Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2021
  4. I.B. Town Planning v Sunshine Coast Regional Council - [2021] QPEC 36

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

I.B. Town Planning v Sunshine Coast Regional Council[2021] QPEC 36

I.B. Town Planning v Sunshine Coast Regional Council[2021] QPEC 36

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36

PARTIES:

I.B. TOWN PLANNING AS AGENT FOR DOONAN PROPERTY PTY LTD (ACN 159 134 317) AS TRUSTEE UNDER INSTRUMENT 714599048

(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO/S:

1921 of 2019

DIVISION:

Planning and Environment Court

PROCEEDING:

Applicant appeal against refusal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

16 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9 and 10 September 2020 with further material delivered 4 November 2020

JUDGE:

Williamson QC DCJ

ORDER:

  1. By 4:00pm on 16 August 2021, the respondent provide a draft suite of conditions to the appellant.
  2. By 4:00pm on 30 August 2021, the appellant notify the respondent, in writing, of its position with respect to the draft suite of conditions.
  3. The appeal be listed for review at 9:00am on 3 September 2021 before Judge Williamson QC.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse a development application to start a new use of land for the purposes of a Hotel – where extant development approval for a restaurant ­– where development reuses existing built form – whether the new use is appropriate and complies with the respondent’s planning scheme – whether the development application should be refused for flood safety reasons – whether there is a town planning and community need for the development – whether the development application should be approved or refused in the exercise of the planning discretion.

LEGISLATION:

Planning Act 2016, ss 45, 59 and 60

Planning Regulation 2017, s 31

Planning & Environment Court Act 2016, ss 43 and 45

CASES:

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

Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347

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

Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157

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

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Davjan Pty Ltd v The Council of the Shire of Noosa [1981] QPLR 69

Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209

Esteedog Pty Ltd v Council of the Shire of Maroochy & Ors [1991] QPLR 7

GFW Gelatine International Limited v Beaudesert Shire Council & Ors [1993] QPLR 342

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 21

Glenella Estates Pty Ltd v Mackay Regional Council (2010) 180 LGERA 226

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

Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153

Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313

Harris v Scenic Rim Regional Council (2014) 201 LGERA 12

Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350

Isgro v Gold Coast City Council [2003] QPELR 414

Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979) 140 CLR 675

Lane v Gatton Shire Council & Anor [1988] QPLR 49

Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370

Luke v Maroochy Shire Council & Anor [2003] QPELR 447

Moncrieff v Townsville City Council & Anor (No.2) [2012] QPELR 185

Navara Back Right Wheel Pty Ltd v Logan City Council & Ors [2020] QPELR 899

Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 146

Overton & Anor v Redcliffe City Council & Anor [2000] QPELR 250

Rejfek & Anor v McElroy & Anor (1965) 112 CLR 517

Seabridge Pty Ltd t/as Clutha Creek Sands & Anor v Council of the Shire of Beaudesert & Anor [2001] QPELR 191

Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council & Anor [2020] QPEC 38

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95

Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51

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

COUNSEL:

Mr M Batty and Ms K Buckley for the appellant

Mr C Hughes QC and Ms H Stephanos for the respondent

SOLICITORS:

Connor O'Meara for the appellant

Sunshine Coast Regional Council legal services division for the respondent

Table of Contents

Introduction

The land and surrounding locality

The proposed development

The disputed issues

The statutory assessment and decision making framework

Land use

Flooding risk

Need

Relevant matters

Exercise of the planning discretion

Conclusion

Introduction

  1. [1]
    This appeal is against a refusal by Council of an application for approval to redevelop a little over 2 hectares[1] of land included in the Rural residential zone[2] at Doonan. The redevelopment proposed involves the renovation and extension of an existing licensed restaurant and caretaker’s residence to create a hotel, and associated bottle shop.[3]
  2. [2]
    Council resists the appeal. It contends the redevelopment is the antithesis of good planning as it involves an inappropriate use[4] of flood affected land in the Rural residential zone.[5]
  3. [3]
    The appeal is a hearing anew.[6]
  4. [4]
    It is for the appellant (Doonan property) to establish the appeal should be upheld.[7]

The land and surrounding locality

  1. [5]
    The land the subject of the development application is located at the corner of Beddington Road and Eumundi-Noosa Road, Doonan (the land).[8] It is regular in shape, with access available to and from the Beddington Road frontage. For the purposes of Council’s planning scheme, Sunshine Coast Planning Scheme 2014 (version 15)[9], the land is included in the Rural residential zone and within the boundaries of the Rural Residential Growth Management Boundary.[10]
  2. [6]
    The land is improved with a German inspired three storey building[11] and an at-grade concrete carpark that accommodates 28 vehicles.[12] Photographic evidence, appreciated with the benefit of a site inspection with counsel, reveals the built form, which is sited towards the south-eastern corner of the land, appears tired; the existing building is in need of rejuvenation. The same photographic evidence also demonstrates that the character of the existing built form is commercial in nature, albeit modest in scale.
  3. [7]
    A town planning consent permit granted by the Maroochy Shire Council in February 1998[13] authorises the use of the German inspired structure and carpark for the purposes of a ‘Catering shop (restaurant) and caretaker’s residence’. Conditions 1(c) and 2(a) of that approval limit the maximum seating capacity of the restaurant to 40 persons. 
  4. [8]
    A popular licenced cafe, Sunspace café, operated the restaurant.[14] It closed in 2018,[15] coinciding with a decision to make the development application the subject of this appeal.[16] A new operator has not been secured. This does not mean the approved use has been, or will be, abandoned in a planning sense.[17] Unsurprisingly, the landowners have elected to await the outcome of the development application (and this appeal) before taking any further steps with the land. The commercial reasons for this were explained by Mr Comiskey, who was authorised to give evidence on behalf of Doonan property.[18]
  5. [9]
    The existing building and carpark sit within a cleared area on the land. This area is generally level, and centrally located relative to the Beddington Road frontage of the land.[19] As is confirmed by aerial photography, the balance of the land is vegetated. The vegetation lines the edge of a water course, Doonan Creek. The creek is an ephemeral stream. The creek runs parallel to the Eumundi-Noosa Road frontage of the land and then exits the property in the south-western corner. After entering the adjoining property to the west, the creek heads north and re-enters the land for a short distance in its north-western corner.[20]
  6. [10]
    The land is flood affected. It is impacted, on average, every 1 to 2 years by events occurring in Doonan Creek. The primary reason for this is attributable to circumstances beyond the landowner’s control. Existing culverts under Eumundi-Noosa Road that convey stormwater flow are inadequate. They cause water to back-up onto undeveloped parts of the land.[21] 
  7. [11]
    No ‘over floor’ flooding has been observed on the land by Mr Comiskey. This is in circumstances where he has been a director of various companies with an interest in the land dating back to 2007.[22]  This is not without significance given floods have occurred in the local area during this period, including an event in 2012. This event is recorded in a flood certificate given by Council for the land.[23] That certificate identifies applicable flood levels adopted for, inter alia, planning purposes.
  8. [12]
    Whilst frequent, historical flood events have been, and are predicted to be, low in velocity[24] and shallow in depth. By way of illustration,[25] the ground floor of the restaurant is at a level of RL 19.56m AHD. This can be compared to the maximum recorded flood level adjacent to the site of RL 19.56m AHD.[26] It can also be compared to the flood levels modelled for the 2% AEP[27], 1% AEP[28] and Probable maximum flood (PMF).
  9. [13]
    The 2% AEP (1 in 50 year ARI) is equivalent to RL 19.57m AHD. This flood level is 0.01m above the existing ground floor level.
  10. [14]
    The 1% AEP (1 in 100 year ARI) is equivalent to RL 19.66m AHD. This flood level is 0.10m above the existing ground floor level.
  11. [15]
    The PMF is equivalent to RL 20.35m AHD. This flood level is 0.79m above the existing ground floor level.
  12. [16]
    With the 2% AEP and 1% AEP flood events in mind, Mr Collins, who is an experienced flooding engineer, characterised the flood hazard level on the land for adults and children as ‘low’.[29] He also pointed out that flood levels do not vary significantly in height from the 1 in 1-year flood event up to the PMF. The extent of variation is approximately 1 metre. This limited variation in height is due to the undersized culverts referred to above and the nature of the flood plain; the land forms part of a floodplain that is wide and flat.[30]
  13. [17]
    That the land is flood affected is reflected in the planning scheme. In particular, it is included in the Flooding and Inundation Area on the Flooding Hazard Overlay Map.[31] This mapping, read together with the tables of assessment in Part 5 of the planning scheme, triggers the need for particular types of assessable development on the land to be examined against the Flood hazard overlay code (the Overlay code).[32]
  14. [18]
    As I have already observed, the land has frontage to Eumundi-Noosa Road. This is a major state controlled arterial road[33] connecting the township of Eumundi to Noosaville. It has a posted speed limit of 80 kilometres per hour[34] and carries in the order of 13,487 vehicles per day[35]. Aerial photography[36] confirms the road, in the vicinity of the land, is constructed as a single lane carriage way. A dedicated right turn lane is provided at the intersection with Beddington Road, which is a Council controlled road. Like Eumundi-Noosa Road, it is a single lane carriageway. It provides a north-south connection to Tinbeerwah through an established settlement of rural residential development.
  15. [19]
    The strategic importance of Eumundi-Noosa Road is recognised in the planning scheme. Strategic framework mapping designates the road: (1) a ‘Major Transport Element’, sleeved either side by areas designated ‘Rural Residential Setting’;[37] and (2) a ‘Scenic route’.[38] The road is also designated a Major Road Corridor by the Regional Infrastructure Overlay. An associated planning buffer covers approximately 75% of the land.[39]
  16. [20]
    The code relevant to the infrastructure overlay, sensibly, recognises that a road corridor, such as Eumundi-Noosa Road, has the potential to adversely impact sensitive uses on adjoining land, and the wellbeing of its occupants.[40]
  17. [21]
    In character terms, the land is part of an area that is contained within the Rural Residential Growth Management Boundary identified in the planning scheme. The aerial extent of this area is large. It is divided into two parts by Eumundi-Noosa Road. Within the two distinct parts of the large area, there are established rural residential settlements where single detached houses on large lots predominate. This setting is fairly described as that intended in the Rural residential zone, namely ‘low density and semi-rural in nature’.[41]
  18. [22]
    Whilst the setting of the large area to which I have referred is that of a rural residential settlement, this is a broad description. It is also appropriate to adopt a finer grained view of character in particular locations. This is because, as even the planning scheme recognises, there are particular ‘places’ that have their own identifiable and discrete character.[42] As the submissions made to Council during the notification process correctly point out, the land is located in such a place. The aerial extent of the location I regard as the ‘place’ in this context is depicted, for all intents and purposes, in exhibit 8.002.
  19. [23]
    Having regard to exhibit 8.002, and the town planning joint report,[43] rural residential development comprising single detached houses on large lots can be seen to the north, north-west and west of the land. The same is true for land south of Eumundi-Noosa Road, and to the west of the intersection it shares with Beddington Road. Land to the north-east and south-east presents a different character.
  20. [24]
    To the north-east of the land on Beddington Road, there are two agricultural uses, namely a turf farm and hydroponic tomato grower.[44] It is difficult to describe them as small scale. The built form associated with the tomato farm comprises a number of large agricultural sheds. They are of a commercial scale. There is limited built form associated with the turf farm. It presents as a flat and sparsely vegetated expanse of land.[45]
  1. [25]
    To the south-east of the land on Eumundi-Noosa Road, there are non-residential land uses included in the Rural residential zone. Mr Buchanan, Doonan property’s town planning expert, helpfully identified these uses at paragraph 26 of his joint report. They include[46]: (1) a garden centre; (2) a landscape supplies yard;[47] (3) a licensed café; (4) a fruit and vegetable and speciality food shop; (5) a solicitor’s office; (6) a real estate office; and (7) custom timber and furniture joinery (low impact industry). Additional non-residential uses are located on Gray’s road further to the east. They comprise a wholesale plant nursery and a luxury spa/health facility.
  2. [26]
    Photographs of the built form associated with the non-residential uses on Eumundi-Noosa Road are contained in exhibit 8.002. I am mindful of Council’s criticism of those photographs,[48] but even allowing for such criticisms, I accept they make good this point: the existing non-residential built form is neither rural, semi-rural or rural residential, in nature. The photographs also reveal that the scale of this built form ranges in size.
  3. [27]
    When seen in the light of the above, the character of the ‘place’, in and around the land, is not rural residential simpliciter. To suggest otherwise would ascribe a predominant character to the place it does not possess, or, at best, describe only part of the existing character. The character of the place is more fairly described as a mix of rural, rural residential and non-residential uses. The scale and intensity of those uses is also mixed.
  4. [28]
    The mixed character of the place is also influenced by Eumundi-Noosa Road. It is a busy road that introduces a level of activity to the place beyond that attributable to rural residential development. That it introduces a significant level of activity through the place is plain enough once it is appreciated the road carries more than 13,000 vehicles per day, functioning as a major road corridor connecting Eumundi and Noosaville. This function is recognised in the planning scheme.
  5. [29]
    Council sought to downplay the contribution non-residential uses make to the character of the place. For instance, at paragraph 21 of its written submissions it was said ‘The surrounding locality is dominated by rural residential allotments with some rural uses, and some low key non-residential land uses’. This submission wrongly minimises, if not trivialises, the contribution non-residential development makes to the character of the place in, and around, the land.
  1. [30]
    The land is not included in a designated Activity centre or Centre zone. For the purposes of the planning scheme, Eumundi is a Tourism Focus Area[49] and the nearest Activity centre. It is located 8 kilometres to the west of the land. In the Activity centre network, Eumundi is designated a ‘Local (full service) activity centre’.[50] There are two existing commercial hotels operating within this centre.[51] I was not directed to any submission made on behalf of the operators/owners of these hotels objecting to the development application.

The proposed development

  1. [31]
    The proposed development involves converting an existing restaurant to a Hotel.
  2. [32]
    The conversion proposed is depicted in plans of development. The plans reveal:
    1. (a)
      the existing German inspired building will be re-used and internally adapted to provide for a modest bar and dining area, commercial kitchen, patron amenities, a function room, store and back of house facilities and offices;[52]
    2. (b)
      a 120m2 freestanding Cellar door[53] will be constructed to the north of the German inspired building in a complementary modern style, and at a level that achieves flood immunity in the PMF; [54]
    3. (c)
      a landscaped outdoor use area is proposed between the existing building and the Cellar door (1,465m2), comprising a dining area, BBQ pit and service area, children’s play area and a vegetable and herb garden; [55]
    4. (d)
      the existing at-grade carparking area is to be expanded parallel to the northern boundary, with an increase in parking spaces from 28 to 87.[56]
  3. [33]
    The Cellar door will not include a ‘drive-thru’ facility.
  4. [34]
    The plans of development provide an incomplete picture of the proposed development. The plans are supplemented by a list of operational constraints that would be imposed by way of conditions. The constraints can be identified as follows:
    1. (a)
      the number of patrons and staff on site at any time will be limited to 225 people, and managed in accordance with a draft Patron numbers management plan;[57]
    2. (b)
      the proposed hours of operation will be limited to 10:00am to 10:00pm Sunday to Thursday and 10:00am to 12:00am Friday to Saturday;[58]
    3. (c)
      the use will be operated in accordance with a Flood Evacuation Management Plan (FEMP), which identifies triggers and on-site management actions to ensure the safety of patrons and staff during particular flood events;[59]
    4. (d)
      the joint recommendations set out in section 4 of the noise joint expert report in relation to amplified entertainment (internal and external noise), patron numbers and a prohibition on concerts;[60] and
    5. (e)
      a 1.8m high noise barrier adjacent to the western end of the carparking area.[61]
  5. [35]
    Having regard to Mr Collins’ evidence, the proposed development seeks to respond to known flooding constraints by adopting passive and active measures.[62] The passive measures relate to building form and layout. For example, some, but not all floor levels are located above the predicted elevation of major, and extreme, flood events. The active measures include a limit on patron numbers, the establishment of an FEMP and the provision of an on-site water level monitor and flood warning system. These active measures can be referred to as ‘adaptive management’. The adoption of such an approach is a legitimate town planning response to deal with flooding risk and uncertainty as to potential impacts. [63] 
  6. [36]
    It was fairly recognised by Mr Collins that the FEMP is a critical document for the proposed development. In combination with a limit on the site population and the provision of an on-site warning system, it is the mechanism by which patrons and staff will be protected during particular flood events. The plan is founded on the premise that two triggers will be established; one associated with weather forecasts; the second associated with Doonan creek water levels. Once specified triggers are reached, prescribed actions are to be taken. The prescribed triggers and actions are set out at paragraph 33 of the written submissions prepared on behalf of Doonan property. They are in the following terms (footnotes omitted):

“The triggers for the site are grouped into two (2) categories:

(a) Weather forecast triggers:

  1. (i)
    before opening for the day: either a BOM daily forecast of > 50mm with “heavy falls” or a 50% chance of rainfall between 20mm to 50mm or more in three (3) hours.  In the event of either of these triggers, the required actions are to close the site and contact patrons advising of that closure;
  2. (ii)
    if the site is already open: a MetEye forecast of 50% chance of rainfall between 20mm to 50mm or more in 3 hours.  In the event of this trigger, the required actions are to ensure no one is outside, contact patrons with upcoming bookings advising of the intended closure and advise existing patrons that the Eumundi-Noosa Road/Beddington Road could be flooded and closed; and
  3. (iii)
    at all times: a BOM severe weather warning alert for heavy rainfall or at site weather indicators (such as dark clouds and rainfalls). In the event of this trigger, on-site management are to check the manual flood gauge and then determine if an Early Water Level Trigger is required (see below);

(b) Doonan Creek Water Level Triggers:

