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Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council .[2021] QPEC 77

Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council .[2021] QPEC 77

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77.

PARTIES:

NOOSA SPOTLIGHT PROPERTY 2 PTY LTD

(appellant)

v

NOOSA SHIRE COUNCIL

(respondent)

FILE NO/S:

476/2020

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

20, 23, 24, 25, 26 and 27 August 2021

JUDGE:

Muir DCJ

ORDER:

  1. The appeal is dismissed.
  2. The Council’s decision to refuse the proposed development is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION - where the appellant appeals a decision by the Noosa Shire Council to refuse a development application for a permit to develop the Land at 2-18 and 20 Hofmann Drive, Noosaville – whether there is a planning, community and economic need for the development – whether the proposed development is an appropriate land use for the Land in the Shire Business Centre – whether the built form, design and layout of the proposed development is appropriate – where the Noosa Plan 2006 is the relevant planning instrument, what weight should be given to the Noosa Plan 2020 – whether the Noosa Plan 2020 supports approval of the development – whether this court can determine whether the outcomes intended for the subject land under Noosa Plan 2020 with respect to large format retail showrooms and employment based uses are soundly based – whether any other matters support an approval or refusal of the development

LEGISLATION:

Planning Act 2016 (Qld) ss 16, 45, 47, 59, 60, 78

Planning Act s 43 and Planning Regulation 2017 (Qld) ss 7, 17(g)

Planning and Environment Court Act 2016 (Qld) ss 43, 46(2),

CASES:

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

Ashan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; QPELR 793

Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157

Bell v Brisbane City Council [2018] QCA 84

Bilinga Beach Holdings Pty Ltd v. Western Downs Regional Council [2018] QPELR 102

Brisbane City Council v Klinkert [2019] QCA 40

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

Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193

Bunnings Group Ltd v Sunshine Coast Regional Council [2019] QPELR 18

Coolum Properties Pty Ltd v. Maroochy Shire Council [2007] QPELR 400

CPT Manager Ltd v Central Highlands Regional Council (2010) 174

Cut Price Stores Retailers v. Caboolture SC [1984] QPLR 126

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13

Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 52

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

Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17

Fabcot Pty Ltd v Gold Coast City Council & Anor [2011] QPEC 85

Fitzgibbons Hotel Pty ltd v Logan City council (1997) QPELR 208

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

Gracemere Surveying & Planning Consultants Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126

H A Bachrach Pty Ltd & Ors v Caboolture Shire Council (1992) 80 LGERA 230

Harburg Investments Pty Ltd v Brisbane City Council  (2000) QPELR 313

HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56

Hydrox Nominees Pty Ltd v. Noosa Shire Council [2014] QPELR 410

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

Intrafield v Redland Shire Council [2001] 116 LGERA 350

Isgro v Goldcoast City Council & Anor [2003] QPELR 414

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40

Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675

Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2019] QPEC 43

Longhurst v. Austexx Developments Pty Ltd (2003) 131 LGERA 443

McKay v Brisbane City Council [2021] QPEC 42

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council and Anor [2019] QPEC 46

Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026

Peach v Brisbane City Council [2019] QPEC 41

PMM Group Pty Ltd v. Noosa Shire Council [2006] QPELR 79

QIC Noosa Civic Pty Ltd v Noosa Shire Council & Ors [2016] QPEC 69

Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD

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

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

William McEwans Pty Ltd v BCC (1981) 1 QPLR 33

Wingate Properties P/L & Anor v BCC & Ors [2001] QPE 005

Woolworths Limited v. Toowoomba City Council [2004] QPEC 66

Woolworths Limited v. Townsville City Council [2005] QPELR 34

COUNSEL:

D. R. Gore QC with B. D. Job QC and for the appellant

C.L Hughes QC with B.G. Rix for the Council

SOLICITORS:

Connor O'Meara Solicitors for the appellant

Thynne & Macartney Solicitors for the respondent

Overview

  1. [1]
    Noosa Spotlight Property 2 Pty Ltd (the appellant) appeals a decision by the Noosa Shire Council to refuse its development application lodged in May 2019, for a permit to develop the Land at 2-18 and 20 Hofmann Drive, Noosaville into a precinct to be called “Noosa Marketpace.” The refused application is for a material change of use for an Undefined Use in relation to the Noosa Marketplace comprising an integrated mixed-use precinct. The proposed development is for offices, large format retail style showrooms, small incubator tenancies, healthcare services, food and drink outlets and an indoor sport and recreation centre. The appellant and an associated large format retailer (Anaconda) are interested in operating two of the showrooms.
  1. [2]
    The Council categorised the proposed development as one that is solely in the appellant’s self-interest, resulting in an inappropriate land use and a serious departure from the Council’s Planning Scheme for the Noosa region. But the appellant maintained that there is a “planning, community and economic” need for the proposed development. In doing so, it focussed on there being “no discernible downside” or “identified tangible adverse consequences” to allowing the appeal.[1]
  1. [3]
    The appeal was commenced in February 2020 and falls to be determined pursuant to the provisions of the Planning Act 2016 (Qld) and the Planning and Environment Court Act 2016 (Qld) (“the PEC Act”). The appeal is by way of hearing anew[2] with the Court being required to stand in the shoes of the Council who was the assessment manager.[3]  The appellant bears the onus.[4]
  1. [4]
    For the reasons that follow, the appellant has not satisfied me that the proposed development should be approved.

Something about the appellant (and Anaconda)

  1. [5]
    Both the appellant and Anaconda have signed written expressions of interest in being tenants of the proposed development.[5]  If the approval is granted, the appellant proposes to undertake the proposed development itself.  Under the appellant’s expression of interest, it is said to require 2,700m2 of space “with a preference that the proposed showroom tenancy be centrally located within the site with ease of customer access to parking and adequately serviced for deliveries and BOH servicing purposes.” [6]
  1. [6]
    Anaconda has an interest in occupying approximately 1,800m2 of space in the proposed development with a requirement for the tenancy area to be adequately serviced by customer car parking and loading areas.[7]
  1. [7]
    Given the issues in dispute in this appeal,[8] it is both instructive and relevant at the outset to have some understanding of the nature of these businesses and their current presence on the Sunshine Coast. 
  1. [8]
    Spotlight Australia[9] is a family owned and operated Australian retail business with stores throughout Australia, New Zealand and Asia.  Its focus was described by its Chief Executive in Australia, Mr Quentin Gracanin, as being to provide “everything a customer needs to refurbish their home, kitchen and dining spaces, lounge and bedrooms, bathrooms and laundry, as well as to undertake DIY arts, craft, party and sewing.”[10]
  1. [9]
    Spotlight currently operates about 24 retail outlets across Queensland with only one outlet (comprising 3,250m2 of gross floor area) located on the Sunshine Coast - at Home Central Kawana Way Birtinya.[11] This outlet is expected to close shortly in December 2021, with the opening of a “new retail development” being undertaken by the Spotlight Property Group at Dalton Drive, Maroochydore.  This development will include an 11,000m2 retail precinct accommodating a Spotlight store and other members of the Spotlight Retail Group. A standard Spotlight store is typically between 2,500m2 and 3,000m2 but this new Spotlight store will have an area of approximately 5,500m2 “designed to cater for the larger catchment and higher population density in Maroochydore”.[12]  It is uncontroversial that Noosaville is 36 kilometres from where the new Spotlight Outlet at Maroochydore will be. This is approximately a 30-minute car trip (one way).[13]
  1. [10]
    Physical stores are the most important part of Spotlight’s retail offering[14] but online sales, which have operated since 2014, remain important[15] and complement the bricks and mortar centres. Mr Gracanin’s evidence which I accept as a matter of common sense is that this is not expected to change in the foreseeable future.  Other evidence from Mr Gracanin, which I also accept as logical, is that, unlike food and grocery items, customers like to touch, feel and see Spotlight products first-hand and compare the range of items on offer in the store before deciding to purchase.  This is so even if some purchases are eventually made online.
  1. [11]
    By establishing a store in Noosaville, Spotlight intends to serve existing and future customers in that area together with other customers further north and west. Mr Gracanin’s evidence was that locals would find the “retail offering of Spotlight appealing and that, by locating at Noosaville, Spotlight will improve the convenience and choice of our customers and further customers who live in this location.”[16]
  1. [12]
    Relevantly, Mr Gracanin also stated as follows:

“With the Sunshine Coast’s population now estimated at 355,000 and continuing to experience increasingly strong growth, the new Maroochydore and proposed Noosaville stores will help cement Spotlight’s retail operation into the future.”  

[Emphasis added]

  1. [13]
    These observations are most instructive. They support the Council’s overall submission (as discussed under the Need heading below) that the ‘need’ that the appellant suggests exists in this case is more its own than that of the community.
  1. [14]
    Anaconda is part of the Spotlight Retail Group but operates independently of other businesses under that group. Mr Chris Lude, the Chief Executive Officer of Anaconda described the company as the largest camping and adventure sport store with the largest range of outdoor products in Australia, aiming to provide outdoor and adventure needs to customers as follows:[17]

“(a) Items to support a camping adventure, including tents, camp furniture, bedding (including sleeping bags, hammocks, air beds and stretchers), camp cooking gear, camp toilets and showers, portable washing machines, power and cooling (power sources, fridges and solar generators);

  1. (b)
    Hiking gear, including hiking packs, hiking gear and boots, walking poles and hiking accessories;
  1. (c)
    Products to allow four-wheel drive enthusiasts and owners to maintain and enjoy their four-wheel drives;
  1. (d)
    Products for customers with an interest in fishing including fishing rods and accessories;
  1. (e)
    Products for water sports including paddle boards, kayaks, boats, paddles, life jackets, boating accessories, body boards, surf boards, inflatable pool devices;
  1. (f)
    Cycling products, including bicycles and bicycle storage facilities; and
  1. (g)
    Products to equip customers for a trip to the snow, including ski and snow gear.”
  1. [15]
    Like Spotlight, Anaconda offers online sales, but most of its sales are in-store and involve customers visiting retail outlets. At present, the Sunshine Coast has one Anaconda store at Kawana Waters but by the end of 2021 there will be an additional store at Maroochydore Central which, again, is some 36 kilometres from the proposed development.
  1. [16]
    Mr Lude’s evidence was that Anaconda would like to “provide an offer at Noosaville to better serve its customers in a more convenient location for members of the community who live in the northern part of the Sunshine Coast”.[18]  His view was further that “tourists who visit Noosa to enjoy, among other things, the outdoor experience that Noosa has to offer, would find an Anaconda Store at Noosaville appealing.”[19]

The overarching framework

  1. [17]
    The proposed development is impact assessable. It follows that the Court’s decision must be based on the assessment outlined in ss 45(5) to (8) of the Planning Act.[20]
  1. [18]
    That assessment must be made against the assessment benchmarks in effect when the development application was properly made.[21] In this case, these are the Noosa Plan 2006 (“the 2006 Scheme”)[22] and the 2017 South East Queensland Regional Plan Shaping SEQ.[23]  Although to the extent of any inconsistency, the assessment benchmarks from Shaping SEQ prevail over the 2006 Scheme.[24]
  1. [19]
    The Court may also give the weight it “considers is appropriate, in the circumstances” to a statutory instrument amended or replaced after the application was made but before the Court’s decision.[25] In this case this is the  Noosa Plan 2020  (“the 2020 Scheme”).[26]  Whilst weight may be afforded to the later scheme it does not follow from a plain reading of the section that the assessment benchmarks in it are to be given effect as if they were in place at the relevant time.
  1. [20]
    The court may also assess the development application against, or having regard to, any other relevant matter (other than personal circumstances, financial or otherwise). In this case, those matters included:
  1. (a)
    from the Council’s perspective: the importance of centre hierarchies; promoting and maintaining the Noosa Shire Business Centre[27] as a fundamental element in the hierarchy of centres; and protecting the Shire Business Centre from the development of non-planned retail uses (to preserve opportunities for strategically located other business, commercial, community and educational facilities required to make “a true major regional activity centre”);[28] and
  1. (b)
    from the appellant’s perspective: there being an economic, community and town planning need justifying an approval.
  1. [21]
    After carrying out the impact assessment, the court must decide to either approve all or part of the application (with or without development conditions on the approval) or refuse the application.[29] In deciding the appeal, the Court must then confirm the decision, change the decision, or set it aside and replace the decision or return the matter to the Council with any directions the court considers appropriate.[30]
  1. [22]
    The Council submitted that “very limited flexibility in approach” to the assessment is required in this case.[31] I accept that this Court is not the planning authority and therefore should not readily substitute different planning strategies or objectives from those that emanate from the proper planning authority.[32] But I reject any suggestion that the approach should be inflexible or constrained because this is contrary to well-established principles that provide for a flexible approach to be taken to the overall exercise of the court’s discretion.[33] This requires the court to make a “broad evaluative judgment.”[34]
  1. [23]
    The theme resonating throughout the appellant’s case is that even if there are found to be multiple instances of non-compliance, there is no “identified tangible adverse consequence” in approving the proposed development.[35] I accept that not every non-compliance with a planning scheme will warrant refusal of the proposed application and that if there are no real consequences flowing from the non-compliance this may weigh in favour of an approval (otherwise leading to a “triumph of form over substance”).[36]  But I do not accept that an overriding or inflexible principle or test emerges from the recent authorities to the effect that there must be some “identifiable tangible adverse consequence” shown from the non-compliance before a refusal is justified.[37]
  1. [24]
    What is apparent from the cases is that the weight to be given to a particular non-compliance with the controls reflected (or encouraged) in an enacted assessment benchmark may vary depending on the combination of facts and circumstances of a case.[38]  But ultimately, the decision must be a balanced one in the public interest considered against the backdrop of the relevant planning scheme and proper planning practice.[39]
  1. [25]
    With these principles in mind, it is useful to understand the development (as it is now proposed), particularly in the context of its locality in the Noosa Shire.

Conceptualising the proposed development

Locality within the Noosa Shire

  1. [26]
    The Land is comprised of two vacant lots and is a prominent 35,762m² site with frontages to Eenie Creek Road and Hofmann Drive Noosaville.[40] Noosaville is one of the older suburbs of Noosa with its northern boundary on the Noosa River.[41]  The Land is located within the southern “more modern” part of Noosaville which includes light and medium industry with some trade related showrooms on and close to where Eumundi Noosa Road intersects with Eenie Creek Road and the northern part of Walter Hay Drive.
  1. [27]
    The Noosa Shire does not have a traditional dominant town centre or central business district. Instead, it has “poly-centric centres” with the more established ones including Noosa Junction, Hastings Street, Tewantin, Peregian Beach and rural centres such as Cooroy.[42] The Noosa Shire is divided into nine localities, relevantly including the Noosaville locality.[43] The localities are, in turn, divided into zones. 
  1. [28]
    Under the 2006 Scheme, the Land is partially within the Open Space Conservation Zone but mainly within the Shire Business Centre Zone. The Shire Business Centre Zone then incorporates 12 precincts which are identified on the Shire Business Centre map.[44]  Under the Shire Business Centre mapping, that zone is divided into precincts with the Land within Precincts B3, E5, OS3 and OS6.[45]
  1. [29]
    Under the 2020 Scheme, the Land is mainly within the Major Centre Zone[46] with existing covenant areas in the Environmental Management Conservation Zone. Under the Precinct Plan, the Land is within Precincts 5A (Business Park Precinct) and 5B (Showroom Precinct).[47]
  1. [30]
    The Land is located immediately east and south of the Noosaville Industrial Estate and near the existing developments known as “Noosa Civic” and “Noosa Emporium.” The Noosa Civic site encompasses: a variety of retail and commercial tenancies within a collection of one and two storey buildings (including a shopping mall with a supermarket, department store and specialty retail stores within a large, single building envelope along the southern portion of the site); large format retail buildings along the northern boundary adjoining the Eenie Creek road frontage; standalone commercial/retail buildings along the north west frontage to Hofmann Drive and a standalone service station within the site.[48]
  1. [31]
    The Land sits in the north western corner of the Shire Business Centre, which was described by the town planners as a “large and growing” and “positively planned (since 1997) as a greenfield town centre.”[49] It is uncontroversial that it is part of the “existing town environs” and will be a significant part of the overall Shire Business Centre.[50]

The proposed development

  1. [32]
    On 23 August 2021 (day one of the trial), an unopposed application was made by the appellant to have some (further) changes to the proposed development declared as minor.[51]  These changes included: reducing building 4 from three to two storeys; reducing some of the tenancy areas; and making provision for further landscaping and carparking spaces.  The measures were said to ameliorate issues about those matters raised in several of the joint expert reports (JERs).[52] I was satisfied that the changes were minor, and the application was granted.[53]
  1. [33]
    The plans for the current development proposal together with various sections and elevations were admitted into evidence during the trial together with illustrative perspectives and a landscape concept drawing.[54]
  1. [34]
    The proposed development is a mixed-use development comprising four buildings of varying scale, form and proportion together with associated carpark and servicing areas. It also involves the retention and rehabilitation of the Open Space precincts.[55] By way of summary, the proposed development will comprise:
  1. (a)
    Buildings 1, 2, 3 and 4 occupying 12,285m² of the land (excluding carparking/hard stand areas) with Building 3 to exclusively contain showrooms[56] and being the largest of the buildings proposed (with GFA of 7,725m²). The balance of the showroom (large format retail) area is in Building 1, Tenancy 11, with a gross lettable area of 500m².
  1. (b)
    Three single storey buildings numbered 1, 2 and 3 with one, two storey building, near the primary access of Hofmann Drive (building 4);
  1. (c)
    A total GFA of 11,434m² including dedicated (i.e. not shared/proposed for any other use) GFA for the proposed LFR Tenancies in excess of 8,200m².
  1. [35]
    The defined uses which are proposed for each of the proposed development’s tenancies are depicted in exhibit 6.11 and set out in tabular form in exhibit 6.12. At this point it is important to note the correction made during oral submissions (with reference to exhibit 6.12), that the total GFA (gross floor area) for retail showrooms in the proposed development is 8225m² (not 7760m² as set out in paragraph 17(a) of the appellant’s written submissions).[57]
  1. [36]
    The specific land use elements require the approval of specifically defined or customised uses (as opposed to the 2006 Scheme definitions) as follows:[58]

Proposed Use

Proposed Definition

Retail Showroom

Premises not less than 300m² per tenancy used for the display and sale of large or bulky goods, or large stocks of similar goods or related goods. In the interest of clarity, and for emphasis. This definition does not extend to, or include, a supermarket, department store or discount department store (in the form of discount department stores conducted by Target, Kmart, and Big W.

Office

Premises, limited to buildings 1 and 4 used for:

  1. (a)
    providing and administrative, financial, management or secretarial service or function; or 
  1. (b)
    the practice of a profession;
  1. (c)
    providing business or professional advice or services.

Health Care Services

Premises used for medical purposes, paramedical purpose, alternative health therapies or general health care, if overnight accommodation and keeping of animals is not provided on premises.

Indoor Sport and Recreation

Premises used for leisure, sport or recreation activity conducted wholly indoors.

Low Impact Industry

Premises used for industrial activities that include the manufacturing, producing, processing, repairing, altering, recycling, storing, distributing, transferring, treating of products and have one or more of the following attributes:

  1. (a)
    minimal impacts on sensitive land  uses due to off-site emissions including aerosol, fume, particle, smoke, odour and noise;
  1. (b)
    traffic generation at a rate no more than other uses in this definition;
  1. (c)
    the use generally operates during  the day (e.g. 7am to 7pm);
  1. (d)
    off-site impacts from storage of dangerous goods are minimal;
  1. (e)
    the use is primarily undertaken indoors.

The use includes the sale of goods, resulting from such operations, provided that sales space does not exceed 20% of the use area. Any space dedicated for administration or accounting work in connection with such operations does not exceed 20% of the use area.

