioned upon the club complying with the purpose of the reserve, which was recreation, and entering a trustee lease with the council.[8]
  6. [42]
    The development application was treated as properly made on 7 August 2018.  It was publicly notified in November and December 2018. An evaluation of the submissions found overwhelming community support for the proposal.
  7. [43]
    Having read the submissions,[9] I agree with that assessment. It is often said that it is the quality or content of the submissions that matters more than the quantity. Here, the submissions were notable for their lack of pro forma responses. On the whole, they were hand written, individualised and referred to different issues. In addition to supporting submissions from club members, there were also many submissions from local community organisations. I have taken all of them into account but some warrant particular mention.
  8. [44]
    The principal of the Currimundi State School, a primary school of almost 600 students, provided a submission in support. The school is adjacent to the development site to the northwest, and adjoins the coastal path. It has beach and marine activities embedded in the school program and has surfing development, surfing excellence, and surf lifesaving programs as part of its curriculum. It has an annual beach carnival and various surfing competitions. The school is strongly connected to the marine, intertidal, foreshore and dune environment.  It envisages a very close relationship with the club and hopes to use the clubhouse, including for community workshops and activities for youth.  Many club members have connections to the school because they or their children attended it. Another aspect of the school’s relationship with the club which would benefit the students and community is access to club members as mentors and support for young people, including indigenous students (the club has an indigenous chapter) and students with behavioural problems. It referred to the potential for schools in the region to use the facility for surf programs, and said that the development would benefit a great many people and community groups, including Sunshine Coast Disabled Surfers Association, Indigenous Surfers and Women in the Waves.
  9. [45]
    The principal of the Currimundi Special School provided a submission expressing, on behalf of the school community, “full support” for the proposed development.  It said the special school has received “enormous support” from the club over many years. Its students regularly use the beach to develop surf skills, beach awareness and to participate in a range of activities.  The establishment of the clubhouse will strengthen the already strong relationship. The special school considers that the proposed development will be an asset to the community and will benefit its students, staff and parents in the short and long-term.
  10. [46]
    Two staff members of the Currimundi Special School separately provided submissions reiterating the benefit of the proposal to their students, and confirming the club’s association with and support for the Sunshine Coast Disabled Surfers Association.
  11. [47]
    There were also submissions in support from other community groups, including:
    1. (a)
      the Caloundra Rugby Union Club Inc (stating the clubhouse would be an asset to the surfing community);
    2. (b)
      the Caloundra Junior Rugby League Club (emphasising that the clubhouse would help promote junior sports);
    3. (c)
      the Caloundra Golf Club (emphasising the benefits to other community organisations and the contributions that the club makes to the community);
    4. (d)
      the Maleny Golf Club (approving the development plans, stating that the proposal would increase options for residents and visitors to engage in outdoor beach based activities, noting the club’s “long and distinguished history” in particular, “by encouraging young boys and girls to develop into responsible and well-rounded adults”, noting its commitment to working with other community clubs to share and use facilities for sporting and outdoor activities, and the opportunity for closer strategic relationships with the club to ensure wider community benefits).
  12. [48]
    There were numerous individual submissions supporting the proposed development.
  13. [49]
    Of the submissions opposing or raising concerns with the development, concerns were raised with club capacity, whether the facilities would be exclusive to club members and not accessible by members of the public, private use of public land, concerns about liquor licensing and alcohol consumption, excluding the public from the viewing platform, and whether approval of the proposal would create a precedent. The affidavits of Mr Smith and other lay witnesses responded to many of those concerns, particularly to fears about alcohol misuse, and the nature of the proposed use. The evidence of the club’s lay witnesses on those issues was unchallenged, and I accept it. In the end, those issues were not pursued as disputed issues in the appeal or grounds for refusal. 
  14. [50]
    Some adverse submissions also raised concerns with traffic, car parking, noise and amenity impacts on nearby houses, and vegetation clearing and habitat destruction. The club provided reports on noise and traffic as part of the development assessment process. Traffic, parking and noise impacts were not pursued as disputed issues in the appeal or grounds for refusal.  The impacts of vegetation clearing remained a disputed issue in the appeal.
  15. [51]
    The proposed development was referred to SARA for work in a coastal management district, clearing native vegetation, water quality and contaminated land (unexploded ordinance).
  16. [52]
    In response to an information request and advice from SARA, the club relocated the proposed development 5.89 metres to the west and 3.85 metres to the south to ensure it did not result in a significant residual impact on the identified wetland and high valued vegetation on site.[10]
  17. [53]
    SARA issued a referral agency response with conditions that must attach to any approval of the application.[11] Its conditions required the proposed development be located in accordance with the revised siting plan and clearing to be limited to an area identified as Area A. Its reasons included ensuring that the proposed development avoided clearing, or where avoidance is not reasonably possible, minimised clearing. Council considered the change to the development application to be a minor change, so the assessment process was not required to be restarted.
  18. [54]
    On 20 June 2019 council resolved to approve the development application (including the revised siting plan). Following representations by the club, council issued a Negotiated Decision Notice. On 15 October 2019 the submitters lodged the appeal.
  19. [55]
    The club has received financial and other support for the proposal from a number of sources. In 2019 the Federal government approved a grant of $140,000 for the proposed development on the site.  The council approved a grant of $40,000 to help build the clubhouse. The club has also received in-kind pledges from members of the community (materials, labour and professional help) worth approximately $100,000.

The proposed development

  1. [56]
    The primary purposes of the proposed clubhouse are to be a “home for the club”, a place for the club and other community groups to conduct meetings, and a place to store the club’s memorabilia and equipment (such as chairs, trestle tables and a stage). Larger items such as its trailer, tents and other equipment will continue to be stored off site at Graham Stewart Park.
  2. [57]
    The club is not intended to be, nor can it be, a licensed venue, bar or social club, nor will it be let for private functions such as weddings.  Presently, some members may have an alcoholic drink at the conclusion of some club competitions, but no alcohol is available for sale, and this arrangement is proposed to continue.
  3. [58]
    No additional carparking is proposed.
  4. [59]
    I agree with the council’s submission that the conditions of approval[12] limit the nature and extent of the approved use to ensure that adverse impacts upon surrounding amenity and the local area are minimised.
  5. [60]
    Condition 3 states:

The approved use is for a Club in accordance with the definitions and provisions of the Sunshine Coast Planning Scheme 2014 for the purposes of storage of competition equipment, the hosting of club meetings and the administration of Club competitions, along with other activities such as coaching, training and community gatherings associated with the WindanSea Boardriders Club. The use of the building for any other purpose, as defined in the planning scheme, is not permitted without the prior written consent of Council.[13]

  1. [61]
    Condition 4 requires that the kitchen must not be used for commercial purposes of serving food and drink to the general public.
  2. [62]
    Condition 5 requires the floor area must not exceed that shown on the approved plans, being a building of 178m2 and 33m2 of external unenclosed deck area.
  3. [63]
    Condition 6 requires that the premises must not be used for any purpose requiring a liquor or gaming licence.
  4. [64]
    Condition 7 requires that the use must not operate outside the hours of 6am to 10pm, 7 days per week, unless otherwise agreed in writing by council.
  5. [65]
    Condition 8 requires that the use must not involve live or amplified entertainment or devices. Condition 9 prohibits the use of megaphones or public address systems.
  6. [66]
    Condition 10 requires that use must not preclude free and equitable access to the recreation reserve and existing public facilities. Condition 11 requires all components of the use must occur within the lease boundary area.
  7. [67]
    Other conditions relevant to the disputed issues will be referred to in the course of these reasons.
  8. [68]
    The appellants do not challenge the lawfulness of the conditions of approval. Mr Smith confirmed the club’s intention to fully abide by these conditions.
  9. [69]
    In deciding this application, the Court is to proceed on the basis that the applicant will comply with the conditions of approval, rather than proceed on the basis of an assumption that people would flout those conditions and commit a development offence.[14] As will appear later in these reasons, certain experts did not proceed on this basis and that error infected some of their evidence.

Statutory framework

  1. [70]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) (PECA) and the Planning Act 2016 (Qld) (PA) applies. The court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the council with directions the court considers appropriate.[15]
  2. [71]
    The appeal is by way of hearing anew.[16] The applicant (the club) must establish the appeal should be dismissed.[17] The court is to determine the appeal standing in the shoes of the assessment manager and on the law applicable at the date of the proceeding.
  3. [72]
    As the proposed development was impact assessable, s 45(5) of the PA requires that the assessment:
    1. (a)
      must be carried out:
      1. against the assessment benchmarks in a categorising instrument for the development (in this case, the planning scheme[18]); and
      2. having regard to any matters prescribed by regulation for this subparagraph; and
    2. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[19] [emphasis added].
  4. [73]
    It was common ground that there were no matters prescribed by regulation in issue. “Any other relevant matter” in s 45(5)(b) is not defined. It excludes a person’s personal circumstances, financial or otherwise.  Examples given (which are not exhaustive) include a planning need. It is intended that any such matters be matters of public, not private, interest, given that the planning and development assessment system is intended to serve the public interest.[20]
  5. [74]
    Impact assessment must be carried out having regard to the common material, to the extent it is relevant to the development.[21]
  6. [75]
    Subject to s 62, s 60(3) requires the assessment manager, after carrying out the impact assessment, to approve all or part of the application, or to do so but impose conditions, or to refuse the application.
  7. [76]
    Section 62 requires an assessment manager’s decision to comply with all referral agency’s responses, and if a referral agency’s response requires conditions to be imposed on a development approval, to include the conditions exactly as stated in the response.
  8. [77]
    At the hearing, the parties submitted that the correct approach to assessing and deciding applications under the PA was generally as described by Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793, which has been applied in other decisions of this court.
  9. [78]
    After the hearing but before these reasons were delivered, the Court of Appeal delivered a number of decisions considering the statutory regime under the PA.
  10. [79]
    In Brisbane City Council v YQ Property Pty Ltd the court confirmed that the ultimate decision called for when making an impact assessment under s 45 and s 60 PA is a broad, evaluative judgment, and that s 60(3) stipulates the potential decision outcomes without proscribing which decision should be reached. [22]
  11. [80]
    In Abeleda & Anor v Brisbane City Council & Anor the court confirmed that the relevant assessment and decision-making framework under the PA is different to the former regime under s 326 of the Sustainable Planning Act 2009 (Qld) (SPA). [23]
  12. [81]
    In earlier decisions under s 326 of the SPA, the Court of Appeal had confirmed that conformity with the planning scheme is, prima facie, in the public interest,[24] and that a decision maker must take a planning scheme to be an expression of the public interest in terms of land use.[25] 
  13. [82]
    In Abeleda, the court referred to earlier decisions including Bell, K & K and Redland City Council v King of Gifts (Qld) Pty Ltd,[26] and said that the change to the assessment and decision-making framework under the PA by eliminating the former two stage test has not altered the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of the land.[27] The court went on to say:

[40] The absolute terms in which McMurdo JA expressed in [67] and [70] of Bell that it is in the public interest that the planning scheme is applied, unless the contrary is demonstrated, are no longer applicable to the exercise of the discretion by the decision-maker under s 60(3) of the Act, as the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is permitted to have regard to other relevant matters, in addition to the mandatory assessment against the assessment benchmarks in the planning scheme. I would anticipate in most instances, where a planning scheme is not affected by changed circumstances of the type referred to in Bell at [68], that the decision-maker would give significant weight to the public interest expressed in the planning scheme in undertaking the decision-making under s 60(3) of the Act.

…

[42] … The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

[43] In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.  The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application.  The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision-making in a way that advances the purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.

  1. [83]
    In Wilhelm v Logan City Council & Ors the court made statements to similar effect.[28]

Overview of planning scheme

  1. [84]
    It is useful to start with an overview of the structure of the planning scheme.
  2. [85]
    The strategic framework sets the policy direction for the planning scheme area and forms the basis for ensuring appropriate development occurs within the planning scheme area for the life of the planning scheme.[29] For the purposes of articulating the policy direction, the strategic framework identifies a strategic intent, eight “themes” to achieve the strategic intent, and specifies strategic outcomes sought for development in the planning scheme area for each theme.[30] Although each theme has its own section, the strategic framework is to be read in its entirety as the policy direction for the planning scheme.[31] A list of key concepts is provided at the beginning of each theme to summarise the overarching principles expressed in the theme.[32] Those parts of the strategic framework are not framed in a manner that directly regulates development. Rather, they assist in identifying the rationale for, and the importance of, the various planning strategies that underpin the provisions that regulate development. The strategic framework also identifies “elements” that refine and further describe the strategic outcomes and stipulate the specific outcomes sought for the elements.[33] The elements, specific outcomes and strategic framework maps form the implementation framework for the strategic framework.[34]
  3. [86]
    The policy direction in the strategic framework is supported, at a finer grained level, by other parts of the planning scheme. The zones (and the associated zone codes) organise the planning scheme in a way that facilitates the location of compatible land uses.[35] Local plans (and associated local plan codes) organise the planning scheme area at the local level and provide more detailed planning for the zones.[36] The mapping overlays and overlay codes identify areas in the planning scheme that reflect State and local level interests and have a particular characteristic, such as a particular sensitivity to the effects of development or a constraint on land use or development outcomes.[37] Thus, there is a cascading series of provisions of increasingly narrow focus.
  4. [87]
    Impact assessable development must be assessed against all of the assessment benchmarks identified for the assessable development, and “is to have regard to the whole of the planning scheme, to the extent relevant”.[38]
  5. [88]
    In terms of assessment against the codes, development that complies with:
    1. (a)
      the purpose and overall outcomes of the code complies with the code; and
    2. (b)
      the performance outcomes or acceptable outcomes of the code complies with the purpose and overall outcomes of the code.[39] 

That applies to impact assessment.[40] 

Is the proposed development appropriately located?

  1. [89]
    Under the planning scheme, the site is:
    1. (a)
      in the Strategic Framework: outside the Urban Area and the Urban Growth Management Boundary (UGMB), and within the Major Conservation Area;
    2. (b)
      within the Caloundra Local Plan area;
    3. (c)
      within the Environmental management and conservation zone (EMC zone); and
    4. (d)
      subject to a number of overlays, including the Biodiversity, Waterways and Wetlands Overlay. 
  2. [90]
    The land is also located within the “urban footprint” pursuant to the South East Queensland Regional Plan.[41]
  3. [91]
    The parties agreed upon the relevant provisions of the planning scheme applicable to the development,[42] but disagreed on whether the proposed development complied with them.  Some of the provisions relied upon by the appellants were described as “focal” and others were merely “contextual”.
  4. [92]
    The appellants submitted that “the Court ought to give particular, indeed determinative, weight to provisions of the Planning Scheme that pervade all levels of the Planning Scheme, from the Strategic Framework to the Caloundra Local Plan that evince a planning intent that:
    1. (a)
      urban development (being development of the sort proposed here, involving urban built form) ought be located west of the urban growth management boundary, not east of that boundary as proposed here;
    2. (b)
      development protect, and not detract from, existing landscape and scenic values;
    3. (c)
      development protect, and not detract from, existing ecological values;  and
    4. (d)
      development enhance landscape, scenic and ecological values.”[43]
  5. [93]
    The appellants’ submission that the development is in an inappropriate location having regard to reasonable community expectations is based upon matters including the development’s location outside of the UGMB, within the EMC zone, on land affected by overlays, in an area that is not an activity centre, and that the Sport and Recreation Use Code requires a Club use to be developed in “appropriate locations” where not impacting upon amenity.

Strategic framework – Settlement pattern theme

  1. [94]
    The main strategic framework theme relied upon by the appellants for non‑compliance was the “settlement pattern” theme. A key concept of this theme is retaining urban and rural residential development within defined “local growth management boundaries”. A number of more specific provisions in the zone codes and the local plan flow from this key concept of growth management boundaries.
  2. [95]
    Relevantly, the strategic outcomes for the settlement pattern theme in s 3.3.1 include:
    1. (a)
      In 2031, the Sunshine Coast is renowned for its range of distinctive and sensitive landforms and landscapes, its large and diverse areas of open space and its unique and well defined communities. Growth is carefully managed and well-designed to maintain and enhance the character, lifestyle and environment attributes which make such a significant contribution to the Sunshine Coast’s natural (competitive) advantage.
    2. (b)
      Growth is contained within defined local growth management boundaries that apply and refine the land use categories in the SEQ Regional Plan. These local growth management boundaries reflect the outcomes of detailed local investigations.
    3. (c)
      Urban development and rural residential development is contained within local growth management boundaries so as to protect biophysical and landscape values and natural resources, avoid natural hazards, maintain the individuality of communities and provide for the efficient delivery of infrastructure and services.
    4. (d)
      Outside these areas, rural lands and natural areas are maintained predominantly for their rural enterprise, landscape and environmental values. These areas reinforce the character of the Sunshine Coast as a place with large areas of open space surrounding distinct and separate urban and rural residential areas. The Regional Inter-urban Break preserves the geographic separation between the Sunshine Coast and the greater Brisbane and Caboolture urban area.

