Application to allow permanent residential use of units in an existing resort – conflict with Planning Scheme - grounds

Facts: This was an appeal against the Council's refusal to allow permanent residential use of units in an existing resort at Noosa. The units were currently restricted to short term visitor accommodation.

Planning Scheme provisions for the Noosa Heads Locality intended that it remain a primary focus for visitor accommodation and associated services. Key sites were to be protected for resort developments. Specific Outcomes for the Locality reinforced the inconsistency of the proposed use. Permanent occupation of the units represented an inconsistent use in the zone.

The primary ground identified by the proponent in support of the application was that it provided choice and flexibility for owners and occupiers of the units.

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

  1. The identification in the level of assessment table for the zone of the proposed use being inconsistent was sufficient to establish inconsistency. To the extent that conflict may require more than inconsistency, it primarily emerged from the Noosa Heads Locality Code.
  2. Conflict with the Specific Outcomes of the Code was undeniable. It was not low-level technical conflict. The Planning Scheme could hardly be clearer or more specific that visitor accommodation was wanted on the site; accommodation for permanent residents was not.
  3. There were no negative impacts of the proposal. Given the present state of the authorities, the absence of adverse effects represented a ground where there is some other ground accepted by the Court. Lockyer Valley Regional Council v Westlink Pty Ltd [2012] 191 LGERA 452 referred to.
  4. Whilst the proposal would offer choice and flexibility, it was of limited weight from the point of view of overcoming the clear planning strategy which the Council incorporated in its Planning Scheme. Lewiac v Gold Coast City Council [2011] QPELR 494 referred to.
  5. If evidence had been forthcoming that this prime accommodation was simply going to waste because the tourism market was such that it couldn't be used, then the community's abhorrence of such waste would mean that a ground in terms of public interest in avoiding it might be established, as opposed to matters dependent on the personal circumstances of an applicant, owner or interested party.

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