Body Corporate For Roydon Community Titles Scheme 1487 & Anor v Cairns Regional Council & Anor [2020] QPEC 60 [2021] QPELR 1047

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Body Corporate For Roydon Community Titles Scheme 1487 & Anor v Cairns Regional Council & Anor [2020] QPEC 60 PARTIES: BODY CORPORATE FOR ROYDON COMMUNITY TITLES SCHEME 1487 (Appellant) and B MONTGOMERY PTY LTD ACN 079110393 ATF MONTGOMERY FAMILY TRUST T/A ROYDON BEACHFRONT APARTMENTS (Second Appellant) v CAIRNS REGIONAL COUNCIL (Respondent) and VASEY ESPLANADE PTY LTD ACN 629359333 (Co-Respondent) FILE NO: 49 of 2020 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Cairns DELIVERED ON: 4 December 2020 DELIVERED AT: Cairns HEARING DATE: 26, 27, 28 October 2020 JUDGE: Morzone QC DCJ ORDER: 1. Appeal allowed. 2. The development application is refused. 3. I will hear the parties as to any consequential orders. CATCHWORDS: PLANNING AND ENVIRONMENT – Appeal against approval of a development permit for a material change of use of premises for an indoor sport and recreation use of an F45 gym – impact assessable development under planning scheme – whether inconsistent with scheme benchmarks – whether the proposal will meet an existing community, economic and planning need - whether unacceptable impacts on acoustic -- 1 of 40 -- 2 amenity – whether unacceptable traffic and parking management – where noise management plan not before the court - development application refused. LEGISLATION: Acts Interpretation Act 1954 s 14A Planning and Environment Court Act 2016 ss 5(2), 45, 60 CASES: Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Bell v Brisbane City Council (2018) 230 LGERA 374 Cut Price Stores Retailers v Caboolture Shire Council (1984) QPELR 126 Fabcot v Cairns Regional Council [2020] QPEC 17 Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435 Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435 Gold Coast City Council v K&K (GC) Pty Ltd (2019) 239 LGERA 409 Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 Holts Hill Quarries Pty Ltd v Gold Coast CC [2000] QCA 268 JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4 Luke v Maroochy Shire Council [2003] QPELR 447 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67 Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 Redland City Council v King of Gifts (Qld) Pty Ltd (2018) 230 LGERA 374 Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245 Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337 Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 340, 342, 345 -- 2 of 40 -- 3 Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352 COUNSEL: P Djohan for the Appellant P Djohan for the Second Appellant J Trevino QC for the Respondent M Batty for the Co-Respondent SOLICITORS: Miller Bou-Samra Lawyers for the Appellant Miller Bou-Samra Lawyers for the Second Appellant P&E Law for the Respondent MacDonnells Law for the Co-Respondent [1] The co-respondent developer resists the appellants’ appeal against the respondent council’s decision to approve a development permit for a material change of use of premises for an indoor sport and recreation use of an F45 gym in respect of land located at 2-8 Vasey Esplanade, Trinity Beach. The Council defends its decision. [2] The first and second appellants are respectively the body corporate and onsite manager for the residential apartments adjoining the land, and they maintain their opposition to the proposed development because of planning, inadequate parking, noise and other incursions on amenity. [3] The parties have agreed on the issues in the appeal and it requires consideration of the following questions: 1. What is the assessment required under the Planning Act 2016? 2. How does the proposal assess against the assessment benchmarks of the planning scheme with regard to matters prescribed by the regulation, and with further regard to any other relevant matter? 3. Should the application be approved in full or part (subject to the imposition of development conditions on the approval), or refused? [4] I have found that the proposed development is not supported by the benchmarks for amenity, location of use and community need; there are unacceptable impacts, including patron noises to and from the car park, which I am not satisfied can be reliably mitigated or managed by a noise management plan not before the court. I am not satisfied that the proposal provides onsite parking and manoeuvring sufficient for, or to accommodate, the demand generated by the use contrary to the benchmarks. While I have found that the proposal will provide for a community need in terms of convenience, accessibility and wellbeing of the local community, this will be limited by the nature and scope of the proposed F45 gym. In any event, I am not satisfied there is any economic or planning need for the proposed development. [5] Therefore, I will allow the appeal and refuse the development application. -- 3 of 40 -- 4 Proposed development [6] The co-respondent applies to develop a particular type of indoor sport and recreation use, namely an F45 Training gym, being a brand of gym that specialises