Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6

SUPREME COURT OF QUEENSLAND

CITATION: Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6

PARTIES: DEVELOPMENT WATCH INC / (applicant) / v / SUNSHINE COAST REGIONAL COUNCIL / (first respondent) / SH COOLUM PTY LTD / ACN 146 376 972 / (second respondent)

FILE NO/S: Appeal No 8019 of 2020 DC No D166 of 2018

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Planning and Environment Court Act

ORIGINATING COURT: Planning and Environment Court at Maroochydore – [2020] QPEC 25 (Kefford DCJ)

DELIVERED ON: 9 February 2022

DELIVERED AT: Brisbane

HEARING DATE: 10 March 2021

JUDGES: Morrison and McMurdo JJA and Burns J

ORDERS: Grant leave to appeal.Allow the appeal.Set aside the decision of the Planning and Environment Court made on 15 June 2020 in Appeal No. D166 of 2018 to dismiss the appeal and to approve the development application, subject to conditions.The parties are directed to file and serve written submissions (not to exceed five pages) regarding: the terms on which each contends the case should be remitted to the Planning and Environment Court to be determined according to law; andthe appropriate order as to costs.

CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the primary judge constituting the Planning and Environment Court dismissed two submitter appeals against the respondent Council’s decision to approve an application for mixed use development in the Sunshine Coast region – where, under the relevant planning scheme, the height of buildings and structures in the proposed development was required to be consistent with the reasonable expectations of the local community – where, under the relevant planning scheme, regard was to be had to properly made community submissions about the proposed development – where there was a considerable number of properly made community submissions opposing the proposed development on grounds including the height of the buildings and structures in the proposed development – whether the primary judge erred in law by failing to have proper regard to the community submissions opposing the development because of the proposed height of buildings and structures – whether the judge erred in law by failing to find what the reasonable expectations of the local community were regarding the height of buildings and structures in the proposed development – where the relevant planning scheme had been amended by the time of the appeal to the Planning and Environment Court – whether the primary judge erred in law by deciding not to consider the version of the planning scheme current at the time of the appeal / Planning Act 2016 (Qld), s 45(2), s 60(3), s 63, s 64, s 311 Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47 Planning Regulation 2017 (Qld), reg 31(1)(f), reg 31(1)(g) Sustainable Planning Act 2009 (Qld) / Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257, cited / Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342; [2007] QPEC 112, cited / Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; [2019] QPEC 16, cited / Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61; [2002] QPEC 41, cited / Bell v Brisbane City Council & Ors (2018) 230 LGERA 374; [2018] QCA 84, cited / Brisbane City Council v Klinkert (2019) 236 LGERA 88; [2019] QCA 40, cited / Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; [2020] QCA 253, cited / Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, cited / Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409; [2019] QCA 132, cited / HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230; [1992] QCA 384, cited / Isgro v Gold Coast City Council [2003] QPELR 414; [2003] QPEC 2, cited / Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65, cited / Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited / Nolan v Clifford (1904) 1 CLR 429; [1904] HCA 15, cited / Redland City Council v King of Gifts (Qld) Pty Ltd (2020) 3 QR 494; [2020] QCA 41, cited / Savage v Cairns Regional Council (2016) 214 LGERA 192; [2016] QCA 103, cited / Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21; [2014] QPEC 47, cited

COUNSEL: J M Horton QC, with A N Skoien, for the applicant C L Hughes QC, with M J Batty and H M Stephanos, for the first respondent D R Gore QC, with J D Houston, for the second respondent

SOLICITORS: Ray Barber Solicitor for the applicant Sunshine Coast Regional Council Legal Services for the first respondent Corrs Chambers Westgarth for the second respondent

1. MORRISON JA: I agree with the reasons prepared by Burns J and the orders his Honour proposes.

2. McMURDO JA: I have the advantage of having read the judgment of Burns J, in which the relevant evidence and reasoning of the primary judge, together with the arguments in this Court, are set out. I agree with the orders proposed by his Honour and wish to add only the following.

