Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2023
  4. Harbour Island Pty Ltd v Gold Coast City Council - [2023] QPEC 29

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

Harbour Island Pty Ltd v Gold Coast City Council[2023] QPEC 29

Harbour Island Pty Ltd v Gold Coast City Council[2023] QPEC 29

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Harbour Island Pty Ltd v Gold Coast City Council & Anor [2023] QPEC 29

PARTIES:

HARBOUR ISLAND PTY LTD

(appellant)

v

GOLD COAST CITY COUNCIL

(respondent)

and

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS

(co-respondent)

FILE NO:

3176/21

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

19 June 2023

DELIVERED AT:

Brisbane

HEARING DATES:

4-11 May 2023

JUDGE:

Kent KC, DCJ

ORDER:

The appeal is adjourned to a date to be fixed for review to enable the parties to consider appropriate conditions of approval

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where submitters appeal against Council’s decision to approve a development application for a marine industry development – whether proposed development complies with relevant assessment benchmarks – whether there are sufficient controls to allow the respondent to appropriately regulate future planning and use issues – where the respondents refusal largely centres on the fact that the proposed land is flood affected – whether the proposed development should be approved in the exercise of the Court’s discretion

LEGISLATION:

Planning Act 2016 ss 5, 29, 45, 60, 61

Planning and Environment Court Act 2016 ss 43, 45, 46.

Sustainable Planning Act 2009 ss 241, 242, 315, 316, 317.

State Development and Public Works Organisation Act 1971

CASES:

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

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

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

Indooroopilly Gold Club v BCC (1982) QPLR 13

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

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

Lake Maroona Pty Ltd v Gladstone Regional Council (2017) 224 LGERA 166

Lipoma Pty Ltd & Ors v Redland City Council & Anor [2020] QPELR 148

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31

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

COUNSEL:

C Hughes KC with B Rix and M Batty for the appellants

R Litster KC with K Wylie for the respondent

K Buckley for the co-respondent

SOLICITORS:

MinterEllison Gold Coast for the appellant

HopgoodGanim Lawyers for the respondent

Norton Rose Fulbright for the co-respondent.

Introduction

  1. [1]
    This is an appeal against the respondent’s refusal of a development application for a preliminary approval pursuant to s 242 of the Sustainable Planning Act 2009. According to the statutory scheme, preliminary approval approves development but does not authorise assessable development to take place (s 241). If the preliminary approval is approved, it may do a number of things including identify or include codes for the development (s 242(3)). The application the subject of the appeal is to vary the effect of the “Our Living City” Gold Coast Planning Scheme 2003 Version 1.2 amended November 2011 (superseded planning scheme) in accordance with the Gold Coast International Marine Precinct (GCIMP) development code and for a material change of use for marine industry, mixed use and open space on land situated at 2, 54 and 110 Shipper Drive, Coomera and described as Lot 108 on DB6404, Lot 98 on SP150731 and Lot 146 on SP150731.
  2. [2]
    The appeal is resisted by the respondents.  Issues in the appeal included regional and local planning considerations; economic and community need; flooding; traffic and other relevant matters relevant to the planning discretion as to approval of the Plan of Development which supplants the relevant effect of the superseded planning scheme including the Coomera Local Area Plan[1] for a proposed currency period of 20 years. Helpfully, towards the end of the hearing the traffic issue was resolved to the extent that it no longer represents a reason for refusal.
  3. [3]
    The development application was refused on 1 December 2021 and this appeal followed. The hearing proceeded between the fourth and eleventh of May 2023.

The site and the surrounding area

  1. [4]
    The land comprises 61.98 hectares with a frontage to the Coomera River.  It is bounded to the south by other developed sites within the GCIMP which have been developed in various stages under various planning schemes, but broadly similar at least in theme to the proposal, that is, waterfront marine industry, centrally boatbuilding including a marina with associated and ancillary uses. A witness for the appellant, Mr Barry-Cotter, has been involved in the industry in the area, and a number of relevant businesses, since 2002; his evidence includes an overview of the development of businesses in the precinct over that time and the issues relating thereto. A feature of the Precinct and the planning themes underpinning it is that there is limited land available for development with the essential property of navigable water frontage; concomitant with that feature is that normally for such sites one relevant planning consideration will be flooding, amongst others.
  2. [5]
    It is also relevant that the site is bisected by the reserve for the Coomera Connector, a highway extension from the M1 to Brisbane. This is under construction. It produces a result that the proposal has four precincts; Precinct 1, the western precinct, is to be connected to the rest of the development by an interconnecting road (itself a bridge) which traverses under the planned elevated Coomera Connector. The interconnecting road is important (as the appellant argues) for internal traffic within the development without use of the external road network, and it also provides flood free access and egress in a 1% AEP or “Q100” event. Flood emergency management and evacuation on the site are dealt with in agreed plans and strategies[2] (although as set out below, external flooding impacts are contentious). Precinct 1 thus has a less direct connection to the planned marina on the land, and the immediate waterfront industries. It is approximately 46.1% of the developable area.
  3. [6]
    The eastern precinct (Precinct 2) is 1.8 ha, adjacent to the river and fronting the proposed internal marina. It is around 6.4% of the area and is to be for an integrated and interactive built form incorporating land uses of a marine, commercial and leisure nature supporting marine industry.
  4. [7]
    The southern precinct (Precinct 3) which is 13.4 hectares lies east of the Coomera Connector corridor, fronting onto the internal marina. It is 47.5% of the developable area and is to be developed for Waterfront Industry and associated industries and other associated uses which benefit from direct or close access provided to the Coomera River via the internal marina.[3]
  5. [8]
    The natural conservation / open space precinct (Precinct 4) is 28.4 hectares and is intended to conserve the natural vegetation and environmental qualities of Oaky Creek along the northern and western boundary of the subject site.

The course of the application

  1. [9]
    The proposed development had its genesis in a “significant project” declaration by gazette notice on 7 July 2011 pursuant to the State Development and Public Works Organisation Act 1971 which resulted in an environmental impact statement (EIS) being prepared.  This in turn had an impact on the way which the development application was progressed through the Council and relevant State entities.
  2. [10]
    As the appeal was commenced in December 2021 during the currency of the Planning Act 2016 (PA) the appeal is governed by Pt 5 of the Planning and Environment Court Act 2016 (PECA), being a “planning act appeal”.
  3. [11]
    The development application in question is a superseded planning scheme application and therefore considerations include:
    1. (i)
      The legal assessment framework; see ss 45, 60 and 61 of the PA;
    2. (ii)
      The assessment against the Council’s 2003 planning scheme (“the Planning Scheme”) and certain State assessment benchmarks.  Subsequent planning controls are not relevant to the present appeal; see s 46(6) PECA.
  4. [12]
    The application is to be assessed against the superseded scheme.[4]  The result is that pursuant to s 29(9)(b) of the PA:

“…  the assessment manager (here, the Court) 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. [13]
    Further, pursuant to s 46(6) PECA:

“(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. [14]
    Thus, assessment is to be conducted against the 2003 planning scheme and not against any later scheme which has come into effect.
  2. [15]
    As is conventional, the appellant bears the onus in the appeal[5] and the appeal proceeds by way of hearing anew.[6]

The Legal Assessment Framework

  1. [16]
    In this case, the applicant applies for:
  1. (a)
    a preliminary approval for a material change of use for mixed use development (with the uses being those set out in the Section 7.0 MCU Tables of Assessment set out in the proposed Gold Coast International Marine Precinct Plan of Development & Place Code (GCIMP PoD and Code)); and
  1. (b)
    a variation approval to vary the effect of the Scheme by requiring future development applications to be assessed against the superseded Scheme, with the GCIMP PoD and Code replacing the Coomera LAP (including the Coomera LAP Place Code);[7] a “variation request” as defined in the PA.
  1. [17]
    Because some of the uses set out in Section 7 of the GCIMP PoD and Code required impact assessment under the Scheme, the part of the application seeking a preliminary approval for material change of use was subject to impact assessment. The part of the application seeking to vary the effect of the planning scheme is not subject to code or impact code assessment and is instead assessed pursuant to s. 61 of the PA.
  2. [18]
    This provides relevantly
  1. “61
    Assessing and deciding variation requests
  1. (1)
    This section applies to a part of a properly made application that is a variation request.
  1. (2)
    When assessing the variation request, the assessment manager must consider—
  1. (a)
    the result of the assessment of that part of the development application that is not the variation request; and
  1. (b)
    the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied; and
  1. (c)
    the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and
  1. (d)
    any other matter prescribed by regulation.
  1. (3)
    The assessment manager must decide—
  1. (a)
    to approve—
  1. (i)
    all or some of the variations sought; or
  1. (ii)
    different variations from those sought; or
  1. (b)
    to refuse the variations sought.”
  1. [19]
    As to consistency with the rest of the local planning instrument (s 61(2)(b)), this has been concluded (after careful analysis) to involve

