Australia: 40/12 Abacus Funds Management v sunshine Coast Regional Council [2012] QPEC 46

Planning and environment case updates

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Developer appeal against refusal of impact-assessable development application – site adjoins applicant's established major tourist resort whose character ("small clusters of buildings set in extensive parklands and naturally vegetated areas") is sought to be preserved by the precinct intent under the planning scheme – building height limited by planning scheme to two storeys with the possibility of three storeys "surrounding the lake" – proposal for 158 self-contained apartments (providing an accommodation type in demand but not available in the resort) in three large buildings of four storeys and one of three storeys placed end to end, half of the apartments facing the rear of the resort across its car park, half facing designated wetlands with minimal setback – applicable codes contemplated significant separation or buffering for protection of wetlands – visual amenity issues for road and Mudjimba Beach, also the Resort – whether established "need" for the proposal (as tourist or residential accommodation) and other factors overcame conflict with the planning scheme – significance of earlier approvals, one for material change of use (MCU) for similar buildings (with somewhat smaller footprints) contained in a court order made by consent, one allowing clearing of the site and its wetland vegetation (implemented) and construction of a podium or platform (said to provide a "hard edge" effective to protect the adjacent wetlands) – MCU approval extended once by Council to prevent lapsing, but subsequently lapsing when Council refused two further requests (in refusals subject to pending appeals) – whether 2005 approvals (for 56 or so units) were a "starting point" – 2005 approval and current proposal compared – current proposal said to be "over development"

Facts: This was a developer appeal against the Council's refusal of an impact assessable development application for the development of land for self contained units within the Twin Waters Resort site.

The Resort was a hotel/conference facility with 366 rooms which had been operating for more than 20 years. The Appellant sought development approval for 158 additional units in four buildings from three to four storeys high, which would fulfil a need for self contained accommodation site and provide guests with access to the facilities of the Resort.

The development application was assessed having regard to matters specified in section 3.5.5 of the Integrated Planning Act 1997 (Qld) (IPA) and decided in accordance with sections 3.5.11 and 3.5.15 of IPA. Under section 819(4) of the Sustainable Planning Act 2009 (Qld) (SPA) the relevant regime was that set out SPA. Section 3.5.14 of IPA stated that the decision must not compromise achievement of a Desired Environmental Outcome (DEO) or conflict with the planning scheme unless there were sufficient grounds. The relevant DEOs were 2.2 Environmental Management and 2.7 Urban Design, Heritage and Character.

The relevant planning scheme was Maroochy Plan 2000 but the Resort development had been approved and largely constructed before it came into effect.

The planning scheme provisions imposed strict caps on further development within the Twin Waters Resort Planning Precinct, which the proposal exceeded.

The Appellant contended that existing development approvals granted in 2005 rendered those caps of less or no relevance. The predecessor Council had approved four three story buildings and the Appellant submitted that the 2005 approvals set the benchmark for development of the site so that future proposals were to be assessed on the basis that what really mattered was the extent to which they departed from what was approved in 2005. It submitted that the Council should not have refused to acknowledge their relevance or significance in its assessment of the proposal.

The Council submitted that the proposal was over development, there were environmental concerns regarding the wetlands and visual impact concerns.

The Precinct Intent for the Twin Waters Resort Planning Precinct imposed a two storey limit (three storeys potentially permitted if surrounding the lake). The proposal conflicted with the Precinct Intent as it was for three four storey buildings and one three storey building removed from the lake.

Sections 8.4.5, 8.4.6 and 3.9.1 of the Strategic Plan forming part of Maroochy Plan 2000 were considered because the Council contended that the development would mean the character and amenity of Twin Waters Resort would be deleteriously affected by the proposal

Decision: The Court held, in dismissing the appeal, that:

  1. the Council was not bound to any proposition that anything it decided to do previously was a correct or appropriate decision. There was no reason in principle why any Council was estopped or precluded from contending that a planning decision was inappropriate (except, of course, that it could not prevent implementation of any current approval) or should not be extended
  2. even if the Council officers had given indications that the Appellant's development application would be favourably entertained that would not fetter the Council in its decision making
  3. the 2005 approvals did not have the effect of moving the starting position so that no more need be justified in the current assessment than the respects in which the proposal exceeded what had previously been approved. While past approvals were of statutory relevance and to that extent were to be respected, the Appellant's new and different proposal should succeed or fail on its own merits, the starting point being no development on the site. The Council was entitled to take whatever view of the current development application it considered appropriate
  4. the proposal conflicted with the planning scheme. The likely visual impact of the proposal, the proposal's failure to provide any screening or other buffer on-site and serious concerns about the quality of the housing accommodation and recreation facilities meant there were insufficient grounds to approve the proposal and overcome the conflict with the planning scheme
  5. the visual impacts of the proposal were all adverse
  6. while the Appellant had established a planning need, that need was not sufficiently great or pressing to overcome the conflict.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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