in high intensity circuit-based group classes offered within a set timetable. [7] The land is located at 2-8 Trinity Beach Road in Trinity Beach and is described as Lot 10 on SP294324. [8] The proposed gym use is to operate within the area of three tenancy areas on the first floor of the existing commercial building with an open consolidated area used for the exercise area and the balance used for bathrooms, reception, ancillary office, storage and staff rooms. The proposal seeks to utilise the existing car park to accommodate the gym’s parking demand. No external works are required, but internal fit out is necessary including the construction of toilets, showers, storage space, staff room and an office area. [9] The operating hours are fixed to be - on weekdays from 5.00 am to 10.30 am and from 4.00 pm to 7.30 pm, on Saturday from 6:30 am to 9.30 am, and on Sunday from 7.30am to 10.00 am. [10] Consistent with the ethos of F45 Training gyms the proposed gym will be conducted solely through class based training with an expected duration of about 45 minutes with at least 15 minutes between classes. Only one class would be conducted at a time. One on one personal training and general gym uses would be excluded. Patron access would not be permitted outside of the opening hours. Group training classes would be capped at 25 people per session. No more than three staff would be permitted on site at any given time. What is the assessment required under the Planning Act 2016? [11] The appeal is to be heard by way of hearing anew1 and must be decided by the court as if the court was the assessment manager for the development application.2 Section 45 of the Planning Act 2016 provides for the assessment process depending on the category of assessment, that is, whether the planning instrument requires an impact assessment or code assessment. In doing so court must perform its function in a way that advances the purpose of the Planning Act 2016 including those prescribed in s 5(2)(a) to (i) of the Act by following ethical decision making processes that (relevantly here) provides for community involvement, housing choice, economic diversity, and applying amenity in a cost effective and publicly beneficial way. [12] Section 45 is in these terms: “45 Categories of assessment (1) There are 2 categories of assessment for assessable development, namely code and impact assessment. 1 Planning and Environment Court Act 2016, s 43. 2 Planning and Environment Court Act 2016, s 46(2), Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21 at [93]. -- 4 of 40 -- 5 (2) A categorising instrument states the category of assessment that must be carried out for the development. (3) A code assessment is an assessment that must be carried out only— (a) against the assessment benchmarks in a categorising instrument for the development; and (b) having regard to any matters prescribed by regulation for this paragraph. (4) When carrying out code assessment, section 5(1) does not apply to the assessment manager. (5) An impact assessment is an assessment that— (a) must be carried out— (i) against the assessment benchmarks in a categorising instrument for the development; and (ii) having regard to any matters prescribed by regulation for this subparagraph; 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. Examples of another relevant matter— • a planning need • the current relevance of the assessment benchmarks in the light of changed circumstances • whether assessment benchmarks or other prescribed matters were based on material errors Note— See section 277 for the matters the chief executive must have regard to when the chief executive, acting as an assessment manager, carries out a code assessment or impact assessment in relation to a State heritage place. (6) An assessment carried out against a statutory instrument, or another document applied, adopted or incorporated (with or without changes) in a statutory instrument, must be carried out against the statutory instrument or document as in effect when the application was properly made. (7) However, if the statutory instrument or other document is amended or replaced before the assessment manager decides the application, the -- 5 of 40 -- 6 assessment manager may give the weight that the assessment manager considers is appropriate, in the circumstances, to the amendment or replacement. [13] There are some striking contrasts between the categories of assessment under ss 45. By virtue of s 45(3) code assessment “must be carried out only” against the assessment benchmarks by having regard to matters prescribed by regulation: whereas for an impact assessment under s 45(5), in additions to the requirement that the assessment “must be carried out” against the assessment benchmarks by having regard to matters prescribed by regulation, the assessment “may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.” In that way, the assessment manager may only “may be carried out against, or having regard to, any other relevant matter” in relation to an impact assessment. [14] This begs the question of what is meant by “another relevant matter”. The expression