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Sanad Capital Pty Ltd v Sunshine Coast Regional Council[2023] QPEC 8

Sanad Capital Pty Ltd v Sunshine Coast Regional Council[2023] QPEC 8

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sanad Capital Pty Ltd v Sunshine Coast Regional Council and Anor [2023] QPEC 8

PARTIES:

SANAD CAPITAL PTY LTD ACN 609 121 977

(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

SURF PARKS AUSTRALIA PTY LTD ACN 607 907 586

(co-respondent)

FILE NO:

201/2022

PROCEEDING:

Submitter appeal against approval of an application for a development permit for a material change of use

DELIVERED ON:

26 April 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

10 October 2022, 11 October 2022, 12 October 2022, 13 October 2022, 14 October 2022

JUDGE:

Cash DCJ

ORDERS:

The appeal is adjourned for review on a date to be fixed to make final orders approving the development application and dismissing the appeal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST APPROVAL – submitter appeal against Council’s decision to approve a development application for a material change of use – where the co-respondent submitted a development application for material change of use – where the proposed change of use was for use as a tourist attraction (surf park) – where the appellant has an approval to develop its own surf park in the same local government area – where the appellant submitted the application should be refused – whether the proposed development is inconsistent with planning controls

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST APPROVAL – where the proposed development will result in the loss of some good quality agricultural land – whether there is an overriding need for the proposed development – whether there is no other suitable site available – whether any departure from the planning scheme is a matter that favours refusal

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST APPROVAL – whether the proposed development have unacceptable impacts on the scenic amenity or landscape values of the locality – whether the proposed development conflicts with the planning scheme because it is ‘urban development’ in the inter-urban break – whether any departure from the planning scheme is a matter that favours refusal – whether there are other unacceptable impacts on amenity in the locality

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST APPROVAL – where the subject site is in a rural zone and the inter-urban break and not in a tourism focus area – whether this is inconsistent with planning controls

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST APPROVAL – whether the Planning Regulation 2017 (Qld) prescribes a matter to be considered – whether the planning controls support approval of the proposed development – whether the development should be approved

LEGISLATION:

Planning Act 2016 (Qld), s 60

Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47

Planning Regulation 2017 (Qld), Schedule 10, Part 16, Division 2

CASES:

Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59, [46]-[49], [50]-[54]

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, [51], [53]

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; (2020) 6 QR 441, [42], [54]-[58]

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2020] 48 QLR, [59]

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, [14]

Glenella Estates Pty Ltd v Mackay Regional Council (2010) 180 LGERA 226; [2010] QPEC 132, [62], [64]

Isgro v Gold Coast City Council [2003] QPEC 2; QPELR 414, [20]-[22], [28]

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; (2018) 231 LGERA 253; [2018] QPELR 763, [93]

Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, 687

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; QPELR 835, [201]

Logan & Ors v Burnett Shire Council [1997] QPELR 18, 20

McCosker v Emerald Shire Council [1995] QPEC 73; [1996] QPELR 114, 116

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, [22]

Neilsens Quality Gravels Pty Ltd v Brisbane City Council & Ors [2016] QPEC 39 (2016) QPELR 709, [115]

Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 43; QPELR 1010, [70]

Sandstrom & Ors v Sunshine Coast Regional Council & Windansea Boardriders Club [2020] QPEC 62; [2021] QPELR 1107, [101]

SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74; [2007] QPELR 24, [23]-[24]

Witmack Industrial Pty Ltd v Toowoomba Regional Council [2015] QPEC 7; [2015] QPELR 432, [17]-[24]

United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8; QPELR 510, [118]

Yu Feng v Brisbane City Council (2007) 156 LGERA 399; [2007] QCA 382, [19], [26]

Woolworths Ltd v Maryborough City Council (No.2) [2006] 1 Qd R 273, 290 [38]

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82, [55]-[56].

COUNSEL:

M J Batty with W D J Macintosh for the appellant

J G Lyons with B D Rix for the respondent

B D Job KC with K W Wylie for the co-respondent

SOLICITORS:

HWL Ebsworth for the appellant

Sunshine Coast Council Legal Services for the respondent

Connor O'Meara for the co-respondent

Table of Contents

Introduction5

The appeal5

The proposed development and application process6

The site and its location8

The appellant’s development8

Legal principles relevant to the appeal9

Does the loss of good quality agricultural land conflict with planning controls and tell against approval?10

What are the principles relevant to the assessment of ‘overriding need’?12

Evidence relevant to the issue of need14

Conclusion as to issue of need22

Are there no other suitable sites?23

What if I am wrong about need and other suitable sites?27

Evidence concerning the quality and use of the agricultural land27

Conclusion regarding the significance of the loss of good quality agricultural land31

Does the proposed development detract from scenic amenity or landscape values, or otherwise conflict with the SCPS because it is in the inter-urban break?31

Does the proposed development detract from scenic amenity and landscape values?34

Would the proposed development diminish a sense of separation?36

Is this urban development in the inter-urban break? If it is, what is the significance?36

Does the location of the development in the rural zone outside of a ‘tourism focus area’ create conflict with the planning scheme?39

Will the development unacceptably effect amenity on nearby land?41

Does the SCPS support approval of the development through its encouragement of economic development and tourist activity?43

Does the Planning Regulation 2017 (Qld) prescribe a matter to be considered?43

Would the proposed development satisfy the requirements of the Planning Regulation 2017 (Qld) in any event?49

Should the development be approved?51

Should this court impose any conditions on the approval?52

Introduction

  1. [1]
    Modern planning schemes are complex instruments. Invariably, they contain goals or promote ideas that seek to achieve competing outcomes. The Sunshine Coast Planning Scheme 2014 (SCPS) is no exception. On the one hand, the SCPS recognises and promotes tourist activities for their economic and health benefits.[1] On the other, the SCPS seeks to preserve good quality agricultural land[2] and the Regional inter-urban break separating the Sunshine Coast from local government areas to the south.[3] This appeal concerns a proposal to locate a tourist attraction, being a surf park, on good quality agricultural land in the inter-urban break. The ultimate question for the court is whether the proponent of the development, Surf Parks Australia, has shown it should be approved, having regard to the provisions of relevant planning instruments that favour retaining the land in its present state.
  2. [2]
    For the reasons set out below that question must be answered in the affirmative and the development application approved.

The appeal

  1. [3]
    Surf Parks Australia (the co-respondent) has the benefit of a development permit for a material change of use concerning land at Glass House Mountains, adjacent to the Bruce Highway. The permit allows the co-respondent to use the land as a ‘Tourist Attraction (Surf Park)’. Sanad Capital (the appellant) has the benefit of its own approval to develop a surf park at Glenview, about 20 kilometres north of the co-respondent’s site. The co-respondent’s application for a material change of use was subject to impact assessment, a process which required public notification of the proposed development, and which allowed for submissions to be received and considered. The appellant submitted that the development application should not be approved. The Council (the respondent) approved the application, subject to conditions, by a decision notice dated 14 December 2021. The appellant now appeals against that decision and seeks orders that the development application be refused.
  2. [4]
    The issues raised by the appeal, as distilled in final submissions, are as follows.[4]
  1. Does the proposed development conflict with the South East Queensland Regional Plan 2017 (‘SEQRP’) or SCPS because it would result in the loss of some good quality agricultural land? If so, what is the significance of any conflict?
  2. Does the proposed development depart from the SCPS because of unacceptable impacts on scenic amenity or landscape values, or otherwise because it would be development in the inter-urban break? If so, what is the significance of any departure?
  3. Does the location of the proposed development in the Rural zone and outside of a designated ‘tourism focus area’ create conflict with the SCPS?
  4. Would the proposed development depart from the SCPS because of unacceptable amenity impacts on adjoining land uses?
  5. Do parts of the SCPS dealing with economic development, and in particular tourism, support approval of the proposed development?
  6. Does the Planning Regulation 2017 (Qld) prescribe a matter to be considered?
  7. Should the development be approved?
  1. [5]
    Before dealing with these issues, it is appropriate to describe the proposed development, where it would be located, and some other relevant matters concerning the appellant’s development.

The proposed development and application process

  1. [6]
    The co-respondent sought approval to establish a surf park on about 13 hectares of land at Glass House Mountains. The site consists of two lots and is bounded by Johnston Road to the south and the Bruce Highway to the east.[5] A component of the application is for reconfiguration of the lots so that the surf park will be contained within a 10-hectare lot on the northern part of the site. The remaining three-hectare lot to the south will remain good quality agricultural land.[6] The major component of the development application is the material change of use. As described in the joint expert report of the town planners (footnotes added)[7]

[a]pproximately two thirds of the new northern lot (about 7.9 ha) will be developed with:

  1. (a)
    a large pool (approximately 315m long and 92m wide at its widest) with a surface area of over 2 ha flanked by wave making infrastructure on its western edge, including a wall of approximately [2.45m][8] in height;
  2. (b)
    a wave pool beach viewing area on the other three sides of the pool;
  3. (c)
    a single level structure on the eastern long edge of the wave pool containing change rooms, restaurant, food and bar areas, reception, gift shop and viewing areas. Its internal gfa[9] is 1421m2 and it has an additional covered outdoor area of 1390m2;
  4. (d)
    a swimming pool (separate to the wave pool) of approximately 400m2 in area;
  5. (e)
    car and bus parking and set down areas; and
  6. (f)
    open grassed mounds and an accessible landscaped gardens area.
  1. [7]
    The nature of the development, according to one of its proponents,[10] is ‘a high quality, purpose built surf park dedicated to surfers and those who want to become surfers’. As such the development will provide for controlled, artificial waves delivering a variety of surf conditions suitable for a range of surfers from beginner to expert. The waves are to be generated using proprietary technology and using water from an onsite spring-fed dam supplemented by a private water main. The wave pool is intended to operate in 14 one-hour sessions across each day, with each session catering for a maximum of 50 surfers. Access to the surf park would be from Johnston Road via an access handle on the western side of the site. The driveway along the western boundary will have a 4.5-metre-wide strip of landscaping on either side. There will be further landscaping of varying widths on the southern, eastern, and northern boundaries.
  2. [8]
    The application was accepted as properly made in March 2021. There followed a nine-month assessment process which included referral to a concurrence agency and public notification. Referral to a concurrence agency was required because the site is within the ‘Rural Landscape and Regional Production Area’ (‘RLRPA’) of the SEQRP.[11] The State Assessment and Referral Agency advised on 13 September 2021 that it had no objection to the proposed development but required the imposition of conditions to any approval.[12] These conditions are not presently relevant. Public notification of the development application resulted in 958 properly made submissions.[13] 955 of these supported the development and were each an identical, seemingly computer generated, email.[14] Three submissions opposed the development. Two were lodged by a town planner on behalf of the appellant[15] and included detailed reasons why the application should be refused, some of which are replicated in the matters in issue in this appeal. A third objection was received from a local resident who lives about four kilometres to the west of the proposed development site.[16] For completeness, I note that three people sent duplicate submissions in support of the application,[17] and one submission included in the bundle was irrelevant as it concerned a different development application.[18]
  3. [9]
    Following an information request from the respondent and some further assessment of the application, it was approved on 14 December 2021. Since the appeal was commenced two changes have been made to the proposed development. Both have been regarded as minor changes and the appeal proceeded according to the changed plans.[19]

The site and its location

  1. [10]
    The two lots that comprise the site of the proposed development are approximately rectangular in shape. The site is located to the immediate north-west of the intersection of Johnston Road and the Bruce Highway (or, more accurately, the slip road leading from Johnston Road to the northbound lanes of the Bruce Highway). The northern lot has an access handle along the western side of the site. There are no building improvements on the land. About two thirds of the site, currently Lot 952, are being used for pineapple cropping. A triangle of land in the north-west, currently Lot 935, is planted with mature slash pine.[20] This will remain unchanged pursuant to the proposed development.[21] On the northern boundary part of a water impoundment protrudes into the site from an adjacent lot.
  2. [11]
    The eastern side of the site runs for 520 metres along the slip road but is separated from the Highway by a vegetated buffer. The Highway is two to five metres lower than the site. The southern side runs for 265 metres along Johnston Road. It is about level with the site. To the west and north there are rural residential allotments. Further south, across Johnston Road, is a service centre widely known as Moby Vic’s. A complementary service centre is located on the eastern side of the Highway opposite the site. Both service centres include fast food outlets, with the eastern service centre being larger in scale and intensity. Further away still there are extensive pine plantations and a mix of natural landscapes, rural uses, and rural residential uses.
  3. [12]
    The site is about four kilometres from Glass House Mountains train station, 39 kilometres south of Maroochydore and 21 kilometres north of Caboolture. Wild Horse Mountain is across the Highway to the south, approximately 700 metres from the site. The peak of the mountain is roughly 100 metres higher than the site and is topped with a lookout.
  4. [13]
    At the State level the site is within the RLRPA designated by the SEQRP. It is also identified as an ‘important agricultural area’ with Class B agricultural land under the State Planning Policy.[22] At the local government level, the site is located within the Rural Zone and the regional inter-urban break and is included in the Scenic Amenity overlay as being on the scenic routes of the Bruce Highway and Johnston Road. The significance of these designations will be discussed further below.

The appellant’s development

  1. [14]
    The appellant has the benefit of an approval to construct a similar surf-based tourist attraction on the Steve Irwin Way at Glenview. The material change of use for this site was approved in September 2021. The appellant’s development is to be located about 20 kilometres to the north of the co-respondent’s site, making it closer to the Sunshine Coast and a little further from Brisbane. There are some differences of substance between the two development proposals. The co-respondent’s development focuses almost exclusively on the wave pool and the provision of a surfable wave for enthusiasts. In contrast, the appellant’s proposal includes an adventure waterpark and a resort component with 160 villas so patrons can stay at the site.
  2. [15]
    At the time of the hearing the appellant had commenced some operational works at the site.[23]

Legal principles relevant to the appeal

  1. [16]
    This is a submitter appeal against the approval of the development application. It is a ‘planning act appeal’ as that term is defined in the Planning and Environment Court Act 2016 (Qld) (‘PECA’).[24] As such the appeal is by way of a hearing anew,[25] and it is for the co-respondent, as the applicant in the original development application, to establish the appeal should be dismissed.[26] Section 45 of the Planning Act 2016 (Qld) (‘PA’) applies as if the court were the assessment manager for the development application.[27] The result is that I am required to conduct my own assessment of the development application as if I were ‘standing in the shoes of the assessment manager’.[28] Pursuant to section 45(5) of the PA this assessment must be carried out against applicable assessment benchmarks and may be carried out against, or having regard to, other relevant matters. Where relevant, the assessment must be carried out having regard to matters prescribed by regulation.[29] There is a dispute between the parties, discussed below, as to whether the Planning Regulation 2017 (Qld) prescribes a matter to which regard must be had.
  2. [17]
    In determining the appeal, I must confirm the decision to approve the application, change it (including by imposing conditions), replace it with my own decision, or set it aside and return the application to the original decision maker with such directions as I consider appropriate.[30] Section 47 of PECA and section 60 of the PA require this Court to exercise a broad, evaluative judgment.[31] There is a discretion to approve a development application even where there is inconsistency with an applicable assessment benchmark.[32] The exercise of deciding a planning act appeal has been described as one providing ‘flexibility … to approve an application in the face of non-compliance with a planning document’.[33] That is not to say assessment benchmarks contained in a categorising instrument or planning document are unimportant. The relevant instruments or documents are part of the expression of the ‘community interest’ in regulating development and are always a relevant consideration.[34] The extent to which a proposed development complies with, or departs from, an applicable assessment benchmark is a relevant matter to be given appropriate weight according to the circumstances,[35] which will include the importance of the benchmarks as may be discerned from the terms of the planning provisions.[36]
  3. [18]
    With these principles in mind, I turn to the issues raised in the appeal.

Does the loss of good quality agricultural land conflict with planning controls and tell against approval?

  1. [19]
    Both the State and local government planning controls evidence a clear intention to preserve productive agricultural land. The SEQRP makes this clear through the strategies by which the goals of the plan are to be achieved. These include to ‘[c]onserve agricultural areas, including those which provide communities with an affordable supply of fresh food, food security and export earning potential’.[37] An even plainer expression of intent is found in the inclusion of the land in the RLRPA. This is set out in SEQRP under the heading ‘Intent’:[38]

The Regional Landscape and Rural Production Area (RLRPA) is a large and important part of SEQ, surrounding the Urban Footprint and Rural Living Area. It provides important values that help sustain the region socially, culturally, economically and environmentally.

The intent of the RLRPA is to:

  • protect the values of this land from encroachment by urban and rural residential development
  • protect natural assets and regional landscapes, and ensure their sustainable use and management
  • support development and economic growth of rural communities and industries

The RLRPA is to be protected from inappropriate development, particularly urban and rural residential development.