Food and Drink Outlet

Food and drink outlet premises, limited to building 2, used for:

  1. (a)
    preparing and selling food and drink for consumption on or off the premises; or
  1. (b)
    providing liquor for consumption on the premises, if the use is ancillary to the use in paragraph (a);
  1. (c)
    excluding premises which contains a drive- through.
  1. [37]
    The appellant submitted that this approach avoids difficulties associated with an application of definitions, particularly of “Showrooms”, in planning schemes in circumstances where there are hybrid retailers that sell both bulky goods and smaller items in large shop/superstore or outlet store formats; and that the application of definitions to uses of this nature have been problematic for many years.[59]
  1. [38]
    The planning scheme provisions that the appellant is seeking to avoid difficulties with are as follows:
  1. (a)
    Under the 2006 Scheme a Showroom is defined as:

“Premises exceeding 250m² gross floor area for the display and sale of goods that are primarily of a bulky nature and of a similar type, including but not limited to boars, electrical goods, bulk stationary supplies, furniture, floor covering, sporting equipment and apparel, motor vehicles, recreational vehicles, motor accessories and the like. The term includes any associate sale of spare parts for such goods. The term does not include a large shop. 

  1. (b)
    Under the 2020 Scheme a Showroom is defined as follows:

“The use of premises for the sale of goods that are of-

  1. (a)
    Related product line;
  1. (b)
    A size, shape or weight that requires-
  1. (i)
    a large area for handling, display or storage; and
  1. (ii)
    direct vehicle access to the building that contains the goods by members of the public, to enable the loading and unloading of the goods”.
  1. [39]
    The Council accepted that the plans for the proposed development need to be read with the bespoke use definitions proposed by the appellant,[60] but submitted that the appellant was simply trying to limit the “very significant” non compliances with both the 2006 and the 2020 Schemes by relying on tailor-made definitions (as opposed to the definitions in the planning scheme) without establishing any planning reason for doing so.[61]
  1. [40]
    I accept that the approach adopted by the appellant is open and supported by the authorities.[62]
  1. [41]
    Before addressing the issues in dispute between the parties and armed with some knowledge of the proposed development and its locality, it is useful to outline the relevant statutory schemes.

Overview of the relevant statutory provisions

Shaping SEQ

  1. [42]
    Chapter 3 of Shaping SEQ sets out that certain identified goals, elements and strategies are a central part of Shaping SEQ’s policy framework over the next 25 years. These five goals are: Grow, Prosper, Connect, Sustain and Live. Each goal is supported by several elements which provide more specific outcomes to achieve the goal. The strategies define actions to achieve those elements. The goals, elements and strategies are to be implemented through local government planning schemes.[63] The relevant parts of Shaping SEQ as raised by the parties are discussed further under that heading below.

The 2006 Scheme

  1. [43]
    The 2006 Scheme commenced in January 2006 but has been updated on numerous occasions.[64]  It has also been amended to align with the Planning Act.[65]  The strategic framework and community vision for the Noosa Shire is set out in Division 2 and  is reflected in the desired environmental outcomes in Part 3. 
  1. [44]
    The overall vision for the community of the Noosa Shire by 2021 is identified in the 2006 Scheme to be “an inclusive community renowned for its creativity, innovation, vision and entrepreneurship where sustainability underpins excellence.”[66]  The key principles that underpin this vision are stated to be: “social cohesion and community wellbeing; a strong sustainable economy; environmental excellence and sustainability; artistic and cultural diversity and excellence; a commitment to maintaining a sustainable population; quality innovative and reliable infrastructure; and maintaining the ‘Noosa style’".[67]
  1. [45]
    The Economic Sector Vision to 2021 provides that by 2021 there will be a “strong viable niche economy” as follows:[68]
  1. (a)
    protecting and enhancing Noosa Shire’s national image and market position (‘Noosa Brand’);
  1. (b)
    with employment opportunities, business and industrial growth that contemplates environmental values; and
  1. (i)
    a continued emphasis on tourism and hospitality as key economic drivers of the Noosa Shire economy;
  1. (ii)
    better integration of existing sustainable industries;
  1. (iii)
    growth strategies focused on (in order of priority); -
  • wellness industries (including aged care and healthy lifestyle industries)
  • knowledge-based business (including home-based industries);
  • education and service industries;
  • heritage and creative arts industries; and clean, green, light and environmentally friendly sustainable industries and agriculture.”
  1. [46]
    The 2006 Scheme seeks to achieve outcomes that are identified according to the following four levels:[69] 

“(a) Strategic framework and desired environmental outcomes;

  1. (b)
    Overall outcomes for codes;
  1. (c)
    Specific outcomes for codes;
  1. (d)
    Probable solutions for a specific outcome, or acceptable solutions for complying with an accepted development subject to requirements code.
  1. [47]
    Also, relevantly, an impact assessable development such as the present one:[70]

i. is to be assessed against the identified assessment benchmarks in the assessment benchmarks column (where relevant);

ii.assessment is to have regard to the whole of the planning scheme, to the extent relevant;

iiiis to be assessed against any assessment benchmarks for the development identified in section 30 of the Planning Regulation 2017.”

  1. [48]
    Where there is inconsistency between provisions of the 2006 Scheme, the hierarchy of assessment benchmarks identify which parts of the scheme prevail over others through the following rules:[71]

“(a)The strategic framework and desired environmental outcomes prevail over all other

components to the extent the inconsistency for impact assessment;

  1. (b)
    ……
  1. (c)
    …….
  1. (d)
    Locality codes prevail over use codes, work codes and other development codes (other than an overlay code) to the extent of the inconsistency.”

[Emphasis added]

The 2020 Scheme

  1. [49]
    The question as to the overall weight to be afforded the 2020 Scheme in this case is dealt with under that heading below. The individual provisions referred to by the parties are discussed variously as they arise under the relevant issue headings.
  1. [50]
    But for now, it is relevant to observe that the 2020 Scheme came into force and effect on 31 July 2020 (after the proposed development application was lodged). This scheme has subsequently been amended, with the present amendment effective on 25 September 2020.[72]
  1. [51]
    The 2020 Scheme has a similar hierarchy of assessment benchmarks to the 2006 Scheme.[73] Where there is inconsistency between provisions, the strategic framework prevails over all other components to the extent of the inconsistency for impact assessment; and Local Plan Codes prevail over Zone Codes, Use Codes and other Development Codes.
  1. [52]
    For locality codes (the Noosaville Locality Code applying here):[74]

“(4) Each local plan code identifies the following:

  1. (a)
    the application of the local plan code;
  1. (b)
    the purpose of the local plan code;
  1. (c)
    the overall outcomes of the local plan code;
  1. (d)
    the performance outcomes that achieve the overall outcomes and the purpose of the local plan code;
  1. (e)
    the acceptable outcomes that achieve the performance and overall outcomes and the local plan code.”
  1. [53]
    The 2020 Scheme includes a range of zone categories, relevantly including the Major Centre zone, and expressly provides as follows:[75]

“…

  1. (7)
    Each zone code identifies the following:
  1. (a)
    the purpose of the code;
  1. (b)
    the overall outcomes that achieve the purpose of the code;
  1. (c)
    the performance outcomes that achieve the overall outcomes and the purpose of the code;
  1. (d)
    the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code; and
  1. (e)
    the performance outcomes and acceptable outcomes for the precinct.”
  1. [54]
    With this general overview of the applicable schemes in mind it is timely to review the issues in dispute in this case.

Issues in Dispute

  1. [55]
    The parties tendered a document entitled “Agreed List of Disputed Issues” posing six questions for my determination.[76] Each of the questions is particularised with reference to each party’s respective position papers (in the appellant case, its list of matters supporting approval[77] and in the Council’s case, its list of matters warranting refusal).[78] What emerges is that the issues are layered but with some overlap. For example: considerations of need inform some of the other issues such as appropriateness of land use and built form[79] and are included in other relevant matters.
  1. [56]
    It follows that the questions posed by the parties are most conveniently addressed under headings as they have defined them but in the following order. 

Issue One:To what extent is there a planning, community and economic need for the proposed development? 

Issue Two:Is the proposed development an appropriate land use for the Land in the Shire Business Centre?

Issue Three:Is the built form, design and layout of the proposed development appropriate?

Issue Four In the event that the Court gives weight to the Noosa Plan 2020, does that planning instrument support an approval of the proposed development?

Issue Five:Are the outcomes intended for the subject land under Noosa Plan 2020 with respect to large format retail showrooms and employment based uses not soundly based? 

Issue Six Do other relevant matters support an approval or a refusal of the proposed development?

Issue OneNeed

  1. [57]
    References to need are contained in several of the identified planning scheme provisions and both parties refer to it as a relevant matter.
  1. [58]
    Need in planning terms is a relative concept.[80] The weight it is to be given is not fixed and depends on the circumstances that the planning authority is required to consider.[81]
  1. [59]
    The appellant submitted that there is a planning, community and economic need for the proposed development essentially because it will:[82]
  1. (a)
    provide improved choice, convenience, and competition;
  1. (b)
    contribute to, and foster the vitality and vibrancy of, the Shire business Centre;
  1. (c)
    reduce the need for residents to source goods and services beyond the Shire and will retain spending within the region to the benefit of existing retail facilities in the locality from additional customer flows; and
  1. (d)
    contribute to employment within the Shire Business Centre.
  1. [60]
    The Council on the other hand submitted that there is no significant economic, community or town planning need for the proposed “retail” development.[83] The Council developed its position reflective of a concern that the planning schemes should be interpreted, except in confined and exceptional circumstances, as representing and catering to the development needs of the Noosa Shire. Consistent with this approach the Council submitted from the outset that:[84]

… the Appellant fails to establish an appropriate level of need[85] to overcome non-compliance with this very recent 2020 Scheme in circumstances where that need must not be contrived and must be judged from the point of view of the community, not of the developer.”

  1. [61]
    The Council also submitted that there are relevant matters that support   refusal of the proposed development including:[86]

“…

  1. (b)
    In respect of any alleged need:
  1. (i)
    there is no significant economic or town planning need for the proposed retail development;
  1. (ii)
    further, or in the alternative, any economic or planning need is not sufficient to outweigh the substantial planning and community need:
  1. To maintain land, in the Shire Business Centre, available for the development of the Centre as planned;
  2. To provide for a multifunction employment node that forms the Shire’s business and employment growth focus; and
  3. To maintain the planning scheme provisions which seek to protect the Shire Business Centre for development over time for the full functions of a Major Regional Activity Centre, and not to lose the limited land available to satisfy the short term private gains associated with largely retail development;”
  1. [62]
    It follows that the issue of need looms large in this case.
  1. [63]
    Before turning to the gulf of divergence between the respective positions on this issue, it is instructive to set out some of the relevant principles as elicited from the various authorities that have grappled with the concept of “need.”

Overview of principles surrounding need generally

  1. [64]
    It is well settled that the issue of need must be assessed from the perspective of the community, not from that of an interested party.[87]
  1. [65]
    The following observations of Wilson SC DCJ, (as His Honour then was) in Isgro v Gold Coast City Council & Anor[88] are a very useful starting point on any consideration of this issue:[89]

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty ltd v Logan City council (1997) QPELR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Gold Club v BCC (1982) QPLR 13 at 32-35, William McEwans Pty Ltd v BCC (1981) 1 QPLR 33 at 35).” [Emphasis added]

  1. [66]
    The appellant submitted that in determining whether a need for the proposed development exists, it is not necessary for me to be satisfied of a pressing, critical or widespread need.[90] I accept this submission but of course any need cannot be a contrived one.[91]
  1. [67]
    Amongst other things, the appellant submitted that “a thing” is needed if its provision taking all things into account would, on balance, improve the services and facilities available in the locality.[92] I accept this submission as a very general proposition and on the basis that “all things considered” includes the relevant planning scheme provisions and again on the basis that any need is not contrived.[93]
  1. [68]
    It follows that a mere improvement to services and facilities will not of itself establish a requisite need.
  1. [69]
    The Council submitted that “[a] need (in terms of the betterment of the community generally) will not usually be established unless it is demonstrated that the relevant community is relevantly lacking in the provision of the facilities required.”[94] I accept this submission. It is a matter of common sense and inherent in the plain meaning of the word ‘need’ that there must be an absence of something or, as noted in the passages quoted above, a latent unsatisfied demand which is either not being met at all or is not being adequately met and a finding of such, amounts to a finding that there is a need to be addressed.
  1. [70]
    Section 45(5) of the Planning Act refers to the singular “need” but the list of issues, the parties’ submissions and the JER of the economists, Mr Gavin Duane (for the appellant) and Mr Marcus Brown (for the Council),[95] approach the issue of need under categories of community, economic and planning need. This was the approach endorsed by Everson DCJ in Fabcot Pty Ltd v Cairns Regional Council & Ors.[96]
  1. [71]
    In Fabcot the court defined these categories as follows:[97]
  1. (a)
    “(Community Need refers to an assessment as to the extent to which the physical wellbeing of the community is improved. A range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;”
  1. (b)
    “Economic Need refers to an assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level. This assessment is typically more quantitative in nature;” and
  1. (c)
    “Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.”
  1. [72]
    There is however no rigid rule or requirement that the issue of need must be approached in this way or that one or more of these matters is to be afforded more or less weight than the other. The approach to any issue of need will depend on the circumstances of the case and in any such discussion, there may be considerable overlap. Whilst these categories might on occasions be a useful structural guide to a consideration of this issue, in my respectful view, these categories do not create some additional criteria that must be met for need to be established. Rather, they are examples of matters that might assist in determining need.
  1. [73]
    Despite these observations, I consider it convenient in this case to address the issue of need in the way it has been ventilated before me. That is under the categories of planning, community and economic need factors.

Economic Need

Is there an undersupply of large format retail showroom floorspace?

  1. [74]
    The appellant contended that “the proposed development will satisfy a demonstrated need, including in particular for showroom / large format retail floorspace within the locality.”[98] The following three points which emerge from the appellant’s submissions appear to underpin its need case:
  1. (a)
    First, there is an undersupply of retail showroom floorspace within the primary, secondary and tertiary trade areas identified in the JER;
  1. (b)
    Secondly, such undersupply amounts to an economic need for the development;
  1. (c)
    Thirdly, such a need would be serviced by the proposed development.
  1. [75]
    Each of these are dealt with in turn below.

Is there an undersupply?

  1. [76]
    There is some apparent agreement between the experts that there is now or will develop over the course of the next twenty years, some form of undersupply of large format retail showroom floorspace in the Noosa Shire region.
  1. [77]
    Mr Duane identifies that the primary, secondary and tertiary trade areas that are identified in Map 4 of the JER are all likely to be served by the proposed development on the Land. Mr Brown does not disagree with the areas shown but states that:[99]

“the primary sector is the only sector of relevance to the subject development … [because] the tertiary trade area identified by [Mr Duane] is served by Gympie, while the secondary sector is primarily served by the Maroochydore Principal Activity Centre and the Nambour Major Activity Centre.”

  1. [78]
    Mr Brown does not assert that no trade will come from outside the primary trade area, but rather that the primary trade area is likely to account for the vast majority, (80-90%), of the trade for the proposed development.[100]
  1. [79]
    It is also relatively common ground between Mr Brown and Mr Duane in their first JER that there will be some level of undersupply (between 2021 and 2041) of large format retail showroom floorspace within the primary trade sector.[101] However, they differ in their reason for why this is so.
  1. [80]
    The starting point for this evidence is Mr Duane’s Table 10 in the JER, from which the following five key points can be taken:[102]
  1. (a)
    First: Demand for large format retail showroom floorspace is estimated at 51,548m2 within the primary sector trade area.
  1. (b)
    Secondly: Based on projected population increase figures and the Australian benchmark of allowing 0.7m2 per person, that demand is projected in increase to 61,733m2 by 2041.
  1. (c)
    Thirdly: There is an existing under-supply of -14,043m2 within the primary sector trade area;
  1. (d)
    Fourthly: That under-supply will increase to -24,228m2 by 2041.
  1. (e)
    Fifthly: These under-supply figures increase to -26,564m2 for 2021 and - 45,429m2 for 2041 when the secondary and tertiary sector trade areas are included for consideration.
  1. [81]
    Both Mr Duane and Mr Brown agree (and I accept) that there is some undersupply. But they disagreed as to its extent. The disagreement appears to stem from Mr Brown’s scepticism as to the relevance of the secondary and tertiary trade areas and from their differing opinions as to the appropriate deductions to make to the undersupply figures to account for online sales and leakage to higher order centres. Much was made of these points of difference in cross-examination.
  1. [82]
    In relation to the issue of online sales, I accept Mr Duane’s view (as a matter of common sense) that most consumers still prefer to either purchase bulky goods from a physical retail store or at the very least, interact with them in such a setting before later purchasing online. I also accept that there is a role for physical stores to play in the fulfillment of online orders.
  1. [83]
    However, as the appellant put it (at paragraph 127 of its written submissions) “… even on the Council’s best case, there is not an overly large difference of floorspace.” Ultimately, I consider it unnecessary for me to determine which of the experts’ approaches is to be preferred. This is because, (for the reasons that follow), taking the appellant’s case at its highest (by using Mr Duane’s figures), I am not satisfied that the identified undersupply amounts to an economic need capable of justifying the proposed development.

Does the undersupply amount to an economic need?

  1. [84]
    In addition to preferring more significant deductions to the floorspace demand estimates, Mr Brown also offers a higher-order critique of Mr Duane’s assessment. At [116] he relevantly observes as follows:[103]

“…[Duane’s] analysis essentially implies that all demand should be met locally. This will not be the case for Noosa, the primary trade area, nor the secondary trade area, because those areas are served by the Maroochydore Principal Activity Centre and to a lesser extent the Nambour Major Activity Centre, in addition to the Noosa major Activity Centre and Gympie.”

  1. [85]
    Further, at [119.]- [120.], Mr Brown also observes:[104]

“In terms of the rate of leakage from the primary sector in 2021 of 27.7% this is within the range of what could normally be expected in the context that the highest order centre serving the catchment (i.e. the Principal Activity Centre) is located outside the catchment, but the catchment includes the second highest order centre (Major Activity Centre), that is up to 30%.

Similarly, the high degree of demand leakage from the secondary sector is entirely consistent with a catchment where the highest order centres are Local Centres.”

  1. [86]
    Against this, Mr Duane suggests at [110] as follows:[105]

“As the population in the catchment increases, there is a twofold effect. Firstly, the increasing population results in increased demand, and secondly, as the catchment gets larger, there is a broader range of facilities that could be supported – that is, the critical mass of population that can support facilities which previously were not considered possible (i.e. reducing escape expenditure).”

[Emphasis added]

  1. [87]
    The approach to resolving diverging expert economist evidence on need was usefully discussed by Dorney QC DCJ in Fabcot Pty Ltd v Gold Coast City Council & Anor[106] as follows:

“Before considering the differences in approach, it must be remarked that there is no objective benchmark against which these differing opinions can be tested. It is clear, from both the reports and the way in which the oral evidence was given by each expert, that each expert held the opinion formed honestly on what each believed to be a properly established foundation. Therefore, it is not a matter of testing each opinion against anything other than the logic of the propositions that were advanced, guided by an understanding that each could hold a reasonable view with which the other could reasonably differ.”