3. The primary judge had to assess the proposed development against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014.¹ This included the requirements of the Height of Buildings and Structures Overlay Code (the Code). The purpose of the Code was expressed to be the protection of the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium rise built form.² The Code provided that this purpose was to be achieved through three “overall outcomes”.³ Those outcomes are set out at paragraph [22] in the judgment of Burns J. They were related but distinct outcomes, each of which had to be achieved.

4. The Code also specified “performance outcomes”, the achievement of which would result in the achievement of the overall outcomes, and thereby fulfill the purpose of the Code. However, as the primary judge held, the performance outcomes were not the only means of achieving that result. Her Honour correctly held that under the Code, in its terms in the planning scheme against which the development was to be considered, there was no requirement that every building or other structure should be no higher than 8.5 metres.

5. The applicants put in issue the satisfaction of two of the overall outcomes. The first was that the development would contribute to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it would occur. The second was that the height of the buildings and structures was consistent with the reasonable expectations of the local community. There is no challenge to the judge’s finding that the first of those outcomes would be achieved. At the core of the applicant’s case in this Court are complaints of errors in considering the development’s compliance with the second outcome.

6. On this issue, more was required than an assessment of whether any development with a building or structure in excess of 8.5 metres in height would be beyond the reasonable expectations of the local community. What was required was an assessment of whether the buildings and structures proposed by this development would be within those expectations.

“[The community] should also reasonably expect a development, such as proposed here, may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements of the Planning Scheme.”

In my respectful opinion however, that did not answer the question which the judge had to consider, namely whether the height of the buildings and structures in this development exceeded the reasonable expectations of the community. The same error is evident from her Honour’s reasoning, later in the judgment,⁴ that it would be reasonable for the community to expect, having regard to the Hyatt preliminary approval, that development might be approved above 8.5 metres in height, and beyond a height of four storeys.

8. Further, as Burns J has explained, the primary judge erred in law in failing to consider whether any weight should be given to the content of the equivalent code in the 2018 planning scheme.

9. It follows that there was no consideration, according to law, of the question of whether the proposed development complied with the planning scheme, in so far as its compliance with the Code was concerned. It cannot be thought that this was immaterial to the outcome of the case, notwithstanding the many other issues upon which the present respondents succeeded. In particular, a need for the development, according to the judge’s findings which contain no legal error, would have an importance which would vary depending upon whether there was a countervailing consideration of an inconsistency with an important element of the planning scheme.

10. BURNS J: This is an application for leave to appeal against a decision of the Planning and Environment Court to dismiss a submitter appeal brought by the applicant, Development Watch Inc, and to approve an application to develop a parcel of land on the Sunshine Coast subject to several amended conditions.⁵

11. One of the assessment benchmarks incorporated in the planning scheme by which the development application fell to be assessed was a Height of buildings and structures overlay code. Its purpose was “to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form”. The code prescribed how this was to be achieved and, relevantly, this meant that the proposed development had to meet a number of “overall outcomes”, one of which was that the height of buildings and structures be consistent with the reasonable expectations of the local community.⁶

12. In the course of dismissing appeals brought by Development Watch and another submitter, and approving the development application, the learned primary judge determined that the proposed development complied with the code and, of importance to this application for leave to appeal, her Honour was satisfied that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community. Of relevance also to the leave application was her Honour’s finding that there was a planning need for the development. By the proposed appeal, Development Watch seeks to argue that her Honour’s conclusions in both respects were affected by errors of law warranting this Court’s intervention.

Background

13. The parcel of land that is the subject of the development application is located between David Low Way and Yaroomba Beach, a couple of kilometres from Coolum Beach. It occupies 18.5 hectares and was once part of the land holdings associated with the resort known as the Hyatt Regency Resort and, more recently, as the Palmer Coolum Resort.

14. The land has a history of planning approvals dating back to the 1980s. Of particular importance to this application was a preliminary approval granted by the first respondent, Sunshine Coast Regional Council, in February 2007 which for ease of reference I shall refer to as the 2007 Approval. It had the effect of varying the then current planning scheme to establish the Coolum Hyatt Integrated Resort and Residential Community and it was in force when the subject development application was lodged. That remained the position at the time when the appeal was heard in the court below.

