Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25

PLANNING AND ENVIRONMENT - APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION - where the proposed development is proximate a nesting beach for loggerhead turtles - whether the proposed development poses an unacceptable risk to the loggerhead turtle - whether the purpose of the Planning Act 2016 is achieved with respect to the risk to the loggerhead turtle - whether the precautionary principle warrants refusal

Planning and Environment Court of Queensland|2020-05-25

PLANNING AND ENVIRONMENT - APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION - submitter appeal against Council's decision to approve a development application for a mixed use development - where development application sought preliminary approval for material change of use (request to change the effect of planning instruments) - where the development application sought development permits for reconfiguration of a lot and for material change of use - whether proposed development complies with relevant assessment benchmarks - whether proposed mix of land uses achieves the Planning Scheme's intention for a tourism focus area - whether the proposed development would involve inappropriate commercial development

PLANNING AND ENVIRONMENT - APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION - where there are no unacceptable impacts in relation to setbacks, overshadowing, overlooking, overbearing or site cover - whether the proposed development is appropriately designed - whether there is an overdevelopment of the subject land reflected in the scale, height and intensity of the proposed development - whether development was of a bulk and scale compatible with the built form intent of the Emerging community zone code - whether the proposed development will have unacceptable impacts on the character and amenity of the area - whether development sensitively transitions to local setting and enhances the character of the area - whether the proposed development accords with reasonable community expectations

PLANNING AND ENVIRONMENT - APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION - whether there are relevant matters that support refusal or approval - whether there is an economic, planning or community need for the proposed development - whether there is hotel, residential or retail need for the proposed development - whether the proposed development will provide economic benefits to the locality, region and State - whether the proposed development supports investment in the Sunshine Coast Airport - whether the Hyatt preliminary approval supports approval of the proposed development - whether the locational attributes of the subject land and the design response to it supports approval - whether the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018 - whether it is within the public interest for the proposed development to be approved

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, approved

Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, approved

Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, followed

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, cited

Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, approved

Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4, cited

K & K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, considered

Kangaroo Point Residents Association v Brisbane City Council & Anor [2014] QPEC 64, [2015] QPELR 203, approved

K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; [2011] QPELR 406, approved

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied

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

Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26; [2013] QPELR 557, approved

The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, approved

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

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, followed

C Hughes QC, M Batty and H Stephanos for the Respondent

Legal Services, Sunshine Coast Council for the Respondent

[1] Approximately eight kilometres north of the Sunshine Coast Airport, between the coastal townships of Coolum and Marcoola, there is a vacant parcel of land of approximately 18.5 hectares ("the subject land"). It is located between Yaroomba Beach and David Low Way. In the past the subject land was used as part of the Hyatt Coolum Resort facilities, including as part of the golf course. The private resort facilities associated with the Hyatt Coolum Resort have since been demolished, but two waterbodies associated with the golf course remain.

[2] The land adjoins the privately owned Yaroomba parabolic dune to the north, and the beach and Marcoola Yaroomba Conservation Reserve to the east. To the south is a gated, low-density beachside residential community title development known as "Coolum Beachside". David Low Way separates the subject land from the Palmer Coolum Resort. Although the golf course associated with the Palmer Coolum Resort remains operational, the resort otherwise lies abandoned since its closure in approximately 2015. It has fallen into a state of disrepair.

[3] The subject land has a history of planning approvals dating back to the 1980s when it was part of the original Coolum Hyatt resort development and golf course. In February 2007, Sunshine Coast Regional Council ("the Council") issued a preliminary approval to vary the effect of the then-current planning scheme (Maroochy Plan 2000) to establish the "Coolum Hyatt Integrated Resort and Residential Community" ("the Hyatt preliminary approval"). That approval has been implemented in part and remains current. It anticipates development of the subject land for a mix of dwelling types, including multiple dwellings, detached houses and duplexes, as well as retail and commercial uses up to a maximum of 500 square metres.

[4] SH Coolum Pty Ltd ("SHC") owns the subject land and wants to develop it in a number of stages. In the first stage, SHC wants to develop a five-star resort complex. It is proposed to contain a 220-room hotel, approximately 1 000 square metres of conference and meeting space[1] and about 133 multiple dwellings (provided as serviced apartments for permanent and temporary accommodation). These uses are proposed to be located across a series of buildings between five and seven storeys in height. In association with the resort, and as part of Stage 1, SHC seeks approval for 2 770 square metres of commercial space (but with no tenant exceeding 300 square metres), an educational establishment, a community use (being Surf Life Saving Queensland amenities), parklands, coastal pathway, boardwalks, public car parking, and a utility installation.

[5] SHC also seeks to reconfigure the existing ten lots into 13 lots.

[6] SHC has not designed Stages 2 to 5 in detail. Instead, with respect to those stages, it seeks approval to vary the effect of the Sunshine Coast Planning Scheme 2014 ("the Planning Scheme"). This is to obviate the need for public notification of future development applications that seek approval to develop the balance land for a mix of residential dwellings, including houses and dual occupancy dwellings at two storeys, and multiple dwelling units in buildings up to four storeys in height.

