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  4. SDA Property Nominees Pty Ltd v Scenic Rim Regional Council - [2022] QPEC 39

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SDA Property Nominees Pty Ltd v Scenic Rim Regional Council[2022] QPEC 39

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council[2022] QPEC 39

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39

PARTIES:

SDA PROPERTY NOMINEES PTY LTD ACN 634 072 030 ATF SDA HOLDINGS TRUST

(appellant)

v

SCENIC RIM REGIONAL COUNCIL

(respondent)

and

AMANDA HAY

(eighth co-respondent by election)

and

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC

(twentieth co-respondent by election)

FILE NO/S:

2001 of 2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Applicant appeal against deemed refusal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

6 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13, 14 and 15 September 2022

JUDGE:

Williamson KC DCJ

ORDER:

The appeal is listed for review at 10:00 am on 13 October 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – applicant appeal against deemed refusal of a superseded planning scheme application for short term disability accommodation – whether the development complies with the respondent’s superseded planning scheme – whether the development can be conditioned to comply with the respondent’s superseded planning scheme – whether there is a need for the proposed development – whether there are matters that favour approval or refusal of the application – whether the application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003

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

Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987

Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPELR 139

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

Mackay v Brisbane City Council [1992] QPLR 65

Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPELR 675

Wilhelm v Logan City Council & Ors [2021] QPELR 1321

LEGISLATION:

Integrated Planning Act 1997, s 1.2.1

Planning Act 2016, ss 3, 45 and 60

Planning and Environment Court Act 2016, ss 10, 43 and 45

COUNSEL:

Mr M Batty and Ms J Bowness for the appellant

Mr M McDermott for the respondent

Ms A Hay (self-represented)

Ms J Lockey for the twentieth co-respondent by election

SOLICITORS:

MacDonnells Law for the appellant

King & Company Solicitors for the respondent

Index

Introduction3

The land and surrounding locality4

The proposed development7

The statutory assessment and decision making framework12

The planning scheme13

The disputed issues17

Community expectations18

Compliance with the planning scheme23

Specific Assessment Criteria for the Escarpment Protection Precinct23

General Assessment Criteria for the TMZC28

Tourist Cabin Code39

Desired Environmental Outcomes44

Strategic Framework45

Is the proposed development an appropriate use of the site?47

Would the proposed development result in unacceptable visual amenity impacts?48

Is the proposed development consistent with the amenity and character of the surrounding area?48

Relevant matters favouring approval48

Need49

Relevant matters favouring refusal52

Exercise of the planning discretion53

Disposition of the appeal55

Introduction

  1. [1]
    This is an applicant appeal against Council’s deemed refusal of an impact assessable superseded planning scheme application. The application seeks approval to develop land at Eagles Retreat Place, Mount Tamborine with 11 Tourist Cabins and an ancillary communal leisure facility. The Cabins are designed to provide short-term accommodation for people with disabilities and their carers/families.[1]
  2. [2]
    The appeal is a hearing anew.[2]
  3. [3]
    The applicable statutory assessment and decision making framework is prescribed by the Planning Act 2016 (PA). The PA requires the superseded planning scheme application be assessed against the Beaudesert Shire Planning Scheme 2007. The assessment starts on a sound footing for the appellant. For the purposes of the planning scheme, the subject land is included in the Escarpment Protection Precinct of the Tamborine Mountain Zone. In that precinct, Tourist Cabins, which is a defined use,[3] is consistent development.[4] This is relevant to, and informs, community expectations about future development on land in the Escarpment Protection Precinct of the Tamborine Mountain Zone.[5]
  4. [4]
    Whilst Council notified in the initial stages of the appeal that it would contend for refusal,[6] it is now supportive of the application.[7] Central to its support is an expectation that any approval granted would be subject to conditions, in particular, a condition requiring the development be designed for specialist disability accommodation.[8]  The appellant readily accepts such a condition should be imposed.[9]
  5. [5]
    The appeal, and an approval, is resisted by two co-respondents by election, Ms Hay and the Tamborine Mountain Progress Association (the co-respondents). They contended the application should be refused for reasons identified in an agreed consolidated list of issues in dispute (list of issues).[10]  The order made on 15 September 2022 defines the disputed issues in the appeal by reference to the list of issues.[11]
  6. [6]
    An examination of the list of issues, in conjunction with the planning scheme, reveals the reasons for refusal relied upon are wide ranging. Non-compliance is alleged with 27 provisions of the planning scheme. The alleged non-compliances require consideration to be given to matters with respect to visual and scenic amenity, character, landscaping, noise, lighting, bushfire, traffic, infrastructure, community/economic need and community expectations.
  7. [7]
    To discharge its onus,[12] the appellant engaged 10 experts.[13]  Council engaged five experts for some, but not all, of the fields of expertise raised by the reasons for refusal.[14] The co-respondents did not call any expert evidence in support of their respective refusal cases. Nor did they challenge, by way of cross-examination, the evidence of the appellant’s and Council’s experts. Individual statements of Ms Lockey and Ms Hay were tendered.[15]  Whilst described as witness statements, they are more akin to submissions.[16]
  8. [8]
    I will deal with some relevant background before turning to the disputed issues.

The land and surrounding locality

  1. [9]
    The land the subject of the appeal is a steep undulating site located at 1-11 Eagles Retreat Place, Mount Tamborine (the site).[17]
  2. [10]
    The site:
    1. (a)
      is 19,959m2 in area;[18]
    2. (b)
      is ‘L-shaped’, with the long axis orientated east-west and the short north-south axis located at its eastern end; [19]
    3. (c)
      is cleared, save for vegetation along the southern boundary and in the south-eastern and north-western corners;[20]
    4. (d)
      is vacant, but has the benefit of a development approval authorising a substantial dwelling in the north-eastern corner close to, and highly visible from, Eagles Retreat Place;[21]
    5. (e)
      slopes steeply from north to south, with levels ranging between 487m AHD in the north-western corner down to 437m AHD in the south-eastern corner;[22] and
    6. (f)
      has a frontage of 113 metres to Eagles Retreat Place along its north-eastern boundary.[23]
  3. [11]
    Access to the site is obtained via Eagles Retreat Place, which was described by the traffic engineers as a local access street.[24] Traffic counts suggest the road carries low volumes, equating to 25 vehicle movements in the weekday peak.[25]  Visual aids[26] in evidence confirm its construction is consistent with that expected in a rural residential area; it is sealed; it is narrow;[27] and does not incorporate kerbing and channelling.[28] The road provides access to existing residential properties and runs effectively, east-west, intersecting with Cliff Way to the west. Cliff Way, which is U shaped, intersects in two locations with Central Avenue further to the west again.
  4. [12]
    The Court had the benefit of a site inspection during the hearing. The inspection assisted in appreciating the evidence in relation to topography and the visibility of the site from public vantage points. The evidence establishes that the site has a limited visual catchment. This is due to two things; first, topography and second, the shape of the site. As I have said, the site is sloping. It falls dramatically away from the street. This impacts on the extent to which it is visible from the public realm. Visibility is also impacted by the very shape of the site, it steps behind adjoining land to the north-west (11 Witherby Crescent). This land is improved with a dwelling that obscures a view from the north to south-western end of the land. With these points in mind, I accept Mr Mewing’s evidence that:[29] (1) the ‘site has a steep topography, which falls steeply away from the street, such that much of…[it] is not perceptible when viewed from the…street’; and (2) ‘there are limited other public vantage points from which the site can be observed, due to the topography, street network, and site position’. Mr Mewing’s evidence is consistent with the visibility assessment undertaken by Council’s visual amenity expert, Dr McGowan, which I also accept.[30]
  5. [13]
    The development approval referred to in paragraph [10](d), if activated, would facilitate the construction of a very substantial multi-level dwelling in the north-eastern corner of the site.[31] The dwelling has a height of 16.3 metres above natural ground level[32] and will be highly visible from Eagles Retreat Place. It will occupy 52 metres of the 113 metre road frontage.[33] The dwelling, if constructed, will limit views into the site from the north and north-east.[34]
  6. [14]
    Save for one exception, existing development in Eagles Retreat Place comprises substantial multi-level detached dwellings on large lots. The exception is an existing bed and breakfast facility,[35] which is located across the road to the north of the site. As Mr Mewing correctly observed,[36] the existing built form is designed and sited to step across the hilly landscape. It is also designed and sited to take advantage of a spectacular aspect to the east. To the east of the site and Eagles Retreat Place is a national park and conservation area. This provides an attractive foreground for an unencumbered view towards the Gold Coast in the distance. The width of the view appears to stretch from Paradise Point in the north to Coolangatta in the south.
  7. [15]
    Unsurprisingly, land adjoining the site is improved with dwellings that are designed and sited to take advantage of the aspect described above. It is their primary view. As I have already mentioned, Dr McGowan helpfully undertook a detailed visual catchment analysis[37] to examine the extent to which the site is visible from the adjoining land and forms part of the primary view. That analysis, considered with the benefit of the site inspection and visual aids before the Court, confirms the site has a limited visual catchment. Further, it confirms ‘because of existing vegetation surrounding the subject site, no neighbouring property would achieve clear views across the entirety of the site’.
  8. [16]
    I accept this is correct having regard to the following matters.
  9. [17]
    Adjoining land to the east is a large lot improved with a substantial multi-level dwelling.[38] The dwelling is located towards, and visible from, Eagles Retreat Place. It is orientated to enjoy the aspect described in paragraph [14] and turns its back on the site. This, in combination with existing vegetation, limits visibility into and across the site. Visibility would be further impaired if the approved dwelling referred to above was constructed.
  10. [18]
    To the immediate south of the site is a large lot improved with a substantial detached dwelling and shed. The lot is vegetated. The existing dwelling is orientated to enjoy the aspect described above and sited proximate to the south-western corner of the site (tip of the L). The improvements are not visible from Eagles Retreat Place. They are obscured by the thick vegetation along the southern boundary of the land.[39] The same vegetation limits visibility to the site from the south.
  11. [19]
    The north-western end of the site adjoins the rear boundaries of three properties situated at 7, 9 and 11 Witherby Crescent.[40]  Each property is considerably smaller in size than the site and is more elevated. Number 11 is improved with a visually prominent dwelling orientated to overlook the site such as to enjoy the aspect described in paragraph [14].[41]   Numbers 9 and 11 are also improved with detached dwellings. They are sited towards Witherby Crescent. Significant landscaping (in the north-western corner of the site) screens views from these dwellings into and across the site.
  12. [20]
    Further to the south and west, the site is adjoined by two improved properties with frontage to Cliff Way.[42] In terms of land area, they are considerably smaller in size than the site. They are also significantly more elevated.  The dwellings that improve each of these lots are located towards the road frontage, with the rear of the land terraced and vegetated. Each dwelling is orientated to enjoy the aspect described in paragraph [14] above. The elevation difference is such that, whilst the site is in the foreground of that aspect, it forms a very small part of it. Dr McGowan thought the site may even sit beneath the primary view of the dwellings looking east. Figure 17 of the visual amenity joint report confirms this to be correct.
  13. [21]
    With respect to local character and amenity, it is informed by matters discussed above. It is also informed by the existing subdivision pattern. The intersection of Eagles Retreat Place with Witherby Crescent marks a change in the local subdivision pattern.[43] To the west of that intersection, the subdivision pattern is described as low density residential in nature. To the east of that intersection, the subdivision pattern is described as a large lot residential neighbourhood. The land sits within the second of these areas, but at a point where there is a transition from one to the other. This area of transition was described by Mr Curtis and Dr McGowan. They said it comprised single houses (many of which are relatively large) that are well separated from neighbouring houses and within large areas of open space.[44] I accept this evidence. I would add to this that the character is also informed by the following features: (1) that the single houses referred to are large dwellings; (2) large sheds can also be identified on nearby land; and (3) a high level of acoustic amenity is enjoyed in the area.[45]
  14. [22]
    Mr Curtis and Dr McGowan agreed the eastern part of the low density residential area and the large lot residential area enjoy high visual amenity.[46] I accept this evidence. This, in my view, is the product of: (1) the natural landscape setting that can be observed; (2) the aspect discussed in paragraph [14]; and (3) the low level of activity in the area, providing a sense of peace and quiet.

The proposed development

  1. [23]
    The plans of development reveal the proposal has the following components:
    1. (a)
      11 self-contained stand-alone Tourist Cabins (across six different typologies), each containing two to three bedrooms, bathrooms, kitchen/dining/living area and an external balcony;
    2. (b)
      a communal leisure facility for the exclusive use of guests, which comprises a wellness centre, massage room, gym, club house and swimming pool.  A car parking/servicing area is provided underneath the facility.  The communal leisure facility has a combined gross floor area of 362.36m2 and building height of between 2-3 storeys;
    3. (c)
      vehicle access is obtained from the Eagles Retreat Place frontage, with a new driveway crossover proposed.  A 6m wide internal driveway is to be constructed to provide access from the street to the proposed cabins, communal leisure facility, and internal parking areas;
    4. (d)
      the development provides a total of 14 on-site car parking spaces, including 6 PWD (person with disability) car parking spaces, 5 SDA (specialist disability accommodation) car parking spaces, and 3 standard car parking spaces.  It also provides for a mini-bus parking space and a servicing bay for a Medium rigid vehicle (MRV).  The car parking spaces are provided throughout the proposed development, including underneath the communal leisure facility and near to cabins;
    5. (e)
      an on-site wastewater disposal area and management system to service the development;
    6. (f)
      a vegetated area in the south-east corner of the site that is retained and protected for koala habitat. Mr Mewing calculated this area to be approximately 6,100m2 in size; and
    7. (g)
      extensive landscaping to boundaries, between buildings and throughout the site. Mr Mewing calculated the area of landscaping proposed to be, approximately, 12,660m2 (inclusive of the south-east corner area, but excluding the approved house and its surrounds).
  2. [24]
    The architectural and landscaping plans demonstrate that considerable thought has been given to the design, and siting, of the proposed development.[47]
  3. [25]
    The development footprint is located within cleared parts of the site.[48] In so doing, it avoids an area of recognised ecological value in the south-eastern corner of the site. This area is earmarked for retention and rehabilitation. This will involve planting a suite of native species with a structure aiding native fauna movement through the area.[49] The revegetation will ensure a net increase in vegetation and habitat for the site is achieved.[50]
  4. [26]
    Architectural sections through the development confirm the footprint is sited such that, save for a few limited exceptions, built form is set back 10 metres[51] from the southern and western boundaries, and buildings are cut into the undulating topography of the site.[52] This is to limit the visibility of built form from surrounding properties and the public realm. That this has been achieved by the design is clear from figure 23 of the visual amenity joint report. This figure overlays a landscape plan for the development on an aerial photograph.[53]  A review of the figure reveals that Cabins 1 to 7 (inclusive), and the communal facilities, are to be located in the south-western corner of the site. This part of the site is separated from Eagles Place Retreat by adjoining development on Witherby Crescent. The view of this part of the site from Eagles Retreat Place will be obscured. The figure also reveals that Cabins 1 to 7, and the communal facilities, which is the most intense part of the proposed development, is to be located towards the low density residential area to the west discussed in paragraph [21]. The existing development to the west, in my view, is similar in scale and bulk to the Cabins and central facilities proposed.
  5. [27]
    Figure 23 of the visual amenity joint report also provides a useful visual representation of the balance struck in the design between landscaping and built form. As Mr Mewing correctly pointed out, the balance favours landscaping; the built form is proposed in a landscaped setting. This setting only serves to reduce the visibility of the development from external viewing points.
  6. [28]
    The following metrics for the Tourist Cabins and central facilities can be identified from the proposed plans:

Cabin #

Type

Max Height[54]

GFA

Bedrooms

1

B

8.167[55]

188.92

3

2

B

8.39[56]

188.92

3

3

B

8.729[57]

188.92

3

4

B

11.831[58]

188.92

3

5

D

9.317[59]

192.94

3

6

F

9.478[60]

148.72

2

7

F

11.627[61]

148.72

2

8

C

10.526[62]

