Mackay Conservation Group Inc v Mackay City Council and East Point Mackay Pty Ltd

The Role of the State..........................................................

Current Planning Provisions.................................................

Draft Planning Scheme.......................................................

Is the Proposal a Tourism Use or a Residential Use?..........................

"Integration"....................................................................

Who is a Tourist? What is a Resort?....................................................

What if the Hotel is not Constructed? .................................................

The Approach the Court should take: Applying Weightman's case

Risks from Cyclones: Dr Nott's Evidence.................................

Conclaves of Experts: Visual Amenity, Planning/Economics,

Flora/Fauna, Engineering (water).......................................

State Coastal Plan..............................................................

Conclusion......................................................................

The Preliminary Approval the Subject of the Appeal

[1] By this appeal filed in Cairns on 16 April 2004 (but heard in Brisbane) the Mackay Conservation Group Inc appeals against the decision of the Mackay City Council of 10 March 2004, to give preliminary approval to an application by East Point Mackay Pty Ltd for a material change of use of Lot 8 on RP 883430 for the purposes of a residential and tourism development. The decision is set out in a Negotiated Decision Notice dated 12 March 2004, which provides, inter alia:

"This Negotiated Decision Notice replaces Council's Decision Notice dated 11th November, 2003. Conditions 1, 2 and 9. All other conditions remain unchanged.

2. Type of Development Approval:

Material Change of Use for Preliminary Approval for an "Integrated" Tourism and Residential Development including the following uses:

• Accommodation Units

• Bed and Breakfast Accommodation

• Caretaker's Residence

• Dependant's Accommodation

• Dwelling House

• Multiple Dwelling Units

• Catering Shop

• Childcare Centre

• Commercial Premises

• Health Centre

• Indoor Entertainment

• Local Store

• Professional Office

• Shop

• Shopping Centre

• Vehicle Hire Premises

• Tourist Facility

• Hotel

• Motel

• Home Based Business

• Local Utility

• Off-Street Car Park

• Park

• Public Utility

• Special Purpose

• Sport & Recreation

In accordance with Schedule A Level of Assessment Tables (excluding Dwelling House in the Tourist Hub which shall be Impact Assessable), Revised Master Plan and Codes and the Development Structure Plan as amended by the conditions of approval."

[2] The levels of assessment approved required the Council to override the Transitional Planning Scheme - Exhibit 31C, p. 824. The original conditions were:

1. This approval is for the above uses in accordance with Schedule A - Level of Assessment Tables and Codes, and the Development Structure Plan (Plan of Development) as amended by the following:

a) The fisheries buffer in the southern and western edges of the development is to be increased in width to protect several regional ecosystems (8.2.2 and the mosaic 8.2.9/8.2.2) all listed as "of concern" under the Vegetation Management Act to include all the large patches of dry rainforest.

b) The proposed 5 storey development in the Tourist Hub to be not more than 3 storeys in height.

c) THAT the residential density is not to exceed 10 dwellings per hectare.

2. The currency period for the Preliminary Approval shall be ten (10) years starting the day the approval takes effect. The currency period is conditional upon completion of the Hotel in the Tourist Hub by the end of 2008. If the Hotel development is not completed by 2008, this preliminary approval shall lapse at that time.

3. Water Supply and Sewerage Headworks Contributions

Where an application for any development listed in the approved Plan of Development is made, the Applicant must pay all contributions required by:-

a) Council's Water and Sewerage Headworks Policies; or

b) Council's Infrastructure Charges Regime; or

c) Any infrastructure charges agreement between the Applicant and Council in existence at the time of lodgement of the relevant application.

4. Parkland

Parkland shall be provided generally in accordance with the Plan of Development and Council's Planning Instruments current at the time of an application for a Development Permit for any part of the proposal.

5. Electricity/Telephone Services

It shall be satisfactorily demonstrated that electricity and telephone services can be provided to the subject land.

6. Bikeways/Footpaths

Bikeways and Footpaths shall be provided generally in accordance with the Plan of Development, and Council's Planning instruments current at the time of application for a Development Permit for any part of the proposal.

7. Within six (6) months starting from the day of the approval takes effect and prior to any development commencing, submit for Council approval an Environmental Management Plan (EMP) for the whole of the subject land. Such EMP shall contain plans outlining strategies, actions, timelines, performance indicators, monitoring regimes, reporting mechanisms and remedial action procedures in the following areas:-

• Stormwater management and erosion and sediment control,

• Water quality and water quality monitoring,

• Vegetation management,

• Fauna management;

• Weed management; and

• Turtle management plan.

The assessment of the above EMP shall be undertaken by Council utilising independent professional advice, and any costs incurred by Council in relation to that advice shall be borne by the Applicant.

8. External Roadworks

a) Duplicate Ron Searle Drive between the roundabouts at Harbour Road and the Marina. The Marina roundabout is to be upgraded in accordance with the approval design.

b) Upgrade the roadway south of the Marina roundabout to a four lane road to the most southern entry to Mulherin Park/Surf Life Savers and then transitioned over a 50 metre distance to a two lane road.

c) Provision of a contribution and/or works towards the State Road Network as determined in consultation with the Council and Department of main Roads and recorded in an infrastructure agreement.

9. Provide an Evacuation Centre building to hold up to 3000 persons and which shall have a minimum floor level of Q500 immunity.

10. The ground level of the development area shall be raised to the Q100 level. A lesser ground level may be acceptable if a bund wall is provided within the development area to provide Q100 immunity. Filling is to be minimised in the development area.

11. Comply with the requirements of the Department of Natural Resources and Mines for Vegetation Management as detailed in their letter of the 27th May, 2003.

12. The minimum floor levels for the development shall be set at 300mm above Q100 level.

"1. This approval is for the above uses in accordance with Schedule A - Level of Assessment Tables and Codes, and the Development Structure Plan (Plan of Development) as amended by the following:

a) The fisheries buffer in the southern and western edges of the development is to be increased in width to protect several regional ecosystems (8.2.2 and the Mosaic 8.2.9/8.2.2) all listed as "of concern" under the Vegetation Management Act to include the large patches of dry rainforest. These buffers are to be confirmed by the Department of Natural Resources and Mines upon completion of more detailed mapping of the ecosystems in this vicinity.

b) Deleted.

c) That the land uses and development yield be generally in accordance with details shown on the indicative master plan overlay dated November 2003. The net residential density is not to exceed 10 dwellings per hectare for the areas designated as residential on the master plan. The definition of net residential density is as defined in the 1999 Strategic Plan.

2. The currency period for the Preliminary Approval shall be 10 years starting the day after the last of the following occurs:

i) The IPA Preliminary Approval takes effect; or

ii) The granting of the Development Lease by the Department of Natural Resources and Mines (State Government).

In addition, the currency period is conditional upon the completion of the Hotel in the Tourist Hub within 5 years of the commencement of the currency period. If the hotel development is not completed within this timeframe, this preliminary approval shall lapse at that time.

...

9. The applicant is to provide a Community Evacuation Management Plan (CEMP) for approval by Council prior to the commencement of use. The CEMP is to include on-site measures that cater for the estimated development population in either one or more locations, with safe refuge to be provided during a Q500 storm tide."

The listed uses are identical with those applied for. The lack of prominence accorded Tourist Facility and Hotel was noted by the Appellant as supporting one of its fundamental objections to the Co-respondent developer's proposal which it sees as one for a conventional large suburban-type residential development: something not envisaged by the applicable planning instruments, which are the Mackay City Council's Planning Scheme Provisions (Exhibit 7) and the Transitional Planning Scheme Strategic Plan (Exhibit 7A).

[3] The site's importance to Mackay and the bases for the Appellant's concerns are obvious. The location is convenient to the city centre. The eastern frontage of the site abuts the southern extension of Harbour Beach southwards from the established marina. The beach, offering views of offshore islands across the Coral Sea, extends to the northern bank of the Pioneer River, the site's frontage corresponding roughly with the northern half. The southern boundary runs in an east/west line, perpendicular to the beach. The remaining boundary runs roughly from the south-west point of the triangular site to the north-east, where it joins the eastern boundary near the beach. Beyond that "western" boundary lies the Bassett Creek Basin - by any standards a significant wetland area and important fish habitat. The evidence confirmed that people wishing to enjoy fishing are an important group among the users of that part of East Point south of the site. Wetlands extend considerably northwards from the Bassett Creek Basin; their character changes to melaleuca wetlands (Dr Williams, President of the Appellant expressed the view that these - already utilised as a recreational resource - are unrivalled). No one spoke for the 4-wheel drive and motorbike enthusiasts, who stand to lose their ability to use the site: it bears the scars of the activities they have been enjoying there.

[4] The Appellant was among those who lodged with the Council submissions opposing the proposed development. The Co-respondent has sought to work cooperatively with it, but the Group has preferred to keep its distance. Nevertheless, there has been limited success achieved by the Group already, by incorporation of some of its views in conditions set by the Council. Beyond that, issues raised by the Appellant have led to the engagement of numerous consultants in diverse fields whose work has identified ways in which the Co-respondent's proposal might be changed to alleviate, in part at least, the Appellant's concerns - which are both genuinely held and legitimate.

[5] S. 3.1.5 of the Integrated Planning Act 1997 (IPA) is:

"(1) A preliminary approval approves development (but does not authorise assessable development to occur) -

(a) to the extent stated in the approval; and

(b) subject to the conditions in the approval.

(2) However, there is no requirement to get a preliminary

approval for development.

(3) A development permit authorises assessable development to

occur -

(a) to the extent stated in the permit; and

(b) subject to -

(i) the conditions in the permit; and

(ii) any preliminary approval relating to the

development the permit authorises, including any conditions in the preliminary approval."

Section 3.1.6 - Preliminary Approval May Override a Local Planning Instrument deals in detail with what a preliminary approval may do and include. While it is akin to a traditional rezoning and has been called "conceptual" (Tower 720 Pty Ltd v Hervey Bay City Council [2003] QPELR 178, 187), and on one occasion an approval which "will not see any immediate change to the lawful uses on the subject land...In most cases, there will be further notification, and rights to oppose those applications" (Landel Pty Ltd v Redland Shire Council [2000] QPELR 60, 61), not too much should be made of that. Here, the Schedule A Level of Assessment Tables make very little of the proposed development impact assessable.

[6] The Master Plan referred to has undergone changes, including some since the negotiated decision notice said to be acceptable to all parties and summarised in Mr Schomburgk's town planning report (Exhibit 4, par 3.2.11) improving the location and increasing the area of conservation corridors and green space. As summarised by Mr Trotter in his opening address for the Co-respondent, apart from the contentious residential development, which includes what he called "resort retirement units", there is now proposed an international standard resort hotel, "tourist accommodation...resort style accommodation units, 330 of them", retail and commercial, in the nature of boutique shops, as well as a small local store, an indigenous cultural centre, a community amphitheatre intended to be a performing arts centre of a substantial proportion ("probably enough to facilitate some hundreds of seats"), provision for future public facilities and an "environmental centre for excellence...the purpose of that is an explanation of the importance of the site and its surrounds." My understanding is the explanations will be given in words, pictures and diagrams on suitable billboards, posters, et cetera. The "centre for excellence" will adjoin what Mr Trotter referred to as the "eco-tourism - eco-conservation area" of five hectares of Casuarina woodland, part of about 13 hectares of the site (over and above a dedication for the extension of Mulherin Park to the north) to be dedicated and made over to the public. In the area of Mulherin Park will be the "entry statement", with the future public facilities also nearby. There is to be a wide corridor for fauna connecting the south-western part of the site to the eastern part, and a second, narrower such corridor further north. A feature of the conservation areas is the "linkage to Bassett Creek...that is, without doubt, the important area." There are proposed "roads going through those various public open space concessions...raised on timber structures, something like a metre above the ground, so that there will be a continuous passage for fauna across the site." Substantial parts of the perimeter of the site (increasing over the years) are to be provided as buffers to reduce impacts of the development. The currently proposed land use mix appears in [14] below.

Some History of the Site and of the Development Application

[7] The site, which extends over 68 hectares or more, has had an unusual history. East Point has long been associated with port-related activities. Dr Pillsworth has included in his Ecological Report (Exhibit 12) interesting historical material. At the time when the Port of Mackay was first officially recognised in 1862, the Pioneer River entered the Coral Sea about where Illawong Beach is now. Passengers and cargo were unloaded from steamships in deep water out from Flat Top Island. They were then transported to riverside wharves. The course of the Pioneer River changed during a cyclone in 1898, when it broke through the sand bars about where south East Point is today. The present outer harbour was opened on 26 August 1939. It was necessary to armour and stabilise the river mouth. There was a training wall constructed on the East Point side, in particular. Granite was transported across the site for use in works, by means of a railway carried across Bassett Creek by a bridge. Relics of the railway or tramway may still be seen. There is a well in the centre of the site originally used to obtain water for the Pilot's house, more recently used as a watering point for cattle which have been pastured on the site for some four decades, until recently. The site and some land to the south were subdivided into 35 lots (over and above some existing subdivision in the south, it seems) around 1926 according to Dr Pillsworth (I cannot locate a clear date in the survey copies in his Appendix B). Thirty-one lots are shown on the site. The subdivision project had little, if any, impact. Dr Pillsworth says (on hearsay from staff at the Mackay Port Authority) that freehold blocks were offered for sale in the 1920s and 1930s. The land became port strategic land, set aside as a proposed "tank farm" for storage of hydrocarbon products to be derived from the Condor shale oil project, the residential development contemplated in earlier years not proceeding. Dr Pillsworth gives a useful summary of the history of grazing on the site:

"2.2 Grazing Lease

Grazing of cattle on the development site has occurred since the early 1960's. At this time, the Port of Mackay promoted a grazing lease situation, as then rates were not incurred on the area as industrial land. The original grazing lease had a fence line along the beach front to approximately the now position of the Surf Life Saving Club (SLSC), then turned westward at 900 and continued behind Mount Bassett. The eventual configuration being both sides of Bassett Creek, and it seems probable that the grazing lease utilized the creek itself as the western boundary of the current East Point site.

To make the current East Point site suitable for grazing was principally a two phase operation. In this it is meant that the open sand areas had to be stabilized and suitable pasture established, much of this activity eventuating as the diverse weed environ which persists today. The grazing was initiated by Mr A Pask in the 1960's and continued by Vaucraft Braford Stud (Cliff and Heather Flor) until 30th May of this year. Both promoted grazing conditions by planting of Pangola grass by runners. A chronology for grazing activities is as follows:

s In 1983 Vaucraft Braford Stud purchased the grazing lease and improvements from A. Pask who had a permit from the Harbour Board (now Mackay Port Authority) for over 20 years previously.

s The Port Authority renewed the lease to Vaucraft Braford Stud up to 14th March 1995 when the land passed back to the Department of Natural Resources.

s Department of Natural Resources issued permit to occupy 204991 for grazing purposes.

s Department of Natural Resources indicated that there was to be an investigative permit to be issued to Transtate Developments Pty Ltd (now Eastpoint Mackay Pty Ltd) and Vaucraft Braford Stud was advised to vacate the site by 3rd November 1999.

s Vaucraft Braford Stud held discussions with Department of Natural Resources officers (Leo McKenna & John Grenhill) who advised that provided an arrangement was made with Transtate Developments Pty Ltd, Vaucraft Braford Stud could continue to graze cattle on a care-taker basis.

s Department of Natural Resources & Energy advised that cattle must be removed from the site. Department officers declined to meet to discuss the situation and advised that grazing of cattle on the East Point site be stopped by 30th May 2004. EMPL had no issues with the grazing continuing by Vaucraft Braford Stud on a care-taker basis.