is not defined in the Act except as one “other than a person’s personal circumstances, financial or otherwise.”3 A “relevant matter” ought carry its ordinary meaning to capture a matter that has a bearing upon, or is connected with the assessment to the application other than a person’s personal circumstances, financial or otherwise.4 The legislature have provided three examples for the purposes of s 45(5)(b) being: • a planning need; • the current relevance of the assessment benchmarks in the light of changed circumstances; • whether assessment benchmarks or other prescribed matters were based on material errors. [15] It seems to me that “other relevant matter” is permissibly wider that an assessment under s 326(1)(b) of the former Sustainable Planning Act (Qld) 2009, to include all relevant matters of positive and negative attributes of the proposed development, including any particular community benefits or detriments that might weigh in favour of or against an approval even where a proposal is or is not consistent with the community expectations.5 [16] Consistent with the examples in the section and without meaning to constrain the very broad nature and types of “relevant matter”, in so far as they are relevant to an assessment of a particular application might include: 1. An absence of any negative impact from, or detrimental effect of a proposed development;6 or 2. There is a planning need for the proposal at that location; or 3. The current assessment benchmarks are not significantly relevant in the wake of changed circumstances; or 4. The assessment benchmarks or other prescribed matters were based on material errors; or 3 Planning Act 2016, s 45(5)(b). 4 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [80]. 5 Contrast, Bell, at [73] & [74]. 6 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 at [61] per Mullins JA. -- 6 of 40 -- 7 5. Relevant circumstances have changed since the planning instrument was made; or 6. There is a factual error in the instrument itself; or 7. The planning instrument inadequately addressed development; or 8. The planning instrument does not anticipate specific or particular development; or 9. There is an urgent need for the proposal. [17] As to the use of other “relevant matter”, the legislature permits that the assessment may be “carried out against” some relevant matter, or it may be a species of relevant matter worthy of “having regard to”. In my view the distinction is purposeful. The term “carried out against” connotes a comparative process against a certain performance standard, guideline or other document; whereas “having regard to” connotes regard being had to matters of fact and circumstance. For example, an assessment manager may assess against formulations and measurements of an Australian Standard about architectural acoustics, but have regard to relevant facts and circumstance of acoustic amenity in the locality (since such nebulous matter is not conducive to being “carried out against”). Of course, the nature and extent of “other relevant matter” may overlap and blend with each other. [18] The assessment manager (here the court) must perform its function in a way that advances the purpose of the Planning Act 2016 including those prescribed in s 5(2)(a) to (i) of the Act. Section 5 is in these terms: 5 Advancing purpose of Act (1) An entity that performs a function under this Act must perform the function in a way that advances the purpose of this Act. (2) Advancing the purpose of this Act includes — (a) following ethical decision-making processes that — (i) take account of short and long-term environmental effects of development at local, regional, State and wider levels; and (ii) apply the precautionary principle, namely that 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; and (iii) seek to provide for equity between present and future generations; and (b) providing opportunities for the community to be involved in making decisions; and (c) promoting the sustainable use of renewable and non-renewable natural resources, including biological, energy, extractive, land and water resources that contribute to economic development through employment creation and wealth generation; and -- 7 of 40 -- 8 (d) valuing, protecting and promoting Aboriginal and Torres Strait Islander knowledge, culture and tradition; and (e) conserving places of cultural heritage significance; and (f) providing for housing choice, diversity and affordability; and (g) encouraging investment, economic resilience and economic diversity; and (h) supplying infrastructure in a coordinated, efficient and orderly way; and (i) applying amenity, conservation, energy use, health and safety in the built environment in ways that are cost-effective and of public benefit; and (j) avoiding, if practicable, or otherwise minimising the adverse environmental effects of development (climate change, urban congestion or declining human health, for example). [19] Under s 59(2), an assessment manager must follow the development assessment process for the application and, relevantly under s 59(3), the assessment manager’s decision must be based