Friends of Buddina Ltd v Sunshine Coast Regional Council & Anor [2021] QPEC 57

• [33] To similar effect are the submissions of each respondent urging recognition that proceedings of this kind are not to be allowed to be in effect or "quasi-merits" review of an approval. Each respondent made reference to Wheldon and Armview Pty Ltd v Logan City Council and RG Property Three Pty Ltd as Trustee,[95] where the following was observed in respect of the precursor to s 11 of the PA, in s 456 of the SPA:

"[17] The relief sought by the applicants is for a declaration and consequential orders under s. 456 of SPA.

[18] Unlike appeal proceedings, the court is not concerned with the merits of the approval as in a hearing anew. Proceedings of this type are analogous to judicial review proceedings having regard to the material before the council.

[19] Of judicial review proceedings, the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002:

'[114] Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated has the repository of the decision making power.'" (citations omitted)

• [34] As is apparent from the development of its submissions in reference to the documents or materials which were before the relevant decision-maker, the Applicant does not contest the appropriateness of regard being had to such material.[96] More particularly, the Applicant's submissions as to the purported errors are premised upon contentions that:

(a) identification of statutory misconstruction by inference from a statement of reasons is not novel and often becomes apparent by analysis of the reasoning process and revelation of the legal path undertaken by the decision maker;[97] and

(b) where a decision maker fails to mention a matter in the statement of reasons, it may lead to an inference that it was regarded as irrelevant or that there was failure to consider it.[98] In support, reference is made to Mees v Kemp:[99]

"[54] Sections 13(1) and (2), read together, require a decision-maker who has been requested to give reasons for a decision to provide:

2. Setting out the findings on material questions of fact.

3. Referring to the evidence or other material on which those findings were based.

The section requires that reasons be furnished 'which make intelligible the true basis of the decision' - ARM Constructions Pty Ltd v Commissioner of Taxation [1986] FCA 108; (1986) 10 FCR 197 at 204 (Burchett J). It is remedial and supplies the deficiency of the common law - Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at 130 (Gummow J). It is designed to provide persons affected by a decision with sufficient information to decide whether to accept it or to pursue the matter further with the administrative process or through the Court - Ansett Transport Industries (Operations) Ltd v Secretary, Department of Aviation (1987) 73 ALR 193 at 197 (Lockhart J).

[55] The section does not require that the reasons are set out with the degree of precision or detail which might be appropriate to a judicial decision:

But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or pre-judgment - Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 at 179 (French J)"

• [35] For the Applicant there was also acknowledgment of the recognition, in Holcim (Aust) Pty Ltd v Brisbane City Council,[100] of the following observations in Notaris v Waverley Council:[101]

"[63] Further Arden referred to Notaris v Waverley City Council where Tobias JA (with whom Mason P and Hodgson JA agreed) said:-

'As the primary judge correctly observed..., the Council was at great pains to inform itself before making its decision. As his Honour also noted, there was an intensive and far-reaching investigation over some 13 months which resulted in a "plethora of information available to the Council in order to enable a full and proper assessment of the impact of height, floor space ration, size, overshadowing, solar access, car parking and vehicle access." In my opinion, the evidence comprising the contents of the Council's files on the application provide ample support for this finding.

Although it may be true that in the relevant reports there is no numerical reference to the relevant provisions of DCP2 or, for that matter, DCP14, the nature of the control and its detail was clearly referred to in the various reports in terms of the maximum permissible floor space ratio, the overall height of the building, the permissible external wall heights and setbacks. AS Hodgson JA, with whom Ipp JA and Davies AJA agreed, said in Hill v Woollahra Municipal Council (2003) 127 LGERA 7 at [53]:

... so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not.

Furthermore, as a general proposition, material in the possession of the Council will be treated as being in the possession of the councillors: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] per Ipp JA, with whom Spigelman CJ and Sheller JA agreed.'" (citations omitted)

• [36] Also for the Applicant, it is contended to be noteworthy that the First Respondent has chosen to not supplement its reasons with any affidavits from the decision makers involved.[102] It is then contended the absence of such evidence allows for an inference that the evidence would not have assisted the First Respondent's case, allowing the Court to more confidently draw inferences available to be drawn from the evidence that is before the Court.[103]
• [37] Whilst there are the examples, to which reference is made, of instances where in the proceeding for judicial review, the decision maker became a witness, there is no particular explanation of the circumstances seen as therein warranting what may be regarded as an uncommon approach.
• [38] The difficulty in the attempt to apply the Jones v Dunkel reasoning against a decision maker, was recognised by the High Court in Muin v Refugee Review Tribunal[104] as lying in an expectation as to the impartiality and independence of the role performed by the decision maker and therefore a general absence of expectation that a decision maker would give evidence beyond what is set out in published reasons. Whilst the observations in that case were specifically directed at the position of a decision maker who was a member of statutorily established tribunal and with particular regard to the recognised privileges and immunities of such a tribunal, the underlying principle as to the potential challenge to the expectation of impartiality and independence is particularly germane to the position of the First Respondent which under the PA is given the primary responsibility for daily making decisions of the kind in issue here.
• [39] This is particularly so where, as has been noted above, the PA has provided for the provision of reasons for such decisions, including for the purposes of proceedings of this kind and as the Applicant has obtained, upon request made pursuant to s 231(3).
• [40] Accordingly, it will be necessary to look to what is disclosed in the materials before the Court for any indicia of errors contended by the Applicant.

• [41] Before turning to consideration of the purported errors, it is convenient to note what are characterised by the Second Respondent as threshold difficulties for the Applicant.
• [42] It is convenient to commence with what is described, by the Applicant, as the second threshold difficulty,[105] and to note that it relates to what is noted for the Applicant as a fundamental disagreement as to the interpretation of the legislative framework including the Planning Scheme, as to what is required as to consideration of the assessment benchmarks.[106] This issue is discussed below in the context of examination of the purported errors.
• [43] The Second Respondent's first contention is that the approach of the Applicant is "unsound at law", in that whilst the AOA does seek that both the negotiated decision notice issued on 12 September 2019 and the notice of approval of the minor change to conditions issued on 30 July 2020 be declared invalid and of no legal effect (with consequential orders setting aside each of the decisions of 30 April 2019 and 10 September 2019 approving the development, the decision of 12 September 2019 to issue the negotiated decision notice and the decisions of 23 July 2020 and 30 July 2020, to, respectively, approve and issue a decision notice approving the minor change application for the development and remitting the matter to council for reconsideration according to law), no specific error is alleged in respect of the minor change decision. Rather, the purported errors are sought to be identified in respect of the earlier decisions, with it being pointed out that "all the applicant says about the minor change approval is that it did not "remedy" errors that it alleges arises on the original decision and negotiated decision".[107]
• [44] On the hearing of the application, for the Applicant, particular reference was made to the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj,[108] in support of the proposition that a later decision may serve to correct and error in an earlier decision or decision making process. However, the passages to which reference is made relate to respectively expressed views as to the legal effect of an administrative decision afflicted by jurisdictional error and the ability of the decision maker in such circumstances to revisit and remake the decision. For the reasons to follow, that is neither what the Applicant asserts nor what happened in the present case.
• [45] As may be accepted and is consistent with the approach of the Applicant in seeking relief in respect of the approval constituted by the decision notice issued upon the decision as to the minor change Applicant, it is that approval which is extant and may be given effect by the Second Respondent. This follows from an understanding that pursuant to the PA:

(a) Division 1 of Part 5 deals with the effect of a development approval, which is generally provided (subject to the expressed exceptions, largely concerned with the appeal period) as being from the date the approval is given;

(b) by s 73, while an approval is in effect, it attaches to the premises and binds the owner, the owner's successors in title and any occupier of premises;

(c) by s 49(1), "a development approval" is defined to include a "development permit" which is defined in s 49(3) as "the part of a decision notice for a development application that authorises the carrying out of assessable development to the extent stated in the decision notice." By s 49(6) and in that section,

(c) a negotiated decision notice other than a negotiated decision notice for a change application"

Further, it is noted that by s 49(5), it is provided that

"(5) In this Act, a reference to a development approval -

(a) means the development approval as changed from time to time; and

(b) includes the development conditions imposed on the approval."