…..

[emphasis added]

  1. [96]
    The relevant specific outcomes for the settlement pattern theme relied upon were:

3.3.2 Element 1 - character, lifestyle and environment attributes

3.3.2.1 Specific outcomes

  1. (a)
    The character, lifestyle and environment attributes of the Sunshine Coast are recognised as essential contributors to the region’s natural (competitive) advantage by:-
  1. (i)
    protecting and enhancing the natural environment and undeveloped rural and coastal landscapes that create large, uninterrupted and diverse areas of open space which weave throughout the region and define the boundaries of urban and rural residential areas;

….

  1. (iv)
    maintaining a relaxed lifestyle derived from an appreciation of the character, lifestyle and environment attributes offered by the Sunshine Coast as a place.

3.3.3 Element 2 – Growth management boundaries and land use categories

3.3.3.1 Specific outcomes

  1. (a)
    Local growth management boundaries and land use categories are identified for the region.
  2. (b)
    Urban development is limited to land within the urban growth management boundary identified conceptually on Strategic Framework Map SFM 1 (Land use elements) and in further detail on the zoning maps.

….

  1. (d)
    The physical extent of urban development and rural residential development is contained within defined local growth management boundaries so as to:-
  1. (i)
    protect biophysical values including those within habitat areas, ecological linkages and natural waterways, wetlands and water bodies;

….

  1. (v)
    protect the discrete identities of individual places and communities;

….

3.3.4 Element 3 – Efficient and functional urban form

3.3.4.1 Specific outcomes

  1. (a)
    The pattern, form and structure of urban areas contributes to the achievement of:- …
  1. (vii)
    access to quality recreational open space;

3.3.9 Element 8 - Local settings and local planning responses

3.3.9.1 Specific outcomes

….

  1. (c)
    Coastal urban areas are urban areas adjacent or near the coast that offer a range of lifestyles with generally high levels of access to employment, infrastructure and services and a strong affinity with the coastal environment. These areas also often have high tourism visitation values. Coastal urban areas in the southern and central part of the region form the Sunshine Coast Enterprise Corridor.”

[emphasis added]

  1. [97]
    Thus the defined local growth management boundaries are drawn to contain the physical extent of urban and rural residential development so as to achieve certain purposes. The purposes relevant here are to protect biophysical and environmental values, maintain natural areas for their landscape and environmental values, and protect the discrete identities of individual places and communities.
  2. [98]
    The Caloundra local plan code, s. 7.2.6.3(2)(b), similarly directs urban development within the Caloundra local plan area to land within the UGMB “so as to protect the integrity of foreshore and creek side environmental reserves”.
  3. [99]
    Thus, locating “urban development” outside of the UGMB in an area designated as an EMC zone would not, on its face, achieve these strategic and specific outcomes.
  4. [100]
    Is the proposed use “urban development”? Urban development is not defined in the planning scheme. Urban purposes is defined in the administrative definitions:[44]

For the purposes of the local government infrastructure plan, … [it] includes residential (other than rural residential), retail, commercial, industrial, community and government related purposes.

  1. [101]
    The definition of Urban zone merely lists certain zones, but the list does not include the EMC zone. The PA and associated regulation do not assist. The parties agreed that urban development should be given its ordinary meaning, consistent with the context in which it appears. The relevant Macquarie Dictionary definition of “urban” includes “of, or relating to, or comprising a city or town”, “occurring or situated in a city or town” and “characteristic of or accustomed to cities; citified”.[45]
  2. [102]
    Club is a defined use in the planning scheme[46]:

“Premises used by persons associated for social, literary, political, sporting, athletic or other similar purposes for social interaction or entertainment. The use may include the ancillary preparation and service of food and drink.”

  1. [103]
    The definition provides examples including “Club house, guide and scout clubs, surf lifesaving club, RSL club, bowls club”.  Club is part of the Sport and Recreation Activity group, not part of the Rural Activity group.
  2. [104]
    I agree with the opinion expressed by Mr Schomburgk, the town planning expert engaged by council, that there is nothing in the character of these examples that is inherently urban.[47]  Put another way, a Club as defined is not necessarily characteristic of cities, because it is conceivable that the use could occur other than in a town or city.
  3. [105]
    Mr Schomburgk did not accept that the proposed development was “urban development”. He said that a Club can be, but does not have to be, urban development and that this particular clubhouse was not urban development. He observed that a Club is a land use not uncommonly found outside such a boundary, for example scout and girl guide halls, or “men’s sheds” are often found in rural areas or in open space areas.
  4. [106]
    Consistent with his opinions, of the seven clubs listed by Mr Clegg, the town planning expert engaged by the appellants, in the joint expert report,[48] both the Caloundra Power Boat Club and the TS Onslow Navy Cadets Club are located outside of the UGMB.[49] I accept the council’s submission that the location of these clubs outside of the UGMB notwithstanding subsequent scheme amendments tends to indicate that there may be circumstances when the location of a Club outside the UGMB can be considered acceptable.
  5. [107]
    The town planning expert engaged by the club, Mr Ovenden, accepted that a Club was an urban use or activity, but gave examples where Clubs also occurred outside urban areas, in rural locations.
  6. [108]
    Mr Clegg also acknowledged and was aware of Clubs that are located outside urban areas.[50]
  7. [109]
    I accept that the use of Club as defined may be, but is not necessarily, urban development. Nonetheless, on the facts of this particular case I am satisfied that the proposed use is “urban development”. That is because of the nature of the use proposed, comprising built form located in a city or town area which is intended to be used by persons in a city or town area. 
  8. [110]
    The proposed development is consistent with the principles of social and lifestyle objectives embodied in the Strategic Framework. For the reasons explained below, I am satisfied that allowing the proposed development on this site outside, but immediately adjacent to, the UGMB would achieve many aspects of the relevant assessment benchmarks in the Strategic Framework settlement pattern theme, in that:[51]
    1. (a)
      it is carefully managed and well-designed to maintain and enhance the character, lifestyle and environment attributes which make such a significant contribution to the Sunshine Coast’s natural (competitive) advantage;
    2. (b)
      it achieves the efficient delivery of infrastructure and services;
    3. (c)
      natural areas will be maintained predominantly for their landscape and environmental values;
    4. (d)
      it promotes maintenance of a relaxed lifestyle derived from an appreciation of the character, lifestyle and environment attributes offered by the Sunshine Coast as a place;
    5. (e)
      it protects the discrete identities of individual places and communities;
    6. (f)
      it achieves, and encourages, access to quality recreational open space; and
    7. (g)
      it is adjacent to and promotes a coastal urban area with a strong affinity with the coastal environment and high tourism visitation values.
  9. [111]
    I do not consider s 3.3.1(g) relevant because it relates to the provision of “living opportunities”, i.e. housing.
  10. [112]
    The UGMB is an important tool to contain urban growth. Assuming that the proposed development is urban development, it will involve the construction of built form outside the UGMB and associated vegetation clearing for the development footprint. To that extent, it necessarily results in some non-compliance with the relevant provisions of the Strategic Framework settlement pattern theme directed towards containing growth within the UGMB, protecting biophysical and landscape values, and protecting, enhancing and maintaining natural areas for their landscape and environmental values.[52]
  11. [113]
    However I am satisfied that the extent of that non-compliance, both quantitatively and qualitatively, will be minor for reasons explained below and in the ecology, bushfire, and visual amenity sections.
  12. [114]
    The building footprint of the clubhouse is modest. The site (lease) has an area of 590m2. That comprises only 0.46% of the entire reserve, which has an area of 12.8 hectares.  I agree with Mr Schomburgk’s opinion that “the development will take up a minutely small part of the overall provision of open space and environmental areas across the region, and is part of an open space already committed to buildings and structures…the proposed development, with its minimal scale and impact, will make a positive contribution to the social and recreation networks of the Sunshine Coast, and will not detract from the broad strategic framework intentions to such a degree as to warrant refusal of the application.”[53]
  13. [115]
    I accept his opinion that the proposed development will protect the integrity of the foreshore, including by encouraging participation and appreciation of the foreshore. I am satisfied that the integrity of the foreshore as a whole will not be impacted to any significant degree and there will be negligible adverse impact on it. The foreshore is already impacted in this location by the cul de sac head, the toilet block, the bins, pathways and areas of mown lawn.
  14. [116]
    I agree with Mr Ovenden’s evidence that the proposed development is a Club with facilities, very much like an Outdoor sport and recreation use, that exists to promote the sport of surfing and has a direct nexus to the beach. He likened it to a golf club where the clubhouse is inextricably linked to the golf course, where its sport is played. I agree that the proposed development will be low impact and low key.  The proposed Club use stands in marked contrast to urban development in the form of a restaurant, café, commercial or residential uses.
  15. [117]
    I am further satisfied that the proposed development will not offend in any meaningful way the purpose of limiting urban development to the UGMB in the circumstances of this case, because of the limited (and not unacceptable) impacts upon the matters that are relevantly sought to be protected, maintained or enhanced. Specifically the biophysical and landscape values and foreshore environmental reserves: in this location in the local plan, the integrity of foreshore and creek side environmental reserve, which are discussed below.
  16. [118]
    In my view, the non-compliance with the Strategic Framework settlement pattern theme is not determinative, and the location of the proposed development outside the UGMB does not warrant refusal of the development.

Strategic Framework – Economic development theme

  1. [119]
    In the Economic Development theme, the proposed development in this location complies with, and draws some support from specific outcomes 3.4.1(u) and (v):

“(u) Tourism, sport and leisure related activities offer unique and world class tourism, sport and leisure experiences and products as well as major events; and

(v) Creative industries and cultural and community activities occur across the region in activity centres, tourism focus areas and other locations as appropriate.

  1. [120]
    The proposal is also consistent with the broad policy objectives promoting active and healthy living in Element 1 – Natural (competitive) advantage and key economic sectors, specific outcome 3.4.2.1(c)(v) “protection of existing tourism, sport and leisure facilities and encouragement of the establishment of new facilities that contribute to active, healthy living and community wellbeing.”
  2. [121]
    The council also referred to Element 5 – Tourism and tourism focus areas, specific outcome 3.4.6.1(e), but I do not consider this relevant because the proposed development is not tourism development. Although I accept that it will assist in promoting the area to tourists as a surfing destination.
  3. [122]
    No issues of non-compliance are raised with this theme.

Strategic framework – Infrastructure and services theme

  1. [123]
    In the Infrastructure and services theme, strategic outcomes 3.6.1(a) and (b), 3.6.2, 3.6.9 and 3.6.10 were referred to but I do not consider those relevant because they are directed towards the delivery of infrastructure and services to meet community needs, and although included in the list of issues in dispute,[54] they were not relied upon in submissions.
  2. [124]
    The proposed development complies with, and draws some support from, the policy objectives in Strategic outcome 3.6.1(j) which provides:

“Communities have access to high quality and well located open space and community facilities which are easy to access, contribute to the character and identity of places and improve opportunities for active living, community health and wellbeing and social inclusion.”

  1. [125]
    No issues of non-compliance are raised with this theme.

Strategic framework – Natural environment theme

  1. [126]
    The key concepts of the Natural Environment theme include protection of the natural environment and “avoidance of, or if avoidance is not practicable, minimisation and mitigation of, individual and cumulative adverse impacts of development on the natural environment.”[55]  The strategic outcomes are directed towards protecting and enhancing the natural environment.
  2. [127]
    The following elements and specific outcomes are relevant in this theme:

“3.7.2 Element 1 – Natural habitats and biodiversity

3.7.2.1 Specific outcomes

  1. (a)
    Development is located, designed, constructed and operated to avoid, as far as practicable, or where avoidance is not practicable, minimise and mitigate, adverse impacts on the ecologically important areas identified conceptually on Strategic Framework Map SFM 5 (Natural environmental elements) which include remnant native vegetation, riparian areas and natural waterways, wetlands and waterbodies.

…

  1. (c)
    Ecologically important areas are not disturbed or diminished by development except where:-
  1. (i)
    on the balance of social, economic and environmental considerations, it is demonstrated that the development is in the interests of the community [see note 13 below]; and
  2. (ii)
    any adverse impacts incurred are compensated by the provision of a biodiversity offset that results in a net gain and enhancement to the overall habitat values of the Sunshine Coast.

13 Note—in determining whether development has satisfied these criteria Council may consider such matters as:-

  1. (a)
    whether alternative options are reasonably available;
  2. (b)
    the size, type and condition of the ecologically important area affected;
  3. (c)
    the extent to which the ecologically important area has significant hydrological, biodiversity, landscape or character values;
  4. (d)
    the extent to which a biodiversity offset can reasonably compensate for the loss of the ecologically important area; and
  5. (e)
    whether the development proposed is reasonably anticipated by and consistent with the planning scheme.”

[emphasis added]

  1. [128]
    The site is not included in the ecologically important areas identified conceptually in Strategic Framework Map SFM5, Natural Environment Elements. Therefore, strictly speaking, 3.7.2.1(a) does not apply.
  2. [129]
    However ecologically important area is defined in the administrative definitions in the planning scheme as follows: “Except where separately defined in a structure plan, means:
    1. (a)
      a natural waterway or wetland;
    2. (b)
      an area of remnant or non-remnant native vegetation identified on a Biodiversity, Waterways and Wetlands Overlay Map; or
    3. (c)
      an area which otherwise:
      1. contains or is likely habitat for scheduled species under the Nature Conservation (Wildlife) Regulation (Qld) 2006;
      2. contains or is likely to contain listed threatened species and/or ecological communities, protected critical habitat or listed migratory species as defined by the Environmental Protection and Biodiversity Conservation (Cth) Act 1999;
      3. contains a spring as defined under the Water Act (Qld) 2000;
      4. contains habitat for flora and/or fauna species of local ecological significance.”
  3. [130]
    The ecology experts agreed that the site satisfied some limbs of this definition.
  4. [131]
    Specific outcome 3.7.2.1(c) states that ecologically important areas are not disturbed or diminished by development “except where” certain conditions are satisfied. Thus it is clear that development in ecologically important areas is not completely precluded, and that development is contemplated in certain circumstances. Where avoidance is not practicable, adverse impacts are to minimised and mitigated. The provisions contemplate that ecologically important areas may be disturbed or diminished but only where on the balance of social, economic and environmental considerations, it is demonstrated that the development is in the interests of the community, and there is a biodiversity offset provided.
  5. [132]
    Those considerations are relevant to informing the extent of any non-compliance or conflict with other provisions of the Natural Environment theme in the Strategic Framework, and with the finer grained provisions of the EMC zone code and Biodiversity, waterways and wetlands overlay code (dealt with below).
  6. [133]
    The appellants allege non-compliance with specific outcomes 3.7.5.1(a) and (b) of the Natural environment theme: 

“3.7.5 Element 4 – Coastal foreshores, processes and systems

3.7.5.1 Specific outcomes

  1. (a)
    Coastal foreshores, including near shore marine environments, beaches, dunes, rocky headlands, coastal lagoons, beach shores and river mouths are maintained predominantly in their natural state.
  1. (b)
    Development is located, designed, constructed and operated to avoid, as far as practicable, or where avoidance is not practicable, minimise and mitigate, any adverse impacts on coastal resources, processes and values.”

[emphasis added]

  1. [134]
    The proposed development will maintain the coastal foreshore predominantly in its natural state. For the reasons further discussed in the bushfire and ecology sections below, the extent of vegetation clearing will be limited, and the impact of that small amount of clearing on the coastal foreshore as a whole will be negligible.
  2. [135]
    The proposed development has been relocated at the direction of SARA to avoid significant residual impact on the identified wetland and high valued vegetation on site. It has been designed to minimise and mitigate any adverse impacts on coastal resources, processes and values.  I am satisfied that is complies with specific outcome 3.7.5.1.
  3. [136]
    Returning to specific outcome 3.7.2.1 and the considerations in note 13, I am satisfied on the evidence of the club’s lay witnesses that the club has been unable to locate alternative options to this site that are reasonably or readily available which have a nexus to the beach (let alone a nexus to the Ann Street surf break).
  4. [137]
    Having regard to the unchallenged evidence of the club’s lay witnesses and the submissions in support of the proposal and the ecological evidence which I accept (discussed below), I am satisfied, on the balance of social, economic and environmental considerations, that the development is in the interests of the community.
  5. [138]
    Condition 39 of the Negotiated Decision Notice requires the club to secure vegetation offsets for all land to be cleared in accordance with the Biodiversity, waterways and wetlands overlay code, the vegetation management code and the Planning scheme policy for biodiversity offsets.  I am satisfied that the proposed development ensures that any adverse impacts incurred are compensated by the provision of a biodiversity offset.
  6. [139]
    Therefore I am satisfied that the proposed development complies the assessment benchmarks in the Natural environment theme.

Strategic framework – Community Identity, Character and Social Inclusions theme

  1. [140]
    In the Community identity, character and social inclusions theme, the proposed development complies with, and draws support from, the following policy objectives in Strategic outcome 3.8.1:

“(h) Communities continue to value their history and cultural associations and retain a strong sense of place. In 2031 the Sunshine Coast is still a community of communities.

