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Save Our Foreshore Inc & Whitsunday Regional Council v Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation)[2023] QPEC 34

Save Our Foreshore Inc & Whitsunday Regional Council v Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation)[2023] QPEC 34

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Save Our Foreshore Inc & Whitsunday Regional Council v Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation) ACN 101 370 772 and Meridien Airlie Beach Pty Ltd (Receivers & Managers Appointed) (In Liquidation) ACN 101 370 763; Meridien AB Pty Ltd (Receivers & Managers Appointed) (in Liquidation) ACN 101 370 772 and Meridien Airlie Beach Pty Ltd (Receivers & Managers Appointed) (In Liquidation) ACN 101 370 763 v Whitsunday Regional Council & Save our Foreshore Inc [2023] QPEC 34

PARTIES:

Appeal No. 60 of 2022

SAVE OUR FORESHORE INC

(Appellant)

v

WHITSUNDAY REGIONAL COUNCIL

(Respondent)

&

MERIDIEN AB PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 370 772 AND MERIDIEN AIRLIE BEACH PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 370 763

(Co-respondents)

Appeal No. 459 of 2022

MERIDIEN AB PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 370 772 AND MERIDIEN AIRLIE BEACH PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 370 763

(Appellant)

v

WHITSUNDAY REGIONAL COUNCIL

(Respondent)

&

SAVE OUR FORESHORE INC

(Co-respondent by Election)

FILE NO/S:

60 of 2022

459 of 2022

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

1 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19-21 April 2023; 15 May 2023; 23 May 2023

JUDGE:

Rackemann DCJ

ORDER:

The appeals are adjourned to permit the parties to prepare terms of order incorporating amendments to the conditions of approval and the variations

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – Submitter appeal against the respondent’s decision to grant a preliminary approval for a material change of use for a resort complex at Airlie Beach and for variations – where the proposed resort complex building is 12 storeys and is 46.7 metres high and composed of a two-storey podium (over a 1 storey basement) with a conference/function centre, retail and dining components, a 9-storey tower and roof terrace – where it is common ground that the height of the building exceeds that which is provided for in the planning scheme – where the respondent’s planning scheme is in the process of being amended – whether there is a need for the proposed development – whether the proposed development will promote tourism and economic growth, and deliver an appropriate located major regional function facility – whether the proposed development will contribute towards an appropriate mix of uses within the zone – whether the proposed development is of appropriate height, scale, character and design – whether the proposed development will advance or compromise the outcomes sought by the Mackay, Isaac and Whitsunday Regional Plan, Part B Regional framework, Strategic direction – whether the proposed development will protect natural landscape values – whether weight should be given to the draft planning scheme – whether the proposed development should be approved or refused having regard to relevant matters – whether the preliminary approval supports the requested variations – whether the variations cut across planning scheme’s intent for the locality – whether the removal of submission rights through the variations is acceptable – whether the variations are needed to achieve the economic benefit or whether that could be achieved by a compliant alternative.

CASES:

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

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

E J Cooper v Townsville City Council, [2021] QPEC 20

Nerinda Pty Ltd v Redland Shire Council, [2019] 1 Qd R 523

Smout v Brisbane City Council [2019] QPELR 684

McKay v Brisbane City Council [2022] QPELR 963

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

E Morzone KC and K Wylie for the Appellant (Meridien AB Pty Ltd).

B Job KC and M Batty for the Respondent (Whitsunday Regional Council).

J Lyons and N Batty for the Co-Respondent (Save Our Foreshore Inc).

SOLICITORS:

HopgoodGanim for the Appellant (Meridien AB Pty Ltd).

McCullough Robertson for the Respondent (Whitsunday Regional Council).

Wilson Ryan Grose for the Co-Respondent (Save Our Foreshore Inc).

Table of Contents

Introduction5

Assessment Framework7

The Material Change of Use Issues10

Assessment of the Material Change of Use12

(i)  assessment against the planning scheme12

(ii) the Regional Plan21

(ii) architecture, landscape, character and visual amenity22

(ii) need31

(ii) relevant matters47

(ii) the discretion48

The variation request48

Conclusion50

Introduction

  1. [1]
    These proceedings comprise two appeals from the decision of the respondent, given by an amended negotiated decision notice on 22 April 2022, to grant a preliminary approval for a material change of use for a resort complex (with an associated variation approval) and also a development permit for a material change of use for 7 multiple dwelling units/short term accommodation units.  The subject land is situated at 22 Coconut Grove, Airlie Beach and is more particularly described as part of Lot 105 on SP232115.  That decision resulted in two appeals:
    1. Appeal No. 60 of 2022 by Save our Foreshore Inc (SOF), against the part of the decision which gave the preliminary approval (and associated variation approval) for the resort complex; and
    2. Appeal No. 459 of 2022 by Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation) and Meridien Airlie Beach Pty Ltd (Receivers & Managers Appointed) (In Liquidation), (collectively referred to as Meridien) against certain conditions imposed upon the approval.
  2. [2]
    The appeals relate only to that part of the application which concerns the material change of use for the resort complex and the associated variation approval.  Orders were made consolidating the appeals and directing that Appeal No. 459 of 2022, by Meridien, be taken to be the carriage file for the consolidated proceeding.
  3. [3]
    The proposed resort complex building is 12 storeys (including a roof terrace), and is 46.7 metres high.  It is composed of a two-storey podium (over a 1 storey basement) with a conference/function centre, retail and dining components, a 9-storey tower providing 180 hotel rooms/suites and roof terrace with rooftop bar and amenities.
  4. [4]
    Airlie Beach has a north facing beach fronting Airlie Bay and the broader Pioneer Bay, leading to the Whitsunday Islands, to the north.  It is “bookended” by the Coral Sea Marina, to the west, and the Port of Airlie, to the east.  The southern part of Airlie Beach is highly elevated and has buildings which, in parts, have the appearance of “cascading” down the elevated topography. The flatter land, including the subject land (which was created by reclamation works), is nearer the water.  The elevated and developed parts of Airlie Beach are on prominent landforms, including ridges and sit below a more highly elevated and dominant green backdrop, which frames the southern edge of the developed lower hillsides. 
  5. [5]
    The land is part of the Port of Airlie Marina Development Project that was declared, by gazette published on 1 December 2000, to be a State significant project.  Meridien was, prior to being placed under external administration, responsible for the delivery of that project, being a master-planned integrated marina development involving boating, tourism, residential and commercial development. 
  6. [6]
    In 2012, following Meridien’s financial difficulties, Balmain Corporation (Balmain) was appointed, by financiers, to be responsible for delivery of the project. Balmain has ultimately become the owner of the Meridien debt, as well as the asset manager responsible for the project.  It continues to progress the project and, as required, obtain development approvals in Meridien’s name.  Mr Offord, an Asset Manager from Balmain, gave evidence that Balmain is capable of ensuring the construction of the proposed resort complex, as part of the broader Port Airlie development.[1]
  7. [7]
    SOF is a local community organisation.
  8. [8]
    Airlie Beach is something of a gateway to the Whitsunday Islands, the Great Barrier Reef and Marine Park and is well known for attracting tourists.  The intention of the proposal is to provide a luxury standard facility which, it is said, Airlie Beach needs, but currently lacks. There are conditions of the approval which require the development, if it proceeds, to provide the intended luxury standard.  The parties, in advance of the hearing, reached agreement about how the conditions of approval should be amended in the event that the SOF appeal against approval is otherwise dismissed.[2]  In the course of the hearing there were further suggested amendments (discussed later) to provide reassurance in that regard.  It is the decision to approve, rather than the conditions of approval, which was the primary focus of debate.
  9. [9]
    The variation request sought to vary the effect of the planning scheme so as to (in summary):
    1. provide a maximum building height of 47 metres with a resort complex exceeding that being impact assessable;
    2. provide that the use of the site as a resort complex up to 47m is code assessable against the Canal Street Resort Complex Development Code, the Landscaping Code and the Transport and Parking Code.
    3. categorise building works for the proposed resort complex as accepted development.
  10. [10]
    A “marked up” copy of the proposed Canal Street Resort Complex Development Code was tendered at the hearing.[3]  That version included changes, proposed by the Council, to refer to the approved plans and proposed minimum standards of service.[4]  Meridien did not cavil with those changes.

Assessment Framework

  1. [11]
    This proceeding proceeds by way of a hearing anew.[5]  Meridien bears the onus of establishing that the SOF’s appeal against the approval should be dismissed.[6]  In deciding the appeals the Court must confirm the decision appealed against, change it, or set it aside and make a decision replacing it, or return the matter to the respondent with directions the Court considers appropriate.[7]
  2. [12]
    Section 60 of the Planning Act 2016 (PA) applies for a properly made application, other than a part that is a variation request.  Accordingly, it applies to that part of the subject development application which sought the preliminary approval for the material change of use.  That part of the application required impact assessment.  There is a broad discretion conferred by s 60(3) of the PA, in relation to deciding a development application that requires impact assessment.  That almost inevitably involves a balancing exercise. It is for the decisionmaker to weigh and balance the factors to which consideration may be given.[8]  In that context, non-compliance with an assessment benchmark does not necessarily dictate a refusal.  The extent to which a flexible approach to the exercise of the discretion will prevail, in the face of non-compliance with an assessment benchmark, turns on the facts and circumstances of each case.[9]
  3. [13]
    Section 61 of the PA applies to assessing and deciding the variation request.  When assessing such a request the assessment manager and, on appeal, the Court, must consider:[10]
    1. the result of the assessment of that part of the development application that is not for a variation request;
    2. the consistency of the variations sought with the rest of the  local planning instrument that is sought to be varied;
    3. the effect the variation 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
    4. any other matter prescribed by regulation.
  4. [14]
    Having so assessed the variation request, the assessment must[11] decide to approve all or some of the variations sought, or different variations from those sought, or to refuse the variations sought.  The assessment of the variation request must however, await the result of the assessment of the application for the preliminary approval of the material change of use, since the result of that assessment must be considered in assessing the variation request.
  5. [15]
    Impact assessment must be carried out:[12]
    1. against the assessment benchmarks in a categorising instrument for the development;
    2. having regard to any matters prescribed by regulation; and
    3. may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
  6. [16]
    Matters prescribed by regulation relevantly include the regional plan, any development approval for, and any lawful use of, the premises or adjacent premises and the common material, to the extent that the assessment manager considers the matter is relevant to the development.  The relevant assessment benchmarks, in this case, are contained in the respondent’s planning scheme.  That Meridien’s application also includes a request to vary the effect of that scheme does not militate against the requirement to assess that part of the application which seeks a preliminary approval against the planning scheme.[13]
  7. [17]
    The respondent’s planning scheme is in the process of being amended. Those amendments have substantially progressed along the statutory path.  In particular, following public consultation, the Council resolved to:
    1. endorse the amendments, subject to some variations;
    2. give notice of a request to adopt the proposed amendment to the Minister;
    3. provide the Minister with the amendments;
    4. endorse the amendment consultation and submissions analysis report; and
    5. report back to the community on the consultation outcomes.