15. The development application was lodged with the Council on 4 May 2017 on behalf of the owner, being the second respondent to this application, SH Coolum Pty Ltd. Public notification took place between November of that year and January of the next and over 12,000 submissions were received. In response to those submissions, a notice of change of development application was lodged with the Council on behalf of SH Coolum that significantly reduced the residential density under the proposal. Otherwise, it was planned that the land be developed over five stages, with the first stage involving the construction of a five-star resort incorporating a hotel, a shopping centre, multiple dwellings and associated facilities. These uses were proposed to be accommodated in a number of buildings, between five and seven storeys in height. Stages 2 to 5 were not laid out in detail but approval was sought to vary the effect of the categorising instrument⁷ so that future applications to develop the balance of the land for a mix of residential dwellings (including houses and dual occupancy dwellings at two storeys in height and multiple dwelling units in buildings up to four storeys in height) would not be subject to the public notification process.

16. The Council approved the application on 21 June 2018. As part of that approval, preliminary approval was granted for a material change of use to establish the Yaroomba Beach Master Plan along with development permits for Stage 1 by which a material change of use in the form of a 220-room hotel, shopping centre, 148 dwellings or places of short-term accommodation, an educational establishment, community use amenities and a utility installation were authorised as well as the reconfiguration of a lot.

17. Two community organisation submitters, one of which was Development Watch,⁸ subsequently appealed to the Planning and Environment Court. Their appeals were heard over three weeks in late 2019 with further evidence and written submissions advanced in March and April of the following year.

The planning scheme

19. Section 45 of the Planning Act applied to the court’s decision on the appeals as if the court was the assessment manager for the development application.¹³ That provision specifies that a categorising instrument states the category of assessment that must be carried out for the development.¹⁴ The expression, “categorising instrument”, is defined in s 43(1) of the Planning Act to be a regulation or “local categorising instrument” that: (a) categorises development as prohibited, assessable or accepted development; (b) specifies the categories of assessment required for different types of assessable development; and/or (c) sets out the matters that an assessment manager must assess assessable development against. The expression, “local categorising instrument”, is further defined to include a planning scheme: s 43(3). Furthermore, it is provided that a regulation made under s 43(1) applies instead of a local categorising instrument to the extent of any inconsistency (s 43(4)) and no matter when the regulation and local categorising instrument commenced in relation to each other: s 43(8).

20. In this case, the local categorising instrument was the Sunshine Coast Planning Scheme 2014. It specified that the development in prospect was impact assessable and, by virtue of s 45(5) of the Planning Act, this meant that any assessment: (1) must be carried out against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014 to the extent relevant; (2) must be carried out having regard to any matters prescribed by regulation; and (3) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances. As to (2), and more generally as the overriding “categorising instrument”, reg 31 of the Planning Regulation 2017 (Qld) relevantly provides that the impact assessment must be carried out having regard to any development approval for, and any lawful use of, the premises or adjacent premises¹⁵ – here, the 2007 Approval – as well as the “common material”.¹⁶ The expression, “common material”, is defined in Schedule 24 to the Planning Regulation to mean all of the material about the application that is received before the application is decided, including “any properly made submissions about the application”.¹⁷

“8.2.8.2 Purpose and overall outcomes

(1) The purpose of the Height of buildings and structures overlay code is to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form.

(2) The purpose of the Height of the buildings and structures overlay code will be achieved through the following overall outcomes:-

(a) development contributes to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs;

(b) the height of the buildings and structures is consistent with the reasonable expectations of the local community; and

(c) development does not result in a significant loss of amenity for surrounding development, having regard to:-

(i) the extent and duration of any overshadowing;

(ii) privacy and overlooking impacts;

(iii) impacts upon views;

(iv) building character and appearance; and

(v) building massing and scale relative to its surroundings.”