(m) Each community is provided with meeting places, community facilities and open space, and sport and recreation opportunities that promote social inclusion and healthy active living.

(n) People with disability have the same opportunity as other people to access and utilise places of community interest.”

  1. [141]
    The club has a long history in the community, and an historic association with the surf break adjacent to the site. The proposed use provides a meeting place for community organisations which promote outdoor sport and recreation associated with the beach and ocean. The club specifically promotes social inclusion (including for surfers with disabilities, indigenous surfers and women surfers). The development would facilitate and promote access by young people with disability from the adjoining Special School.
  2. [142]
    Strategic outcome 3.8.1(d) provides that “The Sunshine Coast continues to be renowned for the many important views and vistas which contribute to the identity and attractiveness of the region. Local views of importance to residents are recognised and respected.”
  3. [143]
    The appellants allege non-compliance with that Strategic Outcome and the following Specific outcomes of this theme.[56]
  4. [144]
    3.8.2 Element 1 – Landscape elements and features

“3.8.2.1 Specific outcomes

  1. (a)
    The landscape elements identified conceptually on Strategic Framework Map SFM 6 (Community identity, character and social inclusion elements) which include regional and sub-regional inter-urban breaks, high value scenic areas, regional gateways and scenic routes are protected and enhanced.

…..

  1. (e)
    The prominent landscape features identified in Table 3.8.2.1 (Regionally significant landscape features) and important views to these features are protected from intrusion from buildings and other aspects of urban development.

…

  1. (i)
    Building forms, landscaping and signage complement landscape features and provide for these features to remain intact and undiminished.”
  1. [145]
    With respect to Strategic outcome 3.8.1(d), for the reasons in the visual amenity section below, I am satisfied that the proposed development will not adversely affect any of “important views and vistas which contribute to the identity and attractiveness of the region” and that “local views of importance to residents are recognised and respected”. There was no suggestion that the proposed development would affect regionally important views. There is no suggestion that the proposed development would affect or intrude upon views to the beach or ocean. The only impact on local views raised was that from the open space in the foreshore park, and from 1 Buderim Street. Even the visual amenity expert engaged by the appellants was not so concerned about the impact on views from 1 Buderim Street. That house currently has a view (from its second storey) over the coastal vegetation. The proposed development will be lower (at only a single storey), will be adequately screened from the house by existing vegetation and additional landscaping, and will not affect in any meaningful way the views from the house. To the extent that local views from the open space in the park to the coastal vegetation may be affected, the current view is not of a wilderness or pristine area: it is a view that currently includes existing infrastructure in the form of paths, bins and a toilet block. The proposed building is lightweight, low set and will have architectural treatments to ensure it blends into the surrounding vegetation. The local views from the park will continue to be respected. 
  2. [146]
    In Strategic Framework map SFM1, Land Use Elements, the site is within the Major Conservation Area. The Major Conservation Area designation identifies large areas of land (generally greater than 50 hectares) that are either owned by the State or the council for conservation purposes: note 4. The Major Conservation Area mapping includes the long narrow strips of coastal vegetation from Caloundra to Coolum, which are not continuous (interrupted in some places by centres), but are substantial.[57] In the context of the Major Conservation Area as a whole, the site comprises a miniscule component. 
  3. [147]
    In the Strategic Framework map SFM6, the site forms part of the landscape elements the Major Conservation Area and the High Value Scenic area. To the extent the proposed development involves some vegetation clearing of the site, it would not protect and enhance those landscape elements contained in the vegetation cleared and not replaced. Therefore there is non-compliance with that provision. In considering the extent of the non-compliance, it is relevant that the site comprises a negligible portion of the Major Conservation Area and High Value Scenic area as a whole. For that reason, and the reasons in the ecology and visual amenity sections below, the extent of non-compliance with this provision is minor.
  4. [148]
    In Table 3.8.2.1 the only relevant “regionally significant relevant landscape features” are “beaches” and “ocean”. The proposed development will not affect or intrude onto the beach and it will not affect such views to the beach and ocean as currently exist from the open space park at the end of Buderim Street. The building has been designed in such a way to be set back from the beach on the edge of open space in the foreshore park, and is nestled into the coastal vegetation.  For the reasons given in the visual amenity section, it will complement those landscape features.
  5. [149]
    In my view, the statement in 3.8.2.1(i) that building forms complement “landscape features” and that those features remain intact and undiminished, is directed towards the “regionally significant landscape features” identified in Table 3.8.2.1, not any other landscape features. The proposed development complies with this provision.
  6. [150]
    The appellants also allege non-compliance with the following Specific outcomes:

“3.8.5 Element 4 – Community, educational and cultural facilities

3.8.5.1 Specific outcomes

…..

  1. (c)
    Other types of social infrastructure and services and community and cultural facilities are generally established within regional activity centres to support their role in servicing the needs of sub-regional population catchments.
  1. (d)
    Community meeting places that are integrated with community facilities and/or open space and sport and recreation facilities and which encourage the congregation or people and community interaction are established within activity centres.

3.8.6 Element 5 – Open space and sport and recreation facilities

3.8.6.1 Specific outcomes

….

  1. (b)
    All communities have the opportunity to access green areas and green corridors throughout the urban environment including through ensuring that new development contributes to the availability of useable on-site open space, public space and communal areas to promote activity and community interaction.”
  1. [151]
    The appellants’ reliance upon these provisions is inconsistent with its approach in this case, whereby it sought to suggest that there was other sport and recreation use land, such as Graham Stewart Park, or other educational facilities, such as the two schools located in Buderim Street, where the club could conduct its activities.[58] These provisions were also not relied upon in the appellants’ cross-examination of the town planners. Nonetheless I deal with them below.
  2. [152]
    With respect to specific outcome 3.8.5.1, a Club use as defined is part of the Sport and recreation activity group, not the Community activity group, which includes uses such as Community use and Educational establishment.  In my view, a Club is not strictly a “community facility” within the meaning of this provision, the location of which is directed towards regional activity centres. But even if it is, the use of “generally” makes it clear that community facilities are not precluded from establishing outside of regional activity centres. Here the proposed use is located and integrated with existing community facilities (amenities, paths, structures) in a foreshore park, and the proposed use has a connection to an outdoor sport and recreation use, surfing, which will occur directly offshore at the Ann Street break.
  3. [153]
    With respect to specific outcome 3.8.6.1, the proposed use is a Club but that use does fall within the Sport and recreation activity group. The proposal complies with the specific outcome because public access to open space in the foreshore park and the coastal path is maintained, and the proposal facilitates the use of communal areas to promote activity and community interaction.
  4. [154]
    In conclusion, I am satisfied that the proposed development generally complies with the relevant assessment benchmarks of the Community identity, character and social inclusions theme.  To the extent there is some minor non-compliance, it is not determinative and would not warrant refusal.

EMC zone code

  1. [155]
    In Table 5.5.15, the table of assessment for the EMC zone, the proposed use Club falls within the generic description “All other uses defined in Schedule 1”. Therefore the proposed development is impact assessable, and the assessment benchmarks are “The planning scheme”. The development must be assessed having regard to the whole of the planning scheme, to the extent relevant.
  2. [156]
    The following provisions of the EMC zone code are relevant:

“6.2.15.2 Purpose and overall outcomes

  1. (1)
    The purpose of the Environmental management and conservation zone code is to provide for the protection and rehabilitation of land to maintain biodiversity, ecological processes, coastal processes, water quality, landscape character, scenic amenity, cultural heritage significance and community well-being.
  1. (2)
    The purpose of the Environmental management and conservation zone code will be achieved through the following overall outcomes:-
  1. (a)
    areas identified as having natural environmental values in terms of biological diversity, water catchment management, ecological functioning, beach protection or coastal management, and/or historical or cultural significance are:-
  1. (i)
    protected for their importance in contributing to ecological sustainability; and
  1. (ii)
    appropriately managed to the general exclusion of most forms of development;
  1. (b)
    parks, environmental facilities [59] and associated activities may be established in the zone where such development:-
  1. (i)
    supports environmental values and provides opportunities for appreciation or study of those values;
  1. (ii)
    promotes nature-based tourism activities and other low intensity, low key activities that are compatible with and have a direct connection to the protection of the environmental values; and
  1. (iii)
    provides opportunities for recreational pursuits that have a direct connection with, and are consistent with the protection and appreciation of, the environmental values;

…

  1. (g)
    development provides for the following:-
  1. (i)
    a use listed as a consistent use in column 1 of Table 6.2.15.2.1 (Consistent uses and potentially consistent uses in the Environmental management and conservation zone) to occur in the Environmental management and conservation zone; and
  1. (ii)
    a use listed as a potentially consistent use in column 2 of Table 6.2.15.2.1 to occur in the Environmental management and conservation zone only where further assessment has determined that the use is appropriate in the zone having regard to such matters as its location, nature, scale and intensity.

Note—a use not listed in of [sic] Table 6.2.15.2.1 is an inconsistent use and is not intended to occur in the Environmental management and conservation zone.”

  1. [157]
    Table 6.2.15.2.1 identifies “Consistent uses and potentially consistent uses” in the EMC zone:

Table 6.2.15.2.1  Consistent uses and potentially consistent uses in the Environmental management and conservation zone

Column 1

Consistent Uses

 

Column 2

Potentially Consistent Uses

Sport and recreation activities

Park

 

Outdoor sport and recreation (where for low impact

activities)

Other activities

  1. (a)
    Environment facility (where located on Council owned or controlled land and undertaken by or on behalf of the Council)
  1. (b)
    Utility installation (where a local utility)

None

  1. [158]
    The planning scheme’s statement that a use not included in the relevant Table of Assessment is an inconsistent use and is not intended in the EMC zone is, on its face, a strong policy statement that all uses other than those specified as “consistent” or “potentially consistent” are not intended to occur in that zone. That is, all uses other than Park, Environment facility (where located on council owned or controlled land and undertaken by or on behalf of the council), Utility installation (where a local utility) and Outdoor Sport and Recreation (where for low impact activities).  The proposed use, Club, is not listed as a “consistent use” or a “potentially consistent use” in that Table. By virtue of the Note to that Table, it is an inconsistent use and is not intended to occur in the EMC zone. The proposed development does not comply with this assessment benchmark.  The council correctly conceded that, although the club did not.
  2. [159]
    However, the nature and extent of the non-compliance must be assessed by reference to the facts and circumstances of the proposed development and its impacts, not some generic or hypothetical Club use.
  3. [160]
    The purpose of the EMC zone code is directed towards the protection and rehabilitation of land.  But the overall outcomes make it clear that development is not precluded in that zone and that some development is contemplated. Overall outcome 6.2.15.2(2)(a) refers to areas identified as having natural environmental values being protected and appropriately managed to the general exclusion of most forms of development.  The references to protecting and enhancing environmental values must be read in the context where some development is expressly contemplated in the zone.  Overall outcome 6.2.15.2(2)(b) identifies that Parks, Environment facilities “and associated activities” may be established in the zone in certain circumstances.
  4. [161]
    Park, Environment facility (where located on council owned or controlled land and undertaken by or on behalf of the council), Utility installation (where a local utility) and Outdoor Sport and Recreation (where for low impact activities) are consistent or potentially consistent uses in the EMC zone.  Thus reasonable community expectations would include built form for those uses on the site. The definitions of those uses (and the Club use) are extracted below:

Table SC1.1.2 Use definitions

Column 1

Use

Column 2

Definition

Column 3

Examples include

Column 4

Does not include

the following

examples

Club

Premises used by persons associated for social, literary, political, sporting, athletic or other similar purposes for social interaction or entertainment.

 

The use may include the

ancillary preparation and service of food and drink.

Club house, guide

and scout clubs, surf

lifesaving club, RSL

club, bowls club

Hotel, nightclub

entertainment facility,

place of worship,

theatre

Environment

facility

Facilities used for the

conservation, interpretation

and appreciation of areas of environmental, cultural or heritage value

Nature based attractions,

Environmental education facilities.

 

Outdoor sport and

recreation

Premises used for a recreation or sport activity that is carried on outside a building and requires areas of open space and may include ancillary works necessary for safety and sustainability.

 

The use may include ancillary food and drink outlet(s) and the provision of ancillary

facilities or amenities conducted indoors such as changing rooms and storage facilities.

Driving range, golf course, swimming pool, tennis courts, football ground, cricket oval

Major sport, recreation and entertainment facility, motor sport facility, park, community use

Park

Premises accessible to the public generally for free sport, recreation and leisure, and may be used for community events or other community activities.

 

Facilities may include

children’s playground

equipment, informal sports fields and ancillary vehicle parking and other public conveniences.

Park

Tourist attraction, outdoor sport and recreation

  1. [162]
    Although the proposed use is not a Park or Environment facility as defined, the proposed use promotes and achieves the relevant overall outcomes.
  2. [163]
    I agree with Mr Schomburgk’s evidence that the built form proposed here is comparable in size to a residential sized building with a smallish footprint, but the building will not present as a residential building.
  3. [164]
    Mr Schomburgk also expressed the opinion that the proposed development in its built form, purpose and activities was akin to an Environment facility use, or an Outdoor sport and recreation use. He said the built form could readily be an Environment facility, that parts of the activities occurring in the building involved appreciating the natural environment including the ocean and dune system adjacent the building, and that the proposed development had locational requirements to be on or adjacent to the environment being appreciated. In addition, it will used by members of the broader community, and not confined to the members of the club, so to that extent will have a public benefit. I agree.
  4. [165]
    I do not accept Mr Clegg’s opinion that the proposal is akin to an Office use. Office is defined as “Premises used for an administrative, secretarial or management service or the practice of a profession, where no goods or materials are made, sold or hired and where the principal activity provides for one or more of the following:- business or professional advice; service of goods that are not physically on the premises; office based administrative functions of an organisation.” Examples include “Administration building, bank, real estate agent, town planning consultant”. It does not include “Home based business, shop, outdoor sales”. 
  5. [166]
    To attempt to fit the proposed use into Office strains the plain words of that definition. Although one purpose of the proposed use is a venue to conduct monthly meetings (which could conceivably fall within “office based administrative functions of an organisation”), the proposed use is not an administrative, secretarial or management service or the practice of a profession. Such a construction fails to consider the proposed development as a whole, in the context of its proponent, its purposes and the outdoor activities that will be inextricably linked to the club use in this particular case. There is no service or profession to be carried out. An Office is a Commercial business use in the business activity group in the planning scheme.[60] Whereas Club is in the Sport and recreation activity group, along with Park and Outdoor sport and recreation. 
  6. [167]
    The appellants emphasised that the three identified consistent uses are uses that almost always are, or would be expected to be, or are required by the planning scheme to be, public purposes on public land. They submitted that the proposed development would have no public purpose.  I accept the first proposition but not the second, because I am satisfied that the proposed development will be accessible to members of the public beyond club members, will satisfy a community need, and has significant community support (for reasons explained earlier and below).
  7. [168]
    The appellants also submitted that the Court should conclude that those exceptions (the identified consistent uses) are included in the EMC zone code because of their public purpose and not because of some degree of impact that they may have upon the ecological features of the land. That was said to be so because an Environment Facility may have a significant impact upon environmental values, as might a Utility installation, but the community detriment associated with that impact would be offset by the benefit to be achieved from facilitating a public purpose, including an environmental public purpose where necessary. I have already explained why I disagree that the proposed development would have no public purpose.
  8. [169]
    In addition, it is relevant that the potentially consistent use identified in Table 6.2.15.2.1, Outdoor Sport and Recreation “(where for low impact activities)” is not constrained by the same express requirement for public ownership.  Low impact activities is not defined. Thus reasonable community expectation would include premises in the EMC zone being used for a low impact sport and recreation activity carried on outside a building and requiring areas of open space, but which may also include ancillary works necessary for safety and sustainability, ancillary food and drink outlet(s), and ancillary facilities or amenities conducted indoors such as changing rooms and storage facilities. I do not accept the appellants’ construction that “low impact” is likely to mean an absence of impacts that might be associated with built form because it does not contain that express limitation (when it readily could have) and the adjectival phrase “low impact” is specifically referable to “activities”. In my view, whether an activity would be low impact would require consideration of all aspects of the proposal including the nature of the activity and the extent to which it achieves the overall outcomes of the code, particularly whether the activity provides opportunities for recreational pursuits that have a direct connection with, and are consistent with the protection and appreciation of, the environmental values. In my view, the activities associated with the proposed development achieve this.
  9. [170]
    For reasons given earlier and below, I am satisfied that the proposed use will:
    1. (a)
      involve clearing of a relatively small area on the edge of coastal vegetation in a part of the reserve that is already disturbed and which has lower environmental values than the balance of the reserve;
    2. (b)
      provide for the rehabilitation of some of the area cleared and as well as other parts of the reserve;
    3. (c)
      involve built form that is small scale, low impact and low intensity;
    4. (d)
      provide opportunities for appreciation of environmental values;
    5. (e)
      promote low intensity, low key activities that are comparable with and have a direct connection to the protection of the environmental values; and
    6. (f)
      provide opportunities for recreational pursuits that have a direct connection with, and are consistent with the protection and appreciation of the environmental values.
  10. [171]
    Because the proposed use achieves most of the relevant overall outcomes of the zone code, the nature and extent of non-compliance with the locational requirements of the assessment benchmarks is minor, and would not warrant refusal.
  11. [172]
    In conclusion, despite the non-compliance identified with the provisions of the EMC zone code by virtue of it being an inconsistent use and involving some vegetation clearing, having regard to its location, nature, scale and intensity, I am satisfied that proposed development is appropriate in the EMC zone. 