210.68

3

9

E

10.448[63]

159.53

2

10

F

10.360[64]

148.72

2

11

A

8.889[65]

211.64

3

Central facilities

-

>8.5

253.16

-

Total

-

-

2,229.79

-

  1. [29]
    Caution needs to be exercised with the building heights identified above. They represent the maximum height of each cabin, in metres, above natural ground level. A close examination of the relevant Cabin sections reveals that the maximum height in each case is that presented to the east; the height dimension also applies to only a small part of each cabin. For example, in the case of Cabins 3 and 6, save for a small projection at roof level, they are below 8.5 metres in height.
  2. [30]
    Mr Ovenden, Council’s town planning witness, drew attention to the gross floor areas of each cabin and the number of storeys. He described each cabin as ‘supersized’.[66] The evidence establishes this is not a product of entrepreneurial skill or a desire to maximise development yield. Rather, the evidence is replete with references to a connection between the size of each cabin and the design requirements for Specialist Disability Accommodation (SDA).[67]
  3. [31]
    The purpose of the proposed development is to provide short-term accommodation in a recognised tourist area for people with disabilities, along with their families/carers. This is reflected in the design of the 11 Cabins. The internal design of each cabin is such that the entry level is directly accessible, and contains the main living area, bedroom, toilet and shower, for the occupant with a disability.[68] The design will be suitable for occupancy by guests that have a disability assessed to the NDIS/SDA criteria for Improved Liveability, Fully Accessible and High Physical Support.[69] The internal design of the cabins will exceed the minimum prescribed provisions of the Disability (Access to Premises – Buildings) Standards 2010.[70]
  4. [32]
    The National Disability Insurance Scheme (NDIS) enables people with a disability, and their families, to, inter alia, access short-term accommodation options. The evidence of Mr Rushton and Ms Ivanyi, who have particular experience in this industry, spoke of the need for accommodation accessed under the NDIS to meet an SDA Code. Often, existing short term accommodation does not meet this code.[71]  This is a barrier to people with accessibility needs utilising short-term accommodation.
  5. [33]
    In order to operate the proposed development as SDA, it must be certified. A recognised professional is required to certify that it is Specialist Disability Accommodation suitable for people with particular needs. Here, it is proposed that the facility will be suitable for people requiring up to High Physical Support. A property suitable for this level of care is also suitable for people who require Fully Accessible and Improved Liveability. The facility would not be suitable for people requiring Robust Physical Support.[72]
  6. [34]
    Site cover for the proposed development ranges from 11.8% to 22.4%.[73] The variation is explained by different assumptions that underpin the calculation.  Little turns on the actual site cover percentage.
  7. [35]
    Exhibit 26 is a list of conditions the appellant has indicated it will accept in the event an approval is granted. The document is attached to these reasons and marked ‘A’. It reflects the recommendations of a range of expert witnesses. I have taken these conditions into account when assessing the application against the superseded planning scheme. Conditions are proposed with respect to a range of matters, including certification of the design and ongoing use, landscaping, building materials and colours, on-site effluent treatment and noise, light and odour, and bushfire management.
  8. [36]
    Conditions with respect to certification of the design and ongoing use are of significant importance. It is these conditions that are relied upon by the appellant to ensure the development is suitable for the type of accommodation proposed.  The conditions are also intended to ensure the use, if approved, is limited for its life to the provision of accommodation for persons with disabilities and their family/carers.  With this in mind, Mr Batty and Ms Bowness submitted two types of conditions are appropriate in the circumstances[74]: (1) conditions requiring proof of certification, from an accredited third party SDA assessor, that the requirements of the SDA Design Standard 2019 are met prior to the commencement of use; and (2) conditions limiting the approved use to persons with a disability and persons having a connection to them, such as family members or support persons. I accept that conditions of this kind are of critical importance. They go to the heart of the approval sought.
  9. [37]
    Extensive landscaping is proposed.[75] It will include landscaping to boundaries; between cabins; between cabins and the central facilities; and between cabins and the location of the approved dwelling. Dense buffer planting along the western and southern boundaries of the site is proposed in a 10 metre setback area. This will provide complete screening of the cabins when viewed from the south.[76] A photomontage prepared for the view from the west indicates the roofs of Cabins 1 to 4 will be visible. The impact of that built form on this view is significantly mitigated by, inter alia, the proposed landscaping in conjunction with the colour of building materials proposed.[77]
  10. [38]
    The site does not have the benefit of access to a reticulated sewage system. Effluent will be disposed on-site.  To do this, an approved aerobic sewage treatment plant will be provided. It is to achieve advanced secondary treatment of effluent.[78] The treated effluent will be dispersed in a wastewater area of 950m2, located to the south of Cabin 8.[79] I accept Mr King’s evidence that an effluent disposal system of this kind will ensure no unacceptable odour impacts are experienced by people on, and off, the site.[80]
  11. [39]
    Mr King examined the noise, lighting and odour impacts of the proposed development. His evidence, which was well considered, was not challenged. I accept it. The evidence suggests the following conditions should attach to any approval to protect local amenity:
    1. (a)
      the hours of operation for the outdoor area of the central facilities be limited to 7am to 10pm to manage noise impacts; [81] and
    2. (b)
      site lighting be designed to comply with Australian Standard AS4282:2019 to manage the impacts of light spill and glare.[82]
  12. [40]
    These conditions are reflected in exhibit 26.
  13. [41]
    Mr Clowes examined bushfire risk management. I have reviewed his statement of evidence. After examining the site, the proposed development and relevant bushfire risk designations under the planning scheme, Mr Clowes concluded the relevant risk is one that can be managed by conditions. In this regard he recommended that an approval include a typical condition requiring a Bushfire Hazard Assessment and Management Plan.[83] The plan is to include management measures identified by Mr Clowes at paragraph 31 of his report. The measures include provision of a dedicated static water supply reserved for firefighting purposes, and establishment of asset protection zones between buildings and hazardous vegetation. Such areas are identified indicatively on the site plan for the proposed development.[84] I accept Mr Clowes evidence.
  14. [42]
    The bushfire risk management conditions are reflected in exhibit 26.

The statutory assessment and decision making framework

  1. [43]
    The superseded planning scheme application was made under the PA. As an impact assessable application, it must be assessed and decided in accordance with, inter alia, ss 45(5) and 60(3) of that Act. The former provision requires the development application be assessed against the assessment benchmarks in a categorising instrument.  The latter, in combination with s 59(3), confers a broad discretion to approve a development application, be it in whole or part.  Appellate authority confirms that the exercise of this discretion calls for a broad evaluative judgment,[85] where non-compliance with an adopted planning control is a relevant fact and circumstance.[86]  The same authority confirms that the broad evaluative judgment is to be based upon the assessment carried out under s 45 of the PA.
  1. [44]
    In the ordinary course, ss 45(6) to (8) apply to the assessment of an impact assessable application. In simple terms, the provisions require the assessment to be carried out against the assessment benchmarks in force at the time an application is properly made. Weight may also be given to amended or new planning documents that come into force at a later point in time. The provisions are displaced in this appeal by s 29(9)(b) of the PA. It applies because the application before the Court is a superseded planning scheme application,[87] and states:

“(9)  If the local government decides to agree, or is taken to have agreed, to a request under subsection (4)(a)––

…

  1. (b)
    despite section 45(6) to (8), the assessment manager for the superseded planning scheme application must assess the application as if the superseded planning scheme to which the application relates was in effect instead of––
  1. (i)
    the planning scheme; and
  1. (ii)
    a planning scheme policy for the local government area.”
  1. [45]
    Section 46(6) of the Planning and Environment Court Act 2016 confirms this Court on appeal is to assess and decide a superseded planning scheme application consistently with s 29(9)(b) of the PA. This provision states:

“(6) If the appeal is against a decision about a superseded planning scheme application under the Planning Act, the P&E Court must–

  1. (a)
    consider the aspect of the appeal relating to the assessment manager’s consideration of the superseded planning scheme in question as if the application had been made under the superseded planning scheme; and
  1. (b)
    in considering the aspect, disregard the planning scheme in force when the application was made.”
  1. [46]
    The superseded planning scheme for this appeal is the ‘Beaudesert Shire Planning Scheme 2007’, in force as at 20 June 2018 (the planning scheme).[88]

The planning scheme

  1. [47]
    The planning scheme was adopted when the repealed Integrated Planning Act 1997 (IPA) was in force.
  2. [48]
    The stated purpose of the planning scheme is to provide a framework for managing development in a way that advances the purpose of IPA.[89] It does that by, inter alia:
    1. (a)
      identifying Desired Environmental Outcomes for the planning scheme area (the Shire);
    2. (b)
      identifying the Zones and Overlays within the Shire; and
    3. (c)
      identifying, in respect of the Zones and Overlays, development which is ‘Consistent Development and inconsistent Development’.
  3. [49]
    Part 2 of the planning scheme describes the composition of the document.[90] Section 1.2.1 identifies that it comprises: (1) Desired Environmental Outcomes for the Shire; (2) a Strategic Framework; (3) planning scheme measures; and (4) a statement of the State Planning Policies reflected in the planning scheme.
  4. [50]
    With respect to item (1), namely the Desired Environmental Outcomes, s 1.2.2 states:

“The planning Scheme identifies Desired Environmental Outcomes for the Shire which are––

  1. (a)
    based on ecological sustainability established by the Integrated Planning Act 1997; and
  1. (b)
    an expression of the Strategic Framework upon which the Planning Scheme is based; and
  1. (c)
    the basis for the Planning Scheme measures.”
  1. [51]
    With respect to item (2), the Strategic Framework is contained in Part 2 of the planning scheme. Its purpose is to provide ‘an explanation of the Strategic Framework, which is the vision’ for the planning scheme area.[91] The relevance of it to development assessment is addressed in s 2.2.2 of the planning scheme, which states:[92]

“Part 2 (Strategic Framework) does not have a direct role in the assessment of development under the Planning Scheme.”

  1. [52]
    With respect to item (3), the planning scheme measures comprise Zone and Overlay Maps, Assessment Tables, Consistent Development Tables and Codes.
  1. [53]
    The planning scheme is divided into 7 zones.[93] Each zone is divided into a number of precincts. As I have already observed, the land is included in the Tamborine Mountain Zone and the Escarpment Protection Precinct. Development proposed in that Zone and Precinct is to be assessed against the Tamborine Mountain Zone Code (TMZC),[94] in particular the General Assessment Criteria for the Zone[95] and the Specific Assessment Criteria for the Escarpment Protection Precinct.[96]
  1. [54]
    Section 3.7.8 of the planning scheme identifies how compliance is demonstrated with the TMZC. The provision states, in part:[97]

“Development complies with the Tamborine Mountain Zone Code if in the case of––

…

  1. (c)
    Impact-assessable development, there is compliance with the Specific Outcomes of the Tamborine Mountain Zone Code and the purpose of the Tamborine Mountain Zone Code being the Overall Outcomes for the Tamborine Mountain Zone.”
  1. [55]
    A review of the TMZC reveals it comprises a stated purpose, a table of Overall Outcomes for the Zone, a table of Specific Outcomes and Prescribed Solutions for the Zone and tables of Specific Outcomes and Prescribed Solutions for Precincts in the Zone. As s 3.7.8 makes clear, to demonstrate compliance with the TMZC the appellant must demonstrate there is compliance with the Specific Outcomes and Overall Outcomes of the code.
  2. [56]
    At first blush, it may be thought that compliance with the TMZC is informed by the content of Probable Solutions; however, care needs to be taken with provisions of this kind. Section 1.2.17 of the planning scheme provides that compliance with a Probable Solution does not necessarily establish compliance with the corresponding Specific Outcome. The provision states, in part:

“The Codes comprise––

…

  1. (c)
    an Assessment Criteria that is a precise criteria that Self-assessable development must comply with (Acceptable Solution); and
  1. (d)
    an Assessment Criteria that provides for assessable development a guide for achieving a Specific Outcome in whole or part but does not necessarily establish compliance with the Specific Outcome (Probable Solution).” (emphasis added)
  1. [57]
    Against the background of s 1.2.17 of the planning scheme, Mr McDermott submitted on behalf of Council that an Acceptable Solution is distinct from a Probable Solution in the planning scheme. I accept this submission.[98] The former is precise criteria for compliance with a Specific Outcome. The latter is only a guide to achieving compliance with a Specific Outcome.   Mr McDermott also pointed out that s 1.2.17(d) makes clear that careful consideration needs to be given to the content of a Probable Solution and the Specific Outcome to which it relates. This is required to determine, as s 1.2.17(d) anticipates, whether the Probable Solution provides guidance ‘in whole or part’ for achieving compliance. I also accept this submission.
  2. [58]
    There is, in my view, good reason to conclude that the Probable Solutions prescribed by the TMZC have little, if any, influence in the determination of this appeal.
  3. [59]
    The tables setting out Specific Outcomes and Prescribed Solutions for the TMZC comprise two columns. Column 1 contains Specific Outcomes. Column 2 contains ‘Acceptable Solutions’ for Self assessable development. The same column provides ‘Probable Solutions’ for Code assessable development. No Probable Solutions are provided for Impact assessable development.[99] This, in my view, means it can be said with confidence, in this case, that: (1) compliance with the TMZC is to be demonstrated in accordance with s 3.7.8(c) of the planning scheme; (2) a departure from a Probable Solution in the TMZC does not equate to non-compliance with the planning scheme.
  4. [60]
    Part 7, Division 3 of the planning scheme contains the Consistent Development Table for the Tamborine Mountain Zone.[100] The structure of the table is to identify, inter alia, where a defined use is Consistent Development in the Zone. Here, it was uncontroversial that:
    1. (a)
      the proposed development is characterised as Tourist Cabins, which is defined in the planning scheme as follows:[101]

“Tourist Cabins means any premises used, or intended to be used, for accommodating persons away from their normal place of residence in cabins that may or may not be self-contained.

The term may include the provision of limited leisure facilities, meals and services for guests as ancillary activities.”

  1. (b)
    Tourist Cabins are consistent development in the Escarpment Protection Precinct where ‘the total number of on site cabins does not exceed 20’.[102]
  1. [61]
    Section 1.2.13(2) identifies the status ascribed to Consistent Development under the planning scheme:

“A Consistent Development is potentially consistent with the applicable Zone Code and the relevant Overlay Code.”

  1. [62]
    Neither of the co-respondents allege non-compliance with an Overlay Code in this appeal.
  2. [63]
    Consistent Development can be contrasted with Inconsistent Development under the planning scheme. The latter is not specified as Consistent Development in the relevant table for a Zone. Section 1.2.14(2) of the planning scheme provides that development of this kind is ‘inconsistent with the applicable Zone Code and the relevant Overlay Code’.
  3. [64]
    Chapter 5, Part 2 of the planning scheme contains ‘Use Codes’.[103]
  4. [65]
    Impact assessable development complies with a ‘Use Code’ if there is ‘compliance with the Specific Outcomes of the…Code and the purpose of the…Code being the Overall Outcomes for the use’.[104]
  5. [66]
    The applicable Use Code in this appeal is the Tourist Cabin Code (TCC).[105] Like the TMZC, it includes a stated purpose, Overall Outcomes and a table of Specific Outcomes and Prescribed Solutions for the Code. The table of Specific Outcomes and Prescribed Solutions bears the same structure as the TMZC. It comprises two columns. Column 1 contains Specific Outcomes. Column 2 contains Acceptable Solutions for Self assessable development and Probable Solutions for Code assessable development. No Probable Solutions are prescribed for Impact assessable development.  Section 5.2.1(c) provides that Impact assessable development complies with the TCC where there is compliance with the Specific Outcomes and Overall Outcomes of the code. Compliance is not required with Probable Solutions in the code to demonstrate compliance. Equally, a departure from Probable Solution in the code does not equate to non-compliance with the planning scheme.
  6. [67]
    Adopting a broad overview of the planning scheme, it can be seen that it contains a number of layers, each exhibiting different levels of planning particularity. The most particular level of planning (of relevance here) is that provided by the Specific Assessment Criteria for the Escarpment Protection Precinct, followed by the General Assessment Criteria for the TMZC.  At the other end of the spectrum, the broadest level of planning is that articulated in the Desired Environmental Outcomes. They apply across the entire planning scheme area and are the basis for the more particular planning scheme measures expressed through the maps, Assessment Tables, Consistent Development Tables and Codes. Given the structure of the planning scheme, I will examine alleged non-compliances with the most particular level of planning first.