  1. (i)
    Water Level Trigger WL1 - RL 18.30m at Site Flood Warning System – this will trigger through a site flood warning system which alerts the on-site manager or employees. Once this occurs, the on-site manager or employees observe water levels at or near the Trigger Level 1(18.30m AHD) via the flood gauge or flooding occurs at Beddington Road and/or Eumundi-Noosa Road.  In the event of this trigger, all patrons are advised they are able to leave early if the car park is not inundated and future patrons are contacted notifying of closure;
  2. (ii)
    Water Level Trigger WL2 - RL 18.7m at Site Flood Warning System – this will trigger where the site flood warning system alerts the on-site manager or employees.  Once this occurs the on-site manager or employees observe water levels at or near the Trigger Level 2 (18.7m AHD) via the flood gauge, or flooding occurs at the intersection with Eumundi-Noosa Road, the car park or Beddington Road North.  In the event of this trigger, patrons are advised to shelter in place and staff are to close the boom gate to the car park.” (emphasis added)
  1. [37]
    The triggers prescribed in the FEMP will require the Hotel, in specific circumstances, to be closed. This can occur in anticipation of unfavourable weather, or alternatively, if trading has commenced, the weather situation is monitored and a decision is made to restrict access and egress for the protection of patrons and staff. In the former circumstance, the risk associated with flooding to patrons is effectively reduced to nil. In the latter circumstance, a decision needs to be made about when to restrict patrons from entering or leaving the land. Given the safest option is for staff and patrons to shelter-in-place during the course of flooding events,[64] consistent with the evidence of Mr Collins and Mr Molino, it is my view the FEMP should be amended to put beyond doubt that a lockable boom gate and fence is required to restrict access to and from the land (during flood events). This measure is to preclude, as far as is practicable, patrons leaving the land when it is unsafe to do so. Consequently, the triggers set out above need to be amended. The amendments should include a requirement that the boom gate is closed when the alert W1 is triggered (RL 18.30m AHD). This will address a matter raised by Mr Molino, Council’s flooding expert. He was concerned that patrons would seek to leave the site and enter flood waters on the road despite advice to the contrary. Whilst he was concerned there may be non-compliance with the requirement to close the boom gate,[65] Mr Molino conceded this approach would safely prevent patrons from entering unsafe parts of an evacuation route.[66]
  2. [38]
    In support of approval, Doonan property placed considerable emphasis in its case on how the Hotel would differentiate itself from a typical hotel offer. In this regard, reliance was placed upon the evidence of Mr Comiskey, who, the evidence establishes, is a very experienced hotelier.[67] He said the facility was intended to target locals and tourists[68] and is likely to be ‘perceived more as a restaurant with a bar than a typical hotel that serves food’.[69]
  3. [39]
    I accept the point made by Mr Comiskey. It is a legitimate one in light of four matters evident from an examination of the proposed plans of development, namely: (1) the scale of the Hotel, overall, is modest, and limited to 225 persons on site at any one time;[70] (2) the Hotel makes no provision for a sports bar, gaming machines, nightclub, live band room or accommodation;[71] (3) as Mr Comiskey pointed out, the bar depicted in the plans is 8 metres in length, limiting its capacity to accommodate only a small number of patrons;[72] and (4) the area provided on the plans for the bar is comparatively small relative to the area provided elsewhere for kitchen facilities and indoor/outdoor dining areas.
  1. [40]
    In addition to the above, Mr Comiskey explained that the proposal, if approved, was intended to be a family orientated Hotel offering a ‘paddock-to-plate’ concept. At paragraph 25(a) of his statement, Mr Comiskey said:

“…it will be a family orientated venue, based on a “paddock to plate” concept. The Farm at Byron Bay has provided inspiration for the type of concept sought to be achieved at [the proposed hotel]. The operators wish to provide a venue where parents can bring their children for a meal. An outdoor area will provide a space for children to run around and play. Dining will be provided indoors and outdoors, which would allow parents to be close to their children while they are playing in the outdoor areas;”

  1. [41]
    For the reasons given above, the form of the proposed Hotel follows the family orientated function described by Mr Comiskey. That is, the form of the development will facilitate indoor and outdoor dining proximate to play areas for children. Having regard to the plans of development, the land, and locality generally, I am satisfied this will provide an attractive amenity for patrons, particularly those who form part of the ‘family population’ of the trade area agreed by the economists.[73]
  2. [42]
    The ‘paddock-to-plate’ concept involves the proposed Hotel supporting local growers and promoting good food through the utilisation of environmentally sustainable ingredients from the local area.[74] For example, Mr Comiskey said the Hotel would seek to support and partner with a wide variety of local food, craft beer and wine producers to showcase local products. I accept the ‘paddock-to-plate’ concept is relevant to an examination of the development application as it explains how the proposed Hotel would be operated by Doonan property, or its related commercial entities.
  3. [43]
    The weight to be given to this concept is, however, a different point; in my view, it needs to be approached with some circumspection. From a land use perspective, the concept, whilst laudable, cannot be conditioned as part of an approval. A successor in title who has the benefit of an approval, if granted, could not be compelled to provide this offer to the public. It is for this reason that an examination of the proposed development should place greater emphasis, and weight, upon the matters at paragraph [41], which relate to matters of form and layout that can be secured by way of conditions binding successors in title.
  1. [44]
    The development application seeking approval for the Hotel is impact assessable. An application of this kind must be publicly notified. Those members of the public electing to make a properly made submission accrue an appeal right to this Court against the decision of the assessment manager. Council, as assessment manager, received 142 properly made submissions.[75] A review of the submissions reveals, unusually, that support for the proposal is overwhelming. I could identify only 5 submissions that opposed the development, none of which appear to have been made on behalf of the owners/operators of the existing hotels in Eumundi.[76] The same point can be made in relation to the owners/operators of other existing facilities considered by the economists, the locations of which are marked on Maps 2, 3, 4 and 5 of their joint report.
  2. [45]
    The submissions made in support of the proposed development raise a number of common points, namely that the proposed development: (1) would provide a conveniently located facility that was needed in the local area; (2) would appropriately re-use and re-purpose an existing tired restaurant; and (3) be an appropriate use in an area containing non-rural uses. These matters were repeated, in more detail, in the lay witness statements tendered by Doonan property during the trial.[77]
  3. [46]
    The submissions opposing the proposed development raised a number of common points, namely the proposed development: (1) is contrary to the zoning of the land; (2) would cause unacceptable impacts on amenity by reason of noise and anti-social behaviour; and (3) would exacerbate existing traffic issues. In this appeal, Council did not contend item (3) is a reason for refusal. Item (1), and item (2) to a lesser degree, are relied upon by Council as reasons for refusal.

The disputed issues

  1. [47]
    In accordance with the usual practice of the Court, an agreed list of issues was tendered by the parties. That document was updated during the hearing to reflect the evidence, and for Council to identify the ‘focal’ and ‘contextual’ provisions of the planning scheme in issue. The final agreed list identifies several topics for determination, which can be reduced to the following questions:
  1. Whether the proposed development is an unacceptable use of the land when assessed against the planning scheme?[78] (‘Land use’)
  2. Whether the proposed development would result in unacceptable risks from flooding when assessed against the planning scheme?[79] (‘Flooding risk’)
  3. Whether there is an economic, community or planning need for the proposed development?[80] (‘Need’)
  4. Whether there are matters, either individually or collectively, that support an approval of the proposed development?[81] (‘Relevant matters’)
  5. Whether the application should be approved or refused in the exercise of the planning discretion? (‘Exercise of the planning discretion’)
  1. [48]
    Each of the above questions are to be determined by reference to the applicable statutory assessment and decision making framework.

The statutory assessment and decision making framework

  1. [49]
    The statutory assessment and decision making framework for this appeal is prescribed by the Planning Act 2016. This Act requires, inter alia, that the development application be assessed in accordance with s 45, and decided in accordance with ss 59(3) and 60.
  2. [50]
    The statutory framework is to be approached consistent with four recent Court of Appeal decisions, namely Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, Wilhelm v Logan City Council & Anor [2020] QCA 273 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95. Taken collectively, these cases confirm much of what was said in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793. The parties argued the appeal before me on the footing that Ashvan was correctly decided.[82]
  3. [51]
    With respect to the Court of appeal decisions, I note:
    1. (a)
      YQ Property confirms that the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad evaluative judgment’;[83] and
    2. (b)
      Abeleda confirms, inter alia, that: (1) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the Act admits of more flexibility to approve an application in the face of non-compliance with a planning scheme; and (2) the exercise of the discretion under s 60(3) of the Act is subject to three requirements, including that it be based upon the assessment carried out under s 45.[84]
  4. [52]
    The clear words of s 45(5)(a)(i) of the Act mandate that Doonan property’s development application is to be assessed against the applicable assessment benchmarks. The primary assessment benchmark for this appeal is the planning scheme. Relevant planning scheme provisions will be considered in the context of each disputed issue.
  5. [53]
    I will now turn to consider the disputed issues.

Land use

  1. [54]
    The development application seeks approval to start a new use of the land, namely a Hotel. This is defined in the planning scheme as:[85]

Column 1

Use

Column 2

Definition

Column 3

Examples include

Column 4

Does not include the following examples

Hotel

Premises used primarily to sell liquor for consumption.

 

The use may include short-term accommodation, dining and entertainment activities and facilities.

Pub, tavern

Nightclub

entertainment facility

  1. [55]
    The planning scheme clusters defined uses into defined activity groups. A Hotel is included in the Business activity group.[86] Figure SC1.1.2B clusters this use with a range of uses within a subcategory of ‘Entertainment/catering business uses’.[87] A ‘Food and drink outlet’ is a defined use in the same subcategory. The planning scheme definition for this use, which fairly characterises the approved use of the land, is as follows:

Column 1

Use

Column 2

Definition

Column 3

Examples include

Column 4

Does not include the following examples

Food and drink outlet

Premises used for preparation and sale of food and drink to the public for consumption on or off the site. The use may include the ancillary sale of liquor for consumption on site.

 

Bistro, café, coffee shop, drive-through facility, kiosk, milk bar, restaurant, snack bar, take-away, tea room

Bar, club, hotel, shop, theatre, nightclub entertainment facility

  1. [56]
    Council contends the proposed Hotel involves an inappropriate use of land in a rural residential locality. In support of this contention, it points to three aspects of the planning scheme, namely provisions with respect to:
    1. (a)
      the zoning of the land and the nature of development anticipated in that zone;[88]
    2. (b)
      the Sunshine Coast Activity centre network;[89] and
    3. (c)
      local growth management boundaries.[90]
  2. [57]
    It is necessary to discuss these aspects of the planning scheme in some detail.
  3. [58]
    It has already been observed that the land is included in the Rural residential zone. Assessable development in that zone is assessed against the zone code. Section 6.2.20.2(1) of the planning scheme articulates the purpose of the zone code as follows:[91]

“The purpose of the Rural residential zone code is to ensure that development is low density and semi-rural in nature, and rural activities are limited to small-scale activities that do not impact on the rural residential amenity of the zone.”

  1. [59]
    Section 6.2.20.2(2) of the planning scheme provides the purpose of the Rural residential zone code will be achieved through a number of overall outcomes, including subsections (2)(a), (c) and (l), which are relied upon by Council in this appeal.
  2. [60]
    Overall outcome (2)(a) states:

“development provides for low density residential activities, in the form of dwelling houses on relatively large lots within a semi-rural setting;”

  1. [61]
    There is a recognisable relationship between the purpose of the code and overall outcome (2)(a). Both anticipate residential development in the zone. That development is to be ‘low density’, and within a ‘semi-rural setting’. There can be little doubt the proposed development does not seek approval for low density residential development.
  2. [62]
    Overall outcome 2(c) seeks to limit the range of non-residential uses in the Rural residential zone. The provision states:

“non-residential uses are limited to small scale and low intensity rural activities that are compatible with the prevailing rural residential character and amenity of the zone;”

  1. [63]
    As overall outcome (2)(c) makes clear, the type of ‘rural activities’ anticipated in the zone are qualified in two respects, namely: (1) they are to be small scale and low intensity; and (2) they are to be compatible with the prevailing character and amenity of the zone. The term ‘rural activities’ is not defined, however Table 6.2.20.2.1 in the same code is of assistance. It identifies three ‘Rural activities’, in the Rural activity group,[92] as consistent, or potentially consistent, uses in the zone. They are Animal husbandry,[93] Cropping and Roadside stall.
  2. [64]
    The proposed development is not a Rural activity, let alone one of the uses regarded as consistent, or potentially consistent, in the zone. Consequently, the proposed development does not comply with overall outcome 2(c).
  3. [65]
    The purpose, overall outcome 2(c) and 2(l) of the Rural residential zone code are complementary. The purpose and overall outcome 2(c) seek to limit non-residential uses in the zone to rural activities. Save for one difference to which I will refer shortly, overall outcome 2(l) is consistent with this policy. In concert with Table 6.2.20.2.1, the overall outcome identifies the consistent, or potentially consistent, uses in the zone. The significance of such a designation is confirmed by a ‘Note’ preceding the table. The note, which forms part of the planning scheme,[94] states:[95]

“Note-a use not listed in Table 6.2.20.2.1 is an inconsistent use and is not intended to occur in the Rural residential zone.”

  1. [66]
    The development application seeks approval for a use that is not included in Table 6.2.20.2.1. It is, by reason of the above note, expressly recognised as an inconsistent use that is not intended in the Rural residential zone. This constitutes a non-compliance with the planning scheme.
  2. [67]
    There is an identifiable inconsistency between the purpose and overall outcome 2(c) of the zone code on the one hand and with overall outcome 2(l) on the other. The latter (in combination with Table 6.2.20.2.1), unlike the former, identifies two business activities as consistent, or potentially consistent, uses in the zone; the uses are Home based business and Sales office. These uses are non-residential in nature. They are not included in the Rural activity group as defined in the planning scheme. This may be said to support the proposition that the purpose and overall outcome (2)(c) need to be read in the light of this inconsistency, but the point is of little assistance to Doonan property. I agree with Council’s submission that the proposed development is not similar to either of these business activities.[96] They provide no support for the proposed development locating in the Rural residential zone. 
  3. [68]
    Council submits that, prima facie, ‘a high level of conflict attends development’ which is an inconsistent use in the zone.[97] In support of this proposition, it cited Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 21 at [19] and Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370 at [13].
  4. [69]
    It is necessary to exercise some caution before assuming these authorities establish the proposition relied upon by Council. In the first instance, it is not clear the passages cited are authority for the proposition relied upon. More importantly, it has to be acknowledged that the decisions relate to different planning schemes to the one under consideration here, and were decided under a different statutory decision making regime. These factors suggest it is the verbiage of Council’s planning scheme that is of greater importance in determining the nature of the non-compliance.
  5. [70]
    It is the planning scheme that must be examined to ascertain the degree of importance which should attach to the non-compliance with overall outcome (2)(l), informed, where appropriate, by relevant planning principles and practice.[98]
  6. [71]
    Here, such an exercise reveals that considerable weight should attach to the non-compliance with overall outcome (2)(l). The non-compliance is one with a deliberate planning decision that has two distinct purposes. Those purposes were correctly identified by Council, namely:[99] (1) to expressly exclude all but a limited range of small scale and temporary business activities to achieve the purpose of the zone code;[100] and (2) implicitly, to work hand-in-hand with the Activity centre network provisions in the planning scheme that encourage business activities to locate on land included in a Centre zone. Overall outcomes (2)(a) and (2)(c) of the same code, in my view, work hand in hand with this two-pronged strategy. The former need not be the primary focus. The more important overall outcome is (2)(c) as it relates to non-residential uses in the zone. Non-compliance with this overall outcome attracts significant weight.
  7. [72]
    The second aspect of the planning scheme relied upon by Council articulates a strategy with respect to an Activity centre network. The starting point for this strategy is the Strategic framework.
  8. [73]
    The Strategic framework comprises several parts. For present purposes, it includes a statement of strategic intent, themes intended to achieve the strategic intent, elements that refine and further describe the strategic outcomes sought for each theme, and mapping.
  9. [74]
    In the context of ‘a new economy’, the Strategic intent states:[101]

“A network of well-designed and accessible activity centres is established across the Sunshine Coast providing activities and employment opportunities which reflect their role and function.”

  1. [75]
    The Strategic intent also identifies the major elements of the preferred settlement pattern for the Sunshine Coast.[102] The elements are illustrated on Figure 3.2.8A,[103] which is described as the Sunshine Coast spatial concept. Section 3.2.8 of the Strategic intent describes a critical component of the spatial concept as follows:

“One of the critical components of the spatial concept is the function of and relationships between the existing and proposed activity centres across the Sunshine Coast. These functions and relationships are illustrated by Figure 3.2.8B (Strategic functions of and relationships between activity centres).”

  1. [76]
    Figures 3.2.8A and 3.2.8B, read together, identify there is a Local (full service) activity centre at Eumundi. It is included within the Urban area, which lies to the west of the Rural Residential area described at paragraph [21]. The centre is also designated a Tourism focus area.
  2. [77]
    Theme 1 of the Strategic framework deals with the preferred Settlement pattern for the Sunshine Coast.[104] Section 3.3.10[105] of this part of the Strategic framework calls up Strategic Framework Map SFM 1 (Land use elements). This map conceptually identifies elements relevant to the ‘settlement pattern theme’. For present purposes, the map repeats the designations discussed above in relation to the Activity centre network.
  3. [78]
    Theme 2 of the Strategic framework deals with ‘Economic development’. Element 2 of this theme discusses the Sunshine Coast activity centre network. Specific outcomes relating to this Element recognise the importance of the network to the preferred settlement pattern, and, in turn, seek to protect it in a planning sense. Relevantly, specific outcomes (a) and (c) in s 3.4.3.1 of the planning scheme state:[106]

“(a) To support the preferred pattern of settlement, development is consistent with the Sunshine Coast activity centre network identified conceptually on Strategic Framework Map SFM 2 (Economic development elements).

…

(c) Development does not undermine or compromise the activity centre network either by inappropriately establishing centre activities outside of an activity centre or proposing a higher order or larger scale of uses than intended for a particular activity centre.”

  1. [79]
    An editor’s note following s 3.4.3.1(a) provides that the Activity centre network is described in Table SC1.2.3, which is reproduced in Table 3.4.3.1. Reference to the latter[107] reveals that Activity centres are separated into two categories, namely Regional activity centres and Sub-regional activity centres. Within the second category, there are three sub-types, namely District activity centres, Local (full service) activity centres and Local (not full service) activity centres. Table 3.4.3.1 describes each centre type and, save for Local (not full service) activity centres, their general location. That the location of Local (not full service) activity centres is not described with particularity is deliberate. In this regard, a note within the table states:

“Note-a number of smaller local activity centres and local business areas are located throughout the Sunshine Coast.”

  1. [80]
    The forward planning strategy with respect to the Activity centre network is, largely, implemented through the zone provisions and the Business uses and centre design code in the planning scheme.[108] The Centre zones are: (1) Principal centre zone; (2) Major centre zone; (3) District centre zone; and (4) Local centre zone.[109] For each of these zones, the planning scheme identifies consistent, and potentially consistent, uses. Like the Rural residential zone, a use that is not consistent, or potentially consistent, is an ‘inconsistent use’. It is not intended in the zone. It was common ground between the parties that a Hotel was a consistent use in all Centre zones, save for a Local (not full service) activity centre.[110] It is also a consistent use in the Tourist accommodation zone.[111]
  2. [81]
    Council correctly submitted that, for the purposes of the planning scheme: (1) the proposed development is a centre activity; and (2) as a centre activity, is discouraged from locating in the Rural residential zone; and (3) as a centre activity, is encouraged to locate in a centre zone (save for a Local (not full service) activity centre).[112] These points, taken in combination, establish that the proposed development does not, prima facie, support the preferred pattern of settlement as envisaged by the planning scheme.[113] They also establish that the proposed development has the potential to undermine the Activity centre network strategy articulated in the planning scheme.[114] Council contends that significant weight should attend these considerations in the exercise of the planning discretion. This position is supported by authority.
  3. [82]
    The establishment and maintenance of a centre hierarchy articulated in an adopted planning control is undoubtedly a matter of town planning importance.  In this regard, Muir JA (with whom Holmes JA and White J agreed) at paragraph [58] of Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 (ACH) said:[115]

“The importance of the hierarchy of retail shopping centres or precincts established by planning schemes and the necessity of not acting so as to prejudice the viability of the established hierarchy has been recognised in a number of planning decisions. In Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council & Ors Newton DCJ observed:

"[15] It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities. …

[16] It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location."