Sport and recreation uses code

  1. [173]
    The appellants allege non-compliance with the following purpose and overall outcomes of the Sport and Recreation uses code: 9.3.19.2(1), (2)(a), (2)(b) and (2)(d), but these provisions were not addressed in any substantive way in their submissions.
  2. [174]
    In the planning scheme, defined uses are clustered into activity groups.[61] The “Sport and recreation activity group” includes the defined uses Club, Indoor sport and recreation, Outdoor sport and recreation and Park.[62]
  3. [175]
    The Sport and recreation uses code applies to assessable development identified as requiring assessment against that code by the tables of assessment in Part 5 (Tables of Assessment). In Table 5.5.15, the table of assessment for the EMC zone, the Sport and recreation uses code is not specifically identified. However, in that table the proposed use Club falls within “All other uses defined in Schedule 1”. Therefore the proposed development is impact assessable, and the assessment benchmarks are “The planning scheme”. The development must be assessed having regard to the whole of the planning scheme, to the extent relevant.
  4. [176]
    The provisions of the Sport and Recreation uses code relied upon by the appellants are directed towards ensuring that sport and recreation uses are established in “appropriate locations that provide convenient access for users”, “meet the needs of users”, are “located and designed so as to be compatible with the preferred character of the local area”, and “do not have an adverse impact upon the amenity of existing … residential areas or neighbouring premises”. Performance outcome PO1 also supports this. 
  5. [177]
    The club has been surfing at this particular beach break for 50 years. The evidence in respect of the appropriateness of this location for the club is compelling.[63]
  6. [178]
    For reasons given earlier and below, I am satisfied that the proposed location for the club is appropriate because:
    1. (a)
      it will provide convenient access for users, as Mr Clegg conceded during cross-examination,[64] and meet the needs of users, consistent with the requirements of the Sport and recreation uses code ; and
    2. (b)
      it is located and designed so as to be compatible with the preferred character of the local area (including the natural and vegetated character); and
    3. (c)
      it will not have an unacceptable adverse impact on the amenity of existing residential areas or neighbouring premises.[65]

Bushfire

  1. [179]
    Whether the proposed development would have unacceptable impacts of matters of environmental significance and ecologically important areas involves consideration of how much vegetation will be cleared to construct the building and for bushfire hazard mitigation.
  2. [180]
    The appellants did not rely upon bushfire risk as a ground for refusal. But they alleged non-compliance with Bushfire hazard overlay code overall outcome 8.2.4.2(e) “The loss of vegetation through inappropriately located development is minimised”, and Table 8.2.4.3.2 performance outcome PO2 “Bushfire mitigation measures do not adversely impact on: (a) biodiversity values and functionality; and (b) the long-term physical integrity of waterways, wetlands and native vegetation areas.” In final submissions, the appellants abandoned reliance upon these assessment benchmarks.
  3. [181]
    The negotiated decision notice conditions the extent of clearing in condition 38:[66]

“The applicant must provide to council for approval a detailed vegetation clearing plan that incorporates a reduced clearing foot-print [sic] of no more than 1.5 times the height of the predominant mature tree canopy or 10 metres, whichever is greater. The vegetation clearing plan must include an arborist’s report prepared by a qualified person for any trees to be retained on the site and must be endorsed through an operational works application.” [emphasis added] 

  1. [182]
    Conditions 46 to 50 require a bushfire management plan and bushfire evacuation plan to be provided as part of an operational works approval.
  2. [183]
    Both the club and the council engaged bushfire experts. The club relied upon the evidence of Mr Delaney and the council relied upon the evidence of Mr Friend, both experienced and qualified experts in this jurisdiction. There was no challenge to their expertise or qualifications. They produced a joint expert report in which they agreed upon all relevant matters. There were no issues in dispute between them. Despite raising bushfire as an issue in the appeal, the appellants did not call a bushfire expert.
  3. [184]
    The appellants cross-examined the bushfire experts and submitted that the bushfire experts’ evidence about the extent of vegetation clearing should not be accepted.
  4. [185]
    The appellants submitted that the club had not put before the Court any material to demonstrate the extent of clearing that would be required to carry out the proposed development. They further submitted that the bushfire experts were not able to express any view about the extent of clearing of vegetation, retention of trees, and removal of foliage that would be occasioned by the proposed development.
  5. [186]
    I do not accept those submissions because they were not made out on the evidence.   While the bushfire experts did not identify which individual trees could be retained and which would be removed, they identified a zone in which vegetation must be removed and they agreed upon the extent of vegetation clearing and management required to adequately mitigate bushfire hazard. Their opinions were not undermined in any meaningful way in cross-examination.
  6. [187]
    Summarising, the bushfire experts agreed about the extent of vegetation clearing required to mitigate bushfire hazard and produced an agreed plan: exhibit 25. It depicts an Asset Protection Zone (APZ) that the experts agreed formed the necessary firebreak around the clubhouse. The line represents a six metre clearing zone or APZ which measures from the building facades along the northern and eastern sides (and the north western corner), and a one metre clearing zone or APZ measured from the building façade along the western side of the building. There is no APZ on the southern side of the building because it fronts the open space in the park.
  7. [188]
    Applying the bushfire experts’ agreed APZ would result in approximately 425m2 of vegetation being cleared.   That is a smaller area of clearing than required by condition 38.
  8. [189]
    The bushfire hazard overlay mapping in the planning scheme identifies two categories of bushfire hazard: high and medium. Within each category, it distinguishes between bushfire hazard areas and bushfire hazard buffer areas. The site is located at the edge of the Medium Bushfire Hazard Area Buffer (the building footprint is not within the hazard area itself)[67].  That is the lowest level of mapped bushfire hazard in the scheme.
  9. [190]
    The bushfire experts agreed that the vegetation in the bushfire hazard area situated adjacent to the development is comprised of a narrow (<100 metre wide) band of coastal dune vegetation. In the location of the site, the band of vegetation is even narrower.[68] Mr Delaney accepted that it was about 70 metres wide at this point. The site is on the south western edge of that vegetation. The western portion of the vegetation (which includes the site) is within the Medium Bushfire Hazard Buffer, and the eastern portion (outside the site) is within the Medium Bushfire Hazard Area proper.
  10. [191]
    In the bushfire joint expert report, the experts agreed at paragraph 12 that “[t]he likelihood for medium to high intensity bushfires to occur within the immediate locality of the development is limited by a number of factors including:
    1. (a)
      the landform upon which the development and adjacent bushfire hazard areas are located is characterised by gentle slopes [Mr Delaney later estimated slope at about 1%];
    2. (b)
      the narrowness of the band of coastal vegetation located to the north and east of the site, which restricts the available fire run and opportunities for medium to high intensity fires to develop [Mr Delaney referred specifically to the dunal and swamp vegetation];
    3. (c)
      the strong maritime influence that the site is exposed to which results in relatively high atmospheric humidity and soil/plant/fuel moisture levels which act to suppress fire ignition and behaviour under most conditions; and
    4. (d)
      the urban, asset rich, and accessible nature of the site locality which means that bushfire ignitions are likely to be identified, reported and contained by Queensland Fire and Emergency (QFES) personnel.” [69]
  11. [192]
    Mr Delaney added to these factors that the tidal inlet to the north of the site separated the two large patches of vegetation, was subject to tidal influence and he said that he would not expect a fire to propagate there. He relied upon all of these matters in expressing the opinion that the six metre APZ would be adequate.
  12. [193]
    At paragraph 14 both experts agreed that condition 38 would limit the clearance of vegetation around the building footprint to a distance of not more than 16.5 metres. It permitted a greater extent of clearing than ultimately recommended by the bushfire experts.
  13. [194]
    At paragraph 15 the experts referred to section 20A of the Planning Regulation 2017 which provides a limited development approval exemption for the clearance of vegetation for bushfire hazard and risk mitigation of up to 20 metres. This was not raised by the appellants as an issue in the appeal. The experts emphasised that the exemption applied to clearing necessary for establishing or maintaining a firebreak.  They went on to consider in paragraph 16 the nature and extent of clearing that was “necessary” for the proposed development.
  14. [195]
    At paragraph 16, both experts agreed that:

“In respect of the nature and extent of vegetation clearance and management that is necessary to achieve an acceptable level of risk of bushfire related harm to people and property, it is our view that:

  1. (a)
    condition 38 is based on Acceptable Outcome AO8.2 of the Bushfire hazard overlay code, which is intended to provide adequate separation between residential development and areas of bushfire prone vegetation;
  2. (b)
    the proposed development is not residential development;
  3. (c)
    a 6 metre wide Asset Protection Zone (APZ) extending outwards from the northern and eastern facades of the building would be all that is necessary to achieve Performance Outcome PO8 given:
    1. (i)
      the non-residential nature of the development;
    2. (ii)
      the low potential for medium to high intensity bushfires to occur in the Site locality for the reasons specified in paragraph (12); and
    3. (iii)
      the need to be cognisant of the environmental values of coastal dune systems;
  4. (d)
    the full extent of potentially exempt vegetation clearance under sec 20A of the Planning Regulation 2016, being 20 metres in this instance, would not be necessary for the reasons specified in paragraph 16(c);
  5. (e)
    within the necessary 6 metre wide APZ the following vegetation management works should be undertaken and maintained:
    1. (i)
      removal of all non-native plant species;
    2. (ii)
      removal of all native shrubs and juvenile trees (less than 3 metres in height);
    3. (iii)
      removal of the lateral branches of retained canopy trees to a height of 3 metres above the ground surface level; and
    4. (iv)
      maintenance of a native species dominated ground cover.”

[emphasis in original]

  1. [196]
    The experts agreed that the condition 38 should be replaced with an amended condition reflecting the agreed APZ depicted in the joint expert report and exhibit 25 and include the management works described in paragraph 16(c) and (e) of the joint expert report.  The club agreed to the imposition of such a condition.
  2. [197]
    In paragraph 17 the experts agreed that screen planting of the western and southern facades of the building could be undertaken without causing an unacceptable bushfire risk, provided that a 1.0 metre wide clearance is maintained around the western and southern building façade to facilitate access for general building/landscape maintenance and fire suppression if required, and that the species used were low flammability native species (examples were identified).
  3. [198]
    In paragraph 20 the experts relevantly concluded that:
    1. (a)
      the development would not expose people, property or the environment to an unacceptable risk of harm due to bushfire provided that:
      1. an adequate APZ was established and maintained to the northern and  eastern facades of the building in accordance with the recommendations in paragraphs 16(c) and (e); and
      2. any landscaping of the western and southern facades was carried out in accordance with the recommendations in paragraph 17;
    2. (b)
      the extent of native vegetation clearance and management that is required to establish and maintain necessary separation between the building and adjacent areas of bushfire prone vegetation extends for a distance of not more than six metres from the northern and eastern building facades.
  4. [199]
    In cross-examination, Mr Delaney was challenged about the differences between the 16.5 metre separation distance identified by him in an earlier Supplementary Ecological Assessment and the six metre separation distance agreed in the bushfire joint expert report. The appellants submitted that the court would place no weight on the bushfire experts’ evidence with regard to “the arbitrary reduction” of the APZ from 16.5 metres to six metres, which they described as qualitative, not based on any guideline or standard, and said should not be accepted.  I do not accept that submission for the reasons explained below.
  5. [200]
    Before the joint expert meeting, Mr Delaney had completed a Supplementary Ecological Assessment of the site and its locality. Although that report focussed on flora and fauna values, it also dealt briefly with vegetation clearance required for bushfire hazard mitigation.[70] It did not contain any detailed analysis of bushfire hazard mitigation. It said that the proposed development would involve:
    1. (a)
      clearing of approximately 0.07 hectares (700m2) of mapped remnant vegetation comprised of Least Concern Regional Ecosystem (RE) 12.2.7 that is dominated by a stand of Cottonwood (Hibiscus tiliaceus), assuming a 10 metre wide clearance around the built form; and
    2. (b)
      clearance and ongoing management of understorey vegetation within an additional 0.04 hectares (400m2) for bushfire hazard mitigation purposes “based on the establishment of a 16.5 metre wide firebreak which is all that would be necessary to achieve a radiant heat flux exposure of less than 29kW/m2 based on calculation of likely radiant heat flux exposures, carried out in accordance with contemporary guidelines”. For that calculation, he referenced the Natural Hazards, Risk and resilience – Bushfire State planning policy – State interest guidance material December 2019 and Appendix C to his report, Radiant Heat Flux Calculations, which contained a Minimum Distance Calculator pursuant to AS3959 – 2018 (method 2)).
  6. [201]
    In cross-examination, Mr Delaney explained that the 16.5 metres in the early Supplementary Ecological Report was based on a worst case scenario model depicting the likely maximum extent of the APZ, and that the radiant heat flux exposure of less than 29kW/m2 was a “deemed to comply” standard. That calculation was not based on a detailed site specific assessment.  He said there were a number of limitations in that model. It was based on assumptions such as a flame width of at least 100 metres, a head fire attack from a fully developed fire, no suppression, humidity, moisture, and wind direction, and relative positions of the vegetation and the asset. In contrast, the agreed APZ in the joint expert report reflected a later comprehensive site specific bushfire assessment which took into account site specific factors including the narrow width of vegetation, the fact that a fully developed fire was unlikely at this site, and the moderating maritime influence at this coastal location.
  7. [202]
    Both bushfire experts were cross-examined about why they did not perform the quantitative estimate of bushfire risk using the APZ width calculator in, or conduct a vegetation hazard class assessment under, the Bushfire Resilient Communities Guideline, entitled “Technical Reference Guide for the State Planning Policy State Interest ‘Natural Hazards, Rick and Resilience – Bushfire’ October 2019.[71]  But that version of the guideline was not in place when the development application was lodged, and the appellants’ grounds for refusal did not assert any non-compliance with the bushfire State Planning Policy or Guideline.
  8. [203]
    In cross-examination, Mr Delaney rejected the proposition that a larger bushfire would be likely to run through the site from the north west. He explained that vegetation to the north was broken up by the creek, that the tidal inlet would pull the fire up, that he would not expect a fire to propagate at that location, and that any fire that reached the site would not be fully developed. He remained confident of the appropriateness of the reduced APZ, based upon additional factors and ground truthing of the subject site, including matters such as prevailing winds, width of the vegetation, capacity of a bushfire to develop in the area, coastal location and accessibility of the site for fire-fighting access. 
  9. [204]
    The appellants’ attempts to undermine the basis for the bushfire experts’ agreed clearing extent were unsuccessful. Neither expert conceded that the necessary extent of bushfire separation ought to be the 16.5 metre distance calculated by the State Planning Policy calculator. As the respondent submitted, their oral evidence confirmed their views that:
    1. (a)
      the utility of the SPP calculator is limited, because it needs to be adjusted to reflect the particular site circumstances and it is based on certain assumptions;[72]
    2. (b)
      the experts’ approach (in initially having regard to the bushfire hazard mapping[73] as a relevant “trigger” but then taking into account the particular site conditions)[74] in order to determine the hazard risk, to inform the appropriate setback to vegetation, was appropriate. Despite cross-examination that challenged Mr Friend’s site assessment approach, in favour of reliance upon the SPP calculator, Exhibit 26 (the Bushfire Resilient Communities SPP Technical Guideline) confirmed the accuracy of Mr Friend’s approach;[75] and
    3. (c)
      even the council’s planning scheme policy, put to Mr Friend, demonstrated the accuracy in undertaking a site assessment to consider the relevant vegetation and other factors that determine the bushfire hazard, in order to calculate the prevailing risk level. Council’s planning scheme policy further supported Mr Friend’s assessment that the bushfire hazard risk for the development is “low”.[76]
  10. [205]
    Mr Friend[77] was satisfied that the vegetation abutting the site was non-hazardous or of a low bushfire hazard for broadly similar reasons to those identified by Mr Delaney.  Despite the appellants’ criticism of Mr Friend’s methodology, I do not accept that his approach was flawed. I am satisfied that the approach adopted by him was appropriate in the circumstances.
  11. [206]
    The appellants also complained that the experts did not explain why the question of necessary firebreak may not be revisited in the future.  They referred to the possibility that the building may be utilised for some other use if the club were to cease using it or its land tenure were to be extinguished. They argued that any condition limiting vegetation clearing under an approval issued for this development application would not restrict clearing based upon exemptions at some later date, if the use of the building were to change. The appellants conceded that there is no evidence in relation to those matters. In my view the argument was speculative and has no merit.
  12. [207]
    I accept the bushfire experts’ joint opinion about the extent of APZ necessary. Condition 38 (as amended) to reflect the experts’ opinion would limit the extent of clearing permitted to the APZ zone.  The condition attaches to the land and any future owner would be bound by it. The APZ regarded as necessary by the bushfire experts is considerably less than the nominal maximum set out in condition 38 and the exemption in section 20A of Schedule 6 to the Planning Regulation 2017.  Accordingly, clearing beyond the agreed APZ would not be either consistent with the condition, or acceptable development in terms of the Regulation.