“…whether the approved development is compatible with, in the sense of being capable of existing in harmony with, current laws and policies. This may well be a more flexible concept than the concept of whether the development conflicts with the planning scheme, the consideration required in the primary assessment phase. Development may still be compatible, even if at variance with some aspect of the planning scheme.”[8]

  1. [20]
    The respondent argues, and I accept, that logically the first consideration is the result of the non-variation part of the application under s 60(3) of the PA:
  1. “(3)
    To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—
  1. (a)
    to approve all or part of the application; or
  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application.”
  1. [21]
    This calls up s 45 of the PA:
  1. “45
    Categories of assessment
  1. (1)
    There are 2 categories of assessment for assessable development, namely code and impact assessment.

…

  1. (5)
    An impact assessment is an assessment that—
  1. (a)
    must be carried out—
  1. (i)
    against the assessment benchmarks in a categorising instrument for the development; and
  1. (ii)
    having regard to any matters prescribed by regulation for this subparagraph; and
  1. (b)
    may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.”
  1. [22]
    As to the exercise of the discretion under s 60(3), Mullins JA said in Abeleda & Anor v Brisbane City Council & Anor[9]:
  1. “[42]
    …The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.”
  1. “[43]
    …The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances…”

The decision called for under ss 45 and 60 is a broad, evaluative judgement.[10]

  1. [23]
    The Council argues the s 60(3) exercise here should be concluded against the appellant, saying approval is sought for uses without the required nexus with the required intention for Coomera LAP Precinct 3 – Marine Industry and there is not sufficient commitment to uses with such a nexus; thus the required consistency with the superseded scheme is not demonstrated. Further there is an unacceptable level of loss of flood plain storage.
  2. [24]
    Then as to the s 61 assessment, the Council submits refusal of the proposed variations is appropriate, particularly as to potential for uses without the required nexus to marine industry. The proposed variations are said to be inconsistent with the higher order outcomes sought to be achieved by the planning scheme and would impact on future potential submitters’ rights.[11]

The Issues in dispute

  1. [25]
    The parties have agreed upon an Issues in Dispute document,[12] with the deletion of traffic as a reason for refusal. The issues for consideration are:
  1. (a)
    Land use and development generally;
  1. (b)
    Need;
  1. (c)
    Flooding (limited, in a practical sense, to consideration of external impacts only);
  1. (d)
    Other relevant matters.
  1. (a)
    Land Use and Development Generally
  1. [26]
    The appellant argues that the development is consistent with what the Planning Scheme requires. It points to the agreement as between the town planners that:
    1. (a)
      “In principle, the proposed development, insofar as it facilitates waterfront and marine industry development, is consistent with the Regional Plan, the (2003) Planning Scheme and the current planning scheme”.[13]

Further, the comments of Ms Roughan (the Council’s town planning expert):

  1. (i)
    “the planning intention that this area continues to develop and expand as a limited opportunity for waterfront industries with… that industry focus”.[14] Moreover “from a planning viewpoint it’s – it’s a really significant and important precinct in order to facilitate what – what is an important area of economic potential within the Gold Coast, and it – it’s limited in nature, and therefore it’s particularly – has a particular importance”;[15]
  1. (ii)
    Whilst she still had other concerns, she was “comfortable that [the proposed development] does support waterfront industries”;[16]
  1. (b)
    “The threshold issues in this appeal relate to flooding and traffic engineering, rather than town planning”.[17]
  1. [27]
    Traffic is no longer a reason for refusal and flooding is submitted to not be a matter that ultimately warrants refusal either, under the Planning Scheme’s assessment benchmarks. In that context the planning and need evidence is argued to be strongly in support of approval.

Is there unacceptable uncertainty?

Council Town Planner Ms Roughan’s evidence

  1. [28]
    The Council’s concerns are as to what might actually be delivered on the land if the proposed development is approved and the lack of proper controls thereof. It refers to Ms Roughan’s evidence explaining, by way of some examples, why the proposed GCIMP is more accommodating to non-marine industry uses, in the first JER:
  1. “120.
    Some key differences between development that is code assessable or self-assessable /accepted subject to requirements under the GCIMP Code and that under the planning schemes are set out in Attachment D prepared by Ms Roughan.
  1. 121.
    In summary:
  1. (a)
    Assessment levels under the GCIMP Code are considerably more lenient for general purpose warehouses, outdoor storage and even self-storage facilities. The 2003 and 2016 schemes tie lower levels of assessment to these activities having a direct relationship to marine industry and otherwise make them impact assessable.
  1. (b)
    Shops, offices, showrooms and food and drink outlets more constrained under the planning schemes. GFA thresholds and other limitations for code assessable development are more generous under the GCIMP Code and restaurants in precinct 2 are not subject to any limits.
  1. (c)
    Where the 2016 scheme makes development accepted subject to requirements, it typically does so when it would not involve building work or makes development subject to a wider range of code provisions compared to the GCIMP Code.”
  1. [29]
    She went on to identify the significance of adding uses to the GCIMP PoD and Code precinct Tables of Assessment that were not nominated in the Coomera LAP Code Precinct 3 table of assessment, and the increased encouragement for those uses in the following way:
  1. “122.
    She says that is also important to understand the construction of the 2003 scheme tables of assessment which is taken up in the GCIMP Code. In particular, uses actually listed as impact assessable – as distinct from those that are not listed – are to be taken to be appropriate subject to meeting assessment criteria. In other words, they are given a higher level of support. Part 6 Division 1 Chapter 2 section 7.6.1 says:
  1. 7.6
    Default Assessment Categories for the Table of Development
  1. 7.6.1
    Material Change of Use

All uses included in Section A of the Table of Development, may be considered as appropriate for the LAP or LAP precinct to which the Table of Development applies, subject to each use meeting the relevant assessment criteria.

Any use, not listed in Section A of the Table of Development, should be considered undesirable or inappropriate in the LAP or LAP precinct to which the Table of Development applies.”

  1. [30]
    Following a series of ongoing variations to the GCIMP Code, noting that historic versions of the code were considered by the experts in each of their three joint reports, Ms Roughan expressed her concerns about the version of the code currently before the Court in her individual statement[18] as follows:
  1. “1.
    Marine industry and marinas are location-dependent activities for which there are limited locations available. It is for this reason that these precincts are of city wide and regional significance and should be protected for their primary purpose. This is a planning principle that applies to all industrial land, but is especially important for specialised and location specific precincts.
  1. 2.
    The preliminary approval provides no certainty in what is being approved. It does not provide any commitment to key components or an overall mix of uses (such as the marina or a particular amount of marine industry). Rather, it potentially permits a wide range of activities which, if developed in combination, would be inconsistent with the intent for the Coomera marine precinct expressed in the superseded 2003 planning scheme, including the Coomera Local Plan (section 5.3) and the intentions expressed in the marine industry land use theme (Part 3 Planning strategy, division 3 land use themes chapter 9).
  1. 3.
    In the absence of consistent and clearly expressed tests that ensure the primacy of marine related activities, the flexibility that is offered creates a risk that an important and limited land resource is lost to, or diminished by, uses that could go (and are planned for) elsewhere. Without appropriate limitations, showroom, retail and office uses could undermine nearby centres and tourism and entertainment uses could introduce reverse amenity issues for nearby industries.”
  1. [31]
    Ms Roughan was examined on this issue (i.e. lack of certainty of use)[19] and expressed, as I understood it, concerns that the proposal including Performance Criteria (PC)6 didn’t adequately or consistently reflect the precinct intent; it could be clearer but could be redrafted for better clarity; if the wording was changed from uses that “be” the marine industry rather than “involve” the marine industry that would be better, but was concerned a possible internal inconsistency might arise.
  2. [32]
    In response to a question that she doubted the capacity of Council to properly administer the intention of the GCIMP Code, she said:

“MR HUGHES: Yeah, exactly. And it may be, for example, someone wants to open a shop that’s 150 square metres and it’s not necessarily selling marine things and the council may decide that that’s an appropriate use. Yes. I won’t [indistinct] is it you don’t trust the decision-makers. You don’t trust the court and the council to make a correct decision with respect to the merits of an application?---Not – not at all, Mr Hughes. It’s about the clarity of our intentions in a way that protects the important planning purpose of the marine industry precinct. So it’s certainly writing the thing that supports those mar – waterfront industry activities, accommodates some of that diverse flexibility for diverse activities but does that in a way where we’re clear about what are the tests that those decision-makers need to apply, rather than leaving ambiguity in that regard.”