A letter to the Minister requesting adoption of the amendments was communicated on 18 May 2023.[14]

  1. [18]
    As the amendments have not come into force they do not form part of the statutory instruments against, or having regard to, which the development application is to be assessed.  Further, they cannot be given weight pursuant to s 45(8) of the PA.  They are however, capable of being a relevant matter. Draft planning schemes, or draft amendments thereto, have long been considered pursuant to the so-called Coty principle, which was restated by Henry J in Brisbane City Council v YQ Property Pty Ltd[15] as follows:
  1. [21]
    The Coty principle identifies two public interest considerations when considering development applications in an era when a new planning scheme is under consideration but not yet taken effect.  Each was separately described by Hardy J in the passage quoted above as “important in the public interest”.  Both share the underlying policy that completely ignoring a draft plan would “frustrate and tend to diminish public confidence in, the planning process”.  It is convenient to discuss these public interest considerations from the perspective of a court hearing an appeal from an assessment manager, though the Coty principle also applies to that original decisionmaker.
  1. [22]
    It is conceivable that on the facts of a particular case one or other of those considerations may attract such significant weight as to have a determinative effect on the outcome.  Importantly however, neither are expressed as inevitably determinative considerations.  That is unsurprising because their relative significance will vary from case to case, depending upon the circumstances of each case.
  1. [23]
    The first public interest consideration is the avoidance, as far as possible, of a judgment which will render more difficult the ultimate decision as to the form that a planning scheme should take.  The rationale behind that consideration is the desirability of the court not making a decision by planning appeal in circumstances where it would make the democratic process surrounding the development of a new planning scheme more difficult.  The first consideration is sometimes referred to as the “non-derogation principle”, was not relevant below.  That is because Council’s decision had already been made by the time the learned primary judge delivered his reasons.  The process by which the draft scheme would in due course become law only remained “a formality”.
  1. [24]
    The second public interest consideration in the Coty principle is that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation.  This consideration allows the Court to take into account the terms of a draft scheme or other planning instrument before that draft instrument has entered into force.  It is a concession to the reality that planning is an ongoing process and that it is unwise to ignore the future direction of a planning scheme when the development of the subject of the application will have to co-exist with whatever the future direction might be.
  1. [19]
    None of the parties suggested that the draft amendments were irrelevant or should be ignored.  Because the respondent has already resolved to adopt the draft amendments, it is only the second of the public interest considerations which is relevant. 

The material change of use issues.

  1. [20]
    The issues in the agreed list of issues, insofar as they relate to the material change of use, are as follows:
  1. whether there is a need for the proposed development;
  1. whether the proposed development will promote tourism and economic growth, and deliver an appropriately located major regional function facility, consistent with Strategic framework Strategic intent 3.2(3), Strategic outcome 3.2.2.1(1) and land use strategy 3.2.2.2(7);
  1. whether the proposed development will contribute towards an appropriate mix of uses within the zone, consistent with Mixed use zone code Purpose section 6.2.13.2(1) and (2) and Overall outcome 6.2.13.2(3)(a) and (d);
  1. whether the proposed development is of appropriate height, scale, character and design, having regard to Mixed use zone code Overall outcomes 6.2.13.2(3)(e), (f), (g), (h) and (i);
  1. whether the proposed development will advance or compromise the outcomes sought by the Mackay, Isaac and Whitsunday Regional Plan, Part B Regional framework, Strategic direction – Strong economy, Managing growth and Regional narratives – Airlie Beach and Part C Principle 6.6.1 and 8.1.1 and Policies 6.6.7 and 6.6.8 and 7.1.11;
  1. whether the proposed development will protect natural landscape values, having regard to Strategic framework Land use strategy 3.2.3.2(2);
  1. whether weight should be given to the draft planning scheme and, if so, the proposed development;
  1. will fulfill an important place-making and wayfinding function; and
  1. will deliver a luxury hotel and associated function facility within “Precinct D” and
  1. and is consistent with OO7.2.1.2(2)(a) of the Airlie Beach Local Planning Code and/or the Building Height Overlay Code.
  1. whether the proposed development should be approved or refused having regard to specified relevant matters (set out later).
  1. [21]
    Counsel for SOF said, in the course of oral argument, that I need only deal with those issues dealt with in the written submissions on behalf of SOF.  By way of illustration he pointed out that the written submissions do not deal with issue 7(a) because SOF does not dispute the contention.[16]  The provisions of the planning scheme with which non-compliance is alleged are s 3.2.3.2(c) of the Strategic Framework and Overall Outcomes 3(e), (f), (h) and (i) of the Mixed Use Zone Code.
  2. [22]
    The main criticism of the proposal relates to its height.  As is discussed later, it is common ground that the height of the building exceeds that which is provided for in the planning scheme.  Meridien and the respondent contend however, that the impact of the proposal’s height is not undue and there are other factors which favour approval and which, on balance, should lead to the exercise of discretion in favour of granting the preliminary approval.

Assessment of the material change of use

(i)Assessment against the planning scheme

  1. [23]
    Relevantly for present purposes, the planning scheme includes a strategic framework, zones and zone codes.  The strategic framework sets the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs.[17]  It features a strategic intent, five themes, the strategic outcome proposed for each theme and the land use strategies for achieving those outcomes.[18]  For impact assessment it prevails over all other components of the planning scheme to the extent of any inconsistency.
  2. [24]
    One of the five themes is economic growth.  The strategic outcome for that theme is set out in s 3.2.2.1(1) as follows:

“The economic resilience, wealth creating and employment generating capacities of the region’s key sectors are protected and enhanced for present and future generations.”

  1. [25]
    The land use strategies for achieving that outcome includes 3.2.2.2(7) which, relevantly, provides as follows:

“…new or expanded tourist accommodation and ancillary business activities are located at Airlie Beach…A major regional function facility is located adjacent to Airlie Beach Main Street and Esplanade area…”

  1. [26]
    The proposal for a resort complex is to provide significant new luxury standard tourist accommodation and a regional function centre, to address what I find (for reasons discussed later) to be a need.  The town planners described the subject land, which lies to the east of the Airlie Beach main street and esplanade area, as “strategically located between the Airlie Beach Town Centre and the ferry terminal, which provides tourism opportunities an access to the Whitsunday Island including Hamilton Island and the Great Barrier Reef Marine Park.”[19] The proposal  is in accordance with the above strategic outcome and land use strategy.
  2. [27]
    The only provision of the strategic framework with which SOF ultimately alleged non-compliance[20] is s 3.2.3.2(2), dealing with landscape values.  One of the five themes of the strategic framework is environment and heritage.  The strategic outcome for that is set out at s 3.2.3.1(1) as follows:

“The cultural heritage and life supporting capacities of air, eco-systems, soil and water are conserved, enhanced or restored for present and future generations.”

  1. [28]
    The land use strategy relied upon by SOF states, relevantly, as follows:

“The core landscape values within the region are protected and, if practical, enhanced.  The core landscape values include the urban gateways to Airlie Beach…as well as the significant visual backdrops as viewed from major scenic routes of ….Shute Harbour Road…”

  1. [29]
    It is not suggested that the flat reclaimed land which is proposed for development itself has core landscape values.  Rather, the complaint is that the proposed built form would interrupt the visual appreciation of landscape values otherwise. As was acknowledged in the written submissions for SOF,[21] the provision is imprecise in identifying the “core landscape values” particularly in circumstances where the specific matters referred to are only examples in an inclusive provision.   SOF only alleges non-compliance to the extent that views to the ocean and the forested areas are considered “core landscape values”.  If that is accepted this issue therefore ultimately becomes a visual amenity issue because, as Dr Hassall pointed out,[22] the core landscape values determine the scenic amenity values, which form the basis of Airlie Beach’s visual amenity.
  2. [30]
    The provision specifies two core landscape values in relation to Airlie Beach.  One is the urban gateways “to” Airlie Beach.  In cross-examination Mr Buckley, (the town planner called by SOF) accepted that,[23] at the entry point (i.e. the gateways), the proposal would not fail to protect the values. My conclusion is not however, dependent on confining assessment to the entry points. 
  3. [31]
    The other specific matter referred to is the significant visual backdrop as viewed from the major scenic route of Shute Harbour Road.  As Mr Curtis observed,[24] the proposal would often be obscured from view as one travels along Shute Harbour Road. In assessing the impact of the proposal from this perspective, it should also be borne in mind that, there is already development on elevated prominent landforms in Airlie Beach.  That development sits below a more elevated and dominant green backdrop.  Further, development to the height provided for in the planning scheme would have a degree of impact. Dr Hassall carried out a detailed assessment based largely on a journey from west to east along Shute Harbour Road.  That is discussed later and I accept his conclusion that there would be no more than minor impacts.
  4. [32]
    Having regard to the evidence of the visual amenity experts (discussed later) I do not consider that the proposal is inconsistent with protection of the core landscape values even assuming SOF’s interpretation to be correct.
  5. [33]
    The subject land is within the mixed use zone and, in particular, within the Airlie Beach precinct F.  There are zone codes which identify the purpose of the code and overall outcomes that achieve that purpose.  The precinct provisions are contained in the corresponding zone code.
  6. [34]
    The purpose of the mixed use zone code stated in s 6.2.13.2 is as follows:
  1. “(1)
    The purpose of the mixed use zone code is to provide for a mixture of development that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact uses;
  2. (2)
    The purpose of the mixed use zone code in the local government area is to provide for an appropriate mix of uses that take advantage of and support the development of key mixed use activity areas.”
  1. [35]
    That is to be achieved through a number of overall outcomes which, in so far as the range of activities proposed are concerned, include the following:
  1. “(a)
    development provides for a range of activities that are compatible with the intent of the zone

…

  1. (d)
    development provides for a range of accommodation activities consistent with the mixed use environment intended in this zone.  Such accommodation activities include multiple dwellings, resort complexes, rooming accommodation and short-term accommodation.”
  1. [36]
    There is no difficulty with the mix of uses proposed in this case.  Mr Buckley properly and readily acknowledged that the proposed land use outcomes are appropriate.[25]
  2. [37]
    The agreed list of issues referenced overall outcome (g), but there was ultimately no suggestion of non-compliance with that provision. It refers to streetscape considerations, which are referred to later when discussing the evidence of the visual amenity experts and, for the reasons given,[26] the proposal complies.
  3. [38]
    The remaining sub-paragraphs of the overall outcomes which were in issue are as follows:
  1. “(e)
    the scale, character and built form of development contributes to a high standard of amenity in keeping with the intended role and function of the particular precinct;
  2. (f)
    development incorporates a high standard of architecture, urban design and landscaping that creates attractive and functional buildings, streets and places;
  3. (h)
    unless otherwise specified in a local plan code or Table 6.2.13.2.1 (Maximum building heights in Mixed use zone), development has a low to medium rise built form that is compatible with the intended scale and character of the streetscape and surrounding area, with a maximum building height of 12.0m above ground level.