  1. [20]
    The reasons for protection of the RLRPA are made obvious by the description of the area as being ‘an important food bowl’ while also including ‘important agricultural land’ and ‘inter-urban breaks of strategic and regional significance’. The plans for the Northern Sub-Region (in which this land is situated) similarly emphasise the protection of agricultural land resources, while acknowledging some development, such as ‘value-adding, nature-based tourism’, is encouraged where it can be managed to preserve agricultural land.[39] It is of note, as well, that SEQRP recognises the need to support rural communities and diversify rural economies through ‘certain types of tourism activity’.[40]
  2. [21]
    High order statements in the Strategic Framework of SCPS identify the importance of preserving rural and agricultural land.[41] This aim is replicated in strategic outcomes,[42] and specific outcomes,[43] but even here there is recognition of the importance of tourism to the economy of the Sunshine Coast. The clearest expression of planning intent is to be found in the SCPS under ‘Theme 7 – Natural resources’. The strategic outcomes for this section include the retention of ‘an abundant supply of renewable natural resources including agricultural land’[44] and managing natural resources in a sustainable way, including by ‘avoiding the alienation and fragmentation of renewable natural resources’.[45] This is followed by specific outcomes, which provide (footnote omitted):[46]
  1. (a)
    Rural land is retained predominantly for rural production, natural habitat and landscape protection purposes.
  2. (b)
    Development ensures that agricultural land class A and class B, … strategic cropping land and potential strategic cropping land remains available for productive and sustainable agriculture and rural pursuits and is not fragmented, alienated or diminished, except where:-
  1. (i)
    on the balance of social, economic and environmental considerations, it is demonstrated that the development is in the interests of the community; and
  2. (ii)
    no alternative suitable site is available for that purpose.
  1. [22]
    A similar clear planning intent is evinced under the Rural zone code where the purpose of the code is to be achieved through overall outcomes that include[47]
  1. (j)
    development does not alienate or fragment agricultural land class A and class B, strategic cropping land (SCL) or potential SCL unless:-
  1. (i)
    there is an overriding need for the development in terms of public benefit; and
  2. (ii)
    no other site is suitable for the particular purpose.
  1. [23]
    Having regard to these provisions, the co-respondent submits that the planning controls do ‘not seek to retain or protect agricultural land for its own sake, but rather to ensure that sufficient higher-quality agricultural land is retained to permit local food production’.[48] I agree. The goals of SEQRP and SCPS in relation to good quality agricultural land focus on the preservation of such land for its potential to produce food. Both schemes allow for other development or use of good quality agricultural land in some circumstances, including for use as a tourist facility. There are, as the appellant submits, barriers in the way of such use, but the schemes do not absolutely prohibit the alienation of good quality agricultural land.
  2. [24]
    The two barriers of central importance are those of the SCPS set out above. The alienation of good quality agricultural land would only be consistent with the SCPS if it is demonstrated that, on the balance of social, economic and environmental considerations, the development is in the interests of the community, and that there is no suitable alternative site available. This is the effect of the applicable parts of the Strategic Framework and Rural zone code of the SCPS.
  3. [25]
    The co-respondent submits that the SCPS should be read as if it said good quality agricultural land is not to be unreasonably or unacceptably alienated, fragmented, or diminished. A qualifying adverb is said to be a necessary gloss to give effect to the real intent of the provision. The cases cited in support of this submission[49] each dealt with a planning provision that was, on its face, in absolute terms. If strictly applied, they would have prohibited development or activity of a particular kind in all circumstances. It was held in each case that such a provision would be unworkable and, absent the plainest language to indicate the contrary, had to be read as if qualified in some way. The relevant provisions here are different. Each provision permits alienation of good quality agricultural land if stipulated criteria are satisfied. They do not ‘baldly’ assert that alienation is always prohibited. I accept, as the appellant submitted, each ‘provision contains its own qualifying requirement because the alienation of Class B agricultural land will be “unacceptable”’[50], or unreasonable, if the criteria are not satisfied. There is no need to add any further qualification.
  4. [26]
    The result is that a proposed development which alienates good quality agricultural land will conflict with the SCPS unless the prescribed criteria are satisfied. The criteria are expressed in different language in the Strategic Framework and Rural zone code. The former invites consideration of the ‘interests of the community’ and the latter whether there is an ‘overriding need for the development in terms of public benefit’. There might be some distinction between the criteria, but the parties were content to treat them as if they were equivalent, focussing their submissions on the ‘overriding need’ criterion. No doubt the position of the parties was informed by the cases to which each refer, some of which are discussed below, which measure ‘need’ in the planning sense by having regard to the interests of a community in seeing improvement in well-being, comfort, convenience and so on.[51] The assumption underpinning the parties’ approach must be that if an overriding need for the proposed development were demonstrated, that would also satisfy the ‘interests of the community’ criterion contained in the Strategic Framework. This assumption is sound, and I too am content to examine the issue on the basis that the criteria are practically equivalent.

What are the principles relevant to the assessment of ‘overriding need’?

  1. [27]
    Each party relied upon the classic and oft-repeated formulation of Wilson SC DCJ in Isgro v Gold Coast City Council[52]

Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.

  1. [28]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances which the planning authority is to consider.[53] Need is a relevant consideration, but it is not the only consideration.[54] Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[55] Providing competition and choice can be matters that provide for a need, in the relevant sense, but of itself the addition of choice to the marketplace does not necessitate a finding of need.[56] Questions of private economics would not normally be a relevant consideration. The fact that a proposed development might compete with, and diminish the profitability of, another business would only be relevant if ‘accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with.’[57]
  2. [29]
    Of course, the relevant provision of the SCPS refers to an ‘overriding need’. This and similar phrases have been considered in the Court of Appeal and this court. Guidance may be found in these decisions. Recently, in Room2Move.com Pty Ltd v Western Downs Regional Council,[58] Williamson KC DCJ considered the phrase ‘overriding community need’. His Honour considered that observations of the Court of Appeal in respect of the phrase ‘overwhelming need’ were apposite. That is, the phrase was a ‘motherhood statement’ and the factors that may show such a need will vary enormously. The factors are not limited to considerations of supply and demand and will include matters that are both quantitative and qualitative in nature.[59] While this provision uses the adjective ‘overriding’ instead of ‘overwhelming’, there is no reason to think that a different approach is required.
  3. [30]
    To satisfy the criterion it is not enough for it to be shown that there is some need for the proposed development. It must be shown that the need is ‘of a nature or dimensions to override the case for preserving’ good quality agricultural land.[60] This may be achieved where ‘the community’s interests which are served by the proposal can be seen to outweigh the community’s interests in preserving the land for agricultural use’.[61] A relevant consideration is what will be lost if the good quality agricultural land is alienated. Land that makes little contribution to the productive agriculture of a locality may be less deserving of protection, but care must be taken to avoid ‘death by a thousand cuts’.[62]
  4. [31]
    Ultimately, whether there is an ‘overriding need’ presents a question of fact to be decided according to the evidence and circumstances of a particular case.

Evidence relevant to the issue of need

  1. [32]
    Each party called evidence from an economist, Mr Gavin Duane for the co-respondent, Mr Marcus Brown for the respondent, and Ms Kerrianne Meulman for the appellant. A joint expert report was prepared.[63] Mr Duane and Mr Brown largely agreed on relevant matters, including on the ultimate issue of economic and community need for the proposed development. Ms Muelman’s opinion on key matters differed. It is helpful to first set out matters in respect of which all three economists agreed.
  2. [33]
    The Sunshine Coast is one of Queensland’s major tourist destinations and tourism has an important strategic role in the planning framework.[64] A policy that encourages the development of appropriate tourism infrastructure makes sound economic sense.[65] There is an economic need for at least one surf park on the Sunshine Coast and the implementation of two surf parks would help facilitate the strategy of encouraging tourism, provided there was sufficient demand for two parks.[66] At the moment, at any given time tourists account for around 45,000 additional residents on the Sunshine Coast (about 15% of the total resident market).[67] Both the local resident and tourist markets are expected to grow substantially over the next five years and beyond.[68] Projections indicate that ‘total visitor nights’ will increase across Queensland at an average growth rate of 6.6% per annum.[69]
  3. [34]
    The average number of sporting activities undertaken by Australians aged 15 and over increased from 2019 to 2021. Surfing had the third largest increase in participants during this time, with the total increase being around 196,000 people. More women than men took up the activity, and there is evidence to suggest that surfing is the biggest growth sport among women in Australia. The number of people who surf has increased from 514,200 in 2016 to 723,702 in 2021. Data shows that, on average, 3.4% of the adult population participate in surfing, but the participation rate in Queensland is higher than that average. A study commissioned by the Australian Sports Commission found a 3.9% participation rate in major cities in Queensland.[70] Queensland participants surf, on average, 69 times each year (compared to 46 times in Victoria and 84 in New South Wales). The average duration of a surfing session was about two and half hours.[71] The Queensland climate is particularly suitable for water-based activities.[72] What could be called a ‘base demand’ among Australians aged 15 years or older would be supplemented by interest from tourists, children, and those learning to surf. Mr Duane and Mr Brown thought this would add around 20% to the demand.[73]
  4. [35]
    It was the accepted position that the surf park industry is new. The first recognised surf park opened in 2015 and since then several parks have been opened or are planned around the world. At the time of the hearing there was only one surf park catering to the general public in Australia, located at Tullamarine in Victoria. Because the industry is new ‘there is little publicly available information about the key financial metrics in relation to the performance and operation of such facilities.’[74] A ‘surf park summit’ in 2021 identified that factors that would contribute to the success of a surf park are those that would contribute to the success of any tourist facility.[75] It was a point of agreement between the economists that:[76]

Assuming 50 visitors per hour across 12 hours per day across 365 days per year, results in around 220,000 visitors at the subject site, in line with previous estimates for surf parks of 100,000 to 300,000 visitors per year. The average visitation time is around 1-2 hours. The surf parks target up to and around 200,000 hours of surfing and lessons.

  1. [36]
    The absence of real data relevant to the commercial operation of a surf park is significant in this appeal. Each of the economists were doing their best to assist the court on this issue. But the immaturity of the industry means that, in the end, each was reliant to some degree on expectations or suppositions rather than concrete data. It is unsurprising in these circumstances that there was disagreement among them. Such disagreement falls to me to resolve, where necessary, not as an expert economist but as a judge. Necessarily this involves making a choice between competing opinions to reach conclusions of fact about matters in issue. The matters that seem to me to need to be resolved, and how I would resolve them, are set out below.
  2. [37]
    To investigate demand, both present and projected, the economists chose a study area which included locations within one hour’s driving time of the co-respondent’s proposed development.[77] The total population of the area in 2021 was around 1.4 million people. This population is expected to grow by about 120,000 people by 2026 and double that by 2031. Applying a 3.4% participation rate, Ms Muelman predicted the resident market for surfing now is around 40,000 people and will grow to around 46,000 by 2031. If the co-respondent’s development went ahead, people in this market would have the choice of free surf beaches, or the two surf parks provided by the appellant and co-respondent.[78]
  3. [38]
    In assessing potential surf park demand, Ms Muelman preferred a different approach to that of Mr Duane and Mr Brown, placing emphasis on the number of active surf participants among the resident population of the Sunshine Coast.[79] The approach of Mr Duane and Mr Brown focussed on the idea of surfing occasions – that is, how many individual instances of surfing might be expected among both the resident and tourist population of the study area. These figures were presented in Table 3 in the joint expert report, showing current interest at about 5 million surfing occasions per year and expected growth of about an additional 450,000 occasions each five years.[80] Mr Brown noted that 200,000 surfing occasions at each proposed surf park per year would represent less than 10% of the total surfing occasions on the Sunshine Coast each year.[81] Mr Duane agreed with this method, stating in cross-examination:[82]

So my evidence is if you’re going [surfing] 69 times a year, I’m absolutely saying seven of those times, you will visit a Surf Park over the course of the year.  That’s about once every two months, where you sit there and decide that the surf is poor today, that the waves are low today, that it’s much more convenient, I get a guaranteed wave, that I know on a really good day, the surf is packed and people are going to hassle me on the waves.  Absolutely, I think that’s what people will do.

  1. [39]
    The appellant challenged the methodology of Mr Duane and Mr Brown’s approach on several bases and submitted that the figures in Table 3 are not reliable. I will deal with each contention in turn.
  2. [40]
    First, the appellant criticised the assumption that tourists and children would add about 20% to the base demand. This criticism was not founded on any evidence or opinion adduced on behalf of the appellant.[83] Instead it was based on some cross-examination of Mr Duane and Mr Brown. To deal with this point it is helpful to set out the passages relied upon by the appellant, commencing with the evidence of Mr Duane.[84]

Where does the 20 per cent come from? - - - If you go back to paragraph 111, that’s where Ms Meulman talks about the Gold Coast and being surfers 63 per cent, 37 per cent were visitors.  On the next page, I sit there and say agree a high proportion of visits to the surf park will be from tourists, however, I take a conservative view of 20 per cent.  In fact, it’s even more conservative because I have included children in that 20 per cent as well.

Again, it’s just a matter of judgment.  It’s doing the best you can with a limited dataset? - - - It’s doing the best you can with the dataset, but also knowing that Sunshine Coast tourism, we’ve outlined a whole bit about tourism and that typically it’s about 15 per cent of the total resident market.  So when you combine that – that’s from paragraph 107 of the joint report.  So we’ve looked into tourism and what it typically contributes, knowing that this sort of tourist facility would usually have a high proportion to it.  So there’s some science to it, but it’s not a precise estimate.

  1. [41]
    Mr Brown’s evidence was similar:[85]

In terms of the 20 per cent uplift for tourists and children, consistent with the evidence of Mr Duane, that’s a matter that I understand your evidence to be in effect that the uplift is appropriate based on that as an economic judgment? - - - Yes, that’s correct.

There’s no data that you point to to support that opinion? - - - Well, we’re in the same – I’m in the same situation as what Mr Duane was saying in relation to having a look at the Gold Coast information, and so having to make a judgment based on those incidences and then put them into this particular context.  So no, there is no number in a dataset or a document that says 20 per cent.  There’s a judgment that has had to be applied.

  1. [42]
    As may be seen from this evidence, Mr Duane and Mr Brown respectively chose 20% in an exercise of economic judgment. Mr Duane explained the basis for his assumption and that was not falsified either in his cross-examination or by other evidence. I do not accept the appellant’s criticism of this aspect of Mr Duane and Mr Brown’s methodology.
  2. [43]
    Secondly, the appellant challenged the reliance of Mr Duane and Mr Brown on a 5% participation rate (as opposed to the 3.4% national average). The figure of 5% was relied upon to calculate the demand shown in Table 3. Each economist in the joint expert report agreed that a Queensland Sport and Recreation Survey in 2018 noted a participation rate in surfing for the North Coast region of 5%.[86] In cross-examination, Mr Duane accepted the figure of 5% did not refer to the participation rate for the North Coast region. Instead, it was a figure derived from the responses to a question about what sporting activities were undertaken by respondents when they were children.[87] This error was not identified by any of the economists until Ms Meulman wrote her separate report.[88] But, having accepted the source of the 5% figure had been misattributed, Mr Duane went on to explain why it was still an appropriate figure to use in gauging demand for surfing in the study area. He said:[89]

So in terms of coming up with that five per cent, we’re happy with the five per cent, but it also outlays the figure of 3.4 per cent previously that we referred to as a national average.  It coincides with the idea that you would have a higher than average provision at this location because of the north coast location and there would be some inducement.  So although we’ve used five per cent, it doesn’t directly say it’s just because of that figure.  There’s a range of other elements that went into that.  And then when you look at that latest data from AusPlay, which talks about major cities in Queensland at 3.9 per cent, it corroborates that evidence in terms of 3.9 per cent, some inducement, five per cent.  So these figures aren’t just, “Five per cent, I grab that”.  It’s in the context of that entire work that was undertaken.  It’s also in the context of Ms Meulman sitting there and saying the Sunshine Coast is at 10 per cent participation rate, which we have seen ‑ ‑ ‑

‑ ‑ ‑ which I didn’t disavow.  I saw that.  But that means if you take a 10 per cent participation rate for the Sunshine Coast, the remainder of the study area’s participation rate is less than three per cent.  So there’s nothing unusual about the five per cent being something that’s a reasonable approximation from all of the work that was undertaken.

  1. [44]
    Mr Brown agreed that a 5% participation rate for the study area was appropriate. Indeed, he went further to describe the figure as an ‘anchor’ rather than a ‘lift’. Mr Brown said in evidence-in-chief:[90]

Look, I think it is in the context that [the] five per cent rate was actually probably an anchor on the participation as opposed to, you know, a lift because, you know, we’re looking at that national figure of about 3.9 per cent and that’s all of Australia so you have to remember that that’s an average across the entire country.  So the entire country includes Canberra, Toowoomba, Alice Springs, Ballarat, Bendigo, you know, any number of places that are not easily accessible.  You can’t access the coast easily or in a short amount of time there so necessarily, you would be expecting higher participation in surfing as an activity in coastal areas, particularly in a coastal area such as the Sunshine Coast or the Gold Coast.  Indeed, Ms Meulman says, you know, 10 per cent is on the Gold Coast and she – contemplates what happens with 10 per cent for the Sunshine Coast.  But you have to remember, too, in that national average, you’re also including places like Cairns, Townsville, Mackay, you know, Gladstone that all sit behind the Great Barrier Reef, where anyone who comes from that part of the world knows that trying to find surf behind the Great Barrier Reef is very, very hard because it necessarily impacts the – the wave action so we would be saying – I would be saying that, you know, five per cent is reasonable.  It’s only one percentage point above the national average in an area that would be highly conducive to surfing participation so that’s – I would say that is a conservative rate.