And also that "development application" is defined in Schedule 2 as meaning "an application for a development approval";

(d) whilst there is express provision in s 76(4) that a negotiated decision notice replaces the decision notice (as to which the change representations are permitted by s 75(1)) for the development application, it is to be noted that s 75(3) states:

"A development permit is the part of a decision notice for a development application that authorises the carrying out of the assessable development to the extent stated in the decision notice."; and

(e) there is no such express provision in respect of a change application permitted by s 78. That is, an application to "change a development approval", which as far as it is for a minor change to a development approval, is assessed in accordance with s 81 and determined pursuant to s 81A(2):

"(2) After assessing the change application under section 81, the responsible entity must decide to -

(a) make the change, with or without imposing or amending development conditions in relation to the change; or

Further, the requirement for a decision notice to be given about the decision on a change application pursuant to s 83(1) is to be in accordance with ss 83(3) and (4):

"(3) If there is no affected entity for the change application, the responsible entity must decide the application within 20 business days after receiving the application.

(4) If there is an affected entity for the change application, the responsible entity -

(i) the responsible entity receives a pre-request response notice, or response notice, from the affected entity; or

(ii) the end of 20 business days after receiving the application; but

(b) must decide the application within 25 business days after receiving the application."

• [46] Accordingly, it may be seen that there is a nexus or relationship recognised in respect of the existing approvals for which change representations and change application is permitted and requirement that the permitted change be identified in reference to the approval which is changed. Moreover, there is no requirement that there be reconsideration of the basis upon which the earlier approval was given, except as far as is relevant to the assessment of the requested change:

(a) as far as the position in respect of change representations is concerned, s 76(1) provides:

"The assessment manager must assess the change representations against and having regard to the matters that must be considered when assessing a development application, to the extent those matters are relevant."; and

(i) for a minor change pursuant to s 81(2)(da), consideration must be given to

"all matters the responsible entity would or may assess against or have regard to, if the change application were a development application"; and

"The responsible entity must consider the statutory instrument, or other document, as in effect when the development application for the development approval was properly made."

• [47] Therefore, the contention raised for the Second Respondent that the Applicant has not "explained how, at law, it can challenge earlier decisions of the Council that resulted in approvals that are no longer in force, in a way that results in the invalidity of a later decision and development approval, that is extant"[109], is understanding the identified nexus or relationship of the decisions to which reference is made and the Applicant's contention that the purported errors indicate that, in effect, all of the approvals are premised upon a failure of the Council to address the right question in relation to the assessment benchmarks, particularly as such errors have not been corrected in the subsequent change decisions.[110] By way of contrast, there is express acknowledgment that the effect of the changes permitted upon the minor change application did remedy the originally contended errors as uncertainty in conditions in the negotiated decision notice.[111]
• [48] For these reasons, it should not be accepted, as contended for the Second Respondent,[112] that absence of contention that "the minor change decision is, of itself, infected with legal error, is a significant discretionary factor that favours the Applicant not being granted the relief it seeks, even if legal error is demonstrated with either the original decision or the negotiated decision".
• [49] As far as it may be necessary to do so, any such discretionary considerations in denial of the relief sought by the Applicant will be considered after determination of any purported error which might engage such relief.

• [50] As has been noted, the Applicant's contentions are summarised in the issues to be considered as "failing to properly consider or misconstruing" the three particularised benchmarks. More particularly and as contended in the AOA, the contentions are that:

(a) "31A. The Council's original decision and negotiated decision were affected by jurisdictional error and errors of law, and the procedures that were required by law to be observed in connection with the making of the decisions were not observed by:

(a) failing to take into account a relevant consideration by failing to consider the assessment benchmark stated in the overall outcome in s 8.2.5.2(2)(i) of the Coastal Protection Overlay Code of the planning scheme, namely:

"development adjacent to beachfront areas is located and designed to protect the character of the beachfront when viewed from the beach and integrates with the surrounding natural landscape and skyline vegetation."

(b) erroneously construing the assessment benchmarks in the Coastal Protection Overlay Code and, consequently, the assessment benchmarks for the purposes of ss 60(2) and 76(1) of the PA, as not requiring the development adjacent to beachfront areas to be located and designed to protect the character of the beachfront when viewed from the beach and integrating with the surrounding natural landscape and skyline vegetation."[113];

(b) "24. The Council's original decision and negotiated decision were affected by jurisdictional error and errors of law, and the procedures that were required by law to be observed in connection with the making of the decisions were not observed by:

(a) failing to take into account a relevant consideration by failing to consider the assessment benchmark in P012 of the Coastal Protection Overlay Code and, in particular, whether the development maintains or enhances coastal ecosystems including turtle nesting habitat on Buddina Beach;

(b) erroneously construing the assessment benchmarks in the Coastal Protection Overlay Code as only involving considerations of coastal hazards such as erosion and storm surge and not considering it to require the development to maintain or enhance coastal ecosystems including the nesting habitat on Buddina Beach; and/or

(c) erroneously construing P012 and, consequently, the assessment benchmarks for the purposes of ss 60(2) and 76(1) of the PA, on the basis that it could approve impacts on turtles due to light from the development by imposing conditions that mitigated these impacts the assessment benchmarks required impacts of the development on coastal ecosystems merely to be reduced and mitigated, rather than, as required by PO12, maintaining or enhancing the coastal ecosystems, including for turtles."[114]

(c) "30. The original decision and the change negotiated decision were affected by an error of law that 'it is also a feature of the zoning of the site that there is no express protection reflected in the relevant use code [the High Density Residential Zone Code of views for surrounding properties].'

31. That was an error of law as s 6.2.3.2(2)(f)(iii) of the High Density Residential Zone Code required development to ensure that there is no unreasonable loss of amenity for surrounding premises having regard to impacts upon views and vistas." [115]

• [51] The further contentions in respect of these errors are that:

"32 As a consequence of the errors set out in the preceding grounds, the original decision and the change negotiated decision were affected by legal error and jurisdictional error in that;

(a) the procedures that were required by law to be observed in connection with the making of the decisions were not observed;

(b) the making of the decisions involved improper exercises of the power conferred by the enactment in pursuance of which it was purported to be made, including by:

(i) failing to take a relevant consideration into account in the exercise of a power;

(ii) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and/or

(c) the decisions involved an error or errors of law."[116]

• [52] However, the real sense in which the grounds of review were pursued for the Applicant are to be found in the stated references to the following observations as to applicable principles:

(a) as emphasised in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[117] the ground of judicial review as to failure to take into account relevant considerations can only be made out by demonstrated failure to take into account something the decision-maker was bound to take into account in making the decision, as construed from the relevant legislation including its subject matter and purpose. Here the contention is that in each case there has been failure to consider 'the assessment benchmarks' which 'are clearly mandatory considerations under s 60(2) of the PA;[118]

(b) "where an administrative decision-maker is under a duty but misconceives the nature of the duty or has not applied themselves to the question which the law prescribes their decision or action may be set aside";[119] and

(c) in further elucidation of the seminal statement from Craig v South Australia,[120]

(i) "... there is said to be a 'constructive failure to exercise jurisdiction' when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

... it may be that the failure of the Tribunal to take a particular matter into account indicates that, in the circumstances, the Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required ...

... the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. ..."[121]

(ii) "If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground [of error of law] is made out." [122]

(iii) "For the reasons which follow, the error of law the appellant identified was a jurisdictional error. The tribunal failed "to apply itself to the real question to be decided or [misunderstood] the nature of the opinion it [was] to form"[123]

(iv) "... empowering legislation can show that a tribunal's identification of what it considered to be relevant matters may demonstrate that it asked itself the wrong question, as explained [by Gaudron J at [69]] in Yusuf. Equally, it may demonstrate that a tribunal has misconstrued its functions and powers to decide, by taking into account matters which are irrelevant given the language of the empowering provision and the scope and purpose of the whole Act. Either form of error requires the impugned decision to be set aside; [124]

(v)"[24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction.

[27] Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute." [125]

As is correctly noted for the Applicant, "... the Court's jurisdiction is limited to determining whether the Council's decision-making process was lawful within the confines of normal judicial review .... [and] does not extend to reviewing the merits .... of the Council's decision". [126] It is also noted that there is no ground raising any question as to the reasonableness of any decision.

• [53] The approach to interpretation of a planning scheme, is as set out in Zappala Family Co Pty Ltd v Brisbane City Council.[127] The same principles which apply to statutory construction are applicable, with allowance for a common-sense approach in reading the documents in a practical way, as a whole and as intending to achieve a balance between outcomes. Whilst bearing in mind the need to consider context and purpose from the outset, "the correct approach to statutory interpretation must begin and end with the text itself".[128]
• [54] As was noted in respect of the Second Respondent's contentions as to "threshold issues", there is disagreement as to a construction issue, which the Applicant seeks to characterise as being "at the heart of both the proponent and Council's case".[129] As noted for the Applicant,[130] the contention in issue is expressed as follows in the Second Respondent's statement of facts, matters and contentions:[131]

"(a) under the tables of assessment in Part 5 of the Planning Scheme, assessment benchmarks for development are identified by reference to entire codes, not provisions (eg particular OOs or POs) within codes;

(b) under section 5.3.3(3)(a)(iii) of the Planning Scheme, development will comply with an applicable code if it complies with either:

(c) accordingly, each individual provision within a code is not an assessment benchmark in its own right, and there is no requirement that development comply with each individual provision within a code."