23. Next came the assessment criteria, set out in tabular form as part of s 8.2.8.3. Under the heading, “Maximum Height of Buildings and Structures”, performance outcome PO1 was stated to be that the “height of a building or structure does not exceed the maximum height specified on a Height of Buildings and Structures Overlay Map” save for a number of exceptions that have no application in this case. No acceptable outcome was provided. The predominant maximum height on the Height of Buildings and Structures Overlay Map OVM11H for the local plan area was 8.5 metres,¹⁹ although some of the land had a height limit of 12 metres²⁰ (near Coolum Beach) and an area with existing buildings of four storeys had a limit of 16 metres.²¹

24. By the time of the hearing of the appeals in the court below, the version of the Sunshine Coast Planning Scheme in force was Version 18. Section 5.3.3 had been amended in a number of respects that do not bear on this application and PO1 in the table to s 8.2.3.1 was not materially different to the provision that appeared in Version 8. Critically, though, s 8.2.8.2 had been amended to add two new overall outcomes:

“8.2.8.2 Purpose and overall outcomes

(1) The purpose of the Height of buildings and structures overlay code is to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form.

(2) The purpose of the Height of buildings and structures overlay code will be achieved through the following overall outcomes:-

(a) development provides for the height of buildings and structures to comply with specified height limits except where explicitly provided for in this code;

(b) development contributes to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs;

(c) the height of buildings and structures is consistent with the reasonable expectations of the local community;

(d) development on a site within a flooding and inundation area, as identified on a Flood Hazard Overlay Map, is afforded an allowance for additional maximum height so as to minimise the risk to people and property; and

(e) development does not result in a significant loss of amenity for surrounding development, having regard to:-

(i) the extent and duration of any overshadowing;

(ii) privacy and overlooking impacts;

(iii) impacts upon views;

(iv) building character and appearance; and

(v) building massing and scale relative to its surroundings.” [Emphasis in original]

25. It will be seen that subparagraphs (2)(a) and (d) are new additions. Subparagraph (2)(d) obviously has no bearing on this case but (2)(a) does because of what is provided in sub-ss 45(7) and (8) of the Planning Act. As to that, although some exceptions to the Height of buildings and structures overlay code appear in PO1, again, none of them apply to the subject land. As such, subparagraph (2)(a) of Version 18 must be understood as adding an overall outcome to comply with the height limit specified in the code as part of the way in which the purpose of the code was required to be achieved.

26. Subsections (7) and (8) of s 45 of the Planning Act provide as follows:

“(7) The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.

(8) However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to—

(a) if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document; or

(b) another statutory instrument—

(i) that comes into effect after the development application is properly made but before it is decided by the assessment manager; and

(ii) that the assessment manager would have been required to assess, or could have assessed, the development application against, or having regard to, if the instrument had been in effect when the application was properly made.” [Emphasis added]

27. These provisions are clear in their effect. The development application must be assessed “against or having regard to” Version 8 of the Sunshine Coast Planning Scheme 2014,²² but a discretion is conferred on the assessment manager (and, on appeal, the Planning and Environment Court) to give Version 18 such weight as is considered appropriate.²³

The relevant findings of the primary judge

28. Although Development Watch raised a host of issues for determination in the court below, the attack on the decision of the primary judge in this Court was a narrow one. Of the proposed grounds of appeal that were pressed in oral argument,²⁴ its challenge was very much focussed on the primary judge’s finding that the development complied with Version 8 of the Height of buildings and structures overlay code and, as a necessary part of this finding, that overall outcome 2(b) was achieved, that is to say, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community.

29. As to this, Development Watch argued in the court below that there was non-compliance with the purpose specified in s 8.2.8.2(1), overall outcomes (2)(a) and (b) and performance outcome PO1. Among the submissions made in that regard was a contention that the Height of Buildings and Structures Overlay Map OVM11H “mandates a maximum height of 8.5 metres across the site”,²⁵ but the primary judge rejected that submission, finding instead that the Height of Buildings and Structures Overlay Map OVM11H had to be considered in the context of the provisions of the planning scheme that call it in aid, that is to say, the Height of buildings and structures overlay code.²⁶ Her Honour observed that the purpose in s 8.2.8.2(1) was to be achieved through the overall outcomes, none of which called “up the mapping on the Height of Buildings and Structures Overlay Map”.²⁷ Instead, the “map is only called into operation by performance outcomes PO1 and PO2”.²⁸ Her Honour recognised that the proposed development did not comply with performance outcome PO1 and formally found that none of the exceptions to performance outcome PO1 applied to the subject land. However, her Honour observed that “the development can achieve compliance with the overlay code if it complies with the overall outcomes”.²⁹ None of these findings or propositions were challenged in this Court.