The disputed issues

  1. [68]
    The disputed issues to be determined in the appeal with respect to the planning scheme can be stated as follows:
  1. Whether compliance has been demonstrated with the Specific Assessment Criteria for the Escarpment Protection Precinct?
  2. Whether compliance has been demonstrated with the General Assessment Criteria for the TMZC?
  3. Whether compliance has been demonstrated with the TCC?
  4. Whether compliance has been demonstrated with Desired Environmental Outcomes?
  5. Whether compliance has been demonstrated with the Strategic Framework?
  1. [69]
    The balance of the disputed issues to be considered are as follows:
  1. Whether the proposed development is an appropriate use of the land?
  2. Whether the proposed development would result in unacceptable visual amenity impacts?
  3. Whether the proposed development is consistent with the amenity and character of the surrounding area?
  4. Whether there are relevant matters that individually, or cumulatively, favour approval of the proposed development?
  5. Whether there are relevant matters that individually, or cumulatively, favour refusal of the proposed development?
  1. [70]
    An assertion repeatedly made by the co-respondents in relation to all of the issues is to the effect that the proposed development is contrary to the community’s reasonable expectations. I will deal with this first, followed by the disputed issues considered in turn.

Community expectations

  1. [71]
    Central to the refusal cases is a contention that the proposed development is contrary to community expectations. Evidence with respect to what the community expects can be found in the submissions[106] received by Council during the public notification process, along with the statements of Ms Hay and Ms Lockey.
  2. [72]
    The town planning joint report records that 232 adverse submissions were received by Council during the public notification process.[107] This is incorrect. A total of 243 adverse submissions were received.[108] The vast majority, 221, were proforma submissions. The balance, 22, were non-proforma submissions. The objections articulated in the submissions were fairly summarised at paragraph 38 of the town planning joint report.
  3. [73]
    There is an immediate difficulty that must be confronted about the submissions received during the public notification process. It is clear that they respond to a different form of development to that which the Court is asked to consider. During the public notification process, the proposed development comprised 12 Tourist Cabins. The development now comprises 11 Cabins. Further, the development the subject of the objections does not reflect the minor change authorised by the order of 14 July 2022. This impacts on the weight that can be attributed to the submissions.
  4. [74]
    Putting this difficulty to one side, an examination of the proforma submissions (which accounts for 221 of the total) reveals submitters ‘objected’ for the following reasons:
    1. (a)
      the development proposes 12 three storey accommodation buildings, with substantial central facilities on land in the Escarpment Protection Precinct;
    2. (b)
      the development is not consistent with the ‘outcomes’ sought for the Tamborine Mountain Zone, in particular, the provisions of the Escarpment Protection Precinct;
    3. (c)
      the development is a significant overdevelopment of the land;
    4. (d)
      the development does not represent a scale, form and intensity intended in the zone;
    5. (e)
      the development is not low impact and has excessive building height over 8.5 metres;
    6. (f)
      the development is of a bulk, scale and nature that exceeds what could be reasonably expected of a typical tourist cabin, namely a cabin having a maximum GFA of 100m2, excluding verandahs;
    7. (g)
      the development will involve extensive cut and fill, which will impact on scenic amenity and landscape character values;
    8. (h)
      the development will alter overland flow and hydrological conditions and require significant infrastructure to mitigate runoff;
    9. (i)
      the development will negatively impact on the ecological values of the site;
    10. (j)
      the development will increase traffic and introduce new traffic into a predominantly semi-rural area;
    11. (k)
      the development will increase noise and introduce additional adverse noise impacts into the local area;
    12. (l)
      the development is inappropriate because it will introduce a vulnerable use into a bushfire prone area; and
    13. (m)
      there is no demonstrated need for short-term disability accommodation in this location.
  5. [75]
    An examination of the non-proforma submissions reveals similar points of objection were articulated to those above. Of note, is that each of the non-proforma submissions call in aid exceedances of Probable Solutions in the planning scheme to support refusal.[109] The same submissions also suggested that the development should be refused because: (1) there was a potential for the developer to convert the proposed Cabins into luxury residential townhouses;[110] (2) the application did not seek approval for Tourist Cabins as defined in the planning scheme;[111] and (3) the risk of Slope instability was not properly addressed.[112]
  6. [76]
    I have examined Ms Hay’s submission.[113] The document identifies her postal address. The address provided is well removed from the site, Eagles Retreat Place generally, Cliff Way and Central Avenue. Ms Hay’s submission indicates she agreed with, and relied on, the contents of the TMPA submission, which objected to the development.
  7. [77]
    Ms Lockey lodged her own submission with Council objecting to the development.[114] It is a proforma submission. Like Ms Hay, the postal address given in the submission is well removed from the site, Eagles Retreat Place generally, Cliff Way and Central Avenue.
  8. [78]
    I have examined TMPA’s submission.[115] It comprises an assessment prepared by a town planning consultant. The assessment traverses a number of planning issues, including compliance with Probable Solutions in the planning scheme. Refusal is recommended for a range of reasons, including a contention that inconsistencies with the planning scheme could not be managed through conditions.
  9. [79]
    What do the submissions and lay witness statements suggest is the community’s expectation as to development on the site?
  10. [80]
    The expectations of the community, based on the submissions and evidence of Ms Hay and Ms Lockey, appear to be that:
    1. (a)
      development will comply with Probable Solutions in the planning scheme with respect to site cover (10% or less), building height (8.5m or less) and cabin size (100m2 of GFA or less);
    2. (b)
      development of the site may include Tourist Cabins;
    3. (c)
      development of the site for Tourist Cabins may include ancillary facilities that are small in scale;
    4. (d)
      development of the site will be low-impact, respecting ecological and hydrological constraints; and
    5. (e)
      development will comply with the requirements of the planning scheme, particularly those specified for the relevant precinct.
  11. [81]
    In my view, there can be little doubt that subparagraph (a) above played an important part in the ‘expectations’ held by Ms Hay, Ms Lockey, TMPA and those members of the public who made submissions to Council. To the extent there is any doubt about this, it was removed by Ms Hay, who made the following oral submission:[116]

“Your Honour, what’s become apparent from reading through these documents is that the planning scheme is so poorly written, it leaves issues open to interpretation. I think we can all agree on that.

The issue now is whether the probable solutions contained in the planning scheme inform community expectations. The community may reasonably expect tourist cabins and central facilities and a wellness centre, and so on, on the site, but they do also expect them to comply with the probable solutions contained within the planning scheme.

If there are no probable solutions or if they mean nothing, then there’s little guidance on the outcome that’s expected for each SO or OO. So that’s why the community places reliance on the probable solutions where they are specific about size, gross floor area, height, and so on.” (emphasis added)

  1. [82]
    It can be observed that there is a connection between subparagraph [80](a) and (e). The submitters and lay witnesses drew upon Probable Solutions in the TMZC and TCC to inform many aspects of the assessment against the planning scheme.  Particularly those provisions calling for an examination of building bulk, form, scale and intensity of use.
  2. [83]
    I do not accept, in light of the matters discussed in paragraphs [54] to [59] and [66], that it is reasonable to expect development of the kind proposed will comply with Probable Solutions in the TMZC and TCC. Despite this, the submissions, and statements of Ms Hay and Ms Lockey, are redolent of an expectation that there is to be strict adherence to Probable Solutions. Indeed, one might be forgiven for thinking the Probable Solutions were treated by submitters, and the co-respondents, as if they were limits or maximums that may only be exceeded in exceptional circumstances. To form expectations and assess the merits of the proposed development on this footing, in my view, sits uncomfortably with ss 1.2.17, 3.7.8(c) and 5.2.1(c) of the planning scheme. 
  3. [84]
    The community’s expectations about development of the kind proposed on the site should start from the footing that the following matters are evident on the face of the planning scheme.
  4. [85]
    First, the site is included in the Tamborine Mountain Zone and Escarpment Protection Precinct. Land in that Zone and Precinct may be developed with up to 20 Tourists Cabins. It is Consistent Development in the Zone, and Precinct.[117]  The importance of this is reflected in s 1.1.3 of the planning scheme. This provision makes clear that the identification of development as Consistent Development in the Zone is one of the ways the planning scheme seeks to advance the purpose of the legislation in force at the time of its adoption, IPA.[118] The purpose of that Act was to achieve ecological sustainability.[119] The PA seeks to achieve the same end.[120]
  5. [86]
    Second, an impact assessable application may be made to Council to develop the site with up to 20 Tourist Cabins on the footing it is Consistent Development under the planning scheme. It is assessed from the starting point that it is ‘potentially’ consistent with the TMZC and relevant Overlay codes.[121]
  6. [87]
    Third, an impact assessable development application seeking approval for up to 20 Tourist Cabins on the site is to be assessed against the planning scheme as whole, to the extent it is relevant.
  7. [88]
    Fourth, in the assessment of an impact assessable development application seeking approval for up to 20 Tourist Cabins on the site, attention is to be given to, inter alia, relevant Overlay codes, the TMZC and the TCC. Compliance with the TMZC and the TCC is demonstrated in accordance with ss 3.7.8(c)[122] and 5.2.1(c).[123] Neither provision requires compliance with Probable Solutions. Rather, compliance is to be demonstrated with Overall Outcomes and Specific Outcomes of each Code, which are expressed in qualitative, rather than quantitative, terms.
  8. [89]
    Fifth, the Specific assessment criteria for the Escarpment Protection Precinct in the TMZC and the TCC do not include Probable Solutions for development that is subject to impact assessment.[124]
  9. [90]
    Sixth, the planning scheme provides flexibility to approve development that is of a scale, form and intensity greater than anticipated for a locality where two things are demonstrated: (1) there is an overwhelming community need for the development; and (2) there is an overwhelming economic need for the development.[125]
  10. [91]
    When the planning scheme is approached in this way, it can be said that expectations about the scale, form and intensity of Tourist Cabins on the site cannot be stated in the abstract, let alone by reference to empirical measures only. The very nature of the qualitative criteria against which the development is to be assessed turns on matters of fact and degree, judged by reference to the details of the particular proposal. This is demonstrated by relevant provisions of the planning scheme. First, Overall Outcome OO52 of the TMZC, which states the intent for the Escarpment Protection Precinct. Second, Specific Outcome SO1 of the Specific assessment criteria for the Escarpment Protection Precinct. The provisions bear a strong similarity.
  11. [92]
    Overall outcome OO52 in the TMZC states:

“Development within the Escarpment Protection Precinct is typified by low-impact uses which protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”

  1. [93]
    SO1 of the Specific Assessment Criteria for the Precinct states:

“Development must demonstrate that it is low-impact and can protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”

  1. [94]
    Mr Batty and Ms Bowness submitted there are additional matters that negatively impact on the weight to be given to the submissions in the exercise of the planning discretion here. They pointed out that:[126]
    1. (a)
      the views expressed in the submissions about unacceptable impacts are not supported by expert evidence before the Court;
    2. (b)
      the views expressed do not take into account the proposed conditions in exhibit 26, which will address concerns raised with respect to bushfire risk, landslip, effluent disposal, noise, light, odour, wastewater management, landscaping and ecology; and
    3. (c)
      the submissions do not reflect that the proposed development is Consistent Development under the planning scheme.
  2. [95]
    I accept (a) and (b) are made out, and negatively impact on the weight to be given to the submissions.
  3. [96]
    I do not accept (c) can be accepted without very significant qualification. It is clear on the face of some non-proforma submissions that it was acknowledged the proposal was Consistent Development in the Zone. Proforma submissions are silent on the point.  In such circumstances, I am not persuaded that the weight to be given to the submissions is reduced by reason of the point made at (c) above.
  4. [97]
    I pause to observe that a number of submissions suggested that the development for which approval is sought was not Tourist Cabins as defined in the planning scheme. This is a contention that I do not accept. The evidence comfortably demonstrates that the site is intended to be developed with a use that accommodates persons away from their normal place of residence in cabins that are self-contained. It has also been established that the central facilities proposed are ‘ancillary activities’ of the kind anticipated by the definition. The ancillary activities are limited, and undoubtedly take their colour from, and serve the primary use of the site for Tourist Cabins.[127]
  5. [98]
    That submissions assume to the contrary is a further matter that negatively impacts on the weight to be attributed to expressions of ‘expectation’.
  6. [99]
    It is my view that the evidence of community expectations, to be found in the submissions and lay witness statements of Ms Hay and Ms Lockey: (1) sits uncomfortably with the planning scheme, particularly the provisions identifying how compliance is achieved with the TMZC and TCC; and (2) finds little support in the evidence before this Court about the proposed development and its impact on amenity, character, ecological features of significance, scenic amenity and landscape values. As a consequence, little weight can be afforded to the expectations (and grounds for objection founded upon those expectations) stated in the submissions and lay witness statements.

Compliance with the planning scheme

  1. [100]
    The co-respondents contend the development does not comply with 27 provisions of the planning scheme.
  2. [101]
    For the reasons that follow, the appellant has demonstrated compliance with the planning scheme.

Specific Assessment Criteria for the Escarpment Protection Precinct

  1. [102]
    The co-respondents allege non-compliance with three provisions in Table 3.7.19 of the planning scheme, namely Specific Outcomes SO1, SO4 and SO5.
  2. [103]
    SO1 is in the following terms:[128]

“Development must demonstrate that it is low-impact and can protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”