[7] SHC's development application underwent two rounds of public notification, during which it attracted considerable interest from the local community. Over 11 000 submissions were received, a large portion of which were opposed to the development.

[8] The Council approved the application and two community organisation submitters, Development Watch Inc and Sunshine Coast Environment Council Inc, each appealed the decision.[2] In broad terms, the Appellants oppose the development on the basis that it will have an unacceptable impact on the loggerhead turtles that nest on Yaroomba Beach, it will have unacceptable impacts on visual and scenic amenity and views, it involves an overdevelopment of the land, and it involves an inappropriate mix of uses.

[9] The issue for me to determine is whether SHC's application should be approved or refused.

[10] The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies to the appeal.[3] In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the court considers appropriate.[4]

[11] The appeal proceeds by way of hearing anew.[5] SHC bears the onus.[6]

[12] SHC seeks a number of different types of approval to implement its proposed development, namely:

(a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan Preliminary Approval Document ("Yaroomba Beach Master Plan");

(b) a development permit for a material change of use to authorise those uses proposed for Stage 1; and

(c) a development permit for reconfiguration of ten lots into 13 lots.

[13] There is a broad discretion in determining the appeals.[7] The exercise of the discretion must be based on an assessment that:[8]

(i) against the assessment benchmarks in the Planning Scheme to the extent relevant;[9]

(ii) having regard to, relevantly, the South East Queensland Regional Plan and any development approval for, and any lawful use of, the premises or adjacent premises. In this case, this includes the Hyatt preliminary approval;[10]

(b) may be carried out against, or having regard to, any other relevant matter, other than a person's personal circumstances (financial or otherwise); and

(c) may give the weight the Court considers appropriate to any amendments to the Planning Scheme. (While there were amendments to the Planning Scheme following the lodgement of the development application, the Appellants did not allege any non-compliance with later versions of the Planning Scheme.[11])

[14] As the application also seeks to vary the effect of the Planning Scheme, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[12]

[15] The exercise of that discretion must be based on an assessment that considers:[13]

(a) the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;

(b) the consistency of the variations sought with the rest of the Planning Scheme;

(c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and

(d) any other matter prescribed by regulation.

[16] His Honour Judge Williamson QC comprehensively, and in my view correctly, analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council.[14] I have also further considered the approach in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[15] All of the parties contend that the approach referred to in those judgments is the correct one.

What is the nature of the proposed development?

[17] As I have mentioned in paragraph [12] above, SHC seeks:

(a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan;[16]

(b) a development permit for a material change of use to authorise those uses proposed for Stage 1; and

(c) a development permit for reconfiguration of ten lots into 13 lots.

[18] The development is proposed to be developed over a period of six to ten years.[17]

[19] SHC and the Council propose that any approval be conditioned to comply with an Infrastructure Agreement dated 29 June 2018. That agreement requires SHC to provide infrastructure contributions identified in the Infrastructure Contributions Schedule. The identified contributions benefit the proposed development's local community and the Sunshine Coast Region generally. They include land and works contributions for roads, pedestrian and cycle access and public car parking, and financial contributions for road improvements and other improvements to the Mount Coolum public amenities and car park.

What is the effect of the Yaroomba Beach Master Plan?

[20] The Yaroomba Beach Master Plan includes a map that identifies the area the subject of the preliminary approval. It is described as the Yaroomba Beach Local Plan Precinct. That area contains individual sub-precincts - Yaroomba Beach North, Yaroomba Beach Central, Yaroomba Beach South, Lakeside North and Lakeside South.

[21] The Yaroomba Beach Master Plan would vary the effect of the Planning Scheme by:

(a) the Table in s 6.1, which identifies variations to categories of development and categories of assessment for a material change of use for a defined use specified in the Planning Scheme in Table 5.5.17 (Emerging Community Zone) for each sub-precinct;

(b) the Table in s 6.2, which identifies variations to the categories of development and categories of assessment for reconfiguration of a lot specified in the Planning Scheme in Table 5.61 (Reconfiguration of a Lot);

(c) the Addendum to the Coolum local plan code (Yaroomba Beach), which effectively replaces the purpose and overall outcomes and the performance outcomes and acceptable outcomes for the Coolum local plan code; and

(d) the Addendum to the Height of Buildings and Structures Overlay Map OVMIIH, which effectively replaces Map OVMIIH in the Planning Scheme with Map 3.

[22] The Yaroomba Beach Master Plan sets the development intensity for the subject land across all stages. It provides for a maximum residential development density of a 220-room hotel and 740 equivalent dwellings. There is a table and plan of residential density for each precinct to ensure the distribution of the proposed density across the subject land. Aside from the units in the serviced apartment building, this density is intended to provide for approximately 537 apartments and 71 townhouses across the future stages of development, subject to the grant of further development permits.

[23] The commercial and retail uses (bar, food and drink outlet, office, shop and shopping centre) are limited to tenancies not exceeding 300 square metres. The aggregate gross floor area of the village centre is not to exceed 2 770 square metres.