Table 6.2.13.2.1 Maximum building heights in Mixed use zone

Mixed use location

Maximum building height

Airlie Beach Precinct A

14m

Airlie Beach Precinct C

21m

Airlie Beach Precinct F

18m

Airlie Beach Precinct G

14m

  1. (i)
    development is located, designed and operated in a manner that does not unreasonably impact on the amenity of surrounding development, having regard to matters such as traffic, noise, lighting, waste, fumes, odours, hours of operation, privacy, overlooking and public health and safety;”
  1. [39]
    The focus of attention was sub-paragraph (h).  The first paragraph of that provision states what is required (i.e. low to medium rise built form with a maximum height of 12m) unless something is otherwise stated, either in a local planning code or in Table 6.2.13.2.1.  Because the subject land falls within Airlie Beach Precinct F, something else is specified in Table 6.2.13.2.1 and hence the requirements in the introductory paragraph do not apply.  The drafting of the provision is, perhaps, a little awkward in that it does not, in terms, go on to say that development in the various precincts listed in Table 6.2.13.2.1 ought not exceed the nominated maximum building height (each of which are higher than the 12m referred to in the opening paragraph), but it was common ground that the provision should be interpreted as if it did.  On that basis, there is non-compliance with that overall outcome. 
  2. [40]
    As was pointed out, on behalf of SOF, the provision is relatively strong, providing an unequivocable “maximum” building height and doing so in an overall outcome rather than in, for example, an acceptable outcome in a performance-based code which admits of the prospect of complying with the corresponding performance outcome in another way.  Provisions of this kind are apt to engender community expectations that the nominated height will not be exceeded.  Further, in this case, the proposal is greatly in excess of the nominated height for Precinct F (or indeed for any precinct) and would be significantly taller than existing development in Airlie Beach.  It does not accord with reasonable expectations as to height.
  3. [41]
    In the circumstances it is unsurprising that public notification of the development application provoked a large number of adverse submissions. The height of the proposal and general opposition to high-rise development in Airlie Beach were recurring themes of those submissions.  That the building greatly exceeds the stipulated maximum building height and does not accord with reasonable expectations as to height, are valid points of significance which militate against its approval. Whether that should ultimately be determinative is a question for consideration by the Court in the balancing exercise which must be performed in the exercise of the discretion conferred by the statute.
  4. [42]
    Other outcomes, although persisted with, do not, in this case, add much.  They are, in the way they were argued, related to the height issue.  Indeed the written submissions for SOF, having dealt with overall outcome (h) went on to acknowledge that “the other non-compliances with the overall outcomes all flow from the non-compliance with the height provisions and the associated scale of the proposed development.”[27] 
  5. [43]
    Overall Outcome (e) requires the scale, character and built form to contribute to a high standard of amenity “in keeping with the intended role and function of the particular precinct”.  Unfortunately the planning scheme is silent on the intended role and function of Precinct F. 
  6. [44]
    It was submitted for SOF, that the intended role and function of the precinct is the limitation of building height.[28]The expression “role and function” is one that, in the context of planning documents, is more commonly encountered in the context of describing the role and function of different centres in a hierarchy,[29] rather than as a description of a bare height control.[30] If that is the role and function of the precinct then this provision adds nothing of substance to the height point made in relation to Overall Outcome (h). 
  7. [45]
    The scale, character and built form of the proposal reflects its nature as a luxury resort including a regional conference facility, which is a kind of development that is appropriate.  The impact of the proposal on amenity is dealt with later and, for the reasons given, I am satisfied that the development would contribute to a high standard of amenity.
  8. [46]
    In so far as Overall Outcome (f) is concerned, Mr Buckley had no criticism of the standard of architecture or landscaping.  His only point was in relation to urban design “in its broadest sense”, as contemplating a consideration of setting.  That was relevant to his view that the proposed development, particularly by reason of its height, would have a detrimental impact on character. That is also considered later and, for the reasons given, I do not consider that the proposal would have any undue impact on character.  It otherwise incorporates a high standard of urban design.
  9. [47]
    Overall Outcome (i) relates to amenity and gives an inclusive list of potential impacts.  The evidence shows that there is no concern in relation to any of those specific impacts.  The concern in relation to amenity relates to the proposal’s impact on visual amenity and character by reason of its height.  For the reasons given later, I do not consider that there would be any unreasonable impact in that regard. In other respects (also discussed later) it would make a positive contribution.

The proposed amendments to the planning scheme

  1. [48]
    The proposed amendments to the planning scheme include the introduction of local plans, including a local plan for Airlie Beach.  The assessment benchmarks for local plans are contained in the relevant local planning code.  The subject land falls within the area to which the Airlie Beach local plan code applies.  More particularly, it falls within Precinct D.  The code features:
  • a statement of purpose;
  • overall outcomes for achieving the purpose;
  • benchmarks for assessable development in the form of performance outcomes and acceptable outcomes.
  1. [49]
    The purpose of the Airlie Beach local plan code is to provide a development framework that:
    1. promotes the unique attributes of the locality;
    2. facilitates diverse Accommodation, Business and Entertainment activities;
    3. cultivates a hub of activity, social interaction, quality public space and placemaking; and
    4. contributes to the vitality and experience of Airlie Beach, as a tropical coastal tourist destination.
  2. [50]
    The overall outcomes include the following:
  1. the character of Airlie Beach, which includes its vital small town scale, tropical climate, pedestrian neighbourhoods, compact Main Street form, Blue views to the sea and green views to Airlie Hill, visually penetrable buildings and heights and lush landscape elements, is maintained;
  1. placemaking, wayfinding and landscaping are utilised to promote a strong sense of place, encourage social interaction and activity, guide navigation throughout Airlie Beach and delineate boundaries between public semi-public and private spaces;

(n)development in Precinct D incorporates a luxury hotel, including function facilities, designed to cater for a premium tourism market.

  1. [51]
    Overall outcome (n) reflects an evolution in planning in that the proposed amendments not only carry forward the desire for function facilities, but now expressly seek those in conjunction with a luxury hotel, which includes such facilities, designed to cater for a premium tourism market.  That is what is proposed.  It has already been noted that SOF accepts that the proposal would also contribute towards overall outcome (e).
  2. [52]
    Overall Outcome (a) seeks the maintenance of the character of Airlie Beach.  The impact of the proposal on the character of Airlie Beach is discussed later and, for the reasons given, is not undue.  The description of that character includes reference to “small town scale”.  That is a reference to the scale overall, rather than to the scale of each and every building.  The desire for a luxury hotel, including function facilities will, of course, require a development of some significant scale (a term that is broader than height).  The scale of the proposal is discussed later in the context of need and is, I find, appropriate.  The description of character also references the “blue views to the sea and green views to Airlie Hill”. The proposal’s impact on those are also discussed later and, for the reasons given, is not undue.
  3. [53]
    The description of the character of Airlie Beach also refers to “penetrable buildings and heights”. The code does not however, go on to reference any building height controls.  That is left to the Building Heights Overlay Code, which is also part of the amendments.
  4. [54]
    The Building Heights Overlay Code is read with the Building Height Overlay Map.  That map includes the subject land as within an “18m above ground level” designation.  The code also includes Table 8.2.5.3.2 for local plan building heights, which specifies an 18m above ground level height for Airlie Beach Precinct D.  The respondent, in endorsing the amendments considered, but rejected, a proposal to delete the word “maximum” from the description of the designated building heights and also to delete overall outcome (a).[31]  Counsel for SOF pointed to this as, in effect, a maintenance of the building height control, notwithstanding the planning for a luxury hotel, including function facilities, designed for the premium tourist market.  Once the map and table are read with the balance of the text of the code however, it is evident that the height control, although expressed as a maximum, is not as absolute as is expressed in the existing planning scheme.
  5. [55]
    The Building Heights Overlay Code features a statement of purpose, overall outcomes for achieving the purpose and benchmarks for accepted and assessable development (in the form of performance outcomes and acceptable outcomes).  The purpose of the code is to ensure that development within the region meets the expectation of amenity and building limits for each zone and use type.  The relevant overall outcome is as follows:

“development is generally in accordance with the maximum building heights identified for specific local plan codes, zone codes and building classes….”

  1. [56]
    The reference to development being “generally” in accordance with the maximum building heights admits of the prospect of some development being of a greater height.  The relevant performance outcome and acceptable outcome are as follows:

Performance OutcomesAcceptable Outcomes

Building heights

PO1

The height of a building does not unduly;

(a)Overshadow adjoining dwellings; or

(b)Dominate the intended streetscape

character.

AO1.1

Development on a premises with slope less than 25% and within a Bowen, Hamilton Island or Airlie Beach Precinct does not exceed the applicable precinct building height specified in Table 8.2.5.3.2.

  1. [57]
    The table of maximum height is referenced in the acceptable outcome, but not in the performance outcome.  A proposal which does not conform to the maximum height in the table may still demonstrate compliance with the performance outcome.  For the reasons stated later when dealing with the evidence of the visual amenity experts, the subject proposal would meet the performance outcome.
  2. [58]
    The proposed planning scheme amendments, when considered broadly, are an evolution of the planning in the existing planning scheme.  Whilst seeking to retain Airlie Beach’s character, it recognises the need for a facility such as is proposed, being a luxury hotel, including function facilities, designed to cater for a premium tourist market.  It also seeks to have such a development in the very precinct in which the subject land is situated. Whilst the amendments continue an 18m height designation in the area in which the subject site is located, it admits of the possibility of development that does not conform to that height and the subject proposal would conform with the relevant performance outcome.   Whilst the proposal must still be assessed under the existing planning scheme, the proposed amendments would not cause me to refuse the development application, in the exercise of the statutory discretion, on the basis of the Coty principle (or otherwise).

