Coolum Chase Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 24 [2022] QPELR 558

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Coolum Chase Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 24 PARTIES: COOLUM CHASE PTY LTD (ACN 053 998 048) (appellant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) FILE NO: 501/2016 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 21 April 2021 DELIVERED AT: Brisbane HEARING DATE: 8 April 2021 JUDGE: Everson DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL - appeal against the decision of the respondent to refuse to extend the relevant period for a development approval LEGISLATION: Planning Act 2016 (Qld) s 311(2)(a) Sustainable Planning Act 2009 (Qld) ss 383, 388 Integrated Planning Act 1997 (Qld) ss 3.5.3, 3.5.4, 3.5.6 (2) CASES: Coolum Chase Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 45 COUNSEL: E J Morzone QC and D C Whitehouse for the appellant C L Hughes QC and J G Lyons for the respondent SOLICITORS: Kelly Legal for the appellant Sunshine Coast Council Legal Services for the respondent -- 1 of 8 -- 2 Introduction [1] This is an appeal against the decision of the respondent to refuse a request by the appellant to extend the relevant period for a development approval in respect of land situated at 2 Musgrave Drive, Yandina Creek (“the land”) for Preliminary Approval for Reconfiguration of one lot into 23 lots (“the Preliminary Approval”). [2] As the Notice of Appeal was filed on 8 February 2016, the Sustainable Planning Act 2009 (“SPA”) continues to apply to the proceeding.1 [3] Accordingly, the request to extend the relevant period for the Preliminary Approval was made pursuant to s 383 of the SPA and s 388 applies in deciding the request. It relevantly states: “388 Deciding request (1) In deciding a request under section 383, the assessment manager must only have regard to─ (a) the consistency of the approval, including its conditions, with the current laws and policies applying to the development, including, for example, the amount and type of infrastructure contributions, or charges payable under chapter 8, parts 2 and 3; and (b) the community’s current awareness of the development approval; and (c) whether, if the request were refused─ (i) further rights to make a submission may be available for a further development application; and (ii) the likely extent to which those rights may be exercised; and (d) the views of any concurrence agency for the approval given under section 385. …” The history of the Preliminary Approval [4] The history of the Preliminary Approval is uncontroversial and is summarised in the Notice of Appeal. It constitutes the proposed final stage of the 144 lot Coolum Chase 1 Planning Act 2016 (Qld) s 311(2)(a). -- 2 of 8 -- 3 development which is located between the coastal community of Coolum and the township of Yandina. [5] In October 2002, development approval was given by the respondent for the then final 48 lots of the Coolum Chase development. The respondent’s primary concern in assessing the final proposed subdivision was the proximity of the hard rock quarry immediately adjacent to the southern boundary of the land.2 At the time the land was zoned Rural Residential pursuant to the respondent’s 1985 planning scheme.3 In its decision notice dated 21 October 2002, the respondent issued a development permit for stage 6A, constituting lots 122 to 146 and a preliminary approval (“the Initial Preliminary Approval”) for stage 6B, being lots 99 to 121, collectively (“the Development Approval”).4 [6] The Initial Preliminary Approval contained the following relevant conditions: “20 The subject land may not be subdivided until the extractive resources located on Lot 200 CP869309 have been exhausted and the quarry located on Lot 200 has ceased its operations. 21 The subject land may be subdivided in accordance with the approved plan, creating 23 rural residential lots complying with the provisions of the Planning Scheme for the Whole of Shire of Maroochy 1985, in accordance with condition 20.”5 [7] It was indicated that further development permits would be required including a “Development Permit to Reconfigure a Lot (Conventional Rural Residential Subdivision - 23 lots)”.6 The currency period for the Initial Preliminary Approval was 10 years.7 [8] The Development Approval was then the subject of an appeal by the appellant.8 This appeal was resolved by negotiation resulting in an application to change the Development Approval. Proposed lots 122 to 124 in stage 6A were replaced with one larger lot, Lot 124. The Initial Preliminary Approval remained in the same terms which included the same currency period and the conditions quoted above.9 The 2 Exhibit 6, p 31. 3 Ibid p 30. 4 Ibid pp 36 – 55. 5 Ibid p 41. 6 Ibid. 7 Ibid p 36. 8 Exhibit 4, Part 1, p 5. 