[24] The Yaroomba Beach Master Plan sets maximum building heights for future dwellings. It provides for buildings with a maximum height of four storeys towards the centre of the subject land, stepping down to three storeys at the western edge of the subject land, and two storeys at the southern edge (adjacent to the existing residential development). Otherwise, the design parameters of the Planning Scheme remain applicable to future development. This includes requirements in the existing applicable Planning Scheme codes for any future proposed development type that regulate the setbacks, site cover, landscaping, parking and communal or private open space requirements.

[25] The Yaroomba Beach Master Plan is also to include an incorporated green space masterplan.[18] The green space masterplan will require regular green breaks and identify vegetation to be protected.

[26] The proposed development will deliver a significant amount of open space. There will be a total of 46 507 square metres of publicly accessible open space. This equates to 25 per cent of the subject land. Of that open space, a total of 17 741 square metres, or 9.6 per cent of the subject land, will be retained vegetation.

[27] An access and mobility plan shows the proposed public and private pedestrian, cycle and vehicular routes. Access to the proposed development will be gained from David Low Way at only two points. The main entry will be via a new roundabout and there will be a secondary access further to the north. The majority of car parking will be provided underground, but there will be over 105 public parking spaces at grade for beach access. Further at grade car parking will be provided at the northern end of the main entry road and at the eastern boundary (in the order of 28 spaces and 33 spaces respectively).

[28] The proposed development will be connected (both within and beyond the subject land) by a comprehensive arrangement of pedestrian pathways and roadways in a low speed environment. They will be designed to encourage walkability and a highly pedestrianised environment. The pathways will connect to the existing coastal walkway.

[29] The proposed development also includes the provision of a new public beach access, a lifeguard tower, and various other infrastructure components.

[30] Stage 1 comprises a resort complex, multiple dwellings, short-term accommodation, a shopping centre, education establishment, community use and utility installation.

[31] The resort complex will include a 220-room hotel. It is proposed that the hotel be conditioned to be operated as a "5-star or higher luxury hotel". Starwood Australia Hotels Pty Ltd (a division of Marriott Hotels) has expressed interest in being the operator of the hotel and to operate it as a "Westin" resort. There will be extensive function and conference facilities, which are intended to serve the growing business traveller and "MICE" (meetings, incentives, conferences and events) market. In addition, the resort will contain two restaurants and a lobby bar; a day spa, kid's club, and gym; pool (including a kid's pool, spa and recreation area); retail and commercial spaces within the resort complex; and a rooftop bar on the seventh storey.

[32] Stage 1 will also include a serviced apartment building containing short-term accommodation and multiple dwellings totalling 132 units. The western end of the serviced apartment block of units are "dual key" units, with a limited number of "triple key" units also provided at the far western end of each level. The dual and triple key units have very limited kitchen facilities and will be used exclusively for short-term accommodation. The eastern end of the serviced apartment block contains larger format units that may be used for either short-term or long-term accommodation.

[33] A separate building will contain a shopping centre with a maximum gross floor area of 2 770 square metres. It will be comprised of individual shop tenancies that must not exceed a gross floor area of 300 square metres. The centre is intended to accommodate a tenancy mix typical of an integrated tourist and residential precinct.

[34] An educational establishment, with an area of 327 square metres, will be used for providing information on the ecological surrounds and the indigenous history of the subject land and the locality. There will be community uses in the form of Surf Life Saving Queensland amenities, and a utility installation use (being a waste transfer station).

What is sought as part of the development permit for reconfiguration of a lot?

[35] SHC seeks a development permit to reconfigure the existing ten lots into 13 lots and an access easement. There are two commercial lots, three park and car park lots, two buffer lots, one lot for the transfer station, two access lots, one principal body corporate lot, two balance management lots and one access easement.

[36] Many integers can inform the combination of assessment benchmarks that apply to any particular proposed development. The Sunshine Coast Planning Scheme, like many others that apply throughout Queensland, is a voluminous document. It comprises numerous components, including a strategic framework, zones and precincts (with associated zone codes), local plans (with associated local plan codes), mapping overlays and overlay codes, and use and other development codes. Each of these components contains provisions that may form part of the assessment benchmarks for a particular development application and inform the assessment.

[37] Here, the Strategic framework sets the policy direction for the Planning Scheme area. It forms the basis for ensuring appropriate development occurs within the Planning Scheme area for the life of the Planning Scheme.[19] For the purpose of articulating the policy direction, the Strategic framework identifies a strategic intent, eight "themes" to achieve the strategic intent and specifies strategic outcomes sought for development in the Planning Scheme area for each theme. A list of key concepts is provided at the beginning of each theme to summarise the overarching principles expressed in the theme. Those parts of the Strategic framework are not framed in a manner that directly regulates development. Rather, they assist in identifying the rationale for, and the importance of, the various planning strategies that underpin the provisions that regulate development. Although each theme has its own section, the Strategic framework is to be read in its entirety as the policy direction for the Planning Scheme. The Strategic framework also identifies "elements" that refine and further describe the strategic outcomes and stipulates the specific outcomes sought for the elements.[20] The elements, specific outcomes and Strategic framework maps form the implementation framework for the Strategic framework.[21]