(ii)The Regional Plan

  1. [59]
    The applicable regional plan is the Mackay, Isaac and Whitsunday Regional Plan (the Regional Plan).  It includes a regional framework in Part B and desired regional outcomes in Part C.  The Regional framework consists of a regional vision and strategic directions.  The latter include strategic directions for a strong economy and for managing growth.  They are at a relatively  high level of generality.  Part B also includes regional narratives which include one for Airlie Beach which, amongst other things, recognises that it provides a tourism related entertainment and recreational district, but also recognises the importance of its scenic amenity.  Those matters are considered in these reasons and, for the reasons given, the proposal is appropriate. 
  2. [60]
    Part C contains a tourism principle, supported by a range of policies.  The principle (6.6.1) is to continue to develop the region’s destination and sustainable tourist destinations, which offer a diverse range of activities and unique experiences to attract domestic and international visitors.  In that respect the regional plan states, amongst other things, that investment in tourism product is required for the industry to remain competitive and resilient in a demanding market.  The supporting policies include:

“6.6.7 Establish the region as a distinctive and sustainable tourism destination and facilitate a range of accommodation options in the key activity centres to cater for demand;

6.6.8 Encouraged the designation and development of tourist nodes that cater for a variety of visitor weekend experiences.”

  1. [61]
    For the various reasons discussed in the context of the evidence on need, the proposal is consistent with those provisions. It would involve investment in new tourism product in the tourism-related  entertainment and recreational district that is Airlie Beach in a way that increases the range of options to cater for the variety of visitor needs and is otherwise consistent with the regional plan.
  2. [62]
    There was agreement amongst the town planners that the Regional Plan was one of the documents that provided encouragement for the type of use proposed.  It is only the height of the proposal that they saw as at the heart of the appeal.[32]
  3. [63]
    The Regional Plan also includes a principle (8.1.1) that:

“The form of the region’s cities and towns responds to local climate character and identity, and supports compact, accessible, active and healthy communities.”

The proposal’s impact on character, by reason of its height, is considered later and, for the reasons given, is not undue.

Architecture, landscape, character and visual amenity

  1. [64]
    The proposed building, its architecture (including its landscape architecture) and its likely impact on character and amenity were the subject of analysis by Mr Curtis (called by Meridien) and Dr Hassall (called by the respondent).  They are referred to as the visual amenity experts.  They reached positive conclusions in relation to the merits of the proposal. The town planners engaged by Meridien (Mr Ovenden by the respondent) and by the respondent (Mr Schomburgk) also expressed positive opinions, but did so in substantial reliance upon the work of the visual amenity experts.
  2. [65]
    SOF did not engage a corresponding visual amenity expert.  The town planner engaged by it (Mr Buckley) however, expressed opinions about the effect of the proposal on visual amenity and character.  In the joint report of the town planners he opined that “a building more than twice the height of the existing and planned height profile must have material impacts.”[33]  In his testimony he colourfully described the visual impact of the proposal as “striking at the heart” of its backdrop and putting a “black eye in it”.[34]  I have also been mindful of the concerns expressed in the lay witness statements admitted into evidence and in the submissions to the development application, which form part of the common material.
  3. [66]
    Ultimately, I prefer the evidence of the visual amenity experts.  It was based on a careful and more thorough analysis by experts who demonstrated appropriate professional objectivity. Indeed, I note that Mr Curtis, in particular, freely acknowledged that, at first, he had his “hesitations” about the proposal.[35] 
  4. [67]
    It is appropriate, in undertaking the balancing exercise, in order to exercise the statutory discretion in deciding the development application, to consider the consequences of the proposal’s non-compliance as to height.  It was submitted, for SOF, that since visual amenity (and the acceptability of visual impacts) is inherently somewhat subjective and nebulous, these matters should be resolved in favour of giving effect to the height control in the planning scheme.  Whilst I am mindful of the importance of the planning scheme provisions, I do not consider it appropriate to close my mind to the prospect of exercising the statutory discretion in favour of a proposal which exceeds the designated maximum.  Nor do I consider it appropriate for me to assume, without due consideration of the evidence, that a proposal which exceeds the designated height will necessarily have a level of impact which calls for the adverse exercise of the statutory discretion. 
  5. [68]
    Building height can have a number of different consequences.  Accordingly, height controls can serve a range of purposes.  A logical starting point, in considering the gravity of the consequences of non-compliance as to height, would be a consideration of the purpose intended to be served by the height control in the particular precinct.  The subject planning scheme is silent about that. 
  6. [69]
    It was submitted, for SOF, that a relevant purpose is the control of height.[36] Town planning does not exist for its own sake.  If the maximum building height was simply a control for its own sake, rather than to serve some wholesome purpose, one might more easily be persuaded that factors which weigh in favour of approval should carry the day.  I have however, not acted on that assumption.  Rather I have assessed the evidence as to the nature and level of impact.
  7. [70]
    It has already been observed that the overall outcomes in the Material Use Zone Code refer to amenity. There are a number of specific amenity impacts that excessive building height may cause.  They include, for example, overlooking and privacy impacts.  For the reasons stated by Mr Curtis in the joint report, those impacts are not of concern in this case. 
  8. [71]
    It was also submitted, for SOF that the heights in the table simply increase the 12m that would otherwise apply to achieve compatibility with the intended scale and character of the streetscape and surrounding area.[37]  It has already been observed that the opening paragraph in the overall outcome does not apply to precincts in the table.  The potential impact of the proposal on streetscape is however, considered below.
  9. [72]
    It has been noted that, in the proposed amendments to the planning scheme, the height control is referenced in the acceptable outcome to a performance outcome that requires the height of a building not to unduly:
    1. overshadow adjoining dwellings; or
    2. dominate the intended streetscape character.
  10. [73]
    Overshadowing was analysed by Mr Curtis in the joint report.  His conclusion that there would be no unacceptable impacts was not challenged and I accept it.
  11. [74]
    The potential impact upon the intended streetscape and indeed, the nearby locality, was assessed by Mr Curtis and Dr Hassall.  The proposed building form is not monolithic.  It has been designed[38] to reduce visual bulk by a range of measures, including by breaking the built form into components. 
  12. [75]
    The proposal has a tripartite architectural composition comprised of a base (podium), middle (tower) and top (roof terrace and wing roof).  This modulates the bulk of the building to create three primary components.  The tower site cover is significantly less than that of the podium.  The podium is two storeys in height with a roof terrace on its extended eastern side.  The external walls of the podium are typically set back from the edge of the floor plates behind open terraces with perimeter columns.  Those perimeter columns “layer” the façade’s appearance and moderate the podium’s length and width.  As Mr Curtis opined:[39]

“The podium will provide an animated and activated human scale interface to the adjoining pedestrian areas to the west and south.  The interface will contribute to and extend the pedestrian focussed “Main Street” environment of the Airlie Esplanade to the east and along Canal Street where it will connect with the POA Boathaven Marina boardwalk.  The hotel will assist to integrate the currently remote POA and existing ‘Boathouse’ development with Airlie Esplanade’s ‘Main Street’ environment.”

  1. [76]
    The tower, which rises above, but is set back from, the podium has a range of architectural features and is then “capped” by the top of the building which is differentiated by other architectural features.  As Mr Curtis observed:[40]

“The podium and tower are clearly legible as separate components and each is highly articulated by architectural elements that fragment the visual mass, reflect the human scale and provide a visual interest.  The podium provides a gradation of height and bulk that effectively mitigates the impact of the tower’s height to avoid a sense of overbearing.  The arrangement of elements provides visual complexity, which enhances visual interest…”

  1. [77]
    Dr Hassall, having reviewed the landscape concept plans reached the conclusion that:[41]

“Landscaping as proposed will effectively mitigate any visual impacts of the proposed built form at the street level around and near the subject site…”

  1. [78]
    As Mr Curtis said:[42]

“the height of the proposed development will be effectively mitigated by the modulation and articulation of the built form, and the transition of height provided by the podium to the street level pedestrian environment.  This transition, assisted by the surrounding landscaping will prevent the tower’s height from overwhelming the neighbouring streetscape.”

I am satisfied that the proposal would not dominate the intended streetscape character or otherwise have any undue impact on the streetscape.

  1. [79]
    I also accept the evidence of both Mr Curtis and Dr Hassall to the effect that not only will the proposal not overbear, overwhelm or dominate the intended streetscape character in any adverse way, but will also make a positive contribution.  That is discussed later.
  2. [80]
    Mr Buckley’s main concern was the impact on the character of Airlie Beach, including on views that are part of the appreciation of that character.  Dr Hassall undertook a detailed assessment of the character of Airlie Beach.[43]  He found that:
    1. Airlie Beach has no single, uniform character, but is rather composed of a complex mix of parts, with a high diversity of scenic and visual amenity, and hence urban character;
    2. the different parts of Airlie Beach that contribute to its overall character include:
      1. the western Cannonvale approach and the Coral Sea marina;
      2. the Airlie Beach town centre with its tourist offers and experiences;
      3. the elevated and ridgeline streets with their residential built forms;
      4. the esplanade and foreshore, centred around the lagoon, restaurants and sailing club;
      5. the Port of Airlie including the subject site; and
      6. the forest and approach to Shute Harbour.
    3. there is diversity in both the natural and artificial components of Airlie Beach;
    4. there is no one single character or dominant class of built form;
    5. many of the views from land-based public and private places to the bay and forested hillsides and ridgelines are notably panoramic.
  3. [81]
    Dr Hassall saw the natural character as dominant and affording the scenic amenity of views to the bay and forested hillsides and ridgelines which, in turn, substantially define the visual amenity of Airlie Beach.[44]Assuming all else to be equal, the proposal, by reason of its height, will intrude into some views to a greater extent than if it were height compliant.  As Dr Hassall determined however, the panoramic nature of those views are such that they will not be significantly impacted, due to the distance and the minor arc of view of the proposal compared with the panorama otherwise enjoyed.  As he explained, panoramic views are viewed in a dynamic way, with the viewer usually moving their head/eyes through the arc of view.[45]  His evidence was that the proposal “just won’t have much of an impact”[46] given the nature of the views.
  4. [82]
    In so far as those in development on the elevated land behind the proposal is concerned:
    1. the subject land sits to the east of a deal of that development;
    2. the tower is oriented such that it presents its narrow side to the south, thus minimising the extent of visual intrusion into the panorama otherwise enjoyed;
    3. whilst Mr Curtis accepted that the impact on those would not be either celebrated or trivial,[47] I am nonetheless satisfied that the extent of impact is appropriately described as minor in the context of the panorama.
  5. [83]
    It has been observed that Dr Hassall identified the essence of Airlie Beach’s character as arising from the panoramic views already discussed.  He saw the built form as an eclectic mix of styles that has just happened over the years.[48]  Putting height to one side, there is nothing about the character of the built form which would make it inappropriate in its context.
  6. [84]
    Dr Hassall further explained his approach in the following part of his testimony:[49]