  1. [83]
    By their very nature, centre hierarchies represent an important and deliberate planning strategy. Like the present case, they are typically articulated in a part of a planning scheme dealing with a local authority’s forward planning intent. Considerable weight in the exercise of the planning discretion would, ordinarily, be expected to attach to an established compliance, or non-compliance, with a centre strategy.[116] It has been said that the proper approach to matters of this kind is, in any event, one of restraint.[117]
  2. [84]
    The third aspect of the planning scheme relied upon by Council relates to local growth management boundaries, and their impact on the location of urban and rural residential uses. This matter is to be considered primarily by reference to the Strategic framework.
  3. [85]
    Section 3.2.8 of the Strategic framework articulates, in combination with Figure 3.2.8A, the Strategic intent with respect to major elements of the preferred settlement pattern for the Sunshine Coast. Theme 1 of the Strategic framework identifies how that planning intent is to be achieved. A key concept for Theme 1 is, to the effect, that urban and rural residential development is to be contained within defined local growth management boundaries.[118] This concept is further developed in Strategic outcomes following s 3.3.1. The outcomes of particular note are ss 3.3.1 (b), (c) and (d), which are in the following terms:

“(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.

(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.

(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.”

  1. [86]
    Element 2 of Theme 1, inter alia, is intended to further refine and describe the Strategic outcomes set out above. It does so by identifying Specific outcomes in s 3.3.3.1, which state, in part:

“…

(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.

(c) Rural residential development is limited to land within the rural residential growth management boundary identified conceptually on Strategic Framework Map SFM 1 (Land use elements) and in further detail on the zoning maps.

(d) The physical extent of urban development and rural residential development is contained within defined local growth management boundaries so as to:-

(i)  protect biophysical values including those within habitat areas, ecological linkages and natural waterways, wetlands and water bodies;

(ii)  protect natural resources including agricultural land class A and class B, strategic cropping land and potential strategic cropping land, rural land in general and extractive resources;

(iii)  avoid natural hazards, including an allowance for the predicted impacts of climate change that may worsen these hazards;

(iv)  maintain the largest possible area of land for rural, landscape and environmental protection purposes into the future;

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

(vi)  maximise opportunities for the efficient delivery of infrastructure and services.

(e)  The pattern, form and structure of settlement are consistent with the land use categories identified conceptually on Strategic Framework Map SFM 1 (Land use elements). These land use categories comprise urban areas, rural residential areas, rural enterprise and landscape areas, major sport and recreation open space and major conservation areas.”

  1. [87]
    Sections 3.3.1 and 3.3.3.1 identify a forward planning strategy. The strategy is three-fold, namely: (1) to limit urban development to land within the urban growth management boundary; (2) to limit rural residential development to land within the rural residential growth management boundary; and (3) to maintain areas outside of local growth management boundaries predominantly for rural enterprise, landscape and environmental values. An assessment of the development application against this strategy firstly requires the Hotel to be characterised by reference to items (1) to (3). It can be said immediately that item (3) has no application here.
  2. [88]
    Is the Hotel urban or rural residential development?
  3. [89]
    The terms ‘Urban development’ and ‘Rural residential development’ are not defined in the planning scheme. Nor are they defined in the Act. In the absence of a definition in the planning scheme or the Act, it is necessary to look to relevant context. For the former, such context can be found in, inter alia, the definition of ‘Urban zone’ and the text of Centre zone codes, both of which are contained in the planning scheme.
  4. [90]
    The term ‘Urban zone’ is a defined administrative term in the planning scheme. It means each of the zones identified in Column 2 of Table SC1.2.2 Administrative definitions. The zones in Column 2 include the Centre zones referred to above. In each Centre zone code, there is a list of consistent, and potentially consistent, uses. Save for one qualification mentioned earlier, a Hotel is a consistent, or potentially consistent, use in a Centre zone. That a Hotel is a consistent use in several urban zones as defined is a strong indicator it can be regarded as urban development for the purposes of the planning scheme, particularly ss 3.3.1 and 3.3.3.1. This conclusion is reinforced by the definition of ‘Urban purposes’ in the planning scheme. It is also reinforced by the fact that a Hotel is an inconsistent use in the Rural residential zone.
  5. [91]
    The Hotel, which is urban development, is proposed: (1) outside of the urban growth management boundary; and (2) within the rural residential growth boundary. As a consequence, it is contrary to s 3.3.3.1(b) of the planning scheme. The weight to be attributed to this non-compliance in the exercise of the planning discretion is significant given, prima facie, it represents a clear departure from a forward planning strategy.
  6. [92]
    If an assessment of the proposed development against the planning scheme was limited to the matters discussed at paragraphs [54] to [91], it would be difficult to resist Council’s case that the development application should be refused; the assessment suggests an approval does not withstand scrutiny against the planning controls. However, as was correctly submitted on behalf of Doonan property, there are particular circumstances of this case that impact on the weight to be attributed to the non-compliances with the planning scheme. Those circumstances can be described as unusual, and materially diminish the potency of the non-compliances with the planning scheme. For the reasons that follow, the potency of the non-compliances diminish to the point I am satisfied they do not sound in unacceptable town planning consequences warranting refusal of the development application.
  7. [93]
    The unusual circumstances of this case, and relevance to each non-compliance with the planning scheme, are now considered in detail.
  8. [94]
    The Act requires an impact assessable development application to be assessed in accordance with s 45. Subsection (5)(a)(ii) of this provision mandates that an assessment must be carried out having regard to any matters prescribed by Regulation. One matter prescribed by s 31(1)(f) of the Planning Regulation 2017 is ‘any development approval for, and any lawful use of, the premises or adjacent premises’.
  1. [95]
    It is uncontroversial that a town planning consent permit granted by the Maroochy Shire Council attaches to the land and authorises a Catering Shop (restaurant) and caretaker’s residence. The evidence establishes this approval has been acted upon. The approved development forms part of the existing mixed character of the ‘place’ described at paragraph [22]. That character is influenced not only by the approved development, but also the use of adjacent premises and the activity on Eumundi-Noosa Road. This is discussed at paragraphs [23] to [28].
  2. [96]
    The approved use of the land and adjacent premises within the place (described at paragraph [22]) are relevant to the significance that should attach to the non-compliances established with the planning scheme. This is because the approved use, and the existing use of a number of adjacent premises, are inconsistent with: (1) the preferred pattern of development as articulated in the planning scheme;[119] (2) the forward planning strategy that centre activities be limited to designated centres in the Activity centre network; (3) the intent that an inconsistent use not occur in the Rural residential zone; and (4) the intent for the Rural residential zone to be limited to non-residential uses that are ‘small scale and low intensity rural activities’.
  3. [97]
    A useful starting point is the Rural residential zone code.
  4. [98]
    The development application seeks approval for an inconsistent use in the Rural residential zone. That a use of this character is not intended to occur in the zone is an overall outcome of the Rural residential zone code, which, in turn, is intended to achieve the purpose of the code.
  5. [99]
    The purpose of the code is set out at paragraph [58]. It expressly seeks to achieve two things, namely that: (1) ‘development is low density and semi-rural in nature’ and (2) ‘rural activities are limited to small-scale activities that do not impact on the rural residential amenity of the zone’. Item (1) is consistent with overall outcome (2)(a) of the same code. Save for the qualification mentioned at paragraph [67], the purpose is also consistent with overall outcome (2)(l) of the same code.
  6. [100]
    The approved use of the land is inconsistent with overall outcomes (2)(a), (c) and (l) of the Rural residential zone code. The use is not semi-rural in nature. It is not a rural activity. Nor is it small scale. It is an inconsistent use in the zone. In this regard, the approved use is a business activity anticipated in a Centre zone. This is confirmed by other zoning provisions in the planning scheme. It is also confirmed, in my view, by the scale and intensity of the use. It comprises a three-storey building that is commercial in character, with a gross floor area exceeding 500m2. The restaurant can accommodate 40 patrons at one time. The approved use also includes an at-grade carpark. Presently, that carpark accommodates 28 vehicles. These features, taken in combination, do not lead me to conclude that the approved use is small in scale, let alone of a scale envisaged for non-residential uses in the Rural residential zone.
  1. [101]
    The same can be said about existing uses to the south-east of the land, which are discussed at paragraph [25]. The collection of non-residential uses are: (1) located in the Rural residential zone; and (2) not described as rural activities. The uses are inconsistent with overall outcomes (2)(a), (c) and (l) of the zone code. Indeed, there can be little doubt that some of these uses should be located in a designated Activity centre, namely the licensed café, specialty food shop, solicitor’s office, and real estate office.
  2. [102]
    Paragraphs [100] and [101] identify ‘real world’ factors that cannot be ignored. Those factors undermine the ability for the purpose, and overall outcomes (2)(a), (c) and (l) of the Rural residential zone code to be achieved in this particular locality. Once it is appreciated there is no evidence to suggest this position will change in the foreseeable future, if at all, this is a matter of considerable force. With this in mind, it is my view that the Rural residential zone code should not be applied in an inflexible or unyielding way. To do otherwise would fail to give sufficient recognition to the circumstances of the land, and place, as described at paragraphs [23] to [28].
  3. [103]
    This is not to suggest that the Rural residential zone code is to be discarded in the assessment of the development application. In my view, it remains necessary to examine the proposed development against those parts of the zone code that are directed towards a consideration of impacts. Primarily, that appears to be encapsulated in the purpose of the code, which speaks of activities not ‘impacting on the rural residential amenity of the zone’. It is also encapsulated in overall outcome (2)(c), which is directed at regulating non-residential uses in the zone. I will deal with the overall outcome first.
  4. [104]
    Overall outcome (2)(c) is set out at paragraph [62], and like the purpose of the code, seeks to limit non-residential uses to a particular type and scale. It also seeks to ensure non-residential uses are ‘compatible with the prevailing rural residential character and amenity of the zone’. Whilst the proposed development is not a small scale low intensity rural activity, I am satisfied it is nonetheless compatible with the existing character and amenity of the place, which forms part of the Rural residential zone.
  5. [105]
    The prevailing character and amenity of the zone is described at paragraph [21]. Adopting a broad scale view, the prevailing character and amenity is predominantly low density semi-rural in nature. This character and amenity changes in this location, namely the place described at paragraph [22]. That such a change can occur, and is to be acknowledged, is made clear by ss 3.2.4 and 3.3.1(m) of the planning scheme. I have described the character and amenity of the place as mixed at paragraph [27] and influenced by the presence of Eumundi-Noosa Road. I am satisfied the evidence establishes the proposed development will be complementary and compatible with this character, which forms part of the character of the zone. I am also satisfied the proposed development will not unacceptably impact on the amenity of this part of the Rural residential zone.
  1. [106]
    These findings are influenced by five factors. First, the proposed development will retain and re-purpose the existing German inspired building, which is a significant element of the approved use and proposed Hotel. Second, the proposed plans reveal the setting of development on the land will comprise a large vegetated allotment with a modest proportion given over to a development footprint, consistent with existing character. Third, the evidence dealing with hard amenity impacts (visual, traffic and noise impacts) comfortably establishes the proposed development can be conditioned to achieve compliance with the planning scheme.[120] Fourth, the size of the land, and the siting of the development on it, provides confidence that the impacts of the proposed development can be mitigated to an acceptable degree for adjoining and adjacent sensitive residential land uses. Finally, the character of the place, whilst different to that prevailing in the zone more broadly, does not appear incompatible where there is a shared interface. The proposed development, if approved, will not in my view alter that position. The development has been well sited and designed with landscaping to ensure it appropriately transitions at interface points, primarily to the north and west.
  2. [107]
    These matters were not lost on Mr Buchanan, Doonan property’s town planner. Consequently, I accept his evidence going to the acceptability of the proposed development in terms of impacts on character and amenity of the zone and place.
  3. [108]
    In response, Council submitted the proposed development would have an unacceptable impact on amenity (in an intangible way) and character. Having regard to the matters set out above at paragraphs [104] to [106], I do not accept this submission.
  4. [109]
    I would add that Council’s submission in this respect was advanced on the footing that the provisions of the Rural residential zone code should be applied in an unyielding way. For the reasons given at paragraphs [100] to [106], the circumstances of this case are such that this proposition cannot be accepted without significant qualification.
  5. [110]
    Further, Council’s case in regard to amenity and character was advanced on the footing that: (1) Doonan property’s reliance upon the approved use of the land was ‘purely opportunistic’;[121] and (2) the approved use and proposed Hotel are vastly different in terms of nature, scale and intensity.[122] I do not accept that items (1) or (2) represent a sound footing upon which to assess the impacts of the proposed development in terms of character and amenity.
  6. [111]
    I do not accept it is valid to criticise Doonan property for its reliance upon the approved use of the land.  Section 45(5)(a)(ii) of the Act, read with s 31(1)(f) of the Planning Regulation 2017, make it clear that the approved use is a mandatory consideration in the assessment of the development application. An underlying purpose for this includes a matter of practicality; it is to ensure the assessment, and decision making process, is not carried out in an artificial way without reference to the particular circumstances of the land and locality. The weight given to matters of this kind in the assessment is, however, a different question. The answer to this question is informed by the matters raised in item (2) above.
  7. [112]
    As to weight, I accept it is correct to say that the proposed development and the approved use are different. At its simplest, from a land use perspective, they are characterised differently for the purposes of the planning scheme; the former is characterised as a Hotel; the latter is characterised as a Food and drink outlet.
  8. [113]
    That the approved use and proposed use are differently characterised under the planning scheme does not mean, from a planning perspective, they do not share some common ground of relevance to the assessment. The extent to which there is common ground can be seen from the definitions in the planning scheme. The terms of the definitions reveal they are commercial in nature and share a common element, namely, dining and entertainment for patrons. This common element includes the service of liquor. This common ground is also reflected in the defined activity group table referred to at paragraph [55]. Both uses fall within the same subcategory.
  9. [114]
    The differences between the Hotel and approved use, in a definitional sense, lie in the primacy attached to the sale of liquor and the consumption of food or drink off site. These differences are not decisive of the point being considered here. In simple terms, the evidence does not suggest there is any town planning reason to conclude that these differences render the approved use of no assistance to an examination of the amenity and character impacts of the Hotel. Such evidence would be surprising given both uses involve dining, the service of liquor and a ‘takeaway’[123] component.  The position would, however, have been different had the Hotel included a drive thru facility, accommodation, gaming rooms and a room for live performances. These extra components would suggest the Hotel is not as described by Mr Comiskey, namely like a restaurant that serves liquor, rather than a traditional hotel. To the extent Council submits otherwise, I reject this submission.
  10. [115]
    It is self-evident that the approved use and the proposed Hotel are different in terms of their scale and intensity. In general terms, the latter will increase the area of built form and carparking on the land. It will add a Cellar door. It will also increase the number of people on the land. It does not however follow that the approved use is vastly different in character and amenity terms. Whether this is so turns on matters of fact and degree.
  1. [116]
    Council relied on the evidence of Mr Adamson, a town planner, to establish that the nature, scale and intensity of the Hotel is ‘vastly different’ to the approved use in terms of character and amenity impacts. Reference to Mr Adamson’s further statement of evidence reveals his opinion about this was expressed in reliance upon 12 considerations. He said the proposed development would result in:[124] (1) a change in the type of use; (2) a five-fold increase in the number of patrons and staff; (3) different issues with managing patrons given the nature of a hotel; (4) a substantial increase in traffic movements; (5) a substantial increase in the number of parking spaces required; (6) a substantial increase in the internal floor area for the hotel (714m2); (7) a substantial increase in the amount of outdoor use area (1,465m2); (8) new noise impacts that will be audible; (9) new lighting impacts (headlight glare) that will require mitigation; (10) significantly increased effluent disposal requirements; (11) substantial onsite management issues arising from flooding; and (12) increased risk to patrons and staff from flooding.
  2. [117]
    I accept item (1) is correct and establishes the approved use and Hotel are regarded as different uses by the planning scheme. I have dealt with this above at paragraphs [112] to [114]. For those reasons, I am satisfied the definitional difference does not, in and of itself, establish that the two uses will necessarily have different character and amenity impacts in this case. Nor does it inform matters of scale and intensity.
  3. [118]
    I accept items (2), (3), (4), (5), (6), (7), (8), (9) and (10) represent different impacts that can be anticipated as between the approved use and Hotel. The differences however need to be carefully examined in context. That context here includes the circumstances discussed at paragraphs [100] to [106]. The matters discussed therein reveal that the differences do not sound in any material, let alone unacceptable, town planning consequence in character and amenity terms. Mr Adamson did not take this into account, which undermines the opinion expressed by him. Further, these matters, in my view, do not support the proposition that the approved use and Hotel are vastly different in terms of character and amenity impacts.
  4. [119]
    I do not accept that items (11) and (12) render the approved and proposed use vastly different in terms of nature, scale and intensity. Both forms of development require the risk of flooding to people and property to be managed. In my view, for reasons given later, the proposed development is in a better position to manage those risks because it will, unlike the approved use, remove the caretaker’s residence and manage flood risk in accordance with an FEMP (amended to reflect changes required by these reasons for judgment).
  5. [120]
    In light of the above, it can be said that the approved use and Hotel will have different impacts, but share some common ground.  To the extent they are different, particularly in the manner identified by Mr Adamson, I am satisfied those differences do not establish there is a sound town planning reason to conclude that they will have ‘vastly different’ character and amenity impacts. In my view, the extent to which: (1) the uses can be said to share common ground; and (2) the differences between the uses do not sound in any material or unacceptable character or amenity impacts; is a matter to which significant weight should be attributed in the exercise of the planning discretion.
  6. [121]
    It is fair to observe that Council’s refusal case heavily relies upon the Court forming a view contrary to that expressed at paragraph [120]. Its case in this regard was, in effect, all or nothing. As a consequence, that a different view was reached by the Court permeates, and materially undermines Council’s case and the evidence of Mr Adamson. In particular, it undermines the submissions and evidence advanced by Council with respect to the nature and extent of non-compliance with the planning scheme and the degree of inflexibility that ought be attributed to that factor in the exercise of the discretion.
  7. [122]
    The unusual circumstances of this case are also relevant to an examination of the Activity centre network provisions of the planning scheme.
  8. [123]
    The land and immediate surrounding locality is not included within an Activity centre recognised in Table 3.4.3.1 of the planning scheme. There is, however, an extant approval authorising the use of the land for a business activity, namely a Food and drink outlet as defined in the planning scheme.  That this use can lawfully occur on the land sits uncomfortably with the Rural residential zone code; it is an inconsistent use in the zone. It is also inconsistent with the Strategic framework and Business uses and centre design code because the activity is located outside of an Activity centre recognised in Table 3.4.3.1. These observations are not limited to the land. They also apply to some of the non-residential activities located to the south-east of the land.
  9. [124]
    The matters identified at paragraph [123], coupled with the economic evidence about the nearest Activity centre to the land (Eumundi), establishes two important points. First, the approved use of the land, and some of the business activities to the south-east,[125] are fairly described as out-of-centre activities. This does not support the preferred settlement pattern in the manner contemplated by s 3.4.3.1(a) of the Strategic framework. Second, the economic evidence suggests the Eumundi centre is performing in accordance with its intended role and function in the Activity centre network. This is consistent with the proposition that the approved use on the land, and adjacent uses to the south-east have not undermined, or compromised, the Activity centre network in the manner envisaged by a provision such as s 3.4.3.1(c) of the Strategic framework. This is in circumstances where it should be assumed that the approved use, and like uses to the south-east, compete with business activities in the designated centre, and have the potential to detract from the centre’s vitality.
  10. [125]
    These factors, in my view, put the development application into a different context to an application that is simply described as one seeking approval for an out-of-centre activity.  Like the approved use, the proposed Hotel would be a centre activity in an out-of-centre location. It would, like the approved use, divert activity away from the Activity centre network. The proposed development would share this in common with other business activities located in the place, which are also located out-of-centre and draw activity away from Eumundi.
  1. [126]
    The issue to be examined here is whether an approval would, as envisaged by          s 3.4.3.1(c), undermine or compromise the Activity centre network in circumstances where an out-of-centre use can already be lawfully conducted on the land. I am satisfied the evidence establishes that this issue should be resolved favourably to the proposed development. This is so for a number of reasons.
  2. [127]
    First, as I have already observed, the approved use and Hotel share, in a planning sense, a number of similarities. There are also points of difference. In terms of scale/intensity, those similarities, and differences, do not suggest an approval would give rise to any unacceptable town planning consequence/s.
  3. [128]
    Second, the economic evidence establishes that an approval would not sound in any unacceptable economic impacts on the Eumundi centre. More particularly, there was little controversy between the economic experts that: (1) this centre will not fail if the Hotel is approved; and (2) it is unlikely that any existing facility within the centre will fail if the Hotel is approved.[126]
  4. [129]
    The highest the evidence reached in terms of economic impact was that of Mr Brown. He was the economist called by Council. Mr Brown’s evidence speaks of impacts on revenue, vitality and service provision.[127] I am satisfied impacts of this kind are unlikely to be of great moment given items (1) and (2) at paragraph [128] above.
  5. [130]
    Further, Mr Batty pressed Mr Brown about economic impacts in cross-examination. The evidence given in response left me with the clear impression that the impacts about which Mr Brown gave evidence were, at best, elusive and unlikely to sound in any appreciable economic impact. A relevant exchange between Mr Batty and Mr Brown was as follows:[128]

“…what makes the extent of detraction from Eumundi because of the proposed development unacceptable, in your opinion?‑‑‑Well, as I say, it necessarily detracts from the vitality of Eumundi.  There will be fewer people at any given time going to Eumundi while this thing is – is operating.  It necessarily has to – regardless of the visitors, necessarily has to achieve a significant penetration within its residential catchment, which coincidentally is also known as the Eumundi town centre catchment, which is not significantly bigger in terms of people.  So necessarily it detracts from that.  Does it get to a point at which a facility fails?  No.  Does it get to a point where a centre fails?  No.  But, obviously, there is a detraction from the vitality of the Eumundi town centre.