The appellant’s response

Preliminary (not final) approval

  1. [33]
    The appellant submits that being a preliminary approval (including a variation request) it is understandable that a finalised design and mix of uses is not at hand. It would not be reasonable to expect such a level of detail when seeking approval for the development of such a large site with such a large amount of developable area (some 29 Ha) and potential.

Mr Perkins’ evidence

  1. [34]
    It propounds the view of Mr Perkins, in that moving on from the Planning Scheme (as the proposed development seeks to do):[20]

“…this document, the planned development place code, is – is really – is drilling down from that very broad precinct and providing much greater spatial framework and guidance and land use guidance than is provided for if the next thing that was to come in after the LAP was a specific development application.

…There is still flexibility, but – but flexibility has been – has been contained into a very – a much smaller defined spatial extent.

…And there is differentiation then between the – clear differentiation between the precincts, and there is an area where it’s clearly conservation and not – not intended for development. The water body is identified and then – then the three precincts which are – are really the subject of the – of – of the discussion we’re having now.”

  1. [35]
    Further, it is argued that as this application sets a development footprint for the entire site:

“it’s better to do it in one overall application than to be confronted with the potential of actually having piecemeal applications over parts of the land in the future. So, again, I would say this is a good planning approach to actually drill down from the broad to the next level after which individual development applications will be lodged and they will be working within a – within a much clearer and confined framework than would have been the case if the application was made simply pursuant to the IP.”

  1. [36]
    The appellant submits Ms Roughan acknowledged some of the positive attributes of the precincts and framework created by the proposed development.[21] She confirmed that “I also have not been arguing that flexibility is inappropriate or even that the uses that are contemplated in the tables of development are necessarily inappropriate, at all”.[22]
  2. [37]
    The appellant argues that in cross examination Mr Perkins was simply asked to recite or confirm the words that can be found in (predominately) the GCIMP Code (Exhibit 5.01); the theme was that the proposed development was too uncertain to approve. Mr Perkins did not embrace any of these suggestions[23] and defended the application as adequate and worthy of approval.
  3. [38]
    It is thus submitted by the appellant that there is no unacceptable uncertainty for a number of reasons:
  1. (a)
    A fair and complete reading of all of the material that comprises the development application, which includes all of Exhibit 5.01 (not just parts thereof) and also includes far more than that (as the broad list of material contained in the most recent minor change Order, Exhibit 1.22, demonstrates) leaves no doubt as to what is proposed; see Mr Perkins’ Exhibit 9.11 listing the Provisions in Version 16 which give Council (and this Court) power to control Code Assessable proposals;
  1. (b)
    Cherry picking individual words, phrases or provisions from Exhibit 5.01 is not the proper approach in approving or conditionally approving the proposed development. Reading the Plan of Development as a whole clearly articulates what is proposed (and what is not proposed) for the development of the land. An example is reading the Tables of Assessment without also having regard to Performance Criteria 6 (PC6), against which development must be assessed (and non-compliance with which can be a reason for refusal): this is said to be disingenuous;
  1. (c)
    The appellant acknowledges there are no detailed designs for individual buildings and no precise tenancy mix. That is, so the argument goes, the very nature of the preliminary approval and variation request the Court is being asked to approve, being a preliminary approval and an associated variation request. Development permits (containing the level of particularity that the Council asserts is not present here) are appropriate when that is what is being is sought. It is those subsequent development permits, which will require further assessment, where the specifics will be provided and, indeed, the Council will have an opportunity to assess such specifics (for code and impact assessable applications) and refuse those that fail to comply with assessment benchmarks;
  1. (d)
    It cannot be said that even the current Planning Scheme does not contemplate a range of uses for the land that are not, by definition, ‘Waterfront Industry’.[24] The appellant refers to what it says is the thriving success of the current Coomera Marine Precinct, which includes a range of uses; this demonstrates the ‘on the ground’ reality of how a precinct such as exists today and as is proposed to be expanded by this development operates. A range of uses, always with a focus on the marine industry, develop and integrate to deliver the economic benefits that the Planning Scheme (and indeed the State documents as well) envisages.
  1. (e)
    It is clear from the three joint reports of the planners[25] and Mr Perkins’ Separate Report,[26] that the GCIMP Code (which forms the basis of the planning dispute) has been refined over the life of this matter, in response to the Council’s concerns.[27] That refinement can continue by way of a conditional approval. To the extent there might be any residual uncertainty as to matters, the Court has the broad power to impose conditions that are appropriate to resolve such uncertainty; s 61(3) of the Planning Act. That can include conditions that require amendment to Exhibit 5.01 or any of the other documents that make up the proposed development, if the Court ultimately took the view that a particular matter ought be made clearer or be better expressed. It can include conditions that prescribe particular outcomes as part of the development. Such a course is commendable when the land use is precisely what the scheme promotes for the land;
  1. (f)
    Finally, it is argued that concerns about alleged uncertainty and what was to be developed were not matters taken up with Mr Barry-Cotter. Nor were they taken up, in any meaningful way, with the economic experts who both agreed there was a need for the proposed development on the subject land to allow the existing marine precinct to grow. Ms Roughan’s concern that one does not know what will be delivered, and that perhaps even the marina won’t be delivered, is unpersuasive (so it is argued) when one considers:
  1. (i)
    the historical development of this marine precinct;
  1. (ii)
    the need for the precinct to continue to grow; and
  1. (iii)
    the involvement of Mr Barry-Cotter and the companies he controls.

Non-marine uses?

  1. [39]
    In terms of some of the specific criticisms that have been levelled at the proposal, Mr Perkins ultimately responds that “a number of marine industries might fall under the definition of ‘Industry’ and not ‘Waterfront Industry’, where such marine industries either:
  1. (a)
    Do not require direct access to a river, creek, stream or other body of water as an essential part of their operation; or
  1. (b)
    Are not able to obtain direct access to a body of water (as is the case with Precinct 1 (the Western Precinct)).”[28]
  1. [40]
    The appellant points out that the State Government has created a situation, through the resumption for the Coomera Connector, where a large part of the land (i.e. the Western Precinct) can never have direct access to water. Unlike other sites where the response may have been to convert such ‘water isolated’ land to residential purposes,[29] the proposed development seeks to retain such land for development that involves “the production, manufacture, construction, distribution or servicing of marine industry and other associated goods that do not require direct or close access to the Coomera River”.[30]
  2. [41]
    The appellant submits that the GCIMP Code ensures that whilst the more general Industry use definition may need to be used, the actual use of premises must retain the marine industry association (see, particularly but not only, Performance Criteria PC6). This is in circumstances where, as Mr Perkins noted, the Planning Scheme in its present form already contemplates a “quite broad” range of uses for the land[31] and for some uses (non-Industry in particular), the GCIMP Code is in fact more restrictive in terms of size/GFA.[32] With respect to industrial uses he said:[33]

“PC6 relates to land use... And that’s significant because development pursuant to this code must comply with the performance criteria. So particular code assessable – I’m talking particularly about code assessable development. So a failure to comply with that PC calls for a – a broader assessment than is – than is otherwise the case. So it’s – it’s – immediately causes a difficulty in complying with the code.”