on the assessment of the development carried out by the assessment manager. [20] After carrying out the applicable assessment, the assessment manager (here the Court) must decide the development application pursuant to s 60 of the Planning Act 2016 (Qld), which is in these terms: “60 Deciding development applications (1) This section applies to a properly made development application, other than a part of a development application that is a variation request. (2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment— (a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and (b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and Examples - 1 An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks. -- 8 of 40 -- 9 2 An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency’s response. (c) may impose development conditions on an approval; and (d) may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions. Example of a development condition for paragraph (d)— a development condition that affects the way the development is carried out, or the management of uses or works that are the natural and ordinary consequence of the development, but does not have the effect of changing the type of development applied for (3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide— (a) to approve all or part of the application; or (b) to approve all or part of the application, but impose development conditions on the approval; or (c) to refuse the application. (4) The assessment manager must approve any part of the application for which, were that part of the application the subject of a separate development application, there would be a different assessment manager— (a) other than to the extent a referral agency for the development application directs the refusal of the part under section 56(1)(c); and (b) subject to any requirements of the referral agency under 56(1)(b). (5) The assessment manager may give a preliminary approval for all or part of the development application, even though the development application sought a development permit. (6) If an assessment manager approves only part of a development application, the rest is taken to be refused. [21] Again, there are some striking contrasts between the categories of assessment and decision making under s 60. By virtue of s 60(2)(d) the assessment manager for a code assessable application has a discretion to refuse the application “only if” compliance with a benchmark can not be achieved by imposing conditions. Whereas, -- 9 of 40 -- 10 when deciding an impact assessable application under s 60(3) there is no such limitation of power. [22] While the legislature clearly intended to dispense with the “two part” test required by the former Act, it did not do so in response to several recent Court of Appeal authorities or to disturb the principles espoused and rooted in a long history of planning jurisprudence.7 It is sobering to note that the Explanatory Notes to the Planning Bill 2015 and the assent of the Planning Act 20168 preceded (and therefore not responsive to) the decisions of the Court of Appeal in Bell v Brisbane City Council (2018) 230 LGERA 374, Gold Coast City Council v K&K (GC) Pty Ltd (2019) 239 LGERA 409; Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41 and more recently Lipoma Pty Ltd & Anor v Redland City Council & Anor [2020] QCA 180. Those appellate authorities sought to correct a developed practice by refocusing the assessment of the merits of a proposal to one based in the established policy of a planning scheme (and other relevant planning instruments) as the comprehensive expression of what will constitute, in the public interest, the appropriate development of land. So much, in my view, remains pertinent to the new regime. [23] In my view the assessment under the Planning Act still demands significant importance of the planning scheme benchmarks by virtue of the sequence of the provision and by using the mandatory term “must” in s 45(5)(a) in contrast to the discretionary term “may” used in s 45(5)(b). Rather than a “two stage” process, the provision promotes synthesis in the impact assessment whereby the decision maker, in advancing the Act’s purpose, “must” carry out the assessment against the benchmarks in an applicable categorising instrument “having regard to” the matters prescribed by regulation, and it “may” also carry out the assessment against, or having regard to, any “other relevant matter”. In this way the assessment under s 45(5) proceeds upon the premise that it is in the public interest that the benchmarks in a categorising instrument (eg. a planning scheme) be applied in each relevant respect, and in doing so the decision maker may cumulatively consider any “other relevant matter”, which may promote the public interest embodied in the instrument or demonstrate otherwise. The effect is that the assessment pivots around the planning instrument benchmarks which remain anchored throughout the assessment process under s 45(5). [24] The co-respondent and respondent rely upon this court’s recent decision of Ashvan Investments Unit Trust v Brisbane City Council & Ors9 as confirming - that, when applying s 45(5), non-compliance with an assessment benchmark no longer assumes primacy in the exercise of the planning discretion, and the legislature’s deliberate departure from the two part test that applied under the former Act. 7 Holts Hill Quarries Pty Ltd v Gold Coast CC [2000] QCA 268 at [41]; Elan Capital Corporations Pty Ltd v Brisbane City Council [1990] QPELR 209 at 211 cited in many cases including Grosser v Gold Coast City Council (2001) 117 LGERA 153 at [6] per Williams JA, [38] per White J; Australian Capital Holdings Pty Ltd v Mackay CC [2008] QCA 157 at [38]; Bell at [56]. See also the former Local Government Court decision in relation to spot zoning in Sheezel v Noosa Shire Council (1980) 6 QL 207 at 208. 