One of the conditions of lease with the Harbour Board was control of lantana across the site. Lantana was prolific across the site and became impenetrable thickets with establishing Casuarina along the front dunes. These thickets became increasingly unmanageable (Cliff Flor, Vaucraft Braford Stud pers comm.) and as a consequence, fences were moved back from the frontal dunes to their present position (Refer Figure 8). A mix of Casuarina and Lantana persists to this day. Mr Cliff Flor in an advice to Greg Long (Long Development Management; Refer Appendix A) states:

Regarding the business of grasslands, we note that the bulk of the area presently used for grazing was planted by Pask and ourselves to Pangola grass as during the summer the only vegetation on the soil is weeds.

The cattle have now been removed at the request from (then) Department Natural Resource and Mines, so there had been no grazing pressure on the pasture species present for approximately three months at the time of the field investigations for this report. Indeed, weed species do proliferate and clumps of trees were recovering from marginal grazing (Refer Figure 9). The size and number of clumps of trees in remote imagery (2002) show very little change from those able to be discerned from aerial photography from 1958. Indeed this is a harsh environment and wind shear, coupled with blows of sand and salt, would have considerable impact on species establishing here. Grazing, started in the early 1960's, then would have suppressed any individuals trying to establish on the periphery of these clumps."

[8] There is some confusion as to the precise description of the site. The Council's planning witness, Mr Brown, in the witness box advised the necessity to add to the description in his report (Exhibit 18) in terms of Lot 18 on SP 150994 (67.67 hectares): "and smaller parcels to the north aggregating about 9 hectares." The "Investigation permit" created 12 December 2002, under which the Co-respondent as permittee "must use the permit area for investigation purposes, namely carrying out detailed investigations into the submission of a formal application for development of the site for tourism and residential purposes" lists four parcels over and above Lot 18 to produce an aggregate "Area: 70.649100 Ha. (ABOUT)". Fortunately it is not necessary to be precise about this at the moment. A State Tenure search shows the Co-respondent to be registered permittee of the five parcels listed.

[9] Another perspective of the history can be gained from the Department of Lands Tenure History Report (Exhibit 32 page 2ff), which describes the period from 1882 to March 1936 (before which there was "no existing tenure located within subject area") as follows:

"Plan C12428 lodged by Surveyor E MACDONNELL L/S contains 31 surveyed blocks within the subject area.

See plan - Annexure 'F'

This plan also locates the position of a Telegraph line along the foreshore.

A tramway was constructed through the subject area during the period 1890-1910. This was used for the transportation of rock from the Mt Bassett Quarry in relation to the construction of Training Walls in the Pioneer River.

A Published Lithograph from the 1920s locates a tramway from North to South through the centre of the subject area.

See Map - Annexure 'G'

Orthophoto Map 8755-42141 produced from Air Photography captured June 1992 records surface formation associated with the earthworks involved in the laying of the tramway track.

See approximate tramway location - Annexure 'H'

A report from the Mackay Land Agent's District of 19.3.1935 details a number of blocks within the subject area being offered for auction on 29.8.1882 but were not sold. Subsequently the remaining blocks had not been offered leaving all blocks remaining vacant.

See report - Annexure 'I'"

Annexure "I", a report of the Local Land Agent, concludes: "The area forms part of that which is not to be dealt with until Harbour Board requirements are determined." 1882 is assigned as the date of survey of "portions 5A/15A, 16C, 17A, 18B and 19A to 35A". Dr Pillsworth's material raises a question about the auction date (the year in particular). There is no need to sort out the chronology, fortunately.

"An application of 25.5.1935 by the Mackay Harbour Board for the setting apart of additional areas of land at Mackay contains a sketch plan of the subject area detailing the location of a number of wells in the surveyed blocks.

See Sketch Plan - Annexure 'J'

An O.I.C. 5.3.1936 closed all roads located within the subject area.

See Government Gazette Notification - Annexure 'K'".

"19.3.1936 to An O.I.C. dated 19.3.1936 sets apart an area of land

Present (including the subject area) to be a Reserve for Harbour Board Purposes under the control of the Mackay Harbour Board.

See Government Gazette Notification - Annexure 'L'

Plan C12428 records this first reservation - Annexure 'F'"

[10] The Mackay Harbour Board on review in the early 1990's identified the site (among other lands) as surplus to its existing and anticipated requirements. They were "disposed of as non-strategic lands, as forecast in the earlier PDP [Port Development Plan]" as the Mackay Port Authority's Sea Port 1995 Land Use Plan (Exhibit 2) noted in chapter 1:

"Since 1993, part of the then PA lands south of the port have been transferred to the Crown, as part of the processes associated with the anticipated development of the small craft marina and integrated tourism resort forecast in the PDP."

[11] In December 1994, the Department of Lands called for Expressions of Interest in "development of marina and/or integrated tourist resort at East Point; Mackay. Pages 28-63 of Exhibit 32 is a copy of the Department's "Guidelines for the Public Proposals for the Redevelopment of Crown Land Situated at East Point, Mackay and/or Port Authority & Crown Lands at Mackay Harbour." The site was identified as comprising "the resort site and the marine site." On the former, the requirement of the developer was to construct:

"(i) A Four/Five Star International Hotel with minimum of 250 rooms;

(ii) Other facilities necessary for the site to operate as an integrated tourist resort;

(iii) Two lane AC public esplanade to a standard acceptable for transfer to Council from the marina access road to the south boundary of the site to permit public access to the Pioneer River mouth;

(v) All services, water, power, sewerage and telecommunications to and within the development;"

Those interested were fairly apprised of the Town Planning context:

"1.4 LAND ZONING AND ENVIRONMENT IMPACT ASSESSMENTS

The land for both the marina and the resort is at present zoned under the Pioneer Shire Council's Town Plan as 'Special Facilities - Port Oriented Facilities'. (As at March 1994, the Pioneer Shire Council amalgamated with the Mackay City Council and now operates as the Mackay City Council.)

...

The land for the resort will require rezoning. For such rezoning to proceed, an Environmental Impact Assessment would be required of the resort proposal. The Environmental Impact Assessment would be carried out by the Developer during the Investigation Phase.

A letter of outline approval, dated 26th August 1994, was received from the local authority, Mackay City Council. The relevant comments were as follows:

'The matter was considered by Council at its ordinary meeting held on 15th August 1994 where it was resolved to advise the Port Authority that approval in principle was granted for the proposed development of the site for Tourist Facilities in terms of Council's future strategic planning intentions for the area...It is further advised that Council will require rezoning of the site to a more appropriate zone reflecting the intended use of the site prior to the development proceeding.'

A copy of Council's letter is provided at Annexure C.

The Department of Housing, Local Government and Planning advises that East Point is designated for industrial development in the Pioneer Strategic Plan. The proposal to develop the site as a 'resort' development cannot be supported under section 4.4(5A) of the Local Government (Planning and Environment) Act, unless there are sufficient planning grounds to warrant approval of the application despite that conflict. Justification for alternative development of the site would have to form part of any proposal or development application."

[12] The Co-respondent under its former name, Transtate Developments Pty Ltd, joined with another company to present a joint expression of interest which was submitted to the Department in March 1996. The Co-venturer was interested in the marina aspect, Transtate Ltd made an "integrated tourist resort" proposal. The land use proposals then were:

Approximate Anticipated

Land Use Area Yield

(Ha) (Approx)

Public Open Space

- Parkland 1.5 -

- Lake* 6.5 -

Private Open Space (golf) 14.0 -

Tourist Resort Hotel

and Accommodation 4.2 130 rooms 250 rooms/suites

120 units

Tourist Accommodation -

Medium Density Units 4.7 188 units 319 units

Retirement Village 4.1 131 units

Retail/Commercial 0.4 0

Residential 26.1 -

- Beachfront Lots 33

- Lakeside Lots 61 335 Lots

- Golf Frontage Lots 139

- Nature Reserve Lots 102

Roads 9.5

71.0 904

*Lake to be excised as P.O.S. from freehold parcel, at time of subdivision.

[13] The proposal at that time envisaged a retirement village at the far north of the site and, south of that, two similarly-sized areas of "tourist hotel accommodation" separated by public open space providing access to the ocean and foreshore (also a golf house and health club on the northern shore of a lake, for canoeing, etc) centrally located in the southern part of the site. It was to be surrounded by a band designated "residential", in turn encircled by public open space (an eight-hole golf course) and beyond it, on the perimeter of the site, more "residential". The Department of Natural Resources' letter of 13 June 1997 referred to the recent announcement of the selection of Transtate Pty Ltd as the preferred developer for the East Point redevelopment site. Unsurprisingly, issues of various kinds arose. Concerns about a Native Title claim were resolved by an "indigenous land use agreement", parties to which were traditional owners, the State of Queensland and the Co-respondent, by now called East Point Mackay Pty Ltd. See Exhibit 32 page 137ff. The golf course project was abandoned. No doubt such a facility (likewise the lake, also abandoned) would have been attractive to tourists. There was no focus on the reason for the change during the appeal; it may well be linked to the idea that establishment and maintenance of such a facility would threaten the natural values of the site and surrounds, the Bassett Creek area, particularly. The Australian Government became involved, in particular in relation to arrangements for turtles which nest on the beach. Environment Australia on 6 September 2004 indicated approval by the Department of Environment and Heritage of the Turtle Management Plan prepared for the Co-respondent. A separate condition of an antecedent decision by the Commonwealth Minister that the proposed action by the Co-respondent "to develop an integrated tourist resort and residential community" is not a "controlled action" for purposes of the Environment Protection and Biodiversity Conservation Act 1999 was:

"Manner in which the proposed action is to be taken:

1. Stormwater and other site discharges will be managed and treated to ensure compliance with the water quality objectives set out in the ANZECC 2000 Guidelines for the Protection of Aquatic Ecosystems (Tidal Estuary). In particular, baseline and ongoing water quality monitoring programs, water quality objectives, trigger values and required remedial measures will be developed and implemented in consultation with the Great Barrier Reef Marine Park Authority to ensure protection of water quality within the Great Barrier Reef World Heritage Area and adjacent marine and estuarine ecosystems.

2. A turtle management plan will be developed and implemented, in consultation with application marine turtle experts, to avoid and minimise risks to Green Turtles and Flatback Turtles that nest, and to ensure hatchling success, at East Point Beach adjacent to the development. Required measures, at a minimum, will include:

•

a minimum 85 metre setback from the highest astronomical tidemark;

•

rehabilitation and management of the setback area to enhance turtle nesting success;

•

design of night lighting to avoid hatchling disorientation;

•

control of access, including control of four wheel drive vehicles and domestic animals, during the nesting/hatching disorientation;

•

collection of litter to minimise risks of entanglement;

•

control of introduced predators; and

•

a research and monitoring program to measure the effectiveness of the turtle management plan and to identify other requirements or modifications needed to ensure nesting success."

Issues to do with the turtle breeding ground have not, in the end, been pursued, perhaps in recognition of what has now been achieved by raising them.

[14] By the time the proposal reached its current (approved) form, the land use mix and yields as per the table in the Master Plan became:

The equivalent table in Mr Schomburgk's report allocates the retirement units to the (apparently undefined) Tourist Hub, and indicates lots in the residential area will range from 450m2 to 700m2.

[15] The Councillors concerned by a majority of 9-4 resolved to "override" the recommendations of the Executive Manager:

"A. THAT the application lodged on the 21st October, 2003 by Eastpoint Mackay Pty Ltd for Preliminary Approval for a Material Change of Use for an "Integrated" Tourism and Residential Development at East Point Road, Mackay be refused on the following grounds:

1. The development as proposed is inconsistent with the Strategic Plan Preferred Dominant Land Use Designation of Tourism.

2. There are not sufficient planning grounds to warrant approval of the development as proposed despite the conflict with the Strategic Plan.

B. THAT the applicant be encouraged to pursue alternative development proposals that better reflect the intent, objectives and performance criteria in Council's Strategic Plan, particularly:

• Increasing the Tourist component of the development and reducing the Urban Residential component.

• Meeting the objectives of Element 2 of the Tourism Designation."

Conditions were imposed which adopted suggestions included in the careful report prepared within the Council in the name of John Caldwell. Considerable credit is due to the authors for the quality of the work done. There is a helpful Executive Summary at the beginning (which, for some reason, refers to a greater number of tenements):

"Eastpoint Mackay Pty Ltd have submitted an application for a Preliminary Approval to construct an 'Integrated Tourist and Residential Development' on land at East Point. The development could include up to 670 residential lots, 410 Multiple Dwelling Units and a 150 room Hotel Resort.

There are significant concerns raised by a number of State Government Agencies over the potential risk to human life and infrastructure as a result of approving the proposed development at East Point because of storm surge.

The Strategic Plan preferred dominant land use for the site is Tourism. The proposal is dominantly urban residential and higher density residential development. A substantial part of the proposed development does not constitute Tourism development as envisaged by Council's Intent, Objectives and Performance Criteria for the site stipulated under the Strategic Plan. The applicant has requested in writing and confirmed in discussions that they consider that the mix of uses as proposed is the correct economic model to facilitate the development. They do not want to amend this basic principle and have requested that the Council decide the application as submitted rather than amend the design.

The proposal does not guarantee an 'Integrated' approach to the development of the site, other than associated with the installation of infrastructure. There is no nexus between the Tourism Preferred Dominant Land Use (PDLU) designation and the proposed residential estate that forms over half of the subject development. An integrated management of the whole site would go further than the current proposal towards ensuring that issues related to ground water contamination, stormwater run-off, vegetation retention, landscaping species and the potential damage to mangrove systems as a result of fresh water intrusion could be alleviated.

When the tender for the development of East Point was accepted by the State Government, the Council identified at that time that the concept plan needed amendment to better reflect the Strategic Plan intent for tourism development in the area. The current proposal further increases the Urban Residential component compared to the approved tender.

This report does not recommend exclusion of development from the site, but recommends a more integrated tourism approach that takes into consideration the natural attributes of the site. The issue at hand is whether the proposal constitutes over development and an inappropriate form of development on the subject site as envisaged under the Strategic Plan. It is considered that the applicant has failed to provide sufficient planning grounds to set aside the Strategic Plan not withstanding the conflict.

On balance, it is considered that the application should be refused. An additional recommendation will be to encourage the applicant to pursue alternative development proposals that better reflect the intent, objectives and performance criteria of Council's Strategic Plan."

The report fairly presents the issues as balancing exercises. It highlights the perceived conflict between the proposed development and the Strategic Plan, which (if a true conflict) gives rise to the familiar quest for planning grounds to justify ignoring it under s 4.4(5A) of the Local Government (Planning and Environment Act) 1992. Section 4.4(3) applies to the assessment, by virtue of s 6.1.29 of the IPA. (Although the planning scheme came into effect post-IPA, it is nevertheless a transitional planning scheme under IPA s. 6.1.9(3), so that the 1990 Act's provisions apply in the way required by s 6.1.29 and s 6.1.30.)