[Emphasis added]

  1. [88]
    While logical, I reject Mr Duane’s evidence on this point because it is largely underpinned by conjecture. It is a matter of common sense and knowledge [apparent to anyone who has spent time in or around Noosa (or indeed the Sunshine Coast more generally)] that the sprawling nature of the area as it currently stands leads to an expectation that travel will be necessary to access certain goods and services.
  1. [89]
    Indeed, it is reasonable to infer as I do that for many people, this ‘slower’ lifestyle and emphasis on local, small-scale retailers is a drawcard of the area and one that fits well into the concept and “dream” of a Noosa lifestyle – in the Noosa style.
  1. [90]
    That is not to say that communities in areas like Noosa are not to be well provisioned. If the proposed development was one catering to the “daily essentials of ordinary life” the situation might well be different.[107] When the planning scheme reveals a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy such a need, and there are no unacceptable impacts on amenity, the efforts required to demonstrate need of that level are lower.[108] But this is not such a case.In the present case the products sold by the appellant and Anaconda, whilst valued and useful, are hardly the essentials of life. Further, the evidence establishes that the residents of Noosa (be they in the agreed Primary trade area, or Mr. Duane’s Secondary or Tertiary trade areas) are presently reasonably well supplied with large format retail including shops which directly compete with both the appellant and Anaconda in terms of their product lines. This much is clear from the National Brand Large Format Retailer Gap Analysis tables found in the JER[109].  In this sense, the observations of Jones DCJ in QIC Noosa Civic Pty Ltd v Noosa Shire Council & Ors [2016] QPEC 69 at [156] that “it is not as if the residents (permanent and tourists) of Noosa exist in a virtual retail wasteland” remain current and apposite in my respectful view. 
  1. [91]
    It may well eventuate, as Mr Duane opines in the passage set out in paragraph 86 above, that the population of Noosa grows in the future to such an extent that this lifestyle changes such that the community no longer expects to have to travel very far to access large format retail. But catering to such a shift would be a matter for a future revision of the planning schemes and does not justify a departure from that which is presently in effect. It is the role of the Council in creating the schemes to project and plan for the future needs of the Shire. It is not this court’s role and it would be entirely inappropriate for this court to make what is effectively a policy decision by making current provision for retail facilities in reliance on such speculative predictions of future demand. Relevantly too, under s 25 of the Planning Act, the Council is obliged to review its planning scheme within 10 years. As such, even its 2020 planning scheme will be subject to review well before 2041.

If there were a need, would it be serviced by the proposed development?

  1. [92]
    Even if am wrong and the undersupply does amount to a need, I accept the Council’s submission that it is in the interest of the planning scheme to maintain the hierarchy by directing such need to Gympie and Kawana. But in any case, the soon to be opened Maroochydore Spotlight will be available to service any residual need.

Economic Need – has an economic need been demonstrated for ‘incubator tenancies’, ‘co-working office spaces’ or the balance of the smaller tenancies?

  1. [93]
    The appellant submitted that:[110]

“The proposed development will contribute to economic development within the Noosa Shire by providing affordable, small scale, and flexible business incubator tenancies in which local manufacturing and “cottage industry” businesses can establish and grow;

and

The proposed development will contribute to economic development within the Noosa Shire by providing flexible, affordable and short term co-working office spaces for emerging local businesses and professional service providers to establish, collaborate and grow.”

  1. [94]
    Against this, the Council submitted as follows:[111]

while Spotlight and Anaconda have unsurprisingly given sworn evidence of their interest in taking up space in their own development (which is of little, if any, assistance in determining the true public or community need) there is no indication how the balance of the total floor space (in the proposed “showrooms” and in the “low impact industry” in particular) is to be taken up. In short, the intent of the developer’s witnesses does not substantiate a need for the more than 8,000m2 of GFA proposed.

And further that[112]:

“In short, there is no probative evidence suggesting of a need for these unusual tenancies (which again come with their own bespoke definition).”

  1. [95]
    Two issues arise in relation to the balance of the tenancies (those other than the appellant and Anaconda) that are planned:
  1. (a)
    First: Is there evidence before the court sufficient to establish a need in relation to these tenancies?
  1. (b)
    Secondly: Is it necessary as a matter of law for the appellant to establish such a need?
  1. [96]
    These issues can be disposed of briefly.
  1. [97]
    As to the first of these two issues, I accept that, besides the two anchor tenancies of Anaconda and the appellant, the only other evidence of a potential tenant is a passing reference to Harris Scarfe expressing interest in approximately 1,200m2 of floorspace.[113]  There is little if any probative value or weight to be afforded on this issue of need by the appellant’s expression of interest and the vague reference to Harris Scarfe does not advance or prove anything on this issue either. 
  1. [98]
    The Statement of Evidence of Mr Benjamin Jones outlines what is intended for the six 150m2 incubator tenancies. Mr Jones is a development manager employed by Blueprint, a consultancy specialising in project and development management retained by the appellant. Mr Jones relevantly expressed the intention of the ‘incubator tenancies’ as follows:[114]

“… The 150m2 tenancies are proposed to be used for “Low Impact Industry” uses as described in the development application.

The intention of the proposal is to facilitate local manufacturing and cottage industry businesses, including start-ups, to be established within these smaller tenancies. The term “business incubator” has been used to describe these proposed tenancies because they are aimed towards new local businesses and local start ups.

Local manufacturing and cottage industry businesses may include a variety of business types, depending upon the locality. Within the Noosa context, it is anticipated that the types of businesses that would be attracted to the proposed development could include businesses such as jewelry makers, soap production, surfboard makers, organic cosmetics producers, food producers (eg. a coffee roaster, a chocolatier) and candle makers.” [Emphasis added]

  1. [99]
    Mr Duane, in his individual statement notes that “… these incubator tenancies are unlikely to be developed within the Noosa Business Centre without the subject proposal,” and that “… the incubator tenancies provide the opportunity to showcase a range of local artisan trades drawing on different customers and further activating the Noosa Business Centre” and that they would “… empower industry and product development for the local Noosa brand.”[115]
  1. [100]
    I accept as a matter of logic that such tenancies may well be desirable from the perspective of the all-important Noosa Style. However, as the Council submitted [116] and as Mr Duane accepted in oral evidence[117], there is no evidence before the court and no research that Mr Duane is aware of, that substantiates an actual need for these tenancies in Noosa. I also, with respect, accept the Council’s criticism that Mr Jones’ statement goes only to the ‘intention’ for such tenancies, identifies no particular tenants and does not identify any actual research into a need for the tenancies.[118]
  1. [101]
    The balance of the development also allows space for indoor sports and recreation, offices and food and drink vendors.[119] There is no evidence before the court as to a particular need for these tenancies. I accept as a matter of logic that may potentially add to the vibrancy of the proposed development (as discussed in paragraph 139 below) but this does not assist in establishing an economic need.
  1. [102]
    I am therefore not satisfied that there is a sufficient evidentiary basis for this court to accept the appellant’s submission that there is a need for other tenancies. It follows that I accept the Council’s submission that the appellant has failed to substantiate a need for about 8,000m2 of GFA.
  1. [103]
    I also accept that a demonstration of a need for these tenancies would potentially bolster or assist the appellant’s case. But what is the consequence for the appellant failing to demonstrate such a need?
  1. [104]
    In his oral submissions, Senior Counsel for the appellant submitted as follows:[120]

“… this is not a case where you have to prove a need for any particular use.  But it is a case where, for us to succeed on the showroom component, which is clearly the dominant part of the project, realistically, from a practical perspective, we have to prove a need.  It’s not the function of any provision of the Act or a specific provision of the scheme.  So the focus has been on the need for that.  There’s no legal requirement to prove a need of the balance of the uses.”

  1. [105]
    Senior Counsel for the appellant developed this submission further as follows: [121]

“If you deal with a shopping centre case with a full line supermarket and tenant specialty stores, you can win the case even if you don’t have a supermarket operator.  But your chances are probably at the low end of the scale. 

But if you’ve got a supermarket operator, your chances are enhanced, and we’ve referred your Honour to many decisions of this court which have placed reliance upon the evidence of experienced retailers, representatives of Woolworths, or Coles or Franklins, or, in this case, Spotlight and Anaconda.  But this court does act on the evidence of these people experienced in that industry.  And you don’t have the prove the need for the specialty stores.  That will just fall over the line once the development’s up and running.”

  1. [106]
    A reading of some of these (so-called) “shopping centre” cases reveals that the approach of this court has been (on occasions) to consider need either solely in relation to the proposed anchor tenant or deal only peripherally and superficially with other minor retail tenancies that are to be included.[122] But each case turns on its facts.
  1. [107]
    The proposed development in this case is not being underpinned by an outlet providing the necessities of life such as Woolworths or Coles, so in that sense the “shopping centre” cases are distinguishable. As Mr Duane relevantly observed (and I accept), Spotlight and Anaconda typically operate in large format retail/ bulky goods centre and are not typically considered key tenants for major shopping centres anchored by department stores, discount department store, and supermarkets.[123]  But for present purposes, I am willing to assume that a failure to demonstrate need in relation to a particular number of tenancies or percentage of floorspace is not necessarily fatal to the appellant’s case on need. 

Community Need

  1. [108]
    Determining whether there is a community need for a development requires, “an assessment as to the extent to which the physical wellbeing of the community is improved. A range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc.”[124]
  1. [109]
    The appellant submitted there is a community need for the proposed development because it will:[125]

(a)provide improved choice, convenience, and competition;

(b)contribute to, and foster the vitality and vibrancy of, the SBC;

(c)reduce the need for residents to source goods and services beyond the Shire and will retain spending within the region to the benefit of existing retail facilities in the locality from additional customer flows; and

(d)contribute to employment within the SBC.”

  1. [110]
    The appellant particularised this submission relevantly as follows:[126]

“(a)The proposed development will create a destinational lifestyle precinct that will contribute to and foster the vitality and vibrancy of the Noosa Shire Business Centre by providing a mix of uses (retail, office, health care services, indoor sport and recreation, low impact industry and food and drink outlet) that will improve choice, convenience, competition and employment opportunities for the community.”

(e)The proposed development will reduce the need for residents to source goods and services beyond the Shire and will result in the retention of spending within the region.

(f)The proposed development will reduce the need for local residents to travel further afield for their showroom / large format facilities needs given that:

(i)there is presently a significant underrepresentation of prominent showroom / large format retail operators within the Noosa locality; and

(ii) the nearest significant provision of showroom / large format retail facilities beyond the trade area is provided at Maroochydore and Kawana, which is approximately a 70 kilometre round trip from Noosa.

(g)The proposed development will positively impact upon existing retail facilities in the locality due to additional customer flows created through retained spending.

(h)The proposed development, if approved, will contribute to employment within the Noosa Shire Business Centre by creating some 340 permanent jobs, with some 417 additional jobs to be created both directly and indirectly through the construction phase. Further, the approval of the proposed development is projected to indirectly create some 323 jobs in the broader community.”

  1. [111]
    In opposing this submission, the Council maintained (again) that the community need weighs in favour of maintaining the Land for uses that are compatible with the Scheme.
  1. [112]
    For the reasons that follow, I am not satisfied that there is community need for the development great enough to justify approval of the proposed development in all of the circumstances.
  1. [113]
    It is necessary to pause and observe at this point that choice or competition is not a relevant consideration in relation to the incubator tenancies, office spaces and the balance of the uses within the proposed development. Indeed, the appellant’s submissions in relation to these uses are focused on the economic need (with which I have already dealt) and planning need – which is dealt with later in these Reasons under that heading.

Improved choice, convenience, and competition

Competition and Choice

  1. [114]
    As a matter of common sense, competition and choice are two sides of the same coin. It is convenient therefore to address these two issues together.
  1. [115]
    The existence of multiple competing retailers or service providers in proximity to one another is on the one hand beneficial to the community because it promotes innovation, encourages a high level of service and provides consumers with options. However, it is equally possible for the pre-existence of competing businesses in proximity to the proposed development to indicate that a need is presently being adequately serviced.
  1. [116]
    As was relevantly observed in Isgro:[127]

“Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless… the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, at 687.”

  1. [117]
    It follows that the fact that a development will introduce competition to existing businesses cannot be treated as a factor against the existence of need.
  1. [118]
    Mr Duane observed, and I accept, that competition between retailers is a benefit to the public. But as with many aspects of the consideration of need, whether the factors of competition and choice weigh for or against the existence of a need for the proposed development will turn on the circumstances of the particular case.
  1. [119]
    In Harburg Investments Pty Ltd v Brisbane City Council[128] Skoien DCJ observed relevantly as follows:

“To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware house, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouses, two hospitals or two cinema complexes cheek by jowl.”

[Emphasis added]

  1. [120]
    Accordingly, developments such as the childcare centre considered in Isgro or the use of a supermarket as the anchor tenant in many of the shopping centre cases[129] will be far more readily justified on the basis that it will provide the community with a choice of facilities and will encourage competition between them. In other words, the community has less need for the degree of choice and competition for shops such as the appellant’s and Anaconda as there is for shops that offer the daily essentials. Large format retail facilities, such as the appellant’s and Anaconda are a type of retail facility that is accessed less frequently.  As such, the relative inconvenience to consumers associated with travel to obtain choice and competition is less than that associated with accessing the essentials for life.

The evidence on choice and competition

  1. [121]
    The locations of existing large format retail and non-retail showroom facilitates (including vehicles) are identified by Maps 5 and 6 of the Economic Need JER. Relevantly, Mr Brown and Mr Duane agreed as follows:[130]

“The primary sector comprises the majority of large format retail and showroom facilities within the broader region, predominantly focussed around Noosaville. Just over 100 tenants are located within the key primary sector, or around 70% of the total trade area provision. Primary sector tenants are generally located within two key precincts, namely the Noosa Civic precinct and the Noosa Homemaker Centre precinct (Noosaville).”

  1. [122]
    Putting to one side the disagreement between Mr Duane and Mr Brown as to whether the secondary and tertiary trade areas are relevant to consider (which, as discussed at paragraph 83 of these Reasons, I do not consider it necessary to resolve), it is common ground, that many of the major national large format retail showroom tenants are represented within the total trade area (as seen at Tables 8 and 9 of the JER). As set out earlier in these Reasons - Noosa does not exist in a retail wasteland.[131]  However, it is also common ground and I accept that a number are absent. These are listed by category in the JER as including[132]:
  • Automotive: Auto One
  • Bedding: Bedshed, Sleepys, Snooze and The Sleeping Giant
  • Electrical: Jaycar Electronics, JB Hi-Fi, Leading Appliances, RT Edwards, The Good Guys
  • Furniture: Bay Leather Republic, Domayne, Early Settler Furniture, Fantastic Furniture, Freedom, IKEA, King Living, Nick Scali, Oz Design, Plush, Samsara, Super A-Mart, The Outdoor Furniture Specialists, Vast Interior
  • Home Deco: Beaumont Tiles, Carpet One, Curtain Wonderland, DecoRug, Howards Storage World, Rugs a Million, Spotlight
  • Miscellaneous: Amart Sports, Anaconda, Clark Rubber, Kathmandu, Robins Kitchen.
  1. [123]
    The experts also jointly note, and I accept “… that the majority of large chain brands that operate within the region are provided at both Noosa and Gympie.”[133] I also accept Mr Brown’s evidence that, “… given the size of the Primary trade area and its proximity to a Principal Regional Activity Centre and Gympie, it is unlikely that the Primary trade area would ever support the full suite of national bulky goods or large format tenants…”.[134]
  1. [124]
    A key divergence occurs between Mr Duane and Mr Brown, in relation to the conclusions that should be drawn from this evidence. Namely whether, given the context of the identified existing and absent retailers, there is still an unsatisfied community need for choice and competition that the proposed development might address.

Conclusion on choice

  1. [125]
    Ultimately, I am not satisfied that the question of choice creates the existence of a community need in this case for two main reasons:

(a)First: the goods on offer from Spotlight and Anaconda are largely already available within the trade area, at locations with a travel distance that is entirely appropriate to the spending habits (i.e., frequency of purchase and community expectation of travel time as set out above in relation to economic need) relating to the type of goods provided); and

(b)Secondly: Those goods are not comparable to the type of ‘essentials of life’ developments in relation to which choice presents a public benefit commensurate with need.

Conclusion on competition

  1. [126]
    The appellant submitted as follows:[135]

“It is significant that the Spotlight Group proposes to operate Spotlight and Anaconda stores at both Noosaville and Maroochydore, because that illustrates the demand is so significant that the same operator perceives a market for both stores at both locations, and that the stores at Noosaville will not undermine the attraction and performance of the stores at Maroochydore.”

  1. [127]
    I reject this submission. In my view it the appellant’s desire to establish a store at Noosa is not probative of anything. It certainly does not establish any relevant need other than the appellant’s own.
  1. [128]
    I prefer and accept the Council’s submission in relation to pre-existing competition as follows:[136]

“Not only is the community reasonably supplied with not merely the products intended to be sold from the only outlets of which we are aware are committed to this development, but those members of the public who prefer these outlets have available opportunities within a reasonable travel distance from anywhere in the Sunshine Coast, presently at Birtinya (Or Kawana) and soon at the PRAC at Maroochydore.”

  1. [129]
    Indeed, this submissions highlights that the proposed development is readily distinguishable from the Masters development that was approved for the Land in Hydrox.[137] In that case, as Rackeman DCJ observed, Masters was not already relevantly present and so an approval of the development in the case would mean that Masters was coming ‘to town’ to introduce previously absent competition to Bunnings.[138]
  1. [130]
    Given that, as both parties submit, Spotlight and Anaconda are both already present at Kawana and soon to be Maroochydore, the approval of the proposed development would not cause the introduction of a new competitor. Although I accept that it would arguably strengthen Spotlight and Anaconda’s presence and thus perhaps alter the balance of the competitive equilibrium.
  1. [131]
    It must be kept in mind that need is to be assessed from the perspective of the community. While such a shift in the balance may prove significant to the business of Spotlight, Anaconda and their direct competitors[139] this does not mean it is a benefit from the perspective of the community.
  1. [132]
    In the present case, consumers within the primary, secondary and tertiary trade areas cannot be said to be without the competitive contribution of a Spotlight or Anaconda. I am not satisfied that approval of the proposed development would introduce any benefit to the community stemming from an increase in competition between vendors.[140]

Convenience

  1. [133]
    The following observations of Skoien DCJ in Harburg Investments, (made in the context of a development providing for the essentials of life) are most apposite at this point:

“Stress must be paid on the convenience to the likely patrons of those developments. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the “atmosphere” of the development, the range of goods and services available and the personalities of the people employed there…”[141]

  1. [134]
    As a matter of common sense, it is far more inconvenient and concerning for community members to have to travel significant distances to access a supermarket than if they must travel the same distance to purchase non-essential, infrequently purchased goods such as furniture. The present case involves the latter situation of course. Relevantly, Mr Duane observed that “[l]arge format retail centres typically serve broad geographic trade areas due to infrequent purchase habits.”[142]
  1. [135]
    I accept as obvious logic, that customers will prefer to cross shop at co-located facilities.[143] I also accept that, as Mr Duane relevantly observed, that this generally results in a benefit to the consumer.[144] However, in the whole context of this case, I am not satisfied that the issue of convenience amounts to the existence of a need given that, as observed above, it is entirely appropriate and expected given the type of goods on offer, that consumers may have to travel to access them.
  1. [136]
    I make no conclusion as to convenience in relation to the non-showroom tenancies of the development as, for the reasons outlined above, there is little if any probative evidence on which I could make any cogent findings.

Contribution to, and fostering the vitality and vibrancy of, the Shire Business Centre

  1. [137]
    On this issue, the appellant submitted relevantly as follows:[145]

“The proposed development will create a destinational lifestyle precinct that will contribute to and foster the vitality and vibrancy of the Noosa Shire Business Centre by providing a mix of uses (retail, office, health care services, indoor sport and recreation, low impact industry and food and drink outlet) that will improve choice, convenience, competition and employment opportunities for the community.”

  1. [138]
    The Council submitted that any such benefit does not amount to a need sufficient to overcome the community need for the Land to be maintained for uses that are compatible with the Scheme.
  1. [139]
    I accept that the appellant’s intention is to create a destinational lifestyle precinct that will contribute to and foster the vitality and vibrancy of the Noosa Shire Business Centre, but it has not persuaded me that approval will result in that outcome.  There is little, if any, probative evidence on which I could make any cogent findings about the mix of uses that would be established as part of the proposed development if it were approved.  The evidence is certainly not sufficient to persuade me that the mix would produce a greater vitality and vibrancy than that which would be achieved by a development that accords with the planning intentions for the Land.  As such, the appellant has not demonstrated that this is a matter that tips the balance in favour of approval.