  1. [104]
    The Specific Outcome requires development to protect and maintain the nature conservation, scenic amenity and landscape character values associated with the escarpment.
  2. [105]
    With respect to nature conservation values associated with the escarpment, the co-respondents do not allege non-compliance with the Nature Conservation Overlay Code. This code was examined by Mr Moffit in his statement of evidence.[129]
  3. [106]
    Mr Moffit’s evidence, which I accept, establishes that the ecological values of the site will be protected and maintained. The value is to be found in the south-eastern corner of the site, which is contiguous with well-vegetated areas further east. The proposed development footprint is sited outside of, and setback from, this corner of the site. Further, it is proposed that this area will be rehabilitated and revegetated. This will ensure the nature conservation values of the site will be protected and maintained. The values will also be enhanced. Mr Moffit said the proposal would deliver a net increase in vegetation and habitat for the site.[130]
  4. [107]
    The scenic amenity values associated with the escarpment can be identified in aerial photography before the Court. The most obvious and significant contributors to that amenity include: (1) the escarpment itself; (2) the national park/conservation area to the west of the escarpment; and (3) the absence of development in the area of the national park/conservation area leading to the escarpment, which provides an attractive foreground to the spectacular aspect available to the east.  The evidence comfortably establishes that the proposed development is located to the west of the areas identified in (1) and (2) above, leaving them intact. Item (3) would not change as a consequence of an approval. In these circumstances, it can be said with confidence that the scenic amenity values of the escarpment will be protected and maintained.
  5. [108]
    It can also be observed that the introduction of built form on to the site will not detract from the scenic amenity values of the escarpment. As a starting point, development of the kind proposed is to be anticipated on the site by reason it is Consistent Development in the Precinct. A careful examination of the built form proposed and the matters discussed in paragraphs [12] to [20] reveal, in any event, that there is a limited visual catchment from which the development is capable of being observed, let alone observed in its entirety.
  6. [109]
    Dr McGowan concluded from his visibility mapping assessment that the development will have a limited visual catchment to the west. The catchment is such that no neighbouring property would achieve a clear view across the entirety of the site. Four of the eleven Cabins will be visible for adjoining development to the west. A photomontage prepared for this view demonstrates the site will sit within a landscaped setting below a spectacular view to the east over the escarpment and vegetated foreground.[131] The photomontage comfortably demonstrates that the scenic amenity values discussed above will be protected and maintained (see ‘B’ attached to these reasons).
  7. [110]
    I pause to observe that the planning scheme recognises and identifies ‘view protection areas’. Planning controls have been provided to regulate development that may have an adverse impact on such areas.[132] The site, and land to the east, is not subject to this designation or controls. They do however apply to land to the west. For reasons given above, the development will not adversely impact on the views from the west towards the Gold Coast. The view will be protected and maintained.
  8. [111]
    The built form proposed will be visible from Eagles Retreat Place. The extent of visibility will be limited having regard to: (1) the matters identified by Mr Mewing with respect to the topography; (2) the stepping of the built form with the profile of the land (walking down the hill); (3) the proposed landscaping work; (4) the length of the frontage available (56 metres) to view the built form; and (5) Dr McGowan’s evidence that no one viewpoint would enable the development to be seen in its entirety. The architectural perspectives provided for the proposed development do not suggest that the extent of development that can be seen from Eagles Retreat Place impacts on the scenic amenity values of the escarpment.
  9. [112]
    With respect to landscape character values, Mr Mewing concluded that the local area is characterised by buildings that step across the hilly landscape and are surrounded by vegetation or cleared areas.[133] Visual aids before the Court make good on this opinion.
  10. [113]
    The plans of development, examined with the benefit of exhibit 26 and the evidence of Dr McGowan and Mr Curtis, illustrate a proposal that is consistent with this landscape character. The built form steps across undulating topography and is proposed to be sited in a well landscaped setting. As Mr Mewing observed, the design achieves an appropriate balance between built form and landscaping.[134] That balance comfortably favours landscaping.
  11. [114]
    Specific Outcome SO1 also requires development be low-impact. This is demonstrated in this case by: (1) the matters traversed in paragraphs [105] to [113]; and (2) Mr King’s evidence, which establishes that noise, lighting and odour emissions from the development can be managed appropriately by conditions.
  12. [115]
    Ms Hay did not address SO1 in her written submissions[135] or statement.[136]
  13. [116]
    Ms Lockey did not address SO1 in her written submissions.[137] She did however address alleged non-compliance in her statement. Non-compliance was asserted with the provision on two bases:[138] (1) by restating the provision in the negative; and (2) because the proposed development was far too intensive for the escarpment.
  14. [117]
    I do not accept that it is sufficient to restate the Specific Outcome to address the allegation of non-compliance. I also do not accept the proposed development is ‘far too intensive for the escarpment’. The evidence establishes the proposed development: (1) is of a bulk and scale consistent with built form existing in the locality (paragraph [26] and [128] to [133]); (2) will be landscaped in a manner that is consistent with the landscape character of the locality (paragraphs [112] and [113]); and (3) will, in any event, have limited visibility from external viewing points. These points taken in combination do not support Ms Lockey’s assertion. That they provide no support is made good by figure 24 of exhibit 7, which is attached and marked ‘B’. The figure is one of the few viewpoints where the development can be seen. It demonstrates how little built form will be visible. It also demonstrates the development will protect, rather than detract, from the character and amenity of the escarpment.
  15. [118]
    Specific outcome SO4 is in the following terms:[139]

“Development provides for a limited range of non-residential uses where it can be demonstrated that the scenic amenity can be maintained.”

  1. [119]
    The proposed development is a non-residential use, which is Consistent Development in the Precinct.  The particular issue for consideration in the context of SO4 is whether it is has been demonstrated that scenic amenity can be maintained.
  2. [120]
    For the reasons given at paragraphs [107] to [113] and [117], I am satisfied the development complies with SO4.
  3. [121]
    Ms Hay did not address SO4 in her written submissions[140] or statement.[141]
  4. [122]
    Ms Lockey did not address SO4 in her written submissions.[142] She did however address the provision briefly in her statement. Non-compliance was asserted with the provision by restating it in the negative.[143] I reject the stated assertion. It is not supported by any analysis of the evidence. It is also contrary to unchallenged evidence that I accept.
  5. [123]
    Specific outcome SO5 is in the following terms:[144]

“Development ensures a building height, bulk and setback consistent with the character of the Escarpment Protection area.”

  1. [124]
    For completeness, it can be observed that a Probable Solution is prescribed for Code assessable development assessed against SO5. It is in the following terms:

“S5.1  Development in the Escarpment Protection area provides a minimum building setback distance of 10 metres from—

(a) Tamborine Oxenford Road; and

(b) Main Western Road; and

(c) Henri Robert Drive.”

  1. [125]
    Assuming S5.1 is relevant to an impact assessable application, it is of little assistance to this case. The site does not share a boundary with any of the named road reserves. Further, the Probable Solution does not address all parts of the Specific Outcome; it does not provide a solution with respect to building height and bulk considerations.
  2. [126]
    SO5 requires the following to be considered: Is the height, bulk and setback of the development consistent with the character of the Escarpment Protection area?
  3. [127]
    This question is resolved in the affirmative.
  4. [128]
    The proposed Cabins and central facilities are designed and sited to step with the sloping topography of the land. This has the consequence that Cabins 1 to 10 present as one or two storeys to the west, and two to three storeys to the east.  The difference in height from west to east is not so dramatic for Cabin 11.[145] It reads as two storeys from the west and two and a half storeys to the east. The central facilities building presents as a two storey building to the west and three storeys to the east.[146] That the built form straddles the slope of the land is, as I have already found at paragraph [112], consistent with the existing built form in the Escarpment Protection Precinct and the locality to the west.
  5. [129]
    At Eagles Retreat Place, Cliff Way and Central Avenue, the evidence establishes there are large single dwellings that are designed to step with the topography and take advantage of the easterly aspect beyond the escarpment.[147] Some of those dwellings read as two storeys from particular viewing points.[148]  Some read as two to three storeys.[149] The existing short term accommodation building located on Eagles Retreat Place is no exception. It straddles the sloping topography and presents as a two storey structure from the south, and a three storey structure from the east. A similar point can be made about existing dwellings on Eagles Retreat Place.
  6. [130]
    The height and bulk of the proposed Cabins and central facilities can be compared with existing built form in the Escarpment Protection Precinct. This comparison is undertaken using visual aids before the Court. Those aids establish that the bulk and height of the existing built form is fairly characterised as large two storey detached dwellings. A useful visual aid in this respect is contained in Mr King’s supplementary report.
  7. [131]
    Figure 2 of Mr King’s supplementary report is an aerial photograph with a site plan overlay. The figure can be used to examine the footprint of existing development and the approved dwelling on the site, which can then be compared with each Cabin and the central facilities. This comparative exercise reveals that: (1) the footprint of each Cabin is appreciably smaller than existing dwellings to the north and east; (2) the footprint of each Cabin is appreciably smaller than the short-term accommodation facility to the north; (3)  the footprint of each Cabin is appreciably smaller than the dwelling approved in the north-east corner of the site; and (4) the central facilities building is comparable in footprint to the short-term accommodation facility to the north, and smaller than the footprint of the approved dwelling on the site.
  8. [132]
    The height of each Cabin and the central facilities building, coupled with an appreciation of their respective development footprints (length and width), enables building bulk to be examined. That examination, in the light of paragraphs [128] to [131], and with the benefit of the architectural perspectives, leads me to conclude that the height and bulk of the built form will be consistent with the character of the Escarpment Protection Precinct. The height and bulk of the built form will not, in any event, be visible in its entirety from one location. It will be sited to step with the topography of the land. It will sit within a landscaped setting.
  9. [133]
    Figure 2 of Mr King’s supplementary report also enables setback distances to be considered for existing and approved development in the Escarpment Protection Precinct. It is clear from this figure that front, side and rear boundary setbacks vary considerably in the Precinct. The setbacks for the proposed development, which are discussed at paragraph [26], will be consistent with that character. The setbacks to the south and west are worthy of particular note. They are in the order of 10 metres. This setback area will be landscaped and will function as a buffer zone. The buffer will provide a sensitive interface for development located to the south and west of the site.
  10. [134]
    Ms Hay did not address SO5 in her written submissions[150] or statement.[151]
  11. [135]
    Ms Lockey did not address SO5 in her written submissions.[152] Ms Lockey did however address non-compliance in her statement.[153] Non-compliance was asserted on two bases: (1) by restating the provision in the negative; and (2) by reference to exceedances of Probable Solutions for building height and gross floor area.
  12. [136]
    Item (1) is unhelpful. It does not disclose the basis for the alleged non-compliance. It is a mere assertion.
  13. [137]
    Item (2) does not advance an argument with respect to non-compliance. As I have already said, departure from a Probable Solution does not equate to non-compliance with the TMZC or TCC. Further, it can be observed that the Probable Solutions to which Ms Lockey referred do not apply to SO5. They apply to Code assessable development assessed against a different part of the planning scheme, namely Specific Outcome SO8 in the TMZC (height) and Specific Outcome SO2 (GFA) in the TCC.
  14. [138]
    The alleged non-compliances with the planning scheme in this case do not turn on whether Probable Solutions are exceeded or complied with. Rather, the case calls for an examination of the evidence against provisions such as SO5. That examination here comfortably demonstrates compliance.
  15. [139]
    I also note that Ms Lockey asserted non-compliance with Specific Outcome SO2 of Specific Assessment Criteria for the Escarpment Protection Precinct. This assertion appears in her statement.[154] It is not identified in the list of issues. It is not an issue in the appeal.
  16. [140]
    Reliance upon SO2 is, in any event, misguided.
  17. [141]
    Specific outcome SO2 requires development to ‘maintain(s) and protect(s) the existing undeveloped landscape character comprising heavily forested areas and a mixed farming environment’. This provision has no application to the site because the landscape character is not heavily forested. Nor is it a mixed farming environment. TMPA did not: (1) lead evidence to the contrary; (2) direct me to evidence that assisted its case in relation to this point. As to (2), there was no such evidence in any event.

General Assessment Criteria for the TMZC

  1. [142]
    Non-compliance is alleged with five Overall Outcomes of the TMZC. The co-respondents jointly allege non-compliance with Overall Outcomes OO2, OO5 and OO58. TMPA alleges non-compliance with Overall Outcome OO52. Ms Hay presses non-compliance with Overall Outcome OO38.
  2. [143]
    Ms Hay’s written submissions do not address Overall Outcomes OO2, OO5, OO38 and OO58 of the TMZC.[155]
  3. [144]
    Ms Lockey’s written submissions do not address Overall Outcomes OO2, OO5, OO52 and OO58 of the TMZC.[156]
  4. [145]
    Overall outcome OO2 is in the following terms:[157]

“Overall Vision

OO2 Development provides that tourist activities are concentrated in recognised tourist areas or otherwise located so as not to adversely impact on the amenity of the area.”

  1. [146]
    The proposed development is a tourist activity. It is not proposed in a tourist area. The issue, as a consequence, is whether the evidence of Messrs Mewing, Ovenden, Curtis and King and Dr McGowan establishes that the proposed development will be located so to not adversely impact on the amenity of the area. For reasons already given, I accept this body of evidence without reservation. Compliance is demonstrated with OO2.
  2. [147]
    Ms Hay addressed OO2 in her statement.[158] The statement asserts non-compliance with the provision by re-stating it in the negative.
  3. [148]
    Ms Lockey addressed OO2 in her statement.[159] She asserted non-compliance with the provision on the basis that the proposed development ‘is located in a predominantly low key residential area and adversely impacts on the amenity of the area’.
  4. [149]
    I reject Ms Hay’s assertion with respect to OO2.  Whilst I accept the area is predominantly low key residential in nature, I do not otherwise accept Ms Lockey’s assertion with respect to OO2. The assertions in both statements are not supported by evidence. They are also inconsistent with the evidence I accept.
  5. [150]
    Overall outcome OO5 is in the following terms:[160]

“Amenity, Environmental Management and Greenspace

OO5 Development through location and design minimises risks and nuisance to people and property”

  1. [151]
    The evidence of Mr King, Mr Clowes and Dr Johnson is relevant to OO5. That body of evidence, which I accept, establishes that: (1) the potential for noise, light and odour nuisance can be appropriately managed by way of conditions; (2) even allowing for the nature of the use, and known risks, bushfire risk to people and property can be safely managed by way of conditions.
  2. [152]
    Ms Hay addressed OO5 in her statement.[161] Non-compliance is asserted on two bases. First, the proposed development will not minimise risk with respect to bushfire hazard. Second, the proposed development will not minimise nuisance to people and property.
  3. [153]
    Ms Hay made the point that the use proposed is a vulnerable one given: (1) the known bushfire risk, which is high; and (2) the occupants will not be abled bodied. Ms Hay also criticised the design of the proposal because she was unable to identify water storage facilities (for firefighting purposes) on the proposed plans.[162]
  4. [154]
    A review of Mr Clowes’ evidence reveals he took into account the points made by Ms Hay in items (1) and (2). He also recommended, and the appellant accepts, that a bushfire management plan should be required by a condition of approval; that plan is to identify the location of water storage facilities for firefighting purposes. The plans of development reveal provision has been made in the design of the Cabins for these very facilities.
  5. [155]
    In the context of nuisance, Ms Hay asserted the proposed development will introduce extra traffic into Eagles Retreat Place and will have an adverse amenity impact by reason of its scale and intensity.[163] This was consistent with the points made by Ms Lockey in her statement.[164]
  6. [156]
    I reject the asserted non-compliance insofar as it relies upon matters of scale and intensity. The assertions are contrary to the evidence I accept.
  7. [157]
    It is correct to say that the proposed development will introduce traffic into the street.  Mr King examined the impact of traffic noise on amenity.  At paragraphs 32 and 33 of his separate report, Mr King said:

“32 In respect to traffic generated by the use, I note that the traffic reporting provided with the information response with the change to 11 cabins identified the site would generate a maximum of 11 vehicle movements in the weekday peak. This compares to the otherwise existing 25 vehicle movements per hour in the weekday peak. The increase in traffic from 25 to 36 movements in 1 hour will increase resultant traffic noise by less than 1.6 dB(A). In acoustic engineering assessments, a change of less than 3 dB(A) is insignificant…

33 Given the low traffic generation rates associated with the proposed development, the impact upon acoustic amenity of surrounding residents due to site generated traffic will be insignificant in my opinion.”

  1. [158]
    I accept Mr King’s evidence.
  2. [159]
    The proposed development will introduce non-residential traffic into Eagles Retreat Place. This is not fatal.  In my view, additional traffic movements are to be anticipated under the planning scheme, which; (1) identifies up to 20 Tourist Cabins on the site as Consistent Development in the Zone and Precinct; and (2) does not preclude non-residential uses of the kind proposed on local access streets such as Eagles Retreat Place. Once these matters are appreciated, with the benefit of Mr King’s evidence, it is not difficult to conclude that increased traffic movements from the proposed development are small in number and will not have adverse amenity impacts.
  3. [160]
    Overall outcome OO38 is in the following terms:[165]

“Transport and Access

OO38 Development provides for pedestrian, cycle and vehicular connectivity and ease of mobility”

  1. [161]
    Ms Hay addressed OO38 in her statement.[166] The statement asserts non-compliance with the provision. No reasons are provided.
  2. [162]
    A review of the proposed development reveals it includes, and can be conditioned to include, the following features:
    1. (a)
      an internal access road, designed to accommodate an MRV,[167] which provides vehicular and pedestrian access to each Cabin and the central facilities building;
    2. (b)
      carparking conveniently located to each Cabin, including convenient and accessible parking for people with disabilities;
    3. (c)
      an on-site loading bay suitable to accommodate an MRV;[168] and
    4. (d)
      compliant accessible paths to facilitate pedestrian connectivity between an allocated carpark and Cabin entrance door, and between the Cabin entrance door and the central facilities.[169]
  3. [163]
    The combination of these features are sufficient, in my view, to demonstrate compliance with OO38.
  4. [164]
    The proposed development was criticised for not providing connectivity for pedestrians beyond the site. This criticism, in my view, was unwarranted for two reasons. First, Eagles Retreat Place is a semi-rural road and there is no requirement in the planning scheme for development to construct a footpath on roads of this kind.[170] Second, the vertical gradient of Eagles Retreat Place is wholly unsuitable for access by persons with mobility issues. As a matter of common sense, the nature of the facility and its future occupants are unlikely to generate significant pedestrian traffic on Eagles Retreat Place. The pedestrian traffic it will generate can be safely accommodated in the same way existing pedestrian movements are accommodated in the carriage way.
  5. [165]
    Overall outcome OO52 is in the following terms:[171]

“Precinct Intent

OO52  Development within the Escarpment Protection Precinct is typified by low-impact uses which protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment.”