…But that does not call for the proposed development to be refused in this instance?‑‑‑Well, whether or not the development is approved or refused is a matter for others, but in terms of considering the issues, necessarily there is some negative consequence associated with approval, and that, obviously, in my mind, needs to be sort of weighed with regards to any sort of positive need that, you know, is ultimately determined.” (emphasis added)

  1. [131]
    Mr Batty pressed Mr Brown about the suggested loss of vitality. He put to Mr Brown that any loss must take into account existing impacts from the approved use.[129] Whilst Mr Brown accepted the historical presence of the approved development was relevant to the issue of competition, he said it was not considered by him in terms of impacts on the Activity centre network. His reasoning for this was neither clear, nor persuasive.[130] The failure to assess the impact of the approved use on the vitality of the Eumundi centre undermines Mr Brown’s evidence.
  2. [132]
    Mr Batty pressed Mr Brown again about the extent to which an approval would detract from the vitality of the Eumundi centre; it was suggested the impact did not warrant refusal.[131] Presented with the opportunity to articulate his opinion about the impact and its severity, Mr Brown said in response:[132]

“…Well, I’m not saying that it is a sole reason for refusal.  I would not be saying his Honour should refuse.  I’m merely trying to provide some support and evidence to the court in relation to what will happen, whether it is needed or not, and then in the context of that, if it were approved, if there was a determination that there was some form of positive need for the proposed development,…necessarily there will be some adverse consequences.  Whether or not those consequences of and in themselves are a reason for refusal is a matter for others.  Do they certainly exist?  Will they certainly exist?  Yes.  To what extent is it considered to be material?  That’s, obviously, a matter for his Honour.” (emphasis added)

  1. [133]
    I do not accept this evidence establishes that the vitality, revenue or service provision at the Eumundi centre will be unacceptably impacted by an approval here. Nor do I accept, as Council submits, that Mr Brown’s evidence establishes the proposed development, if approved, would have a material economic impact on other competing facilities presently serving the public.[133] Mr Brown’s evidence as to the level of impact is underwhelming. Importantly, he did not characterise the impact as material. Nor did he say the impact warranted refusal. He left matters of this kind to the Court.
  2. [134]
    I am satisfied the evidence establishes that the economic impacts of the development will be shared across a range of facilities identified on Maps 2, 3, 4 and 5 of the joint Economic need report.[134] The level of impact cannot be identified precisely on a facility-by-facility basis; however, as Mr Duane said, that impact will not be unacceptable overall. In the joint report he said:[135]

“GD does not agree with MB that the subject proposal will impact the vitality of existing facilities at Eumundi, and consequently the overall centre at Eumundi. The subject development will redirect spending from facilities in a number of locations including Eumundi, Noosaville, Noosa, Tewantin, Peregian and Coolum, to name a few, ultimately dependant on the offering of each compared with the subject proposal. It is not logical that the majority of the impact will be felt by facilities at Eumundi. As outlined in the provision tables there are two Commercial Hotel licences and 5 Commercial-Other licences (Restaurants) together with other retail facilities in Eumundi which will continue to anchor a vibrant precinct.”

  1. [135]
    I accept Mr Duane’s evidence. The evidence assumes, correctly, it is unrealistic to expect that only one or two facilities will bear the economic impact of an approval.
  2. [136]
    It is my view that Mr Duane’s evidence overall is supported by three particular aspects of this case.
  3. [137]
    First, the Eumundi local centre is located some 8 kilometres from the land. As I have already observed, it is designated a Local (full service) centre. It is a centre that includes two existing commercial hotels.
  4. [138]
    The evidence establishes the centre has matured and is successful. This is, in no small measure, due to tourists that account for about 1,200,000 visitors per year to the centre. It is anticipated that the number of tourists per year will likely increase over time. When the prospect of a loss of vitality, revenue and service provision is considered in this context, it is unsurprising that Mr Duane and Mr Brown’s evidence establishes: (1) the centre will not fail if the Hotel is approved; and (2) it is unlikely that any existing facility within the centre will fail if the Hotel is approved.[136]
  5. [139]
    Second, the impacts of which Mr Brown speaks are not supported by evidence from operators of competing facilities, particularly the existing hotel operators in Eumundi. There is no evidence they objected to the development application during public notice of the application. Given the patronage levels to be expected from tourists, it is reasonable to assume that they will continue to serve the public, such as they do now. No doubt they will also do what is required to compete with the Doonan property Hotel, if required. This competition is more likely to sound in a positive outcome for the public, rather than a negative one.
  6. [140]
    Third, the potential economic impact needs to be considered in the context that the proposed use will not create a new Activity centre, nor impermissibly extend an existing Activity centre. 
  7. [141]
    As to the former, I am satisfied that an approval will not create a new centre. Indeed, it is difficult to see how an approval for a standalone Hotel could function as a centre of the kind anticipated by the planning scheme. No party suggested to the contrary.
  8. [142]
    As to the latter, Doonan property contended that the uses discussed at paragraph [25] form a cluster or node. I accept this is a descriptor that can be given to those uses. It is not however a descriptor that finds recognition in the planning scheme. The questions of greater significance are whether the collection of uses can be said to comprise a Local (not full service) centre and whether the proposed development would impermissibly extend that centre. In my view, both questions are resolved in the negative.
  9. [143]
    In this regard, I accept the evidence of Mr Adamson.[137] He said the mix of uses in the place are not integrated. I agree. This means the uses do not, and cannot, function as an integrated Local centre. The absence of integration, coupled with an absence of the features referred to in s 3.4.3.1(d) of the planning scheme, in my view, suggest the existing uses comprise a cluster of non-residential uses in the Rural residential zone. 
  10. [144]
    That the proposed development will not create a new Activity centre; nor impermissibly extend an existing Activity centre; nor give rise to adverse economic impacts on the Activity centre network means an approval could be granted in this case with confidence that the network will not be undermined or compromised. This is directly relevant to the weight that should be attributed to any non-compliance with s 3.4.3.1(c) of the Strategic framework. The weight attaching to the non-compliance must reflect that an approval would not prejudice the viability of an established hierarchy in the manner envisaged at paragraph [58] of the ACH decision, which is extracted at paragraph [82] above.
  11. [145]
    These same factors also lead me to conclude that this case is in a different category to those where the principle discussed in ACH has been instrumental in the refusal of an application for out-of-centre development. Such cases include Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51 and Overton & Anor v Redcliffe City Council & Anor [2000] QPELR 250, both of which are cited at paragraph [59] of ACH.
  12. [146]
    In Wilispap, central to the refusal was a finding that to approve the application would prejudice the feasibility of the hierarchy of shopping facilities proposed in a draft planning scheme.[138] Unsurprisingly, in this context, Judge Quirk said “it would…be entirely inappropriate for this Court to make a decision which would run contrary” to a considered and carefully expressed centre strategy. Circumstances of this kind, which led to the application of the non-derogation principle in relation to a draft planning document,[139] are not present here.
  13. [147]
    In Overton, Quirk DCJ refused an application for a mixed-use development comprising a convenience centre, hotel, service station and fast-food outlet. After rejecting a submission to the effect that an approval for out-of-centre development was justified because the relevant hierarchy articulated in a dated Strategic plan was undermined or otherwise eroded, his Honour said:

“(27)  The provisions with which we are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development. As I have indicated to ignore these provisions could have fundamental and far reaching consequences for expectations based on the Strategic Plan as it is presently drawn.”

  1. [148]
    I am satisfied the circumstances here, which are discussed at paragraphs [123] to [144] are such that an approval would not have fundamental and far reaching consequences for expectations based on the Activity centre network articulated in the planning scheme.
  2. [149]
    The turnover of the proposed development, if approved, would rely to a significant degree upon patronage from tourists. That it would do so is not in and of itself problematic given s 3.4.6.1(e) of the Strategic framework. Compliance with this provision was relied upon by Doonan property as one of the matters said to diminish the nature and extent of the non-compliance with the planning scheme.
  3. [150]
    This provision recognises there is a prospect that tourism development may be considered in locations outside of Activity centres, Tourism and Tourism focus areas (such as Eumundi). The provision states:[140]

“Other opportunities for tourism development may be considered by Council on their merits where such development:-

  1. (i)
    provides regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities;
  2. (ii)
    does not incorporate a range or scale of uses and activities which would compromise the Sunshine Coast activity centre network;
  3. (iii)
    is located on or with direct access to a major road;
  4. (iv)
    provides all of the necessary infrastructure for the development;
  5. (v)
    is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity; and
  6. (vi)
    would enhance the Sunshine Coast’s tourism brand and reputation.”
  1. [151]
    The subsections of the above provision are to be read as cumulative requirements.[141]
  2. [152]
    I am satisfied the requirements identified in (ii), (iii), (iv), (v) and (vi) are, to varying degrees of certainty, satisfied. As to subsection (i), the scale of the proposal is such that it is difficult to conclude it will provide ‘regionally significant’ tourism investment and employment opportunities. That is not to say it would make no contribution to tourism and employment. It will contribute to the economy and have positive flow on effects for the community, but that contribution will be relative to its scale.
  1. [153]
    Section 3.4.6.1(e) of the Strategic framework is relevant to the assessment of the proposed development, which is located on a major transport corridor for, inter alia, travellers and tourists.[142] Substantial compliance with the provision has been demonstrated. In my view, however, this does not take the matter very far. What is of greater significance in this case are the matters traversed at paragraphs [123] to [148]. I am satisfied these matters, taken in combination, demonstrate the proposed development will not undermine or compromise the Activity centre network articulated in the planning scheme.
  2. [154]
    It was submitted on behalf of Doonan property that the significance, if any, of the non-compliances with the local growth management strategy can be examined by reference to the underlying planning purpose for the creation and location of the relevant area boundaries. In this regard, attention was drawn to two provisions of the planning scheme,[143] namely ss 3.3.1(c) and 3.3.3.1(d) of the Strategic framework, which state:

“3.3.1 Strategic outcomes

The strategic outcomes for the settlement pattern theme are the following:-

…

(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.” (emphasis added)

And:

“3.3.3 Element 2 – Growth management boundaries and land use categories

“3.3.3.1 Specific outcomes

…

(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;
  2. (ii)
    protect natural resources including agricultural land class A and class B, strategic cropping land and potential strategic cropping land, rural land in general and extractive resources;
  3. (iii)
    avoid natural hazards, including an allowance for the predicted impacts of climate change that may worsen these hazards;
  4. (iv)
    maintain the largest possible area of land for rural, landscape and environmental protection purposes into the future;
  5. (v)
    protect the discrete identities of individual places and communities; and
  6. (vi)
    maximise opportunities for the efficient delivery of infrastructure and services.” (emphasis added)
  1. [155]
    I accept it is appropriate to consider the underlying planning purpose of the local growth management boundaries to assess the nature and extent of non-compliance with the planning scheme. The purpose is exposed by ss 3.3.1(c) and 3.3.3.1(d). More particularly, in Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council & Anor [2020] QPEC 38 Cash QC DCJ observed that s 3.3.3.1(d) ‘may be understood as informing why the boundaries are drawn as they are, and what is to be protected by limiting development within these boundaries’. I agree with his Honour’s observation.
  2. [156]
    Before dealing with the elements of ss 3.3.1(c) and 3.3.3.1(d) in the context of this case, it is relevant to make a preliminary observation. 
  3. [157]
    The forward planning intent reflected in the local growth management provisions can be stated as: urban and rural residential development is to be contained, or limited, to identified areas within the growth management boundaries. This intent is no doubt directed towards achieving the preferred settlement pattern illustrated in various maps of the Strategic framework.
  4. [158]
    The approved use of the land is, for the purposes of the planning scheme, a Food and drink outlet. It is an urban use. It is not contained, or limited to, an area within the urban development growth management boundary. The same point can also be made for other uses to the south-east of the land. They are discussed at paragraph [25] and include activities that are fairly regarded as urban uses anticipated in an urban zone. For example, Mr Buchanan identified in the area to the south-east of the land: (1) a licensed café; (2) a solicitor’s office; (3) a real estate office; and (4) a specialty shop.
  5. [159]
    That the locality is one developed with urban uses is, in my view, a matter of import. It means the preferred settlement pattern is disrupted in this particular part of the planning scheme area. It does not conform with the urban and rural residential growth boundaries indicated on the relevant mapping. An approval of the proposed development will not alter this position. This is in circumstances where there is no evidence to suggest that existing urban uses in the place identified at paragraph [22] will cease so as to achieve conformity with the growth management strategy in the foreseeable future. This cannot be ignored. It is relevant context for determining whether the local growth management strategy should be applied inflexibly to the proposal. In my view, it is a strong indication that an approval will not undermine or compromise the local growth management strategy in this part of the planning scheme area.
  1. [160]
    An assessment against ss 3.3.1(c) and 3.3.3.1(d) of the planning scheme provides further relevant context for this issue. It confirms that an approval will not undermine or compromise the underlying planning purpose of the local growth management strategy in this part of the planning scheme area.
  2. [161]
    Section 3.3.1(c) provides that development is contained within the local growth management boundaries to achieve five objectives, namely so as to: (1) protect biophysical and landscape values; (2) protect natural resources; (3) avoid natural hazards; (4) maintain the individuality of communities; and (5) provide for the efficient delivery of infrastructure and services. I am satisfied the proposed development is consistent with objectives (1), (2), (4) and (5). 
  3. [162]
    With respect to the objective stated in item (3), that is ‘avoiding natural hazards’, it is stated in absolute terms. If the evidence is considered in this light, it falls short of establishing that the development will avoid a natural hazard, namely a flooding risk. The development will be located in a flood hazard area.
  4. [163]
    In my view, it is impractical for the stated objective to be applied in absolute terms. The provision must be read in the context that the planning scheme admits of the prospect that development may occur in flood affected areas, which is, in large measure, regulated by the Overlay code.[144] This code informs how, and in what way, development is to ‘avoid’ the flooding hazard.
  5. [164]
    The purpose of the Overlay code is as follows:

“(1) The purpose of the Flood hazard overlay code is to ensure development protects people and avoids or mitigates the potential adverse impacts of flood and storm tide inundation on property, economic activity and the environment, taking into account the predicted effects of climate change.” (emphasis added)

  1. [165]
    The purpose is not expressed in the same absolute terms as s 3.3.1(c) of the planning scheme. Rather, it requires, inter alia, development to ‘protect(s) people’ from the adverse effects of flooding. It also requires development to ‘avoid or mitigate’ the adverse effects of flooding on property, economic activity, and the environment.
  2. [166]
    For the reasons given below, I am satisfied compliance has been demonstrated with the Overlay code, including the purpose of the code. This, in my view, is a strong indicator of compliance with s 3.3.1(c) of the planning scheme.  Alternatively, it is a strong indicator that the failure to ‘avoid’ the flooding risk (in absolute terms), assuming that is what must be demonstrated, is not accompanied by any planning impact of consequence. Section 3.10.5.1 of the planning scheme also provides relevant context in this respect.
  1. [167]
    Section 3.10.5.1(b) of the Strategic framework provides an exception to a stated policy position, namely that urban development not locate on land subject to flooding in a defined flood or storm tide event. The provision states, in part:[145]

“Urban and rural residential development…is not located on land subject to flooding in the defined flood event or defined storm tide event except where satisfying at least one of the following criteria…”

  1. [168]
    Two of the ‘criteria’ of relevance to this case are ss 3.10.5.1(b)(ii) and (iv), which state:

“(ii) the development is on land that is already committed to urban or rural residential development by an approval granted prior to the commencement of the planning scheme;”

 …

  (iv) the development is redevelopment or infill development within an existing developed area;”

  1. [169]
    The circumstances set out at paragraphs [6] to [8] and [21] to [28] demonstrate the two criteria set out above are satisfied. This has the consequence that s 3.10.5.1(c) of the planning scheme is engaged, which states:

“Where development satisfies one or more of the criteria specified in (b) above, it is demonstrated that the impacts of flooding can be effectively mitigated such that there is no foreseeable risk to life or property”. (emphasis added)

  1. [170]
    Compliance with s 3.10.5.1(c) is demonstrated where development effectively mitigates, rather than avoids, the risk of flooding to people and property. This is unsurprising given the very nature of the ‘exception’ in s 3.10.5.1(b)(ii), which assumes in some cases that land is already committed for development. In any event, for the reasons given below, I am satisfied compliance has been demonstrated with s 3.10.5.1(c) of the planning scheme.
  2. [171]
    The matters discussed at paragraphs [160] to [170] establish the proposed Hotel, if approved, would not cut across the underlying planning purpose of the local growth management strategy in this locality. This is consistent with the proposition that an approval, whilst prima facie contrary to the local growth management strategy, sounds in no unacceptable town planning consequence. That this is so is further reinforced by an assessment of the development against s 3.3.3.1(d) of the Strategic framework.
  1. [172]
    Section 3.3.3.1(d) provides that development is contained within defined growth management boundaries to achieve a number of planning objectives. Those objectives are set out in subsections (i) to (vi) of the provision. Subsections (i), (ii), (iii), (v) and (vi) are expressed in similar terms to the objectives stated in s 3.3.1(c). I am satisfied compliance is demonstrated with these aspects of the provision. An additional objective, namely subsection (iv), can be identified. It relates to the maintenance of the largest possible area of land for rural, landscape and environmental protection purposes in the future.  I am satisfied the proposed development is consistent with this objective. Compliance is therefore demonstrated with s 3.3.3.1(d) of the planning scheme. This, in my view, is but a further indicator that an approval here, whilst prima facie contrary to the local growth management strategy, will not sound in any unacceptable town planning consequences.
  2. [173]
    A critical question to be examined in this case is whether the development application seeks approval for an inappropriate use when assessed against the planning scheme. The resolution of this question turns on a careful and detailed consideration of the application, relevant facts and circumstances, and the planning scheme. Such an assessment, in my view, establishes that an approval, in the particular and unusual circumstances of this case, would not, if granted, sound in any unacceptable town planning consequence/s. When considered in this light, I am satisfied the otherwise serious nature of the non-compliances identified with the planning scheme should not be decisive of the issue being considered. Rather, an assessment of the true nature and extent of the non-compliances with the planning scheme demonstrate the proposed development is not an unacceptable use of the land.