[38] The policy direction in the Strategic framework is supported, at a finer grained level, by other parts of the Planning Scheme. The zones and precincts (and the associated zone codes) organise the Planning Scheme in a way that facilitates the location of compatible land uses.[22] The local plans (and associated local plan codes) organise the Planning Scheme area at the local level and provide more detailed planning for the zones.[23] The mapping overlays and overlay codes identify areas in the Planning Scheme that reflect State and local level interests and have a particular characteristic, such as a particular sensitivity to the effect of development.[24] The use and other development codes apply to an assessment of development if identified as an applicable code in the table of assessment in the Planning Scheme.[25]

[39] In this case, the subject land is mapped on Strategic Framework Map SFM 2 Economic Development Elements as part of the Urban area. Zone Map ZM 11 maps the area as within the Emerging community zone and the Urban Grown Management Boundary.[26] The Coolum local plan area is mapped on Local Plan Map LPM 11. The subject land is part of "Precinct LPP-1 Palmer Coolum Resort and the Coolum Residences". It is also subject to a number of overlays that apply to varying degrees. The subject land is in the Native Vegetation Area and Wetlands and Constructed Waterbodies Areas on the Biodiversity, Waterways and Wetlands Overlay Maps and in the Coastal Protection Area on the Coastal Protection Overlay Map. It is within the area subject to the 8.5 metre maximum height of buildings and structures on the Height of Building and Structures Overlay Map. A note on that map records that "In certain circumstances pre-existing development approvals may override the operation of an overlay".

[40] Each of the proposed uses and the proposed reconfiguration of a lot is impact assessable. It is to be assessed against the entire Planning Scheme, to the extent relevant.

What assessment benchmarks do the Appellants rely on to contend for refusal?

[41] The Appellants rely on allegations of non-compliance with an imposing list of provisions of the Planning Scheme to contend for refusal.[27] On a number of occasions during the hearing, the other parties noted the extensive nature of the list of provisions and queried whether the list, in truth, reflected the real issues in dispute.[28] By the end of the hearing, compliance with 63 provisions of the Planning Scheme remained in issue. They are:[29]

(a) s 3.2.4, s 3.3.1(a), (i) and (m), s 3.3.2.1(a)(i), (ii), (iii) and (iv), s 3.3.3.1(d)(v), s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.2.1(b)(i), s 3.4.2.1(c)(v), s 3.4.3.1(c), s 3.4.6.1(c), (e)(ii) and (e)(v), s 3.5.1(d) and (i), s 3.7(4), s 3.7.1(f), s 3.7.2.1(a) and (b), s 3.8.1(d), (g) and (h), s 3.8.2.1(c) and (g), and s 3.8.3.1(c) and (d) of the Strategic framework;

(b) the purpose in s 6.2.17.2(1)(a), (c) and (d) and overall outcomes (2)(c)(i), (v), (vi) and (viii) of the Emerging community zone code;

(c) overall outcomes (2)(a), (c), (j) and (k), and performance outcomes PO1, PO2, PO3 and PO16 of the Coolum local plan code;

(d) the purpose in s 8.2.3.2(1)(a), overall outcomes (2)(a), (b), (c) and (d) and performance outcomes PO2 and PO4 of the Biodiversity, waterways and wetlands overlay code;

(e) the purpose in s 8.2.8.2(1), overall outcomes (2)(a) and (b) and performance outcome PO1 of the Height of buildings and structures overlay code;

(f) the purpose in s 9.3.1.2(1)(a), overall outcome (2)(a) and performance outcome PO1 of the Business uses centre design code;

(g) the purpose in s 9.3.11.2(1), overall outcome (2)(b) and performance outcome PO6 of the Multi-unit residential uses code; and

(h) overall outcome (2)(c) of the Transport and parking code.

[42] The Appellants rely on additional provisions for context, including provisions from version 18 of the Planning Scheme.

[43] SHC and the Council join issue with the Appellants' allegations of non-compliance. They each contend that the outcome of the case will turn on only a handful of provisions. In opening the case for SHC, Mr Gore QC identified those provisions that SHC regard as the key provisions. Mr Gore QC gave examples of provisions that SHC says are self-evidently irrelevant or marginal.[30] At the end of the trial, the written submissions provided by SHC and the Council also explained why each of those parties regarded many of the provisions relied on by the Appellants to be irrelevant or marginal. The Appellants did not provide any meaningful response to those submissions. In addition, on many occasions throughout the hearing I asked Mr Hack QC and Mr Skoien to explain the basis on which they allege non-compliance. This was generally to no avail. Despite the opening and submissions of the other parties, and the Appellants inability to explain the basis of the alleged non-compliances, the Appellants did not take up the invitation of the other parties to consider their position and notify any provisions that they no longer wished to pursue. Instead, the Appellants maintain allegations of non-compliance with an exhausting list of provisions.[31] Although each of the allegations is addressed below, it is convenient for me to deal with them by reference to the topics that they raise.