  1. [166]
    I am satisfied compliance has been demonstrated with this provision for the reasons given in paragraphs [103] to [117].
  2. [167]
    Ms Lockey addressed OO52 in her statement.[172] She asserted non-compliance with the provision on the basis the proposed development would be located in the Escarpment Protection Precinct and does not typify a low impact use which protects and maintains the matters stated in OO52. I reject this assertion. It is contrary to the evidence.
  3. [168]
    Overall outcome OO58 is in the following terms:[173]

“Intensity of Development

OO58  Development is at a scale, form and intensity which is intended for development in the Zone and is consistent with the reasonable expectations of residents of the Zone.”

  1. [169]
    The proposal is Consistent Development in the Zone. A detailed examination of its various impacts against the planning scheme do not suggest it is of scale, form or intensity that is unintended in the Zone. In such circumstances, it is not difficult to conclude that OO58 is complied with in this case.
  2. [170]
    As to the reasonable expectations of residents of the Zone, the proposed development does not compare favourably to the expectations held by those who elected to make submissions. Nor does it compare favourably with the expectations of Ms Hay and Ms Lockey. This does not however establish non-compliance with OO58. For reasons given in paragraphs [72] to [99], the expectations articulated in the submissions and lay witness statements proceed on a false premise – they expect compliance with Probable Solutions in the planning scheme. An expectation based on this assumption is not, in my view, a reasonable one. The expectations also find little support in the evidence before the Court.
  3. [171]
    The residents of the Zone should, in my view, have an expectation that the site may be developed with a use of the kind and intensity proposed. This expectation should also take into account: (1) that the scale, intensity and form of the development is not strictly controlled by empirical standards, save that no more than 20 Tourist Cabins are anticipated; (2)  the scale, form and intensity of the development is to be examined against qualitative outcomes in, inter alia, the TMZC and TCC; and (3) the Desired Environmental Outcomes admit of an opportunity to exceed the intended scale, form and intensity of development in the Zone in any event, provided overwhelming community and economic need are both demonstrated.
  4. [172]
    Given compliance has been demonstrated with the TMZC and TCC, and the evidence comfortably makes good that the scale, form and intensity of the development does not manifest in adverse impacts, there is no good reason to conclude that the development is inconsistent with reasonable expectations for development in the Zone.
  5. [173]
    Ms Hay addressed OO58 in her statement.[174] She asserts non-compliance with the provision by re-stating it in the negative. I reject this assertion. It is not supported by evidence. Nor is it consistent with the evidence that I accept.
  6. [174]
    Ms Lockey did not address OO58 in her submission or statement.
  7. [175]
    Ms Lockey addressed Overall Outcomes OO1, OO4, OO6, OO7 and OO30 in her statement. She asserted non-compliance with each of these provisions in circumstances where they are not identified in the list of issues. They are not issues in dispute.
  8. [176]
    A review of Ms Lockey’s statement reveals she asserts non-compliance with OO1, OO4, OO6, OO7 and OO30 because the proposed development:[175]
    1. (a)
      is not ecologically sustainable (OO1);
    2. (b)
      has not been designed and located to protect and complement the existing natural environment, semi-rural character and scenic amenity values of Tamborine Mountain (OO1);
    3. (c)
      will glow like a beacon at night (OO1 and OO30);
    4. (d)
      will interfere with the flight paths of many night creatures (OO1);
    5. (e)
      will not, by reason of its scale and intensity, promote a high standard of amenity comparable with the existing character (OO4);
    6. (f)
      is, by reason of its size and bulk, an overdevelopment of the land (OO7);
    7. (g)
      will not maintain and enhance the existing character of the area, which is defined by topography, vegetation and rural villages (OO7); and
    8. (h)
      will not avoid or mitigate adverse emissions from noise, light and glare (OO30).
  9. [177]
    The evidence establishes that the above assertions are groundless.
  10. [178]
    The assertions are not supported by evidence.
  11. [179]
    The assertions are inconsistent with the evidence I accept. In particular the evidence of the town planning experts, visual amenity experts and Messrs King and Moffit.
  12. [180]
    Non-compliance is also alleged with seven Specific Outcomes in the TMZC General Assessment provisions, namely SO2, SO8, SO11, SO12, SO23, SO47 and SO49. All of these provisions, save for SO23 and SO47 are jointly pressed. TMPA persists with an allegation of non-compliance with SO47. Ms Hay persists with an allegation of non-compliance with SO23.
  13. [181]
    Specific Outcome SO2 is in the following terms:[176]

“Development—

  1. (a)
    protects and enhances residential amenity, residential character and a pleasant and safe living and working environment; and
  1. (b)
    has a built form which is consistent with the scale and form of development in the Zone generally; and
  1. (c)
    provides buffering between non-residential uses and residential uses; and
  1. (d)
    provides buffering between residential uses and major transport routes.”
  1. [182]
    Ms Hay and TMPA accept compliance has been demonstrated with sub-paragraphs (c) and (d) of SO2. Only sub-paragraphs (a) and (b) are in issue.
  2. [183]
    I am satisfied compliance is demonstrated with both of these provisions for the same reasons compliance has been demonstrated with the Specific Assessment Criteria for the Escarpment Protection Precinct and Overall Outcomes OO52 and OO58 of the TMZC.
  3. [184]
    Ms Hay addressed SO2 in her statement,[177] as did Ms Lockey.[178] In support of non-compliance, they pointed out that the scale and intensity of the proposed development will sit in stark contrast to the residential properties in Eagles Retreat Place, which are single dwellings on large lots in a cul-de-sac. I do not accept this assertion establishes non-compliance with Specific Outcome SO2.
  4. [185]
    In simple terms, the development, taken as a whole, is larger than a single dwelling, but the evidence establishes that this does not sound in adverse character or amenity impacts. The development is sited and designed to protect and enhance residential amenity and character. This, in my view, is due primarily to: (1) its limited external visibility; (2) the balance struck between landscaping and built form; and (3) the conditions proposed that are intended to mitigate a range of impacts including visual, noise, light and odour impacts.
  5. [186]
    Specific Outcome SO8 is in the following terms:[179]

“Development is low rise and has a visual bulk and architectural scale consistent with development on nearby land.”

  1. [187]
    I am satisfied compliance is demonstrated with this provision for the reasons given at paragraphs [26] and [126] to [133].
  2. [188]
    A Probable solution for Code assessable development is stated for SO8 in the following terms:[180]

“Development ensures that the maximum height of buildings and structures is 8.5 metres above natural ground level.”

  1. [189]
    Ms Hay addressed non-compliance with SO8 on the footing that this Probable Solution applied to the development.[181] She said the proposed development is not low-rise because it exceeds 8.5 metres in many instances.
  2. [190]
    This point does not resolve the question of non-compliance. The Probable Solution does not apply to impact assessable development and, in any event, even if it did, the exceedance does not establish non-compliance. 
  3. [191]
    It is correct to say that some, but not all, of the built form exceeds 8.5 metres in height above the natural ground level. The heights of the built form are identified at paragraph [28]. The exceedances that should be given particular focus are those where built form will be visible beyond the site. Built form will be visible from the west, namely Cabins 1 to 4. Cabins 3 and 4 are greater than 8.5 metres in height above natural ground level. This height is exceeded on the eastern side of each Cabin. The full height of the building exceeding 8.5 metres is not visible from the west.[182] Architectural perspectives contained in the bundle of plans[183] confirm limited, if any, built form exceeding 8.5 metres will be visible from Eagles Retreat Place. The built form will be well screened by vegetation. The architectural perspectives also confirm that the approved, but unconstructed, dwelling on the land will have a greater visual impact on the street than the proposed development.
  4. [192]
    Having regard to the above, the exceedance of the Probable Solution, even if applicable, does not establish non-compliance with the qualitative criteria contained in SO8.
  5. [193]
    It was also pointed out by Ms Hay that the visual bulk, scale and architectural massing of the proposal was inconsistent with nearby development. For reasons given at paragraphs [128] to [133], I reject this assertion.
  6. [194]
    Ms Lockey addressed SO8 in her statement.[184] She asserted non-compliance with the provision by re-stating it in the negative. She also made the point that the proposed development, which is akin to a subdivision with large town houses and a communal facility, is ‘totally out of keeping with the low impact surrounding area’. This is not supported by the evidence. It is also consistent with the findings at paragraphs [128] to [133].
  7. [195]
    Specific Outcome SO11 is in the following terms:[185]

“Development ensures that a tourist accommodation use or a tourist retail use outside of the Business Precinct or Cottage Tourist Precinct protects and enhances the character of the area.”

  1. [196]
    The proposed development is a tourist accommodation use.[186] It is proposed outside of the Business Precinct and Cottage Tourist Precinct. The issue is whether it will protect and enhance the character of the area. For reasons already given, I am comfortably satisfied that an approval, with conditions, will protect the character of the area. Further, I am satisfied the development will also enhance the character of the area. This is because it is Consistent Development in the Zone and Precinct it is proposed and: (1) complies with the TMZC and TCC; and (2) will not have adverse impacts on amenity and character; and (3) would enhance the vegetation and habitat values on the land, which is part and parcel of the area and contributes to its landscape character and scenic amenity value.
  2. [197]
    Probable Solutions for Code assessable development are stated for SO11 in the following terms:[187]

“S11.1  Development ensures that a tourist accommodation use or a tourist retail use is separated by a distance of 200 metres from another lot containing an existing or approved tourist accommodation use or tourist retail use.

S11.2  Development locates outside of the Residential Precinct.”

  1. [198]
    Ms Hay and Ms Lockey addressed non-compliance with SO11 in their statements.[188] It is said that non-compliance arises with SO11 because the proposed development is a tourist accommodation use located outside of the identified Precincts. Ms Hay also pointed out that the proposed development did not comply with S11.1 because it would be located across the road from an existing tourist accommodation use.[189]
  2. [199]
    These points, taken collectively, do not establish non-compliance with SO11. They do no more than establish a departure from Probable Solutions that apply to Code assessable development.
  3. [200]
    Specific Outcome SO12 is in the following terms:[190]

“Development ensures that tourist accommodation uses and tourist retail uses are sympathetic to the visual amenity and character of the area in terms of topography, building siting design, scale and height and existing vegetation if in the—

…

(f) Escarpment Protection Precinct”

  1. [201]
    I am satisfied compliance has been demonstrated with this provision for the reasons given in paragraphs [24]-[30], [103]-[117], [126]-[133] and [169]-[172].
  2. [202]
    Ms Hay and Ms Lockey addressed non-compliance with Specific Outcome SO12 in their statements.[191] It is said that non-compliance arises with the provision because the proposed development:
    1. (a)
      is not sympathetic to the visual amenity and character of the area;
    2. (b)
      is of a scale and use well beyond that which would be ordinarily contemplated;
    3. (c)
      will have an adverse visual impact on the residents of 9, 11 and 13 Cliff Way, because it will appear as one single large structure; and
    4. (d)
      will create unwelcomed adverse increased impacts by reason of traffic movements, noise, light, garbage collection and deliveries.
  3. [203]
    The above points are mere assertions. They were not supported by evidence. More importantly, they were contrary to the evidence of the experts that I accept in the following fields of expertise, namely, town planning, visual amenity, traffic, noise, lighting and odour.
  4. [204]
    Specific Outcome SO23 is in the following terms:[192]

“Development ensures that Tourist Retail Uses (Tourist Facility, Winery/distillery) and Tourist Accommodation Uses are not concentrated in one location.

  1. [205]
    A Probable Solution for Code assessable development is stated for SO23 in the following terms:[193]

“Development ensures that a Tourist Facility, Winery/distillery or Tourist Accommodation Use is separated by a distance of 200 metres from another lot containing an existing or approved Tourist Facility, Winery/distillery or Tourist Accommodation Use.”

  1. [206]
    Ms Hay addressed non-compliance with SO23 in her statement.[194] Non-compliance was asserted with the provision because the proposed development does not comply with the above Probable Solution. The same point was made by Ms Hay in her written submissions.[195] The point made in both documents was that the proposed development would be located across the road from an existing Tourist accommodation use on Eagles Retreat Place.
  2. [207]
    Whilst it is correct to say that a short-term accommodation facility is located opposite the site, I was far from persuaded that an approval, if granted and acted upon, would create a concentration of tourist accommodation uses that SO23 seeks to avoid. This is so for two reasons. First, the Probable Solution relied upon by Ms Hay has no application to the present case. Second, the evidence does not suggest the proximity of the existing use to proposed development would manifest in adverse town planning impacts consistent with an unacceptable ‘concentration’ of tourist facilities. The absence of adverse amenity impacts is particularly telling in this regard. 
  3. [208]
    Specific Outcome SO47 is in the following terms:[196]

“Development ensures that tourist facilities are located on roads other than those which function primarily as residential/rural residential access roads.”

  1. [209]
    Ms Lockey addressed SO47 in her statement.[197] She pressed non-compliance with the provision because the proposed development is located on a low order residential access road. The same point was advanced in Ms Hay’s written submissions.[198]
  2. [210]
    This alleged non-compliance can be dealt with quickly.
  3. [211]
    SO47 applies to ‘tourist facilities’. This is a defined use in the planning scheme.[199] It means any premises used or intended for use for the recreation, attraction or entertainment of tourists. This is not the development for which approval is sought. The development is a separately defined use, Tourist Cabins. This difficulty was acknowledged by Ms Hay in her submissions, but non-compliance was still pressed nonetheless.[200]
  4. [212]
    Specific Outcome SO49 is in the following terms:[201]

“Development being-

  1. (a)
    a Material Change of Use is consistent with the scale, form and intensity of development in the Zone;…”
  1. [213]
    For reasons given above, I am satisfied the development proposed is consistent with the scale, form and intensity of development existing and intended in the zone. Compliance has been demonstrated with SO49.
  2. [214]
    Ms Hay asserted in her written statement that the development did not comply with SO49 by restating the provision in the negative.[202] She did not address the provision in her written submissions.
  3. [215]
    Ms Lockey did not address SO49 in her statement or in TMPA’s written submissions.
  4. [216]
    Ms Lockey’s statement asserts non-compliance with Specific Outcomes SO3, SO5 and SO34 of the TMZC. These non-compliances are not identified in the list of issues. They are not issues in dispute.
  5. [217]
    The asserted non-compliances with SO3, SO5 and SO34 take issue with a number of aspects of the proposed development. Ms Lockey asserted that the proposed development:[203]
    1. (a)
      will not, by reason of its size, bulk and height (being above 8.5m) protect, enhance and retain scenic amenity (SO3);[204]
    2. (b)
      will, by reason of its height, be highly intrusive in the landscape (SO5); [205]
    3. (c)
      will not mitigate adverse emissions such as noise, light and glare (SO34).[206]
  6. [218]
    I reject each of these assertions (and the alleged non-compliance with the planning scheme). The assertions are not supported by evidence. Nor are they supported by the evidence I accept.