Flooding risk

  1. [174]
    The land is constrained by over land flooding and inundation. This constraint gives rise to a safety risk for people and property. The flooding experts agreed that the principal risk of concern is the risk to life.[146] Doonan property accepts that this risk must be managed in accordance with the requirements of the planning scheme.
  2. [175]
    Council allege a number of non-compliances with the planning scheme by reason of flooding risk. The planning scheme provisions relied upon, which are identified at paragraph 133 of Council’s written submissions, are contained in the Strategic framework, Rural residential zone code and the Overlay code.
  3. [176]
    The Overlay code is the best starting point for an examination of flooding related issues. As the purpose confirms, the code is intended to ensure ‘development protects people and avoids or mitigates the potential adverse impacts of flood…on property’. It is typical of codes in a performance based planning scheme. The stated purpose will be achieved through a list of overall outcomes. The code also includes Performance outcomes and Acceptable outcomes for accepted and assessable development. The provisions relevant to assessable development are contained in Table 8.2.7.3.2 of the Overlay code.
  1. [177]
    The Performance outcomes and Acceptable outcomes for assessable development in Table 8.2.7.3.2 are grouped under seven headings. The heading calling for particular attention here is ‘Flood and Storm Tide Inundation Immunity and Safety – Development Siting and Design’. Performance outcomes PO3 and PO4 are grouped under this heading. There is little controversy about PO4 so I will deal with it first.
  2. [178]
    PO4 states:[147]

“Development does not compromise the safety of people resulting from the residual flood or storm tide inundation risk associated with the events exceeding the DFE or DSTE, up to and including the probable maximum flood (PMF) or probable maximum storm tide (PMST).”

  1. [179]
    Council initially alleged non-compliance with PO4. Sensibly, it did not press the non-compliance in final submissions[148] given the development complies with the corresponding Acceptable outcome, AO4. This provision identifies two alternatives that will achieve compliance with PO4. The applicable alternative here states:

“…Development incorporates building floor levels or surface levels within each lot, as adequate safe refuges, that are above the PMF or PMST.”

  1. [180]
    Quite apart from Council’s concession, I am comfortably satisfied AO4 is met in the circumstances of this case.
  2. [181]
    As I observed at paragraphs [32] and [35], the proposed development incorporates floor levels above the PMF for patrons and staff to comfortably shelter-in-place (with necessary amenities). This can occur in two separate structures, namely the Hotel (at levels 2 and 3) and the Cellar door building. I also note that Mr Molino, Council’s flooding expert, conceded compliance had been demonstrated with AO4.[149]
  3. [182]
    PO3 of the Overlay code states:[150]

“Development provides that for all flood and storm tide inundation events up to and including the DFE and DSTE: -

(a)  the safety of people on the site is protected; and

(b) the risk of damage to property on the site is avoided or minimised as far as practicable.”

  1. [183]
    There are three Acceptable outcomes applicable to PO3. Only one is of relevance to the proposed development, namely AO3.1, which states:[151]

“Finished surface and floor levels of Urban lots, and buildings and infrastructure comply with the flood immunity requirements specified in Table 8.2.7.3.3 (Flood levels and flood immunity requirements for development and infrastructure).

  1. [184]
    AO3.1 requires consideration to be given to the floor level of the development relative to a flood immunity level derived from Table 8.2.7.3.3.[152] That table identifies, by reference to ‘Type of development’, two things: (1) a flood level that includes an allowance for climate change (DFE/DSTE); and (2) a Minimum design level. It was uncontroversial that the Hotel falls within the ‘Business’ development type. For that development type, the minimum design floor level is stated in Column 3B of the table as ‘DFE/DSTE + 0.5m or Historical + 0.6m’. The DFE/DSTE is prescribed in Columns 2A and 2B of the table. In combination, those columns prescribe that the relevant flood level for ‘Business’ is the 1% AEP, with a planning period for climate change to the year 2100.
  2. [185]
    The ‘DFE’ is of relevance to this case, which is an anacronym for Defined flood event. This term is defined in the planning scheme as follows:[153]

“The event, measured in terms of the likelihood occurrence, adopted by the Council to manage development as identified in Column 2 of Table 8.2.7.3.3 (Flood levels and flood immunity requirements for development infrastructure) of the Flood hazard overlay code. The DFE incorporates an allowance for future climate change over the design life of the development, through increased rainfall intensities and mean sea level rise.”

  1. [186]
    For the purposes of the definition, the relevant ‘event’ here is the 1% AEP at the year 2100, allowing for climate change. The level adopted by Council to manage development for this event is identified in a ‘Flood information search’. This is a Council document and was attached to Mr Collins’ further statement of evidence.[154] The document states that the defined flood event for conditions estimated at 2100 in the 1% AEP is RL 20.05m AHD.[155] The same Council document identifies the highest recorded flood as RL 19.56m AHD. Given a specific DFE has been adopted, it is that figure used for the purpose of AO3.1 rather than the historic figure.[156]
  1. [187]
    To comply with AO3.1, the finished surface and floor levels must comply with the flood immunity requirements of Table 8.2.7.3.3. The flood immunity requirement is the ‘Minimum design level’ derived from Column 3 of the table. As I said above, Column 3B prescribes a minimum floor level that is the DFE plus 0.5m. In this case, that equates to a level of RL 20.55m AHD. The addition of 0.5m is to provide ‘freeboard’. The function and importance of freeboard was explained by Mr Molino in his evidence-in-chief:[157]

“Freeboard…has a number of important functions.  First of all, in terms of the flood modelling, …there will be uncertainties as to the accuracy of the model outputs in any particular location, just in terms of the calculated outputs.  So the freeboard in part takes that into account.  But more importantly, in any real flood, the flood [surface] is not a planar surface, a smooth planar surface as assumed in a flood model, a mathematical model.  There are irregularities in the surface, there will be waves, there will be water piling up around obstacles and any debris that might be caught on the ground.  And so the freeboard takes into account the fact that at a… particular spot, the calculation might be that this is a flood level but then you have all these irregularities around that and that is the reason for having the freeboard.”

  1. [188]
    The proposed Cellar door complies with AO3.1. It is proposed to have a minimum floor level above the PMF.
  2. [189]
    The second and third levels of the Hotel comply with AO3.1 as they are elevated above the PMF.
  3. [190]
    The ground floor of the Hotel is at RL 19.56m AHD[158] and does not comply with AO3.1, which calls for a minimum floor level of RL 20.55m AHD.
  4. [191]
    That there is a departure from AO3.1 is not fatal. It simply means attention must be given to the terms of PO3. In this case, only part of that provision is in issue. Council did not press non-compliance with PO3(b). This is because Mr Molino conceded compliance had been demonstrated with this part of the provision.[159]
  5. [192]
    Having regard to the circumstances of this case, PO3(a) requires the following question to be asked and answered: Does the development provide that for all flood events up to and including the DFE, the safety of people on the site[160] is protected? The DFE is, as stated above, the defined flood event for conditions estimated at 2100 in the 1% AEP. This equates to a flood level of RL 20.05m AHD.
  1. [193]
    Doonan property relies upon the evidence of Mr Collins to demonstrate compliance with all aspects of the planning scheme relevant to flooding. He is a senior engineer with forty years experience and a recognised speciality, namely Hydraulics and water resources.[161] Key areas of Mr Collins’ expertise include floodplain management, risk assessment and management and emergency flood management planning.
  2. [194]
    Mr Collins was satisfied the proposed development could be conditioned to ensure a safe level of risk for people and property on the land.[162] The conditions would include the active and passive management measures referred to at paragraphs [35] and [36], but principally the FEMP, coupled with the limit proposed for the onsite population.
  3. [195]
    In reaching this view, it is clear from Mr Collins’ evidence that he took into account a number of considerations, including: (1) the highest recorded level of flooding near the land, being RL 19.56m AHD;[163] (2) that no flooding over the existing ground floor had been observed by Mr Comiskey in significant flood events;[164] (3) the results of site specific flood modelling undertaken by him for the land;[165] (4) that the land is a low flood hazard risk;[166] (5) the passive and active measures proposed to manage the risk of flood to people and property;[167] (6) that diligent adherence to the FEMP, in particular, would be required to properly manage flood risk to people on the land;[168] (7) there is a risk of some element of failure in the application of the FEMP;[169] (8) that the proposed development would result in the intensification of the number of people on the land;[170] (9) the consequences of flood hazards;[171] and (10) an overall improvement to the flood risk profile of the land in the event an approval was granted.[172]
  4. [196]
    With respect to the flood modelling, the results allowed Mr Collins to carefully examine the frequency of flood events on the land, and the depth and velocity of flood waters in those events. 
  5. [197]
    The modelling revealed that flood events on the land are frequent, that is every 1 to 2 years on average. Those events are, however, less than a few hours in duration.[173]
  1. [198]
    The modelling revealed that the depths of flood waters on the land are shallow and do not vary greatly in height due to, inter alia, the wide and flat nature of the flood plain.[174] By way of illustration, the depth of flooding in the 1 year flood is at RL 19.28m AHD, rising 330 millimetres to RL 19.61m AHD in the 1% AEP.  In the latter event, the modelling reveals the following levels of inundation relative to particular parts of the proposed development:[175] (1) 50 millimetres over the ground floor of the Hotel, which is at RL 19.56m AHD; (2) 310 millimetres over the outdoor dining area, which is at RL 19.30m AHD;[176] (3) 210 millimetres over the crossover to the carpark, which is at RL 19.40m AHD; and (4) 160 millimetres to 320 millimetres over the carpark, which ranges in height from RL 19.29m AHD to RL 19.45m AHD. 
  2. [199]
    The flood modelling revealed that flood velocity in infrequent and rare events is low.[177]
  3. [200]
    The inputs, and outputs, of the site specific flood model were not challenged by Council.
  4. [201]
    With the benefit of site specific flood modelling, Mr Collins expressed the following opinion:[178]

“The flood hazard for the Site is considered to be of ‘low flood hazard’ for children and adults in the 1 in 50-year and 1 in 100-year AEP events respectively.’

  1. [202]
    This opinion is complemented by a point of agreement at paragraph 11 of the flooding joint report, which states:[179]

“The flood hazard around the buildings is considered low for adults up to the 1 in 500 AEP event i.e. wading adults would be stable in this event.”

  1. [203]
    The flood modelling permitted Mr Collins to examine the flood level adopted by Council for the DFE. It will be recalled that the adopted flood level is RL 20.05m AHD. This compares to a level of RL 19.61m AHD as modelled by Mr Collins in the location of the ground floor of the Hotel. Mr Collins explained that the difference was the product of Council adopting a flood level located at the site boundary, which is not representative of the level expected in areas to be utilised by patrons and staff.[180] This evidence was not challenged.
  1. [204]
    As I observed above, Mr Collins took into account that an approval, subject to conditions, would yield an improvement to the flood risk profile of the land. He gave a compelling reason for this in his evidence-in-chief:[181]

“…The issue I have with the earlier approval and the existing use, if they were to go back to running it under the existing use, is that there is no FEMP.  There was an approval for a caretaker’s facility, so someone could live on it 24/7, which is an added risk.  But there was no control mechanisms for people coming and going to the site, so – and there was no warning.  There was no warning systems. There was certainly no pre-cancellation systems, as far as I’m aware, and there was no requirement for the operator to do any of those things.  So you have a situation where there’s 40 sit down diners, potentially …some stand up drinking on top of that, however many the number of people that that liquor licence allowed on the premises, with no warning, and the first they know about is they hear the creek roaring and it’s already well above the trigger levels that I’ve set and they try and hightail it out of there.  So they’re then going to be driving into the scenarios that Mr Molino…certainly had some concerns about, which is travelling into flooded waters and going into deeper waters, with no controls.  We have the ability to lock them in, and whether it’s 70, 40 or 200 patrons, we have ample room to accommodate them.  So when you look at the risk profile of the existing operations versus the risk profile with the proposed FEMP in place, fully operational, boom gate controls, for example, flashing light warnings when you …hit level 1, red light flashing when you hit level 2, SMS text to manager, SMS text to the Comiskey management that the site is flooding and needs to be closed, all automated, it’s got to be a better risk profile, in my view.”

  1. [205]
    I did not understand Council’s flooding expert, Mr Molino, to disagree with the views expressed by Mr Collins in relation to the improved risk profile. Indeed, Mr Molino confirmed his agreement in cross-examination.[182] This concession was consistent with the following points of agreement recorded in the flooding joint report, namely:[183]

“6.  POINTS OF AGREEMENT

  It is agreed that:

  …  

3. Mr Collins was advised by the Appellant that there was previously a resident on-site caretaker living in the building. The proposed development does not propose an on site resident caretaker. This represents a reduced risk in that regard.

…

14. There is currently no flood emergency response plan for the site. The creation of a flood emergency response plan will reduce the risks for each individual on site when it floods.”

  1. [206]
    At one stage during Council’s case, I apprehended an intention to suggest that the improvement to the risk profile for the land was overshadowed by a further relevant consideration.  In this regard, Mr Hughes QC suggested to Mr Collins that flooding risk was better dealt with by another form of development on the land. It was put to Mr Collins that the ‘ideal use’ for the land involves ‘few people on the site, like a rural residential development’.[184] 
  2. [207]
    I do not accept it is the Court’s role to determine the ‘ideal use’ for the land. The test is whether the proposed development is acceptable having regard to, inter alia, the assessment benchmarks. If a contrary view were taken, I accept Mr Collins’ response to the proposition put to him. He rejected the proposition. This was made clear in the following exchange:[185]

“If the number of people on the site is an important issue, and we’ve agreed that it’s part of the management issue, I think you’ve said, then obviously the ideal use for this land would be a use that involves few people on the site, like a rural residential development, correct?‑‑‑Well, a rural residential development without the FEMP might actually pose greater risk to people, and you can’t impose a requirement for a FEMP on a single dwelling.

But you can certainly impose on a single dwelling that the…floor level be well above flood level, correct?‑‑‑Yes, but you can’t make it above the PMF, so if you put it to the levels you’re talking about, there’s going to be risk if people try and leave in the middle of the flood.”

  1. [208]
    The point made by Mr Collins, as I understand it, is that Rural residential development would necessarily involve people residing on the land in a dwelling that has a floor level below the PMF, and with no FEMP to manage flood risk. It follows from this that, unlike the subject proposal, the occupants of the dwelling cannot shelter-in-place for all flood events. Further, there is no flood warning system for the occupants indicating when it is safe to leave the land in rising flood waters. When these matters are appreciated, it is not difficult to conclude, as Mr Collins did, that the proposed development represents a superior response to flooding risk than the use of the land for a detached dwelling in a rural residential context.
  2. [209]
    In its written submissions, Council devoted significant attention to the issue of flooding risk. Those submissions were highly critical of the active management measures proposed to protect people from flood risk. They went so far as to endorse a view expressed by Mr Molino that to grant an approval in this case would be irresponsible. Whilst I have serious misgivings about a submission expressed in these terms, a careful examination of the points made on behalf of Council in relation to flooding risk to people is nonetheless called for; the issues raised go to a matter of public safety. This exercise involves comparing the submissions made against the evidence before the Court.
  1. [210]
    On close inspection, it is my view that Council’s submissions failed to consider the flooding risk issue by reference to all of Mr Molino’s evidence, in particular, his evidence seen in the light of cross-examination. When considered in this way, Mr Molino’s opinions shifted considerably during his oral evidence.
  2. [211]
    Two shifts in the evidence can be identified. First, in his oral evidence, Mr Molino sought to depart from points of agreement in the joint report.[186] In some, but not all cases, he gave no reasons for the change of opinion. This made Mr Molino’s evidence difficult to test and undermined its reliability. This difficulty was pointed out by Doonan property, but not confronted by Council. Second, and more importantly, Mr Molino made concessions that had the effect of narrowing the bases upon which he said non-compliance with PO3(a) was maintained.
  3. [212]
    In cross-examination, Mr Batty pressed Mr Molino to identify, with precision, why he held a different view to Mr Collins in relation to flooding risk. The pointed questioning exposed, for the first time in the appeal, that it was Mr Molino’s view that the FEMP proposed was adequate and appropriate, provided compliance was achieved.[187] He also conceded that the safety of people on the site would be protected if the FEMP was followed.[188] These concessions are difficult to reconcile with views expressed in Mr Molino’s further statement of evidence. In that report[189] he said an FEMP ‘is fundamentally not sufficient for a development of the kind proposed’.
  4. [213]
    The substance of these concessions should have been disclosed by Mr Molino well before cross-examination commenced. That they were withheld is a matter about which I have serious misgivings. It smacked of an expert for a refusing party withholding information from a developer, and the Court, for a forensic purpose; namely, to minimise harm to a client’s refusal case. Whether that is what occurred here is something about which I need not form a final view; however, the failure to make what I regard as key concessions in a timely way undermined Mr Molino’s evidence.
  5. [214]
    Mr Molino’s concessions had the effect of narrowing the flooding issue to be determined. This was not lost on Mr Batty, who pressed Mr Molino to identify his remaining ‘concerns’ that warrant refusal in relation to flooding risk. The concerns were reduced to two propositions, which appear in the following passage of the transcript at T2-33, Lines 1 to 3, namely:

“So the principal concerns are one, that you say it’s inappropriate to evacuate by road and two, that effectively people will be exposed through poor decision making, potentially to flood waters.  Is that a fair summary?   Yes.”

