Application to allow permanent residential use of units in
an existing resort – conflict with Planning Scheme -
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
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
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
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  191 LGERA 452 referred to.
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  QPELR 494 referred
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
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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