Reduce the need for residents to source goods and services beyond the Shire and will retain spending within the region to the benefit of existing retail facilities in the locality from additional customer flows;

  1. [140]
    As outlined above in relation to economic need, I have accepted Mr Brown’s view that there will always be, by virtue of the type of goods involved and the nature of the Sunshine Coast, escape expenditure beyond the Shire.
  1. [141]
    I accept as a matter of logic that retention of spending would benefit other businesses in the Noosa locality. However, I reject that this establishes a need that, in the circumstances of this case, warrants approval, for the following two reasons:
  1. (a)
    First: As outlined above, need does not refer to businesses with an interest in the development, whether direct or competitive. It is therefore incorrect as a matter of law to attempt to justify the proposed development on this basis;
  1. (b)
    Any benefit to the community that might flow from the proposed development submission would relate to convenience and choice and has been dealt with above under those headings.

Contribution to employment within the SBC

  1. [142]
    As a matter of common sense, I accept as a general proposition that the proposed development will contribute to employment within the Shire Business Centre. The extent to which it will do so is speculative.
  1. [143]
    The Council submitted and I accept, the scheme contemplates that the Land will be used consistently “[t]o provide for a multifunction employment node that forms the Shire’s business and employment growth focus.” The appellant has not demonstrated that any employment benefits to the community arising from the proposed development are above those that would arise from use of the land in the manner encouraged by the planning scheme, and I am not prepared to infer that it will simply because such a use has not yet been proposed.

Planning Need

  1. [144]
    The appellant submitted that there are two aspects to the need considerations in this case: the need for the proposed development and the need to maintain the land in the Shire Business Centre for other uses.
  1. [145]
    The onus is on the appellant to demonstrate need and I therefore reject the notion that the need for the Land to be maintained for uses compatible with the scheme must be weighed up against the need argued in relation to the proposed development. There is no requirement in this case for need to be demonstrated in relation to the ‘status quo’ of the Land being maintained for use consistent planning scheme. The need that must be demonstrated relates to the development proposal only.
  1. [146]
    The Council submitted that:[146]

“The town planning need will only be established if it can be proved that the planning scheme in its current form does not adequately cater for the uses proposed”.

  1. [147]
    In making this submission, the Council referred to and relied on the observations of Carter DCJ to this effect in Williams McEwans Pty Ltd v Brisbane City Council.[147] Whilst this decision was decided under previous planning legislation, these observations remain relevant and persuasive. 
  1. [148]
    More recently, and consistently with this approach, the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors[148] made the following observations:

“… the question of planning need must focus on the provisions in [City Plan 2016] and whether it provides for the unmet need to be satisfied or adequately satisfied.”

  1. [149]
    Similarly, in Gold Coast City Council v K & K (GC) Pty Ltd Sofronoff P (with Fraser JA and Flanagan J agreeing) observed relevantly as follows:[149]

“… It has been established beyond argument that a decision maker must take a Planning Scheme to be an expression of the public interest in terms of land use. The proposition can be put the other way around. 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. The public interest that is to be satisfied by the proposed development must be greater than the public interest in certainty that the terms of a Planning Scheme will be faithfully applied. Some such examples appear in the Ministerial Guidelines to which I have referred.

[Emphasis added]

  1. [150]
    This passage does not mean in relation to Issue One (need) the appellant must prove on balance that the planning scheme does not cater to the need (although separately I accept that the appellant does make that criticism of the schemes) – so in that sense it bears the onus. The relevance of these observations is that as a starting point, the planning scheme is usually taken as an articulation or reflection of the needs of the community.
  1. [151]
    In their first JER, Mr Brown and Mr Duane note that “[t]here are few, if any sites of substantial size to accommodate the demand for further large format retail facilitates. Any vacant land in the industrial zoned area is being developed for industrial uses”[150] and further that “[a]part from a portion of the subject site, there is no vacant land in the Noosaville business zoned area for substantial large format retail/showroom uses.”[151] This may be so.  But it does not of itself mean that a planning need has been established in this case.
  1. [152]
    In Trinity Park Investments the Court of Appeal also relevantly observed that:[152]

“… unless there is an economic need for a shopping centre, there will be no planning need.”[153]

  1. [153]
    For the reasons outlined above, I am not satisfied that any relevant economic (or community) need exists for the proposed development. I am also not satisfied that there is any planning need for it.

Conclusion on Need

  1. [154]
    In answer to the question posed by Issue One, I am not satisfied there is any real or appropriate level of planning, community and economic need for the proposed development.

Issue Two:Appropriateness of land use

  1. [155]
    The appellant submitted that the proposed development is consistent with the outcomes sought for the Shire Business Centre for three main reasons:[154]
  1. (a)
    First, it will contribute to the Shire Business Centre’s role as the highest order centre in the Shire and will ensure its long-term viability.
  1. (b)
    Secondly, any need for employment activities within the Shire Business Centre is low; the development provides employment generating activities; and does not cut across the ability to accommodate other employment uses given the substantial available land with the Shire Business Centre;
  1. (c)
    Thirdly, it will advance the following outcomes of the Noosa plan:
  1. (i)
    Strategic Framework: ss 1.4.1 (c), 1.4.3 (b) and 1.7.7 (c);
  1. (ii)
    Desired Environmental Outcomes: ss 3.1.3(b) (ii), (v) and (vi);
  1. (iii)
    Noosaville Locality Code: Overall outcomes 11.7.2(i), (j),(k), (ee) and (tt)(i) and (ii).
  1. [156]
    To bolster its submission that the proposed development is an appropriate use of the Land, the appellant also pointed to:[155]
  1. (a)
    The proposed development being established on an “ideal site”;
  1. (b)
    The proposed development having a high-profile location within the Shire Business Centre and being a logical extension to the existing retail and commercial facility within the Shire Business Centre; and
  1. (c)
    There being limited available and appropriately zoned sites within the locality that could accommodate “a development of the type proposed.
  1. [157]
    Against this, the Council submitted that the proposed development is an inappropriate land use for the Shire Business Centre and represents a departure from the 2006 Scheme’s intention that the Shire Business Centre be developed for business and related employment purposes, with retail limited. The Council relied on the following particulars in support of this submission.[156]

Particulars

  1. (a)
    The Shire Business Centre is intended to be the business and employment focus of the Noosa Shire, and is subject to specific land use planning in precincts in support of this objective and to limit the retail component of the Centre;
  2. (b)
    The Shire Business Centre is identified as a Major Regional Activity Centre within the Regional Activities Centre Network of the South East Queensland Regional Plan 2017 (SEQRP);
  3. (c)
    The Appellant’s proposed “Showroom”, “Indoor Sport and Recreation”, “Low Impact Industry” and “Food and Drink Outlet” are inconsistent uses in one, or both, of the Shire Business Centre zone precincts B3 and E5;
  4. (d)
    Further large format retail of the extent proposed is not envisaged for the Shire Business Centre, which is more suited to, and intended to be fulfilled by, the Principal Regional Activity Centre at Maroochydore;
  5. (e)
    With respect to the proposed “Showroom” and retail components:
    1. (i)
      the Appellant’s proposed “Showroom” use definition allows for large format retail development, which is not envisaged for this land within the Shire Business Centre;
    1. (ii)
      the proposed “Showroom” use totals 7,725m2 in Gross Floor Area, which equates to 67.6% of the development;
    1. (iii)
      the proposed extent of retail is not planned and significantly exceeds the retail caps set by the Noosa Plan for the Shire Business Centre to ensure an appropriate balance of business, administrative, retail and other non-retail employment opportunities;
    1. (iv)
      the proposed development effectively introduces a smaller second shopping centre into the Shire Business Centre;
  • (f)
    The proposed development:
    1. (i)
      will unacceptably impact upon the long-term development and viability of the Shire Business Centre, as Noosa’s principal business, retail and administrative centre (with an appropriate balance of such uses);
    1. (ii)
      will not support the growth of the Shire Business Centre as a multifunction employment node which provides for a wide range of business uses and employment opportunities;
    1. (iii)
      will not retain development capacity within the Shire Business Centre to take advantage of future new employment opportunities;
    1. (iv)
      fosters retail employment, which is not a high employment generating use, rather than employment in other sectors, including export oriented, high-value sectors and other employment opportunities;
    1. (v)
      utilises land intended to be set aside for non-retail employment, which inhibits the ability of Noosa Shire to meet the State’s employment planning baselines; and
  • (g)
    The proposed development does not support the Economic Sector Vision for Noosa Shire to create a strong viable niche economy, protecting and enhancing the Noosa brand, as the proposal limits available land for employment opportunities and business and industrial growth, and growth strategies focused on identified priority areas.

Assessment benchmarks (Exhibit 3.1) – focal

  1. Desired Environmental Outcomes 3.1.3 (b)(i), (ii), (iii) & (xi) [p.56];
  2. Noosaville Locality Code – Overall Outcomes [p.100] 11.7.2 (tt)(iii)(C), (x), (xi)(B) & (C) [pp.100/101] and Specific Outcomes O90 and O91 [p.129], O117 and O118 [p.135]; and
  3. SEQRP, Chapter 3, Goal 2: Prosper – Element 1, Strategies 1, 6 & 7 and Element 3, Strategies 1, 3 & 4 [p.52], and Map 3 [p.55] and 3b [p.57] and Table 7 (which identify the Shire Business Centre as a Major Regional Activity Centre) [p.64] and Table 8 (which describes the functions intended for a Major Regional Activity Centre) [p.65].

Assessment benchmarks (Exhibit 3.1) – contextual

  1. Strategic framework – Sections 1.4.3 and 1.7.7(c);
  2. Desired Environmental Outcomes 3.1.3 (b)(v) & (vi); and
  3. Noosaville Locality Code – Overall Outcomes 11.7.2 (ff), (tt)(i) & (ii) and (xi)(A) and Specific Outcomes O147 and O148.”

Analysis

  1. [158]
    The appropriateness of the land use issue (with reference to the applicable planning schemes) is addressed in the joint report of Mr Chris Buckley and Mr Shane Adamson, the town planning experts.[157]  Both experts gave oral evidence before me. An individual statement of evidence from Mr Buckley was also tendered into evidence.[158]
  1. [159]
    The Council submitted that the starting point is the town planners’ “clear agreement” that the use does not align with certain provisions of both Schemes.[159]  I do not accept this submission for two main reasons:
  1. (a)
    First, the starting point is that the determination of this issue is part of the broad evaluative judgment to be made by the court (with reference to the relevant planning scheme provisions; not by the town planning experts.)[160]
  1. (b)
    Secondly, the expressed statement of agreement is a broad and general one and exactly what is agreed is not clear.
  1. [160]
    As set out above, the “focal” assessment benchmarks of the 2006 Scheme relied upon by the Council are: desired environmental outcomes 3.1.3(b)(i), (ii), (iii) and (xi); and the Noosaville Locality Code - Overall Outcomes 11.7.2(tt)(iii)(C), (x), (xi)(B) and (C) and Specific Outcomes O90, O91, O117 and O118.[161]
  1. [161]
    The Council also relies upon Shaping SEQ Chapter 3, Goal 2: Prosper - Element 1, Strategies 1, 6 and 7 and Element 3, Strategies 1, 3 and 4 and Map 3 and 3(b), and Tables 7 and 8.
  1. [162]
    In contrast, the appellant submitted the proposed development will advance the following outcomes of the 2006 Scheme:
  1. (i)
    Strategic Framework: ss 1.4.1 (c), 1.4.3 (b) and 1.7.7 (c);
  1. (ii)
    Desired Environmental Outcomes: ss 3.1.3(b) (ii), (v) and (vi);
  1. (iii)
    Noosaville Locality Code: Overall outcomes 11.7.2(i0, (j),(k), (ee) and (tt)(i) and (ii).
  1. [163]
    Turning firstly to the Shaping SEQ provisions relied upon by the Council.

Shaping SEQ

  1. [164]
    Relevantly, Goal 2, “Prosper”, contains the motherhood statement of intent relating to the whole of South East Queensland: that it “has a globally competitive economy focused on high-value economic activities supported by population-serving jobs”.[162] Element 1 and the identified Strategies 1, 6 and 7 contain broadly expressed strategies for a “High-performing outward-focused economy” in South East Queensland.  The Council does not point to any, (nor do I find there to be any) non-compliance with these provisions.[163]
  1. [165]
    Element 3 and nominated Strategies 1, 3 and 4[164] are also generally expressed. But it is instructive that the strategies include an objective of accommodation of employment generating activities in regional activity centres. But I accept (as the appellant submitted) that does not in itself necessarily preclude activities of the type proposed in this case.
  1. [166]
    The Council’s issues refer to Maps 3 and 3b and Tables 7 and 8.[165] Read together these confirm that the Shire Business Centre is a “Major regional activity centre”. The appellant submitted that “perhaps” the most specific indication of what is intended in such centres is set out in Table 8 which relevantly states as follows:[166]

“These centres are focal points for sub-regional employment and the delivery of sub-regional services. They provide a third tier administrative function to the capital city centre, accommodating government branch offices or service centres of sub-regional significance.

They also contain major concentrations of business and related activities, cultural and entertainment facilities, and support comparison and convenience retail uses that meet the needs of their sub-regional catchments.

As well as their traditional service roles, growth and commercial development increasingly supports creative and knowledge-intensive businesses to meet the demands of a changing economy. [Emphasis added]

…”

  1. [167]
    I accept that the expressed intent for Major regional activity centres (such as Noosa) is that they “support comparison ... retail uses that meet the needs of their sub-regional catchments”[167] The appellant submitted that the development proposal “positively accords” with Shaping SEQ because of the need identified by Mr Duane.[168] Whilst I accept as a general proposition the development proposal will provide comparison and convenience for the local Noosa community, I reject the appellant’s submission  of accord because (for the reasons discussed under that heading above), I am not satisfied that the development proposal is necessary to meet the needs of the Noosa Community.
  1. [168]
    As set out in paragraph [44] above, the 2006 Scheme summarises the overall (community) vision sought by the Noosa Shire to include a strong sustainable economy (s.1.4.1 (c)).[169]  Consistent with this vision, the economic sector vision to 2021 (set out in paragraph 45 above) relevantly provides (amongst other things) for there to be a strong viable niche economy including employment opportunities, business and industrial growth (1.4.3(b)). [170] The 2006 Scheme (at s 1.7.7 (c)) provides that the Shire Business Centre “will be the business and employment focus of Noosa Shire and amongst industrial, commercial and community facilities will include a shopping centre anchored by a discount department store.” 

Desired environmental outcomes

  1. [169]
    The desired environmental outcomes for the Noosa Shire (in terms of commercial and retail uses) includes a hierarchy of centres with a range of “Commercial and Retail business uses” which provide suitable levels of amenity, service and access to the community consistent with the community’s location and needs, including (as identified by the parties[171]) by:[172]
  1. (a)
    a proportion of Noosa Shire’s higher order needs being fulfilled by centres in other areas, particularly the Principal Activity Centre of Maroochydore (DEO 3.1.3(b)(i));
  2. (b)
    the Shire Business Centre, a Major Activity Centre for the purposes of the SEQ Regional Plan and the highest order centre within Noosa Shire, developing in stages consistent with the needs of the population of Noosa Shire and areas to the immediate south (DEO 3.1.3(b)(ii));
  3. (c)
    protecting the long term viability of the Shire Business Centre as the principal business, retail and administrative centre, by setting aside short term needs to ensure the long term implementation of the centre (DEO 3.1.3(b) (iii));
  4. (d)
    centres serving different roles that strive to find a market edge to strengthen their market position and reinforce their individual identities within the established retail hierarchy (DEO. 3.1.3(b)(v));
  5. (e)
    recognising that it may be necessary to increase floor space in existing centres to meet changing needs, provided any increased floor space does not impact on the successful operation and development of the Shire Business Centre (DEO 3.1.3(b)(vi)); and
  6. (f)
    uses that comprise a large component of Commercial and Retail business uses or other non-industrial uses not located on land that is otherwise intended for industrial business uses (DEO 3.1.3(b)(xi)).[173]
  1. [170]
    With one exception (3.1.3(b)(ii)), the parties pointed to different desired environmental outcomes to support their respective positions. It is necessary therefore to consider their opposing perspectives.
  1. [171]
    Desired environmental outcome 3.1.3(b)(i) refers to “a proportion” of the Noosa Shire’s higher order needs being fulfilled by centres elsewhere, including Maroochydore. The Council relies on this provision to support its contention that “further” large format retail such as the proposed development is not envisaged for the Shire Business Centre and is “intended to be fulfilled by ... Maroochydore”.[174]   I do not accept this submission for two main reasons:  
  1. (a)
    First, (and as the appellant submitted) the language is cast in very general terms[175] and provides greater flexibility to the decision-maker and “eschews rigidity of category of use and the prohibition of particular uses”.[176] It follows that I am not satisfied on a plain reading of this provisions that the uses proposed are necessarily intended to only be fulfilled by centres in other areas;
  1. (b)
    Secondly, the provision is only one aspect of the desired environmental outcomes overall objectives that there be a hierarchy of centres with “a range of Commercial and Retail business uses” to provide suitable levels of service and access to the community, consistent with the community’s location and “need”.  Although for the reasons discussed under that heading above, I am not satisfied that the requisite need has been demonstrated by the appellant in this case.
  1. [172]
    It is instructive at this point to observe that Strategic Outcome 3.3.5(r) of the 2020 Scheme is cast in similar terms to parts of the 2006 Scheme regarding services at Maroochydore. This provision provides relevantly that:[177]

“Noosa is also serviced by the Maroochydore Regional Activity Centre, located outside the Noosa Shire. The Maroochydore Centre provides for higher level retail, business and community services for the broader region. It is expected that higher order retailing and facilities that service the Noosa community will continue to be located outside the Noosa Shire”

  1. [173]
    Overall Outcome 6.4.1.2(3)(a)(ii) of the 2020 Scheme intends “a substantial amount” of non-retailing employment opportunities for floorspace in the Shire Business Centre. I accept that this is a matter relevant to the overall objective that development of the Shire Business Centre is “in response to needs of the community”. Relevantly then Strategic Outcome 3.3.5(s)(i)(D) of the 2020 Scheme identifies the role of the Shire Business centre and states that there is a very limited increase in retail floorspace at the Shire Business Centre, recognising the role of Maroochydore in providing high order retail needs. The appellant submitted that the reference to a “very limited increase” is vague. I do not accept this submission because the numbers in the 2020 Scheme speak for themselves as discussed in paragraph 251(c) of these Reasons. Overall outcomes S.6.4.1.2(4)(a) of the 2020 Scheme for the Showroom Precinct(and the Business Park Precinct) is raised by the Council. Relevantly, in terms of the Showroom Precinct, it intends that the precinct accommodates limited additional showroom retail in “larger format space” together with other compatible uses such as hardware.[178]
  1. [174]
    Desired environmental outcome 3.1.3(b)(ii) confirms that the Shire Business Centre is the highest order centre within the Noosa Shire, and that it is intended that development occurs in stages consistent with the needs of the population of “the Shire” and “areas to the immediate south.” Plainly the reference to “south” is to areas outside of the Shire.[179]   This intention is another means by which the overall objective of desired environmental outcome 3.1.3(b), (seeking to provide suitable levels of service and access to the community – consistent with location and need), is to be achieved. Again, and as discussed under that heading, I am not satisfied that the requisite need has been established in the present case.[180]
  1. [175]
    Overall Outcomes 7.2.4.2 (2)(g) and (h) of the 2020 Scheme[181] require the Shire Business Centre to provide “a wide range of centre activities to meet the local needs of communities across Noosa Shire” acknowledging that Maroochydore provides the highest order and greater range of goods and services. The appellant submitted this this provision will facilitate the provision of the wide range of activities to meet the community’s needs. But as discussed under that heading I do not accept that any such need has been established.
  1. [176]
    DEO 3.1.3(b)(iii) intends the protection of the long-term viability of the Shire Business Centre as the “principal business, retail and administrative centre” by setting aside short-term needs to ensure the long-term implementation of the centre. Consistent with this, the Noosaville Locality Code Overall Outcome 11.7.2(tt)(x) (set out in paragraph 186 of these Reasons) intends that the Shire Business Centre “retains development capacity” in the longer term to take advantage of potential new employment opportunities.[182]  In the present case I accept the appellant’s submission that there is not a sufficient basis to support a finding that approval of the proposed development would adversely impact upon the Shire Business Centre remaining the principal business, retail and administrative centre for the Shire.
  1. [177]
    The Major Centre Zone Code Overall Outcome 6.4.1.2(2)(e) of the 2020 Scheme also intends that “Major centres contribute to a diversified local economy and provide key employment opportunities through a range of higher order ... activities in addition to core retail outlets that are founded on the needs of the Noosa Shire”. As Mr Buckley relevantly observed (consistent with the relevant planning schemes):[183] it is the task of the planning authority to promote the Shire Business Centre to accommodate a full range of uses; creating the Shire Business Centre with all the requisite elements will take decades; and it is legitimate to protect strategic parts of the Shire Business Centre whilst that development is occurring.
  1. [178]
    The appellant’s written submissions contended that the Council’s reliance upon desired environmental outcome 3.1.3(b) (xi) is misguided. But during oral submissions, Senior Counsel for the appellant withdrew this submission on the basis that it went too far. He emphasised that the real issue point is that, on the appellant’s case, what is proposed for the E5 area with the low-impact industry use is consistent with what is intended in that area. So, leaving aside the showroom in the northern part of E5 (which is what the appellant says the case is really about), the appellant concedes, and I accept that on its face, the development proposal does not comply with this provision [184]

Noosaville Locality Code provisions

  1. [179]
    Before turning to the focal provisions relied upon by the parties it is instructive to firstly consider the Noosaville Locality Code which relevantly provides as follows:[185]

11.6 Compliance with the Noosaville Locality Code

Development complies with the Noosaville Locality Code if it-

11.6.1 fulfils the specific outcomes for the locality in Division 17; and

11.6.2 is a consistent use and fulfils the specific outcomes for the relevant zones (Divisions 18 to 28).