  1. [215]
    The first of Mr Molino’s ‘concerns’ relates to patrons leaving the land during a flood event in their vehicle, thereby exposing themselves to flooding risk. Mr Batty correctly pointed out that such a circumstance would not arise if the first category of warning system was engaged (weather forecast trigger). In circumstances where this trigger was engaged, the FEMP would not permit the Hotel to commence trading. Mr Molino agreed. Mr Molino’s first concern was therefore limited to circumstances where the Hotel is trading, and flood waters are rising.
  2. [216]
    In response to Mr Molino’s concern, Mr Batty suggested that the safest approach was to prevent patrons leaving the land. He said this could be achieved by the provision of a boom gate (and associated fencing) for the carpark, which is locked when the monitoring system strikes RL 18.30m AHD (the first trigger).[190] Mr Molino agreed, subject to one qualification, namely he was concerned the ‘gate will not always be locked’.[191] This qualification echoed an earlier viewed expressed by him that no FEMP is failsafe.
  3. [217]
    The second concern identified by Mr Molino goes to poor decision making by the operators of the Hotel and irrational behaviour by patrons. In either case, Mr Molino made the point that the FEMP is a critical document for the management of flood risk, and will be frequently implemented. Mr Molino said the more the FEMP is implemented, there is a higher likelihood something will go wrong.
  4. [218]
    The ‘principal concerns’ expressed by Mr Molino are relevant to an assessment of the development against PO3(a), but I am persuaded they should not be decisive. This is so for five reasons. 
  5. [219]
    First, I am satisfied the first principal concern can be dealt with by an amendment to the FEMP as suggested by Mr Batty. The amendment will address what Mr Collins regarded as the key area of risk management,[192] namely safe access and egress during a flood event. This is the same amendment referred to at paragraph [37].
  6. [220]
    Second, the evidence establishes that the FEMP will protect the safety of people on the land up to and beyond the DFE. This is not undermined by a general assertion that the document is not failsafe or is vulnerable to poor decision making by the operator. Such a criticism could be levelled at many conditions of approval imposed by this Court, particularly those requiring adaptive management. Conditions of this kind are, by their very nature, vulnerable to human error. No doubt for this reason, the Court has said in the past that the onus in the appeal does not require an applicant to demonstrate ‘in a proposal yet untried, the complete absence of any likely future difficulty’.[193] It is more important the evidence establishes that Doonan property: (1) readily appreciates the need for compliance with the FEMP; (2) readily appreciates the potential consequences of non-compliance with the FEMP; and (3) is confident it has the capacity to deal with any difficulty that might arise with the implementation of the FEMP in a manner that precludes an unacceptable result. I am comfortably satisfied Mr Comiskey’s evidence establishes each of these matters.
  7. [221]
    Third, Mr Molino’s concerns are founded on an assumption that the FEMP will need to be frequently implemented. As I understand his evidence, it is the frequency of implementation that caused him to give significant, if not decisive, weight to the ‘principal concerns’. It is the frequency of implementation he says will lead to the application of commercial pressure, or complacency, undermining the intent to manage flooding risk through the FEMP. This evidence, in my view, is founded upon an inflated assumption about ‘frequency’. Mr Molino assumed the FEMP would be activated such that the Hotel is required to close up to 24 times a year. Mr Collins did not agree. He suggested, by reference to data from the Eumundi rain gauge, that the FEMP may require the Hotel to close 6 times per year, with a ‘worst case’ scenario being up to 12 times per year.[194] I prefer Mr Collins’ evidence. It is based upon an examination of local rainfall data.
  8. [222]
    Fourth, Mr Molino’s evidence assumes there will be non-compliance with the FEMP, which, in turn, assumes Doonan property will not comply with conditions of an approval. This combination of assumptions is, prima facie, difficult to accept. An application is ordinarily assessed by the Court on the footing an applicant will comply with conditions imposed on any approval.[195] That is not to say a contrary view may never be adopted; evidence may establish there is good reason to do so. Here, particularly in the light of paragraphs [219] and [220], the evidence falls well short of this mark.
  9. [223]
    Finally, in an ideal world, the risk that patrons may make poor decisions and act irrationally during a flood event should be eliminated from this development. The difficulty is, this is not an ideal world. A practical and realistic view must be adopted.[196] Here, a practical and realistic view of the evidence reveals that irrational behaviour by patrons will be minimised, to the greatest extent practicable, by two aspects of the proposal: (1) the Hotel will not open for business in particular categories of inclement weather – there will be no patrons on the land; and (2) by restricting access and egress to the carpark after a flood warning at RL 18.30m AHD is triggered.
  10. [224]
    Having regard to the matters set out above, I prefer Mr Collins’ evidence. It is the product of a careful and comprehensive analysis of flooding risk to people and property.
  11. [225]
    Does Mr Collins’ evidence establish compliance with PO3(a)?
  1. [226]
    Before answering this question, it is appropriate to recall what Judge Quirk said in Lane v Gatton Shire Council & Anor [1988] QPLR 49[197] at 51. His Honour observed:

“The attractions of avoiding responsibility for allowing any proposal which has an element of serious risk, while only too obvious, must be resisted. As Carter J. when constituting this Court in Davjan v Noosa Shire Council 1981 QPLR 69 observed, when a similar situation arose, “such an approach would be superficial and an abrogation of my judicial function”. He went on to point out that the standard to which a tribunal must be satisfied that a development will not of itself be a source of risk… is the “civil standard”, namely “a degree of persuasion of the mind according to the balance of probabilities”.” [198]

  1. [227]
    With this observation in mind, I am comfortably satisfied Mr Collins’ evidence establishes compliance with PO3(a).
  2. [228]
    In arriving at this conclusion, I am mindful Mr Collins assessed flooding risk by reference to a range of considerations, including site specific flood modelling. If particular attention is given to the model output for the inundation level in the 1% AEP in the year 2100, the resulting level is less than that adopted by Council as the DFE. It is also less than the Minimum design level determined by reference to AO3.1. Irrespective of which level is adopted, that is RL 19.61m AHD from the model, or RL 20.05m AHD in the year 2100 as adopted by Council for the 1% AEP, or RL 20.55m AHD by reference to AO3.1, I am satisfied compliance is demonstrated with PO3(a). In short, this is because the active and passive management measures proposed are engaged well before the 1% AEP flood event reaches any of these levels.
  3. [229]
    More particularly in this regard it can be observed that: (1) the limit for the onsite population applies irrespective of the precise flood level in the 1% AEP; (2) the FEMP requires the Hotel to not open in specified circumstances, which are not related to the precise level of inundation in the 1% AEP flood; (3) in the event the Hotel is open and flood waters are rising, a lockable boom gate to the carpark will be closed when flood waters reach RL 18.30m AHD, some 1.75m below Council’s adopted DFE; and (4) irrespective of the size of the flood event, patrons and staff can safely, and comfortably, shelter-in-place on the land during significant flood events, including the PMF, which is modelled to reach RL20.35m AHD. Each of these measures give me a high degree of comfort that compliance is achieved with PO3(a) and PO4 of the same code. PO4 has in mind that the safety of people is not compromised in the rarest flood event, namely the PMF.
  4. [230]
    Council challenged the cap proposed to limit the number of people on the land at any one time. It was submitted it would be difficult to comply with such a requirement, which will be critical to managing flooding risk. I do not accept this submission.
  5. [231]
    Firstly, as a matter of form, I am comfortably satisfied a condition of approval can be crafted to ensure the maximum number of people on site at any one time does not exceed 225. The condition would need to incorporate the draft Patron numbers management plan attached to Mr Comiskey’s statement of evidence.[199]
  6. [232]
    I am also satisfied, having regard to Mr Comiskey’s evidence, there are ways and means, which are feasible, to manage the number of people present on site to comply with any condition of approval in this regard.  This would principally occur by adopting, and implementing, the draft Patron numbers management plan. That plan has been drafted, and reviewed, with the benefit of considerable experience gained by Mr Comiskey as a consequence of Covid-19 restrictions that have been in force.[200] The restrictions have involved, inter alia, a requirement to limit the number of patrons per square metre in existing hotel operations.
  7. [233]
    Council’s written submissions advanced an unconvincing proposition that the draft Patron numbers management plan would not achieve its intended purpose because the site is large and it was unrealistic to expect staff to monitor every person that enters the land.[201] Further, it was pointed out that the maximum limit will be hard to manage because patrons, who are turned away from the Hotel by staff, may choose to wait in their cars in the carpark for space to become available.[202]
  8. [234]
    Whilst it can be accepted that circumstances such as this may arise, they represent the exception to usual practice and do not, in any event, pose an unacceptable safety risk. The evidence establishes there is ample space within the Hotel or Cellar door above the PMF to accommodate additional members of the public during a flooding event, if required.[203] They, like the 225 onsite, can safely shelter-in-place.
  9. [235]
    I am satisfied the proposed development complies with PO3 and PO4 in table 8.2.7.3.2 of the Overlay code. The evidence demonstrating compliance with these provisions also, in my view, establishes compliance with overall outcomes in the same code, namely (2)(a), (c) and (d). More particularly, I am satisfied Mr Collins’ evidence establishes that:
    1. (a)
      the impacts of flooding can be effectively ameliorated such that there is no foreseeable risk to life or property, or alternatively, if there is foreseeable risk, it can be effectively ameliorated to a level that is acceptable;[204]
    2. (b)
      the proposed development is compatible with the nature of the defined flood;[205] and
    3. (c)
      the development can be conditioned to ensure the safety of people is protected and the risk of harm to property and the natural environment from flood and storm tide inundation is minimised.[206]
  10. [236]
    With respect to Council’s submissions that advance non-compliances with the Strategic framework by reason of flooding, I am satisfied the evidence establishes otherwise.[207] Mr Collins’ evidence establishes that the development can be approved, subject to conditions, to ensure:
    1. (a)
      the risk of harm to people, property, economic activity and the environment due to flooding is minimised;[208]
    2. (b)
      an area of community isolation is not created by reason of sheltering-in-place on the land,[209] or alternatively, if people are ‘isolated’, it is for a short duration with an appropriate and comfortable level of amenities;[210] and
    3. (c)
      the impacts of flooding can be effectively ameliorated such that there is no foreseeable risk to life or property, or alternatively, if there is foreseeable risk it can be effectively ameliorated to a level that is acceptable.[211]
  11. [237]
    With respect to Council’s submissions that advance non-compliances with the Rural residential zone code by reason of flooding, I am satisfied the evidence establishes otherwise.[212] In this regard, Mr Collins’ evidence establishes the development can be approved, subject to conditions, which demonstrate it has been designed and sited to sensitively respond to known flooding constraints.[213]
  12. [238]
    For the reasons given above, I am satisfied the proposed development, if approved subject to conditions, would not result in unacceptable flooding risks when assessed against the planning scheme.

Need

  1. [239]
    Doonan property contends there is a town planning, community and economic need for the proposed development. This is relied upon as a relevant matter in support of approval.[214]
  2. [240]
    Council joins issue with this contention. It is submitted the evidence does not establish there is a latent unsatisfied demand that cannot be met, or adequately met.[215]
  3. [241]
    There was no dispute between the parties as to the relevant principles to be applied in relation to the issue of need. Both parties referred in their written submissions to decisions of this Court,[216] which reiterate that:
    1. (a)
      need, in planning terms, is widely interpretated as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community;
    2. (b)
      a need cannot be a contrived one;
    3. (c)
      the basic assumption is that there is a latent unsatisfied demand which is either not being met at all, or is not being adequately met;
    4. (d)
      the question whether need exists is to be decided from the perspective of a community and not that of the applicant for development, its competitors or objectors; and
    5. (e)
      the weight to be afforded to need is not fixed.[217]
  4. [242]
    To examine the question of need, I was assisted by evidence from two economists; Mr Duane for Doonan property; Mr Brown for Council. They prepared a joint report wherein a trade area was agreed.[218] The trade area is illustrated on Map 1 of the joint report.[219] Whilst there was a small point of disagreement, which need not be resolved, the economists proceeded on the footing that the residential population of the trade area in 2021 was in the order of 5,170 to 5,220 persons and would grow at a low annual rate of 0.8%.[220] Having regard to the population figures discussed in the report, it was agreed the trade area is characterised by a family population.[221]
  5. [243]
    Mr Duane estimated the total ‘spend’ by the residents of the trade area in relation to cafes, restaurants, take-home liquor and non-retail liquor. In 2020 this was in the order of $8 million, increasing to $9.4 million in 2036.[222] In comparison, Mr Brown estimated a spend of $8.1 million increasing to $10.2 million in the same period.[223] To this spend needs to be added an allowance for tourists to the area who, it was agreed, add significantly to the available expenditure for a range of retail and non-retail facilities.[224] Mr Duane considered the subject proposal well located to capture some of that expenditure.[225] Mr Brown was less optimistic.[226] Both however agreed that ‘tourists could potentially account for a significant proportion of trade for the subject development’.[227] As I understood the evidence, neither economist was able to estimate, with precision, the value of trade anticipated from tourists.
  1. [244]
    After examining likely demand, the economists turned to consider existing supply, which revealed: (1) no existing commercial hotels are located within the trade area;[228] (2) the nearest existing commercial hotels are located in Eumundi, some 8.1 and 8.7 kilometres from the land;[229] (3) a commercial club facility, namely the Noosa Valley Golf Club is located within the trade area;[230] (4) one ‘commercial other - subsidiary on premises’ liquor licence, which includes a restaurant, is located in the trade area (Doonan café to the immediate south-east of the land);[231] and (5) there are no packaged liquor outlets located within the trade area.[232]
  2. [245]
    Mr Duane sought to complement the above supply analysis with data sourced from a report produced by the office of Liquor and Gaming Regulation Queensland for the year 2018/2019.[233] When detail within the report is interrogated, it suggests there is a supply of one commercial hotel licence for every 3,700 Queenslanders.[234] This, Mr Duane said, could be compared to the provision of commercial hotels on the Sunshine Coast. In this area, there are 55 commercial hotels, representing one license for every 6,800 residents. As I understood Mr Duane’s evidence, he advanced the proposition that these figures assisted in two ways: (1) by identifying, in a broad way, the number of residents required to support a tavern; and (2) to understand the extent to which an area may be serviced relative to other residential populations. I accept the figures can be used for the purposes suggested by Mr Duane.[235]
  3. [246]
    Does the evidence establish there is a latent unsatisfied demand for the proposed development?
  4. [247]
    I am satisfied the evidence establishes this question is resolved in the affirmative. 
  5. [248]
    It is demonstrated by reference to the following features of the evidence, taken in combination, namely: (1) the trade area; (2) the population of the trade area; and (3) the absence of facilities within the trade area that can fairly be regarded as equivalent alternatives. That there is a latent unsatisfied demand is only reinforced by the matters referred to at paragraph [245]. The figures discussed in that paragraph suggest, as Mr Duane said, there is, quite apart from tourists, sufficient residential population in the trade area to support the proposed development. The figures also suggest there is an under provision of commercial hotel licences, and packaged liquor outlets, on the Sunshine Coast.
  1. [249]
    In Mr Brown’s opinion, there is no economic need for the proposed development. His views in this regard were summarised at paragraph 100 of the joint Economic Need Report.  As I understood his evidence, Mr Brown placed considerable reliance upon the proposition that the trade area was too small to support the proposal because it: (1) is largely rural or rural residential in character; and (2) is heavily contested by venues located in other parts of the Sunshine Coast, principally Eumundi and Noosa. These matters were pressed strongly by Council in its written submissions. In this regard, they were relied upon, in combination, to submit there is an ‘absence of a latent unsatisfied demand’.[236]
  2. [250]
    I prefer Mr Duane’s evidence to that of Mr Brown. Mr Duane’s evidence establishes there is an existing (and slow growing) residential population of sufficient size to support the proposed development. The demand generated by this population will be complemented by demand from tourists, which is not reflected in the assessment of available ‘spend’. The demand from tourists will, as agreed, likely add ‘significantly to available expenditure’.[237] Once these matters are appreciated, the point made by Mr Brown about the nature of the trade area (being rural or rural residential development), in my view, loses considerable force.
  3. [251]
    It is correct to say, as Mr Brown points out, that the trade area will be contested by a range of venues. This is indicative of a circumstance where there is a mature market with overlapping catchments or trade areas. To suggest that overlap, in and of itself, is of concern here is insufficient. It is necessary to examine the issue in more detail, just as Mr Duane did. He considered the points of similarity and difference between the proposal and competing venues. That exercise revealed there are points of differentiation between the subject proposal and competing venues, particularly the existing commercial hotels in Eumundi.
  4. [252]
    After completing his examination of similarities and differences, Mr Duane was well placed to express the opinion attributed to him at paragraph 73 of the joint Economic Need Report:

“GD says as with any catchment there are overlapping areas, and the subject facility will impact on a range of Hotels, restaurants and the like, ultimately dependant on the offering, pricing and range of facilities offered. GD notes in relation to facilities at Eumundi the following, which would differentiate the offerings to the resident and tourist market from the subject proposal:

  1. Joe’s Waterhole Hotel has accommodation, live music and gaming, which the subject proposal does not.
  2. The Imperial Hotel is a well known tourist landmark including a brewery which offers tasting tours and live music.”
  1. [253]
    A similar point was also made by Mr Duane at paragraph 31 of the same report, where he said:

“…although the licence will be for a Commercial Hotel at the site, the size and range of facilities would be much smaller than a typical hotel/tavern facility. In effect, the facility will operate more as a restaurant with the ability to serve alcohol without having a meal and the opportunity to purchase packaged liquor to consume off premises.” 

  1. [254]
    The opinions expressed by Mr Duane are consistent with, and find support in the findings I have made at paragraphs [39] and [41] and Mr Comiskey’s evidence. As I have already observed, Mr Comiskey is an experienced hotelier. He expressed the view, with confidence, that the proposed development would be successful, if approved.[238] This confidence was derived from two matters he discussed in his evidence. First, Mr Comiskey said that one of the traits of a successful and popular Hotel is a point of focus.[239] He identified the point of focus here as the provision of a family orientated hotel based on a paddock to plate concept.[240] Second, in his view, the land is attractive for the Hotel because:[241]

“(a) the Land has a previous history of being used for commercial purposes. The development will achieve an adaptive reuse of the existing commercial building on the Land;

(b) the Land is located on a major thoroughfare and it is on the gateway to Noosa;

(c) the Land sits within an informal hub of existing commercial uses on Eumundi-Noosa Road; and

(d) being located within a rural setting complements the proposed paddock to plate concept.”