[44] The assessment benchmarks call for consideration of four issues.

1. Will the proposed uses of the subject land satisfactorily address the Planning Scheme's intention for a tourism focus area?

2. Will the proposed development involve inappropriate commercial development?

3. Is the design of the proposed development appropriate?

4. Will the proposed development pose an unacceptable risk to the loggerhead turtle?[32]

Will the proposed land uses satisfactorily address the Planning Scheme's intention for a tourism focus area?

[45] The Appellants allege that the uses proposed as part of the proposed development do not satisfactorily address the Planning Scheme's intention for a tourism focus area in the vicinity of the subject land. They say the intention for tourist development in the area is for continuation and protection of the existing Coolum Resort on the western side of David Low Way and continuation of residential development (with the potential for visitor accommodation) on the eastern side of David Low Way.

[46] Another issue that the Appellants put in dispute is whether the proposed development will achieve an appropriate mix of residential and tourist-oriented development. Their written submissions do not clarify their position with respect to this allegation. However, in oral submissions they confirmed that the Council's understanding of their contentions, as outlined in the Council's written submissions, was correct. The Appellants contend:

(a) that the tourist-oriented components of the proposed development are not intended to be provided on the subject land because only residential development consistent with the Coolum Residences is intended for the subject land; and

(b) the extent of residential development is excessive, resulting in an inappropriate mix of tourist-oriented and residential development.

[47] During final submissions, Mr Hack QC explained that the First Appellant's allegations regarding the inappropriate mix of residential and tourist-oriented development reflects its position with respect to the intentions of the Yaroomba tourism focus area. It is therefore convenient to consider this issue, and the assessment benchmarks relied on in support of it, as part of the question of compliance with the intent for the Yaroomba tourism focus area.

[48] The Appellants say their contentions are supported by the assessment benchmarks in the Planning Scheme, in particular:

(a) s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.2.1(c)(v), and s 3.4.6.1(c) and (e)(ii) and (v) of the Strategic framework;

(b) the purpose in s 6.2.17.2(1)(c) and overall outcomes (2)(c)(i) and (v) of the Emerging community zone code; and

(c) overall outcomes (2)(a) and (j) and performance outcome PO16 of the Coolum local plan code.

What are the tourist-oriented elements of the proposed development?

[49] As I have already noted above, the proposed development includes a range of tourist-oriented elements. The resort complex will include a 220-room hotel that will be operated as a "5-star or higher luxury hotel". In addition to the hotel, the tourist-oriented elements include:

(a) the serviced apartments, which include short-term accommodation;

(b) conference and seminar facilities designed to attract the meetings, incentives, conferences and events market;

(c) food catering premises (i.e. restaurants and food and drink outlets);

(d) retail facilities, which the economic experts agree will be convenient to and will attract onsite tourist spending, as well as attracting tourists and visitors from surrounding areas;

(f) significantly improved beach access, including well in excess of 100 public car parking spaces for public use and lawful vehicular access;

(g) surf lifesaving amenities to improve tourists' and residents' use of the beach;

(h) an educational centre providing information on the ecological surrounds and indigenous history of the subject land and locality more broadly.

[50] The resort complex and the associated benefits will be developed alongside a range of residential accommodation, including approximately 608 equivalent dwellings.

Does the proposed development comply with the applicable tourism focus provisions of the Strategic framework?

[51] The key provisions of the Strategic framework regulating tourism development and development in tourism focus areas are in s 3.4.6.1 of the Strategic framework. It contains the specific outcomes for Element 5 - Tourism and tourism focus areas of the Economic development theme. As such, it is helpful to first consider the Appellants' allegations of non-compliance with s 3.4.6.1(c) and (e)(ii) and (v).

Does the proposed development comply with s 3.4.6.1?

[52] Section 3.4.6.1 of the Strategic framework states:

"3.4.6. Element 5 - Tourism and tourism focus areas

(a) To support the preferred pattern of settlement, development provides for tourist oriented activities and services to be concentrated within the tourism focus areas identified conceptually on Strategic Framework Map SFM 2 (Economic development elements) and described in further detail in Table 3.4.6.1 (Tourism focus areas).

(b) Tourism, sports, major events and leisure activities provide unique experiences and products in well planned and serviced locations.

(c) Tourism focus areas provide for a range of visitor accommodation and tourist services consistent with the intended role of the respective tourism focus area with a particular emphasis on those uses that are well suited to and compatible with existing tourism development.

(d) New tourist attractions cluster in designated tourism focus areas in a manner consistent with the intended role of the particular tourism focus area.

(e) Other opportunities for tourism development may be considered by Council on their merits where such development: -

(i) provides regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities;

(ii) does not incorporate a range or scale of uses and activities which would compromise the Sunshine Coast Activity Centre Network;

(iii) is located on or with direct access to a major road;

(iv) provides all of the necessary infrastructure for the development;

(v) 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; and

(vi) would enhance the Sunshine Coast's tourism brand and reputation.

(f) A tourism activity is undertaken on a sustainable basis that protects and capitalises upon the natural values and key lifestyle attributes of the Sunshine Coast."