  1. [45]
    Mr Brown’s position did not change in cross-examination. He agreed with Mr Duane’s evidence that an uplift of 1.1% above the Queensland major cities average of 3.9% was reasonable, or even conservative. The following exchange neatly explains Mr Brown’s position.[91]

And just so that we’re clear, in terms of the five per cent, are you now seeking to increase your five per cent above that figure? - - - No, no, I think that the five per cent is a reasonable number, but my point is that, you know, identifying that five per cent in the – in the report, in my mind, was probably more of a – a brake on the – what the participation was given the context of the area, rather than necessarily something that was boosting it up.

And so if you’re relying on the five per cent demand in the study area being actual demand rather than an increase from 3.9 per cent, in the reports in terms of the source documents we have before the court, where do I see that five per cent? - - - Well, it – you don’t see the five per cent, because we have to – we are – you know, as I said, we look at all of the data that’s available to us.  When we saw the five per cent number in the report, to be frank, I was somewhat surprised that that was only five per cent, but we find out now that that was not quite what it was referring to.  In the context of the study area being – you know, including, you know, Sunshine Coast, Noosa, Moreton Bay, you know, northern Brisbane, you know, and Gympie, this is, sort of, prime surfing – a prime – you know, a prime surfing catchment.  And so we would expect it to be above state and national averages.  We would probably expect it to be above the major cities’ average as well.

Well, you say that, but we just have no data to – there’s nothing in the data, I think we can agree, that picks up a five per cent figure.  The best is 3.9 per cent that has been referred to this morning for metropolitan areas in Queensland; correct? - - - I – I agree with that, but as analysts, you have to make judgments from time to time based on the location or context and the specificities.  We … do it all the time.

  1. [46]
    On the data available to the economists, this was a reasonable position for Mr Brown to take. It is consistent with logic and experience and should not be discounted merely because there is an absence of robust data to empirically prove the opinion expressed by Mr Brown. I accept that the assumption of an average 5% participation rate in the study area is valid. A consideration of Ms Meulman’s evidence does not lead me to reach a different conclusion. Ms Meulman’s approach of rigidly applying a 3.4% participation rate does not allow for expected regional variation. As has been noted, the Sunshine Coast is an area particularly well suited to participation in surfing. It is to be expected, and data confirms,[92] that participation rates on the Sunshine Coast would be higher than elsewhere, even without the inducement to be expected from an operating surf park. Indeed, for some calculations Ms Muelman adopted a 10% participation rate from a study of surfers on the Gold Coast in 2008,[93] a location that would be similarly attractive for surfing.
  2. [47]
    In her separate report Ms Meulman relied upon data from 2016 to 2018 to calculate potential demand.[94] To some extent the figures relied upon by Ms Muelman were out of date. For instance, it was agreed in the joint expert report that by 2021 the national base of surfers had increased by nearly 200,000 people to about 723,000.[95] Ms Meulman’s calculations for demand in the study area also seemed to use an inexplicably low participation rate – around 1.6% to 1.9% – for the parts of the area outside of the Sunshine Coast local government area. As noted by the co-respondent,[96] such a low participation rate is out of step with other available data.
  3. [48]
    Most fundamentally, Ms Muelman focussed on the number of participants, rather than the total number of surfing occasions. When assessing the need for a proposed development that will rely upon selling individual sessions to surfers the latter is, in my view, a better measure. A commercial surf park would be concerned to sell as many sessions as it could, whether to different surfers or the same surfers participating in multiple sessions. Of course, there is a direct relationship between the number of surfers and the number of surfing occasions. Much depends upon how often an individual surfer will surf – the fourth point raised by the appellant concerning this evidence – and whether that surfer is likely to substitute a paid experience for a free one. But the latter measure more closely aligns with the way a surf park will operate and provides a better indication of demand. In this regard I prefer the evidence of Mr Duane and Mr Brown.
  4. [49]
    Thirdly, the appellant submitted that Mr Duane and Mr Brown’s opinion relied upon a flawed assumption that each surf park would target 200,000 visits each year. I do not accept that the assumption is flawed. It was a point of agreement between the economists in the joint expert report that the ‘surf parks target up to and around 200,000 hours of surfing and lessons.’[97] It was a figure based upon an assumption of 50 visitors per hour for each of the 12 hours per day a surf park is expected to operate. Ms Meulman accepted in her evidence that a surf park with these visitor numbers would be ‘operating strongly’.[98] I am satisfied that the figure of around 200,000 visits to each park per year is an appropriate figure by which to gauge demand.
  5. [50]
    Fourthly, the appellant submitted that Mr Duane and Mr Brown wrongly assumed each potential surfer would surf 69 times each year, where the median figure of 32 times per year was more reliable. It is helpful to commence a consideration of this contention by first setting out some of the relevant evidence. The AusPlay report[99] recorded an average annual frequency of 69 surfing occasions (about 1.3 times a week) and a median of 32 (about 0.6 times a week). The results were also shown in a distribution graph. This indicated 3% of respondents said they surfed six or more time each week. 29% said they surfed two or more times each week and 44% said they surfed one or more times each week.
  6. [51]
    Mr Duane was asked about his reliance upon the average figure. When asked about the median he responded, perhaps rhetorically, ‘why would you use the middle number in the dataset?’[100] Mr Batty for the appellant indicated he would come to that ‘in due course.’ While Mr Batty did ask some further questions about the use of the mean average figure, there was no real cross-examination about whether the median, or some other figure, should have been used. Mr Duane was asked about his use of the mean average in re-examination, with reference to further data from AusPlay.[101]. It is necessary to set out a short passage so that Mr Duane’s answers can be properly understood.[102]

MR JOB:   You asked a rhetorical question why you would apply the median in the dataset.  Implicit in that is an opinion that you would not.  Why not?‑‑‑Well, I suppose if you go to – I don’t know what it’s been given.  It’s a reference what the exhibit is.

That’s 9.9?‑‑‑If you go to page 7 ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑you can see there, it’s a frequency of participation, is that inverted bar chart on the bottom left-hand side of the page.  So it starts giving an idea of the distribution of people.  And I think Ms Meulman said it looks like the figures were being distorted by a large number of people.  Well, it’s not.  It just shows the distribution and the average that would calculate from that.  So there’s nothing that all of a sudden we’ve got a huge percentage at the – doing a higher number.  As you go down the chart, typically it’s getting a lower percentage.  So there’s nothing unusual in the distribution that would say that you would need to use the mean rather than the average in this instance.

  1. [52]
    In the very last part of his answer Mr Duane used the term ‘mean’, something confirmed by my associate when listening to the recording of his evidence. But seen in context, and having regard to the question asked by Mr Job KC, it is plain that Mr Duane meant ‘median’ rather ‘mean.’ That is, Mr Duane was explaining there was nothing in the statistical distribution to indicate it was better to use a median rather than a mean.
  2. [53]
    Mr Brown was not asked about the validity of his use of the mean average of 69 in his joint calculations with Mr Duane. Ms Meulman in her separate report queried reliance on this average rather than median figure. Ms Meulman wondered whether there were a small number of ‘outliers’ whose frequent surfing skewed the data, but her concern was not further developed in the report or in evidence. In written submissions the appellant relied upon the data showing that 44% of respondents surfed one or more times each week to argue that meant 56% surfed less than 50 times a year. This was said to support Ms Meulman’s view that the data was skewed, and the mean average could not be trusted. In my conclusion the submission of the appellant lacks evidential support. In some datasets a mean average might be skewed by a small number of high value datapoints. If that is the case the median might be a better figure to use. But as explained by Mr Duane, there is nothing in the AusPlay data to raise such a concern. The fact that a bare majority of respondents said they surfed one or fewer times each year does not invalidate a mean average of 69 surf occasions per year, or reliance on that figure to project surfing demand among the adult population of the Sunshine Coast.
  3. [54]
    Of course, all such projections involve an assessment of the number of surfers prepared to substitute a free experience at the beach with a paid one at a surf park. As noted above, Mr Duane thought this would occur about one time in 10. He based this on expectations that the uncertainty of suitable surfing conditions, such as weather, waves, and crowds, would drive some surfers to a surf park, where waves are reliable and crowds not an issue. This assessment appeals to common sense. Not everyone would be willing to pay to attend a surf park. But it is reasonable to think that a surf park conveniently located in an area with a relatively large population of surfers and tourists would attract about 10% of the surfing occasions. Some would be experienced surfers looking for a reliable wave. Some would be learners looking for the safety and convenience a surf park can provide. It may be that over time existence of a surf park or parks will create demand.[103] All of these are matters which support the opinions of Mr Brown and Mr Duane as to demand.
  4. [55]
    The appellant also submitted that other assumptions informing the opinions of Mr Duane and Mr Brown should not be accepted. Relying upon data from the AusPlay report,[104] the appellant submitted that only 7% of surfing participants reported paying to surf. Because of this, the appellant submitted that it could not be assumed many surfers would be willing to pay significant amounts to use either surf park. I do not accept this is correct. While it is true that at the time of the AusPlay report, only 7% of surfers had paid to participate in surfing, that is almost certainly because there were at the time no commercial surf parks in Australia and no opportunity to pay to surf.[105] The situation has changed and is changing. Statistics about a willingness to pay to surf that predate the development of surf parks in Australia cannot be used as a foundation for assessing demand today. Similarly, the appellant’s reliance upon a categorisation of the proposed development as an ‘organised/venue based’ activity is misplaced.[106] The immaturity of the industry means a settled categorisation has yet to be adopted,[107] and it is not helpful to uncritically apply labels derived from the AusPlay report.
  5. [56]
    For these reasons, the approach of Mr Duane and Mr Brown is to be preferred. A focus on just the number of people who might be interested in surfing says little of how those people might choose to spend their time. Common sense and experience support the opinion of Mr Duane expressed above. All surfers have a degree of choice that is exercised according to relevant conditions. If a person surfs on average 69 times a year, it is to be expected they will surf at a variety of places. One expects the choice of place is made to maximise the enjoyment the surfer gains from their investment of time and energy. There will be times when there is no suitable, free beach surfing experience available. On those occasions a surf park will represent an obvious choice. Mr Duane’s assessment that on about one occasion in 10, a surfer will choose to spend money at a surf park and be rewarded with a guaranteed, reliable wave appeals to logic. I accept Mr Duane’s evidence. Having regard to the total number of surfing occasions in the study area (four to five million in 2021 depending on whether a 20% uplift for tourists and children is included) there is ample room for a projection that the parks would attract about 200,000 of these occasions each.[108] If this is the result each park would be ‘operating strongly’, as was accepted by Ms Meulman.
  6. [57]
    Ultimately, on this issue, I consider Table 3 in the joint expert report[109] provides a reliable estimate of surfing demand in the study area.

Conclusion as to issue of need

  1. [58]
    I have noted that the immaturity of what may one day become a surf park industry means that there is not the level of data that would permit the kind of quantitative analysis that might be expected in other cases.[110] That is a relevant matter which requires caution to be exercised in deciding if an overriding need has been shown. But there must also ‘be some reasonable, practical limits to the quality and detail of information an applicant must adduce to satisfy a Council [or court] about the matter raised.’[111] The co-respondent is not required to demonstrate there is an ‘economic imperative’ for its proposed development. It is enough for the co-respondent to demonstrate there is a latent, unsatisfied demand for its proposed development such that the planning controls favouring the retention of good quality agricultural land should be overridden. The co-respondent has shown sufficient evidence of this demand.
  2. [59]
    The quantitative analysis of Mr Duane and Mr Brown, which I accept, demonstrates it is reasonable to think each surf park will attract around 200,000 visits each year. This would see each park ‘operating strongly’, as Ms Meulman accepted.[112] Put another way, if there are four to five million surfing occasions each year on the Sunshine Coast, and on one in 10 of those occasions a surfer is prepared to go to a surf park, that is at least 400,000 potential visits. There was no evidence that the appellant’s surf park could cater to all this demand. Such a conclusion would be contrary to Ms Meulman’s evidence that a park attracting 200,000 visits is already ‘operating strongly’. This is clear evidence of a latent, unsatisfied demand of the kind that must be shown by the co-respondent.
  3. [60]
    It may be accepted that the co-respondent’s proposed development may, to some extent, ‘split the market’.[113] That may diminish the profits of the appellant’s surf park. But there is no evidence that the appellant’s development will not go ahead or will fail if the co-respondent’s development proceeds.[114] Such a reduction in profit (if it is the result) is a matter of private economics and not determinative on the issue of need.
  4. [61]
    There are also qualitative matters that support a need for the co-respondent’s surf park. These were summarised by Mr Duane and Mr Brown in the joint expert report.[115] These matters include the promotion of competition, choice, and healthy lifestyles, the prospect of jobs, and the contribution two surf parks would make to the tourism infrastructure of the Sunshine Coast with consequential economic benefits. Ms Meulman agreed these would be potential benefits of the co-respondent’s development. She also agreed that the interest shown by an experienced operator in the co-respondent’s development was a relevant matter.[116]
  5. [62]
    Together, these matters persuade me that the co-respondent has shown there is an overriding need for its development.

Are there no other suitable sites?

  1. [63]
    Of course, the enquiry does not end with a consideration of need. The Strategic Framework of the SCPS contains a second criterion – that no other available site is suitable for the development.[117] It is only if a proposed development satisfies both criteria that there would be compliance with these provisions. To demonstrate that no other suitable site exists, the co-respondent does not have to ‘comb the shire to analyse comparatively all other land in it to show whether this was so.’[118] A sensible approach is necessary. While the co-respondent bears the onus of showing why its proposed development should be approved, it is relevant that no one could point land elsewhere in the area where this development might be suitably located. As the respondent submitted:[119]

Not one person called to give evidence before this court has been able to point to even one other parcel of land where the particular purpose in question here could proceed instead of on this land, let alone any other parcel of land that did not carry relevant constraints precisely like this one.

  1. [64]
    There was little consideration of alternative sites in the joint expert report of the economists. It was noted that a major surf park needs to be centrally located in its catchment area, close to the Bruce Highway and on a large site.[120] Based on these criteria, Mr Duane considered if there were alternative suitable sites in a separate report.[121] He produced maps showing areas that were well-located and close to the Highway and which also depicted the zoning of the land. Mr Duane concluded that the proposed site is ‘as well placed, if not better placed’ than any alternative site. Mr Duane was cross-examined by the appellant about his analysis of potential alternative sites. The following relevant matters emerged. Mr Duane could not rule out the possibility that an alternate site existed within the local government area.[122] He limited his survey to land that satisfied the criteria in the joint expert report mentioned above,[123] because the ‘areas beyond those locations won’t be centrally located to that agreed study area and accessible within that one-hour drive time to those large population bases.’[124] Planning constraints of one kind or another would affect a significant portion of land within the local government area.[125]
  2. [65]
    Some of the cross-examination of Mr Duane seemed to implicitly criticise his analysis for having regard to whether land was for sale or could be acquired.[126] As I have said, a sensible approach to the question of alternative sites is necessary. An approach that is too literal would mean compliance could rarely, if ever, be achieved. The strategic outcome of the Strategic Framework poses the question of whether an alternative suitable site is available.[127] In my view, the word ‘available’ must be given some meaning. Logically, whether land is available would include considerations of its zoning and whether it could be acquired for the purpose being considered. It follows that it was appropriate for Mr Duane to consider this matter. The appellant’s suggestion to Mr Duane in cross-examination that ‘there’s no test in the planning scheme that effectively reads down the alternate site test based on availability’ is not correct.[128] It is true that the acceptable outcome of the Rural zone code only asks if another site is suitable.[129] But the Strategic Framework is a higher-order control compared to the Rural zone code. The former has precedence over the latter,[130] and in my view the requirements of the Rural zone code should be read consistently with the Strategic Framework.
  3. [66]
    Mr Brown agreed with the survey conducted by Mr Duane, including its restriction to land close to the centre of the catchment and the Bruce Highway. He noted that looking at a ‘wildly different’ location would require a different needs assessment.[131] Mr Brown also noted that under the SCPS the use of the proposed development as a tourist attraction made an alternate site analysis more complex.[132] It would be an inconsistent use in some zones and is only potentially consistent in others. There are few areas where a tourist attraction is a consistent use. Mr Brown observed that a lot of the land in the area was subject to forestry leases and summarised the issue as being ‘that basically everywhere in that corridor has the same or many of the issues that the subject site has, from a planning perspective.’[133] Ms Meulman thought the alternate sites analysis of Mr Duane was unduly restrictive by not exploring tourism focus areas and areas more than five-minutes’ drive from the Bruce Highway.[134] But she seemed to agree that only large parcels of land should be considered,.[135] and accepted that she had not specifically looked at possible alternative sites herself.[136]
  4. [67]
    Christopher Buckley, a town planner retained by the co-respondent provided some evidence on this issue.[137] He agreed that an alternative site analysis had to begin with the criteria adopted by Mr Duane and Mr Buckley, being land of significant size, strategically located to its catchment, and easily accessible from the Bruce Highway. Mr Buckley thought there were four such possibilities.[138] One is the site the co-respondent wishes to develop. Another, the southern intersection of the Steve Irwin Way and the Bruce Highway, was not considered suitable by Mr Buckley because it was distant from the northern part of the catchment area and would represent a new development node. The third possible location, in the northern area of the catchment, would be too close to the appellant’s surf park, too far from the southern part of the catchment, and would face access issues. The final location, near the Roys Road interchange, is flanked by forestry and there is no suitable land available. Mr Buckley fairly conceded that there could theoretically be another suitable site, but he did not think there were any genuine options. Based on this concession, Mr Buckley thought there might be ‘some’ non-compliance with the SCPS. This was developed when Mr Buckley was cross-examined by the appellant. He said:[139]