  1. [255]
    I accept Mr Comiskey’s evidence in this regard. This evidence is by no means decisive, but gives me further comfort that Mr Duane’s evidence is to be preferred to the less than optimistic view expressed by Mr Brown.[242] It confirms the land is well located to meet the identified need, which is strongest in force in and around this particular location for reasons given at paragraph [266].
  2. [256]
    I apprehended from Mr Brown’s oral evidence that he sought to downplay the differences between the proposal and existing facilities. In fact, I was left with the clear impression that he saw no genuine point of differentiation between the proposal and existing facilities in Eumundi. I cannot accept this is correct in the light of Mr Duane’s analysis or Mr Comiskey’s evidence.
  1. [257]
    In addition to Mr Duane’s and Mr Comiskey’s evidence, I am satisfied several further points of distinction can be identified between the proposal and competing facilities located outside of the agreed trade area. The differences are: (1) the proposal is centrally located, and within a convenient distance, to the entire trade area unlike competitors who are removed to the east and west; (2) patrons attending the subject proposal will be able to park in a conveniently located at-grade carpark, which is close to the door of the Hotel and Cellar door; (3) the subject proposal will enjoy a different setting to existing commercial hotels - it is intended to be a family orientated Hotel situated in an area where the amenity will not be diminished by activity reasonably anticipated in a tourist centre attracting 1,200,000 visitors per annum.
  2. [258]
    It can be observed that many of the points of difference discussed above were identified in the properly made submissions and the lay witness statements before the Court. They are differences, I am satisfied, which will stand the subject proposal in good stead to meet the demands of the residential population of the trade area. It will do so in circumstances where it will not replicate existing services and facilities. Overall, there will, in my view, be a net increase[243] in available facilities and services to the public in the event an approval is granted and acted upon.
  3. [259]
    The more significant question in this case is whether the latent unsatisfied demand identified can be met, or adequately met, by the planning scheme.
  4. [260]
    The planning scheme directs Hotels to locate in a Centre zone or the Tourist accommodation zone. There was no suggestion in this case that land in either of these zones is located within the agreed trade area. It does not necessarily follow from this that the planning scheme has made no provision, or inadequate provision, for the identified demand. This was the case advanced by Council, who contended that any demand can be met on land in the Eumundi Centre, which is appropriately zoned. Added to this, Council contended there was no evidence to establish that the proposed development could not be accommodated in the Eumundi Centre.
  5. [261]
    The submissions advanced on behalf of Council in this respect are of significant force. This is because it is correct to say that provision has been made, in a land use sense, in the planning scheme for Hotels. The provision made was informed by important forward planning decisions about, inter alia, the location and maintenance of centres; the types of uses included in particular centres; and the requirement to limit out-of-centre activities. The provision made in the planning scheme for the proposed use does not fall within the trade area.
  1. [262]
    In response to Council’s position, Mr Batty submitted that the critical question here is whether it is unreasonable to require residents of the trade area to travel to the Eumundi centre or Noosaville to access development of the kind proposed. The oral submission made in this regard was, in part, as follows:[244]

“MR BATTY:   Your Honour, this point comes down to whether your Honour is prepared to accept whether it is reasonable or not that people, from this locality, have to travel eight, 10 kilometres – whatever it is – to Eumundi, or Noosaville, in order to obtain packaged liquor – or a meal out – effectively. That is the crux of the point, and we say that’s resolved in our favour for a number of reasons, 1) the public submissions and the lay witness statements…That on the ground evidence is then supported by the evidence of Mr Duane,.. effectively there’s 5200 people who would benefit from having more ready access to this type of facility.  Now, there is not a submission from us that it is impossible to get a restaurant meal or packaged liquor if you live in Doonan, you’ve just got to be willing to travel for it, and we say that is not an instance where the demand is being adequately met.”

  1. [263]
    The above submission makes clear it is Doonan property’s case that the travel distances for residents of the trade area to access facilities of the kind proposed mean the planning scheme cannot be said to make adequate provision for the latent unsatisfied demand that has been identified. I accept this submission is correct, provided it is established that the travel distances referred to are unreasonable.
  2. [264]
    Whether travel distances are unreasonable is a question of fact and degree, turning on matters of impression. As Council and its witnesses correctly pointed out, any consideration of this issue must take into account the nature of the area, which is intended to be rural residential.[245] In an area of this kind, residents can, and should, expect to travel further to access services than residents of an urban area. That is one of the trade-offs for living in a rural residential area.
  3. [265]
    Helpfully, an examination of this issue is assisted by the evidence of a number of lay witnesses. Their statements identify driving times from particular parts of the trade area to existing facilities.[246]
  4. [266]
    With paragraphs [264] and [265] in mind, and having regard to the agreed trade area; the location of the land; the spatial distribution of competing facilities; and the lay witness statements generally, it is my view that the travel distances for a substantial part of the residential population of the trade area (to access facilities of the kind proposed) are unreasonable. This is particularly so as one moves from the fringe of the trade area to its centre where the land is located. That the level of inconvenience is increased as one moves closer to the centre of the trade area is an indicator about the strength of the need. It suggests the need for an alternative is strongest in the centre of the trade area where the land is located. That the land is already approved for a commercial use, with the benefits described by Mr Comiskey, suggests it is well-located to meet the latent unsatisfied demand not adequately provided for by the planning scheme.
  5. [267]
    Given the above, Doonan property has established the basic underlying assumption referred to at paragraph [241](c). This does not however mark the end of the case advanced by Doonan property in relation to the question of need.
  6. [268]
    On its behalf, it was also submitted the Court would have regard to a number of qualitative matters that are indicative of need here. Those matters can be identified as increased convenience, choice and competition in close proximity to the residents of the trade area.[247] I accept the proposed development will, if approved, constructed and operated assist in achieving increased convenience, choice and competition. In and of themselves, the points do not establish there is a need. However, in combination with the findings made above, I am satisfied an approval would improve the services and facilities available in this locality. It will improve the ease, comfort, convenience and efficient lifestyle of the community.
  7. [269]
    In this case I have the benefit of a substantial number of properly made submissions and lay witness statements. Taken together, it can be said they express overwhelming support for the proposed development. More relevantly for the question of need, they confirm there is a real-world demand for the proposed development. The demand articulated is not one for a Hotel simpliciter. It is demand for a Hotel of the kind proposed, that is, an alternative to existing facilities which, in turn, would provide choice, competition and convenience. A point also well made in the submissions and lay witness statements is that the proposal will redevelop an under-utilised site. The redevelopment will result in a modern and attractive facility, which is needed. That this real-world evidence exists demonstrates, in my view, that the opinion expressed by Mr Duane as to need is not contrived or the product of a mathematical construct only.[248]
  8. [270]
    For reasons given above, I am satisfied a town planning need has been established for the proposed development. With the following matters in mind, namely: (1) that the planning scheme does not require need to be demonstrated to secure approval; (2) the nature of the use proposed, namely it is not a necessary of life;[249] and (3) that need turns on the matters traversed at paragraphs [263] to [266]; it is my view that need is not, in and of itself, a decisive factor in this appeal. The weight to be attributed to it in the exercise of discretion is influenced by other matters established by the evidence.
  9. [271]
    The evidence establishes that the identified need can be met on the land: (1) absent any unacceptable impacts on amenity or character; (2) absent unacceptable flooding risk; and (3) without undermining or compromising the Activity centre network articulated in the planning scheme. The weight to be attributed to the need, coupled with these circumstances, is significant in the exercise of the planning discretion.[250]

Relevant matters

  1. [272]
    Doonan property submits there are positive features of this case that should be taken into account in the exercise of the planning discretion. Those features are said to support an approval. In broad terms, they were described as ‘relevant matters’. The matters relied upon can be separated into one of two categories. First, compliance alleged with specific assessment benchmarks in the planning scheme. Second, matters that may be described as general planning considerations.
  2. [273]
    Turning to the first category, Doonan property relies upon compliance with four particular provisions of the planning scheme to support approval. The provisions are: (1) s 3.10.5.1(b) of the Strategic framework; and (2) three overall outcomes in the Overlay code, namely outcomes (2)(a), (c) and (d).
  3. [274]
    I considered s 3.10.5.1(b) of the Strategic framework at paragraphs [167] to [170]. For reasons given therein, I accept compliance has been demonstrated with this provision.
  4. [275]
    I considered overall outcomes (2)(a), (c) and (d) of the Overlay code at paragraph [235]. For reasons given therein, I am satisfied compliance has been demonstrated with each of these overall outcomes. To the extent a different view is taken in relation to overall outcome (2)(a) (because risk is said to be foreseeable), I am satisfied the non-compliance is of no moment; it does not give rise to any adverse planning consequence.
  5. [276]
    Compliance that has been demonstrated with the planning scheme provisions noted above achieves two purposes. First, it demonstrates that Council’s reasons for refusal in relation to flooding do not call for refusal of the development application. Second, it demonstrates flood prone land can be effectively managed to ensure the risk to people and property is managed appropriately, and in a manner consistent with adopted planning controls. When considered in this light, I accept compliance is a positive matter in support of approval.
  6. [277]
    Significant weight can be attributed to this consideration when it is coupled with Mr Collins’ evidence. In the conclusion to his further statement of evidence, he said, and I accept[251] “the development proposal will provide a significant improvement over the existing site operations which has no flood emergency plan in place and approval for a caretaker’s residence on the mezzanine level”.
  1. [278]
    Turning to the second category of matters, Doonan property relies upon eleven (11) grounds to support an approval. They are identified at paragraph 138 of its written submissions. In summary terms, the grounds are: (1) the proposed development is an extension to an approved licensed restaurant that will result in a small scale development that is compatible with the surrounding land use context; (2) the proposed development is consistent with the long standing use of the land for a licensed restaurant and compatible with the prevailing character and amenity; (3) the proposed development will provide additional choice, competition and convenience to the community; (4) there is a town planning, community and economic need for the proposed development; (5) the proposed development will rejuvenate and reuse an existing rundown building; (6) the proposed development will provide a convenient location for members of the community to meet and socialise; (7) the proposed development will contribute to the wellbeing of the local community where no facilities of a similar nature exist within a convenient distance; (8) the proposed development will contribute to economic and social vitality and will result in positive economic and social benefits; (9) there is strong community support for the proposal; (10) the proposed development will provide enhanced employment opportunities; and (11) future planning documents cannot require the existing use to be altered or removed.
  2. [279]
    I am satisfied item (1) has been established and is a matter supportive of approval.
  3. [280]
    I accept item (2) has been established and is a matter supportive of approval, subject to one qualification. The proposed development shares a number of common features with the existing use of the land. They are not however the same use in the eyes of the planning scheme. They are differently defined. That I have accepted item (2) should not be taken to suggest otherwise.
  4. [281]
    Items (3), (4), (6), (7), (8), (9) and (10) are, in effect, all part and parcel of the same point. Whilst I would attach little weight to items (6) and (8) in isolation, all of these matters inform whether the development, if approved, would improve the physical wellbeing of the community and, in turn, establish a town planning need for the proposed development. I accept this has been established and is supportive of approval.
  5. [282]
    I accept item (5) has been established, which is supportive of approval. That the proposed development will reuse an existing structure and repurpose it in a manner that: (1) does not give rise to unacceptable town planning or economic impacts; and (2) will meet an identified need; is a matter of town planning importance to which considerable weight should attach in the exercise of the discretion.
  6. [283]
    I accept item (11). It is correct to say that the approved use on the land cannot be regulated by future planning documents such as to require its cessation.  This draws into sharp focus that the approved use cannot, and should not, be ignored. For better or worse, it forms part of the character and amenity of the area. The proposed development will rejuvenate and repurpose the existing built form in a way that is compatible with existing character and amenity. Not only will it be compatible, I am satisfied the redevelopment will improve the contribution the land and built form makes to the character and amenity of the area. This is a matter supportive of approval and entitled to weight in the exercise of the discretion.
  7. [284]
    The evidence, in my view, establishes four further matters that are relevant to the exercise of the planning discretion. They are individually, and collectively, supportive of an approval and attract considerable weight. The matters can be identified as:
    1. (a)
      the proposed development can be conditioned to ensure there will be no unacceptable impacts on amenity or character;
    2. (b)
      the proposed development can be conditioned to ensure it will not undermine the intent of the Rural residential zone;
    3. (c)
      the proposed development will not undermine or compromise the Activity centre network articulated in the planning scheme; and
    4. (d)
      the proposed development, if approved, will not undermine the underlying planning purpose of the local growth management boundaries in their application to this particular locality.

Exercise of the planning discretion

  1. [285]
    Council conducted its case on the footing the development application should be refused for the following reasons: (1) the proposed development is an unacceptable use of the land when assessed against the provisions of the planning scheme; (2) the proposed development would materially impact upon competing facilities presently serving the public; (3)  the proposed development would result in unacceptable risks from flooding when assessed against the planning scheme; (4) there is no need for the proposed development; and (5) there are no relevant matters of sufficient weight to warrant approval of the development application in the light of items (1), (2), (3) and (4).
  2. [286]
    I am satisfied Doonan property demonstrated that items (2), (3) and (4) do not warrant refusal of the development application, be it individually, or collectively.
  3. [287]
    As to item (1), there can be no doubt the proposed development is, prima facie, inconsistent with three forward planning strategies embodied in the planning scheme. The relevant provisions of the planning scheme are discussed at paragraphs [54] to [91]. With these provisions in mind, it can be said that the use proposed is expressly discouraged on the land because it is a centre activity proposed in an out-of-centre location; it is an inconsistent use in the zone; and it is contrary to the preferred settlement pattern articulated in, inter alia, the local growth management strategy. When the development application is viewed in this way, the case for refusal is of significant force.
  1. [288]
    The non-compliances with the planning scheme, whilst established, still need to be examined having regard to the circumstances of the case. To do otherwise would ignore that: (1) planning schemes are not immutable;[252] (2) non-compliance with a planning scheme is not to be regarded as binary;[253] and (3) it should not be assumed that every non-compliance with a planning scheme warrants refusal of a development application.[254] These matters collectively confirm what should be regarded as well-settled, namely, it is necessary to examine the nature and extent of any non-compliance with an adopted planning control to determine how, and in what way, it impacts upon the exercise of the planning discretion.[255]
  2. [289]
    Such an examination here establishes there are unusual circumstances relevant to this locality, and the land, that must be considered in an assessment against the planning scheme. The circumstances are discussed at paragraphs [94] to [173]. Collectively, those circumstances establish that the potency of the non-compliances with the planning scheme are materially diminished. In short, the non-compliances will not sound in any unacceptable town planning consequence/s.
  3. [290]
    The key issue in this appeal is whether the non-compliances with the planning scheme should be decisive in the exercise of the discretion given it is a matter to which considerable weight would ordinarily attach; a planning scheme is after all the embodiment of the public interest.[256] As I understood its written submissions, Council contended[257] that the relevant principle to be applied in striking the balance here was that articulated by the President of the Court of appeal in Gold Coast City Council v K&K(GC) [2019] QCA 132 at [67] where his Honour said: 

“It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo.”

  1. [291]
    I cannot accept Council’s submission. It is inconsistent with paragraph [45] of Abeleda & Anor v Brisbane City Council [2020] QCA 257. In fairness to Mr Hughes QC and Ms Stephanos, this decision was delivered after their written submissions were prepared. In that decision, Mullin JA expressly stated that paragraph [67] of the K&K decision does not apply to the exercise of the discretion under s 60(3) of the Act. Rather, it is clear from the decisions cited at paragraph [50] that the correct question to be asked and answered is a broad one: should the application be approved or refused? The determination of that question involves a broad evaluative judgment.
  1. [292]
    The circumstances that inform the broad evaluative judgment here have given me considerable pause for thought. In simple terms, the Court is asked to approve development that is expressly discouraged by three forward planning strategies, which are, prima facie, entitled to respect. In this context, it is unsurprising Council contends for refusal.
  2. [293]
    On balance, however, I am satisfied the non-compliances with the planning scheme should not stand in the way of approval given the considerations discussed at paragraphs [94] to [173]. In my view, these considerations, taken in combination with the relevant matters discussed at paragraphs [272] to [284], are compelling. They establish that a balanced decision in the public interest, in the circumstances of this case, falls in favour of approval.
  3. [294]
    In arriving at this conclusion, I was cognisant that it has long been recognised that restraint is ‘desirable’ when dealing with matters of planning policy/strategy.[258] That restraint is desirable does not mean this Court is precluded from approving an application where non-compliance with a forward planning policy/strategy is established. The language of s 60(3) of the Act does not suggest otherwise. Further, the Court of Appeal has recently confirmed that restraint, or a self-limiting approach to such matters may not always be apposite.[259] Whether restraint is apposite will turn on the facts and circumstances of each case.
  4. [295]
    I am satisfied the matters traversed at paragraphs [94] to [173] and [272] to [284] establish that a self-limiting approach is not apposite here.
  5. [296]
    The proposed development is, in my view, a meritorious proposal. It should be approved, subject to the imposition of conditions.

Conclusion

  1. [297]
    Doonan property has discharged the onus.
  2. [298]
    The appeal will, in due course, be allowed and Council’s decision set aside. That decision will be replaced with an approval granted subject to conditions.
  3. [299]
    I will adjourn the appeal to 3 September 2021 to allow the parties to prepare the necessary suite of conditions. To facilitate this course, I direct as follows:
  1. By 4:00pm on 16 August 2021, the respondent provide a draft suite of conditions to the appellant. 
  2. By 4:00pm on 30 August 2021, the appellant notify the respondent, in writing, of its position with respect to the draft suite of conditions.
  3. The appeal be listed for review at 9:00am on 3 September 2021 before Judge Williamson QC.

Footnotes

[1]  The site area is 2.06 ha (Ex.8.001, p.4, ‘Site Area’).

[2]  Ex.2.006, p.27, Figure 3.

[3]  Ex.7.001, para 9.

[4]  A ‘centre activity’ in an out-of-centre location.

[5]  Ex.11.002, para 8.

[6]  s 43, Planning & Environment Court Act 2016.

[7]  s 45(1)(a), Planning & Environment Court Act 2016.

[8]  Ex.8.001, p.2.

[9]  The parties proceeded on the footing this was the version of the planning scheme in force when the development application was properly made (Ex.5.001).

[10]  Ex.5.001, p.168.

[11]  Ex.11.001, para 17(d).

[12]  Ex.2.006, para 15 and Ex.7.006, pp.13 to 15.

[13]  Ex.7.006, pp.16-21.

[14]  Ex.7.006, para 12.

[15]  Ex.7.006, para 14.

[16]  Ex.7.006, para 14.

[17]  Ex.2.006, para 15.

[18]  T2-49, L36 to 41.

[19]  Ex.2.006, para 16.

[20]  Ex.2.006, para 16 and Ex.7.002, Figure 1-1.

[21]  Ex.7.002, p.6.

[22]  Ex.7.006, para 44.

[23]  Ex.7.002, p.38, Figure 1, RL 19.205 (24 February 2012).

[24]  Ex.7.002, p.10.

[25]  Ex.7.002, Table 2-1.

[26]  Ex.7.002, p.8.

[27]  1 in 50-year Average Return Interval (ARI).

[28]  1 in 100-year ARI.

[29]  Ex.7.002, p.8.

[30]  Ex.7.002, p.8.

[31]  Ex.5.002.

[32]  s 8.2.7.1(1).

[33]  Figure 9.4.8A of the Transport and parking code.

[34]  Ex.2.006, para 29.

[35]  Ex.2.004, p.22, para 52.

[36]  Ex.8.001, pp.2-3.

[37]  Ex.5.001, pp.166 and 167, Strategic Framework Map 2 and 6.

[38]  Ex.5.001, p.167, Strategic Framework Map 6.

[39]  Ex.8.005, p.7.

[40]  Table 8.2.11.3.1, Performance outcome PO7.

[41]  s 6.2.20.2(1) (Ex.5.001, p.63).

[42]  ss 3.2.4, 3.3.1(c) and 3.3.3.1(d)(v) (Ex.5.001, pp.16, 22 and 24).

[43]  Ex.2.006, para 18 and onwards.

[44]  Ex.2.006, para 25.

[45]  Ex.8.001, p.3 and Ex.8.005, p.1.