8 Date of Assent 25 May 2016, with commencement on a day fixed by proclamation. 9 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, cited with approval by the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257. -- 10 of 40 -- 11 [25] In Ashvan, Williamson QC DCJ provided a careful analysis of the legislative history and observed the proper approach under the new regime was as follows: “[50] The purpose of setting out this brief legislative history is to make this point: the PA is the first piece of planning legislation in Queensland since 1992 that does not mandate how a planning discretion is to be exercised where conflict with an adopted statutory planning control is established. The Explanatory Notes for the Planning Bill 2015 confirm this is a deliberate change to the statutory assessment regime for impact assessable applications. The Explanatory Notes state: “The form of the assessment and decision rules under the Bill is designed to address difficulties that arose in administering the old Act, due to the so- called “two part test” for both code and impact assessment. Under that test, an assessment manager’s decision could “conflict” with a relevant instrument if there were “sufficient grounds to justify the decision, despite the conflict”. In practice, as a result of judicial authority in several cases, this test resulted in time consuming and unproductive enumeration of supporting or conflicting “grounds”, instead of the intended assessment of the merits of the proposal based on established policy, and other relevant considerations to reach a balanced decision in the public interest. The assessment and decision rules for both code assessment and impact assessment under the Bill dispense with the “two part test”.” [51] Dispensing with the so-called two part test means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion. As I said in Smout v Brisbane City Council (Supra) at [51], in this way, the discretion conferred by s.60(3) of the PA admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor. This, the Explanatory Notes state, is to allow a ‘balanced decision in the public interest’ to be reached, based on an assessment of the merits of an application having regard to established policy and other relevant considerations. [52] If non-compliance with a planning scheme no longer has assumed primacy under the PA, what role, if any, does it have to play in the exercise of the planning discretion under s.60(3) of the PA? [53] An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of PA. Whether that fact and -- 11 of 40 -- 12 circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question… It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the PA. It should not be assumed that noncompliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established. [54] In practical terms, the change to the statutory assessment and decision making framework may call for an assessment manager (or this Court on appeal) to reach a balanced decision in the public interest where two competing considerations are at play: (1) the need for the rigid application of planning documents on the one hand; as against (2) the adoption of a flexible approach to the application of planning documents to, inter alia, exercise the discretion in a manner that advances the purpose of the PA.” [26] This Court provided further guidance on the assessment framework that applies under the Planning Act in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.10 That decision emphasised the assistance of earlier decisions of Carter DCJ in Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134 and William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33. As was stated in Murphy (at [18]) (citing Martin Dillon): “… it must also be recognised that blind adherence to that part of a planning scheme that is rigid is apt to obscure the fact that the need and the wellbeing of the community, or a significant part of it, may sometimes be better served by permitting an outcome that does not strictly comply with those controls. That flexibility may, in some instances, better serve the interests of the public is apparent when one considers the complexity of the task confronting a local government in preparing a planning scheme”. [27] This approach has been now been affirmed by this Court11 and most recently by the Court of Appeal in Abeleda & Anor v Brisbane City Council,12 and I acknowledge that other cases invoking appellate consideration of s 45 of the Planning Act are pending in the Court of Appeal.13 [28] The following principles can be distilled from Abeleda:14 10 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [12]-[22]. 