[16] It might be thought regrettable that the Council gave no reasons, although it doubtless had reasons, for overriding the recommendations. It would be useful from many points of view for councils to provide reasons for rejecting recommendations supported by detailed argument. Council have, after the event, engaged the services of an outside planning consultant, Mr Brown; he has presented a persuasive case in defence of Council's decision - more correctly in support of the proposition that the court should dismiss the appeal. The Co-respondent carries the onus of establishing that proposition: IPA s 4.1.50(2).

[17] The original Council report noted with concern the historical increase in the proposed residential development, in both absolute and relative terms, commenting, regarding PDLU (Preferred Dominant Land Use):

"In simple terms, the issue is whether Council would support a Tourist Development on this site. The alternate question is whether the Council would support a residential development on this site. The Strategic Plan supports a Tourism Development, not a Residential Development. While it is accepted that some residential development is able to be accommodated on the site, the question is the balance. The proposal as submitted is balanced towards a Residential Development rather than a predominant tourist use. If the development of the site as proposed was a Community Title development analogous to the Laguna Quays Integrated Resort Development Area, then it could be argued that the mix of uses would constitute a mixed Tourist use. The proposal submitted does not provide a Community Title arrangement and has a residential development feel to it.

It is clear through the Strategic Plan that Tourism development activities are supported on the subject site. Equally it is clear that significant residential development is not consistent with the intent for development in the Tourism PDLU.

The Strategic Plan identifies that there is other land available in the Mackay area which has been set aside for Urban Residential development which will meet the needs of the community in the foreseeable future for residential growth."

"Ideally, the applicant should be developing a coordinated/integrated approach to the development of this site. An example of this is Laguna Quays, where there is a central hotel with condominiums and units dotted around the natural and man-made features of the site. The condominiums and units can be sold individually and then leased back through the resort for tourist accommodation, should the owner choose. The buildings would be designed with a common theme and the management of the whole site would ensure that issues related to ground water contamination, stormwater run-off, vegetation retention, landscaping species and the potential damage to mangrove systems as a result of fresh water intrusion could be alleviated.

The applicant has dismissed this form because it is their intent to create an urban residential and higher density residential subdivision and sell each lot off individually for development, similar to a standard residential estate with a covenant. The proposed development fails to ensure ecological sustainability, because the proposal is heavily unbalanced in favour of the economic benefits to be derived from the development of the subject site over the ecological and natural site attributes."

[18] The Applicant's attitude in that regard is spelt out in a letter from Mike Mason to Mr Caldwell of 29 September 2003, Exhibit 31C page 771: it lists difficulties in the way of adopting group title arrangements within the Body Corporate and Community Management Act 1996. Concern that the trend to more residential use would persist into the future was based on one of the applicant's proposals (ultimately rejected by Council):

"The applicant has indicated in the "Table of Development" for the Tourist Hub that the erection of a dwelling house on a lot is a Material Change of use (Self-Assessable) Development. This means that an even higher concentration of dwelling houses is probable across the site should Council approve this Table in the format proposed."

[19] (Apropos the apparent increase in residential component, that is arguably encountered more in absolute terms than in real terms. The real concern seems to relate to residential detached housing, which increases from 335 to 385 lots. If the 75 "resort retirement units" replacing a "retirement village" of 131 units originally proposed are grouped with the 330 "resort-style accommodation units" and "Tourist Accommodation", which seems legitimate in light of the Co-respondent's professed willingness to accept a condition limiting occupancy to four to six months per annum (transcript p 1298), there is an increase in yield of about 1/7th for the supposed "tourist" units and the residential units alike.)

[20] The final dot point in the recommendations (regarding Element 2) encapsulates the following discussion - which lacks the felicity of expression found in most of the report:

"It is evident from the proposal that little consideration of the natural values of the site have been taken into consideration during the design phase, other than specifically required to gain an approval for land clearing with the Department of Natural Resources. The applicant has indicated in their response to the Information Request that '...proposed earthworks being more cut-to-fill operations within the site'. This means that the applicant intends to use the higher points (dunes) on the site to bring the lower points of the site up to minimum development levels. This will result in a levelling of the entire site, thus effecting the natural value of the site.

The draft vegetation agreement between the Department of Natural Resources and Mines and East Point Mackay Pty Ltd, will allow the developers rights to remove all vegetation within the development area not inclusive of the environmental reserve. This removal has the potential to have a significant effect on the natural ecosystems as vegetation corridors are removed and this significant vegetation community is severed. This vegetation removal will effect the natural values of the site.

The applicant has failed to demonstrate how their proposed development protects significant vegetation and how it is designed to be subservient to the natural environment. The applicant has also failed to demonstrate how the proposed uses are at a scale that can be absorbed by the natural environment.

The proposed development fails to ensure ecological sustainability, which involves the integration of economic, environmental and social issues, as the development proposal is significantly economically biased."

[21] The last section of the report deserving notice concerns the input of the nine State Government referral agencies:

"In summary, it is disappointing that these State Agencies didn't undertake a similar assessment of the development site prior to 'expressions of interest' being called for and the subsequent tender being awarded by Cabinet.

The Council is now in a difficult position in that some form of tourism development is identified on the Strategic Plan and the Agencies are now providing contrary advice with the benefit of hindsight and passage of time."

[22] A report commissioned from the Centre for Environmental Management of Central Queensland University was relied on for the following environmental review; "of concern" regional eco-systems in greater number than hitherto recognised were identified on site; further investigations were recommended. Environmental attributes were said to be compromised by the proposal, but a suitable "scaled back development may be able to occur". Some adjustment was seen as necessary given "the vegetation clearing plan principle of a net gain for the Environment".

[23] In this respect, as in others, events have moved on. A great deal of work by expert consultants has taken place which would serve to alleviate some expressed concerns. The body of evidence before the court is different, and much expanded. The internal Council report, now a couple of years old, does not respond to the proposal as it currently exists; there has been no opportunity for the author(s) to revisit the issues. The planning issue at the heart of the case remains the same. The Court of Appeal in Weightman v Gold Coast Council [2002] QCA 234; [2003] 2 Queensland Reports 441 has made it clear that as the Council had to do, the court must identify the nature and extent of any conflict with the relevant Strategic Plan, then determine whether "planning grounds" exist relevant to the conflict and if so, whether, on balance, they are sufficient to justify approving the development application notwithstanding the conflict. It was noted that in Woolworths Ltd v Maryborough City Council [2005] QCA 262 at [55] the Court of Appeal made comments indicating that Weightman should not be applied in a mechanical way in cases under the IPA, of which the present is not one.

[24] The site is the State's. There was a good deal of evidence tending to establish the State government's support of the proposal. The Co-respondent has never concealed the importance of a large residential component to its tender; State authorities, indeed State Cabinet in 1997, presumably assessed that the proposal was the best one available to secure the desired tourist facilities, principally the hotel, and accepted the indicated residential component. It would be offensive to suggest that the State was duplicitous, and counting on local planning arrangements (to which primacy was conceded) to knock the residential component out, or reduce it.

[25] The Council planning report mourns the apparent lack of consideration by relevant State entities of certain "issues". Professor Brannock hints that the State's attitude may now be very different. We do not know what its attitude towards the granting of the preliminary approval is. There was no need for the State to make or support or even consent to the development application. The Applicant had from the State sufficient rights to apply as owner. One would think that the planning instruments adopted for Mackay in 1999 were formulated with knowledge of the dealings between the State and the Applicant in respect of the site; the Council was involved to a significant extent. The site's planning status as Special Facilities (Port Oriented Facilities) zone was significantly changed. Previously, Port and associated uses, which may have been indistinguishable from industrial ones (indeed the 1983 Strategic Plan designation was "industry"; see Exhibit 20A) were envisaged. The change may be seen as calculated to accommodate the Applicant's tender proposal. This is speculation, there being no evidence about how the 1999 Planning Scheme and Strategic Plan came about. They are the primary source of laws and policies to be applied in this appeal (section 4.1.52(2) of IPA). The State might have resorted to use of its prerogatives to override or exclude the Council and secure such development on the site as the State preferred. That course was not pursued; doing so may be politically charged, depending on circumstances; it can probably be said that the outcomes of use of those prerogatives historically have not always been judged unalloyed triumphs of planning. While Mr Trotter submitted "State interests ... are not unimportant in assessment of this application", such "interests" and determining how effect might be given to them are so problematic that I think the whole exercise has to be abandoned.

[26] Also, for what it is worth, the romantic notion that private landowners ought to be able to do as they will with their own properties, subject to limits clearly imposed by the planning laws (cf Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13) has less importance here than in more usual circumstances: the applicant is pursuing an opportunity to develop State land; it does not face being left as the owner of a site or part of a site that cannot be turned to useful account, although, if this appeal succeeds, it may well have invested much effort and money without achieving the returns hoped for from the scheme of development it has presented.

[27] The rezoning of the site from Pioneer Shire's allocation to Special Facilities - Port Oriented Facilities occurred by virtue of the Mackay City Council's Strategic Plan (Exhibit 7A) and Planning Scheme Provisions (Exhibit 7) on 21 May 1999. The new (and current) zoning is Comprehensive Development Zone, as to which the Planning Scheme provides in 4.12.1:

"This zone is intended to enable particular areas of the City to be developed in a comprehensive and coordinated manner.

Such areas include tourist areas, villages and future urban lands.

The zone also provides for the development of areas or individual parcels of land which, because of their location or existing use or for other reasons, are suitable for a range of uses not catered for in any other zone or which require special attention to be paid to certain aspects of their development because of their size, complexity or impact potential.

Given the expected mixed use nature of development in this zone, local area plans may be prepared specifically to coordinate and provide detailed guidelines for development of areas within this zone. Where there is no Local Area Plan, development is subject to impact assessment (as if the development required town planning consent under the repealed Act).

Local Area Outline Plans may also be prepared by Council to guide development in this zone. All development must be consistent with any such applicable plan which is intended to show major land use areas, preferred movement corridors and the relationship of the local area to surrounding areas. Council may also seek such an Outline Plan to be prepared by an applicant for development."

The relevant parts of the following Table of Development Assessment 4.12.2 are:

Circumstances under which development is self-assessable

Circumstances under which development is assessable using the code assessment process

Circumstances under which development is assessable using the impact assessment process as if town planning consent was required under the repealed Act.

Where provided for as "self-assessable" under the provisions of an applicable Local Area Plan or an approved Plan of Development

Otherwise:

(a) where required to

follow the code

assessment process

under the provisions

of an applicable

Local Area Plan or

an approved Plan of

Development; or

(b) where not subject to

an applicable local

Area Plan or an

approved Plan of

Development and:

(i) being an existing

lawful use; and

(ii) involving minor

development only.

Where required to follow the impact assessment process under the provisions of an applicable Local Area Plan or an approved Plan of Development.

Given the absence of any LAOP, any development is impact-assessable by virtue of the accompanying Table.

[28] The Strategic Plan, adopted to "present the broad land use structure...for the City [providing] a statutory framework for growth and conservation management" lists its main purposes:

"(a) to identify the desired longer term future land use pattern for the City and the principles which are intended to be observed in developing and using land;

(b) to outline the preferred strategies to be implemented to achieve the desired future; and

(c) to guide assessment of and decisions on development proposals, particularly in terms of location, site suitability and potential impact.

This Strategic Plan is intended to provide an overall framework for development and use of premises. As such it is not cadastrally based, is not meant to be interpreted at a fine scale and it does not confer rights to use land for any purposes. These rights are vested in the transitional planning scheme provisions, which also provide detailed land use intentions and specific development requirements which aim to achieve the broad principles detailed in this Strategic Plan."

The Overall Vision is for a Coastal City where (inter alia) "there is recognition of the importance of the sugar and tourism industries and the service industry to the mining section." The accompanying Structure Plan allocates the site among "Urban Areas"; it is one of half a dozen mainland locations featuring yellow stars, to indicate "Tourist Areas". In Map 1, Urban Area, the site is designated "Tourism", as opposed to urban residential, higher density residential, commercial, open space and recreation[1], et cetera. Of the preferred dominant land uses recognised, Tourism is 3.17:

"Description

This preferred dominant land use includes those areas identified for the establishment of major, comprehensive accessible tourist premises. This allocation also includes areas identified for tourism and related use on Keswick, Brampton and Lindeman Islands.

The mainland areas in this land use allocation, shown on Strategic Plan Maps 1-4, are intended for development of major tourist facilities such as comprehensive resort developments, eco-tourism establishments, marina and associated facilities and the like. High standards of development are expected and due regard is to be had for the environmental attributes of the site to ensure ecological sustainability.

...

Objectives and Performance Criteria

Element 1 - Location

Objectives

(a) To provide opportunities for the establishment of major tourism facilities in locations likely to be attractive to visitors.

(b) To ensure locations are accessible and ultimately capable of being provided with an appropriate level of services.

(c) To provide locations for the focusing of tourism development to facilitate service provisions and promote economic viability.

Performance Criteria

(a) Those areas are generally depicted on the Strategic Plan Maps 1-4.

(b) Other mainland areas where the scale and nature of the use does not adversely impact on the predominant preferred land use.

Element 2 - Land Use

Objective

(a) To provide for the development of high quality ecologically sustainable and accessible tourist facilities.

(b) To ensure any use is compatible with the natural values of the site and would not impact on the long term viability of natural systems.

Performance Criteria

(a) Land use compatible with the existing nature of uses.

(b) Uses which are themed in accordance with the natural values of the site.

(c) Uses which protect significant vegetation and are designed to be subservient to the natural environment.

(d) Uses, the scale of which can be absorbed by the natural environment and for which an appropriate level of servicing has been provided.

Element 3 - Site Suitability

Objective

(a) To ensure that land used for tourism development is relatively free from environmental constraints.

(b) To prevent conflict with incompatible land use and achieve effective separation and buffering from such land use.

Performance Criteria

(a) Land which is:

(i) above the Council's adopted flood level and free of drainage problems;

(ii) not potentially unstable and not excessively steep;

(iii) not a high risk of bushfire;

(iv) not good quality agricultural land;

(v) not required for urban development, extractive industry or water catchment purposes;

(vi) is not in a buffer-zone; and

(vii) is not in a coastal "control district" as declared under the Coastal Protection and Management Act or subsequent relevant State legislation.

(b) Land which is serviced by an arterial or submission-arterial road."

[29] Planning Scheme definitions to be noted are:

" 'Defined Urban Area' means land included in any of the following preferred dominant land use areas as depicted on the Strategic Plan Maps:

• Urban Residential

• Higher Density Residential

• Park Residential

• Future Urban

• Commercial Areas

• Major Business and Industry Areas

• Service and Commercial Industry Areas

• Village Areas

• Tourism Areas

...

'Integrated Development' means development of premises which are comprehensively planned, designed and built (either at one time or staged) and which incorporate common and/or related design elements;

...

'Tourist Facility' means any premises used for any activity designed to primarily attract tourists whether or not such activity is associated with accommodation facilities for tourists. The term tourist facility shall be followed by a second term describing the type of tourist facility and this combination of terms shall describe the use" (a Use Definition).

[30] The likely future planning arrangements for the site are shown in the Draft (IPA) Planning Scheme, Exhibit 8. Its Locality is Mackay Frame, as opposed to City Centre, Hinterland and Offshore Islands. Localities are divided into "zones", of which the sites will be Special Activities (Tourism). The Frame Locality contains identified precincts, with "overall outcomes" envisaged; the site is in the McCready's Creek precinct. By Division 6(2)(x):

"Tourist developments are encouraged in the Mackay Frame Locality, generally on land included in the Special Activities (Tourism) Zone, or High Density Residential Zone and where the form, scale and intensity of tourism development accords with the setting of the site and surrounding area."