I accept there to be some inconsistency [with the SCPS], but my point is – is that the alternative suitable site use at first blush would seem to suggest that there might be other land available for – for the – for this particular use, but based on the – the familiarity I have with the – with the land on both sides of the highway and both sides of Steve Irwin Way, based on the mapping that’s been provided that deals with the hard constraints that apply to those – to the – to the land in that – in those areas and the particular things that come with a surf park, like, in terms of shape, size of land and its particular requirements for all sorts of things, including water supply, I say that, on balance, that non-compliance would be low…

  1. [68]
    Mr Buckley explained why the restriction to land within five-minutes’ drive of the Bruce Highway was appropriate, saying it was an approach that was consistent with the location of most existing tourist attractions on the Sunshine Coast.[140] He also explained why designated tourism focus areas were unsuitable because of the incongruity of locating a surf park next to, say, The Big Pineapple and also the lack of clear, unconstrained land adjoining existing attractions.[141] An important aspect of Mr Buckley’s opinion concerned the novel nature of the proposed development. This meant that well established planning concepts that might apply to schools and churches and shopping centres did not necessarily apply. In contrast this proposed development may be one of only two surf parks in Queensland. The result is that when considering novel or ‘one-off’ proposals like this, it is a case of ‘breaking new ground,’[142] and the SCPS is not written to respond to an almost unique tourist use of this kind.
  2. [69]
    Against this analysis the appellant levels several criticisms.[143] First it is submitted that the criteria applied were inappropriate. I do not accept that submission. As the evidence set out above explains, it was a correct approach to focus on land that was central to the catchment area, close to the highway, and large enough to accommodate a development of this sort. Sites that did not satisfy these basic criteria could not be considered ‘suitable’ for the proposed development. In this regard the evidence was effectively unchallenged. Secondly, the contribution of Mr Buckley from a planning perspective was criticised for not considering all possible overlays that might affect land in the local government area. This criticism is without substance. Mr Buckley considered the overlays that were more likely to affect the development of land for the purpose of a tourist attraction. He was not required to consider all possible overlays and to do so would have been unhelpful. The examination carried out by Mr Buckley was sufficient to demonstrate that much, if not all, of the land that might be suitable for this development was affected by similar planning constraints as the chosen site. The appellant submitted that the assessment benchmark required proof that ‘no other site is suitable for the particular purpose,’ and said Mr Buckley had not shown this was true. Those are the words of the Rural zone code but, as I have noted, the Strategic Framework further qualifies the criterion with the word ‘available.’ For the reasons above, this qualification must also apply to the Rural zone code.
  3. [70]
    The appellant relied upon the decision of this court in Glenella Estates Pty Ltd v Mackay Regional Council & Ors.[144] There the question posed by the planning controls was whether ‘no alternative sites are available.’[145] The court in Glenella Estates noted that, where required by relevant planning controls, the proponent of the development bears the onus of demonstrating that ‘there is insufficient comparable land’ or that ‘no alternative sites are available.’[146] As a general proposition that is undoubtedly correct. Of relevance, it was also observed in Glenella Estates that ‘[m]any views could be taken about what sites … are comparable or alternatives.’[147] This must also be correct, and what will be a suitable alternate site will vary considerably from case to case. Here the proposed development is for a tourist attraction that will require a large parcel of land, which is close to the population centres from which its customers will be drawn, and which can be easily accessed by those customers without burdening residential traffic.[148]
  4. [71]
    These are the criteria considered by Mr Duane, Mr Brown and Mr Buckley. The effect of their evidence is that there is no more than a theoretical possibility that somewhere on the Sunshine Coast there might exist another site that might be suitable, and available, for this development. Ms Meulman did not contradict this evidence. I accept the evidence of Mr Duane and Mr Buckley as it concerns potential alternative sites. That evidence persuades me that it is more probable than not that there are no other suitable sites available for the proposed development. I have reached this conclusion despite the apparent concession of Mr Buckley that there is some non-compliance with this aspect of the SCPS. This was an opinion based upon his cautious acknowledgement that it is often impossible to prove a negative. But an inability to prove beyond doubt there is no other suitable site available does not mean it is more probable than not such a site exists.[149]
  5. [72]
    I am satisfied on the evidence that there is no other suitable and available site for this development. As such the co-respondent has demonstrated there is an overriding need for its development and that there are no other suitable sites. It follows that the proposed development complies with the relevant outcomes of the SCPS concerning the alienation of good quality agricultural land and the loss of the land is not a matter that favours refusal of the proposed development.

What if I am wrong about need and other suitable sites?

  1. [73]
    Because the loss of good quality agricultural land is an important matter, it is necessary to consider the effect on the appeal if I were wrong about either need or alternative sites. If I were wrong the result would be there is non-compliance with parts of the Strategic Framework of the SCPS. These are important provisions, as is shown by the way the SEQRP deals with the RLRPA, but the extent or significance of the departure from the planning provisions is a relevant matter.[150] Non-compliance on its own does not require that a proposed development be refused. Here, the effect of the loss of some pineapple cropping land near the Bruce Highway at Glass House Mountains should be considered. That assessment must begin with the evidence.

Evidence concerning the quality and use of the agricultural land

  1. [74]
    The appellant relied on the evidence of Mr Peter Spies and the co-respondent on that of Mr Bill Thompson. Both are experienced agronomists. They agreed that the subject land consists of agricultural land class B.[151] That is land which is suitable only for a narrow range of crops with specialised requirements.[152] The proposed development will result in the permanent loss of 5.1 hectares of class B land (there was disagreement, discussed below, about the likelihood of consequential loss of land if the surf park is built). The land is situated to the east of most of the agricultural land in Glass House Mountains. It is separated from the main portions of agricultural land by rural residential lots and does not form an integral part of the rural lands that dominate other parts of Glass House Mountains. As was said in the joint expert report:[153]

The subject lots are in reality an outlier commercial land use form and are isolated by rural living type uses from the main commercial rural activities to the west and northwest.

  1. [75]
    Without irrigation it is unlikely that anything other than pineapples are commercially viable on the land. The land does not have any irrigation entitlement.[154] Both agronomists agreed that the demand for pineapple production for canning and juicing has reduced with the industry moving toward fresh fruit production. Mr Spies said that production has decreased from 88,400 tonnes in 2013 to just over 66,000 tonnes now. The fresh fruit market now comprises 64% of the pineapple crop. In recent times there has been an increase in pineapple cropping in Central and North Queensland and some land on the Sunshine Coast previously used to grow pineapples is now used for agistment and turf farms.[155]
  2. [76]
    Where Mr Spies and Mr Thompson disagreed was as to the importance of this parcel of class B agricultural land. Mr Thompson thought this land was a small parcel that contributed relatively little to an overall pineapple crop that was in any event in the process of relocating to the north. He testified that there is still plenty of land of this type and quality in south-east Queensland. The production centre for pineapples has moved to central and north Queensland coastal areas, in part because of the shift to different varieties of pineapple more suitable for fresh fruit consumption than canning, and which are more productive in environments to the north. Mass transportation has removed one of the barriers to pineapple production further north as pineapples can now be transported to markets interstate in a short time.[156] In cross-examination Mr Thompson described this shift north as ‘inevitable.’[157] In a separate report Mr Thompson wrote that the proposed development would result in the loss of 2% of the pineapple cropping land on the periphery of such land in Glass House Mountains.[158]
  3. [77]
    Mr Spies thought the land was important, writing in a separate report that good quality agricultural land like this, which is close to transport, markets and urban areas, is at a premium.[159] He calculated that the subject land could produce around 300 tonnes of pineapples each year, a contribution of around 0.46% to the national pineapple crop of just over 66,000 tonnes.[160] Mr Spies also emphasised the qualities of this land, limited though they are, and its suitability for growing pineapples.
  4. [78]
    Ultimately, I prefer the evidence of Mr Thompson that the 5.1 hectares that would be lost to the co-respondent’s development is not especially significant or important.[161] That is so for the following reasons. First, this land does not contribute a great deal to the national pineapple crop. I accept that 0.46% is greater than nothing, but it could not be described as significant, much less substantial. Secondly, there could be no suggestion that the loss of this parcel of land would be the start of a ‘domino effect’ leading ultimately to the loss of more good quality agricultural land in Glass House Mountains. This is a proposal for a surf park. Unlike residential development, where there may be a concern that the approval of one development might increase the prospects of further development, it is a ‘one-off’ proposal. It could not represent the beginning of an incremental process that will result in the loss of more agricultural land. Thirdly, there was no dispute that the production area for pineapples is moving north. That does not mean that planning authorities should give up entirely on the protection of agricultural land suitable for pineapples. But the significance of the loss of this land is diminished by the knowledge that the industry is changing. In this regard it is important to note that the land is not suitable for any other crop. Fourthly, the subject land is not an integral part of pineapple cropping land in Glass House Mountains. It is an outlier, and its loss will be less keenly felt than land in the centre of the production area.
  5. [79]
    The appellant criticised Mr Thompson’s evidence because he appeared to disagree with aspects of the SCPS and the policy it represents.[162] That may be so, but Mr Thompson was testifying as an agronomist, not as a town planner. His opinions about the quality of the land and the nature of the pineapple cropping industry did not depend upon an acceptance of the policies contained in the SCPS. If Mr Thompson believed the SCPS should not protect this land, that belief was irrelevant to what I must decide. The importance of his evidence lies in his opinions about the land and industry and what conclusions of fact I might come to if I accept these opinions. There is no reason to think that Mr Thompson’s opinions were biased because of his beliefs about the policies in the SCPS. This matter does not lead me to reject the evidence of Mr Thompson.
  6. [80]
    A second criticism was based upon what was said to be inconsistent positions adopted by Mr Thompson in respect of the remnant of agricultural land that would be left if the development proceeded. The proposed development would leave 2.4 hectares of pineapple cropping land to the south of the surf park. The appellant submitted Mr Thompson was inconsistent for suggesting that cropping on the 5.1 hectares that would be lost was not sustainable while at the same time saying the residual 2.4 hectares remained viable. To answer this criticism, it is necessary to consider exactly what Mr Thompson said. When asked if farming pineapples on the Sunshine Coast was a sustainable rural enterprise, Mr Thompson answered, ‘Not in the longer term’[163] (my emphasis). Later in cross-examination by the appellant it was put to Mr Thompson that he could not suggest the remaining 2.4 hectares could continue as a sustainable pineapple-producing allotment. He disagreed and responded by saying that there might be growers with the machinery, knowledge, capacity, and logistics to access an area like this.[164] When the apparent tension in these positions was pointed out to Mr Thompson, he said the residual was not viable in ‘its own right,’ and went on to say:[165]

But as part of a bigger – a larger aggregation by – by another operator who might have 20 hectares in the region, a further 10 hectares in the area, he can easily transport his equipment and his expertise to this area of the profit [sic], it’s viable in that sense as an attachment to an existing operator.

  1. [81]
    Mr Thompson explained that pineapple cropping in Glass House Mountains was not unsustainable now, but it would become unsustainable in the longer term. The position was made clearer in re-examination when Mr Thompson said that he could see no reason why pineapple cropping would not continue in the immediate short term but maintained that in the longer term it was not viable in Glass House Mountains. Understood in its context, there is no inconsistency in Mr Thompson’s opinions. He was saying, in effect, that while in the longer term he does not think pineapple cropping is viable in this location, that does not mean that it is pointless to continue, for now, to grow pineapples on the 2.4-hectare residue. That is, it cannot be assumed that if the development proceeds an additional 2.4 hectares of good quality agricultural land will be lost.
  2. [82]
    Another point of difference between the parties was whether, and to what extent, the proposed development would result in a consequential loss of agricultural land. Mr Spies considered there was a high likelihood that an adjoining 5.2 hectares of class B land would ultimately be lost as well, due in part to amenity issues arising from the use of the land. Mr Spies was concerned about the potential for chemicals used in crop spraying to drift and affect the surf park with the result that ‘reverse amenity’ concerns could lead to the end of cropping on that land.[166] This was addressed primarily by Mr Paul King, who was engaged by the co-respondent to provide evidence concerning environmental amenity issues. Mr King relied upon an assessment conducted by a third party, with which he agreed.[167] Based on this assessment, Mr King thought that the proposed buffers would be sufficient to protect the surf park from spray drift and that the risk of ‘reverse amenity’ concerns was very low.[168] As explained by Mr King in his report and evidence in chief,[169] the chemicals used have a coarse drop size and will not travel far, the buffers are to be substantial, the main use area of the surf park is well away from the adjacent agricultural land, and the use of the surf park is not a sensitive use compared to residential development.
  3. [83]
    Mr Spies concerns were expressed in his separate report and addressed by Mr King in his testimony. It is convenient to deal with each in turn. First, Mr Spies raised the prospect that a spray operator may not carry out the task in accordance with ‘best practice’, in which case the proposed arrangement may not be sufficient.[170] Mr King’s response was to appropriately acknowledge that it is impossible to guard against all possibilities, but that he considered the risk low. I agree with Mr King. It would not be right to proceed on an assumption that some future operator will be negligent or incompetent. It is reasonable to assume that future spraying will occur in accordance with best practice.
  4. [84]
    Secondly, Mr Spies raised a concern that herbicides used on the agricultural land would damage and diminish the buffer, over time rendering it ineffective.[171] In response Mr King pointed out that it was a condition of the approval that the vegetated agricultural buffer must be ‘established and maintained in accordance with an operational works approval for the life of the development’ (my emphasis).[172] This is sufficient to address any concern about future amenity impacts. Thirdly, Mr Spies related an anecdote about the use of land where he lives on the Atherton Tablelands to suggest there may be issues with dust and machinery noise. He posed the question, ‘The recommended vegetation buffer may not even be planted and maintained and what processes are in place to ensure the proponents comply?’[173] This query suggests a lack of familiarity with the condition of approval I have just mentioned. That aside, the concerns of Mr Spies are misplaced. Mr King explained that pineapple cropping does not result in much ploughing or fallow land and so will not produce much dust.[174] It is helpful to note that Mr Thompson also agreed, going further to observe that the soil is sandy with limited silt. As such there is likely to be less dust that will travel less far.[175] Mr King thought machinery noise from the use adjacent agricultural land would be insignificant in the context of an operating tourist attraction with noise being generated on site.[176]
  5. [85]
    There was almost no cross-examination by the appellant on this aspect of the evidence, and what there was does not lead me to doubt the opinions of Mr King set out above.[177] It is of note that the appellant did not address any submission concerning Mr Spies views on this topic. I am satisfied that the proposed development does not present any ‘reverse amenity’ issues and there is no appreciable risk that the proposed development will result in the consequential loss of the adjoining 5.2 hectares of good quality agricultural land.

Conclusion regarding the significance of the loss of good quality agricultural land

  1. [86]
    It is true that the relevant planning controls[178] value and seek to preserve good quality agricultural land. But, when deciding the significance of the loss of such land, its quality and importance are relevant matters. This is a comparatively small parcel of agricultural land located on the periphery of pineapple cropping land in Glass House Mountains. Its contribution to the national crop, which is itself diminishing, is modest. There is also evidence that in time pineapple cropping will increasingly occur to the north. The loss of this land is not a matter of material significance. Even if there is some non-compliance with the planning controls because of the loss of good quality agricultural land, the land in question is not of substantial value and the weight to be given to the non-compliance as a matter favouring refusal of the proposed development is slight.

Does the proposed development detract from scenic amenity or landscape values, or otherwise conflict with the SCPS because it is in the inter-urban break?