Tourist Cabin Code

  1. [219]
    The co-respondents jointly allege non-compliance with five provisions of the TCC, namely the Overall Outcomes and Specific Outcomes SO1, SO2 and SO3(a).
  2. [220]
    The Overall Outcomes for the TCC are in the following terms:[207]

“A Tourist Cabin—

  1. (a)
    is a self-contained cabin in a natural, rural or semi-rural setting; and
  1. (b)
    is of a scale that does not produce an undesirable amenity impact and is consistent with the character of the surrounding area; and
  1. (c)
    does not hinder the carrying out of Agriculture or Animal Husbandry in a rural area; and
  1. (d)
    does not detrimentally impact upon the biodiversity of a rural area.”
  1. [221]
    The co-respondents do not allege non-compliance with Overall Outcomes (c) and (d).
  2. [222]
    Non-compliance is alleged with Overall Outcomes (a) and (b) only.[208]
  3. [223]
    The proposed plans of development inform compliance with Overall Outcome (a). The plans show that the Tourist Cabins are designed to be self-contained. The landscape plans, read with the proposed conditions in exhibit 26, confirm that the Cabins, and central facilities, are also designed to sit within a landscaped setting. That setting is consistent with the character of the area.
  4. [224]
    For reasons already given, I am satisfied the proposed development is of a scale that will not produce undesirable amenity impacts. I am also satisfied it will be consistent with the character of the surrounding area.
  5. [225]
    Ms Hay addressed Overall Outcomes (a) and (b) in her witness statement[209] and written submissions.[210] In support of the asserted non-compliance with both provisions, Ms Hay pointed out that: (1) the site is currently in a natural setting, which will not remain the case with the construction of ‘11 2-3 storey tourist cabins plus the extensive central facilities’; (2) approximately three quarters of the entire site will be cleared to facilitate the construction of the proposed development in conjunction with the approved dwelling; (3) the landscaping and planting proposed are not conducive to the site remaining a natural setting; (4) the Cabins proposed are supersized and exceed the gross floor limit prescribed by a Probable Solution; and (5) the proposed development is not consistent with community expectations.
  6. [226]
    I reject the above assertions. All, save for item (4) were not supported by evidence. They are contrary to a large body evidence that I accept. Item (4) draws upon a Probable solution which has no application. Further, Ms Hay’s submissions fail to acknowledge that the evidence establishes a connection between the size of the Cabins and design requirements for the type of accommodation proposed. It is this connection that explains the size of the Cabins, which are, in turn, to be examined against the terms of the Overall Outcomes rather than unrelated Probable Solutions. Ms Hay did not undertake that exercise in her statement or submissions.
  7. [227]
    With respect to community expectations, Ms Hay said in her lay witness statement:[211]

“Whilst eleven (11) cabins in this location may well be considered appropriate on the proposed site, the community expectation is that a “cabin” is usually less than 100m2 Gross Floor Area (GFA), is of usually one storey, does not exceed the 8.5m height limitation, and, whilst the site is currently in a natural (although heavily cleared) setting, the proposed size, scale, bulk and site coverage will effectively eliminate the natural setting on more than 50% of the site (excluding the building envelope for the approved dwelling and its amenities). the proposed development is not of a scale that does not produce an undesirable amenity impact and is not consistent with the character of the surrounding area.”

  1. [228]
    For reasons given above, I do not accept this statement reflects a reasonable expectation in the circumstances.
  2. [229]
    Ms Lockey did not address Overall Outcomes (a) and (b) in TMPA’s written submissions.[212]
  3. [230]
    Ms Lockey briefly addressed Overall Outcome (b) in her lay witness statement.[213] She asserted that the development did not comply with the provision by restating it in the negative. No supporting reasons where provided. I reject the assertion.
  4. [231]
    Table 5.2.97 of the planning scheme sets out the Specific Outcomes and Prescribed Solutions for Tourist Cabins. Column 1 of the table sets out Specific Outcomes. Column 2 contains Acceptable Solutions and Probable Solutions that apply to Self assessable and Code assessable development respectively.
  5. [232]
    Specific Outcome SO1 is in the following terms:

“Development does not result in a built form that is visually intrusive.”

  1. [233]
    A Probable Solution is stated for SO1, if development is Code assessable. The Probable Solution is as follows:

“S1.1 Development has a maximum site coverage of 10%.”

  1. [234]
    I had the benefit of a number of plans, elevations, architectural perspectives and photomontages to examine the visual impact of the built form proposed. All of that material, read with Dr McGowan’s visibility assessment, establishes compliance with SO1. A useful summary of the position was well put by Mr Ovenden, the town planning witness called by Council, who said:[214]

“..As an outcome of the analysis undertaken by the visual amenity experts in their JER, I note:

i) the subject site and development of the scale proposed would have a relatively limited visual catchment (paragraph 78);

ii) the site is effectively buffered by undulating and densely vegetated landscape of the National Park to the east and the south (as well as undeveloped escarpment landscapes further east and south); (paragraph 79); and

iii) because of the relatively confined visual catchment, it is likely that any impacts on local character from the proposed development would be confined to a limited number of properties (paragraph 80) and the analysis of impacts on adjoining properties undertaken by Dr McGowan (paragraphs 88 to 94) suggests that impacts will not be unacceptable.”

  1. [235]
    The analysis referred to in subparagraph iii) above takes into account Figure 24 of the visual amenity joint expert report. This is a photomontage for a viewpoint located to the west of the land overlooking Cabins 1 to 4. The montage, which is attached and marked ‘B’ speaks for itself. It demonstrates compliance with SO1. I do not accept that it shows what Ms Hay and Ms Lockey suggests; they described the development appearing in this view as a contiguous built form. 
  2. [236]
    Ms Hay addressed SO1 in her lay witness statement[215] and written submissions.[216] In her statement, Ms Hay pointed out that the proposed development exceeded the site coverage stated in S1.1 and has a built form that is visually intrusive. The built form to which reference was made in the statement was the central facilities building. It was asserted that these facilities ‘are much larger’ than that envisaged by the community. She said the expectation was for ‘limited facilities’ of the kind indicated in the ‘tourist cabin recommendations’ of the planning scheme. In the written submissions, Ms Hay focussed only upon S1.1. She submitted that the proposal was a ‘Fail’ when assessed against this provision.[217] 
  3. [237]
    Ms Lockey did not address SO1 in her written submissions.[218]
  4. [238]
    Ms Lockey addressed SO1 in her witness statement.[219] The statement suggests that non-compliance arises because: (1) the proposed development ‘will be visible from many neighbouring properties’; (2) the central facilities are of a size and scale that is larger than those indicated in the planning scheme; and (3) the development has a site coverage that exceeds 10% as required by S1.1.
  5. [239]
    I do not accept the submissions advanced by Ms Hay or Ms Lockey in relation to SO1. First, the submissions erroneously rely upon a departure from a Probable Solution to establish non-compliance. Second, they are inconsistent with the expert evidence with respect to the visual impact of the development. Third, for the reasons given in paragraph [97], I am satisfied the central facilities are fairly described as limited and ancillary to the primary purpose of the development.
  6. [240]
    Specific outcome SO2 in Table 5.2.97 is in the following terms:

“Development has a sufficient area to accommodate the development while retaining the predominantly natural character and amenity of the site and surrounding area.”

  1. [241]
    Probable Solutions are stated for SO2 as follows:

“S2.1 Development other than in the Tamborine Mountain Zone has a minimum site area of 10 hectares.

S2.2 Development provides that each cabin has a maximum gross floor area excluding verandahs of 100m2.

S2.3 Development other than in the Beaudesert Township Zone, the Canungra Township Zone and the Tamborine Mountain Zone has an accommodation density in accordance with Table 5.2.97A (Tourist Cabin accommodation density).”

  1. [242]
    For reasons already given, compliance is demonstrated with SO2. The evidence comfortably establishes there is sufficient area to accommodate the proposed development while retaining the natural character and amenity of the site and surrounding area.
  2. [243]
    Ms Hay addressed SO2 in her witness statement and written submissions. In her witness statement, she pointed out that the proposed Cabins ‘significantly exceed the GFA of a maximum 100m2 in S2.2’.[220] In her written submissions, non-compliance was addressed by reference to S2.2. Again the gross floor exceedance was pointed out and described as ‘Fail x 11’.[221]
  3. [244]
    Ms Lockey did not address SO2 in her written submissions.
  4. [245]
    Ms Lockey addressed non-compliance with SO2 in her witness statement.[222] Non-compliance was asserted because the proposed Cabins exceed the maximum gross floor area of 100m2. Ms Lockey suggested that the size of the Cabins were comparable to, or greater than, an average three bedroom, two bathroom house.
  5. [246]
    These assertions do not establish non-compliance with SO2. They are erroneously founded upon the assumption that a departure from the Probable Solution is a measure of non-compliance with SO2. It is no such measure.
  6. [247]
    Specific outcome SO3 is in the following terms:

“Development does not adversely impact on—

  1. (a)
    the privacy and amenity of surrounding areas; and
  1. (b)
    existing Agriculture or Animal Husbandry uses in surrounding areas.”
  1. [248]
    Probable Solutions are stated for SO3, for development that is Code assessable. The Probable Solutions are as follows:

“S3.1 Development—

(a)  in the Tamborine Mountain Zone has a minimum setback of 10 metres from a property boundary; and

…

S3.2 Development involving 2 or more cabins or their equivalent does not overlook the living areas of adjoining premises.

S3.3 Development provides that illumination levels 1.5 metres outside the site do not exceed 8 lux.

S3.4 Development provides Aesthetic Landscaping and Screen Landscaping if any use area is located within 50 metres of a residence on an adjoining Lot.”

  1. [249]
    Ms Hay did not address SO3 in her witness statement or written submissions.
  2. [250]
    Ms Lockey did not address SO3 in her witness statement or written submissions.
  3. [251]
    The evidence establishes compliance with SO3.
  4. [252]
    I pause to observe that Ms Hay’s statement asserts non-compliance with Specific Outcome SO4 of the TCC.[223] This provision is not identified as an issue in the proceeding. SO4 is in the following terms:[224]

“Development complements the style, scale and character of existing uses in the street and surrounding local area and contributes positively to the Streetscape.”

  1. [253]
    Ms Hay’s statement asserts non-compliance with this provision on a limited basis. She said that Cabins 1, 2, 3 and 4 will appear as a contiguous block of four units when viewed from the west. The photomontage prepared for this view does not make good this assertion.[225] The photomontage is attached and marked ‘B’. It comfortably demonstrates the Cabins will not appear as a contiguous structure. They will be separate and distinct structures, softened by vegetation and recessive building colours.

Desired Environmental Outcomes

  1. [254]
    The co-respondents jointly allege non-compliance with two Desired Environmental Outcomes, namely s 2.1.3(2)(l) and 2.1.3(3)(b).
  2. [255]
    Section 2.1.3(2)(l) is in the following terms:[226]

“(2) Economic—Development —

…

(l)  is of a scale, form and intensity appropriate for the locality and is only developed at a greater scale, form or intensity where it can be demonstrated that there is both an overwhelming community need and an overwhelming economic need for the development; and”

  1. [256]
    For reasons already given, I am satisfied the proposed development is of a scale, form and intensity appropriate for the locality. It is unnecessary in the circumstances to consider whether the remainder of this provision is satisfied.
  2. [257]
    Section 2.1.3(3)(b) is in the following terms:[227]

“(3) Social—Development provides that—

…

  1. (b)
    adverse effects of natural or other hazards including flooding, bushfire, slope stability, contaminated sites and sites producing significant levels of emissions are minimised; and”
  1. [258]
    Having regard to the evidence of Mr Clowes, Mr King and Dr Johnson, I am satisfied conditions can be imposed to achieve compliance with this Desired Environmental Outcome.
  2. [259]
    Ms Hay did not directly address the Desired Environmental Outcomes in her written submissions.
  3. [260]
    Ms Hay dealt with s 2.1.3(3)(b) in her witness statement in the context of bushfire mitigation and minimisation.[228] She also addressed the issue of need, which I assumed to be directed towards s 2.1.3(2)(l). It was submitted the proposed development does not fulfill a local community need,[229] and the methodology adopted by the need experts to examine demand was ‘significantly flawed’.[230]
  4. [261]
    Ms Lockey did not address the Desired Environmental Outcomes in her written submissions.[231]
  5. [262]
    Ms Lockey addressed non-compliance with the Desired Environmental Outcomes in her statement. The statement asserts non-compliance with s 2.1.3(2)(l) and restates the provision, in part, in the negative.[232] She also asserted in this same context that there was no evidence of an overwhelming economic need to override the planning scheme.[233] With respect to s 2.1.3(3)(b), it was asserted that non-compliance arises because ‘there remain adverse effects pertaining to natural or other hazards such as bushfire...’[234].
  6. [263]
    I do not accept the matters asserted by Ms Hay or Ms Lockey establish non-compliance with the two Desired Environmental Outcomes set out above. The assertions, to the extent they relate to issues of scale, form, intensity, bushfire, landslip and emissions are contrary to the evidence I accept.

Strategic Framework

  1. [264]
    Non-compliance is alleged with five provisions of the Strategic Framework, namely ss 2.2.11(1), 2.2.11(2)(c), 2.2.11(3)(a) and (c), 2.2.11(6) and 2.2.11(11). All but one provision is pressed by both co-respondents. Only TMPA advances non-compliance with s 2.2.11(1).
  2. [265]
    At the outset, it can be observed that the alleged non-compliances with the Strategic Framework appear to have little influence on the assessment of the development against the planning scheme given s 2.2.2. This provision makes clear that the Strategic Framework does not have a direct role in the assessment of development under the planning scheme.[235] This provision was not confronted in any respect by TMPA or Ms Hay.
  3. [266]
    In any event, s 2.2.11 of the planning scheme forms part of the Strategic Framework. It contains local strategies for the Tambourine Mountain Zone. The provisions with which non-compliance is alleged are in the following terms:[236]

“2.2.11 Local Strategies for the Tamborine Mountain Zone

  1. (1)
    The scenic and environmental values of the Tamborine Mountain Zone are protected.
  1. (2)
    All development is—

… 

  1. (c)
    designed to enhance the character and amenity of the local area.
  1. (3)
    Development for tourism-related uses is—
  1. (a)
    consolidated in existing tourism clusters; and

…

  1. (c)
    designed and managed to protect and enhance the character, natural environmental values and amenity of the Tamborine Mountain Zone.

…

  1. (6)
    Buildings are located to preserve views and building height is controlled to preserve the landscape character of the Tamborine Mountain Zone.

…

  1. (11)
    Development in the Tamborine Mountain Zone is located, designed and managed to minimise the risk from severe bush fire hazard areas on Tamborine Mountain particularly the western slopes and escarpment.”
  1. [267]
    For reasons already given, I am satisfied compliance has been demonstrated with subsections 1, 2(c), 3(c) and 6.
  2. [268]
    With respect to subsection 3(a), read in isolation, one might be forgiven for thinking there is non-compliance with the planning scheme. The provision suggests tourism related uses, such as that proposed, are to be clustered with existing uses of a similar kind and nowhere else. To fix on this as being the intent of the planning scheme however requires subsection 3(b) of the same provision to be ignored. Read together, subsections 3(a) and (b) paint a different picture:

“(3) Development for tourism-related uses is—

  1. (a)
    consolidated in existing tourism clusters; and
  1. (b)
    dispersed within the rural residential and rural areas; and”

(emphasis added)

  1. [269]
    The above provision contemplates that tourism related uses may occur in one of two locations. The second is relevant to this case. The site is located in a precinct that has a rural residential character. The character and amenity of that precinct will be protected by the proposed development, as envisaged by subsection (c) of the same provision. Compliance is, as consequence, demonstrated with subsection (3) as a whole.
  2. [270]
    With respect to subsection (11), I accept Mr Clowes’ evidence. It establishes that conditions can be imposed to manage the risk of bush fire. It can also be observed that, for the purposes of subsection (11), the site is not located on the ‘western slopes’ or the ‘escarpment’. The site is located in the Escarpment Protection Precinct on the south-eastern extent of Tamborine Mountain.
  3. [271]
    Ms Hay did not address the Strategic Framework in her written submissions.
  4. [272]
    Ms Hay addressed the Strategic Framework in her witness statement. In particular it was addressed in the context of bushfire mitigation and minimisation.[237] I do not accept her submissions about this point. The submissions are contrary to the evidence of Mr Clowes.
  5. [273]
    Ms Lockey did not address the Strategic Framework in her written submissions.[238]
  6. [274]
    Ms Lockey addressed non-compliance with the above Strategic Framework provisions in her witness statement.  She suggested non-compliance arose with the Strategic Framework because the proposed development:
    1. (a)
      would not protect the scenic and environmental values of the Tamborine Mountain Zone, which are very low key and non-urban (s 2.2.11(1));
    2. (b)
      was not designed, nor of a scale and intensity, that would enhance the character of Tamborine Mountain (s 2.2.11(2));
    3. (c)
      would not enhance the low key character of the Tamborine Mountain Zone (s 2.2.11(3));
    4. (d)
      would not preserve the landscape (ss 2.2.11(3) and (6)); and
    5. (e)
      was not designed, nor managed, to minimise the risk of severe bushfire in circumstances where there is no provision for dedicated 10,000 litre water tanks for firefighting purposes (s 2.2.11(11)).
  7. [275]
    These assertions are contrary to the evidence I accept.