"Tourism development is provided on land included in the Special Activities (Tourism) Zone at Shoal Point, Bucasia, Eimeo, Dolphin Heads, Blacks Beach, and East Point."

The site is not allocated to the available Open Space Zone.

[31] Division 7 provides for Specific Outcomes Assessable Development, also Probable and Acceptable Solutions for the Mackay Frame Locality

"Tourist Accommodation Resort" for the purposes of this Code means an integrated development primarily intended for tourists which incorporates a Tourist Facility offering accommodation (multiple dwelling, accommodation building) and any other associated uses such as shop, commercial premises, catering shop, indoor entertainment, outdoor entertainment, educational establishment, sport and recreation and the like."

"Table 9-24 Specific Outcomes and Acceptable & Probable Solutions for the Tourist Accommodation Resorts Code

Layout

P1 Tourist accommodation resorts provide for the integration

of internal and external access to achieve a safe, convenient,

comfortable and attractive environment for pedestrian and

cyclists both between different use areas and with the

adjoining land use areas.

P2 Tourist accommodation resorts are designed, constructed

and operated to promote safety of all users, with particular

attention to landscaping design, building location, lighting,

pedestrian movement and car parking.

P3 Tourist accommodation resorts are located adjoining and

with direct access to a submission-arterial or major

collector road and make provision for safe and convenient

vehicle access which:

(i) maintains the efficiency of the adjoining road network;

and

(ii) minimises adverse impacts on the surrounding area.

P4 Tourist accommodation resorts provide car parking suitable

for the intended use(s) on the premises whilst considering:

(i) the ability for shared usage of car parking areas;

and

(ii) the desire to avoid large expanses of car parking areas

which detract from the attractiveness of the locality.

P5 Tourist accommodation resorts involving the provision of any

retail or commercial uses are designed, constructed and

operated to integrate those uses with any adjoining retail and

commercial areas.

P6 Tourist accommodation resorts are designed to ensure that the

majority activity generating uses (for example shops,

galleries, restaurants) are located at ground level where the

premises fronts onto a main street of an existing settlement.

P7 Those uses likely to generate the greatest impacts in terms of

traffic and noise, including:

(i) Hotel;

(ii) Catering shop;

(iii) Indoor entertainment;

(iv) Public car parks;

(v) are sited away from residential areas.

P8 The residential density of the residential component of a

Tourist accommodation resort is in keeping with the

character of residential land use in the locality or as

otherwise intended in the relevant Locality Plan.

"S8 The combined density of the residential component including all dwelling units and room units, is up to a maximum of one dwelling unit per 200 m2 of site area provided that the maximum density is achieved only where the built form (height and bulk) of the development, is complementary to the landscape character of the locality."

P8 bespeaks acceptance of co-location of permanent residential development and a "Tourist Accommodation Resort" (of course, not the only instance). Mr Brown's helpful summary and comment in pars 56-57 of his report regarding Table 5.1 in Division 3 are justified:

"56. Table 5 - 1 Assessment Categories for making a Material Change of Use includes the following for the Special Activities (Tourism) Zone-

Code Assessable Development

• Accommodation Units;

• Bed and Breakfast Accommodation;

• Caretaker's Residence;

• Catering Shop;

• Dwelling House;

• Motel;

• Multiple Dwelling Units;

• Tourist Facility;

• Vehicle Hire Premises;

• Car Park;

• Child Care Centre;

• Commercial Premises;

• Dependent Persons Accommodation;

• Home Based Business;

• Hotel;

• Indoor Entertainment;

• Public Utility;

• Shop;

• Shopping Centre;

• Special Purpose;

• Sport and Recreation.

57. On the one hand, accommodation units and bed and breakfast accommodation are code assessable and on the other hand, permanent residential accommodation namely dwelling houses and multiple dwelling units are also code assessable in the draft IPA planning scheme which thereby contemplates a mixture of permanent and holiday accommodation in this zone. The fact that hotels are impact assessable does not detract from this proposition. It merely indicates that the Local Government reserves a more detailed process of assessments for uses which traditionally have the potential for impacts on residential amenity."

[32] If the Draft Plan comes into effect, it would appear that the Applicant, by reliance on it, would have enormous latitude in subdividing for dwelling houses.

[33] There is nothing of significance in the Draft (in respect of which the Appellant has apparently foregone its right to make submissions) which cuts across the

Co-respondent's proposal. The "Coty" principle cannot be applied to embarrass the proposal. If applicable at all, it assists the proposal by providing some assurance of consistency with the likely future planning arrangements for the site. I regard this as a "planning ground" available towards justifying approval under the present Planning Scheme, despite conflict assumed, for the sake of argument, to exist.

Is the Proposal a Tourism Use or a Residential Use?

[34] The clear tourism components of the proposal make it unsuitable for any residential PDLU. Mr Keim argued, in par 59 of his written closing submission, that there is no contemplation in the Tourism PDLU of residential components which are not part and parcel of a tourist facility (presumably in the sense of housing tourists or key staff); indeed, he argues that objective "1(c) suggests that other uses that dilute the focus are contra-indicated." (One wonders whether the objective of promoting economic viability may be pursued only by co-locating other tourism development nearby or whether inclusion of "profitable" compatible residential subdivision is another means open.)

[35] Element 3 Performance Criterion (v) indicates unsuitability for tourism facilities of land "required for urban development". The other side of things is that the planning instruments do indicate positively where residential uses should be. It is convenient to adopt Mr Keim's treatment of the Strategic Plan 2.2 Principles for development and use of premises (1), (2) and (7):

"39. This category is relevant because of the generic definition of "designated urban areas" discussed above. The following passages are of most assistance to the issues in the appeal. While it is submitted that residential development is not in accord with the strategic plan for this site, principles applying to residential development show the high standards that would have to be adhered to if residential development had been designated for this site:

(a) Residential uses should only be located on land that is free from existing, and likely potential, natural and man made hazards. This recognises that areas prone to natural and man made hazards such as flooding, coastal fluctuations, storm surge, land slippage, noise or air borne pollutants are not suitable for residential areas.

(b) The pattern and sequencing of urban development should contribute to the creation of accessible communities.

Urban development should focus on the establishment of largely fully serviced and self contained neighbourhoods which evoke a sense of community, belonging and accessibility by all citizens.

(c) Urban areas should be sustainable in the long term.

Development of urban areas should recognise the assimilation capacities of the natural environment and be managed to achieve sustainability.

(d) Elements which contribute to identity, sense of place and quality of life should be preserved.

These are the elements that define suburbs and which must be preserved if quality of life and sense of community are to be maintained.

(e) A wide range of housing types and lifestyle choices should be provided for in the City.

People like to have a choice in where they live and in the range of housing available.

(f) Development of urban areas should be affordable, for both end users and the community.

Development generates costs particularly for services and facilities. All reasonable costs associated with development should be borne by the developer without undue community subsidy. Newly developed urban areas should be accessible and affordable to end users and the community as a whole.

(g) Urban areas should be buffered from the potential impacts of incompatible land use or activities.

This recognises that there are uses which are incompatible with the achievement of pleasant living environments and appropriate separation from such uses is required.' (Emphasis added).

40. The environmental principles are also onerous:

'(a) Natural resources are limited and should be managed accordingly.

(b) The relative scarcity of natural resources makes it essential to manage them wisely.

(c) Environmentally sensitive areas of remnant vegetation, wildlife corridors and habitats together with estuarine and coastal ecosystems should be protected.

Such areas are vital for the protection of the biodiversity of species.

(d) Features and places of Cultural Heritage value should be protected.

The City is rich in places and features of heritage value to Non-Indigenous and Indigenous residents. Cultural heritage interests include archaeological, anthropological, historical and cultural values.

(e) Responsibility for the environment rests with the entire community.

All sections of the community and not just the local Council and developers have collective responsibility for the environment.

(f) Features of the natural landscape such as vegetated ridgelines, the natural backdrop of the World Heritage Areas, riparian and coastal vegetation and other areas of remnant vegetation, provide a visual backdrop and scenic quality to the City and should be protected.

The rural character and visual backdrop to the City must be preserved.

(g) Groundwater and surface water is a finite resource and its quality and quantity needs to be properly managed.

Future population growth and economic development within the City is contingent upon the availability of a quality water supply.' (Emphasis added).

41. The following passage from the category 'provision of infrastructure' shows one of the dangers of plonking a residential subdivision where it is contra-indicated by the strategic plan'.

'Development should address genuine community needs for services and facilities

New urban residential areas are to be encouraged in the form of identifiable neighbourhood/village areas as defined by major open space areas, roads and other significant physical elements. Each such area should be oriented towards facilities (like a primary school, local shops, local community hall and/or local parkland) which can serve as a conveniently accessible community centre for a population of about 5000 residents (i.e. about 1500 to 2000 dwellings).

People's needs for accessible places to work, to spend leisure time and to find social support or personal assistance are important. The young, aged and those with disabilities have special needs which should be accommodated.'"

As noted, while the site is urban area in the Structure Plan, it is in no residential or urban category (present or future) in Strategic Plan Map 1, which shows PDLUs. The quotations in the foregoing are replete with examples of policies which are opposites, yet they have to be reconciled in some way. Thus, it is said people like a choice of where to live, but they are discouraged from living near the sea. While the Appellant submits that there is too much residential development proposed here, it points to provisions suggesting there is not enough for a proper community. Taking the appropriate broad, practical approach, the argument that the site and proposal fail to satisfy the requirements for the residential uses is unpersuasive. The submission goes on:

"42. The most specific and directed part of any strategic plan is likely to be those prescriptions intended to accompany the preferred dominant land use designations on the strategic plan maps. Their importance is clear from the introduction to this part of the Mackay strategic plan:

'This section outlines the intended long term land use pattern for the City and specifically the preferred dominant land uses. These land uses are depicted on the Strategic Plan Maps 1-4.

The key objectives in relation to each land use are also provided. Only proposals which achieve these objectives, and the broad development requirements or 'performance criteria' which relate to them, will be favourably considered by Council.' (Emphasis added).

43. The underlined sentence is unambiguous in its intentions. Unlike "the principles for development and use of land", the intent and objectives for preferred dominant land uses" are designation specific. Therefore, the intent and objectives for land designated to have other predominant land uses cannot only been relevant by the most tangential analogy. What is important for this development are the intent and objectives for the tourist use."

[36] While the Appellant argues that the proposed residential development establishes the dominant character of the proposal as not tourism, there is no absolute separation between the two uses:

• The owners of ostensibly residential properties may use them (perhaps exclusively) as holiday homes for themselves, or rent or lend them to paying guests, friends or relatives for holiday use, or some other kind of short or longer sojourn in Mackay.

• The occupants of privately owned houses and units, whoever they are, may patronise the hotel, and will probably patronise at least some of the retail and other facilities proposed.

• The presence of other established development around a tourist facility, especially a hotel, may afford its clients the experience of being guests of a community, rather than being cocooned in more-or-less lonely isolation; there would be increased likelihood of services being made available, such as public transport, likewise retail outlets on site, et cetera.

[37] There is no certainty about any of the above; however, such possibilities are real, in my opinion. In the abstract, one can envisage a whole town of permanent residents being established to exploit some tourist venture in an undeveloped area, as has occurred often to establish mining.

[38] The Appellant, as Council officers had been, was critical of the lack of integration of residential development (of which it conceded that there could appropriately be some) with the more touristic aspects. It is correct that the proposal is that there will be hundreds of freehold owners who are free agents, totally independent of each other; even if there are some elements of common management, they will affect only a minority of owners. There is nothing of general application resembling the body corporate/common property arrangements envisaged in the Integrated Resort Development Act 1987. One practical consequence would be the absence of controls of kinds which such arrangements offer; they would enhance, inter alia:

(a) Controls over pet cats and dogs (supposedly to be outlawed);

(b) Means of protecting groundwater quality (which may well require not only controlling use of chemicals in gardens and adherence to measures to control infiltration, but also access if additions to the limited number of inlets to allow "polished" run-off water to percolate into the ground are required);

(c) Measures to limit the undesirable "edge effects" of permanent residential developments.

Further, no doubt it is true that, whatever "stake" permanent residents have in preserving the amenity of their neighbours, they will be less amenable to control than transient users of the site, such as tourists.

[39] The Appellant relies on that proposition in various ways. It argues that in an emergency, permanent residents will be more resistant to being evacuated. It argues that permanent residential development is inimical to protecting natural values on the basis that permanent residents are not susceptible to control; Mr Agnew was passionate on this score.

[40] The Co-respondent proposes that there be achieved (or attempted) "common and/or related design elements," presumably for purposes of the Planning Scheme definition of integrated development set out at [29], which does not really lead anywhere, although it uses the adverbial form of "comprehensive" in 4.12.1. (The development application was for an "integrated tourist and residential development", but, having regard to the categories of use available, has to be supported as a "comprehensive resort development.") This is to be done by imposing on anyone wishing to build some obligation to utilise the designs of the architect Mr Skou in Exhibit 6A. I take it there will be contractual obligations by way of building covenants, and there may be registered covenants on separate titles to advance the cause. The parties are invited to formulate an appropriate condition. A broad reading of the planning arrangements suggests that even if it is not spelled out, compliance with the definition might be treated as "comprehensive", in relation to a resort development, for purposes of complying with the Tourism PDLU.

[41] Some significant gestures towards integration are appropriate; they would go some distance towards conferring a tourist-related character on private residential development. It can be accepted, by way of judicial notice taken, that our citizenry are more likely to favour traditional freehold titles than arrangements that commit or subject them to cooperation in more collective structures. In the absence of anything in statute or local planning law to require it, I do not think it would be reasonable to call on a developer to implement some kind of group title structure. Use of covenants, ideally registrable, would go some way towards achieving the effects or indicia of integration referred to in preceding paragraphs.

[42] The argument for acceptance of a very large suburban residential component, which at first blush one would not expect to encounter in the Tourism PDLU, is that not only is there nothing explicitly preventing it, it is invited by use of expressions such as "comprehensive" (especially as explained by the Queensland understanding whereby "resort" developments contain significant components of residential development to be held by separate owners with freehold title who may use their properties as they will, and are likely to use them for their permanent residence). There is also reliance on the intent for the Comprehensive Development Zone, which appears to contemplate, and without limiting them in any way, a wide range of uses co-existing on a site. The idea is to facilitate development in a "comprehensive and coordinated manner". Particular areas or parcels are contemplated to be "suitable for a range of uses not catered for in any other zone" - the key word being "range"; "size, complexity or impact potential" may "require special attention"; "mixed use nature of development in this zone" is "expected". This is a Planning Scheme provision, as opposed to being part of the Strategic Plan, which the 1990 Act provisions require to be examined in the search for "conflict"; nevertheless, in my opinion, it is capable of being the basis for a "planning ground" which may lead to such conflict's being excused.

[43] The effect of the evidence is that an admixture of residential development is necessary to the viability of the tourism components, in particular the hotel, which will doubtless be the most complex and costly aspect.