Conclusion on the nature and extent of any non-compliance with assessment benchmarks

  1. [208]
    I accept the bushfire experts’ joint opinion that the bushfire risk is reduced because of the factors identified by them.
  2. [209]
    I am satisfied, on the basis of their evidence, that bushfire issues would not of themselves or in combination with any of the other alleged issues of non-compliance, warrant refusal of the proposed development.
  3. [210]
    I am satisfied that the proposed development would result in limited clearing of vegetation for the development footprint and for bushfire protection. I am satisfied that the development would not expose people, property or the environment to an unacceptable risk of harm due to bushfire provided that the proposed APZ was established and maintained in accordance with the recommendations at paragraphs 16(c) and (e) of the joint expert report, and any landscaping of the western and southern facades was in accordance with the recommendations in paragraph 17, of the joint expert report.
  4. [211]
    I am further satisfied that the extent of native vegetation clearance and management required to establish and maintain necessary separation between the building and adjacent areas of bushfire prone vegetation extends for a distance of not more than six metres from the northern and eastern building facades as agreed by the bushfire experts. That results in a total area of vegetation cleared for both the building footprint and APZ of approximately 425m2.  
  5. [212]
    For the purposes of considering the impacts on environmental values, the worst case scenario would involve all vegetation within this relatively small area being cleared.  But the bushfire experts’ recommendation in paragraph 16(e) of the joint expert report contemplates retention of some vegetation within the APZ, so the true position is likely to be better than that.  The bushfire experts confirmed in oral evidence that mature native vegetation can be retained subject to parameters set out in the joint report. In cross-examination they accepted that the details of the clearing would need to be confirmed by an arborist, in terms of what effects the management (such as clearing lateral branches to three metres) could have on trees to be retained.  These concessions were proper and identify a matter relevant to conditions. 

Ecology: will the proposed development result in unacceptable impacts on matters of environmental significance and ecologically important areas?

  1. [213]
    The appellants alleged non-compliance with a large number of scheme provisions relating to matters of environmental significance and ecologically important areas:
    1. (a)
      Biodiversity, waterways and wetlands overlay code 8.2.3.2(1)(a) and (b), 8.2.3.2(2)(a), (b) and (d); Table 8.2.3.3.2 PO1, PO2, PO3, PO8, and PO9; and
    2. (b)
      Caloundra Local Plan code 7.2.6.3(2)(b), 7.2.6.3(2)(aa), Table 7.2.6.4.1 PO3; and
    3. (c)
      EMC zone code 6.2.15.2(1), (2)(a) and (g)[78].
  2. [214]
    It is unnecessary to extract all of those provisions because common themes run through them.

Biodiversity, waterways and wetlands overlay code

  1. [215]
    The purpose of this overlay code is to ensure that ecologically important areas are protected, rehabilitated and enhanced, and ecological connectivity is improved.[79]  The purpose will be achieved by development which: protects and enhances ecologically important areas and ecological connectivity; protects and establishes buffers to waterways, wetlands, native vegetation and significant fauna habitat; and is located, designed and managed to avoid or minimise adverse direct or indirect impacts on ecological systems and processes.[80]
  2. [216]
    The performance outcomes relied upon are directed to:
    1. (a)
      Protection of the physical and ecological integrity and biodiversity of ecologically important areas through the protection and retention of terrestrial and wetland habitats;[81]
    2. (b)
      Management of impacts on ecologically important areas including by:
      1. preventing impacts on those areas, enhancing and restoring those areas, retaining, enhancing and restoring known populations and habitat of significant flora and fauna species, and minimising  impacts of construction and ongoing use on native fauna;[82] and
      2. where the clearing of native vegetation cannot practicably be avoided, minimising adverse impacts on ecological values to the greatest extent practicable, and providing a biodiversity offset for the area adversely affected by the development;[83] and
    3. (c)
      Rehabilitation of ecologically important areas;[84] and
    4. (d)
      Provision and maintenance of adequate vegetated buffers and setbacks to protect and enhance the environmental values and integrity of natural waterways and wetlands.[85]
  3. [217]
    The requirements to protect, enhance and rehabilitate must be considered in the context of the overlay code as a whole, which contemplates some development occurring in areas affected by the overlay. Development is to “avoid or minimise” adverse impacts. The overall outcomes promote not just protection, but management of impacts, and rehabilitation. Where the clearing of native vegetation cannot practicably be avoided, adverse impacts on ecological values are to be minimised to the greatest extent practicable, and a biodiversity offset provided.  That is, it can be expected that, where development is proposed, some impairment of ecological matters may follow and the relevant question to be considered is whether those impacts are unacceptable.
  4. [218]
    There are two relevant Biodiversity, waterways and wetlands overlay maps: one for native vegetation and one for wetlands. On overlay map (i) for native vegetation, the site is located at the very southern edge of the mapped native vegetation, partly within and partly outside the mapped native vegetation.[86] On overlay map (ii) for wetlands, the site is again located at the very southern end of the overlay mapping. It is not located within the area mapped as wetlands, waterways or waterbodies, but is located within the area mapped as riparian protection area. That mapping is clearly not entirely accurate, as the riparian protection area extends into the sealed cul de sac and carparking areas in Buderim Street.

Caloundra Local Plan code

  1. [219]
    Overall outcome (2)(b) of this local plan code provides that urban development within the Caloundra local plan area is limited to land within the urban growth management boundary so as to protect the integrity of foreshore and creekside environmental reserves.[87]  For the reasons explained earlier, I would accept that there is non-compliance with this provision but the extent of it is minor.
  2. [220]
    Overall outcome (aa) provides that the significant environmental values of local environmental parks and reserves including the Currimundi recreation reserve are protected and enhanced.
  3. [221]
    Performance outcome PO3 is directed to the retention and enhancement of “key landscape elements including significant views and vistas, existing character trees and areas of significant vegetation contributing to the setting, character and sense of place of the local plan area.”[88] 

EMC zone code

  1. [222]
    I refer to my earlier discussion of these provisions in the section on whether the proposed development is appropriately located. 
  2. [223]
    The purpose of the EMC zone code is directed towards the protection and rehabilitation of land.  However the overall outcomes make it clear that development is not precluded in that zone and that some development is contemplated. Overall outcome 6.2.15.2(2)(a)(ii) refers to areas identified as having natural environmental values being protected and appropriately managed to the general exclusion of most forms of development.  Thus the references to protecting and enhancing environmental values must be read in the context where some development is expressly contemplated in the zone.  Overall outcome 6.2.15.2(2)(b) identifies that Parks, Environment facilities “and associated activities” may be established in the zone in certain circumstances. Reasonable community expectations would include built form for those uses on the site.
  3. [224]
    I have previously concluded that because the proposed use achieves most of the relevant overall outcomes of the EMC zone code, the nature and extent of non-compliance with the locational requirements of the assessment benchmarks is minor, and would not warrant refusal. I also concluded that, despite the non-compliance identified with the provisions of the EMC zone code, having regard to its location, nature, scale and intensity, the proposed development is appropriate in the EMC zone. 

Conditions of approval

  1. [225]
    The negotiated decision notice contains a number of conditions intended to mitigate environmental impacts.
  2. [226]
    Condition 39 requires that before any vegetation clearing on site and as part of a development application for operational works, the club must have secured vegetation offsets for all land to be cleared, in accordance with the relevant codes and planning scheme policy for biodiversity offsets. It must include a detailed offset rehabilitation plan or payment of a monetary sum for provision of offsets calculated in a particular way.
  3. [227]
    Condition 40 requires the land east of the development in the reserve to be rehabilitated and revegetated in accordance with an operational works approval and must include removal of all weed species and invasive plants as defined.
  4. [228]
    Condition 41 requires fencing for 50 metres along the adjacent reserve that fronts the development, from the edge of the existing beach access. Fencing must be in accordance with coastal fencing requirements that allow turtle movements.
  5. [229]
    Condition 42 requires a detailed fauna management plan as part of operational works approval.
  6. [230]
    Condition 43 requires construction to be managed as to minimise impacts on wildlife including turtles.
  7. [231]
    Condition 44 conditions internal and external lighting so as not to adversely affect wildlife including turtle breeding grounds.
  8. [232]
    Conditions 51 to 54 deal with landscaping (condition 51 appears to contain a typographical error in its reference to RE 12.12.12, which the experts agreed should be corrected).

Consideration

  1. [233]
    With respect to ecology issues, the club relied upon the evidence of Mr Delaney, the council relied upon the evidence of Dr Watson, and the appellants relied upon the evidence of Mr Moffitt.
  2. [234]
    All three ecological experts agreed that:
    1. (a)
      The development footprint has ecological values, but they differed on the significance of them;
    2. (b)
      The development will have some impacts, but they differed on the scale and intensity of them;
    3. (c)
      the survey methods, findings and ecological values of the site as recorded by of Mr Delaney in the Supplementary Ecological Assessment were correct, (although Mr Moffitt’s agreement was subject to further clarifications provided in the joint expert report);
    4. (d)
      Should the proposed development be approved, condition 29 should be amended to allow clean roofwater to be discharged to a gully pit (or similar structure) that discharges to the wetland.

Ecological values of the site

  1. [235]
    Mr Delaney and Dr Watson agreed that the ecological values of the development footprint were such as would allow the proposed development to proceed. 
  2. [236]
    Mr Moffitt considered that the ecological values of the development footprint are such that the building should not be established in its proposed location. In his view, “the proposed development will affect a nationally significant wetland, vegetation that the council identifies as regionally significant, habitat for fauna listed as matters of national environmental significance and a sensitive dune-swale system”, and “habitat connectivity along the foreshore”.

Regional ecosystem and wetland classification

  1. [237]
    The vegetation in the vicinity of the development footprint is dominated by RE 12.2.7 Melaleuca quinquinervia or rarely M. dealbata open forest on sand plains.  That RE is described as Palustrine wetland (eg. vegetated swamp). However, the building footprint and the majority of the disturbance footprint is occupied by a cottonwood thicket (Hibiscus tiliaceus). Cottonwood is not a natural occurring component of RE 12.2.7, and is a species that can dominate coastal dune and swale complexes in the absence of active management. Pandanus also occurs within the proposed development footprint but is not associated with RE 12.2.7 (although it is associated with the adjoining RE 12.2.14 Foredune complex).
  2. [238]
    Both regional ecosystems have Least Concern status under the Vegetation Management Act and No Concern biodiversity status. 
  3. [239]
    All the experts agreed that the site may be characterised as an ecotone: a transitional area where the vegetation is comprised of elements of one or more regional ecosystems. The vegetation to the south and east is more associated with RE 12.2.14 (which is not a recognised wetland ecosystem) whilst species associated with RE 12.2.7 are more prevalent to the north.
  4. [240]
    Mr Delaney and Dr Watson agreed that the area of the development footprint is not “wetland” (RE 12.2.7) because the disturbance area is dominated by cottonwood thicket with some pandanus, both of which are reflective of a non-wetland community.  They agreed that land further north is more consistent with the “wetland” ecosystem.
  5. [241]
    Mr Moffitt said that the pandanus and cottonwood indicate “edge of wetland” conditions. He relied upon council signage “on a nearby section” of the coastal path identifying the vegetation as “Coastal wetland ecosystem” and “regionally significant habitat due to increasing urbanisation” and that the paperbarks in the wetland system had “a very distinctive low multi-trunked habit in comparison to other wetlands along our coastline”: Plate 10 of the joint expert report.[89]  Although Mr Moffitt said this signage was “nearby”, it was located some 300 metres to the north of the site and in an area of vegetation visibly different to that on the site. The area where the sign was located was characterised by paperbarks and sedges and was noticeably wetter, whereas the site was dominated by a dense thicket of cottonwood and was noticeably drier. 
  6. [242]
    Mr Moffitt maintained that although the site was an ecotone, it was still part of the “broader wetland system and important for protection of the more clearly identifiable wetland areas to the north”. He also said the cottonwood provided an important screen of dense vegetation that reduces the progression of edge effects further north into “core wetland areas”.  He accepted Mr Delaney’s observation that some of the vegetation was regrowth.
  7. [243]
    Mr Delaney and Dr Watson accepted that the areas of RE 12.2.7 within and to the north of the development footprint are located on the very southern edge of an area that forms part of the Mooloolah River Wetlands – a Nationally Important Wetland. That wetland complex is 1,410 hectares in area, and not all parts of the mapped wetland area contribute equally to the wetland values.  On the issue of whether the site is wetland, I prefer the evidence of Mr Delaney and Dr Watson.
  8. [244]
    Mr Delaney said (and the other experts accepted) that the majority of the vegetation within the site and in the vicinity is regrowth, and the disturbance area supported a high proportion of weed species.
  9. [245]
    In the Supplementary Ecological Assessment Mr Delaney recorded (and all the experts accepted) that a substantial proportion (23%) of the species recorded in the study were non-native species, including declared weed species.  Mr Delaney noted that council had a general biosecurity obligation to manage restricted invasive plants on land under its control, but had no obligation to manage the majority of the weed species that had been recorded on the site. He said that the weeds present were not necessarily easy to manage, and that a number of species were of particular concern because they could, in the absence of active management, increase in abundance and potentially dominate the canopy strata.
  10. [246]
    Mr Delaney said that condition 40, which required the removal of all weed species and invasive plants listed in the Biosecurity Act 2014, therefore delivered a benefit over and above the current situation. He said that requiring the club, a community organisation with a close relationship with the coastal environment, to fund and be actively involved in the management of the coastal dune and swale complex had distinct broader environmental, social and economic benefits to relying upon council undertaking a weed management program.
  11. [247]
    Mr Moffitt was not convinced that condition 40 provided any real benefit.  He said it required removal of weeds that had not caused any significant change to ecological characteristics of the vegetation and which can and should be better managed by council. On this issue, I prefer Mr Delaney’s evidence.

Threatened species

  1. [248]
    The experts agreed with the findings in the Supplementary Ecological Assessment that:
    1. (a)
      no threatened flora species were recorded or considered likely to occur in the development footprint; and
    2. (b)
      no threatened fauna species were observed within or over the study area during field surveys.
  2. [249]
    Three threatened flora species had a moderate likelihood of occurring within the site based on a desktop assessment. That was based on “small areas of potentially suitable habitat within the low-lying wetter northern sections of the study area and more extensive areas of heathland/sedgeland to the north.” 

Frogs

  1. [250]
    Although concerns had previously been raised about the potential presence of species of acid (wallum) frog on the site, there were no records of the presence of any of the three frog species within two kilometres of the site. No evidence of the actual presence of any of the frog species was collected during field surveys. Despite generally favourable conditions associated with rainfall before and during field surveys, no relevant frog calls were heard during the field surveys. None of the waterbodies tested had the appropriate pH values to support acid frogs or indicated potential frog habitat.  
  2. [251]
    With respect to wallum frogs, the Supplementary Ecological Assessment concluded that:
    1. (a)
      the extent of potential habitat for wallum frogs within 50 metres of the building footprint was negligible and limited to secondary, ephemeral wet season habitats; and
    2. (b)
      The areas of potential habitat within the study area most likely to be important to the persistence of any local wallum frog populations are located over 50 metres to the north of the disturbance footprint.
  3. [252]
    The experts agreed that:
    1. (a)
      the development footprint does not contain any breeding habitat or high quality non-breeding habitat for the wallum frog species; and
    2. (b)
      the land well to the north of the site had some potential for one species of wallum frog.
  4. [253]
    Mr Moffitt agreed that the better quality potential habitat for wallum frog species occurred further north from the site, and said that was supported by council signage in that area: Plate 11. But again that plate was located in a material different area, which was a wetland, and a significant distance north of the site.  Mr Delaney noted that the areas of better quality potential habitat are also located less than 50 metres from the existing coastal path and the grounds of the Currimundi State school.  Dr Watson confirmed that the State database had no records of wallum frogs within 2 kilometres of the site.

Flying foxes

  1. [254]
    All experts agreed that the local area including the entire reserve contains vegetation that will on a seasonal basis be exploited as a food source by grey headed flying foxes.  Mr Moffitt accepted that if the paperbarks in the APZ are maintained and managed as proposed by the bushfire experts, that forage resource would not be lost.
  2. [255]
    Mr Delaney and Dr Watson agreed that the vegetation within the disturbance footprint is dominated by species that are not used by them as a food source and are not suitable as habitat for grey-headed flying foxes.