30. The primary judge then turned to a consideration of the overall outcomes. Earlier in the judgment, her Honour reviewed the expert and other evidence about the design of the proposed development and the extent to which it might maintain the local plan area as a low-key coastal urban community, before concluding that it “appropriately reflects the character of the area” and complies with the character requirement in, relevantly, overall outcome (2)(a). Her Honour also reviewed the evidence on the question whether the proposed development complied with the relevant design requirements of the local plan area and found that it did. Referring back to those analyses, her Honour was satisfied that the proposed development complied with overall outcome (2)(a).

“[301] In this case, the Appellants provided copies of many submissions that they say are representative of the majority of submissions opposed to the proposed development. Numerous local residents also gave statements. Some of them were cross-examined. Although I am satisfied that the concerns of the local residents about the impact of the proposed development are genuinely held, the other evidence does not support them. Their expectations are out of step with the effect of the Planning Scheme when read as a whole. For example, many assume that the Planning Scheme requires development on the subject land be no higher than two storeys or 8.5 metres.

[302] Further, having regard to the independent evidence referred to in paragraphs [180] to [264] above, in an objective sense the concerns of the local residents can be discounted. They are not evidence of reasonable expectations. The residents could reasonably have in mind that the Height of Buildings and Structures Overlay Map OVM11H shows the subject land as subject to a height parameter of two storeys. However, they should also reasonably expect that development, such as that proposed here, may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements of the Planning Scheme.

[303] For those reasons, I am satisfied that the proposed development complies with the Height of buildings and structures overlay code.”³⁵

32. Later in the judgment, the primary judge discussed the submissions in more detail, but for a different, and more general, reason. This was to deal with a contention on the part of the appellant submitters that the nature and extent of community opposition to the proposed development was an important consideration given the provisions of the Sunshine Coast Planning Scheme that seek to preserve the individual identity of local communities. Her Honour said this:

“[421] The proposed development was publicly notified on two occasions. The first period of public notification commenced on 23 October 2017. The second commenced on 16 November 2017 following an error in the first round of public notification. During the public notification periods, a total of 12 306 submissions were received in respect of the development application. Of those, 11 666 were considered by the Council to be properly made submissions.

[422] Mr Schomburgk analysed the submissions and provided his analysis at Attachment G of the Joint Experts’ Report – Town Planning. His analysis was not challenged. Further, exhibit 39 contains an analysis of the submissions received from the second round of public notification, which the parties agree to be a fair analysis of those submissions. There are some discrepancies in the numbers in that exhibit, which can be attributed to cataloguing and counting the larger volume of submissions received.

[423] It is clear that there is strong public interest in the development application the subject of the appeal. Both Mr Schomburgk’s analysis and the analysis in exhibit 39 demonstrate that public opinion on the proposed development is divided. Each of the parties tendered a selection of the submissions that they regarded as representative of the broader submissions in support of their respective positions in the appeal.

[424] The majority of the submissions were received from addresses within Queensland, and largely from addresses within the Sunshine Coast local government area. In the second round of public notification, there were 6 704 submissions in opposition to the proposed development and 1 948 submission[s] in support received from addresses on the Sunshine Coast.

[425] A large percentage of the submissions received were in the form of proforma submissions. There were a number of types of proformas, both in support and in opposition to the proposed development. Out of the total submissions received, 7 934 were in the form of proforma submissions. There were 28 percent of the proforma submissions that were in support of the proposed development and 72 percent in opposition.

[426] The remainder of the submissions were identified as individual submissions. Of the 3 609 individual submissions received, 3 104 (or 86 per cent) were in opposition to the proposed development and 505 (or 14 per cent) were in support.