• [55] At the outset, it must be said that as demonstrated for the Second Respondent, an approach which particularly engages provisions equivalent to s 5.3.3(3)(a)(iii) of the Sunshine Coast Planning Scheme 2014 ("SCPS 2014") is to be found in many decisions of this Court.[132]
• [56] The references to "OOs", "POs" and "AOs" in the extract above, refer respectively to:

(a) "overall outcomes", as they are typically expressed initially in any code under a planning scheme, under a heading "Purpose and overall outcomes"; and

(b) "performance outcomes" and "acceptable outcomes", as they may be typically expressed in tabular form, in more particular elucidation of the purposes and overall outcomes sought to achieved by a particular code.

• [57] It is well-recognised that acceptable outcomes are to be regarded as just that and do not further inform or limit the assessment of a performance outcome to which they are applicable. Further and notwithstanding an acceptable view that the purpose and overall outcome requirements of a code should not be logically regarded as an alternative to satisfaction of relevant performance outcomes,[133] that is not the established position in respect of the provision in the SCPS 2014. Section 5.3.3(3)(a) of the SCPS 2014 relevantly provides:

"(3) The following rules apply in determining assessment benchmarks for assessable development -

(a) assessable development requiring code assessment-

(i) must be assessed against all of the assessment benchmarks identified in the "assessment benchmarks for assessable development and requirements for accepted development" column;

(A) the purpose and overall outcomes of the code complies with the code;

(B) the performance outcomes or acceptable outcomes of the code complies with the purpose and overall outcomes of the code; and

(iv) is to be assessed against any assessment benchmarks for the development identified in section 26 of the Regulation;"

• [58] The contention of the Second Respondent that the "assessment benchmarks for development are identified by reference to entire codes not provisions...within codes", is referenced to the tables in Part 5 of the Scheme which follow s 5.3.3 and which serve to "identify...the category of development, the category of assessment and the assessment benchmarks for assessable development within the planning area".[134]
• [59] The Applicant contends that:

"Properly read in context and as a whole, to carry out the statutory task required by s 60(2) of the PA, the Council was required to determine whether the application 'complies with all of the assessment benchmarks' or 'does not comply with some of the assessment benchmarks'. That statutory task is evaluative. It cannot be performed without considering the content of what the assessment benchmarks are. Here, this requires consideration of each relevant, individual assessment benchmark within the codes identified in Table 5.5.3."[135]

Here, there are two such codes identified as providing assessment benchmarks, which remain in contention: the "High density zone code" ("HDRZ Code") and the "Coastal protection overlay code ("CPO Code").

• [60] The Applicant's contention is developed as follows, in that:

(i) the plain language in s 60(2)(a) of the PA, that the application "complies with all of the assessment benchmarks for the development"; and

(ii) a holistic reading of the language in s 5.3.3(3)(a)(i) and (iii) of the SCPS 2014;[136]

(ii) to do similarly in the statement in the HDRZ Code that:

"all provisions of this Code are assessment benchmarks for applicable assessable development";[137] and

(iii) to do similarly "to the substance of the CPO Code"[138] contending that despite the absence of use of the word "all", "clearly that is the intended effect (i.e. each purpose and overall outcome and each PO and AO is an assessment benchmark)".

(c) In addition, the opposing construction of s 62 and the planning scheme "does not advance and will not 'best achieve' the purposes of the PA or the planning scheme" contrary to s 14A of the AIA.[139]

More generally,[140] it is contended that there "is no real benefit" in the opposing construction and that it confuses and conflates:

"... the initial question of whether the application 'complies with all of the assessment benchmarks' with the subsequent discretion to approve an application even if it does not comply with all of the assessment benchmarks."

In the latter respect, reference is made to s 60(2)(b) of the PA, which provides:

"(2) To the extent the application involves development that requires code assessment, and subject to section 62 , the assessment manager, after carrying out the assessment -

(b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

1 An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks.

2 An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency's response."

• [61] This reasoning is then developed in respect of contending for an inference of failure to have regard to specific assessment benchmarks or misconstruction of such a benchmark, by particularly noting that it is clear from the original decision approving the application, that the Council did not act pursuant to s 60(2)(b).[141] However and what these submissions do not expressly engage is the additional considerations of s 60(2)(d), which allows that the assessment manager:

"(d) may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.

_Example of a development condition for paragraph (d) - _

a development condition that affects the way the development is carried out, or the management of uses or works that are the natural and ordinary consequence of the development, but does not have the effect of changing the type of development applied for"

And it may be seen that such considerations are expressly engaged in the passages in the reasons, to which specific reference is made:[142]

(a) In the First Respondent's public "Notice about Decision - Statement of Reasons", given in respect of the original decision, pursuant to s 63(5) of the PA,[143] under the heading "Reason for Approval despite Non-Compliance with Assessment Benchmarks", the entry is: "not applicable". However, under the heading "Reasons for the Decision", there is the following:

Subject to the imposition of the development conditions contained within the Decision Notice, the development is able to comply with applicable Assessment Benchmarks against which the application was required to be assessed."

(b) In the Statement of Reasons provided pursuant to s 33(1) at the JRA for the original decision and dated 27 June 2019, it is stated:

"Given that code assessment undertaken for the Development Application determined that it either complied with all relevant assessment benchmarks or could otherwise be conditioned to comply, Council was required to approve the Development Application under s 60(2)(a) of the Planning Act and was unable to refuse the Development Application pursuant to s 60(2)(d) of the Planning Act."[144]

• [62] Accordingly, it will be necessary in any determination of the conclusions or inferences which the Applicant pursues, to have regard to the conditions imposed in respect of the First Respondent's decision, in the sense of any indicia of attention being paid to achieving compliance with those aspects of the HDRZ code and the CPO code which are in issue.
• [63] Moreover, the construction issue is not to be determined as contended for the Applicant. The difficulty with that contention stems from understanding that the reference to "assessment benchmarks" in s 60(2) of the PA, are informed by reference to s 43 of the PA, which relevantly provides:

(1) A categorising instrument is a regulation or local categorising instrument that does any or all of the following -

(a) categorises development as prohibited, assessable or accepted development;

(b) specifies the categories of assessment required for different types of assessable development;

(c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.

(b) a person's circumstances, financial or otherwise; or

(c) for code assessment - a strategic outcome under section 16(1)(a); or

a code, a standard, or an expression of the intent for a zone or precinct

It is to be particularly noted that s 43(1)(c) provides that the assessment benchmarks may, (as is only relevantly in issue here) be set out in a planning scheme "as the matters...that an assessment manager must assess assessable development against". Accordingly, it follows that the reference in s 60(2)(a) to compliance with "all of the assessment benchmarks for the development" must necessarily be as to those which the categorising instrument sets out as requiring assessment for such compliance.

• [64] The issue is not determined by references to the assessment benchmarks:

(a) as "a code" in the examples to s 43(2);[145] or

(b) in terms of reference to particular codes in the tables in Part 5 of the SCPS 2014. Clearly, the codes to which reference is made is a means of identification of the assessment benchmarks and is practically meaningless, except as a means of description, without regard being had to the contents of those codes. Further, and as may be demonstrated by reference to each of the codes which are in issue here, there are specific instructions in each and as to how each is to be applied in the assessment process;

(a) within the High density residential zone as identified on the zoning maps contained within Schedule 2 (Mapping);

(b) identified as requiring assessment against the High density residential zone code by the tables of assessment in Part 5 (Tables of assessment).

(2) All provisions in this code are assessment benchmarks for applicable assessable development."[146]

Notably, the HDRZ code then contains only provisions under the heading "purpose and overall outcomes", without any performance or acceptable outcomes being provided; and

"(1) This code applies to accepted development and assessable development:-

(a) subject to the coastal protection overlay shown on the overlay maps contained within Schedule 2 (Mapping);

(b) identified as requiring assessment against the Coastal protection overlay code by the tables of assessment in Part 5 (Tables of assessment).

(2) The acceptable outcomes in Table 8.2.5.3.1 (Requirements for accepted development) are requirements for applicable accepted development.

(3) The following provisions of the code are assessment benchmarks for applicable assessable development:-

(a) section 8.2.5.2 (Purpose and overall outcomes); and

(b) Table 8.2.5.3.2 (Performance outcomes and acceptable outcomes for assessable development)."[147]

This code does also contain performance and acceptable outcomes.