Is the proposed development an appropriate use of the site?

  1. [276]
    For reasons given above, the evidence establishes compliance with the planning scheme. This is in circumstances where the proposal is Consistent Development in the Zone and Precinct.
  2. [277]
    The proposed development, which complies with the planning scheme, is fairly regarded as an appropriate use of the site.
  3. [278]
    Ms Hay submitted the proposed development is not an appropriate use of the site. It was contended that an appropriate use would be one that has already been approved, namely a dwelling.[239] I reject this submission. It is inconsistent with the evidence. It also does not take into account that the proposed development complies with the planning scheme and is Consistent Development in the Zone and Precinct.
  4. [279]
    Ms Lockey’s statement asserts the proposed development is not an appropriate use of the site.[240] The reasons given for this were as follows:
    1. (a)
      the proposed development is not consistent with the amenity and character of the surrounding area;
    2. (b)
      the scale, bulk, built form and intensity of the proposal will have a different character to the built form of the area;
    3. (c)
      the proposed development will impose many adverse impacts on the amenity of residents and the character of the surrounding area; and
    4. (d)
      not all the ‘large adverse impacts can be mitigated by conditions’.
  5. [280]
    I reject these assertions. They are not supported by evidence. They are contrary to the evidence I accept. The assertions also fail to take into account that the proposed development complies with the planning scheme and is Consistent Development in the Zone and Precinct.

Would the proposed development result in unacceptable visual amenity impacts?

  1. [281]
    The evidence establishes the proposed development has a limited visual catchment. As a consequence, impacts on visual amenity are confined to a small number of properties. The analysis undertaken by Mr Curtis and Dr McGowan establishes that an approval, including conditions with respect to landscaping, will not give rise to unacceptable visual impacts.

Is the proposed development consistent with the amenity and character of the surrounding area?

  1. [282]
    For reasons given above, I am satisfied this question is also resolved in the affirmative.

Relevant matters favouring approval

  1. [283]
    The appellant’s primary case for approval assumes: (1) the proposed development complies, or can be conditioned to comply, with the planning scheme;[241] and (2) there are no planning reasons to justify refusal in circumstances where (1) is established.
  2. [284]
    In the alternative, the appellant contends there are a number of relevant matters that favour approval of the development in the event of non-compliance with the planning scheme. The matters can be identified as follows:[242]
    1. (a)
      the proposed development will provide an exceptional tourism facility that is short-term respite accommodation for people with disabilities in circumstances where accommodation of this kind is not available within the region;
    2. (b)
      it is in the public interest that tourism facilities providing short-term respite accommodation for people with disabilities is provided;
    3. (c)
      the design of the proposed development caters for people with disabilities;
    4. (d)
      the site has outstanding locational features for the type of development proposed;
    5. (e)
      the proposed development will have no unacceptable impacts;
    6. (f)
      there is a need for the proposed development;
    7. (g)
      any non-compliances with the planning scheme are not of a nature that call for refusal; and
    8. (h)
      the referral agency for the development application is supportive given it issued conditions to form part of a development approval, if granted.
  3. [285]
    Save for the word ‘exceptional’, I am satisfied subparagraph (a) has been established.
  4. [286]
    I am satisfied subparagraphs (b) and (c) have been established.
  5. [287]
    With respect to subparagraph (d), it is a broad assertion. It adds little to the exercise of the discretion and will be given no weight.
  6. [288]
    I am satisfied subparagraph (e) has been established.
  7. [289]
    The issue of need raised by subparagraph (f) is dealt with below. 
  8. [290]
    Subparagraph (g) does not arise for consideration. I have found the proposed development complies with the planning scheme.
  9. [291]
    I do not regard subparagraph (h), in this case, as being a matter of substance. It will be given no weight in the exercise of the discretion.
  10. [292]
    Overall, the matters favouring approval, save for subparagraphs (d) and (h), attract weight in the exercise of the discretion. They favour approval, but, in terms of weight, pale against a consideration that attracts very significant weight: compliance has been demonstrated with the planning scheme.

Need

  1. [293]
    The appellant and co-respondents disagree about whether a community and economic need has been demonstrated for the proposed development.
  2. [294]
    An examination of this issue starts from the position that the planning scheme recognises the importance of, and need for, short-term tourist accommodation on Tamborine Mountain. Provision is made for that use, in a town planning sense, through the zones and precincts. This is clear from the following provisions of the planning scheme, namely:
    1. (a)
      the following broad strategy for the planning scheme area:[243]

“The tourism potential of the Shire for short-stay and day visitors is protected by encouraging tourism activities in appropriate areas of the Shire in a manner that respects and enhances the Shire’s natural attributes, intrinsic rural character, existing tourist attractions and outdoor recreation facilities.” (emphasis added)

  1. (b)
    the following local strategy for Tamborine Mountain Zone:[244]

“Development for tourism related uses is…(b) dispersed within the rural residential and rural areas;…”

  1. (c)
    the Consistent Development Table for the Tamborine Mountain Zone, which provides that up to 20 Tourist Cabins are Consistent Development in the Escarpment Protection Precinct.
  1. [295]
    To assist with the question of need, I had the benefit of evidence from two economists; Mr Duane and Mr Brown. They prepared a joint report.[245] There are no points of disagreement recorded in the report.
  2. [296]
    It was agreed by Mr Duane and Mr Brown that tourism is a very important contributor to the economy of the Scenic Rim.[246] This was supported by published reports.[247] It was also supported by available research. The research indicated, inter alia, that for the year 2019 (pre-covid): (1) day trippers to Scenic Rim, totalling in excess of 1,200,000 visitors, came from Brisbane, the Gold Coast and the Sunshine Coast; (2) 369,000 visitors (83% of which were from Queensland) to the Scenic Rim stayed overnight, equating to a total of 909,000 nights of accommodation; and (3) 18,000 international visitors to the Scenic Rim stayed overnight, equating to 139,000 nights of accommodation.
  3. [297]
    Map 1 to the joint report identified existing tourist accommodation facilities on Tamborine Mountain.[248] An examination of the map, in conjunction with Table 1 of the same report, reveals there are 59 facilities providing 260 accommodation units/rooms. The type of accommodation varies from motels, apartments, bed and breakfast facilities and cottages.[249] Notably, only 9 of the facilities have full disability access. Two of the facilities have limited disability access to one room only.[250] In total, there is a supply of 40 units suitable for persons with a disability. This accommodation is, however, different to what is proposed.[251] The proposed development, if approved, would be conditioned to ensure it is SDA compliant short-term accommodation under the NDIS. It will service those members of the community who have high physical support needs and have access to NDIS funding.
  4. [298]
    The economists examined the demand for, and supply of, accommodation akin to that proposed. A study area was chosen. Unsurprisingly, it is representative of a one hour drive time from Tamborine Mountain.[252] This was an entirely reasonable approach given the substance of the research referred to in paragraph [296]. The research indicates that more than 80% of the domestic demand for overnight accommodation in the Scenic Rim was derived from Brisbane, the Gold Coast and the Sunshine Coast. The first two of these areas are within the one hour drive time selected by the economists.
  5. [299]
    The assessment carried out by Mr Duane and Mr Brown to determine the ‘demand and supply’ balance established the following:
    1. (a)
      there are about 22,000 NDIS participants in the study area that would be able to access the site;[253]
    2. (b)
      there is a large and growing population of persons with a disability in the study area;[254]
    3. (c)
      the number of NDIS participants in parts of the study area is projected to double over the next 10 years;[255]
    4. (d)
      as at June 2021, there were 178 SDA compliant dwelling units in the study area, not all of which are available for short-term accommodation;[256] and
    5. (e)
      there are a number of facilities (at least 70 units) that are approved and may be suitable for short-term SDA accommodation in the study area.[257]
  6. [300]
    Mr Duane and Mr Brown recorded that the NDIS will fund up to 28 days of short-term accommodation per year. Taking the NDIS participants currently in the study area, and assuming a demand of 28 days of short-term accommodation per year per participant, results in 614,700 nights of accommodation.[258] This far exceeds the current supply in the study area, which equates to approximately 36,500 nights of accommodation per year. Both of the experts accepted that not all demand for SDA would be fulfilled within the study area for NDIS participants – it is reasonable to assume there would be outflows and inflows. However, even allowing for this, it did not dissuade Mr Duane and Mr Brown from concluding that the difference between supply and demand indicates there is substantial and ongoing demand for accommodation of the kind proposed.[259] In this regard, they agreed[260]

“it is clear there is substantial and ongoing unmet demand for STA accommodation in the study area and significantly more facilities will be required to meet ongoing demand.”

  1. [301]
    I accept Mr Duane and Mr Brown’s evidence. It establishes there is currently a limited supply of short-term accommodation to meet the reasonable demands and requirements of people with disabilities. It bespeaks the existence of a need. The need exists today.
  2. [302]
    The proposed development can meet the identified need in circumstances where: (1) the adopted planning controls recognise that it is Consistent Development in the Zone and Precinct; and (2) an approval would not result in unacceptable impacts on local amenity or character. In such circumstances, it is not difficult to conclude there is considerable public interest in the proposed development being approved to meet the existing need.  This factor is supportive of approval.
  3. [303]
    I pause to observe that the support for approval must be qualified in this case. The economic evidence does not establish that the identified need has a nexus with the site.  This impacts on the weight that can be attributed to need in the exercise of the discretion.
  4. [304]
    The weight to be given to need in the exercise of the discretion is not fixed. It must be examined in the light of a range of considerations, including relevant context provided by the adopted planning controls. In all the circumstances here, I am satisfied that a need has been demonstrated; this factor favours approval and is entitled to weight. However, given the proposed development is Consistent Development in the Zone and Precinct and complies with the planning scheme, need is not a consideration that attracts significant weight. The point of greater significance in the exercise of the discretion is that compliance has been demonstrated with the planning scheme.

Relevant matters favouring refusal

  1. [305]
    The co-respondents contend the following matters, individually, or cumulatively, favour refusal, namely:[261]
    1. (a)
      the proposed development is an overdevelopment of the site, with a scale and intensity that is incompatible with the character and amenity of the area and the scenic values and constraints of the site;
    2. (b)
      the proposed development is inconsistent with reasonable community expectations for development in the area and on the site, as evidence by non-compliance with the planning scheme and the significant quantum of detailed community objections to the proposal;
    3. (c)
      there is no community, economic or planning need for the proposal that warrants the non-compliance with the planning scheme and the associated impacts of the development;
    4. (d)
      local infrastructure (to the extent called up by the alleged planning scheme non-compliances) in this location does not support a proposal for non-residential purposes in this location;
    5. (e)
      the proposed development significantly exceeds the gross floor area per cabin as prescribed by Probable Solution in the planning scheme; and
    6. (f)
      the expectations of the local community should be given significant weight.
  2. [306]
    The proposed development complies with the planning scheme. As a consequence, I do not accept the matters stated in subparagraphs (a), (b) and (d); the underlying assumption for subparagraph (c) has not been established; and subparagraph (e) is of no town planning consequence.
  3. [307]
    With respect to subparagraph (b), Ms Hay and Ms Lockey both drew attention to the fact that no submissions were made in support of approval.[262]  This is correct as a statement of fact. It is a relevant consideration in the exercise of the discretion.
  4. [308]
    With respect to subparagraph (f), I accept the proposed development is inconsistent with the community expectations articulated in the submissions and the statements of Ms Hay and Ms Lockey. This is deserving of weight in the exercise of the discretion. However, what is more important than number of submissions is the content of the submissions.[263] The content of the adverse submissions are not based on reasonable expectations, in my view. They also find little support in the technical evidence of the expert witnesses.  The submissions are deserving of little weight.
  5. [309]
    Ms Lockey submitted the proposed development was inconsistent with reasonable local community expectations.[264] This was also addressed in her statement. At paragraph 20, she said this was ‘evidenced by non-compliance with the planning scheme’ and should be given ‘significant weight’. At paragraph 18 of her statement she also said:

“Many features of this development do not align with community expectations for development at this site…The Tamborine Mountain community strongly supports its well established low key semi-rural character and relies on the planning scheme to protect this….”

  1. [310]
    This contention reflects what is stated in the adverse public submissions received during the public notification process. It will be taken into account in the exercise of the discretion. For reasons already given, it is a point that attracts little weight.

Exercise of the planning discretion

  1. [311]
    The proposed development complies with the planning scheme. This factor is entitled to very significant weight in the exercise of the discretion under s 60(3) of the PA.
  2. [312]
    As I observed in Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793, at [61], ‘one would need strong reasons for refusing an application, which on its face, was consistent with the adopted planning controls’.[265] The reasons that could be said to warrant refusal in the face of planning scheme compliance here are dealt with at paragraphs [305] to [310]. I am satisfied those ‘reasons’ ought not stand in the way of an approval. This is so even assuming the matters discussed in paragraphs [284] to [292] are put to one side to the extent they are not reflected in the assessment against the planning scheme.
  3. [313]
    The proposed development is a meritorious proposal. It: (1) will have no unacceptable impacts on amenity and character; (2) complies with the planning scheme; and (3) will provide appropriate, and modern tourist accommodation, for a part of the community that are not well catered for on Tamborine Mountain. The case for approval is compelling.
  4. [314]
    The matters that could be said to favour refusal are underwhelming. They are deserving of little weight and, even adopting the most generous view, are devoid of town planning merit. They should not stand in the way of an approval. 
  5. [315]
    In my view, the refusal cases advanced on behalf of Ms Hay and TMPA were so devoid of merit to be groundless and vexing. This was particularly troubling given TMPA, and Ms Lockey, are experienced litigants in this Court. It is not unreasonable, in my view, to expect experienced litigants to be aware of the implied undertaking they give to the Court and other parties under s 10(2) of the Planning & Environment Court Act 2016. Nor is it unreasonable to expect that an entity such as TMPA would appreciate the difference between Specific Outcomes and Probable Solutions in a planning scheme it has sought to uphold in this Court over many years.[266]
  6. [316]
    Reaching a conclusion that the refusal cases were devoid of merit and, in turn, groundless and vexing is inevitable once it is appreciated that the co-respondents agitated for refusal in the following circumstances:
    1. (a)
      they did not call expert evidence in support of their respective cases;
    2. (b)
      they did not cross-examine any witness in the appeal, including experts expressing views that were directly at odds with their refusal cases;
    3. (c)
      they alleged, and pressed, non-compliance with provisions of the planning scheme that have no application to the site or proposed development;
    4. (d)
      they maintained non-compliance with many provisions of the planning scheme on the footing that quantitative measures prescribed by Probable Solutions were exceeded, in circumstances where:
      1. the Probable Solutions relied upon do not expressly apply to Impact assessable development; and
      2. the planning scheme, properly construed, does not suggest that compliance with the TMZC and TCC codes require compliance be demonstrated with Probable Solutions in any event;
    5. (e)
      written submissions prepared on behalf of TMPA were one page and did not address each provision of the planning scheme with which non-compliance was alleged;
    6. (f)
      TMPA, through Ms Lockey, led evidence that asserted non-compliance with provisions of the planning scheme that were not identified in the list of issues; and
    7. (g)
      Ms Hay did not establish how, and in what way, she would be adversely impacted by the development if approved – her interest in the development was not the subject of evidence.
  7. [317]
    The decision by TMPA and Ms Hay to persist with their refusal cases resulted in a waste of public and private resources. The public resources to which I refer include the resources of the Court.
  8. [318]
    I am comfortably satisfied the appellant has discharged its onus. 