Koalas

  1. [256]
    In the joint expert report, Mr Moffit said that areas of RE 12.2.7 were also potential koala habitat, although he conceded the cottonwood was not. His opinion was based on State legislative changes to mapping that commenced in February 2020, after the development application was lodged and the appeal commenced. Mr Moffitt conceded the lack of recent records of any koalas in the area and that vegetation within and adjoining the development footprint would not satisfy some of the criteria. The appellants did not rely upon impact on koala habitat as a disputed issue in the appeal or as a ground for refusal or in submissions.
  2. [257]
    Nonetheless, the other experts considered the issue in the joint expert report because it was raised by Mr Moffitt.
  3. [258]
    Mr Delaney concluded that the presence of Melaleuca (paperbark) species in RE 12.2.7 alone is not sufficient for an area to be classified as koala habitat. He noted that there are no records of the presence of koala within a one kilometre radius of the development footprint since the 1980s, no koala or indications of koala activity observed during field surveys, and the vegetation does not contain any koala food tree species.  He said that the extent of RE 12.2.7 was not sufficient to sustain a resident koala population, and the site was not identified in council’s mapping as koala habitat. 
  4. [259]
    Dr Watson expressed similar opinions. He concluded that database and local records do not indicate that the local area supports koalas, the site is not koala habitat and does not provide any feed trees, it is not an ecosystem that would naturally expect to support koalas or be considered important to their long term survival in the wild, the land would not be suitable to support koalas and does not warrant classification as koala habitat area.
  5. [260]
    Both Mr Delaney and Dr Watson concluded, and I accept, that:
    1. (a)
      The site and disturbance footprint does not support koala habitat and does not warrant classification as a koala habitat area; and
    2. (b)
      The proposed development will have no functional impact on koala or koala habitat.
  6. [261]
    In cross-examination Mr Moffitt agreed that this was not a significant issue.

Ecologically significant area

  1. [262]
    Mr Moffitt considered the development footprint and surrounding vegetated areas are an ecologically important area. Mr Delaney and Dr Watson agreed that some of the vegetation that occurs in the immediate vicinity of the proposed development has attributes used to define ecologically important areas in the planning scheme, and that some parts of the site are classified as connecting habitat areas. 

Impacts on ecological values

  1. [263]
    In the Supplementary Ecological Assessment, Mr Delaney concluded that the establishment and operation of the proposed development in accordance with the conditions of approval “has no real chance or possibility of resulting in a significant impact to any ecological communities or wildlife species of conservation significance.” He said that “The development is located and conditioned so as to minimise impacts associated with a development of the nature proposed in the locality, and an offset condition has been imposed in respect of residual impacts that cannot be avoided.”
  2. [264]
    Mr Delaney and Dr Watson agreed that the proposed development would not result in unacceptable ecological impacts. They also said:
    1. (a)
      the potential impacts will be:
      1. The selective clearance of vegetation to facilitate building construction and necessary firebreaks, which would be in the order of 425m2 to 605m2. In any event, the maximum extent of clearing reasonably required for construction would be no greater than 10 metres from any building façade, corresponding to a total area of approximately 605m2. That represents 0.33% to 0.47% of the 12.8 hectare coastal reserve. And only 0.14% to 0.02% of the total area of remnant vegetation that occurs within the reserve and adjoining Currimundi recreation camp grounds to the north;
      2. Some minor earthworks within the building disturbance footprint; and
      3. Potential downstream impacts associated with changes to surface and subsurface hydrology or water quality;
    2. (b)
      Condition 54 requires that any areas disturbed as a consequence of works that are not required to be maintained as part of the APZ or other landscaped element, must be rehabilitated in accordance with an operational works approval;
    3. (c)
      Condition 29 should be amended to direct clean stormwater runoff from the roof back into the coastal swale to the north of the building to minimise potential alterations in surface and subsurface hydrology;
    4. (d)
      the impacts of the development were acceptable due to the scale, design and context of the development and the nature of the site vegetation; and
    5. (e)
      the reasons given by Mr Moffitt would not justify refusal of the development.
  3. [265]
    Mr Moffit’s opinion was that the proposed development in its current location was inappropriate and that conditions cannot be imposed to make it acceptable. In particular, he:
    1. (a)
      did not accept the six metre APZ agreed by the bushfire experts and proceeded on the basis of a 16.5 metre APZ in condition 38;
    2. (b)
      considered that the impacts of the proposed development will extend beyond the development footprint;
    3. (c)
      considered an overall direct impact zone of 10 metres from the building would arise over time due to loss of trees adjoining the construction zone and clearing to protect the building from tree fall. On that basis, he said the total loss of vegetation cleared would be 745m2. That was the area depicted as “WM Balanced Impact Area” in Figure 3 to the joint expert report.
    4. (d)
      considered that edge effects would arise from light, noise, and activity, which would establish a new northern boundary at the southern edge of the reserve;
    5. (e)
      did not consider that conditions would adequately mitigate impacts;
    6. (f)
      said there were opportunities to locate the proposed development wholly within cleared areas of the park of low ecological value, or in areas away from the park altogether.  The extent of the impacts arising at the proposed alternative locations was disputed by the other experts.
  4. [266]
    Mr Moffitt’s opinion was that the mitigation proposal does not adequately address the impacts of the proposed development because:
    1. (a)
      There was no detail about the offset outcome to be delivered in condition 39 and it would not replace the “distinctive wetland system” to be removed;
    2. (b)
      The weed management condition 40 provides no further mitigation because it requires removal of weeds that have not caused a significant change to the ecological characteristics of the vegetation and can be better managed by council;
    3. (c)
      The fauna management program proposed in condition 42 for the construction phase deals only with fauna welfare (risk of death or injury as a result of the clearing) and does not address habitat loss; and
    4. (d)
      The costs of the offset, weed management and fauna management programs “can be avoided by the club” which is likely to prefer to direct its funds into the core purpose of the club rather than environmental management programs.
  5. [267]
    Mr Moffitt completed a tree survey (which the other experts did not) but this merely confirmed the limited ecological values of the site and that the extent of clearing was limited. 
  6. [268]
    Mr Moffitt conceded that even if (on his estimate) 745m2 of vegetation were cleared for the proposed development, this extent of clearing did not represent a significant portion of the reserve.
  7. [269]
    Where there is conflict between the ecological experts, I prefer the opinions expressed by Dr Watson and Mr Delaney to those of Mr Moffitt for several reasons.
  8. [270]
    First, Mr Moffitt tended to overstate the ecological values of the site and his views on impacts were not reasonably measured. For example, he conceded that the vegetation was an ecotone that had lower value ecological attributes but continued to maintain the impact of the very limited clearing was unacceptable.
  9. [271]
    Second, he refused to recognise the beneficial aspects of the approval and to make reasonable concessions, including refusing to accept that the conditions requiring rehabilitation, offsets or fencing could be a real ecological benefit or even a potential benefit.
  10. [272]
    Third, he proceeded on the assumption that conditions imposed as part of a development approval (for example, restricting vegetation clearing and requiring rehabilitation and offsets) would not be complied with. That is an impermissible assumption. I do not accept that the proposed conditions of approval would be impossible or even difficult to enforce.  It is well established that the Court is to proceed on the basis that the applicant will comply with the conditions of approval.
  11. [273]
    Fourth, his views on impacts were based on speculation, both as to “creep” and future development applications that may seek to extend the use (a thin edge of the wedge or floodgates argument).  Again, this is an impermissible approach. The court is to assess the application on its merits, and not concern itself with hypotheticals.
  12. [274]
    Fifth, he considered and promoted alternate locations for the development, rather than confining himself to assessment of the impacts of the proposed development on the proposed site.  This was a distraction.  The court is only required to assess the impacts of the proposed development, not a hypothetical development. The alternative locations and their impacts have not been assessed by council nor in the appeal process.  To the extent experts commented on them, they raised concerns with new and additional impacts that might arise at the alternative locations.
  13. [275]
    Sixth, the area of the lease granted by council to the club is only 590m2. This will necessarily constrain the extent of vegetation clearing to that anticipated by Mr Delaney and Dr Watson.
  14. [276]
    The appellants criticised the evidence of Mr Delaney and Dr Watson for placing some reliance on considerations beyond their ecological field of expertise: in referring to relevant social and economic considerations when considering the extent of any non‑compliance with assessment benchmarks. I do not consider that that those experts strayed beyond their field of expertise. In addition, such a balancing exercise is contemplated in the scheme. Strategic Framework specific outcome 3.7.2.1(c) requires consideration of whether development which may disturb or diminish ecologically important areas, on the balance of social, economic and environmental considerations, is demonstrated to be in the interests of the community.
  15. [277]
    The appellants submitted that the question of alternative sites was relevant to the question of whether there was a town planning need for the development. On the basis of the Court of Appeal authorities referred to earlier in these reasons, that is incorrect. The appellants also submitted that alternative sites were relevant to “non-compliance with important assessment benchmarks”, including whether it was not practicable to avoid adverse impacts, arguing that the club had failed to identify why the proposed development needed to be located on the subject site.  In my view, the requirement to avoid where practicable adverse impacts requires consideration of the proposal on this site, not some other site.
  16. [278]
    The appellants criticised the proposed development on the basis that it was “nebulous”, did not provide any details of the precise area to be affected, the likely removal of vegetation, rehabilitation and offset. I do not accept these submissions, for the reasons explained above. Those matters were the subject of comprehensive consideration by the ecological experts. The submission is not made out on the evidence and has no merit.

Offset

  1. [279]
    The appellant submitted that the court could not be satisfied on the evidence that an appropriate biodiversity offset can be obtained, despite condition 39. They argued that it was not sufficient for condition 39 to defer to some future time the issue of an appropriate offset, and that this had to be satisfied as part of the development application. I do not accept those submissions.
  2. [280]
    Despite this issue being raised by the appellants in cross-examination and submissions, the planning scheme policy for biodiversity offsets was not identified by them in their list of disputed issues and grounds for refusal. 
  3. [281]
    Condition 39 is a standard condition. It requires the preparation and the submission to and approval by the council of a detailed offset rehabilitation plan as part of an operational works approval (in accordance with the Biodiversity, waterways and wetlands overlay code, the vegetation management code and the planning scheme policy for biodiversity offsets), and the carrying out of the development in accordance with the approved plan, or the payment of a monetary sum for the provision of offsets to be provided by council.
  4. [282]
    Courts have recognised that the principle of finality is not contravened merely because an approval condition requires a management plan to address some issue, and that retention of practicable flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme and within the statutory limits of the power being exercised.[90]
  5. [283]
    The appellants said they did not attack the offset condition 39 on the basis that it lacked finality or certainty, either by leaving open the possibility that the development as approved will be a significantly different development from that in respect of which application was made or by postponing a decision about any important aspect of the development, which decision on that aspect could alter the development in a fundamental way.[91]
  6. [284]
    Condition 39 is not capable of resulting in any change to the core purpose of the development nor does it offend the principle of finality.  No concerns were raised by Mr Delaney or Dr Watson about the offset condition or the ability to provide a suitable offset.
  7. [285]
    The objectives of rehabilitation and enhancement of ecologically important areas are met by the requirements of conditions 39 and 40. Condition 40 also improves ecological connectivity, by rehabilitating the area east of the development to contribute to the vegetation running north to south (broken to some extent by the existing open space park). These conditions achieve the purpose of the overlay code, provide for the enhancement of the Reserve at this area, and demonstrate compliance with the Caloundra local plan code overall outcome OO2(aa).

Conclusion on the nature and extent of any non-compliance with assessment benchmarks

  1. [286]
    I have taken into account the overall ecological impact of the development, including the relevant assessment benchmarks, the vegetation that would be removed, the proposed rehabilitation of the site through planting, landscaping and weeding, and the proposed provision of an offset.  I have assessed the proposal’s compliance with the relevant outcomes prescribed by the scheme, particularly by reference to a qualitative assessment of the relative importance of the existing environment on the site.
  2. [287]
    The fact that the proposed development will involve some clearing of native vegetation on the site necessarily means that there is non-compliance with the planning scheme provisions that seek to avoid adverse impacts, and to protect, maintain and enhance environmental values and ecologically significant areas. It is unnecessary to traverse all the provisions in detail because of the repetition of themes.[92]
  3. [288]
    For reasons explained earlier, there is also non-compliance with the assessment benchmarks relating to the uses intended in the EMC zone.
  4. [289]
    With respect to PO3 of the Caloundra Local Plan code, the non-compliance is limited to the small amount of vegetation cleared that is mapped character vegetation for the reasons explained in the visual amenity section below. There is no impact on significant views and vistas, and areas of significant vegetation contributing to the setting, character and sense of place of the local plan area. 
  5. [290]
    In the context of the provisions as a whole, I am satisfied that the extent of the non-compliance with the relevant assessment benchmarks is minor or not significant, for the reasons best articulated by Dr Watson and Mr Delaney including:
    1. (a)
      The proposed development will be located in an area that is already disturbed and subject to edge effects by virtue of it being surrounded by existing uses, adjoining cleared areas of open parkland, infrastructure, school, coastal path and residential development, with a carpark and road nearby, as well as another school;
    2. (b)
      The site is disturbed, is not a pristine environment, and has some weed infestation;
    3. (c)
      The building footprint is in a thicket of cottonwood trees which are not typically representative of the mapped RE 12.2.7;
    4. (d)
      The patch of vegetation in which the development is located is remnant vegetation but it is not representative of RE 12.2.7 and it does not have all the values of the regional ecosystem, which values do occur further north;
    5. (e)
      The development footprint is not within a wetland;
    6. (f)
      The RE12.2.7 wetland occurs further to the north, not within the site of the proposed development or development footprint, so appropriate buffers are protected;
    7. (g)
      To the extent the vegetation may form part of a movement corridor for fauna, that corridor will remain able to fulfil that function even if narrowed (which even Mr Moffitt accepted);
    8. (h)
      There are no threatened ecological communities or species likely to be affected;
    9. (i)
      There are no large habitat trees present in the development footprint;
    10. (j)
      No threatened species rely upon the site of the proposed development;
    11. (k)
      The development will not fragment existing habitats or interfere with wildlife movement opportunities;
    12. (l)
      It is unlikely to have any adverse impacts on downstream ecological values;
    13. (m)
      The planning scheme does not preclude development in this location. Some built form can reasonably be anticipated and vegetation clearing is expressly contemplated. Any development will necessarily have some impacts; 
    14. (n)
      The proposed building is consistent with reasonable expectations as to the built form that may be provided for the uses that are a “consistent use” or a “potentially consistent” use;
    15. (o)
      The proposed building is located, managed and designed to minimise impacts, being on the western side of the vegetated area and adjoining the open space;
    16. (p)
      The development is low key in scale and nature (comprising a small, lightweight, non-residential building, erected on piers, with no vehicle parking or manoeuvring, and restrictions on use);
    17. (q)
      The extent of vegetation cleared is likely to be between 425m2 and 605m2. That is negligible in the context of the 12.8 hectare reserve as a whole, and infinitesimal in the context of the 1,410 hectare wetland to the north. That is so even adopting on Mr Moffitt’s slightly greater estimate of 745m2. Clearing can be managed to prevent unnecessary disturbance;
    18. (r)
      The vegetation lost has limited ecological value, the vegetation of significance being located further to the north;
    19. (s)
      To the extent there is any loss in ecological value of the site, it is minor or insignificant in the context of the coastal vegetation as a whole;
    20. (t)
      The retention of significant vegetation to the east and the requirement to rehabilitate that area protects the integrity of the foreshore environmental reserve as a whole;
    21. (u)
      Taking into account all the relevant matters, the proposal will not cause unacceptable ecological impacts;
    22. (v)
      The objectives of enhancement and rehabilitation are achieved in part by the conditions of approval that require rehabilitation of adjacent land, environmental offsets and management of general public access to sensitive areas. The proposed development will deliver beneficial ecological benefits from compliance with those conditions. Other conditions, including for fauna management, construction management, landscaping, and rehabilitation of disturbed areas, will assist in mitigating impacts;
    23. (w)
      I am satisfied that, on the balance of social, economic and environmental considerations, it is demonstrated that the development is in the interests of the community and any adverse impacts incurred are compensated by the provision of a biodiversity offset.
  6. [291]
    In these circumstances the minor non-compliance with the relevant assessment benchmarks relating to ecology, alone or cumulatively, does not warrant refusal of the proposed development.

Will the proposed development have unacceptable impacts on visual amenity?