[44] While there may have been little directly indicating the commercial/financial exigencies about establishing some cash flow to support the costly exercise of getting the hotel going by sale of residential lots, the way in which matters have unfolded, culminating in the appeal hearing, is instructive. For almost a decade, Mr Long, the Co-respondent's principal, has been asserting that:

"(as is the case with all integrated tourist resorts) sales of residential land are needed to underpin the viability of the development given the high capital costs of constructing the hotel and other resort facilities and infrastructure and because of the uncertain and embryonic nature of the Mackay Tourism market at the time. Also, the residential component provides a measure of security and public reconnaissance (especially in off peak periods) as well as vital patronage and a village atmosphere during off peak periods for the boutique shopping, restaurants, cafes and recreational facilities within the integrated tourist resort."

See his affidavit, Exhibit 59, par 16. He has had to face assertions that the true intention is to "develop the residential component, flog it off and forget the rest", as Mr Trotter put it at p 712. The only detail pointing to what residential development or sales might occur before construction of the hotel was in terms of stages 1 and 2, identified in par 82 of the affidavit. The implication is that no other stages precede work on the hotel. The subject came up in Mr Long's evidence-in-chief at 800-01:

"...the first stage will comprise 36 tourist accommodation units and 68 residential lots, revegetation of part of lot 12 and lot 71. Can you just explain where the 68 residential lots will be and where the 36 tourist accommodation units will be?-- Should I revert to a map, Mr Trotter?

...

Yes?-- And you can see from the road - underlying road pattern on that particular exhibit, there is a provision there for residential lots adjoining the roads and there are a number of larger precincts. One which readily jumps to mind is about where that 483 sq m is shown on the plan.

Yes?-- That precinct is intended for a tourism accommodation unit development.

Right?-- Of the order I think of about 50 units, from memory, but the - I apologise, 36 units at this stage.

Yes, 36 is what you said. Now, then coming down to stage 2, you say that includes the five hectare eco-conservation park, Environmental Centre for Excellence, Aboriginal Culture Centre, 72 tourist accommodation units and 34 residential units. Are they further to the south of stage 1?-- That's correct.

All right. So you will move into the site and develop in proximity to the site entrance until such stage as the whole site is developed, is that the plan?-- That's correct. And I would qualify that by simply saying that in more recent times, given our - the state of our negotiations with a hotel operator, that there may be cause for us to leapfrog to some degree some of those earlier stages. When I say leapfrog, we would still develop them, but also look to develop the hotel precinct itself earlier rather than later."

[45] Before Mr Trotter's closing submissions (which contained nothing about changing things) the court's inclination to preclude reconfiguration into residential lots beyond those allocated to stage 1 and stage 2 until the hotel was up and running was made clear at 1262. There should be an appropriate condition, to limit (in the public interest) the amount of the site forever lost to the desired tourism uses until such time as there is certainty of those uses eventuating; actual implementation of any reconfiguration for detached residences should be contingent on compliance with a declared timetable calculated to have the hotel operating in time. There could perhaps be some flexibility, so long as the identified parameters of stages 1 and 2 are not exceeded in numbers of tenements or affected areas of the site (in hectares and quality or importance).

[46] The planning documents define "tourist facility" (see [29], one example of a major one being a comprehensive resort development: [28]), but provide no definition of tourism or any variant. It is not possible to ascribe any particular meaning. The Appellant relied on a conventional dictionary definition of a tourist as "a person making a visit or tour as a holiday; a traveller", leading to an exchange with Mr Keim during addresses at 1343:

"...once you let in "traveller" as a meaning that widens it, doesn't it, because that removes the restriction for holiday purposes.

MR KEIM: Yes. But can I make this submission, your Honour, when you're on circuit in Mackay, because of your inquiring mind, you're probably a tourist. Because I am boring and only think about my work, I am probably not, because I don't ever go out of my hotel room.

HIS HONOUR: But if you're going out to see East Point and enjoy the vegetation-----

MR KEIM: If I do that-----

HIS HONOUR: -----and the beach and birds and so on, even you become a tourist.

MR KEIM: The moment I go out to walk on the beach-

HIS HONOUR: What about the Australian cricket team. Everyone calls them tourists and they're there for earning money as fast as they possibly can, trying to hit sixes.

MR TROTTER: They're on tour.

MR KEIM: From a town planning point of view, there is no problem with you being - working.

HIS HONOUR: But they're not on holidays, are they?"

Mr Trotter had had his own opportunity at 1309 ff. The Appellant's planner, Mr Brannock, offered views at 1205:

"A hotel in this situation would definitely be a tourist hotel. ... The worldwide acceptance of what a tourist is comes from the World Tourist Organisation ... They have a definition about a person who travels greater than 50 miles.

...

HIS HONOUR: What about a Judge who goes to a conference at an interesting place in Europe? Is that someone craving professional enrichment or a tourist?

MR BRANNOCK: Your Honour, under the World Tourist Organisation branch of the United Nations, there's a distinct subset of tourism and it's called "Conference Tourism" and, in fact, there's 13 subsets of tourism and Conference Tourism is one of the most - is the emerging tourism growth sector of tourism in Australia.

...

MR HUGHES: Professor, I've never heard a better statement in respect of the need for Mackay to have a Four Star Hotel such as proposed than what you've just told us?-- Yes and that's one of the reasons that I actually agree with the hotel being on the site. With a hotel, I think it could be in a much better situation but I have conceded that.

HIS HONOUR: On the site - a better situation on the site you mean or better situation in Mackay? - Ah, no, on the site."

[47] Whatever refinements may follow, the United Nations entity website begins its treatment as follows:

"WORLD TOURISM ORGANIZATION

DEFINITION OF TOURISM

TOURISM

It comprises the activities of persons travelling to and staying in places outside their usual environment for not more than one consecutive year for leisure, business and other purposes not related to the exercise of an activity remunerated from within the place visited.

Tourist: general definition

Tourism comprises the activities of persons travelling to and staying in places outside their usual environment for not more than one consecutive year for leisure, business and other purposes not related to the exercise of an activity remunerated from within the place visited.

Tourism is different from travel. In order for tourism to happen, there must be a displacement: an individual has to travel, using any type of means of transportation (he might even travel on foot: nowadays, it is often the case for poorer societies, and happens even in more developed ones, and concerns pilgrims, hikers ...). But all travel is not tourism.

Three criteria are used simultaneously in order to characterize a trip as belonging to tourism. The displacement must be such that:

• It involves a displacement outside the usual environment: this term is of utmost importance and will be discussed later on;

• Type of purpose: the travel must occur for any purpose different from being remunerated from within the place visited: the previous limits, where tourism was restricted to recreation and visiting family and friends are now expanded to include a vast array of purposes;

• Duration: only a maximal duration is mentioned, not a minimal. Tourism displacement can be with or without an overnight stay. We shall discuss the particularity of in transit visits, from a conceptual and statistical point of view."

See www.world-tourism.org/espanol/statistics/tsa_project/TSA_in_depth/chapters/ch3-1.htm

People can reasonably argue forever about who is a tourist. The above treatment excludes those who take "working holidays" and I would say controversially - maybe for reasons of making statistics more useful - and is no more relevant, in my opinion, than many other potential definitions.

[48] In the end, little hangs on Mr Keim's argument, at par 49, that a large development which has 51% tourist facilities is not itself a tourist facility, and that "fudging" to fit in retirement homes, detached houses and units sold to permanent residents ("not tourist facilities") is impermissible. The important term is "comprehensive resort development". While, in context, some significant tourist component is necessary, I am not persuaded that some mixture of non-tourist facilities precludes satisfying it.

[49] The Appellant correctly says that the key qualifier in the expression "comprehensive resort development" is "resort", the dictionary definition selected being "a place frequented for holidays or for a specified purpose or quality (seaside resort, health resort)". It is asserted that sea change retirees or permanent residents of the detached housing are not frequenting for the indicated purposes: "They are changing houses, not going to a resort." It seems to me that although evidence may not have been given of any special use of the word(s) in question beyond references to

so-called resorts with large, permanent residential components in Queensland and Northern New South Wales, one need not go beyond what the legislature of the State has done. The premise of the Sanctuary Cove Resort Act 1985, as set out in the preamble, is that a developer "proposes to develop...land as a resort". It was not thought necessary to define a resort, a term which otherwise appears only in the Act's name. The variant of "resorting" to clubs for particular indicated purposes appears in definitions in Schedule A. The Appellant would probably have it that the Sanctuary Cove Resort is not a "resort", although Parliament says the contrary.

[50] The Integrated Resort Development Act 1987 is of no greater assistance; it uses (undefined) the expression "integrated resort development" and in Schedule 1 "proposed resort development".

[51] Exhibit 43 is a publication "Resort Living", whose title picks up a commonly used expression which, in my opinion, illustrates the meaning of "resort" in the present context; the publication promotes "an exciting opportunity for purchasers to buy freehold land within the resort and build their own house". Buyers will be able to "enjoy their permanent holiday lifestyle later this year". In this instance, the establishment of the resort may have preceded the provision of such opportunities, although it is said that a named solicitor whose home is being built there has commuted between her busy practice and the resort for 15 years. Resort living connotes an environment with a holiday or work-free atmosphere, recreation, relaxation and the like, but not that those attempting to enjoy it are on holidays, or free of ordinary work-related obligations..

[52] There must be proximity to one or more features producing that environment, whether it be natural, such as water or a national park, or constructed, such as a golf course, marina, hotel which may be associated with restaurants, retailing attractive to tourists, a casino, a theme park, etc. It is those things that justify the use of the descriptor, resort - one may have a resort town or city - but there is no basis for asserting some principle whereby mixture with permanent residential development means there is no longer a resort. Mr Brannock was drifting in to the Humpty Dumpty approach of choosing what words are to mean, as well as those giving evidence for other parties who were castigated by Mr Keim for it, in cross-examination by Mr Hughes SC at 1204:

"Now, Professor, can I ask you this - where in the wording, with respect to the tourism designation, is it said that you shall not have permanent residential accommodation within this designation?-- It doesn't say you can't; it doesn't say you can - it doesn't talk about industry either or marinas or large scale commercial development. It doesn't talk about a whole lot of things.

...

Well, can I say to you that your position might be a little stronger if, for example, there was a provision in the tourism designation that said, 'Permanent residential accommodation such as dwelling houses or multi-residential units are actively discouraged from this designation.' Would you agree your position would be stronger if that were the case?-- It would but, of course, in the intent, it doesn't say anything is to be discouraged.

Of course, there's no question in your mind, having regard to the Hyatt at Coolum, having regard to the Hyatt development at Sanctuary Cove and the Sanctuary Cove development generally, having regard to Hope Island, that residential - permanent residential development is entirely compatible with comprehensive resort development even if it doesn't form part of it, correct?-- It can be compatible and then it's normally in a gated situation and I know this - this one is not gated; Mr Long has told us that. I'm not sure that it will be the same kind of development as, for example, you mentioned Hyatt Coolum because you go through a grand gate entrance to the resort itself and you will peel off to go to the residential. However, as I said before, I maintain that without the houses it is definitely an integrated resort development.

...

In general terms it can be made compatible?

...

In this situation I don't agree it is."

It is an artificial approach to make things depend on little more than some Potemkin feature like a gateway. No doubt the Co-respondent would be willing to provide one if required. I accept that the feature(s) justifying the description of resort in the relevant local parlance must be the focus. They might well be so minor that it becomes a distortion to regard them as a focus. Identifying a focus does not require that some arbitrary benchmark be adopted (in the absence of a controlling definition), or that if some examination is made of what is dominant or predominant, it is to be carried out mechanically, in terms of relative percentages, especially here, where it is speculative what actual uses of the so-called permanent residential parts will be. It comes back to the balancing referred to in the Council's internal planning report, something about which opinions might, and did differ. One would hesitate to say either opinion was wrong. The decision that was made is under appeal which is, of course, by way of hearing anew (IPA s 4.1.52), on much fuller evidence, giving rise to responsive arguments; they result in my finding the decision was a correct one. I am some distance from endorsing Mr Hughes' submission that the overwhelming theme of this development will be that of a tourist destination, but accept the thrust of his submission (changing "minimise" to "limit") that:

"The proposed development clearly seeks to promote integration with the site's natural features and the proposed facilities are designed to minimise the environmental impact. There are obvious reasons to do so. Both the beach, and the river and creek system, together with their flora and fauna, are obvious tourist attractions."

[53] The parties having preferred to address in writing, accompanied by time-limited oral presentations, not all potential issues got covered. Supplementary submissions were invited (and forthcoming) about the point at which parts of the site would become freehold with disparate residential owners - owners beyond control apart from such efficacy as registered covenants or easements might have. It was common ground that the owners' titles, once acquired, would become indefeasible. The invitation arose from concern as to what the situation would be if there is no hotel. The Co-respondent's approach of pointing to evidence which suggested the hotel would surely eventuate (huge investment already committed, et cetera) was not to the point.

[54] The court takes extremely seriously the actual provision of an operable and operating "hotel" (within the Planning Scheme meaning of premises used (lawfully and at the least) for the sale of liquor for consumption on the premises). However much the Co-respondent (or any other developer) might assert that the hotel and other clearly touristic elements are valued as creating profit-making opportunities, one can be fairly confident that the site would be more attractive to developers if made available for purely residential and ancillary uses. In commercial terms, I see the hotel as the quid pro quo that a developer had to provide to obtain control of the site. Without the hotel, it is impossible to regard the use as tourism, applying the descriptor "major". Were residential development to proceed without the hotel or some equivalent, there would be a fraud, in the equitable sense, perpetrated against the planning arrangements for Mackay and against the public interests enshrined in them. That strong view involves no criticism of the Co-respondent, which may be presumed to intend to carry out what it says it will do. Equity's idea of fraud is encapsulated in the extract from Story on Equity, Art 258, quoted in Meagher, Gummow and Lehane, Equity (3rd) 1201. It describes the jurisdiction over "fraud" as dealing with:

"...such acts and contracts as, although not originating in any actual evil design or contrivance to perpetuate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to injure the public interests ... prohibited ... as within the same reason and mischief as acts and contracts done malo animo. Although at first view the doctrines of this subject may seem to be of an artificial, if not arbitrary character, yet, upon closer observation, they will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice after a wrong has been committed. By disarming the parties of all legal sanction and protection for their acts, they suppress the temptations and encouragements which might otherwise be found too strong for their virtue."

The Approach the Courts should take: Applying Weightman's Case

[55] All parties presented submissions about the principles applicable when construing planning schemes, which inevitably espouse opposites, most famously development for the benefits it may bring, and conservation - the loss of the natural (and built) environment people increasingly appreciate being resisted. There have been many statements by judges over the years about those principles, typically generated in response to a particular issue of construction: they should not be approached as if they were statutes or rules themselves. The Council and the Co-respondent pointed to endorsements by Judge Wilson SC in Kotku Education and Welfare Society Inc v Brisbane City Council [2004] QPEC 68 at [18] and Woolworths Ltd v Caboolture Shire Council [2004] QPEC 15; [2004] QPELR 550, 555 respectively of the collection in Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337, 342:

"I accept that the following principles apply to the construction of Planning Schemes:

1. They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty LTD V. Peter R Hughes & Partners Pty Ltd (1992) 1 Qd. R. 352 at 360; Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 L.G.E.R.A. 41 at 73, 75, 78; Harburg Investments Pty Ltd v. Brisbane City Council [2000] QPEC 32; (2000) Q.P.E.L.R. 313 at 318.