[427] There were a number of common themes of concern that were expressed by the community in the submissions. They related to the proposed development’s perceived inappropriateness in terms of its height and density; traffic; creation of a precedent in the area; balance between tourism and residential uses; impact on endangered species, particularly the loggerhead turtle; absence of need for the proposed development; impacts on character and scenic amenity; and conflicts with the Planning Scheme. The lay witness statements tendered by the First Appellant raised similar concerns.

[428] Although the number of objections to a development application is relevant, of greater significance is the substance of the objections and the basis upon which they are founded.

[429] Here, I am prepared to assume that the submissions, and those lay witnesses, who gave evidence, were genuine in their objection to the proposed development. However, to be deserving of considerable weight the objections must be soundly based.

[430] A number of the submissions were misguided. Examples include submissions to the effect that the development application ‘threatens the integrity of the planning process on the Sunshine Coast’; the development application would encourage others to apply for development that is ‘at odds’ with the Planning Scheme; and an approval would put a developer’s profit before the local community. The content of the submissions opposed to the development and the lay witness statements tendered by the Appellants otherwise, in large measure, mirrored the case run by the Appellants.

[431] I am not persuaded that I should refuse the proposed development by reference to the submissions in opposition to it and the lay witness statements tendered by the Appellants for reasons provided herein with respect to each of the other issues in dispute.”³⁶ [References omitted; emphasis in original]

33. The issue of community expectations regarding height next arose when the primary judge came to consider the significance of the 2007 Approval. After observing that the planning discretion had to be based on an assessment that is carried out having regard to the 2007 Approval,³⁷ her Honour continued:

“[518] The [2007 Approval] includes development across a number of precincts, relevantly including Precincts 1C, 3C, 3D, part of 3E, 3F and part of 3H (buffer precinct). These are the precincts that most closely align with the subject land. The uses provided for within these precincts include:

(a) non-residential uses, including restaurant, shop and outdoor recreation up to a maximum of 500 square metres; and

(b) residential uses comprising a mix of dwelling types, including multiple dwellings, detached houses and duplexes.

[519] The form of development that could occur on the subject land is usefully depicted in Figure 1 of Exhibit 21. It is also graphically depicted on the last page of Exhibit 82, which graphically depicts the likely extent of built form when viewed from the type of aerial oblique view one would get from Mt Coolum. The extent of development facilitated by the [2007 Approval] is significant.

[520] The subject land is located within part of the *‘*Beachside’ precinct (Precinct 3) in the [2007 Approval]. That precinct also included land to the south of the subject land. In that precinct, the [2007 Approval] allowed a maximum density of 450 dwellings across the precinct. The southern portion of the precinct, to the south of the subject land, has been developed predominately for detached houses of two storeys in height. That development is known as *‘*Coolum Beachside’ and ‘**Belle Mare’. It provides approximately 110 dwellings. The [2007 Approval] also authorised units within sub-precinct 3F, which is located within the subject land. In that sub-precinct, the approval authorised 140 dwelling units and buildings up to 16 metres and four storeys in height.

[521] All of the sub-precincts within Precinct 3, except for 3F, allowed for 20 per cent of dwellings to be multiple dwellings (units) of up to three storeys, and allowed for a further 20 per cent of dwellings to be dual occupancy, leaving the remainder of the sub-precincts (60 per cent) to be comprised of detached houses.

[522] The development of Coolum Beachside with a predominance of detached houses of two storeys in height informs expectations about the likely development of the remainder of Precinct 3 under the [2007 Approval], given the approval contemplated up to 40 per cent of the development being other than detached houses.

[523] Having regard to the [2007 Approval], the community could reasonably expect that development of the subject land would include residential and non-residential uses. The community could also reasonably expect that the residential development would include accommodation other than detached dwellings, being dual occupancies and multiple dwellings, and that some of the residential development might be above 8.5 metres in height (despite the mapping on the Height of Buildings and Structures Overlay Map).