  1. [42]
    Mr Perkins emphasises the degree of control Council will have over the uses to be approved, describing PC6 as “a very strong basis upon which to refuse a proposal that failed to comply”.[34] Ms Roughan agreed that such non-compliance provided the opportunity for refusal.[35] There are other provisions relevant to the Council’s control over development (code assessable development in particular) that Mr Perkins identified in Exhibit 9.11 to ensure appropriate outcomes sought for the land by the planning scheme and Version 16 are delivered.[36]
  2. [43]
    Mr Barry-Cotter’s evidence on this issue (namely the potential for non-marine industrial uses) suggests that on the balance of probabilities it would be marine related uses that seek to locate, and will predominate (in all precincts, including the western) and that the uses that might emerge in the western precinct, where direct water access cannot be made available, are an integral and essential part of the marine precinct as a whole, even if they are uses that do not require water access.[37] As he put it, the precinct “can’t get by without” these related uses, even if they may also service other (non-marine) pursuits as well as their marine work.[38]
  3. [44]
    Ms Roughan described Mr Barry-Cotter’s evidence as demonstrating a development intent that “absolutely accords with the – the planning purpose and the intent – the planned intent that’s in the public interest for that – for that precinct, and I am very hopeful that that – that development in that way will actually occur in – and very successfully”.[39] This is submitted to favour approval.
  4. [45]
    Further the Council retains the ability (through the assessment of further, necessary development applications) to control the uses that are developed across the land so as to ensure the necessary nexus with the marine industry.[40] The Council retains the ability to refuse Code Assessable development if it does not comply with all PCs (see s. 60(2) of the PA).

Synergies/complementary uses

  1. [46]
    The appellant refers to evidence of Mr Perkins as to the necessary and complementary nature of developments of this kind (with support from Mr Barry-Cotter[41]) as follows:[42]
  1. (a)
    Mr Barry-Cotter highlights the business efficiency that can be harnessed by co-locating the various elements or stages of a shipyard’s operations – including vessel construction; component assembly; dry land storage of materials, components and completed vessels; launching; wet berthing; commissioning and pre-delivery fit out; and the associated sales processes of boat display, demonstration, sea trials, contract management, insurance, handover to new owners, and after-sales servicing and repairs;
  1. (b)
    These elements involve varying degrees of ‘industrial’ activity, may be located on one large site or a number of separate but adjacent sites, and may be conducted ‘in-house’ by a single business entity or sub-contracted to various external suppliers. In the latter case, some suppliers will have an exclusive or specialist connection to the marine industry while others may also serve or supply other sectors to a greater or lesser degree (metal works, furniture, cabinet making, upholstery, lighting and electrical suppliers are examples of this second case). These activities might be expected to locate on sites in Precinct 1 (Western Precinct) or Precinct 3 (Southern Precinct) depending on their own particular business ‘positioning’ (as well as the usual considerations of cost, size, suitability, and availability);
  1. (c)
    Buying a boat (at both the smaller and the luxury end of the market) is for most people (fishers and other maritime professionals aside) a discretionary purchase, with what might be described as a strong ‘lifestyle’ factor. As Mr Barry-Cotter suggests[43], many boat buyers are likely to be interested in understanding their prospective boat’s design and production process and the yard’s heritage and philosophy. The co-location of the production and sales activities enables this, and a business presence in Precinct 3 (Southern Precinct) would make this an appealing prospect for customers;
  1. (d)
    Similarly (Mr Perkins) would expect that buying, and in due course taking delivery of, a new boat is for most people a significant occasion. It is unsurprising that new owners might expect the experience to take place in an attractive maritime-themed environment, and celebrate the occasion in a waterfront or near-water setting, as intended to be provided in Precinct 2 (Eastern Precinct). Such facilities are likely to require a wider clientele if they are to be commercially viable, and for this wider group such facilities provide an interesting way of experiencing the City’s marine economy.
  1. (e)
    In Mr Perkins’ opinion, the different levels of emphasis across Precincts 1, 2 and 3 between marine industry and associated industrial and commercial uses recognise and accommodate the factors discussed above.

Overall, planning favours approval

  1. [47]
    It is thus submitted that the planning provisions and issues are strongly supportive of approval. The town planners agree “in principle, the proposed development, insofar as it facilitates waterfront and marine industry development, is consistent with the Regional Plan, the (2003) Planning Scheme and the current planning scheme”.[44] Waterfront and marine industry development (as that term is properly understood) is precisely what is proposed and is supported by the planners (and the planning instruments).
  2. [48]
    The dispute as between the planners is, the appellant argues, a matter for conditions, not refusal of the proposed development. As Ms Roughan said with respect to the GCIMP Code of concern to her, “I can see that the document is capable of being redrafted in order to address my concerns to that level that it could be approved”.[45] Disputes as to language should not impact the real planning concern in this case, which is the real planning (and community and economic) need for this development to be approved.
  3. [49]
    Further, this strong planning support for approval should, the appellant submits, be borne in mind in the “balancing act” the Court performs under s. 60 of the Planning Act, particularly when considering the other matters in issue, in particular flooding. The pressing planning and economic need for this development tips the scales (as a matter of discretion) in favour of approval notwithstanding any residual concern as to flooding that may arise (which the appellant does not concede). Any possibility of a minor flooding impact is the community price to be paid to facilitate the achievement of the important goals embodied in the Planning Scheme and State planning documents for the development of this land.

Conclusion as to planning issue

  1. [50]
    In my conclusion the appellant’s arguments as to the planning issues favouring approval ought be accepted. The proposal is consistent with the purpose of the precinct from the regional plan and the planning instrument; it continues the successful theme of the similar development to the south and the present proposal, being for preliminary approval, is not in my view unacceptably uncertain and provides for sufficient planning controls, such as PC 6, to allow the Council proper planning discretion as to future uses. There is not an unacceptable risk of proliferation of non-marine uses. Moreover this can always be further addressed in the context of discussion of conditions for approval.

Need

  1. [51]
    The appellant argues that the evidence with respect to need uniformly favours an approval. The economists – Mr Duane for the appellant, Mr Leyshon for the respondent Council - agreed that there is a need, not just for the additional development proposed, but a need for it to occur on the subject land to ensure the ongoing growth of the Coomera Marine Industry Precinct.
  2. [52]
    The concept of need for a development being a matter in favour of approval is well known. The appellant refers to the following passage:[46]

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

  1. [53]
    Further relevant matters as to this issue include:
  1. (a)
    Questions of need are assessed from the perspective of the community and not from the perspective of a proponent of any particular development;[47]
  1. (b)
    The need must be a genuine need and not a contrived need.[48]
  1. (c)
    The town planning need will only be established if it can be proved that the planning scheme in its current form does not adequately cater for the uses proposed;[49] and
  1. (d)
    Need is a relative concept and will have greater or lesser relevance depending on the circumstances.[50]
  1. [54]
    The appellant submits the proposed development addresses and meets a need; this favours approval.
  2. [55]
    Further, that the economists agree that “there is a need for additional development on the subject land to ensure the ongoing growth of the Coomera marine industry precinct”.[51] The minimal rate of vacancies in the existing precinct,[52] and the experience of Mr Barry-Cotter as to the need for expansion,[53] supports this. The planners’ evidence as to the planning need for the development of this land (as identified throughout the Planning Scheme) underlines the level of need.
  3. [56]
    Further, as Mr Leyshon noted, development of this kind is both important and unique.[54] He described it as successful with a critical mass of workers in the specific marine industries.[55]
  4. [57]
    The importance of the precinct to economic development and employment is consistent with the State and Planning Scheme controls that promote development of the precinct. Further, Mr Barry-Cotter[56] speaks of the economic and employment benefits to the regional economy. The proposed development has Mr Barry-Cotter and his companies as its proponent and proposed future major tenant (with his Maritimo business). Thus it is submitted the expansion of the existing marine precinct, facilitated via this preliminary approval application, supports ongoing (and growing) economic activity, employment and success in the marine industry field.
  5. [58]
    Furthermore, the economists also agree that:
  1. (a)
    In terms of some of the ‘non-industrial’ uses, at present “there is a very low provision of six facilities (around 800 sq.m) including no service station”.[57] They agree that there are positive impacts for the precinct of those uses and no negative impacts for the hierarchy of other nearby centres.[58]