  1. [87]
    The value of the inter-urban break is to be found in its treatment in both the SEQRP and SCPS. At the State level, the SEQRP seeks to retain the Moreton Bay-Sunshine Coast inter-urban break ‘as a regionally significant green break providing open space, amenity and other non-urban landscape values between the major urban areas’ which ‘protects the landscape setting of the heritage-listed Glass House Mountains National Park … and preserves opportunities for agricultural production and forestry, tourism and outdoor recreation.’[179] At the local government level, the SCPS also places importance on the inter-urban break. Dealing with the planned settlement pattern for the Sunshine Coast, the strategic outcomes emphasise the importance of the inter-urban break in providing geographic separation between the Sunshine Coast and the greater Brisbane and Caboolture urban areas.[180]
  2. [88]
    Of more immediate relevance are the assessment benchmarks found in the specific and performance outcomes of the SCPS. These begin with the Strategic framework where issues of community identity and character are dealt with. Table 3.8.2.1 relevantly provides[181]
  1. (a)
    The landscape elements identified … which include regional and sub-regional inter-urban breaks, high value scenic areas, regional gateways and scenic routes are protected and enhanced.
  1. (b)
    Regional and sub-regional inter-urban breaks are not reduced, fragmented or otherwise adversely impacted by urban or rural residential development.
  1. [89]
    Next, the Rural zone code provides at 6.2.19.2(2)(p), as an overall outcome, that[182]

development does not adversely impact upon the functional integrity of the regional inter-urban break and sub-regional inter-urban breaks that provide separation between urban areas and reinforces the individual sense of identity of places and communities.

  1. [90]
    Finally, the Scenic amenity overlay code seeks to protect ‘the regional inter-urban break which provides continuity of separation … and defines the Sunshine Coast as a separate place in the South East Queensland Region.’[183] This code provides benchmarks in performance and acceptable outcomes contained in a table, the relevant part of which are set out below.[184]

Performance Outcomes

Scenic Routes

PO1

Development does not detract from the visual amenity of a scenic route and:-

  1. (a)
    is visually unobtrusive, relative to its urban or non-urban setting and surroundings, when viewed from the scenic route;
  2. (b)
    maintains or enhances important view corridors or distance views from the scenic route to significant landscape features; and
  3. (c)
    is low key, both visually and in scale, so as not to detract from the scenic amenity offered from the scenic route.

AO1

Development on land adjoining a scenic route, as identified on a Scenic Amenity Overlay Map:-

  1. (a)
    retains existing vegetation and incorporates landscape treatments to visually screen and soften built form elements, whilst not impeding distance views or view corridors from the scenic route;
  2. (b)
    incorporates building materials and external finishes that are compatible with the visual character and the landscape or townscape setting of the scenic route; and
  3. (c)
    minimises visual impacts on the scenic route in terms of:-
  1. (i)
    the scale, building height and setback of buildings;
  2. (ii)
    the location and configuration of access roads and driveways; and
  3. (iii)
    the scale, extent and visual prominence of singage.

Regional inter-urban break

PO2

Urban and rural residential development does not occur within the regional inter-urban break.

AO2

No acceptable outcome provided.

PO3

Development protects and enhances landscape values of the regional inter-urban break as a non-urban land area, free of urban elements and infrastructure, that maintains the continuity of separation between the Sunshine Coast and the Brisbane to Caboolture metropolitan area.

AO3

No acceptable outcome provided.

  1. [91]
    The parties differed a little as to the significance of these provisions to the proposed development. The co-respondent contended that the provisions are concerned with scenic amenity and not directly with land uses. The respondent agreed, submitting the inter-urban break served two important purposes: the preservation of scenic amenity and the prevention of urban sprawl.[185] The appellant contended there are textual indications suggesting the provisions are also concerned with land use, in particular rural uses.[186] The implication of this contention seemed to be that the parts of the SCPS dealing with the inter-urban break seek to preserve rural land for its own sake. The resolution of this matter lies in terms of the scheme itself, which is to be construed sensibly and as a whole document.[187] In the end, there is little difference between the parties. Even if these provisions are mostly concerned with scenic amenity and the prevention of urban sprawl, as I think they are, these matters will often involve land use considerations arising from a proposed development. Where I disagree with the appellant is in the implication that the inter-urban break is concerned with the preservation of rural land for its own sake. There are other parts of the SCPS that evidence this intention, such as those of the Rural zone code,[188] but the provisions about the inter-urban break are not so focussed. There is little in the text of the provisions set out above to support a conclusion that they are intended to preserve rural land for its own sake, rather than for its contribution to scenic amenity and landscape values. The only indicator supporting the appellant’s contention is in the strategic outcomes for the settlement pattern theme of the SCPS, which provides:

Outside these areas, rural lands and natural areas are maintained predominantly for their rural enterprise, landscape and environmental values. These areas reinforce the character of the Sunshine Coast as a place with large areas of open space surrounding distinct and separate urban and rural residential areas. The Regional Inter-urban Break preserves the geographic separation between the Sunshine Coast and the greater Brisbane and Caboolture urban area.[189]

  1. [92]
    The first sentence of this paragraph emphasises the protection of rural lands. But the reference to the inter-urban break, read in context, is concerned with the preservation of the character and identity of the Sunshine Coast. That is, the inter-urban break is significant for its contribution to character, and by extension to scenic amenity and landscape values, rather than because it preserves rural land per se. The same may be said of the other provision mentioned by the appellant.[190] In my view the treatment of the inter-urban break by the SCPS evidences a primary concern with scenic amenity and landscape values, a part of which is the prevention of urban sprawl and providing a sense of separation. To the extent that land use issues are relevant, they are a subsidiary consideration.
  2. [93]
    The consequence is that, in this appeal, the provisions of the SCPS dealing with the inter-urban break raise for consideration three issues. First, the effect of the proposed development on scenic amenity and landscape values. Secondly, whether the development diminishes the sense of separation provided by the inter-urban break. Thirdly, whether this is urban development in the inter-urban break, contrary to PO2 of the Scenic amenity overlay code.

Does the proposed development detract from scenic amenity and landscape values?

  1. [94]
    The first issue is whether the proposed development protects and enhances, or at least does not detract from, the scenic amenity and landscape values of the area. The relevant evidence in this regard is found in the joint expert report[191] and testimony of three experts in visual amenity – Mr Russell Olsson retained by the appellant, Mr Nathan Powell retained by the co-respondent, and Dr Nicholas McGowan retained by the respondent. Mr Powell and Dr McGowan agreed the proposed development would not significantly diminish the scenic amenity and landscape values of the inter-urban break, whereas Mr Olsson thought it would introduce large urban elements, including signage, and remove natural looking vegetation. A consideration of the differences of opinion must begin with the landscape setting of the proposed development.
  2. [95]
    While the proposed development is to sit in the inter-urban break and a ‘High Value Scenic Area’,[192] so is the existing development comprised of the two service centres on each side of the Bruce Highway. Each service centre is highly visible and of substantial size.[193] As well, there is obvious rural residential development nearby to the west of the proposed development. The proposed development is not intended for an area that is wholly rural or otherwise undeveloped. Mr Olsson agreed this setting formed part of the visual character of this ‘busy locality’.[194] This is of significance when assessing the effect of the development on scenic amenity and landscape values in the locality. Based in part on this, Mr Powell and Dr McGowan agreed:[195]

a) That the proposed development would result in no perceivable change to the visual experience from the Highway.

b) That the proposal will present a vegetated edge to Johnston Road that will not be out of character with the visual qualities of the road.

c) That the proposed development would have limited visibility from the Wild Horse Mountain Lookout, depending on the part of the lookout being occupied.

d) That when seen from the lookout, the proposed development would not appear particularly large in the context of nearby development.

e) That the landscaping proposed will obstruct views to parts of the built form.

f) That the landscaping arranged with some regularity would not be unusual or out of character in the locality.

g) That any visual impacts from lighting would be limited in the context of the street lighting associated with the Highway and overpass.

h) That any impacts from signage are likely to be appropriately mitigated by conditions requiring consideration of the site context.

i) That the proposed development would ultimately be unobtrusive; would not discernibly add to the existing visible urban or rural residential built form along the scenic routes; and would not materially change the character of broader views from the lookout.

  1. [96]
    In respect of these matters, it is of note that Mr Olsson agreed with (a), that the proposed development would have no perceptible change to the visual experience from the Bruce Highway.[196] He also appeared to agree with (c), that the view from Wild Horse Mountain Lookout would not be unacceptably affected, at least if the roof of the buildings used recessive colours.[197] The fact that the proposed development will in time be screened from the Highway and Johnston Road is amply demonstrated by the photomontages,[198] which were accepted by each expert as providing a range of viewpoints and sufficient information.[199] All that is really in dispute between Mr Olsson and the other witnesses is whether there will be signage that would detract from scenic amenity, whether the vegetation will seem ‘unnatural’ because it is in straight lines, and whether the time it will take to become established is of concern.
  2. [97]
    In relation to future signage, the appellant’s concern may be immediately dismissed. There is no proposal for signage in the material change of use application and I cannot have regard to something which neither exists nor is presently proposed. In any event, the decision notice requires that any proposed signage be submitted for approval to the respondent Council and ‘must comply with all applicable planning scheme requirements.’[200] It would be wrong for me to assume some future signage would not comply with the requirements of the SCPS and would diminish the scenic amenity of this locality.
  3. [98]
    As for the vegetation screening, I prefer the evidence of Mr Powell and Dr McGowan who are both landscape architects. Mr Olsson himself said he would defer to those witnesses in respect of matters concerning vegetation, its characteristics and growth rates. Mr Powell testified that any view of the proposed development from Johnston Road would be entirely obscured by vegetation within 2.3 years from planting, and much of it would be obscured before then such that it would be visually unobtrusive.[201] Dr McGowan agreed, saying that only part of the building would be visible before the screening matured and it would not be obtrusive ‘given its distance from the roads and its form and scale.’[202] This evidence satisfies me that the planned screening will result in the proposed development protecting, and in time enhancing, the scenic amenity and landscape values of the locality. It follows, as well, that the proposed development will not reduce, fragment, detract from, or adversely affect scenic amenity or landscape values. Put simply, what cannot be seen cannot detract from or diminish scenic amenity. Even if parts of the development can be seen for a time, that is trivial in the context of the visual disruption which already exists because of the two service centres.
  4. [99]
    Mr Olsson’s concern about the vegetation screening being planted in straight lines seemed to fall away in cross-examination. While he first maintained it was out of context for the locality, he agreed it was not unacceptable.[203] Then Mr Olsson appeared to agree that the extensive local pine forests which formed part of the character of the area were rectilinear like the proposed plantings, and they were not visually offensive.[204] This is consistent with Mr Powell’s evidence, and his opinion that the planned vegetation screening did not represent ‘anything visually extraordinary.’[205] In the circumstances I am satisfied that the nature of the planned vegetation screening will not itself conflict with relevant parts of the SCPS.

Would the proposed development diminish a sense of separation?

  1. [100]
    Compliance with the SCPS also requires that development does not reduce, fragment or otherwise adversely impact the inter-urban break.[206] This is necessary to ensure the inter-urban break maintains a sense of separation between the Sunshine Coast and local government areas to the south and is an important constraint on urban sprawl. While the proposed development is a substantial one, it is well located and, for the reasons set out above, will be largely invisible to passers-by. It will not by its appearance add to the existing disruption of the inter-urban break already caused by the service centres on either side of the highway. For this reason, the proposed development will not diminish the sense of separation perceived by travellers on the adjacent scenic routes or from Wild Horse Mountain. But there remains a further consideration: whether it is development of an urban kind that is discouraged in the inter-urban break.

Is this urban development in the inter-urban break? If it is, what is the significance?

  1. [101]
    PO2 of the Scenic amenity overlay code is clear that urban development is not to occur in the inter-urban break. If the proposed development is ‘urban’ development, it would conflict with this provision. The purpose of this provision is obvious. Quite apart from issues of scenic amenity, if urban development were allowed without restriction in the inter-urban break it would dilute, and in time destroy, the sense of separation between local government areas. The importance of avoiding such ‘urban sprawl’ was accepted by the respondent and co-respondent.[207]
  2. [102]
    The co-respondent sought to avoid the application of PO2 by submitting that compliance with the purpose and overall outcomes of the Scenic amenity overlay code was sufficient. The premise for this submission is found in section 5.3.3(3)(a)(iii)(A) of the SCPS which provides that ‘assessable development requiring code assessment … that complies with … the purpose and overall outcomes of the code complies with the code.’[208] Of course, this proposal requires impact, rather than code, assessment. But the approach of the P&E court has been to make no distinction between the mode of assessment and to apply provisions like this as if they expressly included impact assessable development.[209] There was no challenge to the correctness of this proposition, and I proceed on that basis.
  3. [103]
    The purpose and overall outcomes of the Scenic amenity overlay code are expressed in the following terms.[210]

8.2.12.2 Purpose and overall outcomes

  1. (1)
    The purpose of the Scenic amenity overlay code is to ensure that development does not adversely affect scenic amenity and landscape values within the Sunshine Coast.
  1. (2)
    The purpose of the Scenic amenity overlay code will be achieved through the following overall outcomes:-
  1. (a)
    development protects the significant landscape elements and features which contribute to the unique character and identity of the Sunshine Coast, including:-
  1. (i)
    the scenic amenity values visible from scenic routes;
  2. (ii)
    the regional inter-urban break which provides continuity of separation between the Sunshine Coast and the Brisbane to Caboolture metropolitan area and defines the Sunshine Coast as a separate place in the South East Queensland Region;
  3. (iii)
    the sub-regional inter-urban breaks which provide continuity of separation between urban communities within the Sunshine Coast and define individual communities as separate places within the sub-region; and
  4. (iv)
    significant views and vistas
  1. [104]
    The overall outcome at (2)(a)(iii) above dealing with sub-regional inter-urban breaks is not relevant. Nor is (2)(a)(iv) because views to this site or from Wild Horse Mountain are not identified in the table of significant views at 8.2.12.3.2. That leaves the purpose at (1) and overall outcomes at (2)(i) and (ii). For the reasons set out above, the proposed development would achieve the purpose of the code, which is to not adversely affect scenic amenity or landscape values. The proposed development also complies with (2)(i) concerning views from scenic routes. The remaining question is whether the proposed development ‘protects … the regional inter-urban break’. What is meant by this is to be understood having regard to the whole of the code, including the purpose of the inter-urban break as described in the balance of paragraph (2)(ii) and PO2 of the table of performance outcomes. In this context, the protection of the inter-urban break must include that development avoids urban development within the break, because such development would, to a greater or lesser degree, impinge on the ‘continuity of separation’ and sense of separation it is intended to provide. It follows that the proposed development would only comply with the purpose and overall outcomes if it is not urban development in the inter-urban break, which is what is in any event required by PO2.
  2. [105]
    Anticipating this conclusion, the co-respondent sought to argue their proposal was not urban development by reference to definitions in the Planning Regulation 2017 (Qld), ‘urban development’ being undefined in the SCPS.[211] It is enough to deal with this argument to note that the definition relied upon in the Planning Regulation concerns ‘urban activity’ and focusses on the use of premises for an urban purpose. It is of no assistance to the co-respondent.[212] Instead I accept the appellant’s submission, made with reference to authority,[213] that ‘urban development’ is to be given its ordinary meaning, that is relating to, or characteristic of, a city or town.
  3. [106]
    Mr Chris Schomburgk, a town planner retained on behalf of the respondent, did not think this was urban development.[214] In evidence, in response to a suggestion that the proposed development contained ‘urban elements’, he said:[215]

With respect, I think that’s a bit of a stretch.  The fact that it contains a car park and it contains a restaurant facility and a bar – you do find those in urban areas, I accept that, but you also find them in rural hotels or in rural resorts … Is that – does that mean it’s an urban use?  To me, that doesn’t mean the use as a whole is an urban use, but I accept that it contains elements that are often found in urban areas.

  1. [107]
    Mr David Perkins, a town planner retained by the appellant, did not express any concluded opinion on this issue saying:[216]

I don’t know that I’ve actually sort of landed on that issue.  It has – it has urban elements, and it is certainly comfortably within the non-rural category, so I’m not sure there’s a – there’s a space that’s occupied by things that aren’t one or the other.

  1. [108]
    On the evidence before me, I do not think the proposed development represents ‘urban development’ for the purpose of the Scenic amenity overlay code. While there are undoubtedly elements of the development that are often found in urban settings, these are elements commons to much development. The proposed building, hardstand areas, and infrastructure associated with the proposed development are not only found in urban areas. There is nothing about the proposed development to compel the conclusion it is of a kind relating to, or characteristic of, cities or towns. I am fortified in reaching this conclusion by the evidence of Mr Perkins that this development seems to occupy a liminal space between urban and rural development.
  2. [109]
    As such, the proposed development is not ‘urban development’, and it complies with the purpose and overall outcomes of the Scenic amenity overlay code. On that basis, it complies with the code. If I am wrong about that, the proposed development would not comply with the overall outcomes or PO2 of the performance outcomes. In that case it would be necessary to consider the significance of this departure from the planning scheme. While it may be accepted that PO2 is a strong indication that urban development in the inter-urban break should not occur, the significance of the development in this case must be seen in light of the existing development in the locality. It may be that the existing service centres on either side of the Bruce Highway are historical uses that pre-date the establishment of the inter-urban break. But that does not affect the reality of their existence and the impact they have both visually and in terms of providing for a sense of separation. For the reasons already discussed, the addition of this development will not be meaningful. It follows that even if it is ‘urban development’, and therefore departs from the planning scheme, the departure is not significant and should be given little weight.

Does the location of the development in the rural zone outside of a ‘tourism focus area’ create conflict with the planning scheme?