Disposition of the appeal

  1. [319]
    The superseded planning scheme application will be approved in due course, subject to conditions.
  2. [320]
    The appeal is listed for review on 13 October 2022.

A

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council [2022] QPEC 39

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council [2022] QPEC 39

B

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council [2022] QPEC 39

Footnotes

[1]  Ex.33, Appendix A.

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

[3]  Ex.22, p. 924.

[4]  Ex.22, Table 3.7.7, p. 419.

[5] Harris v Scenic Rim Regional Council (2014) 201 LGERA 12, [218]; cf Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311, 313 Line C.

[6]  Ex.1, p. 668.

[7]  Ex.34, para 8a and Ex.37, para 3(e).

[8]  Ex.37, para 18.

[9]  Ex.26 and Ex.33, para 12.

[10]  Ex.1, p. 7; T2-13, L2-7.

[11]  Ex.40.

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

[13]  Messrs Mewing, Curtis, Healey, Duane, Moffitt, King, Clowes, Petersen, Lenny and Dr Johnson.

[14]  Messrs Ovenden, Trevilyan, Brown, Tolliday and Dr McGowan.

[15]  Ex. 30 and 31.

[16]  Both statements were the subject of objection (Ex.27). The objections are technical and not without merit. I have however assumed the statements are admissible. They express the opinions of Ms Hay and Ms Lockey in the same way as opinions are expressed in submissions received during the public notification process. The issue is what weight, if any, should be given to the opinions expressed in those statements about the merits of the development application.

[17]  Ex.7, Figures 3 to 5.

[18]  Ex.1, p. 1.

[19]  Ex.1, p. 1.

[20]  Ex.1, p. 4 and Ex.9, p. 13.

[21]  Ex.1, p. 605 and Ex.3, p. 7, paras 21-23.

[22]  Ex.3, para 12.

[23]  Ex.3, para 12.

[24]  Ex.4, p. 2, para 18.

[25]  Ex.11, para 32.

[26]  Ex.7, Figures 10 to 13.

[27]  Ex.4, p. 3; 5.5 to 6 metres wide.

[28]  The traffic engineers agreed the road has a ‘rural cross-section’: Ex.4, p. 3, para 19.

[29]  Ex.3, para 104(a) and (b).

[30]  Ex.7, para 78.

[31]  Ex.2, p. 126, Item 9.

[32]  Ex.3, para 30.

[33]  Ex.7, para 35.

[34]  Ex.7, para 78(c).

[35]  Ex.7, Figure 9.

[36]  Ex.3, para 104(g).

[37]  Ex.7, para 78.

[38]  Ex.7, Figure 13.

[39]  Ex.7, Figure 5.

[40]  Ex.7, Figures 6-8.

[41]  Ex.7, Figures 6 and 7.

[42]  Ex.7, Figure 17.

[43]  Ex.7, Figure 19.

[44]  Ex.7, s 2.1.3.

[45]  Ex.11, para 19.

[46]  Ex.7, para 24.

[47]  Contained in exhibit 2. See also Ex.12, Figure 2.

[48]  Ex.9, para 25i.

[49]  Ex.9, para 14.

[50]  Ex.9. paras 19-23 and para 25ii.

[51]  Ex.2, p. 3.

[52]  Ex.2, pp. 12-14.

[53]  Ex.7, p. 28.

[54]  In metres above Natural Ground Level.

[55]  Ex.2, p. 20.

[56]  Ex.2, p. 24.

[57]  Ex.2, p. 25.

[58]  Ex.2, p. 26.

[59]  Ex.2, p. 32.

[60]  Ex.2, p. 36.

[61]  Ex.2, p. 41.

[62]  Ex.2, p. 49.

[63]  Ex.2, p. 57.

[64]  Ex.2, p. 62.

[65]  Ex.2, p. 66.

[66]  For example, Ex.3, para 28(a) and Ex.36, para 2.3.

[67]  The references were helpfully identified by Mr Batty and Ms Bowness in the closing submissions (Ex.33) at paragraphs 21-23 and Annexure A.

[68]  Ex.5, para 60.

[69]  Ex.18, para11.

[70]  Ex.18, para 11 and Ex.5, para 62.

[71]  Ex.21, para 11.

[72]  Ex.20, para 15-18.

[73]  Ex.3, p. 10.

[74]  Ex.33, para 12.

[75]  Including further landscaping suggested by Dr McGowan in his separate statement, marked exhibit 29.

[76]  Ex.16, 3.4(v) and para 10(c)

[77]  Ex.15.

[78]  In accordance with the recommendations of Dr Johnson, identified in Ex.8.

[79]  Ex.12, p. 7.

[80]  Ex.11, para 37-38 and Ex.12, paras 24-25.

[81]  Ex.11, para 30 and Ex12, para 18.

[82]  Ex.11, paras 47 and 53 and Ex.12, para 26.

[83]  Ex.19, para 29.

[84]  Ex.2, p. 3.

[85] Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987, per Henry J at [59].

[86] Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2021] QPELR 1321.

[87]  It was uncontroversial that Council had agreed on 30 April 2020 to a request made under s 29(4)(a) of PA to accept, assess and decide the development application before the Court as a superseded planning scheme application; Ex. 3, p. 7, para 24.

[88]  Ex.22.

[89]  Ex.22, p. 23, s 1.1.3.

[90]  Ex.22, p. 26, s 1.2.1.

[91]  Ex.22, p. 52, s 2.2.1.

[92]  Ex.22, p. 52.

[93]  Ex.22, pp. 27-29.

[94]  Ex.22, p. 420, Part 7, Division 4.

[95]  Ex.22, p. 421; Part 7, Division 4, Subdivision 2.

[96]  Ex.22, p. 456, Part 7, Division 4, Subdivision 10.

[97]  Ex.22, p. 420.

[98]  Ex.37, para 37.

[99]  The same point can also be made in relation to the Tourist Cabin Code.

[100]  Ex.22, p. 415 and onwards.

[101]  Ex.22, p. 924.

[102]  Ex.22, p. 419.

[103]  Ex.22, p. 643.

[104]  Ex.22, p. 643, s 5.2.1(c).

[105]  Ex.22, p. 749.

[106]  Ex.1, Part 3, Tab 9.

[107]  Ex.3, para 36.

[108]  Ex.33, para 41.

[109]  Ex.1, p. 195-196, 221, 240, 259, 271, 301, 327, 365-366, 382, 388, 390, 392, 394, 413, 416-417, 422, 436, 440-441, 446-448, 460, 470, 472, 473 and 562.

[110]  Ex.1, p. 288.

[111]  Ex.1, p. 293, 327, 375, 443

[112]  Ex.1, p. 314 and 317.

[113]  Ex.1, 396-400.

[114]  Ex.1, p. 415.

[115]  Ex.462-480.

[116]  T2-49, L36 to T2-50, L2.

[117]  Consistent with the reasons in Harris (Supra).

[118]  Ex.22, p. 23, s 1.1.3(d).

[119]  s 1.2.1.

[120]  s 3. 

[121]  Ex.22, p. 35, s 1.2.13(2).

[122]  Ex.22, p. 420

[123]  Ex.22, p. 643.

[124]  They will apply to, inter alia, Tourist Cabins that are Code assessable. Such an application is anticipated in the Park Living Precinct of the Zone and on land identified in the Assessment table by real property description (Ex.22, p. 409).

[125]  Ex.22, p. 48, s 2.1.3(2)(l).

[126]  Ex.33, pp. 10-11.

[127] Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221, [14].

[128]  Ex.22, p. 456.

[129]  Ex.9, pp. 47 to 49.

[130]  Ex.9, para 22.

[131]  Ex.7, Figure 24.

[132]  Ex.22, p. 602, SO30-SO32.

[133]  Ex.3, para 104(g).

[134]  Ex.3, para 106(d).

[135]  Ex.39.

[136]  Ex.31.

[137]  Ex.38.

[138]  Ex.30, p. 7.

[139]  Ex.22, p. 457.

[140]  Ex.39.

[141]  Ex.31.

[142]  Ex.38.

[143]  Ex.30, p. 8.

[144]  Ex.22, p. 457.

[145]  Ex.2, p. 66.

[146]  Ex.2, p. 75.

[147]  Ex.7,pp. 16-19 and 22-23.

[148]  Ex.7, p. 19.

[149]  Ex.7, pp. 13, 15 and 22.

[150]  Ex.39.

[151]  Ex.31.

[152]  Ex.38.

[153]  Ex.30, p. 8.

[154]  Ex.30, p. 8.

[155]  Ex.39.

[156]  Ex.38.

[157]  Ex.22, p. 421.

[158]  Ex.31, p. 28.

[159]  Ex.30, p. 6.

[160]  Ex.22, p. 421.

[161]  Ex.31, p. 21.

[162]  Ex.31, p. 25.

[163]  Ex.31, p. 28.

[164]  Ex.30, p. 7.

[165]  Ex.22, p. 423.

[166]  Ex.31, p. 28.

[167]  Ex.17, p. 3.

[168]  Ex.17, p. 3.

[169]  Ex.5, p. 16, para 55.

[170]  See Specific Outcome SO80 of the Construction and Infrastructure Code (Ex.23, p. 823) and Table 1.5E to Planning Scheme Policy 7 (Ex.23, pp. 1268-1269).

[171]  Ex.22, p. 424.

[172]  Ex.30, p. 7.

[173]  Ex.22, p. 425.

[174]  Ex.31, p. 28.

[175]  Ex.30, pp. 6-7.

[176]  Ex.22, p. 426.

[177]  Ex.31, p. 29.

[178]  Ex.30, p. 5.

[179]  Ex.22, p. 429.

[180]  Ex.22, p. 429.

[181]  Ex.30, p. 29 and Ex.39, p. 4.

[182]  Ex.15 and Ex.7, Figure 24.

[183]  Ex.2, pp. 91 to 96.

[184]  Ex.30, p. 5.

[185]  Ex.22, p. 430.

[186]  Confirmed by Figure 1.2E in the planning scheme (Ex.22, p. 932).

[187]  Ex.22, p. 430.

[188]  Ex.30, p. 5 and Ex.31, p. 5-6 and 29.

[189]  Ex.39, p. 5.

[190]  Ex.22, p. 430.

[191]  Ex.30, p. 5 and Ex.31, p. 29.

[192]  Ex.22, p. 434.

[193]  Ex.22, p. 434.

[194]  Ex.31, p. 6.

[195]  Ex.39, p. 5.

[196]  Ex.22, p. 438.

[197]  Ex.30, p. 6.

[198]  Ex.39, p. 3, para 12.

[199]  Ex.22, p. 924.

[200]  Ex.39, p. 3, para 12.

[201]  Ex.22, p. 439.

[202]  Ex.31, p. 30.

[203]  Ex.30, pp. 5-6.

[204]  Ex.30, p. 5.

[205]  Ex.30, p. 5.

[206]  Ex.30, p. 6.

[207]  Ex.22, p. 749, s 5.2.96.

[208]  Ex.1, p. 7, para 4(d)(i).

[209]  Ex.31, para 28.

[210]  Ex.39, pp. 3-4.

[211]  Ex.31, para 28.

[212]  Ex.38.

[213]  Ex.30, p. 8.

[214]  Ex.35, pp. 2-3.

[215]  Ex.31, p. 9

[216]  Ex.39, p. 4.

[217]  Ex.39, p. 4.

[218]  Ex.38.

[219]  Ex.30, p. 8.

[220]  Ex.31, p. 10.

[221]  Ex.39, p. 4.

[222]  Ex.30, p. 8.

[223]  Ex.31, p. 10.

[224]  Ex.22, p. 750.

[225]  Ex.15.

[226]  Ex.22, p. 48.

[227]  Ex.22, p. 51.

[228]  Ex.31, pp. 20-21.

[229]  Ex.31, p. 30, para 67.

[230]  Ex.31, p. 31, para 72.

[231]  Ex.38.

[232]  Ex.30, p. 4 and p. 10.

[233]  An analogous submission was made in Ex.38. Ms Lockey submitted that ‘no evidence of an overwhelming or economic need has been produced to support development at this site’.

[234]  Ex.30, p. 5.

[235]  Ex.22, p. 52.

[236]  Ex.22, pp. 57- 58.

[237]  Ex.31, p. 21.

[238]  Ex.38.

[239]  Ex.39, p. 1, para 1.

[240]  Ex.30, para 20.

[241]  Ex.1, p. 7, para 5(a).

[242]  Ex.1, p.. 7, para (5)(b) – (i)

[243]  Ex.22, p. 53, s 2.2.5(10).

[244]  Ex.22, p. 57, s 2.2.11(3).

[245]  Ex.6,

[246]  Ex.6, para 33.

[247]  Ex.6, para 35 and 36.

[248]  Ex.6, para 37 and p. 15.

[249]  Ex.6, para 38.

[250]  Ex.6, para 39.

[251]  Ex.6, para 39.

[252]  Ex.6, para 40.

[253]  Ex.6, para 41.

[254]  Ex.6, para 46.

[255]  Ex.6, para 42.

[256]  Ex.6, para 57.

[257]  Ex.6, paras 59 and 60.

[258]  Ex.6, para 61.

[259]  Ex.6, para 66.

[260]  Ex.6, para 64.

[261]  Ex.1, p. 8, para 6.

[262]  Ex.39, p. 1, para 2, Ex.30, p. 11 and Ex.38.

[263] Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750, [34] citing Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPELR 675, [14].

[264]  Ex.38.

[265]  Citing Mackay v Brisbane City Council [1992] QPLR 65 at 67.

[266]  For example, Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPELR 750, [6] & [54]; Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711, [30]; Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPELR 139, [17]-[19]. 

Close

Editorial Notes

  • Published Case Name:

    SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors

  • Shortened Case Name:

    SDA Property Nominees Pty Ltd v Scenic Rim Regional Council

  • MNC:

    [2022] QPEC 39

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    06 Oct 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
2 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Bell v Noosa Shire Council (1983) QPLR 311
2 citations
Jump To
Cite 1 - (1983) QPLR 311
Cite 2 - (1983) QPLR 311
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221
2 citations
Jump To
Cite 1 - [2019] QPELR 221
Cite 2 - [2019] QPELR 221
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750
3 citations
Jump To
Cite 1 - [2010] QPELR 750
Cite 2 - [2010] QPELR 750
Cite 3 - [2010] QPELR 750
Gillion Pty Ltd v Scenic Rim Regional Council & Ors (2013) QPELR 711
2 citations
Jump To
Cite 1 - (2013) QPELR 711
Cite 2 - (2013) QPELR 711
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPELR 139
2 citations
Jump To
Cite 1 - [2019] QPELR 139
Cite 2 - [2019] QPELR 139
Harris v Scenic Rim Regional Council (2014) 201 LGERA 12
2 citations
Jump To
Cite 1 - (2014) 201 LGERA 12
Cite 2 - (2014) 201 LGERA 12
Mackay v Brisbane City Council (1992) Q.P.L.R. 65
2 citations
Jump To
Cite 1 - (1992) Q.P.L.R. 65
Cite 2 - (1992) Q.P.L.R. 65
Main Beach Progress Association Incorporated & Ors v Gold Coast City Council & JJ Foundation Pty Ltd (2008) QPELR 675
2 citations
Jump To
Cite 1 - (2008) QPELR 675
Cite 2 - (2008) QPELR 675
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321

Cases Citing

Case NameFull CitationFrequency
Gillespie v Scenic Rim Regional Council [2023] QPEC 221 citation
Jezreel Pty Ltd v Brisbane City Council [2023] QPEC 72 citations
SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No. 2) [2022] QPEC 512 citations
1

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