[53] The issue of compliance with specific outcomes in s 3.4.6.1(c) and (e)(ii) and (v) calls for consideration of three questions.

1. Is the proposed development in a tourism focus area?

2. Is the proposed development consistent with the intended role of the Yaroomba tourism focus area?

3. If the proposed development is not consistent with the intended role of the Yaroomba tourism focus area, is it otherwise worthy of consideration as a meritorious opportunity for tourism development?

Is the proposed development in a tourism focus area?

[54] Strategic Framework Map SFM 2 (Economic development elements) identifies tourism focus areas by a green star. The map contains a green star west of David Low Way in about the location of the Palmer Coolum Resort. The notation "Yaroomba (Palmer Coolum and Sekisui House Beachside)" appears immediately under the star. The map is at an approximate scale of 1:120 000 if produced at A1 size. A note on the map records:

"This Strategic Framework map graphically represents elements of the Economic Development theme at a conceptual level and is not intended to be interrogated at the cadastre level."

Areas within the coastal urban area accommodating a concentration of visitor accommodation and related tourism services.

(x) Yaroomba (Palmer Coolum Resort and Sekisui House Beachside).

Areas with a primary emphasis on nature and hinterland/rural based tourism experiences and accommodating low impact visitor accommodation and related tourism services.

(i) Blackall Range (including Maleny and Montville);

(ii) Beerwah (along Steve Irwan Way in the vicinity of Australia Zoo or other existing activity nodes);

Areas with a primary emphasis on accommodating major man-made tourist attractions and facilities.

[56] It is common ground between the parties that the reference to the Palmer Coolum Resort is to be read as a reference to the Coolum Resort. It is also common ground that the reference to "Sekisui House Beachside" is a reference to existing residential development to the east of David Low Way and to the south of the subject land that is in the Emerging community zone. That area was developed under the Hyatt preliminary approval. All of the parties agree that the Yaroomba tourism focus area includes the subject land. The Appellants say that the description of the Yaroomba tourism focus area indicates a planning intent that the subject land be developed for residential development. That is a contentious issue.

[57] There is no dispute that the coastal tourism focus area described in paragraph (x) of Table 3.4.6.1 is coincident with the Emerging community zone on Zone Map ZM11 and Precinct COL LPP-1, Palmer Coolum Resort and The Coolum Residences on Local Plan Map LPM11.

[58] Having regard to the Planning Scheme maps and the provisions of the Planning Scheme referred to in these reasons, I am satisfied that the subject land is within the Yaroomba tourism focus area.

Is the proposed development consistent with the intended role of the Yaroomba tourism focus area?

[59] Section 3.4.6.1(c) contains two requirements. First, tourism focus areas are to provide for a range of visitor accommodation and tourist services consistent with the intended role of the respective tourism focus area. Second, there is to be a particular emphasis on those uses that are well suited to and compatible with existing tourism development.

[60] With respect to the first requirement, the First Appellant says the intended role of the Yaroomba tourism focus area is that identified in the purpose statement, overall outcome (2)(j) and performance outcome PO16 of the Coolum local area plan.[33] On the Appellants' case, only the Palmer Coolum Resort is intended to satisfy the "tourism" aspect of this particular tourism focus area. They say all of the land east of David Low Way is intended to be developed for a residential use only. The Appellants do not explain the basis for their submission. They do not identify those features of the Planning Scheme that they say support such a construction, nor do they identify the evidence on which they rely to support their submission.

[61] Mr Adamson, the town planner retained by the Appellants, expressed an opinion consistent with the position adopted by the Appellants. The basis of Mr Adamson's opinion is not clear. He notes that the tourism focus area symbol is to the west of David Low Way, coincident with the Palmer Coolum Resort. However, the location of the symbol on the map does not appear to inform Mr Adamson's opinion that the subject land is only to be developed for residential development given he accepts that the subject land is designated a tourism focus area under the Strategic framework. Mr Adamson's opinion appears to be founded only on the fact that the Planning Scheme used a description for the tourism focus area that referenced the existing (or perhaps approved) uses. Mr Adamson does not explain why the words "Sekisui House Beachside" should be construed as limiting use of that part of the tourism focus area east of David Low Way to residential accommodation only. He does not explain how his approach can be reconciled with his acceptance that the subject land is part of the identified coastal tourism focus area, which is intended to accommodate "a concentration of visitor accommodation and related tourism services." The Appellants' submissions also provide no clarity about these matters.

[62] I do not accept the Appellants' construction of the intended role of the Yaroomba tourism focus area. Both s 3.4.6.1(c) and s 3.4.6.1(d) refer to "the intended role" of a tourism focus area. The specific outcomes in s 3.4.6.1 are immediately followed by Table 3.4.6.1. The table has two functions. It identifies the location of each tourism focus area for the purpose of s 3.4.6.1(a). It also groups those tourism focus areas into three broad categories - coastal, nature and hinterland, and man-made - and outlines the intended role of each category of tourism focus area.