  1. [292]
    The appellants alleged non-compliance with the following assessment benchmarks of the planning scheme:
    1. (a)
      Sport and Recreation Uses code 9.3.19.2(1), (2)(d), (2)(b) (referred to above in the location section); and
    2. (b)
      Caloundra Local Plan code Table 7.2.6.4.1 and PO3 (referred to above in the ecology section).
  2. [293]
    Visual amenity was not a significant issue in the appeal, and the appellants did not address it in any substantive way in their written submissions.
  3. [294]
    The council relied upon the evidence of landscape architect and urban designer Dr McGowan, and the appellants relied upon the evidence of architect Mr Curtis. The club did not engage a visual amenity expert but relied upon Dr McGowan’s evidence.
  4. [295]
    The experts agreed:
    1. (a)
      On the description of the site and its context set out earlier in these reasons;
    2. (b)
      That some of the vegetation in the vicinity of the site is identified in the Caloundra Local Plan as character vegetation;
    3. (c)
      That two trees have been planted by council between the proposed site and the coastal path to the west. They are currently 2.5 and 4 metres high but have potential to grow to 8 to 10 metres high and 5 to 8 metres wide. As they grow they will provide some screening of the proposed building;
    4. (d)
      The open space in the vicinity of the site is an attractive, popular and busy area;
    5. (e)
      The valued landscape features and elements in the vicinity of the site include the ocean, the beach, the dune system, the creek and reserve and the vegetation through the dune reserve. The experts had different views about the value of the open space adjacent to the site, mapped as greenspace.  They disagreed about the extent to which the development would affect those values.
    6. (f)
      The natural landscape features such as dune vegetation are an important contributor to the character, and the open space surrounding the site has a park-like character.  They disagreed on the extent to which the development would affect that character.
    7. (g)
      The proposed development will not affect significant views identified in the Caloundra local plan. They disagreed about other views of significance and whether there would be unacceptable impacts on them;
    8. (h)
      The proposed building was a simple building in terms of form and treatments and the colour choices would assist with relating the building with its context, to help make it visually recessive; and
    9. (i)
      The proposed development could be partially screened by existing and additional landscaping, which would assist to mitigate impact on the outlook (and therefore residential amenity) of the neighbouring house at 1 Buderim Street.
  5. [296]
    In the end, Mr Curtis had had only two concerns in respect of visual amenity impacts. First, impacts upon the park open space, which he referred to as greenspace. Second, impacts upon the amenity of the residents at 1 Buderim Street – although in oral evidence he confirmed that he was “not so much” concerned with this issue.
  6. [297]
    The owners of the house at 1 Buderim Street live elsewhere and currently use it as a holiday home. There was a holiday rental sign in front of the house. The photographs in the joint expert report demonstrate that within the yard of 1 Buderim Street, there is no vegetation planted that would screen the coastal vegetation or foreshore park. The deck on the upper level of the house overlooks the coastal path, vegetation and foreshore park.
  7. [298]
    Dr McGowan was of the opinion that the proposed development satisfied the relevant assessment benchmarks. Mr Curtis was of the opinion it did not satisfy some of the assessment benchmarks.
  8. [299]
    To the extent there is conflict in their views, I prefer the evidence of Dr McGowan to Mr Curtis because Mr Curtis: tended to overstate the impacts of the development; made assumptions about the conduct of the use which I do not accept (including the extent to which it would be used by members of the community); and did not accept that the development addressed community needs or provided a benefit.
  9. [300]
    I accept Dr McGowan’s opinion that the removal of the vegetation will have no significant impact on the broader scenic values of the area. The site is the boundary of cleared area of a dune system already affected by urban activities, and the beach and ocean are not visible from the subject site. While the clearing will be in a area mapped as character vegetation, it is a very small component of the area mapped as a whole and it adjoins an already cleared area. 
  10. [301]
    I do not accept Mr Curtis’s view that the site is visually prominent straddling the greenspace that provides the principal means of access to the beach. The building will be recessed into the western and southern edge of vegetation closest to the coastal path, houses and school, and furthest from the beach. Access to the beach is via concrete pathways and the proposed development in no way interferes with that access or the view of it.
  11. [302]
    I am satisfied that the visual amenity impacts are limited so as to be acceptable, through the use of materials and colourings that make the building visually recessive, its location at the western extent of the park area, and landscaping (both existing and proposed) that will soften the appearance of the built form. 
  12. [303]
    I accept Dr McGowan’s opinion that the existing character of the area includes the attractive landscape features and coastal vegetation but also detached dwellings, community buildings, open space, the parking area and traffic, the amenities block and other facilities in the park. They combine to create an appealing and memorable beachside character.
  13. [304]
    The proposed development is a similar length to the neighbouring house at 1 Buderim Street, but is only single storey whereas that house is two storey, and the deck and ramp contribute little to the bulk of the proposed building.  The proposed building is modest, single storey and will be screened by landscaping as recommended by the experts. 
  14. [305]
    For the reasons given by Dr McGowan, I do not accept Mr Curtis’s opinions in the joint expert report that the proposed building will be obviously larger than the neighbouring house, or that it will be seen as having a size 10 times larger than the size of the existing amenities block. They were overstatements and not supported by the evidence. I also do not accept Mr Curtis’s opinion that the proposed development will visually dominate the entire open space and change its fundamental character, or that it will erode the abrupt edge to the developed area.
  15. [306]
    In cross examination, Mr Curtis accepted that the building would be low key, or low impact in terms of built form, that it could be painted to be recessive, that it would be partially screened, and that the impact on the view from 1 Buderim Street was not significant.
  16. [307]
    Mr Curtis did not identify any particular local views of importance to residents which will not be respected, save perhaps to maintain that impacts on the views of the open space would be adversely affected.
  17. [308]
    I accept Dr McGowan’s opinion that the proposed development will be compatible with the existing character of the area.
  18. [309]
    The site of the proposed development is not a pristine area of high ecological value with no intrusions. The vegetation to be removed does not share the same values as that much further to the north. The proposed site is located partly within open space with existing community infrastructure and landscaping. The open space adjoins a busy carpark. It is flanked by a concrete pathway, a house and a primary school.  The proposed development will be another low key building in an area where there are already buildings.
  19. [310]
    That will continue to be the character even if the proposed development proceeds. The proposed development can be contrasted with a case where the intended development would permanently change the desired character and amenity of the local area.  This is not such a case.  Nor would it substantially erode or detract from the attractive landscape features that define the character, or change the values contributed by the dune reserve and the park-like setting of the open space.
  20. [311]
    I accept Dr McGowan’s opinion that the proposed building will only be partially visible from the upper level of 1 Buderim Street at a distance of over 11 to 15 metres. The majority of the views available from the upper level of 1 Buderim Street will not be affected by the proposed development, with it occupying only a limited part of the entire viewshed available. The proposed development will not block views to any specific landscape features, including views of the beach or ocean or much of dune vegetation.  I accept Dr McGowan’s evidence that there is no prospect of significant visual impacts arising from glare from solar panels on the roof. In cross examination, Mr Curtis agreed that the impact on the view from 1 Buderim Street was not significant.

Conclusion on the nature and extent of any non-compliance with assessment benchmarks

  1. [312]
    I am satisfied that the proposed development largely complies with the relevant assessment benchmarks because it provides for the retention and enhancement of key landscape elements including significant views and vistas, and areas of significant vegetation contributing to the setting, character and sense of place of the local plan area.  To the extent that it involves clearing of a small section of vegetation mapped as character vegetation, I accept there is some non-compliance with performance outcome PO3 of the Caloundra local plan code.
  2. [313]
    For the reasons above, I am satisfied that the nature and extent of that non-compliance is minor and not significant.  
  3. [314]
    I am satisfied that the proposed development is compatible with the existing character, will adequately protect the visual amenity of existing surrounding premises, and would not result in a significant loss of visual amenity for surrounding development. 
  4. [315]
    The visual amenity impacts will not be unacceptable particularly given:
    1. (a)
      its low key nature and ability to blend into the reserve (assisted by screening provided by both the current landscaping within the park, which will grow to a substantial height and width, and proposed landscaping required by conditions 51 and 52);
    2. (b)
      the development is located at the most western portion of the park area, also at the western extent of the vegetated area, reducing impacts compared to if it was located more centrally within the park;
    3. (c)
      the impact of the development can be considered limited in relation to its overall character of the dune reserve and its character visualisation, and the “visual prominence” with which Mr Curtis was still concerned can be appropriately mitigated by landscape screening; and
    4. (d)
      as Mr Curtis conceded, there will continue to be a significant amount of character vegetation located to the east of the development, which will continue to contribute to the character of the open space park area, ensuring that a sufficient extent of vegetation on the foredune reserve is protected, demonstrating compliance with the purpose of limiting growth to the UGMB.
  5. [316]
    There are no visual amenity grounds, individually or cumulatively, that warrant refusal of the development.

Other relevant matters under s 45(5)(b) PA relied upon to support approval

  1. [317]
    The council and the club also rely upon six other relevant matters[93] to support approval of the application:
    1. (a)
      The existence of a community and town planning need for the proposed development, and the importance of establishing a facility of this nature in an appropriate location for this particular longstanding community organisation;[94]
    2. (b)
      The public benefits that will be provided by the proposed development to the community, including by way of promoting matters of importance for the broader community and supporting other community organisations;[95]
    3. (c)
      The appropriateness of the use in the EMC Zone having regard to its low impact nature, location, scale and intensity;[96]
    4. (d)
      The strong community support for the proposed development;[97]
    5. (e)
      The existence of the council’s support in terms of a commitment for a lease agreement, and Federal support in terms of approval for funding for the construction of the facility;[98]
    6. (f)
      That clearing for bushfire purposes is limited to ensure that no adverse ecological impacts arise.[99]

Community and town planning need

  1. [318]
    Here, need is relied upon as a “relevant matter” for the purposes of s 45 PA. 
  2. [319]
    The Explanatory Notes to the Planning Bill 2015 (Qld) state, with respect to a planning need, that:

“There is considerable judicial authority about need in a planning sense. Generally it does not refer to a pressing or urgent need, but refers to whether the community’s interests in general, as opposed to the proponent’s or another individual’s interests would be well served by a particular decision. For this reason need cannot be conflated with demand for a facility or service. It is a relative concept so it is not desirable to seek to define it in statute. It is best established on a case by case basis having regard to the circumstances of each case.”[100]

  1. [320]
    The general principles that inform and guide an assessment of planning need are well settled. They are conveniently summarised by Wilson SC DCJ in Isgro v Gold Coast City Council.[101] As His Honour stated:[102]

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community... Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.”

  1. [321]
    Other relevant principles referred to in the analysis of the authorities in Isgro v Gold Coast City Council include: [103]
    1. (a)
      need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire, but relates to the well-being of the community;
    2. (b)
      a thing is needed if its provision, taking all things into account, improves the services and facilities available in a locality such that it will improve the ease, comfort, convenience and efficient lifestyle of the community;
    3. (c)
      the question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors;
    4. (d)
      need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority is to take into account; and
    5. (e)
      in some instances, public or community need for a service or facility may not be great, and other considerations may be of greater moment.
  1. [322]
    The court in Abeleda clarified that statements in earlier Court of Appeal decisions for the purpose of the application of s 326(1)(b) of the SPA do not support the transposition of the strict site specific focus of the planning need to the regime under the PA.[104]  The court said:

“The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site.  Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site.  The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site.  The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[105] [emphasis added]

  1. [323]
    Thus the strict site specific focus of the planning need under s 326 of the SPA does not apply here. To the extent the appellants submitted that it did, and that the club must demonstrate a need for the proposed development on this particular site,[106] that submission is incorrect.
  2. [324]
    Nonetheless there are matters particularly relevant to assessing the need for the proposed development.  One is the nexus between the club’s historical activities and the Ann St surf break, located proximate to the proposed development.  Another is the location of the proposed development adjacent to two schools, both of which support and intend to use the proposed development, in conjunction with the club, its members and other like-minded community organisations. A third is the community support and interest from other clubs and organisations for an additional meeting place. In this case, I am satisfied that an approval will satisfy a community and town planning need. 

Nexus

  1. [325]
    I do not accept the appellants’ submission that there is no nexus between the club and the site. I am comfortably satisfied, on the basis of the evidence discussed earlier about the history of the club, its connection to the Ann Street surf break, and the regular activities it has and will conduct there, that there is a clear and demonstrated nexus between the club and the site of the proposed development. I agree with Mr Ovenden’s opinion that the nexus with this beach is compelling.
  2. [326]
    Although it is not necessary to be so, I am satisfied that there is a need for a clubhouse that would be appropriately satisfied by the development on this site.  I am also satisfied that the need for the proposed development on this site constitutes a matter of public interest because an identified section of the public has an interest in seeing that need satisfied by the development in this particular location, rather than another location.
  3. [327]
    As set out earlier in these reasons, Mr Smith gave evidence, and was cross examined, about steps taken by the club to identify a suitable site for its proposed clubhouse. I accept his evidence about the attempts made to identify a suitable site for the clubhouse before deciding on the subject site.
  4. [328]
    Although he was cross examined about other sites for which the proposed development may have been permitted under an applicable code, his evidence was not undermined or challenged in any significant way.
  5. [329]
    I do not accept the appellant’s submissions that there are alternative readily available sites upon which the development could readily be located and where the development is permitted under the applicable codes.  The sites referred to by the appellants did not enjoy the same benefits as the subject site. Most were not proximate to the ocean. They did not have the benefit of co-location with schools who would use and support the club. Some alternative sites suggested no more than hypothetical or speculative.
  6. [330]
    I am satisfied that the community’s interests in general, as opposed to the proponent’s or another individual’s interests, would be well served by the proposed clubhouse in this location. In my view, the provision of the proposed development, taking all things into account, would improve the physical wellbeing of the community[107].
  7. [331]
    Therefore I am satisfied that there is a planning and community need for the proposed development.

Public benefits

  1. [332]
    For reasons explained earlier, including in the club’s lay witness statements and supporting submissions, I am satisfied that there will be significant public benefit to the wider community from approval of the proposed development.

Appropriateness of the use in the EMC Zone

  1. [333]
    “Outdoor sport and recreation (where low impact)” is a potentially consistent use in the EMC zone. The proposed use, Club, is part of the Sport and Recreation Activity Group[108] of uses. In addition, the proposed development has a sport and recreational aspect to it because its primary purpose is to promote an outdoor sport, surfing, and the proposed site would facilitate the conduct of surf training, coaching and competitions immediately offshore.  I am satisfied that the proposed use is appropriate in the zone.

The strong community support for the proposed development;

  1. [334]
    There were over 300 submissions supporting the proposed development. They were not only from members but from a broad cross section of individuals, schools and community organisations.
  2. [335]
    The club has also received in-kind pledges from members of the community (materials, labour and professional help) of approximately $100,000 in value.
  3. [336]
    The support of the two schools who can use the facility is compelling in terms of community support and public interest.
  4. [337]
    I am comfortably satisfied that there is strong community support for the proposed development.  That is a matter that strongly favours approval.

The existence of council support in the commitment to lease and Federal support in the form of funding

  1. [338]
    In 2019 the Federal government approved a grant of $140,000 and the council approved a grant of $40,000 to help build the clubhouse, and has granted the lease.
  2. [339]
    “Any other relevant matter” in s 45(5)(b) excludes a person’s personal circumstances, financial or otherwise. Matters of private economics are irrelevant. Thus, the mere fact that the club has received government funding for the proposed development is not, in my view, a matter that may be taken into account under s 45(5)(b). However the court must have regard to the common material, which includes the documents provided with the development application. Evidence of the funding grant was part of the common material[109] and is arguably relevant to the likelihood of the development being constructed, if approved, and to show that the application is not merely aspirational.  
  3. [340]
    Of the same character is the evidence of council’s preparedness to grant a trustee lease to the club for the proposed development. Council’s preparedness to grant a lease over the proposed site is in no way determinative. But it is consistent with its approval of the development application and it supports an argument that to the extent the proposed development requires other regulatory approvals before it could proceed, they have been, or are likely to be, obtained.
  4. [341]
    Finally on the question of council support, while by no means a decisive factor, the unreserved support for the proposal by the council, as the relevant local authority, is a matter I have taken into account. Although this appeal is a rehearing, in which the co-respondent must establish before the court a case for approval of its proposal, 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, as might have been strong council opposition.  Of course, what counts in the end is the persuasiveness of the council’s case, from the standpoint of assisting the co-respondent to satisfy the onus that it bears.[110]  I have also taken into account the fact that the relevant State referral agency issued a referral response with conditions to be imposed on any approval.

Clearing for bushfire purposes

  1. [342]
    For the reasons explained earlier, I am also satisfied that clearing for bushfire purposes will be limited to minimise any adverse ecological impacts.