11 Such an approach has been now been affirmed by the subsequently reiterated in JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4 at [13], Development Watch Inc & Anor v Sunshine Coast Regional Council [2020] QPEC 25 at [10]-[16] (subject to an application for leave on unrelated points) and Shun v Logan City Council [2020] QPEC 31 at [4]-[9]. 12 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257. 13 Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; Fabcot v Cairns Regional Council [2020] QPEC 17. 14 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257. -- 12 of 40 -- 13 1. Section 60 of the Act eliminates that two part assessment process that involved finding non-compliance and then considering whether there was sufficient grounds to justify an approval, despite the non-compliance.15 2. The change to the assessment and decision-making framework under the Act by eliminating the two stage test has not altered the fundamental nature of a planning scheme as a reflection of the public interest in the appropriate development of land: Bell, K & K, and Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41.16 3. The absolute terms in which McMurdo JA expressed in [67] and [70] of Bell that it is in the public interest that the planning scheme is applied, unless the contrary is demonstrated, are no longer applicable to the exercise of the discretion by the decision-maker under s 60(3) of the Act, as the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is permitted to have regard to other relevant matters, in addition to the mandatory assessment against the assessment benchmarks in the planning scheme. In most instances, where a planning scheme is not affected by changed circumstances of the type referred to in Bell at [68], that the decision- maker would give significant weight to the public interest expressed in the planning scheme in undertaking the decision-making under s 60(3) of the Act.17 4. The risk, identified by Sofronoff P (with whom Fraser JA and Flanagan J agreed) in the last sentence of paragraph [48] of K & K - that “the decision- maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision-maker’s own view, it would or it would not be better to permit a development on the site to go ahead” - should not be treated as anticipating the process of decision-making under s 60(3) of the Act.18 5. The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the planning scheme benchmarks in and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.19 6. In view of the departure from the two part test, is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the 15 Abeleda at [36]. 16 Abeleda at [37]. 17 Abeleda at [40]. 18 Abeleda at [41] - [42]. 19 Abeleda at [42]. -- 13 of 40 -- 14 factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision- making in a way that advances the purpose of the Act.20 7. The following statement of Sofronoff P in K & K at [67] does not apply to the decision-making under s 60(3) of the Act: “It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo.”21 8. The court agreed with the observations of Williamson QC DCJ referred at [51] of Ashvan to the Legislature’s intention in enacting s 60(3) of the Act to dispense with the two part test under s 326(1)(b) of the SPA and observed that “means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion” and “the discretion conferred by s 60(3) of the [Act] admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor”.22 9. And, subject to recognition that the Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, the court also agreed with the observations of Williamson QC DCJ at [53]-[54] of Ashvan on the role of non- compliance with a planning scheme in the exercise of the planning discretion under s 60(3) of the Act.23 10. In view of the discretion that is conferred under s 60(3) of the Act, which is not fettered other than by reference to the purpose of the Act and the constraints under s 45 imposed on an impact assessment, the observations by Williamson QC DCJ at [60] of Ashvan are apposite: “The manner in which the balance between rigidity and flexibility is struck in any given case does not lend itself to a general statement of principle, or precise formulation. The planning discretion, and the inherent balancing exercise, is invariably complicated, and multi- faceted. It is a discretion that is to be exercised based on the assessment carried out under s 45 of the [Act]. It 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.”24 [29] With the benefit of Court of Appeal authority, it must be accepted that the assessment under the Act marks a clear departure from the so-called “two part” test of finding non-compliance and then considering whether there was sufficient grounds to justify an approval, despite the non-compliance. And there is no need for exceptional 20 Abeleda at [43]. 