• [65] It is then to be noted that s 5.3.3 is also contained within Part 5 of the SCPS 2014, which is introduced by the following:

(a) the category of development, the category of assessment and the assessment benchmarks for assessable development within the planning scheme area..."[148]

Some things may then be noted in respect of the rules stated, in s 5.3.3(3)(a),[149] to "apply in determining assessment benchmarks for assessable development.....requiring code assessment":

(a) as may (perhaps unnecessarily, in a grammatical sense) be noted from the interpretive provision in s 1.3.3(1),[150] the use of a semi-colon as punctuation with or without the word "and" after each of the sub-paragraphs "is to be considered to be "and"; and

(b) sub-paragraph (i) is to be noted as addressed to the identification of the assessment benchmarks in the particular column of the subsequent tables, where such are identified by reference to the heading of particular codes.

• [66] Accordingly and upon a holistic, practical and common-sense approach to these provisions, in the context of the PA, it is clear that these rules do inform the assessment process, both as to what assessment benchmarks are to be considered and as to how compliance with those benchmarks in a particular code may be determined. The insistence in sub-paragraph (i) upon "assessment against all of the assessment benchmarks" is clearly referable to assessment against all of the codes to which relevant reference is made in the tables. As to the assessment of the contents of each relevant code, there is the separately stated rule in s 5.3.3(3)(a)(iii), which, despite the cumbersome language, clearly has the effect which has been well-recognised in this Court.[151]
• [67] Some more pragmatic difficulties may also be noted as to this construction issue, in the circumstances of this case. First, it can have no application or influence in respect of the purported error in respect of the HDRZ Code because of the absence of any performance and acceptable outcomes and the stated requirement for assessment against all of the provisions of that code. Secondly and in respect of the different position under the CPO Code, it is to be noted that there are two separate purported errors, one relating to an overall outcome and the other a performance outcome. Accordingly, there is a prospect that the Applicant may establish both or neither of these errors, as well as one or the other.
• [68] Therefore and for all of these reasons, it is necessary to consider each of the purported errors. Each of them is premised upon consideration of the assessment reports prepared for and available for each of the First Respondent's decisions and the reasons given for each decision ("the assessment reports and reasons").[152] In particular:

(a) the detailed assessment report, dated 8 February 2019, before the First Respondent in making the original decision;[153]

(b) the First Respondent's public notice and statement of reasons about the original decision and negotiated decision (undated), prepared in accordance with ss 63(5) and 83(9) of the PA;[154]

(c) the First Respondent's statement of reasons dated 27 June 2019, pursuant to s 33(1) of the JRA for the original decision;[155]

(d) the First Respondent's statement of reasons for the negotiated decision notice, dated 17 October 2019;[156]

(e) the detailed assessment report, undated, before the First Respondent in approving the minor change application;[157]

(f) the minutes of the meeting on 23 July 2020 in which the minor change application was approved;[158]

(g) the First Respondent's statement of reasons, dated 28 August 2020, for the minor change application.[159]

Assessment of the High density residential zone code

• [69] The contended error is in failing to properly consider or misconstruing the benchmark in s 6.2.3.2(2)(f)(iii) of the HDRZ Code. In immediate context that provision is as follows:

"(1) The purpose of the high density residential zone code is to provide for medium and high density residential activities generally in a medium rise format, predominantly comprising multi-unit residential uses for permanent residents supported by community activities and small-scale services and facilities that cater for local residents

(2) The purpose of the High density residential zone code will be achieved through the following overall outcomes:-

(f) development ensures that there is no unreasonable loss of amenity for surrounding premises having regard to:-

(i) microclimate impacts, including the extent and duration of any overshadowing;

(iv) building massing and scale relative to its surroundings."[160]

• [70] In the first instance, the Applicant's contention is that none of the assessment reports and reasons demonstrate that the First Respondent was aware of or properly considered this assessment benchmark. Secondly and in support of the alternative contention of misconception as to this benchmark, attention is drawn to the following extract from the detailed assessment report which was before the First Respondent for the original decision.[161]

"There are no provisions in the Multi-unit residential uses code which specifically protect views for surrounding properties as it is an established planning principle that a landholder has no proprietary right to a view, even though the view may have value. In this instance, it is also a feature of the zoning of the site there is no express protection reflected in the relevant use code. Notwithstanding, the amenity of these properties has been considered and it is recommended that an increase in the southern building setbacks (to a minimum of 4.5m for the entire building facade) is a reasonable outcome which will assist in protecting privacy, retaining views and providing sufficient separation such that the external living areas of the southern neighbours continue to be adequately protected and able to be enjoyed by these residents following construction of the development."[162]

(a) this extract contained the expression of an erroneous position in respect of views; with particular reference to the observation: "it is also a feature of the zoning of the site that there is no express protection reflected in the relevant use code;[163]

(b) whilst this assertion was not adopted in any reasons given by the First Respondent, neither was it corrected;[164] and

(c) "the Council staff in the Detailed Assessment Report did not merely fail to refer to the assessment benchmark stated in s 6.2.3.2(2)(f)(iii) of the HDRZ Code that there is no unreasonable loss of amenity for surrounding premises having regard to impacts upon views and vistas, they operated under the error of law that 'a feature of the zoning of the site that there is no express protection reflected in the relevant use code'. The later conclusion that 'a reasonable outcome' had been achieved was tainted by this error."[165]

• [71] As is further noted by the Applicant,[166] in the reasons given by the First Respondent pursuant to s 33(1) of the JRA, dated 27 June 2019, there was the following:

"Council determined that subject to the imposition of reasonable and relevant conditions within the decision notice, the Development Application was able to comply with the assessment benchmarks of the Applicable Codes. The following points detailed Council's reasoning in respect of each of the Applicable Codes"[167]

Further, the HDRZ Code was identified as containing relevant assessment benchmarks, with the following being observed:

(A) table 6.2.3.2.2 of the Planning Scheme relevantly provides that both the multiple dwelling units and shop (corner store) uses were consistent uses within the High density residential zone; and

(B) the proposal was determined to comply with the Overall Outcomes and Performance Outcomes of the High density residential zone code by, amongst other things, positively contributing to the streetscape so as to avoid any loss of residential amenity, particularly when it is accepted that the loss of certain views is unavoidable in the High density residential zone."[168]

• [72] As is pointed out by the Respondents, this contention seeks to unduly single out the issue of impacts on views and vistas. The question to be addressed pursuant to s 6.2.3.2(2)(f) is a broader one. It is concerned with whether there is considered to be "unreasonable loss of amenity for surrounding premises having regard to" a number of considerations, one of which is "impacts on views and vistas".
• [73] Further, and as the Second Respondent contends, matters relating to or impacting on surrounding amenity also arose for consideration under other assessment benchmarks and may be seen as reflected in the reasons noted as to compliance with those benchmarks. In particular, the Multi-unit residential uses code[169] and the Height of buildings and structures overlay code.[170] Such positive findings as to the nature and compliance of the development with other criteria touching upon issues of loss of amenity for surrounding premises, tell against any implication that this negatively expressed benchmark was not addressed.
• [74] It is difficult to see that the passage noted from the assessment report does assist the Applicant at all. Irrespective of what conclusion is reached about the accuracy of the statement as to any proprietary rights to views, it is directed at the provisions of a different code: the Multi-unit residential uses code. And that passage proceeds, in any event, to note that amenity issues were given consideration with a recommendation as to a setback issue in respect of the southern building, which was noted as "a reasonable outcome which will assist in protecting privacy, retain views and the setback of the southern building".
• [75] More importantly and in the reasons of the First Respondent, when expressly dealing with the HDRZ Code, there is not only the initial general statement as to compliance but also specific notation of there being positive contribution "to the streetscape so as to avoid any loss of residential amenity, particularly when it is accepted that the loss of certain views is unavoidable in the High density residential zone".
• [76] These circumstances do not give rise to any implication that the first respondent has not considered this assessment benchmark, nor that there has been any misconception as to what was required as to compliance with it, or any relevant reviewable error in respect of it.
• [77] Alternatively, and in the context of what has been noted as to what the First Respondent did note as to its consideration of the potential impact of the development on views, and were it otherwise determined that there had been a failure to specifically or properly have regard to this aspect of the assessment benchmark, it would be appropriate to conclude that any such error was not material in the sense that it could not have resulted in any different decision.

Assessment of the Coastal Protection Overlay Code

• [78] In the first instance, the Applicant contends that none of the reasons given by the First Respondent demonstrate that it was aware of or properly considered the assessment benchmark set out as an overall outcome in s 8.2.5.2(2)(i):[171]

"development adjacent to beachfront areas is located and designed to protect the character of the beachfront when viewed from the beach and integrates with the surrounding natural landscape and skyline vegetation."