Advancing the purpose of the Act

  1. [343]
    The assessment and decision must be performed in a way that advances the purpose of the Act: s 5(1).
  2. [344]
    The purpose of the PA is “to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning, development assessment and related matters that facilitates the achievement of ecological sustainability”: set out in s 3(1).  Ecological sustainability is a balance that integrates the protection of ecological processes and natural systems at local, regional, State, and wider levels; and economic development; and the maintenance of the cultural, economic, physical and social wellbeing of people and communities: s 3(2). 
  3. [345]
    “Maintaining the cultural, economic, physical and social wellbeing of people and communities” includes relevantly, “providing for integrated networks of pleasant and safe public areas for aesthetic enjoyment and cultural, recreational or social interaction”: s 3(3)(c).
  4. [346]
    The expression “advancing the purpose of this Act” is expanded upon in s 5(2) of the Act and includes aims for achieving the balance between preserving the environment and cultural heritage and meeting the demands on the environment of a functioning and expanding diverse community or, in other words, the balance between the interests of the present and future generations. It also includes “avoiding, if practicable, or otherwise minimising the adverse environmental effects of development”.
  5. [347]
    The proposed development, while having some environmental impacts by virtue of vegetation clearing, has been sited to minimise adverse environmental impacts. In my view, the proposed development will advance the purpose of the PA by:
    1. (a)
      continuing to protect ecological processes and natural systems in the reserve;
    2. (b)
      maintaining the physical and social wellbeing of people and communities, including children, and contributing to healthy communities by encouraging outdoor activities in the form of surfing, training and coaching; and
    3. (c)
      providing for a pleasant and safe building to be used by community members, including children, for aesthetic enjoyment and recreational and social interaction.
  6. [348]
    To the extent the proposed development achieves those things and thereby advances the purpose of the PA, those are also relevant matters that favour its approval.

Other relevant matters under s 45(5)(b) PA relied upon to support refusal

  1. [349]
    The submitters rely upon four other relevant matters[111] to support refusal of the application:
    1. (a)
      The community expectations that the proposed development not be located on the subject land, having regard to the provisions of the planning scheme raised by the appellants, including that the proposed development is an inconsistent use in the EMC zone, and that ecologically important areas are to be protected, rehabilitated and enhanced;
    2. (b)
      The absence of planning need for the proposed development to be located on the subject land;
    3. (c)
      The absence of any public interest in locating the proposed development on the subject land given the nature and extent of inconsistencies with the provisions of the planning scheme; and
    4. (d)
      The inability to impose conditions of approval to address non-compliance with the assessment benchmarks.

Reasonable community expectations

  1. [350]
    The appellants contend that the proposed development is inconsistent with reasonable community expectations. They rely upon the evidence of Mr Clegg, which I have already dealt with, as well as statements from local residents.
  2. [351]
    I have considered each of the lay witness statements tendered on behalf of the appellants[112], along with all the properly made submissions made during the public notification process.
  3. [352]
    In addition to issues already dealt with, the appellants’ lay witness evidence raised concerns that the proposed development would: detract from the public nature of the reserve; cause noise, crowding and damage the ecosystem; detract from their property; result in an application for an alcohol licence; and benefit a select few members of the club.
  4. [353]
    I am satisfied that similar views to those identified above are expressed in the properly made submissions. I accept that the views expressed by each of the lay witnesses in their statements, and in the properly made submissions, are honestly and sincerely held.
  5. [354]
    However some of the concerns raised in the submissions did not, in the end, form part of the disputed issues raised for determination in the appeal (for example, traffic and parking, and diminution in property values).
  6. [355]
    The concerns raised are not made out on the evidence that I accept, for the reasons given earlier. In particular, the club does not propose to apply for an alcohol licence and condition 6 of the approval (which was not appealed by the club) prohibits the development being used for any purpose requiring a liquor or gaming licence.  The club’s membership is open, the club’s constitution anticipates the use of the clubhouse by the wider community, the park is already well used, including by the club and the club hosts monthly competitions at the site, pursuant to local law permits issued by the Council. There is extensive community support for the development.  There is a public benefit to be gained by the groups that have a connection with the ocean being able to meet at the proposed clubhouse, and which represent a broad spectrum of backgrounds.
  7. [356]
    It is well accepted that reasonable community expectations are to be derived from the statutory planning controls.[113] Reasonable community expectations that are objectively formed based upon a correct interpretation of the applicable planning scheme would be a relevant matter for the purposes of s 45(5)(b). Conversely, expectations that are subjective or emotionally informed, or which proceed upon an incorrect interpretation of the planning scheme, would not be relevant.
  8. [357]
    I accept that there is a reasonable community expectation that urban development not be located outside the UGMB and that uses other than those described as consistent or potentially consistent would generally not be expected in the EMC zone. 
  9. [358]
    But reasonable community expectations under the planning scheme would include the prospect of some built form within the EMC zone.  It would also include the prospect of an Outdoor sport and recreation use (where low impact activity) in that location. The built form of the proposed development would not be beyond what the community might reasonable expect could be developed in this zone. Indeed, it is potentially more modest than what might reasonably be expected.  In my view, the proposed development would not be contrary to reasonable community expectations based upon the zoning of the land and the scheme provisions that refer to protection, rehabilitation and enhancement of ecologically important areas, for the reasons explained earlier.

Absence of planning need

  1. [359]
    I have dealt with this issue above.

Absence of public interest

  1. [360]
    I have dealt with this issue above.  Approval of the proposal is in the public interest, based upon the benefits that will flow to the club and the wider community, and the proposal’s consistency with the broad policy objectives that promote social inclusion, active and healthy living, and the Sunshine Coast lifestyle.

Inability to impose conditions of approval to address non-compliance

  1. [361]
    The conditions proposed by the experts (and council) to be imposed on the development approval will, in my view, satisfactorily limit and ameliorate to an acceptable degree the environmental and amenity impacts of the proposed development. I do not accept that conditions cannot be imposed to address non-compliance.

Conclusion and orders

  1. [362]
    The proposed use, while not a consistent use in the EMC zone, is acceptable in the EMC zone for the reasons earlier explained.
  2. [363]
    There is no unacceptable town planning consequence that would follow from an approval of the club on this land, notwithstanding the zoning.
  3. [364]
    There are no relevant matters which warrant refusal. There are a number of matters that strongly support approval. The proposed development is needed and would provide a public benefit.  Approval of the development is in the public interest.
  4. [365]
    The need for the proposed development in this particular place constitutes a matter of public interest including because an identified section of the public (club members, and other members of the public who will be able to access and benefit from the facilities, particularly the students of the two adjoining schools) have an interest in seeing that need satisfied by the proposed development in this particular location with its nexus to the Ann Street surf break.
  5. [366]
    Those matters constituting matters of public interest are greater than the opposing public interest in maintaining those parts of the planning scheme with which there is non-compliance.
  6. [367]
    The limited inconsistency or non-compliance with scheme provisions is not determinative and does not warrant refusal of the development, when weighed against the other relevant matters that favour its approval. I find that the balance of the factors favour the approval of the application, despite the non-compliance with certain assessment benchmarks.
  7. [368]
    In all the circumstances of this case and in the proper exercise of the discretion under the PA, I am satisfied that the proposed development should be approved subject to appropriate lawful conditions. They will be the conditions in council’s decision notice but with the amendments proposed by the experts. 
  8. [369]
    The proceeding will be adjourned to allow the parties the opportunity to prepare a judgment and amended conditions of approval reflecting these reasons. In due course, final orders will be made approving the proposed development subject to lawful appropriate conditions.
  9. [370]
    I order that:
    1. (a)
      By 4 pm on 22 January 2021, the respondent is to deliver to the other parties a draft Judgment attaching the conditions of approval; and
    2. (b)
      The appeal is adjourned to 9 am on 29 January 2021 for the purpose of making final orders in the appeal.
    3. (c)
      Liberty to relist the matter on 2 business days’ notice if the parties seek alternate dates.

Footnotes

[1] See Ex 23B, Aerial Photographs with Development Footprint and Ex 10, Joint Expert Reports, tab 6, p 2.

[2] Ex 2 Development Application, p 11. Ex 13 Co-Respondent’s Lay Witness Statements, tab 2, Affidavit of Don Smith and TS 1-55-56.

[3] Ex 2, pp 20-21.

[4] As identified by the parties in Ex 18, the List of Issues in Dispute, and amended in final addresses and written submissions.

[5] Save for limited objections to the expressions of opinion by lay witnesses. Those opinions were not relied upon for the truth of the expression, and I have taken the objections into account in considering the weight to be given to the evidence.

[6] Ex 17 Affidavit of Don Smith pp 22-57, Exhibit DS-1, Constitution of Windansea Boardriders Club Inc.

[7] Ibid.

[8] Ex 2, Development Application, p 200 (subpage 33 of 34).

[9] Ex 5, Submissions.

[10] Ex 10, tab 6, town planning JER, para 3.18, 3.19. Compare the original Site Locality plan at Ex 2 p 74 with the Site Plan – Revised Siting at Ex 16.

[11]  Ex 6; Ex. 10, Tab 6, town planning JER, p. 7, para. 3.18; Ex 4; Ex 7.

[12] Ex 9, Negotiated Decision Notice.

[13] Ibid p 4.

[14]Seabridge Pty Ltd & Anor v Beaudesert Shire Council & Anor [2001] QPELR 191 at [18]; Harris v Scenic Rim Regional Council [2014] QPELR 324 at [244]; 48 Stuart Pty Ltd v Brisbane City Council [2017] QPELR 133 at [19].

[15]PECA s 47.

[16]PECA s 43.

[17]PECA s 45.

[18]Sunshine Coast Planning Scheme 2014 (Version 15) (‘the planning scheme’).

[19]PA ss 59, 45(5).

[20] Explanatory Notes, Planning Bill 2015 (Qld) 53.

[21]PA s 45(5)(a)(ii), Planning Regulation 2017 ss 31(1)(g), 31(2)(a).

[22] [2020] QCA 253 [59], [62], [63] (Henry J, with whom Fraser and Morrison JJA agreed).

[23] [2020] QCA 257 [38]-[51] (Mullins JA, with whom Brown and Wilson JJ agreed) (‘Abeleda’).

[24]Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 [47] (‘K & K’); Bell v Brisbane City Council (2018) 230 LGERA 374, 392 [70] (‘Bell’).

[25]Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 [67].

[26] [2020] QCA 41 (‘King of Gifts’).

[27] Ibid at [37].

[28] [2020] QCA 273 at [79] – [80].

[29]Sunshine Coast Planning Scheme 2014 (Version 15) s 3.1.

[30] Ibid s 3.1(2).

[31] Ibid s 3.1(3).

[32] Ibid note to s 3.1(3).  Pursuant to s 1.3.2(3), notes are part of the planning scheme.

[33] Ibid s 3.1(2).

[34] Ibid note to s 3.1(3).

[35] Ibid s 6.1.

[36] Ibid s 7.1.

[37] Ibid s 8.1.

[38] Ibid s 5.5.5(3)(b).

[39] Ibid s 5.3.3(3)(c).

[40]Bell v Brisbane City Council [2017] QPEC 26 [27].  Whilst that was the subject of challenge in the Court of Appeal, the Court was unpersuaded that the criticism was justified: Bell v Brisbane City Council (2018) 230 LGERA 374, 387 [50].

[41]  Ex 10 Joint Expert Reports, tab 6 p 8 [4.1]. Although no party relied upon the provisions of the SEQRP in the appeal.

[42] Ex 18 List of Issues in Dispute, as amended in final oral and written submissions.

[43] Outline of Argument on behalf of the Appellants [3.9].

[44] Table SC1.2.2.

[45] Macquarie Dictionary (3rd Edition, 2005) ‘urban’.

[46] Ex 14 Schedule 1 Definitions.

[47]  Ex 10 Joint Expert Reports, tab 6, p 11 [4.10] per Schomburgk.

[48]  Ibid p 30, [5.44(s)].

[49]  Ibid p 34[5.65].

[50]  Ibid p 12[4.14].

[51] Sections 3.3.1(a), (c), and (d), 3.3.2.1(a)(iv), 3.3.3.1(d)(v), 3.3.4.1(a)(vii) and 3.3.9.1(c).

[52] Sections 3.3.1(b), (c), (d), 3.3.2.1(a)(i), 3.3.3.1(b), 3.3.3.1(d)(i).

[53] Ex 10 tab 6, [4.9].

[54] Ex 18.

[55] Section 3.7 (3) and (4).

[56] The appellants abandoned reliance on 3.8.2.1(f) and (g) in their written submissions, para 2.1.

[57] Ex 15(a) p 198; Ex 15(c).

[58]  T3-54, L15 to 27; T3-96, L3 to 27.

[59] Although this provision refers to environmental facility, the defined use is environment facility.

[60]  Exhibit 14 p 151.

[61]  Section SC 1.1.2 Defined activity groups.

[62] Figure SC1.1.2E.

[63]  See earlier references and T1-55, L46 to T1-56, L2; T1-56, L40 to T1-57, L32; see also Mr Hindley’s evidence, Ex 13, Tab 7.

[64]  T4-13, L25 to 27 and L34 to 38.

[65]  For reasons discussed below, in respect of each issue.

[66]  Ex 9.

[67] Ex 23(a) is a zoomed in extract of the mapping and Ex 23(b) which contains the building footprint overlaid on the mapping. See also Figure 2 of the Bushfire Joint Expert Report, Ex 10, tab 4.

[68] See Ex 23(b) and scale.

[69] Ex 10 tab 4.

[70] Ex 10 tab 2.

[71] Ex 26.

[72] T2-11, L33 to 35 and L44 to 47, and T2-14, L5-7 (Delaney).

[73] Ex 10, tab 4, p 5, [10].

[74] Ex 10 tab 4, p 5, [12].

[75] Ex 26 Bushfire Resilient Communities SPP Technical Guideline, p 5, ss. 5.1 to 5.3.

[76]  Ex 14A Bushfire hazard overlay planning scheme policy, p SC6-47. See also Mr Friend’s evidence concerning the hazard scores for steps 1, 2 and 3, calculated at step 4, in accordance with Table SC6.7A.4 to provide an overall score of “5”, at T2-66, L9 to T2-67, L30.

[77]  Cross-examination of Friend, 3/11/2020.

[78]   Discussed earlier in the section on whether the development is appropriately located.

[79]   Sections 8.2.3.2(1)(a) and (b).

[80]  Section 8.2.3.2(2)(a), (b) and (d), overall outcomes.

[81]  PO1.

[82]  PO2.

[83]  PO3.

[84]  PO8.

[85]  PO9.

[86]  Ex 15(a) pages 201 and 202; Ex 23(b) is an enlarged extract with the development footprint overlaid on the mapping.

[87]  Section 7.2.6.3.

[88]  Table 7.2.6.4.1, PO3.

[89]  Ex 10 tab 3, plate 10.

[90] Harris v Scenic Rim Regional Council [2014] QPELR 324 [229], [233], [237] – [238] (‘Harris’) and the authorities referred to therein.

[91]  Ibid [236].

[92]  See also the respondent’s written submissions from [75] to [85] and the co-respondent’s written submissions from [86] to [103].

[93]  Ex 18 List of Issues in Dispute [3(c)(ii)].

[94] Respondent’s Particularised List of Matters Relied Upon to Support an Approval dated 17 June 2020 (“Respondent’s Approval Matters”) [1].

[95] Respondent’s Approval Matters [2].

[96] Respondent’s Approval Matters [3] and [4].

[97] Respondent’s Approval Matters [6].

[98] Respondent’s Approval Matters [7] and the Co-Respondent’s Particularised List of Matters. Relied Upon to Support an Approval dated 18 June 2020 [9].

[99]  Respondent’s Approval Matters [8].

[100]  at 54.

[101]  [2003] QPELR 414, 417-20 [20]-[30].

[102]  Ibid 418 [21].

[103]  [2003] QPELR 414, 417-20 [20]-[30].

[104] Abeleda at [83].

[105]  Ibid [51].

[106]  For example, Ex 18 List of Disputed Issues [3(c)(iii)(B)]; Outline of Argument on behalf of the Appellants at [3.11(d)]; [4.56], [4.57], [5.22(a)].

[107]  Cut Price Stores, Retailers v Caboolture Shire Council [1984] QPLR 126 at [131]; Prime Group Properties Ltd v Caloundra City Council [1995] QPLR 147 at [149].

[108]  Figure SC1.1.2E, planning scheme.

[109]  Ex 2.

[110] Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661 [44]; [2013] QPEC 29 (Robin QC DCJ), considered in Lipoma Pty Ltd & Anor v Redland City Council & Anor (28 August 2020) [2020] QCA180 [41], [119] (Morrison and McMurdo JJA and Ryan J).  See also Friend v Brisbane City Council [2014] QPELR 24 at 50 and Cowen & Anor v Brisbane City Council & Anor [2015] QPEC 50 at [85], [86].

[111]  Ex 18 List of Issues in Dispute [3(c)(iii)].

[112]  Taking into account the other parties’ objections in those lay witness statements to expressions of opinion and to matters of parking and noise on the basis of relevance (those matters no longer being issues in dispute in the appeal).

[113] K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540 at [84].

Close

Editorial Notes

  • Published Case Name:

    Sandstrom & Ors v Sunshine Coast Regional Council & Windansea Boardriders Club

  • Shortened Case Name:

    Sandstrom v Sunshine Coast Regional Council & Windansea Boardriders Club

  • MNC:

    [2020] QPEC 62

  • Court:

    QPEC

  • Judge(s):

    Fantin DCJ

  • Date:

    18 Dec 2020

Appeal Status

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

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