2. They should be construed as a whole (Luke v. Maroochy Shire Council & Anor [2003] QPEC 5; (2003) Q.P.E.L.R. 447).

3. They should be construed in a way which best achieves their apparent purpose and objects (Luke v. Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v. Maroochy Shire Council (1995) Q.P.L.R. 368 at 370; Acts Interpretation Act 1954 s.14A);

4. In the light of the proscription against prohibiting development contained in IPA (s.6.1.2(3));

5. Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v. Brisbane City Council (1998) Q.P.E.L.R. 287);

6. A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 L.G.E.R.A. 224 at 230);

7. A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v. Maroochy Shire Council (supra));

8. Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;

9. A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon's Hotels Pty Ltd v. Logan City Council (1997) Q.P.E.L.R. 208 at 212);

10. Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent (Jenkinson Pty Ltd v. Caloundra City Council [2002] QPEC 22; (2002) Q.P.E.L.R. 527 at 528)." (Per Judge Britton SC)

The appellant preferred his Honour's own summary of principles in Stariha v Redland Shire Council [2003] QPELR 3 at [17] to [18] and sought to demonstrate that there is a place for rigor in planning cases. There was cited Woolworths Limited v Maryborough City Council [2005] QCA 262:

"[36] It is unclear whether that submission [that whether a particular use falls within a definition] proceeds upon an assumption that the question whether a particular use falls within a definition is one of fact, law or mixed fact and law, or whether it implies that such distinctions do not matter. If the latter, the submission is wrong: the distinctions do matter. Insofar as the question is one of fact, it may be accepted that the Planning and Environment Court will give some weight to an opinion of a planning authority that a particular undefined use has qualities which tend to align it with a particular definition. That is consistent with the long-standing view of the Court that it should give such weight as is appropriate in the circumstances of the case to an opinion of a local authority on questions of fact involving town planning expertise. That approach has particular application in appeals from decisions on planning applications (in other words, merits appeals). However insofar as the question is one of law (there being no privative clause in the legislation), the position is otherwise. Then, the question is one for the Court. Australian law recognises no doctrine of deference to a statutory interpretation favoured by a regulatory agency, such as has been recognised in the United States in Chevron USA, Incorporated v Natural Resources Defense Council, Incorporated. [1984] USSC 140; (1984) 467 US 837. Authoritative interpretation of the law is a core function of the courts as the judicial arm of the state.20 In the Planning and Environment Court that applies whether the case is one of merits review or not. Nothing in the two cases cited in the Council's submission (which cases involved questions about the validity of earlier approvals, not merits review) suggests otherwise." (Emphasis added.)

and reminders from the Court of Appeal in Yu Feng v Maroochy Shire Council [2000] 1 Qd. R. 306, inter alia, that words should be given their ordinary meanings unless a special one is made out in some acceptable way. See per Pincus JA at 341-42 and per Mackenzie J at 345. Their Honours thought "periphery" could not possibly have meant what the primary judge had allowed it to mean.

[56] This is an adverse submitter appeal; all appeals in the court are a "hearing anew"; such an appeal, like a developer appeal against refusal of a development application, is approached in practice in a particular way. Having regard to the onus provisions of s 4.1.50, the applicant is called on to make the case for the approval sought from the beginning: it is not at all a case of showing that the Council's decision under appeal was right or was wrong. This does not mean, in my opinion, that the opinion of the Council should simply be ignored. Note the respect paid the Council's fixing of building levels in Daikyo (North Qld) Pty Ltd v Cairns City Council [2003] QPELR 606. In a different context in which the Local Government's stance was seen as perhaps too timorous, Cooroy Golf Club Inc v Noosa Shire Council [2005] QPEC 16, Judge Brabazon QC said:

"[154] If this appeal were to be decided by choosing between the planners' conclusions, then the appellants would be successful. There is much that is persuasive in Mr Ryter's report, as there is in the submissions for the appellants.

[155] However, in deciding whether the planning grounds in favour of the application are, on balance, sufficient to justify approval despite the conflict, the status of Council's planning intentions has to be kept in mind. The Council is the planning authority for the Shire. It has consistently and emphatically set out its intentions with regard to this land. Even if the Council's views are really a counsel of perfection with respect to the catchment area, and if it is taking an overly cautious approach when that might not be necessary, respect still has to be paid to Council's declared intentions. Even though the appellants have been largely successful in showing that the Council's fears about water quality are probably exaggerated, that is not enough. For example, Council's view is that a potential danger is to be avoided, by having no additional subdivision of this land. If the Council takes that approach, then it is not this Court's role to refuse to follow it.

[156] It must be remembered that there are some other expressed reasons why the land is in the Rural Catchment zone - the desirability of a buffer, the limited extent of the water and sewerage plans and a wish to preserve the character of the land.

[157] Once due respect is paid to the planning documents, it can be seen that a rezoning of this land would cut across Council's intentions, including those in the draft Noosa Plan. The intention of the Draft Regional Plan is also significant. That would be a substantial step. It should not be taken in this case. Despite the body of evidence in favour of the appellant's proposal, it does not go far enough to overcome the clear conflict with the planning documents."

The planning arrangements here very much leave it open what constitutes a comprehensive resort development. The Council, as the planning authority, have obviously determined that such a development is proposed by the Co-respondent. I think some weight can be placed on that view, just as some weight might have been placed on the contrary view, if it had been espoused by the Council. There is no suggestion that views which were eccentric, outlandish or demonstrably wrong would be accorded similar respect.

[57] Until the hotel is up and running, duly licensed, there will exist a worrying uncertainty about the site's use ever corresponding with the applicable planning arrangements. The Council and State authorities have been prepared to accept the risk of large portions of this significant site being lost to uses inimical to future tourist development and potentially threatening to the natural values of the site and its surrounds, in the hope that the foreshadowed tourist development will eventuate in accordance with a timetable. A question for the court is whether it should endorse acceptance of that risk. The conclusion, by a narrow margin, is that it should.

•

Whatever concerns may be harboured, there is no basis in the evidence for concluding that the Co-respondent will not, or probably will not or may not proceed with the hotel: Cf Daniels v the Brisbane City Council [2005] QPEC 47.

•

On the evidence, in current and foreseeable economic circumstances, there is a price to be paid for getting the desired hotel or any sizeable tourist development; viability depends on there being concomitant profit-making development for other acceptable uses, here the residential development.

•

The court should not ignore those practicalities where they are the price of getting a facility long sought by responsible State and/or local authorities to supply a glaring deficiency in the accommodation possibilities available for visitors to the city.

•

The inclusion of residential elements with freehold titles to the land available in "resorts" is well established in Queensland, to the extent of generating no surprise. Examples given include Hyatt Coolum (Exhibit 43) and Kingfisher Bay Resort (Exhibit 78). Mr Long made reference to Keswick Island (where there is scope for, and he would like to see many more freehold lots than are presently permitted). At 1220 ff, Mr Brannock acknowledged having been the project director for a proposal called Royal Reef presented to Cairns City Council about 1992 as an integrated resort development, for purposes of the eponymous Act. It was to contain attractions for tourists, 2,451 tourist accommodation units and 4,024 residential lots and houses.

•

The foregoing indicates that expressions such as "integrated tourist development" and the one in the Mackay City Council Strategic Plan 3.17, being "comprehensive resort development", are of flexible import. It is not quite a case that "the word means what I choose it to mean", to quote Humpty Dumpty; there are some limits, but the court should acknowledge that there is no clear meaning, with the consequence that usage over the years has conferred an ability of proposals that are substantially for permanent residential development to claim to qualify as a comprehensive or integrated resort. In respect of either expression, it would be difficult to justify any particular connotation or denotation as appropriate to the exclusion of others.

[58] In the end, I think it is impossible to say that the Council, although differing from their own planning officer(s), were not entitled to accept the characterisation. It follows that the Co-respondent has shown that, in relation to the planning argument made in that regard, the Appellant should fail.

[59] In my opinion, the proposal considered as a whole comes within the amorphous, undefined concept of "comprehensive resort development", which is a specified example of "major tourist facilities" as presented in the Intent for the PDLU in the Strategic Plan. There is no conflict. If this view be mistaken, and/or if those elements of the Strategic Plan identifying other locations for residential development of the scale proposed are breached, then:

(a) the conflict lies in the inclusion in the tourism PDLU area of a large residential component of detached dwellings, being a majority of the 385 provided for;

(b) planning grounds relevant to such conflict exist, the compelling one being the long-standing need in Mackay for a hotel of the size proposed, for which the site is ideal, and which, in practice, will not eventuate without the residential component; that component is compatible with and would support the hotel and associated tourist-retail components of the proposal;

(c) on balance that ground justifies approval of the development application for preliminary approval despite the conflict; the economic benefits to Mackay identified by Mr Meulman are important here, likewise the community benefits emphasised by Mr Trotter, alluded to in paragraph [6].

(d) it is not necessary to rely on them, but other planning grounds favouring approval exist, including:

• the Draft (IPA) Planning Scheme's permitting as much or even more residential development as of right.

• the intent for the Comprehensive Development Zone, as set out in the Planning Scheme 4.2.12, is achieved.

The Co-respondent advanced a much longer list on pages 2 and 79 of written submissions. Circumspection should be observed in accepting "good" outcomes (a fortiori absence of bad ones) as planning grounds: Palyaris v Golden Coast City Council [2003] QPEC 56; [2004] QPELR 162, 168-169. On the evidence, it does not appear that the residential component (if controlled as proposed) will relevantly exacerbate safety and environmental concerns arising from the planning instruments (including the State Coastal Management Plan); the proposal as a whole will bring particular benefits to the environment not otherwise available; there will probably be a "net gain" to the environment compared with the alternative, of doing nothing.

[60] In general terms, sizeable areas will be set aside as buffers for the creek and beach and for conservation purposes, and presumably cared for, by replanting, removing weeds and the like; other benefits include relocating inland the present vehicular track along the frontal dunes. The central question in the appeal, whether there ought to be a preliminary approval, is decided upon on the "use" issue. Detailed attention was directed to environmental and safety issues, in deference to which some remarks should be made about them. I agree with the Council's approach, that they are not determinative. In respect of environmental issues generally, including flora and fauna, the Council relies on the planning history of the site, which in the long term has been earmarked for development rather than preservation for environmental purposes, and on its non-inclusion by the Strategic Plan in any "Environmental Protection and Conservation Management" or Open Space/Recreation category or in the open space and recreation PDLU. See it's submission, paragraph 45(a), alluding to 2.2 of the Strategic Plan: the relevant category is Development in Urban Areas. Those factors are an indication of the relative potency of the various (conflicting) planning intents to be considered. The footnote in [28] above, sets out the stronger provisions calculated to conserve the environment within the last-mentioned PDLU.

[61] The Council's submission that there can be no realistic expectation that conservation aspects of any development would ultimately determine, rather than perhaps influence broad planning outcomes, seems correct in the circumstances. There should be no "inappropriate promotion of some, and only some, of the subsidiary objectives" of the Tourism PDLU (par 46).

Risks from Cyclones: Dr Nott's Report and Evidence

[62] Safety of life and property if the site is developed has become an important issue - which may not have been the case when the State called for tenders. Subsequently, the Department of Natural Resources and Mines has taken a lead in identifying risks to the site, which is a low-lying sand spit, from storm tide/storm surge (with wave effects super-added), recommending suitable precautions to be included in the proposal. The access roads which would be required for evacuation will be inundated long before the site is, as would many occupied parts of Mackay, including the city centre. Protection in case of 1:500 year events was recommended by the Department, reduction of the potential population to a number easily evacuated (rather than any increase) and the like. An evacuation centre on site to hold 3,000 was recommended, and (as seen) once required by the Council. Clarification that sufficient on-site refuge(s) for the anticipated population are required under the new condition 9 would be desirable. Filling the whole area for one in 500 year events was seen as unreasonable and productive of significant environmental loss.

[63] Within the Council, site safety considerations have not been assessed as precluding the proposed development. As the internal planning report put its, "Designing the whole site for ultimate events is impractical." This approach reflects that of the Cairns City Council which Judge Skoien had endorsed in Daikyo. The court in this appeal heard from the same protagonists as did his Honour, and more. His Honour said at 609-610:

"It may be..., as Mr Collins accepts, that Dr Nott's research will one day change the way we look at the effect of cyclones, but it is not the Court's function to pre-empt proper consideration by the Council and other relevant bodies of that research. A responsible Council, in making land use planning decisions, takes into account other factors such as risk acceptance, emergency planning measures and community economics. This Court is not charged with that type of, or degree of, planning.

[25] In my view, condition 28 in its amended form secures compliance with the Council's adopted standard. Whether Dr Nott's preferred level (the marine inundation level) should be substituted for the Council's adopted level depends on whether wave run-up will penetrate 100 metres inland or not. I prefer Mr Collins's opinion and in any event, there are simple engineering solutions to prevent wave penetration which are commonly adopted.

[26] The approval given by the Council is only a preliminary approval, and as Mr Collins says, at the detailed design stage further investigations of wave run-up and penetration will be required. Mr Collins goes on to say that the proposal can be designed to provide an appropriate level of safety adopting lot/fill levels as currently conditioned by the Council and with great confidence. Dr Nott's evidence does not cast any doubt on that opinion.

[27] Finally, s.3.5.30 of IPA requires that a condition be relevant to but not an unreasonable imposition on the development or use of premises as a consequence of the development, or be reasonably required in respect of the development or use of premises as a consequence of the development. The imposition of Dr Nott's preferred marine inundation level sets the bar far higher than has been set for other comparable developments. So it would be an unreasonable imposition on this development, and is not reasonably required by this development. It requires this development to be immune from cyclonic wave effects to an extent that other development is not required to be."

[64] Dr Nott has won the scientific debate, in which, indeed, he was not challenged. His publications have survived peer review. His work, based on examination of ridges of detrital coral and shell material cast up on beaches at several locations in North Queensland, suggests that over the last 5,000 years intense cyclones have crossed any location on the coast there about every 250 years on average. He argues plausibly that this will continue. He says reliance on such records of intense cyclone frequency as have been assembled in the short period of European settlement cannot be justified, and is an unreliable guide. He is not so much prescribing what development standards ought to be stipulated to accommodate the intense cyclones which will come (and whose actual impacts will depend on many factors including tides and wave and wind directions, as well as cyclone intensity), as alerting people to the risks they take while locating themselves in developments on the coast. He thinks the safeguards required by local governments will prove inadequate. The Nott-Collins-Hubbert conclave produced no joint report.

[65] These reasons are prepared while the terrible consequences of Hurricane Katrina in New Orleans and US gulf coast communities further east are publicised daily. The present site is well above sea-level, of course; if inundation happened, any impounding of water could no doubt be relieved quickly by breaching the bund/levee and letting the water out (where this would do least environmental damage, hopefully). The court is acutely conscious of the importance of Dr Nott's arguments. What he fears will probably some time come to pass, fortunately with advance warning at least as long as that which the citizens of New Orleans notoriously had, to permit evacuation of people (there should be no animals) to safety before the escape routes are flooded; nearby Mount Bassett is sufficiently elevated to offer refuge but may be unsafe with cyclonic winds raging. While voices have been raised against re-establishing New Orleans, they probably will not prevail. It seems to be human nature, even when there is a choice, to live or holiday in places which are under threat from disasters of one kind or another, whether cyclones/hurricanes/tornadoes, floods, bush or forest fires, earthquakes, landslides, avalanches, volcanoes and so on, if the benefits by way of a pleasant environment, economic activity, adherence to some tradition or other, et cetera, are judged to make the risk worth taking.