• [79] Leaving aside any weight which might be given to the broad expressions of position in the First Respondent's reasons, as to consideration of each of the assessment benchmarks in the relevant codes (as has been noted),[172] it is also noted that the specific reference to the CPO Code in the statement of reasons for the original decision, is as follows:

• (A) the proposal was determined to effectively protect people and property from coastal hazards in accordance with Overall Outcome 2(a); and
• (B) could otherwise be made to comply with the Coastal protection overlay code through the imposition of reasonable and relevant conditions (see conditions 36 to 37 of the decision notice granted 8 May 2018)."[173]
• [80] However and as contended for the Respondents, issues in respect of the design and character of the development and its integration with its surrounds arose in respect of assessing other benchmarks as well, including the Kawana Waters Local Planning Code. As is noted as unchallenged in this matter,[174] the development is assessed as complying with this Code, which allows for higher density residential accommodation where, as this development is to be, located in a local area precinct which allows for such development. It is also correctly noted that as provided in s 7.1(2) of the SCPS 2014,[175] "Local Plans organise the planning scheme area at a local level and provide more detailed planning for the zone".
• [81] Further, it may be noted that the Council Officers report for the original decision specifically addressed PO1 of the Kawana Waters Local Planning Code as follows:[176]

"In terms of the overall provisions of the code, PO1 provides that development provides for buildings, structures and landscaping that are consistent with and reflect and enhance the coastal urban character of the Kawana Waters local plan area.

The proposed development represents a high quality architecturally designed building which is appropriate for the coastal context. It incorporates subtropical design and an articulated building façade including sun shading, timber design elements and integrated landscaping. These elements are evident throughout the local plan area and the proposal is considered to be consistent with this element of the local character."

• [82] As far as the CPO Code is addressed in that report, it is only specifically addressed, as it is in the reasons noted above, in respect of coastal hazards and its location within "the declared erosion prone area." However, that is to be properly understood in terms of identification matters which were to be considered upon assessment as requiring conditions to be imposed pursuant to s 60(2)(d) of the PA, so as to achieve compliance.[177] It was also specifically noted that the building complied with the 21m height limit in the applicable Height of Buildings and Structures Overlay Code.[178]
• [83] For the Respondents, attention is also drawn to the conditions imposed in respect of the character of the proposal and to effect integration with existing natural landscapes and vegetation.[179]
• [84] Whilst there are these contextual considerations to the assessment conducted as to the benchmarks in the CPO Code, the position in respect of that aspect of the assessment conducted by the First Respondent remains, as has been noted, in only general terms and it must be said without any specific notation of consideration of the perspective "when viewed from the beach".
• [85] However and in the circumstances, it should not be accepted, as submitted by the Applicant that:

"Council could only have reached the conclusion that the 'development is able to comply with the applicable Assessment Benchmarks' if it was unaware of, or did not consider, or misconstrued the assessment benchmark stated in s 8.2.5.2(2)(i) of the CPO Code."[180]

The reasoning towards this conclusion is submitted as follows:

"Without descending into the merits, it is objectively clear from the 3D renders of the proposed development viewed from the beach, shown above in Figures 5 and 6, that the proposed development will be very visible above the skyline vegetation when viewed from Buddina Beach. It is a large, box or brick shape that does not reflect the natural skyline vegetation at all. Given this, it cannot be said that the development is 'designed to protect the character of the beachfront when viewed from the beach' or that it 'integrates with the surrounding natural landscape and skyline vegetation.' Nothing in the conditions changes this."[181]

• [86] The essential difficulty with the submission is firstly that it does invite descent into the merits of the character and extent of integration of the building with its environs, when so viewed from the beach. For the reasons already noted, this is not an appropriate basis for the grounds of review which are pursued. And secondly and more particularly, the feature which is particularly emphasised is the expected visibility of the higher part of the building from the beach. That must necessarily be a reflection of the permitted height of the building in the location and not as something that so detracts from any sense of protection of the character of the beachfront or in integrating with the surrounding natural landscape and skyline vegetation, that it should be concluded that the First Respondent failed to have regard to, or misconstrued, the assessment benchmark in s 8.2.5.2(2)(i) of the CPO Code, or made any relevant reviewable error in respect of it.

• [87] The other contended error in respect of assessment of the CPO Code is in respect of the PO12 in Table 8.2.5.3.2 of that Code, which provides as follows, under the heading "Protection of Sand Dunes and Coastal Creeks":

(a) maintains dune crest heights and minimises and mitigates the risk to development from wave overtopping and storm tide inundation; and

(b) maintains or enhances coastal ecosystems and natural features such as coastal creeks, mangroves and coastal wetlands, particularly where these features protect or buffer communities and infrastructure from sea-level rise and coastal inundation impacts."[182]

• [88] This contention also proceeds upon an underlying premise that there is no express reference to this PO in the assessment reports and reasons of the First Respondent, apart from considerations relating to coastal hazards (including erosion and storm surge), as is reflected in PO12(a). Particular emphasis is placed upon the consideration in PO12(b) that "[d]evelopment ... maintains or enhances coastal ecosystems." And as was not put in issue on this application and the subject of considerable attention in the entire assessment process through to and including the minor change approval, the ecosystem in point is that relating to or including turtle nesting on Buddina Beach.
• [89] The contention here is as to a conclusion as to misconstruction of this benchmark, given the emphasis which is placed upon the use of the words "maintains or enhances".[183] Although there is recognition of material and reasoning dealing with the potential impact of lighting related to the building, upon the turtle nesting, the ultimate submission is that:

"Reading the Council's statement of reasons fairly, the lack of reference to the standard or benchmark stated in PO12 and the conditions it imposed suggests that Council did not consider the assessment benchmark that the development must maintain or enhance the coastal ecosystem to meet all of the performance outcomes. Rather, Council appears to have proceeded on the basis that it could approve these impacts by imposing conditions that mitigated them, without necessarily maintaining or enhancing the coastal ecosystem."[184]

The Applicant seeks to engage the plain and ordinary meaning of these words. Given the alternate nature of the expression used in the benchmark, it is only necessary to refer to the meaning of "maintain", which for the Applicant is noted to be "cause to continue, keep up, preserve (a state of affairs, an activity, etc)" or "to keep in existence or continuance; preserve; retain".[185]

• [90] The contention as to reviewable error is then developed as follows:

"144. Given that lighting from the development shining toward the beach is acknowledged in the proponent's material as an adverse impact on turtles and responding to this impact must be the reason for the conditions about lighting such as 68-70, it is difficult to see how the conditions can do more than mitigate or reduce the adverse impacts of the development on the coastal ecosystem, rather than maintain or enhance. Even after the minor change application was approved, the conditions allow the automated opaque blinds to be open until 8pm. Logically (and without entering into the merits) the conditions allow some adverse lighting impacts to the coastal ecosystem to occur. In this sense, the conditions cannot be expected to "maintain or enhance the coastal ecosystem" in comparison to either the existing use of the land (4 single storey and 1 double storey residential houses) or development that was not visible from the beach and the nearby ocean, thereby not introducing a new source of light. The development will not keep the coastal ecosystem of the same quality (i.e. "maintain") or improve (i.e. "enhance) it for turtles. There will necessarily be damage to the coastal ecosystem for turtles, even through this damage will be reduced by the conditions imposed by Council.

145. There is no factual finding by Council in any of its statements of reasons that the development "maintains or enhances coastal ecosystems" and it appears that Council was unaware of or misconstrued this assessment benchmark.

146. Specifically in relation to the CPO Code, Council's statement of reasons for the original decision, quoted above at [142], treated the CPO Code as concerned only with coastal hazards.

147. Council's statement of reasons for the negotiated decision notice did not refer to P012 of the CPO Code but stated in relation to changes to condition 68 for turtle lighting that:

(i) Condition 68 in its original form relates only to minimising the impact of the development on turtle nesting:

(ii) The applicant's representation seeks amend condition 68 such that it also required the development to minimise its impact on turtle's sea finding behaviour and the ocean orientation of hatchlings:

(iii) Council agreed with the applicant's representation on the basis that the proposed amendment effectively imposed more stringent environmental controls upon the development.

