Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2023] QPEC 24 (2024) QPELR 860

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2023] QPEC 24 PARTIES: DEVELOPMENT WATCH INC. (First Appellant) SUNSHINE COAST ENVIRONMENT COUNCIL INC. (Second Appellant) v SUNSHINE COAST REGIONAL COUNCIL (Respondent) And SH COOLUM PTY LTD (ACN 146 376 972) (Co-respondent) FILE NO/S: D166/18 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 8 June 2023 DELIVERED AT: Brisbane HEARING DATE: Original hearing on 18 to 30 November and 2 to 6 December 2019 and further evidence received 19 March 2020 and 28 April 2020 and further written submissions received on 17 March 2020, 23 and 26 March 2020 and 28 April 2020 And further hearing on 1 and 2 August 2022 JUDGE: Kefford DCJ ORDER: I order: (a) the appeal is dismissed; and (b) the Respondent’s decision to approve the development application subject to conditions recorded in the decision notice dated 21 June 2018 is changed to a decision to approve the development application subject to the conditions in the development approval package attached as “Annexure A” (and paginated as pages 1 to 656 and 70A and 70B) to the Judgment that is court -- 1 of 269 -- 2 document number 90 on the court file for Appeal No. D166 of 2018. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where the Court of Appeal found an error of law in assessment against one assessment benchmark – where the Court of Appeal remitted the matter to the Planning and Environment Court for redetermination – whether the issues raised by the submitters fall within the scope of a remitted hearing – whether the height of the proposed development is consistent with the reasonable expectations of the local community PLANNING AND ENVIRONMENT – APPEAL – where submitters appeal against Council’s decision to approve a development application for a mixed use development – where development application sought preliminary approval for material change of use (request to change the effect of planning instruments) – where the development application sought development permits for reconfiguration of a lot and for material change of use – whether proposed development complies with relevant assessment benchmarks – whether the proposed development should be approved in the exercise of the Court’s discretion LEGISLATION: Building Act 1975 (Qld), s 30 Coastal Protection and Management Regulation 2017 (Qld), sch 3 Integrated Planning Act 1997 (Qld), s 3.5.5, sch 10 Local Government Act 2009 (Qld), s 251 Planning Act 2016 (Qld), ss 8, 16, 43, 45, 59, 60, 61, 311, sch 2 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47 Planning Regulation 2017 (Qld), s 31, sch 9, sch 10, sch 11, sch 12, sch 24 Queensland Heritage Regulation 2015 (Qld), sch 2 Sustainable Planning Act 2009 (Qld), ss 305, 314, sch 3 CASES: Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved Aldred v Beaudesert Shire Council (1978) 37 LGERA 404, approved -- 2 of 269 -- 3 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, approved Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, considered Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, applied Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council & Anor [2022] QCA 246, applied Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, applied Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, applied Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, cited Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, approved Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved Jeteld Pty Ltd v Council of the City of Toowoomba & Anor [1997] QPELR 213, approved King & Ors v Australian Securities and Investments Commission [2018] QCA 352, applied Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, approved Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, applied -- 3 of 269 -- 4 Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, cited Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, approved Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved Murphy & Sons Ltd v Secretary of State for the Environment [1973] 2 All ER 26, applied Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor [2023] QPEC 8, cited Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, approved Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 276, applied Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, applied Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied COUNSEL: P Hack KC and A Skoien for the First Appellant C Hughes KC and M Batty for the Respondent D Gore KC and J Houston for the Co-respondent -- 4 of 269 -- 5 SOLICITORS: Ray Barber Solicitor for the First Appellant N McCarthy self-represented as agent for the Second Appellant Legal Services, Sunshine Coast Council for the Respondent Corrs Chambers Westgarth for the Co-respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 7 What are the issues that require determination? ................................................................... 8 What do the Appellants contend are the issues for determination? .................................. 8 What is the approach to be adopted for a hearing on remitter? ...................................... 10 What were the findings of the Court of Appeal as to the errors of law? ........................ 12 What were the submissions of the parties about the task to be undertaken? .................. 20 What are the errors that require correction and what is the scope of the remitted hearing? ........................................................................................................................................ 28 What is the relevant legislative framework for determining the appeal? ........................... 33 What are the features of the proposed development that are to be assessed? .................... 37 What are the expectations of the local community about the height of buildings and structures? ........................................................................................................................... 39 What is the evidence relevant to the issue of expectations of the local community? ..... 39 What do the submissions reveal about local community expectations? ......................... 41 What is the evidence of the lay witnesses? ..................................................................... 54 What is revealed by the evidence in the certificate of the Chief Executive Officer? ...... 57 Conclusion regarding expectations of the local community about the height of buildings and structures ................................................................................................................. 64 Are the expectations of the local community about the height of buildings and structures reasonable? ......................................................................................................................... 74 Is the proposed development consistent with the reasonable expectations? ...................... 77 Does the proposed development comply with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme? ... 78 Are any of my unchallenged findings affected by the additional evidence or my changed findings? ............................................................................................................................. 78 Does the additional evidence or changed findings alter my reasons for rejecting Mr Arno King’s evidence? ............................................................................................. 78 Does the additional evidence or changed findings alter my unchallenged finding of compliance with the overall outcome in s 8.2.8.2(2)(a) of Height of buildings and structures overlay code? ................................................................................................. 79 Does the additional evidence or changed findings alter my findings about whether the scale, bulk and nature of the proposed development exceeds reasonable community expectations?................................................................................................................... 86 -- 5 of 269 -- 6 Does the additional evidence or changed findings alter my findings about whether the extent of community opposition, and the substance of it, support refusal of the proposed development? .................................................................................................................. 90 Does the additional evidence or changed findings alter my findings about whether it is in the public interest for the proposed development to be approved and the exercise of the planning discretion? ................................................................................................ 104 What are the unchallenged and undisturbed findings from my earlier decision that are relevant to the exercise of the discretion? ........................................................................ 104 What is the significance of the non-compliance with the Height of buildings and structures overlay code? .................................................................................................................... 104 Should the development application be approved in the exercise of the planning discretion? ........................................................................................................................ 107 Conclusion ........................................................................................................................ 112 Annexure A: Response to the questions posed in the Appellants’ Lists of Issues ........... 113 Question 1 – At what time are the community expectations to be found? ................... 113 Question 2 – What are the expectations of the local community? ............................... 114 Question 3 – Are the expectations of the local community unreasonable? .................. 114 Question 4 – Are the proposed heights consistent with the reasonable expectations of the local community? .................................................................................................... 114 Question 5 – What is the nature and extent of inconsistency? ..................................... 115 Question 6 – Does the proposed development comply with the overall outcomes in ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme? ........................................................................................... 115 Question 7 – What do the public submissions convey to the Court? ........................... 115 Question 8 – What weight should be given to the community views? ......................... 115 Question 9 – Does the extent and content of opposition in the public submissions militate against approval? ............................................................................................. 116 Question 10 – What weight should be given to the amendments to the Height of buildings and structures overlay code? ......................................................................... 116 Question 11 – Does the proposed development comply with the overall outcomes in ss 8.2.8.2(2)(a), (b) and (c) of the Height of buildings and structures overlay code in version 24 of the Planning Scheme? ............................................................................. 116 Question 12 – What weight should be given to any non-compliance with the overall outcomes in the Height of buildings and structures overlay code in version 24 of the Planning Scheme? ......................................................................................................... 117 Question 13 – How should the discretion of the Court be exercised? .......................... 117 Annexure B: Examples of the pro-forma submissions with handwritten comments ....... 119 Annexure C: Corrections to cross-references in original reasons for judgment .............. 130 Annexure D: Original reasons for judgment .................................................................... 144 -- 6 of 269 -- 7 Introduction [1] SH Coolum Pty Ltd wants to develop a vacant parcel of land located between the coastal townships of Coolum and Marcoola in five stages, starting with a five-star resort complex. It made a development application to Sunshine Coast Regional Council (“the Council”) to facilitate that end. [2] The Council approved the development application on 21 June 2018, subject to conditions. [3] Two community organisation submitters, Development Watch Inc. and Sunshine Coast Environment Council Inc. (“the Appellants”) appealed the Council’s decision to this Court. They sought orders that the development application be refused. [4] For reasons provided in a judgment delivered on 25 May 2020, I dismissed the appeal, confirming the decision of the Council to approve the development application.1 As part of that decision, I found that the proposed development complied with some of the relevant assessment benchmarks in the Height of buildings and structures overlay code, including the overall outcome in s 8.2.8.2(2)(b). That overall outcome requires that “the height of the buildings and structures is consistent with the reasonable expectations of the local community”. [5] Development Watch Inc. applied for leave to appeal my decision to the Court of Appeal. The Court of Appeal described the appeal as having a narrow basis. The challenge was said to be focused on my finding that the development complied with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Sunshine Coast Planning Scheme 2014 (“the Planning Scheme”2).3 My finding about the achievement of the overall outcome in s 8.2.8.2(2)(a) was not challenged,4 nor were my many findings about other issues.5 There was no allegation of non-compliance with the overall outcome in s 8.2.8.2(2)(c) of the Height of buildings and structures overlay code. [6] The application for leave to appeal was heard by the Court of Appeal on 10 March 2021. On 9 February 2022, the Court of Appeal delivered its substantive reasons for judgment.6 Leave to appeal was granted, the appeal was allowed, and my decision was set aside. A majority in the Court of Appeal found three errors of law in my decision, all of which are discussed in further detail below. In its reasons for judgment, the Court of Appeal invited further submissions from the parties in respect of the question of remittal. On 17 May 2022, the Court of Appeal delivered further reasons for judgment remitting the case to the P&E Court to be determined according to law.7 [7] The parties now return before me for the matter to be re-determined. The ultimate question for me is whether, in the exercise of the planning discretion, the proposed 1 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200. 2 A reference in these reasons to “the Planning Scheme” should be understood as a reference to version 8, unless specified otherwise or the context otherwise requires. 3 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28]. 4 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [5] and [41]. 5 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [8]. 6 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6. 7 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79. -- 7 of 269 -- 8 development should be approved. For the reasons set out below, that question is answered in the affirmative. What are the issues that require determination? [8] There is a dispute between the parties about the scope of the remitted hearing and the issues that require determination. What do the Appellants contend are the issues for determination? [9] In response to a Court order made on 24 May 2022, each Appellant filed a list of issues that it contends require determination because of the errors identified by the majority of the Court of Appeal. [10] Development Watch Inc. contends that the issues are as follows: “Error of Law 1 ([2022] QCA 6 at [45]) 1. Are the reasonable expectations of the local community about the height of buildings and structures to be erected on the subject land to be determined by reference to those expectations: (a) as at the time of the making of the development application by the co-respondent; (b) as at the time of the assessment by this Court? 2. What are the expectations of the local community about the height of the buildings and structures to be erected on the subject land at the time determined by reference to Issue 1 above? 3. Has it been demonstrated that those expectations are not reasonable? 4. Has it been demonstrated that the heights of the buildings and structures proposed for the subject land are consistent with the reasonable expectations of the local community at the time determined by reference to Issue 1 above? 5. If the Court is not satisfied that the heights of the buildings and structures proposed for the subject land are consistent with the reasonable expectations of the local community, what is the nature and extent of that inconsistency? 6. Does the subject development comply with Overall Outcomes 8.2.8.2(2)(a) and 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code specified in Version 8 of the Sunshine Coast Planning Scheme 2014 (the Scheme)? Error of Law 2 [2022] QCA 6 at [46] & [47] 7. What do the public submissions convey to the Court about the reasonable views of the community regarding the character and amenity of the locality, the merits of the proposed development (as to its proposed scale, its building heights, its visual impacts, -- 8 of 269 -- 9 its effect on character and amenity, its effect on marine life, and its effects on traffic), and any need for the proposed development? 8. What weight ought the Court give to the reasonable views of the community as articulated in the public submissions? 9. Does the extent of community opposition, and the substance of it, as articulated in the public submissions, militate against approval of the proposed development and, if so, to what extent? Error of Law 3 [2022] QCA 6 at [51] 10. What weight ought the Court give to the amendment of the Height of Buildings and Structures Overlay Code of the Scheme made by the Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 with effect on and from 14 May 2018, as further amended by Sunshine Coast Planning Scheme 2014 (Major Amendment) No. 20 with effect on and from 11 November 2019? 11. Does the subject development comply with Overall Outcomes 8.2.8.2(2)(a), 8.2.8.2(2)(b) and 8.2.8.2(2)(c) of the Height of Buildings and Structures Overlay Code, as amended after the making of the development application, now reflected in version 248 of the Scheme? 12. If the Court finds that the proposed development does not comply with the Height of Buildings and Structures Overlay Code of the Scheme as it is now in force, what weight should that fact be given in the overall assessment of the proposed development? Decision 13. How should the discretion of the Court be exercised in the assessment of the development application, in particular the assessment: (a) that must be made against the assessment benchmarks for the development application, including Overall Outcomes 8.2.8.2(2)(a) and 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code of Version 8 of the Scheme; (b) that must have regard to the public submissions made in respect of the development application; and (c) that may be made against, or have regard to, Overall Outcomes 8.2.8.2(2)(a), 8.2.8.2(2)(b) and 8.2.8.2(2)(c) of the Height of Buildings and Structures Overlay Code 8 The current version of the Scheme, with effect on and from 16 May 2022, which incorporates the amendments to the Height of Buildings and Structures Overlay Code of the Scheme made by Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 with effect on and from 14 May 2018, as further amended by Sunshine Coast Planning Scheme 2014 (Major Amendment) No. 20 with effect on and from 11 November 2019. -- 9 of 269 -- 10 as amended after the making of the development application, reflected in the Scheme as it is now in force?”9 [11] The issues advanced by Sunshine Coast Environment Council Inc. are identical. [12] SH Coolum Pty Ltd and the Council dispute that those issues arise from the errors identified by the Court of Appeal. What is the approach to be adopted for a hearing on remitter? [13] The New South Wales Court of Appeal provided guidance about relevant considerations for the conduct of a remitted hearing where the subject matter of an appeal is a question of law in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.10 In that case, Basten JA, with whom Beazley and Young JJA agreed, found: (a) where an appeal against a decision on a question of law is upheld, the consequences for the further determination of the matter in the trial court will depend on the precise nature of the decision and the nature of the error;11 (b) it is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than “according to law”, which is a phrase that undoubtedly includes the conclusions of the appellate court as to the applicable law;12 (c) where the terms of the order are unclear, it is appropriate to have regard to the judgment constituting the reasons for the order;13 (d) in considering the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute;14 (e) where the trial court has adopted a legally incorrect approach to the question to be resolved, it may have made factual findings that are no longer relevant, or factual findings that now have greater relevance, or relevant facts may not have been found;15 (f) once the judgment of the trial court has been set aside, there are extant proceedings which have yet to be finally determined. Superficially, they are 9 Court Doc. 94 (original footnote). 10 [2009] NSWCA 178; (2009) 168 LGERA 1. 11 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 10-1 [30]. 12 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 11 [33]. 13 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 12 [37] citing Repatriation Commission v Nation (1995) 57 FCR 25 and Peacock v Repatriation Commission (2007) 161 FCR 256 at [19] (Downes, Lander and Buchanan JJ). 14 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 13 [38]. 15 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 16 [56]. -- 10 of 269 -- 11 proceedings in which both parties have closed their cases, but further steps may be required before the case is reserved for judgment;16 (g) on the pending remitter, the undisturbed findings stand and all that is called for is a determination of the outstanding issues on the existing evidence in accordance with the law, subject to the admission of any further evidence and any leave to amend, which are in the discretion of the trial judge;17 and (h) having regard to the public interest in the finality of litigation, there is no reason why the evidence at the earlier hearing should be supplemented or the undisturbed findings of the primary judge should be rewritten unless the errors of law found on appeal require it, or other circumstances make it appropriate to do so.18 [14] The Queensland Court of Appeal considered the approach to be adopted for the conduct of a remitted hearing in this Court in Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.19 [15] In that case, Morrison JA, with whom Bond JA and Bradley J agreed, observed: “[19] … in so far as the learned primary judge said that all of the findings of fact are undisturbed, that was true. None of the challenges in the previous appeal had succeeded except in respect of the error by failing to take into account the noncompliance with the requirements of a “local community” in the LMDR Zone Code. This Court’s decision did not disturb any findings of fact. By saying so his Honour cannot be understood to have foreclosed any necessary new findings that might need be made when considering that area the subject of the error.”20 [16] Bond JA, with whom Morrison JA and Bradley J agreed, also observed, with reference to Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority: “[71] … Consequent upon such a remitter, the primary judge had a broad discretion as to how the appeal should be concluded in a fair and just way and it was open to him to conclude that undisturbed findings of fact stood, and that what was called for was a determination of the outstanding issues on the existing evidence in accordance with law, subject to the discretionary admission of further evidence …”21 16 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 21 [81]. 17 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 22 [86] and 27 [118]. 18 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 22 [87]-[88]. 19 [2021] QCA 276. 20 Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 276, [19]. 21 Trinity Park Investments Pty Ltd v Fabcot Pty Ltd & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 276, [71]. -- 11 of 269 -- 12 [17] With these principles in mind, I turn to the findings of the Court of Appeal about the errors of law in the original reasons for judgment. What were the findings of the Court of Appeal as to the errors of law? [18] As was noted by the Court of Appeal, although Development Watch Inc. raised a host of issues for determination in the original hearing, the attack on my decision in the Court of Appeal was a narrow one.22 [19] Burns J, with whom Morrison JA agreed, noted that the draft notice of appeal contained three grounds of appeal. He considered that the first and second grounds of appeal were related because they both concerned my finding that the proposed development complies with the Height of buildings and structures overlay code and, more particularly, my finding that the height of the proposed buildings and structures is consistent with the reasonable expectations of the local community. By the third ground, Development Watch Inc. sought to argue that I erred by misunderstanding the evidence about a planning need for the development and misapplied the onus of proof in that respect.23 [20] McMurdo JA made similar observations in his reasons. He recorded that there was no challenge to my finding that there is satisfaction of the overall outcome that requires development to contribute to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it will occur.24 He said that my finding that the height of the building and structure is consistent with the reasonable expectations of the local community25 was “at the core of the applicant’s case” in the Court of Appeal.26 [21] The Court of Appeal determined that there was no substance to the third ground of appeal. Burns J, with whom Morrison JA agreed, found: “… The primary judge correctly found that the question whether there was a planning need for a proposed development was a question of fact to be determined having regard to all of the evidence in the case of relevance to that issue. In carrying out that exercise, the feature that her Honour preferred one body of opinion over another was unremarkable. Likewise, her Honour’s consideration of the evidence on this topic (including, but by no means limited to, the evidence of the three economists) was not only regular and appropriate, it left no room for thinking that the onus of proof was either misunderstood or misapplied.”27 [22] However, a majority in the Court of Appeal found that my reasons for judgment were affected by three errors of law, which all related to my finding that the height of the proposed buildings and structures is consistent with the reasonable expectations of 22 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28]. 23 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [36]. 24 See the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. 25 See the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. 26 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [5]. 27 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [56]. -- 12 of 269 -- 13 the local community.28 The nature of each error is identified, and explained in the context of the nature of the decision, in paragraphs [37] to [54] of the reasons of Burns J. [23] Although the passage is lengthy, given the dispute between the parties about the scope of the remitted hearing, it is helpful to set out in full the reasons of Burns J with respect to the relevant grounds of appeal and the errors. Burns J states:29 “Proposed grounds 1 and 2 – the finding that the development complied with the Height of buildings and structures overlay code [37] By the first ground, Development Watch seeks to argue that the primary judge failed to pay proper regard to the community submissions opposing the development, dismissing them instead as being “misguided”,30 “not reasonable”31 and “out of step with the effect of the planning scheme when read as a whole”32 and consequently erred when determining the “reasonable expectations of the local community” for the purposes of overall outcome 8.2.8.2(2)(b) of Version 8 of the Sunshine Coast Planning Scheme. By the second ground, Development Watch would contend that the primary judge misconstrued the requirements of the same overall outcome and, further, failed to take into account, and give significant weight to, the version of the planning scheme current at the time of the appeal i.e., Version 18. [38] It is convenient to first deal with the construction argument. [39] Development Watch submitted that the primary judge misconstrued s 8.2.8.2(2)(b) of Version 8 as importing considerations of character and amenity when that provision was solely concerned to promote consistency between the height of the buildings and structures in the proposed development and the reasonable expectations of the local community. It was submitted that subparagraphs (a), (b) and (c) of s 8.2.8.2(2) are cumulative and that paragraph [302] of the judgment below33 is revealing of an approach whereby the primary judge did not give the subparagraphs separate consideration. In that paragraph, her Honour recorded a finding that the “concerns of the local residents” were not “reasonable expectations” because, in part, although it could reasonably be thought that the Height of Buildings and Structures Overlay Map showed any development to be subject to a “height parameter of two storeys”, the residents “should also reasonably expect that development … may be approved if it has a height 28 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [42] and [57]. 29 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6. 30 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [530]. 31 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [524]. 32 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [301]. 33 Extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [31]. -- 13 of 269 -- 14 of greater than two storeys but complies with the character and amenity requirements for” the planning scheme. Mr Horton QC, who appeared for Development Watch on this application but not in the court below, contended that this was the wrong approach because the requirements of subparagraphs (a), (b) and (c) were “collapsed into each other”34 when they should have been separately considered. Doing so, he submitted, drew attention away from the need to be satisfied about subparagraph (b) and thereby diluted its importance. [40] Here, the primary judge found that the proposed development complied with the Height of buildings and structures overlay code but, at the same time, recognised that it did not comply with performance outcome PO1. As such, the only remaining route to a finding of compliance with the code required her Honour to be satisfied that the purpose specified in s 8.2.8.2(1) was achieved and that, in turn, depended on her Honour being satisfied about compliance with each of the overall outcomes in s 8.2.8.2(2). [41] There can be no doubt that each subparagraph of s 8.2.8.2(2) required separate consideration and, to the point of Mr Horton’s argument, it would be wrong to meld the consideration of one subparagraph with the others, but that is not what her Honour did. After recording that Development Watch alleged the proposed development did not comply with the purpose specified in (1), overall outcome (2)(a), overall outcome (2)(b) and performance outcome PO1, her Honour dealt in turn with performance outcome PO1, overall outcome (a) and overall outcome (b). Although nothing was expressed about overall outcome (2)(c), there was no issue between the parties about compliance with that subparagraph. Otherwise, her Honour was not under any misapprehension; each of the overall outcomes required separate consideration and each had to be achieved to meet the purpose specified in s 8.2.8.2(1). If her Honour mistakenly thought that achieving just one overall outcome was enough to meet the purpose, there would have been no need to go beyond the finding of compliance with overall outcome (2)(a). It follows that the part of the proposed second ground of appeal which contends that the primary judge misconstrued the provision cannot be accepted although, for reasons to which I will now turn, I am of the opinion that her Honour misunderstood and then misapplied part of that provision. [42] Accepting then as I do that the primary judge gave separate consideration to each of the overall outcomes in s 8.2.8.2(2), it is necessary to look more closely at her Honour’s treatment of overall outcome (b) and, with that, to consider the first proposed ground of appeal and what remains of the second. 34 T. 1-5, l. 41. -- 14 of 269 -- 15 [43] As to that, the primary judge was of course obliged to consider whether the height of building and structures in the proposed development was consistent with the reasonable expectations of the local community. To do so, her Honour was required to first determine what the expectations of the local community were about the height of buildings and structures and once that was done, as her Honour recognised,35 the reasonableness of those expectations needed to be assessed in light of the planning provisions applying to the subject land. Then, after the reasonable expectations were identified, the extent to which those expectations were consistent with what was proposed for the development had to be determined. [44] At paragraph [301] of the judgment,36 the primary judge referred to the many submissions received in opposition to the proposed development along with statements from local residents to the same effect, some of whom were crossexamined at the hearing. Then, after accepting that the “concerns of the local residents about the impact of the proposed development” were “genuinely held”, her Honour dismissed all of them as being “out of step with the effect of the planning scheme when read as a whole”. Next, her Honour held that the “concerns of the local residents can be discounted” when regard was had to the “independent evidence” assessed earlier in the judgment with respect to the design of the proposed development and, as part of that, its character and amenity,37 before expressly finding that the development complied with the Height of buildings and structures overlay code.38 In my respectful view, this process of reasoning was flawed. [45] First, there was no base to work from because the primary judge did not find what the expectations of the local community were as to the height of buildings and structures in the proposed development. Although her Honour noted substantial opposition to the development and, by implication, concerns about the height of some of the buildings and structures, no finding was made as to the local community’s expectations regarding height. When later in the judgment39 her Honour discussed the content of the submissions, that was for the purpose of deciding whether the level of community opposition to the development warranted its refusal and, in any event, no finding about height was made. Indeed, the closest her Honour came to expressing a finding about the local 35 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [296]- [300]. 36 Extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [31]. 37 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [302]. 38 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [303]. 39 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [420]- [431], extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [32]. -- 15 of 269 -- 16 community’s expectations regarding height was when the 2007 Approval was discussed.40 To that point in the judgment, her Honour recorded that the 2007 Approval contemplated buildings of up to two, three and four storeys in height, depending on the part of the land where construction was to occur. After acknowledging that the subject development was much greater in scale than that contemplated in the 2007 Approval, her Honour held that it was not reasonable for the community to expect that the extent of development be limited to that contemplated under that approval because it was granted “about 12 years ago” and, furthermore, the community should reasonably expect that the land “might be developed for a more intensive form of development where it complies with the assessment benchmarks that apply at the time the development application is made and meets an identified need, as the proposed development does”. Beyond that, no specific finding about the local community’s expectations regarding height was made. In the result, all that can be said is that the primary judge expressed the view that the local community ought reasonably expect that a more intensive form of development (than that contemplated under the 2007 Approval) might be approved. Absent any finding as to the expectations of the local community regarding the height of buildings and structures, the reasonableness of the local community’s expectations in light of the planning provisions applying to the subject land could not be assessed, let alone compared to the actual proposal to determine whether the two were consistent. The failure to make such a finding was an error of law. [46] Second, although the planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the land,41 there was in this case a credible source of evidence as to the expectations of the local community, and a substantial one at that. Indeed, the body of material from the local community in the form of submissions following the public notification process along with the evidence given at the hearing by residents may properly be regarded as the most direct expression of the expectations about which overall outcome (b) of s 8.2.8.2(2) is concerned. In any event, properly made submissions about the development formed part of the common material42 and, as such, the assessment was required to be carried out having regard to them.43 40 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [518]- [525], extracted [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] at [33]. 41 Bell v Brisbane City Council (2018) 230 LGERA 374, [66]. And see Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409, [67]; Redland City Council v King of Gifts (Qld) Pty Ltd [2020] 3 QR 494, [161]. 42 Planning Regulation, reg 31(1)(g) and Sch 24. 43 Planning Act, s 45(5). -- 16 of 269 -- 17 There were 11,666 such submissions and, of those, 9,288 (including 3,167 local residents) opposed the development. A large proportion of the opposing submission received were in a pro forma style but there were 16 different variations of those. The height of the proposed development was a recurring ground of objection in virtually all the opposing submissions that were placed before the primary judge. However, although her Honour acknowledged the strength of opposition to the proposal in a general way, no detailed analysis of the content of the submissions appears to have taken place. Indeed, the view seemed to be taken that any submission expressing opposition because of concerns about the height of the development was “out of step with the planning scheme when read as a whole”44 and was, for that reason, to be disregarded. This is of course the complaint made in support of the first proposed ground of appeal. [47] The problem with such a broad-brush approach is two-fold because it overlooks the need to first determine what the expectations of the local community were concerning the height of any development and gives primacy to the planning scheme to such a degree that it set to nought the evidence sourced from the local community. The court was required to take that evidence into account as part of the common material but that did not occur because any opposition to the proposed development was seen to be trumped by the planning scheme. This was another error of law. [48] Third, and in accordance with the complaint made in what remains to be considered of the proposed second ground of appeal, the primary judge had no regard to the version of the planning scheme current at the time of the appeal. Version 18 not only required the height of buildings and structures to be consistent with the reasonable expectations of the local community, it mandated compliance with the specified height limits, that is to say, 8.5 metres. Indeed, as “an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations”,45 Version 18 would seem to reflect much of the sentiment expressed in the submissions made in opposition to the development. [49] As earlier discussed,46 a discretion was conferred on the primary judge to give Version 18 such weight as her Honour considered appropriate.47 In order to determine whether any weight should be attached to a change in the planning 44 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [302]. 45 Bell v Brisbane City Council (2018) 230 LGERA 374, [70]. 46 At [Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6] paragraphs [25]-[27] 47 Planning Act, s 45(8). -- 17 of 269 -- 18 scheme, the change at least had to be considered, but that did not occur because, her Honour ruled, compliance with the changed scheme had not been put in issue in the case. As to that, although no express mention of Version 18 was made in an “Agreed List of Issues for Determination” filed by the parties five days prior to the hearing, it was included among a number of “contextual provisions” in a “List of Planning Scheme Provisions Relevant to Disputed Issues” that was prepared two days later and filed on the first day of hearing. Reference was also made to Version 18 by the town planning experts in their various reports as well as in their joint report where it was stated that the proposed development “clearly departs from this outcome”.48 There was also some limited evidence from the town planners at the hearing regarding the changed scheme. However, after closing written submissions had been exchanged, the primary judge questioned Development Watch’s reliance on Version 18. Her Honour did not consider that non- compliance with Version 18 had been sufficiently raised as an issue for consideration by the court. This led counsel for Development Watch to make an instanter application for leave to “raise” Version 18 as “a matter to which we would ask your Honour to have regard”.49 That application was opposed by both respondents who claimed that they were taken by surprise and would be prejudiced if leave was granted. Her Honour refused the application, remarking that the “parties are entitled not to be taken by surprise”, that extensive case management steps had been taken to ensure that such a thing did not occur, that it would be causative of prejudice and that such an issue should not be “added at this late stage”.50 In the result, the only treatment of Version 18 in the judgment was parenthetic. Her Honour noted that, while there were amendments following the lodgment of the development application, the submitters “did not allege any non-compliance with later versions of the planning scheme” and these later versions were only raised as “contextual provisions”.51 [50] In this Court, Mr Hughes QC for the Council and Mr Gore QC for SH Coolum submitted that the time for applying for leave to appeal the primary judge’s ruling had long since expired,52 that there was no power to grant an extension of time within which to make such an application and that it was not an appropriate case in any event for leave to appeal from an interlocutory ruling. Otherwise, they submitted that the weight to be given to Version 18 was a matter of discretion only and not appellable. 48 Exhibit 14, paragraph 162. Version 18 was also mentioned by senior counsel for SH Coolum, Mr Gore QC, in his opening as “an issue of weight … to address”, although it was submitted at the hearing of this application that this was in error: T. 1-44 ll. 21-24. 49 AR 1486 ll. 34-36. 50 AR 1489 l. 38. 51 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [13]© and footnote 11. 52 Planning and Environment Court Act, s 64. -- 18 of 269 -- 19 Faced with these objections, Mr Horton QC made an instanter application for leave to challenge her Honour’s ruling. [51] In my view, Development Watch does not need the leave of this Court to challenge the ruling. In the first place, I am by no means persuaded that the primary judge was free to ignore Version 18, regardless of whether or not it was framed as a compliance issue. As it was, the changed scheme was raised for its contextual relevance and that should have been enough to convey to the respondents as well as the court that, although the development was required to be assessed by reference to the planning scheme current at the time of the application as well as the 2007 Approval, regard could be had to the feature that the scheme had changed by the time of the hearing. After all, the changed scheme was the most current indicator of what was considered to constitute, in the public interest, the appropriate development of the land. Of course, that does not mean that Version 18 should have been allowed to become a “vehicle for displacement or modification”53 of Version 8, but the changed scheme ought to have at least been considered for its contextual value. To illustrate this point, the primary judge made specific reference to the 2007 Approval having been granted “12 years ago” before observing that “the planning needs of the community are not static or immutable”.54 Whilst that may be accepted, her Honour went on to hold that it “is reasonable for the community to expect that the subject land might be developed for a more intensive form of development …” than that which was permitted under the 2007 Approval. However, if contextual notice had been taken of Version 18, it would have been readily appreciated that the planning scheme had headed in the opposite direction. Simply, the change to the planning scheme brought about by Version 18 was a relevant consideration in that sense and ought to have been accorded significant weight. The failure to do so was another error of law. [52] Lastly, the submission on the part of the respondents that any application for leave to appeal from the ruling is out of time and cannot be entertained is wrong; interlocutory decisions which affect the final order may generally be challenged as of right within an appeal brought from that order. As Griffith CJ said in Nolan v Clifford:55 “On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.”56 53 Brisbane City Council v Klinkert (2019) 236 LGERA 88, [6]. 54 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [524]. 55 Nolan v Clifford (1904) 1 CLR 429. 56 Nolan v Clifford (1904) 1 CLR 429, 431. -- 19 of 269 -- 20 [53] More recently, in Gerlach v Clifton Bricks Pty Ltd,57 Gaudron, McHugh and Hayne JJ explained: “In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about which evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.”58 [Emphasis added] [54] It follows that, even if on case management grounds it was correct to require Development Watch to seek leave to add Version 18 as an issue to be considered in the court below, and then rule against it in that application, that ruling could be challenged, as it has been, in this Court. It is however unnecessary to determine that challenge because of the view I have taken that Version 18 was sufficiently raised as a contextual issue from the start of the hearing.”59 (emphasis added) [24] With those reasons in mind, I now turn to the competing submissions about the approach to be taken on the remitter in this appeal. What were the submissions of the parties about the task to be undertaken? [25] The First Appellant’s Further Written Submissions were silent on the principles relating to the scope of the remitted hearing. They provided no assistance as to why Development Watch Inc. says it is necessary to answer each of the questions posed by it, which are set out in paragraph [10] above. Nor did Sunshine Coast Environment Council Inc. provide any assistance in that regard. [26] In The First Appellant’s Reply Submissions, Development Watch Inc. provides some assistance about why, by its question 6, it invites me to revisit my undisturbed finding of compliance with the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code. It submits that compliance with the Height of buildings and structures overlay code cannot be undertaken by a consideration of the overall outcomes in each of s 8.2.8.2(2)(a) and s 8.2.8.2(2)(b) in isolation. It says that each of them informs the content of the other. As such, it submits that, to correct the identified errors, it is necessary to answer question 6 (identified in paragraph [10] above). [27] The Court of Appeal considered the proper construction of the overall outcomes in ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme in its reasons for judgment. In paragraphs [37] to 57 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. 58 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, [4]. And see Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, [103]. 59 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6 (original footnotes). -- 20 of 269 -- 21 [42] of his reasons (extracted at paragraph [23] above), Burns J records that, in the hearing before the Court of Appeal, Mr Horton KC appeared for Development Watch Inc. and argued that my original reasons for judgment were infected by an error in the way I construed the Height of buildings and structures overlay code. In the Court of Appeal, Development Watch Inc. argued that I did not give the overall outcomes in ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code separate consideration. It argued that this was the wrong approach because the requirements of subparagraphs (a), (b) and (c) were “collapsed into each other” when they should have been separately considered.60 It bears repeating that Burns J, with whom Morrison JA agreed, found: “There can be no doubt that each subparagraph of s 8.2.8.2(2) required separate consideration and, to the point of Mr Horton’s argument, it would be wrong to meld the consideration of one subparagraph with the others, but that is not what her Honour did. … her Honour was not under any misapprehension; each of the overall outcomes required separate consideration and each had to be achieved to meet the purpose specified in s 8.2.8.2(1). … It follows that the part of the proposed second ground of appeal which contends that the primary judge misconstrued the provision cannot be accepted.”61 [28] Given the findings of Burns J in paragraphs [37] to [42], Development Watch Inc.’s submission that it is necessary to revisit my findings about the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code because it would be wrong to give it separate consideration is not only unpersuasive: it is vexing. The submission appears to be advanced in wilful disregard of Development Watch Inc.’s own arguments in the Court of Appeal about the proper construction of the code and the findings of the Court of Appeal. [29] During oral submissions in reply, Development Watch Inc. raised four points in support of its contention that questions 7 and 8 from its list of questions (identified in paragraph [10] above) arise from the errors identified by the majority of the Court of Appeal. [30] First, Development Watch Inc. asserts that the submissions in Exhibit A3 are “a statutory instrument by which the community gets to express its views about the local community and the direction of the planning scheme in which they live”.62 I do not accept this submission. It is wrong at law. Submissions made by the public about a development application are not documents of the type identified in s 7(3) of the Statutory Instruments Act 1992. It is also wrong at law to characterise the submissions in Exhibit A3 as a means by which “the community gets to express its views about the local community and the direction of the planning scheme” (emphasis added). The development application was made under the Sustainable Planning Act 2009 (Qld).63 The submissions were made under that legislative regime, which 60 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [39]. 61 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [41] (emphasis added). 62 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 59. 63 See Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 205 footnote 3. -- 21 of 269 -- 22 permitted submissions to be made “about the application”.64 Submissions were properly made if they included “the grounds of the submission and the facts and circumstances relied on in support of the grounds”.65 As such, under the legislative regime in place at the time the submissions were made, their intended focus was the development proposed in a development application, not broader issues such as those to which Development Watch Inc. refers. [31] In any event, this submission does not explain the nexus between the errors identified by the majority in the Court of Appeal and Development Watch Inc.’s questions 7 and 8. [32] Development Watch Inc.’s second contention is that the views expressed in the submissions cannot be regarded as unreasonable simply because they express different conclusions to that reached by the Court.66 I accept this proposition. Many of the matters referred to in the submissions67 are matters about which reasonable minds might differ. Also, the difference between my views and those expressed by the community is to be expected as the public’s views were: (a) expressed in relation to a different design; and (b) provided without the benefit of the expert evidence presented to me at the hearing. [33] Third, Development Watch Inc. says that the “reasonable expectations of the local community” for the Height of buildings and structures overlay code and what the Court takes from the submissions by the community are two separate and distinct concepts. There may be overlap, but they are separate concepts for the purpose of this case.68 I accept this proposition, but it does not explain why it is necessary to answer questions 7 and 8. [34] Fourth, Development Watch Inc. submits that the errors identified by the majority of the Court of Appeal were not limited to matters related to height. In support of that submission, Mr Hack KC drew my attention to two observations of Burns J,69 namely: (a) his Honour’s observation in the middle of paragraph [46] that: “In any event, properly made submissions about the development formed part of the common material and, as such, the assessment was required to be carried out having regard to them.”70 64 Sustainable Planning Act 2009 s 305 and sch 3 definition of “properly made submission”. 65 Sustainable Planning Act 2009 s 305 and sch 3 definition of “properly made submission”. 66 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 60. 67 Excluding matters such as profanities, crude drawings and racist comments. 68 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 60. 69 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 66-8. 70 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. -- 22 of 269 -- 23 (b) his Honour’s observation later in paragraph [46] that: “However, although her Honour acknowledged the strength of opposition to the proposal in a general way, no detailed analysis of the content of the submissions appears to have taken place.”71 [35] Development Watch Inc. submits that focussing on those two sentences to the exclusion of all others in the reasons of Burns J provides a fair reading of the reasons for judgment.72 It says that the two observations by Burns J demonstrates that my error was in failing to consider the submissions as credible evidence in relation to all issues agitated in the appeal including, for example, with respect to potential impacts on turtles and traffic. [36] During the remitted hearing, I asked Mr Hack KC to assist me with how such a reading could be reconciled with the other observations in the reasons of Burns J, such as: (a) Burns J’s observation that the attack was a narrow one;73 (b) Burns J’s acceptance, without criticism, that I dealt with the submissions in detail for the separate and distinct purpose of dealing with the Appellants’ contention that the nature and extent of community opposition was an important consideration;74 (c) Burns J’s observations that the grounds of appeal related to my finding that the proposed development complied with the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community;75 and (d) Burns J’s observation that the alleged error was: “when determining the ‘reasonable expectations of the local community’ for the purposes of overall outcome 8.2.8.2(2)(b) of Version 8 of the Sunshine Coast Planning Scheme.”76 (emphasis added) [37] The only assistance provided by Mr Hack KC was to submit that Mr Horton KC’s submissions to the Court of Appeal on behalf of Development Watch Inc. inviting narrow consideration were made erroneously.77 [38] These submissions are not persuasive. The submissions are also curious given, when it comes to the substantive point sought to be raised, Development Watch Inc. urges 71 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 72 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 68-9. 73 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28]. 74 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [32]. 75 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [36]. 76 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [37]. 77 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 2 August 2022), 64-70. -- 23 of 269 -- 24 me to adopt the same approach that it urged, and that I adopted, in the original hearing,78 and yet it expects this to yield a different result. [39] SH Coolum Pty Ltd submits that Burns J’s approach makes a direct link between the first error of law and the second error of law. SH Coolum Pty Ltd says that this is illustrated by what His Honour said in paragraphs [43] and [47]. According to SH Coolum Pty Ltd, although Burns J identified the errors in a different order, as a matter of logic, the step the subject of the second error should be taken before the step the subject of the first error. SH Coolum Pty Ltd submits Burns J appears to take the view that, particularly in relation to paragraph [430] of my original reasons for judgment, the Court should have first assessed the public submissions in finding the expectations of the local community before then determining whether those expectations were reasonable in the light of the planning provisions applying to the subject land. To put it in the vernacular, Burns J appears to have taken the view that this Court “put the cart before the horse”, by first assessing the planning scheme provisions and the compliance of the proposed development with those provisions before deciding what the community expectations were in the light of the public submissions. [40] SH Coolum Pty Ltd submits that it is important to appreciate that there was a division of thinking in the Court of Appeal. Morrison JA agreed with the reasons of Burns J. McMurdo JA agreed with the orders proposed by Burns J, but not with his reasons, saying “… [I] wish to add only the following”. The observations added by McMurdo JA were: “[3] The primary judge had to assess the proposed development against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014.79 This included the requirements of the Height of Buildings and Structures Overlay Code (the Code). The purpose of the Code was expressed to be the protection of the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium rise built form.80 The Code provided that this purpose was to be achieved through three “overall outcomes”.81 Those outcomes are set out at paragraph [22] in the judgment of Burns J. They were related but distinct outcomes, each of which had to be achieved. [4] The Code also specified “performance outcomes”, the achievement of which would result in the achievement of the overall outcomes, and thereby fulfill the purpose of the Code. However, as the primary judge held, the performance outcomes were not the only means of achieving that result. Her Honour correctly held that under the Code, in its terms in the planning scheme against which the development was to be considered, there was no requirement that every building or other structure should be no higher than 8.5 metres. 78 That is to consider only the small selection of submissions tendered by the parties and the analysis of the submissions by Mr Schomburgk and others, rather than considering all the submissions now before me. 79 Planning Act 2016 (Qld), s 45(5). 80 Clause 8.2.8.2 of the Code. 81 Clause 8.2.8.2(2) of the Code. -- 24 of 269 -- 25 [5] The applicants put in issue the satisfaction of two of the overall outcomes. The first was that the development would contribute to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it would occur. The second was that the height of the buildings and structures was consistent with the reasonable expectations of the local community. There is no challenge to the judge’s finding that the first of those outcomes would be achieved. At the core of the applicant’s case in this Court are complaints of errors in considering the development’s compliance with the second outcome. [6] On this issue, more was required than an assessment of whether any development with a building or structure in excess of 8.5 metres in height would be beyond the reasonable expectations of the local community. What was required was an assessment of whether the buildings and structures proposed by this development would be within those expectations. [7] The finding which was most relevant to this question was in the primary judgment at [302], where her Honour said that: “[The community] should also reasonably expect a development, such as proposed here, may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements of the Planning Scheme.” In my respectful opinion however, that did not answer the question which the judge had to consider, namely whether the height of the buildings and structures in this development exceeded the reasonable expectations of the community. The same error is evident from her Honour’s reasoning, later in the judgment,82 that it would be reasonable for the community to expect, having regard to the Hyatt preliminary approval, that development might be approved above 8.5 metres in height, and beyond a height of four storeys. [8] Further, as Burns J has explained, the primary judge erred in law in failing to consider whether any weight should be given to the content of the equivalent code in the 2018 planning scheme. [9] It follows that there was no consideration, according to law, of the question of whether the proposed development complied with the planning scheme, in so far as its compliance with the Code was concerned. It cannot be thought that this was immaterial to the outcome of the case, notwithstanding the many other issues upon which the present respondents succeeded. In particular, a need for the development, according to the judge’s findings which 82 At [523]-[524]. -- 25 of 269 -- 26 contain no legal error, would have an importance which would vary depending upon whether there was a countervailing consideration of an inconsistency with an important element of the planning scheme.”83 (emphasis added) [41] SH Coolum Pty Ltd says that the statement by McMurdo JA at paragraph [6] was central to his approach. It also relies on the statement by McMurdo JA at paragraph [4], and the statement by McMurdo JA in the further reasons that: “[2] McMURDO JA: I joined in the orders which were made by this Court’s judgment handed down earlier this year. My reasons differed from those of Burns J (with whom Morrison JA agreed), but of course the case will have to be reconsidered according to his Honour’s judgment. [3] I agree with his Honour’s reasons as to the terms of the remitter and the costs in this Court, and the orders which he proposes.”84 (emphasis added) [42] Based on those submissions, and for additional reasons articulated in its written submissions when responding to the questions posed by the Appellants (which I have quoted in paragraph [10] above), SH Coolum Pty Ltd submits that: (a) question 1 is new and was not raised by Development Watch Inc. at the original hearing or before the Court of Appeal; (b) question 3 departs from the steps in the analysis identified by Burns J, particularly at paragraph [43] of his reasons; (c) question 4 is poorly expressed given the language of the Height of buildings and structures overlay code; (d) question 6 does not arise from the decision of the Court of Appeal; (e) questions 7 and 8 are poorly framed and raise issues that are beyond the scope of the remitted hearing; (f) question 9 unnecessarily overlaps with questions 2 and 13; (g) questions 11 and 12 fall outside the scope of the remitted hearing; and (h) question 13 is defective and raises issues outside the scope of the remitted hearing. [43] The Council also takes issue with the list of questions posed by the Appellants. It submits that the observations made by Burns J at paragraph 10 of the reasons with respect to remittal85 suggest that three tasks are to be undertaken on remittal in determining compliance with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code. 83 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6 (original footnotes). 84 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79. 85 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79. -- 26 of 269 -- 27 [44] According to the Council, the first task is clearly identified. The Court should make a finding about the expectations of the community. The finding is to be based on the evidence. The Council submits that the evidence includes the submissions and the evidence given at the hearing by the residents.86 The Council says that, having made a finding about the expectations of the community, the Court should: (a) assess the reasonableness of the expectations found in light of the relevant planning provisions and controls applying to the subject land pursuant to which the application had to be assessed and having regard to the existing approvals attached to the subject land;87 and (b) compare the reasonable expectations to the proposed development to determine whether the two are consistent. [45] The Council submits that the second task is a component of the first. It says that in considering the evidence of the expectations of the local community, the Court will need to have regard to the submissions by way of a “detailed analysis of the content of the submissions”.88 The purpose of this analysis is two-fold.89 First, the Court would use its analysis to assist in determining the expectations of the community, being the first step of task one above. Second, the Court would consider its analysis of the submissions when exercising the planning discretion having regard to the common material. [46] The Council submits that the third task is to give consideration and weight, even “significant” weight,90 to version 18 of the Planning Scheme in the context of: (a) assessing the reasonableness of the established community expectations as part of the exercise outlined above at paragraph [44](b) above; and (b) the overall exercise of the planning discretion, for which it is a “relevant consideration”.91 [47] The Council submits that, after undertaking each of the three tasks, and considering the results of each and the undisturbed findings of fact in the original reasons for judgment, pursuant to s 60 of the Planning Act 2016, the Court will need to undertake the ultimate task of re-exercising the planning discretion in respect of the proposed development. [48] The Council says that answering Development Watch Inc.’s 13 questions does not assist in undertaking the three tasks that arise upon remittal. It submits that the list is a significant overreach and beyond the true issues in the appeal for determination on this remitted hearing. Notwithstanding this, in the hope of bringing this long-standing litigation to a close, and to assist the Court, the Council’s submissions address each of the 13 questions put in issue by the Appellants on the remitter. [49] Although I do not accept them in their entirety, there is much force in SH Coolum Pty Ltd and the Council’s submissions about how the proceeding should be dealt with on the remitter. 86 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 87 Planning Act 2016 s 45. 88 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 89 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [47]. 90 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51]. 91 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51]. -- 27 of 269 -- 28 What are the errors that require correction and what is the scope of the remitted hearing? [50] The appeal to the Court of Appeal was upheld based on three errors of law. When determining the consequences for the further determination of the matter, it is necessary to have regard to the precise nature of the decision and the nature of the errors.92 They are identified in the reasons of Burns J set out in paragraph [23] above. Those paragraphs constitute the reasons for the Court of Appeal’s order to: “Remit the decision of the Planning and Environment Court made on 15 June 2020 in Appeal No. D166 of 2018 to the Planning and Environment Court to be determined according to law”. [51] The scope of the issues to be addressed to correct the errors is also evident from the Court of Appeal’s reasons for judgment with respect to the terms of the remitter. [52] In the reasons with respect to remitter, Burns J (with whom Morrison and McMurdo JJA agree) observes that Development Watch Inc. sought to have the whole of the case remitted to the Planning and Environment Court for rehearing before a different judge. Development Watch Inc. argued that this was necessary because of the strong findings made by me on critical matters that were averse to its interests. Development Watch Inc. contended that remittal of the whole case for rehearing before a different judge was also consistent with the approach taken by the Court of Appeal in Lockyer Valley Regional Council v Westlink Pty Ltd93.94 [53] Burns J notes that the respondents, Sunshine Coast Regional Council and SH Coolum Pty Ltd, submitted that the usual practice should be followed of remitting the appeal to the Planning and Environment Court for determination by the primary judge in accordance with the reasons of the Court of Appeal. The respondents submitted that the Court of Appeal has always been hesitant to remit a case to a different judge because of the potential unnecessary waste of resources of the Planning and Environment Court, and the burden that such an outcome would inevitably place on the parties. The respondents submitted that the case below was substantial, occupying over 15 sitting days and involving the tender of over 100 exhibits. In contest at the hearing was a considerable range of other issues in addition to those about which the appeal was concerned, and no complaint was made about any of those other issues. Burns J found that there was much force in these submissions. [54] The Court of Appeal was not persuaded that the case should be remitted for rehearing before a different judge. Burns J (with whom Morrison and McMurdo JJA agreed) found: “[10] In the first place, Lockyer Valley Regional Council v Westlink Pty Ltd was a different case. There, the procedural history was such as to require remittal to a different judge.95 Second, and as previously recorded,96 the challenge to the decision in the court below was a narrow one, it being focused on the 92 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 10-1 [30]. 93 [2012] QCA 370. 94 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [7]. 95 As to which, see Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, [4] and [34]. 96 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28]. -- 28 of 269 -- 29 primary judge’s finding that the development complied with Version 8 of the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community. That challenge was successful because, it was held, her Honour erred in the respects identified in the judgment.97 Each went to the question whether the proposed development complied with the Height of buildings and structures overlay code and the reasons explain why her Honour fell into error in these respects.98 Assisted by that explanation, there is no reason to think that her Honour will do other than determine the question afresh according to law. Indeed, once it is appreciated that a finding needed to be made as to the local community’s expectations regarding height, that there was a credible and substantial source of evidence as to those expectations in the form of the submissions which needed to be considered as part of the assessment and that, freed of any case management considerations, the change to the Planning Scheme brought about by Version 18 should be considered, I expect that much of the foundation for the findings about which Development Watch complains may be seen to fall away.”99 (emphasis added) [55] For those reasons, the Court of Appeal remitted the matter to this Court to be determined according to law.100 [56] It is apparent from the reasons of Burns J set out in paragraph [23] above that:101 (a) each of the errors relate to my assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme;102 (b) an assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme requires consideration of whether the height of building and structures in the proposed development is consistent with the reasonable expectations of the local community;103 97 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [45], [47] and [51]. 98 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [49]-[51]. 99 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [10]. 100 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79. 101 These matters are supported the findings of Burns J in Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [10]. 102 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [37], [41], and [42]. See, also, Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [36]. 103 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43]. -- 29 of 269 -- 30 (c) the assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme calls for three factual determinations, namely: (i) what are the expectations of the local community about the height of buildings and structures; (ii) are those expectations reasonable when assessed in light of the planning provisions applying to the subject land; and (iii) to what extent are the identified reasonable expectations consistent with the proposed development;104 (d) the first error of law was my failure to make a finding about the expectations of the local community about the height of buildings and structures;105 (e) the second error of law was my decision to give primacy to the Planning Scheme to such a degree that it set to nought the evidence sourced from the local community, and my failure to treat the submissions as a credible source of evidence as to, and direct expression of, the expectations of the local community in my assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme;106 and (f) the third error of law was my failure to accord weight, even significant weight, to the change to the Planning Scheme brought about by version 18 when assessing compliance with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme.107 [57] As such, in determining this appeal, it will be necessary for me to assess the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. To do so, I must make three factual determinations, namely: 1. What are the expectations of the local community about the height of buildings and structures? 2. Are the expectations the local community about the height of buildings and structures reasonable when assessed in light of the planning provisions applying to the subject land? 3. Is the height of the buildings and structures in the proposed development consistent with the reasonable expectations?108 [58] In answering those questions, to correct the errors identified by the majority of the Court of Appeal, I must have regard to the submissions lodged about the development application that form part of the common material and the change to the Height of buildings and structures overlay code brought about in version 18 of the Planning 104 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43]. 105 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [45]. 106 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]-[47]. 107 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [48]-[51]. 108 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43]. -- 30 of 269 -- 31 Scheme. My answers to those questions will replace the findings at paragraphs [296] to [303] of my original reasons for judgment.109 [59] The new findings are to be determined on the existing evidence admitted during the original hearing and in accordance with the law, subject to my discretion to give leave to amend the issues and to admit any further evidence. [60] No party applied for leave to amend the issues nor was there a formal application to adduce further evidence. Nevertheless, the parties tendered further documents, and, in the exercise of my discretion, I admitted further evidence without objection. That further evidence comprised: (a) a certificate of the Chief Executive Officer of the Council provided in accordance with s 251 of the Local Government Act 2009 (Qld) certifying and annexing extracts from: (i) Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 (“Planning Scheme Amendment No. 13”), with effect on and from 14 May 2018; (ii) Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 – Site Specific and Operational Matters – Explanatory Memorandum (“the Explanatory Memorandum for Planning Scheme Amendment No. 13”); (iii) Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 20 (“Planning Scheme Amendment No. 20”), with effect on and from 11 November 2019 Volume 3; and (iv) Sunshine Coast Planning Scheme 2014, Version 24 (“version 24 of the Planning Scheme”), currently in force, with effect from 16 May 2022;110 (b) a document filed by Development Watch Inc. titled “FIRST APPELLANT’S NOTICE OF ADDITIONAL PLANNING INSTRUMENTS, OR PARTS THEREOF, THAT ARE MATERIAL TO THE ISSUES NOW TO BE DETERMINED”;111 (c) the submissions that form part of the common material, which comprise 28 lever-arch folders containing 24,496 pages;112 (d) a bundle of documents that include a letter from the solicitors for Development Watch Inc. to the other parties proposing to place extracts of the transcript of the hearing in the Court of Appeal before the Court and pages 1, and 21 to 26 of the Transcript of Proceedings before the Court of Appeal on 10 March 2021;113 and (e) an email from the representative of Sunshine Coast Environment Council Inc. indicating that it adopts the submissions of Development Watch Inc.114 109 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 270-1. 110 Exhibit A1. 111 Exhibit A2. 112 Exhibit A3. 113 Exhibit A4. 114 Exhibit A5. -- 31 of 269 -- 32 [61] As was identified by the Court of Appeal, the submissions from the public that form part of the common material are relevant to the determination of two issues raised in the appeal. [62] First, the submissions are relevant for the purpose of deciding whether the extent of community opposition, and the substance of it, supports refusal of the proposed development. As the Court of Appeal acknowledged, the submissions were considered by me in addressing this issue in paragraphs [420] to [431] of my original reasons for judgment.115 There was no challenge in the Court of Appeal to those findings. As such, it is not necessary to re-write those findings to correct the errors, although I may do so if I consider it appropriate. [63] Second, the submissions are relevant for the assessment against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. That provision states: “8.2.8.2 Purpose and overall outcomes … (2) The purpose of the Height of the buildings and structures overlay code will be achieved through the following overall outcomes:- … (b) the height of the buildings and structures is consistent with the reasonable expectations of the local community;” [64] The additional evidence of the submissions, admitted by me as Exhibit A3, must be considered for this second purpose to correct the identified errors. As such, I have read and carefully considered the 24,496 pages that constitute the submissions about the development application and the other evidence admitted by me in the exercise of my discretion on the remitter.116 [65] Development Watch Inc. also invites me to revisit many findings that were undisturbed by the Court of Appeal and to address multiple additional questions. I am not persuaded that this is required. Nevertheless, given that I now have all the submissions in evidence before me, I will consider whether it is necessary or appropriate to rewrite any of my undisturbed findings. [66] Once any new findings are made, it will be necessary to undertake afresh the ultimate task of exercising the planning discretion to determine whether the proposed development should be approved. [67] Having regard to the matters outlined above, including the extensive issues sought to be agitated by the Appellants, it is convenient to determine this appeal by answering the following 10 questions. 1. What is the relevant legislative regime? 115 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [45]. 116 The delay in producing these reasons is reflective of the time-consuming nature of the task undertaken. -- 32 of 269 -- 33 2. What are the features of the proposed development that are to be assessed? 3. What are the expectations of the local community about the height of buildings and structures? 4. Are the expectations the local community about the height of buildings and structures reasonable? 5. Is the height of the buildings and structures in the proposed development consistent with the reasonable expectations? 6. Does the proposed development comply with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme? 7. Are any of my unchallenged findings affected by the additional evidence or my changed findings? 8. What are the unchallenged and undisturbed findings from my earlier decision that are relevant to the exercise of the discretion? 9. What is the significance of the non-compliance with the Height of buildings and structures overlay code? 10. Should the development application be approved in the exercise of the planning discretion? [68] I am not persuaded that it is necessary to determine all of the questions posed by the Appellants as part of the remittal, nor that it is appropriate to do so in the exercise of my discretion. Nevertheless, with a view to bringing this long-standing litigation to an end,117 I briefly address each of their questions in Annexure A. I do so after I address the 10 issues identified in paragraph [67] above. What is the relevant legislative framework for determining the appeal? [69] This is a submitter appeal against the approval of the development application. It is a “Planning Act appeal” as defined in the Planning and Environment Court Act 2016 (Qld). As such, the appeal is, generally, by way of hearing anew.118 The Court assesses the development application under s 45 of the Planning Act 2016 (Qld) as if it were the assessment manager.119 [70] In conducting the appeal as a hearing anew, the Court hears the matter afresh and is not limited to consideration of the material before the assessment manager. The Court can overturn the decision appealed against regardless of whether the Appellants demonstrate that, having regard to all the evidence before the Court, the decision is the result of some legal, factual, or discretionary error on the part of the assessment manager.120 117 This seems prudent given I have already spent countless hours reading and carefully considering the fresh evidence and reviewing the original evidence in light of the additional evidence. 118 Planning and Environment Court Act 2016 s 43, subject to ss 46(2) to (5) of the Planning and Environment Court Act 2016. 119 Planning and Environment Court Act 2016 s 46(2). 120 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 597 [57]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180-1 [23]. -- 33 of 269 -- 34 [71] SH Coolum Pty Ltd has the onus of establishing that the appeal should be dismissed.121 [72] The Court has a broad discretion in determining the appeal. It has power to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the entity that made the decision with directions that the Court considers appropriate.122 [73] The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.123 The Planning and Environment Court Act 2016 and the Planning Act 2016 provide relevant guidance in that respect.124 [74] As the development application requires impact assessment, the exercise of the discretion must be based on an assessment that:125 (a) must be carried out: (i) against the assessment benchmarks in the Planning Scheme126 to the extent that they are relevant; (ii) having regard to, relevantly: (A) the South East Queensland Regional Plan; (B) any development approval for, and any lawful use of, the premises and adjacent premises, which relevantly includes a preliminary approval (described in paragraphs [88] and [89] below); and (C) the common material, including properly made submissions about the development application;127 and (b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise). [75] Pursuant to s 45(7) of the Planning Act 2016, the assessment of a development application must be against, or having regard to, the statutory instrument or other document in effect when the development application was properly made. However, the Court may give the weight it considers is appropriate, in the circumstances, to amendments or replacements to statutory instruments and new statutory instruments 121 Planning and Environment Court Act 2016 s 45. 122 Planning and Environment Court Act 2016 s 47. The type of decision that can be made is also governed by s 60 of the Planning Act 2016 (Qld). 123 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20. 124 The appeal against the Council’s decision to approve SH Coolum Pty Ltd’s development application was filed after the commencement of the Planning Act 2016. As such, even though SH Coolum Pty Ltd’s development application was made under the Sustainable Planning Act 2009, the applicable regime is that in the Planning Act 2016: Planning Act 2016 s 311 and Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, [16]–[89]. 125 Planning Act 2016 ss 45(5) and 59. 126 Version 8 of the Planning Scheme was in effect at the time the development application was properly made. It is a categorising instrument containing assessment benchmarks relevant to the assessment called for under s 45 of the Planning Act 2016. 127 Planning Regulation 2017 (Qld) s 31 and sch 24. The regulations prescribe additional matters, but they have not been put in issue in these appeals. -- 34 of 269 -- 35 that commence after the development application is properly made but before it is decided by the Court.128 [76] The extent to which the Court must assess the development application against applicable assessment benchmarks, assess against and have regard to other matters referred to in s 45 of the Planning Act 2016, and consider amended or new statutory instruments is informed by the issues put in dispute by the parties.129 The issues put in dispute inform the extent to which expert reports tendered in the appeal are relevant and admissible. The Court’s ability to have regard to matters put in issue in s 45 of the Planning Act 2016 is constrained by the admissible evidence placed before it. A Planning Act appeal under the Planning and Environment Court Act 2016 is adversarial litigation: it is not an inquiry. It must be borne in mind that the Court hears the matter afresh in a litigious context. The scope of the exercise to be undertaken is defined by the issues raised by the parties and the determination is to be made by reference to relevant and admissible evidence placed before the Court. This is a material limitation that should not be overlooked. [77] Burns J observed that, in my original reasons for judgment, while I acknowledged the strength of opposition to the proposed development conveyed by the existence of 11,666 submissions of which 9,288 (including 3,167 from local residents) were opposed to the proposed development. Burns J also noted that no detailed analysis of the content of the submissions appears to have taken place, and the evidence of the submissions was not taken into account as part of the common material as was required under the Planning Act 2016.130 This is true. My ability to take the submissions into account and to analyse them in greater detail was hindered by the absence of admissible evidence before me. The parties did not place in evidence before me the “substantial” source of evidence of local community expectations comprised of the public submissions about the development application to which the Court of Appeal referred.131 [78] In terms of the assessment against the relevant assessment benchmarks, version 8 of the Planning Scheme was in effect at the time the development application was properly made. At the time of the preparation of the Joint Experts’ Report – Town Planning, version 18 was in force. The town planners addressed versions 8 and 18 of the Planning Scheme in their joint expert report. By the time of the original hearing, version 20 was in force, but was not in evidence before me. [79] As the Court of Appeal recognised, the original hearing for the appeal was substantial. It occupied over 15 sitting days and over 100 exhibits were tendered.132 A “host of issues”133 were raised by the Appellants for me to determine, including whether there 128 Planning and Environment Court Act 2016 s 46(2); Planning Act 2016 s 45(8). 129 As was explained by Basten JA, with whom Beazley and Young JJA agreed in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 at 13 [40], in adversarial litigation, the parties will define the issues. See also Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, [145]-[152]. 130 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46] and [47]. 131 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46] and [47]. 132 This was acknowledged in Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 79, [8]. 133 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28]. -- 35 of 269 -- 36 was compliance with the assessment benchmarks in 63 provisions of version 8 of the Planning Scheme.134 [80] The issues included whether the proposed development complied with the assessment benchmarks in the Height of buildings and structures overlay code in version 8 of the Planning Scheme. There was alleged non-compliance with the purpose in s 8.2.8.2(1), the overall outcomes in ss 8.2.8.2(2)(a) and (b), and performance outcome PO1 of the Height of buildings and structures overlay code. There was no allegation of non-compliance with the overall outcome in s 8.2.8.2(2)(c) or performance outcome PO2 of the Height of buildings and structures overlay code. [81] The Appellants did not allege non-compliance with any provision of the later versions of the Planning Scheme. [82] The evidence at the original hearing included many, voluminous expert reports containing hundreds of pages of text. They were all tendered in a form where issues no longer pursued were not struck through. Even though the reports contained irrelevant (and, as such, inadmissible) evidence, no party challenged their admissibility. The reports were all tendered at the outset of the hearing. I had not read them at the time that I received them into evidence. I received them without querying their admissibility. Nevertheless, from the exchanges between the parties throughout the hearing and responses to questions posed by me during the hearing, as the trial progressed it seemed to me that the hearing was being conducted by the parties on the basis that the reports were relied on only to the extent that they were relevant to the agreed issues in dispute. Nevertheless, considering the findings of Burns J, I accept that for the purpose of the remitted hearing it is necessary for me to consider later versions of the Planning Scheme. [83] The development application also seeks to vary the effect of the Planning Scheme. There is a discretion to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.135 [84] The exercise of that discretion is to be based on an assessment that considers:136 (a) the result of the assessment of that part of the development application that sought a preliminary approval for a material change of use; (b) the consistency of the variations sought with the rest of the Planning Scheme; (c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the development application and available to submitters; and 134 In response to queries from the other parties during the hearing, the Appellants maintained that their allegations of non-compliance with the 63 identified provisions of version 8 of the Planning Scheme reflected the real issues in dispute that required determination. See, for example, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, 166 of 2018, Kefford DCJ, 18 November 2019) 14-8; and Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, 166 of 2018, Kefford DCJ, 27 November 2019) 111-4 (wherein the references to Mr Houston are incorrect and should be read as referring to Mr Skoien). 135 Planning Act 2016, s 61(3). 