  1. [110]
    At the heart of this issue is the preference expressed in the planning scheme for tourist activities to be concentrated or clustered in designated tourism focus areas. Such a preference is to be found in the Strategic Framework under ‘Theme 2 – Economic development’ in the SCPS. Specific outcome 3.4.6.1 provides[217]
  1. (a)
    To support the preferred pattern of settlement, development provides for tourist oriented activities and services to be concentrated within the tourism focus areas…

…

  1. (d)
    New tourist attractions cluster in designated tourism focus areas in a manner consistent with the intended role of the particular tourism focus area.
  1. [111]
    That is not to say tourist attractions outside of a tourism focus area will always conflict with the scheme. The town planners agreed that ‘the planning scheme and SEQRP anticipate such uses may be approved even though they are not located in or near a designated tourist (sic) focus area.[218] The SCPS recognises that there is scope for appropriate tourist development in areas primarily reserved for other land uses. Such recognition is found in the Strategic Framework at 3.4.6.1(e), which provides for a merits-based assessment of tourist development in other areas. As well, the Rural zone code encourages ‘non-rural activities that are compatible with a rural setting and support rural enterprise or tourism’, at least where they do not compromise the use of land for rural activities.[219] This code also defines a tourist attraction as a potentially consistent use in the rural zone.[220] Of the assessment criteria set by the Strategic Framework, only one was put in issue by Mr Perkins on behalf of the appellant.[221] That concerned whether the development

is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity.[222]

  1. [112]
    This criterion expressly requires consideration of character, scenic amenity, and general amenity. It may be accepted that it also calls up the sorts of issues presented by the location of the proposed development in the inter-urban break and the loss of good quality agricultural land.[223] The latter matters have been addressed separately, as have issues concerned scenic amenity and character. The appellant’s concerns about general amenity are dealt with below. For these reasons, I do not share Mr Perkins concern that the proposed development conflicts with this criterion. Assuming the proposed development otherwise has planning merit, it is suitable for location outside of a tourism focus area.
  2. [113]
    The appellant sought to argue that the SCPS, in the Strategic Framework, strongly indicates that ‘the only type of tourism use that is consistent with the values of the inter-urban break are nature and hinterland tourist uses,’[224] something this development is plainly not. This was said to be a matter telling against approval. However, the premise of the appellant’s argument is flawed. It is derived from Table 3.4.6.1 in the Strategic Framework,[225] which lists tourism focus areas on the Sunshine Coast. The Glass House Mountains is the only listed area that happens to sit in the inter-urban break. It is said in the table to be one of several tourism focus areas with a ‘primary emphasis on nature and hinterland/rural based tourism experiences and accommodating low impact visitor accommodation and related tourism services.’ There is no mention of the inter-urban break, and the description of tourist uses is not a closed list. It would be reading far too much into this provision to suggest that it sets a policy for tourist development in the inter-urban break, much less one that strongly indicates such development is to be limited to nature or hinterland-based uses.
  3. [114]
    Nor can I find support for the appellant’s contention that the SEQRP only contemplates nature-based tourism in the Northern Sub-Region[226] (which is large, encompassing the Sunshine Coast and Noosa local government areas). Sub-regional outcomes over the next 25 years are expressed to include nature-based tourism as a means of rural diversification,[227] but they also contemplate ‘tourist and outdoor recreation’ in the inter-urban break.[228] This does not suggest the SEQRP intends to constrain the types of tourist uses permitted in the Northern Sub-Region.
  4. [115]
    There is nothing in the planning controls concerning tourism focus areas or the rural zone, as identified by the appellant, with which the proposed development conflicts. As for general planning considerations, the experts broadly agreed that this site was eminently suitable for the proposed development and benefited from many positive attributes.[229] It is, as has already been observed, well located and accessible to its intended market. The land is topographically suitable, and the development can be separated from sensitive receptors. There are no amenity issues that cannot be resolved by conditions. Mr Perkins remaining concern, that this development may act as a ‘catalyst’ for further development because it represents a new or expanded node of development, was expressly disavowed by the appellant.[230] They were right to do so. There is no proper basis for thinking the development of a surf park tourist attraction at this location would ‘open the door’ to further development in this locality.
  5. [116]
    I do not accept the appellant’s contentions that the proposed development conflicts with these parts of the SCPS. It will be necessary to return to some aspects of the Strategic Framework when examining the co-respondent’s case that they support approval of the development. But first it is appropriate to consider the appellant’s complaint that development will have unacceptable amenity effects on adjoining land uses.

Will the development unacceptably effect amenity on nearby land?

  1. [117]
    The appellant also contended that the proposed development would have unacceptable adverse amenity impacts. In the end, this was focussed on the noise that might be generated by machinery and patrons and how that might diminish local amenity.[231] In support of this contention the appellant relied upon three provisions of the SCPS. The first provision is found in the Rural zone code at 6.2.19.2(2)(f) and is set out below.[232]

[N]on rural activities are located, designed and operated to minimise conflicts with existing and future rural activities on surrounding rural lands and avoid significant effects on rural amenity including through adverse noise or traffic generation

  1. [118]
    The next provision is overall outcome 9.4.3.2(2)(a) of the Nuisance code.
  1. (a)
    development is located, designed, constructed and operated to maintain appropriate levels of amenity and environmental performance by:-
  1. (i)
    not imposing unacceptable noise, light, glare, dust or odour emissions on surrounding sensitive land uses; and
  2. (ii)
    ensuring that proposed sensitive land uses are not subject to unacceptable nuisance emissions generated from surrounding development, having regard to the location and context of the proposed development
  1. [119]
    The final provision is performance outcome PO1 of the accompanying table 9.4.3.3.1 which relevantly provides:[233]

Development, other than development involving live entertainment or in a designated special entertainment precinct or as part of a temporary event, is located, designed, constructed and operated to ensure that noise emissions do not unreasonably impact on surrounding sensitive land uses having regard to the location and setting of the development.

  1. [120]
    While the appellant put this matter in issue, they did not produce any evidence relevant to the issue of noise.[234] That was left to the co-respondent who relied upon the evidence of Mr Paul King, whom I have already mentioned in the context of possible ‘reverse amenity’ issues arising from the use of agricultural land adjacent to the proposed development site. Mr King considered that the proposed development was ‘suitably separated from existing sensitive land uses’ and would not result in environment amenity impacts. As well, noise barriers and appropriate design would limit noise emission to an acceptable level.[235] There was considerable cross-examination of Mr King by the appellant. From this, the appellant advances four propositions that are said to undermine Mr King’s opinions.[236] First, an acceptance that all the noise the proposed development will generate is foreign to a rural environment. Secondly, his assessment of ‘crowd noise’ from the pool was based on 20 people yelling simultaneously, rather than up to 50 people. Thirdly, in forming opinions he relied upon data that was at least questionable or perhaps wrong. Fourthly, he had (unsurprisingly given the immaturity of the industry) no experience in the operation or maintenance of such machinery.
  2. [121]
    The validity of some of these propositions could be challenged. For example, Mr King explained why it was unlikely that at any point there would be 50 people in the pool all yelling at once.[237] But it is not necessary to further consider this as even if the matters raised by the appellant are assumed to be true, they are not reasons to refuse the co-respondent’s proposed development. The requirement of the SCPS is to avoid ‘significant’, ‘unacceptable’, or unreasonable negative effect on amenity. The criticisms of Mr King’s evidence do not amount to evidence of such an effect and there is no other evidence upon which such a conclusion might be reached. As well, it must be noted that the respondent’s approval was subject to several conditions concerning matters of amenity. As well as the need to establish and maintain and agricultural buffer already mentioned, these conditions include a requirement that acoustic measures and treatments be incorporated and certified as complying with the noise impact assessment associated with the approval. A similar condition was imposed in relation to lighting.[238] These are conditions with which the developer must, and the court assumes will, comply.[239] They are sufficient to ensure the proposed development will not have any significant, unacceptable, or unreasonable negative effect on amenity. I am fortified to some extent in reaching this conclusion by the opinion of Mr Perkins, the town planner engaged by the appellant, who wrote ‘that the site is able to be conditioned to achieve acceptable amenity standards.’[240]
  3. [122]
    I should, for completeness, mention lighting. Overall outcome 9.4.3.2(2)(a)(ii) of the Nuisance code seeks to avoid unacceptable light emissions on surrounding sensitive land uses. This was also addressed by Mr King who thought lighting could be ‘readily designed … such that the amenity of surrounding residents is not adversely affected.’[241] The cross-examination of Mr King did not establish any matter that detracted from his conclusion.[242] Again, the conditions attaching to the approval will ensure there are no unacceptable adverse effects from lighting. The absence of a detailed design, at this stage of the development process, is both unsurprising and of little consequence.[243]
  4. [123]
    I am satisfied the proposed development will not have unacceptable effects on adjoining land uses.

Does the SCPS support approval of the development through its encouragement of economic development and tourist activity?

  1. [124]
    The co-respondent and respondent contend that the clear policy of the SEQRP and SCPS is to encourage appropriate tourist development. The appellant does not disagree, while noting the importance of good quality agricultural land as discussed above.[244] It is worth mentioning some parts of the planning controls that encourage tourist development for its social and economic benefits in the Sunshine Coast region.
  2. [125]
    The SEQRP recognises the role of the Northern Sub-region (which includes the Sunshine Coast local government area) ‘as a domestic and international tourism destination’.[245] The SCPS contains a similar sentiment,[246] and recognises tourism as a ‘traditional sector’ and ‘high-value’ industry in the economy of the Sunshine Coast.[247] Tourism forms an important part of the plan for economic development on the Sunshine Coast.[248] For what it is worth, the town planners agreed as to the importance of tourism on Sunshine Coast.[249]
  3. [126]
    Subject to the countervailing consideration concerning the preservation of good quality agricultural land, the planning controls encouraging tourism broadly support the approval of the proposed development.

Does the Planning Regulation 2017 (Qld) prescribe a matter to be considered?

  1. [127]
    I have mentioned that the parties are in dispute as to whether the Planning Regulation 2017 (Qld) prescribes a matter to which regard must be had. The question arises pursuant to the notice of appeal,[250] in which the appellant cites the fact the land is within the RLRPA and alleges the proposed development does not comply with the ‘assessment benchmarks’ in Schedule 10, Part 16, Division 2 of the Planning Regulation 2017 (Qld). The suggestion that the regulations potentially provide assessment benchmarks this court must consider is repeated in the list of issues in dispute,[251] and was embraced by all parties.[252]
  2. [128]
    That proposition may be doubted for the reasons expressed in Archer & Anor v Council of the City of Gold Coast & Ors,[253] a decision of Judge Kefford delivered after I had reserved my decision in this case. Archer was a case where part of the Planning Regulation identified the chief executive as a referral agency and required the chief executive to assess the application against the State development assessment provisions.[254] The Chief Executive became a co-respondent by election in Archer and argued that the court was required to assess the proposed development in the manner required of both the assessment manager and the referral agency. That is, the court was required to assess the development application against the matter prescribed by the Planning Regulation. Judge Kefford rejected this argument,[255] and there is nothing which distinguishes the present case from Archer. If Judge Kefford’s reasoning in Archer were applied in this case the result would be that the parts of the Planning Regulation identified by the appellant are not assessment benchmarks for the purpose of the assessment an assessment manager must conduct in accordance with section 45(5)(a)(i) or (ii) of the PA.
  3. [129]
    Having said that, for impact assessment the assessment ‘may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances.’[256] The parties seemed content to proceed on the basis that parts of the Planning Regulation are potentially relevant and there is no reason why I should proceed on a different basis. As such I will consider whether the part of the Planning Regulation identified by the appellant seems to apply to these premises and whether, if they do, there is non-compliance. A matter to note first is the absence of the Chief Executive from this proceeding. The notice of appeal in this case does not identify any appeal against a decision of the Chief Executive as the referral agency.[257] But the absence of the Chief Executive has not prevented the appellant from presenting its arguments concerning the Planning Regulation, and given the Chief Executive was served with the notice of the appeal when the proceeding commenced,[258] it may be assumed their decision not to participate in the appeal was deliberate.
  4. [130]
    The starting point is to consider Schedule 10, Part 16, Division 2 of the Planning Regulation, which deals with ‘Tourist or sport and recreation activity’. Item 24 of Schedule 10 sets out the circumstances in which development that is a ‘tourist activity’ requires regard to be had to the matters that are to be found in Subdivisions 2 and 3.[259]
  5. [131]
    The definition of ‘tourist activity’ is found in Schedule 24 of the Planning Regulation.

tourist activity means—

  1. (a)
    nature-based tourism; or
  2. (b)
    a resort complex; or
  3. (c)
    a tourist attraction; or
  4. (d)
    a tourist park; or
  5. (e)
    tourist accommodation, or accommodation for employees, that is ancillary to a use stated in paragraphs (a) to (d); or
  6. (f)
    a commercial use that is ancillary to a use stated in paragraphs (a) to (d).
  1. [132]
    Item 24 of Schedule 10 of the Planning Regulation, with relevant emphasis, provides:

24  Assessable development—material change of use for tourist activity or sport and recreation activity

A material change of use of premises for a tourist activity or sport and recreation activity is assessable development if—

  1. (a)
    all or part of the premises are in—
  1. (i)
    the SEQ regional landscape and rural production area; or
  2. (ii)
    the SEQ rural living area; and
  1. (b)
    the use—
  1. (i)
    results in a gross floor area of more than 5,000m2 on the premises, excluding any part of the premises that is used for tourist accommodation or accommodation for employees; or
  2. (ii)
    involves an ancillary commercial or retail activity with a gross floor area of more than 250m2; or
  3. (iii)
    provides accommodation for more that 300 persons; and
  1. (c)
    the material change of use is not—
  1. (i)
    excluded development; or
  2. (ii)
    an exempt material change of use.
  1. [133]
    For the proposed development, the premises would be entirely located within the regional landscape and rural production area, and the use of the premises would be as for a ‘tourist activity’. The dispute between the parties concerns whether the development involves an ‘ancillary commercial or retail activity with a gross floor area of more than 250m2’.[260]
  2. [134]
    ‘Gross floor area’ (‘GFA’) is a term that is also defined in schedule 24 of the Planning Regulation:

gross floor area, for a building, means the total floor area of all storeys of the building, measured from the outside of the external walls and the centre of any common walls of the building, other than areas used for—