148. The language of Council's reasons suggest it was unaware of the assessment benchmark requiring the application "maintain and enhance the coastal ecosystem". It appears that Council considered there was no such requirement and that the development only had to "minimise its impact" on the coastal environment."[186]

• [91] The final contention does not follow from the terms of condition 68, nor from the absence of any express reference to the requirement of PO12(b) in any of the reasons given by the First Respondent. Clearly the issue particularly identified in the Applicant's submissions, of potential impact of lighting associated with the development upon turtle nesting activity, was considered in the assessment of it. Indeed, it may be noted that:

(a) Condition 68 addresses this issue. It originally provided:

"To minimise the impact of development of the precinct on turtle nesting sites, the following actions are required to be undertaken during construction of the development:

(a) construction works are to be restricted to daylight hours during the turtle nesting and hatching season (October-May) in addition to any further restriction imposed as part of the Operational Works approval.

(b) Flood lighting must not be used from October-May (turtle nesting and hatching season)."[187]

(b) Other conditions are included under the heading "Ecology" and the subheadings "Turtle Lighting", "Land Rehabilitation" and "Fencing to Protected Land", all with particular reference to protection of turtle nesting activity.

(c) All of these conditions were re-considered in the negotiated decision,[188] and conditions 69, 70 and 73 were a subject of the minor change decision, with an additional condition 70A also then included.[189]

It is unnecessary to set these conditions out in full, as they are extensive and clearly directed particularly at the protection of the coastal ecosystem, as it includes turtle nesting activity near the development site. This extends particularly to the potential impact of lighting but also to requirements in respect of fencing and regulation of access to the beach and procedures for the purpose of informing occupants of the building as to the significance of the local ecology involving turtle nesting and the necessity for compliance with the conditions of approval for the purpose of protection of such activity, particularly by mitigation of the impacts of lighting.

• [92] Notwithstanding this clear focus upon this issue, the Applicant's contention focuses upon the use of language in these conditions and in the reasons given by the First Respondent, which is in terms of minimising such impacts. The argument is therefore that even if minimised, there remains impact and this is not addressing the requirement in PO12 that the ecosystem be, at least, maintained.
• [93] As has been noted, the contention is not to be accepted. The issue as to maintenance of coastal ecosystems in the assessment of a proposal for adjacent development must necessarily be as to the potential impacts of the development upon such ecosystem. Put another way, the requirement in PO12 read fairly and in context, is concerned with the maintenance of the ecosystem and not with the absolute avoidance of any potential impact on that ecosystem. Therefore, the fact that the approach is couched in terms of minimisation of such impacts is not necessarily inconsistent with addressing the maintenance of the ecosystem. And this may be seen here, in terms of how this issue was addressed in the overall assessment process:

(a) In the first instance, the First Respondent's assessment report for the original decision contained a separate section, under the heading "Turtle nesting beach/lighting impacts". After noting the incidence and importance of turtle nesting activity in the Buddina Beach locality and more generally on the Sunshine Coast it was noted:

"In 2014, the International Convention for Migratory Species (acting under the United Nations Environment Program) endorsed a Single Species Action Plan for the Loggerhead Turtle (Southwest pacific genetic stock). Delegates from the signatory state visited the Sunshine Coast during their deliberations on the plan, due to the region's importance as a future refuge for the Loggerhead turtle and made a number of recommendations in relation to lighting on the Sunshine Coast. These recommendations were included within Council's Sunshine Coast Lighting Master Plan which was endorsed by Council on 15 September 2016.

The Urban Lighting Master Plan sets the strategic guidance for public lighting. It also provides recommendations applicable to private developments.

Conditions are recommended regarding the positioning and operation of lighting, during construction and for the life of the development, to minimise any impacts on turtle breeding in accordance with the Sunshine Coast Lighting Master Plan.

Rehabilitation of the dune system in front of the development site is also recommended, to provide an improved physical light barrier between the development site and the beach.

These works would be required to be undertaken in accordance with an operational works approval and would include additional planting, weed management and exclusion fencing. Such works would comprise an improvement to the current conditions of spare vegetation and informal access tracks throughout this area.

Conditions are recommended which require the developer to undertake a pre-construction light survey on the beach directly in front of the proposed development. At all times, (including during the construction and operation of the development) it must be ensured that the existing established sky glow conditions (as established in the pre-construction light survey) are maintained. An as-built light survey is also required upon completion to demonstrate that the existing conditions are maintained."[190]

Subsequently in that report and in responding to matters raised in the community concerns which were raised about the development and the following is specifically noted:[191]

Impacts to a known turtle nesting beach from increased human disturbance, including light spill which may deter turtles or impact on turtle nesting.

Subject to conditions requiring preparation of a lighting management plan, the undertaking of pre/post construction lighting surveys and rehabilitation of the coastal dune system, it is the opinion of Council's specialist environmental staff that the proposed impacts on the turtle nesting beach can be appropriately managed.

(b) Subsequently and accompanying the representations in respect of the negotiated decision sought by the Second Respondent, there was inclusion of a letter under the hand of Mr John Thorogood described as a senior principal ecologist.[192] This was specifically directed to the issue of turtle nesting on the beaches of the Sunshine Coast, including at Buddina beach between November and March. There is notation of the recognised conservation status of the Loggerhead turtle, in particular, "as a driver for impact minimisation and mitigation". There is notation of the recognition of light pollution as a threat and that "the recovery plan for marine turtles in Australia (Commonwealth of Australia 2017) seeks to minimise such threats". The conclusions to that report are expressed as follows:

"Conditioning approved coastal development to both protect habitat critical to marine turtle nesting and to minimise the impact of development on turtle nesting and hatchling behaviour is justified, particularly noting the conservation status of the Loggerhead turtle.

Whilst the natural dunes and the vegetation they support, together with the set-back and set-down of the proposed development from the dunes and beach, affect a measure of mitigation - by - location, the proposed height of the development could result in light spill to the beach and inshore waters. Without appropriate mitigation, the proposed development could impact turtle nesting behaviour and the behaviour of emerging hatchlings.

Appropriate mitigations include the minimisation of light intensity and the use of appropriate luminaries through design, positioning, technology and operation. Educated residents may also play a role in minimising light spill to the dunes, beach and inshore waters.

The proposed amended conditions prescribe a suite of appropriate mitigation. Based on current understandings of turtle nesting and hatchling behaviour, it is considered highly likely that where the prescribed mitigations are adopted, the development will have no ecologically significant impact on turtle nesting and hatchling behaviour."[193]

(c) In the further assessment report prepared by the First Respondent, specific reference made to the engagement of "Council's ecologist" in consideration of those proposals.[194] And in the reasons for negotiated decision notice, it may be also noted that there is specific reference to the involvement of "an ecologist" as to the acceptability of proposed changes.[195]

(d) Further, and in terms of the subsequent minor change application as far as it related to the conditions addressing the turtle nesting issue, it may be noted that the Second Respondent's submission included a further letter from Mr Thorogood which relevantly indicated that he had reviewed the proposed condition amendments and observed:

"Further to my letter to you of 16 July 2019 and based on current understandings of turtle nesting and hatchling behaviour, it is considered highly likely that were the prescribed (amended) mitigations are adopted, the development will have no ecologically significant impact on turtle nesting and hatchling behaviour."[196]

In the Second Respondent's assessment report in respect of the change request the following is noted:

"Revised versions of 54, 63, 69, 70 and 73 (plus the new condition 70A) have been provided by the applicant, in consultation with their lighting and ecology experts. There is no change proposed to any of the other conditions which relate to lighting, and all conditions would continue to operate as a suite to ensure that post development sky glow levels do not exceed pre-development sky glow levels, and that all lighting would be managed to minimise light spill on to the turtle nesting area at adjoining Buddina Beach.

The applicant intends that the revised versions of conditions 54, 63, 69, 70 and 73 would replace the existing set and consider that as a whole, the revised conditions would be more robust and enforceable than the current set."[197]

In terms of the assessment of that request, it is noted that there was agreement in part, with the following observation:

"The intent of the applicant's proposed changes above is generally supported, particularly in its focus on automation to reduce reliance on human behaviour. Some notable inclusions in the above condition are the automation of the opaque blinds, and the use of motion sensing lighting in all outdoor lighting (including balcony lighting). The applicant has also committed to the use of motion sensing lighting year round (i.e.: not just in turtle nesting/hatching season). These proposed changes introduced new, more rigorous requirements and are considered by Council officers to be a considerable improvement to the original conditions."[198]

• [94] The conclusion to which the Court is driven is that the First Respondent did, in this context, address the question which is raised by PO12(b) and that the references to minimising the potential impacts on turtle nesting in the reasons, is reflective of the way in which the issue of maintenance of the ecosystem was addressed in the supporting materials.
• [95] Considered separately, it would not be appropriate to apply any alternative reasoning on the basis of materiality considerations arising in respect of any determined failure to address the question posed by PO12(b). However and in respect of any determination of failure to properly consider the specifically identified overall outcome and given what has been observed as to the obvious influence of the permitted height of the proposed building in the proposed location, it would, alternatively, be appropriate to conclude that any such error was not material in the sense that it could not have resulted in any different decision.
• [96] Further and if the position which was then reached was the identification of only an error in respect of PO12(b), the problem confronting the Applicant as to materiality considerations, would be what has been determined to be the operative effect of s 5.3.3(3)(a)(iii) of the SCPS 2014.[199] That may be observed to be to such that any error singularly as to consideration of PO12(b) would not be material, in the sense that it could lead to a different decision because of:

(a) the necessary conclusion that absent any error in respect of consideration of overall outcome 8.2.5.2(2)(i), no different conclusion could have been reached as to compliance with purpose and overall outcomes of the CPO code; and

(b) the absence of any contention that the overall outcome 8.2.5.2(2)(h) and as to which PO12 may be seen as an extension, was not appropriately considered. That overall outcome provides:

"(h) development protects water quality, coastal dunes and creeks, vegetation and biodiversity within coastal areas"[200]

• [97] It is, in these circumstances, unnecessary and largely undesirable to say anything further about the submissions for the Second Respondent as to discretionary considerations for denial of the relief sought by the application in the event that any contended error was established. Save to observe that:

(a) consistently with the availability of s 11 of the PECA to "[a]ny person", no objection was taken to the standing of the Applicant in bringing the AOA; and that the Applicant seeks to meet the contention of its unexplained interest,[201] by reference to its constitution, particularly as it includes the object of the pursuit of the:

2. To act as a forum for residents, ratepayers and friends of Buddina.

3. To encourage discussion and resolution of matters affecting the lifestyle, cultural heritage, amenity of life, livelihood, natural assets and the welfare of residents of the Buddina district.

4. Involvement in the maintenance, environmental protection and improvement of the area known as Buddina, in consultation with all levels of government and key stakeholders."[202]; and

(b) the reliance upon the evidence of its experts,[203] to demonstrate the appropriateness of the assessment undertaken by the First Respondent and outcomes achieved by the proposed development,[204] would be, at the very least, a doubtful basis for any such exercise of discretion, even allowing for what might be regarded as the breadth of the available discretion.[205]

• [98] Accordingly, the appropriate conclusion is that the Amended Originating Application is to be dismissed.

[1] An Originating Application was filed on 5 November 2019.

[4] As conveniently drawn from the written submissions of the Applicant, filed 23/11/20 at [7]-[32] ("Applicant's written submissions"), and of the Second Respondent, filed 23/11/20 at [9]-[22] ("Second Respondent's written submissions").

[5] Although the First Respondent contends that the original application was not properly lodged until 10 December 2018, it is properly conceded that this does not affect the issues in dispute, as noted in the First Respondent's Statement of Facts, Matters and Contentions, filed 22/9/20, at [1] and T 1-22.26-28.

[6] AOA, at p 2; Second Respondent's written submissions at [11].

[7] AOA, at p 2; Applicant's written submissions, at [7]; Second Respondent's written submissions at [9] and [12].

[8] Applicant's written submissions at [8] - [13]; Second Respondent's written submissions at [13] - [14].

[9] Book of Documents files 18/9/20 ("BD"), Doc 8, at p 103.

[11] BD Doc 8, at p 105; AOA, at pp 2-3; Second Respondent's written submissions, at [15].

[14] BD Doc 2, at pp 19-46; Applicant's written submissions, at [17].

[16] Applicant's written submissions, at [18]; Written submissions of the First Respondent, filed 26/11/20. at [2] ("First Respondent's written submissions"); Second Respondent's written submissions at [16].

[17] BD Doc 3, at pp 47-72; Applicant's written submissions, at [18].

[18] Affidavit of C M Spicer, filed 25/11/2020, at CMS-1 p 13; Applicant's written submissions, at [19]

[19] Applicant's written submissions, at [20]; Second Respondent's written submissions, at [17].

[20] First Respondent's written submissions, at [2b].

[21] BD Doc 10, at pp 171-196; Applicant's written submissions at [21]-[22]; Second Respondent's written submissions, at [18].

[22] BD Doc 4, at pp 73-75; Applicant's written submissions, at [24].

[23] BD Doc 11, at pp 197-205; Applicant's written submissions, at [25]; First Respondent's written submissions, at [19].

[24] Originating Application, filed 5/11/20, at grounds 25-29; Applicant's written submissions at [22]-[26], with the "turtle lighting conditions" identified at [23] as conditions 62-63 and 68-72 in the negotiated decision notice; Second Respondent's written submissions, at [19].

[25] BD Doc 12, at pp 206-219; Applicant's written submissions, at [27]: Second Respondent's written submissions, at [20].

[26] BD Doc 15, at p 266; Applicant's written submissions, at [28]; Second Respondent's written submissions, at [21]; First Respondent's written submissions, at [2c].

[27] BD Doc 16, at pp 267 - 294; Applicant's written submissions at [29]; Second Respondent's written submissions at [21].

[28] BD Doc 17, at p 295; Applicant's written submissions, at [30].

[30] Applicant's written submissions, at [32].

[31] Applicant's written submissions, at [34].

[33] As noted for the Applicant, this process is to be contrasted with that provided in s 45(5) of the PA for "impact assessment" and as has been the subject of particular discussion in Smout v Brisbane City Council [2019] QPEC 10; [2019] QPELR 684, at [54], Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, at [67]-[85], Brisbane City Council v YQ Property Pty Ltd [2020] 48 QLR, at [62] and Abeleda v Brisbane City Council [2020] QCA 257, at [52]-[62].

[35] Applicant's written submissions, at [50].

[37] Counsel for the First Respondent indicated that the First Respondent agreed with the list of issues in dispute provided by the Second Respondent when the matter was heard (see T 1-5.44-45).

[41] Applicant's written submissions, at [167].

[42] All such headings may be noted to be part of the Act: ss 14(1) and (2) of the AIA and also pursuant to s 35C of the AIA, part of "the provision to which it is a heading" and in both ways part of the context for the interpretation of any part of any provision of an Act.

[43] Such as is dealt with in the JRA.

[44] Applicant's written submissions, at footnote 57.

[45] [2016] QPEC 10; [2016] QPELR 334, at [5].

[46] [2000] QPEC 37; [2000] QPELR 386, at [20].

[47] Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520, at [55]-[57] and Di Marco v Brisbane City Council & Ors [2006] QPEC 35; [2006] QPELR 731, at [14].

[48] Wheldon & Another v Logan City Council & Another [2015] QPELR 640, at [18] and Birkdale Flowers Pty Ltd v Redlands City Council & Anor [2016] QPEC 4, at [47].

[49] See Applicant's written submissions at footnote 57.

[50] [2018] QPEC 46, at [68].

[51] (2019) QPELR 786, at [5] and [9].

[53] [2018] QPEC 46, at [68].

[54] The cited authorities are Eschenko v Cummins & Ors [2000] QPEC 37; [2000] QPELR 386, 389 [20]; Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334.

[55] Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46, at [4]-[5].

[58] Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46, at [59]-[60].

[59] Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46, at [61]-[63].

[60] Subsequently to what was noted as the terms of s 231 in Perivall, there have been amendments made to add a reference to s 316(2) of the PA as an exception to the operation of s 231(1), and by s 123 of the Economic Development and Other Legislation Amendment Act No 11 of 2019, the heading to the provision has changed from "Other appeals" to "Non-appealable decisions and matters".

[61] The Planning Bill 2015 was ultimately enacted from 25 May 2016 as the Planning Act 2016.

[62] See explanatory notes for the Planning Bill 2015, at p 155, under the heading "Other appeals" and in reference to cl 230.

[64] See explanatory notes for the Planning Bill 2015, at pp 155-156.

[65] See explanatory notes for the Planning and Environment Court Bill 2015, at p 16.

[67] [2016] QCA 19; [2017] 1 Qd R 13, at [40].

[68] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, at [68].

[69] [1995] HCA 58; (1995) 184 CLR 163, at 179.

[70] [2015] HCA 50; (2015) 327 ALR 8, at [23], per French CJ, Bell, Keane and Gordon JJ.

[71] Referring to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 175; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

[72] Ferreyra v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, at [7]; citing Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, at 391 and Australian Retailers Association & Ors v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, at [445]-[446].

[73] [2014] FCAFC 1; (2013) 249 CLR 332, at [68].

[74] (1936) 55 CLR 499 at 505.

[75] Ferreyra v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334 at [9]; citing Australian Retailers Association & Ors v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [376], [457]-[460] and [471].

[79] See Applicant's written submissions, at [100]-[101].

[80] See Second Respondent's written submissions at [47].

[81] Applicant's written submissions, at [162].