136 Planning Act 2016, s 61(2). -- 36 of 269 -- 37 (d) any other matter prescribed by regulation. [85] The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,137 Abeleda & Anor v Brisbane City Council & Anor,138 Wilhelm v Logan City Council & Ors139 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.140 Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.141 That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.142 What are the features of the proposed development that are to be assessed? [86] I described the nature of the proposed development in detail in my original reasons for judgment.143 It is convenient to summarise key aspects again here. [87] SH Coolum Pty Ltd wants to develop a vacant parcel of land located between the coastal townships of Coolum and Marcoola. The land is approximately 18.5 hectares in area and is located between Yaroomba Beach and David Low Way. It is more particularly described as Lots 12, 15 and 16 on SP238214, Lots 20 and 336 to 340 on SP219217 and Lot 25 on SP 269561 (“the subject land”). [88] The subject land was previously associated with the resort known as the Hyatt Regency, which more recently has been known as the Palmer Coolum Resort. There is a history of planning approvals for the subject land that dates to the 1980s. In 2007, the Council granted a preliminary approval to vary the effect of the then current planning scheme to establish the Coolum Hyatt Integrated Resort and Residential Community (“the Hyatt preliminary approval”). The Hyatt preliminary approval anticipates development of the subject land for a mix of dwelling types, including multiple dwellings up to four storeys in height, detached houses, and duplexes, as well as retail and commercial uses up to a maximum of 500 square metres. [89] The Hyatt preliminary approval was last amended in 2019.144 It has been implemented in part and remains current. In more recent times, there has been no development in accordance with the Hyatt preliminary approval. That is unsurprising as, for some time now, the owner, SH Coolum Pty Ltd, has sought to pursue a different form of development on the subject land. To facilitate that end, in May 2017, SH Coolum Pty Ltd made a development application to the Council. At that time, version 8 of the Planning Scheme was in force. [90] SH Coolum Pty Ltd’s development application underwent two rounds of public notification, during which it attracted considerable interest. Over 11,000 submissions 137 [2020] QCA 253; [2021] QPELR 987. 138 [2020] QCA 257; [2021] QPELR 1003. 139 [2020] QCA 273; [2021] QPELR 1321. 140 [2021] QCA 95; [2022] QPELR 309. 141 [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86]. 142 [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]-[22]. 143 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 204-5 [1]-[7] and 207-9 [17]-[35]. 144 Exhibit 27A p 49. -- 37 of 269 -- 38 were received, a large portion of which were opposed to the form of development proposed at the time of public notification. [91] After the development application was public notified, SH Coolum Pty Ltd changed its development application to significantly reduce the residential density proposed.145 Consequently, the design of the proposed development to be assessed by me is different to that considered by the public during the public notification process. [92] SH Coolum Pty Ltd now seeks: (a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan Preliminary Approval Document (“Yaroomba Beach Master Plan”); (b) a development permit for a material change of use to authorise the uses that will comprise a five-star resort complex as part of stage one; and (c) a development permit for reconfiguration of ten lots into 13 lots. [93] The five-star resort complex is proposed to include a 220-room hotel, 2,770 square metres of associated commercial space as part of the resort complex, an educational establishment, community use amenities (being Surf Life Saving Queensland facilities), and about 133 multiple dwellings (provided as serviced apartments for permanent and temporary accommodation). These uses are to be located across a series of buildings between five and seven storeys in height. [94] SH Coolum Pty Ltd has not designed stages two to five in detail, but the Yaroomba Beach Master Plan sets parameters for the intensity of the development proposed on the subject land across all stages. The preliminary approval would obviate the need for public notification of future development applications that seek approval to develop the balance land for a mix of residential dwellings in accordance with the parameters identified in the Yaroomba Beach Master Plan. [95] In terms of the identified parameters, the Yaroomba Beach Master Plan sets maximum building heights for future dwellings. Buildings with a maximum height of four storeys are limited to an area towards the centre of the subject land, and the maximum building height steps down to three storeys at the western edge of the subject land, and two storeys at the southern edge (adjacent to the existing residential development). [96] The Yaroomba Beach Master Plan stipulates a maximum residential development density comprising a 220-room hotel and 740 equivalent dwellings. To control the distribution of the residential development across the subject land, there is a table and plan of residential density for each of the proposed precincts. Leaving aside the units in the serviced apartment building, subject to the grant of further development permits, the future stages of the proposed development are intended to provide approximately 537 apartments and 71 townhouses. [97] Under the Yaroomba Beach Master Plan, each commercial and retail use tenancy, such as the bar, food and drink outlet, office, shop, and shopping centre, is limited to 145 As is recorded in Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, [15]. -- 38 of 269 -- 39 an area not exceeding 300 square metres. The aggregate gross floor area of the village centre is not to exceed 2,770 square metres. [98] Otherwise, the design parameters of the Planning Scheme remain applicable to future development on the subject land. As such, the future development will be subject to the requirements in the applicable Planning Scheme codes that regulate setbacks, site cover, landscaping, parking and the provision of communal and private open space. [99] The Yaroomba Beach Master Plan is to include an incorporated green space masterplan. The green space masterplan is to provide regular green breaks and identify vegetation that is to be protected. [100] The proposed development will deliver a significant amount of open space. There will be a total of 46,507 square metres of publicly accessible open space. This equates to 25 per cent of the subject land. Of that open space, a total of 17,741 square metres, or 9.6 per cent of the subject land, will be retained vegetation. [101] An access and mobility plan shows the proposed public and private pedestrian, cycle, and vehicular routes. Access to the proposed development will be gained from David Low Way at two locations only. The main entry will be via a new roundabout. There will be a secondary access further to the north. Most of the car parking will be underground, but there will be over 105 public parking spaces at grade to facilitate public access to the beach. Additional at-grade car parking will be provided at the northern end of the main entry road and at the eastern boundary (in the order of 28 spaces and 33 spaces respectively). [102] The proposed development will be connected (both within and beyond the subject land) by a comprehensive arrangement of pedestrian pathways and roadways in a low-speed environment. The pathways and roadways will be designed to encourage walkability and a highly pedestrianised environment. The pathways will connect to the existing coastal walkway. [103] The proposed development also includes the provision of a new public beach access, a lifeguard tower, and various other infrastructure components. What are the expectations of the local community about the height of buildings and structures? [104] To assess the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme, I must first ascertain the expectations of the local community about the height of the buildings and structures. Expectations of a local community can change over time. However, the assessment of the proposed development against this overall outcome presents a question of fact to be determined by the Court at the time that it undertakes the assessment. The question is to be determined according to the available evidence. What is the evidence relevant to the issue of expectations of the local community? [105] On remitter, the potential sources of evidence about the expectations of the local community about the height of the buildings and structures that might occur on the subject land differ from those available at the original hearing. -- 39 of 269 -- 40 [106] At the original hearing, the potential sources of evidence included: (a) the signed statements prepared for the appeal and the oral evidence by those residents of the Sunshine Coast who provided statements;146 (b) the very small selection of submissions tendered by the parties;147 and (c) extracts from versions 8 and 18 of the Planning Scheme.148 [107] At the remitted hearing, I admitted additional potential sources of evidence. They are: (a) the certificate of the Chief Executive Officer of the Council provided in accordance with s 251 of the Local Government Act 2009 certifying and annexing extracts from: (i) Planning Scheme Amendment No. 13; (ii) the Explanatory Memorandum for Planning Scheme Amendment No. 13; (iii) Planning Scheme Amendment No. 20; (iv) version 24 of the Planning Scheme;149 and (b) the submissions that form part of the common material, which comprise 28 lever-arch folders containing 24,496 pages.150 [108] The Appellants made it clear that they would not be tendering the submissions. They were of the view that it was unnecessary for them to be put in evidence before me. Despite that, given that Burns J found that they provide a substantial and credible source of evidence as to the expectations of the local community,151 I exercised my discretion to receive them when they were tendered by the Council. [109] There was also other evidence from which I might infer the expectations of the local community, such as evidence about the Hyatt preliminary approval and evidence about the existing development in the locality. [110] Before explaining my finding about local community expectations, it is helpful to provide more detail about three potential sources of evidence on that issue, namely: (a) the evidence in the submissions;152 146 Exhibits 37A, 37B, 37C, 37D, 37E, 37F, 37G, 37H, 37I, 37J, 47, 48, 49, 55A, 55B, 56A, 56B, and Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 22 November 2019), 2-26 and 58-69; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 26 November 2019), 72-8; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 20-43. 147 Exhibits 40, 41, 42, 43 and 81. 148 Exhibits 25A, 25B, 25C, 26A, 26B, and 26C. 149 Exhibit A1. 150 Exhibit A3. 151 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 152 Exhibit A3. -- 40 of 269 -- 41 (b) the evidence of the lay witnesses;153 and (c) the evidence in the certificate of the Chief Executive Officer.154 What do the submissions reveal about local community expectations? [111] Before turning to the content of the submissions, it is helpful to consider the finding of the majority of the Court of Appeal about the relevance of the submissions in more detail. [112] The majority of the Court of Appeal found that the submissions are a credible, and substantial, source of evidence as to the expectations of the local community about the height of buildings and structures.155 In appreciating the significance of that finding, it is important to understand the material that was before the Court of Appeal. It is common ground between the parties that the documents before the Court of Appeal, like those before me at the original hearing, did not include all the submissions. [113] At the original hearing, Development Watch Inc. tendered exhibit 39 on the basis that it was an analysis of the submissions. It was received without opposition. When tendering the analysis, Mr Hack KC did not identify the author of the document.156 Development Watch Inc. also tendered a document that it said contained examples of the 25 types of pro-forma submission referred to in exhibit 39.157 It was marked as exhibit 40. Exhibit 41 was tendered by Development Watch Inc. as a copy of 13 submissions that Development Watch Inc. says are representative of the opposition to the proposed development.158 [114] At the original hearing, SH Coolum Pty Ltd and the Council respectively tendered the documents that were admitted as exhibits 42 and 43. They each identified the documents as evidence of submissions that they relied on in support of the proposed development.159 153 Exhibits 37A, 37B, 37C, 37D, 37E, 37F, 37G, 37H, 37I, 37J, 47, 48, 49, 55A, 55B, 56A, 56B, and Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 22 November 2019), 2-26 and 58-69; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 26 November 2019), 72-8; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 20-43. 154 Exhibits 26A, 26B, and 26C and A1. 155 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 156 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 18 November 2019), 13-4. 157 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 18 November 2019), 14. 158 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 18 November 2019), 14-5. 159 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 18 November 2019), 15. -- 41 of 269 -- 42 [115] Exhibit 81 was tendered by Sunshine Coast Environment Council Inc. as a bundle of submissions it relied on in opposition to the proposed development.160 [116] The only admissible evidence of the common material (to the extent that it comprises submissions from the public) that was before me at the original hearing was in exhibits 40, 41, 42, 43 and 81. The same is true of the evidence before the Court of Appeal. In those circumstances, the observations of Burns J do not bind me to treat every submission as containing credible evidence of the expectations of the local community about the height of buildings and structures. [117] I now have all the submissions in Exhibit A3. Collectively, the submissions provide a potential source of evidence of those expectations. The extent to which they provide credible evidence of expectations of the local community is a question of fact to be determined by me on the evidence. [118] The Appellants submit that the area that defines the local community is Yaroomba, Mount Coolum, Point Arkwright and Coolum Beach. They submit that, to the extent that the submissions provide a source of evidence of expectations of the local community, it is only those submissions made by residents of those suburbs that provide such evidence.161 SH Coolum Pty Ltd submits that the local community is the community within the Coolum Local Plan Area as depicted in Local Plan Map LPM11.162 This area is comprised of Yaroomba, Mount Coolum, Point Arkwright and Coolum Beach.163 The Council did not contend that the local community should be differently defined. I accept that it is appropriate to proceed on the basis that the local community includes the residents of Yaroomba, Mount Coolum, Point Arkwright and Coolum Beach. [119] At the remitted hearing, Development Watch Inc. eschewed any intention of placing all the submissions before me. Nevertheless, as I have already noted, they were tendered by the Council and marked as Exhibit A3. [120] Even though I now have the benefit of all the submissions in Exhibit A3, Development Watch Inc. continues to urge me to undertake my assessment only by reference to exhibits 40, 41, 42, 81 and the analysis in exhibit 39 and Attachment G to the Joint Experts Report - Town Planning164.165 That is evident from, amongst other things, the following exchange: “MR HACK: … Here, in terms of the height code, communities’ expectations would plainly not extend to construction of development involving buildings of three, four, five, six and seven stories, with all but a 160 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 43. 161 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 47-8 and 85. 162 Exhibit 2 pp 15 and 16. 163 Compare Exhibit 2 pp 15 and 16 to pp 1 and 2. 164 Exhibit 14. 165 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 4-7 and 28-30. -- 42 of 269 -- 43 small part of the development involving building heights in excess of 8.5 – the 8.5 metres maximum specified in the height overlay. That those were the expectations of the local community is evident from the submissions made and the evidence given at the hearing by local residents. There were, as your Honour knows, 11,606 properly made submissions, which council’s assessment report described as being 2988 in support, 9288 in opposition and neutral. Behind tab 11, in the black bundle, is the table of submissions that became exhibit 39, and the analysis of submissions that became exhibit 39. What I want to take your Honour to there is that, the division between proforma submissions and individual submissions, there were 28 per cent of 7900-odd proforma submissions were in support, 72,000 were opposed – sorry, 72 per cent of the proforma submissions were opposed. In terms of the individual submissions 505 or 14 per cent supported the proposal, 3104 opposed it. That’s 86 per cent of 3609 submissions. And, your Honour, at trial, at paragraph 425, recited those figures, the 28 per cent and 72 per cent. Over the page, in tab 12, there is the analysis undertaken by Mr Schomburgk, the town planner for, I think Sekisui House. What appears from him, and I – sorry, for the benefit of my learned friend, that’s pages 189 to 198 of exhibit 14 in the town planning joint expert report. And, what is readily apparent from his analysis is that, he didn’t identify any submissions that support the significant increase in height, beyond the default height of 8.5. There seems to be no one that he has identified, and no one has been identified in the submissions from the other side, saying, you know, it’s terrific. We need more seven storey buildings in Yaroomba. HER HONOUR: There are submissions. There’s a submission in opposition though. MR HACK: I’m sorry, your Honour? HER HONOUR: There’s a submission in opposition though that does support higher buildings than two stories. It opposes the development but they do exist, if one reads the submissions. MR HACK: Well, I mean the – there are certainly submissions, and I’ve been taking your Honour to some of them that say, you know, we expected four stories for the Hyatt. Something along those lines. That’s a - - - HER HONOUR: Yes. And there was one that said – sorry, I’ve made lots of notes. Someone asked for five stories. Said that it was reasonable to expect that it would be up to five stories but not seven. And that was a submission in opposition. So I just don’t want you to work on the basis that, just because your opponents haven’t identified that I’d necessarily accept a submission that they don’t exist, because I’ve read them and I know that they exist. So you might want to rethink, unless you’ve read them all and are confident that I’m wrong - - - -- 43 of 269 -- 44 MR HACK: I didn’t say that there weren’t any. What I said, and I was careful to say it this way because - - - HER HONOUR: That none of your opponents have identified any. MR HACK: Precisely. HER HONOUR: Yes. Yes. Well, I have identified - - - MR HACK: Well, one out of the other many thousands - - - HER HONOUR: I didn’t say it was only one. … MR HACK: Well, my submission is, that person and anybody similarly minded, is an outlier and there is no support to be found in any of the planning controls that would treat that submission, of wanting – approving five stories, as being reasonable. HER HONOUR: When you say it’s an outlier, what’s your submission based on? Having read them? MR HACK: No. I haven’t read 11,000 submissions. What I’ve done is, to read the submissions of the parties identified and invited your Honour to read, I’ve looked at the proformas and I’ve looked at the analysis that have been undertaken, and there was 39 and annexure G to the town planning report, exhibit 14. HER HONOUR: Yes. Okay. Thank you. MR HACK: Now, if your Honour thinks I should read them, I - - - HER HONOUR: I’m not saying that. I was just asking – testing – you’ve made the submission that it was an outlier. I was trying to understand the basis of the submission, because it might affect the weight that I give it. MR HACK: Perhaps I should say, it appears to be an outlier.”166 [121] At this juncture, it bears repeating that Burns J found that “no specific finding about the local community’s expectations regarding height was made”167 and that there is a need “to first determine what the expectations of the local community were concerning the height of any development”.168 These observations, read together with Burns J’s other observations, appear to require me to consider, amongst other things, the submissions and to determine a measurable unit of height that the local community expects to occur on the subject land. That expectation is then to be assessed for its reasonableness, and the resultant reasonable expectation as to height is to be compared to the height of the proposed development to ascertain whether there is consistency. [122] With that in mind, I am not prepared to limit my consideration of the submissions in the manner urged by Development Watch Inc. for three reasons. 166 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 28-30. 167 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 168 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [47]. -- 44 of 269 -- 45 [123] First, the analysis of the submissions in exhibit 39 does not draw a distinction between those submissions made by the local community and those made by people who do not form part of the local community. According to analysis undertaken by individuals who were not called to give evidence, between 82 and 92 submissions are from submitters who reside internationally and about 680 are from people who reside in states and territories of Australia other than Queensland. Mr Schomburgk’s analysis in Attachment G to the Joint Experts Report - Town Planning states: “It is noted also that, of the submissions in support of the proposal, approximately 443 were noted as being from residents in Mt Coolum, Yaroomba or Coolum Beach – approximately 22.5% of the submissions received from the Sunshine Coast residents – 1948 submissions were received in support of the proposal from residents of the Sunshine Coast. In total 3,167 submissions opposing the development are from residents in the same area (Mt Coolum, Yaroomba and Coolum Beach) being approximately 50% of the submissions received from Sunshine Coast residents opposing the development.”169 [124] Second, the analyses of the submissions in exhibit 39 and Attachment G to the Joint Experts Report - Town Planning are of little assistance in undertaking the exercise that is called for by the majority of the Court of Appeal. [125] Exhibit 39 contains no analysis of the content of the submissions. It is of no assistance in determining expectations regarding height. [126] Attachment G to the Joint Experts Report - Town Planning summarises the key issues raised in the pro-forma submissions. The attachment records that the individual comments in the submissions are not recorded in the analysis.170 In terms of the pro- forma content, the attachment summarises the submissions about height in the following terms: (a) “proposed height and density conflicts with the Sunshine Coast Planning Scheme 2014”; (b) “the proposed height and density are inconsistent with the Sunshine Coast Planning Scheme 2014 and out of character with the Yaroomba area”; (c) “the proposed height of the development is inconsistent with the Sunshine Coast Planning Scheme 2014 and will impact on the visual amenity and character of the area. There is no justification for the proposed heights”; (d) “the proposed height of the development will compromise the integrity of the Planning Scheme”; (e) “the proposed height of the development conflicts with the Planning Scheme”; (f) “the proposed height of the development conflicts with the planning scheme and is inconsistent with the character of the Coolum Local Plan area”; (g) “the proposed height of the development exceeds the height specified in the Planning Scheme”; 169 Exhibit 14 p 190. 170 Exhibit 14 pp 189-98. -- 45 of 269 -- 46 (h) “the proposed height of the development is out of character for the area”; (i) “the proposed height of the development is inconsistent with the Planning Scheme and out of character for the area”; (j) “the proposed height is inconsistent with the Planning Scheme and will impact on the visual amenity and character of the area”; (k) “the proposed high rise development is inappropriate”; (l) “the proposed height will have a significant impact on the visual amenity of Yaroomba”; and (m) “proposed height and density conflicts with the Sunshine Coast Planning Scheme 2014”.171 [127] This summary does not assist with the task at hand. It contains no indication of the height that is said to be consistent with, or specified in, the Planning Scheme. As such, one needs to look to the submissions to determine whether they assist. [128] The third reason that I am not prepared to ignore the submissions as urged by Development Watch Inc. relates to initial impression. My cursory “flick” through the submissions172 left me with a different impression of their content than I had formed when considering exhibits 40, 41, 42, 43 and 81. After my initial reading of the submissions, I formed the impression that exhibit 41 (and the combination of exhibits 40, 41 and 81) was not a truly representative sample of the submissions in opposition to the proposed development, because: (a) exhibit A3 contained more handwritten comments underneath pro-forma content than I had anticipated based on the evidence at the original hearing; (b) exhibit 41 (and the combination of exhibits 40, 41 and 81, and exhibit 14, Attachment G to the Joint Experts Report - Town Planning and exhibit 39) left me oblivious to the apparent racial motivation behind a material number of the pro-forma submissions made opposing the proposed development. I infer that motivation from comments on the pro-forma submissions such as “Our soldiers have laid down their lives for the FREEDOM that we enjoy. LET US HONOUR our AIRFORCE, ARMY AND NAVY – LAW ABIDING SERVICEMEN etc”173 and from comments that expressed opposition to the proposed development based on the assumption that the developer would not pay taxes in Australia due to its presumed association with a Japanese corporate entity; (c) the sample did not reveal that a vast number of the submissions made in opposition to the proposed development, both from residents of the local community and from those who reside further afield, were in documents that also contained representations about the development that do not reflect the details of the proposed development that I am to assess. The representations were in the following terms:174 “URGENT please submit this form by 5th December 171 Exhibit 14 pp 189-98. 172 This was an exercise undertaken by me before I then read each of them in detail. 173 Exhibit A3 p 167. 174 Or very similar terms. -- 46 of 269 -- 47 We are asking if you would kindly HELP us SAVE YAROOMBA from a high density, high-rise development over 1000 dwellings & a hotel, by sending Sunshine Coast Council this signed submission form or writing your own. Sekisui House has submitted a development application to Council to construct a massive high-density apartment complex at Yaroomba Beach. We oppose this high-rise development of 7 storeys and over 1000 dwellings as it massively breaches our Planning Scheme, which states buildings in Yaroomba must not be higher than 8.5 mtrs, or 2 storeys. We strongly object to: The blatant disregard of our Planning Scheme, high-rise buildings in a low rise coastal village, light glow affecting turtle nesting, 1650 extra residents, increased traffic of 600+ cars in peak hours. To SAVE YAROOMBA, please either write your own letter, making sure the application numbers are included or: 1. Download other forms from www.saveyaroomba.com or photocopy & share this submission form with your family & friends. One form per person, it is imperative that each family member fill in a form. 2. Fill out the personal details section on your form and sign it. 3. Add your own comments at the bottom (optional but comments make a big difference). 4. Fold the form so that the Council address appears on the front. Use some clear tape to hold the top of the form together. Affix a stamp and post to Council. Or drop off at Wagtail Café Yaroomba, Red Zoo next to Raw Energy Coolum, Lea’s His & Her Cuts Coolum next to Post Office,175 5. Download other submission forms from www.saveyaroomba.com and email to your friends and family www.facebook.com/saveyaroomba THANKYOU FOR HELPING SAVE YAROOMBA. (Submission form overleaf) PLEASE HELP US PREVENT A HIGH-RISE, HIGH DENSITY DEVELOPMENT CONSISTING OF OVER 1000 RESIDENTIAL APARTMENTS BEACHFRONT AT YAROOMBA 175 The pro-forma submissions were formatted such that, when folded in thirds, they were the size of an envelope, they displayed the Council’s address (as though on the front of an envelope), and they contained a notation about the location to affix a stamp. -- 47 of 269 -- 48 Beautiful Communities are hard to find, we need all the help we can get to preserve ours. We welcome a low-rise resort which accords to the Planning Scheme.”176 (d) the sample of submissions in exhibit 41 (and in exhibits 40, 42, 43 and 81) did not reveal that, in the many submissions that invited the lodgement of a submission and made representations about the nature of the development and the content of the Planning Scheme, there was no reference to: (i) the ability to view the details of the development application, including the supporting reports that were lodged with it, at the Council’s offices; or (ii) the existing Hyatt preliminary approval that attaches to the subject land (described above at paragraphs [88] and [89]); or (iii) the ability to access the Planning Scheme online or to view it at the Council’s offices.177 [129] Examples of the submissions are included in Annexure B. [130] I have read, and carefully considered all 24,496 pages of submissions in the 28 lever- arch folders that comprise Exhibit A3. My consideration of those 24,496 pages informs my ultimate finding that there is no uniform community expectation (local or otherwise) about the height of buildings and structures that should be permitted to occur on the subject land. [131] An overwhelming proportion of the submissions seem to have been made because of a campaign in an electronic age. I accept the observations of Mr Schomburgk, made from personal experience as a resident of the Sunshine Coast, that both those opposed to the development and those in support of it undertook extensive canvassing of opinions.178 Mr Schomburgk’s observations are consistent with the content of Exhibit A3 insofar as it reveals the locality from which the submissions originate. Most of the submissions are from people resident at locations throughout Australia that are well-removed from the locality.179 There are also a considerable number of submissions from people who reside internationally including, but not limited to, Portugal, the United States of America, and Denmark.180 176 See, for example, Exhibit A3 p 4. 177 I attach an example of the pro-forma submissions as Attachment A to these reasons. 178 Exhibit 14 p 61 [268]. 179 They are from residents of the local government areas of Brisbane City Council, Bundaberg Regional Council, Cairns Regional Council, Cassowary Coast Regional Council, Fraser Coast Regional Council, Gympie Regional Council, Gold Coast City Council, Ipswich City Council, Logan City Council, Moreton Bay Regional Council, Noosa Shire Council, North Burnett Regional Council, Rockhampton Regional Council, Redland City Council, South Burnett Regional Council, Toowoomba Regional Council, Townsville City Council, Western Downs Regional Council, and residents of towns in New South Wales, Victoria, Tasmania, Western Australia, the Australian Capital Territory, the Northern Territory. 180 See, for example, Exhibit A3 pp 255, 1220 and 1266. -- 48 of 269 -- 49 [132] To assist my review, I sorted the submissions in Exhibit A3 into submissions from the local community and submissions from people that did not record their residence as being within the local community. After sorting, there were: (a) seven lever-arch folders of submissions from residents of Yaroomba, Mount Coolum, Coolum Beach and Point Arkwright who opposed the proposed development; and (b) one lever-arch folder of submissions from residents of Yaroomba, Mount Coolum, Coolum Beach and Point Arkwright who supported the proposed development. [133] On my review, the submissions from residents of Yaroomba, Mount Coolum, Coolum Beach and Point Arkwright account for about one-quarter of the total submissions. Amongst them there are multiple submissions from single households, including separate submissions from adults and children within the one household. [134] The submissions from the local community include the types of observations about height referred to in paragraph [126] above. Having reviewed the submissions, I accept that the analysis in Exhibit 14, Attachment G to the Joint Experts Report - Town Planning fairly reflects the observations about height in the pro-forma submissions opposed to the proposed development. However, that analysis does not provide a discernible height, or sufficient information from which I could draw an inference about height. Having read all the submissions for myself, I now feel comfortable inferring from their contents that, to the extent that they express an expectation that the height of development is to be consistent with the Planning Scheme, the expectation is predominantly premised on an assumption that the Planning Scheme contains a maximum height limit of 8.5 metres or two storeys. [135] In addition, although most of the handwritten comments in these submissions re-state matters already raised in the pro-forma component of the submissions, there are additional comments that are material to the issues I must decide. They are not reflected in Mr Schomburgk’s analysis in Exhibit 14, Attachment G to the Joint Experts Report - Town Planning. This is unsurprising given he records that “individual comments has (sic) not been included in this overview”.181 [136] On my review, very few of the submissions express an expectation about the height of buildings and structures that could be achieved on the subject land. That is perhaps unsurprising. As I have observed at paragraph [30] above, the submissions were made under the Sustainable Planning Act 2009,182 which permitted submissions to be made “about the application”.183 Submissions were properly made if they included “the grounds of the submission and the facts and circumstances relied on in support of the grounds”.184 As such, under the legislative regime in place at the time the submissions were made, their intended focus was the development itself, not broader issues such as generalised expectations about the height of buildings that should be permitted. The relevant facts and circumstances might, but need not, include a statement about expectations in relation to development potential. 181 Exhibit 14, Attachment G pp 191, 195, 196, and 197. 182 See Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 205 footnote 3. 183 Sustainable Planning Act 2009 s 305 and sch 3 definition of “properly made submission”. 184 Sustainable Planning Act 2009 s 305 and sch 3 definition of “properly made submission”. -- 49 of 269 -- 50 [137] Not all individualised comments added to proforma submissions by the local community related to height. Some only related to issues such as impact on turtles. Those individualised comments that relate to height, only touch on the topic peripherally. They do not express a clear view about the height of buildings and structures that they expect to occur on the subject land. The comments include: (a) “I am a local of the area, I believe this proposed development by Sekisui should be only done to the current town plan”;185 (b) “Yaroomba is a great community as it is and does not need any high rise apartments with extra traffic and indangerment (sic) to local wildlife”;186 185 Exhibit A3 p 55 and similar submissions about sticking to the town plan. See, for example, Exhibit A3 pp 82, 116, 169, 211, 346, 468, 497, 677, 708, 753, 831, 843, 890, 943, 947, 1062, 1124, 1338, 1342, 1410, 1417, 1425, 1438, 1523, 1562, 1573, 1577, 1578, 1676, 1687, 1697, 1749, 1767, 1768, 1769, 1803, 1881, 1897, 1981, 1982, 2047, 2112, 2222, 2246, 2248, 2250, 2275, 2286, 2330, 2332, 2426, 2446, 248, 2513, 2573, 2586, 2598, 2623, 2687, 2779, 2800, 2810, 2812, 2870, 2889, 3083, 2106, 3187, 3224, 3239, 3304, 3325, 3327, 3382, 389, 3440, 3474, 3554, 3590, 3623, 3667, 3716, 3759, 3912, 3924, 4017, 4028, 4048, 4078, 4086, 4099, 4108, 4154, 4155, 4161, 4165, 4167, 4178, 4195, 4231, 4234, 4255, 4329, 4334, 4415, 4462, 4523, 4563, 4571, 4599, 4622, 4624, 4641, 4652, 4662, 4736, 4774, 4845, 4913, 4961, 4963, 4997, 5006, 5071, 5082, 5089, 5129, 5146, 5163, 5295, 5304, 5343, 5369, 5371, 5454, 5480, 5495, 5497, 5528, 5555, 5557, 5598, 5661, 5670, 5690, 5790, 5894, 5897, 6025, 6113, 6175, 6198, 6200, 6213, 6286, 6318, 6513, 6537, 6567, 6569, 6573, 6592, 6595, 6649, 6801, 6820, 6868, 6886, 6937, 6968, 6995, 7092, 7099, 7234, 7315, 7318, 7319, 3746, 7591, 7603, 7652, 7602, 7749, 7835, 7836, 7897, 7945, 7987, 8093, 8099, 8144, 8281, 8330, 8342, 8421, 8478, 8567, 8612, 8636, 8733, 8742, 8752, 8784, 8834, 8940, 8942, 8977, 9003, 9005, 9063, 9143, 9180, 9226, 9250, 9267, 9267, 9404, 9432, 9434, 9439, 9456, 9471, 9478, 9542, 9561, 9663, 9687, 9821, 9881, 10171, 10323, 10371, 10444, 10496, 10518, 10540, 10560, 10595, 10599, 10661, 10678, 10745, 10847, 10863, 10883, 10918, 10923, 10964 ,11013, 11094, 11141, 11197, 11223, 11357, 11419, 11422, 11453, 11485, 11514, 11580, 11675, 11753, 11849, 11858, 11993, 12004, 12056, 12125, 12240, 12258, 12306, 12319, 12341, 12469, 12484, 12516, 12783, 12800, 13577, 13624, 13649, 13665, 2907, 12997, 13019, 13164, 13166, 13183, 13197, 13199, 13221, 13234, 1326, 1331, 13686, 13735, 13745, 13745, 13972, 14234, 14242, 14322, 14335, 14426, 14439, 14636, 14692, 14931, 14996, 15057, 15159, 15161, 15179, 1527, 15330, 15336, 15342, 15483, 15644, 15679, 15699, 15763, 15875, 15890, 15891, 15893, 15983, 15985, 15987, 16055, 16169, 16271, 16273, 16403, 16435, 16497, 16622, 16736, 16848, 16886, 16934, 16951, 16995, 17000, 17078, 1083, 17145, 17159, 17206, 1753, 17552, 17623, 17831, 17974, 17992, 18071, 18078, 18245, 18254, 18261, 18261, 18289, 18304, 18339, 18788, 18841, 18936, 19018, 19019, 19120, 19126, 19138, 19241, 19438, 19566, 19594, 19694, 19702, 19784, 19796, 19962, 19970, 19784, 19796, 19962, 19970, 20027, 20047, 20123, 20295, 20433, 20583, 20596, 20606, 20608, 20725, 20726, 20882, 20910, 20929, 21084, 21208, 21246, 21274, 21304, 21310, 21339, 21350, 21450, 21456, 21558, 21560, 21590, 21617, 21628, 21772, 21824, 21826, 21856, 21878, 21827, 21968, 22020, 22037, 2212, 22135, 22139, 22271, 22353, 22357, 22409, 22412, 22454, 22548, 22587, 22613, 22615, 22714, 22886, 22896, 23040, 23160, 23266, 23301, 23374, 23388, 23432, 23487, 23615, 23657, 23678, 23681, 23825, 23897, 23902, 23909, 23940, 24154, 24168, 24181, 24374. 186 Exhibit A3 p 56 and similar submissions expressing opposition to any high rise. See, for example, Exhibit A3 pp 60, 67, 93, 163, 224-5, 332, 442, 600, 648, 727, 766, 843, 1058, 1062, 1116, 1163, 1304, 1488, 1491, 1497, 1523, 1568, 1577, 1672, 1687, 1714, 1833, 1923, 2047, 2076, 2112, 2220, 2330, 2411, 2535, 2586, 2587, 2870, 2889, 2073, 3106, 3129, 3204, 3218, 3239, 3282, 3474, 3526, 3583, 3623, 3652, 3784, 4161, 4187, 4233, 4329, ,4558, 4563, 4599, 4602, 4662, 4672, 4674, 4717, 4981, 5089, 5121, 5158, 5163, 5182, 5193, 5203, 5528, 5639, 5668, 5670, 5777, 5790, 5799, 5984, 6029, 6030, 6175, 6182, 6268, 6314, 6336, 6346, 6349, 6353, 6414, 6422, 6490, 6492, 6517, 6527, 6573, 6676, 6692, 6732, 6774, 6886, 6887, 6925, 6933, 6981, 6984, 7057, 7059, 7062, 7211, 7346, 7615, 7727, 7745, 7757, 7785, 781, 7821, 7826, 7956, 8050, 8080, 8110 ,8116, 8158, 8176, 8308, 8491, 8558, 8657, 8664, 8762, 8780, 8784, 9047, 9093, 9194, 9329, 9364, 9435, 9599, 9619, 9650, 9663, 9728, 9759, 9849, 9856, 10053, 10115, 10146, 10202, 10222, 10323, 10482, 10518, 10557, 10569, 10595, 10801, 10909, 11003, 11078, 11197, 11362, 11399, 11485, 11508, 11570, 11695, 11753, 11760, 11810, 11888, 11988, 12019, 12042, 12056, 12185, 12279, 12288, 12383, 12405, 12447, 12516, 12663, 12991, 13045, 13099, 13289, 13342, 13367, 13548, 13597, 13601, 13645, 13688, 13721, 13737, 13802, 13815, 13990, 14046, 14070, 14231, 14374, 14423, 14455, 14493, -- 50 of 269 -- 51 (c) “All 5 stages NOT ACCEPTABLE – STAGE 1 highly desirable”;187 (d) “No hi rise – that’s what Gold Coast has. Traffic – overwhelming apartments (no hotel). Keep Sunshine Coast as per town planning”;188 (e) “There are so many elements of this proposed development which contradict the character and socio-environmental fabric of the Yaroomba and Coolum area. With no proper forethought and planning for the largescale changes to the area – including but not limited to traffic, disruption of turtle nesting areas, and the implications of setting a legal precedent by grossly exceeding limits imposed by the Sunshine Coast Planning Scheme – this proposed development could seriously damage the local ecosystems, community identity”;189 (f) “This proposal seeks to change the current planning scheme, which will then set a precedent for other high rises to be built on the fragile coastal foreshore. The Council needs to stand by its vision for the coast – to be healthy, green & diverse. Sekisui House does not fulfil any of these visions”;190 (g) “don’t change town plan”;191 (h) “As a local resident, I object to the density and height of the proposed development, as it is outside the scope of the Town Plan and would adversely affect the character of the local area. The roads in the area are busy enough currently, but would be unable to cope with the much increased demand.”;192 (i) “I could potentially agree to a low-rise, eco-lux resort on the site in question, which could work well with the existing Palmer Resort when it is resurrected 14515, 14589, 14657, 15033, 15186, 15228, 15320, 15373, 15395, 15496, 15714, 15802, 15877, 16017, 16043, 16055, 16106, 16290, 16302, 16331, 16355, 16364, 16404, 16469, 16558, 16653, 16706, 16733, 16756, 16763, 16869, 16879, 16910, 16951, 17009, 17227, 17272, 17401, 17411, 17448, 17706, 17722, 17922, 17967, 18040, 18120, 18150, 18215, 18243, 18256, 18287, 18312, 18460, 18560, 18595, 18708, 18714, 18808, 19057, 19079, 19098, 19220, 19239, 19297, 19324, 19342, 19396, 19474, 19524, 19532, 19534, 19602, 19653, 19678, 19961, 20045, 20080, 20175, 20198, 20218, 20307, 20702, 20857, 20861, 20921, 20998, 21005, 21008, 21013, 21061, 21064, 21185, 21210, 21317, 21346, 21446, 21450, 21558, 21579, 21736, 21798, 21879, 21927, 21982, 22037, 22141, 22409, 22495, 22546, 22608, 22633, 22702, 22703, 22768, 22949, 23002, 23285, 23301, 23417, 23465, 23533, 23757, 23796, 23909, 23927, 23940, 24061, 24148, 24154, 24185, 24186, 24229, 24244, 24311, 24317, 24374, 24431, 24484. 187 Exhibit A3 p 256. 188 Exhibit A3 p 279 and similar submissions about the area not becoming like the Gold Coast. See, for example, Exhibit A3 pp 1035, 1037, 1080, 1425, 1501, 1578, 1684, 1714, 2275, 2737, 2740, 2746, 2902, 3376, 3389, 3693, 3719, 3750, 4178, 4329, 4341, 4650, 5737, 5739, 5894, 6164, 6414, 6887, 6958, 7413, 7616, 7621, 7732, 7811, 8116, 8612, 9017, 9083, 9086, 9484, 9526, 10305, 10405, 10990, 11135, 11627, 11675, 11763, 12125, 12825, 13216, 13225, 13257, 13874, 14548, 14663, 15152, 15578, 15777, 22247, 23038, 23681, 23739, 23879, 24347. 189 Exhibit A3 p 328 and similar submissions expressing concern about setting a precedent. See, for example, Exhibit A3 pp 497, 621, 1741, 1940, 1981, 2737, 2740, 2746, 2800, 2902, 3010, 3165, 3750, 4674. 190 Exhibit A3 p 334. 191 Exhibit A3 pp 485, and similar submissions about not changing the town plan. See, for example, Exhibit A3 pp 648, 907, 1157, 1307, 1869, 1925, 1964, 2036, 2039, 2046, 2068, 2265, 2415, 2465, 2535, 3204, 3452, 3700, 4154, 4302, 6774, 6784, 6874, 7076, 7244, 7246, 7732, 7840, 8234, 8498, 8530, 8591, 9423, 9430, 9538, 9753, 10374, 10398, 10435, 10548, 10935, 11139, 11512, 11718, 12175, 12314, 13309, 14663, 16683, 18273, 18308, 20859, 21473, 21491, 22259, 22275, 22773, 22921, 22949, 23378, 23739, 24257, 24386. 192 Exhibit A3 p 568 and similar submissions about the height being contrary to the scheme. See, for example, Exhibit A3 pp 589, 785, 1741, 1839, 2162, 2310, 2329, 2575, 2741, 2750, 2842, 2900, 3032, 3269, 3299, 3451, 3768, 3815, 4107, 4426, 4688. -- 51 of 269 -- 52 and restored to an international resort catering for families and being open to the public as it previously was; whilst any eco-lux resort across the road will be more exclusive. These types of resorts are extremely popular in other tourism location and there are currently no eco-resorts on the beach anywhere on the Sunshine Coast. The benefits of a low-rise eco-lux resort across the entire 19 hectares would mean there would be no conflicts with the Planning Scheme, no requirement for additional roundabouts, no adverse effect on turtles and greater long-term employment opportunities for existing residents of the coast”;193 (j) “… I am now 14 … I don’t believe an 8 story hotel will be able to block all light onto the beach”;194 (k) “The community has reasonable requests to keep the development at the initially proposed 4 storeys and ask that Sekisui honour this and town plan”;195 (l) “This proposed development does not fit in with the local area. A much smaller & lower in height development would be acceptable & more attractive. It offers much less than the previous Hyatt so could become an unnecessary white elephant & an eyesore”;196 (m) “Whilst I do not oppose an appropriate development of the site, I strongly oppose this particular form of development proposed. It is a high density, high rise cash grab fascading as a 5 star resort hotel, which is tacking on to attempt to satisfy council’s belief that the coast is in need of this type of facility. This site has so much potential to create something truly iconic and appropriate which fits within the town plan and the community expectations. The concept plans Sekisui has put forward are absolutely devoid of any style, unique quality and are completely lacking in any imagination. The design in its current state, if approved, would be an eyesore and a blight on our natural environment. It does not blend in with our pristine coastal ecosystem, would cause traffic chaos on David Low Way, significant affect the turtle population local to this stretch of beach and destroy the wonderful community feel of this unique area. This Application must be rejected”;197 (n) “This development would be appropriate if it stayed within the height restrictions”;198 (o) “Yaroomba is a residential area & 7 storey buildings are more suitable for Maroochydore or Mooloolaba”;199 193 Exhibit A3 p 571 and similar submissions about keeping it low rise. See, for example, Exhibit A3 pp 835, 967, 1037, 1559, 1964, 2888, 2900, 4028, 4710, 5528, 6887, 10247, 10861, 10989, 11107, 11374, 11645, 12441, 12457, 14351, 14355, 14681, 15415, 15951, 16662, 18437, 18624, 20182, 20451, 21471, 21634, 22273, 22548, 23266, 23428, 23918, 23927. 194 Exhibit A3 p 676. 195 Exhibit A3 p 2018. 196 Exhibit A3 p 2591. 197 Exhibit A3 p 2649 and similar submissions expressing general objection to the proposed height. See, for example, Exhibit A3 pp 1970, 4426, 4523, 4618. 198 Exhibit A3 p 2893. 199 Exhibit A3 p 4073 and similar submissions about not permitting seven-storey development. See, for example, Exhibit A3 pp 3353, 3554, 4523, 11997, 22507. -- 52 of 269 -- 53 (p) “Development should be appropriate in scale to surrounding context and fit to existing town plan”200 (q) “stick to the high rise”;201 and (r) “maintain more natural height with local environment and maintain the status quo of living”.202 [138] Those submissions from the local community that express a clear view as to their expectation about the height of buildings and structure on the subject land are extremely limited in number. In those submissions, the view is generally expressed as a handwritten comment on the bottom of a pro-forma submission opposed to the proposed development. Examples of the relevant comments include: (a) “Stick with the agreed town plan of 8.5 metres!! Be aware of local wildlife turtles etc and the sanctity of Mt Coolum as a world heritage sacred site!! Mindful development is the key!!”;203 (b) “pls stick to town plan – keep to two storeys. Not on the beach line”;204 (c) “Keep highrise to 5 levels – happy to increase employment Sekesui but stick to what locals want – COMPROMISE”;205 (d) “I would ask the Council to abide the four storey building limit in its own planning scheme: the Sunshine Coast Planning Scheme 2014. Highrise buildings in this location will permanently destroy the ambience and beauty of this area. The Gold Coast is a prime example of the ugliness that results from highrise development; nobody wants to holiday there any more, they come to the Sunshine Coast instead, as it is still beautiful and has not been trashed by overdevelopment … as yet”;206 (e) “Height limit 4 stories”;207 (f) “I don’t mind buildings up to 4 stories”;208 (g) “Keep it one level”;209 (h) “Don’t let Sekisui pursue Council to alter the town plan of 3 storeys. We are not against a tourist site but keep it in line with our beautiful environment and think of the turtles”;210 200 Exhibit A3 p 5832. 201 Exhibit A3 p 8688. 202 Exhibit A3 p 24006. 203 Exhibit A3 p 242 and similar submissions about not permitting a height of greater than 8.5 metres. See, for example, Exhibit A3 pp Exhibit A3 pp 2748, 3315, 4624, 4981, 5043, 4229, 6243, 10750, 11973, 12367, 12521, 13004, 15456, 16284, 16351, 19244, 20248, 22167, 23987, 24197, 24443. 204 Exhibit A3 p 2246 and similar submissions about limiting to two storeys. See, for example, Exhibit A3 pp 3590, 4178, 6517, 7007, 11641, 11848, 11997, 12629, 12921, 16201, 16928, . 205 Exhibit A3 p 3216. 206 Exhibit A3 p 3615. 207 Exhibit A3 p 3831. 208 Exhibit A3 p 4318 and similar submissions that expresses an expectation of heights of four storeys. See, for example, Exhibit A3 pp 4961, 5119, 5251, 6102, 6216, 8069, 8154, 8246, 9911, 13483, 13919, 14457, 15579, 16151, 16867, 18421, 19739, 20240, 21702, 21932, 22384, 23074, 23813. 209 Exhibit A3 p 6839. 210 Exhibit A3 p 11806 and similar submissions expressing an expectation of three storeys. See, for example, Exhibit A3 pp 12055, 12397, 15620, 18507, 19326. -- 53 of 269 -- 54 (i) “Initially I was concerned about the original height of the first submission put forward by Sekisui but fully support the new plans consisting of a maximum of seven storey height restriction for the resort and serviced apartments only and the residential houses and units three and four storey.”;211 and (j) “Our only concern with this development might have been a twelve storey building. Sekisui has dropped it now to a seven storey building which I think should be seriously considered”.212 [139] Three observations can be made about the submissions from the local community. [140] First, as is evident from the comments referred to in paragraphs [137] and [138] above, not all the comments made by the local community on pro-forma submissions that opposed the proposed development were averse to all aspects of the development. [141] Second, where the submissions expressed dissatisfaction about the height of the proposed development, or about height of development in conflict with the Planning Scheme, the dissatisfaction was informed by an expectation that the height would have an adverse impact on matters such as visual amenity, character, traffic operations and turtles. [142] Third, while one might infer from consideration of the pro-forma component of submissions that the local community expects buildings of two storeys, the individual comments suggest that such an inference should not be readily drawn. Those submissions that contain express comments about expected heights demonstrate that the expectations are varied amongst that limited proportion of the local community that chose to make a submission. The expectations range between one storey and seven storeys. What is the evidence of the lay witnesses? [143] Several members of the local community gave evidence in the appeal. Their evidence was predominantly contained in written statements tendered by the Appellants, but some also gave oral evidence.213 The lay witnesses’ evidence rarely provided insight as to their expectations about the height of buildings that might occur on the subject land and, to the extent that it did, those expectations were certainly not uniform. [144] Ms Sandra Werner is a resident of Coolum Beach who has resided in the area for over 30 years. She made a submission opposing approval of the development application. She gave evidence that she has a narrow water view out to Yaroomba from her home. She always thought it would be protected by the Planning Scheme. Ms Werner did not give evidence about the height to which she expects any buildings on the subject land will be limited.214 211 Exhibit A3 p 16509. 212 Exhibit A3 p 21037. 213 Exhibits 37A, 37B, 37C, 37D, 37E, 37F, 37G, 37H, 37I, 37J, 47, 48, 49, 55A, 55B, 56A, 56B, and Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 22 November 2019), 2-26 and 58-69; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 26 November 2019), 72-8; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 20-43. 214 Exhibit 37A. -- 54 of 269 -- 55 [145] Mr Kenneth Dredge is also a resident of Coolum Beach. His involvement with the Coolum locality commenced in 1993. He made a submission opposing approval of the development application. In his submission, Mr Dredge expresses dissatisfaction about the height of the proposed development. His court statement focuses on his concerns about impacts from increased people and vehicles. He did not give evidence about the height to which he expects any buildings on the subject land will be limited.215 [146] Mr Paul Huntress is a resident of Yaroomba. He made a submission opposing approval of the development application and was involved in obtaining submissions to lodge with the Council. In his court statement, Mr Huntress expresses concern that the proposed development is substantially different to what he was expecting. However, he does not disclose his expectations.216 [147] Mr Tony Philbrick is a resident of Coolum Beach who made a submission opposing approval of the development application. In his court statement, he explains that one of his primary concerns is the excessive height of the proposed hotel and serviced apartments and the residential housing. He did not give evidence about the height to which he expects any buildings on the subject land will be limited.217 [148] Ms Bryony Triggs resides at Coorparoo in Brisbane but has regularly visited the Yaroomba area for holidays over the past 25 years. She did not make a submission about the development application but says that she would have if she had been aware of the opportunity to do so. She wants to see the natural beauty of the area safeguarded. Ms Triggs did not give evidence about the height to which she expects any buildings on the subject land will be limited.218 [149] Ms Beverley Payne is a resident of Yaroomba. She made a submission opposing approval of the development application. In her submission and her court statement, Ms Payne indicates that she is dissatisfied with the proposed development but would be supportive of a low-rise, low-key eco resort across the entire site. During cross- examination, she gave evidence that her and her husband “would prefer the town plan was – was going to be the way that Sekisui went, instead of going to seven storeys and not four storeys”.219 [150] Ms Sherryl Williams is a resident of Yaroomba who made a submission opposing approval of the development application. She gave evidence that, to the best of her recollection, in 2014 the new planning scheme was signed off on by the Council and it was made public that it had an 8.5 metre height limit. She is aware of the previous approval, from 2007, that permits four-storey buildings on the subject land but has a belief that the approval will not be pursued. She is concerned about the height of the 215 Exhibit 37B. 216 Exhibit 37C; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 39. 217 Exhibit 37D. 218 Exhibit 37E; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 26 November 2019), 76. 219 Exhibit 37F. -- 55 of 269 -- 56 proposed development. I infer that she expects buildings on the subject land to be limited to 8.5 metres in height.220 [151] Ms Prudence McGowan is a resident of Point Arkwright. She has resided in the area for approximately 47 years. She was involved in a group campaign to inform the community of the proposed development. The campaign involved painting approximately 1,000 signs, doorknocking, letter box dropping information flyers, and organising rallies. [152] Ms McGowan made a submission opposing approval of the development application. In her submission, the first reason she gives for strongly opposing the development application is: “Sekisui House are not residents. They do not live here. They do not contribute to the community in any way, and they do not contribute to our society. They are a money-making construction company that they reside in Japan and are listed on the Japanese Stock Exchange.”221 [153] During cross-examination, Ms McGowan confirmed that her concern was that the developer was foreign.222 She did not give evidence about the height to which she expects any buildings will be limited.223 [154] Ms Lynette Saxton is a long-term resident of Yaroomba. She is a long-term member of Development Watch Inc. and is responsible for the conduct of this litigation. She helped lay witnesses to provide statements to the Court.224 She made a submission opposing approval of the development application. When she moved to her current residence, she was aware of a development approval that authorised buildings up to four storeys in height on the subject land. She did not anticipate development such as that proposed. Although Ms Saxton was not explicit about her expectations, considering her evidence as a whole, I infer that she expects buildings on the subject land to be limited to 8.5 metres in height.225 [155] Ms Lynette Cosgrove is a resident of Coolum Beach. She made a submission about the development application. The focus of her court statement concerns traffic congestion and car parking. She says that she would like to see the equivalent of the Hyatt Regency Coolum constructed on the subject land and a low-rise resort like 220 Exhibit 37G; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 22 November 2019), 58-69. 221 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 21. 222 Exhibit 37H; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 21. 223 Exhibit 37H; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 20-3. 224 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 24-5 and 28-9. 225 Exhibit 37I; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 24-31. -- 56 of 269 -- 57 Peppers at Kingscliff. She did not otherwise give evidence about what height of buildings she expects.226 [156] The statements from Ms Stephanie Phillips, Mr Ben Pearce and Ms Susan Richards227 relate to volunteer efforts with respect to turtle hatchlings. They do not assist with the issue of the local community expectation about building height. [157] Ms Leigh Warneminde is a resident of Yaroomba. She has lived around Coolum since 1985 and in Yaroomba since 1996. She made a submission opposing approval of the development application. Her submission covers the many and varied topics that were common in pro-forma submissions, such as density, character, visual amenity, environment, turtles, traffic, infrastructure, and tourism. It includes a statement that the current town plan height limit is 8.5 metres, and that the height of the proposed development is out of character. [158] Ms Warneminde’s court statement and oral testimony reveals that her main concerns relate to light spill and the potential consequential impact on turtles. During cross- examination, Ms Warneminde clarified that she is not concerned about development on the subject land provided there are appropriate controls to avoid the potential impact that might arise. She is concerned that if the proposed development proceeds, there will be other developments in the area that will be able to do the same thing, causing a cumulative light glow impact. Perhaps unsurprisingly, given her focus on impacts on turtles, Ms Warneminde did not give evidence about what height of buildings she expects.228 [159] Ms Sherida Holford is a resident of Mount Coolum. She has lived in the Coolum and Yaroomba area for 28 years. She made a submission opposing approval of the development application. Her submission is a pro-forma style and, as such, addresses various topics. Her handwritten comments on the submission focus on turtle impacts. Like Ms Warneminde, Ms Holford’s court statement and oral testimony reveal that her predominant concerns are that development along the coast is creating cumulative increases in light glow and that there are potential consequential impacts on turtle nesting and turtle hatchlings. She did not give evidence about what height of buildings she expects.229 [160] Evidently, the lay witnesses’ evidence varied greatly and provided little insight as to the local community’s expectation about building height. To the extent that it provides insight, it supports a finding that the expectation is that buildings would have a height no greater than 8.5 metres or two storeys. What is revealed by the evidence in the certificate of the Chief Executive Officer? [161] Before considering what is revealed by the evidence in the certificate of the Chief Executive Officer, it is convenient to deal with a dispute between the parties about the relevance of that evidence to the issue of local community expectations. The 226 Exhibit 37J. 227 Exhibits 47, 48 and 49. 228 Exhibits 55A and 55B; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 22 November 2019), 2-16. 229 Exhibits 56A and 56B; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 22 November 2019), 16-26. -- 57 of 269 -- 58 dispute arose in the context of the first question posed by Development Watch Inc. (identified in paragraph [10] above). [162] Development Watch Inc. submits that the expectations of the local community are to be determined by reference to those expectations at the time of this Court’s assessment.230 Sunshine Coast Environment Council Inc. adopts the submission. Assuming that to be the case, Development Watch Inc. relies on the amendments that are reflected in the changed code in version 18 of the Planning Scheme as evidence of the expectations of the local community. [163] SH Coolum Pty Ltd takes issue with that approach. It submits that Development Watch Inc.’s approach is to make the new para (2)(a) of s 8.2.8.2 in version 18 of the Planning Scheme relevant to the threshold expectations issue, and so then relevant to the “reasonable expectations” issue. It submits that this involves conflating separate issues. SH Coolum Pty Ltd says that version 18 of the Planning Scheme is the subject matter of s 45(8) of the Planning Act 2016. It says that there is no compulsion under that provision for the assessment manager to give any weight to a new instrument and, if the decision is made to give it weight, it may be very little, or very great, or something in between. [164] SH Coolum Pty Ltd accepts that expectations will change with changes in material circumstances but submits that it is unlikely that Parliament would intend that the discretion permitted by s 45(8) of the Planning Act 2016 may be used to “feed back” into the assessment required by s 45(7). It says that this is perhaps reinforced by the emphasis given by Burns J to the use of submissions as evidence as to the expectations of the local community. Those submissions are fixed in a point of time – that is, during the period of public notification – and that period is in turn linked to the earlier making of a development application that must be assessed against the planning scheme provisions in effect when the development application was properly made. [165] In furtherance of its submissions on this point, SH Coolum Pty Ltd called in aid the observations of Gotterson JA (with whom Philippides JA agreed) in Brisbane City Council v Klinkert231, wherein Gotterson JA said (substituting the current sub-section numbering for the numbering in force at the time): “[5] Within the framework for which [s 45(7)] provides, it is quite unclear how the assessment manager might “give weight” to the amendment or replacement. Section [s 45(8)] gives no guidance as to what is meant by that expression. Moreover, the provision confers a discretion to give weight but throws no light on when, or for what purpose, the discretion is intended by the legislature to be exercised. [6] Despite this lack of clarity, it is, I think, tolerably clear from the emphatic terms in which [s 45(7)] is enacted, that [s 45(8)] is not a vehicle for displacement or modification by the assessment manager of the statutory instrument or other 230 First Appellant’s Further Written Submissions. 231 [2019] QCA 40; [2020] QPELR 579. -- 58 of 269 -- 59 document as in effect when the application was properly made.”232 [166] SH Coolum Pty Ltd notes that, in the context of the third error, Burns J referred to Brisbane City Council v Klinkert233 and accepted that version 18 should not be allowed to become a “vehicle for displacement or modification” of version 8.234 SH Coolum Pty Ltd submits that the observation of Burns J points away from the conflating of the issues raised by ss 45(7) and 45(8) that Development Watch appears to urge. SH Coolum Pty Ltd says that, in the context of the first error, Burns J was quite specific that the “reasonableness of those expectations needed to be assessed in light of the planning provisions applying to the subject land”,235 meaning the planning provisions engaged by s 45(7) of the Planning Act 2016. [167] SH Coolum Pty Ltd submits that Development Watch Inc.’s question 1(b) (identified at paragraph [10] above) is academic. It is now over two and a half years since the original hearing and, in this remitted hearing, Development Watch Inc. elected not to seek to call any additional evidence. SH Coolum Pty Ltd says there is no evidence of the expectations of the local community at the present time and, as Burns J has already indicated, it is the submissions made during the public notification period in late 2017 (obtained over five years ago) and the limited lay statements (obtained over three years ago) to which the Court must turn to make a determination about the expectations of the local community. [168] SH Coolum Pty Ltd submits that, whatever the correct time for the assessment might happen to be, the Court has only the one body of evidence to make the determination about community expectations. It says that Development Watch Inc. has not, until now, presented a case that version 18 was material to the outcome. Put another way, at the original hearing in 2019, Development Watch Inc. could not – and did not – rely upon version 18 as a basis for community expectations, and the passage of time created by its proceedings in the Queensland Court of Appeal does not, and cannot, change that position. [169] The Council submits that the difficulty with the alternatives posed in question 1 (identified at paragraph [10] above) is that Development Watch Inc. knows, or ought to know, that the only evidence about community expectations examined and discussed by the Court of Appeal was that contained in the body of submissions. The Council also makes a point that the questions posed by Development Watch Inc. assume a choice between two alternatives. It says the choice is artificial given, apart from the time of the making of the development application or the time of assessment by this Court, the time that the submissions were lodged in accordance with the public notice is also up for consideration. [170] That said, the Council submits that the task is not so burdensome. This is because, according to the Council, Development Watch Inc. has not sought leave to put further evidence before the Court in respect of any different expectations in the local community. The Council says that the evidence about the community’s expectations as to height are the submissions and the evidence received at trial from local residents. The Council submits that evidence is the “credible” and “substantial” body of 232 Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, 581. 233 [2019] QCA 40; [2020] QPELR 579. 234 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51]. 235 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43]. -- 59 of 269 -- 60 evidence to which the Court of Appeal referred as “the most direct expression of the expectations about which overall outcome (b) of s 8.2.8.2(2) is concerned.” In those circumstances, the Council submits that it makes no difference to the ultimate nature of the community’s expectations whether those expectations are taken to be those held at the time the development application was made or at the time of the remitted hearing. [171] In paragraphs [13] to [17] and [25] to [85] above, I explain the approach to be taken to determining the issues in this appeal. In short: (a) I am to hear the matter anew, except that the assessment against the assessment benchmarks is to be undertaken against version 8 of the Planning Scheme as they were the assessment benchmarks that applied at the time the development application was made; (b) I need to undertake the assessment under s 45 of the Planning Act 2016 only to the extent that a matter is put in issue by the parties; and (c) I must decide the issues raised in the appeal based on the admissible evidence presented in the appeal. [172] As is apparent from the submissions from each of the parties, it is common ground that this approach is appropriate. The real dispute relates to whether version 18 of the Planning Scheme is a potential source of evidence on which the Appellants can rely as evidence of the expectations of the local community. [173] I accept that it is. There are five observations I wish to make in that regard. [174] First, I accept SH Coolum Pty Ltd’s submission that at the original hearing, the Appellants did not rely on version 18 of the Planning Scheme as evidence relevant to the assessment of the proposed development against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. [175] As with many of the matters put in issue by Development Watch Inc., at the original hearing it did little to assist the Court to understand its contentions and the evidence it relied on to support those contentions. Development Watch Inc.’s submissions about the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme were limited. When viewed in light of the errors identified by the Court of Appeal, the submissions are completely unhelpful. After quoting the provisions from version 8 and version 18 of the Planning Scheme, the submissions stated: “162. The change represents a strengthening of the policy in relation to building height. In Version 8, subparagraph (b) acts as an exception to the obligation to comply with the height nominated in the overlay. Version 18 is reframed so that a building must comply with the nominated height and it must comply with subparagraphs (b) and (c); which are the equivalent to subparagraph (b) in Version 8. 163. The significance of provisions such as these in relation to building height and in identifying the public interest reflected in such provisions was acknowledged by the Court of Appeal in -- 60 of 269 -- 61 Bell v Brisbane City Council [2018] QCA 84. While the case considered the superseded planning legislation, the observations about the use to be made of height provisions in planning schemes are still apposite. 164. Development Watch’s case is that the majority of buildings proposed on the site (in Stage 1 and subsequent Stages) do not comply with the nominated height and do not meet the character and amenity requirements of Version 8, subparagraph (a) and (b) or Version 18, subparagraphs (a), (b) and (c). 165. There is clear non-compliance with this Code, both in Version 8 and in Version 18.” (footnotes omitted) [176] Development Watch Inc.’s oral submissions at the original hearing provided no further assistance on this issue. [177] As is evident from the quote of Development Watch Inc.’s submissions above, at the original hearing: (a) Development Watch Inc. did not submit that the appropriate approach was that referred to by Burns J;236 (b) the submissions advanced by Development Watch Inc., and the focus of its arguments, bear no resemblance to the issues considered by the Court of Appeal and that I which must now decide on remitter; and (c) despite directions made by me at the original hearing, Development Watch Inc. failed to identify the evidence in support of its submissions, instead choosing to leave the Court with little more than bald assertions. [178] That approach to litigation is undesirable. Had Development Watch Inc. aided the Court as directed in the first instance, considerable resources of this Court, the Court of Appeal, and of all the parties may have been saved. That said, at the hearing on remitter, Development Watch Inc. has made some attempt to identify the evidence that it asks the Court to consider when making the factual determination called for. The evidence it identifies is not limited to Exhibits 39, 40 and 41. It includes version 18 of the Planning Scheme. [179] Second, I do not accept SH Coolum Pty Ltd’s submission that Development Watch Inc. cannot rely on version 18 of the Planning Scheme as part of the evidence relevant to the factual determination to be made about local community expectations. Version 18 was in evidence at the original hearing. Development Watch Inc. was then, and is now, free to call it in aid as evidence supporting its position on any issue in dispute.237 The fact that Development Watch Inc. did not invite me to consider version 18 of the Planning Scheme as evidence of local community expectations at the original hearing may have resulted in a waste of resources, but it does not preclude it from relying on that evidence now. 236 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6. 237 Relying on version 18 of the Planning Scheme as evidence relevant to determination of an issue put in dispute by the parties is different to putting the question of compliance with version 18 of the Planning Scheme in issue in the proceeding. -- 61 of 269 -- 62 [180] Third, I do not accept SH Coolum Pty Ltd’s submission that treating version 18 of the Planning Scheme as a potential source of evidence of local community expectations offends the legislative regime. The assessment against the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme calls for a finding of fact to be made about the expectations of the local community about the height of buildings and structures. That factual determination is to be made by me at the time I make my decision. It is to be made on the available evidence. That evidence includes version 18 of the Planning Scheme, which was put before me at the original hearing without opposition. Consistent with s 45(8) of the Planning Act 2016, the weight that I give to the contents of version 18 in making the factual determination about local community expectations is a discretionary matter to be considered by me on the understanding that it is not intended to be a vehicle for displacement. [181] The finely balanced exercise required here does not involve an attempt to displace version 8, nor to conflate the issues raised by ss 45(7) and (8) of the Planning Act 2016. Community expectations change over time and can be informed by the contents of planning instruments in place from time to time. In this case, the fact that the exercise involves consideration of subsequent amendments to the Planning Scheme when assessing the proposed development against the Planning Scheme is a product of: (a) the Council’s decision to adopt a planning scheme that calls for an assessment of a development based on the “reasonable expectations of the local community”; (b) the fact that planning schemes can change between when a development application is made and when it is assessed; (c) the legislature’s decision to permit weight to be given to amendments to a planning scheme as part of an assessment of a development application; and (d) the application of findings in previous decisions by the Queensland Court of Appeal, which related to different planning schemes and a different legislative regime but were cited by Burns J, namely that: (i) “the planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the land”;238 and (ii) a height limit in a planning scheme is “an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations”.239 [182] Fourth, I do not accept the Council’s submission that the only evidence about community expectations, as distinct from the reasonableness of such public expectation, examined and discussed by the Court of Appeal was that contained in the body of submissions. The reasons of Burns J prescribe the factual determinations 238 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46] citing Bell v Brisbane City Council (2018) 230 LGERA 374, [66], Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409, [67]; and Redland City Council v King of Gifts (Qld) Pty Ltd [2020] 3 QR 494, [161]. 239 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [48] citing Bell v Brisbane City Council (2018) 230 LGERA 374, [70]. -- 62 of 269 -- 63 required. They do not define the use to be made of version 18 of the Planning Scheme. Even if I am wrong about that, the observations of Burns J in that respect are obiter dicta and do not bind me. I have a discretion to admit further relevant evidence and to give it the weight that I consider appropriate. [183] Fifth, I do not accept the submissions of SH Coolum Pty Ltd and the Council that the only relevant evidence is in the submissions and the evidence of the local residents. Although there was no formal application to reopen the case and admit additional evidence, there was no objection to me receiving the additional evidence identified in paragraph [107] above. [184] With the matters referred to above in mind, I now turn to consider what is revealed by the evidence in the certificate of the Chief Executive Officer. As noted above, the certificate of the Chief Executive Officer certifies and annexes extracts from Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20 and version 24 of the Planning Scheme. [185] Development Watch Inc. relies on the amendments to s 8.2.8.2(2) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme made by Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20. It says the amendments provide compelling evidence of the expectations of the local community. It also relies on the Explanatory Memorandum for Planning Scheme Amendment No. 13 in support of its position. [186] Development Watch Inc. submits that the gravamen of Planning Scheme Amendment No. 13 was the insertion of a new overall outcome in s 8.2.8.2(2) in these terms: “(a) Development provides for the height of buildings and structures to comply with specified height limits except where explicitly provided for in this code.” [187] Development Watch Inc. says that the effect of Planning Scheme Amendment No. 13, insofar as the subject land is concerned, was described by Burns J (with whom Morrison JA agreed) as follows: “Version 18 [which incorporated Amendment 13] not only required the height of buildings and structures to be consistent with the reasonable expectations of the local community, it mandated compliance with the specified height limits, that is to say, 8.5 metres. Indeed, as “an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations”,240 Version 18 would seem to reflect much of the sentiment expressed in the submissions made in opposition to the development. (emphasis added by Development Watch Inc., original footnotes) [188] Development Watch Inc. says that although Planning Scheme Amendment No. 13 took effect after SH Coolum Pty Ltd made the development application to Council, public consultation about the proposed amendment was undertaken from 26 September 2016 to 7 November 2016. As such, the proposed amendment was before 240 Bell v Brisbane City Council (2018) 230 LGERA 374, [70]. -- 63 of 269 -- 64 the public some months before SH Coolum Pty Ltd made the development application to Council in May 2017. [189] Development Watch Inc. also relies on the Explanatory Memorandum for Planning Scheme Amendment No. 13, wherein it indicates that submitters in the public consultation stage “were generally supportive of proposed changes to building height provisions”.241 [190] Planning Scheme Amendment No. 20 amended s 8.2.8.3, which contains the Table of performance outcomes and acceptable outcomes for the Height of buildings and structures overlay code. The amendments deleted the exceptions to the height limitation made for identified types of development that had been included in the amendment introduced by Planning Scheme Amendment No. 13. It rationalised the number of height increments in the Height of buildings and structures overlay code and associated mapping. Development Watch Inc. submits that these further amendments reinforce the importance that the Council, reflecting the expectations of the local community, places on maintaining strict controls on the height of buildings and structures. [191] Development Watch Inc. submits that, informed only by these matters, the expectations of the community are that the height of buildings and structures on the subject land would comply with the general rule in the Planning Scheme, namely a height limit of 8.5 metres. [192] Development Watch Inc.’s submissions about the content of Planning Scheme Amendment No. 13, the Explanatory Memorandum for Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20 are accurate. However, care must be taken when determining the weight to place on the observation in the Explanatory Memorandum for Planning Scheme Amendment No. 13 referred to in paragraph [189] above. That comment should be viewed in its full context, which indicates that there were only 224 properly made submissions about the proposed amendments. Conclusion regarding expectations of the local community about the height of buildings and structures [193] Development Watch Inc. submits that the terms of the Planning Scheme, and the amendment to it effected by Planning Scheme Amendment No. 13, clearly demonstrate that the expectations of the local community, whether at the present time or at the time of the making of the development application by SH Coolum Pty Ltd, was that the height of buildings and structures proposed for the subject land would not exceed the general rule imposed by the Height of buildings and structures overlay code. Development Watch Inc. invites me to place greatest weight on this evidence. [194] Development Watch Inc. invites me to place little weight on the terms of the Hyatt preliminary approval. In support of this, it relies on: (a) evidence in the First Visual Amenity Joint Expert Report wherein Mr Arno King says that, in a report by a Council officer about the Hyatt preliminary 241 Exhibit A1 p 24. -- 64 of 269 -- 65 approval,242 the officer indicates that the upper building height of four storeys and 16 metres was set because of submissions made by the public; and (b) evidence in Ms Saxton’s statement, wherein Ms Saxton says that the community objected profusely to the Hyatt’s proposal for development with heights of six storeys and 21 metres by lodging 3800 objections to that proposal from Hyatt.243 [195] Development Watch Inc. submits that, even if the expectations of the community were informed by the terms of the Hyatt preliminary approval, what is proposed here far exceeds those expectations, especially in terms of the height, number and extent of the buildings. Development Watch Inc. says that conclusion is reinforced by the volume and content of the thousands of submissions from members of the local community and the unchallenged evidence of many of them. [196] I have difficulty accepting the submissions of Development Watch Inc. for two reasons. [197] First, despite having the submissions for months prior to the hearing, Development Watch Inc.’s written submissions provide no detailed analysis of them. Rather, Development Watch Inc. urges me to adopt the analysis of Mr Schomburgk in Attachment G to the Joint Experts Report - Town Planning.244 That is the approach that I took in the original reasons for judgment.245 At paragraph [46], Burns J criticised that approach.246 That Development Watch Inc. would again urge such an approach is disturbing given the findings made by Burns J and the fact that Development Watch Inc. is not simply a bystander on this issue – the appeal to the Court of Appeal was instituted by it. [198] Second, several of the submissions made by Development Watch Inc. are no more than bald assertions. I am not confident that the submissions are not mere puffery or liberal adoption of flourish by an advocate. One example that highlights my concern is the submission that the proposed development far exceeds the community expectation as informed by the Hyatt preliminary approval. Development Watch Inc. says this conclusion is “reinforced by the volume and content of the thousands of submissions from members of the local community and the unchallenged evidence of many of them” (my emphasis). That submission was maintained even though Mr Hack KC confirmed in oral submissions that he had not read the submissions.247 In addition, the submission that the evidence of thousands of submitters was unchallenged ignores that they were not called as witnesses and, as such, were not available to be challenged. 242 First Appellant’s Further Written Submissions p 13. 243 First Appellant’s Reply Submissions p 6 [20] and [21]; Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 19-20. 244 Exhibit 14. 245 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 295 [422]. 246 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46]. 247 Transcript of Proceedings, Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 29-30. -- 65 of 269 -- 66 [199] SH Coolum Pty Ltd submits that the Court should find that the expectations of the local community are mixed. The expectation of some members of the community is that the subject land would not be approved for development at a height greater than 8.5 metres or 2 storeys. The expectation of others is that the subject land would (or could) be developed to the greater heights of the Hyatt preliminary approval. The expectation of yet another group, which would include entities like SH Coolum Pty Ltd, is that development greater than the height of the Hyatt approval was possible.248 SH Coolum Pty Ltd submits that it is difficult to put proportions on each of these groups within the local community. It is prepared to accept, but does not concede, that the cautious approach is that the Court should proceed on the basis that the first group is the numerically prevailing group. [200] The Council likewise submits that the community’s expectations are mixed. It says that, for the purposes of determining the appeal on the remitter, the Court should approach the matter in the most conservative way. In this case, that means proceeding on the basis that an analysis of the submissions and the evidence given at the hearing by residents supports a finding that the expectation of the local community is that the height of buildings and structures on the subject land would be in the order of 8.5 metres. [201] The expectations of the local community about the height of buildings and structures to be erected on the subject land is a question of fact. It is a question that I am to answer now in these reasons for judgment. It is to be answered by reference to the evidence of community expectations presented during the original hearing and the additional evidence admitted by me in the exercise of my discretion at the remitted hearing. That evidence comes in various forms, each of which provides an indication of the expectations at the time that the evidence was captured. It is a matter for me, in the exercise of my discretion, to determine what evidence I accept as credible and reliable about the factual matter in issue, and what weight I give to the evidence when making the necessary factual findings. I can consider matters that inform the credibility and reliability of each piece of evidence, such as the representations that induced the making of the submission. I can also consider matters that inform the weight to be given to each piece of evidence, such as the time at which the evidence captured the views of the community. The extent to which considerations of that nature influence my findings about the credibility and reliability of evidence, and the weight to be given to it, is entirely a matter for me in the exercise of my discretion. [202] Before me, there is evidence that favours a restrictive view about community expectations as to height and evidence that supports a more expansive view. [203] The submissions from the local community in Exhibit A3 contain examples of the competing views. Having regard only to the evidence in the submissions from the local community, I am not able to readily determine a single measurable unit of height that could be said to represent the local community’s expectation about the height of buildings and structures on the subject land. As would be evident from my observations in paragraphs [132] to [142] above, those members of the local community who made submissions do not express a uniform expectation. Their views vary. For those submitters who explicitly stated their expectation with respect to height, the stated expectation varies between one storey and seven storeys. 248 See, for example, Exhibit A3 pp 3216, 16509 and 21037. -- 66 of 269 -- 67 [204] In addition, four matters suggest to me that I should treat the submissions with care when determining whether they are reliable evidence of the local community’s expectation and when determining the weight to be attributed to them in making the necessary factual finding on this issue. [205] First, many of the submissions from the local community do not contain an explicit statement about the submitter’s expectation. Often, where the submitter states that they expect that the height of the development would not conflict with the Planning Scheme, they do not identify the version of the planning scheme to which they refer, nor do they identify what height they believed the planning scheme would permit. The pro-forma component of some of the submissions record a view that the planning scheme contains a height limit of 8.5 metres or two storeys. The pro-forma component of others contains no such reference. [206] Second, for those submissions that contain a reference to a height limit in the planning scheme of 8.5 metres or two storeys in their pro-forma component, it is open for me to infer that the submitter expects buildings of that height. Such an inference assumes that the submitter carefully turned their mind to the pro-forma content before signing and lodging their submission. I am not prepared to draw such an inference in light of the extent of discord between handwritten comments on submissions and their pro- forma content. For example, some of the submissions from the local community that contain pro-forma content stating that the planning scheme contains an 8.5-metre or two-storey height limit nevertheless contain a handwritten comment that the limit is three or four storeys. [207] Third, a complicating feature of the opposition submissions is that they rely upon multiple grounds, usually in the pro-forma content of the submission. Some of the grounds relate to built form, such as impact on visual amenity, character and key views from vantage points. Others focussed only on the potential impacts on turtles and traffic. With multiple grounds of objection in a pro-forma submission, it is not possible to ascertain which grounds, if any, influenced the submitter to lodge the pro- forma submission. The potential discord between the content of pro-forma submissions and the views genuinely held by submitters was demonstrated by the evidence of several of the lay witnesses. As I noted above, several lay witnesses lodged submissions objecting to the proposed development that contained multiple grounds, yet it was apparent from their oral evidence that their opposition to the development was not influenced by all the grounds in the pro-forma content of their submissions. For example, Ms McGowan’s concern relates to her perception that the developer is foreign, and Ms Warneminde and Ms Holford ’s concerns relate to impacts on turtles. The submissions are not in the form of an affidavit. Almost none of the submitters were called as witnesses. As such, there was no opportunity to test the views of the vast majority of the submitters about their grounds for opposing the proposed development, the strength of their views, or the foundation for their expectations. -- 67 of 269 -- 68 [208] The significance of these matters is well-explained by Judge Mylne of the Local Government Court249 in Aldred v Beaudesert Shire Council250 wherein His Honour observed: “As a large number of the objections were on a standard form it is difficult to know whether such people have strong views about the development or have been persuaded or cajoled into signing the standard form of objection.” [209] Similar observations were made by Professor Fogg in his well-known textbook, Land Development Law in Queensland. Professor Fogg observed: “Not petitions or standard form letters. There is a tendency for energetic opponents of proposed development to canvas signatures to standard form letters of objection to petition-type objections. Although these tactics will add to the number of objectors, they may not do so in a persuasive way. … Petitions are even more suspect as engines of town planning persuasion. They tend to be signed by people from distant suburbs and with signatures which are frequently illegible and occasionally facetious.”251 [210] More recently, in McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd,252 His Honour Judge Rackemann observed: “The number of adverse submissions is not necessarily an accurate indicator of the views of the community as a whole. Experience shows that submissions are often, at least predominantly, from those opposed to a development application. That is unsurprising as the concerned are inherently more likely to be motivated to make a submission than the unconcerned. The availability of pro-formas might also facilitate submissions.”253 [211] The above observations of His Honour Judge Mylne, Professor Fogg and His Honour Judge Rackemann are apposite in this case. They support my view that the number of pro-forma submissions should not cloud the fact that they are largely silent as to expectations of height. [212] As I have observed in paragraph [140] above, the handwritten comments made by the local community on pro-forma submissions opposing the development indicate that the submitters are not necessarily opposed to all aspects of the proposed development. The strength of opposition by a concerning number of the submitters was seemingly founded on racist views about the identity of the developer.254 Others made statements that indicated their opposition was not strong for other reasons. For example, one submitter wrote on a pro-forma submission opposing the development, 249 The predecessor to the Planning and Environment Court. 