9 Exhibit 6, pp 80 – 88. -- 3 of 8 -- 4 changed decision notice is dated 7 December 2005 and the 10 year currency period for the Preliminary Approval runs from this date. Significantly, it is noted that the application was again assessed under the respondent’s 1985 planning scheme,10 which was reflective of the relevant provisions of the Integrated Planning Act 1997 (“IPA”) which were in force at the time and required the assessment manager to assess the application against the codes, planning instruments, laws and policies in effect when the application was made.11 However, in assessing the application, the assessment manager was permitted to “give the weight it is satisfied is appropriate to a code, planning instrument, law or policy that came in effect after the application was made…”12 The accompanying assessment report indicates that “much of the assessment was carried out against” the respondent’s 2000 planning scheme.13 [9] In the interim, the South East Queensland Regional Plan 2005-2026 (“SEQRP 2005”) had come into force. It placed the land in the Regional Landscape and Rural Production Area, where the proposed lots the subject of the Development Approval became prohibited.14 Significantly, this prohibition did not apply to “a development application that was properly made before 27 October 2004” which included the development application giving rise to the Development Approval.15 [10] In November 2015, the appellant brought an application to extend the currency period of the Preliminary Approval for a further two years.16 This application was refused by the respondent giving rise to the appeal before me. On 21 July 2017, I declared that the Preliminary Approval has not lapsed and will not lapse until the determination of the appeal.17 [11] Pursuant to the Preliminary Approval, the appellant lodged a development application with the respondent for 23 lots in identical terms to the lots contemplated by the Preliminary Approval,18 which was properly made on 25 January 2016.19 This development application was publicly notified in March and April of 2017, resulting 10 Ibid p 56. 11 Integrated Planning Act 1997 (Qld) ss 3.5.3 and 3.5.4. 12 Ibid s 3.5.6(2). 13 Exhibit 6, p 58. 14 Exhibit 4, Part 1, p 8 and Exhibit 8, p 127. 15 Exhibit 8, p 125. 16 Exhibit 4, p 5. 17 Coolum Chase Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 45. 18 Exhibit 1, p 196. 19 Exhibit 4, Part 2, p 23. -- 4 of 8 -- 5 in two submissions including an adverse submission from Boral Construction Materials, the owner and operator of the nearby quarry.20 The application was then changed to 9 lots and on 5 April 2018 the respondent issued a decision notice refusing the application. This in turn resulted in another appeal being filed on 30 April 2018.21 Discussion [12] Turning to s 388 of the SPA, the first of the matters to which I must only have regard is the consistency of the approval with the current laws and policies applying to the proposed development. The land is now within the Regional Landscape and Rural Production Area pursuant to the South East Queensland Regional Plan 2017 (“SEQRP 2017”).22 Relevantly, the SEQRP 2017 states that growth in the current Urban Footprint is encouraged and that: “The Urban Footprint identified in the plan will help us reduce our impact upon the environment, reducing urban sprawl and our carbon footprint.”23 [13] Notably, the Planning Regulation 2017 (“PR”) relevantly states: “23 Prohibited development – reconfiguring a lot in SEQ regional landscape and rural production area (1) Reconfiguring a lot is prohibited development to the extent the lot is in the SEQ regional landscape and rural production area, if the reconfiguration— (a) is a subdivision; and (b) is assessable development under section 21.”24 Unsurprisingly, the Preliminary Approval is a subdivision as defined in Schedule 24 of the PR and also assessable development pursuant to s 21 of the PR. [14] The starting point is therefore that the Preliminary Approval is now prohibited development. Unsurprisingly, there is no support for it pursuant to the respondent’s current planning scheme, which reflects this fact. The land is also mapped as having numerous constraints, including being subject to landslide hazard, being almost exclusively within a State Key Resource Area – Separation Area, subject to bushfire 20 Exhibit 6, pp 111 – 114. 21 Exhibit 4, Part 2, p 23. 22 Exhibit 4, Part 1, p 11. 23 Exhibit 9, p 4. 