[63] This construction sits comfortably with other provisions of the Planning Scheme that deal with tourism focus areas.[34] There are two additional features of the Planning Scheme that support such a construction. First, the division of tourism focus areas into the three broad categories has no other apparent function in the Planning Scheme: the Planning Scheme does not otherwise make reference to coastal tourism focus areas, nature and hinterland tourism focus areas, or man-made tourism focus areas. Second, other elements in the Economic development theme of the strategic framework utilise a similar drafting style. For example, s 3.4.3.1 contains specific outcomes for Element 2 - Sunshine Coast activity centre network. Those specific outcomes include a requirement for development to be commensurate with the role and function of the activity centre as specified in the activity centre network. They are immediately followed by Table 3.4.3.1, which contains a description (or role) for each type of activity centre. Similarly, s 3.4.4.1 contains specific outcomes for Element 3 - Employment areas, including a requirement for uses to be aligned to the primary focus of the employment area. Those specific outcomes are immediately followed by Table 3.4.4.1, which groups the various employment areas into different types and contains a description (or focus) for each type of employment area.

[64] As the Yaroomba tourism focus area is a coastal tourism focus area, its intended role is to accommodate a concentration of visitor accommodation and related tourism services.

[65] Mr Schomburgk, the town planner retained by the SHC, opines that the proposed development incorporates a number of tourism-focussed elements. He says they include the hotel itself, apartments (for both visitor accommodation and permanent occupation), restaurants and food and drink outlets, a tourist shopping area, public and resort parklands, public beach access and public car parking, surf lifesaving amenities and an educational centre. The educational centre will provide information on the ecological surrounds and the indigenous history of the subject land and the locality. Mr Schomburgk says the proposed development is aimed squarely at the tourism market. This aspect of his evidence was unchallenged.

[66] Mr Perkins, the town planner retained by the Council, gave evidence to similar effect. He opines that the proposed development will provide infrastructure to facilitate the public enjoyment of the nearby beaches. This is evident from the requirements of the Infrastructure Agreement, compliance with which can be secured by a condition of the development approval.[35]

[67] I accept the evidence of Mr Schomburgk and Mr Perkins. Their evidence satisfies me that the proposed development is consistent with the coastal tourism focus role intended for the subject land.

[68] As I noted in paragraph [59] above, in addition to requiring development to be consistent with intended role, s 3.4.6.1(c) of the Strategic framework requires an emphasis on uses that are well suited to and compatible with existing tourism development.

[69] The economists agree that, in terms of tourism accommodation, the relevant existing tourism development is that within the Coolum, Maroochy North Shore and Peregian South local plan areas. Figure 11 of the Second Economic Need Joint Report maps the location of relevant accommodation facilities, and Table 8 details their size.

[70] The nearest tourism development is the Palmer Coolum Resort and associated golf course on the western side of David Low Way. Historically, it offered 324 hotel rooms, suites and villas. The golf course component of the resort remains operational, but the balance of the resort is not.

[71] The largest facilities in the Yaroomba study area are Novotel Twin Waters Resort and the Ramada by Wyndham at Marcoola Beach. Each has over 100 rooms. There are less than 100 rooms in each of the other identified facilities. There is no five-star facility in the locality. All of the existing facilities have a rating of 4.5 stars or less.

[72] Tourism is, and will continue to be, a major contributor to the Sunshine Coast regional economy and the Coolum local economy. The economists agree that there will be ongoing demand for tourist accommodation. This will be driven by increasing demand in the domestic overnight visitor market as the South East Queensland region continues to grow. The natural attributes of the area, including the world class beaches, are also a driver for the demand. Mr Ganly and Mr Duane, the economists retained by the Council and SHC respectively, opine that the redevelopment of the Sunshine Coast Airport will also drive the demand for tourist accommodation. Whether the Sunshine Coast Airport is a key driver of accommodation demand or not, all of the economists agree that there is a gap in the market for a five-star resort facility. They agree that the subject land has characteristics that differentiate it from other resort facilities on the Sunshine Coast and that would make it popular to the tourist (and conference) market.

[73] Mr Ganly and Mr Duane opine that the proposed development would enable the Sunshine Coast to compete more effectively with the Gold Coast for the premium international and conference-based markets. At present, it is difficult to compete as the five-star hotels on the Sunshine Coast are typically small boutique developments. They are all less than 200 rooms. The only branded hotel chains are Sofitel Noosa, Peppers Noosa, Spicers Clovelly Estate and RACV Noosa. None are located in the agreed Yaroomba study area. Spicers Clovelly Estate only has ten rooms or units. It is the only five-star facility located in the Sunshine Coast local government area.

[74] The economists all agree that the area does not presently attract the visitor segment of the tourist market that a five-star resort would attract, including those attracted by facilities for meetings, incentives, conferences and events. The experts agree it is an important sector of the tourism market. The key difference between the economists about the need for a five-star resort on the subject land relates to the prospect that the Palmer Coolum Resort might reopen.