“…my approach to this subject, if I can just go back – take a step backwards in relation to the building sitting out where it is in the middle of a grass paddock at the moment, obviously, the land itself is reclaimed.  It used to be tidal mudlands – mudflats, but it has been reclaimed and approved as the Port of Airlie development.  It’s – it’s a part of a very rare commodity in Airlie Beach – or, in fact, anywhere in that area in that it is flat land.  It’s only situated about four metres above sea level, so quite low down – above the storm surge, I hope, but nevertheless, fairly low down in the landscape.  Other parts of Airlie Beach are, obviously, steep hills, ridges – whether you would call them amphitheatres or not, I am not sure, but there is an amphitheatre in – in – in parts of Airlie Beach, but they’re generally quite – quite steep topography and quite different from what’s on the – on the flat – on the coastal flat.  So yeah, the – the answer is this – this development will change the character of that area.  There’s no doubt about that.  But there’s also no doubt that the character of the area is developing and will change considerably even if all of the buildings are consistent with the planning scheme and – and it’s also no doubt at all that those buildings, whether they’re four, five or six storeys high, will also interfere with some people’s views.  There’s no doubt about that.  But if we look at this particular tower in the middle of the flat, currently undeveloped area, we see that from the architectural plans, there’s dimensions of the tower are about – where did I have a look at it before?  About 25 by 54 metres, your Honour, which gives it a floorplate of about – 1370 square metres.  And if we compare that with the – the whole area of precinct F in the planning scheme, in the zoning map, it – it only represents about 4.4 per cent of that area.  Furthermore, the – the major views from the southeast, which is where the hillside housing is, are of the thin side – the slim side of the building, if you like, and I think I outlined in our – in our report an example of the percentage of the panoramic view that would be impacted by – by the tower and that was, you know, something around – of the order of one or two per cent.  So one of the key takeaways for me, looking at the site, was that what wonderful panoramic views there are in Airlie Beach.  Not only that, but Airlie Beach has a – an extremely diverse and difficult to describe character.  So, you know, we’re talking about a building and the allegations are that the building won’t – it won’t protect the character of Airlie Beach, it won’t protect the core landscape values.  Well, in my view, your Honour, from my experience and my site investigations – and I particularly refer you to appendix A in our joint – the – the essence of Airlie Beach’s character is the scenic amenity that we enjoy there from panoramic views to the sea and the offshore islands and also inland, to the ridges and the forested – the steeply forested – well, they’re rainforest or vine forest, if you like, mostly in those areas.  And the combination of those two elements is what makes it unique.  It’s the shape, the overall topography and the shape of the land that makes the character.  It gives it its character.  The natural environment dominates the character.  The building environment is just a mixture – an eclectic mix of different styles and that’s happened over the years.

Yes?---But here we’ve got very, very little flat coastal land and so we have developed the slopes, but the visual impact of that is enormous.  When you come back from the Whitsunday Islands sailing into Airlie Beach that’s pretty much the first thing you notice about Airlie Beach, but – so I just think two really important takeaways for me here looking at this site and the surrounds are (1) the highly complex and diverse nature of the character, and I’ve tried to illustrate that to the court by this appendix A series of 30-odd images that illustrate differences in character both for built form character and for natural character.  That’s number 1, and number 2, the views are sensational.  They’re panoramic views.

They are very good, aren’t they?---And you know, if you’re up there on the hills, you know, you’ve got at least a 180 degree view and, you know, when you look down there and see this tower in the years to come or something like it, then, that will only be – you know, that will be the thumbnail in the middle of your hand.  It won’t – it just won’t have much of an impact.”

  1. [85]
    The proposal’s height is significantly greater than existing development in Airlie Beach.  It sits however, on relatively low, flat, reclaimed land near the coast and is therefore not sited intrusively in the landscape as are some of the hillside dwellings.  The extent to which its height, on the flat land, in an area where further development is likely, will be prominent will, as Mr Curtis explained,[50] depend upon the viewer.  Those enjoying the main street environment, particularly at night, would likely find the height incidental.  For those viewing from a vessel coming in from the bay, the height of the proposal would likely merge with the development on the more elevated land that cascades up the hill behind.  For others however, such as those on elevated land behind it, it will be prominent.
  2. [86]
    As Mr Curtis pointed out[51], to the extent the proposal’s height will give it prominence, it will be understood as forming part, not of the dominant natural panorama, but of the townscape and, in particular, the extended Airlie esplanade entertainment and tourism focus.  In that context its greater height, although non-compliant with the existing planning scheme, will complement its evolving built form context and reinforce the legibility of the resort, with its luxury hotel and conference facility, as an important facility for Airlie Beach.[52]  It has already been noted that SOF does not dispute that the proposal would fulfill an important placemaking and wayfinding function consistent with the proposal amendments to the planning scheme. I accept the evidence of both Mr Curtis[53] and Dr Hassall[54] who regarded the proposal as integrating with the existing urban structure.  I am satisfied that the proposal’s impact on the character of the built form would not be undue in the circumstances.
  3. [87]
    For the reasons given, I reject Mr Buckley’s contention that the consequences of the approval include a “substantial erosion” of values.[55]  Further, any degree of adverse impact needs to be balanced with the benefits of the proposal’s built form and associated landscaping.  Those referred to Mr Curtis included:[56]
  • the design of the proposed development in accommodating the uses, will provide an activated pedestrian scale interface with the adjoining public space to the west of the site;
  • the podium’s activated interface with the adjacent public park will provide the opportunity for the casual surveillance of the park and enhance public safety;
  • the public space interface will be animated by the terrace and colonnade to provide visual complexity and interest for the pedestrian environment and complement the landscape character of the open space;
  • the porte-cochere will activate and complement the canal streetscape.  It will be clearly identifiable as the entrance to the hotel and will contribute to the casual surveillance of Canal Street;
  • the hotel will create a legible activity hub that will connect Airlie esplanade and the foreshore to the existing POA boathaven marina and boathouse development;
  • the hotel tower will address the Airlie esplanade and Coconut Grove intersection with a visually complex façade appearance that incorporates significant landscaping on each level to provide a partially landscaped and vertical backdrop to the “main street” environment of Airlie esplanade and the foreshore;
  • notwithstanding the vertical landscape, the façade will also be characterised by an animated appearance comprised of grouped balconies and timber-blade screens arranged in a complex pattern that will fragment the visual mass of the façade’s bulk.  The façade will provide visual interest to the urban character of the town centre;
  • the overall tripartite visual composition of the building will be highly legible as a resolved architectural form on the base, middle and top of the tower terrace will “cap” the built form and contribute to its landmark presence.  The hotel will reinforce the legibility of the precinct as the focus for entertainment and tourist activity
  • the proposed development will create an attractive and visually appealing building with a high standard of amenity and visual interest.
  1. [88]
    Dr Hassall expressed the view that:[57]

“The landscape concept plans proposed by the applicant and assessed by Council will, when documented and installed at the operational works phase as conditioned, achieve a high standard of presentation, enhancing the built form, urban design and visual amenity around the proposed development and its locality.”

  1. [89]
    Further, in discussing the benefits of the proposal, Dr Hassall pointed to the provision of the rooftop bar and terrace, with public access, that will become a significant lookout with potentially 360-degree panoramic views to Pioneer Bay as well as the forested hills and ranges.  Mr Curtis also referred to the rooftop bar as something that would contribute positively to scenic amenity.[58]
  2. [90]
    I am satisfied that the proposal offers the above benefits and that, taken together, they outweigh any adverse impact arising from the proposal’s non-compliance as to height.

(iv)Need

  1. [91]
    In considering the issue of need the Court had the benefit of evidence from economists (Ms Meulman, called by Meridien, Mr Stephens, called by the respondent and Mr  Boardman, called by SOF) and industry experts (Mr De Wit, called by Meridien and Mr Stafford, called by the respondent).  The joint report of the economists reviewed provisions of:
  • the Mackay Isaac Whitsunday Regional Plan;
  • the Whitsunday Region Economic Development Strategy 2017 – 2021;
  • Draft Regional Economic Development Strategy 2022 – 2025;
  • the Whitsunday Destination Tourism Plan 2019 – 2024;
  • the Strategic Framework of the Whitsunday Planning Scheme.
  1. [92]
    As Mr Stephens said,[59] those documents, read together:
  • recognise the importance of the tourism sector, the economic development and opportunities in the region;
  • support ongoing growth in the tourism sector, including at Airlie Beach;
  • recognise that tourism growth is enabled by, amongst other things, diversity of the tourism offer, in order to increase not just the number of tourists but the length of their visits and the amount of their spending;
  • recognise the opportunity to provide diversity at Airlie Beach, including through delivery of high end accommodation.
  1. [93]
    To the list of documents reviewed by the economists could now be added the proposed amendments to the planning scheme, which, as has been observed, encourage development of the very kind proposed in the precinct within which the subject land falls.
  2. [94]
    As Mr Stephens opined,[60] a key factor in growing visitor nights is the availability of a supportive range of commercial accommodation providers, including premium options.  As Ms Meulman said,[61] the Airlie Beach accommodation market is dominated by self-contained apartments with limited hotel accommodation, including business standard or luxury hotel accommodation, with facilities that would be expected by markets seeking upmarket accommodation options in Airlie Beach and the Whitsunday mainland.  Most existing hotels and resorts were developed in the early 2000s, although some have been redeveloped/repositioned since.[62]
  3. [95]
    Having reviewed the facilities currently offered in Airlie Beach, Mr Stafford found that none are to the 5-star level (as rated by Star Ratings Australia) to which the subject proposal is to operate.  The proposal would offer an accommodation facility substantially superior to anything else presently offered in Airlie Beach.[63] It would allow Airlie Beach to cater to a premium market.
  4. [96]
    As Mr Stephens pointed out in the joint report[64] sight should not be lost of the proposed facilities beyond the luxury accommodation to be provided.  As he said:

“The development, as proposed, includes important ancillary elements including rooftop bar which has the potential to be a high-profile attraction in its own right, as well as function space and ballroom.  This means that the subject proposal has the ability to accommodate functions and events, adding further to the attractiveness of Airlie Beach and the region as a location for private and corporate functions.  At present, the function and event capability in Airlie Beach is relatively limited, particularly in comparison with Hamilton Island which is a well-recognised events destination.  It is also anticipated that the local community will also utilise these function and event spaces.”