The economists agree that there is a need to provide amenities for the workers and visitors to the precinct and the uses proposed (service station, tavern, food outlet etc) are the kind of amenities that ought be provided.[59] They raise no issue as to putative impacts from these uses on the broader community- they will be ‘self-contained’ to service the development, not at a large scale and not such as to impact others;[60]

  1. (b)
    In terms of the industrial uses that are proposed, “the experts agree that there can be a range of uses which are defined as industry, service industry and motor vehicle repairs, which have a nexus with the marine industry”.[61] Mr Leyshon said that “there is definitely an incentive, if you like, for uses which are marine-related”[62] and, on the other hand, that non-marine uses will not enjoy the synergies associated with co-locating with those uses in the precinct.[63]
  1. [59]
    Mr Barry-Cotter referred to the potential for non-marine industrial uses; it is likely to be marine related uses that predominate (in all precincts, including the western) and the uses that might emerge in the western precinct, where direct water access cannot be made available, are integral to the marine precinct as a whole, even if they are uses that do not require water access.[64] As he put it, the marine industry precinct “can’t get by without” these related uses, even if they may also service other (non-marine) pursuits as well as their marine work.[65]
  2. [60]
    It is also submitted, again, that the GCIMP Code enables the Council to control and refuse any development that is not suitably marine focused.
  3. [61]
    Mr Duane gave evidence that:
    1. (a)
      With respect to what may develop under the proposed GCIMP Code, there is a synergy between the existing marine industry uses which would not be attractive to other general industry uses.[66]
    2. (b)
      Apart from the GCIMP Code, market forces would tend towards uses focused on marine industry in the precinct.[67] Land such as this is a finite resource and that is why, logically, it will be used for marine industry purposes.[68]
    3. (c)
      As Mr Leyshon notes (and as was agreed between the experts), there are opportunities for (non-marine) industry development to locate elsewhere on the Gold Coast;[69]
    4. (d)
      Mr Duane’s opinion is summarised as:[70]

… that there is economic and community need for the subject proposal reflecting:

  1. i.
    The disputed uses are logical to create a world class marine waterfront industry precinct at Coomera.
  1. ii.
    The scale of development, in effect equivalent to one year's supply of industrial land on the Gold Coast, will not impact on the ongoing provision of industrial land elsewhere on the Gold Coast.
  1. iii.
    The potential for a major tenant such as Maritimo occupying a substantial proportion of the land reinforces the need for the development with a range of proposed uses allowed.
  1. iv.
    The range of uses such as café and restaurant are limited and will have no impact on the hierarchy of the centres and would service workers of the area as well as attract visitors to this international precinct.

To the extent the proposed Gold Coast International Marine Precinct Plan of Development and Place Code allows industrial uses which may be seen as not having a direct relationship with the marine industry otherwise facilitated by the development:

  1. i.
    The prospect of there being any significant amount of such development (i.e. development without any relationship to the marine industry at all) seems unlikely having regard to:
  1. a)
    the location of the proposed development; and
  1. b)
    the lack of any serious synergy for such non-marine industries with development existing to date or otherwise likely to occur;
  1. ii.
    In the event that there is any significant development of non-marine industry related activities on the site (which I doubt will occur), then it will not detract from the development of this land to augment the existing concentration of marine industry in this location and, in any event, any such industry is unlikely to dominate the marine focus of development on the site.
  1. [62]
    Mr Leyshon said that “it is difficult to get planning approval for such projects in any event underlining the long term value of approved land at Coomera for marine industry purposes”.[71] The appellant submits this underlines the need that this development can, and ought be permitted to, address. However he also expressed concern as to the scale of uses proposed, which he considered excessive and too wide ranging with a risk of uses without a nexus to marine industries.[72] Mr Duane differs from this opinion as outlined in [61] (d) above.[73]

Conclusion as to need

  1. [63]
    It is common ground that there is need for the proposed development. There is some dispute as to the scale of potentially non-marine industry uses proposed, however in my conclusion, as with the planning issues, there are sufficient controls proposed to allow the Council to appropriately regulate future uses and the matter can appropriately be further addressed in the consideration of appropriate conditions of approval. In my conclusion the issue of need favours approval.

Flooding

Relevant factors

  1. [64]
    The flooding issue is described in Exhibit 1.23 firstly as to whether the proposed development is consistent with flooding assessment benchmarks having regard to whether it:
  1. (a)
    Will have an unacceptable adverse impact on flood storage in the catchment;
  1. (b)
    Has been acceptably designed to minimise risk to life and property;
  1. (c)
    Will cause real damage (as that term is defined) to surrounding property, of itself or cumulatively;
  1. (d)
    Will cause adverse flooding impacts on surrounding property;
  1. (e)
    Has increased risk to surrounding property from flood hazard;

having regard to a number of assessment benchmarks in the Planning Scheme and the State Planning Policy (SPP) of April 2016.

  1. [65]
    A further issue is whether weight should be given to the outcomes sought by SPP July 2017, State interest – natural hazards, risk and resilience assessment benchmarks (3) and (5), which are analogues to the SPP April 2016 provisions mentioned above.
  2. [66]
    Finally there is to be consideration of whether the following relevant matters, if made out, support approval:
  1. (a)
    the proposed development is intended by, and supported by, the relevant planning documents (identified in paragraph 1) as an extension of the existing marine industry development in the relevant precinct at Coomera;
  1. (b)
    the nature of the development which, inevitably, needs to be located proximate to areas of inundation;
  1. (c)
    increases in modelled flood levels occur generally where significant inundation in flood events already occurs and will not have any material effect or cause any real damage in such areas;
  1. (d)
    the proposed filling of the land, to accommodate the proposed development:
  1. (i)
    will not have unacceptable impacts on flood storage in the catchment;
  1. (ii)
    will not have unacceptable impacts external to the land;
  1. (iii)
    will not cause real damage to property either:
  1. –
    by itself; or
  1. –
    in a cumulative sense having regard to the limited potential for further development in the floodplain;
  1. (e)
    if the intent for the development of this land for the uses contemplated by the relevant planning controls (referred to in paragraph 1 hereof) is to be achieved then such development will inevitably involve some loss of flood storage and some afflux.

Offsite flood impacts

  1. [67]
    Although flooding is contentious there is agreement between the experts as to some of the relevant considerations.  The flood modelling is agreed to be fit for purpose[74] and there is no dispute as to the modelled inputs or outcomes.  Although the proposed development will increase the depth of flooding at about 60 existing buildings[75] above floor level, non-habitable buildings may be flooded above floor level by no more than three centimetres when they were not flooded under existing conditions.[76] 
  2. [68]
    Such an afflux (extra flow) is minimal; argued to be less than from a passing boat or vehicle during a flood.[77]  Dr Newton (the Council’s flood expert) agreed that this was a theoretical event[78] which has never occurred.[79]  Mr Collins (for the appellant) noted that the extra flooding as a result of the development was minimal, being relevant only to a “really narrow band” of flood events.[80]  The concept is that if the flooding is to a level which would otherwise be three centimetres or more below the floor level of the buildings in the neighbouring development, or to a level which is more than three centimetres above such a level, the development makes no real operative difference.  This is why Mr Collins speaks of a “really narrow band” of flood events; it is only in that narrow three centimetre range.
  3. [69]
    The appellant argues, and it seems to be uncontentious, that there are no flood emergency management, evacuation or disaster response matters that warrant refusal.[81]  There is no issue calling for a refusal concerning the safety of people on site and evacuating.  The only possible issue is offsite impacts discussed above.
  4. [70]
    There do not seem to be adverse impacts on the Coomera Connector or other aspects of the road network.[82]
  5. [71]
    The Council argues that there is reason to be concerned about the flood impacts.  The development necessarily involves significant filling with consequential reduction in flood plain storage and, so it is argued, off-site flooding impacts during flood events.  The Council argues that this warrants refusal of the application.  It argues that the flood code in the planning scheme takes precedence over the local area plan.  An example within the flood code performance criteria is PC11:

“Any change to ground level, by way of filling, excavation or contouring, must not result in real damage[83], flood hazard or impediment to any counter disaster plan, measure or create unreasonable change in the exposure to flood hazard.”