250 (1978) 37 LGERA 404, 408. 251 Alan Fogg, Land Development Law in Queensland (The Law Book Company, 1987) 276 (footnote omitted). 252 [2022] QPEC 56. 253 McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, [175]. 254 See paragraph [128](b) and [151] to [153] above. -- 68 of 269 -- 69 “Take your shit elsewhere unless there is good bars goin in then bring it on”.255 Another wrote, “All 5 stages NOT ACCEPTABLE – STAGE 1 highly desirable”.256 [213] Fourth, the significance attributed to the number of submissions should be viewed in the context of the evidence of the economists about the population of the area. [214] The economists gave evidence about the population of the primary sector of their residential trade area. The extent of the primary sector is depicted on Figure 26 of the Second Economic Need Joint Report.257 It extends from Coolum through to Yaroomba. It includes Yaroomba, Mount Coolum, Point Arkwright, and Coolum Beach. It also includes a small area of Marcoola, proximate the coastline. In Table 20 of the Second Economic Need Joint Report, the economists set out details of the population of the area in 2011 and 2016, and population forecasts for 2019, 2021, 2026, 2031 and 2036. The population information was based on the 2011 and 2016 Census of Population and Housing undertaken by the Australian Bureau of Statistics. The forecasts were informed by that information together with the new dwelling approval statistics sourced from the Australian Bureau of Statistics, medium series population projections at the statistical area 2 level prepared by the Queensland Office of Economic and Statistical Research released in 2018, and investigations by the experts into new residential developments in the surrounding area.258 The recorded population for the primary sector in 2016 was 17,530 persons.259 The 2016 Census of Population and Housing shows that the population in the primary sector is characterised by a traditional family market, i.e., couples with dependent children. The average household size is 2.4. About 25 per cent of the population were under 19 years of age. The economists forecast a population of 18,640 for 2019, 19,440 for 2021 and 20,690 for 2026. [215] The extent of the primary sector is not completely coincident with the area within which the local community resides. The maps and aerial photographs before me indicate that the small area of Marcoola proximate the coastline that is included in the economists’ primary sector is a populated area.260 That said, the evidence of the economists provides a proximate indication of the population of the local community and the demographics of that population. In number, the submissions in opposition to the proposed development seemingly fall well short of a majority of the adult population in the local community.261 Even if most of the submitters from the local community who opposed the proposed development are taken to hold a strong expectation that buildings will be limited to a height of 8.5 metres or two storeys, that is still far short of evidence of a local community expectation that the height will be limited to 8.5 metres or two storeys. That said, the submissions from the local community might be regarded as evidence of a widely-held local community view that the height will be limited to 8.5 metres or two storeys. [216] With the above matters in mind, I am not prepared to place determinative weight on the submissions from the local community alone to make the necessary finding about 255 Exhibit A3 p 3175. 256 Exhibit A3 p 256. 257 Exhibit 6 p 91. 258 Exhibit 6 p 90. 259 Exhibit 6 p 92. 260 See, for example, Exhibit 2 pp 1 and 6. 261 An approximation of the adult population can be gleaned from consideration of the population together with the details of the demographics of the area. -- 69 of 269 -- 70 local community expectations. However, I do not consider that they should be completely disregarded. They are part of the overall body of evidence on which I rely to make my ultimate finding on this issue. [217] The evidence of the lay witnesses is of limited assistance. Most did not express an expectation. Those who did expressed differing views. [218] It is relevant to have regard to the existing context and the Hyatt preliminary approval when considering the expectations of the local community about the height of buildings that might occur on the subject land.262 My earlier findings with respect to the existing development in the area and the Hyatt preliminary approval were not criticised by the Court of Appeal and are unaffected by the errors of law found by the majority in the Court of Appeal. As such, it is convenient to repeat the relevant findings while noting that there is further detail that supports those findings in my original reasons for judgment.263 [219] Coolum is not a sleepy enclave of fibro beach shacks and smaller holiday flats serviced by a small number of strip shops. South of the subject land and the immediate surrounds has generally been developed for detached dwellings that are mostly two storeys in height. Further to the south are predominantly dwellings, as well as some dual occupancy buildings and multiple dwelling developments that are primarily two storeys in height. To the north are primarily dwellings on single allotments and a large amount of open space. However, the local plan area also includes development that is taller than 12 metres (or three storeys). There is a pocket of multiple dwellings known as “Breeze” south of the subject land that are three and four storeys in height. At Coolum Beach, there are accommodation buildings of between four and 13 storeys in height.264 [220] The subject land has the benefit of a current development approval, being the Hyatt preliminary approval. That approval anticipates development of the subject land for a mix of dwelling types, including multiple dwellings, detached houses and duplexes, and retail and commercial uses up to a maximum of 500 square metres.265 [221] The Hyatt preliminary approval includes development across several precincts. Precincts 1C, 3C, 3D, part of 3E, 3F and part of 3H (buffer precinct) most closely align with the subject land. The uses provided for within these precincts include: (a) non-residential uses such as restaurant, shop and outdoor recreation up to a maximum of 500 square metres; and (b) residential uses comprising a mix of dwelling types, including multiple dwellings, detached houses and duplexes.266 262 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 294 [411]. 263 See Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200. 264 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 256 [232]. 265 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 313 [517]. 266 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 313 [518]. -- 70 of 269 -- 71 [222] The form of development that could occur on the subject land is usefully depicted in Figure 1 of Exhibit 21. It is also graphically depicted on the last page of Exhibit 82, which indicates the likely extent of built form visible as an aerial oblique view from Mt Coolum. The extent of development facilitated by the Hyatt approval is significant.267 [223] The subject land is located within part of the “Beachside” precinct (Precinct 3) in the Hyatt preliminary approval. That precinct also includes land to the south of the subject land. The preliminary approval allows a maximum density of 450 dwellings across the precinct. The southern portion of the precinct, to the south of the subject land, has been developed predominately for detached houses of two storeys in height. That development is known as “Coolum Beachside” and “Belle Mare”. It provides approximately 110 dwellings. [224] The Hyatt preliminary approval also authorises units within sub-precinct 3F, which is located within the subject land. In that sub-precinct, the approval authorises 140 dwelling units and buildings up to 16 metres and four storeys in height.268 [225] For all the sub-precincts within Precinct 3, except for 3F, the Hyatt preliminary approval permits 20 per cent of dwellings to be multiple dwellings (i.e., units) in buildings of up to three storeys, and permits a further 20 per cent of dwellings to be dual occupancy, leaving the remainder of the sub-precincts (60 per cent) to be comprised of detached houses.269 [226] The development of Coolum Beachside with a predominance of detached houses of two storeys in height informs expectations about the likely development of the remainder of Precinct 3 under the Hyatt preliminary approval, given the approval contemplated up to 40 per cent of the development being other than detached houses.270 [227] Having regard to the Hyatt preliminary approval, the local community would expect that: (a) development of the subject land would include residential and non-residential uses; (b) the residential development would include accommodation other than detached dwellings, being dual occupancies and multiple dwellings; and (c) some of the residential development might be above 8.5 metres in height (despite the mapping on the Height of Buildings and Structures Overlay Map).271 267 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 313 [519]. 268 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 314 [520]. 269 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 314 [521]. 270 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 314 [522]. 271 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 314 [523]. -- 71 of 269 -- 72 [228] Even though my earlier findings with respect to the Hyatt preliminary approval were not criticised by the Court of Appeal and are unaffected by the errors of law found by the majority in the Court of Appeal, Development Watch Inc. invites me to place little weight on the terms of the Hyatt preliminary approval. It does so for the reasons referred to in paragraph [194] above, namely by reason of the evidence of Mr Arno King and Ms Saxton. [229] I have serious reservations about the evidence of Mr Arno King and Ms Saxton on which Development Watch Inc. relies. The Council officer’s report to which Mr King refers is not attached to the report in which he expresses his opinion, nor is it otherwise in evidence before me. Further, the objections to which Ms Saxton refers are documents that would be in the custody of the Council, not Ms Saxton. Those documents are not in evidence before me. The evidence of Mr King and Ms Saxton seems to be unsubstantiated hearsay. In response to my concern about its admissibility, Mr Hack KC submitted that: (a) hearsay evidence that is admitted without challenge can be relied on as evidence for all purposes, i.e., including as to the truth of its contents; (b) the only point of the hearsay rule is to provide parties with an opportunity to make objections; and (c) the rules of evidence are “quite different” in civil proceedings than in criminal proceedings.272 [230] Mr Hack KC provided no authority in support of his submissions. I have doubt about the propositions advanced by him. In any event, even though Mr Arno King and Ms Saxton were not challenged on the aspect of their evidence on which Development Watch Inc. now relies, I do not accept their evidence. This is because I have serious doubts about the reliability of their evidence, and reservations about Ms Saxton’s credibility. My assessment of the reliability of Mr King and Ms Saxton on those issues about which they were challenged causes me to doubt their reliability as witnesses generally, including in relation to this issue. My doubts and reservations are equally informed by the demeanour of those witnesses when they gave evidence. My concerns about Ms Saxton’s credibility and reliability are also informed by her evidence about her involvement in the preparation of a statement in which a photograph had been manipulated.273 [231] The Hyatt preliminary approval supports a finding that the local community would expect building heights on parts of the subject land of up to four storeys. The submissions from some residents of the local community demonstrate that a portion of the residents are not ignorant of the right to develop the land with buildings of up to four storeys in accordance with the Hyatt preliminary approval. This was acknowledged in the pro-forma content of a material number of the submissions received from the local community and in handwritten comments. This further supports a finding that the local community expects building heights on parts of the subject land in the order of four storeys. That is not the end of this matter though. 272 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 19-20. 273 See Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 27 November 2019), 28-9. -- 72 of 269 -- 73 Against that evidence, I must balance the evidence of the local community’s expectations that is found in Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20. [232] I accept Development Watch Inc.’s submission that the adopted amendments to the Height of buildings and structures overlay code in Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20 provide evidence of the expectations of the local community about the height of buildings and structures on the subject land. Because of those amendments, version 18 of the Planning Scheme, and even more recently version 24 of the Planning Scheme, contain an assessment benchmark that specifies, in mandatory terms, a maximum height limit of 8.5 metres on the subject land. [233] Two matters have a bearing on the weight to be attributed to these amendments to the Planning Scheme as evidence of local community expectations. [234] First, it provides the most contemporaneous evidence of community expectations. [235] Second, while the amendments appear to reflect the adoption of a more rigid approach to building heights, it should be borne in mind that they were adopted after a change to the legislative regime from the Sustainable Planning Act 2009 to the Planning Act 2016. As such, the amendments were adopted in a legislative context that: (a) mandates an assessment against the planning scheme in place at the time that the development application was made; (b) admits of more flexibility in deciding development applications in that refusal in not mandated when a development application conflicts with a planning scheme; (c) provides the decision maker with an unfettered discretion to give amendments to a planning scheme the weight that the decision maker considers appropriate; and (d) requires the assessment of a development application to be carried out having regard to existing development approvals such as the Hyatt preliminary approval. [236] With the matters referred to above in mind, I find that the local community expects that: (a) the height of the buildings and structures on the subject land will generally be two storeys; but (b) buildings of up to four storeys might be achieved on parts of the subject land provided those buildings: (i) do not introduce unacceptable town planning impacts, such as with respect to traffic and turtles; and (ii) reflect the low-key beachside character of the Coolum local plan area and maintain the Coolum local plan area as a low key coastal urban community. -- 73 of 269 -- 74 Are the expectations of the local community about the height of buildings and structures reasonable? [237] According to the majority of the Court of Appeal, once I have determined the expectations of the local community about the height of buildings and structures, I must then assess the reasonableness of those expectations in light of the planning provisions applying to the subject land.274 [238] In my original reasons for judgment, I refer to previous decisions of this Court with respect to the concept of reasonable expectations.275 The principles referred to were not challenged by any party, nor were they questioned by the Court of Appeal. Development Watch Inc. continues to accept them.276 They bear repeating now. [239] In Wattlevilla Pty Ltd v Western Downs Regional Council & Anor,277 His Honour Judge Robertson observed: “The standard of amenity that residents are entitled to enjoy or expect is to be assessed having regard to the Planning Scheme and its intent for development of the area.”278 [240] In Baptist Union of Queensland v Brisbane City Council & Anor,279 His Honour Judge Brabazon QC said: “It is natural enough that such residents would wish to maintain the existing, relatively undisturbed nature of the area. However, from a town planning point of view, their expectations must be reasonable in light of all the planning provisions applying to this land. When judged in that way, some concerns might not be maintainable. In principle, expectations should be based on a full and impartial understanding of all the aspects of the planning controls. … ”280 (emphasis added) [241] I respectfully adopt the observations of their Honours Judges Robertson and Brabazon QC. [242] Development Watch Inc. submits that the planning controls to be considered include the planning scheme and existing approvals but not the legislation that controls the planning regime.281 I do not accept this submission. Planning controls for development of land are not limited to planning schemes. Development of land can be controlled by a State planning policy, a regional plan, a planning scheme, a planning scheme policy and a temporary local planning instrument.282 In addition, 274 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [43]. 275 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 270-1 [296]-[299]. 276 First Appellant’s Reply Submissions pp 5-6 [19]. 277 [2014] QPEC 47; [2015] QPELR 21. 278 Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, 45 [96]. 279 [2003] QPELR 61. 280 Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, 80 [129]. 281 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 38-9. 282 Planning Act 2016 s 8. -- 74 of 269 -- 75 legislation and subordinate legislation can control development. For example, pursuant to s 43 of the Planning Act 2016, a regulation can contain assessment benchmarks. Examples can be found in schedules 9, 10, 11, and 12 of the Planning Regulation 2017, schedule 3 of the Coastal Protection and Management Regulation 2017, and schedule 2 of the Queensland Heritage Regulation 2015. Controls in the legislation and sub-ordinate legislation override a planning scheme to the extent of any inconsistency.283 [243] Development Watch Inc. submits that in assessing the reasonableness of expectations, regard should also be had to the evidence of Ms Saxton regarding the substantial community opposition to the Hyatt proposal, including her evidence that the Hyatt proposal for six storey development was met with 3,800 objections.284 I am not prepared to accept that evidence as credible and reliable for the reasons provided in paragraphs [229] to [230] above. [244] At the original hearing, Development Watch Inc. and Sunshine Coast Environment Council Inc. contended for non-compliance with 63 provisions of the Planning Scheme. Not all these provisions are relevant to the height issue the subject of this remitted hearing, but many of them are. Although some do not directly refer to height, they inform the expectation about the nature of development that might be achieved and the intensity of development. This, in turn, has a bearing on expectations about height. I have already decided issues of statutory construction and made findings of fact that were not the subject of any challenge in the Court of Appeal and that are unaffected by the Court of Appeal’s decision about those provisions that are relevant. Relevant findings can be found in paragraphs [36] to [39], [86] to [91], [109] to [137], [179] to [295], [304] to [306] of my original reasons for judgment.285 I do not intend to repeat them here. It is sufficient to observe that, with the benefit of a full and impartial understanding of all the aspects of the planning controls, it is reasonable for the local community to expect that: (a) the height of the buildings and structures on the subject land will generally be two storeys; and (b) buildings of up to four storeys might be achieved on parts of the subject land provided those buildings: (i) do not introduce unacceptable town planning impacts, such as with respect to traffic and turtles; and 283 See, for example, ss 8(5) and (6) of the Planning Act 2016, which provide that a planning scheme is of no effect if it includes a provision about building work to the extent that the building work is regulated under the building assessment provisions, unless allowed under the Building Act 1975 (Qld). The building assessment provisions include matters in chapter 3 of the Building Act 1975: Planning Act 2016 sch°2 definition of “building assessment provisions”; Building Act 1975 s 30. See, also, Planning Act 2016 ss 16 and 43. 284 First Appellant’s Reply Submissions p 6 [20]. 285 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 209-10 [36]-[39], 220-1 [86]-[91], 224-31 [109]-[137], 239-70 [179]-[295], and 272 [304]-[306]. See also my findings about provisions of more general relevance to expectations about the form of development: Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 213-9 [51]-[77], 221-2 [96]-[99], 222-4 [103]-[108], 234-9 [158]-[174], 272-6 [307]-[330], and 276-93 [332]-[404]. -- 75 of 269 -- 76 (ii) reflect the low key beachside character of the Coolum local plan area and maintain the Coolum local plan area as a low key coastal urban community. [245] In reaching that view, I have considered the provisions referred to in my original judgment and that: (a) the amendments to the Planning Scheme provide the most current indication of what is considered to constitute, in the public interest, the appropriate development of the land, i.e., relevantly here, development with a height limit of 8.5 metres; but also, (b) a full and impartial understanding of all the aspects of the planning controls requires consideration of not only the planning scheme: it requires a full and impartial understanding of the applicable planning legislation and how it regulates the use to be made of the assessment benchmarks within a planning scheme. Relevant aspects of the legislative context include that: (i) it is mandatory to undertake an assessment against the planning scheme in place at the time that the development application was made, i.e., version 8 in this case; (ii) although the amendments to the Planning Scheme reflected in versions 18 and 24 adopt a more rigid approach on the issue of building heights than version 8, at the time that those amendments were adopted, the legislative regime itself admitted of more flexibility than the legislative regime that applied when version 8 of the Planning Scheme was in effect;286 (iii) in assessing any development application for buildings on the subject land, there is an unfettered discretion to give amendments to a planning scheme the weight that the decision maker considers appropriate, but it is tolerably clear from the emphatic terms in which s 45(7) of the Planning Act 2016 is enacted that s 45(8) is not a vehicle for displacement or modification of the planning scheme in effect when the development application was properly made;287 and (iv) the assessment of any development application for buildings on the subject land is to be carried out having regard to the Hyatt preliminary approval, and that although the subject land is within the area subject to the 8.5 metre maximum height of buildings and structures on the Height of Building and Structures Overlay Map, a note on that map records that “In certain circumstances pre-existing development approvals may override the operation of an overlay”. 286 At the time when the Planning Scheme did not contain a mandatory height limit of 8.5 metres, the Sustainable Planning Act 2009 applied, and, as such, refusal was mandated in the event that the development application conflicted with the Planning Scheme. Planning Scheme Amendment No. 13 changed the Height of buildings and structures code by introducing a more rigid planning control, being a mandatory height limit of 8.5 metres. However, as is reflected in the stated purpose of the amendment (Exhibit A1 p 2 s 3), the amendment was made at a time when the legislative regime had changed to the more flexible regime in the Planning Act 2016, under which refusal was not mandated merely because there was conflict with an assessment benchmark in a planning scheme. 287 Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, 581 [6]; Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51]. -- 76 of 269 -- 77 [246] To put it another way: (a) having regard to Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20 and the fact that those amendments are not to be a vehicle for displacement or modification of version 8 of the Planning Scheme, it is reasonable for the local community to expect that the height of the buildings and structures on the subject land will generally be limited to two storeys; but (b) it is reasonable for the local community to expect that buildings of up to four storeys might be achieved on the subject land provided those buildings: (1) do not introduce unacceptable town planning impacts, such as with respect to traffic and turtles; and (2) reflect the low key beachside character of the Coolum local plan area and maintain the Coolum local plan area as a low key coastal urban community given: (i) version 8 of the Planning Scheme was adopted under the Sustainable Planning Act 2009, which mandated refusal of a development application that conflicted with a planning scheme; (ii) Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20 were adopted under the Planning Act 2016, which provides a more flexible approach to decision making than that under the Sustainable Planning Act 2009; (iii) under the Planning Act 2016 and the Planning and Environment Court Act 2016, in assessing the development application, I have an unfettered discretion to give Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20 the weight that I consider appropriate on the understanding that they are not a vehicle for displacement or modification of version 8 of the Planning Scheme; and (iv) under the Planning Act 2016, my assessment in this case is to be carried out having regard to the Hyatt preliminary approval. Is the proposed development consistent with the reasonable expectations? [247] I have identified the features of the proposed development at paragraphs [91] to [103] above. In broad terms: (a) the five-star resort complex and multiple dwellings in stage one includes a series of buildings between five and seven storeys in height; and (b) for stages two to five, the Yaroomba Beach Master Plan sets maximum building heights for future dwellings of: (i) four storeys for buildings located in an area towards the centre of the subject land; (ii) three storeys at the western edge of the subject land; and (iii) two storeys at the southern edge (adjacent to the existing residential development). [248] Given the inclusion of heights of up to seven storeys, the height of buildings in the proposed development is not consistent with the reasonable expectations of the local community. The quantitative parameters of the proposed development, in terms of -- 77 of 269 -- 78 building height, materially exceeds the reasonable expectations of the local community. Does the proposed development comply with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme? [249] For the reasons provided above, the proposed development does not comply with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. Are any of my unchallenged findings affected by the additional evidence or my changed findings? [250] As I have noted in paragraph [13] above, having regard to the public interest in the finality of litigation, there is no reason why, on remittal, undisturbed findings should be rewritten unless the errors of law found on appeal require it or other circumstances make it appropriate to do so. [251] My original reasons for judgment contain 555 paragraphs. As I have mentioned above, to correct the errors identified by the majority of the Court of Appeal, it is necessary to replace paragraphs [301] to [303] of my original reasons for judgment with the reasons provided in paragraphs [104] to [249] above. [252] As to the other 552 paragraphs of my original reasons for judgment, I have carefully considered the content of those reasons in light of the additional evidence, and all of my new and changed findings. Several paragraphs require amendment to ensure that the reasons are appropriately cross-referenced. The relevant changes to the cross- references are set out in Annexure C. [253] In addition, considering the arguments now made by Development Watch Inc., it seems appropriate that I say something further about paragraphs [216], [295], [409] to [412], [420] to [431], [524] and [552] to [555] of my original reasons of judgment. Does the additional evidence or changed findings alter my reasons for rejecting Mr Arno King’s evidence? [254] Paragraph [216] of my original reasons for judgment states: “First, Mr King says that the bulk and scale of the buildings contrasts with the predominantly one to two storey low-rise dwellings in the locality. Mr King appears to have assumed that the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality.288 288 I accept the Council’s submission that Mr King is seemingly unaware of the structure of overall outcomes, performance outcomes and acceptable outcomes. That is apparent from his evidence during cross-examination when he was unable to explain whether he has assumed that compliance with acceptable outcomes was mandatory, despite being provided multiple opportunities to do so. Nevertheless, it is clear from his report that he has assumed that the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality. Regardless of whether that assumption was based on his erroneous understanding about the operation of the Planning Scheme or instructions provided by others, the flawed assumption affects the reliability of the opinions he expressed. In forming his opinions, -- 78 of 269 -- 79 For the reasons already provided in paragraphs [184] to [201] above, I do not accept that overall outcome (2)(a) and performance outcome PO1 of the Coolum local plan code reflect an intention that development have a low-rise built form of no more than two storeys in the main.”289 (original footnote) [255] This paragraph relates to the proper construction of the overall outcome in s 7.2.8.3(3)(a) and performance outcome PO1 of the Coolum local plan code.290 Mr King’s assumption also does not find support in the Height of buildings and structures overlay code. That is evident from the observations of McMurdo JA about the proper construction of the Height of buildings and structures overlay code in paragraph [4] of the Court of Appeal’s first judgment, wherein His Honour stated: “Her Honour correctly held that under the Code, in its terms in the planning scheme against which the development was to be considered, there was no requirement that every building or other structure should be no higher than 8.5 metres.”291 [256] Even if I were to assume that, by operation of the Height of buildings and structures overlay code, the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality, I do not accept the evidence of Mr Arno King. As I noted in paragraph [225] of the original reasons for judgment,292 I do not accept the evidence of Mr Arno King for each of the other reasons articulated in paragraphs [215] and [217] to [224] of my original reasons for judgment. Does the additional evidence or changed findings alter my unchallenged finding of compliance with the overall outcome in s 8.2.8.2(2)(a) of Height of buildings and structures overlay code? [257] Paragraph [295] of my original reasons for judgment states: “I am satisfied that the proposed development complies with overall outcome (2)(a) of the Height of buildings and structures overlay code for the reasons provided in paragraphs [180] to [264] above.”293 [258] That paragraph forms part of my reasons where I address whether the proposed development complies with the Height of buildings and structures overlay code in version 8 of the Planning Scheme. Mr King also relied on what he accepted were misleading statements about the effect of other provisions of the Planning Scheme. 289 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 290 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 252. 291 Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6. 292 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 255. 293 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 270. -- 79 of 269 -- 80 [259] The issue of compliance with the overall outcome in s 8.2.8.2(2)(a) of Height of buildings and structures overlay code is raised as part of question 6 in the list of issues that Development Watch Inc. submits require determination. As I have noted in paragraph [26] above, Development Watch Inc. submits that the finding in paragraph [295] of my original reasons for judgment must be revisited to correct the errors identified by the majority of the Court of Appeal. It submits that the assessment of compliance with the Height of buildings and structures overlay code cannot be undertaken by a consideration of the overall outcomes in each of s 8.2.8.2(2)(a) and (b) in isolation. It says that each of those outcomes informs the content of the other. [260] As I have explained in paragraphs [27] and [28] above, Development Watch Inc.’s approach to the proper construction of the overall outcome is vexing. It appears to be advanced in wilful disregard of Development Watch Inc.’s own arguments in the Court of Appeal and the findings of the Court of Appeal. That said, for the sake of finality in litigation, I will address the substantive issue raised by Development Watch Inc., namely whether the proposed development complies with the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. [261] To avoid any injustice that might be caused by an attempt to summarise Development Watch Inc.’s submissions on the substantive issue, it seems appropriate that I quote the submissions. Development Watch Inc. submits: “Question 6 – does the subject development comply with Overall Outcomes 8.2.8.2(2)(a) & (b) of Version 8 of the Planning Scheme? 53. Plainly the proposed development does not meet paragraph (b) of the overall outcome in s.8.2.8.2(2) of the Planning Scheme. But if, as Development Watch submits, the reasonable expectations of the local community have been demonstrated to be that building heights would be generally limited to 8.5 metres, that conclusion not only informs the question of compliance with paragraph (b), but it also informs the question of compliance with paragraph (a). That is so because paragraph (a) incorporates the requirement of ‘retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs’. [Emphasis added] 54. The Overall outcome in s.7.2.8.3(2)(a) of the Coolum Local Plan Code was (and is) in these terms, The Coolum local plan area remains a low key coastal urban community, with a strong focus on tourism and well serviced by a range of small-medium scale business, community, sport and recreational activities. Just as the terms of the Coolum Local Plan Code, and especially the notion of ‘a low key coastal urban community’, inform the reasonable expectations of the local community, those expectations inform the content of that expression, and inform the content of the expression ‘the preferred built form character for … the local plan area in which it occurs’. -- 80 of 269 -- 81 55. The Court has already concluded that in this statutory context, the term ‘low key is a relative notion’. Development Watch agrees, with respect. 56. The assessment of compliance with the Height Code cannot be undertaken by a consideration of each of paragraph (a) and (b) in isolation, each of them informs the content of the other. And where, as here, the reasonable expectation of the local community is that building and structure heights in the area will not generally exceed 8.5 metres, a development predominantly comprising buildings of three-, four- five-, six- and seven- stories, with maximum heights in excess of 27 metres, is markedly inconsistent with those expectations. It is plain that what is proposed is at odds with the notion of ‘a low key coastal urban community’. 57. The proposed development, it is submitted, does not comply with either of paragraphs (a) or (b) of overall outcome of the Height Code at s.8.2.8.2(2). 58. Importantly, the non-compliance cannot be considered minor. On the contrary, it is major. [262] In its Reply submissions, Development Watch Inc. submits: “Question 6 – does the subject development comply with Overall Outcomes 8.2.8.2(2)(a) & (b) of Version 8 of the Planning Scheme? 30. Criticism is made of Development Watch to the effect that it seeks to ‘relitigate the undisturbed finding of fact’ in relation to paragraph (2) of s 8.2.8.2(2) of the Height Code. But what was said by Morrison and Bond JJA in Trinity Park Investments Pty Ltd v Fabcot Pty Ltd [2021] QCA 276 at [19] and [71] and extracted in Sekisui House’s submissions is not contrary to what Development Watch asks the Court to undertake here. Justice of Appeal Bond regarded it as ‘open to [the trial judge] to conclude that undisturbed findings of fact stood’, he did not hold that the trial judge was bound to do so. Development Watch relies, in particular, on the passage from the judgment of Morrison JA where his Honour referred to ‘any necessary new findings that might need to be made when considering that area the subject of the error’. 31. The approach that the Court ought take to the Height Code is one such area. 32. Importantly, so far as other parties allege that the rehearing to address the errors of law identified by the Court of Appeal does not involve reconsideration of character and preferred built from for the locality, Development Watch submits that the exercise of determining the planning intent for character and preferred built form necessarily involves consideration of all the provisions of the Planning Scheme that are relevant to the question of the intended form of development. That quite -- 81 of 269 -- 82 obviously involves consideration of building height under the Height Code. 33. Accordingly, given Overall Outcome 82.8.2(2)(b) of Version 8, now Overall Outcome 8.2.8.2(c) of Version 24, the Court is obliged to consider the expectations of the community, as derived from the Planning Scheme, in determining what is intended by the Planning Scheme for development in the locality, including the preferred built form of such development. 34. Unless it is suggested that height does not form part of such built form, it is hard to argue otherwise, when the Planning Scheme calls for consideration of that matter. 35. This is a three (3) storey to seven (7) storey development in an area that has no such height of development in the locality. Expectations about height (and, therefore, built form), specifically called up by the Planning Scheme, do apply in considering the preferred character for the locality under the planning scheme, as called up by the provisions of the planning scheme. 36. Such expectations about height (and, therefore, built form), specifically called up by the planning scheme, ought be given significant weight by this Court in the overall assessment of the proposal. 37. Plainly the proposed development does not meet paragraph (b) of the Overall Outcome in s.8.2.8.2(2) of the Planning Scheme. But if, as Development Watch submits, the reasonable expectations of the local community have been demonstrated to be that building heights would be generally limited to 8.5 metres, that conclusion not only informs the question of compliance with paragraph (b), but it also informs the question of compliance with paragraph (a). That is so because paragraph (a) incorporates the requirement of ‘retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs’. [Emphasis added]. 38. Furthermore, lest there be any doubt, consideration of the question of character and preferred built form are affected by Council’s adoption, in the strictest terms, of a mandated limit on building height of just 8.5m. That mandated height applies across almost all the Coolum Local Plan area and confirms the intent for the low-key character of the area and the preferred built form in the area. To consider the effect of Amendment 13 in this way does not involve assessing the proposal against a later benchmark, rather it involves the Court’s fact-finding task and informs the content of the preferred built form character in the local plan area. -- 82 of 269 -- 83 Development Watch invites the Court to re-consider the paragraph (a) issue in light of the findings made by the Court regarding compliance with paragraph (b).” (emphasis added) [263] I do not accept the assertion by Development Watch Inc. that there is no development in the locality that is of a height such as that proposed by SH Coolum Pty Ltd. That assertion is inconsistent with the findings at [232] of my original reasons for judgment.294 [264] In any event, the focus of the outcome is “the preferred built form character for the Sunshine Coast, and the local plan area”, and whether the proposed development contributes to its retention. [265] The question that Development Watch Inc. invites me to consider is whether the evidence of the reasonable expectations of the local community with respect to the height of buildings, and the inconsistency of the proposed development with those expectations, affects the findings in my original reasons for judgment that the proposed development complies with the overall outcome in s 8.2.8.2(2)(a). (There was no allegation of conflict with the overall outcome in s 8.2.8.2(2)(c) and, as such, it was unnecessary to consider that assessment benchmark in my original reasons for judgment). [266] Even though Development Watch Inc. invites me to undertake this task, it has not provided any meaningful assistance. It does not identify aspects of my reasoning that are infected by, or inconsistent with, the submissions, the amendments to the Planning Scheme, or the expectations of the local community about height. Rather, the approach urged by Development Watch Inc., particularly in oral submissions, heavily relies on the number of submissions expressing views that differ to my findings of fact. That begs the question: should the adverse submitters’ views, and the local community’s expectations found from other evidence, be accorded so much recognition that the other evidence that I accept, including the opinion evidence of experts, should be denied effect? [267] Insofar as that question calls for consideration of the impact of the submissions, I respectfully adopt the observations of His Honour Judge Robin QC in Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors, wherein his Honour observed: “… The situation must be that weight of numbers, while not ignored, cannot prevail. The point of submissions is to raise issues for the assessment manager, now the Court, to consider on their merits. That large numbers of submitters speak up for the same point will be taken as an indication that the point ought to be considered seriously (s.1.2.3(1) of IPA, specifically para.(f), calls on the Court to respect “community involvement in decision making”; numbers can be an indication of the extent and intensity of community views about particular relevant issues). In the end, however, a point pressed by many may not be as telling as another issue raised by a single 294 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 256 [232]. -- 83 of 269 -- 84 submitter. As it was put in Main Beach Progress Association Incorporated v. Gold Coast City Council [2008] QPEC 037 ([2010] QPELR 675) at [14], “what is more important than numbers alone is the validity of the contents of the objections.” There, as here, the more relevant aspects of the submissions are reflected in the issues in the appeal.”295 (emphasis added) [268] With that in mind, I turn to consider whether the substance of the concerns expressed by the submitters, the amendments to the Planning Scheme, and the expectations of the local community about height cause me to change my findings about the proposed development’s impact on the preferred built form character for the Sunshine Coast and the Coolum local plan area and amenity. [269] The overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme states: “(a) development contributes to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs”. [270] The height of buildings and structures may inform whether development contributes to the retention of the preferred built form character of an area. The extent to which it does is a question of fact and degree. The height of buildings and structures may also contribute to, and inform, the character and amenity of an area and may inform whether a place would be regarded as having a predominantly low to medium-rise built form. [271] Depending on the circumstances, the correlation between the height of buildings and their contribution to, or impact on, the character and amenity of an area may also be influenced by other factors. Those other factors might include the characteristics of the land, the existing development in the area, the design parameters of the development, the interplay between the design and the site characteristics and the attributes of the local area, and the planning and visual impacts of the development viewed in its local context. [272] The Planning Scheme recognises that these other factual considerations can inform whether a development protects the distinctive character and amenity of the Sunshine Coast. This recognition is evident in the explanation about how the purpose of the Height of buildings and structures overlay code is to be achieved. As is recorded in s 8.2.8.2(2) of the Height of buildings and structures overlay code, the purpose of the code is to be achieved through three overall outcomes, not just the overall outcome 295 Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 763 [34]. Although His Honour’s observations related to submissions made under the Integrated Planning Act 1997 (Qld) and their relevance to an assessment under that legislation, that planning legislation also required an impact assessment to be carried out having regard to the common material including submissions made during public notification: see Integrated Planning Act 1997 s 3.5.5(2)(a) and sch 10. -- 84 of 269 -- 85 about building heights in s 8.2.8.2(2)(b). The overall outcomes specified to achieve the purpose are: “(a) development contributes to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs; (b) the height of buildings and structures is consistent with the reasonable expectations of the local community; and (c) development does not result in a significant loss of amenity for surrounding development, having regard to:- (i) the extent and duration of any overshadowing; (ii) privacy and overlooking impacts; (iii) impacts upon views; (iv) building character and appearance; and (v) building massing and scale relative to its surrounds.” [273] I have carefully considered the additional evidence admitted during the remitted hearing and my new and changed findings. With those matters in mind, I have reviewed the evidence on which I relied for the findings in my original reasons for judgment. [274] I am satisfied with the substance of my finding that there is compliance with the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code, and with the evidence and findings relied on to support that finding. At first blush, this might seem surprising given I have changed my findings about compliance with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code. Two observations are pertinent in that regard. [275] First, compliance with the overall outcome in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code is not determined by reference to empirical measures of building height only, nor the local community’s expectations about empirical standards that should be met. The overall outcome contains a qualitative criterion against which the proposed development is to be assessed. The assessment calls for a value-laden judgment. [276] Second, in undertaking my assessment against s 8.2.8.2(2)(a) in my original reasons for judgment, I took into account that: (a) performance outcome PO1 of the Height of buildings and structures overlay code requires that the height of buildings and structures on the subject land not exceed 8.5 metres in height; (b) the proposed development included buildings with heights of up to seven storeys; and (c) the proposed development does not comply with the preferred height specified in performance outcome PO1 of the Height of buildings and structures overlay code: it materially exceeds that preferred empirical height standard. -- 85 of 269 -- 86 [277] Although the substance of my reasons does not change, to correct cross-references, paragraph [295] of my original reasons for judgment should now read: “I am satisfied that the proposed development complies with overall outcome (2)(a) of the Height of buildings and structures overlay code for the reasons provided in paragraphs [180] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [257] to [276], [278] to [322] and [413] to [415] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) Does the additional evidence or changed findings alter my findings about whether the scale, bulk and nature of the proposed development exceeds reasonable community expectations? [278] As I noted in paragraph [405] of my original reasons for judgment,296 the Appellants raise several relevant matters that they say support their position that the development application should be refused. They called for consideration of whether the scale, bulk and nature of the proposed development exceeds reasonable community expectations. I addressed that issue in paragraphs [409] to [412] of my original reasons for judgment.297 [279] Paragraph [412] of my original reasons for judgment states: “I do not accept the submission of the Appellants that the lay witness statements tendered by the First Appellant make it clear that the proposed development is inconsistent with the reasonable expectations of the community for the reasons provided in paragraphs [297] to [303] above and otherwise because of my findings that the proposed development complies with the assessment benchmarks.”298 [280] At the time I made that finding, I did not have the benefit of the extent of evidence about community expectations that has now been put before me. It is the evidence identified in paragraphs [106] and [107] above. In addition, at the remitted hearing, Development Watch Inc.’s submissions about reasonable community expectations no longer focussed heavily on the evidence in the lay witness statements tendered by it. In those circumstances, I consider it appropriate to review my finding. [281] At the remitted hearing, Development Watch Inc. did not provide any further submissions addressing this issue. At the original hearing, it submitted: “292. Development Watch submits that the proposed development exceeds the reasonable community expectations due to its scale, bulk and nature.299 296 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 293. 297 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 294. 298 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 294. 299 Exhibit 80 para 11. -- 86 of 269 -- 87 293. The reasonable expectations of the community regarding amenity ‘should be informed by an objective reading of the applicable town planning controls’.300 294. The concept of amenity in a town planning context is summarised in Acland Pastoral Company Pty Ltd v. Rosalie Shire Council [2008] QPELR 342 at [40], where Dodds DCJ observed (emphasis added): “Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landowners in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered ‘according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not affected by some special sensitivity or eccentricity. The weight to be accorded to objective views can only be judged in the light of all the evidence about the subject. The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corp Limited v. Pine Rivers Shire Council [2001] QPELR 350.’” 295. The relevant planning controls in this Appeal are those contained within the Planning Scheme. However, due to the existence of an existing preliminary approval which has the effect of overriding the Planning Scheme on the subject site, regard should also be had to the Hyatt Preliminary Approval and the planning controls contained within the master plan document.301 296. A landowner or member of the community must ‘reasonably expect’ that a parcel of land will be developed in accordance with the applicable planning controls. 297. In addition to the submissions analysed above, the lay witness statements on behalf of Development Watch make it clear that 300 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [153]; see also Quinn v. Beaudesert Shire Council [2005] QPELR 36 at [20]; Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47 at [96] 301 Exhibit 27b from page 159; see also exhibit 14 at paragraph 281 -- 87 of 269 -- 88 the proposed development is inconsistent with the reasonable expectations of the community. 298. In addition to the concerns expressed in the numerous submissions in opposition to the development there is concern expressed in the lay witness statements for Development Watch in relation to the building height.302 299. The issue relating to height is addressed above. 300. The proposed development includes buildings ranging from 2 to 7 storeys in height.303 301. Under the Planning Scheme the land is subject to the Height of Building and Structures Overlay Code where the maximum height of buildings and structures is mapped as 8.5m.304 302. The Height of Buildings and Structures Overlay Code overall outcome (b) requires (emphasis added):305 “(b) the height of buildings and structures is consistent with the reasonable expectations of the local community; and…” 303. With respect to the issue of height there is a clear intention expressed in the provision above that the height of buildings do not exceed the reasonable expectations of the community. 304. It is accepted that an 8.5m limit on height may not be a realistic expectation in light of the existence of the Hyatt Preliminary approval. The Hyatt Preliminary Approval is described in more detail above. The allowable heights ranged from 2 to 3 storeys with a maximum building height of four storeys or 16m within sub precinct 3F.306 305. From considering both the planning controls within the Planning Scheme and the Hyatt Preliminary Approval it would be reasonable for a member of the community to expect that the building height would not exceed four storeys or 16m on the land. This view is supported by Mr Adamson at paragraph 283 of the Town Planning JER where he concludes that it is not reasonably expected that the subject land would be developed for a substantial resort complex that is 5, 6 & 7 storeys in height. 306. Mr Schomburgk at paragraph 267 of the town planning JER expresses the opinion that the expectations of the community ought to be tempered with regarding to existing development in the locality including higher-rise buildings in Coolum and at Mudjimba/Marcoola to the south. In relation to the higher 302 Exhibit 37 pargraph 6 3rd sentence; Exhibit 37g para 6 303 Exhibit 14 para 155 304 Exhibit 25c page A-509 305 Exhibit 25b page A-289 306 Exhibit 27a page 123 showing the precinct layout; see also Exhibit 27b on page 185 where the building height controls for the Beachside precinct and further on page 186 for the intended density -- 88 of 269 -- 89 buildings to the south in Coolum the buildings in those locations are subject to different zoning under the Planning Scheme and height restrictions under the Height of Buildings and Structures Overlay Code.307 In relation to the higher buildings located in Mudjimba/Marcoola to the south that area of the Sunshine Coast is outside of the Coolum Local plan area and is subject to a different planning intent.308 The Coolum Local Plan Code in the context and setting expresses the local plan area as being “characterised by predominantly dwelling houses with some multi unit development and tourist accommodation mainly in the beachfront areas of Coolum Beach and to a lesser extent, Point Arkwright and Mount Coolum (the Boardwalk)”.309 Mr Schomburgk’s comments regarding the expectations of the community being tempered by taller buildings being in existence to the north and to the south of the site is irrelevant when there is a clear intention in the planning scheme for those buildings to be located in those areas. 307. Mr Schomburgk raises the question as to whether the expectations of the community are ‘reasonable’.310 It is Development Watch’s submission that it is unlikely that 9,288 people who lodged submissions in opposition to the development311 had unreasonable expectations regarding how the land ought to be developed. 308. It is submitted that the proposed development exceeds the reasonable expectations of the community with respect to bulk and density for the reasons considered in more detail above.312 309. For the reasons set out above with regard to compliance with the planning scheme, it is submitted that the proposed development does not comply with the relevant controls in the planning scheme and is in substantial excess in the form of development that was proposed on the land under the Hyatt Preliminary Approval313 and is therefore inconsistent with the reasonable expectations of the community.”314 (original footnotes and emphasis) [282] From the submissions above, it seems reasonable to infer that Development Watch Inc.’s allegations about “scale, bulk and nature” relate to issues of height and density. [283] I agree with the submissions advanced by Development Watch Inc. in paragraphs 293 to 296, 298, and 300 to 305 (extracted above). 307 See for example Exhibit 25e 308 Exhibit 25c page 499 309 Exhibit 25b page 242 310 Exhibit 14 paragraph 268 311 Exhibit 14 paragraph 31 312 See also Exhibit 13 paragraph 283 313 Exhibit 21 Table 1 particularly the last two rows 314 First Appellant’s Further Amended Submissions dated 9 December 2019 pp 81-4. -- 89 of 269 -- 90 [284] In general terms, I accept the submissions of Development Watch Inc. in paragraph 306 of the First Appellant’s Further Amended Submissions, although I do not regard the existence of the taller buildings to be irrelevant. When ascertaining reasonable community expectations, the relevance of such matters is long recognised by this Court. It is well-established that regard must be had to the physical environment of the locality, including all existing development. To disregard existing development would attribute a character to the area that it simply does not have.315 That said, the relevance of the taller buildings to expectations is to be considered in light of the height mapping in the Planning Scheme for the land on which they appear and the extent to which they are consistent with such mapping. [285] With respect to the submissions advanced by Development Watch Inc. in paragraph 307 of the First Appellant’s Further Amended Submissions, I assume that the reference to “unreasonable” should be a reference to “reasonable”. Having regard to paragraphs [104] to [249] above, given the height of a development can inform its bulk and its density, I accept that the proposed development exceeds the reasonable expectations of the community with respect to bulk and density and does not comply with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code. These are matters that weigh against approval of the proposed development. [286] The reasons provided above should be read as replacing paragraph [412] of my original reasons for judgment. Does the additional evidence or changed findings alter my findings about whether the extent of community opposition, and the substance of it, support refusal of the proposed development? [287] Another relevant matter raised by the Appellants at the original hearing required me to consider whether the extent of community opposition, and the substance of it, support refusal of the proposed development. I addressed that issue in paragraphs [420] to [431] of my original reasons for judgment.316 I also make related findings in paragraph [524] of my original reasons for judgment.317 [288] I have extracted the submissions that Development Watch Inc. advanced on this issue at the original hearing in paragraph [281] above. Its submissions only related to the scale, bulk and nature of the proposed development. I have addressed those submissions at paragraphs [282] to [286] above. [289] At the remitted hearing, Development Watch Inc. sought to further agitate this issue beyond considerations about the scale, bulk and nature of the proposed development. This is evident from the framing of questions 7, 8 and 9 in its list of issues (extracted 315 Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, 414 [54]–[56]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49]. 316 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 295-6. 317 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 314. -- 90 of 269 -- 91 at paragraph [10] above), and from the following submissions made by Development Watch Inc.: “Error of law 2 – [2022] QCA 6 at [46] & [47] Question 7 – what do the public submissions convey to the Court? 59. It is trite that properly made submissions about the proposed development form part of the ‘common material’318 and that the assessment process must be carried out having regard to them319. This aspect of the matter was dealt with by Burns J in the CA Reasons in these terms: [46] … although her Honour acknowledged the strength of opposition to the proposal in a general way, no detailed analysis of the content of the submissions appears to have taken place. Indeed, the view seemed to be taken that any submission expressing opposition because of concerns about the height of the development was ‘out of step with the planning scheme when read as a whole’ and was, for this reason, to be disregarded. This is of course the complaint made in support of the first proposed ground of appeal. [47] The problem with such a broad-brush approach is two-fold because it overlooks the need to first determine what the expectations of the local community were concerning the height of any development and gives primacy to the planning scheme to such a degree that it set to nought the evidence sourced from the local community. The court was required to take that evidence into account as part of the common material but that did not occur because any opposition to the proposed development was seen to be trumped by the planning scheme. This was another error of law. 60. The first point to be made is that his Honour cannot be taken to be limiting his observations to the content of submissions regarding height. That emerges plainly from his Honour’s language in paragraph [46] of the CA Reasons where, after noting that the submissions made, and the evidence given at the hearing, could be regarded as the most direct expression of the expectation in s.8.2.8.2(2)(b), his Honour continued: In any event, properly made submissions about the development formed part of the common material …” 318 Planning Regulation, reg 31(1)(g) and Sch 24. 319 Planning Act 2016 (Qld), s 45(8) -- 91 of 269 -- 92 [290] SH Coolum Pty Ltd submits that questions 7, 8 and 9 raise issues beyond the scope of the remitted hearing, namely: “the views of the community regarding the character and amenity of the locality, the merits of the proposed development (as to its proposed scale, … its visual impacts, its effects on character and amenity, its effects on marine life, and its effects on traffic), and any need for the proposed development)”. [291] For the reasons provided in paragraphs [29] to [38] above, I do not accept: (a) the submission advanced by Development Watch Inc. in paragraph 60 of the First Appellant’s Further Written Submissions (extracted at paragraph [289] above); nor (b) that I must re-write the findings in paragraphs [420] to [431] of my original reasons for judgment to correct an error of law identified by the majority of the Court of Appeal. [292] However, that is not the end of the matter. I must consider whether the circumstances make it appropriate to do so.320 [293] I accept Development Watch Inc.’s submission that it is trite that properly made submissions about the proposed development form part of the common material and that the assessment of the proposed development must be carried out having regard to them. It has been the position under the planning legislation for some decades now.321 That is a matter that appeared to me to be well-understood by all parties at the original hearing. My understanding in that regard was informed by the absence of dispute about the relevance of the community’s submissions to the assessment process coupled with the Appellants’ reliance on those submissions as supportive of refusal at the original hearing.322 [294] As I have noted at paragraph [287] above, at the original hearing the Appellants advanced arguments about why the community’s adverse submissions support refusal of the development application. Those arguments were addressed by me in paragraphs [420] to [431] and [524] of my original reasons for judgment.323 In addressing the issues raised about the submissions, I had regard to the properly made submissions to the extent that they were in evidence before me. It was not possible to have regard to all the properly made submissions as they were not in evidence before me. 320 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, 22 [87]-[88]. 321 Integrated Planning Act 1997 (Qld) s 3.5.5(2)(a) and sch 10 definition of common material; Sustainable Planning Act 2009 s 314(3)(a) and sch 3 definition of common material. 322 I did not explicitly refer to the obligation in my original reasons for judgment. Of course, as was explained by the Queensland Court of Appeal in King & Ors v Australian Securities and Investments Commission [2018] QCA 352 at [40]: “It is not incumbent upon a judge to deal with every argument and issue that might arise in the course of a case, but where an argument is substantial or an issue is significant, reasons for the rejection of the argument or the resolution of the issue should be given.” 323 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 295-6. -- 92 of 269 -- 93 [295] At the original hearing, it was open for Development Watch Inc. to advance other arguments about why the properly made submissions support refusal, such as those now sought to be agitated in its submissions with respect to questions 7, 8 and 9. It elected not to do so. Its election in that regard, and the public interest in finality of litigation, suggests it is not appropriate to now re-write or supplement the undisturbed findings about whether the extent of community opposition, and the substance of it, support refusal of the proposed development. However, against that I must balance the fact that at the original hearing only a very small number of the submissions were in evidence before me whereas I now have them all. [296] The content of the additional submissions now before me does not explain why Development Watch Inc. advances arguments about the submissions that it could have, but did not, advance at the original hearing. To the contrary, Development Watch Inc. urges me to address its new arguments only by reference to the evidence about the submissions that was available at the original hearing. [297] On balance, given the extent of public interest in the proposed development, and the emphasis now placed on the submissions from the community, I consider it appropriate that I consider all the submissions and address the arguments now raised with respect to their relevance to the ultimate decision. In those circumstances, I do not maintain the conclusions that I express: (a) in paragraph [431] of my original reasons for judgment; and (b) in the third and fifth sentences of paragraph [524] of my original reasons for judgment. [298] In the First Appellant’s Further Written Submissions, Development Watch Inc. submits: “61. What emerges from the passages at [46] and [47] of the CA Reasons is that the expressions of the views of the community warrant consideration and some weight, even where it might otherwise be found that the proposed development accords with the requirements of the Planning Scheme. Were that not the case, there would be no purpose in obliging the assessment manager to have regard to the submissions. The attitudes of the local community are articulated both by the volume and by the content of the submissions. 62. As appears from the analysis by Mr. Schomburgk324, while the height of the proposed development was a recurring theme of the opposing submissions, it was not the only concern of the local community. He noted the ‘key matters’ in these terms, The key grounds raised in these submissions were similar and related to the following key matters – ▪ proposed height and density of the development conflicts with the Sunshine Coast Planning Scheme 2014; 324 Exhibit 14, pages 197-198. -- 93 of 269 -- 94 ▪ conflict with the strategic framework, specifically the character outcomes; ▪ inconsistent with the character of Yaroomba; ▪ inconsistent with the character of Yaroomba and inconsistent with the Coolum Local Plan and the Strategic Framework; ▪ the proposal will significantly impact on the scenic amenity of the area; ▪ proposal is not tourist focused – the hotel is only a minor component of what is otherwise a high- rise development; ▪ there is no need for the development; ▪ the proposal will have a detrimental impact on the endangered turtle population; ▪ traffic impacts and insufficient parking to cater for the proposed development; ▪ the proposal will set a precedent for other similar development; ▪ insufficient grounds to support the proposal. 63. By way of example, many thousands of submitters regarded the proposed development as ‘inconsistent with the character of Yaroomba’ (Type 1 submissions) or ‘out of character with the Yaroomba area’ (Type 4 submissions) or 325‘inconsistent with the character of Yaroomba and inconsistent with the Coolum Local Plan’ (Type 6, Type 12 and Type 16 submissions) or ‘inconsistent with the low-key character of Yaroomba and Coolum’ (Type 7 submissions) or ‘inconsistent with the character of Yaroomba and the Coolum Local Plan area’ (Type 8, Type 9 and Type 10 submissions). 64. That same theme of ‘inconsistency’ and ‘out of character’ is repeated in the individual submissions reproduced in Exhibit 41: see, for example, pages 1 & 2 (Angela Hatfield), page 7 (Edwin Hammett), page 12 (Estelle Blair), page 22 (Friends of Yaroomba), page 53 (Julie Failor), page 61 (OSCAR), page 67 (Peter Callanan) and pages 69 & 70 (Trevor Lloyd). Those individual submissions warrant close examination. 65. Similarly, a common theme of the submissions was that the proposed development was in conflict with the strategic framework, especially the character outcomes: see Exhibit 41, page 12 Estelle Blair), pages 21, 22 & 23 (Friends of Yaroomba), page 39 (Joan Bluett), page 58 (Luke Kaploon), 325 Exhibit 14, pages 197-198. -- 94 of 269 -- 95 pages 61-62 (OSCAR), page 68 (Peter Callanan) and page 69 (Trevor Lloyd). 66. What emerges from the submissions is that the community reasonably regards the proposed development as being at odds with the Planning Scheme’s Strategic Framework; as far exceeding the permissible height on the subject land; as being out of character with the Yaroomba area in particular and at odds with the provisions of the Coolum local area plan in general, and, in that regard, as proposing a scale of development at odds with the language of the Coolum local area plan; as likely to have adverse effects on the turtle population; and as likely to have adverse effects on local traffic. Question 8 – what weight should be given to the community views? 67. The number and content of the submissions go to the weight that should be afforded to those submissions by the Court in the overall assessment of the proposed development. 68. Here, there are 9,288 submissions opposing the development. 3,167 of the opposing submissions came from residents in the immediate vicinity: Mt Coolum, Yaroomba and Coolum Beach. Those supporting the development (443 in Mt Coolum, Yaroomba and Coolum Beach) do so for essentially economic reasons:- on Mr. Schomburgk’s analysis, none seem to suggest that the proposed development will improve their amenity or make their lives more pleasant. 69. Again, Development Watch submits that the views and expectations of the community ought not be discounted or ignored merely because some of the views and expectations of the community differ from the finding of the Court, or because the submissions rely on matters that are not raised as issues in this case by either of the Appellants, or because particular matters included in a submission are found to be unreasonable. The Court ought to give weight to the views and expectation expressed in the submissions unless they are found to be unreasonable. 70. In this case, the number and content of the submissions provides a substantial reason to refuse the development application, even if it otherwise accords with the Planning Scheme. Here, of course, consistent with the submissions of Development Watch about the weight and significance of the public submissions, there is also substantial non-compliance with both: (a) the reasonable expectations of the community (confirmed by the public submissions) in respect of the built form of the proposed development (in terms of building height) and inconsistency with contribution to the retention of built form character in Version 8 of the Height Code of the Planning Scheme; and -- 95 of 269 -- 96 (b) the need for development to contribute to the retention of preferred built form character and maintenance of absolute, mandated height limited for development in this area. Question 9 – does the extent and content of opposition militate against approval? 71. The number and content of the opposing submissions warrant very great weight in the overall process of assessment, a weight that tells significantly against approval of the proposed development.” (original footnotes) [299] In the First Appellant’s Reply Submissions, Development Watch Inc. submits: “Error of law 2 – [2022] QCA 6 at [46] & [47] Question 7 – what do the public submissions convey to the Court? 39. The approach of Council326 and Sekisui House327 seems to be that the Court is unconcerned about anything in the submissions that does not concern height. Were the Court to accept that limitation it would lead to the Court having no regard to a considerable content of the public submissions, matters that the Court is obliged to consider. In this regard, the parties agreed to provide the Court with samples of those submissions and agreed analysis of the submissions328, to allow consideration of the nature, subject matter and extent of the submissions. 40. Moreover, Council’s submissions elide the quite separate issue of reasonable expectations of the local community regarding height and what the Court might take from submissions made during the public notification phase. Those are separate considerations and require separate consideration. Question 8 – what weight should be given to the community views? 41. To be clear, Development Watch is not seeking to change the issue as set out in its List of Issues. The abbreviated issue in the topic heading was for convenience only. Question 9 – does the extent and content of opposition militate against approval? 42. The number and content of the opposing submissions warrant very great weight in the overall process of assessment, a weight that tells significantly against approval of the proposed development.” (original footnotes) 326 Council’s submissions, paragraph [114]. 327 Sekisui House submissions, paragraph [108]. 328 Exhibit 39. -- 96 of 269 -- 97 [300] In oral submissions, Development Watch Inc. submitted that the issues it raises would be addressed appropriately if my analysis of submissions contained that level of detail in paragraphs 62 to 65 of the First Appellant’s Further Written Submissions.329 [301] Development Watch Inc. submits that I should give considerable weight to the community concerns about: (a) the character and amenity of the locality; (b) the merits of the proposed development, in terms of its proposed scale, its visual impacts, its effects on character and amenity, its effects on marine life, and its effects on traffic; and (c) the lack of need for the proposed development. [302] Development Watch Inc. urges me to give the community concerns considerable, and even determinative, weight in the face of my undisturbed findings that the impacts about which the community are concerned will not manifest. It submits that I should do so for three reasons. First, many thousands of members of the local community hold the concerns. Second, there is evidence presented during the hearing that supports a finding that the concerns were well-founded. Third, although I have preferred other evidence to reach the conclusion that the relevant impacts will not manifest, the statute obliges me to have regard to the views of the community.330 [303] With respect to paragraph 61 of the First Appellant’s Further Written Submissions (extracted at paragraph [298] above), Development Watch Inc. does not cite any authority in support of its submission that if weight is not afforded to the public submissions, there would be no purpose in obliging the assessment manager to have regard to them.331 This submission overlooks three matters. [304] First, the legislation obliges me to assess the development application having regard to the common material. It does not require me to afford the public submissions significant or determinative weight. A decision about the weight to be given to the submissions is a matter for me in the exercise of my discretion. Although it is a matter for me, I accept the submissions of Development Watch Inc. that previous planning decisions provide useful examples of the way I may have regard to submissions. In that respect, Development Watch Inc. referred to the decisions of Broad v Brisbane City Council & Anor332 and Jeteld Pty Ltd v Council of the City of Toowoomba & Anor.333 329 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 59-70. The analysis of Mr Schomburgk in exhibit 14 at pages 197 to 198 to which Mr Hack KC referred is referenced by Development Watch Inc. in paragraph 62 of the First Appellant’s Further Written Submissions. 330 Transcript of Proceedings Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor (Planning and Environment Court of Queensland, D166 of 2018, Kefford DCJ, 1 August 2022), 70-2. 331 See paragraph 61 of the First Appellant’s Further Written Submissions (extracted at paragraph [298] above). 332 [1986] 2 Qd R 317. 333 [1997] QPELR 213. -- 97 of 269 -- 98 [305] In Broad v Brisbane City Council & Anor,334 the Full Court of the Supreme Court of Queensland provided guidance on the concept of amenity, the use that can be made of perceptions of residents, and the potential relevance of a development approval to considerations of amenity. Thomas J, with whom Connolly J agreed, observed the following: “I do not think that the concept admits of a tidy “objective or subjective” classification. Many statements can be found in the Local Government Reports indicating the relevance of subjective factors and many others can be found suggesting that the ultimate test is objective. Such views are not necessarily inconsistent. In support of the fact that the ultimate test is objective are statements that the court must bear in mind “that an injury to the amenity must be determined according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity” (Rio Pioneer Gravel Co. Pty. Limited v. Warringah Shire Council (1969) 17 L.G.R.A. 153, 168). Again, descriptions of amenity of a neighbourhood as “the quality which it has of being pleasant or agreeable” (Cecil E. Mayo Pty. Limited v. Sydney City Council (1952) 18 L.G.R. 152, 156) and as “that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence” suggest that the ultimate inquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may affect different individuals in different ways. It is inevitable that individual perceptions be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it. It seems to me that the learned trial Judge adopted the above admittedly vague perceptions, not simply as those of an individual but as valid perceptions with which he agreed and which an ordinary person in the neighbourhood might possess. Neither their reception from an individual nor their adoption by His Honour as accurate perceptions reveals any improper subjectivity. The real criticism of His Honour’s use of these perceptions is not so much that they were subjective as that they were vague, irrational or incapable of adequate explanation. Common lawyers and men of equity alike have a healthy and long-standing distrust of the mystical explanation, and of the alleged factor which cannot be rationally justified. The question arises whether the use of the present criteria was impermissible or unsafe in principle. I do not think that they were. The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation 334 [1986] 2 Qd R 317. -- 98 of 269 -- 99 of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of “atmosphere”. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident. These remarks are not intended to encourage resort to vague statements as justification for an irrational conclusion. But it is necessary to recognise that some matters in this area, although intangible and difficult to articulate, may be real and may properly to (sic) taken into account. Aesthetics may of course be a relevant consideration in a town planning decision although the basis of the opinion may be difficult to explain. It follows that although some of the particular factors upon which His Honour relied were admittedly vague, they were not necessarily invalid or improper considerations. No error of law is disclosed on this point.”335 [306] Similar observations were made by de Jersey J (as His Honour then was), with whom Connolly J also agreed. His Honour found that the reasonable expectations concerning the use to which land would likely be put are relevant factors in assessing detriment to the amenity of a neighbourhood. His Honour also observed that: “In determining the likely effect of a proposed development on the amenity of a neighbourhood, the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident’s view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use. In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little if any weight. In forming his own view on the likely effect of a proposed development on the amenity of an area, a Judge would I think ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development. But as I have said, I would not exclude evidence of more subjectively based views as being necessarily irrelevant, although in the end a Judge may well accord them little weight. In light of that view, the Council has not in my opinion established an error of law, whatever the extent to which His Honour’s decision was in fact influenced by Mrs. Broad’s evidence. Miss Kiefel, who appeared for the Council, relied, in support of her submission, on two decisions of Sugerman J. in the New South Wales 335 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, 319-20 (emphasis added). -- 99 of 269 -- 100 Land and Valuation Court. Each involved consideration of the ambit of the expression “injury to amenity” appearing in a planning ordinance. Neither case supports the conclusion that only objectively based views on the likely effect of a proposal on amenity may be admitted into evidence and affect a Judge’s determination of the issue. In Cecil E. Mayo Pty. Ltd. v. Sydney City Council (1952) 18 L.G.R. 152, 156 Sugerman J. described the amenity of a neighbourhood as “the quality which it has of being pleasant or agreeable”. One would think that the assessment of that quality would necessarily involve subjective judgments, and often judgments for which it would be difficult to offer a rational, concrete foundation. In Balgowlah Investments Ltd. v. Manly Municipal Council, supra, he suggested that central to the significance of apprehended injury to amenity is the question of what residents are “justly entitled to expect”. But that question is ordinarily not to be answered by reference to absolute, immutable standards, but will usually itself depend in turn on other “questions of degree”. In Vacuum Oil Company Pty. Ltd. v. Ashfield Municipal Council (1956) 2 L.G.R.A. 8, 11, Sugerman J. offered the following observations on the concept of “amenity” in town planning legislation: “‘Amenity’ is not confined to the negative factor of freedom from physical discomfort through the effects of noise, smell, and the other matters referred to in the proviso to clause 27 of the ‘County of Cumberland Planning Scheme Ordinance’. It relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident, and as well to those across the road, who may be unaffected by noise etc., as to the adjoining and other occupiers on the same side. ‘Amenity’ may be taken to express that element in the appearance or layout of town and country which makes for a comfortable and pleasant life rather than a mere existence.” See also Humby v. Woollahra Municipal Council (1964) 10 L.G.R.A. 56, 65. There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one’s perception of amentiy (sic).”336 [307] In Jeteld Pty Ltd v Council of the City of Toowoomba & Anor,337 His Honour Judge Quirk considered the relevance of public perceptions about safety issues arising from 336 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, 326 (emphasis added). 337 [1997] QPELR 213. -- 100 of 269 -- 101 the location of residential development proximate to power lines. His Honour observed: “The relevance of matters of public concern in town planning cases was discussed in Edmonstone & Assoc v Emerald Shire Council (1994) QPLR 123. It was pointed out that matters of this kind do not necessarily rule out a particular development proposal but the Court went on: “The concerns of objecting members of the community, though quite sincerely held, may be set aside if they are shown to be clearly unfounded or unreasonable and that, in the circumstances of a particular case, they should not be allowed to stand in the way of a proposal. The point I seek to make is that, in a town planning context, public concern is not automatically nullified by evidence that such concern lacks any scientific or technical basis.” (at p126)”338 [308] Similar observations were made by this Court in Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors.339 His Honour Judge Dodds observed: “[40] A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected (sic) by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corporation Limited v. Pine Rivers Shire Council [2001] Q.P.E.L.R. 350.”340 338 Jeteld Pty Ltd v Council of the City of Toowoomba & Anor [1997] QPELR 213, 215-6. 339 [2007] QPEC 112; [2008] QPELR 342. 340 Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40] (emphasis added, footnotes omitted). -- 101 of 269 -- 102 [309] I respectfully adopt the observations of their Honours Justices Thomas and de Jersey and Judges Quirk and Dodds. Their observations astutely exemplify some ways a decision-maker may have regard to submissions. [310] Second, even if significant or determinative weight is not given to the submissions, having regard to them serves the legitimate purpose identified by His Honour Judge Robin QC in Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors341 to which I have referred in paragraph [267] above and that I respectfully adopt. As was noted by His Honour, “[t]he point of submissions is to raise issues for the assessment manager, now the Court, to consider on their merits”. This is a legitimate purpose in obliging the assessment manager to have regard to the submissions. [311] Third, although the submissions are admissible evidence because they form part of the common material, in considering the weight to be attached to their contents, care must be taken for the reasons identified in paragraphs [207] to [215] above. [312] I accept the submissions advanced by Development Watch Inc. in: (a) paragraphs 62 to 65, 66 (except that I would replace “reasonably” with “genuinely”), and 67 to 69 of the First Appellant’s Further Written Submissions (extracted at paragraph [298] above); and (b) paragraph 40 of the First Appellant’s Reply Submissions (extracted at paragraph [299] above). [313] With respect to paragraphs 39 and 41 of the First Appellant’s Reply Submissions, I accept that it is inappropriate to disregard all the aspects of the submissions that do not relate to height, such as those about turtles and traffic. As I have already explained, the arguments presented by Development Watch Inc. with respect to the relevance of the submissions at the original hearing were more limited in their scope than those now presented. These reasons address their new arguments. [314] Having regard to the other submissions advanced by Development Watch Inc., I consider it appropriate to supplement the findings in paragraphs [420] to [430] of my original reasons for judgment with those in paragraphs [287] to [313] above and paragraphs [315] to [322] below. [315] In this case, although many of the submitters did not give evidence, I am prepared to assume that the submissions that are averse to the proposed development express concerns that are widely-held by members of the community. The points raised in the submissions against the proposed development are serious. The evidence of Ms Saxton, including her submission, exemplifies the commitment of a significant portion of the local community opposed to the proposed development. [316] On my perusal of all the submissions, it seems to me that there are many members of the community who do not want to lose what they value about the area. That includes many matters that inform the lifestyle and environment that they presently enjoy, including the balance between the built and less developed or undeveloped elements in the area, social and community aspects, intangible matters such as the enjoyment provided by the presently available views from local viewpoints and the character of 341 Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 763 [34]. -- 102 of 269 -- 103 the area, and the state of the environment and the opportunities it presents (for example to breeding turtles). [317] Generally, the submitters are genuine and passionate in their view that the proposed development offers nothing of merit. They do not want the Planning Scheme overridden. They see the Planning Scheme as a product of community consultation and input. They consider that there is no need for many, if not all, components of the proposed development. If there is a need, they consider that it can be adequately met in other ways, such as by Mr Clive Palmer reopening his resort, or by a developer providing a low-rise eco-resort on the subject land. [318] Many of the views expressed by the submitters are consistent with the evidence presented by the Appellants, including evidence of experts called by them. In large measure, the views mirror the case run by the Appellants. [319] That said, with respect to the oral submissions made by Development Watch Inc. to which I refer in paragraphs [300] to [302] above, and its oft-repeated submission that many thousands of members of the local community hold concerns and are opposed to the proposed development, I respectfully adopt342 the observations of His Honour Judge Robin QC in Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors.343 His Honour observed: “[62] In my opinion it is not a proper function of the Court (in the absence of planning arrangements and legislation requiring it) to act with a view to preserving the status quo, to restrict the introduction of competition, etc. Its proper function in cases like the present is to assess the merits of the development proposal and whether conflicts with the planning scheme must defeat it or can become overcome by sufficient grounds. There can never be a guarantee that valued activities conducted by private (or public) entities will continue to operate in their accustomed locations or at all. People moving to enjoy the advantages of proximity to shops, entertainment, doctors, even schools, may lose them.”344 [320] After having regard to the views expressed in the submissions, I am comfortable with my earlier undisturbed findings (other than where I have indicated elsewhere in these reasons), including (but not limited to) those findings that relate to: (a) the character and amenity of the locality; (b) the tourism opportunity presented by the proposed development; (c) the acceptability of the commercial aspect of the proposed development; (d) the appropriateness of the design of the proposed development; (e) the traffic impacts of the proposed development; 342 Other than the observations about the need for sufficient grounds to overcome conflict. That approach is not appropriate here given the assessment is to be undertaken under the Planning Act 2016. 