  1. [97]
    There is an obvious synergy between the accommodation and function components of the proposal.  As Ms Meulman said:[65]

“There is a natural connectivity and integration between function facilities and short-term accommodation.  More particularly, those attending parties, functions and events including weddings, may benefit from access to overnight accommodation options before or after the event or function.

…

Moreover, that there is a clear expectation of visitors attending a function or event to be able to stay on-site during and around the event…

…The proposed hotel development with function facilities has the capacity to attract business events to the Whitsunday mainland with flow-on economic benefits to the existing and establishing tourism sector within the Airlie Beach and Whitsunday region including hotel operators.”

  1. [98]
    Mr Boardman pointed out that the Airlie Beach tourist market is also served by charter boats, some of which provide a premium experience for those who stay on them for a few nights.  As Mr Stephens and Ms Meulman pointed out however, there would be a synergy between that market and the proposal, with some of those wishing a premium short stay on a boat also enjoying some time before or after in luxury accommodation at the proposed facility.[66]
  2. [99]
    Mr Stephens and Ms Meulman saw the conference and rooftop bar facilities as being of value both to visitors and to the local community.  I accept that would be so notwithstanding Mr Boardman’s reservations (discussed later).  It was suggested, in the course of cross-examination, that the extent of community opposition to the subject development application is such that the facilities would not be welcomed/used by the local community, but Mr Stephens testified[67] (and I accept) that controversial developments can, at least after an initial phase, become well patronised by a local community.
  3. [100]
    The proposal is also well-located to respond to the need.  It has already been noted that the town planners described the site as strategically located. Similarly, Mr Stephens referred to the subject land as a “prominent and strategic position in proximity to the town centre, marina, waterfront and tourist facilities” and as having attributes which make it “well-suited to a quality commercial accommodation provider”.  Mr Boardman opined that the subject land is a good location for a luxury hotel given its proximity to town and other tourism infrastructure.[68]  Ms  Meulman pointed to the following (which I accept):[69]
    1. the subject site is conveniently and accessibly located within the Port of Airlie precinct and within walking distance of the marina and cruise Whitsunday terminal offering convenience and amenity for overnight guests at the hotel;
    2. the subject site is also at the end of the Airlie Beach main street/esplanade, and would be conveniently and accessibly located for hotel guests to the array of retail, dining and entertainment options within the village centre of Airlie Beach and thereby contributing to the overall economic viability and vibrancy of the Airlie Beach village centre. 
    3. the Shute Harbour and marina approval (10km from Airlie Beach) reflects the economic and community need for investment in and diversity of tourism products within the Whitsunday mainland area, but is detached from the Airlie Beach main street and will address only part the increasing demand for short-term accommodation within the Whitsunday region;
    4. from an economics perspective, therefore the subject site is exceptionally well-located to deliver an upscale hotel for Airlie Beach and the Whitsunday mainland area that will improve choice in location, operator and nature of hotel accommodation in Airlie Beach, contribute to much needed additional rooms within the Airlie Beach area, and contribute significant economic benefits to the Airlie Beach and Whitsunday community.
  4. [101]
    The economic and community benefits associated with a luxury hotel at the subject site include:[70]
    1. the upskilling of the local hospitality workforce to meet the standards of a premium hotel operation;
    2. the additional employment generated by premium hotels on a per room basis that reflects the higher standards of service;
    3. the ability to attract high spending visitors
    4. diversifying the premium accommodation options available in the Whitsunday tourism region;
    5. assisting in the ability of Airlie Beach (and the Whitsunday tourism region) to host and support events;
    6. the ability to attract and service a premium international tourism market;
    7. serving the corporate and private events market, noting the availability of direct flights to Brisbane, Sydney and Melbourne.
  5. [102]
    Further, as Mr Stephens said in his individual report (and I accept):[71]

“In my view, the project is a demonstration of confidence in the tourist and visitor market in Airlie Beach which would:

a. Complement and enhance the demand at the bars, food and beverage outlets, retail and entertainment uses in the adjacent approved development

b. Further support the evolution and elevation of Airlie Beach as a tourism market supporting high-spending visitor groups, in addition to the more traditional visitor markets

c. Be a positive indicator of market demand for other potential tourism operators and investors in the region.”

  1. [103]
    The proposal would address a public or community need to improve the extent and adequacy of the facilities offered in Airlie Beach in circumstances where there is a clear gap in what is currently offered.  Further, the market is strong and growing, such that more facilities are and will be required.  In that regard the joint report of the economists reveals:
    1. ongoing population growth responding, in part, to opportunities in the tourism sector;[72]
    2. high occupancy rate for accommodation facilities within the Whitsunday tourism region.  In the year ending December 2022 the occupancy rate was the second highest for Queensland and higher than it had been in 2019;[73]
    3. a revenue per available room rate (RevPAR) for the Whitsunday region of 84% higher than the State average, placing the Whitsunday tourism region as the highest RevPAR of any tourism region in Queensland;[74]
    4. a very high share of overnight visitors to the Whitsunday region on holiday;[75]
    5. a 61% increase in visitor nights in the Whitsunday tourist region between September 2019 and September 2022[76] and an upward trend line in passenger numbers through the Proserpine Airport;[77] and a new budget airline (Bonza) commencing services.  Ms Meulman anticipates some 360,000 to 370,000 passengers through the airport by 2024, with growth continuing thereafter;[78]
    6. a forecast of substantial future growth in visitor nights and hotel room demand as a result of increasing leisure travel,[79] and
    7. a range of tourist development approvals within the Whitsunday region including;
  • the $350m Shute Harbour Marina and Resort Hotel – 10km from Airlie Beach;
  • Funnel Bay Resort (140 rooms);
  • other development within the Port of Airlie.
  1. [104]
    As Ms Meulman said,[80] there is strong and increasing growth in domestic overnight visitor numbers and a return to international visitor numbers to the Whitsunday region which will generate increasing demand for short-term accommodation options including access to hotel rooms.  As Mr Stephens pointed out,[81] the proposal, if granted a preliminary approval, is unlikely to come to fruition for a few years (allowing time for further approvals and construction) during which time there will likely be continued tourism and commercial accommodation demand growth.
  2. [105]
    Although “luxury” refers to a standard rather than a size,[82] the scale of the proposal is also appropriate to respond to the need. The number of rooms is as recommended by Urban Economics,[83] adopting a recommendation from Axia on the appropriate guest room key count from a feasibility perspective.[84]  As Ms Meulman said:[85]

“The proposed 180 rooms provide the critical mass of rooms and guests and therefore supports the diversity of on-site recreational, leisure, function, dining and beverage outlets within the subject development in contributing to the upper upscale nature of the proposed hotel.”

  1. [106]
    I accept Mr Stephen’s evidence that a luxury hotel/resort of 180 rooms as proposed:[86]

“Is of sufficient scale to represent a genuine luxury accommodation offer not currently provided in Airlie Beach, while also being proportionate to the level of expected demand.  A facility of this size is likely to be attractive to potential branded hotel operators…”

And that:[87]

“The proposed luxury hotel development will deliver significant economic and community benefits associated with investment, employment generation, economic opportunity and the provision of facilities, including function and events spaces, expected to be used by both locals and visitors.  These benefits are closely related to the scale of the proposed facility at 180 rooms.”

  1. [107]
    Although examples of low to medium rise luxury hotels can be found elsewhere (such as the Calile Hotel  in Brisbane)[88] accommodating the proposed scale of development on the subject site creates a need for a non-compliant building height because, as Mr Curtis (an architect) said,[89]  development of that scale could not be accommodated by built form within the designated 18 metre height.
  2. [108]
    In the joint report of the economists, Mr Boardman sought to separate the issue of need into whether there is a need for the facility and whether there is a need for the building to be higher than 18 metres.  It is the second of those which was the focus of  his conclusions. He said that:

“Although there may be some economic need for a hotel to accommodate visitors in Airlie Beach, there is no community or economic need for the increase in height.”[90]

  1. [109]
    As to the first consideration he questioned whether the need had been established for a luxury standard hotel.  That is discussed later.  As to the second he asserted that:
    1. community need is best demonstrated in the planning scheme provisions as to height;
    2. the potential cost to the community is expressed in the number of objections received during the public notification of the development application; and
    3. the community and economic costs of the proposed code variation “far exceed any community or economic need”.

In so contending Mr Boardman’s opinions appeared, at least to some extent, to extend beyond the purely economic and enter the realm of town planning. 

  1. [110]
    In his testimony Mr Boardman:
  • conceded that “I could accept there – there is a need for, based upon the economic – the information which has been put before us, for a five-star luxury hotel, however, not one which is before this court”, because of what he sees as the lack of need for its height.[91]
  • gave confusing evidence in which he initially said that “I don’t necessarily disagree that you need 150 rooms”, before going on to disagree.[92]  I prefer the evidence of Ms Meulman and Mr Stephens, already noted, to the effect that the scale of the proposal is appropriate.
  • although saying that he could accept that there is a need for a 5-star hotel, contended that the proposal would not help to grow the tourism market in Airlie Beach, but rather would accommodate those who would otherwise stay elsewhere in Airlie Beach (i.e. simply compete with other facilities).  He so asserted notwithstanding conceding that the proposal would be a different type (not self-contained units), at a different level of cost and offering a different standard of service than existing facilities and would be a contemporary facility.  Having regard to matters discussed earlier, I have no hesitation in rejecting the assertion that the proposal would not assist in growing the Airlie Beach tourist market.
  • again linked the “community” cost to the number of adverse submissions (a matter of relevance in the appeal, but not one of economic analysis) and was reluctant to acknowledge the benefits the proposal would offer the community other than providing some choice and employment.  Whilst acknowledging the community could “possibly” use the proposed function facilities, he dismissed the potential use of the rooftop bar and restaurant by the community on the basis that the operator would not want to encourage use by “the great unwashed” in addition to hotel guests.[93]  I would not describe the community of Airlie Beach as “the great unwashed” and have no hesitation in accepting that each of the facilities referred to would be of benefit to the community as well as guests of the hotel.
  • asserted that there might be an economic cost to existing hotel operators if they are forced to reduce their rates as a consequence of the reduced visual amenity offered to their guests by reason of the intrusion of the proposal into the view that was once available.  I reject that speculation.  Apart from anything else, it has no sound factual basis given my findings in relation to visual amenity.  As discussed earlier, the proposal is likely to have positive flow-on economic benefits.  From the community perspective I am well satisfied that the proposal would lead to an overall increase in the extent and adequacy of the facilities provided.
  1. [111]
    In the joint report Mr Boardman suggested that potential economic benefits from the proposal would principally accrue to the liquidators and receivers of Meridien.  The financial difficulties of Meriden are of no consequence, particularly given the evidence of Mr Offord.
  2. [112]
    The case for the proposal, particularly with respect to need and town planning, was put on the basis of it being a luxury 5-star facility.  Mr Ovenden, for example, acknowledged[94] that it would not be a good planning outcome if the proposal were approved on that basis but did not operate as such.  Mr Stafford said that would be a retrograde step.[95]
  3. [113]
    Any approval of the proposal is to be conditioned to require it to operate as intended.  That is not straight forward because of different perceptions of what constitutes “luxury” or “5-star” standards and the somewhat subjective nature of assessments of such matters.  Whilst, as Mr Stafford said,[96] there is no universally accepted or applied accommodation rating system, the proposed conditions of approval adopt the star rating scheme administered by the Australian Tourism Industry Council and Star Ratings Australia.  Those proposed conditions (as amended by agreement amongst the parties) include the following:
  1. “6.1
    The development must achieve a five-star or higher luxury hotel rating under the star rating system administered by the Australian Tourism Industry Council (ATIC) and Star Ratings Australia.  Where that scheme is discontinued, or is superseded, the rating scheme to be applied must be the equivalent independent rating scheme in force at the time of commencement of the use administered by the official accrediting body for hotel ratings in Australia at that time as determined by Council in writing.
  2. 6.2
    The approved development must be operated at all times as a luxury integrated tourist facility consistent with the five-star or higher luxury hotel rating as specified under Condition 6.1.”