  1. [180]
    The Council submitted that the proposed development does not comply with this code because the proposed uses have been specifically described as “undefined use” and are not listed as a consistent use (in the relevant O90).[186]
  1. [181]
    The appellant submitted (in reliance on table 11.7) that “in terms of consistent and inconsistent uses identified in O90 and O91, as undefined uses the proposed uses are neither.”[187] I accept that these overall outcomes do not refer to an undefined use. But I otherwise reject the appellant’s submission because 11.6.2 does not use the expression “inconsistent use” and only refers to “a consistent use”. It follows from a plain and ordinary reading of the provision if a development is not a consistent use it does not strictly comply with the Noosaville Locality Code.
  1. [182]
    The appellant also submitted that “there is an alternative path provided by 2.6.4 (d) (iii) of the 2006 Scheme” which provides that that a development that complies with: the overall outcomes of the code complies with the code; and the probable solution complies with the overall and specific outcomes of the code.[188]  It was conceded by the appellant that this provision is expressly applicable to a code assessable development and not an impact assessable development such as the present. However, the appellant maintained that code assessments are “informative as to how the Scheme’s codes are to be applied."[189] Accepting that the question of compliance with a code should not be approached differently whether the code applies to a code assessable development or to an impact assessable development,[190] I reject the appellant’s submission for two main reasons.
  1. [183]
    First, because to do so would be to stray from established statutory interpretation principles and secondly (and again) and most crucially, the adoption of such an approach would effectively circumvent the plain reading of 11.6.2 that a development complies (with the Noosaville Locality Code) if it is a consistent use. The proposed development is not a consistent use and therefore does not comply with the Noosaville Locality Code. To the extent there is inconsistency between s 2.6.4 and s 11.6.2, the general statement in s 2.6.4 should give weight to the specific provision in s 11.6.2.  This construction also fits with the apparent purpose of the provision, being to protect the land for future use by those uses that are nominated as consistent uses.  This is apparent from reading O90 and O91 in the context of the overall outcomes in s 11.7.2 tt)i, ii, iii, x, xi, and DEO 3.1.3(b)(i) and (iii).
  1. [184]
    Given the expressed status of this code in the hierarchy of the 2006 Scheme, the proposed development’s non-compliance with the Noosaville Locality code is both a relevant and potentially a significant one. But of course, not every non-compliance will warrant a refusal.
  1. [185]
    Second, it is relevant to observe that as the proposed uses are undefined, they are also considered inconsistent uses under the 2020 Scheme.[191] Under this latter scheme an inconsistent use means the use “is strongly inappropriate in the relevant zones because it is incompatible with other uses generally expected in that zone”.[192] The Council submitted that such incompatibility, properly understood means the development of an inconsistent use prevents the use of the land for a consistent use. Senior counsel for the appellant submitted that this was a “nice try” but incompatibility should be understood in the “everyday sense” that the development proposal is compatible with its neighbour. In this case the Noosa Civic Shopping Centre.  I accept that many aspects of the development proposal are compatible with this neighbouring centre. But I otherwise reject the appellant submissions as to the meaning to be attributed to the definition of incompatibility because it is a strained one and contrary to the ordinarily and unambiguous reading of the definition. Such a reading would (as the Council submitted) encourage a development contrary to what the planning scheme expressly intends for the Land. This approach is contrary to established principles.
  1. [186]
    Overall outcomes 11.7.2(tt)(iii)(C), (x),(xi)(B) and (C) of the Noosaville Locality Code (for the Shire Business Centre zone) referred to by Council are as follows:[193]

“… the Shire Business Centre-

  1. i
    is a Major Activity Centre for the purposes of the SWQ Regional Plan, and the principle business centre for Noosa, servicing Noosa-wide business and employment needs by providing for a wide range of Business Uses as well as administrative, community, and open space functions;
  1. ii
    is a multi-function employment node forming the major focus of employment growth in the coastal area of Noosa;
  1. iii
    follows a logical sequencing of development consistent with the needs of the community that is dependent on the-
  1. (C)
    development of a substantive amount of non-retailing development for employment opportunities beyond Retail business;
  1. iv
  1. v
  1. x
    retains development capacity within the Shire Business Centre in the longer term to take advantage of potential new employment opportunities;
  1. xi
    is developed into precincts, as depicted on Schedule 4-Shire Business Centre Map, which include a dynamic mix of development with an appropriate integration of uses within each, including-
  1. B)
    Precinct B3, which provides for showroom and office development
  1. C)
    Employment Precincts (E1-E7) for future employment growth, which include 3 precincts (E1, E2, E3) with preferred themes to allow these precincts to take advantage of new employment opportunities;
  1. [187]
    Overall Outcome 11.7.2(tt)(iii)(C) relevantly requires that development within the Shire Business Centre follow a logical sequencing “consistent with the needs of the community” that is dependent upon development of a “substantive” amount of non-retailing development for employment opportunities beyond “Retail business”. The appellant submitted that the overarching objective of this provision is to meet the needs of the community. I accept that submission as a general proposition, but it cannot be overlooked that those needs are confined by the express wording of the section which requires that the development follow a logical sequencing consistent with those needs. The appellant also submitted that this is exactly what the proposal would do. But again, and as discussed under that heading above, I am not satisfied that the requisite need has been established in this case. Otherwise, I also reject the appellant’s submission that the qualification in (C) is an imprecise one due to the reference to a “substantive amount” of non-retailing development being required. The appellant’s approach is too narrow and fails to consider other provisions of the planning scheme set the appropriate land use parameters for the Land.
  1. [188]
    Overall Outcome 11.7.2(tt)(xi)(B) and (C)[194] contemplate the development of the Shire Business Centre into precincts as depicted on the Shire Business Centre Map to include a “dynamic mix of development” with an appropriate integration of uses within each “including”, Precinct B3 “which provides for showroom and office development”; and Employment Precincts, (including E5) for “future employment growth.” The appellant submitted that these provisions (relied on by the Council) in fact support their submission that the proposed development is an appropriate use of the Land.
  1. [189]
    The appellant submitted that Overall Outcomes 11.7.2(tt)(iii),(xi)(B) and (C), properly construed, intend a “dynamic mix of development”, with an appropriate integration of uses, including, relevantly, provision for showroom and office development in Precinct B3 and “merely” future employment growth” in Employment Precinct E5. Leaving aside the issue of “showroom” I accept as a general proposition that the “need evidence”[195] reveals that the proposed development will facilitate (in one sense) a dynamic mix in the Shire Business Centre. But for the reasons discussed under the current heading I am not satisfied that the proposed development is an appropriate integration of uses in the Shire Business Centre.  
  1. [190]
    I also accept that 11.7.2(tt) (B) expressly refers to the development of showroom and office development. The appellant submitted that because (xi)(B) referred to “showroom” development - not in bold text, nor with a capital “S”, then it follows by reference to s.2.1.1 of the 2006 Scheme,[196](which provides that defined uses and classes and use classes are identified by bold and administrative uses by italics) that it is not intended to be a specific reference to the defined use of “Showroom.” [197]
  1. [191]
    In making this submission, the appellant referred to Overall Outcomes O117 and O118 intending “that Precinct B3 provide primarily” for showroom and office uses, and that it comprise a GFA of showrooms up to 7,000m2 and Commercial business up to 11,000m2.”[198]  But as can be seen from the full extract of these outcomes, the appellant’s submissions overlook the correct wording of these outcomes as set out below.

Column 1

Specific Outcomes

Column 2

Probable Solutions

Business Precinct B3

O117 Precinct B3 provides primarily for Retail business Type 4 Showroom and Commercial business Type 1 Office uses;

AND

O118 Development within Precinct B3 comprises a gross floor area of –

  1. a)
    For Retail business Type 4 Showroom – up to 7,000m2; and
  1. b)
    For Commercial business – up to 11,000m2;

No solution provided

  1. [192]
    It follows that the reference in Overall Outcomes 11.7.2(tt)(xi)(B) to Precinct B3 providing for “showrooms and office development” is a general one and must be read with Overall Outcomes 117 and 118 which expressly provide for a Retail business Type 4 Showroom- up to 7,000m2 in Precinct B3. The proposed development, as an undefined use, does not accord with this outcome.  I do not accept that, by applying for an undefined use, it delivers a development that accords with the desired planning outcomes for the Land.  That support is not evident when the provisions are read in their full context. 
  1. [193]
    The appellant accepts that there is non-compliance with PO66 of the Major Centre Zone Code under the 2020 Scheme.[199] It argues however that there are no identifiable adverse consequences but rather that the non-compliance would bring about positive benefits accommodating a need that exists. I accept the concession, but I otherwise reject that any such benefit has been established on the need evidence as discussed under that heading above.
  1. [194]
    I also find that the 2020 Scheme limits the extent of showrooms (as defined in the 2020 Scheme) to considerably less than half the GFA of the “showrooms” proposed (i.e., 3,500m² on the Land) compared, with a proposed ‘showroom’ GFA well in excess of 8,000m².[200]

Conclusion

  1. [195]
    What emerges from a plain reading of the relevant provisions of the planning schemes as identified above is that there is no scope in the 2006 Scheme and only limited scope in the 2020 Scheme (at 3,500m2 GFA) for Showroom floorspace (as defined in the respective schemes) on the Land. Otherwise, the Land is designated for a range of other decidedly ‘non-retail’ uses, with the intent of generating employment activities for the benefit of the Noosa Shire that are not dependent on retailing.
  1. [196]
    It is against this background that the appellant seeks approval for a large (8,200m2 GFA) amount of mainly retail tenancies, which it describes as being Large Format Retail tenancies. I accept the evidence of Mr Duane,[201] with whom Mr Adamson agreed,[202] that these Large Format Retail tenancies are no more or less than large shops. The proposed development does not therefore include any Showrooms as they would be defined under either Scheme.[203]  It is uncontroversial that the balance of the proposed development (of about 3,200m2 GFA) is for a broader range of uses.
  1. [197]
    In this context, the following evidence of Mr Buckley (which I accept) is most apposite:[204]
  1. (a)
    It is entirely legitimate to plan a hierarchy of centres through the regional plan, (as has been done for this region by the State Government in the regional plan[205] and as done by any planning authority[206]). To that end, Maroochydore and not Noosa is the designated Principal Regional Activity Centre for this region, with Maroochydore therefore serving the needs of the people of Noosa in that role.[207]
  1. (b)
    The Shire Business Centre should accommodate a full range of uses[208]and it was the task of the planning authority to promote the Shire Business Centre in that way;[209]
  1. (c)
    It is entirely legitimate for a planning authority to allocate locations and GFAs for various uses within the Shire Business Centre;[210]
  1. (d)
    Creating the Shire Business Centre with all of the requisite elements will take decades, including the lifetime of many planning schemes[211] and it was legitimate to protect strategic parts of the Shire Business Centre whilst that development was occurring, which is precisely what the planning scheme for this Shire Business Centre provides for;[212]
  1. (e)
    There will always be differences in terms of people’s proximity (and convenience) to higher order centres like Maroochydore;[213]
  1. (f)
    Whilst he disagreed with Mr Adamson as to the merits of the proposed development:

“The scheme, in its terms, talks about some needs being met at Maroochydore and… I suppose, by exclusion, the balance needs being met locally, and… there’s no doubt the proportion of higher order and regional uses will always go to Maroochydore, because there’s a critical mass there that accommodates it”;[214]

  1. (g)
    The 2020 Scheme addressed a need for further Showroom space ‘as defined’ via the inclusion of an addition 4,200m2 of GFA in the Shire business Centre.[215] This decision (and this specific amount) was consistent with the advice Council received from Mr Brown in preparing the Scheme.[216] The 2020 Scheme also took account of a need for, and provided for, additional retail space in the Shire Business Centre (but did not provide for it on the subject land).[217] These were both examples of the planning scheme evolving, as Mr Buckley had suggested it needed to in the balance of his evidence;[218]
  1. (h)
    It is the Council’s responsibility to gauge community expectations in preparing a planning scheme, like it did with the 2020 Scheme.[219] Moreover, the Council must take into account a broad spectrum of issues in preparing a planning scheme, not just issues of need or perceived need (for a particular type of retail);[220]
  1. (i)
    The Masters Approval,[221] whilst for the same land, involved elements of a hardware store and a garden and lifestyle centre that was a consistent use on most of the land, being a key distinguishing feature from the present case;[222]
  1. (j)
    There is no support for shops on the Land in either the 2006 Scheme or the 2020 Scheme;[223] and
  1. (k)
    It is relevant to consider, in the context of community need, whether (or not) the community is already reasonably well served[224] (which Mr Duane confirmed it was).
  1. [198]
    In answer to the question posed by Issue Two, I am not satisfied the proposed development is an appropriate land use for the Land in the Shire Business Centre.

Issue Three:Acceptability of the built form, design and layout of the proposed development

  1. [199]
    The appellant submitted that built form, design and layout of the proposed development is acceptable in two ways:[225]
  1. (a)
    First, the proposed development achieves the built form outcomes sought by overall outcomes 11.7.2(tt)(iv), (v) and (viii) of the Noosaville Locality Code and is in keeping with and complementary to the existing development in the locality including the Shire Business Centre; and
  1. (b)
    Secondly, the proposed development proposes rehabilitation at appropriate locations to improve and enhance existing vegetated areas.
  1. [200]
    Against this, the Council submitted that the built form, design and layout of the proposed development is inappropriate because:[226]
  1. (a)
    The proposal has the characteristics of a standard retail commercial design with large buildings not separated by landscaping:
  1. (i)
    without the architectural features unique to, and recognisable as, the ‘Noosa Style’;
  1. (ii)
    generally suited to retail uses and does not appropriately accommodate other proposed uses, including the proposed low impact industry use;
  1. (b)
    The car parking area is deficient in landscaping with unsatisfactory provision for shade trees.

Analysis

  1. [201]
    The Council submitted that whatever architectural merit it may have, the proposed development fails at the first hurdle because it has been designed to accommodate a quantum of floorspace that is not planned to be developed on the Land. For the reasons discussed under that heading above, I accept that the development proposal has been designed to accommodate a scale of uses (not just a type) that are not consistent with what the planning scheme envisages for the Land. But I otherwise reject the Council’s submission (to the effect that this is the end of this issue) because it oversimplifies the issue and fails to recognise the broad evaluative assessment that must be made by this court.
  1. [202]
    The real crux of this issue concerns an assessment of the relationship between the built form and the vegetation and landscaping in Noosa as promoted by the relevant planning documents.
  1. [203]
    A useful starting point is therefore a consideration of each of the key assessment benchmark provisions identified by the parties. These included the following aspects of overall outcome 11.7.2(tt) from the Noosa Locality Code which provide as follows:[227]

“….the Shire Business Centre -

….

iv is developed at a low scale and density with distinctive and unique design elements, determined by the setting and recognisable as a Noosa development;

v comprises buildings [i.e. plural] of low rise form separated by attractive and low key informal spaces that are integrated with landscaping and open space areas;             

viii provides visual and physical connectivity across and throughout the site.”

[emphasis added]

  1. [204]
    Other key provisions from the 2006 Scheme (relied upon by the Council with my emphasis added) include:
  1. (a)
    Table 11-13, O9:[228]

Building and other structures are appropriately designed and sited to-

  1. (e)
    allow for landscaping to be provided between buildings;
  1. (g)
    avoid large areas of continuous wall planes by varying the building setbacks and using appropriate techniques to provide visual relief;
  1. (b)
    Table 11-13, O21:

Buildings and other structure use materials and finishes that complement the Noosaville character and integrate with the surrounding natural and built environment.

  1. (c)
    Table 11-13, O105(i):[229]

Buildings and other structures are suited and designed to-

  1. i)
    Integrate landscaping into the building design and car parking areas;
  1. (a)
    Table 14-55, O28:[230]

Landscaping of car parking areas is designed to-

  1. a)
    Reduced the visual impact of the development.
  1. [205]
    The relevant focus on the 2020 Scheme under this issue is on the following provisions (with my emphasis added):

(a) s. 3.3.5(s)(i)(D):[231]

Development of the Noosa Business Centre is to be consistent with the Noosa-style village character incorporating subtropical design with low-scale pavilion-style buildings at human scale with high amenity landscaping breaking up built form and linking to a village green and an open space corridor. Large box-like buildings are avoided; [Emphasis added]

  1. (b)
    s. 6.4.1.2(2)(p(i):[232]

Development is well designed reflecting… a subtropical ‘Noosa’ style with emphasis on indoor and outdoor connections, variety in façade treatment through articulation and materials, creation of shade on public spaces and landscaping around sites and on buildings in accordance with PSP5 Sustainable Design Code;[233] [Emphasis added]

  1. (c)
    s. 6.4.1.2(3)(c)(iii):[234]

Development occurs in distinct settings defined by… distinctive subtropical design elements appropriate to the precinct and the setting and which are immediately recognisable as having a ‘Noosa’ style; [Emphasis added]

  1. (d)
    Table 6.4.1.3 PO32(a):[235]

Landscaped areas are provided to… reduce the impervious area and enhance the visual amenity and natural landscape character of the setting, streetscape and local area. [Emphasis added]

  1. (e)
    Table 6.4.1.3 PO35:[236]

Landscape treatments soften and improve the visual appearance of the building, outdoor spaces and service areas.