343 Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750. 344 Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 771-2 [62]. -- 103 of 269 -- 104 (f) the acceptability of the measures proposed to address potential lighting impacts; (g) the absence of an unacceptable risk to the loggerhead turtle; (h) the need for the proposed development; (i) the extent to which the proposed development complies with the Planning Scheme; and (j) the merits of the proposed development in terms of its visual impacts, its effects on character and amenity, its effects on marine life, and its effects on traffic. [321] The content of the submissions does not cause me to doubt those aspects of the evidence that I relied on to support my undisturbed findings. [322] The matters referred to above are relevant to the exercise of the planning discretion. They are to be weighed in the balancing exercise required to ultimately determine whether it is appropriate to approve the proposed development. Does the additional evidence or changed findings alter my findings about whether it is in the public interest for the proposed development to be approved and the exercise of the planning discretion? [323] Paragraphs [552] to [555] of my original reasons for judgment contain my ultimate findings. They reflect the balance struck by me having regard to the findings I had made at that time. As I have made new findings, I no longer maintain those findings. It is appropriate that I undertake the balancing exercise afresh. This is a matter to which I will return below. What are the unchallenged and undisturbed findings from my earlier decision that are relevant to the exercise of the discretion? [324] My original reasons for judgment were lengthy. They contain many findings that remain unchallenged and undisturbed. They also contain a detailed explanation of the evidence considered by me and an explanation of my reasons for the findings. [325] Given the complexity of the case, to adopt a summary of the reasons here would leave the reader with an inadequate explanation about the matters that inform the exercise of the discretion. [326] For those reasons, I consider it appropriate to attach a copy of my earlier reasons for judgment, which should be read in conjunction with these reasons. They are attached as Annexure D. What is the significance of the non-compliance with the Height of buildings and structures overlay code? [327] Development Watch Inc. submits that in circumstances where the reasonable community expectation is demonstrated to allow for a maximum height of 8.5 metres, it is impossible to describe what is proposed, both as to the absolute heights proposed and to the extent to which the buildings will exceed 8.5 metres, as being other than substantially inconsistent with the reasonable expectations of the local community.345 345 First Appellant’s Further Written Submissions p 17 [52]. -- 104 of 269 -- 105 With respect to the effect of the inconsistency viewed in light of the purpose of the Height of buildings and structures overlay code, Development Watch Inc. submits that height contributes to character and that, in this location, there is no development that could be described as anything but low rise (more than 8.5 metres in height). As such, Development Watch Inc. submits that the proposed development results in substantial inconsistency with the preferred built form character of the local plan area and does not satisfy the purpose of the Height of buildings and structures overlay code. [328] I do not accept the assertion by Development Watch Inc. that there is no development in the locality that is of a height such as that proposed by SH Coolum Pty Ltd. That assertion is inconsistent with my findings in paragraph [232] of my original reasons for judgment. [329] Although my finding of reasonable expectations does not mirror that contended for by Development Watch Inc., I accept that there is a material discord between the height of the proposed development and: (a) the preferred building height indicated in performance outcome PO1 of the Height of buildings and structures overlay code in version 8 of the Planning Scheme; and (b) the reasonable expectations of the local community, resulting in non- compliance with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme. [330] The inconsistency arises by reason of the difference in quantitative terms between the height of the proposed development and that which is reasonably expected by the local community. Although the difference is material in numerical terms, it does not necessarily follow that the nature and extent of the inconsistency, as a guide to the weight to be attributed to it in the exercise of the discretion, is substantial. [331] It is well-settled that not every non-compliance warrants a refusal of a development application. It is necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of the provision in question. This will inform the degree of importance that should be attributed to the non-compliance, and how it impacts on the exercise of the planning discretion in the circumstances of the case.346 [332] When considering the importance of the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code, it is convenient to first consider that outcome in the context of the purpose of overlays generally and the Height of buildings and structures overlay code itself. [333] Part 8 of the Planning Scheme relates to overlays. As is explained in s 8.1(1): “Overlays identify areas that reflect state and local level interests and have one or more of the following characteristics: 346 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 806-7 [53] as approved in Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [54]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335- 7 [18]-[22]; I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, 808 [70] and 847-8 [288]. -- 105 of 269 -- 106 (a) there is a particular sensitivity to the effects of development; (b) there is a constraint on land use or development outcomes; (c) there is the presence of a valuable resource; or (d) there are particular opportunities for development.” [334] The purpose of the Height of buildings and structures overlay code is: “… to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form.” [335] As is recorded in s 8.2.8.2(2) of the Height of buildings and structures overlay code, the purpose is to be achieved through three overall outcomes, not just the overall outcome about building heights in s 8.2.8.2(2)(b). The overall outcomes specified to achieve the purpose are: “(a) development contributes to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs; (b) the height of buildings and structures is consistent with the reasonable expectations of the local community; and (c) development does not result in a significant loss of amenity for surrounding development, having regard to:- (i) the extent and duration of any overshadowing; (ii) privacy and overlooking impacts; (iii) impacts upon views; (iv) building character and appearance; and (v) building massing and scale relative to its surrounds.” [336] From this context one can discern that the height of buildings and structures, and the reasonable community expectations about them, are integers that are relevant to the character and amenity goals in the Planning Scheme. That construction is supported by reading performance outcome PO1 of the Height of buildings and structures overlay code in conjunction with s 5.3.3(c)(iii) of the Planning Scheme, which states that development that complies with the performance outcomes of a code complies with the purpose and overall outcomes of the code. [337] Of course, compliance with the empirical height standard and developing at a height that is consistent with the reasonable expectations of the local community are not the only integers relevant to achievement of the character and amenity planning goals. The overall outcome in s 8.2.8.2(2)(b) is but one of three outcomes that, together, are directed at achieving the identifiable planning goal of protecting the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form. [338] When considered together, the overall outcomes indicate that the potential impact of development on distinctive character is not to be viewed through a narrow lens focussed only on a single parcel of land. Equally, it is not only to be viewed at the -- 106 of 269 -- 107 broad-brush scale of the Sunshine Coast as a whole. It is to be considered in the context of the circumstances pertaining to the locality in question. It is also to be considered from the perspective of the local community (as distinct from tourists who might, for example, have a different level of tolerance for amenity impacts). [339] When one considers the whole Planning Scheme, it is apparent that the broader planning policy directed at the protection of distinctive character and amenity of the Sunshine Coast is a planning policy of considerable importance. That is evident from the other provisions of the Planning Scheme to which I have referred in my original reasons for judgment. [340] As I have already mentioned in paragraph [271] above, the correlation between the height of buildings and their contribution to, or impact on, the character and amenity of an area may be influenced by factors other than just the height of buildings. Those other factors might include the characteristics of the land, the existing development in the area, the design parameters of the development, the interplay between the design and the site characteristics and the attributes of the local area, and the planning and visual impacts of the development viewed in its local context. [341] In the circumstances, having regard to the verbiage of the Planning Scheme as a whole, the non-compliances with the overall outcome in s 8.2.8.2(2)(b) and performance outcome PO1 of the Height of buildings and structures overlay code should not be lightly discarded when considering whether the proposed development should be approved or refused. The non-compliances involve a clear departure from a forward planning strategy that is intended to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form. To the extent that the proposed development conflicts with the preferred maximum height for the subject land and is inconsistent with reasonable local community expectations, it is inconsistent with several parameters that are directed at the broader strategies in the Planning Scheme related to character and amenity. These are matters that weigh against a decision to approve the proposed development. They are deserving of serious consideration. [342] In an assessment of the proposed development undertaken only against the overall outcome in s 8.2.8.2(2)(b) and performance outcome PO1 of the Height of buildings and structures overlay code, it is easy to accept Development Watch Inc.’s case that the non-compliances are deserving of decisive weight and that the development application should be refused. However, the assessment process under s 45 of the Planning Act 2016 requires me to undertake a broader assessment. It is convenient to now turn to that broader balancing exercise. Should the development application be approved in the exercise of the planning discretion? [343] As I have noted in paragraph [72] above, there is a broad discretion in determining the appeal. The Court of Appeal decisions to which I refer in paragraph [85] above confirm that whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion. The starting point generally remains that the Planning Scheme is taken to be an embodiment of the public -- 107 of 269 -- 108 interest.347 In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.348 Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.349 The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.350 Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted. Although the exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.351 [344] Here, the case for refusal has force. [345] The submissions indicate that many people in the local community are vehemently opposed to the proposed development for reasons that include its height. As such, the proposed development does not only fail to comply with performance outcome PO1 of the Height of buildings and structures overlay code: it also fails to comply with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code. The proposed development is contrary to assessment benchmarks intended to limit the height of development on the subject land to that which the local community reasonably expects. The assessment benchmarks are parameters directed to achieving a broader planning strategy, namely the protection of the distinctive character and amenity of the Sunshine Coast, and of the local area in which the subject land is located. [346] The position under the Planning Scheme has subsequently been strengthened by Planning Scheme Amendment No. 13 and Planning Scheme Amendment No. 20. In version 24 of the Planning Scheme, the overall outcome in s 8.2.8.2(2)(a) states: “development provides for the height of buildings and structures to comply with specified height limits except where explicitly provided for in this code”. [347] The height that is specified for the subject land is 8.5 metres. The proposed development far exceeds that height. As such, the proposed development does not comply with the most current indicator of what is considered to constitute, in the public interest, the appropriate height of development on the subject land. This lends further weight to the case for refusal. [348] The amendments should not be permitted to become a vehicle for displacement or modification of version 8 of the Planning Scheme. Nevertheless, it is relevant to consider that they demonstrate that the planning intentions are heading in the opposite 347 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77]. 348 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40]. 349 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804-6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]-[14]. 350 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53]. 351 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]- [57]. -- 108 of 269 -- 109 direction than that which might be expected having regard to the Hyatt preliminary approval. This is a matter that weighs against approval of the proposed development. [349] Development Watch Inc. submits that, when considering the matters that tell against approval, weight should also be placed on SH Coolum Pty Ltd’s failure to demonstrate: (a) that the favourable aspects of the proposed development (such as they are) necessitate such substantial non-compliance with the Planning Scheme; and (b) that the favourable aspects of the proposed development cannot be accommodated in a form of development that complies with the Planning Scheme, is consistent with community expectations and complies with the planning strategies reflected in the subsequent amendments to the Planning Scheme.352 [350] In this respect, Development Watch submits: “84. Sekisui House makes much of the community and economic need for the development, but has never sought to explain why those needs can only be met by a proposal that far exceeds the allowable heights in the area and is opposed by such a large component of the local community.” [351] Development Watch Inc. did not explain why these matters should attract considerable weight in the exercise of discretion. [352] I do not find Development Watch Inc.’s submissions on this point to be persuasive. I have reservations about the approach invited by Development Watch Inc. and make three observations in that regard. [353] First, the submission appears to invite an approach that assumes approval cannot follow where there is non-compliance with a planning scheme unless there are reasons that necessitate that outcome. That is not the correct approach to the exercise of the discretion under the Planning Act 2016.353 [354] Second, the submission appears to invite the Court to place weight adverse to SH Coolum Pty Ltd on its failure to rely on matters,354 such as its financial circumstances, to explain why it pursues the form of development sought in this appeal. In doing so, Development Watch Inc. appears to be inviting the Court into error. A person’s (including a corporate person’s) personal circumstances, financial or otherwise, are not a relevant matter under s 45(5)(b) of the Planning Act 2016. [355] Third, the submission appears to criticise SH Coolum Pty Ltd for failing to draw the Court into a comparison between the proposed development and a hypothetical form of development that it does not seek. 352 First Appellant’s Further Written Submissions pp 28-9 [84] and [85]. 353 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309. 354 Planning Act 2016 s 45(5)(b). -- 109 of 269 -- 110 [356] It must be remembered that the function of the Planning and Environment Court is to resolve appeals in individual cases. The subject matter of the appeal is a particular form of development. That is what the Court must assess.355 The Court exercises no financial jurisdiction over would-be developers. It is not concerned to safeguard developers from their financial follies, nor is it tasked with an obligation to limit the extent of development to that which allows developers to enjoy moderate, but not excessive, financial success.356 If it had such jurisdiction, planning appeals would last even longer than they do now, and the problems of establishing whether or not a particular development was or was not economically justifiable or excessive would be countless. [357] Even if my reservations are unfounded, I would ascribe little weight to this consideration. The Planning Scheme cannot force a private landowner to deliver a particular form of development. A landowner may choose to allow the subject land to sit idle, or to develop it in a way that accords completely with the requirements of the Planning Scheme, but which provides little community benefit. The fact that a different development might be achievable on the subject land is not a compelling reason to refuse the proposed development. The real issue is whether the proposed development should be approved. [358] Ordinarily, one might expect that the planning intentions relevant to the designation of the subject land with a maximum height limit of 8.5 metres would be given its full force and effect because a planning scheme is often regarded as an embodiment of the public interest. That expectation would only be reinforced by later amendments to a planning scheme where those amendments strengthen the importance of compliance with assessment benchmarks that specify empirical height parameters. As I have already observed in paragraph [342] above, in an assessment of the proposed development undertaken only against the overall outcome in s 8.2.8.2(2)(b) and performance outcome PO1 of the Height of buildings and structures overlay code, it is easy to accept the Appellants’ case that the non-compliances is deserving of decisive weight and the development application should be refused. [359] However, the broad evaluative judgment called for by the legislation requires consideration of other matters. The exercise of the discretion should not be a matter of mere caprice. Emotion has no role to play in the balancing exercise. The balancing exercise is to be approached having regard to all the evidence that is accepted as relevant, credible, and reliable. If I was to focus on just one or two aspects of that evidence, such as the submissions or the identified non-compliances, without reading and appreciating the nuances that reveal themselves through consideration of the whole of the evidence, I risk making a finding (or being artificially attracted to a suggestion) that might well be regarded as mere caprice. Similarly, if I was to focus on just a handful of assessment benchmarks without considering the whole Planning Scheme, including those provisions with which there is compliance, I might be regarded as capricious in my approach. 355 Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council & Anor [2022] QCA 246, [13] and [17]. 356 Murphy & Sons Ltd v Secretary of State for the Environment [1973] 2 All ER 26, 30-1. -- 110 of 269 -- 111 [360] An examination of version 8 of the Planning Scheme reveals that the recent observation by His Honour Judge Cash in Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor357 are apposite, namely: “Modern planning schemes are complex instruments. Invariably, they contain goals or promote ideas that seek to achieve competing outcomes. The Sunshine Coast Planning Scheme 2014 (SCPS)358 is no exception.”359 [361] On the one hand, the Planning Scheme seeks to protect the distinctive character and amenity of the Sunshine Coast.360 On the other hand, the Planning Scheme recognises and promotes tourist activities for their economic and health benefits.361 [362] Other considerations that must also be weighed in the balance when exercising the discretion, include (but are not limited to) that: (a) the proposed development appropriately reflects the character of the area as a low-key coastal urban community;362 (b) other than with respect to matters of height, the built form of the proposed development complies with the relevant provisions of the Planning Scheme; (c) there are no meaningful, tangible impacts from the proposed development, and the proposed development would not result in any unacceptable impacts in terms of setbacks, overshadowing, overlooking, overbearing or site cover, visual amenity or traffic;363 (d) the proposed development would result in net benefits to the community in respect of traffic outcomes;364 (e) there are no environmental risks or environmental impacts warranting refusal of the development application;365 357 [2023] QPEC 8. 358 His Honour Judge Cash’s observation relates to the version of the Planning Scheme that applied in March 2021. 359 Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor [2023] QPEC 8, [1]. 360 See, for example, the purpose of the Height of buildings and structures overlay code in s 8.2.8.2(1) of the Planning Scheme. See also the many other provisions relevant to character and amenity considered in paragraphs [179] to [292] and [304] to [331] of my original reasons for judgment: Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 239-70 and 272-6. 361 See, for example, ss 3.3.4.1(c), 3.3.9.1(a), 3.4.2.1(c)(v), and 3.4.6.1(c) and (e)(ii) and (v) of the Strategic framework, the purpose in s 6.2.17.2(1)(c) and the overall outcomes in ss 6.2.17.2(2)(c)(i) and (v) of the Emerging community zone code, and the overall outcomes in ss 7.2.8.3(2)(a) and (j) and performance outcome PO16 of the Coolum local plan code, which I considered in paragraphs [45] to [137] of my original reasons for judgment: Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 212-31. See also Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor [2023] QPEC 8, [1]. 362 See Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 255 [227]. 363 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 276 [331]. 364 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 293 [408]. 365 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 277-91 [338]-[390]. -- 111 of 269 -- 112 (f) the proposed development would enhance the natural environment;366 (g) there is a need for the proposed development;367 (h) approval of the proposed development would enable delivery of economic and community benefits;368 (i) approval of the proposed development will result in a significant increase in publicly accessible areas of open space;369 and (j) the subject land presents an opportunity to develop an intensive tourism focus development without unacceptable adverse impacts upon the surrounding community.370 [363] On balance, I am satisfied that all the matters identified throughout my reasons above and in my original reasons for judgment (as modified in these reasons) that tell against approval should not stand in the way of an approval given the considerations that I have identified that support approval. Taken in combination, the matters that support approval are compelling. They persuade me that the proposed development is meritorious and should be approved. Conclusion [364] SH Coolum Pty Ltd has discharged the onus. [365] The appeal will be dismissed, and the Council’s decision changed to a decision to approve the development application subject to the conditions in the development approval package attached as Annexure A (and paginated as pages 1 to 639 and 70A and 70B) to the Judgment that is court document number 90 on the court file for Appeal No. D166 of 2018. 366 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 290-1 [389] and 292 [397]. 367 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 309-10 [493]. 368 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 312 [505]. 369 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 208 [26]. 370 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 315 [531]. -- 112 of 269 -- 113 Annexure A: Response to the questions posed in the Appellants’ Lists of Issues Question 1 – At what time are the community expectations to be found? [366] The first question posed by the Appellants is: “1. Are the reasonable expectations of the local community about the height of buildings and structures to be erected on the subject land to be determined by reference to those expectations: (a) as at the time of the making of the development application by the co-respondent; (b) as at the time of the assessment by this Court?” [367] SH Coolum Pty Ltd and the Council each submit that this is a new question not sought to be agitated by the submitters previously and say that it is beyond the matters the subject of the remitter. [368] I accept that this question does not naturally arise as a matter that requires determination because of the Court of Appeal’s decision. Further, Development Watch Inc. did not apply for leave to amend its issues to add this as an issue in dispute. Nevertheless, the identification of the issue has uncovered a fundamental difference between the parties about the approach to be taken to the issues that must be determined. [369] The real contention between the parties does not, in truth, call for a determination of the first question as posed by the Appellants. As is apparent from the submissions from each of the parties, it is common ground that the approach outlined in paragraph [171] above is appropriate. The real dispute relates to whether version 18 of the Planning Scheme is a potential source of evidence on which the Appellants can rely as evidence of the expectations of the local community. I have addressed that issue in paragraphs [161] to [183] above. [370] With the matters referred to above in mind, I return to the question posed by the Appellants. The answer to the Appellants’ first question is “neither”. The question is premised on a false assumption that there is only a choice between the two alternatives posed. The reasonable expectations of the local community about the height of buildings and structures to be erected on the subject land is a question of fact. It is a question that I am to answer now in these reasons for judgment. It is to be answered by reference to the evidence of community expectations presented during the original hearing and the additional evidence admitted by me in exercise of my discretion at the remitted hearing. That evidence comes in various forms, each of which provides an indication of the expectations at the time that the evidence was captured. It is a matter for me, in the exercise of my discretion, to determine what evidence I accept as credible and reliable evidence about the factual matter in issue, and what weight I give to the evidence when making the necessary factual findings. I can consider matters that inform the credibility and reliability of each piece of evidence, such as the time at which the evidence captured the views of the community, but the extent to which those considerations influence the weight to be given to the evidence is entirely a matter for me in the exercise of my discretion. -- 113 of 269 -- 114 Question 2 – What are the expectations of the local community? [371] The second question posed by the Appellants is: “2. What are the expectations of the local community about the height of the buildings and structures to be erected on the subject land at the time determined by reference to Issue 1 above?” [372] For the reasons provided in paragraphs [104] to [236] above, the answer to this question is that the local community expects that: (a) the height of the buildings and structures on the subject land will generally be two storeys; and (b) buildings of up to four storeys might be achieved on the subject land provided those buildings: (i) do not introduce unacceptable town planning impacts, such as with respect to traffic and turtles; and (ii) reflect the low key beachside character of the Coolum local plan area and maintain the Coolum local plan area as a low key coastal urban community. Question 3 – Are the expectations of the local community unreasonable? [373] The third question posed by the Appellants is: “3. Has it been demonstrated that those expectations are not reasonable?” [374] For the reasons provided in paragraphs [237] to [246] above, the answer to this question is that it is reasonable for the local community to expect that: (a) the height of the buildings and structures on the subject land will generally be two storeys; and (b) buildings of up to four storeys might be achieved on the subject land provided those buildings: (i) do not introduce unacceptable town planning impacts, such as with respect to traffic and turtles; and (ii) reflect the low key beachside character of the Coolum local plan area and maintain the Coolum local plan area as a low key coastal urban community. Question 4 – Are the proposed heights consistent with the reasonable expectations of the local community? [375] The fourth question posed by the Appellants is: “4. Has it been demonstrated that the heights of the buildings and structures proposed for the subject land are consistent with the reasonable expectations of the local community at the time determined by reference to Issue 1 above?” -- 114 of 269 -- 115 [376] For the reasons provided in paragraphs [104] to [249] above, the answer to this question is no. Given the inclusion of heights of up to seven storeys, SH Coolum Pty Ltd has not demonstrated that the height of buildings in the proposed development is consistent with the reasonable expectations of the local community. Question 5 – What is the nature and extent of inconsistency? [377] The fifth question posed by the Appellants is: “5. If the Court is not satisfied that the heights of the buildings and structures proposed for the subject land are consistent with the reasonable expectations of the local community, what is the nature and extent of that inconsistency?” [378] I have addressed this question in paragraphs [327] to [342] above. Question 6 – Does the proposed development comply with the overall outcomes in ss 8.2.8.2(2)(a) and (b) of the Height of buildings and structures overlay code in version 8 of the Planning Scheme? [379] The sixth question posed by the Appellants is: “6. Does the subject development comply with Overall Outcomes 8.2.8.2(2)(a) and 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code specified in Version 8 of the Sunshine Coast Planning Scheme 2014 (the Scheme)?” [380] I have addressed this question in paragraphs [104] to [249] and [257] to [277] above. Question 7 – What do the public submissions convey to the Court? [381] The seventh question posed by the Appellants is: 7. What do the public submissions convey to the Court about the reasonable views of the community regarding the character and amenity of the locality, the merits of the proposed development (as to its proposed scale, its building heights, its visual impacts, its effect on character and amenity, its effect on marine life, and its effects on traffic), and any need for the proposed development?” [382] I have addressed this question in paragraphs [278] to [322] and [343] to [348] above. Question 8 – What weight should be given to the community views? [383] The eighth question posed by the Appellants is: “8. What weight ought the Court give to the reasonable views of the community as articulated in the public submissions?” [384] I have addressed this question in paragraphs [104] to [249], [257] to [322] and [343] to [348] above. -- 115 of 269 -- 116 Question 9 – Does the extent and content of opposition in the public submissions militate against approval? [385] The ninth question posed by the Appellants is: “9. Does the extent of community opposition, and the substance of it, as articulated in the public submissions, militate against approval of the proposed development and, if so, to what extent?” [386] I have addressed this question in paragraphs [104] to [249], [257] to [322] and [343] to [348] above. Question 10 – What weight should be given to the amendments to the Height of buildings and structures overlay code? [387] The tenth question posed by the Appellants is: “10. What weight ought the Court give to the amendment of the Height of Buildings and Structures Overlay Code of the Scheme made by the Sunshine Coast Planning Scheme 2014 (Major Amendment and Alignment Amendment) No. 13 with effect on and from 14 May 2018, as further amended by Sunshine Coast Planning Scheme 2014 (Major Amendment) No. 20 with effect on and from 11 November 2019?” [388] I have addressed this question in paragraphs [105] to [110], [161] to [192], [232] to [246], and [343] to [363] above. Question 11 – Does the proposed development comply with the overall outcomes in ss 8.2.8.2(2)(a), (b) and (c) of the Height of buildings and structures overlay code in version 24 of the Planning Scheme? [389] The eleventh question posed by the Appellants is: “11. Does the subject development comply with Overall Outcomes 8.2.8.2(2)(a), 8.2.8.2(2)(b) and 8.2.8.2(2)(c) of the Height of Buildings and Structures Overlay Code, as amended after the making of the development application, now reflected in version 24 of the Scheme?” [390] The overall outcomes in s 8.2.8.2(2)(a), (b) and (c) of the Height of buildings and structures overlay code in version 24 of the Planning Scheme state: “(a) development provides for the height of buildings and structures to comply with specified height limits except where explicitly provided for in this code; (b) development contributes to the retention of the preferred built form character for the Sunshine Coast, and the local plan area in which it occurs; (c) the height of buildings and structures is consistent with the reasonable expectations of the local community.” -- 116 of 269 -- 117 [391] The proposed development does not comply with the overall outcomes in s 8.2.8.2(2)(a) of the Height of buildings and structures overlay code in version 24 of the Planning Scheme as the specified height limit is 8.5 metres and the proposed development exceeds that limit. [392] The proposed development complies with the overall outcome in s 8.2.8.2(2)(b) of the Height of buildings and structures overlay code. In that respect, although I accept that the specified height limit now appears in a mandatory overall outcome rather than an optional performance outcome, I am satisfied there is compliance for the reasons provided in paragraphs [180] to [237] and [239] to [264] of my original reasons for judgment and paragraphs [257] to [276], [278] to [322] and [413] to [415] of these reasons for judgment. [393] The proposed development does not comply with the overall outcomes in s 8.2.8.2(2)(c) of the Height of buildings and structures overlay code in version 24 of the Planning Scheme. In that respect, I rely on my reasons in paragraphs [104] to [249] above. Question 12 – What weight should be given to any non-compliance with the overall outcomes in the Height of buildings and structures overlay code in version 24 of the Planning Scheme? [394] The twelfth question posed by the Appellants is: “12. If the Court finds that the proposed development does not comply with the Height of Buildings and Structures Overlay Code of the Scheme as it is now in force, what weight should that fact be given in the overall assessment of the proposed development?” [395] I have addressed this question in paragraphs [105] to [110], [161] to [192], [232] to [246], and [343] to [363] above. Question 13 – How should the discretion of the Court be exercised? [396] The final question posed by the Appellants is: “13. How should the discretion of the Court be exercised in the assessment of the development application, in particular the assessment: (a) that must be made against the assessment benchmarks for the development application, including Overall Outcomes 8.2.8.2(2)(a) and 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code of Version 8 of the Scheme; (b) that must have regard to the public submissions made in respect of the development application; and (c) that may be made against, or have regard to, Overall Outcomes 8.2.8.2(2)(a), 8.2.8.2(2)(b) and 8.2.8.2(2)(c) of the Height of Buildings and Structures Overlay Code as amended after the making of the development -- 117 of 269 -- 118 application, reflected in the Scheme as it is now in force?” [397] I have addressed this question in paragraphs [343] to [363] above. -- 118 of 269 -- 119 Annexure B: Examples of the pro-forma submissions with handwritten comments -- 119 of 269 -- 120 -- 120 of 269 -- 121 -- 121 of 269 -- 122 -- 122 of 269 -- 123 -- 123 of 269 -- 124 -- 124 of 269 -- 125 -- 125 of 269 -- 126 -- 126 of 269 -- 127 -- 127 of 269 -- 128 -- 128 of 269 -- 129 -- 129 of 269 -- 130 Annexure C: Corrections to cross-references in original reasons for judgment [398] Paragraph [84] of my original reasons for judgment states: “Further, for the reasons provided in paragraphs [179] to [331] below in relation to the design of the proposed development and in paragraphs [332] to [404] below regarding environmental impacts, I am satisfied that the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity.”371 [399] That paragraph forms part of my reasons where I address whether the proposed development is worthy of consideration as a meritorious opportunity for tourism development. [400] Paragraph [84] of my original reasons for judgment should now read: “Further, for the reasons provided in paragraphs [179] to [237], [239] to [294], and [304] to [331] below of my original reasons for judgment and paragraphs [104] to [249], [257] to [277] and [413] to [415] of these reasons for judgment in relation to the design of the proposed development and in paragraphs [332] to [404] below of my original reasons for judgment regarding environmental impacts, I am satisfied that the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity.” (additions underlined and deletions shown with strikethrough) [401] Paragraph [108] of my original reasons for judgment states: “For the reasons provided in paragraphs [51] to [100] above and paragraphs [109] to [155] and [158] to [177] below, I am satisfied that the proposed development complies with these provisions. I accept the evidence of Mr Perkins that the proposed development will help ensure development of this significant land holding is planned for as a collective holding. This will enable long-term use of the subject land for urban purposes to come to fruition as intended by its inclusion in the Emerging community zone.”372 [402] That paragraph forms part of my reasons where I address whether the proposed development complies with the applicable tourism focus provisions of the Emerging community zone code. 371 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 220. 372 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 224. -- 130 of 269 -- 131 [403] Paragraph [108] of my original reasons for judgment should now read: “For the reasons provided in paragraphs [51] to [83] and [85] to [100] above of my original reasons for judgment and paragraphs [398] to [400] of these reasons for judgment and paragraphs [109] to [116], 118] to [136], [138] to [155] and [158] to [177] below of my original reasons for judgment and paragraphs [404] to [409] of these reasons for judgment, I am satisfied that the proposed development complies with these provisions. I accept the evidence of Mr Perkins that the proposed development will help ensure development of this significant land holding is planned for as a collective holding. This will enable long-term use of the subject land for urban purposes to come to fruition as intended by its inclusion in the Emerging community zone.” (additions underlined and deletions shown with strikethrough) [404] Paragraph [117] of my original reasons for judgment states: “In any event, as I have already noted in paragraph [75] above, approval of the proposed development does not militate against the reopening of the Palmer Coolum Resort. It would add a further integrated tourist and residential development to the area. For the reasons provided in paragraphs [64] to [99] above, I am satisfied that the proposed development will strengthen the tourism focus in the Coolum local plan area and add to the range of small-medium scale business, community, sport and recreational activities as required by overall outcome (2)(a) of the Coolum local plan.”373 [405] That paragraph forms part of my reasons where I address whether the proposed development complies with the applicable tourism focus provisions of the Coolum local plan code. [406] Paragraph [117] of my original reasons for judgment should now read: “In any event, as I have already noted in paragraph [75] above, approval of the proposed development does not militate against the reopening of the Palmer Coolum Resort. It would add a further integrated tourist and residential development to the area. For the reasons provided in paragraphs [64] to [83] and [85] to [99] above of my original reasons for judgment and paragraphs [398] to [400] of these reasons for judgment, I am satisfied that the proposed development will strengthen the tourism focus in the Coolum local plan area and add to the range of small-medium scale business, community, sport and recreational activities as required by overall outcome (2)(a) of the Coolum local plan.” (additions underlined and deletions shown with strikethrough) 373 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 226. -- 131 of 269 -- 132 [407] Paragraph [137] of my original reasons for judgment states: “For the reasons set out in paragraphs [49] to [136] above, I am satisfied that the evidence establishes that SHC’s proposed development (i.e. both Stage 1 and that facilitated by the proposed preliminary approval) involves a mix of land uses that is appropriate in the Yaroomba tourism focus area. It will provide a concentration of visitor accommodation and related tourism services in an integrated tourist resort and residential development that is focussed around large areas of open space. To the extent that the proposed development does not integrate with the Palmer Coolum Resort, this is a function of the need to balance the planning goal of integration against other requirements, such as the protection of the visual amenity of the road network. The proposed development does not unsatisfactorily compromise the planning goals with respect to the primary function of Precinct COL LPP-1. The proposed mix of land uses favours approval.”374 [408] That paragraph forms part of my reasons where I address my conclusions about the appropriateness of the proposed land uses in the Yaroomba tourism focus area. [409] Paragraph [137] of my original reasons for judgment should now read: “For the reasons set out in paragraphs [49] to [83], [85] to [107], [109] to [116], and [118] to [136] above of my original reasons for judgment and paragraphs [398] to [406] of these reasons for judgment, I am satisfied that the evidence establishes that SHC’s proposed development (i.e. both Stage 1 and that facilitated by the proposed preliminary approval) involves a mix of land uses that is appropriate in the Yaroomba tourism focus area. It will provide a concentration of visitor accommodation and related tourism services in an integrated tourist resort and residential development that is focussed around large areas of open space. To the extent that the proposed development does not integrate with the Palmer Coolum Resort, this is a function of the need to balance the planning goal of integration against other requirements, such as the protection of the visual amenity of the road network. The proposed development does not unsatisfactorily compromise the planning goals with respect to the primary function of Precinct COL LPP-1. The proposed mix of land uses favours approval.” (additions underlined and deletions shown with strikethrough) [410] Paragraph [157] of my original reasons for judgment states: “For reasons provided in paragraphs [51] to [85] and [142] to [155] above and paragraphs [158] to [177] below, I am satisfied that the proposed development complies with the provisions of the Emerging community zone code.”375 374 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 231. 375 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 234. -- 132 of 269 -- 133 [411] That paragraph forms part of my reasons where I address whether the proposed development complies with the applicable provisions of the Emerging community zone code that guide commercial development. [412] Paragraph [157] of my original reasons for judgment should now state: “For reasons provided in paragraphs [51] to [83] and [85] of my original reasons for judgment and paragraphs [398] to [400] of these reasons for judgment and [142] to [155] above of my original reasons for judgment and paragraphs [158] to [177] below of my original reasons for judgment, I am satisfied that the proposed development complies with the provisions of the Emerging community zone code.” (additions underlined) [413] Paragraph [238] of my original reasons for judgment states: “I reject Mr Adamson’s opinion. He does not clearly articulate the basis of his opinion. As best I can tell, his opinion appears to be premised on his view that there will be extensive earthworks and that there is a requirement that buildings are two storeys in height. I do not accept that the provision does not permit extensive earthworks. The provision is concerned with the end-developed state of the land. I also do not accept that there is a requirement that buildings be limited to two storeys in height.”376 [414] That paragraph forms part of my reasons where I address Mr Adamson’s opinion relevant to the issue of whether the proposed development provides an appropriate configuration of built form and landscaping. [415] Paragraph [238] of my original reasons for judgment should now read: “I reject Mr Adamson’s opinion. He does not clearly articulate the basis of his opinion. Having regard to the principles espoused in Makita (Australia) Pty Ltd v Sprowles,377 on this basis alone, I reject Mr Adamson’s opinion. As best I can tell, his opinion appears to be premised on his view that there will be extensive earthworks and that there is a requirement that buildings are two storeys in height. I do not accept that the provision does not permit extensive earthworks. The provision is concerned with the end-developed state of the land. I also do not accept that there is a requirement that buildings be limited to two storeys in height.” (additions underlined and deletions shown with strikethrough) [416] Paragraph [267] of my original reasons for judgment states: “I do not accept the Appellants’ submissions. Section 3.2.4 forms part of those provisions that identify the strategic intent. It is not part of 376 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 258. 377 [2001] NSWCA 305, (2001) 52 NSWLR 705, 729-30 [59]-[60] citing Lord President Cooper and Lord Russell in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40 and 42 respectively. -- 133 of 269 -- 134 the implementation framework. It is not framed in a manner that calls for compliance by individual developments. In any event, the proposed development does not cut across this intent. For the reasons provided in paragraphs [181] to [264] above, I am satisfied that the proposed development is consistent with the intended character for the locality.”378 [417] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. [418] Paragraph [267] of my original reasons for judgment should now read: “I do not accept the Appellants’ submissions. Section 3.2.4 forms part of those provisions that identify the strategic intent. It is not part of the implementation framework. It is not framed in a manner that calls for compliance by individual developments. In any event, the proposed development does not cut across this intent. For the reasons provided in paragraphs [181] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment, I am satisfied that the proposed development is consistent with the intended character for the locality.” (additions underlined and deletions shown with strikethrough) [419] Paragraph [269] of my original reasons for judgment states: “The Appellants say there is a clear, intentional and significant emphasis in these provisions on the individual character and identity of different communities within the Sunshine Coast. They submit that the proposed development fails to comply with the planning intent identified in s 3.3.1(a) and s 3.3.1(m) with regard to the maintenance and enhancement of character and environmental attributes of the locality and desire for places to reflect the coastal urban setting of the locality. While these provisions allows one to appreciate the strategic planning importance of compliance with character provisions in the Coolum local plan code, it is difficult to appreciate how non- compliance with these provisions can legitimately be raised as a real issue in dispute. Whether a development cuts across the identified strategic intent will necessarily depend on whether there is compliance with those provisions that outline the desired character of the relevant community. In this case, the relevant provisions are those in the Coolum local plan code. As such, for reasons provided in paragraphs [181] to [264] above, I am satisfied that the proposed development does not cut across this strategic intent.”379 [420] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. 378 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 265. 379 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 265. -- 134 of 269 -- 135 [421] Paragraph [269] of my original reasons for judgment should now read: “The Appellants say there is a clear, intentional and significant emphasis in these provisions on the individual character and identity of different communities within the Sunshine Coast. They submit that the proposed development fails to comply with the planning intent identified in s 3.3.1(a) and s 3.3.1(m) with regard to the maintenance and enhancement of character and environmental attributes of the locality and desire for places to reflect the coastal urban setting of the locality. While these provisions allows one to appreciate the strategic planning importance of compliance with character provisions in the Coolum local plan code, it is difficult to appreciate how non- compliance with these provisions can legitimately be raised as a real issue in dispute. Whether a development cuts across the identified strategic intent will necessarily depend on whether there is compliance with those provisions that outline the desired character of the relevant community. In this case, the relevant provisions are those in the Coolum local plan code. As such, for reasons provided in paragraphs [181] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment, I am satisfied that the proposed development does not cut across this strategic intent.” (additions underlined and deletions shown with strikethrough) [422] Paragraph [271] of my original reasons for judgment states: “The Appellants assert that the proposed development fails to comply with these provisions. The submission is no more than a bare assertion. I do not accept the assertion for the reasons provided in paragraphs [181] to [264] above.”380 [423] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. [424] Paragraph [271] of my original reasons for judgment should now read: “The Appellants assert that the proposed development fails to comply with these provisions. The submission is no more than a bare assertion. I do not accept the assertion for the reasons provided in paragraphs [181] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) 380 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 266. -- 135 of 269 -- 136 [425] Paragraph [277] of my original reasons for judgment states: “For the reasons provided in paragraphs [181] to [264] above, I am satisfied that the proposed development complies with these provisions.”381 [426] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. [427] Paragraph [277] of my original reasons for judgment should now read: “For the reasons provided in paragraphs [181] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment, I am satisfied that the proposed development complies with these provisions.” (additions underlined and deletions shown with strikethrough) [428] Paragraph [278] of my original reasons for judgment states: “The Appellants allege non-compliance with s 3.4.6.1(e)(ii) and (v) by reason of unacceptable character impacts. This provision is set out in paragraph [52] above. As I have already explained in paragraphs [78] to [85] above, it is unnecessary for SHC to demonstrate that the proposed development complies with this provisions but, even if it were, I am satisfied that there is compliance.”382 [429] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. [430] Paragraph [278] of my original reasons for judgment should now read: ““The Appellants allege non-compliance with s 3.4.6.1(e)(ii) and (v) by reason of unacceptable character impacts. This provision is set out in paragraph [52] above of my original reasons for judgment. As I have already explained in paragraphs [78] to [83] and [85] above of my original reasons for judgment and paragraphs [398] to [400] of these reasons for judgment, it is unnecessary for SHC to demonstrate that the proposed development complies with this provisions but, even if it were, I am satisfied that there is compliance.”” (additions underlined and deletions shown with strikethrough) [431] Paragraph [284] of my original reasons for judgment states: “Section 3.7.1(f) is not part of the implementation framework. It is a strategic outcome sought for the whole of the local government area. Its focus is the protection and enhancement of the natural environment. In any event, I am satisfied that the design of the proposed development does not cut across the planning strategy contained in this provision insofar as it relates to landscape character and amenity. 381 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 267. 382 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 2 -- 136 of 269 -- 137 For reasons provided in paragraphs [181] to [264] above, I am satisfied that the design of the proposed development will produce appropriate character and visual outcomes.”383 [432] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. [433] Paragraph [284] of my original reasons for judgment should now read: “Section 3.7.1(f) is not part of the implementation framework. It is a strategic outcome sought for the whole of the local government area. Its focus is the protection and enhancement of the natural environment. In any event, I am satisfied that the design of the proposed development does not cut across the planning strategy contained in this provision insofar as it relates to landscape character and amenity. For reasons provided in paragraphs [181] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment, I am satisfied that the design of the proposed development will produce appropriate character and visual outcomes.” (additions underlined and deletions shown with strikethrough) [434] Paragraph [288] of my original reasons for judgment states: “I have already addressed why I do not accept the Appellants’ position with respect to such matters in paragraphs [181] to [264] above. For those reasons, I am satisfied that the proposed development will not cut across these strategic outcomes and that it complies with the specific outcomes that are intended to implement the strategic outcomes. It maintains the scenic landscape and inter-urban break currently provided by the vegetation along David Low Way in that it will retain a significant band of vegetation and supplement the buffer with additional plantings. As I have already noted in paragraphs [246] to [264] above, I am satisfied that the proposed development will protect the important views and vistas, even though it will exceed two storeys in height. I am satisfied that it provides a high standard of design that is sensitive to its local setting and enhances and reinforces the character of the local area for reasons provided in paragraphs [184] to [227] above. With respect to the question of compliance with s 3.8.3.1(d), it is unnecessary for me to determine whether the proposed development can be regarded as low-medium rise as opined by Mr Perkins384 as the provision does not require the built form to be limited to low-medium rise. Rather, it records that the Sunshine Coast is a place with predominantly low-medium rise built form and otherwise requires the proposed development to recognise the distinctive character and amenity of the Sunshine Coast. I am satisfied 383 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 267. 384 Mr Perkins’ opinion on this point was formed following a detailed consideration of the Planning Scheme provisions with respect to low rise and medium rise built form. His opinion was unchallenged. It is compelling. -- 137 of 269 -- 138 that it does so for the reasons provided in paragraphs [184] to [264] above.”385 [435] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Strategic framework. [436] Paragraph [288] of my original reasons for judgment should now read: “I have already addressed why I do not accept the Appellants’ position with respect to such matters in [181] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment. For those reasons, I am satisfied that the proposed development will not cut across these strategic outcomes and that it complies with the specific outcomes that are intended to implement the strategic outcomes. It maintains the scenic landscape and inter-urban break currently provided by the vegetation along David Low Way in that it will retain a significant band of vegetation and supplement the buffer with additional plantings. As I have already noted in paragraphs [246] to [264] above of my original reasons for judgment, I am satisfied that the proposed development will protect the important views and vistas, even though it will exceed two storeys in height. I am satisfied that it provides a high standard of design that is sensitive to its local setting and enhances and reinforces the character of the local area for reasons provided in paragraphs [184] to [227] above of my original reasons for judgment. With respect to the question of compliance with s 3.8.3.1(d), it is unnecessary for me to determine whether the proposed development can be regarded as low- medium rise as opined by Mr Perkins386 as the provision does not require the built form to be limited to low-medium rise. Rather, it records that the Sunshine Coast is a place with predominantly low- medium rise built form and otherwise requires the proposed development to recognise the distinctive character and amenity of the Sunshine Coast. I am satisfied that it does so for the reasons provided in [184] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) [437] Paragraph [290] of my original reasons for judgment states: “The Appellants submit that the proposed development fails to comply with the Emerging community zone code in that it does not reflect the specific intent for the locality in the Coolum local plan code and it fails to respect the character of the locality. They also submit that the proposed development does not integrate with existing communities 385 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 269. 386 Mr Perkins’ opinion on this point was formed following a detailed consideration of the Planning Scheme provisions with respect to low rise and medium rise built form. His opinion was unchallenged. It is compelling. -- 138 of 269 -- 139 or produce a sense of character and community inclusion. I disagree for the reasons provided in paragraphs [180] to [264] above.”387 [438] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Emerging community zone code. [439] Paragraph [290] of my original reasons for judgment should now read: “The Appellants submit that the proposed development fails to comply with the Emerging community zone code in that it does not reflect the specific intent for the locality in the Coolum local plan code and it fails to respect the character of the locality. They also submit that the proposed development does not integrate with existing communities or produce a sense of character and community inclusion. I disagree for the reasons provided in [180] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) [440] Paragraph [306] of my original reasons for judgment states: “In support of their allegation of non-compliance, the Appellants submit that the expected residential density in the Emerging community zone is 20 dwellings per hectare. They again rely on Mr Adamson’s analysis of density in support of their submission. As I have already mentioned in paragraph [133] above, I do not accept Mr Adamson’s analysis. I am satisfied that the proposed development complies with this code for the reasons already provided in paragraphs [133] and [180] to [264] above.”388 [441] That paragraph forms part of my reasons where I address whether the design of the proposed development complies with the Multi-unit residential uses code. [442] Paragraph [306] of my original reasons for judgment should now read: “In support of their allegation of non-compliance, the Appellants submit that the expected residential density in the Emerging community zone is 20 dwellings per hectare. They again rely on Mr Adamson’s analysis of density in support of their submission. As I have already mentioned in paragraph [133] above of my original reasons for judgment, I do not accept Mr Adamson’s analysis. I am satisfied that the proposed development complies with this code for the reasons already provided in paragraphs [133] and [180] to [237] and [239] to [264] above of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) 387 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 269-70. 388 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 272. -- 139 of 269 -- 140 [443] Paragraph [395] of my original reasons for judgment states: “Section 3.7.1(f) is set out in paragraph [282] above. I refer to my observations in paragraphs [283] and [284] above about it. For the reasons provided in paragraphs [338] to [390] above, I am satisfied that the proposed development complies with the planning intent that the natural environment is protected and enhanced in a way that maintains and improves biodiversity, ecological processes, habitat and habitat connectivity.”389 [444] That paragraph forms part of my reasons where I address whether the proposed development complies with the environmental impact requirements of the Strategic framework. [445] Paragraph [395] of my original reasons for judgment should now read: “Section 3.7.1(f) is set out in paragraph [282] above of my original reasons for judgment. I refer to my observations in paragraphs [283] of my original reasons for judgment and [284] above paragraphs [431] to [433] of these reasons for judgment about it. For the reasons provided in paragraphs [338] to [390] above of my original reasons for judgment, I am satisfied that the proposed development complies with the planning intent that the natural environment is protected and enhanced in a way that maintains and improves biodiversity, ecological processes, habitat and habitat connectivity.” (additions underlined and deletions shown with strikethrough) [446] Paragraph [399] of my reasons for judgment states: “For the reasons provided in paragraphs [393] to [398] above, and the matters identified in paragraphs [338] to [390] above, I am satisfied that the proposed development complies with the environmental impact requirements of the Strategic framework with which the Appellants allege non-compliance.”390 [447] That paragraph forms part of my reasons where I address whether the proposed development complies with the environmental impact requirements of the Strategic framework. [448] Paragraph [399] of my reasons for judgment should now state: “For the reasons provided in paragraphs [393] to [394] and [396] to [398] above of my original reasons for judgment and paragraphs [443] to [445] of these reasons for judgment, and the matters identified in paragraphs [338] to [390] above of my original reasons for judgment, I am satisfied that the proposed development complies with the 389 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 291. 390 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 292. -- 140 of 269 -- 141 environmental impact requirements of the Strategic framework with which the Appellants allege non-compliance.” (additions underlined and deletions shown with strikethrough) [449] Paragraph [411] of my original reasons for judgment states: “The Appellants submit that regard should also be had to the Hyatt preliminary approval and the planning controls contained therein, as it is a development approval that overrides the Planning Scheme that is current for the subject land. I agree. I have addressed the relevance of it in paragraphs [517] to [524] below.”391 [450] That paragraph forms part of my reasons where I address whether the scale, bulk and nature of the proposed development exceed reasonable community expectations. [451] Paragraph [411] of my original reasons for judgment should now read: “The Appellants submit that regard should also be had to the Hyatt preliminary approval and the planning controls contained therein, as it is a development approval that overrides the Planning Scheme that is current for the subject land. I agree. I have addressed the relevance of it in paragraphs [517] to [523] of my original reasons for judgment [524] below and paragraphs [287] to [322] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) [452] Paragraph [448] of my original reasons for judgment states: “The evidence of the economist retained by the Appellants does not support their submission with respect to the Planning Scheme. Mr Brown acknowledged that having regard to the Planning Scheme, he would expect both an integrated tourist facility and residential development in the Yaroomba tourism focus area. In any event, I do not accept that the Planning Scheme indicates that the subject land is not appropriate for tourist development for reasons already explained in paragraphs [45] to [137] above.”392 [453] That paragraph forms part of my reasons where I address whether there is a need for the hotel component of the proposed development. [454] Paragraph [448] of my original reasons for judgment should now read: “The evidence of the economist retained by the Appellants does not support their submission with respect to the Planning Scheme. Mr Brown acknowledged that having regard to the Planning Scheme, he would expect both an integrated tourist facility and residential development in the Yaroomba tourism focus area. In any event, I do not accept that the Planning Scheme indicates that the subject land is 391 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 294. 392 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 302. -- 141 of 269 -- 142 not appropriate for tourist development for reasons already explained in paragraphs [45] to [83], [85] to [107], [109] to [116], and [118] to [136] of my original reasons for judgment [137] above and paragraphs [398] to [409] of these reasons for judgment.” (additions underlined and deletions shown with strikethrough) [455] Paragraph [456] of my original reasons for judgment states: “Having regard to the matters referred to in paragraphs [45] to [137] above (particularly the evidence referred to in paragraphs [49], [69] to [75], [81], [94] and [96] above), and those referred to in paragraphs [448] and [450] to [455] above, I am satisfied that there is a need for the hotel component of the proposed development. I am also satisfied that it is appropriate that such need is met by provision of the proposed development on the subject land given the land is identified as a tourism focus area where integrated tourist and residential development is expressly intended.”393 [456] That paragraph forms part of my reasons where I address whether there is a need for the hotel component of the proposed development. [457] Paragraph [456] of my original reasons for judgment should now read: “Having regard to the matters referred to in paragraphs [45] to [83], [85] to [107], [109] to [116], and [118] to [136] of my original reasons for judgment [137] above and paragraphs [398] to [409] of these reasons for judgment (particularly the evidence referred to in paragraphs [49], [69] to [75], [81], [94] and [96] above of my original reasons for judgment), and those referred to in paragraphs [448] [452] to [454] of these reasons for judgment and paragraphs [450] to [455] above of my original reasons for judgment, I am satisfied that there is a need for the hotel component of the proposed development. I am also satisfied that it is appropriate that such need is met by provision of the proposed development on the subject land given the land is identified as a tourism focus area where integrated tourist and residential development is expressly intended.” (additions underlined and deletions shown with strikethrough) [458] In addition: (a) footnotes 58 should now read: “See paragraphs [235] to [237] and [239] to [245] of my original reasons for judgment and paragraphs [413] to [415] of these reasons for judgment regarding the design of the proposed development” (additions underlined) 393 Development Watch Inc. & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 304. -- 142 of 269 -- 143 (b) footnote 119 should now read: “See paragraphs [45] to [136] [137] and [179] to [237], [239] to [266], [268], [270], [272] to [276], [279] to [283], [285] to [287], [289], [291] to [294], [296] to [300], [304], [305], [307] to [331] above of my original reasons for judgment and paragraphs [104] to [249], and [254] to [277], [407] and [409], and [413] to [442] of these reasons for judgment.” (additions underlined) [459] To be clear, in identifying the changes that should be made to my original reasons for judgment, I have not simply undertaken an administrative exercise. I have carefully turned my mind to the substance of the paragraphs to which reference is made, the purpose of the cross-reference and whether any substantive changes are required. -- 143 of 269 -- 144 Annexure D: Original reasons for judgment -- 144 of 269 -- PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25 PARTIES: DEVELOPMENT WATCH INC (First Appellant) SUNSHINE COAST ENVIRONMENT COUNCIL INC (Second Appellant) v SUNSHINE COAST REGIONAL COUNCIL (Respondent) And SH COOLUM PTY LTD (ACN 146 376 972) (Co-Respondent) FILE NO/S: D166/18 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 25 May 2020 DELIVERED AT: Brisbane HEARING DATE: 18 – 30 November and 2 – 6 December 2019 and further evidence received 19 March 2020 and 28 April 2020 and further written submissions received 17 March 2020, 23 and 26 March 2020 and 28 April 2020 JUDGE: Kefford DCJ ORDER: I order the Appeals be dismissed. The development application will be approved subject to conditions in due course. I further order: (a) by 4 pm on 8 June 2020, the Respondent is to deliver a draft Judgment attaching the conditions of approval to the other parties; and (b) the appeal is to be listed for review at 9 am on 15 June 2020 for the purpose of making final orders in the appeal. -- 145 of 269 -- Original reasons p 2 CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – submitter appeal against Council’s decision to approve a development application for a mixed use development – where development application sought preliminary approval for material change of use (request to change the effect of planning instruments) – where the development application sought development permits for reconfiguration of a lot and for material change of use – whether proposed development complies with relevant assessment benchmarks – whether proposed mix of land uses achieves the Planning Scheme’s intention for a tourism focus area – whether the proposed development would involve inappropriate commercial development PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where there are no unacceptable impacts in relation to setbacks, overshadowing, overlooking, overbearing or site cover – whether the proposed development is appropriately designed – whether there is an overdevelopment of the subject land reflected in the scale, height and intensity of the proposed development – whether development was of a bulk and scale compatible with the built form intent of the Emerging community zone code – whether the proposed development will have unacceptable impacts on the character and amenity of the area – whether development sensitively transitions to local setting and enhances the character of the area – whether the proposed development accords with reasonable community expectations PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where the proposed development is proximate a nesting beach for loggerhead turtles – whether the proposed development poses an unacceptable risk to the loggerhead turtle – whether the purpose of the Planning Act 2016 is achieved with respect to the risk to the loggerhead turtle – whether the precautionary principle warrants refusal PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – whether there are relevant matters that support refusal or approval – whether there is an economic, planning or community need for the proposed development – whether there is hotel, residential or retail need for the proposed development – whether the proposed development will provide economic benefits to the locality, region and State – whether the proposed development supports investment in the Sunshine Coast Airport – whether the Hyatt preliminary approval supports approval of the proposed development – whether the locational attributes of the subject land and the -- 146 of 269 -- Original reasons p 3 design response to it supports approval – whether the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018 – whether it is within the public interest for the proposed development to be approved LEGISLATION: Planning Act 2016 (Qld), s 45, s 59, s 60, s 85, s 311 Planning and Environment Court Act 2016 (Qld), s 10, s 43, s 45, s 47 Planning Regulation 2017 (Qld), s 31 CASES: Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, approved Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, approved Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, followed Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, cited Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, approved Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4, cited K & K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, considered Kangaroo Point Residents Association v Brisbane City Council & Anor [2014] QPEC 64, [2015] QPELR 203, approved K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; [2011] QPELR 406, approved Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46, approved -- 147 of 269 -- Original reasons p 4 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26; [2013] QPELR 557, approved The Purcell Family v Gold Coast City Council & Ors [2004] QPELR 521, approved United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, approved Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, followed COUNSEL: P Hack QC and A Skoien for the First Appellant C Hughes QC, M Batty and H Stephanos for the Respondent D Gore QC and J Houston for the Co-Respondent SOLICITORS: p&e Law for the First Appellant N McCarthy as agent for the Second Appellant Legal Services, Sunshine Coast Council for the Respondent Corrs Chambers Westgarth for the Co-Respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 7 The decision framework ....................................................................................................... 8 What is the nature of the proposed development? ............................................................. 10 What is the effect of the Yaroomba Beach Master Plan? ............................................... 11 What is proposed for Stage 1? ........................................................................................ 12 What is sought as part of the development permit for reconfiguration of a lot? ............ 13 What are the assessment benchmarks? ............................................................................... 13 What assessment benchmarks do the Appellants rely on to contend for refusal? .............. 14 Will the proposed land uses satisfactorily address the Planning Scheme’s intention for a tourism focus area? ............................................................................................................. 16 What are the tourist-oriented elements of the proposed development? .......................... 17 Does the proposed development comply with the applicable tourism focus provisions of the Strategic framework? ................................................................................................ 17 Does the proposed development comply with s 3.4.6.1? ................................................ 18 Is the proposed development in a tourism focus area? .................................................. 19 Is the proposed development consistent with the intended role of the Yaroomba tourism focus area?...................................................................................................................... 20 Is the proposed development otherwise worthy of consideration as a meritorious opportunity for tourism development?............................................................................ 23 -- 148 of 269 -- Original reasons p 5 Does the proposed development comply with other provisions of the Strategic framework relevant to the tourism focus area? .............................................................. 24 Conclusion regarding compliance with tourism focus provisions of the Strategic framework ....................................................................................................................... 26 Does the proposed development comply with the applicable tourism focus provisions of the Emerging community zone code? ............................................................................. 27 Does the proposed development comply with the applicable tourism focus provisions of the Coolum local plan code? ........................................................................................... 29 Conclusion regarding the appropriateness of the proposed land uses in the Yaroomba tourism focus area ........................................................................................................... 34 Will the proposed development involve inappropriate commercial development? ........... 36 Does the proposed development comply with the provisions of the Strategic framework that guide commercial development? ............................................................................. 36 Does the proposed development comply with applicable provisions of the Emerging community zone code that guide commercial development? ......................................... 39 Does the proposed development comply with the provisions of the Coolum local plan code that guide commercial development? ..................................................................... 39 Does the proposed development comply with the provisions of the Business uses centre design code?.................................................................................................................... 43 Conclusion regarding acceptability of the commercial development ............................. 44 Is the design of the proposed development appropriate? ................................................... 44 Does the design of the proposed development comply with the Coolum local plan code? ........................................................................................................................................ 45 Does the proposed development provide for a design that has an appropriate character? ....................................................................................................................... 49 Does the proposed development respect the scale of the surrounding area and vegetation? ...................................................................................................................... 61 Does the proposed development provide for an appropriate configuration of built form and landscaping? ............................................................................................................ 62 Does the proposed development provide for a design and siting that appropriately protects views and visual amenity? ................................................................................ 64 Conclusion regarding compliance with the Coolum local plan code............................. 69 Does the design of the proposed development comply with the Strategic framework? . 69 Does the design of the proposed development comply with the Emerging community zone code? ...................................................................................................................... 74 Does the design of the proposed development comply with the Height of buildings and structures overlay code? ................................................................................................. 75 Does the design of the proposed development comply with the Multi-unit residential uses code? ....................................................................................................................... 77 -- 149 of 269 -- Original reasons p 6 Does the design of the proposed development comply with the Transport and parking code? ............................................................................................................................... 77 Will the proposed development involve unacceptable traffic generation? ..................... 78 Does the proposed external roadworks militate against approval? ............................... 79 Does the proposed development provide sufficient car parks? ...................................... 81 Conclusion regarding compliance with the Transport and parking code ...................... 81 Conclusion regarding the acceptability of the design of the proposed development ..... 81 Will the proposed development pose an unacceptable risk to the loggerhead turtle? ........ 82 Does the proposed development comply with the Biodiversity, waterways and wetlands overlay code? .................................................................................................................. 82 What measures are proposed to address potential impacts on turtles? ......................... 84 Does the design of the proposed development and the proposed conditions and management plans satisfactorily address potential impacts on turtles? ........................ 87 Conclusion regarding compliance with the Biodiversity, waterways and wetlands overlay code .................................................................................................................... 97 Does the proposed development comply with the environmental impact requirements of the Strategic framework? ................................................................................................ 97 Does the proposed development comply with the environmental impact requirements of the Emerging community zone code?............................................................................. 98 Does the proposed development comply with the environmental impact requirements of the Coolum local plan code? ........................................................................................... 98 Conclusion regarding the risk the proposed development poses to the loggerhead turtle? ........................................................................................................................................ 99 What are the relevant matters relied on by the parties?...................................................... 99 Will there be an unacceptable traffic impact? .................................................................. 100 Will the scale, bulk and nature of the proposed development exceed reasonable community expectations? ................................................................................................. 100 Does the loss of submission rights for future stages support refusal of the proposed development?.................................................................................................................... 100 Does the extent of community opposition, and the substance of it, support refusal of the proposed development? .................................................................................................... 101 Will the proposed development advance the purpose of the Planning Act 2016 having regard to the risk to the loggerhead turtle? ....................................................................... 103 What is the precautionary principle? ............................................................................ 103 Does the precautionary principle warrant refusal? ....................................................... 106 Is the proposed development supported by an economic, planning or community need? 107 Is there a need for the hotel component of the proposed development?....................... 108 Is there a need for the residential component of the proposed development? .............. 110 Is there a need for the retail component of the proposed development? ...................... 115 -- 150 of 269 -- Original reasons p 7 Conclusion regarding need ........................................................................................... 116 Will the proposed development provide economic benefits to the locality, region and State that support its approval? ................................................................................................. 116 Will the proposed development increase tourism and economic activity in the locality and the region that supports the investment in the Sunshine Coast Airport? .......................... 119 Can the proposed development be provided without any unacceptable impacts? ........... 120 Does the Hyatt preliminary approval support an approval of the proposed development? .......................................................................................................................................... 120 Do the locational attributes of the subject land and the design response to it support approval? .......................................................................................................................... 121 Is the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018? .......................................................................................................................................... 123 Is it within the public interest for the proposed development to be approved? ................ 124 Conclusion ........................................................................................................................ 125 Introduction [1] Approximately eight kilometres north of the Sunshine Coast Airport, between the coastal townships of Coolum and Marcoola, there is a vacant parcel of land of approximately 18.5 hectares (“the subject land”). It is located between Yaroomba Beach and David Low Way. In the past the subject land was used as part of the Hyatt Coolum Resort facilities, including as part of the golf course. The private resort facilities associated with the Hyatt Coolum Resort have since been demolished, but two waterbodies associated with the golf course remain. [2] The land adjoins the privately owned Yaroomba parabolic dune to the north, and the beach and Marcoola Yaroomba Conservation Reserve to the east. To the south is a gated, low-density beachside residential community title development known as “Coolum Beachside”. David Low Way separates the subject land from the Palmer Coolum Resort. Although the golf course associated with the Palmer Coolum Resort remains operational, the resort otherwise lies abandoned since its closure in approximately 2015. It has fallen into a state of disrepair. [3] The subject land has a history of planning approvals dating back to the 1980s when it was part of the original Coolum Hyatt resort development and golf course. In February 2007, Sunshine Coast Regional Council (“the Council”) issued a preliminary approval to vary the effect of the then-current planning scheme (Maroochy Plan 2000) to establish the “Coolum Hyatt Integrated Resort and Residential Community” (“the Hyatt preliminary approval”). That approval has been implemented in part and remains current. It anticipates development of the subject land for a mix of dwelling types, including multiple dwellings, detached houses and duplexes, as well as retail and commercial uses up to a maximum of 500 square metres. [4] SH Coolum Pty Ltd (“SHC”) owns the subject land and wants to develop it in a number of stages. In the first stage, SHC wants to develop a five-star resort complex. It is proposed to contain a 220-room hotel, approximately 1 000 square metres of -- 151 of 269 -- Original reasons p 8 conference and meeting space394 and about 133 multiple dwellings (provided as serviced apartments for permanent and temporary accommodation). These uses are proposed to be located across a series of buildings between five and seven storeys in height. In association with the resort, and as part of Stage 1, SHC seeks approval for 2 770 square metres of commercial space (but with no tenant exceeding 300 square metres), an educational establishment, a community use (being Surf Life Saving Queensland amenities), parklands, coastal pathway, boardwalks, public car parking, and a utility installation. [5] SHC also seeks to reconfigure the existing ten lots into 13 lots. [6] SHC has not designed Stages 2 to 5 in detail. Instead, with respect to those stages, it seeks approval to vary the effect of the Sunshine Coast Planning Scheme 2014 (“the Planning Scheme”). This is to obviate the need for public notification of future development applications that seek approval to develop the balance land for a mix of residential dwellings, including houses and dual occupancy dwellings at two storeys, and multiple dwelling units in buildings up to four storeys in height. [7] SHC’s development application underwent two rounds of public notification, during which it attracted considerable interest from the local community. Over 11 000 submissions were received, a large portion of which were opposed to the development. [8] The Council approved the application and two community organisation submitters, Development Watch Inc and Sunshine Coast Environment Council Inc, each appealed the decision.395 In broad terms, the Appellants oppose the development on the basis that it will have an unacceptable impact on the loggerhead turtles that nest on Yaroomba Beach, it will have unacceptable impacts on visual and scenic amenity and views, it involves an overdevelopment of the land, and it involves an inappropriate mix of uses. [9] The issue for me to determine is whether SHC’s application should be approved or refused. The decision framework [10] The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies to the appeal.396 In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the court considers appropriate.397 394 The plans show an interior area of 1 009 square metres and additional external areas as exhibition or marquee function area and function lawn. Condition 81 of the Council’s decision notice required a minimum of 1 000 square metres for the conference or banqueting floor area. SHC did not dispute the imposition of the condition. 395 The appeals were consolidated into a single appeal. 396 The appeal against the Council’s decision to approve SHC’s application was filed after the commencement of the Planning Act 2016. As such, even though SHC’s application was made under the Sustainable Planning Act 2009, the applicable regime is that in the Planning Act 2016. See s 311 of the Planning Act 2016 and Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, [16]–[89]. 