In the course of the hearing it was pointed out that Condition 6.1 should be further amended to require the 5-star rating not only to be achieved but also to be maintained. 

  1. [114]
    In order to fulfill the 5-star criteria a property must typify luxury across all areas of operation, guests must enjoy an extensive range of facilities and comprehensive or highly personalised services and must display excellent design quality and attention to detail.  In order to give some comfort that the facility will provide services commensurate with that standard, Meridien volunteered a further condition of approval requiring provision of specified minimum standards of service.  They include provision of (amongst other things):
  • both rooms and suites, with no less than half allowing for interconnection;
  • a spa offering at least 16 treatments;
  • a business centre;
  • 24-hour staffed reception;
  • valet parking;
  • both a fine dining restaurant at ground level and a further dining option at the rooftop.
  1. [115]
    I accept Mr de Wit’s evidence[97] that the development constructed as proposed and providing the proposed levels of service would be “absolutely capable” of achieving the 5-star rating. 
  2. [116]
    The proposed conditions will not be effective however, if the facility is unable to attract or retain an operator willing to perform to them.  Mr Boardman cast some doubt on the ability of Airlie Beach to support the provision of a luxury standard facility.  He did so by reference to the Axia report lodged with the respondent in the course of the development application process.  That report observed that Airlie Beach is not presently a mature resort market for upper upscale guests.  It went on to “benchmark” the proposal against existing luxury hotels in Surfers Paradise, Sanctuary Cove, Noosa, Hamilton Island and Port Douglas. 
  3. [117]
    Its key recommendations were:
  • the hotel needs to be positioned to maximise competitive advantage against the targeted competition;
  • the appointment of an internationally respected hotel operator;
  • an international respected brand, with broad market appeal, that is currently present in key feeder markets;
  • investors consider a “whole of project” return
  1. [118]
    Axia expressed the view that “to compete on level terms”, the following issues would need to be addressed:
  • access to Airlie Beach – increased demand must be supported by growth in passenger movements to and from Whitsunday Coast airport;
  • improved local amenity – quality of restaurants, bars, entertainment etc. needs to improve to cater to the needs of upper upscale guests.  Amenity needs to compete with the mature resort markets referenced in the competitive set.  These hotels all have good F & B and retail options within the hotel as well as in the local community;
  • time – the ability to support an upper upscale hotel will require development of the destination and growth in visitation;
  • marketing – a co-ordinated approach is strongly recommended with a commitment to marketing; ideally supported at a local, regional and State Government level (i.e. the hotel, the Whitsunday Regional Council, Tourism Whitsundays and the Queensland State Government).
  1. [119]
    Mr Boardman said that the above, particularly the second, have not been achieved.  In the course of cross-examination he made it tolerably clear that he was not setting out his own opinions as to what is required, but simply observing that what Axia had suggested has not yet come to pass.[98]
  2. [120]
    It should be noted that Axia’s recommendations related to what would be required to compete “on level terms”.  I accept Mr De Wit’s evidence[99] that Airlie Beach does not need to do that because it has advantages of its own.
  3. [121]
    It should be noted that the Axia report comes before the Court as part of the common material.  It is a three year old report whose author was not engaged as an expert to give evidence in the appeal and was not otherwise called.  That affects the weight I am prepared to give it, particularly to the extent its contents are not adopted by one or other of the experts.  In this case the industry experts had regard to the Axia report when completing their joint report, because it was the only analysis then available to them.[100]
  4. [122]
    I acknowledge that Airlie Beach is not a mature premium market in the sense of the areas against which it was benchmarked in the Axia report.[101]  That is unsurprising given its lack of luxury standard accommodation. 
  5. [123]
    Reliance was sought to be placed on expressions of interest that Meridien has already received from potential operators.  Those expressions of interest were put before the Court as letters, addressed to Meridien, exhibited to the statement of Mr Offord.   No-one from those potential operators produced an affidavit or statement for the purpose of the proceeding and none were called as witnesses.  Meridien’s dealings with those potential operators are apparently at a very early stage.  In the circumstances I am not prepared to place significant weight upon them.
  6. [124]
    I am satisfied however, that the proposal will be able to attract an operator to attain and sustain the desired rating and level of service in accordance with the conditions of approval and provide for the luxury market.  In that regard I am mindful of the evidence of the:
    1. strong and growing demand;
    2. upward trendline of passengers coming through the airport (and the commencement of flights from a new operator);
    3. obvious gap in the market;
    4. suitability of the strategically located subject site;
    5. appropriate range and scale of facilities proposed;
    6. quality of the proposed built form in terms of its architecture, landscaping and consequent appearance;
    7. efficiency of the tower on podium design from an operating costs perspective;
    8. opportunity, provided by the tower on podium design, for most guests to enjoy premium quality views.  The site is on low, flat land that is near but not at, the water’s edge.  Views from the proposed rooms  will be affected up to floor 4 (affecting approximately 24 rooms which would potentially be offered at lower rates to guests on discounted tours or group bookings).[102]  The views from Levels 5 to 10 will not be obstructed and will afford premium quality views.[103]
    9. Airlie Beach is an evolving market;[104] further development will occur that has the potential to be complementary to a luxury resort and it is likely that the subject development itself will act as something of a catalyst for Airlie Beach’s evolution towards a more mature premium market.[105]
  7. [125]
    The matters of efficiency of operation and availability of rooms with premium views are of obvious relevance to the attractiveness of the proposal to the operator of 5-star luxury resorts/hotels of this scale.  I note that Mr Boardman, in the joint report of the economists, also referred that part of the Axia report that described efficient design and the optimisation of views from guest rooms as “critical to success”  in  maximising investment returns and are achieved or enhanced by the tower configuration.  Mr Curtis spoke of the height of the proposal as being necessary to provide guests with high quality views to enhance the amenity of the hotel.  Mr Boardman accepted that guests staying at a luxury hotel at Airlie Beach would expect access to spectacular water views.[106]  There is, at least for this site, a tension between the nominated maximum height in the planning scheme and the provision of development of the scale proposed, to address the need, in a built form that is efficient and provides the majority of guests with access to the wonderful views of Airlie Beach that guests of a luxury standard facility at this location likely would expect.
  8. [126]
    For the reasons stated, I accept that there is a public or community and an economic need for the proposal.
  9. [127]
    It was contended, for SOF, that there is no need to approve the subject development, with its height (or grant the variation request in relation to building height), in order to secure the benefit of the facilities it offers, since a different, height compliant, proposal could meet the need.  That is a planning need-style argument combined with a better hypothetical proposal argument. 
  10. [128]
    Planning need issues ordinarily arise in circumstances where approval for a needed and otherwise acceptable facility is sought on land other than where it is contemplated by the planning scheme.  The question then arises as to whether the planning scheme appropriately provides for the development to occur elsewhere.  That informs a conclusion as to whether it is in the public interest (i.e. whether there is a planning need) to grant an approval to facilitate the provision of the facility on the proposed site.  That is not this case.  The subject land is an appropriate site for a development of this kind under the planning scheme.  The proposal is not in the wrong place, it simply does not comply with the provisions as to height. 
  11. [129]
    The contention of SOF is, in effect, that the Meridien should come up with a different, height compliant, proposal either on the subject land or on an enlarged site. The court does not however, have such an alternative before it.  There is no binary choice between the subject non-compliant (as to height) proposal and a differently designed hypothetical, height compliant, proposal that would meet the identified need.[107]  In so far as it relates to a hypothetical alternative on the subject site the proposition is also, as I have already noted, not practical on the evidence of Mr Curtis. 
  12. [130]
    In so far as the hypothetical alternative relates to other land, it responds to the evidence of a scarcity of other sites which could accommodate the proposed development.[108]  The hypothetical possibility which was focussed on was a height compliant development over a larger site comprised of the subject site and Lot 106, being another vacant lot, controlled by Meridien in the same precinct, both under the existing scheme and under the proposed amendments.  I do not consider that it is in the public interest to refuse the current development application for a facility that would address the public or community need in the speculative hope that Meridien might then pursue a different, height compliant, luxury hotel and conference facility spread across those two lots.  In that regard:
    1. Lot 106, although currently vacant, is planned for a different development which has received development approval.[109] The SOF scenario relies on Meridien being prepared to abandon that approved development in favour of a hypothetical alternative.  There is no basis to assume that would occur. Further, the development the subject of that approval is for facilities which would increase the facilities available to the community and potentially complement the proposed luxury resort and conference facility; and
    2. there is a dedicated road, leading to a planned boardwalk, physically separating Lots 105 and 106.[110]
  13. [131]
    It should be noted, in relation to both scenarios, that the tower on podium design, which is height non-compliant, does not just accommodate the proposed facilities, but has utility otherwise, in the respects previously identified.