  1. [72]
    Mr Collins’ opinion is that the results of the cumulative impact testing demonstrate that the impacts are small and acceptable.[84]  As to afflux, as outlined above, the afflux impacts will not cause real damage.[85]  Thus, Mr Collins said that the flood level increases are acceptable and there is no potential for actionable nuisance from those impacts during flood events.[86]

Impacts on storage capacity of catchment

  1. [73]
    The flood plain storage capacity of the catchment is very large, modelled to be in the order of 62.5 million cubic metres.  The complete catchment would be larger still.[87]  The loss which is estimated to be a consequence of the development is in the order 460,000 cubic metres which is .73% of the modelled part of the catchment area and less as a percentage of the catchment as a whole.  Thus the appellant argues this is not a significant loss in flood plain storage capacity.
  2. [74]
    The Council emphasises that the flood storage function must be protected (Flood Code Object E) and the development should not reduce flood storage within the catchment.  Real damage, as mentioned above, is defined as damage adversely affecting land and/or premises to an extent likely to be actionable.  Thus, the development must not result in flooding impacts on other premises and property that are beyond nominal or notional.  The Council’s broad point is that there will be a net loss of flood plain storage with measurable off-site impacts, beyond the nominal or notional.
  3. [75]
    The appellant argues that the loss of flood plain storage is minimal as outlined above.  Further the planning scheme and the State documents do not require no impact or change to the existing circumstances nor do they seek to preclude development below Q100.  They require mediation and minimisation rather than elimination.  It is real damage (as defined), rather than any damage which must be avoided.
  4. [76]
    As to the loss of flood plain storage, Mr Collins gave evidence that the stringent approach to this issue now adopted by the Council would have meant, if applied, that the existing marine precinct could not have been developed and yet criteria were applied entailing up to 65% loss of flood plain storage on the neighbouring site compared to a 30% loss on the subject site.  Further, this stringent approach is inconsistent with the original State and Council planning intent for the marine precinct to be developed, and, if applied, would make this site undevelopable.
  5. [77]
    The appellant submits that loss of flood plain storage will be equitably shared across the proposed and future marine precinct areas and will not have an unacceptable impact on flooding beyond the site.  The overall flood storage function of the city’s flood plains are not detrimentally affected.
  6. [78]
    The point is also made that the Department of Transport and Main Roads do not generally balance flood storage on any of their road projects, including the Coomera connector road, which is accepted by Council.[88] 
  7. [79]
    Overall, Mr Collins says that the marine precinct needs to be built near water and adjacent to a navigable tidal water way.  It is not possible to build such a precinct without loss of flood plain storage.  The proposed amount of loss of flood storage and afflux is acceptable in the circumstances.[89]
  8. [80]
    Mr Collins’ evidence is supported by that of Mr Barry-Cotter who pointed out that by their nature these facilities must be close to navigable waterways and thus inherently susceptible to flooding.  Thus, the existing specifically developed Coomera marine precinct includes hardstand concrete floors designed to be flooded from time to time.  The factories thus have hardstand concrete floors at 2.2 to 2.6 metres AHD.  The car park and roads will flood at Q20 level at which point the precinct must be evacuated.  Mezzanine areas are used for storage of electrical equipment.[90]  Thus the existing development is inherently flood resilient and the risk of real damage in the narrow band referred to is theoretical and negligible.
  9. [81]
    As Mr Collins acknowledges, Dr Newton and Mr Prentice expressed the opinion that the off-site flood level impacts from the proposed development exceed Council’s allowable values of 2 millimetres and are thus not acceptable.[91]  Whilst acknowledging these opinions, Mr Collins disagrees as there is no over floor flooding caused by the development on existing buildings up to the 1% AEP level, and impacts on ancillary use areas beyond the building footprints are all less than 10 millimetres.  Thus he says the impacts are small and acceptable and there is no reasonable potential for actionable nuisance from these impacts during future flood events.[92]

Conclusion re flooding

  1. [82]
    The concerns expressed by Dr Newton and Mr Prentice are no doubt legitimate and soundly based.  Nevertheless, on balance, I accept the opinions of Mr Collins as to flooding.  Whilst there will be some loss of flood plain storage, it is so small as to be acceptable.  While there are some off site adverse impacts of the development in terms of flooding, it is in the narrow band described by Mr Collins and this is a minor impact on non-habitable dwellings occurring in a specific situation on such narrow parameters that there is, as Mr Collins says, no reasonable potential for actionable nuisance from those impacts during future flood events.  The result is that in my conclusion the proposed development is consistent with flooding assessment benchmarks.  The adverse impacts on flood storage in the catchment are not unacceptable.  The design to minimise risk to life and property is acceptable.  There is no unacceptable risk of real damage being caused to surrounding property, and generally the relevant matters touching on the subject of flooding support approval.  The proposed development is an extension of the existing marine industry developments in the precinct.  It must, of its nature, be located adjacent to areas of inundation.  The uses for the land contemplated by the relevant planning controls results inevitably in some loss of flood storage and afflux, but these results are not unacceptable. Thus overall flooding is not a reason for refusal.
  1. (d)
    Other relevant matters
  1. 9(a)
    consistency
  1. [83]
    There are a number of these matters set out in Exhibit 1.23.  Firstly, in paragraph 9(a), whether the proposal ought to be approved or refused having regard to whether it provides an appropriate basis for ongoing development assessment of the subject land, consistent with the town planning intent for the land (s 61(2)(b) PA) and including development with a real nexus to, or complementary to, the appropriate development of major marine and waterfront activities on the land.
  2. [84]
    The requirement for consistency in s 61(2)(b) of the PA is noted at [19] above:

“… whether the approved development is compatible with, in the sense of being capable of existing in harmony with, current laws and policies. This may well be a more flexible concept than the concept of whether the development conflicts with the planning scheme, the consideration required in the primary assessment phase. Development may still be compatible, even if at variance with some aspect of the planning scheme.”[93]

  1. [85]
    On this matter, the appellant relies on the matters previously discussed; that is, the proposal is consistent with the purpose of the precinct according to the regional plan and the planning instrument; it is not unacceptably uncertain and provides for sufficient planning controls of future uses.  There is not, so it argues, an unacceptable risk of proliferation of non-marine uses which in any case can be further addressed in the context of relevant approval conditions. The respondent engages with this, arguing that the proposal is inconsistent with the higher order scheme provisions, the Desired Environmental Outcomes (DEO’s), Key Strategies and Land Use Themes, broadly because of the primacy of marine industry uses and avoidance of unacceptable flood impacts on surrounding premises.
  2. [86]
    In my view the appellant succeeds on this issue. As set out above, the uses are consistent with the planning scheme and appropriately controlled, and the flooding impacts are not unacceptable as discussed, particularly bearing in mind the flexibility referred to.
  1. 9(b)
    adverse impacts
  1. [87]
    The next matter, in issue 9(b) is whether the proposed development will generate unacceptable adverse flooding, traffic, or amenity impacts or unacceptable adverse town planning consequences or impacts which cannot be ameliorated by conditions.
  2. [88]
    Traffic is no longer argued to be a reason for refusal.  I have dealt with the flooding issue and town planning consequences or impacts above.  As to amenity, this did not assume any particular separate importance either in the evidence or the submissions.  As outlined above, the marine industry development which already exists adjacent to the site of the proposal is a large and, to use the appellant’s word, thriving, development consistent with the marine precinct.  Given that there are no unacceptable traffic or flooding impacts, amenity does not arise as a separate issue of any significance.
  3. [89]
    The town planning consequences have also been dealt with and do not amount in my conclusion to a reason to justify refusal.
  1. 9(c)
    public interest – relevant nexus
  1. [90]
    The next relevant matter is that outlined in paragraph 9(c) of Exhibit 1.23.  This is whether approval would be in the public interest where:
    1. (i)
      the EIS (and public notification thereof) proposed delivery of a high quality and innovative marine industry precinct; and
    2. (ii)
      the development application does not nominate any specific uses, rather it facilitates a broad range of uses subject to code assessment that may or may not have a relevant nexus with marine industry.
  2. [91]
    This seems to be little more than a restatement of matters – particularly planning concerns - already dealt with and there is nothing in the identified matters justifying a refusal.