  1. [206]
    The following four uncontroversial matters usefully inform the present discussion:
  1. (c)
    First, the proposed development will not be visible from outside of the Shire Business Centre;
  2. (d)
    Secondly, there would be limited visibility of the proposed development from Hofmann Drive;
  3. (e)
    Thirdly, the existing development at Noosa Civic does not represent the Noosa style; and
  4. (f)
    Fourthly, the existing landscape has limited natural features.
  1. [207]
    The evaluative judgment as to whether an ultimate outcome is acceptable in responding to relevant performance and overall outcomes is of course one about which reasonable minds may differ as they do in this case.
  1. [208]
    Mr Scott Peabody’s evidence is that the proposed design is responsive to the sub-tropical Noosa environment and delivers a successful contemporary retail and commercial built form outcome that retains the existing landscape along the Eenie Creek Road and Hofmann Drive frontages; and complements the neighbouring retail and commercial developments (notably Noosa civic) within the general surrounding context.[237]
  1. [209]
    On the other hand, Mr Leslie Curtis concluded that the proposed development is not an efficient use of the Land, is not reflective of the Noosa style, will not accommodate the intended uses for Precinct E5 (without impacting upon the amenity of adjoining tenants), will be dominated by car parking and driveways and will not fit into but will dominate the natural environment.[238]
  1. [210]
    Before attempting to understand these opposing views, it is necessary at this point to pause and consider the concept of a “Noosa Style” as it is one that permeates throughout both planning schemes.
  1. [211]
    A reflection on what is meant by this rather nebulous expression is contained in the joint architecture report of Mr Peabody and Mr Curtis.[239]  From an architectural perspective both men acknowledge that the Noosa style is a broad concept that requires a design approach that generally responds to Noosa’s subtropical environment, lifestyle and regional vernacular; appreciating building typology and complementing the general surrounds.[240]
  1. [212]
    Words do not always necessarily accurately capture a concept and in this regard, I accept the oral evidence of Mr Curtis that the Noosa style can be expressed as “a feeling that you get and somehow try to translate into when you might produce a… design outcome.”[241]  Although as Mr Curtis also relevantly observed:[242]

“the concept of a Noosa style is not an extrinsic design attribute that may be applied to the appearance of a development, but it is an intrinsic design character that emerges from a holistic design response to relevant planning scheme requirements.”

  1. [213]
    Consistent with this articulation or approach to the concept of the Noosa style, I also accept the evidence of Mr Peabody that the form of any given development must respond not only to the site context, but also to the function of the development;[243]and an architectural design must take into account the type of use intended for the development in question[244] to ensure “the building typology reflects the uses or potential uses or range of uses.”[245]
  1. [214]
    When considered in the context of the relevant planning schemes as identified and discussed above, I find that the Noosa style places a strong emphasis on a development not dominating a site but instead demonstrating the effective integration of built form and landscape.[246] This finding is consistent with the observations of Mr Nathan Powell (the visual amenity and landscape character expert called by the appellant) which I accept, that both planning schemes “… provide a high emphasis on the visual appearance – or the visual effect of landscaping on buildings.”[247]
  1. [215]
    By reference to the perspective drawings[248]and the development proposal, I accept Mr Peabody’s evidence that parts of the architectural design are well characterised as “considered”, that there is some articulation between buildings and that aspects of the design bring a subtropical response to the proposed development. For example:[249]
  1. (a)
    the perspective at page 35 illustrated the connectivity of the walkways and the arbour structures associated with it, depicting some of the materials used including timber batten screening, and translucent roof sheeting over the arbour structures that create a verandah to the tenancies. The large “Noosa Marketplace” sign is a different architectural form that complements and works well with the balance of the proposal. There is an articulated roof form that introduces a vertical timber batten or timber blade screen. In can be seen the connection of the arbour structures and the changing roof forms and modulation of those roof forms along both Buildings 3 and 4;[250]
  1. (b)
    the perspective on page 36 depicts the human scale that would tie in between the various architectural forms. That is, how the verandah spaces and the arbour structures create connectivity. There is also punctuation between the arbour structures where the landscaping creates smaller, intimate, courtyard spaces between the various elements of Building 1[251]. A larger landscaped courtyard, covered by an elevated roof, exists between Tenancies 13 and 1.[252] There are further courtyards, or landscape punctuations on the internal corners of Tenancies 1 and 14, and 17 and 2[253]. Building 2 involves two smaller pavilion tenancy spaces with punctuation of the courtyard space, covered terrace and canopy trees illustrated in the perspective on page 36[254]; Building 1 appears as “a series of three building envelopes” or “effectively, three pavilions”.
  1. (c)
    the perspective on page 37 depicts the carparking carefully sleeved around the building, so that it breaks up the carparking mass, and provides accessibility and convenience and legibility for patrons of the various spaces and tenancies. To the left of the illustration is depicted the “warmth of the materiality, along with the portal frames, the timber battening, the timber battening on the soffit, which, then, is covered by ... translucent roof sheeting”.[255] That will offer a “dapple of light” to the verandah enabling people to navigate their way around the development under cover with natural light to the shopfronts bringing “very much a subtropical response;”
  1. (d)
    the perspective on page 38 depicted the corner of Tenancy 11 with its “expressed roof form” and vertical timber blades. Building 2 is in the forefront of the image with a “lovely” consideration of materiality, with materials complementing one another across the building, or across the architecture;[256]
  1. (e)
    page 39 depicted a larger public courtyard space punctuating Tenancies 1 and 13. The roof form works its way along and “steps up” above the courtyard space. It would be effectively covered around the paved areas, and with trees and a planter in the centre with natural light and rain filtering through. It would provide a pleasant, shady, dappled light space throughout the year for the public to use;[257] and
  1. (f)
    by reference to the pre-amended image of Building 4 on page 40, the timber battens will be fixed in different angles providing a pleasant effect along the 5 or 6 sides of the elevations. It was very much a “faceted” building with considerable articulation.[258]
  1. [216]
    Consistent with this evidence, Mr Curtis also relevantly acknowledged that:
  1. (a)
    [buildings 1, 2 and 3] “will include attractive architectural elements including the arbour structure covered walkways, some diversity in elevation form, the application of timber, the introduction of translucent roof sheeting of battens, and the inclusion of landscaped courtyards punctuating the building edges”;[259] and
  1. (b)
    “Mr Peabody did a good job, very eloquently, in describing that verandah type form, which is used to hide the big bulky boxes behind. In terms of the translucent roofing, and the battens, it gives a shaded effect, and I think it’s quite helpful”[260]
  1. [217]
    Mr Powell undertook a similar exercise to that of Mr Peabody in terms of a comparison of what is proposed and what is depicted in the perspective drawings, at the same time identifying the effective changes which had been made.[261] He described the landscape outcome for the development proposal in two ways. First: in terms of the perimeter, that it was a “fairly visually well-concealed and green first experience”. Secondly, that internally it was “a very well-treed carpark that would achieve a very balanced shaded outcome for that space”.[262]
  1. [218]
    With reference to PSP5, Mr Powell considered that the objective of buildings being seen via filtered views through landscaping has been achieved.[263] He considered that to be benefits in terms of vegetation being incorporated into building design to create shade and cooling around buildings.[264]  His evidence about the landscaping in the carparking was that “[t]here are few ones that I regard as more pleasant than others and better than others in terms of provision of shade trees and spaces that work together. This would have to be among the best ...”. On a scale of 1 to 10, he described it as “high 8’s towards a 9”.[265]
  1. [219]
    This evidence of course is in direct conflict with that of Mr Curtis who was critical of the landscaping at the ends of the parking rows adjacent to the driveways, although it is instructive that he acknowledged that the situation had been improved, (although not sufficiently in his view).[266]  He was also critical of the landscaping along the tenancy frontages in terms of planter boxes and was unsure how effective that landscaping could be. [267]  Mr Curtis’ criticised the landscaping adjacent to the built form as being inadequate, but he agreed that landscaping of the type he suggested was absent from the Emporium development; Noosa Civic; nor any of the buildings to the west of it.[268] Ultimately, he accepted that the planter boxes and trellises proposed would result in a better outcome than in any of the parts of the existing development in the Shire Business Centre.[269]
  1. [220]
    Mr Peabody accepted that tilt panel, concrete or masonry construction for the core of the buildings would not necessarily be perceived as lightweight, architecturally.[270] Although he made a valiant attempt to commend the approach by referring to the vertical blades on parts of the buildings capturing  light and shade and creating a “dynamic sort of tapestry across the buildings”.[271]  Similarly, when asked about the image of looking from a tenancy out to the carpark, Mr Peabody considered that it would look through the filter of the arbour-type structures or the verandah structures. He considered that any tenant of the space would be “quite pleased that there was a ... lovely connection between the pedestrian and the carparking”.[272]
  1. [221]
    I do not accept Mr Peabody’s descriptions as necessarily consistent with the visual evidence or as accurately capturing the overall description of the built form and physical connectivity of the proposed development. Nor do I accept as accurate Mr Peabody’s description of the proposed development as a very subtle retail or precinct facility.[273]
  1. [222]
    The resolution of this issue is a finely balanced one. There are some aspects of the proposed development that respond well to the relevant planning scheme provisions. But there are other aspects that do not.
  1. [223]
    The requirement for “distinctive and unique design elements” in overall outcomes 11.7.2 (tt)(iv) is as the appellant submitted imprecise.  I accept there are minor elements of the proposed development that might be described as distinctive, but I am not satisfied that when considered overall and in the context of its setting, it is one that meets the criteria of having “distinctive and unique design elements”.  I also accept that there are aspects of the proposed development that are recognisable as a Noosa development. For example, overall outcome 21 requires that buildings use materials and finishes that “complement the Noosaville character” and integrate with the surrounding “natural and built environment”. It follows that I accept Mr Peabody’s evidence which on this point is supported by Mr Curtis that the architectural features of the development complement the Noosaville character. But this finding does not overcome what is revealed from the photo montages included in the architectural plans[274] that from a holistic perspective, the overall roof forms of the buildings viewed together lack sufficient articulation resulting in an overall box like form.
  1. [224]
    On balance, I prefer the opinion of Mr Curtis (as is discussed in these Reasons), that overall, the proposed development is not appropriately categorised as being one in the Noosa style.
  1. [225]
    Mr Curtis also accepted that from wherever someone stands in the development, the observer would not take in all of the buildings and that the views would be interrupted with landscaping or other buildings[275] and that an observer would have taken in bits and pieces of landscaping as they go, Building 2 and Building 4, lightweight features, dappling and shadows and the effect that Mr Peabody described.[276] In that sense I accept (and as Mr Curtis acknowledged)[277] there is some visual and physical connectivity across and throughout the proposed development as contemplated by overall outcome 11.7.2 (tt)(xiii). But I also accept Mr Curtis’s evidence that the connectivity is “diminished in terms of its amenity due to pedestrians being require to cross the large car park and negotiate potential conflicts with vehicles.”[278]
  1. [226]
    Specific outcome O9(e) [279] requires buildings to be appropriately designed and sited for landscaping to be provided between buildings. The appellant relied on the spaces identified by Mr Peabody and to the consensus between Mr Peabody and Mr Curtis that Building 1 has the appearance of three pavilions. But this is not enough. Relevantly and with reference to overall outcome 11.7.2 (tt)(v), I accept that the proposed development comprises buildings of low-rise form (with the spaces identified by Mr Peabody) but I am not persuaded that they are sufficiently or adequately separated by attractive and low-key informal spaces integrated with landscaping.
  1. [227]
    Specific outcome 105(i)[280] requires buildings to be sited and designed to integrate landscaping into the building design and carparking areas. For the reasons set out in the preceding paragraph I am not satisfied that the development proposal complies with this provision. But I accept that it is agreed that the proposed development will satisfy probable solution s 105.1 (of 50 percent glazing to shop fronts).[281]
  1. [228]
    Relevantly too, the objective of PO9(g) I accept (and as the appellant submitted) is to avoid large areas of continuous “wall planes” by varying building setbacks and using “appropriate techniques to provide visual relief”. I accept that the proposed development does make some attempt to address this in terms of the architectural treatment to the facades of buildings (as observed by Mr Peabody with whom Mr Curtis agreed). But I also accept (as a matter of common sense and knowledge) Mr Curtis’ characterisation of the built form of the proposed development as akin to that of a “relatively conventional shopping solution that you might see in any type of suburban situation,” with large tenancies at one end, characterised generally by the linear form. I also accept his observation (which is supported by a plain view of the relevant plans and photomontages) that the carpark is a very dominant element of the development proposal.[282] This conclusion is consistent with Mr Powell’s evidence (when confirming that the effect of the change to the development application was to add only two trees and was directed towards removing some of the tenancies and replacing them with hardstands – be that for car parks or vehicle manoeuvring),[283] that the changes did not create any significant new open space or landscaped areas;[284]and that the car parking (and other hardstand) car parks were, in general, not pleasant open space areas “where you wished to spend a lot of time” and effectively occupied all of the Land.[285] Mr Powell also conceded that development on the Land needs to do more (in terms of landscaping) than simply preserve the designated open space corridors;[286]and that some of the trees chosen to avoid areas of the car park being “barren” did not meet the Scheme requirements (for vegetated areas).[287]
  1. [229]
    Overall outcome 14.131.2(a) of the Landscaping Code seeks the achievement of a high quality of landscape design that “retains, reinforces and enhances the natural landscape character of the site, streetscape and locality.” For the two lower order codes that are in issue, being the Driveways and Carparking Code and the Landscaping Code, compliance with the specific outcomes results in compliance with the code.[288]
  1. [230]
    Mr Powell described the existing landscape setting as highly modified and “far from being a natural landscape setting.” He relevantly observed that the setting takes on the character of the surroundings; in this case, the Land being flanked by intensive industrial development to the west and a shopping centre and carpark to the east; and to the north, across the “busy” Eenie Creek Road - five car sales yards. I accept this evidence and his observation that “by any stretch, it’s not a natural landscape. It is not a natural landscape setting. It’s a highly urban, highly modified landscape setting that is assisted, quite rightly, by a green frame.”[289]
  1. [231]
    The appellant submitted that as the landscape character is not natural, this provision is of no application. The appellant also submitted that in any event, the significant extent of screening of the development externally, both from Eenie Creek Road and Walter Hay Drive demonstrates compliance with this provision and that it “certainly retains, reinforces and enhances the streetscape and locality.”[290] Mr Curtis also recognised that the limited natural features of the Land meant that the opportunities for its development were limited but acknowledged there were “some very nice trees” opining that “whereas the Noosa style is looking for the engagement with the built form and the landscape, [the proposed] development, really, does not seek to take any advantage of those elements.”[291] I accept this evidence of a lack of engagement. Such a finding is consistent with Mr Peabody’s acceptance that much of the Land (excluding the open space and covenant areas) would be covered by the proposed built form, with “hardstand and there’s built form and there’s pockets of landscape”[292] and that there was a consistency rather than a variation (albeit one he considered acceptable) in some of the roof form and columnar elements of the development.[293] It is also instructive that Mr Peabody identified that the effect of the changes to the articulation for Building 1 (made during the course of the appeal), was that this building effectively ran in a straight parallel line with the property boundary.[294]
  1. [232]
    It follows that I am not satisfied that there has been a high quality of landscape design in compliance with the identified provision of the Landscaping Code.
  1. [233]
    Specific outcome O28[295] provides that the landscaping of car parking areas is designed to reduce the visual impact of the development.  Mr Curtis’ description of this as a nebulous provision I accept as a fair one.[296] While Mr Powell considered that the plans demonstrated that the outcome required by this provision was either achieved or could be conditioned.[297] Mr Curtis agreed.[298] On balance I am not satisfied of compliance on the evidence. But I accept that compliance could be achieved through the imposition of conditions. 
  1. [234]
    Specific outcome O17 of the Driveway and Carparking Code is raised by the Council but is not addressed in the oral or written submissions advances on behalf of the Council. This provision requires carparking areas to be landscaped to relevantly, provide shade; reduce direct visibility of carparking areas from external viewpoints; and to soften views of hardstand areas. To the extent that it is pressed by the council, the appellant submitted that the evidence of Mr Powell confirms compliance with the provision. Overall, Mr Powell considered that “the landscaping to the car park complies, or can be conditioned to comply, with the relevant provisions.” [299] I prefer Mr Powell’s latter view – I cannot be satisfied on the evidence that there has been adequate compliance, but I accept the provision could be met with adequate conditions being imposed.
  1. [235]
    The overall resolution of Issue Three is finely balanced.
  1. [236]
    The Council submitted (both orally and in writing), that had the proposed development included a much more limited gross floor area particularly in terms of the proposed showrooms (being some four or five thousand square metres less than what’s currently proposed), it would have been relatively easy to achieve a result that saw the landscape and the vegetation dominate the built form with the buildings appropriately separated and set in the landscape.[300] Elsewhere the Council submitted that “the accommodation of 3,500m² of showrooms (as defined) within the showroom precinct (northern part) of the Land “could be” achieved in smaller buildings separated by landscaping rather than the massive building one sees proposed as Building 3.[301]
  1. [237]
    Consistent with this approach, Mr Curtis also referred to “an alternative arrangement” which “might have” achieved certain outcomes[302]; what “could have been” done.[303]  Mr Adamson’s perspective as a town planner was that if only 3,500m3 of Showroom was proposed (as contemplated by the 2020 Scheme), it would have facilitated a completely different development in terms of built form and landscaping and that there would have “been the opportunity to have those different, if you like, smaller or modular building footprints across the northern end similar to what has happened at Noosa Emporium, with the other either in business type uses than running further to the south towards along Hofmann Drive as a mixed use development.”[304]
  1. [238]
    But of course, what might or could have been designed and built is not relevant to this court’s assessment. Its function is “to pass judgment on that which is proposed.”[305]
  1. [239]
    In my respectful opinion the following observations of Mr Curtis which I accept, best capture the crux of this issue:[306]

… the proposed development [is not] consistent with what I understand to be the Noosa Style, which places a strong emphasis on development not dominating a site but instead demonstrating the effective integration of built form and landscape. The proposed development, although not an internalised shopping mall, will be comprised of large ‘box like’ forms located around the perimeter of an extensive car park, presumably because of the number of car spaces required, that lacks adequate landscaping. The proposed development will essentially appear as a smaller version of the existing Noosa Civic shopping centre within the designated business centre. The ‘big box’ building form lacks variation in its appearance and has little relationship to the landscape but rather has an interface with a car park

the proposed car park [is not] consistent with the planning for the Shire Business centre as a low scale and density development with distinctive and unique design elements, determined by the setting and recognisable as a Noosa development. Further, the proposed development has not demonstrated an appropriate number of canopy trees will be located within the car park to provide adequate shade and reduce the visual impact of the development. [Emphasis added]

  1. [240]
    Such “big box” built form is expressly not promoted by s. 3.3.5(s)(i)(D) of the 2020 Scheme.[307]
  1. [241]
    There are aspects of the built form, design and landscaping that go some way towards adequately addressing the requirements as envisaged by both planning schemes. But as the above analysis reveals, I am not satisfied on balance that overall, the proposed development is an acceptable visual amenity and architectural response to the planning scheme provisions under either the 2006 Scheme or the 2020 Scheme.
  1. [242]
    In answer to the question posed by Issue Three, I am not satisfied that the built form, design and layout of the proposed development is appropriate.

Issue Four:The impact (if any) of Noosa Plan 2020

  1. [243]
    It is uncontroversial that the 2020 scheme provisions are relevant to the court’s determination of this appeal pursuant to sections 45(5)(b) and 45(8) Planning Act.[308] As emerges from the relevant discussions under the other issues headings of these Reasons, I am not satisfied that the proposed development ought to be approved when assessed against the relevant provisions of the 2006 Scheme. It is therefore also relevant to consider whether there is anything in the 2020 Scheme that would warrant a change to that outcome bearing in mind of course that this is not the scheme against which the development must be assessed.[309]
  1. [244]
    The appellant relied upon the following matters in support of its submission that the proposed development is consistent with Noosa Plan 2020:[310]
  1. (a)
    the Noosa Plan 2020 contemplates that part of the Land may be developed for showrooms;
  1. (b)
    it is consistent with and maintains the role of the SBC as one of the most significant centres for the Shire (ss. 6.4.1.2(2)(a) Major Centre Zone Code, and 7.2.4.2(2)(g) and PO9 Noosaville Local Plan Code);
  1. (c)
    it is consistent with the intent of a variety of retail uses, including complementary retail uses such as “large format retail showrooms” (s. 6.4.1.2(2)(f) Major Centre Zone Code);
  1. (d)
    it will promote a vibrant and activated mixed-use environment and a mix of uses (PO3 and A03 major Centre Zone Code);
  1. (e)
    it will assist in meeting the intent that Major Centres contribute to a diversified local economy and provide key employment opportunities (s. 6.4.1.2(2)(e) Major Centre Zone Code);
  1. (f)
    it provides for employment generating activities and it does not cut across the ability for the SBC to accommodate other employment uses within other parts of the SBC;
  1. (g)
    it will contribute to a vibrant activity centre, with attractive and functional buildings with integrated high amenity landscaping, open space and public places and will achieve an appropriate transition between industrial land to the west (s. 6.4.1.2(2)(1) and (n) and (3)(f) Major Centre Zone Code);
  1. (h)
    it is consistent with the built form outcomes, including outcomes for a key gateway site (ss. 6.4.1.2(3)(e) and PO16 and A016.1 major Centre Zone Code); and
  1. (i)
    it is responsive to the planning aspiration for development to be well designed reflecting a “Noosa style” in circumstances where little, if any ,existing development within the SBC responds to that planning aspiration (s. 6.4.1.2(3)(p) Major Centre Zone Code).
  1. [245]
    Against this, the Council submitted that any weight the court considers is appropriate to be given to the Noosa Plan 2020, does not support the approval of the proposed development, which maintains the desired function and the role of the Shire Business Centre[311] relying on the following provisions:[312]

Particulars

  1. (a)
    ….