[66] There cannot be too many denizens and would-be denizens of our coastal areas who are oblivious to the catastrophes that may come from the sea and wreak havoc upon life and property. Last year's Asian Boxing Day Tsunami will be fixed in the memories of most of them, but I venture to say will not the change of predilections of many. Those involved in the appeal were well aware of the impacts of relatively local cyclones, such as Althea in Townsville and Steve near Cairns (page 1053); much was said of Cyclone Vance in late March 1999 in Western Australia, the most severe cyclone yet recorded in this country (in the era of European settlement).

[67] It may well be that some cautious people, in the circumstances, will prefer to keep away from East Point. No doubt the Council, as planning authority, is cognisant of the need to balance risk and those other considerations which Judge Skoien summarised as "economics", which would include modern Australians' fondness for being very close to the sea. He said, with citation of authority, that it is for the planning authority (which is not the court) to undertake the balancing exercises involved in setting standards for building levels and the like (609). I do not propose to depart here from his Honour's approach that "it is not the court's responsibility to set the standard".

[68] The views of the "practical" people, such as engineers like Mr Collins, change over time. The tendency has been for standards in these respects to become "higher". Everyone has agreed the ordinary standards for Mackay should be toughened for East Point, given present knowledge. The door should be kept open to admit further changes if new technical advice received by the Council dictates them, as may well occur before completion of the East Point development. Relevant conditions should specify the current (elevated) heights as minimum ones, as well as incorporating general requirements by reference to protection against Q100 events - accepting the Appellant's point that we really do not know what these are.

[69] Doubtless, the Council will take due account of Dr Hubbert's expert views as digested in paragraph 152 of Mr Keim's written submission:

"152. The important thrust of Dr. Hubbert's evidence can be accessed from the transcript at page 944, line 29 - page 952, line 60. In particular, the legitimate issues he raises for the court include:

(a) The lack of any proper statistical study having been carried out for Mackay;179

(b) The use of a cyclone travelling parallel to the coast in Dr. Treloar's computer simulations, thereby, not getting wave and wind action correct. This error is carried into the LITPROF modelling of impacts of wave action on the contours and profile of the beach;180

179T, page 945, lines 20-60.

180T, page 945, lines 45-page 946, line 60.

(c) Lack of a clear policy to take the necessary steps to protect human life from the most severe event.181,182,183

(d) The council policy documents addressing storm surge building levels are inadequate because they are not based on up to date studies.184"

As to (c) the court's approach ought not be dictated by the anticipated folly or stubbornness of the recalcitrants who refuse to follow directions issued to keep them safe. It is reasonable to trust to the good sense of people in respect of their self-preservation; they would not need much experience of Mackay to know that in East Point/Slade Point and other areas their evacuation routes are inundated early. I am confident that in Australia there would be no replication of the abandonment of those unable to evacuate themselves, which happened in New Orleans.

Conclaves of Experts: Visual Amenity, Planning/Economic, Flora/Fauna, Engineering (Water)

[70] There are in evidence reports of four separate conclaves of experts including recommendations, which ought to be incorporated in conditions of any preliminary approval. The briefest is Exhibit 38:

181T, page 952.

182The importance of this aspect of planning was emphasised by Mr Patterson. See exhibit 26 at paragraphs 4.1 and following. The behavioural difficulties associated with moving people from their own homes; moving older people from retirement homes and the accumulated effect of false alarms were broadly agreed by Mr Collins at T, page 150, line 35 - page 151, line 30.

183The evidence of Mr Holland, experienced traffic expert as he is and the Main Roads Standards tendered through his evidence (exhibits 55 and 56, T, pages 670[676) are irrelevant in respect of these issues. What is

being proposed is to place a residential development in a specific place which is likely to be isolated very easily from safe high ground and may be susceptible to flooding from storm surge about which settled knowledge is full of great uncertainty. It is of no assistance in respect of that question to say: "Well, generally, across Australia, we expect people to build new bridges above a 1 in 100 years flood level." The general standard to apply to every situation in Australia is always going to be less focussed than questions of planning involving placing a new generation of residents in a potentially dangerous situation. That the respondent's and co-respondent's case does not accept this type of proposition and exudes self-satisfaction as a result would, it is submitted, be a matter of great concern for the Court.

"AGREED OUTCOMES OF CONCLAVE ON VISUAL AMENITY ISSUES FOR PROPOSED DEVELOPMENT AT EAST POINT, MACKAY.

The following outcome was agreed upon by all parties:

1.0 Visual Prominence

The 5-storey hotel tower is not likely to have significant visual impact on the residential areas to the west particularly, North Mackay, Cremorne and East Mackay."

On that basis, issues of visual amenity need no further consideration, although the court was assisted by photo-montages showing several aspects of the anticipated

visual impact of the proposal. This will be markedly less than that of development to the north near the marina. The other conclaves produced more disagreement.

"CONCLAVE OF PLANNING AND ECONOMIC EXPERTS

John Brannock

Chris Schomburgk

Denis Brown

Anthony Meulman

1. All of us agree that the planning issues in the appeal are:

I. conflict with the Strategic Plan - in particular that the nature of the proposal is not predominantly tourism;

II. conflict with the Strategic Plan - in particular that the pattern of residential land use for the City is adversely affected by this proposal;

III. conflict with the Strategic Plan - in particular the three elements of the Tourism designation;

IV. conflict with the Queensland State Coastal Management Plan; and

V. need for the proposal.

In regard to the environmental impacts of the proposal and IV we defer to other experts.

2. The predominant land use is tourism, but John Brannock says it is predominantly residential. Chris Schomburgk, Denis Brown and Anthony Meulman say that the hotel suites, serviced apartments, accommodation units and some detached housing are tourist accommodation, and there are other tourist facilities on site.

3. John Brannock says there is no need for a residential subdivision to be developed on the subject site, due to sufficient land being available within existing designated areas. Anthony Meulman agrees that there is sufficient land designated for residential uses.

Chris Schomburgk says that he has not investigated the availability of other land because he does not think it is relevant because the subject proposal is not a residential estate in the conventional sense. Dennis Brown agrees that there is sufficient land designated for residential uses in Mackay but contends that need can be demonstrated for reasons related to the location on the site proximate to the water and other amenities including tourist facilities to be located on-site.

4. It is agreed that an important reason residential components have been used by developers is to provide a more certain funding stream to allow the tourist accommodation sections establish a market presence.

5. John Brannock asserts that the proposal does not focus on tourism and therefore is inconsistent in relation to the location objectives for the Tourism PDLU. Chris Schomburgk and Denis Brown disagree because they say it is a comprehensive resort development. Anthony Meulman agrees that the proposal is a comprehensive tourism resort.

6. With respect to the land use objectives, John Brannock states that the development is not a high quality ecologically sustainable tourist facility. Denis Brown and Chris Schomburgk disagree because this is an application for Preliminary Approval only and the specific details of each of the land use components are the subject of future development applications.

7. With respect to the environmental aspects of site suitability we defer to other experts.

8. John Brannock says that it is questionable whether there is a need for another large scale hotel. Dennis Brown and Chris Schomburgk defer to Anthony Meulman. Anthony Meulman says there is a need for the hotel because the proposal improves the range and depth of tourism accommodation in Mackay. Anthony Meulman says that there is a need for the proposal as a whole."

In 2, the majority view is more persuasive, although it may make too much of the detached housing as tourist accommodation. As to 3, there is "need" for such housing only in the sense that if it were on the market, the demand would be great, with many buyers (probably most buyers who could afford it) preferring to live on the site rather than in some of the locations expressly favoured by the planning arrangements. There is sufficient tourism focus, if the hotel eventuates, to justify the majority view in 5; the additional tourism facilities, which are far more sympathetic to the natural environment than those nominated by the Co-respondent in its original tender and perhaps regretfully abandoned (they were more conventional "tourist/resort" facilities), ought not be overlooked: to an extent they will test the market for eco-tourism at a rather modest, even pedestrian level. In the circumstances, the majority view in 6 is correct: much will depend on the detail of future approvals. As to 8, Mr Meulman is correct about the planning need for the hotel and the proposal otherwise (but not detached housing for permanent residents).

"POINTS OF AGREEMENT AND DISAGREEMENT

Expert Conclave between Rogers and Olsen and Watson and Agnew

Held by telephone conference on 1 March (1915-2055 hrs)

Points of Agreement

1. Rogers, Watson, Olsen and Agnew agree that the quality of water exiting the site1 into adjoining habits is a critical issue.

2. Rogers, Watson, Olsen and Agnew agree that the current sand mining operations and inappropriate recreational use is creating environmental harm on Harbour Beach and throughout the dune landscapes, including the site.

1 For the purposes of this document, the "site" is defined as that area defined as the "East Point Development Site" as

described in Figure 3 of Watson (2005) Terrestrial Vertebrate Assessment East Point, Mackay.

3. Watson and Agnew agree that parts of the site (i.e. areas identified on Figure 3 of Watson (2005) within the southwest corner, southeast corner, on the western boundary and northeast corner) support habitat suitable for significant fauna species (see Watson figure 3).

4. Rogers, Watson, Olsen and Agnew agree that the prohibition of cats and dogs on the site is highly recommended.

5. Watson and Agnew agree that the following significant species are known or likely to occur on the site:

a. Spectacled Flying-fox Pteropus conspicillatus - Likely

b. Grey-headed Flying-fox Pteropus poliocephalus - Likely

c. Short-beaked Echidna Techyglossus aculeatus - Known

d. Eastern Curlew Numenius madagascariensis - Known

e. Rainbow Bee-eater Meops ornalus - Known

f. Dollarbird Eurystomus orientalis - Known

g. Spectacled Monarch Monarcha trivirgatus - Known

h. White-throated Needletail Hirundapus caudacutus - Likely

i. Fork-tailed Swift Apus pacificus - Likely

j. Black-faced Monarch Monarcha melanopsis - Likely

k. Beach Stone-curlew Esacus neglectus - Known

l. Rufous Fantail Rhipidura rufifrons - Likely

6. Watson and Agnew agree that the portion of the site not described in the point of agreement (Point 3) above, i.e. the remainder of the site, supports habitat suitable for certain significant species (but not including those listed as "Rare, vulnerable, endangered" under the Nature Conservation Act 1992 (Wildlife Regulations) or/and "Endangered or vulnerable under the EPBC Act 1999) listed below

• Short-beaked Echidna Tachyglossus aculeatus - Known

• Rainbow Bee-eater Merops ornatus - Known

• Dollarbird Eurystomus orientalis - Known

• Spectacled Monarch Monarcha trivirgatus - Known

• White-throated Needletail Hirundapus caudacutus - Likely

• Fork-tailed Swift Apus pacificus - Likely

• Black-faced Monarch Monarcha melanopsis - Likely

• Rufous Fantail Rhipidura rufifraons - Likely

Points of disagreement

7. Rogers and Olsen disagree on the native vegetation description for the site with respect to the area described by DNRM as disturbed, as pasture by Rogers and as Regional Ecosystems 8.2.9 by Olsen.

8. Rogers and Olsen disagree on the appropriate survey protocols to be used to define the nature of the area described by DNRM as disturbed, as pasture by Rogers and as Regional Ecosystem 8.2.9 by Olsen.

9. Watson agrees and Agnew disagrees with the findings of Pillsworth (2005) in regard to fauna matters.

10. Rogers agrees and Olsen disagrees with the findings of Pillsworth (2005) in regard to flora matters."

The first two signatories were called by the Appellant. Their reports and evidence gain impressive "field" support from the Appellant's lay witnesses, Maureen Cooper (Exhibit 63) and Patricia Julien (Exhibit 65). The other signatories and Dr Pillsworth were called by the Co-respondent. There is room for genuine differences of opinion about appropriate survey protocols and about the flora and fauna values of the site, the former particularly. Whether (and what) additional parts of it merit conservation depends on where one places the bar, accepting that the measures already in place and proposed by the Co-respondent for protection of the beach (turtle habitat) and the marine habitat to the west, the Casuarina forest and generous corridors for wildlife as a starting point. Presuming open space to be preferable to development, especially in a location like East Point, it may be seen as regrettable that there is no will in any public or private quarter, to not only keep more open space, but to rehabilitate it. The site is badly degraded from neglect during the grazing era with introduced grasses and weeds like Lantana rampant. Ironically, only the development proposed offers any real prospect of some rehabilitation.

[73] There was debate about whether the site, left as it is, would recover the natural values it should have. While in some respects, such as groundwater (and run-off water) quality, with the end of grazing, there will be improvement, I am not persuaded that the Lantana et cetera, situation would unfold satisfactorily, or that the site, without help, would regenerate. With some human intervention, floristically similar land at Slade Point, nearby, has recovered encouragingly and may be enjoyed by the public. What now exists at Slade Point does not mean that East Point should be sacrificed, but it reduces what might otherwise be an imperative to preserve more at East Point. One would hope that the areas to be kept open will include a viable group of the forest or tree "clumps" which are a distinctive and interesting feature of the site, typically in need of having weeds removed. My understanding of the Dr Pillsworth's evidence at 734 is that there will be preserved in the western buffer mycrophill forest of 1.5 ha: "mycrophill which exists as clumps". All things considered, including the conclusions at [60]-[61] above, I adopt the Co-respondent's approach at 210-220 of its submissions, that the development conditions to be set and compliance with the Vegetation Management Act 1999 offer an acceptable (rather than ideal) outcome; Dr Olsen recommended a higher standard of protection for grassland areas in particular. The Department of Natural Resources and Mines' requirements of the Vegetation Management Plan appear in its letter of 27 May 2003 (Exhibit 32 page 354ff); a "net gain for conservation" is demanded.

[74] I understand the Appellant's misgivings, even cynicism about the Co-respondent's environmental program which will be incorporated in a required Environmental Protection Program (EMP), and the dollar amounts put on some aspects. The reality is, however, that in this instance, something is shown to be better than nothing. The Council (and perhaps the State) can be encouraged to be vigilant about environmental aspects in assessing applications for particular development to be permitted to proceed as they come in. Having regard to the options that exist in practice, those aspects are not a basis for refusing the approved application.

"Conclave Agreement

Civil Engineering Matters

Points of Agreement

1. The proposed perimeter filling for the site, as detailed in the refined proposal, to a minimum level of RL 6.5mAHD, and with minimum allotment levels of RL 5.4mAHD provides an appropriate level of protection against river flooding and satisfy the approval conditions set by Council. Peak river flooding is unlikely to be coincident with storm tide. PMF flood levels are predicted by Chaseling McGriffin to be RL 6.4mAHD at the site.

2. The proposed RL 6.5mAHD perimeter filling provides protection against the Probable Maximum Pioneer River Flood.

3. The provision of first floor safe refuge areas in at least 3 locations distributed across the site provides adequate emergency accommodation during extreme river flood events.

4. The refined proposal presents an acceptable safety level, and is a much safer site than much of Mackays current CBD, in terms of river flood inundation.

Points of Disagreement

5. Subject to appropriate detailed design, the provision of a balanced water cycle on the site, including the use of rainwater tanks and distributed infiltration points, and the specification for no groundwater extraction, can ensure, subject to appropriate detailed design, minimal changes to groundwater and the water table. Such a balance could be achieved through strict covenant requirements on landholders as conditions of sale, e.g. restrictions on the use of exotic plants, prohibition of spear pump irrigation, restrictions on fertilizer usage.