9(d) – public interest – submitter rights

  1. [92]
    Relevant matter 9(d) concerns whether approval would be in the public interest because it removes the opportunity for the community to be involved in decisions as to the ultimate form of the development where:
    1. (i)
      there are material differences between the development described in the EIS and the development application; and
    2. (ii)
      the plan of development tables of assessment facilitate (as code assessable) uses that the planning scheme identify as impact assessable.
  2. [93]
    As to 9(d)(i) the appellant acknowledges that the publication of the EIS was as long ago as 2012.  Understandably, in the development of the application, which has had a lengthy genesis, it is unsurprising that material differences arise in response to issues raised by the Council along the way.  Thus the appellant rejects any criticism of the development application on this basis. 
  3. [94]
    In relation to making some matters code assessable which would otherwise have been impact assessable – matter 9(d)(ii), referring to s 61(2)(c), effect on submission rights - the appellant underlines that this preliminary approval includes performance criteria that do require an appropriate nexus with marine industry uses and there is no real hindrance to community involvement in decisions which could impact the community.  Further it argues that there is compliance with the planning instruments and the proposed development has significant merit.  Mr Perkins gave evidence on this topic and said he was not overly concerned about loss of submitter rights given the uses, given where the land is and given the over-arching planning intent that this precinct be marine industry and things ancillary to and associated with that.[94]
  4. [95]
    The respondent submits that the public notification is over 10 years ago, during the State Development Act process; with the proposed 20 year approval period this excludes public involvement for 30 years, a long period in the context of some uses no longer being impact assessable. Further, the proposal as mentioned has varied from the original in the circumstances outlined, diluting previous community involvement.[95]
  5. [96]
    The respondent also refers to the number of significant uses which move from impact to code assessable, avoiding public participation.
  6. [97]
    In my conclusion the evidence of Mr Perkins referred to has force; although there is some change effected by the proposal, and the points made by the Council are appropriately highlighted, there is at the end of the day in the context of the nature of the precinct and the over-arching planning intent no unacceptable reduction in submitter rights by the proposal.

10 – community involvement – PA purposes

  1. [98]
    Relevant matter 10 concerns whether, given the restriction of community involvement in future development applications, approval advances the purpose identified in s 5(2)(b) of the Planning Act.  This is the provision whereby advancing the purpose of the Act includes providing opportunities for the community to be involved in making decisions.  It is a similar theme to matter 9(d)(ii) and s 61(2)(c). Again, the concern is whether there is an unacceptable restriction of submitters’ rights by the reduction of impact assessable uses, particularly for such a long currency period.[96] 
  2. [99]
    The comments outlined above at [94] and the evidence of Mr Perkins have application.  Further, the location of the land, as the appellant submits, means that commercial objectors to the limited non-marine oriented uses is unlikely. 
  3. [100]
    Mr Leyshon was also concerned that the range of code assessable uses proposed were too wide ranging and may introduce uses without the necessary nexus to marine industries.[97]  This is dealt with above and is not a significant concern, in my conclusion. The appellant further argues, and I accept, that any concerns arising out of future development applications will unfold slowly, given the likely timeframe of development. There is no unacceptable restriction of community involvement.

11 - Approval of plan of development

  1. [101]
    The final issue agreed to be in dispute is the request for approval of the plan of development.  As noted above, it effects variations to the planning scheme which will be in place over a 20-year timeframe.  Thus the issue is whether this ought to be approved having regard to:
    1. (a)
      the matters already dealt with above;
    2. (b)
      whether or not the plan of development will facilitate a range of uses on the land including industry, motor vehicle repairs, outdoor storage facility, service industry, warehouse and tavern that do not have a nexus with marine industry uses otherwise reasonably anticipated within the Coomera LAP marine industry Precinct 3;
    3. (c)
      the plan of development not prescribing, as a relevant constraint code, the flood affected areas Constraint Code for any form of development;
    4. (d)
      the effect the variations would have on submission rights for later development applications; and
    5. (e)
      the length of the currency period sought, being 20 years.
  2. [102]
    As to (a), the reasoning above demonstrates that the development is consistent with the planned intent for the development of the land in the planning scheme provisions apart from the variation request.  The planning, need and flooding considerations favour approval. 
  3. [103]
    As to (b), I do not accept that there is facilitation of the range of uses nominated without a nexus to marine industry.  The appellant submits that the variation results in a more specific development outcome which is consistent with the previous planning instrument; this is correct.  The overall consideration of the relevant factors set out above favours approval.
  4. [104]
    As to (c), the proposed plan of development does not prescribe the flood affected areas Constraint Code as a relevant constraint code.  The appellant points to the features that this is not necessary where the development pads to be created will be above the defined Q100 level and roads and access routes are again immune to a Q100 event.  Any further refinements as to flood assessment can be addressed by way of conditions, for example, requiring a further or updated flood assessment at the time of a future development application.  This is supported by Mr Perkins.  In relation to the proposed Place Code, Performance Criteria 12 provides that development must not cause real damage, increase risk to life or be to the detriment of flood evacuation procedures.[98] This is, it seems to me, a significant control.
  5. [105]
    As to (d), affecting future submission rights, the appellant points out that compliance is achieved with the planning instruments and the merits of the proposed development in accordance with the intent for the precinct. The issue has also been canvassed above; there is no unacceptable impact on submission rights.
  6. [106]
    As to (e), the currency period of 20 years, it must be recognised that a development of this kind – involving significant development and construction, and then the interest and involvement of significant tenants, with likely applications for relevant uses to be dealt with by Council - necessarily involves a long timeframe and will require significant private investment.[99]  Ms Roughan acknowledged these features. In my conclusion the currency period is appropriate.

Conclusion

  1. [107]
    My conclusion is the appellant has succeeded in establishing that the proposed development does have significant merit, complies substantially with the relevant assessment benchmarks and has a number of matters favouring approval.  It is consistent with the planning intention for the precinct.  Its proponents do have a track record of successful development in the area consistent with the relevant planning intent, the desired environmental outcomes and the State planning documents.  In my conclusion approval of the proposal is the correct conclusion in the public interest and having regard to the relevant assessment benchmarks and other matters.  The result is that the appeal is allowed and the subject application approved.  I will hear the parties as to arrangements for negotiations and procedural steps as to concluding appropriate conditions of approval.

Footnotes

[1]The structure of the Planning Scheme is that where, as here, there is a Local Area Plan (LAP) the land did not have a zone. Rather assessment of development applications was pursuant to the LAP.

[2]Exhibits 5.04 and 5.05, as well as provisions of the GCIMP Code such as Exhibit 5.01, pp. 23-24, PC12 to PC19. 

[3]See generally Exhibit 5.01, GCIMP Code, p 5-7

[4]Sections 315-317 Sustainable Planning Act 2009.

[5]Section 45(1)(a) PECA.

[6]Sections 43 and 46(1) PECA.

[7]Ex 5.01, GCIMP Code, Section 1 – Introduction, p. 2.

[8]Lake Maroona Pty Ltd v Gladstone Regional Council (2017) 224 LGERA 166 at [26]; also Lipoma Pty Ltd & Ors v Redland City Council & Anor [2020] QPELR 148 at [36]-[38]

[9][2020] QCA 257

[10]Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 at [59]

[11]Council’s submissions paragraphs 51-55

[12]Exhibit 1.23

[13]Exhibit 6.01, Planning JER 1, p 40, para 165(a)

[14]T6-76, ll 21-26

[15]T6-78, ll11-14

[16]T6-82, ll31-36

[17]Exhibit 6.01, Planning JER 1, p 40, para 165(b)

[18]Exhibit 8.02

[19]T6-85 l 34 – T6-88 l 44

[20]T 6-36, ll 10-47; also T6-40 ll 5-42

[21]T6-80 ll 30-36

[22]T6-82, ll 15-21

[23]Other than accepting some further changes to entries in the Table of Assessment for the precincts may be appropriate

[24]See Exhibit 2.01, Planning Scheme Extracts, p. 136 (definition of “Waterfront Industry” use) and p. 198, Table of Assessment for the land (Precinct 3- Marine Industry). See also the various statements of intent for the land/precinct, at various levels of the Planning Scheme, none of which seek to contrive of a situation where only waterfront or marine industry development is present.