21 Abeleda at [45]. 22 Abeleda at [53]. 23 Abeleda at [54]. 24 Abeleda at [56]. -- 14 of 40 -- 15 circumstances for a decision-maker in the exercise of the discretion having regard to sufficient grounds to conclude that a development warrants departure from the scheme as not being, in the particular case, an embodiment of what was in the public interest. Critically, the Court in Abeleda affirmed the legislative importance of the planning instrument as the legislated embodiment of the overall public interest and the benchmarks as established policy. In this way the new regime preserves the expression of community expectation through legal certainty of the planning instrument. [30] The principles espoused in Abeleda temper a too broad approach, for that aspect of the assessment against or having regard to any other relevant matter, so that the importance of the planning instrument is ignored by the decision-maker’s discretionary value judgments of other relevant matters being confined only by the subject matter (although not a person’s personal circumstances, financial or otherwise), and the scope and advancement of the purpose of Planning Act. This will avoid perpetuation of the identified mischief of the historical practice of time consuming and unproductive enumeration of supporting or conflicting grounds instead of the intended assessment of the merits of the proposal based on established policy, and other relevant considerations to reach a balanced decision with proper regard to the legislative importance of the relevant planning instrument. [31] The principles applicable to the construction of planning instruments remain unchanged as that restated by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council.25 The Court noted that the same principles which apply to statutory construction apply to the construction of planning documents,26 but that this still allows for the expressed view that such documents need to be read in a way which is practical, read as a whole and as intending to achieve a balance between outcomes.27 In considering the principles relevant to the construction of planning schemes, the matters enunciated by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council28 remain apposite, especially: that should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;29 they should be construed as a whole;30 and they should be construed in a way which best achieves their apparent purpose and objects.31 [32] As the development application required impact assessment, the decision of the court pursuant to s 62(3) must be based upon the assessment required by ss 45(5), (6) and (7) pursuant to s 59(3) and done in a way that advances the purpose of the Act. Accordingly, the court: (a) must carry out the assessment of the development application: 25 Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 26 Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [52]. 27 Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [56]. 28 Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337. 29 ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352, 360; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 340, 342, 345; Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318. 30 Luke v Maroochy Shire Council [2003] QPELR 447. 31 Luke v Maroochy Shire Council [2003] QPELR 447; Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368, 370; Acts Interpretation Act 1954, s 14A. -- 15 of 40 -- 16 (i) against the applicable assessment benchmarks in a categorising instrument in effect at the time the development application was properly made;32 and (ii) having regard to any matters prescribed by regulation to the extent of the assessment manager considers those matters relevant to the development;33 and (b) may carry out the assessment of the development application against, or having regard to, any other relevant matter (other than personal circumstances, financial or otherwise);34 and (c) may give the weight the Court considers appropriate to any amendments to the planning scheme (none are relevant here);35 and (d) decide to approve all or part of the application; or to approve all or part of the application but impose development conditions on the approval; or to refuse the application.36 [33] Of course, when undertaking this task the Court must perform its function in a way that advances the purpose of the Act. Assessment [34] The development application was lodged on 5 August 2019. [35] The assessment must be carried out against the applicable assessment benchmarks in the CairnsPlan 2016 (version 1.3),37 and the Far North Queensland Regional Plan 2009,38 having regard to the evidence adduced in the hearing and the common material39 and relevant approvals and uses on the land and adjacent premises. This aspect of the assessment against the benchmarks is a fundamental element or focal point in the decision making process in the decision making process with due regard the prescribed material.40 [36] The land is in the urban footprint of the Far North Queensland Regional Plan 2009 - 2031.41 The intent of the urban footprint area is to provide for the region’s urban development needs to 2031 and to accommodate the full range of urban uses such as housing, industry, business, community facilities, tourist facilities, sport, recreation and urban open space.42 No dispute arises in relation to the regional plan. 32 Planning Act 2016, ss 45(5)(a) & 45(6) & Planning Regulation 2017, s 31. 