-Agreed N. Collins & P. Harding

-Disagreed A. Patterson

6. The proposed stormwater management system for the refined proposal has been quantitatively assessed, using accepted industry practice, and has been shown to be capable of achieving the desired water quality prior to infiltration or runoff from the site subject to appropriate detailed design.

-Agreed N. Collins & P. Harding

-Disagreed A. Patterson

7. Accidental spills can be managed through containment in roadside swales.

8. Sewer wet well storage sizes can be such that adequate holding capacity for up to 24 hours can be provided, allowing time for repair or pump-out to tankers. Such an arrangement means the risk of spills adversely affecting adjacent water systems is low. The containment strategy proposed for the site is extensive and adequate, particularly when compared to the current Mackay CBD, where any spills will directly discharge to the river.

-Agreed N. Collins

-Disagreed A. Patterson

-P. Harding advised that this is outside his area of expertise

Reasons for Disagreement

5&6 -A. Patterson advised that he needs access to models/analysis for more detailed checking. He also has concerns about the degree of impermeability proposed affecting surface and groundwater quantities.

7. A. Patterson expressed concerns about the ability to neutralise spills.

8. The degree of sewerage overflow in the event of major power outages (.e.g. during a cyclone) was of concern to A. Patterson.

..............................................................................................................Neil Collins Andrew Patterson Paul Harding

Thus, river flooding disappeared as an issue, as did traffic issues, except as bearing on safety in an evacuation scenario. Dr Harding was the Council's independent advisor on flooding, storm inundation and public safety concerns. It may be taken that anything Mr Collins suggests or agrees to is acceptable to the Co-respondent. The perimeter filling (also referred to variously as a bund, berm or levee) would (except in Dr Nott's view) provide adequate protection against storm surge from the sea at the indicated height, which should be set as a minimum, and in such a way that the Council may be able to insist on more, if the engineering science changes. Likewise for building levels. As its written submissions summarise:

"(a) The Council's Policy 1.27 (Exhibit 29), in setting minimum building floor levels for the relevant area (Mackay and environs) at RL 5.4 AHD specifically takes into account:

(i) the estimated 1 in 100 year frequency tide surge; plus

(ii) an allowance for factor of safety;

(iii) the green house effect;

(iv) stormwater drainage, free board; and

(v) minor wave effects

(see Section 1(a)).

...the policy also specifically deals with "additional allowance...for higher wave effects and run-up in the foreshore area" of an additional 0.4 metres. That additional is not required as the foreshore area as defined is the area "extending inland for a minimum of 100 metres from the tow of the frontal dune unless otherwise determined to the satisfaction of Council" and in this case no building is proposed within 100 metres of the tow of the frontage dune.

Notwithstanding that under Policy 1.27 the floor level for this locality is 5.4, the proposal is to be for floor levels at 5.7 metres AHD.

(b) Policy 1.26 (Exhibit 30), in setting minimum levels for the relevant area (Mackay City and environs) at RL 5.0 AHD specifically takes into account:

(i) the estimated 1 in 50 year frequency tide surge; plus

(ii) an allowance for a factor of safety;

(iii) the greenhouse effect;

(iv) stormwater drainage free board; and

(v) minor wave effects.

...this policy includes an allowance for wave effects of 0.4 metres, but again, this only applies to the foreshore area namely 100 metres from the tow of the frontal dune and, in the present case, no development is proposed within that distance.

...the minimum building pad height proposed at East Point is 5.4 metres AHD (0.4 metres higher than the standard) and...it is proposed to construct a non-erodable bund at 6.5 metres AHD behind the existing sand dunes which are in the order of 7.0 metres AHD in any event."

There should be a condition of "non-erodability", the precise requirements for which cannot be specified on present evidence; they will have to be indicated by Council in due course.

[76] Mr Collins is supported by or relied on other experts, Mr Treloar and Mr Briese. Mr Patterson advocates a conservative approach, based on long experience, much of it in North Queensland. He is cautious about accepting as efficacious methods that have not been successfully implemented before, and in important respects, have not yet been designed. The expressed confidence of the others impressed me.[2] They conceded that experience may reveal a need for changes, particularly additional pits to ensure that groundwater under the site is adequately replenished. The impermeability referred to is meant to protect groundwater and its quality and is to be achieved by placement of a layer of clayey soil or material. (One of the Appellant's concerns was the amount of the site facing disruption by placing of the layer. Suitable limits can be embodied in future approvals or permits). If the appropriate standards are not achieved as the staged development goes ahead (monitoring should be required) later stages may be denied approval. It is odd to

reflect that if the whole site were to be developed chock-a-block full of major tourist facilities - resort hotels with lawns, golf courses, theme parks, water slides and the like and large sealed car parks, the concerns the engineers wrestled with might seem less troublesome, just part of the impacts (to be managed as well as may be) of "tourism" development.

[77] Mr Keim has usefully isolated relevant statutory references:

"State Coastal Plan

77. Section 50(1) of the Coastal Protection and Management Act 1995 ("the CPA") provides as follows:

'The assessment manager, or a referral agency, for a development application under the [IPA] must assess the application as if a relevant coastal plan were a State planning policy under that Act.'

78. Thus, coastal plans are picked up as part of the assessment process for this proposal because of the reference to State policies in paragraph 6.1.29(3)(e) IPA.

79. The Coastal Protection Act defines "coastal plan" as "the State plan" or a "regional plan".

80. The State Coastal Management Plan ("the State Plan") has been prepared pursuant to part 2 CPA.

81. Inter alia, it provides as follows:

"2.1 Coastal Use and Development

...

Section 2.1.2 Settlement Pattern and Design.

...

Policy

To the extent practicable, the coast is conserved in its natural or non-urban state outside of existing urban areas. Land allocation for the development of new urban land uses is limited to existing urban areas and urban growth is managed to protect coastal resources and their values by minimising adverse impacts.

Section 2.1.10 Tourism and recreational activities.

...

Policy

The diversity and quality of recreational and tourism opportunities are maintained while ensuring that the coastal resources and their values upon which these experiences rely, are protected. ... New tourist or recreational developments must be compatible with the coastal landscape values of the area and be of a scale that does not result in a significant impact on the coastal resources and their values.

2.2 Physical coastal processes

Coastal management outcome

The coast is managed to allow for natural fluctuations to occur, including any that occur as a result of climate change and sea level rise, and provide protection for life and property.

Principles

...

2C The consequences of physical coastal processes are recognised and such processes are generally allowed to occur naturally.

2D Risks associated with all relevant hazards including storm tide inundation and cyclone effects are minimised.

2E The natural topography and physical features of coastal dune systems which provide adjacent areas with protection from inland erosion are to be protected and managed on an ecologically sustainable basis.

...

2.4 Water quality

Coastal management outcome

Water quality in the coastal zone is maintained at a standard that protects and maintains coastal ecosystems and their ability to support human use.

...

2.7 Coastal landscapes

Coastal management outcomes

The scenic and cultural values with coastal landscapes are protected.

...

2.8 Conserving nature

Coastal management outcome

Coastal ecosystems, including their ecological processes, opportunities for survival, biological diversity and potential for continuing evolutionary adaptation, are maintained, enhanced and restored.

...

2.9.4 Private use of State land on the coast

...

Policy context

State land on the coast is a key public resource that should be managed to achieve coastal management outcomes. Where private interests are permitted on State land on the coast, they should be compatible with achieving these outcomes.

...""

I agree with his summary, that the plan "can be seen to reinforce ... the existing provisions of the Planning Scheme, especially the Strategic Plan, with an added coating of caution". While State Planning Policies have to be taken into account, they will rarely be determinative. Here there is the special circumstance that the State throughout has been and is well placed to look after State interests as lessor, being under no obligation to make concessions to the Co-respondent. The State may be presumed to have used its opportunities as fully as it thought appropriate. To require the Council or the court to take things further would be odd. The Appellant's points are that:

•

2.1.2 and 2.1.10 are offended by the "urban scale of the proposal including one third of the site devoted to detached houses in an area of precious coastline (and sand spit) that is otherwise free of urban development"

•

"Ecological processes" on the site are not being maintained, let alone restored.

•

"Natural fluctuations" are interfered with, notably by the berm/bund/levee.

•

Risks are not being minimised.

•

There is no encouragement of "major tourist facilities", et cetera; rather, the Appellant's favoured eco-tourism use is supported (here the local planning arrangements would prevail).

[78] It is suggested that any weight to be accorded the Draft Planning Scheme (creating as of right residential uses) is reduced because of inconsistency with the State Plan, also that the site's being public land adds further weight to the strictures of the State Plan. As to the latter, I would think the reverse is the case. The State can surely look after State interests, and will do so to the extent considered appropriate in the processes surrounding the Draft Planning Scheme. The Appellant and its supporters will not be the only ones sad to see the northern half of this special site at East Point given over to development rather than kept available in toto for conservation (to quote the State Plan) or for warehousing to await some other development proposal, which will not include a sizeable dormitory suburb. There has been no sign of developer or State or volunteer interest in the kinds of proposals the Appellant would like to see. The State appears to want the site's future decided now, rather than later. In the circumstances, the State Coastal Plan requires no further consideration. It is doubtful that it applies in any event, having regard to 2.1.2, as the planning documents identify the site as urban area.

[79] Notwithstanding the special features of State involvement, the appeal proceeded and is decided as if those did not exist. The State's attitude to the merits (if it were relevant) is unknown. There is no way of giving effect to the observations of those wishing to support the Council's decision that the State, as lessor, will ensure a second level of review as the proposal is implemented; there is no way of knowing whether that amounts to any particular or general comfort to anyone. The Court of Appeal has endorsed the notion of some weight being given to an opinion of a planning authority about a proposed use corresponding with a particular undefined use (Woolworths v Maryborough [36], set out in [55] above). I am in agreement with the Council that the present proposal is a "comprehensive resort development" as a matter of fact; there is no persuasive basis for taking a different view if the issue is seen as one of law or mixed fact and law. If that opinion be wrong, and conflict exists with the Strategic Plan because the proposal is not "tourism" or because it involves residential development in a contra-indicated location, planning grounds sufficient to justify accepting any such conflict exist.

[80] The conditions of the preliminary approval ought to be strengthened, as indicated in Mr Keim's list in para 165 of his submissions (except for (g), which goes too far):

"The developer has particularised that all conditions proposed by witnesses form part of its proposal. A review of the evidence indicates that the following conditions form part of the proposal:'

(a) A condition attaching to all subdivisions of the proposal land that no cats or dogs are allowed to be kept in any accommodation (including detached residences) on the proposal land.

(b) A condition attaching to all subdivisions of the proposal land that landscaping of residential land will be in accord with the environmental management plan to be developed and approved as part of the conditions of the approval including strict restrictions on herbicides and fertiliser (Pillsworth, exhibit 12, pages 31 and 55).

(c) A condition attaching to all subdivisions of the proposal land requiring a non-erodible bund on 3 sides of the development to a maximum of 6.5 metres; minimum allotment levels of 5.4 metres AHD and minimum floor levels of 5.7 metres AHD and a requirement that development be 100 metres back from the shoreline (page 68 of transcript - opening by Mr Trotter). Shoreline appears to mean Mean Sea Level (see Perkins at T, page 647, lines 40-50).

(d) A condition preventing use of groundwater by spear pumps (see, for example, Collins at T, page 137, lines 1-20).

(e) A condition attaching to the residential lots requiring that they remain subject to the clay sealing process (Collins, page 136, lines 10-30).

(f) A condition that the constructed sub-divisions comply with the nutrient discharge both into groundwater and as part of stormwater match the standards set out in exhibit 15, chapter 6, page 30 and following.

(g) Query: a condition on all accommodation units; multiple dwelling units and detached housing preliminary approvals that no such future use may be occupied by permanent residents of any kind. This condition appears to have been agreed to by Mr Trotter despite his vagueness as to the precise limitation on stay."

• to ensure the hotel comes into operation: [45]

• to protect the groundwater situation: [38]

• building covenants, et cetera [40].

• limiting duration of occupation of resort retirement units [19].

• defining the Tourist Hub [14].

• clarifying condition 9 [62].

• regarding levels of the "bund" [68] (the Appellant's (g) is probably intended to fix a "minimum" height for the latter).

Appropriate conditions, about which the parties may be able to agree, on top of those already included in the Negotiation Decision Notice should produce acceptable safety and environmental outcomes; issues regarding those subjects do not, in the circumstances, stand in the way of the preliminary approval's being granted.

[1] This PDLU (in accordance with 3.9): "depicts the major open space network of the City which includes:

• flood prone areas, including those areas subject to inundation;

• open space along the Pioneer River;

• areas of coastal wetlands, tidal lands and those erosion prone or coastal "control districts" as declared under relevant State legislation;

• national and conservation parks;

The network is intended to be linked to enhance the environmental values.

To provide for areas of open space which accommodate both active and passive recreational opportunities.

To control appropriate forms of development and land use.

It is intended that these islands remain in a relatively natural state and used only for low key tourism and recreation.

(a) Public open space preserved and conveniently located for the active and passive recreational needs of the community.

(b) Private recreational facilities consistent with the intended character of the area, on land which is accessible and convenient.

(c) Recreational use sustained without adverse environmental impact.

(d) To protect coastal ecosystems from the adverse effects of development.

(c) Development for private recreational purposes which:

(ii) protects significant natural vegetation and areas or features of environmental significance; and

(d) Development on or adjacent to coastal areas, or coastal "control districts" which meets relevant State Government requirements, and which has no material impacts on the ecological integrity of the coastal wetlands and tidal environments.

(a) To protect allocated areas from inappropriate forms of development.

(c) To protect coastal ecosystems from the adverse effects of development.

(d) To ensure recreational use of national parks can be sustained.

(c) Development on or adjacent to coastal areas meets relevant State government requirements, and has no material impacts on ecological integrity.

(d) Development which is subservient to the natural environment and meets the requirements of the Nature Conservation Act."

[2] Illustrative of the uncertainty is the following, from cross-examination of Mr Briese at 205:

"At the present time, one has this permeation through a whole planar area...Yes, it's over a uniform area.

...We're assuming...that the rainwater tanks can adjust the actual level up or down. Is there any research that indicates that by matching the volumes from 20 points or so...you produce the same sorts of drainage regimes, or is it impacted upon by the fact that it's coming through a median number of almost point sources?-- They are point sources but they're relatively evenly spread around the site. The sand mass is a uniform sand mass. ...you'll have a slight mounding of the water table where the infiltration points are, ...The groundwater mound would dissipate outwards and you'll get overlapping of these mounds from each ...point so that you get a relatively uniform water table which by the time it gets to the discharge area gives you a uniform outflow...based not on exact experience but on 30 years of being (a) hydro geologist and knowing how groundwater moves...

This seems to be an unusual engineering device...to catch all of the water that falls on the site and then recharge it through ...point sources be they 10, be they 20. Has that been applied to those extremes in previous things you've been involved in?-- My understanding is that it's not that unusual. Even reading Mr Patterson's report he said this is by swales and by a remediation infiltration...

Certainly the use of swales per se is not, but do you have any personal experience where to this extent it has been tried, catching all of the water and then discharging a certain amount of it back to match the discharge regime? - No, I have to say I don't, but I have had a lot of experience with sand mass groundwater movement."