397 Planning and Environment Court Act 2016 (Qld), s 47. -- 152 of 269 -- Original reasons p 9 [11] The appeal proceeds by way of hearing anew.398 SHC bears the onus.399 [12] SHC seeks a number of different types of approval to implement its proposed development, namely: (a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan Preliminary Approval Document (“Yaroomba Beach Master Plan”); (b) a development permit for a material change of use to authorise those uses proposed for Stage 1; and (c) a development permit for reconfiguration of ten lots into 13 lots. [13] There is a broad discretion in determining the appeals.400 The exercise of the discretion must be based on an assessment that:401 (a) must be carried out: (i) against the assessment benchmarks in the Planning Scheme to the extent relevant;402 (ii) having regard to, relevantly, the South East Queensland Regional Plan and any development approval for, and any lawful use of, the premises or adjacent premises. In this case, this includes the Hyatt preliminary approval;403 (b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise); and (c) may give the weight the Court considers appropriate to any amendments to the Planning Scheme. (While there were amendments to the Planning Scheme following the lodgement of the development application, the Appellants did not allege any non-compliance with later versions of the Planning Scheme.404) [14] As the application also seeks to vary the effect of the Planning Scheme, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.405 [15] The exercise of that discretion must be based on an assessment that considers:406 (a) the result of the assessment of that part of the application that sought a preliminary approval for a material change of use; 398 Planning and Environment Court Act 2016, s 43. 399 Planning and Environment Court Act 2016, s 45. 400 Planning and Environment Court Act 2016, s 47; Planning Act 2016, s 60(3). 401 Planning Act 2016, s 59 and s 45(5). 402 Version 8 of the Sunshine Coast Planning Scheme 2014 was the categorising instrument for the development in effect when SHC’s application was properly made. Any reference to the Planning Scheme is a reference to version 8 unless expressly stated otherwise or unless otherwise apparent from the context. 403 See s 31(1)(f) of the Planning Regulation 2016 (Qld). 404 Later versions of the Planning Scheme are only raised as “contextual provisions”. 405 Planning Act 2016, s 61(3). 406 Planning Act 2016, s 61(2). -- 153 of 269 -- Original reasons p 10 (b) the consistency of the variations sought with the rest of the Planning Scheme; (c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and (d) any other matter prescribed by regulation. [16] His Honour Judge Williamson QC comprehensively, and in my view correctly, analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council.407 I have also further considered the approach in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.408 All of the parties contend that the approach referred to in those judgments is the correct one. What is the nature of the proposed development? [17] As I have mentioned in paragraph [12] above, SHC seeks: (a) a preliminary approval for a material change of use that varies the effect of the Planning Scheme in the manner detailed in the Yaroomba Beach Master Plan;409 (b) a development permit for a material change of use to authorise those uses proposed for Stage 1; and (c) a development permit for reconfiguration of ten lots into 13 lots. [18] The development is proposed to be developed over a period of six to ten years.410 [19] SHC and the Council propose that any approval be conditioned to comply with an Infrastructure Agreement dated 29 June 2018. That agreement requires SHC to provide infrastructure contributions identified in the Infrastructure Contributions Schedule. The identified contributions benefit the proposed development’s local community and the Sunshine Coast Region generally. They include land and works contributions for roads, pedestrian and cycle access and public car parking, and financial contributions for road improvements and other improvements to the Mount Coolum public amenities and car park. 407 [2019] QPEC 16; [2019] QPELR 793, [35]-[86]. 408 [2019] QPEC 46, [12]-[22]. 409 This is now known as a variation approval under the Planning Act 2016. That part of the application that seeks the preliminary approval to vary the effect of the planning scheme is referred to in the Planning Act 2016 as a variation request. 410 The currency period under s 85 of the Planning Act 2016 is six years from when the development approval takes effect. Condition 18 of the decision notice stipulates a sunset clause. It states that if development, or an aspect of development to which the approval relates is started but not completed, the preliminary approval, to the extent it relates to the development or aspect not completed, lapses if the Sunshine Coast Planning Scheme 2014 is amended to reflect the provisions of the preliminary approval, or otherwise at the end of ten years starting on the day the preliminary approval takes effect. -- 154 of 269 -- Original reasons p 11 What is the effect of the Yaroomba Beach Master Plan? [20] The Yaroomba Beach Master Plan includes a map that identifies the area the subject of the preliminary approval. It is described as the Yaroomba Beach Local Plan Precinct. That area contains individual sub-precincts – Yaroomba Beach North, Yaroomba Beach Central, Yaroomba Beach South, Lakeside North and Lakeside South. [21] The Yaroomba Beach Master Plan would vary the effect of the Planning Scheme by: (a) the Table in s 6.1, which identifies variations to categories of development and categories of assessment for a material change of use for a defined use specified in the Planning Scheme in Table 5.5.17 (Emerging Community Zone) for each sub-precinct; (b) the Table in s 6.2, which identifies variations to the categories of development and categories of assessment for reconfiguration of a lot specified in the Planning Scheme in Table 5.61 (Reconfiguration of a Lot); (c) the Addendum to the Coolum local plan code (Yaroomba Beach), which effectively replaces the purpose and overall outcomes and the performance outcomes and acceptable outcomes for the Coolum local plan code; and (d) the Addendum to the Height of Buildings and Structures Overlay Map OVMIIH, which effectively replaces Map OVMIIH in the Planning Scheme with Map 3. [22] The Yaroomba Beach Master Plan sets the development intensity for the subject land across all stages. It provides for a maximum residential development density of a 220-room hotel and 740 equivalent dwellings. There is a table and plan of residential density for each precinct to ensure the distribution of the proposed density across the subject land. Aside from the units in the serviced apartment building, this density is intended to provide for approximately 537 apartments and 71 townhouses across the future stages of development, subject to the grant of further development permits. [23] The commercial and retail uses (bar, food and drink outlet, office, shop and shopping centre) are limited to tenancies not exceeding 300 square metres. The aggregate gross floor area of the village centre is not to exceed 2 770 square metres. [24] The Yaroomba Beach Master Plan sets maximum building heights for future dwellings. It provides for buildings with a maximum height of four storeys towards the centre of the subject land, stepping down to three storeys at the western edge of the subject land, and two storeys at the southern edge (adjacent to the existing residential development). Otherwise, the design parameters of the Planning Scheme remain applicable to future development. This includes requirements in the existing applicable Planning Scheme codes for any future proposed development type that regulate the setbacks, site cover, landscaping, parking and communal or private open space requirements. -- 155 of 269 -- Original reasons p 12 [25] The Yaroomba Beach Master Plan is also to include an incorporated green space masterplan.411 The green space masterplan will require regular green breaks and identify vegetation to be protected. [26] The proposed development will deliver a significant amount of open space. There will be a total of 46 507 square metres of publicly accessible open space. This equates to 25 per cent of the subject land. Of that open space, a total of 17 741 square metres, or 9.6 per cent of the subject land, will be retained vegetation. [27] An access and mobility plan shows the proposed public and private pedestrian, cycle and vehicular routes. Access to the proposed development will be gained from David Low Way at only two points. The main entry will be via a new roundabout and there will be a secondary access further to the north. The majority of car parking will be provided underground, but there will be over 105 public parking spaces at grade for beach access. Further at grade car parking will be provided at the northern end of the main entry road and at the eastern boundary (in the order of 28 spaces and 33 spaces respectively). [28] The proposed development will be connected (both within and beyond the subject land) by a comprehensive arrangement of pedestrian pathways and roadways in a low speed environment. They will be designed to encourage walkability and a highly pedestrianised environment. The pathways will connect to the existing coastal walkway. [29] The proposed development also includes the provision of a new public beach access, a lifeguard tower, and various other infrastructure components. What is proposed for Stage 1? [30] Stage 1 comprises a resort complex, multiple dwellings, short-term accommodation, a shopping centre, education establishment, community use and utility installation. [31] The resort complex will include a 220-room hotel. It is proposed that the hotel be conditioned to be operated as a “5-star or higher luxury hotel”. Starwood Australia Hotels Pty Ltd (a division of Marriott Hotels) has expressed interest in being the operator of the hotel and to operate it as a “Westin” resort. There will be extensive function and conference facilities, which are intended to serve the growing business traveller and “MICE” (meetings, incentives, conferences and events) market. In addition, the resort will contain two restaurants and a lobby bar; a day spa, kid’s club, and gym; pool (including a kid’s pool, spa and recreation area); retail and commercial spaces within the resort complex; and a rooftop bar on the seventh storey. [32] Stage 1 will also include a serviced apartment building containing short-term accommodation and multiple dwellings totalling 132 units. The western end of the serviced apartment block of units are “dual key” units, with a limited number of “triple key” units also provided at the far western end of each level. The dual and triple key units have very limited kitchen facilities and will be used exclusively for short-term accommodation. The eastern end of the serviced apartment block contains larger format units that may be used for either short-term or long-term accommodation. 411 The Council’s decision notice required this amendment to the Yaroomba Beach Village and International Resort prepared by Project Urban (Exhibit 109). SHC accepts this requirement. -- 156 of 269 -- Original reasons p 13 [33] A separate building will contain a shopping centre with a maximum gross floor area of 2 770 square metres. It will be comprised of individual shop tenancies that must not exceed a gross floor area of 300 square metres. The centre is intended to accommodate a tenancy mix typical of an integrated tourist and residential precinct. [34] An educational establishment, with an area of 327 square metres, will be used for providing information on the ecological surrounds and the indigenous history of the subject land and the locality. There will be community uses in the form of Surf Life Saving Queensland amenities, and a utility installation use (being a waste transfer station). What is sought as part of the development permit for reconfiguration of a lot? [35] SHC seeks a development permit to reconfigure the existing ten lots into 13 lots and an access easement. There are two commercial lots, three park and car park lots, two buffer lots, one lot for the transfer station, two access lots, one principal body corporate lot, two balance management lots and one access easement. What are the assessment benchmarks? [36] Many integers can inform the combination of assessment benchmarks that apply to any particular proposed development. The Sunshine Coast Planning Scheme, like many others that apply throughout Queensland, is a voluminous document. It comprises numerous components, including a strategic framework, zones and precincts (with associated zone codes), local plans (with associated local plan codes), mapping overlays and overlay codes, and use and other development codes. Each of these components contains provisions that may form part of the assessment benchmarks for a particular development application and inform the assessment. [37] Here, the Strategic framework sets the policy direction for the Planning Scheme area. It forms the basis for ensuring appropriate development occurs within the Planning Scheme area for the life of the Planning Scheme.412 For the purpose of articulating the policy direction, the Strategic framework identifies a strategic intent, eight “themes” to achieve the strategic intent and specifies strategic outcomes sought for development in the Planning Scheme area for each theme. A list of key concepts is provided at the beginning of each theme to summarise the overarching principles expressed in the theme. Those parts of the Strategic framework are not framed in a manner that directly regulates development. Rather, they assist in identifying the rationale for, and the importance of, the various planning strategies that underpin the provisions that regulate development. Although each theme has its own section, the Strategic framework is to be read in its entirety as the policy direction for the Planning Scheme. The Strategic framework also identifies “elements” that refine and further describe the strategic outcomes and stipulates the specific outcomes sought for the elements.413 The elements, specific outcomes and Strategic framework maps form the implementation framework for the Strategic framework.414 [38] The policy direction in the Strategic framework is supported, at a finer grained level, by other parts of the Planning Scheme. The zones and precincts (and the associated zone codes) organise the Planning Scheme in a way that facilitates the location of 412 See s 3.1(1) of the Planning Scheme. 413 See s 3.1(2) of the Planning Scheme. 414 See note to s 3.1 of the Planning Scheme. -- 157 of 269 -- Original reasons p 14 compatible land uses.415 The local plans (and associated local plan codes) organise the Planning Scheme area at the local level and provide more detailed planning for the zones.416 The mapping overlays and overlay codes identify areas in the Planning Scheme that reflect State and local level interests and have a particular characteristic, such as a particular sensitivity to the effect of development.417 The use and other development codes apply to an assessment of development if identified as an applicable code in the table of assessment in the Planning Scheme.418 [39] In this case, the subject land is mapped on Strategic Framework Map SFM 2 Economic Development Elements as part of the Urban area. Zone Map ZM 11 maps the area as within the Emerging community zone and the Urban Grown Management Boundary.419 The Coolum local plan area is mapped on Local Plan Map LPM 11. The subject land is part of “Precinct LPP-1 Palmer Coolum Resort and the Coolum Residences”. It is also subject to a number of overlays that apply to varying degrees. The subject land is in the Native Vegetation Area and Wetlands and Constructed Waterbodies Areas on the Biodiversity, Waterways and Wetlands Overlay Maps and in the Coastal Protection Area on the Coastal Protection Overlay Map. It is within the area subject to the 8.5 metre maximum height of buildings and structures on the Height of Building and Structures Overlay Map. A note on that map records that “In certain circumstances pre-existing development approvals may override the operation of an overlay”. [40] Each of the proposed uses and the proposed reconfiguration of a lot is impact assessable. It is to be assessed against the entire Planning Scheme, to the extent relevant. What assessment benchmarks do the Appellants rely on to contend for refusal? [41] The Appellants rely on allegations of non-compliance with an imposing list of provisions of the Planning Scheme to contend for refusal.420 On a number of occasions during the hearing, the other parties noted the extensive nature of the list of provisions and queried whether the list, in truth, reflected the real issues in dispute.421 By the end of the hearing, compliance with 63 provisions of the Planning Scheme remained in issue. They are:422 (a) s 3.2.4, s 3.3.1(a), (i) and (m), s 3.3.2.1(a)(i), (ii), (iii) and (iv), s 3.3.3.1(d)(v), s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.2.1(b)(i), s 3.4.2.1(c)(v), s 3.4.3.1(c), s 3.4.6.1(c), (e)(ii) and (e)(v), s 3.5.1(d) and (i), s 3.7(4), s 3.7.1(f), s 3.7.2.1(a) and (b), s 3.8.1(d), (g) and (h), s 3.8.2.1(c) and (g), and s 3.8.3.1(c) and (d) of the Strategic framework; (b) the purpose in s 6.2.17.2(1)(a), (c) and (d) and overall outcomes (2)(c)(i), (v), (vi) and (viii) of the Emerging community zone code; 415 Section 6.1 of the Planning Scheme. 416 Section 7.1 of the Planning Scheme. 417 Section 8.1 of the Planning Scheme. 418 Section 9.1 of the Planning Scheme. 419 Save for a small area in the southeast part of the subject land, which is in the Low density residential zone. 420 Unless otherwise specified, the allegations and submissions attributed to the Appellants reflect allegations and submissions by the First Appellant. The Second Appellant adopted each of them. 421 See, for example, T1-14 – T1-18 and T7-111 – 7-114. 422 The provisions relied on can be identified by reference to Exhibit 28G. -- 158 of 269 -- Original reasons p 15 (c) overall outcomes (2)(a), (c), (j) and (k), and performance outcomes PO1, PO2, PO3 and PO16 of the Coolum local plan code; (d) the purpose in s 8.2.3.2(1)(a), overall outcomes (2)(a), (b), (c) and (d) and performance outcomes PO2 and PO4 of the Biodiversity, waterways and wetlands overlay code; (e) the purpose in s 8.2.8.2(1), overall outcomes (2)(a) and (b) and performance outcome PO1 of the Height of buildings and structures overlay code; (f) the purpose in s 9.3.1.2(1)(a), overall outcome (2)(a) and performance outcome PO1 of the Business uses centre design code; (g) the purpose in s 9.3.11.2(1), overall outcome (2)(b) and performance outcome PO6 of the Multi-unit residential uses code; and (h) overall outcome (2)(c) of the Transport and parking code. [42] The Appellants rely on additional provisions for context, including provisions from version 18 of the Planning Scheme. [43] SHC and the Council join issue with the Appellants’ allegations of non-compliance. They each contend that the outcome of the case will turn on only a handful of provisions. In opening the case for SHC, Mr Gore QC identified those provisions that SHC regard as the key provisions. Mr Gore QC gave examples of provisions that SHC says are self-evidently irrelevant or marginal.423 At the end of the trial, the written submissions provided by SHC and the Council also explained why each of those parties regarded many of the provisions relied on by the Appellants to be irrelevant or marginal. The Appellants did not provide any meaningful response to those submissions. In addition, on many occasions throughout the hearing I asked Mr Hack QC and Mr Skoien to explain the basis on which they allege non- compliance. This was generally to no avail. Despite the opening and submissions of the other parties, and the Appellants inability to explain the basis of the alleged non- compliances, the Appellants did not take up the invitation of the other parties to consider their position and notify any provisions that they no longer wished to pursue. Instead, the Appellants maintain allegations of non-compliance with an exhausting list of provisions.424 Although each of the allegations is addressed below, it is convenient for me to deal with them by reference to the topics that they raise. 423 See T1-18 – T1-24. 424 I directed that the written submissions provided by each party address all matters of statutory interpretation that the party seeks to raise in relation to the proper construction of each provision of the Planning Scheme with which the Appellants allege non-compliance and any other matter of statutory interpretation relied on. I also directed that the written submissions provided by each party address the evidence relied on in relation to each assertion made in the submissions. I informed the parties that they should prepare the written submissions on the understanding that they would be their only opportunity to refer to the evidence they relied on. The parties indicated that there was sufficient time allowed in the timetable to prepare written submissions on that basis. The written submissions provided by SHC and the Council complied with the direction. The written submissions prepared by Mr Hughes QC, Mr Batty and Ms Stephanos on behalf of the Council were particularly helpful. Although I do not accept them in all respects, the written submissions addressed every alleged issue of non-compliance and all of the contentious evidence. Where there was material disagreement between experts, their submissions addressed why the Council says I should prefer the evidence they ask the court to rely on in preference to the other evidence. Despite being delivered late, the written submissions provided by each of the Appellants did not comply with my directions. In many respects, the written submissions by the First Appellant contained no more than bare assertions. Although the -- 159 of 269 -- Original reasons p 16 [44] The assessment benchmarks call for consideration of four issues. 1. Will the proposed uses of the subject land satisfactorily address the Planning Scheme’s intention for a tourism focus area? 2. Will the proposed development involve inappropriate commercial development? 3. Is the design of the proposed development appropriate? 4. Will the proposed development pose an unacceptable risk to the loggerhead turtle?425 Will the proposed land uses satisfactorily address the Planning Scheme’s intention for a tourism focus area? [45] The Appellants allege that the uses proposed as part of the proposed development do not satisfactorily address the Planning Scheme’s intention for a tourism focus area in the vicinity of the subject land. They say the intention for tourist development in the area is for continuation and protection of the existing Coolum Resort on the western side of David Low Way and continuation of residential development (with the potential for visitor accommodation) on the eastern side of David Low Way. [46] Another issue that the Appellants put in dispute is whether the proposed development will achieve an appropriate mix of residential and tourist-oriented development. Their written submissions do not clarify their position with respect to this allegation. However, in oral submissions they confirmed that the Council’s understanding of their contentions, as outlined in the Council’s written submissions, was correct. The Appellants contend: (a) that the tourist-oriented components of the proposed development are not intended to be provided on the subject land because only residential development consistent with the Coolum Residences is intended for the subject land; and (b) the extent of residential development is excessive, resulting in an inappropriate mix of tourist-oriented and residential development. [47] During final submissions, Mr Hack QC explained that the First Appellant’s allegations regarding the inappropriate mix of residential and tourist-oriented development reflects its position with respect to the intentions of the Yaroomba tourism focus area. It is therefore convenient to consider this issue, and the assessment benchmarks relied on in support of it, as part of the question of compliance with the intent for the Yaroomba tourism focus area. written submissions by the Second Appellant did not comply, Ms McCarthy did an admirable job for a non-legally trained individual. Her submissions allowed me to easily appreciate the Second Appellant’s position and, importantly, the evidence it relied on in support of its position. 425 Although Exhibit 28D identified seven questions for consideration as part of the assessment against the Planning Scheme, the issues they raise for consideration overlap. They are more conveniently dealt with by considering these four issues. Question 1 will address those issues raised in paragraph 1 and part of the contentions from paragraph 4 of Exhibit 28D. Question 2 will address the issue raised in paragraph 5 of Exhibit 28D. Question 3 will address those issues raised in paragraphs 2, 3, 4 (in part) and 5 of Exhibit 28D. Question 4 will address the issue raised in paragraph 7 of Exhibit 28D. -- 160 of 269 -- Original reasons p 17 [48] The Appellants say their contentions are supported by the assessment benchmarks in the Planning Scheme, in particular: (a) s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.2.1(c)(v), and s 3.4.6.1(c) and (e)(ii) and (v) of the Strategic framework; (b) the purpose in s 6.2.17.2(1)(c) and overall outcomes (2)(c)(i) and (v) of the Emerging community zone code; and (c) overall outcomes (2)(a) and (j) and performance outcome PO16 of the Coolum local plan code. What are the tourist-oriented elements of the proposed development? [49] As I have already noted above, the proposed development includes a range of tourist- oriented elements. The resort complex will include a 220-room hotel that will be operated as a “5-star or higher luxury hotel”. In addition to the hotel, the tourist- oriented elements include: (a) the serviced apartments, which include short-term accommodation; (b) conference and seminar facilities designed to attract the meetings, incentives, conferences and events market; (c) food catering premises (i.e. restaurants and food and drink outlets); (d) retail facilities, which the economic experts agree will be convenient to and will attract onsite tourist spending, as well as attracting tourists and visitors from surrounding areas; (e) public and common area parklands; (f) significantly improved beach access, including well in excess of 100 public car parking spaces for public use and lawful vehicular access; (g) surf lifesaving amenities to improve tourists’ and residents’ use of the beach; (h) an educational centre providing information on the ecological surrounds and indigenous history of the subject land and locality more broadly. [50] The resort complex and the associated benefits will be developed alongside a range of residential accommodation, including approximately 608 equivalent dwellings. Does the proposed development comply with the applicable tourism focus provisions of the Strategic framework? [51] The key provisions of the Strategic framework regulating tourism development and development in tourism focus areas are in s 3.4.6.1 of the Strategic framework. It contains the specific outcomes for Element 5 – Tourism and tourism focus areas of -- 161 of 269 -- Original reasons p 18 the Economic development theme. As such, it is helpful to first consider the Appellants’ allegations of non-compliance with s 3.4.6.1(c) and (e)(ii) and (v). Does the proposed development comply with s 3.4.6.1? [52] Section 3.4.6.1 of the Strategic framework states: “3.4.6. Element 5 – Tourism and tourism focus areas 3.4.6.1 Specific outcomes (a) To support the preferred pattern of settlement, development provides for tourist oriented activities and services to be concentrated within the tourism focus areas identified conceptually on Strategic Framework Map SFM 2 (Economic development elements) and described in further detail in Table 3.4.6.1 (Tourism focus areas). (b) Tourism, sports, major events and leisure activities provide unique experiences and products in well planned and serviced locations. (c) Tourism focus areas provide for a range of visitor accommodation and tourist services consistent with the intended role of the respective tourism focus area with a particular emphasis on those uses that are well suited to and compatible with existing tourism development. (d) New tourist attractions cluster in designated tourism focus areas in a manner consistent with the intended role of the particular tourism focus area. (e) Other opportunities for tourism development may be considered by Council on their merits where such development: - (i) provides regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities; (ii) does not incorporate a range or scale of uses and activities which would compromise the Sunshine Coast Activity Centre Network; (iii) is located on or with direct access to a major road; (iv) provides all of the necessary infrastructure for the development; (v) is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity; and (vi) would enhance the Sunshine Coast’s tourism brand and reputation. (f) A tourism activity is undertaken on a sustainable basis that protects and capitalises upon the natural values and key lifestyle attributes of the Sunshine Coast.” (emphasis added) [53] The issue of compliance with specific outcomes in s 3.4.6.1(c) and (e)(ii) and (v) calls for consideration of three questions. 1. Is the proposed development in a tourism focus area? 2. Is the proposed development consistent with the intended role of the Yaroomba tourism focus area? -- 162 of 269 -- Original reasons p 19 3. If the proposed development is not consistent with the intended role of the Yaroomba tourism focus area, is it otherwise worthy of consideration as a meritorious opportunity for tourism development? Is the proposed development in a tourism focus area? [54] Strategic Framework Map SFM 2 (Economic development elements) identifies tourism focus areas by a green star. The map contains a green star west of David Low Way in about the location of the Palmer Coolum Resort. The notation “Yaroomba (Palmer Coolum and Sekisui House Beachside)” appears immediately under the star. The map is at an approximate scale of 1:120 000 if produced at A1 size. A note on the map records: “This Strategic Framework map graphically represents elements of the Economic Development theme at a conceptual level and is not intended to be interrogated at the cadastre level.” [55] Table 3.4.6.1 is in the following terms: Table 3.4.6.1 Tourism focus areas Tourism focus areas Location Coastal tourism focus areas Areas within the coastal urban area accommodating a concentration of visitor accommodation and related tourism services. (i) Alexandra Headland; (ii) Bokarina Beach; (iii) Bulcock Beach and Kings Beach; (iv) Coolum Beach; (v) Cotton Tree and Maroochydore; (vi) Golden Beach; (vii) Marcoola/Mudjimba; (viii) Mooloolaba; (ix) Twin Waters; and (x) Yaroomba (Palmer Coolum Resort and Sekisui House Beachside). Nature and hinterland tourism focus areas Areas with a primary emphasis on nature and hinterland/rural based tourism experiences and accommodating low impact visitor accommodation and related tourism services. (i) Blackall Range (including Maleny and Montville); (ii) Beerwah (along Steve Irwan Way in the vicinity of Australia Zoo or other existing activity nodes); (iii) Eumundi; (iv) Glass House Mountains; (v) Mary Valley (including Kenilworth); and (vi) Pumicestone Passage. Man-made tourism focus areas Areas with a primary emphasis on accommodating major man-made tourist attractions and facilities. (i) Beerwah (Australia Zoo) (ii) Bli Bli (Sunshine Castle/Go Wake); (iii) Palmview (Aussie World); -- 163 of 269 -- Original reasons p 20 (iv) Yandina (Ginger Factory); and (v) Woombye (Big Pineapple). [56] It is common ground between the parties that the reference to the Palmer Coolum Resort is to be read as a reference to the Coolum Resort. It is also common ground that the reference to “Sekisui House Beachside” is a reference to existing residential development to the east of David Low Way and to the south of the subject land that is in the Emerging community zone. That area was developed under the Hyatt preliminary approval. All of the parties agree that the Yaroomba tourism focus area includes the subject land. The Appellants say that the description of the Yaroomba tourism focus area indicates a planning intent that the subject land be developed for residential development. That is a contentious issue. [57] There is no dispute that the coastal tourism focus area described in paragraph (x) of Table 3.4.6.1 is coincident with the Emerging community zone on Zone Map ZM11 and Precinct COL LPP-1, Palmer Coolum Resort and The Coolum Residences on Local Plan Map LPM11. [58] Having regard to the Planning Scheme maps and the provisions of the Planning Scheme referred to in these reasons, I am satisfied that the subject land is within the Yaroomba tourism focus area. Is the proposed development consistent with the intended role of the Yaroomba tourism focus area? [59] Section 3.4.6.1(c) contains two requirements. First, tourism focus areas are to provide for a range of visitor accommodation and tourist services consistent with the intended role of the respective tourism focus area. Second, there is to be a particular emphasis on those uses that are well suited to and compatible with existing tourism development. [60] With respect to the first requirement, the First Appellant says the intended role of the Yaroomba tourism focus area is that identified in the purpose statement, overall outcome (2)(j) and performance outcome PO16 of the Coolum local area plan.426 On the Appellants’ case, only the Palmer Coolum Resort is intended to satisfy the “tourism” aspect of this particular tourism focus area. They say all of the land east of David Low Way is intended to be developed for a residential use only. The Appellants do not explain the basis for their submission. They do not identify those features of the Planning Scheme that they say support such a construction, nor do they identify the evidence on which they rely to support their submission. [61] Mr Adamson, the town planner retained by the Appellants, expressed an opinion consistent with the position adopted by the Appellants. The basis of Mr Adamson’s opinion is not clear. He notes that the tourism focus area symbol is to the west of David Low Way, coincident with the Palmer Coolum Resort. However, the location of the symbol on the map does not appear to inform Mr Adamson’s opinion that the subject land is only to be developed for residential development given he accepts that the subject land is designated a tourism focus area under the Strategic framework. Mr Adamson’s opinion appears to be founded only on the fact that the Planning Scheme used a description for the tourism focus area that referenced the existing (or 426 The First Appellant’s position was clarified on day 10 of the hearing. -- 164 of 269 -- Original reasons p 21 perhaps approved) uses. Mr Adamson does not explain why the words “Sekisui House Beachside” should be construed as limiting use of that part of the tourism focus area east of David Low Way to residential accommodation only. He does not explain how his approach can be reconciled with his acceptance that the subject land is part of the identified coastal tourism focus area, which is intended to accommodate “a concentration of visitor accommodation and related tourism services.” The Appellants’ submissions also provide no clarity about these matters. [62] I do not accept the Appellants’ construction of the intended role of the Yaroomba tourism focus area. Both s 3.4.6.1(c) and s 3.4.6.1(d) refer to “the intended role” of a tourism focus area. The specific outcomes in s 3.4.6.1 are immediately followed by Table 3.4.6.1. The table has two functions. It identifies the location of each tourism focus area for the purpose of s 3.4.6.1(a). It also groups those tourism focus areas into three broad categories – coastal, nature and hinterland, and man-made – and outlines the intended role of each category of tourism focus area. [63] This construction sits comfortably with other provisions of the Planning Scheme that deal with tourism focus areas.427 There are two additional features of the Planning Scheme that support such a construction. First, the division of tourism focus areas into the three broad categories has no other apparent function in the Planning Scheme: the Planning Scheme does not otherwise make reference to coastal tourism focus areas, nature and hinterland tourism focus areas, or man-made tourism focus areas. Second, other elements in the Economic development theme of the strategic framework utilise a similar drafting style. For example, s 3.4.3.1 contains specific outcomes for Element 2 – Sunshine Coast activity centre network. Those specific outcomes include a requirement for development to be commensurate with the role and function of the activity centre as specified in the activity centre network. They are immediately followed by Table 3.4.3.1, which contains a description (or role) for each type of activity centre. Similarly, s 3.4.4.1 contains specific outcomes for Element 3 – Employment areas, including a requirement for uses to be aligned to the primary focus of the employment area. Those specific outcomes are immediately followed by Table 3.4.4.1, which groups the various employment areas into different types and contains a description (or focus) for each type of employment area. [64] As the Yaroomba tourism focus area is a coastal tourism focus area, its intended role is to accommodate a concentration of visitor accommodation and related tourism services. [65] Mr Schomburgk, the town planner retained by the SHC, opines that the proposed development incorporates a number of tourism-focussed elements. He says they include the hotel itself, apartments (for both visitor accommodation and permanent occupation), restaurants and food and drink outlets, a tourist shopping area, public and resort parklands, public beach access and public car parking, surf lifesaving amenities and an educational centre. The educational centre will provide information on the ecological surrounds and the indigenous history of the subject land and the locality. Mr Schomburgk says the proposed development is aimed squarely at the tourism market. This aspect of his evidence was unchallenged. 427 The other provisions include s 3.2.1, s 3.2.2, s 3.2.8, Figure 3.2.8B, s 3.3.4.1(a)(i), s 3.3.4.1(b), s 3.4(9), s 3.4.1(c), (u) and (v), s 3.4.2.1(a)(iii), s 3.4.2.1(b), s 3.4.2.1(c)(v), s 3.4.9 and Strategic Framework Map SFM2, s 6.2.17 and s 7.2.8.2. -- 165 of 269 -- Original reasons p 22 [66] Mr Perkins, the town planner retained by the Council, gave evidence to similar effect. He opines that the proposed development will provide infrastructure to facilitate the public enjoyment of the nearby beaches. This is evident from the requirements of the Infrastructure Agreement, compliance with which can be secured by a condition of the development approval.428 [67] I accept the evidence of Mr Schomburgk and Mr Perkins. Their evidence satisfies me that the proposed development is consistent with the coastal tourism focus role intended for the subject land. [68] As I noted in paragraph [59] above, in addition to requiring development to be consistent with intended role, s 3.4.6.1(c) of the Strategic framework requires an emphasis on uses that are well suited to and compatible with existing tourism development. [69] The economists agree that, in terms of tourism accommodation, the relevant existing tourism development is that within the Coolum, Maroochy North Shore and Peregian South local plan areas. Figure 11 of the Second Economic Need Joint Report maps the location of relevant accommodation facilities, and Table 8 details their size. [70] The nearest tourism development is the Palmer Coolum Resort and associated golf course on the western side of David Low Way. Historically, it offered 324 hotel rooms, suites and villas. The golf course component of the resort remains operational, but the balance of the resort is not. [71] The largest facilities in the Yaroomba study area are Novotel Twin Waters Resort and the Ramada by Wyndham at Marcoola Beach. Each has over 100 rooms. There are less than 100 rooms in each of the other identified facilities. There is no five-star facility in the locality. All of the existing facilities have a rating of 4.5 stars or less. [72] Tourism is, and will continue to be, a major contributor to the Sunshine Coast regional economy and the Coolum local economy. The economists agree that there will be ongoing demand for tourist accommodation. This will be driven by increasing demand in the domestic overnight visitor market as the South East Queensland region continues to grow. The natural attributes of the area, including the world class beaches, are also a driver for the demand. Mr Ganly and Mr Duane, the economists retained by the Council and SHC respectively, opine that the redevelopment of the Sunshine Coast Airport will also drive the demand for tourist accommodation. Whether the Sunshine Coast Airport is a key driver of accommodation demand or not, all of the economists agree that there is a gap in the market for a five-star resort facility. They agree that the subject land has characteristics that differentiate it from other resort facilities on the Sunshine Coast and that would make it popular to the tourist (and conference) market. [73] Mr Ganly and Mr Duane opine that the proposed development would enable the Sunshine Coast to compete more effectively with the Gold Coast for the premium international and conference-based markets. At present, it is difficult to compete as the five-star hotels on the Sunshine Coast are typically small boutique developments. They are all less than 200 rooms. The only branded hotel chains are Sofitel Noosa, Peppers Noosa, Spicers Clovelly Estate and RACV Noosa. None are located in the 428 See s 65(2)(c) of the Planning Act 2016. -- 166 of 269 -- Original reasons p 23 agreed Yaroomba study area. Spicers Clovelly Estate only has ten rooms or units. It is the only five-star facility located in the Sunshine Coast local government area. [74] The economists all agree that the area does not presently attract the visitor segment of the tourist market that a five-star resort would attract, including those attracted by facilities for meetings, incentives, conferences and events. The experts agree it is an important sector of the tourism market. The key difference between the economists about the need for a five-star resort on the subject land relates to the prospect that the Palmer Coolum Resort might reopen. [75] Mr Brown, the economist retained by the Appellants, considers there is a “real prospect” that there would be a redevelopment of the Palmer Coolum Resort. He expressed concern that approval of the proposed resort facilities would militate against refurbishment and redevelopment of the Palmer Coolum Resort as a new resort. I do not accept this evidence of Mr Brown. As was acknowledged by Mr Brown, apart from the golf course, the Palmer Coolum Resort is currently closed and in a state of disrepair. Mr Palmer acquired the resort from Hyatt in about 2011. He closed it in about 2015. While it was operating, the resort was permitted to run- down. Mr Brown acknowledged that even if the Palmer Coolum Resort reopened, it may not be operated as, or managed consistently with the expectations of, a five-star facility. He opines that in order to meet the expectations of a five-star facility, the Palmer Coolum Resort would need to be refurbished. Mr Ganly gave evidence to the same effect. Further, there is no credible evidence that an approval of the proposed development would militate against the reopening of the Palmer Coolum Resort. Mr Brown’s opinion is nothing more than speculation: it is not underpinned by any credible explanation. Mr Ganly and Mr Duane, on the other hand, opine that the proposed development and the Palmer Coolum Resort could operate side by side. They gave credible explanations for the basis of their opinions. I accept their evidence. [76] Having regard to the evidence of the economists referred to above, I am satisfied that the proposed development incorporates uses that are well suited to and compatible with existing tourism development. [77] For the reasons provided above, I am satisfied that the proposed development complies with s 3.4.6.1(c) of the Strategic framework. Is the proposed development otherwise worthy of consideration as a meritorious opportunity for tourism development? [78] The Council submits that the words “Other opportunities for tourism development” indicate that s 3.4.6.1(e) is directed to outlining the circumstances when tourist- oriented development outside of a tourism focus area may be supported. The Council submits that this construction is apparent from a plain reading of s 3.4.6.1(e) in the context of the provision overall, where s 3.4.6.1(a), (c) and (d) all refer to tourism focus areas and s 3.4.6.1(a) states that to support the preferred pattern of settlement, tourism-oriented development is to be concentrated in tourism focus areas. No other party contended otherwise. I agree with the Council’s construction. [79] SHC has discharged the onus with respect to compliance with s 3.4.6.1(c). As such, it is unnecessary for it to demonstrate that the proposed development should otherwise be considered on its merits under s 3.4.6.1(e). In any event, I am satisfied that the proposed development complies with s 3.4.6.1(e) for the following reasons. -- 167 of 269 -- Original reasons p 24 [80] The proposed development is located on or with direct access to David Low Way, which is a major road.429 The Appellants do not dispute that the proposed development will provide the entire necessary infrastructure for the development. [81] The evidence of the economists demonstrates that the proposed development will provide regionally significant tourism investment and employment opportunities to contribute to the Sunshine Coast economy, including positive flow on effects for local communities.430 The proposed development will enhance the Sunshine Coast’s tourism brand and reputation. These matters are not disputed. [82] In this case, the only issues the Appellants raise about compliance with s 3.4.6.1(e) relate to: (a) whether the proposed development incorporates a range or scale of uses and activities that would compromise the Sunshine Coast Activity Centre Network;431 and (b) whether the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes that contribute to the region’s natural (competitive) advantage.432 [83] All of the economic experts agree that, with the proposed 300 square metre limit on the size of each individual tenancy, the proposed development will not have an impact on other centres within the hierarchy. I accept their opinions in this regard. They were supported by sound reasons. As such, I am satisfied that the proposed development does not incorporate a range or scale of uses and activities that would compromise the Sunshine Coast Activity Centre Network. [84] Further, for the reasons provided in paragraphs [179] to [331] below in relation to the design of the proposed development and in paragraphs [332] to [404] below regarding environmental impacts, I am satisfied that the proposed development is compatible with and does not adversely impact upon the character, lifestyle and environment attributes which contribute to the region’s natural (competitive) advantage, including but not limited to impacts on biodiversity, scenic amenity and local character and amenity. [85] The proposed development’s compliance with s 3.4.6.1(e) is a matter that supports approval of the development application. Does the proposed development comply with other provisions of the Strategic framework relevant to the tourism focus area? [86] The Appellants allege the proposed development does not comply with s 3.3.4.1(c), s 3.3.9.1(a) and s 3.4.2.1(c)(v) of the Strategic framework. [87] Each of s 3.3.4.1(c) and s 3.3.9.1(a) is a specific outcome identified as part of the “Settlement pattern” theme. 429 Major road is defined to include a road classified as an arterial road. David Low Way is so classified. 430 The relevant evidence is detailed in paragraphs [494] to [505] below. 431 See s 3.4.6.1(e)(ii). 432 See s 3.4.6.1(e)(v). -- 168 of 269 -- Original reasons p 25 [88] Section 3.3.4.1(c) relates to “Element 3 – Efficient and functional urban form”. It requires urban consolidation to be “compatible with and sympathetic to the preferred character of the local area”. [89] A footnote to the provision notes that: “the preferred character of each coastal urban, rural town and rural village community is described in the applicable local plan code.” [90] Section 3.3.9.1(a) relates to “Element 8 – Local settings and local planning responses”. It requires: “The Sunshine Coast is maintained as a community of communities where the character and identity of each community is recognised and protected in accordance with a local plan.” [91] These provisions are only marginally relevant to the question of whether there is an appropriate mix of residential and tourist-oriented development. Compliance with them, in terms of the appropriateness of the mix of uses proposed, is dependent on compliance with the Coolum local plan.433 For reasons explained in paragraphs [109] to [137] below, I am satisfied that the mix of uses proposed is appropriate having regard to the provisions of the Coolum local plan. [92] Section 3.4.2.1(c)(v) forms part of the implementation framework for the Economic development theme. In particular, it relates to “Element 1 – Natural (competitive) advantage and key economic sectors”. It requires that: “New investment and re-investment in high value industries including … tourism are supported through the following:- … (v) protection of existing tourism, sport and leisure facilities and encouragement of the establishment of new facilities that contribute to active, healthy living and community wellbeing”. [93] As I have also noted in paragraph [75] above, there is no credible evidence that the provision of these new facilities fails to adequately protect existing tourism facilities, such as the Palmer Coolum Resort. [94] The subject land has a beachside location. The economists identify this as an attribute that underpins its natural competitive advantage. The proposed development will draw on that attribute to provide new tourism facilities that will contribute to active, healthy living and community well-being. The provision of community facilities (such as the educational centre), improved beach accesses and access to the coastal pathways proposed on the Yaroomba Pedestrian and Cycle Movement Plan are particularly notable in this regard. As such, I am satisfied the proposed development accords with specific outcome s 3.4.2.1(c)(v). [95] For the reasons that follow, I am also satisfied that the proposed development complies with the Planning Scheme’s intention for tourism focus areas evident in other provisions of the Strategic framework about tourism. 433 It seems, from the First Appellant’s submissions with respect to the nature of the non-compliance, that the First Appellant appreciated this. In those circumstances, it is difficult to appreciate how the Appellants’ conduct in alleging non-compliance with these provisions accords with their obligations under s 10 of the Planning and Environment Court Act 2016 (Qld). -- 169 of 269 -- Original reasons p 26 [96] Consistent with the strategic intent in s 3.2.2, the proposed development will assist in strengthening the region’s “national and international appeal as a visitor destination”. It will be the first major hotel development on the Sunshine Coast in 30 years. The resort complex will include a hotel that will be operated either as a “Westin” (a well-known, internationally branded hotel chain by an operator already secured by SHC) or some other five-star hotel.434 As I noted in paragraph [74] above, the proposed development will cater to a presently unserved segment of the tourism market. Further, community use components such as the educational centre are recognised as contributors to the economic and social fabric of the Sunshine Coast. [97] As I have noted above, and consistent with the tourism key concept in s 3.4.1(9) of the Strategic framework, the proposed development will add to the attraction of the Yaroomba tourism focus area. It will offer conference facilities and accommodation types of sufficient size to support major events. [98] In accordance with s 3.4.6.1(a), the proposed development will support the preferred pattern of settlement by providing tourist orientated activities and services within the tourism focus areas identified on Strategic Framework Map SFM2 and described in Table 3.4.6.1. [99] The Council submits that the proposed development also assists in achieving a “cluster” of tourist attractions as sought in s 3.4.6.1(d). “Tourist attraction” is defined as “Premises for providing on-site entertainment, recreation or similar facilities for the general public”. The definition gives examples of theme park and zoo and specifically excludes “Hotel”. The Appellants say this provision does not support the proposed development. It says the provision is directed at the clustering of man-made tourist attractions at Beerwah, Bli Bli, Palmview, Yandina and Woombye. I accept that the provision applies to those man-made tourist attractions. That does not demonstrate that this provision is not supportive of an approval. The proposed development is for a “Resort complex”, which is not an excluded use. It includes a range of restaurants, retail and community uses (such as the educational centre, improved beach accesses and access to the coastal pathway) that are all likely to attract tourists and local visitors. It is proximate to an existing tourist attraction, namely the golf course attached to the former Palmer Coolum Resort. Mr Schomburgk was of the view that the proposed development assists in achieving this “cluster”. I accept his evidence. Even if the proposed development did not include things considered to be a “tourist attraction” as defined, the clustering of the facilities within the proposed development, as well as proximate to the existing golf course, is nevertheless consistent with the underlying planning policy to cluster uses that provide entertainment, recreation and similar facilities for the general public in a tourism focus area. This is a matter that is supportive of approval of the proposed development. Conclusion regarding compliance with tourism focus provisions of the Strategic framework [100] For the reasons provided above, I am satisfied that the proposed development complies with the applicable tourism focus provisions of the Strategic framework. Compliance with these provisions is a factor that lends support to approval of the proposed development. 434 The decision notice contains a condition that secures this. -- 170 of 269 -- Original reasons p 27 Does the proposed development comply with the applicable tourism focus provisions of the Emerging community zone code? [101] Zones organise the Planning Scheme area in a way that facilitates the location of compatible land uses. As I have noted already, the subject land is in the Emerging community zone. [102] The Appellants submit that the proposed development fails to comply with the Emerging community zone code in that it does not reflect the specific intent for the locality in the Coolum local plan code. They also submit that the proposed development involves an inappropriate mix of uses (tourist or commercial and medium to high density residential) and fails to integrate the uses on the subject land with the Coolum Resort. [103] The purpose of the Emerging community zone code is recorded in s 6.2.17.2(1). It states: “The purpose of the Emerging community zone code is to ensure that development is designed and coordinated to achieve safe, healthy and sustainable new urban communities which:- (a) are well integrated with existing communities; (b) deliver affordable living opportunities; (c) provide an appropriate mix and arrangement of activities; and (d) provide a best practice benchmark for ecological sustainability and the implementation of environmental enhancement and rehabilitation programs.” (emphasis added) [104] The purpose of the zone will be achieved through the overall outcomes.435 They include: “(c) development in other areas not subject to Part 10 (Other plans) is undertaken in accordance with a plan of development that appropriately addresses the matters identified below, and which is implemented via a preliminary approval pursuant to section 242 of the Act436 or an amendment to the planning scheme:- (i) development reflects any specific intent statements and local structure planning elements for the area identified in a local plan code; (ii) development avoids as far as practicable, or where avoidance is not practicable, minimises and otherwise mitigates, adverse impacts on ecologically important areas, including creeks, gullies, waterways, wetlands, coastal areas, habitats and vegetation through location, design, operation and management; (iii) development is designed and sited to sensitively respond to the physical characteristics and constraints of land, including flooding, steep land, landslide hazard and bushfire hazard, where applicable; 435 Section 6.2.17.2(2) of the Planning Scheme. 436 This refers to s 242 of the Sustainable Planning Act 2009. -- 171 of 269 -- Original reasons p 28 (iv) the scale, density and layout of development facilitates an efficient land use pattern that:- (A) is well connected to other parts of the urban fabric and planned future development; (B) supports walkable neighbourhoods that are well connected to employment nodes, activity centres, open space and recreational areas, community facilities, health and education opportunities; (C) encourages active and public transport accessibility and use; and (D) maximises the efficient extension and safe operation of infrastructure; (v) an appropriate mix of land uses and housing types is provided; (vi) a sense of character and community inclusion is promoted; (vii) a high level of residential amenity, personal health and safety, and protection for property is provided; (viii) development provides for pedestrian, cycle and vehicular movement networks that maximise connectivity, permeability and ease of movement within and to neighbourhoods and other areas; (ix) development is located, designed and operated to be responsive to the Sunshine Coast’s sub-tropical climate and minimises the use of water and energy; (x) development does not interfere with the existing or ongoing use of adjoining rural land for productive agricultural purposes; (xi) development occurs in a logical sequence and facilitates the efficient and timely provision of infrastructure and services prior to, or in conjunction with, the first stages of development; (xii) development is provided with the full range of urban services to support the needs of the community, including parks, roads and transport corridors, pedestrian and cycle paths, reticulated water, sewerage, stormwater drainage and electricity and telecommunication infrastructure; and (xiii) development does not adversely impact on the continued operation, viability and maintenance of existing infrastructure or compromise the future provision of planned infrastructure. Editor’s note—a table of consistent and potentially consistent uses has not been provided for the Emerging community zone as development in this zone is intended to occur in accordance with a master plan. An approved plan of development may provide for a range of uses as appropriate to the site or area.” (emphasis added) [105] Those portions of the Emerging community zone code emphasised above reflect the requirements that the Appellants allege give rise to non-compliance relevant to the tourism issue. [106] These provisions require development to be undertaken in accordance with an approved plan of development that is to be implemented via a preliminary approval. That is what SHC proposes here. The real issue appears to be whether the plan of development appropriately addresses those matters emphasised above. -- 172 of 269 -- Original reasons p 29 [107] The Emerging community zone code contains no provisions from which one might ascertain what is “an appropriate mix and arrangement of activities” or what is “an appropriate mix of land uses and housing types”. Overall outcome 2(c)(i) calls up intent statements identified in a local plan code. As such, whether there is compliance with the purpose statement in s 6.2.17.2(1)(c) and overall outcomes (2)(c)(i) and (v) of the Emerging community zone code will depend on a consideration of other provisions of the Planning Scheme.437 [108] For the reasons provided in paragraphs [51] to [100] above and paragraphs [109] to [155] and [158] to [177] below, I am satisfied that the proposed development complies with these provisions. I accept the evidence of Mr Perkins that the proposed development will help ensure development of this significant land holding is planned for as a collective holding. This will enable long-term use of the subject land for urban purposes to come to fruition as intended by its inclusion in the Emerging community zone. Does the proposed development comply with the applicable tourism focus provisions of the Coolum local plan code? [109] Local plans organise the Planning Scheme at the local level. They provide more detailed planning for the zones.438 [110] The purpose of the Coolum local plan code is to provide locally relevant planning provisions for the assessment of development within the Coolum local plan area.439 The purpose is to be achieved through the overall outcomes. Overall outcomes (2)(a) and (j) state: “(a) The Coolum local plan area remains a low key coastal urban community, with a strong focus on tourism and well serviced by a range of small-medium scale business, community, sport and recreational activities. (j) The Palmer Coolum Resort and The Coolum Residences continues to be developed as an integrated tourist and residential development focussed around an 18 hole championship golf course and large areas of open space. Development is configured in a series of beachside villages and other precincts that sit lightly in the landscape and that are separated by green corridors and lush subtropical landscaping. Development protects the natural vegetated character of the coastal foreshore and foredunes and respects the scale and character of surrounding area and vegetation. Dense vegetated buffers are maintained along the David Low Way and surrounding the Palmer Coolum Resort to effectively screen development and protect the scenic amenity of David Low Way and the amenity of nearby residential areas.” [111] Paragraph 88 of the First Appellant’s Submissions states: “as noted below in respect of the Coolum Local Plan, the Proposed Development is not consistent with the intended role of the tourism focus area in the Locality (which 437 It seems, from the First Appellant’s submissions with respect to the nature of the non-compliance, that the First Appellant appreciated this. In those circumstances, it is difficult to appreciate how the Appellants’ conduct in alleging non-compliance with the purpose statement in s 6.2.17.2(1)(c) and overall outcomes 2(c)(i) and (v) of the Emerging community zone code accords with their obligations under s 10 of the Planning and Environment Court Act 2016 (Qld). 438 Section 7.1(1) of the Planning Scheme. 439 Section 7.2.8.3(1) of the Planning Scheme. -- 173 of 269 -- Original reasons p 30 role is for residential facilities on the eastern side of David Low Way to support and complement the existing Coolum Resort on the western side of David Low Way).” [112] The First Appellant’s Submissions do not provide a cross-reference to the later part of their written submissions to which they intended to refer. There is no evident further reference. [113] The Appellants also contend that the proposed development would establish significant new tourist facilities that fail to protect the existing tourist facilities of the Coolum Resort recognised by the Planning Scheme. [114] The Coolum local plan code does not support the assertions made in paragraph 88 of the First Appellant’s Submissions. The code does not require that the land west of David Low Way is intended to be developed for tourist development only and land east of David Low Way is intended to be developed for residential development only. Overall outcome (2)(j) does not regulate the relative extent of the “tourism resort” and the “residential” components. It does not require that the apparently abandoned Palmer Coolum Resort be protected from competition introduced by approval of further tourism focussed development. [115] There is no evident reason to read the limitation contended for by the Appellants into the overall outcomes of the Coolum local plan code. As was observed by Mr Perkins, sub-precincts are utilised elsewhere within this Planning Scheme area to differentiate between uses and built form within a particular precinct (for example, in the Kawana Waters and Sippy Downs local plans). If the Planning Scheme intended to distinguish between the land uses east and west of David Low Way, it is reasonable to expect that the “Palmer Resort and The Coolum Residences” precinct of the Coolum Local Plan Area would have been further defined into sub-precincts. [116] Further, overall outcome (2)(j) of the Coolum local plan code does not contain any apparent distinction between those uses to be located west and east of David Low Way. The first sentence has a single subject, not two subjects (that is “The Palmer Coolum Resort and The Coolum Residences continues to be developed).440 The provision describes an “integrated tourist and residential development”, where both components are part of a single “integrated” development. The requirement for development to be configured in a series of “beachside villages and other precincts” does not connote a requirement for permanent residential housing only (or even primarily). It does not exclude tourist or visitor accommodation and other purposes. [117] In any event, as I have already noted in paragraph [75] above, approval of the proposed development does not militate against the reopening of the Palmer Coolum Resort. It would add a further integrated tourist and residential development to the area. For the reasons provided in paragraphs [64] to [99] above, I am satisfied that the proposed development will strengthen the tourism focus in the Coolum local plan area and add to the range of small-medium scale business, community, sport and recreational activities as required by overall outcome (2)(a) of the Coolum local plan. [118] With respect to overall outcome (2)(j), I accept that the proposed development may not integrate with the Palmer Coolum resort, and it does not focus around an 18-hole golf course. However, I do not regard that this is what the planning intent in overall outcome (2)(j) requires. Read as a whole, the provision seeks three things. First, that 440 Emphasis added. -- 174 of 269 -- Original reasons p 31 the precinct as a whole be developed with tourist and residential development. Second, there be integration between the tourist and residential uses. Third, that the precinct is developed in a manner that emphasises open space and landscaping values. [119] The proposed development includes both tourist and residential development. The master plan shows that the development is focussed around significant areas of open space. The open space will include a band of retained vegetation along David Low Way and at other locations within the subject land; a lake through the centre of the subject land; a park on the eastern lake edge near the hotel and proximate the retail area; a linear beachside park adjoining the dune landscape on the eastern edge of the subject land; other parkland spaces; and landscaping along proposed roadways on the subject land. The lake and parkland through the centre of the proposed development and the considered arrangement of pedestrian pathways and roadways provide integration between those areas proposed to be developed for tourist development and the areas to be developed for residential uses. [120] Mr Schomburgk says that approximately 25 per cent of the subject land would be publicly accessible open space, with about 9 per cent of the subject land containing retained vegetation. His opinion was formed having regard to the development criteria proposed as part of the preliminary approval for the subject land. I accept it. [121] Mr Thompson, the architect retained by SHC, opines that the design outcome appears to have been informed by considered selection of locations for new development to retain the perception externally that the natural environment is dominant; careful arrangement of the roadways and their connections to ensure a dominant natural environment experience as one moves through the subject land; and carefully designed areas of landscape between and around the buildings. I accept this evidence. It accords with what is shown on the master plan. [122] For the reasons provided, I am satisfied that the proposed development accords with the planning intent of overall outcome (2)(j). [123] The Appellants also allege non-compliance with performance outcome PO16. It relates to development in the Emerging Community Zone (Precinct COL LPP-1, Palmer Coolum Resort and The Coolum Residences). It states: “Development in the Emerging community zone in Precinct COL LPP-1 (Palmer Coolum Resort and The Coolum Residences) identified on Local Plan Map LPM11:- (a) maintains the primary function of the site as an integrated tourist facility; (b) provides for the retention of large areas of open space, including the 18 hole championship golf course; (c) provides for a range of residential accommodation types set in discrete beachside precincts and separated by greenspace; (d) protects the natural vegetated character of the coastal foreshore and foredunes; (e) provides for development and building design which respects the scale and character of surrounding areas and vegetation; (f) provides for retail and commercial development to be limited to resort facilities and local convenience goods only; -- 175 of 269 -- Original reasons p 32 (g) provides for the maintenance and enhancement of public access to the beach and foreshore in a manner that respects the natural foredune and beach character and environmental values; (h) minimises and rationalises access to David Low Way, Warren Road and other local roads; (i) protects the visual amenity of the road network through the maintenance and enhancement of dense vegetated buffers to David Low Way and surrounding the Palmer Coolum Resort; and (j) provides for the maintenance and enhancement of the environmental and landscape values of the area including, but not limited to, the Yaroomba Parabolic Dune, rainforest areas on the Palmer Coolum Resort site, and views to and from Mount Coolum and Point Arkwright.” [124] No corresponding acceptable outcome is provided. An editor’s note441 records that development in the Emerging community zone at Palmer Coolum Resort and the Coolum Residences is currently regulated in accordance with an approved Master Plan and Plan of Development. [125] The Coolum local plan precinct COL LPP-1 (Palmer Coolum Resort and The Coolum Residences) identified on Local Plan Map LPM11 incorporates land both west and east of David Low Way. All of the planning experts agree that “The Coolum Residences” (referred to in the description of Coolum local plan precinct COL LPP- 1) and “Sekisui House Beachside” (referred to in describing the location of the Yaroomba tourism focus area) identify the same area of land. It is the land that is the subject of the Hyatt preliminary approval. I accept this evidence of the town planners. The land in Coolum local plan precinct COL LPP-1 is coincident with the land in the Coolum local plan area that is in the Emerging community zone. It includes the subject land. [126] The Appellants say that the reference to “site” in performance outcome PO16(a) should be understood to include all of the land in Precinct COL LPP-1.442 I agree. This construction is consistent with the heading of the table under which performance outcome PO16 appears. It identifies that performance outcome PO16 only applies to the land in the precinct. [127] The Appellants submit that performance outcome PO16(a) requires all of the land in the precinct to be kept in a state where its primary (or most important) function is an integrated tourist facility. In their submissions about the proper construction of performance outcome PO16, the Appellants refer to the following four matters. First, the expression “integrated tourist facility” is not defined in the Planning Scheme. Second, there is a definition of “resort complex”.443 Third, the Hyatt preliminary 441 An editor’s note is part of the Planning Scheme – see s 1.3.2.4 of the Planning Scheme. 442 The definition of “site” in the Planning Scheme is of no assistance in determining the meaning of the word in this provision. It is “any land on which development is carried out or proposed to be carried out whether such land comprises the whole or part of one lot or more than one lot if each of such lots is contiguous”. 443 The definition of “resort complex” is: “Premises used for tourist and visitor short-term accommodation that includes integrated leisure facilities such as:- • restaurants and bars; • meeting and function facilities; • sporting and fitness facilities; • staff accommodation; -- 176 of 269 -- Original reasons p 33 approval refers to an “integrated resort and residential community”. Fourth, the Appellants say that the Maroochy Plan 2000, under which the Hyatt preliminary approval was given, used the phrase “integrated tourist facility” as a defined use.444 [128] The Appellants do not explain the relevance of the second, third and fourth observations. They submit that the proposed development involves stark and obvious non-compliance with the Coolum local plan because the proposed development does not integrate with the Coolum Resort. It is not obvious to me how a failure to integrate with the Coolum Resort results in non-compliance with performance outcome PO16. The Appellants do not explain the basis of the submission, nor reference any evidence in support of it. The submission is no more than a bald assertion.445 [129] The provisions of performance outcome PO16 that regulate the mix of land uses seek “an integrated resort facility”, “a range of residential accommodation types” and limited “retail and commercial development”. The only stipulation or guidance with respect to the relative extent of the first two components is that development in the zone is to maintain the primary function of the site as an integrated resort facility. [130] Stage 1 of the proposed development includes tourist, residential and limited retail and commercial facilities. The uses are provided in the form of “an integrated tourist and residential development”, which are the land uses sought by the specific provisions that regulate development on the subject land, in particular overall outcome (2)(j) and performance outcomes PO16(a), (c) and (f). The extent of visitor accommodation and related tourism services, and their delivery as part of Stage 1, ensures that the proposed development will maintain the primary function of the subject land as an integrated tourist facility. To the extent that the preliminary approval would permit land in Precinct Col LPP-1 to be used for residential development, that residential development would not overwhelm the primary tourism function provided by the proposed resort complex (and the Palmer Coolum resort should it reopen). [131] Although the proposed development is not designed to visually integrate with the Palmer Coolum Resort, this is a function of balancing the competing planning goals in performance outcomes PO16(a) on the one hand and PO16(h) and (i) on the other. The design provides a considered arrangement of pedestrian pathways and roadways • transport facilities directly associated with the tourist facility such as a ferry terminal and air services.” 444 The Appellants say the definition was in the following terms: “Integrated tourist facility” means premises which: (a) are used primarily for facilities and activities which attract, accommodate and entertain tourists where some facilities are open to the public use; and (b) are on a land extensive site; and (c) include two or more buildings; and (d) are developed in an integrated way, and managed as one entity; and (e) may include provision for conference facilities and for permanent residential accommodation. The term includes integrated tourist resorts, tourist theme parks and the like.” 445 As I noted in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at 268, submissions of this nature do not assist. It is not for the Court to undertake the task of trawling through the evidence to attempt to ascertain what evidence it may have been that the parties had in mind. As I indicated to the parties during the hearing, I do not intend to descend into the arena to ascertain what the Appellants had in mind. To do so would be unfair to the other parties. -- 177 of 269 -- Original reasons p 34 that would facilitate pedestrian connectivity between the proposed development and the Palmer Coolum Resort (should it reopen). Conclusion regarding the appropriateness of the proposed land uses in the Yaroomba tourism focus area [132] As would be apparent from the provisions considered above, the Planning Scheme does not fix metrics that regulate the appropriate mix of land uses that the Planning Scheme seeks to have provided on the subject land. There are no provisions that define the extent of tourism or residential development within the Yaroomba tourism focus area, or their relativity. The Strategic framework requires that the subject land accommodate “a concentration of visitor accommodation and related tourism services”.446 The land use requirements for the subject land identified in the Coolum local plan are that: (a) land within Precinct LPP-1 Palmer Coolum Resort and the Coolum Residences is to be developed as an “integrated tourist and residential development” that is “configured in a series of beachside villages and other precincts”;447 (b) development is to “maintain the primary function of the site as an integrated tourist facility”;448 (c) development is to provide “a range of residential accommodation types”;449 and (d) development is to provide “retail and commercial development to be limited to resort facilities and local convenience goods only”.450 I address this issue in detail later when considering the appropriateness of the retail and commercial aspects of the proposed development. In short, the economists agree that the proposed facilities are consistent with this requirement. [133] Mr Adamson opines that the proposed density is substantially higher than that expected under either the Planning Scheme or the Hyatt preliminary approval (with the exception of sub-precinct 3F). Mr Adamson’s opinion about the anticipated density under the Planning Scheme is based on the Local Government Infrastructure Plan in version 18 of the Planning Scheme. I do not accept his opinion for four reasons. First, during cross-examination, Mr Adamson accepted that the Coolum local plan code contains the “key provisions” for the assessment of development on the subject land. He acknowledged that it does not specify an intended density for development on the subject land. Second, as was also acknowledged by Mr Adamson during cross-examination, the Local Government Infrastructure Plan is not a land use planning document – it is a document that plans the level of infrastructure that the local government will provide. Third, version 18 is not the version of the Planning Scheme against which the development application must be assessed – version 8 is the relevant version. Fourth, as was acknowledged by Mr Adamson, the infrastructure planning document in version 8 of the Planning Scheme (being the Priority Infrastructure Plan) does not include a planned density for the subject land. However, to the extent that it provides any guide, the proposed density of 446 See s 3.4.6.1(c) and Table 3.4.6.1. 447 See overall outcome (2)(j). 448 See performance outcome PO16(a). 449 See performance outcome PO16(c). 450 See performance outcome PO16(f). -- 178 of 269 -- Original reasons p 35 approximately 44 dwellings per hectare across the whole of the subject land is consistent with the range of density planned for infrastructure purposes for the Emerging community zone (Caloundra West), which to have a density of between 25 and 50 dwellings per hectare. [134] With respect to whether the mix of tourist-oriented development and residential development is appropriate, I prefer the evidence of Mr Perkins and Mr Schomburgk. They are both of the opinion that the proposed mix of residential and tourist-oriented development is not unusual. Mr Perkins gave evidence that the proposed development reflects an obvious tourism focus and there is nothing unusual about the proposed mix of residential and tourism components. He cannot recall any significant tourism development that does not have a component of residential development (much of which is often made available to be managed as part of the overall tourism development). Mr Schomburgk says that residential dwellings and retail components, included in the mix of uses in addition to the hotel, are parts of contemporary tourism projects, particularly for projects at the scale of the proposed development. [135] The land uses proposed as part of the resort complex will include a far greater number of rooms or units for accommodation than any of the other five-star hotels on the Sunshine Coast considered by the economic experts. The provision of a 220-room hotel and a serviced apartment building with 133 units equates to a total provision of 353 rooms or units. The largest five-star resort identified by the economic experts was the Peppers Noosa Resort with 198 rooms or units. I am satisfied that the resort complex, including the hotel and the serviced apartments, will be a significant tourist development and the primary function of the subject land. [136] In addition to this significant tourist development, the size of the subject land facilitates the delivery of approximately 608 equivalent dwellings within the residential component. For reasons considered in detail below,451 I am satisfied that notwithstanding their relatively considerable number, the proposed development will achieve “a range of residential accommodation types set in discreet beachside precincts and separated by greenspace”. The types of accommodation include both apartments and townhouses in buildings ranging between two to four storeys. The Master Plan demonstrates that the residential accommodation will be set in various precincts and separated by greenspace. At present, dwelling units in Precinct LPP-1 Palmer Coolum Resort and the Coolum Residences and the Emerging community zone are predominantly large detached houses. The proposed development will provide the “range” sought in the Coolum local plan area. [137] For the reasons set out in paragraphs [49] to [136] above, I am satisfied that the evidence establishes that SHC’s proposed development (i.e. both Stage 1 and that facilitated by the proposed preliminary approval) involves a mix of land uses that is appropriate in the Yaroomba tourism focus area. It will provide a concentration of visitor accommodation and related tourism services in an integrated tourist resort and residential development that is focussed around large areas of open space. To the extent that the proposed development does not integrate with the Palmer Coolum Resort, this is a function of the need to balance the planning goal of integration against other requirements, such as the protection of the visual amenity of the road network. The proposed development does not unsatisfactorily compromise the planning goals 451 See paragraphs [235] to [245] regarding the design of the proposed development. -- 179 of 269 -- Original reasons p 36 with respect to the primary function of Precinct COL LPP-1. The proposed mix of land uses favours approval. Will the proposed development involve inappropriate commercial development? [138] Stage 1 of the proposed development seeks a shopping complex of 2 770 square metres with no tenant larger than 300 square metres. In addition, the resort complex will include up to 284 square metres of retail space and 421 square metres of commercial space.452 [139] The Appellants accept that retail uses are appropriate on the subject land as part of the proposed resort complex.453 However, they allege the proposed level of retail and commercial development results in non-compliance with: (a) s 3.3.1(i), s 3.4.2.1(b)(i), s 3.4.3.1(c) and s 3.4.6.1(e)(ii) of the Strategic framework; (b) the purpose in s 6.2.17.2(1)(c) and overall outcomes (2)(c)(i) and (v) of the Emerging community zone code; (c) overall outcomes (2)(a), (c) and (j) and performance outcome PO16 of the Coolum local plan code; and (d) the purpose in s 9.3.1.2(1)(a), overall outcome (2)(a) and performance outcome PO1 of the Business uses centre design code. [140] The Appellants say that the non-compliance arises because the scale of the retail and commercial development associated with the shopping complex is excessive and that its location east of David Low Way and outside of the Sunshine Coast Enterprise Corridor is inappropriate.454 [141] The Council and SHC do not accept that the provisions relied on by the Appellants give rise to the requirements of the nature implied by the Appellants allegations, nor do they accept there is non-compliance with them. It is convenient to deal with each of the allegations in turn. Does the proposed development comply with the provisions of the Strategic framework that guide commercial development? [142] The Appellants allege non-compliance with four provisions of the Strategic framework. [143] First, s 3.3.1(i) of the Strategic framework. It is one of the strategic outcomes sought for the Settlement pattern theme. It states: “Maroochydore is the principal regional activity centre for the Sunshine Coast and provides regional scale business, investment and residential and community activities. Maroochydore is supported by major regional activity centres at 452 Condition 70 of the decision notice stipulates these maximums for the retail and commercial space related to the resort complex use. SHC does not challenge the conditions. 453 This was conceded by Mr Hack QC during final submissions. 454 The written submissions for the First Appellant do not clearly articulate their case on this point. However, during final submissions, Mr Hack QC acknowledged that the Council’s characterisation of their allegations in paragraph 140 of the Written Submissions on behalf of the Respondent was accurate. -- 180 of 269 -- Original reasons p 37 Caloundra, Caloundra South, Kawana, Sippy Downs, Nambour and Beerwah. A network of district and local activity centres also service community needs.” (emphasis added) [144] Despite alleging non-compliance with this provision, the Appellants do not articulate the foundation for their allegation. As I noted in paragraph [37] above, the strategic outcomes are not framed in a manner that directly regulates development. The Appellants do not appear to contend otherwise. In their written submissions they say that the broad strategic outcomes in s 3.3.1 are given specific impetus in the specific outcomes of Element 1 of the implementation framework in s 3.3.2.1(a)(i) to s 3.3.2.1(a)(iv). There is no allegation that the proposed retail and commercial development results in non-compliance with those provisions. The Appellants do not explain how then they can maintain their allegation of non-compliance with s 3.3.1(i). I do not accept the Appellants’ bare assertion of non-compliance. There is no clearly identifiable basis on which it could be said that the proposed development fails to comply with this provision. The intent that “A network of district and local activity centres also service community needs” does not of itself constrain the ability to deliver other retail development. [145] In this case, all of the economic experts agree that, given the proposed 300 square metre limits on the size of individual tenancies, the proposed development will not have an impact on other centres within the hierarchy. [146] The second provision relied on is s 3.4.2.1(b)(i). It is part of the implementation framework within the Strategic framework. It is a specific outcome for Element 1 – Natural (competitive) advantage and key economic sectors for the Economic development theme. It states: “The traditional sectors of retail, construction, tourism and rural activities are supported through the following:- (i) facilitation of development in appropriate locations as provided for by zoning allocations, and particularly in regional activity centres and infill and greenfield major development areas in the Sunshine Coast Enterprise Corridor.” (emphasis added) [147] The proposed development involves retail facilities that are not located in the Sunshine Coast Enterprise Corridor. The Appellants submit that, for that reason, it fails to comply with s 3.4.2.1(b)(i) of the Planning Scheme. [148] I do not accept that s 3.4.2.1(b)(i) limits the provision of retail activities to the Sunshine Coast Enterprise Corridor. The limitation does not appear in the provision itself. Further, a broader reading of the Planning Scheme does not support such a construction. Each of s 3.2.1 and s 3.3.1(e) indicates that the “majority” of new growth is to be located in the Sunshine Coast Environment Corridor: it does not require all new growth to so locate. Likewise, s 3.2.2 states that the Sunshine Coast Environment Corridor is the “leading” location for economic development: it is not the only location. Section 3.4.1(e) similarly stipulates that the Sunshine Coast Environment Corridor is the “key area for economic development and residential growth”: it is not the only area for such growth. [149] Section 3.4.2.1(b)(i) supports the retail and tourism sector by facilitating development in appropriate locations, including as provided by zoning allocations. Although the -- 181 of 269 -- Original reasons p 38 subject land is within the Emerging community zone, it is apparent from overall outcome (2)(c)(i) of the Emerging community zone code and the Coolum local plan code that the intended outcomes for the land in the Emerging community zone within the Coolum local plan area are identified by reference to performance outcome PO16 of the Coolum local plan code. Relevantly, performance outcome PO16(f) seeks retail and commercial development. Such development is to be limited to resort facilities and local convenience goods only. [150] The economists all agree that the likely tenants for the retail and commercial area would be a convenience or food store; a range of food catering outlets including breakfast or lunch café, some night time restaurants together with juice or ice-cream gelato store; potential pharmacy; liquor store; giftware or souvenir or resort shop containing a range of products such as beachwear; and hair and beauty and spa treatment tenants. During cross-examination, Mr Brown accepted that this likely mix of retail and service outlets falls within the description of retail and commercial development supported by performance outcome PO16(f) of the Coolum local plan code. I agree. I am satisfied that there is no unacceptable departure from the outcome sought by performance outcome PO16(f) of the Coolum local plan code. [151] For the reasons provided in paragraphs [146] to [150] above, I am satisfied that the proposed development complies with s 3.4.2.1(b)(i). [152] The third provision raised by the Appellants is s 3.4.3.1(c). It is also part of the implementation framework within the Strategic framework. It is a specific outcome for Element 2 – Sunshine Coast activity centre network in the Economic development theme. It states: “Development does not undermine or compromise the activity centre network either by inappropriately establishing centre activities outside of a centre or proposing a higher order or larger scale of uses than intended for a particular activity centre”. [153] The Appellants submit that the proposed development fails to comply with this provision as it would involve the establishment of retail facilities outside of a centre. They say such retail facilities would effectively comprise a new local (not full line) activity centre, when there is already such a centre in the locality to serve the needs of residents. The Appellants did not refer to any evidence in support of their submission. [154] I do not accept the Appellants’ submission. It is no more than a bald assertion. Although Mr Adamson approached this issue on the assumption that the retail and commercial facilities would constitute a local centre, as was attested to by Mr Brown, the limit on the size of the tenancy will mean the retail and commercial facilities will not become a local centre. In addition, the planning outcome sought by the provision is that development does not undermine or compromise the activity centre network. All of the economic experts agree that, given the proposed 300 square metre limits on the size of individual tenancies, the proposed development will not have an impact on other centres within the hierarchy. I accept the opinions of the economists in this regard. Their opinions were supported by sound reasons and were unchallenged. Accordingly, I am satisfied that approval of the proposed development would not conflict with s 3.4.3.1(c). -- 182 of 269 -- Original reasons p 39 [155] As for the fourth provision relied on by the Appellants, s 3.4.6.1(e)(ii) of the Strategic framework,455 I am satisfied that there is no relevant non-compliance for the reasons already provided in paragraphs [78], [79], [83], [153] and [154] above. Does the proposed development comply with applicable provisions of the Emerging community zone code that guide commercial development? [156] As I have already noted in paragraphs [101] to [107] above, whether there is compliance with the purpose statement in s 6.2.17.2(1)(c) and overall outcomes (2)(c)(i) and (v) of the Emerging community zone code will depend on a consideration of other provisions of the Planning Scheme relating to commercial and retail development and generally about development of the subject land. [157] For reasons provided in paragraphs[51] to [85] and [142] to [155] above and paragraphs [158] to [177] below, I am satisfied that the proposed development complies with the provisions of the Emerging community zone code. Does the proposed development comply with the provisions of the Coolum local plan code that guide commercial development? [158] The Appellants allege the proposed development does not comply with overall outcomes (2)(a), (c) and (j) and performance outcome PO16 of the Coolum local plan code.456 [159] In Exhibit 28D457 the Appellants allege that the proposed development does not provide an appropriate level of commercial development. This is what they say results in non-compliance with overall outcomes (2)(a) and (j). In the First Appellant’s Second Further Amended Submissions, the First Appellant says it has highlighted in red the key parts of each provision that it says give rise to non- compliance. That part of overall outcomes (2)(a) and (j) highlighted in red are those words emphasised below: “(a) The Coolum local plan area remains a low key coastal urban community, with a strong focus on tourism and well serviced by a range of small-medium scale business, community, sport and recreational activities. (j) The Palmer Coolum Resort and The Coolum Residences continues to be developed as an integrated tourist and residential development focussed around an 18 hole championship golf course and large areas of open space. Development is configured in a series of beachside villages and other precincts that sit lightly in the landscape and that are separated by green corridors and lush subtropical landscaping. Development protects the natural vegetated character of the coastal foreshore and foredunes and respects the scale and character of surrounding area and vegetation. Dense vegetated buffers are maintained along the David Low Way and surrounding the Palmer Coolum Resort to effectively screen development and protect the scenic amenity of David Low Way and the amenity of nearby residential areas.” (emphasis added) 455 Set out in paragraph [51] above. 