  1. (a)
    building services, plant or equipment; or
  2. (b)
    access between levels; or
  3. (c)
    a ground floor public lobby; or
  4. (d)
    a mall; or
  5. (e)
    parking, loading or manoeuvring vehicles; or
  6. (f)
    unenclosed private balconies, whether roofed or not.
  1. [135]
    The plans for the proposed development, in the form considered in the appeal,[261] provide for a shop, kitchen, and bar as part of the main building. Together, the GFA of the shop, kitchen and bar is exactly 250m2 (being 91m2, 96m2 and 63m2 respectively). If this is the total GFA of any ‘ancillary commercial or retail activity’ the benchmarks in Subdivision 2 are not relevant. The appellant submits that, practically speaking, the operation of the bar will necessarily involve an area greater than 63m2 as some patrons will congregate at and near the bar. On this basis, the appellant says that some of the area designated as the foyer should properly be considered part of the bar, with the result that the total GFA of these parts of the development exceed 250m2. In oral submissions in reply to the submissions of the co-respondent, the appellant advanced a second argument. It was to the effect that because an area marked on the plans as ‘Back of House’ was shown in other parts of the plans to include part of the bar and a meeting room, this area should also be included in the calculation of GFA.[262] This argument had not been made in written submissions.
  2. [136]
    The co-respondent’s submissions focussed on the definitional provisions set out above. It was argued that the definition of ‘tourist activity’ has the result that the shop, kitchen, and bar are not ancillary (for the purpose of Item 24), because they are part of the tourist activity represented by the proposed development (pursuant to the definition in Schedule 24).[263] In Schedule 24 a ‘tourist activity’ includes a ‘tourist attraction’ and ‘a commercial use that is ancillary’ to use as a tourist attraction. The co-respondent submitted that because the shop, kitchen, and bar were such an ancillary commercial use, the definition in Schedule 24 makes them part of the ‘tourist attraction’ and ‘tourist activity’. It was argued that this ‘integration’ had the result that Item 24(b)(ii), which is concerned with a use that is ‘ancillary commercial or retail activity’ with a GFA exceeding 250m2, had no application. The effect of the argument was that because the use of the shop, kitchen and bar was ancillary according to Schedule 24, it was deemed to be part of the tourist activity and was therefore not ancillary for Item 24(b)(ii).
  3. [137]
    I do not accept the co-respondent’s argument in this regard. It would produce an inconsistency in the treatment of ‘ancillary’ where it appears in Schedule 24 and Item 24(b)(ii). The construction proposed by the co-respondent is not attractive, and I can see no justification for it in the text of the provisions. Schedule 24 extends the meaning of ‘tourist activity’ to a ‘commercial use that is ancillary’. This is different to the application of Item 24(b)(ii) to a use, as part of a tourist activity, that ‘involves an ancillary commercial or retail activity’ with a GFA greater than 250m2. It is preferable to read the two provisions as creating a staged process. First, it may be necessary to consider whether a use is a ‘tourist activity’ having regard to the definition in Schedule 24. This will be the first step in determining if the relevant part of the Planning Regulation applies. It may then be necessary to consider the nature of the proposed development to decide if there is ‘ancillary commercial or retail activity’ to which Item 24(b)(ii) applies. The broader definition of ‘tourist activity’ in Schedule 24 does not operate to restrict or exclude the phrase ‘ancillary commercial or retail activity’ as used in Item 24(b)(ii). The construction I prefer would give ‘ancillary’ a consistent meaning and leave work for Item 24(b)(ii) in an appropriate case.
  4. [138]
    This result is consistent with the apparent purpose of Item 24(b)(ii), which can be easily understood and may be illustrated with reference to the decision of Witmack Industrial Pty Ltd v Toowoomba Regional Council.[264] In that case a developer applied for a permit for a material change of use for a service station. A substantial part of the proposed development was for a food and drink outlet (apparently a KFC store) that was described by the developer as ancillary. The developer argued the food and drink outlet formed part of the use of the premises as a service station and did not require separate assessment. This argument was rejected for reasons that largely turned upon a statutory framework that no longer applies, but the case illustrates the potentially important work that provisions like Item 24(b)(ii) might do in preventing the avoidance of planning controls. Item 24(b)(ii) should not be read down or restricted in the manner proposed by the co-respondent. To do so would render the provision practically impotent.
  5. [139]
    In my view Item 24 of the Planning Regulation has potential application to the proposed development because it is a ‘tourist activity’. The remaining questions are whether the GFA of the shop, kitchen, and bar is more than 250m2, or whether there is some other ancillary commercial use that would trigger the application of Item 24(b)(ii). The answer to these questions depends upon what parts of the proposed development are an ancillary commercial or retail activity. ‘Ancillary’ is a term that has long been found in planning legislation and instruments in the context of determining the use or uses of land.[265] It is a term that has been considered in many cases, but usually for the purpose of deciding whether a particular use arises and therefore requires assessment. Recently the term was considered by Williamson KC DCJ in Caravan Parks Association of Queensland Limited v Rockhampton Regional Council.[266] There his Honour found ‘ancillary’ was to be given its plain meaning of ‘incidental and subordinate.’[267] I can see no reason to give the term ‘ancillary’ a different meaning for the purpose of this provision in the Planning Regulation. In a practical sense, a use will form part of the dominant use of land where it is an integral or essential component of the that use. A use will be ancillary where it is not integral or essential but would not occur absent the dominant use.
  6. [140]
    For this development, each of the shop, kitchen, and bar involves an ancillary commercial use (or activity to use the term in Item 24). None of them are essential to the operation of the surf park as a tourist facility. They may be desirable or even expected parts of the development, but they are not essential or integral in the manner of, say, the wave pool machinery or filters or change rooms. The surf park could operate without the shop, kitchen, and bar, but there is no reason for them to exist in this location without the surf park. In this sense, each component is ‘incidental and subordinate’ to the dominant use of the premises as a tourist facility.
  7. [141]
    The total GFA of the shop, kitchen, and bar is exactly 250m2.[268] That, to my mind, indicates the extent of the development that is dedicated to ancillary commercial activity. It may be true, as the appellant submitted, that people purchasing drinks at the bar might stand just outside the area or consume their purchases in a spot away from the 63m2 that comprise the bar. But the application of planning provisions requires common sense, and I do not think this potential has the result that the commercial activity spills over in a way that engages Item 24. I think the proposal is (just) within the limits set by the regulation.
  8. [142]
    The second part of the appellant’s argument was the lately raised argument about the area marked on the plans as ‘Back of House’. It was posed as a question,[269] and described as ‘finnicky’ by the appellant’s leading counsel.[270] He was right to characterise the argument in this way. It is true that some of the area marked as ‘Back of House’ might be used for bar service or as a meeting room. This might, depending on the circumstances, involve commercial or retail activity. But it is being finnicky to seek to attribute defined uses to small parts of the development in order to attract the application of the Planning Regulation. Such an approach is contrary to the evaluative exercise involving matters of fact and degree that is called for in this regard.[271] Considering the entire proposed development, the apparent purpose of Item 24 and the benchmarks in Subdivision 3, I do not think that the ‘Back of House’ area results in the development having ‘ancillary commercial or retail activity’ with a GFA of more than 250m2.
  9. [143]
    For these reasons the Planning Regulation does not prescribe a matter that must be considered, whether by a referral agency or assessment manager.

Would the proposed development satisfy the requirements of the Planning Regulation 2017 (Qld) in any event?

  1. [144]
    If I am wrong in that conclusion and the Planning Regulation prescribes matters that should be considered, the requirements of the regulations would be satisfied in any event. The so-called benchmarks that the appellant says are of relevance are found in Schedule 10, Part 16, Division 2, Subdivision 3, Table 1 of the Planning Regulation. This table is reproduced below.[272]

Table 1—Assessable development under s 24

Column 1

Column 2

…

…

4 Matters referral agency’s assessment must be against

  1. (a)
    There is a community and economic need for the use
  2. (b)
    When the use starts—
  1. (i)
    the premises will have direct access to transport infrastructure that is reasonably required for and adequate service to, the use; and
  2. (ii)
    the premises will be serviced by infrastructure (including, for example, infrastructure for electricity, stormwater, water supply and the treatment and disposal of waste) that is adequate for the use; and
  3. (iii)
    a workforce suitable for the carrying out of the use will be able to be sourced from the surrounding area
  1. (c)
    The provision of the infrastructure mentioned in paragraph (b)(i) and (ii) is practical and economically feasible having regard to the location and characteristics of the premises
  2. (d)
    The use is compatible with the physical characteristics of the premises
  3. (e)
    The use is compatible with the use of other premises in the surrounding area
  4. (f)
    The material change of use avoids adversely impacting on a matter or thing stated in the SEQ regional plan, table 11b or, if the adverse impact cannot be avoided, the adverse impact is minimised
  5. (g)
    The material change of use avoids an area that involves a risk of serious harm to persons or property from natural events or processes, including, for example, bush fires, coastal erosion, flooding or landslides
  6. (h)
    If the material change of use can not avoid an area mentioned in paragraph (g), the material change of use minimises the risk of serious harm mentioned in that paragraph
  7. (i)
    The material change of use does not involve a residential use other than tourist accommodation or accommodation for employees
  8. (j)
    Any commercial, industrial or retail activity carried out as part of the use is ancillary to the use
  9. (k)
    The material change of use is consistent with the SEQ regional plan, including the goals, elements and strategies stated in the plan

5 Matters referral agency’s assessment must have regard to

—

6 Matters referral agency’s assessment may be against

—

7 Matters referral agency’s assessment may have regard to

—

  1. [145]
    The appellant does not suggest that these benchmarks, even if they applied, raise any different considerations to those presented by the other planning controls.[273] Relevantly, the benchmarks relied upon by the appellant are summarised as being concerned with whether—
  1. (a)
    There is a community and economic need for the use;
  2. (b)
    The use is compatible with the physical characteristics of the premises;
  3. (c)
    The use is compatible with the use of other premises in the surrounding area; and
  4. (d)
    The use is consistent with the SEQ regional plan.
  1. [146]
    I have explained that the co-respondent has shown there is a need for its development when discussing the loss of good quality agricultural land. The second and third issues identified by the appellant concern the suitability of the land and questions of amenity, which have also been dealt with as they concern other planning controls. The same can said of the parts of SEQRP put in issue in the appeal. Each of the matters said by the appellant to arise from the Planning Regulation should be resolved in favour of the co-respondent. The rest of the table presents nothing that would tell against approval of the proposed development. It might even be argued that, if the table was relevant, the fact that the proposed development meets or achieves many of the stated benchmarks is a matter that favours approval. As this point was not raised by the parties it is unnecessary to consider it further.
  2. [147]
    The Planning Regulation 2017 (Qld), even if it were relevant, does not support the appellant’s case for refusal.

Should the development be approved?

  1. [148]
    Ultimately, the question for the court is as stated at the beginning of these reasons – has the co-respondent shown that the development should be approved? In my view, it should.
  2. [149]
    The development will result in the loss of some good quality agricultural land, but the correspondent has shown there is a need for this development and that there is no other suitable site available. The proposal satisfies the stringent test set by the planning scheme concerning the loss of good quality agricultural land. Even if I am wrong about that, the land that will be lost does not contribute significantly either in an agricultural or economic sense. Its loss will not be material and would be a matter of only slight weight when considering if the proposal should be approved.
  3. [150]
    I am satisfied the proposed development will not unreasonably detract from the scenic amenity or landscape values of the area. Nor will it diminish the effect of the inter-urban break in separating the Sunshine Coast from local government areas to the south. The proposed development complies with the SCPS in part because it is not ‘urban development’. If it is ‘urban development’ the weight to be given to the departure to the scheme is slight because the development will have only a marginal impact on the purpose and effect of the inter-urban break.
  4. [151]
    The co-respondent has shown that the proposed development is suitable for location outside of a designated tourism focus area and that, with appropriate conditions, there will be no unacceptable impacts on amenity in the locality arising from noise or lighting. The planning scheme encourages appropriate tourist development, such as the that proposed here, and the Planning Regulation 2017 (Qld) does not tell against approval.
  5. [152]
    The town planners all agreed that this proposal enjoyed many positive attributes from its location and design. Even Mr Perkin’s accepted ‘there are obvious commercial reasons favouring the subject site.’[274] The loss of a small area of good quality agricultural land will be more than offset by the economic and social benefits provided by the proposed development, which can be delivered without unacceptable impacts on amenity or town planning considerations. There is no discernible community opposition to the proposal, much less an indication that the development would be contrary to the reasonable expectations of the community.
  6. [153]
    The result is that the broad, evaluative judgment required of this court favours approval.

Should this court impose any conditions on the approval?

  1. [154]
    In deciding this appeal, I am required by the PECA to do one of four things. I must either confirm the decision of the respondent council to approve the development application, change the decision, set it aside and make a decision replacing it, or set it aside and return the matter to the council to consider with appropriate directions.[275] A matter which arises for consideration is whether I should make my own decision to approve the development application to facilitate the imposition of appropriate conditions.
  2. [155]
    In final submissions, no party positively contended this ought to be the result. But at various points in the evidence suggestions were made about potential changes to the conditions imposed by the respondent. Mr Powell, a landscape architect retained by the co-respondent, was cross-examined about how long it might take before the vegetation screen was established. To ensure the screen is established within an acceptable timeframe, Mr Powell said he ‘would certainly be recommending a condition that required the trees to be planted in 60 or 100 litre sizes.’[276] In relation to visual amenity there was mention of conditions requiring the use of recessive colour on the acoustic barrier[277] and roof.[278] Also, in respect of noise amenity, consideration might be given to conditions that would further improve the outcomes.
  3. [156]
    I am not concerned that absent such conditions the development ought not be approved. But considering this evidence there may be room for improvement as far as the conditions are concerned.
  4. [157]
    In due course the appeal will be dismissed, and the development application will be approved. I will give the parties the opportunity to consider, and if necessary be heard, in relation to conditions before final orders are made. The matter will be listed for review at a time convenient to the parties for the purpose of making final orders.

Footnotes

[1] For example, see SCPS, Strategic Framework, 3.4.1(c) and (u), 3.4.2.1(b)(ii) and 3.4.2.1(c)(v) (in exhibit 2.01 comprising extracts from the SCPS).

[2] For example, see SCPS, Strategic Framework, 3.3.1(d), 3.3.3.1(e), 3.4.2.1(b)(iii) and 3.4.7.1(d). In this case the land is Class B agricultural land.

[3] For example, see SCPS, Strategic Framework, 3.3.1(d) and 3.8.2.1(b)

[4] Exhibit 9.05.

[5] The two lots are properly described as Lot 952 CG6086 and Lot 935 CG4415.

[6] The proposed reconfiguration is code assessable and has no real bearing on the outcome of the appeal. It is only of utility if the development application is approved and, if it is, the appellant does not object to the reconfiguration.

[7] Exhibit 5.04, p. 12.

[8] The report described the wall as 14.5m high. This was an error, as clarified by Mr Schomburgk at T.4-38.

[9] Gross floor area.

[10] Statement of Christopher Salmon, exhibit 6.05, p. 5 [22].

[11] This is the area of south-east Queensland that surrounds the Urban Footprint and Rural Living Areas. The SEQRP describes the purpose of the RLRPA as being to protect the land from encroachment by urban and rural residential development, protect natural assets and regional landscapes while ensuring their sustainable use and management, and supporting the development and economic growth of rural communities and industries – see exhibit 9.04, p. 100.

[12] Exhibit 3.05.

[13] Exhibit 4.01.

[14] Each was addressed to the respondent and saliently stated, ‘Dear Sunshine Coast Regional Council Assessment Manager, I support Surf Parks Australia’s proposed development at Johnston Road, Glass House Mountains (MCU20/0381). This development will bring substantial social and economic benefits to Sunshine Coast and surrounding communities. Keep me informed via email so I can reserve my spot in the line-up once its (sic) approved.’

[15] Exhibit 4.01, pp. 514-539 and pp. 851-876.

[16] Exhibit 4.01, p. 965.

[17] Exhibit 4.01, pp. 31-32, 101-102 and 814-815.

[18] Exhibit 4.01, pp 970-975. See also T.1-13.8-26.

[19] Planning and Environment Court Act 2016 (Qld), section 46.

[20] Exhibit 5.01 (visual amenity joint expert report), p. 21 [48(a)]; T.1-90.27-37.

[21] Exhibit 5.01, p. 9 [23].

[22] While mapping suggests the site included some Class A land, the parties agreed that there was only Class B land – see exhibit 5.02 (agronomy and soil joint expert report), p. 2.

[23] Exhibit 5.04, p. 10.

[24] PECA, Schedule 1.

[25] PECA, section 43.

[26] PECA, section 45(2).

[27] PECA, section 46(2).

[28] Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; (2018) 231 LGERA 253; [2018] QPELR 763, [93].

[29] PA, section 45(5)(a)(ii).

[30] PECA, section 47.

[31] Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 [2020] 48 QLR, [59].

[32] Ibid, [62].

[33] Ashvan Investments Unit Trust v Brisbane City Council & Ors (‘Ashvan’) [2019] QPEC 16; [2019] QPELR 793, [51], cited with approval in Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; (2020) 6 QR 441, [54]-[58] (‘Abeleda’).

[34] Abeleda, [54] (citing Ashvan at [53]).

[35] Abeleda, [42].

[36] Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, [22].

[37] Exhibit 9.04, p. 83.

[38] Exhibit 9.04, p. 100.

[39] Exhibit 9.04, p. 114 (at 10 and 11).

[40] Exhibit 9.04, p. 100.

[41] Exhibit 2.01, p. 19 (at 3.2.1).

[42] For example, exhibit 2.01, p. 38 (at 3.4.1(t) dealing with economic development).

[43] For example, exhibit 2.01, p. 38 (at 3.4.2.1(b)).

[44] Exhibit 2.01, p. 72 (at 3.9.1(a)).

[45] Exhibit 2.01, p. 72 (at 3.9.1(e)).

[46] Exhibit 2.01, p. 73 (at 3.9.2.1(a) and (b)).

[47] Exhibit 2.01, p. 107 (at 6.2.19.2(2)(j)).

[48] Written submissions of the co-respondent, court document 24, paragraph 50.

[49] Cox & Ors v Maroochy Shire Council & Ors [2006] QPEC 51; QPELR 628, [64]; Jedfire Pty Ltd v Council of the City of Logan and Anor [1995] QPLR 41, 43; Heather & Anor v Sunshine Coast Regional Council & Ors [2022] QPEC 37, [22].

[50] Written submissions of the appellant, court document 22, paragraph 48.

[51] e.g., Isgro v Gold Coast City Council [2003] QPEC 2; QPELR 414, [20]-[22].

[52] Ibid, [21] (internal citations omitted).

[53] Ibid, [20].

[54] Need has been described as ‘one of a large number of issues’ to consider and ‘not, on any view, paramount’ – see Isgro v Gold Coast City Council [2003] QPEC 2; QPELR 414, [28].

[55] Ibid, [22].

[56] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [19]-[21].

[57] Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, 687; Isgro v Gold Coast City Council [2003] QPEC 2; QPELR 414, [23].

[58] [2019] QPEC 34; QPELR 1010.

[59] Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34; QPELR 1010, [70], citing Yu Feng v Brisbane City Council (2007) 156 LGERA 399; [2007] QCA 382, [26]. I note that in Yu Feng the planning provision used the phrase ‘overwhelming community need’ (see [19]) but nothing turns on this.

[60] Glenella Estates Pty Ltd v Mackay Regional Council (2010) 180 LGERA 226; [2010] QPEC 132, [64].

[61] McCosker v Emerald Shire Council [1995] QPEC 73; [1996] QPELR 114, 116, cited in Glenella Estates Pty Ltd v Mackay Regional Council, ibid.