[46]  It was contended by Council, in reliance upon an assertion by its town planning witness Mr Adamson, that all of these uses ‘pre-dated’ the planning scheme. Save for Mr Adamson’s unsubstantiated and bare assertion, I was not directed to any evidence establishing this fact (Ex.11.002, paragraph 26 and Ex.2.006, para 29).

[47]  This use is also partly included in the Limited Development (Landscape Residential) zone.

[48]  Ex.11.002, para 175.

[49]  Ex.5.001, p.166.

[50]  Ex.5.001, pp.35 and 165, Table 3.4.3.1 and Strategic Framework Map 1.

[51]  Ex.2.004, Table 10.

[52]  Ex.8.001, p.8.

[53]  Used to sell packaged liquor.

[54]  Ex.8.001, p.8.

[55]  Ex.8.001, p.5.

[56]  Ex.8.001, p.5.

[57]  Ex.11.001, para 29.

[58]  Ex.11.001, para 30.

[59]  Ex.6.007.

[60]  Ex.2.005, p.9, para 19.

[61]  Ex.6.006.

[62]  Ex.6.007, p.39, s 3.1.

[63] cf Harris v Scenic Rim Regional Council (2014) 201 LGERA 12, [238].

[64]  Ex.2.001, para 15.

[65]  This is not a concern that I regard as being of significance given Mr Comiskey’s evidence at T2-45, Line 37 to T2-46, Line 3.

[66]  T2-34, Line 27 to 31.

[67]  Ex.7.006, paras 15 to 23.

[68]  Ex.7.006, para 27.

[69]  Ex.7.006, para 26.

[70]  Ex.7.006, para 27.

[71]  Ex.7.006, para 25(b).

[72]  Ex.7.006, para 36.

[73]  Ex.2.004, Map 1 and para 41.

[74]  Ex.7.006, para 28 to 31.

[75]  Ex.4.001.

[76]  Ex.4.001, pp.14, 70, 75, 105 and 115. This is confirmed by Ex.2.006, para 55.

[77]  Ex.7.007 to 7.014.

[78]  Agreed List of Issues, paras 1 and 3 (part only).

[79]  Agreed List of Issues, paras 2 and 4 (part only).

[80]  Agreed List of Issues, para 5.

[81]  Agreed List of Issues, paras 3 (part only), 4 (part only), 5 and 6.

[82]  Ex.11.001, para 43 and Ex.11.002, para 40.

[83] YQ Property, per Henry J at [59].

[84] Abeleda, per Mullins JA at [53] and [58].

[85]  Ex. 5.001, p.124.

[86]  Which is defined in SC1.2 Administrative definitions as the uses identified in Figure SC1.1.2B.

[87]  Ex. 5.001, p.136.

[88]  Rural residential zone code – ss 6.2.20.2(1) and (2)(a), (c) and (l) and Strategic framework - s 3.3.1(m).

[89]  Strategic framework – ss 3.4.3.1(a), (c), d(iv), Table 3.4.3.1 and Business Uses and Centre Design Code – ss 9.3.2.1(1)(a) and (2)(a).

[90]  Strategic framework – ss 3.3.1(c), 3.3.3.1(b) and (d)(iii) & (v)

[91]  Ex.5.001, p.63.

[92]  Ex.5.001, p.140.

[93]  Where involving grazing of livestock only.

[94]  Ex.5.001. p.9, s 1.3.2(3).

[95]  Ex.5.001, p.64.

[96]  Ex.11.002, para 55.

[97]  Ex.11.002, para 52.

[98] Abeleda (Supra), [54] and Ashvan (Supra), [53], [54] and [60].

[99]  Ex.11.002, paras 53 to 55.

[100]  The only business activities envisaged in the zone are Home based business and Sales office.

[101]  Ex.5.001, p.15.

[102]  Ex.5.001, p.17, s 3.2.8.

[103]  Ex.5.001, p.18.

[104]  Ex.5.001. p.22.

[105]  Ex.5.001, p.29.

[106]  Ex.5.001, p.34.

[107]  Ex.5.001, p.35.

[108]  Ex.5.001, p.77. For example, see s 9.3.1.2(1)(a) and (2)(a).

[109]  Ex.5.001, p.4.

[110]  See Table included in the further written submissions received 4 November 2020.

[111]  See Table included in the further written submissions received 4 November 2020.

[112]  Council particularly emphasised that it should be located in a hospitality area of the kind mentioned in s 3.4.3.1(d)(iv) of the planning scheme.

[113]  Contrary to s 3.4.3.1(a).

[114]  Contrary to s 3.4.3.1(c).

[115]  Footnotes omitted.

[116] Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, [9] – [10] and the cases cited therein.

[117] Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153, [38].

[118]  Ex.5.001, p.22, Key concept (2).

[119]  The inconsistency with the preferred settlement pattern arises because the approved use, and some of the adjacent uses are ‘urban uses’ located outside of the urban growth management boundary. It also arises because the approved use, and some of the adjacent uses to the south-east, are fairly characterised as centre activities located outside of a designated Activity centre.

[120]  Ex.2.005; Ex.2.006, para 62; and Ex.8.001, pp.11 to 13, landscape concept plans and elevations.

[121]  Ex.11.002, para 78.

[122]  Ex.11.002, para 79 and 80.

[123]  There is no limitation on the approved use offering takeaway food in addition to a dine in option. The proposal, if approved, would include a packaged liquor offer through the Cellar door.

[124]  Ex.7.003, para 32.

[125]  Paragraph [25], items 3, 4, 5 and 6.

[126]  Ex.2.004, p.45, para 101 and T1-61, Line 8-9.

[127]  T1-48, Line 30 to T1-49, Line 12.

[128]  T1-61, Line 1 to 17.

[129]  T1-66, Line 25 to 27.

[130]  T1-66, Line 45 to T1-76, Line 9.

[131]  T1-61, Line 19 to 21.

[132]  T1-61, Line 21 to 29.

[133]  Ex.11.002, para 2(g).

[134]  Ex.2.004.

[135]  Ex.2.004, para 96.

[136]  Ex.2.004, p.45, para 101 and T1-61, Line 8-9.

[137]  Save to the extent it relies upon the matters discussed at Ex.7.003, para 28. I give no weight to this part of his evidence. The opinion set out therein is based on second-hand information recorded in an officer’s report. The information recorded does not appear to reflect the position of Council acting by resolution, as distinct from the views of unidentified Council officers.

[138]  At p.52, Line K.

[139]  This principle is succinctly stated by Quirk DCJ in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 at 211. See also Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.

[140]  Ex.5.001, p.39.

[141]  Ex.5.001, p.9, s 1.3.3(1).

[142]  As recognised by a combination of s 3.8.2.1(d) and Strategic framework mapping in the planning scheme.

[143]  Ex.11.001, paras 107, 108 and 111.

[144]  Ex.5.001, p.67-73.

[145]  Ex.5.001, p.49.

[146]  Ex.2.001, p.13, para 5.

[147]  Ex.5.001, p.70.

[148]  Ex.11.002, para 125.

[149]  T2-29, Line 18.

[150]  Ex.5.001, p.70.

[151]  Ex.5.001, p.70.

[152]  Ex.5.001, p.73.

[153]  Ex.5.001, p.148.

[154]  Ex.7.002, p.37.

[155]  Ex.7.002, p.37.

[156]  Confirmed by footnote 23 to Table 8.2.7.3.3.

[157]  T2-26, Line 30 to 43.

[158]  Ex.7.002, p.6, Line 66.

[159]  T2-29, Line 36-37.

[160]  The term ‘site’ is defined in the planning scheme. The definition at Ex.5.001, p.157, confirms it is the land the subject of the development application.

[161]  Ex.7.002, pp.24-29.

[162]  T1-80, Line 36 to 40 and T1-84, Line 1 to 16.

[163]  Ex.7.002, p.37.

[164]  T2-20, Line 13 to 14 and Ex.7.006, para 44.

[165]  Ex.7002, p.8, Line 100 onwards, including Table 2-1.

[166]  T2-18, Line 17 to 18.

[167]  Ex.7.002, p.21.

[168]  T2-20, Line 27 to 28

[169]  T2-20, Line 30 to 33.

[170]  As is clear from the recommendation to impose a condition limiting the onsite population.

[171]  Ex.7.002, p.21, items (1) to (5). 

[172]  Ex.7.002, p.21.

[173]  Ex.7.002, p.6 and Ex.2.001, p.16, para 13.

[174]  Ex.7.002, p.8 and p.21, item (1).

[175]  Ex.7.002, p.6.

[176]  In the joint report (Ex.2002) at p.15, paragraph 12, Mr Collins said this level of inundation could be reduced by raising the outdoor dining area some 150mm. This would achieve an immunity against the 10% AEP (1 in 10 year).

[177]  Ex.7.002, p.21, item (1).

[178]  Ex.7.002, p.8.

[179]  Ex.2.001, p.5.

[180]  Ex.7.002, p.8.

[181]  T1-81, Line 40 to T1-82, Line 16.

[182]  T2-36, Line 16 to 24.

[183]  Ex.2.001, pp.12 and 13, paras 3 and 14.

[184]  T2-22, Line 9 to 12.

[185]  T2-22, Line 9 to 19.

[186]  Helpfully identified in Ex.11.001, para 69.

[187]  T2-33, Line 9 to 23.

[188]  T2-36, Lines 5 to 7.

[189]  Ex.7.005, para 10.

[190]  T2-34, Line 12 to 13.

[191]  T2-34, Line 27 to 31.

[192]  T2-29, Line 20.

[193] GFW Gelatine (Supra), at 353.

[194]  T1-83, Line 19 to 38.

[195] Seabridge Pty Ltd t/as Clutha Creek Sands & Anor v Council of the Shire of Beaudesert & Anor [2001] QPELR 191, [18].

[196] Navara Back Right Wheel Pty Ltd v Logan City Council & Ors [2020] QPELR 899 at [243].

[197]  Cited with approval in Esteedog Pty Ltd v Council of the Shire of Maroochy & Ors [1991] QPLR 7 at 9 and GFW Gelatine International Limited v Beaudesert Shire Council [1993] QPLR 342 at 353.

[198] Davjan v Noosa Shire Council [1981] QPLR 69 cites Rejfek & Anor v McElroy & Anor (1965) 112 CLR 517 in relation to the civil standard and relevant degree of persuasion.

[199]  Ex.7.006, exhibit RJC-5.

[200]  Ex.7.006, para 36 to 38 and T2-43, Line 26 to T2-44, Line 27.

[201]  Ex.11.002, para 131.

[202]  Ex.11.002, para 130.

[203]  T1-81, Line 6 to 23.

[204]  Ex.5.001, p.67. Overlay code, s 8.2.7.2(2)(a).

[205]  Ex.5.001, p.67. Overlay code, s 8.2.7.2(2)(c).

[206]  Ex.5.001, p.67. Overlay code, s 8.2.7.2(2)(d).

[207]  For reasons discussed above.

[208]  Ex.5.001, p.49, s 3.10.5.1(a). This also establishes compliance with the purpose of the Overlay code, namely s 8.2.7.2(1).

[209]  PO4 referred to above contemplates such an approach is an appropriate one to manage risk in a PMF.

[210]  Ex.5.001, p.49, s 3.10.5.1(d)(iv).

[211]  Ex.5.001, p.49, s 3.10.5.1(c).

[212]  For reasons discussed above.

[213]  Ex.5.001, p.63, s 6.2.20.2(2)(i).

[214]  Ex.11.001, para 138(d).

[215]  Ex.11.002, para 139.

[216] Isgro v Gold Coast City Council & Anor [2003] QPELR 414; Luke v Maroochy Shire Council & Anor [2003] QPELR 447.

[217] Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350, [20].

[218]  Ex.2.004, p.12, para 36.

[219]  Ex.2.004, p.13.

[220]  Ex.2.004, p.14, Tables 1 and 2, read with para 39.

[221]  Ex.2.004, p.15, para 41.

[222]  Ex.2.004, p.18.

[223]  Ex.2004, p.20.

[224]  Ex.2004, p.22, para 50.

[225]  Ex.2004, p.22, para 51.

[226]  Ex.2004, p.22, para 52 and p.23, para 58.

[227]  Ex.2.004, p.23, para 56.

[228]  Ex.2.004, p.29, Map 2.

[229]  Ex.2004, p.29 and p.30, Table 10.

[230]  Ex.2004, p.31, Map 3.

[231]  Ex.2.004, p.33. Map 4.

[232]  Ex.2.004, p.38, Map 5.

[233]  Ex.2.004, p.24, paras 60 to 64.

[234]  Ex.2.004, p.24, para 60.

[235]  Ex.2004, p.24, para 63.

[236]  Ex.11.002, paras 139 and 140.

[237]  Ex.2.004, p.22, para 50.

[238]  T2-42, Line 45 to T2-46, Line 10.

[239]  Ex.7.006, p.3, para 16.

[240]  Ex.7.006., p.4, para 25(a).

[241]  Ex.7.006, p.6, para 32.

[242]  T1-69, Line 9 to 20.

[243]  As distinct from a net loss of facilities in the sense discussed in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979) 140 CLR 675.

[244]  T3-36, Line 11 to 34.

[245]  Ex.11.002, para 139(a).

[246]  Ex. 7.007; Ex.7.008; Ex.7.012.

[247]  Ex.11.001, para 96(g).

[248] cf Glenella Estates Pty Ltd v Mackay Regional Council (2010) 180 LGERA 226, [50].

[249] Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 317, cited with approval in Isgro (Supra), [25].

[250] cf Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, [13]; Moncrieff v Townsville City Council & Anor (No.2) [2012] QPELR 185, [205].

[251]  Ex.7.002, p.21.

[252] Ashvan (Supra), [58].

[253] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [70] to [71].

[254] Ashvan (Supra), [53] and approved in Abeleda (Supra), [54].

[255] Ashvan (Supra), [53] and approved in Abeleda (Supra), [54].

[256]  As confirmed by Abeleda (Supra), [54].

[257]  Ex.11.002, para 44.

[258] Nerinda Pty Ltd v Redland Shire Council & Ors [2018] QCA 146, [28], citing Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153, [38].

[259] Nerinda (Supra), [28].

Close

Editorial Notes

  • Published Case Name:

    I.B. Town Planning v Sunshine Coast Regional Council

  • Shortened Case Name:

    I.B. Town Planning v Sunshine Coast Regional Council

  • MNC:

    [2021] QPEC 36

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    16 Jul 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
3 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Cite 3 - [2020] QCA 257
Arksmead Pty Ltd v Council of the City of Gold Coast[2001] 1 Qd R 347; [2000] QCA 60
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 347
Cite 2 - [2001] 1 Qd R 347
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
2 citations
Jump To
Cite 1 - [2008] QCA 157
Cite 2 - [2008] QCA 157
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
2 citations
Jump To
Cite 1 - (1957) 2 LGRA 117
Cite 2 - (1957) 2 LGRA 117
Davjan v Noosa Shire Council (1981) QPLR 69
2 citations
Jump To
Cite 1 - (1981) QPLR 69
Cite 2 - (1981) QPLR 69
Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
2 citations
Jump To
Cite 1 - (1990) QPLR 209
Cite 2 - (1990) QPLR 209
Esteedog Pty Ltd v Council of the Shire of Maroochy (1991) QPLR 7
2 citations
Jump To
Cite 1 - (1991) QPLR 7
Cite 2 - (1991) QPLR 7
GFW Gelatine International Limited v Beaudesert Shire Council & Ors (1993) QPLR 342
2 citations
Jump To
Cite 1 - (1993) QPLR 342
Cite 2 - (1993) QPLR 342
Gillion Pty Ltd v Scenic Rim Regional Council [2014] QCA 21
2 citations
Jump To
Cite 1 - [2014] QCA 21
Cite 2 - [2014] QCA 21
Glenella Estates v Mackay RC (2010) 180 LGERA 226
2 citations
Jump To
Cite 1 - (2010) 180 LGERA 226
Cite 2 - (2010) 180 LGERA 226
Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132
3 citations
Jump To
Cite 1 - [2019] QCA 132
Cite 2 - [2019] QCA 132
Cite 3 - [2019] QCA 132
Grosser v Council of Gold Coast City (2001) 117 LGERA 153
3 citations
Jump To
Cite 1 - (2001) 117 LGERA 153
Cite 2 - (2001) 117 LGERA 153
Cite 3 - (2001) 117 LGERA 153
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
2 citations
Jump To
Cite 1 - (2000) QPELR 313
Cite 2 - (2000) QPELR 313
Harris v Scenic Rim Regional Council (2014) 201 LGERA 12
2 citations
Jump To
Cite 1 - (2014) 201 LGERA 12
Cite 2 - (2014) 201 LGERA 12
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council (2003) QPELR 414
2 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
2 citations
Jump To
Cite 1 - (1979) 140 CLR 675
Cite 2 - (1979) 140 CLR 675
Lane v Gatton Shire Council (1988) QPLR 49
2 citations
Jump To
Cite 1 - (1988) QPLR 49
Cite 2 - (1988) QPLR 49
Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271
2 citations
Jump To
Cite 1 - [2006] QCA 271
Cite 2 - [2006] QCA 271
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
2 citations
Jump To
Cite 1 - [2012] QCA 370
Cite 2 - [2012] QCA 370
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
2 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Moncrieff v Townsville City Council (No 2) [2012] QPELR 185
2 citations
Jump To
Cite 1 - [2012] QPELR 185
Cite 2 - [2012] QPELR 185
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2020] QPELR 899
2 citations
Jump To
Cite 1 - [2020] QPELR 899
Cite 2 - [2020] QPELR 899
Nerinda Pty Ltd v Redland City Council[2019] 1 Qd R 523; [2018] QCA 146
3 citations
Jump To
Cite 1 - [2018] QCA 146
Cite 2 - [2018] QCA 146
Cite 3 - [2018] QCA 146
Overton & Anor v Redcliffe City Council & Anor (2000) QPELR 250
2 citations
Jump To
Cite 1 - (2000) QPELR 250
Cite 2 - (2000) QPELR 250
Rejfek v McElroy (1965) 112 CLR 517
2 citations
Jump To
Cite 1 - (1965) 112 CLR 517
Cite 2 - (1965) 112 CLR 517
Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191
2 citations
Jump To
Cite 1 - [2001] QPELR 191
Cite 2 - [2001] QPELR 191
Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 38
2 citations
Jump To
Cite 1 - [2020] QPEC 38
Cite 2 - [2020] QPEC 38
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
2 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Wilispap Pty Ltd v Mulgrave Shire Council (1992) QPLR 51
2 citations
Jump To
Cite 1 - (1992) QPLR 51
Cite 2 - (1992) QPLR 51

Cases Citing

Case NameFull CitationFrequency
Archer v Council of the City of Gold Coast [2022] QPEC 591 citation
Bowyer Group Pty Ltd v Cook Shire Council [2022] QPEC 332 citations
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 161 citation
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 442 citations
Development Watch Inc. & Anor v Sunshine Coast Regional Council [2023] QPEC 242 citations
Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 522 citations
Fabcot Pty Ltd v Ipswich City Council [2022] QPEC 112 citations
Kenfrost (1987) Pty Ltd v CRC [2024] QPEC 152 citations
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council [2024] QPEC 212 citations
Stockwell Development Group Pty Ltd v Bundaberg Regional Council [2024] QPEC 442 citations
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 313 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.