456 Overall outcomes (2)(a) and (j) and performance outcome PO16 of the Coolum local plan code are set out in paragraphs [110] and [123] above. 457 Exhibit 28D needs to be read in conjunction with Exhibit 28F to appreciate those provisions that remained in issue at the end of the trial. -- 183 of 269 -- Original reasons p 40 [160] The Appellants provide no further assistance about these allegations of non- compliance insofar as they relate to the commercial aspect of the proposed development. (The potential character and amenity impact of the proposed development are dealt with as a separate issue below.) [161] I accept the evidence of Mr Schomburgk that with the closure of the Palmer Coolum Resort, the locality lacks any identifiable “focus” facility. The proposed development will fill that role. The nature of retail and commercial facilities proposed accord with the planning goal to retain a strong focus on tourism and to ensure that the area will be well served by a range of small-medium scale business, community, sport and recreational activities. As I have already noted above, I accept the evidence of the economists that the proposed development will not have an impact on other centres within the hierarchy. I am satisfied that approval of the proposed development will not detract from the ability of the other centres in the area to deliver the level of service they currently provide. Accordingly, there is no evident non-compliance with overall outcomes (2)(a) or (j) occasioned by the scale of the proposed retail and commercial facilities. [162] Overall outcome (2)(c) states: “Centre activities are consolidated within the Coolum Beach Town Centre in the east of the local plan area and generally bounded by Margaret Street, David Low Way (also known as Coolum Esplanade), Elizabeth Street and Sunrise Avenue. The Coolum Beach Town Centre functions as a small district activity centre providing a range of commercial, retail, community and residential uses to service the needs of residents and visitors to the area. Mixed uses and uses which enhance the beachside character and district level role and function of the Coolum Beach Town Centre are encouraged. Retail and commercial development does not extend beyond the boundaries of the District centre zone and Tourist accommodation zone. No new large floor plate retail uses are intended to be established in the Coolum Beach Town Centre. Residents continue to rely upon the nearby larger centres of Maroochydore, Nambour and Noosa Business Centre to fulfil higher order business and retail needs.” (emphasis added) [163] The Appellants allege non-compliance with that part of overall outcome (2)(c) emphasised above. Paragraph 138 of the First Appellant’s written submissions states: “Development Watch submits that the Proposed Development involves stark and obvious non-compliance with the Coolum Local Plan, in that: (i) It fails to respect the character of the area; (ii) It results in adverse impacts on views and visual amenity generally; (iii) It does not integrate uses, in particular, there is no integration with the Coolum Resort; (iv) It fails to maintain and enhance the environmental values reflected in the nesting/hatching of Loggerhead Turtles on the adjacent beach; (v) It will not minimize access to David Low Way – indeed, it involves the construction of two new accesses; and (vi) It does not maintain and enhance the vegetated buffers along David Low Way (which are specifically identified on the Coolum Local Plan Map as forming a buffer along a significant view.” -- 184 of 269 -- Original reasons p 41 [164] These submissions do not advance any clear basis for the Appellants’ allegations of non-compliance with the Coolum local plan code by reason of the proposed retail and commercial aspects of that development. The Appellants did not explain how they say the planning outcome in overall outcome (2)(c) should be reconciled with that in performance outcome PO16(f). The Appellants did not cavil with either SHC’s or the Council’s submission that the planning outcome in overall outcome (2)(c) yields to the more specific guidance for the subject land in performance outcome PO16(f). [165] The proper approach to the resolution of potential inconsistency (or conflict) within a statute was considered in Project Blue Sky Inc v Australian Broadcasting Authority.458 McHugh, Gummow, Kirby and Hayne JJ said: “Conflicting statutory provisions should be reconciled so far as is possible [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.” (footnotes omitted) [166] If one accepts the Appellants’ position that there is non-compliance with overall outcome (2)(c), there is tension between overall outcome (2)(c) and performance outcome PO16(f) of the Local plan code. Although the Appellants do not articulate the basis of their allegation of non-compliance, it would seem they contend that the statement in overall outcome (2)(c) that “Retail and commercial development does not extend beyond the boundaries of the District centre zone and Tourist accommodation zone” should be read as excluding the potential for retail and commercial development other than on land in the District centre zone or the Tourist 458 [1998] HCA 28; (1998) 194 CLR 355, 381-2 [69]-[71]. -- 185 of 269 -- Original reasons p 42 accommodation zone of the Coolum local plan area. I do not accept that overall outcome (2)(c) so limits retail and commercial development in the Coolum local plan area. [167] As was noted by Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council:459 “The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.” [168] Properly construed, overall outcome (2)(c) of the Coolum local plan code is directed at ensuring that the Coolum Beach Town Centre will function only as a small district activity centre. It is not directed at ensuring that there is no retail or commercial development in the Coolum local plan area other than on land in the District centre zone or the Tourist accommodation zone. I say that for three reasons. [169] First, the construction is supported by reading the sentence relied on by the Appellants in the context of overall outcome (2)(c) as a whole. The provision identifies the Coolum Beach Town Centre by naming the streets that bound the area that is described as the Coolum Beach Town Centre. The provision then stipulates that the Coolum Beach Town Centre is to function as a small district activity centre serving the needs of residents and visitors to the area. The planning goal expressed in the first paragraph of the overall outcome, namely that the Coolum Beach Town Centre is limited to a small district activity centre, is supported by the requirements of the second paragraph of the provision. The second paragraph contains three statements that support the goal of limiting the size of the district activity centre at Coolum. They are the requirement that retail and commercial development does not extend beyond the boundaries of the District centre zone and the Tourist accommodation zone; the stipulation that no new large floor plate retail uses are to be established in the Coolum Beach Town Centre; and the statement that the residents are to continue to rely on the nearby larger centres of Maroochydore, Nambour and Noosa Business Centre to fulfil higher order business and retail needs. The Coolum local plan map supports this construction as it shows that the only land in the Coolum local plan area in the District centre zone and the Tourist accommodation zone is that proximate to the Coolum Beach Town Centre described in the first paragraph of overall outcome (2)(c). [170] Second, overall outcome (2)(f) lends support to the construction. It states: “The Coolum West Local Centre, located along the Yandina-Coolum Road and South of Coolum Road, functions as a local (full service) activity centre servicing the convenience needs of nearby residents. Development within the Coolum West Local Centre supports, and does not detract from, the role of the Coolum Beach Town Centre as the district activity centre for the local area and contributes to the establishment of a gateway to Coolum through the provision of streetscape and landscaping treatments. Retail and commercial development in this area does not extend beyond the boundaries of the Local centre zone, other than for the purposes of small scale office activities on Lot 26 RP 80884 at 135 Yandina-Coolum Road, Coolum.” 459 [2014] QCA 147; [2014] QPELR 686, 700 [56] citing Westfield Management Ltd v Pine Rivers Shire Council [2005] QPEC 15; [2004] QPELR 337, 342. -- 186 of 269 -- Original reasons p 43 [171] The existence of this provision confirms that the effect of overall outcome (2)(c) is not to limit retail and commercial development in the Coolum local plan area to the District centre zone and the Tourist accommodation zone only. To so construe the provision would deny overall outcome (2)(f) operation, as retail and commercial development would be prevented from establishing in the Local centre zone. Like overall outcome (2)(c), overall outcome (2)(f) is directed at excluding the spread or creep of retail and commercial development into lots that surround the centre. [172] Third, performance outcome PO16(f) of the Coolum local plan code lends support to the proper construction identified above. Performance outcome PO16(f) requires development in the Emerging community zone in the Coolum local plan area to provide for retail and commercial development, albeit limited to resort facilities and local convenience goods only. This provision could have no operation were a construction of overall outcome (2)(c) adopted that supported a finding of non- compliance as alleged, but not explained, by the Appellants. This would offend the principle that a court construing a statutory provision must strive to give meaning to every word of the provision. Also, it would not accord with s 5.3.3(c) of the Planning Scheme, which indicates that a development that complies with the performance outcomes or acceptable outcomes of a code in the Planning Scheme complies with the purpose and overall outcomes of the code.460 [173] For the reasons expressed above, overall outcome (2)(c) is not relevant to an assessment of the development application. If I were wrong about that, I would not ascribe determinative weight to the resultant non-compliance with overall outcome (2)(c). This is because it would result in an inconsistency between overall outcome (2)(c) and performance outcome PO16, which would appropriately be resolved by applying the principle of generalis specilibus non derogant.461 [174] Performance outcome PO16 of the Coolum local plan code is a key provision that guides the nature of retail and commercial development considered appropriate on the subject land.462 It requires development in the Emerging community zone to provide for retail and commercial development that is limited to resort facilities and local convenience goods only. As I have already noted in paragraph [150] above, I am satisfied that there is no unacceptable departure from the outcome intended under performance outcome PO16(f) of the Coolum local plan code. Does the proposed development comply with the provisions of the Business uses centre design code? [175] The Appellants allege the proposed development does not comply with the purpose in s 9.3.1.2(1)(a), overall outcome (2)(a) and performance outcome PO1 of the Business uses centre design code. They state: “(1) The purpose of the Business uses and centre design code is to ensure business uses and other centre activities:- (a) are developed in a manner consistent with the Sunshine Coast Activity Centre Network; 460 Although s 5.3.3(c) contains the rules for code assessment, the same code applies to impact assessment and there is nothing in the Planning Scheme that suggests that compliance with the code is achieved in a different manner for an impact assessable application than for a code assessable application. The parties all accepted this to be so. 461 Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338, 348. 462 It is set out in paragraph [123] above. -- 187 of 269 -- Original reasons p 44 … (2) The purpose of the Business uses and centre design code will be achieved through the following overall outcomes:- (a) a business use or centre activity is consistent with the Sunshine Coast Activity Centre Network; … PO1 The business use or centre activity is of a type, scale and intensity that is consistent with the Sunshine Coast Activity Centre Network.” [176] The Appellants submit that as the subject land is not identified as a centre in the Sunshine Coast Activity Centre Network, there is obvious non-compliance with this code. It says the non-compliance arises from the proposed retail component involving approximately 2 770 square metres of gross floor area, which it says is effectively a new local centre. The Appellants do not identify any evidence that support its submission. [177] I do not accept the Appellants’ assertions for the reasons provided in paragraphs [154] above. I am satisfied that the proposed development complies with these provisions for the reasons provided in paragraphs [83] and [142] to [155] above. Conclusion regarding acceptability of the commercial development [178] For the reasons provided above, I do not accept the Appellants assertions that the proposed retail and commercial aspects of the development fail to comply with the assessment benchmarks identified by them. Is the design of the proposed development appropriate? [179] The Appellants raise several allegations relevant to the design of the proposed development. They say that the proposed development is an overdevelopment of the subject land when assessed against the Planning Scheme. They also allege that the proposed development is not appropriately consistent with the existing and intended scale and character of the surrounding area and the natural environment. Further, the Appellants say that the proposed development will have an unacceptable impact on visual amenity, scenic amenity, and views to and from locally and regionally significant places. In support of their allegations, the Appellants allege non- compliance with numerous assessment benchmarks, in particular: (a) s 3.2.4, s 3.3.1(a) and (m), s 3.3.2.1(a)(i), (ii), (iii) and (iv), s 3.3.3.1(d)(v), s 3.3.4.1(c), s 3.3.9.1(a), s 3.4.6.1(e)(ii) and (v), s 3.5.1(d) and (i), s 3.7.1(f), s 3.8.1(d), (g) and (h), s 3.8.2.1(c) and (g), and s 3.8.3.1(c) and (d) of the Strategic framework; (b) the purpose in s 6.2.17.2(1)(a) and (c) and overall outcomes (2)(c)(i), (v), (vi) and (viii) of the Emerging community zone code; (c) overall outcomes (2)(a), (j) and (k), and performance outcomes PO1, PO2, PO3 and PO16 of the Coolum local plan code; (d) the purpose in s 8.2.8.2(1), overall outcomes (2)(a) and (b) and performance outcome PO1 of the Height of buildings and structures overlay code; -- 188 of 269 -- Original reasons p 45 (e) the purpose in s 9.3.11.2(1), overall outcome (2)(b) and performance outcome PO6 of the Multi-unit residential uses code; and (f) overall outcome (2)(c) of the Transport and parking code. [180] The Council submits that while the Appellants allege non-compliance with an overwhelming number of provisions of the Planning Scheme, the “real issues” in dispute between the parties in respect of the overdevelopment issue463 requires one to focus on the provisions of the Coolum local plan code. SHC make a similar submission. I agree. As is noted in the Planning Scheme itself, local plans organise the Planning Scheme area at the local level and provide more detailed planning for the zones464 and, in the case of the Coolum local plan code, the code provides “locally relevant planning provisions for the assessment of development within the Coolum local plan area.”465 The Appellants’ town planning expert, Mr Adamson, acknowledged this. As such, it is convenient to turn first to the provisions put in issue by the Appellants in respect of the Coolum local plan code before turning to the balance of the provisions on which the Appellants rely. Does the design of the proposed development comply with the Coolum local plan code? [181] The provisions in the Coolum local plan code that the Appellants put in issue with respect to an assessment of the acceptability of the design of the proposed development are overall outcomes (2)(a), (j) and (k), and performance outcomes PO1, PO2, PO3 and PO16. They state: “(2) The purpose of the Coolum local plan code will be achieved through the following overall outcomes:- (a) The Coolum local plan area remains a low key coastal urban community, with a strong focus on tourism and well serviced by a range of small-medium scale business, community, sport and recreational activities. … (j) The Palmer Coolum Resort and The Coolum Residences continues to be developed as an integrated tourist and residential development focussed around an 18 hole championship golf course and large areas of open space. Development is configured in a series of beachside villages and other precincts that sit lightly in the landscape and that are separated by green corridors and lush subtropical landscaping. Development protects the natural vegetated character of the coastal foreshore and foredunes and respects the scale and character of surrounding area and vegetation. Dense vegetated buffers are maintained along the David Low Way and surrounding the Palmer Coolum Resort to effectively screen development and protect the scenic amenity of David Low Way and the amenity of nearby residential areas. (k) Development is designed and sited to protect significant environmental area, character vegetation and views either to or from important landscape features and to reflect the physical 463 The same is true of the other issues that relate to the design of the development. 464 See s 7.1(1) of the Planning Scheme. 465 See s 7.2.8.3(1) of the Planning Scheme. -- 189 of 269 -- Original reasons p 46 characteristics and constraints of the land, including the protection of sensitive slopes, remnant vegetation and other ecologically important areas. Performance Outcomes Acceptable Outcomes Development in the Coolum Local Plan Area Generally (All Zones) PO1 Development provides for buildings, structures and landscaping that are consistent with, and reflect the low key beachside character of, the Coolum local plan area in that they are integrated with the natural and coastal landscape and skyline vegetation in terms of scale, siting, form, composition and use of materials. AO1.1 Development for a residential, business or community activity provides for building design which incorporates the following features:- (a) a mix of lightweight and textured external building materials, including timber finishes or masonry construction with variation provided in texture and detailing; (b) articulated, pitched, skillion or curved roof forms; (c) open or transparent balustrades; and (d) landscaping integrated into the building design. AO1.2 Development uses understated colour schemes and low- reflective roofing and cladding materials. AO1.3 Development provides for existing mature trees to be retained and incorporated into the development design. PO2 Development contributes to the establishment of attractive and coherent streetscapes and gateways to enhance the sense of entry to and the coastal village character of the Coolum local plan area. AO2.1 Development adjacent to a primary streetscape treatment area or gateway/entry point where identified on Figure 7.2.8A (Coolum local plan elements):- (a) incorporates architectural and landscape treatments which enhance the sense of arrival to, and the coastal village character of, the Coolum local plan area and emphasise corner locations; and (b) incorporates building materials such as varied roof forms, changes in -- 190 of 269 -- Original reasons p 47 Performance Outcomes Acceptable Outcomes materials and variations in projected and recessed elements and facades. AO2.2 Development provides for streetscape improvements which complement existing or proposed streetscape works in the local area to ensure continuity of streetscapes and landscape design. Note—Section 9.4.2 (Landscape code) sets out requirements for streetscape landscapes including entry statement landscapes. Note—a landscape master plan may provide further guidance regarding particular streetscape treatments in a local plan area. PO3 Development provides for the retention and enhancement of key landscape elements including significant views and vistas, existing character trees and areas of significant vegetation, contributing to the setting, character and sense of place of the Coolum local plan area. AO3.1 Development protects and emphasises, and does not intrude upon, the important sightlines and views to and from Coolum Beach, Mount Coolum, Emu Mountain, Eurungunder Hill, Point Arkwright and Point Perry, including where identified on Figure 7.2.8A (Coolum local plan elements). AO3.2 Development provides for the retention and enhancement of existing mature trees and vegetation contributing to the character and vegetated backdrop of the local plan area including:- (a) vegetation on elevated hilltops and ridgelines; (b) vegetation along David Low Way; and (c) other character vegetation where identified on Figure 7.2.8A (Coolum local plan elements). Note–in some circumstances, the eradication of weed species and planting of locally native species that make a comparable contribution to local character may also satisfy the Acceptable Outcome. -- 191 of 269 -- Original reasons p 48 Performance Outcomes Acceptable Outcomes Development in the Emerging Community Zone (Precinct COL LPP-1, Palmer Coolum Resort and The Coolum Residences) PO16 Development in the Emerging community zone in Precinct COL LPP-1 (Palmer Coolum Resort and The Coolum Residences) identified on Local Plan Map LPM11:- (a) maintains the primary function of the site as an integrated tourist facility; (b) provides for the retention of large areas of open space, including the 18 hole championship golf course; (c) provides for a range of residential accommodation types set in discrete beachside precincts and separated by greenspace; (d) protects the natural vegetated character of the coastal foreshore and foredunes; (e) provides for development and building design which respects the scale and character of surrounding areas and vegetation; (f) provides for retail and commercial development to be limited to resort facilities and local convenience goods only; (g) provides for the maintenance and enhancement of public access to the beach and foreshore in a manner that respects the natural foredune and beach character and environmental values; (h) minimises and rationalises access to David Low Way, Warren Road and other local roads; (i) protects the visual amenity of the road network through the maintenance and enhancement of dense vegetated buffers to David Low Way and surrounding the Palmer Coolum Resort; and AO16 No acceptable outcome provided. Editor’s Note—Development in the Emerging community zone at Palmer Coolum Resort and The Coolum Residences is currently regulated in accordance with an approved Master Plan and Plan of Development. -- 192 of 269 -- Original reasons p 49 Performance Outcomes Acceptable Outcomes (j) provides for the maintenance and enhancement of the environmental and landscape values of the area including, but not limited to, the Yaroomba Parabolic Dune, rainforest areas on the Palmer Coolum Resort site, and views to and from Mount Coolum and Point Arkwright. (emphasis added) [182] The emphasis added to these provisions reflects those words that the Appellants say give rise to non-compliance that are relevant to the design issues.466 [183] These provisions raise four factual issues for consideration. 1. Does the proposed development provide for a design that has an appropriate character? 2. Does the proposed development respect the scale of the surrounding area and vegetation? 3. Does the proposed development provide for an appropriate configuration of built form and landscaping? 4. Does the proposed development provide for a design and siting that appropriately protects views and visual amenity? Does the proposed development provide for a design that has an appropriate character? [184] The Appellants allege that the proposed development will have a deleterious impact on the character of the locality and, as such, does not comply with the provisions of the Planning Scheme. The Appellants’ submissions were of little assistance in appreciating the basis for their allegation and the evidence they rely on to substantiate it. Although not clearly articulated, their position appears to be premised on the proposition that although infill development is contemplated for the subject land, it is intended that such development is to retain the current low-density form that is the predominant existing form of development in the area from Point Arkwright in the north to the Boardwalk in the south. The Appellants say that the reference to “low key” character in overall outcome (2)(a) and performance outcome PO1 of the Coolum local plan code should be construed as a reference to unobtrusive, understated development consistent with the existing character of coastal communities. They submit that the provisions of the Height of buildings and structures overlay code indicates that, with regard to height, this “low key” characteristic indicates a maximum of two or three storeys for development. During cross-examination of Mr Schomburgk, Mr Skoien suggested that the requirements in overall outcome (2)(a) and performance outcome PO1 of the Coolum local plan code 466 I deal with the Appellants’ allegations about non-compliance with performance outcome PO16(a) and (f) elsewhere in my reasons for judgment. -- 193 of 269 -- Original reasons p 50 reflect an intention that development have a low-rise built form, no more than two storeys in the main, generally clumped together in urban communities that are separated by mature vegetation. Mr Schomburgk did not accept the proposition. Nor do I. [185] The term “low key” is a relative notion. Whether the proposed development fits the description should be judged in the context of the Planning Scheme in which the terms appear and the area to which they apply.467 [186] In this case, a key indication of the intended planning outcome sought by use of the term “low key” is evident from the context in which the term is used in performance outcome PO1. It requires new “buildings, structures and landscaping” to be: “consistent with, and reflect the low key beachside character of the Coolum local plan area in that they are integrated with the natural and coastal landscape and skyline, vegetation in terms of scale, siting, form, composition and use of material”. (emphasis added) [187] The words “in that” are a causal transition that is used to explain or define the result intended by the requirement to be “consistent with and reflect the low key beachside character”. In terms of scale, the defining feature is not the mapping shown on Height of Buildings and Structures Overlay Map OVM11H, nor the predominant height or density of built form in the surrounding area. Rather, the buildings, structures and landscaping are required to integrate with the natural and coastal landscape and skyline vegetation. [188] The acceptable outcomes support this construction. They do not refer to the Height of Buildings and Structures Overlay Map OVM11H. They do not otherwise specify a height that provides an acceptable outcome. The requirements contained in these provisions do not refer to metrics such as building height, site cover, plot ratio, or metrics for density: rather, they require a qualitative consideration of the proposed development. Further, the qualitative consideration does not refer to surrounding built form or the predominance of dwelling houses. Consistently with the words that follow the expression “in that” in performance outcome PO1, acceptable outcome AO1.1 is concerned with building forms and building materials that will visually integrate with the natural and coastal landscape and the skyline vegetation. Similarly, the requirement in acceptable outcome AO1.2 that there be understated colour schemes and low-reflective roofing and cladding material is consistent with a planning desire to achieve integration between the new built form and the landscape. Acceptable outcome AO1.3 is concerned with the retention of existing mature trees and their incorporation into the development design. Again, this supports a planning intent that new built form integrates with nature. [189] The predominant maximum height on the Height of Buildings and Structures Overlay Map OVM11H for the Coolum local plan area is 8.5 metres. There is some land mapped with a height limit of 12 metres (typically at Coolum Beach), as well as a 16 467 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26; [2013] QPELR 557, 574 [66]. In Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686 at 700 [56]-[57] and AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 at 19 [73] the Court of Appeal confirmed that the established principles and canons of statutory construction apply to the construction of planning documents. Planning schemes are to be read as a whole, in a way that is practical, and as intending to achieve balance between outcomes. -- 194 of 269 -- Original reasons p 51 metre limit in the Boardwalk area where there are some existing buildings of four storeys.468 [190] I do not accept the Appellants’ submission that the Height of Buildings and Structures Overlay Map OVM11H “mandates a maximum height of 8.5 metres across the site”. Nor do I accept their submission that the provisions of the Height of buildings and structures overlay code indicate that the reference to “low key” in the Coolum local area plan indicates a maximum of two or three storeys for development. [191] The Height of Buildings and Structures Overlay Map OVM11H for the Coolum local plan area must be considered in the context of those provisions of the Planning Scheme that call it in aid, namely the Height of buildings and structures overlay code. Of itself, the mapping does not operate as a restriction on development. [192] Section 8.2.8.2(1) records that the purpose of the Height of buildings and structures overlay code is to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form. The purpose is to be achieved through the overall outcomes. None of the overall outcomes calls up the mapping on the Height of Buildings and Structures Overlay Map. The map is only called into operation by performance outcomes PO1 and PO2. They state: “PO1 The height of a building or structure does not exceed the maximum height specified on a Height of Buildings and Structures Overlay Map, except where:- (a) for one of the following:- (i) a structure for an extractive industry or rural industry in the Rural zone; (ii) a structure for an industrial use in the:- (A) Medium impact industry zone; or (B) High impact industry zone; (iii) a structure for a sport and recreation use in the:- (A) Sport and recreation zone; or (B) Open space zone; (iv) a structure for a telecommunications facility in the:- (A) Rural zone; (B) Principal centre zone; (C) Major centre zone; (D) District centre zone; (E) Specialised centre zone; (F) Low impact industry zone; (G) Medium impact industry zone; or (H) High impact industry zone; or (v) a structure for a tourist attraction in the Tourism zone in Precinct TOU-2 (Aussie World); and 468 The land in the High Impact industry zone has a height limit of 15 metres. -- 195 of 269 -- Original reasons p 52 (b) not adversely impacting upon the character of the local area or resulting in a significant loss of amenity for surrounding development. PO2 Where adjoining land with a lower maximum building height as specified on a Height of Buildings and Structures Overlay Map, development provides for a transition of building height adjacent to this land to minimise amenity impacts and achieve a greater consistency of character and scale.” [193] It is apparent from these provisions that the map does not operate to mandate a maximum building height. There are exceptions in performance outcome PO1, such that greater height is anticipated in specified circumstances. In addition, the operation of performance outcome PO2 may result in a lesser maximum building height for particular land than that contemplated as the maximum on the map. [194] Further, although the exceptions in performance outcome PO1 do not apply to the subject land (because it is not within any of the zones identified in sub-paragraph (a))469 that does not demonstrate that a height of 8.5 metres is a mandated outcome for the subject land. It was not disputed that compliance with the Height of buildings and structures overlay code can be demonstrated by achieving compliance with any of the overall outcomes, or performance outcomes or acceptable outcomes.470 As such, development can achieve compliance with the overlay code if it complies with the overall outcomes. The overall outcomes do not refer to the Height of Buildings and Structures Overlay Map OVM11H, nor otherwise contain metrics that regulate the intended height. [195] Overall outcome (2)(a) of the Height of buildings and structures overlay code requires development to contribute to the retention of the preferred built form character for the Sunshine Coast and the local plan in which it occurs. Overall outcome (2)(b) requires the height of buildings and structures to be consistent with the reasonable expectations of the local community. In this case, the assessment against the Coolum local plan code informs compliance with each of these provisions. Overall outcome (2)(c) requires a qualitative consideration of the proposed development in its existing context to ascertain whether it will result in a significant loss of amenity for surrounding development. These overall outcomes lend support to the notion that the Height of Buildings and Structures Overlay Map OVM11H does not mandate a maximum height of 8.5 metres across the subject land. They do not support the construction of overall outcome (2)(a) and performance outcome PO1 contended for by the Appellants. [196] The Appellants also rely on s 3.2.1 of the Planning Scheme in support of their construction. It says: “Other opportunities for infill development are provided in selected locations throughout the urban fabric, although many established low density residential 469 The Appellants submit that sub-paragraph (b) of performance outcome PO1, of itself, operates as an exception to the obligation to comply with the height nominated in the overlay. I disagree. I accept the Council’s submission that sub-paragraphs (a) and (b) are cumulative. 470 See s 5.3.3 of the Planning Scheme and Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 388 [50]. See also United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, 537 [118] and K & K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 625 [375] (overturned in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 but not on this issue). -- 196 of 269 -- Original reasons p 53 neighbourhoods are retained in their current form in recognition of the high quality lifestyle and character offered by these areas.” [197] The Appellants’ submission ignores that this provision does not require all residential neighbourhoods to be retained in their current form: it refers to “many”. [198] The Appellants also seek to garner support for their position from s 7.2.8.2 of the Coolum local plan code. The Planning Scheme states that this section is extrinsic material under s 15 of the Statutory Instruments Act 1992. It is intended to assist in the interpretation of the Coolum local plan code. It provides a description of the existing context and setting. It, relevantly, records: “The Coolum Local Plan area is located in the central eastern part of the Sunshine Coast between the coastal communities of Marcoola and Peregian Beach and includes the coastal township of Coolum Beach and surrounding communities of Point Arkwright, Yaroomba, Mount Coolum and The Boardwalk as well as renowned tourism developments such as the Palmer Coolum Resort … The local plan area is traversed by Stumers Creek and framed by a picturesque natural setting, including the South Peregian section of the Noosa National Park to the north, rural land to the west, Mount Coolum National Park in the south and the Pacific Ocean in the east. Other significant environmental and landscape features within the local plan area include the Coolum section and part of the Peregian section of the Noosa National Park, Point Perry, Point Arkwright with its mosaic of significant remnant vegetation and rocky shore ecosystem, Emu Mountain and Eurungunder Hill and the Yaroomba parabolic dune which contribute to the character, identity and sense of place of Coolum. The local plan area is characterised by predominantly dwelling houses with some multi unit development and tourist accommodation mainly in the beachfront areas of Coolum Beach and to a lesser extent, Point Arkwright and Mount Coolum (The Boardwalk).” [199] I accept that s 7.2.8.2 assists me to appreciate the low-key coastal urban community character sought to be maintained and the character intended to be respected. As is recorded in the description above, the natural setting and landscape features in the area contribute to the character, identity, and sense of place of Coolum. The Noosa National Park to the north, rural land to the west, Mount Coolum National Park to the south and the Pacific Ocean to the east define the boundaries of the coastal urban community the subject of the Coolum local plan area. The national parks frame area. They separate it from the coastal community of Peregian to the north and Marcoola to the south, thereby avoiding undistinguishable tracts of urban sprawl. Consistent with overall outcome (2)(g) of the Coolum local plan code, land to the west of Barns Lane and South Coolum Road provides a natural landscape gateway to Coolum. Further, bare acoustic walls and signage or continuous built form does not flank the key transport corridor that traverses the Coolum local plan area. Rather, provision of vegetated buffers along parts of David Low Way contributes to the “low key” coastal character of the area. This is apparent from the numerous photos of the area. The photographs accord with what I viewed during a site inspection. They provide a fair representation of the character of the area. [200] Mr King, the visual amenity expert retained by the Appellants, recognises the importance of the identified significant environmental and landscape features to the character of the Coolum local plan area. As Mr King notes in the Second Visual Amenity Joint Expert Report, Table 3.8.2.1 of the Planning Scheme identifies Mount -- 197 of 269 -- Original reasons p 54 Coolum, the beaches, the parabolic high dunes and the coastal headlands as regionally significant landscape features. Section 3.8.2.1 requires these prominent landscape features, and views to them, to be protected from intrusion from buildings and other aspects of urban development. This is consistent with the planning intent that the Coolum local plan area remains a low-key coastal urban community and that built form in the area integrate with the natural and coastal landscape. Mr King emphasises the importance of these landscape qualities to the special character of Coolum in the Second Visual Amenity Joint Expert Report where he notes that the Sunshine Coast Council promotes the area for its special character and landscape qualities in the following terms: “A laid-back seaside vibe is what Coolum offers, along with patrolled surf beaches all year round. The area is in constant view of Mount Coolum, a grand volcanic dome that presides over the landscape – beckoning you to conquer it. The rocky headlands of Point Perry and Point Arkwright are in stark contrast to the wide-open beaches and provide the perfect viewing platforms.” [201] In addition to these regionally significant landscape features, landscaping throughout the local plan area contributes to the present low-key character of the area. This is well illustrated by figures 3, 4, 6, 7, 10 to 13, 15, 21 to 30 and 34 to 37 of the Second Visual Amenity Joint Expert Report and the many photographs throughout the local area provided by Mr Elliott and used as a base for his photomontages. For example, as Mr King observes, figures 25 and 27 show there is extensive landscaping along Yaroomba Drive, including well-planted roundabouts and median areas. Mr King says that the vegetation exhibits signs of dieback caused by strong saline winds. Although this may be apparent to his trained eye, the impact is not such as to detract from the impression that vegetation makes an important contribution to the overall character of the area. To the extent that the vegetation in the area looks windswept, it reinforces the impression that one is in a coastal area, where landscape is affected by coastal winds. I accept the evidence of Dr McGowan, the visual amenity expert retained by the Council, that Coolum benefits from a number of attractive landscape features and qualities and that the view to these features are an important contributor to the amenity of the area. [202] I have the benefit of expert opinion evidence from many experts about the design of the proposed development and the extent to which it is consistent with and reflects the low key beachside character of the Coolum local plan area and maintains the Coolum local plan area as a low key coastal urban community. [203] As I have already noted in paragraph [121] above, Mr Thompson opines that the design outcome has been informed by: (a) considered selection of locations for new development to retain the perception externally that the natural environment is dominant; (b) careful arrangement of the roadways and their connections to ensure a dominant natural environment experience as one moves through the subject land; and (c) deliberate fragmentation of the building masses where built form is softly feathered or fragmented at the edges, together with: (i) carefully designed areas of landscape between and around the buildings; and -- 198 of 269 -- Original reasons p 55 (ii) carefully modulated building edges, avoiding long single material planes and reflective materials, to allow the built form clad in natural materials to ultimately merge with the natural environment. [204] Mr Thompson says this results in the scale, length and height of the buildings being less easily distinguishable. He provides a cogent explanation as to how the proposed design of Stage 1 reflects these design principles. [205] In terms of the placement of buildings, Mr Thompson explains that place making for people is often less about where buildings are located, and more about where buildings are not located and the quality of the spaces between them. A sense of community ownership develops with respect to that space. He explained that in older style coastal communities there were no or few fences and short distances between buildings. This meant less use of the car and more movement by foot. Children were safe to run and play within and around an imagined community landscape. He says that a similar scenario can develop here, where boundaries between private and public space are more casual. In his view, this loose definition between public and private space is more commonly associated with traditional coastal communities. I accept it will contribute to public perception of a low-key character. [206] In addition, Mr Thompson opines that the development has been sensitively designed, with careful siting of built form, retention of substantial parts of the existing natural environment, provision for rehabilitation of other parts of the natural environment and substantial landscaping. In Mr Thompson’s opinion, the development reads as a village of buildings, each of a height not visible beyond the subject land, apart from those views obtained of it from higher elevations. He says the proposed development will have no visibility on approach from outside of the subject land, whether from David Low Way to the west or from Yaroomba beach to the east. Mr Powell and Dr McGowan, the visual amenity experts retained by SHC and the Council respectively, express similar opinions about the placement of buildings and the impact on the visibility of the proposed development. [207] Mr Powell says the proposed development will predominantly be concealed, and otherwise will present an unobtrusive view, from nearby locations. He says that when the subject land is experienced from surrounding roads and beaches, impacts of bulk and scale on the road network and foreshore users are minimised by ensuring that the larger buildings are set well back into the subject land, with building height stepping down towards the edges of the subject land. He says this results in the perimeter buildings screening or obscuring views to the larger buildings and perimeter vegetation being capable of appropriately screening and softening the appearance of both. Dr McGowan agrees. [208] Dr McGowan opines that the proposed development has been sited and designed in a way that is responsive to the natural and landscape features and visual qualities of the local environment. He notes that the vegetation on and around the subject land that makes a contribution to the local character and amenity, or to limiting views into the subject land, has been substantially retained and enhanced. This includes the vegetated buffer along David Low Way, as well as vegetation across the parabolic dune and the frontal dune to the east of the subject land. A significant extent of the vegetation and natural features within the subject land is to be retained, thereby integrating the proposed development with the landscape. -- 199 of 269 -- Original reasons p 56 [209] With respect to the arrangement of roadways and other connections, Mr Thompson explains that the proposed accommodation is arranged for relatively easy public access to the beach. He says a significant concept underlying the master planning arrangements is a concern for walkability. He anticipates that the inherently well- considered arrangement of pedestrian pathways and roadways, coupled with low speed limits, will encourage a highly pedestrianised environment. In this way, the careful arrangement of the roadways and their connections ensure a dominant natural environment experience as one moves through the subject land. [210] With respect to the architectural design and treatment and the landscape design, Mr Thompson says the development will appear as built fragmented forms interwoven with a significant amount of landscaping. He says the vegetation will reduce the building visibility in a number of ways, namely by being overshadowed, by walls not being visible, by glazing being in shade, and by the materials and natural colours combining with the fragmented forms and variations in materials as if an abstract camouflage. He opines that the potential impacts of height, scale and bulk have been ameliorated by the sensitive and careful composition and siting of the built form (including through the use of nonlinear facades broken by steps in plan and section); the use of natural and non-reflective materials; the use of natural earthy colours; considered tectonic details (i.e. how the building is fabricated and how the materials are joined and mixed, including through the use of screening, balustrading, recesses and steps, and the incorporation of other smaller elements of the façade) and sun-shading. He says these design attributes give the external form a seemingly non- repetitious and syncopated irregular pattern similar to that found in the natural landscape. Mr Thompson opines that overall there is a low visual impact on the natural qualities of the subject land. [211] Mr Schomburgk and Mr Perkins also opine that the proposed development is of a design that appropriately reflects the desired character for the area. [212] Mr Schomburgk says that the proposed development offers a well-vegetated development comprised of discrete sets of buildings separated by natural and manmade features that are predominantly screened from the view of those outside of the development by existing and proposed vegetation. He regards the design to be sensitive, with an appropriate use of building colours, material and articulation. On this basis, he opines that the proposed development exhibits a character that is expected and desirable for this part of the Sunshine Coast. [213] Mr Perkins says that there is a clear distinction between the character of the proposed development as it reads external to the subject land and how it reads internal to the subject land. He notes that the built form of the proposed development will be set back from the beach, Yaroomba parabolic dunes and David Low Way. It will be separated from these areas by Public parklands and open space. As such, he says the proposed development will largely retain the present interface of the subject land with these natural environments and public areas. He opines that this design response will assist to deliver a built form that reads external to the subject land as consistent with the low-key coastal community and low-key beach character of the Coolum local plan area. He considers that the considerable size of the subject land creates an uncommon design opportunity. He says the proposed development seizes the opportunity to deliver a built form that is buffered external to the subject land by a considerable landscape buffer along David Low Way. The size of the land also allows the provision of breaks in built form to provide public parks and landscaped areas -- 200 of 269 -- Original reasons p 57 between buildings and adjacent to site boundaries; and provides the ability to deliver a building height that transitions down to the boundaries of the subject land. Mr Perkins accepts that the character of the proposed development as viewed from the subject land is intensive relative to existing development in the near locality. He does not regard it as unacceptable because there is a considered building design and evident effort in the design of the public realm elements. In this regard, he approves of the inclusion of a central lake and pedestrian spine, parks and landscaped movement corridors to break up the built form on the subject land, and the placement of an identifiable mixed use village within the north eastern corner of the subject land. [214] Mr King and Mr Adamson were of a different opinion to the other experts. [215] Mr King does not regard the proposed development to be in keeping with the landscape character of the locality because he considers that the massing of built form and infrastructure and the limited areas of green space between them generates an urban character that overwhelms the natural coastal character on the subject land and in the surrounding area. Mr King’s views appear to be premised on three matters. [216] First, Mr King says that the bulk and scale of the buildings contrasts with the predominantly one to two storey low-rise dwellings in the locality. Mr King appears to have assumed that the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality.471 For the reasons already provided in paragraphs [184] to [201] above, I do not accept that overall outcome (2)(a) and performance outcome PO1 of the Coolum local plan code reflect an intention that development have a low-rise built form of no more than two storeys in the main. [217] Second, Mr King’s descriptions of the extent of the development and the limits of the green space are based on his review of the Yaroomba Beach Master Plan revision A,472 the Civil Works Overall Bulk Earthworks Plan,473 and a Vegetation Plan nominating locations of parks and screening.474 He says that the Vegetation Plan indicates that green space is limited in extent and generally located on the edges of the subject land. I do not accept Mr King’s description of the extent of green space. I do not regard it as a fair description of what is depicted on the Yaroomba Beach Master Plan revision A or the Vegetation Plan. The Civil Works Overall Bulk Earthworks Plan is of no utility in understanding the final extent of built form, and open space and landscaping, let alone the character of the development. 471 I accept the Council’s submission that Mr King is seemingly unaware of the structure of overall outcomes, performance outcomes and acceptable outcomes. That is apparent from his evidence during cross-examination when he was unable to explain whether he has assumed that compliance with acceptable outcomes was mandatory, despite being provided multiple opportunities to do so. Nevertheless, it is clear from his report that he has assumed that the Planning Scheme requires the height of the buildings to be commensurate with the predominantly one to two storey low-rise dwellings in the locality. Regardless of whether that assumption was based on his erroneous understanding about the operation of the Planning Scheme or instructions provided by others, the flawed assumption affects the reliability of the opinions he expressed. In forming his opinions, Mr King also relied on what he accepted were misleading statements about the effect of other provisions of the Planning Scheme. 472 See Figure 38 of the Second Visual Amenity Joint Expert Report. 473 See Figure 39 of the Second Visual Amenity Joint Expert Report. 474 See Figure 61 of the Second Visual Amenity Joint Expert Report. -- 201 of 269 -- Original reasons p 58 [218] The third matter that founds Mr King’s position is his concerns that the photomontages and architectural impressions do not accurately reflect the proposed development. Mr King makes several complaints about the photomontages. [219] Mr King, and the Appellants, question the utility of the photomontages prepared by Mr Elliott on the basis that he failed to prepare draft photomontages for consideration by the visual amenity experts prior to their finalisation despite there being agreement between Mr King and Dr McGowan (with no demurrer by Mr Powell) that this should occur. As is apparent from his report, Mr Elliott is an expert in preparation of survey- accurate photomontages. His expertise was not challenged. The photomontages prepared by him are expert evidence. There is no suggestion that Mr King possesses the same expertise as that possessed by Mr Elliott, nor does his curriculum vitae suggest he possess such expertise. There was no obligation for Mr Elliott to provide a draft of his expert evidence for critique by other experts in different disciplines prior to its finalisation, nor can there be any legitimate criticism of him for failing to do so. [220] The next criticism levelled at the photomontages by Mr King and the Appellants relates to those photomontages that depict potential development of the subject land in accordance with the Hyatt preliminary approval. Mr King and the Appellants criticise the use of ghosting over the existing developed parts of the Hyatt preliminary approval. Mr King says it is unnecessary. He says that at the meeting of the experts for the First Visual Amenity Joint Expert Report, the experts agreed to “ghost” buildings where information regarding their size and location was not available. I do not accept Mr King’s assertions in this regard. There is no record of such an agreement in the First Visual Amenity Joint Expert Report. To the contrary, the report records that Mr King and Dr McGowan requested the photomontages to include “the view showing a ghosted model of the Hyatt preliminary approval (for any viewpoints that it may be visible)”. Mr King also says that the use of ghosting is confusing. The use of ghosting has not caused me any confusion. The existing extent of development under the Hyatt approval is evident in the base photographs used for the photomontages. It is also recognisable within the ghosted blocks. In addition, Mr King says that the ghosting “appears to be inaccurate”. Mr King provides no elaboration on this. Mr Elliott was required for cross-examination. It was not suggested to him that the ghosting was inaccurate. Mr Elliott explained the process he followed to produce the photomontages of the Hyatt preliminary approval. I am satisfied that they are a fair representation of the maximum extent of the building envelopes that could be developed were the Hyatt preliminary approval implemented. [221] Mr King and the Appellants also criticise the failure to provide a photomontage that depicted the proposed development with the existing vegetation removed and with no landscaping included. They say such a photomontage would have demonstrated a “worst case” to provide balance to the “best case” put forward by SHC. Had the Appellants considered such evidence to be desirable, they were at liberty to call it. Further, there is no property in a witness. If Mr King did not have the skills, the Appellants could have engaged Mr Elliott to produce the extra photomontages at their cost. In any event, the absence of photomontages does not cause me concern. A photomontage that includes no provision for landscaping is not a “worst case”: it is an unrealistic case. SHC proposes to incorporate landscaping and will be required to do so by the conditions of the development approval. Although in the Second Visual Amenity Joint Expert Report Mr King describes the vegetation depicted in the -- 202 of 269 -- Original reasons p 59 photomontages as misleading, in his oral evidence he accepted it might be achieved just “Not in a hurry anyway. Or without shelter.” He also said: “So the – it is a difficult site from the point of view of plant selection. That doesn’t mean that you can’t address it. But it isn’t a typical landscape site where we have good soils and good plant growth which, you know, you would typically get in many locations. So it – it does require care, and the growth rates which were the growth rates on development to the site – on sites to the south of our site, appear to me to be not great given the ages – knowing the ages of these developments. … So in a nut shell, it’s – it – it’s windy and it’s affecting plant growth.” [222] Further, and in any event, I am satisfied that satisfactory growth of the vegetation is achievable. In this respect, I accept the evidence of Dr McGowan that while Mr King was able to identify a number of species in the Beachside estate exhibiting sub- optimal health, there are far more examples of species in reasonably good health. Examples are shown in the photographs in Figures 1 to 4 of the report of Dr McGowan. The vegetation in those photographs accords with what I observed on the site inspection. The decision notice also contains a number of conditions about landscape works, which provide further assurance with respect to this issue. They require all planting media to support the successful establishment and sustainable growth of approved plant species. All landscape works are required to be maintained in a manner that ensures healthy, sustained, and vigorous plant growth. All new plant material must be permitted to grow to full form and is to be refurbished when its life expectancy is reached. These requirements, and the other conditions in the decision notice about landscape works and retention of vegetation, will ensure that the vegetation is adequately maintained to provide effective screening. [223] Finally, with respect to the photomontages, Mr King says that there were deficiencies in the base data used, omissions of project documentation data, and inaccuracies in the portrayal of proposed vegetation screening. Mr King’s basis for concern was a general belief that some of the heights were inaccurate based on his “measurements”. He also believed that some of the photomontages depicted vegetation that is to be removed. Mr Elliott provided a comprehensive report addressing, and refuting, each of the complaints made by Mr King. In cross-examination, when challenged about the accuracy of the photomontages, Mr Elliott accepted that there was an error with respect to one photomontage in that it included vegetation that is to be removed. Despite that, when challenged about other photomontages, Mr Elliott was certain that the existing vegetation shown in the photomontages depicted vegetation in the road reserve that would not be removed. He also was certain of the relative heights of features shown in the photomontages. I accept this evidence of Mr Elliott. It was apparent from Mr Elliott’s report and his oral evidence that he applies a high degree of rigour in the process he follows. His “measurements” are made with the benefit of survey data, as compared to Mr King’s estimate based on pacing out distances and estimating height through rough triangulation calculations. Further, given his use of a surveyor, Mr Elliott could speak with conviction about the extent of vegetation in the road reserve as compared to that on site. Mr King was just guessing about such matters. [224] I have no hesitation in accepting Mr Elliott’s expert evidence, including each of his photomontages. Ultimately, although Mr King expressed concerns about the total accuracy of the photomontages, he was nevertheless of the view that they “provide a general indication of the likely impacts of the proposed development and those of the Hyatt Master Plan Preliminary Approval.” Having moved about the locality on a site -- 203 of 269 -- Original reasons p 60 inspection and considered the photo points compared to what can be seen as one moves about, I accept the evidence of Mr Powell that the existing photomontage provides a large number of representative views looking towards the proposed development. When viewed together, the photomontages reasonably depict the range of views likely to be experienced by an observer moving through the landscape while looking in the direction of the proposed development. They provide a useful indication of how the proposed development will look from the various identified vantage points at a time when the proposed landscaping has had a chance to mature.475 [225] For each of the reasons provided in paragraphs [215] to [224] above, I do not accept the evidence of Mr King. I also do not regard his opinion as reliable as he has not paid appropriate regard to how the design of the buildings and the colour schemes and materials used contribute to the low-key character of the proposed development. [226] Mr Adamson’s opinions about the inappropriate character impacts of the proposed development were founded on his assumption that the Planning Scheme requires the subject land to be developed at a density consistent with the Coolum residences and an acceptance of the evidence of Mr King. For the reasons provided in paragraph [133], I do not accept the validity of Mr Adamson’s assumption about intended density for the subject land. I also do not accept the opinions expressed by Mr King. Consequently, I do not accept Mr Adamson’s opinion. [227] I accept the evidence of Mr Thompson, Mr Powell, Dr McGowan, Mr Schomburgk and Mr Perkins with respect to the proposed development’s consistency with the character of the surrounding area. Their evidence accords with the depictions of the proposed development in the plans and on the photomontages. Their evidence pays appropriate regard to all relevant considerations,476 including the architectural design and treatment of the buildings. Having regard to their evidence, I am satisfied that the proposed development provides for a design that appropriately reflects the character of the area. It complies with the character requirements in overall outcomes (2)(a) and (j) and performance outcomes PO1, PO2, PO3 and PO16 of the Coolum local plan code. Although the final building design and architectural treatments are not known other than for Stage 1 of the proposed development, the proposed addendum to the Coolum local plan code provides further assurance that an appropriate design will be achieved in those future stages.477 As such, sufficient detail has been provided to satisfy me that the proposed development can appropriately address the character requirements in the Coolum local plan code and that a preliminary approval is appropriate for those subsequent stages. 475 I accept that there is a difference between a view shed represented in a photomontage and a visual catchment that is experienced as one moves throughout an area. Although the photomontages are representative of a viewpoint only, the visual amenity experts regarded those viewpoints as appropriate locations to appreciate the visual impact of the proposed development. There was an extensive collection of photomontages. See a more detailed explanation of the difference in JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4 at [94]. 476 The relevance of architectural design and treatments to the question of character is apparent from the acceptable outcomes AO1.1 and AO1.2. The proposed development complies with each of these acceptable outcomes, and with acceptable outcome AO1.3. With respect to acceptable outcome AO1.3, I do not accept the Appellants’ submission that the provision should be read as requiring a substantial proportion of existing mature trees. This reinforces that it is a design with an acceptable character. 477 The addendum imposes further requirements with respect to the design. They do not replace the need for future development applications to demonstrate compliance with overall outcome (2)(a) and performance outcome PO1 of the Coolum local plan code. -- 204 of 269 -- Original reasons p 61 Does the proposed development respect the scale of the surrounding area and vegetation? [228] The Appellants allege that the proposed development does not comply with overall outcome (2)(j) and performance outcome PO16(e) of the Coolum local area plan. Those provisions require development in the Emerging community zone to provide for development and building design that respects the scale and character of surrounding areas and vegetation. Performance outcome PO1 also references scale in that it requires the scale to be such that it integrates with the natural and coastal landscape and skyline vegetation in order to reflect the low key beachside character of the Coolum local plan area. I have already addressed the character considerations above. [229] With respect to the issue of scale, the Appellants say that the proposed development does not have a height and density “in keeping with” the existing built form in the locality or the built form reasonably expected in the locality. For that purpose, the Appellants define the locality as the area from Point Arkwright in the north to the Boardwalk in the south. They say it is that locality, not the whole Coolum local plan area, that is the relevant “surrounding areas” to be considered in determining the scale and character that needs to be respected. In support of their submission, the Appellants refer to s 7.2.8.2 of the Coolum local plan code. I accept the Appellants’ submission that the description of the context and setting in s 7.2.8.2 of the Coolum local plan code suggests that Yaroomba is a community that is distinct from the township of Coolum Beach and from the communities at Point Arkwright, Mount Coolum and The Boardwalk. However, the requirement in performance outcome PO16(e) relates to “surrounding areas”. This requires consideration of the built form in a greater area than simply the Yaroomba community immediately surrounding the subject land. [230] In his report, Mr Thompson explains that scale in architectural terms includes a consideration of the combined effect of height, size or floor area, site coverage, bulk, articulation of built form, modulation of buildings and other nuanced factors, synthesised within an architectural composition seen in the context of the relative scale of the locality. [231] In determining whether the proposed development respects the scale of surrounding areas and vegetation, regard may be had to all existing development, even if it was approved under an earlier planning regime. That is so even if it would be discordant with the current regime. To disregard the existing development would be unrealistic and would attribute to the area a scale and character that it simply does not have.478 [232] Coolum is not a sleepy enclave of fibro beach shacks and smaller holiday flats serviced by a small number of strip shops. To the south of the subject land and the immediate surrounds has generally been developed for detached dwellings that are mostly two storeys in height. Further to the south are predominantly dwellings, as well as some dual occupancy buildings and multiple dwelling developments that are primarily two storeys in height. To the north are primarily dwellings on single allotments and a large amount of open space. However, the local plan area also includes development that is taller than 12 metres (or three storeys). There is a pocket of multiple dwellings known as “Breeze” south of the subject land that are three and 478 The Purcell Family v Gold Coast City Council & Ors [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56]. -- 205 of 269 -- Original reasons p 62 four storeys in height. At Coolum Beach, there are accommodation buildings of between four and thirteen storeys in height. The existence of these taller buildings is recognised on the overlay map relied on by the Appellants: a note on the map records that “[i]n certain circumstances pre-existing development approvals may override the operation of an overlay”. The existing buildings inform the scale and character of the surrounding areas that performance outcome PO16(e) requires be respected. [233] The proposed development seeks approval for building heights up to seven storeys in height in part of the central area, up to four storeys in height in the middle ring, three storeys around the perimeter, being behind the frontage to David Low Way and along the eastern boundary, and two storeys along the southern boundary. As such, the proposed development provides for a design where the building height transitions down to the boundaries of the subject land. [234] Mr Powell opines that the stepping down of building height towards the edges of the subject land results in perimeter buildings screening or obscuring views to the larger buildings and perimeter vegetation either screening or appropriately softening the appearance of both. As I noted in paragraph [213] above, Mr Perkins similarly opines that the siting of the proposed built form set back from the beach, Yaroomba parabolic dunes and David Low Way, and separated from these areas by Public parklands and open space will largely retain the present interface of the subject land with these natural environments and public areas. Mr Schomburgk and Dr McGowan expressed opinions to similar effect. Mr Powell also opines that, from distant elevated locations, the taller buildings in Stage 1 will not break the line of foreshore vegetation. I accept their evidence. It accords with the photomontages, which I accept as a reasonable representation of the visual impact of the proposed development. The two-storey scale of existing development adjacent the southern boundary of the subject land is respected by providing for development along that boundary to be limited to two storeys. For those reasons, and having regard to the evidence referred to in paragraphs [203] to [213] above, I am satisfied that the proposed development and building design respects the scale and character of surrounding areas and vegetation and protects the natural vegetated character of the coastal foreshore and fore dunes. It complies with overall outcome (2)(j) and performance outcomes PO1 and PO16(d) and (e) of the Coolum local plan code. Does the proposed development provide for an appropriate configuration of built form and landscaping? [235] Overall outcome (2)(j) of the Coolum local plan code requires development on the subject land to be configured in a series of beachside villages and other precincts that sit lightly in the landscape and that are separated by green corridors and lush subtropical landscaping. Performance outcome PO16(c) contains a similar requirement in that it requires development to provide for a range of residential accommodation types set in discrete beachside precincts and separated by greenspace. In their written submissions, the Appellants did not articulate the basis on which they allege there is non-compliance with these requirements. [236] Performance outcome PO1 also references configuration of built form and landscaping. It requires the siting, form, composition and use of materials to be such that it integrates with the natural and coastal landscape and skyline vegetation in order to reflect the low key beachside character of the Coolum local plan area. Performance outcome PO3 requires the retention and enhancement of key landscape elements -- 206 of 269 -- Original reasons p 63 contributing to the setting, character, and sense of place of the Coolum local plan area. [237] Mr Adamson says: “The proposed development, which includes extensive earthworks, has a scale, intensity and form that does not sit lightly in the landscape and will not result in the intended form of residential development configured in beachside precincts that are separated by green corridors, with buildings that are 2 storeys in height.” [238] I reject Mr Adamson’s opinion. He does not clearly articulate the basis of his opinion. As best I can tell, his opinion appears to be premised on his view that there will be extensive earthworks and that there is a requirement that buildings are two storeys in height. I do not accept that the provision does not permit extensive earthworks. The provision is concerned with the end-developed state of the land. I also do not accept that there is a requirement that buildings be limited to two storeys in height. [239] It is apparent from the Master Plan that the proposed development would provide a range of residential accommodation types, including a hotel and multiple dwellings. As I have noted in paragraphs [26], [119] and [120] above, the accommodation is configured to sit in a vegetated and landscaped environment, with more than 17 000 square metres of retained vegetation, including vegetation along David Low Way that is protected by a covenant. [240] Mr Schomburgk opines that the proposed development will sit lightly in the landscape and achieve the intention of overall outcome (2)(j) and performance outcome PO16(c) of the Coolum local plan code. He says it does so by having a very low site coverage percentage, retaining significant areas of vegetation, offering significant areas of enhanced re-vegetation, providing urban development separated into mini-precincts or “villages” throughout the large site, and having buildings constructed of lightweight and visually unobtrusive materials. He notes that the built form of the development is separated into discrete pockets throughout the subject land, each separated by vegetation and/or park or open space areas including the central lake. Mr Perkins expresses a similar opinion. He says the proposed development has been designed to provide breaks in built form through the provision of roads, significant public parklands and landscaped streetscapes to achieve a development that “sits lightly in the landscape”. Their opinions with respect to the lightweight built form accord with the opinions expressed by Mr Thompson. [241] During his cross-examination, Mr Thompson explained how the design attributes of the proposed development provide significant vertical and horizontal articulation and heighten an appreciation of the natural landscape in which the architecture sits. [242] Dr McGowan and Mr Powell similarly opine that the proposed development utilises effective application of architectural principles such as touching the ground lightly, utilising materials that complement the landscape, softening building edges and integrating landscape with the built form to ensure that the design responds to the planning scheme requirements. [243] I accept the evidence of Mr Schomburgk, Mr Perkins, Mr Thompson, Dr McGowan and Mr Powell. Their opinions accords with the plans and drawings (including the Master Plan) and the photomontages. -- 207 of 269 -- Original reasons p 64 [244] In relation to the future stages for which preliminary approval is sought, Mr Thompson says that the proposed preliminary approval sets town planning guidelines to control the height, setback, length of walls, extent of windows and external planting to ensure that the future architecture is generally in accordance with the architecture designed for the first stage of the proposed development. Dr McGowan gave similar evidence. In his Statement of Evidence, Dr McGowan detailed the key parameters that inform design of the future stages. He explained how they would ensure that Stages 2 – 5 of the proposed development would be designed to protect the David Low Way buffer; limited in terms of height and footprint; articulated, separated and accommodating landscaping between built form; and set amongst an open space network and accessed by treed internal roads. I accept their evidence. It is supported by the proposed terms of the preliminary approval. [245] Having regard to the evidence referred to in paragraphs [203] to [213], [233], [234], and [239] to [244] above, I am satisfied that the proposed development provide for an appropriate configuration of built form and landscaping. It complies with the requirements of overall outcome (2)(j) and performance outcomes PO1, PO3 and PO16(c) of the Coolum local plan code in this respect. Does the proposed development provide for a design and siting that appropriately protects views and visual amenity? [246] A number of the provisions of the Coolum local plan code require the protection of views and visual amenity. Overall outcome (2)(j) requires dense vegetated buffers to be maintained along David Low Way to effectively screen development and protect the scenic amenity of David Low Way and the amenity of nearby residential areas. Overall outcome (2)(k) requires development to be designed and sited to protect character vegetation and views either to or from important landscape features. The character requirements in performance outcome PO1 refers to integration of development with the natural and coastal landscape and skyline vegetation. Performance outcome PO3 requires development to provide for the retention and enhancement of key landscape elements including significant views and vistas, existing character trees and areas of significant vegetation, contributing to the setting, character and sense of place of the Coolum local plan area. The associated acceptable outcomes indicates that this includes protecting and emphasising, and not intruding upon, the important sightlines and views to and from Mount Coolum and Point Arkwright and retaining and enhancing existing mature trees and vegetation contributing to the character and vegetated backdrop of the local plan area, including the vegetation along David Low Way. Performance outcome PO16 reinforces these outcomes as they apply to the subject land. Performance outcome PO16(i) requires development to protect the visual amenity of the road network through the maintenance and enhancement of dense vegetated buffers to David Low Way and surrounding the Palmer Coolum Resort. Performance outcome PO16(j) requires development to provide for the maintenance and enhancement of the environmental and landscape values of the area including, but not limited to, the Yaroomba Parabolic Dune, and views to and from Mount Coolum and Point Arkwright. [247] The Appellants allege that the proposed development does not comply with these provisions because it will have a deleterious impact on the visual amenity and amenity of the locality. They submit that the proper question is whether the view is impacted in any significant way (i.e. one that is not trivial or negligible) that would not be -- 208 of 269 -- Original reasons p 65 present if the proposed development had a compliant height.479 They also rely on the fact that the proposed development will be visible to a significant degree from various private and public vantage points, including from the water off Yaroomba Beach and from Mount Coolum, as well as from various private residences in the locality; and that the development will not look like any of the nearby two-storey developments. They also criticise the vegetation that the proposed development intends to introduce, which they say will not perform a screening function. Their submissions do not refer to evidence that supports their assertions. In any event, I do not accept the Appellants’ approach to this issue. The provisions on which they rely do not support it. [248] In assessing the acceptability of the proposed development with respect to impacts on views and visual amenity, I have been assisted by various aspects of the evidence. The plans provide an indication of the likely extent of retained vegetation. There are photographs of existing vegetation. The survey plans and Covenant G on SP23824 allow me to appreciate the extent of protection that will be afforded to vegetation along David Low Way. The decision notice provides an indication of conditions that may be imposed with respect to the protection of vegetation and incorporation of landscaping. [249] The plans show that about 4.6 hectares or 25 per cent of the subject land will be publicly accessible open space. That open space includes about 17 740 square metres of retained vegetation (or 9.6 per cent of the subject land). The retained vegetation includes an area of vegetation on the northern boundary adjacent the park and a proposed four-storey apartment building; an area between the lake and Precinct 2 Yaroomba Beach Central; two areas of parkland located in Precinct 3 Yaroomba Beach South; and an area to the north of the apartment building in Precinct 3. The plans also show retention of a linear strip of vegetation located adjacent to David Low Way. Part of this vegetation is protected by a covenant, which extends in width for 20 metres from the road reserve for David Low Way. The covenant covers approximately one hectare of the subject land. It requires, amongst other things, that the owner of the covenant area is to use the area in a manner that protects the indigenous vegetation and native fauna habitat values within the covenant area. I accept the evidence of Mr King that the vegetation along David Low Way on the subject land is largely composed of paperbark trees that appear to be tolerant to the strong saline, generally unidirectional winds. [250] The proposed development will also provide landscape treatments. There is to a park in the north-east portion of the subject land; street trees and planting within the road corridors; and landscape treatments within each stage between the buildings and the boundaries. Planting is proposed on podium, rooftop and walls associated with Stage 1. These landscape treatments will minimise the visual impact of taller buildings and augment the retained vegetated buffer adjacent to David Low Way. As I have noted above, the conditions in the decision notice will ensure that the vegetation will be adequately maintained so it can provide effective screening. [251] In addition to the vegetation on the subject land, Mr King identifies, and provides photographs of, vegetation within the road reserve that he says contributes to the vegetative screen along David Low Way. He says dominant plants adjacent to the footpath within the road reserve are cottonwood trees and macaranga trees. They have large leaves and branches that extend to the ground, covering some five to six 479 The Appellants allege that the Planning Scheme requires a height of no greater than two storeys. -- 209 of 269 -- Original reasons p 66 metres in width and providing good screening. He says other plants in the road reserve include wattle trees and bougainvillea, which weaves through the trees. Mr King says that towards the north of the subject land, the cottonwood and macaranga trees are located on an embankment sloping down from the footpath and are some three and a half to four metres in height. There is also the occasional wattle tree growing in that area, reaching up to five or six metres in height. Towards the south, adjacent the roundabout, paperbark and sheoak trees grow to about six to seven metres in height and the occasional wattle tree grows to between seven and eight and a half metres in height. I accept Mr King’s description of the vegetated buffer to David Low Way. It accords with the evidence of Mr Powell and Dr McGowan about the roadside vegetation, and with Mr Elliott’s evidence that there is vegetation in the road reserve along David Low Way.480 [252] To assist my assessment, I also have the benefit of opinions expressed by the visual amenity experts – Mr Powell, Dr McGowan and Mr King. They analysed the visual impact of the development having regard to views from roads adjacent to the subject land, such as David Low Way; views from elevated locations to the west and north- west of the subject land; views from the beach and ocean; and views from lookouts and other public viewpoints. [253] As was acknowledged by Dr McGowan, there are a number of provisions of the Planning Scheme that seek to protect and maintain significant features and the contribution they make to the landscape, local character and identity of the locality, as well as that seek to maintain important views and vistas. Figure 7.2.8A (Coolum Local Plan Elements) identifies views from Mount Coolum, views south along David Low Way and views from Point Arkwright as significant views near the subject land. It also identifies a landscape buffer along David Low Way adjacent the subject land, but does not identify any character vegetation on the subject land. [254] The visibility of the proposed development differs depending on the location of the viewer. It will be clearly visible from the elevated viewpoints on Mount Coolum. From distant elevated viewpoints, such as 120 Eurungunder Lane, the proposed development will add to the agglomeration of buildings in the strip adjacent the coast but will not remove the existing distant ocean views. From less elevated locations, such as 9A Wunnunga Crescent, 36 Toolga Street and 11 Arlington Court, the proposed development will sit within or slightly above the tree line. It will appear as part of the distant landscape. Ocean views and glimpses will still be available. Parts of the proposed development will also be visible from David Low Way proximate the subject land. Having regard to the photomontages, I am satisfied that from many of the viewpoints, such as at Point Arkwright and the beach, the proposed development will either not be visible or will be barely discernible. As such, it will not result in any discernible impact to the existing character or visual amenity experienced at those locations.481 Mr Powell and Mr McGowan opine that although the proposed development will be visible from the locations noted above, the visual impact is an acceptable one. Mr King disagrees. [255] Mr Powell says that although the proposed development is visible from elevated locations, views to the important landscape features (including the Yaroomba 480 Mr Elliott worked with a surveyor to determine the exact location of the boundary. 481 Mr King opines that the proposed development will be more visible than represented in the photomontages. His opinion is prefaced on his criticisms of the photomontages, which I do not accept. -- 210 of 269 -- Original reasons p 67 parabolic dune, the beach, and the ocean) are maintained.482 He also opines that the visual impacts from these elevated viewpoints will be appropriately mitigated by architectural treatments in terms of materials, colours and building articulation, which allow the proposed built form to respond to the natural colours and textures of the coastal plain and to sit comfortably in the landscape. Mr Powell also opines that the visual impact of Stages 2 to 5 of the proposed development will be less than that depicted in the photomontages. This is because, in addition to the generosity of space that is evident between each of the grey envelopes, there will be amelioration of the visual appearance by the finer grained detail and breaks between built form that will ultimately occur within each of the depicted envelopes. [256] Mr Powell acknowledges that there will be short-term visual impacts (within the first five to seven years) from points along David Low Way. He says the impacts will largely be limited to glimpses of the lowest intensity and lowest rise components of the proposed development. Further, the extent of these glimpses will diminish over time. This is because a detailed planting arrangement can be provided that will ensure a combination of retention of existing trees, strategic placement of advanced trees to provide immediate height, and planting of smaller pot-sized specimens that are faster growing and that adapt quickly to local conditions. This planting will add to the retained dense buffers along the vast majority of the subject land’s frontage to David Low Way. [257] Mr Powell opines that the vegetation on and around the subject land that contributes to the local character and amenity, or that limits views into the subject land, is to be substantially retained and enhanced. This includes the vegetated buffer along David Low Way, the vegetation and landform associated with the parabolic dune and the frontal dune to the east of the subject land. [258] Dr McGowan expresses similar opinions to that expressed by Mr Powell. He opines that the proposed development has been appropriately sited and designed to ensure the significant features in the vicinity of the subject land are not affected, and that important views (to these features and generally) are maintained. In particular, he notes that the photomontages show that the proposed development will not obstruct any significant public views towards Point Arkwright, Mount Coolum, the beach, dune system (including the parabolic dune) or the coastline. He notes that the photomontages show no impact on the viewpoint taken from Point Arkwright and the beach near the subject land. The proposed development would be visible from elevated viewpoints, such as from Mount Coolum, but the proposed development will not obstruct views to the beach or the ocean. Dr McGowan opines that the proposed development will also have some impact on views from David Low Way, but says the retained and proposed vegetation will substantially screen the built form along David Low Way. He also notes that it is not unique to have some visible built form along David Low Way. [259] Mr King’s contribution to the Second Visual Amenity Joint Expert Report483 is lengthy. I generally accept Mr King’s personal observations about existing 482 Mr Powell refuted Mr King’s suggestion that the proposed development will intrude into views of the Yaroomba Parabolic Dune. He provided a detailed explanation as to why he was of a different opinion. I accept his evidence. 