[524] The Appellants submit that the proposed development is a much greater scale than that contemplated in the [2007 Approval]. I agree. However, it is not reasonable for the community to expect that the extent of development of the subject land will be limited to that approved in the [2007 Approval]. The [2007 Approval] was granted about 12 years ago and the planning needs of a community are not static and immutable. It is reasonable for the community to expect that the subject land might be developed for a more intensive form of development where it complies with the assessment benchmarks that apply at the time the development application is made and meets an identified need, as the proposed development does.”³⁸

34. Lastly, the primary judge considered whether approval of the proposed development was in the public interest. Her Honour recorded, consistently with authority,³⁹ that a flexible approach to the assessment of the proposal was required and that “not every non-compliance is contrary to public interest or will warrant refusal”.⁴⁰ Her Honour then précised the submissions made by the Council to the effect that approval of the proposed development was consistent with the public interest. These submissions were then adopted by her Honour as reflecting a “fair summary of my findings set out in the reasons above”.⁴¹ One of the Council’s submissions adopted by the primary judge was summarised as follows:

“[548] [A]lthough the proposed development is inconsistent with the maximum height shown on the Height of Buildings and Structures Overlay Map, the built form of the proposed development is otherwise compliant with the relevant provisions of the Planning Scheme. The exceedance of the standard shown on the Height of Buildings and Structures Overlay Map does not result in an unacceptable departure from the Planning Scheme as there is an absence of visual amenity (and any other) impacts arising from the height. It also facilitates the satisfaction of the economic and planning need for a five-star resort hotel with conference facilities, while satisfying the relevant planning provisions regarding landscaping and open space.”⁴²

The proposed appeal

35. An appeal from a decision of the Planning and Environment Court is by leave and may be brought only on grounds of error or mistake in law or jurisdictional error.⁴³ Development Watch argued that leave should be granted because the decision below was affected by several errors identified in a draft (and revised) notice of appeal. To justify a grant of leave, it is not sufficient to demonstrate an arguable error of law; the error must be material in the sense that it could have materially affected the decision at first instance.⁴⁴

The proposed grounds

36. The draft notice of appeal contains three grounds of appeal, the first and second of which are related because they both concern the primary judge’s finding that the proposed development complied with the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community. By the third ground, Development Watch seeks to argue that the primary judge erred by misunderstanding the evidence about a planning need for the development and misapplied the onus of proof in that respect.

Proposed grounds 1 and 2 – the finding that the development complied with the Height of buildings and structures overlay code

37. By the first ground, Development Watch seeks to argue that the primary judge failed to pay proper regard to the community submissions opposing the development, dismissing them instead as being “misguided”,⁴⁵ “not reasonable”⁴⁶ and “out of step with the effect of the planning scheme when read as a whole”⁴⁷ and consequently erred when determining the “reasonable expectations of the local community” for the purposes of overall outcome 8.2.8.2(2)(b) of Version 8 of the Sunshine Coast Planning Scheme. By the second ground, Development Watch would contend that the primary judge misconstrued the requirements of the same overall outcome and, further, failed to take into account, and give significant weight to, the version of the planning scheme current at the time of the appeal i.e., Version 18.

38. It is convenient to first deal with the construction argument.

39. Development Watch submitted that the primary judge misconstrued s 8.2.8.2(2)(b) of Version 8 as importing considerations of character and amenity when that provision was solely concerned to promote consistency between the height of the buildings and structures in the proposed development and the reasonable expectations of the local community. It was submitted that subparagraphs (a), (b) and (c) of s 8.2.8.2(2) are cumulative and that paragraph [302] of the judgment below⁴⁸ is revealing of an approach whereby the primary judge did not give the subparagraphs separate consideration. In that paragraph, her Honour recorded a finding that the “concerns of the local residents” were not “reasonable expectations” because, in part, although it could reasonably be thought that the Height of Buildings and Structures Overlay Map showed any development to be subject to a “height parameter of two storeys”, the residents “should also reasonably expect that development … may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements for” the planning scheme. Mr Horton QC, who appeared for Development Watch on this application but not in the court below, contended that this was the wrong approach because the requirements of subparagraphs (a), (b) and (c) were “collapsed into each other”⁴⁹ when they should have been separately considered. Doing so, he submitted, drew attention away from the need to be satisfied about subparagraph (b) and thereby diluted its importance.