Assessment benchmarks (Exhibit 3.2) – focal

  1. Strategic Framework – Strategic Outcomes 3.3.5(r) and (s)(i)(B) & (D) [pp.29 and 30];
  2. Major centre zone code – Overall outcomes 6.4.1.2(2)(d), (e), (o), (p) & ® [pp. 171/2], (3)(a)(ii) and (c) [p. 172], (4) (Showroom precinct) (a) and (Business park Precinct) (a) [p. 173], and Performance Outcomes PO1, PO2 [p. 174], PO5 [p. 175], PO19(e) and (g) [p. 177/8], PO32 [p. 182], PO33 and PO35 [p. 183], PO66, PO67 and PO68 [p. 189];
  3. Noosaville Local Plan Code – Overall Outcomes (2)(g), (h) & (q) [pp. 200/1] and Performance Outcomes PO4, PO7 and PO9;

Assessment benchmarks (Exhibit 3.2) – contextual

  1. Strategic Framework – Strategic Intent sections 3.2.1 and 3.2.2 [pp. 11 to 15], 3.2.6 [pp. 19 to 22] and Strategic Outcomes 3.3.5(o) [p. 28]; and
  2. Major centre zone code – Overall Outcomes 6.4.1.2(2)(a), (b) (t) and (3)(b) [pp. 171 to 172], and Performance Outcomes PO4 [p. 175].
  1. [246]
    The main focal provisions identified by the parties have been canvassed where applicable under issues one to three of these Reasons.
  1. [247]
    Ordinarily the real issue is what (if any) weight should be attributed to the new planning scheme provisions “and any assessment carried out against it”.[313] But given the way the parties have chosen to articulate their points of distinction under this heading, it appears the real issue is not so much how much weight should be given to the 2020 Scheme – but rather how those provisions should be applied. Each pointing to the aspects of the 2020 Scheme apparently in their favour.  
  1. [248]
    In any event, I find that considerable weight ought to be afforded the 2020 Scheme for three main reasons:[314]
  1. (a)
    First: It embodies the most recent planning revisions which respect to the ongoing and “evolving”[315] development of the Shire Business Centre;
  1. (b)
    Secondly: It demonstrates that the planning authority (consistent with ShapingSEQ) has maintained its emphasis on the Shire Business Centre being a true activity centre, rather merely a retail centre; and
  1. (c)
    Thirdly: It demonstrates that the Council has directed its attention, and made decisions as the duly elected planning authority, with respect to the provision of:
  1. further retail floor space in the Shire Business Centre (some 7,500m² in the Village Mixed Use Precinct); and
  2. a further 4,200m² of showroom (as defined by the 2020 Scheme, which definition is sourced, from the Planning Regulation 2017[316]) in the Shire Business Centre including 3,500m² of GFA on the subject land in the Showroom Precinct (with the balance of 700m² added to the Showroom Precinct land to the east).
  1. [249]
    What the above analysis reveals is that the provisions of the 2020 Scheme confirm in a more contemporaneous form, what was already the case under the 2006 Scheme, the proposed development is inappropriate when compared to the Council’s planning for the Land, the locality and the Shire more generally as reflected in both the 2006 and 2020 Planning Schemes.
  1. [250]
    I find it is appropriate to and I have given considerable weight to the 2020 Scheme in this case. Having done this and in answer to the question posed by Issue Four, I am satisfied that the 2020 Scheme does not support an approval of the proposed development.

Issue five:Is the 2020 Scheme misconceived or not soundly based

  1. [251]
    The appellant submitted that the outcomes intended for the Land under the 2020 Scheme with respect to large format retail showrooms and employment-based uses, are not soundly based because they are not logically conceived because:[317]
  1. (a)
    at the time when the Council prepared the 2020 Scheme, it had reports entitled “Noosa Busines Distribution and Land Needs Assessment” dated October 2015 and “Noosa Shire Retail Plan, Sunshine Coast” dated February 2018:
  1. (b)
    PO66 of the Major Centre Zone Code and the employment-based aspirations of the Noosa Plan 2020 for the Shire Business Centre are not consistent with the findings of those reports; and
  1. (c)
    the 2006 Scheme and 2020 Scheme do not make adequate provision for large format retail showrooms within the Shire Business Centre to meet the needs of the community.
  1. [252]
    The Council obviously does not accept the submission for a myriad of reasons most relevantly those I have referred to and accept below.[318]
  1. [253]
    Each case turns on its facts but the starting point on this issue is the well-established principle that this court is not the planning authority and therefore should not readily substitute different planning strategies or objectives for those that emanate from the proper planning authority.[319]
  1. [254]
    But in any event, I reject the appellant’s submission that the evidence in this case supports a finding that the allocation of 4,200m² of extra Showrooms (as defined) was not soundly based for the reasons that follow.
  1. [255]
    First, the appellant’s attack on the 2020 Scheme is an economic one in reliance on two reports the Council had in its possession at the time the 2020 Scheme was drafted.[320]  As a matter of common sense and as Mr Duane observed (and I accept),   it is sensible for a local government, when making decisions, to take into account a raft of measures beyond economics.[321]  It follows that the criticism on the 2020 Scheme, based on economic grounds overlooks the broad suite of issues the Council clearly had to consider (at a Shire wide and localised scale) when drafting the scheme.
  1. [256]
    Secondly, the Council had cogent evidence before it, from one of experts in this case (Mr Duane) that the amount of additional showroom floorspace it ultimately incorporated into the 2020 Scheme was appropriate.[322]  It is instructive too that Mr Buckley acknowledged:[323]
  1. (a)
    that Council’s decision to allocate a further 4,200m² of Showrooms was entirely consistent with the advice received;
  1. (b)
    the changes to the Shire Business Centre in the 2020 Scheme (as compared to the 2006 Scheme) were evidence of the Council moving and evolving in its planning document
  1. [257]
    Thirdly, it cannot be overlooked that the 2020 Scheme has increased the provision of retail floorspace for the Shire Business Centre.[324]  Whilst I understand the appellant is dissatisfied that an increase in retail floorspace did not occur on the Land but rather on other land in the Shire Business Centre, this is not a sufficient basis to assert that the 2020 Scheme is misconceived. Further, the decision to restrict further showroom development (as defined) on the Land to 3,500m2 may not satisfy the appellant’s current private development plans, but again that is not a sufficient basis for the finding sought.
  1. [258]
    The following observations by Mr Brown, which I accept, are also relevant to this issue (and some aspects of Issue Six):
  1. (a)
    First: whilst there may be little demand at present for diverse uses in the Shire Business Centre: [325]

“in the face of the scarcity of available land it is entirely appropriate economic policy to ensure the [subject] land is preserved for uses that diversify the Noosa regional economy. So much is consistent with the planning scheme and State Regional Plan for Noosa Shire Business Centre”.

  1. (b)
    Secondly: the proposed development would potentially preclude the development of the Land for such diversifying uses,[326] suggesting as an economist that approval of the proposed development might be regarded (in terms of the period required to develop a proper Major Regional Activity Centre) as “short sighted”;[327]
  1. (c)
    Thirdly: as a corollary of (b), it was reasonable and legitimate for floor space limits to be applied on retail showrooms in something like the Shire Business Centre:

“because there is a centres hierarchy which is first established in shaping SEQ which sets out, you know, the primary activity centre in South East Queensland, being the Capitalist City Centre, and then principal activity centres and then major activity centres, and then it says, to planning authorities, you map out your network below that. And so, if you are to administer the hierarchy then necessarily you need to actually articulate what something looks like at each point in the hierarchy and that will be influenced by local factors. So, you know, principal (sic) activity centre in Noosa doesn’t necessarily look exactly the same as a principal activity centre in Brisbane, they fulfil a similar role and function but you don’t necessarily pick one up from one location and put it into another. But – so the authority does have some ability to provide light and shade and part of that is to actually say what it is, which means you do need to have limits”.[328]

  1. (d)
    Finally: It is important to plan to avoid market drivers for “short term sugar hits”.[329]
  1. [259]
    The planning of uses within the Shire Business Centre is the product of much foresight, time and long-term vision and “to permit the proposed development to go ahead would effectively defeat a clear and long-standing statement of planning intent.” [330]
  1. [260]
    In answer to the question posed by Issue Five, I am not satisfied that the outcomes intended for the Land under the 2020 Scheme are not soundly based.

Issue six:Other relevant matters

  1. [261]
    Most of the other relevant matters that are raised by the appellant as supporting an approval are addressed elsewhere in these Reasons, so it is unnecessary to address them again here. Otherwise, the remaining three matters which the appellant points to as supporting an approval of the proposed development are as follows:[331]
  1. (a)
    First: It will not unreasonably adversely affect other existing or planned centres and will not disrupt the centres strategy under the Noosa Plan;
  1. (b)
    Secondly: It will assist in preserving industrial zoned land for industry uses, thereby advancing the outcomes sought by overall outcome s 11.7.2 (vv)(ii) of the 2006 Scheme (i.e., that it provides for a high level of runoff water quality to Eenie Creek and Lake Doonella). 
  1. (c)
    Thirdly: It can be carried out without any unacceptable impacts.
  1. [262]
    Even assuming that the second of the above matters is supported by the evidence, (which is not apparent), I am not satisfied that this in itself ought to be afforded much weight and alone certainly does not justify an approval.
  1. [263]
    Otherwise, for the reasons discussed below I reject that either of the remaining two matters are made out in this case.
  1. [264]
    The appellant’s submission about the first matter fails to recognise two main things about the Shire Business Centre strategy.
  1. (a)
    First, that, while there is no provision that, in terms, expressly discourages undefined uses, when the planning scheme is read as a whole it is apparent that its strong encouragement for consistent uses is critical to the underlying planning policy to designate land for particular consistent uses so as to ensure there is a range of decidedly ‘non-retail’ uses, with the intent of generating employment activities for the benefit of the Noosa Shire that are not dependant on retailing; and
  1. (b)
    Secondly, that the strategy involves not all needs being satisfied in the Noosa Shire. It contemplates that it will be necessary to travel to Maroochydore for some higher order needs. The development proposal advances a need argument on an assumption that convenient access to retail requires even nonessentials such as items sold at Spotlight being available at Noosa.  This is clearly contrary to the planning for the Noosa region.
  1. [265]
    I reject the third matter relied upon by the appellant because it overlooks that the unacceptable impact in this case is the fact that the proposed development puts the Land to a use not encouraged and displaces the opportunity in the future for planned and encouraged uses. It is both instructive and persuasive that the planned uses are maintained as important in the 2020 Scheme. It is important to the Noosa Shire to bolster robustness of economy and to not be so reliant on tourism and retail. Recent and common experience through the Covid 19 pandemic is a timely reminder of this.
  1. [266]
    The Council on the other hand identified the following two other relevant matters as supporting a refusal of the proposed development:[332]
  1. (a)
    First: The proposed uses are clearly defined by 2006 Scheme and the appellant’s proposed use definitions are unnecessary, inappropriate and cause confusion;
  1. (b)
    Secondly: Any economic or planning need is not sufficient to outweigh the substantial planning and community need:
  1. (i)
    to maintain land, in the Shire Business Centre, available for the development of the Centre as planned;
  1. (ii)
    to provide for a multifunction employment node that forms the Shire’s business and employment growth focus; and
  1. (iii)
    to maintain the planning scheme provisions which seek to protect the Shire Business Centre for development over time for the full functions of a Major Regional Activity Centre, and not to lose the limited land available to satisfy the short-term private gains associated with largely retail development.
  1. [267]
    Given my overall findings in this case it is unnecessary to address the first of these matters. But it follows from paragraphs 264 and 265 above and the analysis under Issue One (Need), that I accept the second of these matters as being supported by the evidence in this case.
  1. [268]
    In answer to the question posed by Issue Six, I am not satisfied that any other relevant matters support an approval of the proposed development.

Conclusion

  1. [269]
    Given my findings above and in the exercise of the broad evaluative discretion of this court, I find that the appellant has not discharged its onus.
  1. [270]
    I therefore order that:
  1. The appeal is dismissed.
  2. The Council’s decision to refuse the proposed development is confirmed.

Footnotes

[1]Ex 1.11 ‘Submissions on behalf of the of the Appellant’ at [3] and [4].

[2]PEC Act, s 43.

[3]Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21 at [93].  See also PEC Act, s 46(2).

[4]PEC Act, s 45.

[5]There was also reference in the evidence (Ex 2.5 First Joint Economic Need Report at [6]) to Harris Scarfe Home expressing interest to operate approximately 1,200 m2. 

[6]Attachment A to Ex 5.4.

[7]Attachment A to Ex 5.5.

[8]As set out under that heading later in these Reasons.

[9]The evidence is that Spotlight is part of the Spotlight Retail Group although as a business it operates independently of other businesses owned by the Spotlight Retail Group (such as Anaconda). Ex 5.4 ‘Statement of Quentin Gracanin’ at [8]. 

[10]Ex 5.4 at [7] and [17]-[22].

[11] Ex 5.4 at [9].

[12] Ex 5.1 at [15].

[13] Ex 5.4 at [27]-[28]. The current Spotlight is about a 45km (40 minute each way in a car trip).

[14] Ex 5.4 at [23]-[26]. 

[15]Ex 5.4 (unredacted) at [23].

[16]Ex 5.4 at [31].

[17]Ex 5.5 ‘Statement of Chris Lude’.

[18]Ex 5.5 at [20].

[19]Ex 5.5 at [20].

[20]Pursuant to s. 59(3) of the Planning Act.

[21]Planning Act s 45(5)

[22]Ex 3.1.

[23]Ex 3.3.

[24];Planning Act s 43 and Planning Regulation 2017 s 17(g).

[25]Planning Act s 45 (8)

[26]Ex 3.2.

[27]Under Noosa Plan 2006 the area was referred to as the “Shire Business Centre” and under the now current Noosa Plan 2020 it is referred to as the “Noosa Business Centre”.

[28]As defined by the regional plan – see Ex 3.3 particularly at p 65.

[29]Planning Act s 60(3).

[30]PEC Act s.47.

[31]Ex 1.10 ‘Written submissions on behalf of the respondent Noosa Shire Council’ at [33]. On the basis that the overall planning for the Noosa Shire’s Major Regional Activity Centre ought not be impacted by unplanned retail proposals (such as the proposed development), to protect now, and for future generations, the mix of uses necessary to found a true mixed use activity centre, rather than merely a retail precinct.

[32]See the discussion of the various in authorities by Muir JA in Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 at [55] to [59]); Elan Capital Corporation Pty Ltd and Anor v Brisbane City Council [1990] QPLR 209 at 211.

[33]Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 at [8] to[10] (per  Kefford DCJ) with particular reference to Williamson QC DCJ’s observations in Ashan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; QPELR 793, 803-813 [35] – [86]; as endorsed by the Queensland Court of Appeal in Brisbane City Council v YQ Property Pty Ltd  [2020] QCA 253 and Abeleda &Anor v Brisbane City Council & Anor [2020] QCA 257 and Wilhelm v Logan City Council & Ors [2020] QCA 273.

[34]Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 at [43] per Williamson QC DCJ.

[35]Ex 1.11 at [4] and [5].

[36]Navara Back Right Wheel Pty Ltd v Logan City Council [2020] QPEL 899 at [390]; Application for leave refused: Wilhelm v Logan City Council [2020] QCA 273.

[37]Wilhelm at [77], [78]; Dreamline at [11] with reference to Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council and Anor [2019] QPEC 46; [2020] QPELR 328, 338 [22].  See also Planning Act s 60(2)(b).

[38] Peach v Brisbane City Council [2019] QPEC 41 at [44-47]; and [52]; See also McKay v Brisbane City Council [2021] QPEC 42 at [11] with reference to Murphy v Moreton Bay Regional Council [2019] 46 at [21] and [22]; see also the useful discussion by Brown AJA in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [173] to [183]. 

[39]IbidDreamline at [10].

[40]Lot 1 on SP222982 and Lot 4 on SP246584; See Ex 2.7 (Planning JER) at p.6 para 9. The Land is vacant with vegetation on lot 4 and along the existing portion of Lot 1.

[41] Ex 2.07 at [8].

[42] Ibid at [9].

[43] Ex 3.1 ‘2006 Scheme’, pp 11-12, s 1.8.

[44] Ex 3.1 p 15, s.1.10.2.

[45] Ex 2.7 p 12, para 39.

[46] Ex 6.2 ‘Books of Plans’ p 5.

[47] Ex 2.7 p 12 at [40] and p 13, figure 3.

[48]Ex 2.4 at [9].

[49] See Ex 2.7 p 6 at [9] and [11].

[50] Ex 2.7 at [16].

[51] This being the third such application for a minor change with orders having been made on 18 September 2020 (per Rackermann DC J) and 18 February 2021 (per Jones DCJ).

[52] Ex 7.1 ‘Affidavit of Christopher Gerard Buckley’ sworn 22 August 2021 at [9] and [11].

[53] Under PEC s 46(4) and Planning Act s 78.

[54]The plans (Ex 6.2) do not bear a proper scale but provide building areas. It is relevant to note that it is GFA (not GLA) that is adopted in both schemes for the relevant standards. The perspectives are Ex 6.2 and are of the pre- 23 August 2021 Order development proposal, but Mr Peabody at T3-56/1 and Mr Powell at T4-5/19-26 confirmed that these perspectives provide an appreciation of the layout, design and features of the development as now proposed. The landscape concept drawing is Ex 6.6.

[55] Ex 2.4 at [15].

[56] As the appellant defines them i.e. LFR tenancies.

[57] T6-29 lines 36-46; T6-30 lines 1-2.

[58] Those definitions being set out in Ex 7.1 ‘affidavit of Christopher Gerard Buckley’ sworn 22 August at  pp 130-131.

[59] Ex 1.11 at [15] citing by way of example (and to name a few):  Longhurst v. Austexx Developments Pty Ltd (2003) 131 LGERA 443; PMM Group Pty Ltd v. Noosa Shire Council [2006] QPELR 79 at [105], [115]-[124]; Coolum Properties Pty Ltd v. Maroochy Shire Council [2007] QPELR 400 at [15]-[24]; Woolworths Limited v. Townsville City Council [2005] QPELR 34; Woolworths Limited v. Toowoomba City Council [2004] QPEC 66; Bunnings Group Ltd v. Sunshine Coast Regional Council [2019] QPELR 18 at [44]. 

[60]Those definitions being set out in Ex 7.1 ‘the affidavit of Christopher Gerard Buckley’ sworn 22 August 2021 at pp 130-131.

Ex 6.12.

[61] Ex 1.10 at [3] and [4].