483 This is the Joint Expert Report in which each of the experts provided their analysis of the proposed development. The First Visual Amenity Joint Expert Report related to methodology to be applied and photomontages sought by the experts. -- 211 of 269 -- Original reasons p 68 vegetation,484 topography,485 density and height of beach dune vegetation,486 and the David Low Way vegetation density and height.487 The observations are supported by photographs and are consistent with what I observed during the site inspection. However, I prefer the evidence of Mr Powell and Dr McGowan to that of Mr King in relation to the visual impact of the proposed development. [260] The opinions expressed by Mr Powell and Dr McGowan are supported by an extensive set of photomontages prepared by Mr Elliott in June 2019, which depict the development from 24 locations. They are also supported by the further photomontages prepared after the Second Visual Amenity Joint Expert Report as requested by Mr King. Although the photomontages are only representative of the view from those viewpoints selected, I accept that they are representative of a comprehensive range of views to the subject land. They demonstrate that the proposed development would be partially (or wholly) screened by surrounding topography, vegetation and other built form. [261] In paragraphs [215] to [225] above I identify a number of reasons I do not regard the opinions expressed by Mr King to be reliable. In addition, I do not accept his opinions for each of the following four reasons. First, although he was given multiple opportunities to do so, Mr King was unable to explain whether he had approached his assessment against the Planning Scheme on the basis that compliance with acceptable outcomes was mandatory. Having given him an opportunity to explain his approach to his assessment against the Planning Scheme in his own words, I was left with the clear impression that Mr King did not understand the structure of the Planning Scheme or how an assessment should be undertaken against its provisions. Second, in his assessment in the Second Visual Amenity Joint Expert Report, Mr King placed reliance on provisions that were not relied on by the Appellants, and asserted non- compliance with provisions that he misquoted. During cross-examination, when taken to the provisions, he accepted that his position on those provisions was misleading. Third, in his contributions to the Second Visual Amenity Joint Expert Report, Mr King criticised the photomontages showing the Hyatt Preliminary Approval as confusing and misleading and claimed that they were prepared contrary to an agreement in the First Visual Amenity Joint Expert Report. Mr King made this assertion at a time when the First Visual Amenity Joint Expert Report was available. It contains no agreement as claimed by him. To the contrary, the photomontages were prepared in accordance with the agreed requests of the experts in the First Visual Amenity Joint Expert Report. Fourth, viewed overall, the effect of Mr King’s evidence was that mere visibility of the part of the proposed development was unacceptable. This does not accord with the requirements set by the Planning Scheme. [262] Although the proposed development will be clearly visible from elevated locations like Mount Coolum, I accept the opinions of Mr Powell and Dr McGowan that its visual impact will be satisfactorily ameliorated by the proposed architectural treatments. When viewed from Mount Coolum and the other elevated locations, the proposed development will not have the jarring impact that is currently afforded by the sea of light coloured rooves of the existing two storey development in the locality. I am also satisfied that, if approved subject to conditions such as those in the decision 484 Paragraphs 20 and 23 of the Second Visual Amenity Joint Expert Report. 485 Paragraph 121 of the Second Visual Amenity Joint Expert Report. 486 Paragraphs 123 to 127 and 129 of the Second Visual Amenity Joint Expert Report. 487 Paragraphs 131 to 134 of the Second Visual Amenity Joint Expert Report. -- 212 of 269 -- Original reasons p 69 notice, the proposed development will comply with the requirements to protect the scenic amenity of David Low Way and nearby residential areas. [263] For the reasons provided above, I am satisfied that the proposed development provides for a design and siting that appropriately protects views and visual amenity. It complies with the requirements in overall outcomes (2)(j) and (k) and performance outcomes PO1, PO3 and PO16 with respect to impact on views and vistas and visual and scenic amenity. Conclusion regarding compliance with the Coolum local plan code [264] For the reasons provided above, I am satisfied that the proposed development complies with the relevant design requirements of the Coolum local plan code. Does the design of the proposed development comply with the Strategic framework? [265] The Appellants allege non-compliance with s 3.2.4. It states: “3.2.4 A community of communities In 2031, the Sunshine Coast has a strong sense of community identity based upon the retention of its character, lifestyle and environment attributes. The character and identity of the Sunshine Coast continues to be defined by the diverse range of distinctive and sensitive landforms and landscapes which contain and weave in and around urban and rural residential communities. The Sunshine Coast’s communities are diverse, inclusive and resilient with high levels of community wellbeing. Communities are focussed around vibrant and attractive activity centres which support business and community needs as well as providing a range of open space, sport, recreation, cultural and other facilities which contribute to and strengthen the community. Communities within the Sunshine Coast are distinct and separate from each other, with each displaying an individual character and identity. Places reflect their coastal urban, rural town and village, rural residential or rural setting.” (emphasis added) [266] The Appellants submit that this provision of the Planning Scheme specifically records the link between community identity and character; the diverse range of “distinctive” and “sensitive” landforms and landscapes that make up the overall character of the Sunshine Coast; the diverse range of communities on the Sunshine Coast; and the individual character and identity of the various “distinct” and separate “communities” on the Sunshine Coast. They say the proposed development fails to recognise the particular and distinct features of the locality and the Yaroomba community (as one of the separate and distinct communities referenced in this provision) and consequentially it does not comply this strategic intent in s 3.2.4 of the Planning Scheme. They say the proposed development will change the character of the locality. [267] I do not accept the Appellants’ submissions. Section 3.2.4 forms part of those provisions that identify the strategic intent. It is not part of the implementation framework. It is not framed in a manner that calls for compliance by individual developments. In any event, the proposed development does not cut across this intent. -- 213 of 269 -- Original reasons p 70 For the reasons provided in paragraphs [181] to [264] above, I am satisfied that the proposed development is consistent with the intended character for the locality. [268] Sections 3.3.1(a) and (m) identify strategic outcomes for the Settlement pattern theme. They state: “(a) In 2031, the Sunshine Coast is renowned for its range of distinctive and sensitive landforms and landscapes, its large and diverse areas of open space and its unique and well defined communities. Growth is carefully managed and well-designed to maintain and enhance the character, lifestyle and environment attributes which make such a significant contribution to the Sunshine Coast’s natural (competitive) advantage. (m) Communities within the Sunshine Coast are distinct and separate from each other displaying an individual character, identity, culture and in some cases, strong associations with the past. Places reflect their coastal urban, rural town and village, rural residential or rural setting.” (emphasis added) [269] The Appellants say there is a clear, intentional and significant emphasis in these provisions on the individual character and identity of different communities within the Sunshine Coast. They submit that the proposed development fails to comply with the planning intent identified in s 3.3.1(a) and s 3.3.1(m) with regard to the maintenance and enhancement of character and environmental attributes of the locality and desire for places to reflect the coastal urban setting of the locality. While these provisions allows one to appreciate the strategic planning importance of compliance with character provisions in the Coolum local plan code, it is difficult to appreciate how non-compliance with these provisions can legitimately be raised as a real issue in dispute. Whether a development cuts across the identified strategic intent will necessarily depend on whether there is compliance with those provisions that outline the desired character of the relevant community. In this case, the relevant provisions are those in the Coolum local plan code. As such, for reasons provided in paragraphs [181] to [264] above, I am satisfied that the proposed development does not cut across this strategic intent. [270] Sections 3.3.2.1(a)(i) to (iv) contain specific outcomes that form part of the implementation framework for Element 1 – Character, lifestyle and environmental attributes in the Settlement pattern theme. They state: “(a) The character, lifestyle and environment attributes of the Sunshine Coast are recognised as essential contributors to the region’s natural (competitive) advantage by:- (i) protecting and enhancing the natural environment and undeveloped rural and coastal landscapes that create large, uninterrupted and diverse areas of open space which weave throughout the region and define the boundaries or urban and rural residential areas; (ii) maintaining a settlement pattern and encouraging a built form that is distinct to the Sunshine Coast and which avoids the most prominent symbols and negative attributes of larger metropolitan areas (i.e. undistinguishable tracts of urban sprawl and oversized transport corridors with bare acoustic walls and signage); (iii) maintaining distinct, identifiable towns and neighbourhoods that sensitively respond to their setting and support strong, diverse communities with a sense of belonging; and -- 214 of 269 -- Original reasons p 71 (iv) maintaining a relaxed lifestyle derived from an appreciation of the character, lifestyle and environment attributes offered by the Sunshine Coast as a place.” [271] The Appellants assert that the proposed development fails to comply with these provisions. The submission is no more than a bare assertion. I do not accept the assertion for the reasons provided in paragraphs [181] to [264] above. [272] Section 3.3.3.1(d)(v) is a specific outcome for the implementation of Element 2 – Growth management boundaries and land use categories in the Settlement pattern theme. It states: “The physical extent of urban development and rural residential development is contained within defined local growth management boundaries so as to:- … (v) protect the discrete identities of individual places and communities.” [273] During the opening of the case for SHC, Mr Gore QC submitted the provision was irrelevant and articulated the basis of the submission. Despite that, the Appellants not only maintained their assertion that the proposed development fails to comply with this provision, they failed to address how the non-compliance arises or otherwise refute the submissions made by Mr Gore QC during the opening. As with many other provisions, their submission of non-compliance is no more than a bare assertion. Although the written submissions of the Appellants provide no elucidation as to the basis of their allegation, it seems from the tenor of their submissions overall that they assert non-compliance on the basis that the proposed development does not protect the discrete identities of individual places and communities. Such a position ignores the construct of the provision. The provision identifies that this is one of the purposes of the local growth management boundaries. Sub-paragraphs (i) to (vi) provide an appreciation of the planning rationale that informs the policy position that the physical extent of urban development is to be contained within the defined local growth management boundaries. The proposed development is within the defined local growth management boundaries. It complies with this provision. [274] Section 3.3.4.1(c) is a specific outcome related to Element 3 – Efficient and functional urban form in the Settlement pattern theme. It states: “Where urban consolidation occurs, it is compatible with and sympathetic to the preferred character of the local area.” [275] A footnote to this provision records that: “the preferred character of each coastal urban, rural town and rural village community is described in the applicable local plan code”. [276] As such, whether the proposed development complies with this provision will depend on whether it is compatible with and sympathetic to the preferred character of the local area identified in the Coolum local plan code. The same is true of s 3.3.9.1(a), which relates to Element 8 – Local settings and local planning responses in the Settlement pattern theme and states: “The Sunshine Coast is maintained as a community of communities where the character and identity of each community is recognised and protected in accordance with a local plan.” -- 215 of 269 -- Original reasons p 72 [277] For the reasons provided in paragraphs [181] to [264] above, I am satisfied that the proposed development complies with these provisions. [278] The Appellants allege non-compliance with s 3.4.6.1(e)(ii) and (v) by reason of unacceptable character impacts. This provision is set out in paragraph [52] above. As I have already explained in paragraphs [78] to [85] above, it is unnecessary for SHC to demonstrate that the proposed development complies with this provisions but, even if it were, I am satisfied that there is compliance. [279] Section 3.5.1(d) and (i) are strategic outcomes for the Transport theme. They state: “(d) The scale of transport corridors and the design of infrastructure are compatible with the preferred character of coastal urban, rural town and village, rural residential and rural communities and incorporate design features and elements that reduce impacts on amenity and opportunities for community interaction. … (i) Parking is managed in regional activity centres such as Maroochydore, Caloundra, Kawana and Nambour, in tourism focus areas such as Kings Beach, Mooloolaba and Coolum and other places as appropriate to provide adequate parking for local and visitor needs.” … (emphasis added) [280] The Appellants submit that these provisions, together with others about transport infrastructure, clearly envisage reduction of impacts from transport infrastructure, including impacts on amenity (e.g. efficiency of movement) and parking provision arising from the need to introduce transport infrastructure. [281] I address the traffic issues raised by the Appellants in detail in paragraphs [307] to [330] below. For the reasons provided there, I am satisfied that the proposed development does not cut across these strategic outcomes. [282] Section 3.7.1(f) is a strategic outcome for the Natural environment theme. It states: “The natural environment is protected and enhanced in a way that maintains and improves biodiversity, ecological processes, habitat and habitat connectivity, landscape character and amenity, economic and community wellbeing, resilience and capacity to evolve and adapt to the predicted impacts of climate change.” [283] The Appellants submit that this provision clearly has its focus on the protection and maintenance, and the enhancement and improvement, of ecological values. As such, it is difficult to appreciate why non-compliance with the provision was identified as a key issue requiring determination with respect to the Appellants’ allegation that the proposed development will have unacceptable impacts on visual amenity, scenic amenity and views to and/or from locally and/or regionally significant places. The Appellants’ submissions do not assist in that regard. [284] Section 3.7.1(f) is not part of the implementation framework. It is a strategic outcome sought for the whole of the local government area. Its focus is the protection and enhancement of the natural environment. In any event, I am satisfied that the design of the proposed development does not cut across the planning strategy contained in this provision insofar as it relates to landscape character and amenity. For reasons -- 216 of 269 -- Original reasons p 73 provided in paragraphs [181] to [264] above, I am satisfied that the design of the proposed development will produce appropriate character and visual outcomes. [285] Sections 3.8.1(d), (g) and (h) are strategic outcomes for the Community identity, character and social inclusion theme. They state: “(d) The Sunshine Coast continues to be renowned for the many important views and vistas which contribute to the identity and attractiveness of the region. Local views of importance to residents are recognised and respected. (g) The individual character of urban and rural residential areas is recognised within the context of coastal urban, rural town, rural village and rural residential settings. The diversity of rural settings and communities is also recognised and respected. (h) Communities continue to value their history and cultural associations and retain a strong sense of place. In 2031 the Sunshine Coast is still a community of communities.” (emphasis added) [286] As with many of the other provisions relied on by the Appellants, these strategic outcomes do not form part of the implementation framework. They should be understood with reference to those specific outcomes that are intended to implement them, including s 3.8.2.1(a), (c), (e) and (g) and s 3.8.3.1(c) and (d). Those specific outcomes state: “3.8.2 Element 1 – Landscape elements and features 3.8.2.1 Specific outcomes (a) The landscape elements identified conceptually on Strategic Framework Map SFM 6 (Community identity, character and social inclusion elements) which include regional and sub-regional inter-urban breaks, high value scenic areas, regional gateways and scenic routes are protected and enhanced. (c) Coastal urban and rural town and village communities remain distinct and separated by scenic landscape and inter-urban breaks. (e) The prominent landscape features identified in Table 3.8.2.1 (Regionally significant landscape features) and important views to these features are protected from intrusion from buildings and other aspects of urban development. (g) Other views and vistas, including those identified in local plans or which are important in a local context are also protected, particularly from development which exceeds specified building heights. 3.8.3 Element 2 – Sub-tropical character and locally responsive design 3.8.3.1 Specific outcomes (c) A high standard of urban design and landscaping is provided that:- (i) is sensitive to a local setting as described in local plans; (ii) enhances the character, identity, and natural and cultural associations of the local area; (iii) reinforces the positive elements of character, identity and landscape of the local area; (iv) responds to relevant topographic and landscape influences; -- 217 of 269 -- Original reasons p 74 (v) contributes to a sense of place and the creation of pleasant, living environments; and (vi) creates healthy and safe environments that support community activity and participation, healthy lifestyles and the prevention of crime. (d) The height of buildings and other structures recognises the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low-medium rise built form which is intentionally distinct from other places in metropolitan South East Queensland.” (emphasis added) [287] The Appellants submit that there is non-compliance with the strategic outcomes in s 3.8.1(d) because of impacts on views, and with s 3.8.1(g) and s 3.8.1(h), because of impacts on the character of the locality. They say both impacts arise because of the overdevelopment of the site reflected in the scale, height and intensity of the proposed development. The Appellants also allege non-compliance with the specific outcomes in s 3.8.2.1(c) and (g) and s 3.8.3.1(c) and (d). [288] I have already addressed why I do not accept the Appellants’ position with respect to such matters in paragraphs [181] to [264] above. For those reasons, I am satisfied that the proposed development will not cut across these strategic outcomes and that it complies with the specific outcomes that are intended to implement the strategic outcomes. It maintains the scenic landscape and inter-urban break currently provided by the vegetation along David Low Way in that it will retain a significant band of vegetation and supplement the buffer with additional plantings. As I have already noted in paragraphs [246] to [264] above, I am satisfied that the proposed development will protect the important views and vistas, even though it will exceed two storeys in height. I am satisfied that it provides a high standard of design that is sensitive to its local setting and enhances and reinforces the character of the local area for reasons provided in paragraphs [184] to [227] above. With respect to the question of compliance with s 3.8.3.1(d), it is unnecessary for me to determine whether the proposed development can be regarded as low-medium rise as opined by Mr Perkins488 as the provision does not require the built form to be limited to low- medium rise. Rather, it records that the Sunshine Coast is a place with predominantly low-medium rise built form and otherwise requires the proposed development to recognise the distinctive character and amenity of the Sunshine Coast. I am satisfied that it does so for the reasons provided in paragraphs [184] to [264] above. Does the design of the proposed development comply with the Emerging community zone code? [289] The Appellants allege non-compliance with the purpose in s 6.2.17.2(1)(a) and (c) and overall outcomes (2)(c)(i), (v), (vi) and (viii) of the Emerging community zone code. These provisions are set out in paragraphs [103] and [104] above. [290] The Appellants submit that the proposed development fails to comply with the Emerging community zone code in that it does not reflect the specific intent for the locality in the Coolum local plan code and it fails to respect the character of the 488 Mr Perkins’ opinion on this point was formed following a detailed consideration of the Planning Scheme provisions with respect to low rise and medium rise built form. His opinion was unchallenged. It is compelling. -- 218 of 269 -- Original reasons p 75 locality. They also submit that the proposed development does not integrate with existing communities or produce a sense of character and community inclusion. I disagree for the reasons provided in paragraphs [180] to [264] above. [291] Further, the proposed development includes approximately 46 000 square metres of publicly accessible open space, equating to about 25 per cent of the subject land. That area will include parkland, a coastal pathway, boardwalks, and public car parking. The design also provides a comprehensive and considered arrangement of pedestrian pathways and roadways that would facilitate pedestrian connectivity between the proposed development and areas beyond the subject land, including by providing connection to the existing coastal walkway. They will be designed to encourage walkability and a highly pedestrianised environment. It will also provide a new public beach access and a lifeguard tower. These aspects of the proposed development will ensure that the proposed development integrates with existing communities and will produce a sense of character and community inclusion. [292] For the reasons provided above, I am satisfied that the proposed development complies with the Emerging community zone code. Does the design of the proposed development comply with the Height of buildings and structures overlay code? [293] The Appellants allege that the proposed development does not comply with the purpose in s 8.2.8.2(1), overall outcomes (2)(a) and (b) and performance outcome PO1 of the Height of buildings and structures overlay code. I have already addressed many of the Appellants’ submissions about these provisions in paragraphs [189] to [195] above. [294] As I have noted in paragraph [195] and footnote 469 above, the exceptions in performance outcome PO1 do not apply to the subject land because it is not within any of the zones identified in sub-paragraph (a))z. As such, the proposed development does not comply with performance outcome PO1 because it is not within the excepted uses identified in sub-paragraph (a). This is not fatal to the proposed development as it can demonstrate compliance with the Height of buildings and structures overlay code by showing compliance with any of the overall outcomes or the performance outcomes or the acceptable outcomes.489 [295] I am satisfied that the proposed development complies with overall outcome (2)(a) of the Height of buildings and structures overlay code for the reasons provided in paragraphs [180] to [264] above. [296] Overall outcome (2)(b) requires the height of buildings and structures to be consistent with the reasonable expectations of the local community. This Court has addressed the concept of reasonable expectations on many occasions. 489 See s 5.3.3 of the Planning Scheme and Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 388 [50]. See also United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, 537 [118] and K & K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 625 [375] (overturned in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 but not on this issue). -- 219 of 269 -- Original reasons p 76 [297] In Wattlevilla Pty Ltd v Western Downs Regional Council & Anor,490 His Honour Judge Robertson observed: “The standard of amenity that residents are entitled to enjoy or expect is to be assessed having regard to the Planning Scheme and its intent for development of the area.” [298] In Acland Pastoral Co Pty Ltd v Rosalie Shire Council,491 His Honour Judge Dodds said: “A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v Noosa Shire Council [1983] QPLR 311; Feldham v Esk ShireCouncil [1989] QPLR 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectations of other landowners in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350.”492 [299] In Baptist Union of Queensland v Brisbane City Council & Anor,493 His Honour Judge Brabazon QC said: “It is natural enough that such residents would wish to maintain the existing, relatively undisturbed nature of the area. However, from a town planning point of view, their expectations must be reasonable in light of all the planning provisions applying to this land. When judged in that way, some concerns might not be maintainable. In principle, expectations should be based on a full and impartial understanding of all the aspects of the planning controls. … ” [300] I respectfully adopt the observations of their Honours Judges Robertson, Dodds and Brabazon QC. [301] In this case, the Appellants provided copies of many submissions that they say are representative of the majority of submissions opposed to the proposed development. Numerous local residents also gave statements. Some of them were cross-examined. Although I am satisfied that the concerns of the local residents about the impact of the proposed development are genuinely held, the other evidence does not support them. Their expectations are out of step with the effect of the Planning Scheme when read as a whole. For example, many assume that the Planning Scheme requires development on the subject land be no higher than two storeys or 8.5 metres. 490 [2014] QPEC 47; [2015] QPELR 21, 45 [96]. 491 [2007] QPEC 112; [2008] QPELR 342, 348-9 [40]. 492 Footnotes omitted. 493 [2003] QPELR 61, 80 [129]. -- 220 of 269 -- Original reasons p 77 [302] Further, having regard to the independent evidence referred to in paragraphs [180] to [264] above, in an objective sense the concerns of the local residents can be discounted. They are not evidence of reasonable expectations. The residents could reasonably have in mind that the Height of Buildings and Structures Overlay Map OVM11H shows the subject land as subject to a height parameter of two storeys. However, they should also reasonably expect that development, such as that proposed here, may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements of the Planning Scheme. [303] For those reasons, I am satisfied that the proposed development complies with the Height of buildings and structures overlay code. Does the design of the proposed development comply with the Multi-unit residential uses code? [304] The Appellants allege that the proposed development does not comply with the purpose in s 9.3.11.2(1), overall outcome (2)(b) and performance outcome PO6 of the Multi-unit residential uses code. Those provisions state: “(1) The purpose of the Multi-unit residential uses code is to ensure multi-unit residential uses are of a high quality design which appropriately responds to local character, environment and amenity considerations. (2) The purpose of the Multi-unit residential uses code will be achieved through the following overall outcomes:- (b) a multi-unit residential use incorporates building design that responds to the region’s sub-tropical climate as well as the character of the particular local area; PO6 A multi-unit residential use has a residential density that is compatible with the intent of the zone and the preferred character for the local area in which it is located.” [305] The Appellants’ allegations with respect to non-compliance are premised on its position with respect to impact on the local character and amenity. The Appellants acknowledge that the preferred character of the local area can be determined by reference to the Coolum local plan code. In light of that concession, it is difficult to appreciate why allegations of non-compliance with this code were maintained as real issues that require determination. [306] In support of their allegation of non-compliance, the Appellants submit that the expected residential density in the Emerging community zone is 20 dwellings per hectare. They again rely on Mr Adamson’s analysis of density in support of their submission. As I have already mentioned in paragraph [133] above, I do not accept Mr Adamson’s analysis. I am satisfied that the proposed development complies with this code for the reasons already provided in paragraphs [133] and [180] to [264] above. Does the design of the proposed development comply with the Transport and parking code? [307] The Appellants allege that the proposed development will not comply with overall outcome (2)(c) of the Transport and parking code. It states: “transport infrastructure is designed and constructed to acceptable standards and operates in a safe and efficient manner that meets community expectations, prevents -- 221 of 269 -- Original reasons p 78 unacceptable off-site impacts and reduces whole of life cycle costs, including reduced ongoing maintenance costs.” [308] The Appellants submit that the Planning Scheme provisions with respect to transport infrastructure clearly envisage reduction of impacts from such infrastructure, including impacts on amenity (for example in terms of efficiency of movement) and parking provision arising from the need to introduce such infrastructure. They submit that the proposed development will not achieve those planning intents because it will generate increases in traffic on the road network (including a 70 per cent increase on David Low Way – north and south bound); and will require introduction of additional traffic devices, which they say will impose obstacles to efficient road use. The Appellants did not refer to the evidence that it says supports its submissions. The Appellants also say that the proposed development will require the removal of 11 public car parks in order to facilitate the intersection upgrade works in Coolum. They say those impacts are symptomatic of the overdevelopment of the subject land. [309] The Appellants’ allegations raise three issues for consideration. 1. Will the proposed development involve unacceptable traffic generation? 2. Does the proposed external roadworks militate against approval? 3. Does the proposed development provide sufficient car parks? [310] With respect to these issues, I was assisted by evidence from traffic engineers Mr Healey and Mr Douglas, who were retained by SHC and the Council respectively. The Appellants did not engage a traffic engineer. Will the proposed development involve unacceptable traffic generation? [311] The proposed development will gain access to and from David Low Way, which is a State-controlled arterial road corridor. That access will be limited to a three-way roundabout on David Low Way; and a secondary right-in/left-in/left-out priority- controlled intersection to be located approximately 240 metres to the north of the proposed primary three-way roundabout access.494 [312] David Low Way presently carries approximately 11 929 vehicles per day near the subject land. There are approximately 907 vehicles per hour in the morning peak and approximately 1 002 vehicles per hour in the afternoon peak. [313] The traffic engineers agree that, when completed in about a decade, the proposed development is estimated to generate in the order of 7 000 vehicles per day – about 3 500 to and from the north and about 3 500 to and from the south. This will increase the total volume of vehicles on David Low Way from about 12 000 vehicles per day at any nearby point to about 15 600 vehicles per day. That is an increase of about 30 per cent (not 70 percent as alleged by the Appellants). The peak hour demand will be around a maximum of 750 to 800 vehicles per hour. [314] Relative to the existing traffic volumes, the increase in traffic generation appears significant. However, the traffic engineers agree that the use of David Low Way for 494 Having regard to the evidence of the traffic engineers, I am satisfied that this minimises and rationalises access to David Low Way in accordance with performance outcome PO16(h) of the Coolum local plan code. -- 222 of 269 -- Original reasons p 79 traffic associated with the development is appropriate because of that road’s arterial function. [315] As David Low Way is under the jurisdiction of the Queensland Department of Transport and Main Roads, the experts agree that it is reasonable to assume that the State will continue to commit funds to ensure that the safety and efficiency of the corridor is maintained. Further, the Department of Transport and Main Roads will have the additional benefit of contributions from development proponents such as SHC via conditioned upgrading. For example, the conditions imposed by the concurrence agency that are attached to the decision notice will result in upgrading works at two intersections along the relevant corridor, namely at the intersection of David Low Way and Suncoast Beach Boulevard and at the intersection of David Low Way and Beach Road.495 In addition, the traffic engineers agree that upgrading works should be undertaken at two further intersections, namely at the intersection of David Low Way and Warran Road and at the intersection of David Low Way and Seaside Boulevard. [316] The experts’ proposed upgrade works for two further intersections follows a change in the assessment requirements. New guidelines now require development proponents to effectively offset the impact of development, requiring upgrading to negate the impacts upon the State network capacity. The further proposed roadworks will meet that requirement and the relevant state agency has agreed to the upgrade works. [317] The traffic engineers opine that the proposed upgrade works will involve net benefits to the community, particularly in terms of safety for vehicles entering and leaving David Low Way and for pedestrians crossing it. This is because the proposed signalisation of the two further intersections will provide gaps in the traffic flow to provide for right turns out of residential streets nearby that intersect with David Low Way. It will also improve opportunities for pedestrians to cross, and will provide gaps to improve the operation of adjacent unsignalised intersections. [318] The traffic engineers agree that the intersection upgrade works will mitigate the delays arising from the additional traffic generated by the proposed development. [319] I accept these opinions of the traffic engineers. They detailed their foundations and explained them well in their reports. Having regard to their evidence, I am satisfied that the increased traffic generation is not a matter that warrants refusal of the proposed development. Does the proposed external roadworks militate against approval? [320] The intersection upgrades that the traffic engineers agree are appropriate, and which SHC and the relevant road authorities agree should be conditioned, are: (a) signalisation of the David Low Way and Suncoast Beach Drive intersection incorporating localised widening of the intersection approaches. (These works 495 The Department of State Development, Manufacturing, Infrastructure and Planning was consulted with respect to the proposed development in its role as a concurrence agency because of the proximity of the proposed development to a State-controlled road and due to its potential impact on State transport infrastructure. The decision notice issued by the Council attached an amended concurrence agency response by the Department dated 1 June 2018. -- 223 of 269 -- Original reasons p 80 have already been undertaken pursuant to the conditions of approval attached to the Hyatt preliminary approval); (b) lane reconfiguration and lengthening of the auxiliary turn lanes at the David Low Way and Beach Road intersection; (c) signalisation of the David Low Way and Warran Road intersection; and (d) signalisation of the David Low Way and Lorraine Street intersection. [321] The upgrade to the David Low Way and Warran Road intersection and the David Low Way and Lorraine Avenue intersection are additional requirements not originally required by the conditions to the decision notice. SHC has corresponded with the Department of Transport and Main Roads (through the relevant Department of State Development, Manufacturing, Infrastructure and Planning) regarding the additional works, including providing road safety audits. The Department of Transport and Main Roads has agreed to issue an amended concurrency agency conditions of approval incorporating the upgrade to the additional two intersections. [322] Mr Douglas opines that the intersection improvements, particularly those at the Warran Road and David Low Way intersection and at the Lorraine Avenue and David Low Way intersection, will provide greater benefits for the local transport network than the impacts arising from the subject development. In particular, he says the signalisations will provide controlled right-turn movements onto David Low Way and signalised pedestrian crossings in proximity to bus stops. During his oral testimony, Mr Douglas explained in detail the benefits that the upgrade of these two intersections will have for traffic safety and efficiency. Having regard to his evidence, I am satisfied that the additional upgrades recommended by the traffic engineering experts will benefit the local community. [323] As I have already mentioned, the signalisation of the David Low Way and Suncoast Beach Drive intersection has already occurred. Mr Douglas expects that it, as well as all other upgrades, will also provide some safety benefits to pedestrians and motorists. [324] The upgrading of the David Low Way and Beach Road intersection will involve widening that will result in a loss of 12 car parks, being 11 car parks along David Low Way and a car park from Beach Road. This is an impact that is of significant concern to the community, which has expressed considerable concern about existing parking problems in this locality. Despite that community concern, I am satisfied that the loss is acceptable. It is a loss of 12 from 247 public car parks already available in the general area. Having regard to the evidence of the traffic engineers, I am satisfied that there are opportunities to replace at least some of those car parks through a minor redesign of existing car parking areas in the locality, should the Council consider it appropriate. Further, I am satisfied that the proposed development may assist in the re-distribution of demand for car parking spaces, given the new offer as part of the proposed development. The subject land will provide in excess of 100 spaces for beach access to Yaroomba Beach, plus additional public parking within the subject land for those accessing the hotel, retail and other uses. [325] For the reasons provided in paragraphs [320] to [324] above, I am satisfied that the external roadworks support approval of the proposed development. Although the public might be concerned about loss of car parks, it is reasonable for them to expect -- 224 of 269 -- Original reasons p 81 that the number of car parks available may fluctuate from time to time because of upgrade works that improve the safety or efficiency of the road network. Does the proposed development provide sufficient car parks? [326] In the documents that identified the issues in dispute in the lead up to the hearing, the Appellants alleged that the proposed development will create a demand for public parking that will exceed the supply. This allegation does not appear to be maintained in its submissions. In any event, the traffic engineers satisfactorily address it. [327] The traffic engineering experts analysed the parking requirements for the proposed development using a first principles assessment methodology. Their joint expert report details the key input assumptions and provides their calculations. They were not challenged about either. Based on their analysis, the experts opine that the proposed development results in a total supply of 569 spaces, which the traffic engineers agree results in a surplus of two spaces for the overall development. The traffic engineers agree that the overall provision will be sufficient to meet the normal design scenarios (that is outside holiday peak periods). [328] Subsequent to the joint expert meeting, Mr Healy further refined the Hotel basement parking allocation to ensure that no shortage arises during peak periods. The Council conditions also require the implementation of a management system to ensure that demand for hotel parking is properly monitored. Condition 126 of Council’s approval conditions requires: (a) an additional 100 overflow car parking spaces to be provided on undeveloped land parcels as part of the delivery of Stage 1; (b) a car parking study, which must be peer reviewed, to determine if additional parking spaces are required in the long term; and (c) additional car parking to be delivered in later stages of the development if the car parking study regime identifies any shortfall. [329] Having regard to the matters identified in paragraphs [327] and [328] above, I am satisfied that the proposed development makes adequate provision of public car parks and car parks for the development. Conclusion regarding compliance with the Transport and parking code [330] I accept the evidence of Mr Douglas that the transport infrastructure is designed and will be constructed to acceptable standards and will operate in a safe and efficient manner to prevent unacceptable off-site impacts. It will meet reasonable community expectations. No issue arises concerning the ongoing maintenance costs of the transport infrastructure. As such, for those reasons (and the reasons provided in paragraphs [307] to [329] above), I am satisfied that the proposed development complies with the requirements of overall outcome (2)(c) of the Transport and parking code. Conclusion regarding the acceptability of the design of the proposed development [331] For the reasons provided above, I do not regard the proposed development as an overdevelopment of the subject land when it is assessed against the requirements of the Planning Scheme. This is further evidenced by the absence of traditional indicia -- 225 of 269 -- Original reasons p 82 of overdevelopment. The Appellants do not point to any meaningful hard impacts. It was not disputed that that the proposed development would not result in any unacceptable impacts in terms of setbacks, overshadowing, overlooking, overbearing or site cover. Further, for reasons provided above, I am satisfied that the proposed development would not result in any unacceptable impacts in terms of visual amenity and traffic. Will the proposed development pose an unacceptable risk to the loggerhead turtle? [332] The Appellants allege that approval of the proposed development would pose an unacceptable risk to the loggerhead turtle. In support of their allegations, the Appellants allege non-compliance with numerous assessment benchmarks. In particular, they allege non-compliance with: (a) s 3.7(4), s 3.7.1(f) and s 3.7.2.1(a) and (b) of the Strategic framework; (b) the purpose in s 6.2.17.2(1)(d) of the Emerging community zone code; (c) overall outcomes (2)(k) and performance outcome PO16(j) of the Coolum local plan code; and (d) the purpose in s 8.2.3.2(1)(a), overall outcomes (2)(a), (b), (c) and (d) and performance outcomes PO2 and PO4 of the Biodiversity, waterways and wetlands overlay code. [333] The Appellants say that the assessment benchmarks that deal specifically with environmental impacts are in the Biodiversity, waterways and wetlands overlay code. The Appellants say that the intent to protect, maintain, and enhance environmental value is also reflected in the other provisions of the Planning Scheme with which they allege non-compliance. Given those other provisions reflect the planning requirements and intent that is set out with greatest focus in the Biodiversity, waterways and wetlands overlay code, it is convenient to turn first to the provisions of that code, before turning to the balance of the provisions put in issue by the Appellants. Does the proposed development comply with the Biodiversity, waterways and wetlands overlay code? [334] The purpose of the Biodiversity, waterways and wetlands overlay code is to ensure that “ecologically important areas are protected, rehabilitated and enhanced”. [335] This purpose is intended to be achieved through the overall outcomes, which include: “(a) development protects and enhances ecologically important areas and ecological connectivity; (b) development protects and establishes appropriate buffers to waterways, wetlands, native vegetation and significant fauna habitat; (c) development protects known populations and supporting habitat of rare and threatened flora and fauna species, as listed in the State Nature Conservation Act 1992, Nature Conservation (Wildlife) Regulation 2006 and the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999; -- 226 of 269 -- Original reasons p 83 (d) development is located, designed and managed to avoid or minimise adverse direct or indirect impacts on ecological systems and processes;” [336] Performance outcomes PO2 and PO4 of the Biodiversity, waterways and wetlands overlay code contain similar requirements for the management of impacts on ecologically important areas. They state: “PO2 Development on or adjacent to land containing an ecologically important area is designed and constructed to:- (a) prevent any direct or indirect impacts on the ecologically important area; (b) enhance and restore the ecologically important area; (c) retain, enhance and restore known populations and supporting habitat of significant flora and fauna species; (d) minimise the impacts of construction and ongoing use on native fauna. PO4 Effective measures are implemented during the construction and operation of developments on or adjacent to land containing an ecologically important area, to protect fauna that is sensitive to disturbance from noise, vibration, dust or light.” [337] The term “ecologically important area” is defined in the Planning Scheme. It is common ground between the parties that the coastal dunes at Yaroomba adjacent the subject land are an ecologically important area as defined. They are an area that contains or is likely to contain the loggerhead turtle, which is a listed migratory species under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). [338] With respect to issues of ecological impact on loggerhead turtles, I was assisted by evidence from a number of marine biologists, namely Ms Thorburn, Dr Thorogood and Associate Professor Hamann (retained by SHC, the Council and the Appellants respectively). They prepared three joint expert reports in conjunction with Mr Paul King and Ms Adams, who were retained by SHC and the Council respectively for their expertise in lighting and noise. It is common ground that there is no unacceptable impact occasioned by noise associated with the proposed development. [339] I also had the benefit of statements from a number of local residents who volunteer with Coolum and North Shore Coast Care, including Ms Warneminde, Ms Holford, Ms Phillips, Mr Pearce and Ms Richards. Coolum and North Shore Coast Care is an incorporated association. Its aim is to protect and conserve the natural values of the coastal area between South Peregian and Maroochy River, encourage the preservation of the area’s biodiversity and encourage active participation of the community and governing bodies. Its activities include dune revegetation, marine turtle monitoring, attending to marine turtle stranding, and attending to dead turtles. Its members include volunteers who are accredited through a training program for turtle monitoring conducted at Mon Repos under the guidance of a well-respected turtle expert, Dr Limpus. The detailed data collected by volunteers of Coolum and North Shore Coast Care is shared with the Department of Environment and Science, the University of the Sunshine Coast and Dr Limpus for use in their research about turtles in Queensland. The statements provided by the association’s volunteers contained their personal observations about turtle nests in the area, behaviour of hatchlings, and -- 227 of 269 -- Original reasons p 84 local conditions in terms of light glow, vegetation condition on the dunes and the extent of foot traffic on the beach and through the dunes. [340] There was no controversy between the marine biologists about many issues relevant to the loggerhead turtle, including its conservation status, distribution and habitat, movement and migration, mating and nesting habits, and key threats to the species. [341] The marine biologists agree that there are ten genetically distinct stocks (or subpopulations) of loggerhead turtles globally. Two of them nest in Australia. One of those is the South Pacific stock, which nests primarily in southern Queensland. The conservation status of the South Pacific subpopulation is listed as critically endangered due to declining population numbers. There has been a population decline of more than 80 per cent since the mid 1980s. The decline is continuing. The causes are not completely understood. [342] Approximately four per cent of the total loggerhead turtle nesting population of eastern Australia nests on the beaches of the Sunshine Coast. The Sunshine Coast beaches are considered to be minor nesting sites. The major nesting areas (or rookeries) occur on the mainland coast from Mon Repos to Wreck Rock (on the Woongarra Coast), Wreck Island, Tyron Island and Erskine Island. There are also significant rookeries on Heron, Masthead and Lady Musgrave Islands and in the Swains Reef cays. More than 80 per cent of the nesting beaches for loggerhead turtles in Queensland are within protected estates such as national parks and conservation parks. Nevertheless, the experts agree that the Sunshine Coast beaches are important to the broader south-west Pacific population due to their endangered status. It is also considered that the Sunshine Coast beaches have the potential to become more important nesting beaches with increased temperatures under a changing climate. [343] The real issue in dispute is whether the proposed development will pose an unacceptable risk to the loggerhead turtle when females are nesting and when hatchlings are dispersing because of the potential light impact of the proposed development. The Appellants’ case is founded on the opinion of Dr Hamann that: “… the level of darkness on the beach is integral for the breeding and hatchling behaviours of the loggerhead turtles. In particular, light pollution, even at low levels, is known to (1) influence the on-beach orientation, and nest sire selection, of adult female turtles, (2) influence the on-beach orientation and sea finding behaviour of hatchling turtles and (3) influence the at-sea dispersal of hatchling turtles. In addition to directly visible lights, sky glow arising from artificial light, without the actual light sources being visible, will be disruptive to ocean finding behaviour of turtles and directly visible can be disruptive to ocean finding behaviour.” [344] SHC and the Council refute the Appellants’ allegation. They say that the Court would be satisfied that the proposed development would not cause any unacceptable impacts on the loggerhead turtle on the basis of the conditions of approval imposed by the Council (as refined during this appeal) and the Master Sea Turtle Management Plan and Master Sea Turtle Lighting Plan. What measures are proposed to address potential impacts on turtles? [345] Several aspects of the design of the proposed development address the potential impacts on turtles. First, the proposed development maintains a significant buffer between the tallest building and the dunes. The boundary of the subject land is about 120 metres landward of the toe of the vegetated frontal dune. In addition, the built -- 228 of 269 -- Original reasons p 85 form proposed in Stage 1 is further separated from the landward edge of the frontal dune by a beachside park and road, such that the buffer between the resort building and the toe of the frontal due will be approximately 180 metres. Second, it is proposed that existing beach access paths will be used so that there will be no new disturbances to the frontal dune. Further, the paths will not be lit at night. This will discourage night-time access to the beach. Third, the proposed development includes an education centre, at which educational material will be available in relation to the importance of the dune systems and dune vegetation and about marine turtles. The proposed development will also include educational signage along a coastal discovery trail, including at the beach access points. That material will be made available for residents via the body corporate and will be provided to hotel guests. [346] In addition, the decision notice issued by the Council includes the following conditions with respect to turtles:496 “44. At all times, the development must demonstrate that they maintain the existing established sky glow values for Yaroomba South as follows: (a) for Whole Sky and zenith, between 20 – 21 magnitudes/arcsec2 (typical rural night sky horizon), (b) for Horizon between 19 and 20 magnitudes/arcsec2 (Tpical suburban night sky horizon), and (c) this is representative of results, under clear sky conditions with light levels measured at Yaroomba South on the Sunshine Coast. 45. As part of the first Operational Works application, a Master Sea Turtle Management Plan and Master Sea Turtle Lighting Plan must be submitted to Council for approval. The Master Sea Turtle Management and Lighting Plan must be prepared by a qualified Sea Turtle expert (tertiary qualified marine turtle biologist and member of IUCN Marine turtle specialist group) and must include the following: (a) at each stage of construction, the developer is to engage a consultant to prepare a pre and post construction Artificial Light at Night Survey to determine changes to light emissions from the development to the adjacent turtle nesting beach using the methodology and equipment described in Sunshine Coast Council and Moreton Bay Council’s Benchmark Artificial Light at Night Survey 2017. The pre-construction Light Survey is to be undertaken prior to any site works commencing on site. The post-construction Light Survey is to be undertaken by the Master Developer’s on completion of each stage of the development. The Light Surveys are to be submitted to Council officers for their review and assessment. Should the post construction ‘as built’ audit identify that correctional actions are required, these are to be undertaken by the Developer. (b) the Developer must engage a contractor to incorporate biological data (hatchling sea finding behaviour) into the Artificial Light at Night Survey in order to demonstrate the impact to Marine Turtle 496 Conditions 44, 45 and 46 are included as part of the preliminary approval. Conditions 157 and 158 are included as part of the development permit and are in similar terms to conditions 44 and 45 but with appropriate adjustments that reflect the fact that the condition is one attached to a development permit, rather than a preliminary approval. -- 229 of 269 -- Original reasons p 86 Sea finding behaviour. This data can be accessed through a data request to the existing local turtle monitoring group. (c) the Developer must engage a qualified Sea Turtle expert (tertiary qualified marine turtle biologist and member of IUCN Marine turtle specialist group) to develop in conjunction with the lighting engineer, a turtle friendly street lighting design that achieves the minimum light requirements for road traffic and pedestrian safety, and that meets the required skyglow requirements of this decision notice; (d) development of compliance measures with which the development must comply. (e) within the Master Sea Turtle plan, detail how the development will (i) develop a public education program a. to raise awareness and understanding of marine turtle nesting, impacts of artificial light at night, predators and human disturbance; b. to work in partnership with Council and the local turtle monitoring group in the development of the Nature Trail c. Support of the existing long term marine turtle monitoring program on the local coastline and including beaches from Point Arkwright to Tanah Street West of the project are, including a commitment to support local groups to continue to monitor Marine Turtle Sea finding behaviour (f) ensure the Rooftop bar mitigates vertical light spill and reduces sky glow in accordance with the standards, in the condition immediately preceding, between October – May; (g) no light directly visible from the beach both opposite the development and along the beach to the north and south; 46. All lighting within the site must be maintained in accordance with the approved Master Sea Turtle Management Plan and the approved Master Sea Turtle Lighting Plan. These plans must be included in the Community Management Statement for any body corporate for the subject site.” [347] After the Second Marine Turtle Ecology (Including Lighting and Noise Impacts) Joint Experts’ Report, Ms Thorburn prepared a draft Master Sea Turtle Management Plan and Mr King prepared a draft Master Sea Turtle Lighting Plan. Their drafts were revised by all of the experts during the course of the third joint expert meeting. The revised plans are appended to the Third Marine Turtle Ecology (Including Lighting and Noise Impacts) Joint Experts’ Report. All of the experts agree that the plans respond to the conditions in the decision notice. [348] In the Third Marine Turtle Ecology (Including Lighting and Noise Impacts) Joint Experts’ Report, the experts also considered the content of the conditions. All of the experts agree that the conditions should be amended in two respects. First, they recommend that the conditions be amended to require the collection of additional baseline data representative of conditions experienced during the turtles’ nesting season, and with a sufficient sample size to provide a statistically relevant baseline. They recommend this be undertaken in accordance with the artificial light at night monitoring program outlined in the Master Sea Turtle Management Plan prepared by Ms Thorburn. They say this will more reliably describe the existing sky glow values. -- 230 of 269 -- Original reasons p 87 Second, the experts consider the expert qualifications required by the conditions are unduly restrictive. They recommend the conditions be amended to require the Master Sea Turtle Management Plan to be prepared by a tertiary qualified ecologist with a minimum of five years current experience in marine turtle or marine fauna assessment and management, quantitative ecology and design of monitoring programs. They say the Master Sea Turtle Lighting Plan should be prepared by a tertiary qualified engineer with a minimum of five years current experience in the field of lighting impacts on the environment and lighting design. [349] None of the parties suggested that the two suggested changes should not be made. I accept that the changes are appropriate. The conditions, as so amended, form part of the measures through which the proposed development will address potential impacts on turtles. Does the design of the proposed development and the proposed conditions and management plans satisfactorily address potential impacts on turtles? [350] In forming their respective opinions about whether the proposed development satisfactorily addresses the potential risk to loggerhead turtles, the ecologists were informed by: (a) the conditions contained in the decision notice issued by the Council approving the proposed development, and the amendments to them that the experts agree are appropriate; (b) assessments prepared by Mr Paul King, and reviewed by Ms Adams, in relation to: (i) the potential impact of vehicle lights on levels of artificial light at night and hatchling behaviour at Yaroomba Beach; (ii) site specific lighting screening. This assessment includes drawings, (sections and plans) that represent the built form of the proposed development relative to the frontal dune, beach and ocean. It facilitated assessment of potential for “line-of-sight” from turtles to the proposed development, specifically in relation to visibility of lighting and the physical screening available; (c) the Master Sea Turtle Lighting Plan prepared by Mr Paul King, and Ms Adams’ review of that plan; (d) Dr Hamann’s overview of current threats to loggerhead turtles; (e) turtle clutch data aggregated by beach prepared by Dr Hamann based on the combined dataset provided by Coolum and North Shore Coast Care and the Council; (f) an Updated Assessment of Impacts to Loggerhead Turtles prepared by Ms Thorburn; and (g) the Master Sea Turtle Management Plan prepared by Ms Thorburn. [351] Having regard to that information, Ms Thorburn opines that the proposed development can be designed, constructed, and operated in a manner that avoids, -- 231 of 269 -- Original reasons p 88 minimises, and mitigates significant impacts to turtle nesting success and hatchling sea-finding and dispersal behaviour. She notes that the conditions provide for monitoring and triggers for corrective actions. Annual review of the plans will enable the incorporation of emerging knowledge of the ecology of loggerhead turtles. Dr Thorogood is of the same opinion. [352] Dr Hamann acknowledges that the Master Sea Turtle Management Plan and the Master Sea Turtle Lighting Plan appended to the Third Marine Turtle Ecology (Including Lighting and Noise Impacts) Joint Experts’ Report responds to the Council’s conditions. He says that it guides how the development can be designed, constructed, and operated in a manner that reduces impacts to turtle nesting success, and hatchling sea-finding. He acknowledges that the plans and conditions detail proposed monitoring and triggers for corrective actions. He accepts that an annual review of the plans will enable the incorporation of emerging knowledge of the ecology of loggerhead turtles, monitoring techniques and incorporation of new lighting technology. However, Dr Hamann opines that the assessment is insufficient to demonstrate that the proposed development does not pose an unacceptable risk to the loggerhead turtle. He opines that the combined impacts and cumulative effects of increased light levels and human beach use arising from the proposed development will lead to reduced nesting success and increased rates of mis-orientation and dis- orientation of hatchlings emerging from clutches laid at Yaroomba Beach. He says that impact is unacceptable because there is a real chance that it will add to the existing pressures on turtles laying at Yaroomba and on the broader population of loggerhead turtles. He says the proposed development will impede the long-term maintenance of the species and interfere with local, State, national and international efforts to recover the species. [353] Dr Hamann’s opinion is informed by his concern about dune height and vegetation profiles. He says the plans prepared by Mr Paul King assume that the dune height and vegetation profile are high enough to prevent direct light spill and sky glow from being visible on the beach and out to sea for 100 metres. Dr Hamann does not believe the assumption to be valid. He says that the dune and vegetation profiles have not been adequately mapped and their heights have not been established using suitable technology. He says it is clear from visiting the beach that vegetation density is variable, dune height is not consistent along the development area, and re-vegetation work would take decades to establish. In addition, he says that sand dune systems are dynamic and can be strongly influenced by local and regional events that alter vegetation structure and health and lead to changes to dune height and structure. Dr Hamann considers that the absence of monitoring of dune profiles and vegetation density and heights is a shortcoming of the Master Sea Turtle Management Plan and the Master Sea Turtle Lighting Plan. He considers that quantifying and improving vegetation density are important aspects of monitoring. [354] Dr Hamann’s observations about variability in the dune height and vegetation profile is consistent with the photographs of the area and with what I viewed during a site inspection. Despite that, I prefer the evidence of Mr King to that of Dr Hamann about the adequacy of the existing dune height and vegetation profile to prevent direct light spill impacts. [355] The existing buffer between the subject land and the beach is presently over 100 metres in width. It provides a physical buffer comprising sand dunes with vegetation cover, including trees and dense foliage. Mr King opines that this buffer provides a -- 232 of 269 -- Original reasons p 89 significant degree of protection to light spill or visibility of light from the beach and near beach areas out to sea. Mr King illustrates the basis of his opinion in Figure 5 in Appendix C to the Marine Turtle Ecology (Including Lighting and Noise Impacts) Joint Experts’ Report. As noted by Dr Hamann, that figure shows the dune and vegetation canopy at a particular assumed height. [356] Subsequent to the production of the joint expert reports, Mr Paul King prepared an individual statement of evidence. It provides further detail about dune height and vegetation. In Attachment 2 to his statement, Mr King includes a long section prepared from available LIDAR topographic data to demonstrate the height of the existing dune along the frontage of the subject land to Yaroomba Beach. It also maps the heights of vegetation on the dune areas between the Stage 1 development area and the beach. That mapping was prepared from point cloud LIDAR information. Mr King also provides 3D renders to demonstrate the dune and vegetation heights relative to the natural surface of the development site adjacent. Mr King opines that this further information demonstrates that the existing dune and vegetation provides a continuous, solid screen between the beach and the Stage 1 development site. [357] I accept Mr King’s analysis, and his opinion that the dune height and vegetation profile prevent direct light spill and sky glow from being visible on the beach and from near beach areas. His evidence in this regard is consistent with Mr Elliott’s photomontages, which demonstrate that the proposed built form, including the seven- storey hotel, will not be visible from the beach due to the intervening dune and vegetation. Although the photomontages show that the proposed development will be slightly visible from 50 metres out to sea and will be visible from 100 metres out to sea, it assumes a vantage point two metres above the line of the water. This does not demonstrate a direct light impact to turtles, which will be at or below the surface of the water. Having regard to the evidence of Mr King, I am satisfied that the height of the dunes themselves provide physical screening of light impact. The vegetation is ancillary to that. [358] I am assisted with respect to the dynamic nature of sand dunes by the evidence of Dr Thorogood. In his individual statement of evidence, Dr Thorogood examines historical beach profile data for the beaches and dunes of the Sunshine Coast. He also considers the erosion potential of the area and its capacity to recover from erosion events. Based on his analysis of historical beach profile data and historical aerial imagery, Dr Thorogood opines that the beaches and dunes of the Sunshine Coast in general, and the Yaroomba Beach region in particular, have been essentially stable over time. He identifies a long-term trend of minor erosion and predicts shoreline recession of approximately 1.1 metres by 2060 near Yaroomba. He says that climate change and sea-level rise are likely to result in increased erosion of the beach and frontal dune system but says that because of the width of the dune system and its historical stability, the dunes are unlikely to be lost this century. Dr Thorogood opines that where the dune system is lost, the issue of light impacting turtle nesting habitat will be academic as it would be unlikely that any such habitat would remain. Dr Thorogood’s opinions on this issue were supported by his analysis, which was unchallenged. I accept his opinions. [359] I accept that vegetation density will vary over time. As was noted by Dr Thorogood during his cross-examination, as a living community, the vegetation on the dunes is constantly changing. Consequently, while the pandanus trees are currently suffering a form of dieback, that provides resources, spaces, nutrients and light for other species -- 233 of 269 -- Original reasons p 90 to take advantage, providing a continual regeneration of vegetation communities. He opines that there are not circumstances present that indicate that it is likely that there will be diminution of the vegetation on the dunes. I accept this evidence. [360] Dr Thorogood’s evidence about vegetation on the dunes causes me to doubt Dr Hamann’s view that re-vegetation work would take decades to establish. So does Dr Hamann’s comment during cross-examination that he is not a coastal geologist, nor an expert in botany or geomorphology. Dr Hamann said he does not know about dunes and vegetation in exact terms. [361] Dr Hamann’s views about the dunes and the vegetation also do not appear to take account of the measures proposed by the development to maximise protection of the dunes and dune vegetation in the State reserve. Those measures include planting of additional screening vegetation (using appropriate tree species) between the dune and the development, such as along the eastern edge of the proposed beachside park and coastal pathway. It also includes and the reporting of any breakages or problems with dune fencing or beach access paths to the Council to facilitate their timely repair and to discourage people from accessing the dunes other than via the two designated access paths. These positive aspects of the proposed development will enhance this ecologically important area. [362] In any event, as I have noted above, I am satisfied that it is the height of the dunes, rather than the vegetation on them, that provide the significant screening of light impact, and that the dunes are relatively stable. [363] Having regard to the evidence of Mr King and Dr Thorogood outlined in paragraphs [353] to [362] above, which I accept, I do not share Dr Hamann’s concerns with respect to potential variability of dune height and vegetation profiles. [364] Dr Hamann also questions the adequacy of the light assessment. He says the assessment is not quantitative and is not statistically robust. He notes that the assessment does not present data on expected wavelength and intensity of both the expected direct light level or expected sky glow from the proposed development and activities associated with it. He says that the existing studies of artificial light levels along the Sunshine Coast do not provide a robust analysis of existing light levels. As such, he says there is no empirical basis to support statements by Mr King and Ms Adams that light pollution from the proposed development will be low, within existing levels, similar to other development and that they can be managed. [365] Dr Hamann is not supportive of the rooftop bar in particular. It is a covered area on level 5 of the hotel building, which links to two terrace areas via a feature walkway. The terrace areas are open to the sky. They are to be used for functions and for a viewing terrace. The architectural design identifies that a roof element above the rooftop bar area will be a pergola type structure that will be lined with glass or similar material to provide shelter from the weather whilst allowing natural light to penetrate during the day. The use area of the covered rooftop bar is approximately 157 square metres. The uncovered terrace areas comprise 105 square metres and 80 square metres. The rooftop bar and associated terraces are located towards the western edge of the resort, in part separated from the beach by the taller main hotel building. Those areas are proposed to be subject to restrictions on upwards light spill. Dr Hamann says increased sky glow resulting from the bar will be challenging to avoid. He -- 234 of 269 -- Original reasons p 91 regards elevated lights as one of the main contributors to sky glow 100 metres out to sea. [366] I do not accept the evidence of Dr Hamann about the adequacy of the lighting assessment or about the impact of the proposed development (including the rooftop bar) on sky glow. He has no qualifications or experience in relation to lighting engineering. He is not an expert with respect to such matters. [367] I was assisted by the evidence of Mr Paul King and Ms Adams with respect to the lighting impact of the proposed development on the beach and on sky glow. They consider each of the potential lighting sources within the proposed development, including lighting associated with vehicle headlights, street lighting, outdoor lighting, and indoor lighting. Their evidence also considers the proposed management and control of each source, and the effectiveness of such measures. The Master Sea Turtle Lighting Plan prepared by Mr King addresses each potential light source. [368] In the Second Marine Turtle Ecology (Including Lighting and Noise Impacts) Joint Experts’ Report, Mr King and Ms Adams each opine that the proposed development can be designed, constructed, and operated to control lighting impact on sky glow. They say it can be controlled to maintain lighting levels within the background levels for the Sunshine Coast and to prevent direct light being visible from the beach and near beach areas. Mr King and Ms Adams opine that the proposed mitigation measures are not impractical, nor difficult to enforce. [369] Mr King specifically addressed the lighting considerations associated with the rooftop bar in his individual statement of evidence. In that report, Mr King addresses Dr Hamann’s concern that the lighting impact associated with the rooftop bar will result in unacceptable impacts, particularly due to its contribution to sky glow. Mr King opines that these level use areas can be lit in a manner that controls sky glow and prevents direct light visibility from the beach or near beach area. He says this can be achieved through appropriate design measures such as use of surface finishes with low light reflectance and use of lighting that comprises distributed luminaires of low luminance with low blue light components. Task lighting can be required to be down lit and, if necessary, opaque roof elements can be incorporated to prevent upward light spill and sky glow contribution. [370] In his individual report, Mr King opines that the design requirements reflected in the conditions and required through implementation of the Master Sea Turtle Lighting Plan will ensure that sky glow measured from the beach will be maintained within the ambient ranges that presently occurs. Mr King notes that as part of the design process, the conditions and the Master Sea Turtle Management Plan and Master Sea Turtle Lighting Plan will require detailed field measurements of sky glow to be undertaken prior to development. This will establish the baseline values that will then inform the design elements required to be incorporated into the built from and lighting systems so that sky glow is maintained within current ambient ranges. Mr King opines that suitable monitoring can be conducted to ensure that minimal sky glow impact is achieved and managed at all times. He explains the basis of that opinion. In particular, he notes that the monitoring provides measurable outcomes that then inform the operational parameters for lighting. The Master Sea Turtle Lighting Plan provides a mechanism to ensure that any necessary changes are made to lessen potential impact. -- 235 of 269 -- Original reasons p 92 [371] The Appellants submit that Mr King’s evidence should not be accepted as he is not a marine turtle expert. I accept that is a basis not to accept his opinion that there will be no unacceptable adverse impacts on marine turtles. However, it is not a basis to reject his opinion about impact on sky glow or direct light visibility from the beach or from the sea near the beach. These are matters about which he and Ms Adams are eminently qualified to express opinions, and about which Dr Hamann is not so qualified. I also do not accept the Appellants’ assertion that Mr King’s ability to form an opinion was hampered by the fact that he did not have access to the lighting standards required by the Westin. Although the Westin may be a likely operator of the resort, the development approval is not so confined. Further, and in any event, whichever entity operates the resort, it will be obliged to comply with the conditions of the development approval. [372] Ms Adams opines that the memorandum prepared by Mr Paul King that is appended to the turtle impact assessment report is based on practical science and demonstrates that direct light will not reach the beach or adjoining waters for approximately 100 metres seaward of the beach. She also says the proposed control measures to minimise glare and sky glow are predicted to maintain lighting levels within the background levels for the Sunshine Coast. As such, she says the proposed development will not adversely affect the lighting levels at Yaroomba Beach. [373] I accept the evidence of Mr King and Ms Adams. Their opinions are informed by their considerable knowledge and experience with respect to such matters, and their careful and considered review of the design and operation of lighting. Having regard to their evidence, I am satisfied that the proposed development will not adversely impact the lighting levels at Yaroomba Beach, nor will it have a significant impact on sky glow. For the reasons provided in paragraphs [364] to [372] above, I do not share Dr Hamann’s concerns with respect to the adequacy of the assessment of lighting impact. Although the baseline measures have not yet been ascertained, I am satisfied that the proposed development can satisfactorily address impact on those baselines, whatever they are. Further, as was conceded by Dr Hamann, his concerns about the monitoring program (assuming they were valid) could be satisfactorily addressed by the imposition of conditions. I am not persuaded that it is necessary to change the conditions, but I also see no reason not to if the Council and SHC agree that it is appropriate to change the conditions to address Dr Hamann’s concerns. [374] Dr Hamann’s opinion is also premised on his view that the proposed development will result in an increased human population of both residents and visitors at Yaroomba Beach. He says that it is likely that people will disturb or interfere with female turtles nesting (resulting in a decrease in nesting success) and with hatchlings as they emerge. I do not accept that the proposed development materially increases the prospect of interference with female turtles nesting or with emerged hatchlings for two reasons. [375] First, during cross-examination, Dr Hamann accepted that nesting activity generally occurs between dusk and midnight. It is less likely that the proposed development will increase the number of people on the beaches during those hours, particularly as there will be no increase in the number of accesses to the beach and the existing accesses will not be lit. [376] Second, while the turtle hatchlings might emerge at any time, the proposed development satisfactorily addresses the risk of interference with hatchlings by -- 236 of 269 -- Original reasons p 93 residents and visitors through its education program referred to in paragraph [345] above. [377] For the reasons provided in paragraphs [353] to [376] above, I do not accept Dr Hamann’s opinion that the combined impacts and cumulative effects of increased light levels and human beach use arising from the proposed development will lead to reduced nesting success and increased rates of mis-orientation and dis-orientation of hatchlings emerging from clutches laid at Yaroomba Beach. [378] Even if I accepted Dr Hamann’s views about those matters, I do not accept his opinion that the proposed development will have an unacceptable impact on loggerhead turtles by impeding the long-term maintenance of the species and interfering with local, State, national and international efforts to recover the species for five reasons. [379] First, even if Yaroomba Beach were to experience direct light impacts as a result of the proposed development (which for the above reasons is not accepted), I do not accept that such an impact would result in a failure of turtles to nest on Yaroomba Beach and the Sunshine Coast. During cross-examination, Dr Hamann acknowledged that nesting activity has occurred at Yaroomba Beach adjacent to urban development. [380] Further, Ms Thorburn opines that there is no obvious relationship between nest beach selection for loggerhead turtles and the density of adjacent development. She also opines that there will not be any unacceptable impact on turtle hatchling orientation posed by the proposed development as there will be no lights visible on the beach and sky glow will be conditioned to be within background levels. I accept her opinion. The evidence in her individual statement of evidence supports it. In that statement Ms Thorburn provides a detailed analysis of some of the most popular beaches for turtle nesting on the Sunshine Coast, being Shelly Beach, Buddina Beach, and Sunshine Beach. She also provides a detailed analysis of Dicky Beach, Yaroomba Beach, Discovery Beach, and Peregian Beach. With respect to each beach, Ms Thorburn records the buffer distance between the toe of the frontal dune (where loggerhead turtles nest) and the adjacent development, the nature of the development, and the extent to which direct lights were visible and sky glow was evident. Ms Thorburn provides photographs of each of the beaches that show the extent of foot traffic, and photographs taken at night to assist in explaining her evidence about the relative extent of light impact for each of the beaches. Ms Thorburn also considers available turtle nesting data, including available data about nest fans.497 Her analysis demonstrates that the popular nesting beaches at the Sunshine Coast either experience direct light impacts or have the potential to experience direct light impacts. They also experience significant foot traffic. Despite this significantly greater degree of lighting impact and foot traffic than I would expect associated with the proposed development, Shelley Beach and Buddina Beach are two of the most popular turtle nesting beaches on the Sunshine Coast. From 2007 – 2018, Shelley Beach had 149 recorded successful nesting attempts, Buddina North had 103 and Buddina South had 77. In comparison, Yaroomba Beach had 14 successful nesting attempts. [381] Dr Thorogood also presented evidence to similar effect. He provided photographs of Shelley Beach and Buddina Beach that show those beaches have a significant degree of urban development immediately adjoining (and far more proximate to the beach 497 Nest fans indicate how far hatchlings fan out from the nests. It provides an indication of mis- orientation and disorientation. -- 237 of 269 -- Original reasons p 94 than the proposed development). At Shelley Beach, there is no buffer between houses and the dunes. There is a slightly greater degree of separation between the dunes and the built form at Buddina North, but at that location, the residential towers would shed direct light onto the beach. Dr Thorogood’s photographs of those beaches show that Shelley Beach and Buddina Beach experience significant foot traffic. Dr Thorogood’s evidence was consistent with that of Ms Thorburn. It supports the opinions expressed by Dr Thorogood and Ms Thorburn. [382] Unlike Ms Thorburn and Dr Thorogood, in forming his opinions Dr Hamann undertook no analysis of the relative light impacts or the relative extent of foot traffic on the beaches of the Sunshine Coast. During cross-examination, he confirmed that he had only visited the subject land on two different days and two different nights. He did not inspect Yaroomba Beach at night during nesting season. He also had not visited Shelley Beach or Buddina Beach at night, nor visited Sunshine Beach at all for the purposes of preparation for the appeal. He had made no attempt to ascertain the extent of impact from direct light and sky glow at the beaches on the Sunshine Coast. Instead, he claims that it is not possible to opine, as Ms Thorburn does, that the proposed development will have a negligible impact on sky glow as compared to light visible at other places such as Coolum, Maroochydore, Mooloolaba and Caloundra. His opinion in this respect rests on the absence of baseline data about measured artificial light. I do not accept his evidence. I accept it may be possible to assess the relative “darkness” of areas from observations alone and that such an assessment is possible for the beaches of the Sunshine Coast. I accept the evidence of Ms Thoburn about the relative “darkness” of Yaroomba Beach. Her evidence accords with that contained in the statements of the locals. [383] The second reason I do not accept Dr Hamann’s opinion is because it does not accord with his acceptance that the proposed development is consistent with the approach identified as appropriate in relevant literature. Dr Hamann accepts that relevant literature identifies that artificial light does not need to be eliminated, only minimised. Development can proceed with proper light management. That approach is reflected in the Commonwealth Government’s Recovery Plan for Marine Turtles in Australia.498 During cross-examination, Dr Hamann accepted that the Master Sea Turtle Management Plan and the Master Sea Turtle Lighting Plan accord with the goals in the Recovery Plan for Marine Turtles in Australia. He also accepted that, consistent with the Recovery Plan for Marine Turtles in Australia, the measures proposed by Mr King are best practice light management techniques that will be reviewed regularly. Dr Hamann also accepted that Mr Paul King’s work complied with the performance outcomes in the Sea Turtle Sensitive Area Code: A Model Code for Local Government released by the Queensland Government in May 2019. Dr Hamann also took no issue with compliance with the DRAFT Light Pollution Guidelines: National Light Pollution Guidelines for Wildlife,499 which Mr King refers to in his individual statement of evidence. [384] Third, Dr Hamann’s opinion seems exaggerated and out of step with facts agreed by the turtle experts. The experts agree that a relevant factor for recovering the loggerhead turtle is increasing survivorship and recruitment. In this respect, 70 per 498 Department of Environment and Energy, 2017, ‘Recovery Plan for Marine Turtles in Australia’, Commonwealth of Australia, Canberra. 499 Department of the Environment and Energy, 2019, ‘DRAFT Light Pollution Guidelines: National Light Pollution Guidelines for Wildlife: Including marine turtles, seabirds and migratory shorebirds’, Commonwealth of Australia, Canberra. -- 238 of 269 -- Original reasons p 95 cent of nests producing 70 per cent of hatchlings is considered appropriate to retain a stable population. Currently, the Sunshine Coast hatchling success rate is at 74 per cent. Further, Yaroomba Beach and the Sunshine Coast generally play a relatively small role in maintaining the stocks of loggerhead turtles in this part of the world. Yaroomba Beach only supports approximately 0.2 per cent of the clutch’s lay in any given year for the South-West Pacific stock of loggerhead turtles. I accept the opinion of Dr Thorogood that whatever happens at Yaroomba Beach is unlikely to, in any substantive way, affect the state of the stock for the loggerhead turtle in the South- West Pacific. In fact, the overall number of clutches recorded in each nesting season north of the Maroochy River and for the Sunshine Coast generally has improved over the last decade. [385] Fourth, I do not accept the submission by Mr Hack QC that Dr Hamann’s opinions should be accepted because he is the best qualified turtle expert from whom I heard evidence. He is a marine biologist specialising in turtles. Ms Thorburn and Dr Thorogood do not have the same degree of specialisation, but they are qualified to express the opinions that they have. The relative extent of Dr Hamann’s experience as compared to that of Ms Thorburn and Dr Thorogood does not of itself make his opinion more compelling. As was observed in Makita (Australia) Pty Ltd v Sprowles,500 expert witnesses, however skilled or eminent, can give no more than evidence. Their evidence need not be accepted if the expert does not persuade the Court that it is based on a sufficiency of research directed accurately and relevantly to a particular issue. The Court needs to be convinced of the fundamental soundness of the opinion. I am so persuaded in relation to the opinions expressed by Ms Thorburn and Dr Thorogood, but not with respect to the opinions expressed by Dr Hamann. [386] For the reasons already provided in paragraphs [340] to [385] above, I am persuaded that the opinions of Ms Thorburn and Dr Thorogood are founded on research directed accurately and relevantly to the impact of the proposed development, whereas I am not so persuaded with respect to Dr Hamann’s opinions. I am also persuaded in this regard by the fact that the opinions of Ms Thorburn and Dr Thorogood accord with the quantitative assessment of residual risk posed by the proposed development taking account of the proposed management measures undertaken by Ms Thorburn in her individual statement of evidence, which I accept for the following reasons. [387] Ms Thorburn prepared the risk assessment in response to Dr Hamann’s criticism that she did not include a quantitative risk assessment in her report “Updated Assessment of Impacts to Loggerhead Turtles, Yaroomba Beach”. The Second Marine Turtle Ecology (including Lighting and Noise Impacts) Joint Experts’ Report reviewed that assessment. Ms Thorburn subsequently prepared a qualitative risk assessment in accordance with the Commonwealth Matters of National Environmental Significance – Significant Impact Guidelines 1.1,501 the Queensland Environmental Offsets Policy, 500 [2001] NSWCA 305, (2001) 52 NSWLR 705, 729-30 [59]-[60] citing Lord President Cooper and Lord Russell in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40 and 42 respectively. 501 Department of Environment, 2013, ‘Matters of National Environmental Significance – Significant Impact Guidelines 1.1, Environmental Protection and Conservation Act 1992’, Commonwealth of Australia, Canberra. -- 239 of 269 -- Original reasons p 96 Significant Residual Impact Guideline (Section 5, Protected Wildlife Habitat),502 and the recently published Draft National Light Pollution Guidelines. She appended it to her individual statement of evidence. It identifies the hazards associated with each activity associated with the proposed development, and their likelihood and consequence in the context of the South-West Pacific population of loggerhead turtles. The key impacting processes assessed are direct disturbance of nesting habitat, light pollution (including the potential for directly visible light and increased sky glow), increased human population, and increased predation of clutches. Ms Thorburn classifies the risk as low. Dr Thorogood reviewed Ms Thorburn’s assessment and opines that once the proposed mitigation measures are in place, the inherent risks of an unmitigated development will be modified so that the residual risk is low. Ms Thorburn was not challenged about that quantitative analysis. Dr Hamann did not point to any defect in the risk assessment. [388] The opinions of Dr Hamann do not accord with Ms Thorburn’s risk assessment. During cross-examination, Dr Hamann accepted that he has not undertaken any quantitative risk assessment, despite having agreed in the first joint expert report that it was appropriate to address the risk by reference to the Commonwealth Matters of National Environmental Significance – Significant Impact Guidelines 1.1 and the Queensland Environmental Offsets Policy, Significant Residual Impact Guideline (Section 5, Portected Wildlife Habitat).503 Rather, his opinions are based on his subjective assessment. As is recorded at paragraph 12 of the Second Marine Turtle Ecology (including Lighting and Noise Impacts) Joint Experts’ Report, Dr Hamann regards the proposed development as posing an unacceptable risk to the South Pacific stock of the loggerhead turtle “because the stock has declined by 80% since the mid 1980s.” He notes that the decline is continuing. Dr Hamann’s contributions to the joint expert reports, his individual statement of evidence, and his oral testimony left me with the indelible impression that Dr Hamann’s opinion that the risk is unacceptable was, in large measure, underpinned by the very existence of the decline, rather than a meaningful heightened risk attributable to the proposed development. [389] Fifth, there is evidence that the proposed development would provide benefits to the habitat of the loggerhead turtle. As I have already identified in paragraph [345] above, the proposed development will provide education to guests and residents about the importance of the dune systems and dune vegetation as part of the education material that contributes to the proposed development’s advanced ecotourism rating. It will also result in the planting of additional screening vegetation of appropriate tree species between the dune and the proposed development, for example along the eastern edge of the proposed beachside park and coastal pathway. In addition, the proposed development will facilitate the reporting of any breakages or problems with the dune fencing or beach access paths to the Council to facilitate timely repair and discourage people from accessing the dunes other than via the two designated access paths. The developer will complete any necessary repairs to the dune fencing on the 502 Department of Environment and Heritage Protection, 2014, ‘Queensland Environmental Offsets Policy, Significant Residual Impact Guideline: Nature Conservation Act 1992, Environmental Protection Act 1994, Marine Parks Act 2004’, December 2014, State of Queensland, Brisbane. 