[25]Exhibits 6.01, 6.02 and 6.03.

[26]Exhibit 8.01, Separate Report of David Perkins (Perkins Report).

[27]Other revisions have been made with respect to other fields of expertise, but they are not relevant in this context. 

[28]Exhibit 8.01, Perkins Report, p. 8, para. 15.

[29]Exhibit 9.06.

[30]Exhibit 5.01, GCIMP Code (v16), p. 21, PC6.

[31]T6-18, l 42 to T6-19, l 8.

[32]T6-19, l 15 to T6-20, l 1.

[33]T6-20, ll 8-20

[34]T6-20, ll 36-38.

[35]T6-88, lines 5-21.

[36]T6-21, ll 3-11.

[37]E.g. T3-41, ll 18-37, T3-45, l 36 to T3-46, l 10, T3-47, l 4 to T3-51, l 34.

[38]T3-49, ll 26-31.

[39]T6-89, ll 32-36.

[40]Exhibit 9.11, with reference to specific provisions from the proposed GCIMP Code.

[41]Exhibit 7.04, Statement of Ronald William Barry-Cotter (Barry-Cotter Statement).

[42]Exhibit 8.01, Perkins Report, pp. 11-12, para. 36.

[43]Statement at [42]

[44]Exhibit 6.01, Planning JER1, p. 40, para. 165(a).

[45]T6-83, ll 19-32. 

[46]Isgro v Gold Coast City Council & Anor [2003] QPELR 414 at [21];  Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31 at [252]. 

[47]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 213, TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 at [9], Isgro v Gold Coast City Council & Anor (supra)

[48]Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 at 32-35, William McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33 at 35.

[49]William McEwans Pty Ltd v Brisbane City Council (supra) at [170].

[50]Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 at [20].

[51]Exhibit 6.12, Need JER2 p. 7, para. 11. See also T3-37, ll 11-17.

[52]T3-8, l 35 to T3-9, l 4. See also T3-40, ll 32-41.

[53]T3-49, l 38 to T3-50, l 46.

[54]T3-29, l 17 to T3-30, l 45.

[55]T3-30, ll 20-31

[56]Exhibit 7.04, Barry-Cotter Statement.

[57]Exhibit 6.11, (First) Economic Need Report (Need JER1), p. 36, para. 46.

[58]Exhibit 6.11, Need JER1, p. 40, paras. 67-68.

[59]Mr Duane at T3-9, ll 19-40 and Mr Leyshon at T3-31, l 1 to T3-32, l 21.

[60]Mr Duane at T3-22, l 22 to T3-25, l 4; Mr Leyshon at T3-32, l 38 to T3-34, l 13;Mr Perkins at T6-55, ll 13-17.

[61]Exhibit 6.11, Need JER1, p. 13, para. 25.

[62]T3-32, ll 30-36

[63]T3-35, ll 27-32

[64]See e.g. T3-41, ll 18-37, T3-45, l 36 to T3-46, l 10, T3-47, l 4 to T3-51, l 34.

[65]T3-49, ll 26-31

[66]T3-10, ll 4-26; also T3-12, ll 34-43.

[67]T3-12, ll 20-32.

[68]T3-19, ll 1-7.

[69]T3-35, ll 34-43, with reference to Exhibit 6.11, Need JER1 p. 16, para. 34

[70]Exhibit 8.08, separate report of Mr Duane, p 8

[71]Exhibit 6.11, Need JER1, p. 28, para. 42.

[72]Exhibit 6.11 p 41 paras 70 and 74

[73]Also see Exhibit 6.11 p 41 para 73

[74]Exhibit 6.06, third joint expert report on flooding (Flooding JER 3), pages 4 – 5, points of agreement 1 to 8 and 14.

[75]T4-45 ll 9-40.

[76]Exhibit 6.06, Flooding JER 3 p 5, points of agreement 9.

[77]T6-6 ll 1-7.

[78]T6-2 ll 13-23.

[79]T6-12 ll 4-23.

[80]T4-36 l 36 to T4-36 l19; also T4-58 l 21 to T4-59 l 26 and T4-63 l 34 to T4-65 l 44.

[81]Exhibit 6.06, Flooding JER 3, p 5, points of agreement 10 to 13.

[82]Exhibit 6.06, Flooding JER 3, p 6 points of agreement 16.

[83]“Real damage” is defined as damage adversely affecting land and/or premises to an extent likely to be actionable; Exhibit 2.01, Planning Scheme Extracts, p 320, Pt 7, Div. 3, Chapter 8.

[84]Exhibit 8.03, Mr Collins’ Report, p 8.

[85]T4-12, l 44 – T4-13, l 46.

[86]Supra; also Exhibit 6.06, Flooding JER 3, p 6 para 2 - 3

[87]Mr Collins at T4-16, l 37 – T4-17, l 28 and Dr Newton at T4-93, ll 26 – 29.

[88]Exhibit 6.06, Flooding JER 3, p 7, para 6.

[89]Exhibit 6.06, Flooding JER 3, p 11 para 23.

[90]Exhibit 7.04, Barry Cotter Statement, p 7, para 48.

[91]See Exhibit 6.06, Flooding JER 3, p 8 paragraphs 8 and 11(Mr Prentice); paragraph 10 (Dr Newton).

[92]Exhibit 8.03, Separate report of Neil Collins, p 9; also Exhibit 6.06, Flooding JER 3, p 9 paragraph 16.

[93]Lake Maroona Pty Ltd v Gladstone Regional Council (2017) 224 LGERA 166 at [26]; also Lipoma Pty Ltd & Ors v Redland City Council & Anor [2020] QPELR 148 at [36]-[38]

[94]T6 – 63, ll 24 – 38.

[95]See Ms Roughen, in Exhibit 6.01, Planning JER1 at paragraph 141

[96]Respondent’s submissions p 41 paragraph 134; Ms Roughan’s report, Exhibit 8.02, paragraph 4

[97]Exhibit 6.11, JER Need, p 41, para 74.

[98]Exhibit 8.01, Mr Perkins’ separate report, p 44.

[99]Mr Hughes KC invoked the adage “Rome wasn’t built in a day”

Close

Editorial Notes

  • Published Case Name:

    Harbour Island Pty Ltd v Gold Coast City Council & Anor

  • Shortened Case Name:

    Harbour Island Pty Ltd v Gold Coast City Council

  • MNC:

    [2023] QPEC 29

  • Court:

    QPEC

  • Judge(s):

    Kent KC, DCJ

  • Date:

    19 Jun 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
2 citations
Jump To
Cite 1 - (2000) QPELR 193
Cite 2 - (2000) QPELR 193
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
3 citations
Jump To
Cite 1 - (1997) QPELR 208
Cite 2 - (1997) QPELR 208
Cite 3 - (1997) QPELR 208
Indooroopilly Golf Club v Brisbane City Council (1982) Q.P.L.R 13
3 citations
Jump To
Cite 1 - (1982) Q.P.L.R 13
Cite 2 - (1982) Q.P.L.R 13
Cite 3 - (1982) Q.P.L.R 13
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
2 citations
Jump To
Cite 1 - [2001] QCA 116
Cite 2 - [2001] QCA 116
Isgro v Gold Coast City Council (2003) QPELR 414
2 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Lake Maroona v Gladstone Regional Council (2017) 224 LGERA 166
3 citations
Jump To
Cite 1 - (2017) 224 LGERA 166
Cite 2 - (2017) 224 LGERA 166
Cite 3 - (2017) 224 LGERA 166
Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2020] QPELR 148
3 citations
Jump To
Cite 1 - [2020] QPELR 148
Cite 2 - [2020] QPELR 148
Cite 3 - [2020] QPELR 148
TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1
1 citation
Jump To
Cite 1 - [2002] QPELR 1
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31
2 citations
Jump To
Cite 1 - [2022] QPEC 31
Cite 2 - [2022] QPEC 31
William McEwans Pty Ltd v BCC (1981) 1 Q.P.L.R 33
3 citations
Jump To
Cite 1 - (1981) 1 Q.P.L.R 33
Cite 2 - (1981) 1 Q.P.L.R 33
Cite 3 - (1981) 1 Q.P.L.R 33

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.