24 Schedule 10, Part 16, Division 1, s 23. -- 5 of 8 -- 6 hazard and numerous environmental constraints.25 The lack of consistency of the Preliminary Approval with current planning controls is summarised by Mr Perkins, the planner engaged on behalf of the respondent, in the following terms which are uncontentious:26 “The non-compliance is at all levels of the planning framework: (a) high-level and strategy-orientated (i.e. the South-East Queensland Regional Plan 2017…and strategic outcomes and specific outcomes of the planning scheme’s strategic framework); (b) mid-level and policy-orientated (i.e. the purpose and overall outcomes of applicable planning scheme codes and purpose of State codes); and (c) detailed and operational (i.e. performance outcomes and acceptable outcomes of applicable planning scheme and State codes). The non-compliance is with long-standing, widely promulgated, clearly documented and vigorously pursued planning policy at both the State and local level.”27 [15] The appellant submits that the appeal should be allowed and that an extension to the currency period of the Preliminary Approval should be granted to enable the completion of the final stage of the Coolum Chase development. This, it is submitted, would enable the detailed assessment of the proposed final stage to proceed pursuant to the other appeal. It is further submitted that the Preliminary Approval is compatible with the current laws and policies which apply to the land as it can exist in harmony with the current planning controls. Essentially, the appellant argues what is proposed represents infill development for a small area of land already surrounded by existing rural residential development in circumstances where all of the parkland for the Coolum Chase development has already been dedicated, and all of the infrastructure leading to the proposed final stage has already been provided by the appellant. It is submitted that it will not constitute an incursion into the Regional Landscape and Rural Production Area that would adversely impact on or result in a fragmentation of part of this area. 25 Exhibit 4, Part 1, pp 33 – 39. 26 T1-9, ll 15-25, T1-10, ll 15-25. 27 Exhibit 4, Part 1, p 10. -- 6 of 8 -- 7 [16] Reliance is also placed by the appellant upon the fact that the respondent granted the changed development approval in circumstances where the land was similarly constrained pursuant to the SEQRP 2005 and elected not to give it any weight. In my view there is no merit in this argument as firstly it is clear that the respondent was primarily obliged to assess the development application against the codes, planning instruments, laws and policies in place at the time the development application was made. The development application was originally made in 2002. Secondly, the SEQRP 2005 clearly stated that it did not apply to the Development Approval as the development application was lodged prior to 27 October 2004. [17] The discretion I must exercise pursuant to s 388 of the SPA is constrained. It sets out what I “must only have regard to” and firstly, I need to have regard to the consistency of the approval with the current laws and policies applying to it. The Coolum Chase development is an isolated rural residential pocket which is contrary to the intent of the SEQRP 2017 and numerous provisions of the respondent’s current planning scheme summarised by Mr Perkins and quoted above. While I accept that a number of site specific constraints and planning scheme provisions could be addressed at the development permit stage, the fact remains that the subdivision contemplated by the Preliminary Approval is completely inconsistent with the current planning intentions for this area, which prohibit this form of development. [18] So far as the submissions of the appellant about the provision of infrastructure and the dedication of parkland are concerned, firstly it appears that the infrastructure had to be provided by the appellant for the previously developed stages of Coolum Chase. Secondly, the dedication of all of the parkland before obtaining a development permit for the final stage, in circumstances where the parkland is very constrained and there was no guarantee of a development permit ultimately being obtained for the final stage, also assumes no meaningful significance in the exercise of my discretion pursuant to s 388 of the SPA. [19] Turning to the balance of the relevant considerations identified in s 388, firstly I am satisfied that the community’s current awareness of the development approval is appropriate given the recent public notification of the proposed lot layout in identical terms to that set out in the Preliminary Approval. Furthermore, as the Preliminary -- 7 of 8 -- 8 Approval is now prohibited development, there would be no further rights to make a submission as there can be no further development applications of this type.28 Conclusion [20] The Preliminary Approval is completely inconsistent with the planning strategies which are reflected in the SEQRP 2017 and the respondent’s current planning scheme. The land is not intended for a rural residential subdivision. There are sound planning reasons for this. The Preliminary Approval was given over 15 years ago pursuant to an assessment based on superseded planning controls now over 20 years old. It is completely inconsistent with the current planning controls for the land. There is simply no justification for permitting further development of the land pursuant to the Preliminary Approval in these circumstances, regardless of the extent of any direct impacts as a consequence. [21] The appeal is therefore dismissed. 28 PR s 23. -- 8 of 8 --