[82] [2019] HCA 3; (2019) 264 CLR 421 at [29]- [31], per Kiefel CJ, Gageler and Keane JJ (citations omitted).

[83] [2019] HCA 3; (2019) 264 CLR 421 at [73]- [74], per Edelman J (citation omitted), with whom Nettle J substantially agreed at [39]-[43].

[84] [2019] QCA 118; (2019) 1 QR 304.

[86] Ibid at [83]; citing Pfeiffer v Stevens (2001) 209 CLR 57, at [25].

[87] Having regard to s 4 of the AIA; see [2019] QCA 118; [2019] 1 Qd R 304, at [72]-[86].

[88] Applicant's written submissions, at [114]-[115]. More particularly, it is conceded that any deficiency in statement of the evidence relied upon in the earlier reasons, has been sufficiently remedied by the statement of reasons given under the JRA.

[90] Ibid, at [117]; citing the cases referred to in Sunland, at [99].

[91] See Minister for Immigration Local Government and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162, at 179.

[92] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272.

[95] [2015] QPELR 640, at [17]-[19]; First Respondent's written submissions at [3]-[5]; second respondent's written submissions at [27]-[30] and [32]-[33].

[96] See also Holcim (Aust) Pty Ltd v Brisbane City Council & Ors (2012) 190 LGERA 406, at [16] and the cases there cited.

[97] Applicant's written submissions, at [120].

[99] [2005] FCAFC 5; (2005) 141 FCR 385 at [54]- [55]. And also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at [5], [37] and [69].

[100] (2012) 190 LGERA 460, at [63].

[101] [2007] NSWCA 333; (2007) 161 LGERA 230, at [264]. See also Land Services of Coast and Country Inc v Chief Executive, Department of Environment and Heritage Protection & Anor (2016) 222 LGERA 122, at [21(d)], for endorsement of the passage drawn from Hill v Woollahra Municipal Council.

[102] Reference is made to Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736; (2006) 232 ALR 510, at [23] and [31]-[38] and Land Services of Coast and Country Inc v Chief Executive, Department of Environment and Heritage Protection and Anor (2016) 222 LGERA 122, at [13] and [21(b)] as examples of a decision-maker being permitted to supplement a statement of reasons with further explanation of the matters considered, in a later affidavit.

[103] Applicant's written submissions, at [126] citing Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39 at [42(c)].

[104] (2002) 190 ALR 601, at [25] per Gleeson CJ and also [118] per McHugh J, [197] per Kirby J and [229]-[230] per Callinan J.

[105] Second Respondent's written submissions, at [39]-[43]; See also the First Respondent's written submissions, at [27]-[28].

[106] Applicant's written submissions, at [62]-[66].

[107] Second Respondent's written submissions, at [35]; Applicant's written submissions, at [167]; and AOA, at [39], [41] and [43].

[108] [2002] HCA 11; (2002) 209 CLR 597, at [11]-[14], [51]-[54], [67], [147], [155] and [163]-[165]; See also Applicant's written submissions, at [54].

[109] Second Respondent's written submissions, at [38].

[110] Applicant's written submissions, at [167]. It may be observed that should the Applicant succeed in obtaining the remedy that it seeks, including remission for further consideration according to law, that may be expected to be for assessment of the development application pursuant to s 60 of the PA, but upon the basis of inclusion of the materials accompanying the change representations and change application and is necessary, with direction to that effect by this Court.

[111] See AOA, at [25]-[29] and Applicant's written submissions, at [32].

[112] Second Respondent's written submissions, at [36].

[117] (1986) 162 CLR 24, at 39-40.

[118] Applicant's written submissions at [84].

[119] Applicant's written submissions at [85]; citing R v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228, at 242.

[120] [1995] HCA 58; (1995) 184 CLR 163, at 179; see para [21] above.

[121] Applicant's written submissions, at [87]; citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at [41]-[44] per Gaudron J.

[122] Applicant's written submissions, at [88]; citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at [84] per McHugh, Gummow and Hayne JJ.

[123] Applicant's written submissions, at [89]; citing FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1, at [25] per Hayne J.

[124] Applicant's written submissions, at [90]; citing FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1, at 90 per Bell and Crennan JJ.

[125] Applicant's written submissions, at [91]; citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, at [24]-[27] per Kiefel CJ, Gageler and Keane JJ.

[126] Applicant's written submissions, at [92].

[127] [2014] QCA 147; (2014) 201 LGERA 82, at [52]-[58].

[129] Applicant's written submissions, at [61].

[131] Court Doc 18, filed 15/9/20, at [9].

[132] Reference is made to Bilalis v Brisbane City Council (2017) QPELR 997, at [9]-[10], Guiney v Brisbane City Council [2016] QPEC 26; (2016) QPELR 575, at [4] and [44]-[45], Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37, at [19], JRD No. 2 Pty Ltd v Brisbane City Council & Ors (2020) QPELR 1023, at [160], Kanesamoorthy v Brisbane City Council [2016] QPEC 42; (2016) QPELR 784, at [16]-[17], Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, at [201], Marriott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910, at [5] and [19], Shun Pty Ltd v Logan City Council [2020] QPEC 31, at [54], Tong Town Planning & Development Services Pty Ltd v Brisbane City Council [2017] QPEC 70, at [10], United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8; [2018] QPELR 510, at [118] and University of Queensland v Brisbane City Council & CBUS Property Brisbane Pty Ltd (2016) QPELR 654, at [42] and [48]-[49].

[133] A view reflected in the amended provision, having equivalence to s 5.3.3(3)(a)(iii), of the SPCS 2014, in the Brisbane Planning Scheme. See: Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, at [55], Di Carlo v Brisbane City Council [2019] QPELR 548, at [12], Irvine v Brisbane City Council (2020) QPELR 445, at [8] and Richards & Ors v Brisbane City Council & Ors [2020] QPEC 26, at [13].

[135] Applicant's written submissions, at [62] (with citation omitted and emphasis as in original).

[136] Applicant's written submissions, at [63]-[64].

[137] Section 6.2.3.1(2) of the HDRZ Code (BD Doc 18(g), p 325).

[138] Applicant's written submissions, at [65] and footnote 47, where reference is made to s 8.2.5.1(3) of the CPO Code (BD Doc 18(k), p 349).

[139] Applicant's written submissions, at [66] and footnote 48.

[141] Ibid, at [133]; see: BD Doc 4, p 74.

[142] Applicant's written submissions, at [133]-[134].

[144] See Affidavit of C M Spicer, filed 25/11/20, CMS-1 at p 13, [13].

[145] Pursuant to s 14D of the AIA, an example is not exhaustive, does not limit but may extend the meaning of the provision and in the event of any inconsistency, the provision is to prevail.

[149] See para [57] above, where this is relevantly set out and BD Doc. 18 (c), p 308.

[151] See [55] and footnote 132, above.

[152] Applicant's written submissions at [128].

[155] Affidavit of C M Spicer, filed 25/11/20, CMS-1 at pp 2-13.

[161] Applicant's written submissions, at [153]-[155].

[163] Applicant's written submissions at, [154].

[167] Affidavit of C M Spicer, filed 25/11/20, at CMS-1 pp 6-7 [12(c)].

[168] Affidavit of C M Spicer, filed 25/11/20, at CMS-1 p 7.

[171] Applicant's written submissions, at [129].

[173] Affidavit of C M Spicer, filed 25/11/20, at CMS-1 p 10, [12(x)]. It may also be noted that there is no subsequent reference to the assessment of the CPO Code in any of the later reasons given by the First Respondent.

[174] Second Respondent's written submissions, at [75]-[76].

[179] BD Doc 3, at pp 49-51 (Conditions 8-16) and pp 56-57 (Conditions 54-55) and p 62 (Condition 73, which was changed in the minor change approval) - See at pp 257 and 284.

[180] Applicant's written submissions, at [138].

[181] Applicant's written submissions, at [130].

[183] Applicant's written submissions, at [143] and [148].

[185] Ibid, at [143(a)], respectively in reference to The Australian Oxford Dictionary (Oxford University Press, 1999), p 813 and the Macquarie Dictionary (Revised 3rd Ed, Macquarie Library 2001), p 1154.

[186] Applicant's written submissions, at [144]-[148], (citations omitted, error and emphasis as in original).

[189] BD Doc 12(a), p 206 and Doc 16, pp 281-284.

[201] Second Respondent's written submissions, at [84(c)].

[202] Affidavit of C M Spicer, filed 25/11/20, at CMS-4 p 22.

[204] Second Respondent's written submissions, at [84(f)].

[205] See: Glastonbury v Townsville City Council [2012] 2 QPELR 216, at [128]-[131] and the cases to which reference is there made.