503 The substance of these guidelines was summarised in Table 4.1 and each item in the guidelines was assessed by Ms Thorburn in her Updated Assessment of Assessment to Loggerhead Turtles, Yaroomba Beach that as appended to the Second Marine Turtle Ecology (including Lighting and Noise Impacts) Joint Experts’ Report. As I have noted above, in her individual statement of evidence, Ms Thoburn then undertook a quantitative risk assessment using the matrix developed under the Commonwealth guidelines and consistently with the recently published Draft National Light Pollution Guidelines -- 240 of 269 -- Original reasons p 97 boundary of the subject land immediately. Dr Hamann acknowledges that each of these matters is a positive aspect of the proposed development. I agree. The oral testimony of Mr Arno King highlighted the importance of education and monitoring fencing and access paths. He gave evidence of having walked over the privately owned Yaroomba parabolic dune because he assumed that it was there for public access – a view encouraged by local residents. [390] Having regard to the matters outlined in paragraphs [379] to [389] above, I do not accept Dr Hamann’s opinion that the proposed development will pose a significant risk to loggerhead turtles and will adversely impact habitat critical to the survival of the species. Conclusion regarding compliance with the Biodiversity, waterways and wetlands overlay code [391] For the reasons provided in paragraphs [334] to [390] above, I am satisfied that the proposed development complies with the purpose of the Biodiversity, waterways and wetlands overlay code and overall outcomes (2)(a) to (d) and performance outcomes PO2 and PO4. Does the proposed development comply with the environmental impact requirements of the Strategic framework? [392] The Appellants allege that the proposed development does not comply with s 3.7(4), s 3.7.1(f) and s 3.7.2.1(a) and (b) of the Strategic framework. [393] Section 3.7(4) states: “Avoidance of, or if avoidance is not practicable, minimisation and mitigation of, the individual and cumulative impacts of development on the natural environment.” [394] That provision forms part of the summary of the key concepts contained in Part 3.7 of the Strategic framework. It acknowledges that complete avoidance of the individual and cumulative impacts of development on the natural environment is not mandated. For the reasons provided in paragraphs [338] to [390] above, the proposed development does not cut across this key concept. [395] Section 3.7.1(f) is set out in paragraph [282] above. I refer to my observations in paragraphs [283] and [284] above about it. For the reasons provided in paragraphs [338] to [390] above, I am satisfied that the proposed development complies with the planning intent that the natural environment is protected and enhanced in a way that maintains and improves biodiversity, ecological processes, habitat and habitat connectivity. [396] Section 3.7.2.1(a) and (b) of the Strategic framework are specific outcomes. They form part of the implementation framework. They state: “(a) Development is located, designed and constructed and operated to avoid, as far as practicable, or where avoidance is not practicable, minimise and mitigate, adverse impacts on the ecologically important areas identified conceptually on Strategic Framework Map SFM5 (Natural environment elements) which include remnant and regrowth native vegetation, riparian areas and natural waterways, wetlands and waterbodies. -- 241 of 269 -- Original reasons p 98 (b) Habitat for endangered, vulnerable, rare and other regionally and locally significant flora and fauna species is protected and enhanced with mitigations measures for species recovery implemented.” [397] I do not accept the Appellants’ submission that the proposed development will not enhance the natural environment as the subject land is a derelict site. I identify further means by which the proposed development enhances the natural environment in paragraph [389] above. [398] I also do not accept that SHC’s approach is that it does not matter if harm is done to the nesting habitat of the endangered loggerhead turtle at Yaroomba Beach because the turtles can use other beaches. This allegation by the Appellants is unsubstantiated. In addition, I do not accept the Appellants’ assertions that the proposed development will have an adverse impact on the loggerhead turtle or its habitat for reasons already provided. [399] For the reasons provided in paragraphs [393] to [398] above, and the matters identified in paragraphs [338] to [390] above, I am satisfied that the proposed development complies with the environmental impact requirements of the Strategic framework with which the Appellants allege non-compliance. Does the proposed development comply with the environmental impact requirements of the Emerging community zone code? [400] The Appellants allege that the proposed development does not comply with the purpose in s 6.2.17.2(1)(d) of the Emerging community zone code. It is set out in paragraph [103] above. [401] For the reasons provided in paragraphs [338] to [390] above, I am satisfied that the proposed development will provide a best practice benchmark for ecological sustainability and the implementation of environmental enhancement and rehabilitation programs. The turtle and lighting experts all agree that the proposed development is superior to that which was proposed in the Hyatt preliminary approval. That the proposed development provides a best practice benchmark is also indirectly supported by a comparison between the proposed measures and conditions for the subject development and those for the proposed residential and tourism development at Beach Drive, Nicklin Way and Wurley Drive at Bokarina Beach.504 Does the proposed development comply with the environmental impact requirements of the Coolum local plan code? [402] The Appellants allege that the proposed development does not comply with overall outcomes (2)(k) and performance outcome PO16(j) of the Coolum local plan code. They are set out in paragraph [181] above. [403] For the reasons provided in paragraphs [338] to [390] above, I am satisfied that the proposed development complies with the requirements of these provisions. 504 That development was determined to be a ‘not controlled action’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). -- 242 of 269 -- Original reasons p 99 Conclusion regarding the risk the proposed development poses to the loggerhead turtle? [404] For the reasons provided above, I am satisfied that the proposed development would not pose an unacceptable risk to the loggerhead turtle, and that it complies with the relevant assessment benchmarks in this regard. What are the relevant matters relied on by the parties? [405] The Appellants raise a number of relevant matters that they say support their position that the development application should be refused. SHC and the Council raise relevant matters to contend the development application should be approved. Together, those relevant matters raise an additional thirteen questions for consideration. 1. Will there be an unacceptable traffic impact by reason of the amount of traffic generated, the design of the external roadworks and the quantum of parking proposed? 2. Will the scale, bulk and nature of the proposed development exceed reasonable community expectations? 3. Does the extent of community opposition, and the substance of it, support refusal of the proposed development? 4. Does the loss of submission rights for future stages support refusal of the proposed development? 5. Will the proposed development advance the purpose of the Planning Act 2016 having regard to the risk to the loggerhead turtle? 6. Is the proposed development supported by an economic, planning or community need? 7. Will the proposed development provide economic benefits to the locality, region and State that support its approval? 8. Will the proposed development increase tourism and economic activity in the locality and the region that supports the investment in the Sunshine Coast Airport? 9. Can the proposed development be provided without any unacceptable impacts? 10. Does the Hyatt preliminary approval support an approval of the proposed development? 11. Do the locational attributes of the subject land and the design response to it support approval? 12. Is the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018? -- 243 of 269 -- Original reasons p 100 13. Is it within the public interest for the proposed development to be approved? [406] I address each of these issues below. Will there be an unacceptable traffic impact? [407] The Appellants allege that the proposed development will have an unacceptable traffic impact because of the amount of traffic generated, the design of the external roadworks and the quantum of parking proposed. [408] I address the traffic issues raised by the Appellants in detail in paragraphs [307] to [330] above. For the reasons provided therein, I am satisfied that the proposed development will not have an unacceptable traffic impact. To the contrary, I am satisfied that the proposed intersection upgrades will mean that the proposed development will result in net benefits to the community that support approval of the proposed development. Will the scale, bulk and nature of the proposed development exceed reasonable community expectations? [409] The Appellants submit that the proposed development exceeds the reasonable community expectations due to its size, bulk, and nature. They accept that the reasonable expectations of the community regarding amenity should be informed by an objective reading of the applicable town planning controls.505 I agree. [410] In paragraphs [239] to [241] above, I outline the relevant principles with respect to reasonable community expectations. [411] The Appellants submit that regard should also be had to the Hyatt preliminary approval and the planning controls contained therein, as it is a development approval that overrides the Planning Scheme that is current for the subject land. I agree. I have addressed the relevance of it in paragraphs [517] to [524] below. [412] I do not accept the submission of the Appellants that the lay witness statements tendered by the First Appellant make it clear that the proposed development is inconsistent with the reasonable expectations of the community for the reasons provided in paragraphs [239] to [303] above and otherwise because of my findings that the proposed development complies with the assessment benchmarks. Does the loss of submission rights for future stages support refusal of the proposed development? [413] One component of SHC’s development application seeks to vary the effect of the Planning Scheme in the manner outlined in paragraphs [20] to [29] above. In paragraphs [83] and [84] above, I outline the Court’s decision making powers with respect to that part of the application, and the matters that are relevant to the exercise of the Court’s broad discretion. One of the factors relevant to the exercise of discretion is: “the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters.” 505 Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, 824 [153]. -- 244 of 269 -- Original reasons p 101 [414] Here, in the document identifying relevant matters in support of refusal, the Appellants rely on an alleged loss of submission rights pursuant to s 61(2) of the Planning Act 2016 should the proposed development be approved. They made no submissions in support of their allegation. [415] If SHC’s development application is approved, including its application for a preliminary approval (or variation request), future applications for development to facilitate use of the subject land for a mixed use hotel, commercial and residential development will not be subject to the public notification process associated with an impact assessable development application. As such, it will not be subject to further input from the public. I do not consider that this is sufficient to warrant refusal of SHC’s variation request for three reasons. [416] First, the application now being considered by the Court is in materially the same terms as that which was publicly notified. Throughout both the development application process and this appeal, SHC has always sought approval for a mixed use hotel, commercial and residential development. SHC’s publicly notified application also made it clear that it proposed to vary the Planning Scheme such that the detailed design of the development, for Stage 2 onwards, would be subject to code assessment only. That continues to be the case. [417] Second, the detail provided was sufficient to permit the community to appreciate the nature and extent of changes proposed. It is apparent from the submissions put before me that there was an appreciation of the nature of the proposed development that may occur as code assessable development, and the community took the opportunity to make submissions about whether such development was appropriate. [418] Third, there is a degree of commonality between the assessment benchmarks against which the proposed development has been assessed, and those against which a future code assessable development application would be assessed. A decision to approve that part of the development application that seeks a preliminary approval that varies the effect of the Planning Scheme would not avoid the need to undertake a further assessment against many of the provisions that have been in issue in this proceeding. [419] I am satisfied that the nature and extent of SHC’s proposed development was sufficiently identified to enable any concerned person to lodge an informed submission. To the extent that the Appellants maintain this relevant matter, it is not persuasive. Does the extent of community opposition, and the substance of it, support refusal of the proposed development? [420] The Appellants submit that the nature and extent of community opposition to the proposed development is a particularly important consideration given the provisions of the Planning Scheme that seek to preserve the individual identity of local communities. [421] The proposed development was publicly notified on two occasions. The first period of public notification commenced on 23 October 2017. The second commenced on 16 November 2017 following an error in the first round of public notification. During the public notification periods, a total of 12 306 submissions were received in respect of the development application. Of those, 11 666 were considered by the Council to be properly made submissions. -- 245 of 269 -- Original reasons p 102 [422] Mr Schomburgk analysed the submissions and provided his analysis at Attachment G of the Joint Experts’ Report – Town Planning. His analysis was not challenged. Further, exhibit 39 contains an analysis of the submissions received from the second round of public notification, which the parties agree to be a fair analysis of those submissions. There are some discrepancies in the numbers in that exhibit, which can be attributed to cataloguing and counting the larger volume of submissions received. [423] It is clear that there is strong public interest in the development application the subject of the appeal. Both Mr Schomburgk’s analysis and the analysis in exhibit 39 demonstrate that public opinion on the proposed development is divided. Each of the parties tendered a selection of the submissions that they regarded as representative of the broader submissions in support of their respective positions in the appeal. [424] The majority of the submissions were received from addresses within Queensland, and largely from addresses within the Sunshine Coast local government area. In the second round of public notification, there were 6 704 submissions in opposition to the proposed development and 1 948 submission in support received from addresses on the Sunshine Coast. [425] A large percentage of the submissions received were in the form of proforma submissions. There were a number of types of proformas, both in support and in opposition to the proposed development. Out of the total submissions received, 7 934 were in the form of proforma submissions. There were 28 percent of the proforma submissions that were in support of the proposed development and 72 percent in opposition. [426] The remainder of the submissions were identified as individual submissions. Of the 3 609 individual submissions received, 3 104 (or 86 per cent) were in opposition to the proposed development and 505 (or 14 per cent) were in support. [427] There were a number of common themes of concern that were expressed by the community in the submissions. They related to the proposed development’s perceived inappropriateness in terms of its height and density; traffic; creation of a precedent in the area; balance between tourism and residential uses; impact on endangered species, particularly the loggerhead turtle; absence of need for the proposed development; impacts on character and scenic amenity; and conflicts with the Planning Scheme. The lay witness statements tendered by the First Appellant raised similar concerns. [428] Although the number of objections to a development application is relevant, of greater significance is the substance of the objections and the basis upon which they are founded.506 [429] Here, I am prepared to assume that the submissions, and those lay witnesses, who gave evidence, were genuine in their objection to the proposed development. However, to be deserving of considerable weight the objections must be soundly based. [430] A number of the submissions were misguided. Examples include submissions to the effect that the development application “threatens the integrity of the planning 506 Kangaroo Point Residents Association v Brisbane City Council & Anor [2014] QPEC 64, [2015] QPELR 203, 240 [176]-[177]; Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, 39. -- 246 of 269 -- Original reasons p 103 process on the Sunshine Coast”; the development application would encourage others to apply for development that is “at odds” with the Planning Scheme; and an approval would put a developer’s profit before the local community. The content of the submissions opposed to the development and the lay witness statements tendered by the Appellants otherwise, in large measure, mirrored the case run by the Appellants. [431] I am not persuaded that I should refuse the proposed development by reference to the submissions in opposition to it and the lay witness statements tendered by the Appellants for reasons provided herein with respect to each of the other issues in dispute. Will the proposed development advance the purpose of the Planning Act 2016 having regard to the risk to the loggerhead turtle? [432] In the document identifying relevant matters in support of refusal, the Appellants allege that, in light of the risk to the loggerhead turtle, the proposed development would not advance the purpose of the Planning Act 2016 having regard to s 3(1), s 3(2)(a), s 3(3)(a) and s 5(2)(a)(ii). [433] The Appellants’ written submissions did not address s 3 or s 5 of the Planning Act 2016. They also did not address what they say the precautionary principle entails; or the relevant authorities with respect to the precautionary principle; or why they say there is “obvious scope” for application of the principle; or why application of the principle militates strongly against approval of the development application. [434] In their written submissions, the only assistance the Appellants provided was to say: “Finally, it is submitted that the statutory recognition of the precautionary principle in the [Planning Act], and the obvious scope for the application of that principle here, is also an appropriate consideration militating strongly against approval of the Application.” [435] Further, even though the purpose of the Planning Act 2016 and the precautionary principle were raised by the Appellants as matters that support refusal, when queried during oral submissions about whether they accept the Council’s analysis of the relevant authorities about the precautionary principle, the Appellants were unable to assist. It was not until the following day that they indicated that they accepted the analysis set out by the Council at pages 97 to 99 of its submissions. It is difficult to appreciate how the Appellants could, in good faith, allege a failure to comply with the precautionary principle when they were unable to articulate the principle, or even recognise the Council’s summary of the relevant case law as a fair and reasonable articulation of the relevant considerations. Nevertheless, the Appellants maintained the allegation about the precautionary principle and the purpose of the Planning Act 2016 and, as such, I will address it. What is the precautionary principle? [436] Section 5(2)(a)(ii) of the Planning Act 2016 records that advancing the purpose of the Act includes following ethical decision-making processes that apply the precautionary principle. The Act describes the principle in the following terms: “the lack of full scientific certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage.” -- 247 of 269 -- Original reasons p 104 [437] That description of the precautionary principle in s 5 of the Planning Act 2016 is consistent with the precautionary principle considered by this Court and courts of other jurisdictions. The Council’s written submissions provide a useful summary of the relevant case law. For convenience, I adopt the Council’s summary, subject only to the clarifications that I have inserted with underlining below. “267. The precautionary principle is a principle that has been considered previously by both this Court and courts of other jurisdictions. Nationally, the leading decision remains the decision of the New South Wales Land and Environment Court in Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256. In that case, it was said in respect of the principle that: (a) the application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent, namely: (i) a threat of serious or irreversible environmental damage; and (ii) scientific uncertainty as to the environmental damage. The preconditions are cumulative. Once both preconditions are met a precautionary measure may be taken to avert the anticipated threat of environmental damage but it should be proportionate (at [128]); (b) in terms of the first limb (threat of serious or irreversible damage) assessing the seriousness or irreversibility of environmental damage involves consideration of many factors including the spatial scale of the threat, the magnitude of possible impacts, the perceived value of the threatened environment, the temporal scale, complexity, manageability and connectivity of possible impacts, the level of public concern, the rationality of and scientific or other evidentiary basis for the public concern and the reversibility of possible impacts (at [131]); (c) the threat of environmental damage must be adequately sustained by scientific evidence. Not every claim or scientifically unfounded presumption of potential risk can justify the adoption of protective measures (at [134]); (d) if there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate (at [138]); (e) the precautionary principle does not apply and precautionary measure cannot be taken to regulate a threat of negligible environmental damage (at [138]). See also Alumino (Aust) Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [1996] NSWLEC 102 at 15-16 and Hutchinson Telecommunications (Australia) Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 104 at [27]; (f) the second condition precedent required to trigger the principle is that there is a lack of full scientific certainty. The uncertainty is as to the nature and scope of the threat of environmental damage (at [140]). Full scientific certainty as to the threat of environmental damage is an unattainable goal: Nicholls v Director General of National Parks and Wildlife (1994) 84 LGERA 397 at 419; -- 248 of 269 -- Original reasons p 105 (g) it cannot be said that that a particular phenomenon will never cause adverse effects. This is because a null hypothesis can never be proven through the process of inductive logic (at [144]); (h) if there is no, or not considerable, scientific uncertainty (i.e. where the second condition precedent is not satisfied), but there is a threat of serious or irreversible environmental damage (i.e. the first condition precedent is satisfied), the precautionary principle will not apply. In that case, the threat of serious irreversible environmental damage can be classified as relatively certain because it should be possible to establish a causal link between an action or event and environmental damage to calculate the probability of their occurrence and to insure against them. Although the precautionary principle does not apply in that scenario, measures will still need to be taken to address the damage. They will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures that are appropriate in relation to uncertain threats (at [149]); There is nothing in the formulation of the precautionary principle which requires decision-makers to give the assumed factor (i.e. the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed (at [154]); (i) the precautionary principle and any preventative measure cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified (at [159]); (j) a preventative measure may only be taken if the risk, although the reality and extent of risk have not been fully demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken (at [159]); (k) the type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty. This involves assessment of risk in its usual formation, namely the probability of the event occurring and the seriousness of the consequences should it occur. The more significant and the more uncertain the threat, the greater the degree of precaution required (at [161]); prudence suggests some margin for error should be retained until all consequences of the decision to proceed are known. One means of retaining a margin for error is to implement an adaptive management approach, which might involve a monitoring regime that would detect adverse impacts and enable the regulatory authority to require them to be addressed if and when they emerge (at [162]-[165]); (l) the precautionary principle embraces the concept of proportionality. The concept of proportionality is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure and the disadvantages caused should not be disproportionate to the aims pursued (at [166]); -- 249 of 269 -- Original reasons p 106 (m) considerations of practicality need to be taken into account (at [169]); and (n) the precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan until full scientific certainty is attained. If the precautionary principle were to be interpreted in this way, it would result in a paralysing bias in favour of the status quo and against taking precautions against risk. The solution is to assess the risk weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option (at [179]- [181]). 268. An earlier case that is relevant is the decision of Quirk DCJ in GFW Gelatine International Limited v Beaudesert Shire Council & Ors (1993) QPLR 342. In that case, the Judgment of the Court provides generally as follows (at 342 352-3): (a) the Court must be careful to resist the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to have its risks if not handled carefully and which has been the subject of considerable public attention and feeling. Justice must be done for all interested parties and this calls for a fair minded assessment of the proposal on the evidence given free from any emotive influences which matters of this kind are prone to attract: citing Lane v Gatton Shire Council (1988) QPLR 49; Reifek v McElroy (1965) 112 CLR 517; Davjan v Noosa Shire Council (1981) QPLR 69 and Esteedog Pty Ltd v Maroochy Shire Council (1991) QPLR 7; (b) the onus of showing that the application for town planning consent should be approved rests with the applicant but that is not to say that in a proposal yet untried, the complete absence of any likely future difficulty must be demonstrated. It is essential that it be shown that the relevant procedures and their likely impact on the environment are properly understood and that there is a capacity to deal with any difficulty that might arise in a way which will preclude unacceptable results; and (c) while there should be no uncertainty at all about the standards that are called for, there is more room for flexibility regarding the way in which those results are attained. Lessons will be learned in practice and there will be advances in technology.” (emphasis in original, strike through and underlined portions added by me) Does the precautionary principle warrant refusal? [438] As I have already mentioned, when the Appellants eventually addressed the precautionary principle, they accepted that the Council’s summary (set out above) correctly identifies the relevant considerations. [439] During oral submissions on the final day, having seemingly turned their mind overnight to the Council’s written submissions, the Appellants submitted that both preconditions for operation of the precautionary principle are met in this case. They say there is a threat of serious or irreversible environmental damage, namely the threat the proposed development poses to the nesting of loggerhead turtles and dispersal of hatchlings proximate the subject land. They say the threat is introduced by the increased height and density and the associated increase in light impact and the -- 250 of 269 -- Original reasons p 107 introduction of population that might traverse the beach. They also say the prospect of any loss has the potential to be irreversible because the loggerhead turtle is an endangered species. In relation to the second precondition, the Appellants submit there is scientific uncertainty about the light impact that will be occasioned by the proposed development and whether it will have an adverse impact on the nesting of loggerhead turtles proximate the subject land or the dispersal of turtle hatchlings. [440] I am satisfied that the first pre-condition is not met. There is no threat of serious or irreversible environmental damage adequately sustained by scientific evidence. The damage referred to by the Appellants is the risk to the loggerhead turtle population. I accept the evidence of Dr Thorogood that the decline in the population is largely linked to factors related to the failure of juvenile loggerhead turtles to return from South America – a problem unrelated to the proposed development. I am also satisfied that there is no adequately sustained scientific evidence that increased development on the beaches of the Sunshine Coast is posing a threat of serious or irreversible damage by reason of reducing the establishment of nests on the beaches of the Sunshine Coast. Dr Hamann’s concern about disturbance by increased population is a scientifically unfounded presumption. The same can be said for his concern that even a negligible increase to sky glow will impact the dispersal of hatchlings. Stringent lighting conditions are accepted by SHC. For the reasons detailed above, taking account of the proposed conditions and the contents of the Master Sea Turtle Management Plan and the Master Sea Turtle Lighting Plan, I am satisfied that the proposed development does not raise a threat of serious or irreversible environmental damage. As such, there is no basis upon which the precautionary principle can operate, and it is unnecessary to consider whether the second precondition is met. I accept the Council’s submission that effectively the Appellants are urging the Court to adopt a “zero risk precautionary standard” based on a purely hypothetical approach to risk founded on conjecture. Such an approach is not only wrong, it is unwarranted in this case. [441] The purpose of the Planning Act 2016 and the risk to the loggerhead turtle is not a matter that warrants refusal of the proposed development. Is the proposed development supported by an economic, planning or community need? [442] SHC and the Council submit there is a clear economic, planning and community need for each of the components of the proposed development (i.e. hotel, residential and retail), and also because of the economic benefits it will provide to the locality and the Sunshine Coast region. [443] The Appellants accept that there is a demand for five-star accommodation on the Sunshine Coast but says the evidence does not demonstrate either the extent of that demand or that the subject land, or 220 rooms in a seven-storey building, is required to meet the demand. The Appellants also say there is no planning need for the additional 537 units and 71 other dwellings in the residential component of the proposed development. They accept that if the resort complex and residential development proceeded, there would be a need for a retail component once the other development was completed but says no more than 1 800 square metres of retail development is warranted. -- 251 of 269 -- Original reasons p 108 [444] The general principles that inform and guide an assessment of need are well settled. They are conveniently summarised by His Honour Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council.507 As His Honour stated:508 “Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.” [445] Other relevant principles referred to in the analysis of the authorities in Isgro v Gold Coast City Council509 include: (a) need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire, but relates to the well-being of the community; (b) a thing is needed if its provision, taking all things into account, improves the services and facilities available in a locality such that it will improve the ease, comfort, convenience and efficient lifestyle of the community; (c) the question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors; (d) providing competition and choice can be a matter which also provides for a need, in the relevant sense, but of itself the addition of choice to the marketplace does not necessitate a finding of need;510 (e) need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account; (f) need is but one of a large number of issues that is required to be considered in an application of this kind and is not, on any view, paramount; and (g) in some instances, public or community need for a service or facility may not be great, and other considerations may be of greater moment. [446] On the issue of need, I had the benefit of expert evidence from Mr Duane, Mr Ganly and Mr Brown. Is there a need for the hotel component of the proposed development? [447] The Appellants say that the controversy that arises with respect to need for the hotel is whether the evidence presented by SHC warrants the conclusion that Yaroomba should be the location of that accommodation in a seven-storey, 220-room hotel in circumstances where they say there are so many indications in the Planning Scheme to the contrary. 507 [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30]. 508 [2003] QPEC 2; [2003] QPELR 414, 418 [21]. 509 [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30]. 510 Intrafield Pty Ltd v Redland City Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [19]-[21]. -- 252 of 269 -- Original reasons p 109 [448] The evidence of the economist retained by the Appellants does not support their submission with respect to the Planning Scheme. Mr Brown acknowledged that having regard to the Planning Scheme, he would expect both an integrated tourist facility and residential development in the Yaroomba tourism focus area. In any event, I do not accept that the Planning Scheme indicates that the subject land is not appropriate for tourist development for reasons already explained in paragraphs [45] to [137] above. [449] As for the need for the proposed hotel, I have already addressed a number of the key aspects of the economic evidence in paragraphs [69] to [75], [81], [94] and [96] above when assessing whether the proposed development satisfactorily addressed the Planning Scheme’s intention with respect to tourism development. Nevertheless, it is convenient to revisit some of the evidence here. [450] All of the economists agree that tourism is an important element of the economic framework of the Sunshine Coast. It is, and will continue to be, a major contributor to the Sunshine Coast regional economy and the Coolum local economy. Although there is disagreement about the extent to which the expansion of the Sunshine Coast airport might influence demand, the economists agree that there will be ongoing demand for tourist accommodation driven by increasing demand in the domestic overnight visitor market and the natural attributes of the area. They also agree that there is a growing demand for five-star accommodation on the Sunshine Coast, and that there is a gap in the market for a five-star resort facility within Coolum and the surrounding area. Based on these agreed matters, each of the economists opine that there is a need for the hotel component of the proposed development. [451] In the Second Economic Need Joint Report, Mr Brown relied on these agreed matters to inform his opinion that there is a moderate level of economic need for the hotel component of the proposed development. However, he says there is likely to be no planning need for the hotel component because of the designated resort at Palmer Coolum Resort and because he considers the Sunshine Coast Planning Scheme intent is to focus tourism activities more towards Maroochydore. [452] During his cross-examination, it became apparent that Mr Brown’s opinion that there is “likely to be no planning need” is premised on three things. First, he accepts that there is a need for at least one five-star resort. Second, he is uncertain whether there is a need for more than one five-star resort because he has not undertaken a quantitative analysis to ascertain the extent to which the economy might support a second five-star resort. Third, he considers that the Planning Scheme provides for the need to be met by the Palmer Coolum resort and he is concerned that approval of the proposed development would hinder the “real prospect” that the Palmer Coolum resort would be refurbished and meet that need as anticipated by the Planning Scheme. In effect, the position advanced by Mr Brown during his oral testimony was that the proposed development should not be approved because Mr Duane and Mr Ganly have not provided a quantitative analysis that demonstrates that the market could support both the proposed development and a refurbished Palmer Coolum Resort. This is the position advanced by the Appellants also. [453] I do not accept Mr Brown’s opinion about planning need for the reasons already provided in paragraphs [74] and [75] above. Further, I do not accept Mr Brown’s assertions that planning need cannot be established in the absence of a quantitative analysis. The authorities do not mandate a quantitative analysis. Whether there is a -- 253 of 269 -- Original reasons p 110 need for a proposed development is a question of fact to be determined having regard to the available evidence. Given Mr Brown considers that a quantitative analysis was necessary, it is difficult to understand why he did not refrain from expressing an opinion on that issue; or otherwise undertake such an analysis himself before expressing the opinion that it was likely that there was no planning need. During his oral testimony, Mr Brown confirmed that he was qualified to undertake such an analysis but had not done so because he had told Mr Duane and Mr Ganly that they should. Mr Brown’s insistence that a quantitative analysis is necessary, coupled with his failure to undertake one, left me with a poor impression about the reliability of his evidence regarding the likelihood of a planning need.511 [454] I prefer the evidence of Mr Duane and Mr Ganly to that of Mr Brown on this issue. Mr Duane and Mr Ganly review the Yaroomba study area to identify any opportunities for a major, five-star resort development. They say there are limited opportunities and no indication that any of the existing or proposed facilities intend to pursue a five-star resort so as to address the identified gap in the market for a five- star resort facility within Coolum and the surrounding area. Their analysis was unchallenged. The only prospect identified by Mr Brown to address the identified gap was the reopening of the Palmer resort. I do not accept that to be a real prospect. Further, the recent approval of other developments identified by Mr Brown do not assist, as they do not address the gap identified by him, being a gap within Coolum and the surrounding area. I am satisfied that the analysis undertaken by Mr Duane and Mr Ganly about other opportunities demonstrates there is a latent unsatisfied demand that is not presently being met. [455] I also accept the evidence of Mr Ganly that the Sunshine Coast market associated with the business traveller market (including travellers for meeting, incentives, conferences, and exhibition events) is poorly served. Although Twin Waters offers conference facilities, it has a lower standard of accommodation. The only five-star option for the premium international and conference-based market is at Noosa Heads, about 35 kilometres north of the Sunshine Coast Airport. [456] Having regard to the matters referred to in paragraphs [45] to 0 above (particularly the evidence referred to in paragraphs [49], [69] to [75], [81], [94] and [96] above), and those referred to in paragraphs [448] and [450] to [455] above, I am satisfied that there is a need for the hotel component of the proposed development. I am also satisfied that it is appropriate that such need is met by provision of the proposed development on the subject land given the land is identified as a tourism focus area where integrated tourist and residential development is expressly intended. Is there a need for the residential component of the proposed development? [457] The economists agree that, from an economic point of view, the subject land is appropriate for residential development. They disagree about whether there is a need for the quantum and scale of residential activity proposed. 511 Pursuant to r 426 of the Uniform Civil Procedure Rules 1999 (Qld), an expert has a duty to assist the court. Having regard to r 428(3) of the Uniform Civil Procedure Rules 1999 (Qld), it is reasonable to expect that an expert will have made all enquiries that they consider appropriate or will otherwise indicate how the absence of particular information affects the reliability of the opinions they express. The tenor of Mr Brown’s evidence was that the absence of a qualitative analysis infected the opinions expressed by Mr Duane and Mr Ganly about the planning need for the proposed development, but somehow not his own. -- 254 of 269 -- Original reasons p 111 [458] The preliminary approval for Stages 2 to 5 would facilitate development of the subject land for approximately 608 multiple dwellings comprising 71 townhouse-style multiple dwellings with three or more bedrooms in two and three storey buildings; and 537 apartment-style multiple dwellings in two and three storey buildings, with one to three bedrooms. [459] The Planning Scheme encourages use of the subject land for an integrated tourist and residential development. It does not prescribe numerical limits on the quantum or scale of residential development. Rather, the quantum and scale of retail development is governed by provisions that I have already addressed above.512 As the proposed development complies with those requirements, were there an absence of need for the residential component, I would not consider that to be of great moment in this case. Nevertheless, as SHC and the Council advance need for the residential component as a relevant matter that provides further support to approval, it is appropriate that I consider it. [460] In August 2017, the Department of Infrastructure, Local Government and Planning published Shaping SEQ: South East Queensland Regional Plan 2017. It was prepared in collaboration with the region’s 12 local governments. It guides the future of the South East Queensland region. It indicates that, for the period 2016 to 2041, the Sunshine Coast population (excluding Noosa) is expected to grow from approximately 303 400 people in 2016 to approximately 495 000 people in 2041 – an increase of 191 600 persons. A demand for 87 000 new dwellings is projected for the area over that same period. [461] For that same period, the Office of Economic and Statistical Research forecasts that the Sunshine Coast population (again excluding Noosa) will grow from 303 389 persons in 2016, to between 462 160 (low scenario) and 578 762 (high scenario) persons by 2041. The medium scenario projects population of 518 004. This equates to an average demand for 3 400 dwellings per year on the Sunshine Coast. [462] The economists agree that the projected population growth in the area surrounding Yaroomba is best understood by considering the population growth with statistical area 2 comprising Coolum Beach, Marcoola-Mudjimba and Peregian Springs. They agree that the population of that area is predicted to grow from 34 071 persons in 2016 to 43 195 persons by 2041, representing growth of approximately 9 124 persons at a rate of almost 370 persons per year under the medium series projection (which the economists were content to adopt). [463] The economists adopted different approaches for identifying the available land supply for their analysis of the need for the residential component of the proposed development. [464] Mr Duane and Mr Ganly based their supply analysis upon the medium density zoned land that remains capable of development for multiple dwellings within each of the planning areas comprising the Yaroomba Study Area. Their analysis indicates that in the Peregian South area, the remaining land will yield approximately 111 dwellings. In the Maroochy North Shore area, the remaining land will yield approximately 214 dwellings, in addition to the 197 multiple unit dwellings that are proposed as part of the Twin Waters West development. In the Coolum local area, the remaining land yields a possible 66 dwellings. Based on that analysis, Mr Duane 512 See paragraphs [45] to 0 and [179] to [331] above. -- 255 of 269 -- Original reasons p 112 and Mr Ganly opine that the subject land represents one of the few remaining parcels within the defined study area that is capable of providing medium density dwellings at a reasonable scale. [465] Mr Brown estimated a supply based on vacant land within the Low density residential zone; and vacant land and sites that he regarded as underutilised within the Medium density residential zone, High density residential zone, and Emerging community zone. Based on his analysis, Mr Brown estimates the total potential supply is 2 886 possible dwellings. As such, Mr Brown says there is sufficient remaining supply within the Planning Scheme and this suggests there is limited need for the residential component of the proposed development. [466] I do not consider Mr Brown’s supply analysis to be helpful. By including land located in the Low density residential zone and the High density residential zone, Mr Brown includes land that is intended to supply a different form of residential development than that which is proposed. [467] Mr Brown’s supply analysis also presents an unduly inflated picture of available supply as it includes many lots that are approximately 600 square metres in area and are improved by single houses. Mr Brown did not have regard to the quality of the built form on those lots to assess the objective likelihood that the landowners would be willing to subdivide their lots. He simply assumes they would be so willing. The likelihood of this is purely speculative. Mr Brown made no allowance for the possibility that a portion of the landowners may wish to retain their current, larger lots. [468] Further, Mr Brown’s analysis ignores the direction for sustainability and high-quality living set by the South East Queensland Regional Plan. The South East Queensland Regional Plan identifies a long-term sustainable pattern of development. It outlines the need to focus more growth in existing urban areas and to support better and more diverse housing. It places emphasis on promoting “missing middle” forms of housing, being housing offering greater density and diversity compatible with surrounding lower density residential environments. Examples of the “missing middle” forms of housing include duplexes, triplexes, row or terrace housing and medium rise apartments. The South East Queensland Regional Plan identifies that the current capacity for new dwellings in the Sunshine Coast local government area is 81 600, which is below the benchmark of 87 000 new dwellings that are required over the period 2016 to 2041. In areas earmarked for consolidation, the capacity of planning dwelling supply is about 34 900 dwellings, which is about 14 000 less than the benchmark of 53 700 dwellings that are to be provided in those areas by 2041. This highlights the importance of delivering the “missing middle” form of residential development on land that is capable of supporting it without conflicting with the planning intent in the Planning Scheme, as is the case with the proposed development. The need to ensure the efficient utilisation of the subject land is heightened because land in the Tourist accommodation zone, such as at Marcoola Shores, is being developed for lower density residential development. Mr Brown’s supply analysis takes no account of the need to focus on delivering the “missing middle”. [469] I also do not accept Mr Brown’s opinion about the limited need as it is a purely quantitative analysis and ignores legitimate qualitative considerations. For example, it does not take into account the niche, higher end nature of the proposed integrated tourist and residential development on the subject land. It also ignores the lack of -- 256 of 269 -- Original reasons p 113 comparability between supply of residential development proximate the beach such as that proposed and supply at non-beachside development sites and locations such as Peregian Springs to the west of the Sunshine Coast motorway. The two are markedly different development opportunities that would attract a very different market. They satisfy a different town planning need for a different segment of the community. Mr Brown’s analysis also does not take account of the historical uptake of large chunks of residential land for retirement village development. As Mr Ganly observed, significant portions of medium density zoned land can readily be consumed by retirement village developments. Recent examples include the Aveo Retirement Village on Yarran Road and the 96-unit retirement village underway at 40 Menzies Drive. [470] Mr Duane’s and Mr Ganly’s land supply analysis does not suffer from these same inadequacies. I prefer their analysis. [471] In terms of the number of dwellings that will be required to satisfy the recognised population growth, the difference between the experts in the joint report was limited to differing opinions on the average household size that ought to be applied to calculate the requisite number. [472] A further area of disagreement arose during the hearing: after Mr Duane had given evidence and during the second day of Mr Ganly’s cross-examination, Mr Brown recalculated the anticipated demand based on his interpolation of population growth figures. His calculation was presented as Exhibit 50. The Council submits that Exhibit 50 should be given limited weight because it represents a departure from Mr Brown’s agreed position in the Second Economic Need Joint Report and, as such, he denied the other economists the opportunity to properly consider and analyse it in the context of the joint report process. It was also not put to Mr Duane and, though it was put to Mr Ganly, Mr Ganly expressed clear reservations with the data interpretation. Further, the conclusion represented by Exhibit 50 is inconsistent with other evidence of housing demand. The agreed dwelling demand analysis in Exhibit 6 (demonstrating demand within a range of 3 300 to 3 650 dwellings for the period 2016 to 2041) is consistent with the dwelling demand calculated for the Sunshine Coast (excluding Noosa) in each of the South East Queensland Regional Plan and the Office of Economic and Statistical Research. Having heard Mr Brown explain Exhibit 50, and the reservations expressed by Mr Ganly about it, I am not persuaded that it is reliable. [473] Returning to the analysis in the Second Economic Need Joint Report, Mr Duane and Mr Ganly calculated the anticipated demand adopting an average household size of 2.5 persons. They say there is a demand for approximately 145 new dwellings each year. This is 3 198 dwellings over the period 2016 to 2031 and 3 560 dwellings over the period 2016 to 2041. Mr Brown adopted a higher average household size of 2.75 persons and, as such, calculates demand for approximately 133 new dwellings each year. This is 2 907 dwellings over the period 2016 to 2031 and 3 318 dwellings over the period 2016 to 2041. [474] The average household size used by Mr Duane and Mr Ganly corresponds with the ABS’s Census approach and the industry standard for reporting average household sizes. Mr Brown has adjusted the Census figure to exclude visitor only properties. This is inconsistent with the industry approach. I also do not consider it appropriate because the area is likely to include a number of properties owned as holiday houses. -- 257 of 269 -- Original reasons p 114 To exclude those houses from the analysis risks misrepresenting the locality to which the analysis applies. Further, as was explained in the evidence of Mr Duane, if the phenomenon of “holiday houses” is removed from the demand scenario, account also needs to be made for it in the anticipated supply. That is, more houses will need to be supplied to accommodate future growth as some dwellings built will be “holiday houses” only and, as such, will not be available to accommodate permanent residents. For those reasons, I prefer the approach of Mr Duane and Mr Ganly in this regard. [475] In any event, as Mr Duane observed, and Mr Ganly agreed, Mr Brown’s estimated supply of a possible 2 886 dwellings represents a shortfall in the indicated demand for dwellings to both periods to 2031 and to 2041. As such, even based upon Mr Brown’s preferred average household size and his more conservative land supply analysis (neither of which are accepted by me), Mr Duane calculates that housing demand will exceed supply by 2032. On Mr Duane’s and Mr Ganly’s analysis, which I prefer over Mr Brown’s, the shortfall will arise even sooner. [476] Having regard to the matters referred to above, I am satisfied that the subject land is appropriate to satisfy the identified demand for the dwellings for four reasons. [477] First, as demonstrated by Mr Duane and Mr Ganly’s supply analysis, the Yaroomba study area has a limited supply of land that is capable of providing medium density dwellings at a reasonable scale. The proposed development represents an opportunity to achieve a coordinated and considered approach towards accommodating large- scale infill development. This outcome accords with the requirements of the South East Queensland Regional Plan to accommodate significant population growth in the urban area, and to provide housing diversity, choice and affordability in terms of a mix of dwelling types and sizes including a range of “missing middle” housing forms. [478] Second, there is an even more limited opportunity to deliver infill residential development in a beachfront location such as the subject land. The land represents an opportunity to provide housing choice and diversity for retirees looking to downsize, and families looking for a different lifestyle, within walking distance to the beach and other facilities (including employment opportunities) provided by the integrated tourist resort and in close proximity to the Coolum Town Centre and the nearby Airport. [479] Third, the subject land is already approved for medium density development (up to four storeys) pursuant to the Hyatt preliminary approval. Although the proposed development will provide a greater residential density than the Hyatt preliminary approval, this design option chosen more than a decade ago for that proposal does not operate as a limit on the density of proposed development. [480] Fourth, the proposed development will make efficient use of infrastructure and contribute to a more compact urban form. This is an outcome desired by the Planning Scheme513 and the South East Queensland Regional Plan. It does so without comprising the planning outcomes sought by the Planning Scheme, including in terms of character, visual impact and ecological impact. [481] The demonstrated need for the residential component of the proposed development is a relevant matter that supports approval of the proposed development. 513 See, for example s 3.3.1(f) of the Planning Scheme. -- 258 of 269 -- Original reasons p 115 Is there a need for the retail component of the proposed development? [482] The proposed development provides for a maximum of 2 770 square metres of retail and commercial space with tenancies limited to a maximum size of 300 square metres. The retail facilities are to be provided as part of Stage 1, prior to the majority of the residential development. [483] The ultimate tenancy mix will be subject to final design and leasing arrangements. Nevertheless, as I have noted in paragraph [150] above, the economists all agree the likely tenants for the retail and commercial area. They would be a convenience or food store; a range of food catering outlets including breakfast or lunch café, some night time restaurants together with juice or ice-cream gelato store; potential pharmacy; liquor store; giftware or souvenir or resort shop containing a range of products such as beachwear; and hair and beauty and spa treatment tenants. This likely mix of retail and commercial development is supported by performance outcome PO16(f) of the Coolum local plan code. [484] The economists agree that it is appropriate for the proposed development to provide retail facilities of the nature proposed. They also agree that the majority of spending within the retail facilities will be by on-site tourists. They all opine that, based on the likely tenancy mix and scale, the proposed retail centre will not undermine the viability of other centres in the hierarchy. [485] The only disagreement between the economists relates to the timing of the retail component and the size of the retail component. [486] Although Mr Brown accepts the use is appropriate, he does not support the timing of the retail development or the size of the retail component. Mr Brown says there is a need for only 1 800 square metres of retail floor space, and only once all other aspects of the development are delivered. He says the retail floor space required for Stage 1 is significantly less than 1 800 square metres. Despite Mr Brown’s position that there is an overprovision of retail floor space and his view that it is provided prematurely, Mr Brown does not anticipate that the retail and commercial component of the proposed development will have trading impacts sufficient to undermine the viability of other centres. Rather, he says that the overprovision will sound in on-site underperformance of the retail and commercial component of the proposed development. [487] Mr Duane and Mr Ganly opine that there is need for the proposed 2 700 square metres of retail and commercial space. They accept that the retail and commercial component of the proposed development is likely to trade at lower levels in the first instance given the absence of the residential population but opine that it will be sustainable and will not affect the viability of other retail facilities in the surrounding area. They say it may take some time to lease some of the stores but consider that a private economic issue for the developers of the subject land. [488] I am satisfied that there is a need for the retail and commercial component of the propoed development for three reasons. [489] First, I accept that it is appropriate for a modern, five-star resort to incorporate a range of facilities to meet the reasonable needs of the resort guests immediately upon opening. I accept the evidence of Mr Duane and Mr Ganly that this may mean that the developer will achieve lower trading levels initially. This is a matter of private -- 259 of 269 -- Original reasons p 116 economics and is not a matter of concern to me. It is significant that the proposed development will deliver a range of retail and commercial facilities that will be of a small scale, primarily consisting of local services to support the resort complex and local convenience needs. With the tenancy limit of 300 square metres, it will not compete with other centres, nor impact upon other centres in the hierarchy. As is acknowledged by Mr Brown, there is no prospect that the proposed tenancy mix will morph into a local centre, nor any prospect that the proposal will position itself as a convenience centre, including because the recent refurbishment of the Mount Coolum Local Centre militates against that possibility. [490] Second, although the retail component of the development will predominantly serve tourists staying at the resort complex, and tourists and visitors from within the wider area, it will also provide a benefit to residents of the trade area in the locality. They will benefit from the availability of convenience goods, particularly when they visit the beach or the resort complex or hotel. In addition, the experts all agreed that the food catering premises (i.e. the restaurants and cafes) would be the key attractor of trade area residents. As such, the retail component of the proposed development will provide additional choice and convenience for both local residents and tourists at the proposed development, as well as those in the broader region, through its provision of food catering and other facilities in a modern integrated tourist facility. [491] Third, the retail and commercial facilities will provide a further community benefit in terms of the additional opportunities for employment within the proposed development. [492] For the reasons provided above, I am satisfied that there is an economic need for the retail component of the proposed development. Conclusion regarding need [493] For the reasons provided above, I am satisfied that there is a need for the proposed development. It will improve the well-being of the community by meeting the latent unsatisfied demand for a five-star resort in the locality. The residential component will also provide an important choice to the community, by making provision for “the missing middle” form of accommodation proximate the beach. The retail and commercial component will improve the facilities and services available in the locality. The proposed development can meet these needs absent unacceptable impacts and in a manner that is consistent with the intended outcomes under the Planning Scheme. Further, the proposed development will improve the well-being of the community through the benefits it will provide to the Coolum locality and the Sunshine Coast region more generally by generating economic and community benefits, particularly in terms of employment. Will the proposed development provide economic benefits to the locality, region and State that support its approval? [494] The Council submits that the proposed development will improve the well-being of the community through the benefits it will provide to the Coolum locality and the Sunshine Coast region and State more generally by generating economic and community benefits, particularly in terms of employment. I accept the Council’s submission for the reasons that follow. -- 260 of 269 -- Original reasons p 117 [495] I accept the evidence of Mr Duane and Mr Ganly that the proposed development will provide employment in the tourist sector (on a permanent basis) and in the construction sector (for some 10 years). It is evident from the data presented by the economists that these are important employment sectors for the Sunshine Coast. [496] Mr Ganly’s opines that, generally, a five-star hotel has a workforce of approximately 20 jobs per ten rooms, which he says equates to between 400 and 500 jobs associated with the operation of the proposed hotel. He says this will be significantly more than other three-star and four-star hotels in the locality. Mr Ganly says that the workforce for a five-star hotel is significantly greater than the workforce required for a four-star hotel, which generally supports 12 jobs per ten rooms, and well beyond that required for a three-star hotel, which generally supports eight jobs per ten rooms. His evidence was unchallenged in this respect and I accept it. It was consistent with the evidence of Mr Hunt. [497] Mr Hunt is an Area Vice President (Australia, New Zealand and Pacific) for Marriott International Inc. He has a lifetime of experience in the hospitality industry, including managing a five-star resort hotel on the Sunshine Coast (the then Sheraton Noosa Resort), which gives him the knowledge and experience to provide evidence of likely local employment, including with respect to career opportunities that this proposal will likely provide to the community. Mr Hunt estimates that a five-star Westin hotel on the subject land would employ between 400 and 500 staff, sourced locally. Moreover, in terms of public and community benefits, Mr Hunt said that a hotel such as the Westin would provide training for staff. He is a living example of those benefits provided by five-star resorts. He commenced employment with the Sheraton Hotel chain as an apprentice chef and advanced through his career to the Starwood chain as a vice president. He also says that employment would be offered in a number of hotel divisions or cells including management, front office, house-keeping, food and beverage, grounds staff, engineering and maintenance and allied services including airport transport, concierge and tours. [498] Mr Hunt’s evidence persuades me that the five-star hotel component of the proposed development will provide the local community with both employment and opportunities for advancement in the hospitality industry. [499] Significant new employment will also be created during the construction phase of the development. Given the multiple stages of the proposed development, employment for construction purposes is likely to continue for a number of years. The sunset date for completion of the development will be ten years from the date that any approval takes effect. [500] Having regard to the evidence referred to in paragraphs [495] to [499] above, I am satisfied that the provision of jobs for the local community will be a key benefit provided by the proposed development. [501] In terms of the local economy generally, an approval of the proposed development will attract a significant number of new visitors to the local area. This is evident from Mr Brown’s admission that the Yaroomba area does not currently attract the visitor segment that would be attracted by the proposed development. The evidence of Mr Hunt supports it. He anticipates that a five-star Westin hotel would have 100 per cent weekend occupancy rates, year round and that the meetings, incentives, conference and events offer would make a substantial contribution to maintaining -- 261 of 269 -- Original reasons p 118 high occupancy rates even during the week, which is otherwise a quieter time on the Sunshine Coast (other than during the holiday periods). Mr Hunt’s evidence about the contribution made by the meetings, incentives, conference and events offer is consistent with the evidence of the economists (particularly Mr Duane and Mr Ganly). [502] Mr Perkins opines that the additional visitors to the Yaroomba area may benefit local businesses within the area through increased spending by the tourists and visitors. His opinion was unchallenged, and I accept it. [503] Members of the local community also stand to benefit from the range of infrastructure secured by the infrastructure agreement entered into between SHC and the Council. It requires a number of improved public and community access outcomes, including a coastal discovery trail; a three-metre wide pedestrian and cycle access way; a three- metre wide coastal pathway; a motor vehicle, pedestrian and cycle access road; and two refurbished beach access ways. It also requires the provision of community- based infrastructure. That infrastructure includes a “Coastal Discovery Centre” (being a centre for the holding of educational material, art and displays); a 7 000 square metre civic park; a 4 600 square metre beach side park; public amenities ( including toilets, end of trip facilities and beach showers); a surf life saving tower and amenities; a minimum 4 500 square metre “green link” (involving vegetation retention and management); a new public car parking facility providing for a minimum of 80 car parking spaces; a financial contribution of $1.2 million towards road improvements in the locality; a financial contribution of at least $500 000 (or works in kind) to fund an upgrade of the car park and toilets at Mt Coolum, or other recreational facilities in the Coolum and Yaroomba areas; and a financial contribution of $500 000 for the funding of a local indigenous arts program. The provision of these items means that a significant area of the subject land, totalling approximately 3.22 hectares, will be dedicated to the Council for the community benefit. Mr Perkins notes that these community benefits will be available beyond the residents and users of the proposed development. [504] The Appellants seek to diminish the economic and community benefits because, on their case, such benefits would also be provided through the continuation of the Coolum Residences on the subject land and through (to at least some extent) the development of the subject land consistent with the Planning Scheme and under the Hyatt approval. I do not accept their position. There is no evidence as to how the same, or even similar, economic benefits would follow from a continuation of the Coolum Residences (or for that matter the speculative refurbishment of the Palmer Coolum Resort). There is no evidence to demonstrate that the delivery of the extensive list of parks, pedestrian pathways, publicly available facilities, public parking, and so forth (listed above), would be reasonably required by a development consistent with the Planning Scheme and under the Hyatt preliminary approval. [505] An approval of the proposed development would allow SHC to deliver the economic and community benefits to which it has committed. This relevant matter supports approval of the proposed development. -- 262 of 269 -- Original reasons p 119 Will the proposed development increase tourism and economic activity in the locality and the region that supports the investment in the Sunshine Coast Airport? [506] The Council submits that an approval of the proposed development, particularly the resort complex, will both support and be supported by the significant investment in the expansion of the Airport. [507] The importance in town planning and economic terms of the recent investment in the expansion of the Airport is reflected in the Planning Scheme. It identifies the Airport expansion as a “game changer” project, with the Airport a specialist activity centre that provides a range of opportunities that promote the region and support tourism on the Sunshine Coast. The Regional Economic Development Strategy 2013 – 2033 also recognises the Airport expansion as a “game changer” project and states that it will, amongst other such projects, have a transformational effect on business, employment and investment growth – and on the Sunshine Coast economy overall. [508] The expansion of the Airport is underway, with completion due in the next two years. The expansion includes: (a) a new 2 450 metre long and 45 metre wide runway; (b) an expanded aircraft parking apron; (c) runway and taxi loops; (d) a new air traffic control tower and associated infrastructure; (e) passenger terminal upgrades; and (f) new access roads and utilities. [509] The expansion is intended to cater for larger, more fuel-efficient aircraft that can fly longer distances and open the Sunshine Coast up to direct access from destinations across Australia, Asia and the Western Pacific. [510] The Council relied on passenger projections in the Sunshine Coast Airport 2040 Masterplan to support its submission. Mr Brown suggests that there is a high risk of optimism bias in those Airport passenger forecasts but recognises that passenger projections are typically a trend projection. Since 2015, passenger numbers have been increasing steadily each year. [511] The Council submits that the Airport expansion is both relevant and important because of the relationship between the Airport and tourism and the subject land’s proximity to the Airport. If approved, the proposed development would be the closest five-star resort complex to the Airport. It would be located just eight kilometres north and a ten-minute drive from the Airport, which is considerably closer than the 35 kilometres distance to the only relevant competitor, the Sofitel at Noosa. Mr Adamson accepted that the Airport expansion is a relevant consideration. [512] I accept that the proposed development will be ideally located to cater for both business and leisure travellers arriving at the Airport. Mr Brown opines that business travellers would be drawn towards the Principal Centre of Maroochydore, or one of the Sunshine Coast’s other Major Centres (which he does not identify). Those -- 263 of 269 -- Original reasons p 120 destinations will have attraction to business travellers, but that does not detract from the obvious attraction that will be provided by a new, luxury and quality conference facility located ten minutes from the Airport nor from the clear convenience of such facilities for business travellers. [513] The proposed development is well placed to provide tourist and business traveller accommodation facilities that will support, and be supported by, the expansion to the Airport. This relevant matter lends some (limited) support to approval of the proposed development. Can the proposed development be provided without any unacceptable impacts? [514] A relevant matter identified by the Council is that the proposed development, through the imposition of reasonable and relevant conditions, and its many associated benefits (particularly in achieving the planning intentions for the subject land and providing economic benefits to the community) can be provided with no unacceptable amenity impacts and no unacceptable environmental or other impacts. [515] For the reasons already provided, I am satisfied that the proposed development, as conditioned by the Council (subject to recommended amendments referred to herein), can be provided without any unacceptable impacts in terms of traffic, visual amenity and character, and turtles. [516] The absence of unacceptable impacts is a relevant factor that, where coupled with an economic, community and planning need for the proposed development, lends support to approval of the proposed development. Does the Hyatt preliminary approval support an approval of the proposed development? [517] As I have noted in paragraph [3] above, the subject land has the benefit of a current development approval, being the Hyatt preliminary approval. It anticipates development of the subject land for a mix of dwelling types, including multiple dwellings, detached houses and duplexes, as well as retail and commercial uses up to a maximum of 500 square metres. As such, the exercise of the planning discretion must be based on an assessment that is carried out having regard to the Hyatt preliminary approval.514 [518] The Hyatt preliminary approval includes development across a number of precincts, relevantly including Precincts 1C, 3C, 3D, part of 3E, 3F and part of 3H (buffer precinct). These are the precincts that most closely align with the subject land. The uses provided for within these precincts include: (a) non-residential uses, including restaurant, shop and outdoor recreation up to a maximum of 500 square metres; and (b) residential uses comprising a mix of dwelling types, including multiple dwellings, detached houses and duplexes. [519] The form of development that could occur on the subject land is usefully depicted in Figure 1 of Exhibit 21. It is also graphically depicted on the last page of Exhibit 82, which graphically depicts the likely extent of built form when viewed from the type 514 See s 45(5)(a)(ii) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017. -- 264 of 269 -- Original reasons p 121 of aerial oblique view one would get from Mt Coolum. The extent of development facilitated by the Hyatt approval is significant. [520] The subject land is located within part of the “Beachside” precinct (Precinct 3) in the Hyatt preliminary approval. That precinct also included land to the south of the subject land. In that precinct, the preliminary approval allowed a maximum density of 450 dwellings across the precinct. The southern portion of the precinct, to the south of the subject land, has been developed predominately for detached houses of two storeys in height. That development is known as “Coolum Beachside” and “Belle Mare”. It provides approximately 110 dwellings. The Hyatt preliminary approval also authorised units within sub-precinct 3F, which is located within the subject land. In that sub-precinct, the approval authorised 140 dwelling units and buildings up to 16 metres and four storeys in height. [521] All of the sub-precincts within Precinct 3, except for 3F, allowed for 20 per cent of dwellings to be multiple dwellings (units) of up to three storeys, and allowed for a further 20 per cent of dwellings to be dual occupancy, leaving the remainder of the sub-precincts (60 per cent) to be comprised of detached houses. [522] The development of Coolum Beachside with a predominance of detached houses of two storeys in height informs expectations about the likely development of the remainder of Precinct 3 under the Hyatt preliminary approval, given the approval contemplated up to 40 per cent of the development being other than detached houses. [523] Having regard to the Hyatt preliminary approval, the community could reasonably expect that development of the subject land would include residential and non- residential uses. The community could also reasonably expect that the residential development would include accommodation other than detached dwellings, being dual occupancies and multiple dwellings, and that some of the residential development might be above 8.5 metres in height (despite the mapping on the Height of Buildings and Structures Overlay Map). [524] The Appellants submit that the proposed development is a much greater scale than that contemplated in the Hyatt preliminary approval. I agree. However, it is not reasonable for the community to expect that the extent of development of the subject land will be limited to that approved in the Hyatt preliminary approval. The preliminary approval was granted about 12 years ago and the planning needs of a community are not static and immutable. It is reasonable for the community to expect that the subject land might be developed for a more intensive form of development where it complies with the assessment benchmarks that apply at the time the development application is made and meets an identified need, as the proposed development does. Do the locational attributes of the subject land and the design response to it support approval? [525] SHC and the Council raise the strategic beachfront location of the subject land and the design responsiveness of the proposed development to the locational and shape constraints of the subject land as relevant matters that they say support approval of the proposed development. [526] The large size and beachside location of the subject land represents an uncommon and distinct opportunity to provide a large five-star luxury resort facility on the -- 265 of 269 -- Original reasons p 122 Sunshine Coast. As observed by Mr Schomburgk, large parcels of beachfront land are rare and even more so when that parcel is identified as being within a tourism focus area. [527] Mr Thompson gave evidence about the merit of the design of the proposed development. He was the only architect called. His evidence persuades me that a rigorous site analysis was undertaken prior to developing the design of the proposed development to inform a design that respects the natural ecology, environment, vegetation and other qualities of the subject land, including views to and views from the subject land from a range of vantage points. In paragraph [203] above, I record Mr Thompson’s evidence about the key principles that informed the design outcome, which evidence I accept. [528] Mr Thompson opines that the architectural design of the proposed development is exemplary, particularly having regard to his view that: (a) the scale of the buildings (in particular the way in which they are broken down into smaller elements with variation in height) is positively responsive and deferential to the scale of the immediate and wider landscape of the natural environment, both in built form and architectural detail; (b) the proportions of the architectural composition are elegant and well considered; (c) the colours and materials are derived from, and will be harmonious with, the natural environment and landscape; and (d) the tectonic detail of sun shading, screening, balustrading, recesses and steps, and other smaller elements of the façade provides a more intimate scale in a visually stimulating manner, which he says also serves to give the external form a seemingly non-repetitious and syncopated irregular pattern similar to that found in the natural landscape. [529] Mr Thompson opines that the dominant character and experience of the proposed development will be of the natural environment, both internally to the site and from external perceptions. He says this is achieved through the master planning concepts and design features that he addressed in his oral evidence. [530] As I have already indicated elsewhere in these reasons,515 I accept the evidence of Mr Thompson. [531] Having regard to the built form design and the locational attributes of the subject land (including the significant size and beachfront location), Mr Perkins opines that the subject land presents an opportunity to develop an intensive tourism focus development without unacceptable, adverse impacts upon the surrounding community. I accept his evidence. [532] These relevant matters support approval of the proposed development, particularly as they can be achieved without compromising the planning outcomes sought in the assessment benchmarks. 515 See, for example, paragraph [227] above. -- 266 of 269 -- Original reasons p 123 Is the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018? [533] The Council submits that the proposed development is consistent with and supports the achievement of objectives and planned outcomes of the South East Queensland Regional Plan; the Regional Economic Development Strategy 2013-2033; and the Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018. The Appellants did not address this ground, other than to assert (without elaboration) that the relevant matters raised in support of the proposed development do not provide justification for approval of the proposed development. [534] I have already addressed the objectives and planned outcomes of South East Queensland Regional Plan in respect of dwelling supply and “missing middle” housing in paragraphs [468] to [481] above. The South East Queensland Regional Plan also identifies a goal of becoming a globally competitive region with close to a million jobs by 2041 by building on, amongst other things, South-East Queensland’s economic advantages in key export-oriented industries including tourism. I am satisfied that an approval of the proposed development is consistent with the South East Queensland Regional Plan’s objectives in respect of both tourism and residential growth. [535] Sunshine Coast – The Natural Advantage: Regional Economic Development Strategy 2013-2033 was developed by leading business and industry groups and key stakeholders, including the Queensland Government, Sunshine Coast Regional Council, the Sunshine Coast Economic Development Advisory Board, the Sunshine Coast Business Council. It provides a 20-year vision and blueprint for sustainable economic growth to seek to ensure that the Sunshine Coast region realises its full potential. It identifies five “pathways” for growth, and recognises that the construction, retail and tourism industries are, and will remain, significant elements of the Sunshine Coast’s economy. The tourism, sport and leisure industry is identified as a “high value” industry for which the region will “vigorously seek new investment opportunities”, because it has the potential to generate higher-paying enduring employment opportunities on the back of the region’s “game changer” projects. It identifies the expansion of the Airport as one of the “game changer” projects. [536] Mr Gschwind gave unchallenged evidence on behalf of the Queensland Tourism Industry Council. He identifies the importance of tourism to the Queensland economy, observing that tourism is a $27.3 billion industry for Queensland that sustains 237 000 Queensland jobs across 55 000 businesses. He also says that tourism is a major contributor to the Queensland economy. [537] By providing five-star luxury accommodation and conference facilities at the proposed development, in close proximity to the “game changer” expanded Airport, an approval of the proposed development would be consistent with, and support the achievement of, the planned outcomes of the Regional Economic Development Strategy 2013-2033. [538] The Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018 was developed by local industry stakeholders and is intended to be a guide to progressing and increasing the economic value of the tourism sector to the region. It corresponds -- 267 of 269 -- Original reasons p 124 with the five-year implementation plan in the Regional Economic Development Strategy 2013-2033. It recognises the expansion of the Airport, with international capability, as a priority development offering a suite of opportunities for tapping directly into a global tourist market including numerous international events. [539] In recognising the need to attract investment in new tourism experiences, the Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018 states that: “… the visitor economy currently injects almost $2.81 billion dollars of direct expenditure into the destination. This in turn generates an estimated an overall expenditure impact of $4.6 billion dollars (direct and indirect expenditure) across sectors including transport, accommodation and food services, and retail trade which, in turn, supports an overall 42,251 jobs (direct and indirect).” [540] A key target area for growth of the Sunshine Coast visitor economy is mid-week event tourism, including business, leisure and sporting events as well as interstate fly/drive. For reasons already provided, I am satisfied that the proposed development will provide convenient facilities for the business and leisure markets and for interstate flyers. [541] For the reasons provided above, I am satisfied that a decision to approve the proposed development is consistent with, and supports the achievement of, the planned outcomes of the Tourism, Sport and Leisure Industry and Investment Action Plan 2014-2018. [542] These matters lend support to approval of the proposed development. Is it within the public interest for the proposed development to be approved? [543] The Appellants allege that it is not in the public interest for the proposed development to be approved. The Appellants’ submissions did addressing their allegation. Their allegation appears to be founded on the case otherwise advanced by the Appellants. [544] Whether an approval is, or is not, in the public interest is a question of fact to be determined in the exercise of the planning discretion. The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the applicable planning scheme and proper planning practice. It should recognise that the provisions of a planning scheme are seen to embody the public interest and, as such, there is a public interest in compliance with them. However, not every non-compliance is contrary to public interest or will warrant refusal. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”. [545] The Council submits that matters of public interest overwhelmingly support an approval of the proposed development. By way of summary, it provides six key reasons it says approval of the proposed development is in the public interest. [546] First, the three key components of the proposed development, being tourist and residential development with supporting retail and commercial development, are clearly supported by the Planning Scheme, which itself reflects the public interest. -- 268 of 269 -- Original reasons p 125 [547] Second, the extent of development does not involve “over development” and is compliant with the relevant provisions of the Planning Scheme. [548] Third, although the proposed development is inconsistent with the maximum height shown on the Height of Buildings and Structures Overlay Map, the built form of the proposed development is otherwise compliant with the relevant provisions of the Planning Scheme. The exceedance of the standard shown on the Height of Buildings and Structures Overlay Map does not result in an unacceptable departure from the Planning Scheme as there is an absence of visual amenity (and any other) impacts arising from the height. It also facilitates the satisfaction of the economic and planning need for a five-star resort hotel with conference facilities, while satisfying the relevant planning provisions regarding landscaping and open space. [549] Fourth, an approval of the proposed development will result in a significant increase in publicly accessible areas of open space, particularly because the subject land is privately owned and the proposed development will deliver considerably more open space than that which would be available under the Hyatt preliminary approval. It also makes excellent provision for public access to Yaroomba Beach through the proposed car parking, access ways and new surf lifesaving facilities. [550] Fifth, an approval would satisfy the economic, planning and community need for the proposed development. It says it is not in the public interest to refuse the proposed development on the basis that the Palmer Coolum Resort may re-open: because that resort is closed, there is a failure to achieve the planning intent for the Yaroomba tourism focus area and a failure to provide the associated public benefits to the Sunshine Coast economy. [551] Sixth, the proposed development will provide economic benefits to the Coolum locality and wider Sunshine Coast area, including employment and career opportunities that will be made available to members of the local community. [552] I accept the Council’s submissions. They reflect a fair summary of my findings set out in the reasons above. [553] In all of the circumstances of this case, an approval of the proposed development is in the public interest. Accordingly, the application should be approved, subject to conditions. Conclusion [554] For the reasons provided above, I am satisfied that, in the exercise of the planning discretion, SHC’s application should be approved subject to the conditions in the Council’s decision notice but with the amendments recommended by the turtle experts. SHC has discharged the onus and the appeal will be dismissed in due course. [555] I will give the parties an opportunity to prepare a judgment document that attaches the conditions of approval. The orders of the Court will be: (a) By 4 pm on 8 June 2020, the Respondent is to deliver a draft Judgment attaching the conditions of approval to the other parties. (b) The appeal is to be listed for review at 9 am on 15 June 2020 for the purpose of making final orders in the appeal. -- 269 of 269 --