“On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.”⁷¹

53. More recently, in Gerlach v Clifton Bricks Pty Ltd,⁷² Gaudron, McHugh and Hayne JJ explained:

“In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about which evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.”⁷³ [Emphasis added]

54. It follows that, even if on case management grounds it was correct to require Development Watch to seek leave to add Version 18 as an issue to be considered in the court below, and then rule against it in that application, that ruling could be challenged, as it has been, in this Court. It is however unnecessary to determine that challenge because of the view I have taken that Version 18 was sufficiently raised as a contextual issue from the start of the hearing.

Proposed Ground 3 – the finding that there was a planning need for the development

55. The primary judge found that there was a planning need for both the hotel and residential components of the proposed development.⁷⁴ When doing so, her Honour rejected the evidence of the economist called on behalf of Development Watch, Mr Brown, and preferred instead the evidence of the economists called on behalf of the Council (Mr Ganly) and SH Coolum (Mr Duane). In written argument, Development Watch submitted that her Honour’s finding about the existence of need was in error because SH Coolum not only failed to adduce in evidence any quantitative analysis of need but, as the proponent of the development, it was obliged to do that in order to discharge its onus of proof. Thus, as part of this proposed ground of appeal, it was contended that her Honour misapplied the onus of proof.

56. There is no substance to this proposed ground of appeal, and this no doubt explains why it was not supported by any oral argument at the hearing. The primary judge correctly found that the question whether there was a planning need for a proposed development was a question of fact to be determined having regard to all of the evidence in the case of relevance to that issue. In carrying out that exercise, the feature that her Honour preferred one body of opinion over another was unremarkable. Likewise, her Honour’s consideration of the evidence on this topic (including, but by no means limited to, the evidence of the three economists) was not only regular and appropriate, it left no room for thinking that the onus of proof was either misunderstood or misapplied.

Conclusion and orders

57. The judgment below was affected by the three errors of law identified above.⁷⁵ Going as each did to a central question in the case below, that is to say, whether the proposed development complied with the Height of buildings and structures overlay code, they could have materially affected the decision at first instance, and the illustration earlier provided⁷⁶ highlights why that must be so.

58. Leave to appeal should accordingly be granted, the appeal allowed, the decision below set aside and the case remitted under s 65 of the Planning and Environment Court Act 2016 (Qld) to be determined according to law.

59. As to that, the parties should have leave to make brief written submissions on the terms of the remitter. On one view, the issues determined by this appeal are within short compass when compared to the great bulk of the overall case determined in the court below, and none of which has been questioned in this Court. However, robust findings were made by the primary judge on the issues that have been successfully challenged and it may therefore be asking too much of her Honour to re-visit them.

60. At the same time, the parties should be at liberty to advance submissions about the appropriate order for costs of the application for leave to appeal and the appeal in this Court.

61. I would order as follows:

Grant leave to appeal.

Allow the appeal.

Set aside the decision of the Planning and Environment Court made on 15 June 2020 in Appeal No. D166 of 2018 to dismiss the appeal and to approve the development application, subject to conditions.

The parties are directed to file and serve written submissions (not to exceed five pages) regarding: the terms on which each contends the case should be remitted to the Planning and Environment Court to be determined according to law; andthe appropriate order as to costs.

Footnotes

1. Planning Act 2016 (Qld), s 45(5). ↩

2. Clause 8.2.8.2 of the Code. ↩

3. Clause 8.2.8.2(2) of the Code. ↩

4. At [523]-[524]. ↩

5. The decision was handed down on 25 May 2020. See Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25. ↩

6. Sunshine Coast Planning Scheme 2014, s 5.3.3(c). ↩

7. As to which, see below at paragraph [19]. ↩

8. The other was Sunshine Coast Environment Council Inc. ↩

9. Planning Act, s 311. ↩

10. Planning and Environment Court Act, s 47. And see s 60(3) of the Planning Act which operates where the application involves development that requires impact assessment and provides that, after carrying out the assessment, the court is required to decide whether to: approve all or part of the application; approve all or part of the application, but impose development conditions on the approval; or refuse the application. ↩

11. Planning and Environment Court Act, s 43. ↩