[75] Mr Brown, the economist retained by the Appellants, considers there is a "real prospect" that there would be a redevelopment of the Palmer Coolum Resort. He expressed concern that approval of the proposed resort facilities would militate against refurbishment and redevelopment of the Palmer Coolum Resort as a new resort. I do not accept this evidence of Mr Brown. As was acknowledged by Mr Brown, apart from the golf course, the Palmer Coolum Resort is currently closed and in a state of disrepair. Mr Palmer acquired the resort from Hyatt in about 2011. He closed it in about 2015. While it was operating, the resort was permitted to run-down. Mr Brown acknowledged that even if the Palmer Coolum Resort reopened, it may not be operated as, or managed consistently with the expectations of, a five-star facility. He opines that in order to meet the expectations of a five-star facility, the Palmer Coolum Resort would need to be refurbished. Mr Ganly gave evidence to the same effect. Further, there is no credible evidence that an approval of the proposed development would militate against the reopening of the Palmer Coolum Resort. Mr Brown's opinion is nothing more than speculation: it is not underpinned by any credible explanation. Mr Ganly and Mr Duane, on the other hand, opine that the proposed development and the Palmer Coolum Resort could operate side by side. They gave credible explanations for the basis of their opinions. I accept their evidence.

[76] Having regard to the evidence of the economists referred to above, I am satisfied that the proposed development incorporates uses that are well suited to and compatible with existing tourism development.

[77] For the reasons provided above, I am satisfied that the proposed development complies with s 3.4.6.1(c) of the Strategic framework.

Is the proposed development otherwise worthy of consideration as a meritorious opportunity for tourism development?

[78] The Council submits that the words "Other opportunities for tourism development" indicate that s 3.4.6.1(e) is directed to outlining the circumstances when tourist-oriented development outside of a tourism focus area may be supported. The Council submits that this construction is apparent from a plain reading of s 3.4.6.1(e) in the context of the provision overall, where s 3.4.6.1(a), (c) and (d) all refer to tourism focus areas and s 3.4.6.1(a) states that to support the preferred pattern of settlement, tourism-oriented development is to be concentrated in tourism focus areas. No other party contended otherwise. I agree with the Council's construction.

[79] SHC has discharged the onus with respect to compliance with s 3.4.6.1(c). As such, it is unnecessary for it to demonstrate that the proposed development should otherwise be considered on its merits under s 3.4.6.1(e). In any event, I am satisfied that the proposed development complies with s 3.4.6.1(e) for the following reasons.

[80] The proposed development is located on or with direct access to David Low Way, which is a major road.[36] The Appellants do not dispute that the proposed development will provide the entire necessary infrastructure for the development.

[81] The evidence of the economists demonstrates that the proposed development will provide regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities.[37] The proposed development will enhance the Sunshine Coast's tourism brand and reputation. These matters are not disputed.

[82] In this case, the only issues the Appellants raise about compliance with s 3.4.6.1(e) relate to:

(a) whether the proposed development incorporates a range or scale of uses and activities that would compromise the Sunshine Coast Activity Centre Network;[38] and

(b) whether the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes that contribute to the region's natural (competitive) advantage.[39]

[83] All of the economic experts agree that, with the proposed 300 square metre limit on the size of each individual tenancy, the proposed development will not have an impact on other centres within the hierarchy. I accept their opinions in this regard. They were supported by sound reasons. As such, I am satisfied that the proposed development does not incorporate a range or scale of uses and activities that would compromise the Sunshine Coast Activity Centre Network.

[84] Further, for the reasons provided in paragraphs [179] to [331] below in relation to the design of the proposed development and in paragraphs [332] to [404] below regarding environmental impacts, I am satisfied that the proposed 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.

[85] The proposed development's compliance with s 3.4.6.1(e) is a matter that supports approval of the development application.

Does the proposed development comply with other provisions of the Strategic framework relevant to the tourism focus area?

[86] The Appellants allege the proposed development does not comply with s 3.3.4.1(c), s 3.3.9.1(a) and s 3.4.2.1(c)(v) of the Strategic framework.

[87] Each of s 3.3.4.1(c) and s 3.3.9.1(a) is a specific outcome identified as part of the "Settlement pattern" theme.

[88] Section 3.3.4.1(c) relates to "Element 3 - Efficient and functional urban form". It requires urban consolidation to be "compatible with and sympathetic to the preferred character of the local area".

"the preferred character of each coastal urban, rural town and rural village community is described in the applicable local plan code."

[90] Section 3.3.9.1(a) relates to "Element 8 - Local settings and local planning responses". It requires:

"The Sunshine Coast is maintained as a community of communities where the character and identity of each community is recognised and protected in accordance with a local plan."

[91] These provisions are only marginally relevant to the question of whether there is an appropriate mix of residential and tourist-oriented development. Compliance with them, in terms of the appropriateness of the mix of uses proposed, is dependent on compliance with the Coolum local plan.[40] For reasons explained in paragraphs [109] to [137] below, I am satisfied that the mix of uses proposed is appropriate having regard to the provisions of the Coolum local plan.

[92] Section 3.4.2.1(c)(v) forms part of the implementation framework for the Economic development theme. In particular, it relates to "Element 1 - Natural (competitive) advantage and key economic sectors". It requires that:

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