[62]Bilinga Beach Holdings Pty Ltd v. Western Downs Regional Council [2018] QPELR 102 at [41]. Such an approach was also adopted in Hydrox Nominees Pty Ltd v. Noosa Shire Council [2014] QPELR 410. 

[63] Ex.3.3 SEQRP, p.36.

[64] Ex 3.1 2006 Scheme, p 2.

[65] Ex 3.12006 Scheme p 3, s 1.1.2.

[66] Ex 3.1  p 4 at a.4.1.

[67]Ex 3.1  2006 Scheme at 1.4.1.

[68] Ex 3.1 2006 Scheme at 1.4.3.

[69] Ex 3.1  2006 Scheme p 19, s 2.4.

[70] Ex 3.1 2006 Scheme p 24.

[71]Exhibit 3.1-2006 Scheme, p 20-21.

[72] Ex 3.2 2020 Scheme p 1.

[73] Ex 3.2, 2020 Scheme p 6.

[74] Ex 3.2, 2020 Scheme p 198.

[75] Ex 3.2, 2020 Scheme p 169.

[76] Ex 1.9 (to be read with Ex 1.7 and Ex 1.8).

[77] Ex 1.7; See also Ex 1.3 (an earlier version) of the appellant’s amended list of maters supporting approval- which by exhibit 1.7 the appellant did not resile from.

[78] Ex 1.8. See also Ex 1.2 (an earlier version) of the Council’s further amended particulars list of matters that warrant a refusal.

[79] Issue 1 in the agreed issues list (Ex 1.9).

[80]Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD at 60.

[81] Intrafield v Redland Shire Council [2001] 116 LGERA 350 at [20] confirmed in Isgro v Goldcoast City Council & Anor [2003] QPELR 414.

[82]Exhibit 1.7 paragraph 1 as referred to in exhibit 1.9; The particulars contained in paragraph 1(a) to (h) of the appellant’s amended list of matters supporting approval – exhibit 1.3 are also discussed variously in these Reasons under the current heading.

[83] Exhibit 1.8 paragraph 6(b) as referred to in exhibit 1.9.

[84]Written Submissions on behalf of the Council at paragraph 6.

[85]In the sense of the balancing exercise the Court is required to undertake.

[86] Exhibit 1.2 – respondents further amended particularised list of matters that warrant a refusal at [4].

[87] See for example Fitzgibbons Hotel Pty Ltd -v- Logan City Council [1997] QPELR 208 at 213 and Isgro -v- Gold Coast City Council & Anor [2003] QPELR 414.

[88] [2003] QPELR 414.

[89]Ibid Isgro at [21].

[90]Cut Price Stores Retailers v. Caboolture SC [1984] QPLR 126 at 131.

[91]Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 at 32-35; William McEwans Pty ltd v Brisbane City Council [1981] 1 QPLR 33 at 35.

[92] Appellant’s written submissions at [64]. With reference to Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD at 60 (cited in Watts & Hughes properties Pty Ltd v BCC (1998) QPLR 273 at 275 referred to in Isgro).

[93] It is relevant to note that the case referred to by the appellant [Roosterland], uses the expression “[a] use is needed” [if its provision taking all things into account, would on balance improve the services and facilities available in the locality.]

[94]Written submissions on behalf of the Respondent at [92.(c)]

[95]The JERs are Ex 2.5, 2.6 and 8.3 ( escape expenditure report) ; the individual  statement of Mr Duane is Ex 5.1; and the individual statement of Mr Brown is Ex 4.1. 

[96][2020] QPEC 17.

[97] [2020] QPEC 17 at [29].

[98] Ex 1.3 at 1(b). 

[99] Ex 2.5 at [54].

[100] Ex 2.5 at [54].

[101] Ex 2.5.

[102] Ibid.

[103] Ex 2.5 at [116].

[104] Ibid at [119]-[120]. 

[105] Ex 2.5 at [110].

[106] [2011] QPEC 85 at [60]; coincidently, the present economic experts, Mr Brown and Mr Duane, were also the expert witnesses in the Fabcot decision.

[107] Harburg Investments Pty Ltd v Brisbane City Council  (2000) QPELR 313 at [26]. Cited with approval in Isgro at [25].

[108] Harburg Investments Pty Ltd v Brisbane City Council  (2000) QPELR 313 at [26]. Cited with approval in Isgro at [25].

[109] Ex 2.5 pp 55-56. 

[110] Ex 1.3 at 1(c) and 1 (d)

[111] Ex 1.10 at [8].

[112] Ex 1.10 at [98](k).

[113] Ex 2.5 at [6].

[114] Ex 5.3 at [3]-[5].

[115] Ex 5.1, p 12.

[116] Ex 1.10 at [98](k)

[117] T2-67 lines 4-12

[118] Ex 1.10 at  [98](k).

[119] Ex 2.6, p 4.

[120] T6-19 ll 4 to 10.

[121] T 6-19 lines 14-25

[122] In Fabcot Everson DCJ did consider the evidence before His Honour as to need for the small retail tenancies. But His Honour did so because the appellant’s submissions and evidence addressed them, rather than in recognition of a general principle that the use of the entire development must be justified by way of need. On appeal, this approach was noted but not disturbed.

[123] Ex 2.5 at [34].

[124] Fabcot at [29].

[125] Ex 1.7 at [1]. 

[126] Ex 1.3 at [1].

[127] Isgro at [22].

[128] (2000) QPELR 313 at [25]. Cited with approval in Isgro.

[129] These are numerous. See for example Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2019] QPEC 43 and Fabcot Pty Ltd v Gold Coast City Council & Anor [2011] QPEC 85.

[130] Ex 2.5 at [79].

[131] QIC Noosa Civic Pty Ltd v Noosa Shire Council & Ors [2016] QPEC 69 at [156] per Jones DCJ.

[132] Ex 2.5 at [88]

[133] Ex 2.5 at [89]

[134] Ex 2.5 at [92.]

[135] Ex 1.11 at [115.]

[136] Council’s written submissions at [paragraph 95].

[137] Hydrox Nominees Pty Ltd v. Noosa Shire Council [2014] QPELR 410. 

[138] Ibid at [49].

[139] As identified in Table 8 and Table 9 of Ex 2.5.

[140] Cf Hydrox.Nominees Pty Ltd v. Noosa Shire Council [2014] QPELR 410. 

[141] (2000) QPELR 313 at [26]. Cited with approval in Isgro at [25].

[142] Ex 2.5 at [95].

[143] Ex 6.7 at [5.2].

[144] Ex.2.5 at [98]. 

[145] Ex 1.3.

[146] Ex 1.10 at [92] (c).

[147] [1981] QPLR 33 at [170].

[148] [2021] QCA 95.

[149] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [67]. These observations must be viewed in the context that the applicable legislation was the Sustainable Planning Act 2009 which required the planning scheme as a starting point from which to diverge rather than weighing up of factors. But the passage remains useful as it refers to “a Planning Scheme” rather than specifically that Act.

[150] At [148].

[151] At [151].

[152] [2021] QCA 95.

[153] Trinity Park Investments citing Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290 at 313.

[154] Ex 1.7 at [2].

[155] Ex 1.7 at [4]-[6].

[156] Ex 1.8 at [19] a) to (g).

[157] Ex 2.17.

[158] Ex 5.2.

[159] Ex 1.10 at [50] with references to Ex 2.7 at [6] (c).

[160] See H A Bachrach Pty Ltd & Ors v Caboolture Shire Council (1992) 80 LGERA 230 at 237-8.

[161] Additionally, Council relies upon Shaping SEQ Chapter 3, Goal 2: Prosper - Element 1, Strategies 1, 6 and 7 and Element 3, Strategies 1, 3 and 4 and Map 3 and 3(b), and Tables 7 and 8.

[162] Ex.3.3 Shaping SEQ  p 50.

[163] Ex.3.3 Shaping SEQ p 52.

[164] Ex.3.3 Shaping SEQ p 52.

[165] Ex 1.8.

[166] Ex 3.3 Shaping SEQ p 65.

[167] Ex.3.3 Shaping SEQ p 104 at [3]: Shaping SEQ identifies various sub-regions relevantly including the “northern sub-region” which comprises “Noosa and the Sunshine Coast local government areas.

[168] Ex 2.5 p 17 at [23]. 

[169] Ex 3.1 2006 Scheme p 4, s 1.4.1(c).

[170] Ex 3.1 2006 Scheme p 4, s 1.4.3(b).

[171] In making their respective counter arguments, the appellant relied on the desired environmental outcomes set out in 56 (b),(d) and (e) and  the Council on those set out in 60 (a), (b) (c ) and (f).

[172] Ex 3.1 2006 Scheme p 56, 3.1.3(b) (i),(ii),(iii) (v), and (vi).

[173] As discussed above, the appellant no longer submits that the Council’s reliance on this provision is misguided. 

[174] Ex 1.8 at [1] (d).

[175] Ex 1.11 at [140] (a).

[176] Gracemere Surveying & Planning Consultants Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126 at [23]; see also CPT Manager Ltd v Central Highlands Regional Council (2010) 174 LGERA 412 at [39]).

[177] Ex.3.2  2020 Scheme, p 29

[178] Exhibit 3.2 pages 173.

[179] Ex.3.1 2006 Scheme p 56

[180] The Major Centre Zone Code Overall Outcome 6.4.1.2(2)(d) of the 2020 Scheme also requires development to not compromise the hierarchy of centres across the Shire; Ex 3.2 2020 Scheme. p.171

[181] Ex.3.2 2020 Scheme  p 200

[182] Ex 3.1 Scheme p 101

[183] T4-57 lines 27-28; T4-58 lines 14-25; T4-59, lines 1-25.

[184] T6-18 ll lines 23-30.

[185] Ex 3.1 2006 Scheme p 96.

[186] See Ex 3.1 p 129, Table 11.21, O90; The Council accepted that for the two lower order codes that are in issue (with reference to the issues in dispute Ex 1.8) i.e., the Driveways and Carparking Code and the Landscaping Code, compliance with the specific outcomes results in compliance with the code Exhibit 3.1, 2006 Scheme, p. 150, s. 14.109 and p. 160, s. 14.130.

[187] Submissions on behalf of the appellant at [149]; with reference to table 11.7.70 at  ex 3.1, 2006 Scheme at pp 83-84; with reference to Hydrox Nominees Pty Ltd v Noosa Shire Council [2014] QPELR 410 at [31]-[33].

[188] T6-17  lines 30-36.

[189] Paragraph 50 of the Submission on behalf of the appellant (Ex 1.11) made the same point.

[190] See K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; Bell v Brisbane City Council [2018] QCA 84; Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026.

[191] Ex 3.2, 2020 Scheme, pp. 73-76, Tables 5.5.5.3 and 5.5.5.4; This was not in issue and was accepted by both town planners; see Ex 2.7, p 17 at [54].

[192] Ex 3.2 2020 Scheme p 270, Table SC1.2.2 – Administrative Definitions, “inconsistent use”.

[193] Ex 3.1 2006 Scheme pp 100-101.

[194] Ex.3.1 2006 Scheme p 101; OO 11.7.2(tt)(x) is  more conveniently addressed at paragraph 176 of these Reasons 

[195] As discussed at paragraph 139 of these reasons

[196] Ex 3.1 2006 Scheme p 18.

[197] The appellant pointing to by way of example Retail business (in bold) in 11.7.2(tt)(C), and other uses and definition bolded in Overall Outcomes for the Locality such as in 11.7.2(qq) and (vv),

[198] Ex 3.1  2006 Scheme p 135.

[199] Ex 3.2 2020 Scheme p 189

[200] See Ex 6.2 p 12 and Ex 6.12.

[201] T2-38, lines 40-44.

[202] T4-80, lines 25-27.

[203] Although such a Showroom may be able to comply with the bespoke use definition as is proposed, it certainly would not have to so comply to meet the bespoke definition.

[204] As usefully summarised in the written submissions on behalf of the respondent at [59].

[205] T4-56, lines 3-11, together with Ex 3.3.

[206] T4-57, lines 27-28.

[207] T4-56, lines 13-121.

[208] T4-57, lines 14-25.

[209] T4-58, lines 42-47.3

[210] T4-59, lines 1-25; Mr Adamson agreed with this proposition at T4-84, lines 16-26.

[211] T4-59, lines 35-40.

[212] T4-60, lines 31-37.

[213] T4-62, lines 4-13.

[214] T4-63, lines 34-42.

[215] T4-64, lines 10-47.

[216] Ex 6.4, p 113 and T4-65, lines 1-15.

[217] T4-65, lines 17-24.

[218] T4-65, lines 26-29,  and Ex 2.6, pp 17-19.

[219] T4-66, lines 9-26.

[220] T4-66, lines 35-38. Mr Adamson also agreed- see Ex 2.7, p 40 at [140] (f).

[221] Being a reference to the decision in Hydrox Nominees Pty Ltd v. Noosa Shire Council [2014] QPELR 410.

[222] T4-72, lines 3-20. See also T4-84, lines 28-40.

[223] T4-72, lines 30-34.

[224] T4-75, lines 23-33.

[225] Ex 1.9 with reference to Ex 1.7 at [8] and [9].

[226] Ex 1.9 with reference to Ex 1.8 at [2].

[227] Ex 3.1, 2006 Scheme, pp 100-101 (both parties referred to iv and v, with the appellant also relying on viii as supporting approval.).

[228] Ex 3.1, 2006 Scheme, pp 105-106.

[229] Ex 3.1, 2006 Scheme p 133.

[230] Ex 3.1, 2006 Scheme p 170.

[231] Ex 3.2, 2020 Scheme, p 30.

[232] Ex 3.2, 2020 Scheme, p 172.

[233] This code is Ex 3.4.

[234] Ex 3.2, 2020 Scheme, p 172.

[235] Ex 3.2, 2020 Scheme, p 182.

[236] Ex 3.2, 2020 Scheme, p 183.

[237] Ex 2.4, pp 11-12 at [33]. Mr Scott Peabody for the appellant and Mr Leslie Curtis for the respondent.

[238] Ibid Ex 2.4 p 12 at [34].

[239] Ex 2.9, Amended JER: Architecture (Amended Architecture JER), pp. 13-17.

[240] Ibid at paragraph 41.

[241] T4-25, line 24 to T4-26, line 9.

[242] Ex 2.9, p16 at [50].

[243] T3-66, lines 29-41.

[244] T3-66, line 43 to T3-67, line 2.29 to T3--31.

[245] T3-67, lines 45-46.

[246] Ex 4.32, Leslie Curtis Statement of Evidence, pp. 7-8, at [27]-[29].

[247] T4-15, lines 22-26.

[248] Ex 6.1 - pp.31-40.

[249] As helpfully summarised at [181] of Ex 1.11.

[250] T3-57 lines 15-34.

[251] T3-57/35 to T3-58/2. See also T3-74/9-38.

[252] T3-58/3-5.

[253] T3-58/5-7.

[254] T3-58/8-10.

[255] T3-58/23-41 (the reference to “eligibility” should evidently be “legibility.”

[256] T3-59/15-27.

[257] T3-59/28-40.

[258] T3-59/42 to T3-60/7.

[259] Ex 2.4, p.21 at [71].

[260] T4-28/7-10.

[261] T4-5/33 to T4-7/11.

[262] T4-8/5-9.

[263] T4-9/15-19.

[264] T4-9/24-36.

[265] T4-8/19-28.

[266] T4-36/22-31.

[267] T4-27/46-47.

[268] T4-37/17 to T4-38/47.

[269] T4-39/25-27.

[270] T3-63/28-35

[271] T3-63/20-26

[272] T3-72/30-35

[273] Submissions on behalf of the appellant at 185. 

[274] Exhibit 6.1 pages 31 to 41.

[275] T4-49/12-14.

[276] T4-49/9-30.

[277] Ex 2.9 tracked Architecture JER at [110].

[278] Ex 2.9 at [110].

[279] Ex 3.1, 2006 Scheme, p 105.

[280] Ex 3.1 - 2006 Scheme, p 133

[281] Ex 2.9 - tracked Architecture JER, p 31 at [107] and p 32 [110].

[282] T4-26, line 27 to T4-27, line 22.

[283] T4-11, line 34 to T4-12, line 25. See also T4-12, line 33.

[284] T4-11, lines 27-30.

[285] T4-17, lines 26-29.

[286] T4-16, lines 15-18.

[287] T4-19, line 40 to T4-20, line 6.

[288] Ex 3.1, 2006 Scheme, p 150, s 14.109 and p 160, s 14.130.

[289] T4-7/41 to T4-8/3

[290] Ex 1.11 at  [231].

[291] T4-26, line 27 to T4-27, line 22.

[292] T3-72, lines 9-13.

[293] T3-75, lines 9-46 and T3-76, lines 1-28.

[294] T3-75, lines 13-27.

[295] Ex 3.1, 2006 Scheme p.170.

[296] T4-39 lines 29-42.

[297] Ex 2.2, p.31 at [101]-[103] & Figure MP3.

[298] T4-40 lines1-7.

[299] Ex 2.2 – Visual Amenity JER, p 32 at [108] and p 34 at [115].

[300] Ex 1.10 at [68]; T6-24 lines 23 to 27. 

[301] Ex 1.10 at [76].

[302] T4-27 line 9.

[303] T4-27 lines11-13, 15 and 21.

[304] T4-82, line 46 to T4-83, line 6.

[305] Wingate Properties P/L & Anor v BCC & Ors [2001] QPE 005 at [21]; cited with approval on many occasions including most recently in Ashvane Investments unit Trust v Brisbane City Council & Ors [2019] QPELR 793 at [206] per Williamson QC DCJ.

[306] Ex 4.32, Leslie Curtis Statement of Evidence, pp. 7-8 at [27]-[29].

[307] Ex 3.2, 2020 Scheme, p. 30.

[308] HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56 at [225] per Jones DCJ.

[309] See Brisbane City Council v Klinkert [2019] QCA 40; and Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 52 at [173].

[310] Set out in Ex 1.7 at [11] (as referenced in Ex 1.9).

[311] Which as stated earlier in these Reasons at has been renamed as the Noosa Business Centre.

[312] Set out in Ex 1.8 at [5] (as reference in Ex 1.9).

[313] Op,cit footnote 216 HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56 at [226].

[314] As set out in Ex 1.10 at [2].

[315] Mr Buckley’s term to acknowledge both planning for, and development of, the Shire Business Centre was continuing over a lengthy period of time.

[316] Planning Act 2016 s 16 and Planning Regulation 2017 s 7.

[317] Ex 1.7 at [12] as referred to in Ex 1.9.

[318] Ex 1.10 at [104] to [107].

[319] Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157, cited by the Court of Appeal more recently in Trinity Park Investments v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95.

[320] Ex 6.3 and 6.4, (tendered by the appellant).

[321] T2-74, lines 29-31.

[322] See page 113 of Exhibit 6.4. see also evidence of Mr Buckley at T4-65, lines 1-15 that he would defer to that advice.

[323] In exhibit 6.3 at pp.112 and 113 ; T4-65, lines 26-29.

[324] Exhibit 3.2, 2020 Scheme, p. 190, PO72 and T4-65, lines 17-24.

[325] Ex 4.1 at [53]

[326] Ex 4.1 pp.9-10, at [51]-[55].

[327] T3-6, line 22 to T3-7, line 19.

[328] T3-14, lines 29-43. See also T3-17, lines 24-43.

[329] T3-17, lines 24-43.

[330] QIC Noosa Civic Pty Ltd v Noosa Shire Council & Ors [2016] QPEC 69 at [142] to [157].

[331] Ex 1.7 at [3],[7] and [10] as referred to in Ex 1.9.

[332] Ex 1.8 6(a), 6(b) (ii) as referred to in Ex 1.9. But see also Ex 1.2 at [4] as discuss above in these Reasons under the heading Need.

Close

Editorial Notes

  • Published Case Name:

    Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council .

  • Shortened Case Name:

    Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council .

  • MNC:

    [2021] QPEC 77

  • Court:

    QPEC

  • Judge(s):

    Muir DCJ

  • Date:

    16 Dec 2021

Appeal Status

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

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