Relevant matters

  1. [132]
    The relevant matters upon which reliance was placed (by one or other of the parties), to the extent made out, were as follows:
    1. the development being well-located;
    2. the development comprising an attractive and visually appealing building;
    3. the development complementing existing development, and acting as a catalyst for further development and investment within Airlie Beach;
    4. an absence of similar development within Airlie Beach;
    5. the development’s contribution to the Region’s economic growth and tourism, including those outcomes envisaged in the Tourism Whitsunday Destination Tourism Plan 2019 – 2014;
    6. the requirement for the size and scale of the development to respond to the established need for the proposed resort complex incorporating a regional function facility;
    7. the absence of adverse amenity impacts associated with the development;
    8. the development being inconsistent with the reasonable expectations of the local community, informed by the planning scheme intentions for the subject site and the submissions; and
    9. the proposed development would unduly compromise future submission rights for further development applications.
  2. [133]
    All but (i) have been dealt with already.  For the reasons given I accept (a) to (f).  As to (g) there will be some visual amenity impact, but it will be minor and outweighed by the positive contributions identified earlier.  I accept that the proposal does not accord with reasonable expectations as to height.  In relation to (i), the preliminary approval would have the effect of over-riding the planning scheme, but there is nothing untoward about that.  The objection to the requested variations removing submission rights for future development applications is dealt with later.

The discretion

  1. [134]
    The proposal is non-compliant, and beyond reasonable expectations, in relation to height.  That is a significant matter, particularly in the context of the present planning scheme provisions.  For the reasons given however, I find that the impact of that non-compliance is, in the circumstances, minor and the proposed built form and landscaping is otherwise meritorious and will make a positive contribution. 
  2. [135]
    The proposal responds to a significant, public or community need as well as an economic need.  The proposal is an appropriate response to that need, including having regard to the type and scale of facilities proposed.  The site is a strategically located and suitable site for the location of such facilities. The provision of that scale of facilities on the subject site would bring a range of benefits, discussed in these reasons and support objectives of, amongst other things, the regional plan.  They could not be located on this site at the appropriate scale proposed in a way which is height compliant and the tower on podium design solution has utility otherwise.  Further, the public interest would not be served by refusing this development in the speculative hope of a hypothetical different, height compliant, proposal being brought forward on the subject site or across the subject site and Lot 106, which is separated from Lot 105 by a dedicated road and which has already been approved for other development.
  3. [136]
    In my view the balance lies in favour of exercising the statutory discretion in favour of granting the preliminary approval.

The variation request

  1. [137]
    The agreed list of issues set out the following issues in relation to the application to vary the effect of the planning scheme:
  1. “9.
    Whether approval of the part of the development application seeking a preliminary approval supports approval of the proposed variation to the scheme?
  2. 10.
    Whether the variations sought in the variation request cut across the plan’s intent for the locality, having regard to the scheme and regional plan provisions set out above?
  3. 11.
    Whether the removal of such submissions rights through the variation request is acceptable?
  4. 12.
    Whether, in the public interest, there is a need to vary the scheme to achieve the purported economic benefit?
  5. 13.
    If there is a need for the proposed development, whether the need could be met through a form of development that complies with the height, scale and character provisions of the scheme?
  1. [138]
    The last two of those issues have already been dealt with in the context of assessing the preliminary approval.  The preliminary approval for the material change of use supports the proposed variation request with which it has an obvious nexus.  The variations facilitate development of the kind subject to the preliminary approval but are otherwise generally consistent with the rest of the planning scheme.
  2. [139]
    The variations would result in removal of submission rights for future development applications, made pursuant to the preliminary approval.  However, that is an acceptable outcome in these circumstances where the proposed development with which the variations are linked has been appropriately defined, has undergone public notification and the community has had an opportunity to participate in the subject appeal.
  3. [140]
    It was pointed out that the proposed variations in referring to development being “generally in accordance with” the preliminary approval, approved plans and minimum standards confers a deliberate degree of latitude from absolute certainty.  It is not however, an unusual or unreasonable degree of latitude and does not justify requiring impact assessment at the development permit stage.
  4. [141]
    It was also submitted that there are uncertainties about matters including the identity of the operator; the ability of the proposal to provide a luxury hotel, the status of the airport and the local amenity of Airlie Beach now and in the future.  These have been considered and the level of uncertainty does not, in my view, warrant requiring another impact assessable application.

Conclusion

  1. [142]
    Meridien has discharged its onus of establishing that SOF’s appeal against the approval of its application for a preliminary approval (and variation request) ought be dismissed.  The appeals will be adjourned to enable the parties to consider terms of order, incorporating amendments to the conditions of approval and the variations..

Footnotes

[1]Ex. 10, para 26.

[2]Ex. 4, pp 592–596.

[3]Ex. 35.

[4]Discussed later.

[5]Planning and Environment Court Act 2016, s 43.

[6]Planning and Environment Court Act 2016, s 45.

[7]Planning and Environment Court Act 2016, s 47.

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

[9]Smout v Brisbane City Council [2019] QPELR 684 at [54].

[10]Section 61(2).

[11]Section 61(3).

[12]Planning Act 2016, s 45(5).

[13]Nerinda Pty Ltd v Redland Shire Council [2019] 1 Qd R 523 at [46] and [52], E J Cooper v Townsville City Council [2021] QPEC 20 at [21]–[49].

[14]Ex. 43.

[15][2020] QCA 253 at [21]–[24].

[16]T6 – 39, 40.

[17]Ex. 15, s 3.1(1).

[18]Ex 15, s 3.1(3).

[19]Ex. 6, para 31.

[20]The provisions with which non-compliance was ultimately alleged are set out in paragraph 41 of the written submissions for SOF.

[21]Paras, 76, 77.

[22]Ex 9, para 181.

[23]T3 – 30, 31.

[24]T2 – 59.

[25]T3 – 23, Ex. 6, para 103.

[26]See also Ex. 9, s 3.2.

[27]Para 54.

[28]T6 – 11, 12.

[29]T3 – 45.

[31]Ex. 28, para 14(a), (d), 19, Ex. 39, paras 10, 11.

[32]Ex. 6, para 169(d).

[33]Ex. 6, para 170(c).

[34]T3 – 41.

[35]T2 – 61.

[36]SOF submissions, para 52.

[37]SOF submissions, para 45.

[38]Consistently with OO 7.2.1.2(2)(b) of the proposed amendments to the planning scheme.

[39]Ex. 9, p 18.

[40]Ex. 9, s 3.1.1.3, pp 19–20.

[41]Ex. 9, p 20.

[42]Ex. 9, p 27.

[43]Ex. 9, Appendix A.

[44]Ex. 9, para 152.

[45]Ex. 9, p 41.

[46]T2 – 72.

[47]T2 – 61, 65.

[48]T2 – 72.

[49]T2 – 71, 72.

[50]T2 – 61.

[51]Ex. 9, para 109, 110, 111.

[52]Ex. 9, para 87(e).

[53]Ex. 9, para 193(4).    

[54]Ex. 9, paras 109, 110 and 192(i).

[55]Ex. 6, para 106.

[56]Ex. 9, para 69 and 192.

[57]Ex. 9, para 62.

[58]Ex. 9, para 128.

[59]Ex. 8, para 48.

[60]Ex. 8, para 82.

[61]Ex. 14, para 8.

[62]Ex. 8, para 70.

[63]Ex. 22, p 15.

[64]Ex. 8, para 115.

[65]Ex. 14, paras 10, 14 and 15.

[66]Ex. 8, paras 68, 69.

[67]T5 – 17.

[68]T5 – 34.

[69]Ex. 8, para 104.

[70]Ex. 8, para 118.

[71]Ex. 21, para 31.

[72]Ex. 8, para 61.

[73]Ex. 8, paras 62–66.

[74]Ex. 8, paras 63, 66.

[75]Ex. 8, para 78.

[76]Ex. 8, para 77.

[77]Ex. 8, Fig. 12.

[78]Ex. 8, para 89.

[79]Ex. 8, para 80, 81.

[80]Ex. 8, para 102.

[81]Ex. 8, para 97.

[82]T4 – 14.

[83]Ex. 4, p 227 – Ms Meulman is from Urban Economics.

[84]Ex. 4, p 239.

[85]Ex. 8, para 102(i).

[86]Ex. 8, para 114.

[87]Ex. 8, para 137.

[88]Ex. 7, para 17(b).

[89]Ex. 9, para 169.

[90]Ex. 8, para 119, 120.

[91]T5 – 24.

[92]T5 – 25, 26.

[93]T5 – 36.

[94]T3 – 11, 12.

[95]T4 – 41.

[96]Ex. 22, para 29.

[97]T4 – 11.

[98]T5 – 26.

[99]T4 – 26.

[100]T4 – 15.

[101]T4 – 16.

[102]Ex. 13, para 4(d).

[103]Ex. 13, para 4(e).

[104]T4 – 16 – 17, T5 – 10..

[105]De Wit Ex. 7, para 14(6)(q)(i) at p 13, what I prefer to the more conditioned view expressed by Stafford in the following sub-paragraph – see also Meulman T5 – 14, De Wit T 4 – 19, Stafford T 4 – 39, 40.

[106]T5 – 40.

[107]McKay v Brisbane City Council [2022] QPELR 963 at [239], [240].

[108]Ex. 8, para 104(e), (f), (g), 135(h), Ex. 12, para 2.5, 2.8, Ex. 6, paras, 109, 170(b).

[109]Ex. 8, paras 28, 29 and Fig. 7.

[110]T3 – 13, Ex. 1, p 3.

Close

Editorial Notes

  • Published Case Name:

    Save Our Foreshore Inc & Whitsunday Regional Council v Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation)

  • Shortened Case Name:

    Save Our Foreshore Inc & Whitsunday Regional Council v Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation)

  • MNC:

    [2023] QPEC 34

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    01 Sep 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 Klinkert [2019] QPELR 684
2 citations
Jump To
Cite 1 - [2019] QPELR 684
Cite 2 - [2019] QPELR 684
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
1 citation
Jump To
Cite 1 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2020] QC 253
1 citation
Jump To
Cite 1 - [2020] QC 253
E.J. Cooper & Son Pty Ltd v Townsville City Council [2021] QPEC 20
2 citations
Jump To
Cite 1 - [2021] QPEC 20
Cite 2 - [2021] QPEC 20
Jensen v Brisbane City Council & Anor [2022] QPELR 963
2 citations
Jump To
Cite 1 - [2022] QPELR 963
Cite 2 - [2022] QPELR 963
Nerinda Pty Ltd v Redland City Council[2019] 1 Qd R 523; [2018] QCA 146
2 citations
Jump To
Cite 1 - [2019] 1 Qd R 523
Cite 2 - [2019] 1 Qd R 523

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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