[62] Glenella Estates Pty Ltd v Mackay Regional Council, ibid, [65].

[63] Exhibit 5.03.

[64] Exhibit 5.03, p. 17 [44]-[46].

[65] T.2-74.23-31. This was the evidence of Ms Muelman with which the other experts did not disagree.

[66] T.2-74.17-21; T.2-75.6-9 and T.2-75.43-T.2-76.1-8. That there is a need for at least one surf park was implicit in the opinions of Mr Duane and Mr Brown, each of whom also said there was a need for proposed development as well – see exhibit 5.03, pp. 47-48 [146]-[147].

[67] Exhibit 5.03, p. 36 [107].

[68] Exhibit 5.03, p. 37 [113].

[69] Exhibit 5.03, p. 36 [109].

[70] Exhibit 9.10, p. 2.

[71] Exhibit 5.03, pp. 20-21 [58]-[63].

[72] Exhibit 5.03, 29 [86].

[73] Exhibit 5.03, p. 38 [117].

[74] Exhibit 5.03, p. 25 [75].

[75] Exhibit 5.03, p. 26 [76]. The matters identified were access and proximity to a large and growing population, a quality experience at an affordable price that is inclusive to an entire family, and a scalable economic model.

[76] Exhibit 5.03, p. 40 [126]. See also T.2-68.33-34.

[77] As shown in the map in exhibit 5.03, p. 33.

[78] Exhibit 5.03, p. 32 [101].

[79] Exhibit 5.03, p. 37-38 [114].

[80] Exhibit 5.03, p. 39.

[81] Exhibit 5.03, p. 39 [124].

[82] T.2-20.3-9.

[83] The appellant’s evidence in this regard does not go beyond Ms Meulman’s thought that the 20% uplift figure was ‘somewhat at odds’ with an opinion of a town planner that most of the park’s customers would be tourists – see exhibit 6.07, p. 7 [2.1.5(i)].

[84] T.2-25.7-20.

[85] T.2-55.10-20.

[86] Exhibit 5.03, p. 22 [66]. The report is exhibit 7.10.

[87] T.2-17.1-14. See also exhibit 5.10, p. 38.

[88] Exhibit 6.07, p. 5; T.2-2-64.14-24.

[89] T.2-18.30 to T.2-19.2.

[90] T.2-44.46 to T.2-45.18.

[91] T.2-50.35 to T2-51.27.

[92] e.g., the 3.9% participation rate for major Queensland cities found in exhibit 9.10, which contains data from the Australian Sports Commission and exhibit 9.12 which shows a 4.5% participation rate in an area that approximately coincides with the study area.

[93] Exhibit 5.03, p. 37 [114].

[94] Exhibit 6.07, p. 5 [2.1.5(a)]. While Ms Meulman mentions ‘The Surfing State of Play Report 2021’ her footnote refers to the AusPlay report of April 2019 (exhibit 7.07) which contains data collected from January 2016 to January 2018.

[95] Exhibit 5.03, p. 21 [60].

[96] Written submissions of the co-respondent, court document 24, pp. 36-37.

[97] Exhibit 5.03, p. 40 [126]. See also T.2-68.33-34.

[98] T.3-2.21-34.

[99] Exhibit 7.07.

[100] T.2-13.24-42.

[101] Exhibit 9.09, p. 7.

[102] T.2-40.38 to T.2-41.5.

[103] Exhibit 5.03, p. 38 [121].

[104] Exhibit 7.07.

[105] T.2-15.12-19.

[106] Written submission of the appellant, court document 22, paragraph 89.

[107] T.2-55.32 to T.2-46.2.

[108] I note that exhibit 9.11 is a table showing demand calculated by on an assumed 3.9% participation rate among the population aged 15 years or older. Even approached conservatively, the number of surf occasions still exceeds three million.

[109] Exhibit 5.03, 39.

[110] Respondent’s written submissions, court document 23, paragraph 85.

[111] Isgro v Gold Coast City Council [2003] QPEC 2; QPELR 414, [29].

[112] T.3-2.21-34.

[113] T.3-4.31-34.

[114] The high point of the evidence in this regard is the statement of Bradley Sutherland, the Director of the appellant, found in exhibit 6.08, p. 5 [26]. Mr Sutherland said he is ‘concerned about the implications that an approval of the proposed development … will have on the financial viability of both developments.’

[115] Exhibit 5.03, pp. 43-44 [146]-[147].

[116] T.3-4 to T.3-6.

[117] Exhibit 2.01, p. 73 (at3.9.2.1(b)(ii)) and p. 107 (at 6.2.19.2(2)(j)(ii)). The language varies slightly between the two provisions, but this difference is of no substance.

[118] Logan & Ors v Burnett Shire Council [1997] QPELR 18, 20.

[119] Written submissions of the respondent, court document 23, p. 25 [103].

[120] Exhibit 5.03, p. 42 [142].

[121] Exhibit 6.02.

[122] T.2-35.9-14.

[123] T.2-35.39-44.

[124] T.2-36.17-20.

[125] T.2-38.10-16.

[126] T.2-35.21-32.

[127] Exhibit 2.01, p. 73 (at 3.9.2.1(a) and (b)).

[128] T.2-35.33-35.

[129] Exhibit 2.01, p. 107 (at 6.2.19.2(2)(j)).

[130] Exhibit 2.01, p. 11 (at 1.5(1)(a)).

[131] T.2-43.40 to T.2-44.1.

[132] T.2-44.15-30.

[133] T.2-44 to 40-41.

[134] T.2-60.26-38.

[135] T.2-61.10-12.

[136] T.2-62.29-30.

[137] Exhibit 6.01, p.5.

[138] Mr Buckley discounted land adjacent to the Steve Irwin Way because the regular spread of townships and agricultural use means land use conflicts are probable – see T.4-20.16-29.

[139] T.4-16.19-27.

[140] T.4-20.4-14.

[141] T.4-20.41 to T.4-21.2.

[142] T.4-23.31-47.

[143] Written submissions of the appellant, court document 2, pp. 25-26 [108]-[114].

[144] [2010] QPEC 132; (2010) 180 LGERA 226, [62].

[145] Ibid, [17].

[146] Ibid, [62] – the precise test will, of course, vary depending on the words of the relevant planning controls.

[147] Ibid, [61].

[148] T.4-26.24-35.

[149] Cf., ‘Russell’s teapot’ – Bertrand Russell, Is There a God? in John Slater (ed), The Collected Papers of Bertrand Russell, Vol. 11: Last Philosophical Testament, 1943-68 (Routledge, 1997).

[150] Abeleda, [42].

[151] Exhibit 5.02 (joint expert report on agronomy and soil), p. 2, lines 60-70.

[152] Exhibit 5.02, p. 5, lines 175-177.

[153] Exhibit 5.02, p. 8, lines 322-323.

[154] Exhibit 5.02, p. 8, lines 309-310, p. 27; T.3-89 and T.3-73.37 to T.3-75.15.

[155] T.3-89 to T.3-90.

[156] T.3-65 to T.3-66.

[157] T.3-67.9-12. See also exhibit 6.04, p. 2, lines 90-100.

[158] Exhibit 6.04, p. 2, line 70.

[159] Exhibit 6.06, p. 6 [2.29].

[160] T.3-90.

[161] Mr Thompson colourfully described this land as ‘basically a pimple on the major agricultural area’ (T.3-80.34). While I do not endorse this precise characterisation, it conveys the essence of his opinion.

[162] T.3-68.34-39 and T.3-70.14-19.

[163] T.3-69.41-43.

[164] T.3-77.13-23.

[165] T.3-78.12-20.

[166] Exhibit 5.02, p. 2.72-75 and p. 391-96. See also exhibit 6.06, Mr Spies individual report.

[167] Exhibit 6.03, pp. 112-125, Assessment of Airborne Spray Drift by Trinity Consultants.

[168] Exhibit 6.03, pp. 31-33 [86]-[87].

[169] T.3-21.4 to T.3-23.2.

[170] Exhibit 6.06, p. 4 [2.9].

[171] Exhibit 6.06, p. 4 [2.10].

[172] Exhibit 3.03 (the decision notice), p. 10, condition 56; T.3-23.16-25.

[173] Exhibit 6.06, p. 4 [2.11] to [2.13].

[174] T.3-23.31-40.

[175] T.3-65.10-19.

[176] T.3-23.42 to T.3-24.5.

[177] T.3-51.35 to T.3-52.10.

[178] As well as the provisions set out at paragraphs [21] and [22] above, these include the parts of the Strategic framework and Rural zone code identified in exhibit 9.05 (the agreed list of issues) at paragraph 5 of that document.

[179] Exhibit 9.04, p. 116.

[180] Exhibit 2.01, p. 27 (at 3.3.1(d)). Similar sentiments are found at p. 28 (at 3.3.2.1(a)(i)) and p. 66 (at 3.8.1(b)).

[181] Exhibit 2.01, p. 67.

[182] Exhibit 2.01, p. 107.

[183] Exhibit 2.01, p. 141 (at 8.2.12.2(2)(a)(ii)).

[184] Exhibit 2.01, pp. 141-142 (at table 8.2.12.3.1).

[185] T.5-24.20-24.

[186] Written submissions of the appellant, court document 22, paragraph 119.

[187] Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82, [55]-[56].

[188] Exhibit 2.01, pp. 106-107 (at 6.2.19.2(2)(e), (f) and (j)).

[189] Exhibit 2.01, p. 27 (at 3.3.1(d)).

[190] Written submissions of the appellant, court document 22, paragraphs 119(b) and (c), referring to exhibit 2.01, p. 28 (at 3.3.2.1(a)(i)) and p. 66 (at 3.8.1(b)).

[191] Exhibit 5.01.

[192] Exhibit 2.01, p. 250.

[193] Exhibit 5.01, pp. 17-18.

[194] T.1-88.25 to T.1-89.1.

[195] Exhibit 5.01, p. 34 [76].

[196] Exhibit 5.01, p. 15 [40].

[197] T.1-103.29-40.

[198] Exhibit 9.01.

[199] Exhibit 5.01, p. 9 [17(c)].

[200] Exhibit 3.03, p. 5 (conditions 26 and 27).

[201] T.1-65.29 to T.1-66.9.

[202] T.1-75.10-12.

[203] T.1-95.22-29.

[204] T.1-96.36-47.

[205] T.1-70.1-9.

[206] Exhibit 2.01, p. 67 (at 3.8.2.1(b)).

[207] Written submissions of the co-respondent, court document 24, p. 15, paragraph 38(c).

[208] Exhibit 2.01, p.85.

[209] United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8; QPELR 510, [118]; Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; QPELR 835, [201].

[210] Exhibit 2.01, p. 141.

[211] Written submissions of the co-respondent, court document 24, p. 15-16, paragraphs 41 to 44.

[212] If anything, the definition in the Planning Regulation of ‘urban purpose’ as including recreation and commercial purposes contradicts the co-respondent’s argument.

[213] Sandstrom & Ors v Sunshine Coast Regional Council & Windansea Boardriders Club [2020] QPEC 62; [2021] QPELR 1107, [101]. I note that in Sandstrom the parties all agreed with this definition. Here, there is nothing in the text of the SCPS to suggest ‘urban development’ should take on something other than its ordinary meaning.

[214] Exhibit 5.04, p. 27 [121].

[215] T.4-40.32-37.

[216] T.4-55.33-37.

[217] Exhibit 2.01, p. 43-44.

[218] Exhibit 5.04, p. 39 [204].

[219] Exhibit 2.01, p. 106 (at 6.2.19.2(2)(e) and (f)).

[220] Exhibit 2.01, p. 108 (Table 6.2.19.2.1).

[221] Mr Schomburgk for the respondent and Mr Chris Buckley for the co-respondent thought the proposed development met all assessment benchmarks in 3.4.6.1(e) – see exhibit 2.01, p. 31 [141] and p. 32 [151].

[222] Exhibit 2.01, p. 44 (at 3.4.6.1(e)(v)).

[223] T.4-23.4-6.

[224] Written submission of the appellant, court document 22, p. 38, paragraph 155.

[225] Exhibit 2.01, p. 44.

[226] Written submissions of the appellant, court document 22, p. 37, paragraph 151.

[227] Exhibit 9.04, p. 124 at 11.

[228] Exhibit 9.04, p. 125 at 16.

[229] Exhibit 5.04, at paragraphs [116], [120] and [125]. See also Mr Perkins evidence at T.4-56 to T.4-58.

[230] T.1-51.1-3.

[231] Issues of so called ‘reverse amenity’ arising from the continued use of surrounding agricultural land are addressed at paragraphs [82] to [85] above.

[232] Exhibit 2.01, p. 106.

[233] Exhibit 2.01, p. 152.

[234] They were not obliged to as the appellant is not required to prove non-compliance with these (or any) provisions of the planning controls, But the absence of evidence to contradict the co-respondent’s case is significant.

[235] Exhibit 6.03, p. 36 [90] to [96].

[236] Written submissions of the appellant, court document 22, pp. 40-41, paragraphs 166 to 170.

[237] In this regard see also the written submissions of the co-respondent, court document 24, pp. 48-49, paragraph 147, and the written submissions of the respondent, court document 23, p. 32, paragraph 122.

[238] Exhibit 3.03, p. 10, conditions 58 to 61. The reference to the noise impact assessment it to that of Trinity Consultants and specifically to the recommendations found in section 8 of the report – see exhibit 6.03, p. 74.

[239] Neilsens Quality Gravels Pty Ltd v Brisbane City Council & Ors [2016] QPEC 39; [2016] QPELR 709, [115].

[240] Exhibit 5.04, p. 29 [125(e)].

[241] Exhibit 6.03, p. 30 [80].

[242] e.g., T.3-49.41 to T.3-50.3 and T.3-51.3-34.

[243] SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74; [2007] QPELR 24, [23]-[24].

[244] Written submissions of the appellant, court document 22, p. 39 at paragraph 161.

[245] Exhibit 9.04, p. 119.

[246] Exhibit 2.01, p. 20 (at 3.2.2).

[247] Exhibit 2.01, p. 19 (at 3.2.2).

[248] Exhibit 2.01, p. 36 (at 3.4(9) and 3.4.1(c)) and p. 38 (at 3.4.1(u)).

[249] Exhibit 5.04, p. 10.

[250] Exhibit 1.01, p. 5, paragraph 7(f).

[251] Exhibit 9.05, paragraph 7.

[252] Written submissions of the appellant, court document 22, p 42, paragraph 118, written submissions of the respondent, court document 23, p. 34, paragraph 126, and written submissions of the co-respondent, court document 24, p. 50, paragraph 153.

[253] [2022] QPEC 59.

[254] In Archer it was Schedule 10, Part 9, division 4, subdivision 2, table 4.

[255] Archer, [46] – [49].

[256] PA, section 45(5)(b).

[257] This course would have been available to the appellant for the reasons of Judge Kefford in Archer at [50] – [54]. If that were the case, it would have been necessary to name the Chief Executive as a co-respondent.

[258] Affidavit of Disa Stephanie Vestergaard Johansen, sworn 27 January 2022, court document 2.

[259] Subdivision 2 is concerned with assessment by an ‘assessment manager’. It categorises the assessment process as ‘impact assessment’ but contains no assessment benchmarks. Subdivision 3 is concerned with a ‘Referral agency’s assessment’.

[260] Written submissions of the appellant, court document 22, paragraph 174.

[261] On the final day of the hearing, I made an order treating some changes to the plans as a ‘minor change’ and for the appeal to proceed according to the changed plans (court document 25). The changed plans slightly reduced the GFA of the shop.

[262] T.5-59.29 to T.5.60.7.

[263] T.5-55.20 to T.5-56.47.

[264] [2015] QPEC 7; [2015] QPELR 432.

[265] For example, the definition of ‘use’ in Schedule 2 of the PA.

[266] [2018] QPEC 52; [2019] QPELR 221.

[267] Ibid, [9].

[268] Assuming the development proceeds precisely in accordance with the plans that form part of this development application, which are not, of course, as detailed as will be required for construction.

[269] The submission was to the effect that the appellant does ‘not understand how that … cannot be included’ in the calculation of GFA for ancillary commercial or retail activity – T.5.59.36-37.

[270] T.5-59.43. I understood counsel to be suggesting by this that it was a technical, fussy, or pernickety point.

[271] Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, [14]; Woolworths Ltd v Maryborough City Council (No.2) [2006] 1 Qd R 273, 290 [38].

[272] From the extract that is exhibit 9.06.

[273] Written submissions of the appellant, court document 22, paragraphs 181 and 182.

[274] Exhibit 5.04, p. 29 [125(i)].

[275] PECA, section 47.

[276] T.1-65.15-17.

[277] T.1-72.34-37.

[278] T.1-103.35-40 (but see also T.1-59.4-20).

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Editorial Notes

  • Published Case Name:

    Sanad Capital Pty Ltd v Sunshine Coast Regional Council and Anor

  • Shortened Case Name:

    Sanad Capital Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2023] QPEC 8

  • Court:

    QPEC

  • Judge(s):

    Cash DCJ

  • Date:

    26 Apr 2023

Appeal Status

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

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