33 Planning Act 2016, ss 45(5)(a) & 45(6) & Planning Regulation 2017, s 31. 34 Planning Act 2016, s 45(5)(b). 35 Planning Act 2016, s 45(7). 36 Planning Act 2016, s 60(3). 37 Being a categorising instrument & local categorising instrument pursuant ss 43(1) & (3) of the Planning Act 2016. 38 Being a categorising instrument pursuant to s 43(1) Planning Act 2016, and s 30(2) of the Planning Regulation 2017 (Qld) 39 “Common material” as defined in Planning Regulation 2017, Schedule 24. 40 Compare and contrast Simpson v Edinburgh Corp (1960) SC 313, South Australian Planning Commission v Dorrestijn (1984) 53 LGRA 203 at [207], Fortress Freeholds v Brisbane City Council (2016) QPEC 63 at [37]-[40], BM Carr Holdings atf The Carr Family Trust v SDRC [2013] QPEC 4 at [24], Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 2015 at [23] and [29]. 41 Town Planning JER, p. 9, para.52. 42 Town Planning JER, p. 9, para.52. -- 16 of 40 -- 17 [37] The proposed development falls to be assessed against the benchmarks in the CairnsPlan 2016 (version 1.3). Subsequent scheme amendments do not bear on the development application. The relevant benchmarks of the scheme are in the Strategic Framework, the Tourist Accommodation Zone Code, Parking and Access Code and Sport and Recreation Activities Code. I also note that an assessment benchmark – such as a code, a standard, or an expression of the intent for a zone or precinct in a scheme – does not include a matter of a person’s opinion or a person’s circumstances, financial or otherwise.43 [38] In the Strategic Framework the land is identified within an “urban area” in the Strategic Framework map – settlement pattern. The Strategic Framework provides that urban development in the region occurs within the urban area and that such development contributes to a compact urban form through infill development in existing urban areas. The land is also subject to (partly or wholly) a number of overlays which do not impact the issues in this appeal. [39] The land is included within the Tourist accommodation zone of the planning scheme. The zone includes almost all land contiguous with Vasey Esplanade both to the north and south of the site. It is also the predominate zone for land situated to the north of Trinity Beach Road for approximately 650m from its intersection with Vasey Esplanade. The use of Indoor Sport and Recreation is not a use contemplated for the Tourist Accommodation Zone in the scheme since it is not a code assessable use identified for that zone. The Neighbourhood centre zone comprises land from the Trinity Beach Road and Jamieson Street roundabout about 250m west of Vasey Esplanade. [40] Section 1.5(1) prescribes the hierarchy of the assessment criteria under the planning scheme: “(1) Where there is an inconsistency between the provisions within the planning scheme, the following rules apply: (a) the strategic framework prevails over all other components to the extent of the inconsistency; (b) statewide codes prevails over all other components (other than the strategic framework) to the extent of the inconsistency; (c) overlay codes prevail over all other component (other than the strategic framework and statewide codes) to the extent of the inconsistency; (d) local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency; (e) zone codes prevail over use codes and other development codes to the extent of the inconsistency. (f) provisions of Part 10 may override any of the above.” 43 Planning Act 2016, s 43(1)(2). -- 17 of 40 -- 18 [41] Critically relevant to this case is that pursuant to s 1.5(1) where there is an inconsistency between a requirement in the Strategic Framework and a zone code or a development code, the Strategic Framework prevails. In addition, s 5.4 of the provides that compliance with a code can be achieved by a development complying with:44 1. the purpose and overall outcomes of the code; or 2. the performance outcomes of the code; or 3. the acceptable outcomes of the code. [42] The parties have identified the disputed issues relevant to the assessment including residential character and amenity, location of use, traffic and parking demands, and planning, economic and community need. [43] The co-respondent and the council also rely upon the following other relevant matters in support of the proposed development. 1. the proposed development is supported by various provisions of the applicable planning instruments; 2. approval of the proposed development would not result in any unacceptable impacts; 3. approval of the proposed development would compliment existing tourism facilities and tourist accommodation facilities. 4. there is a need for the proposed development. 5. the proposed development is consistent with existing approvals over the land and is supported by such approvals; and 6. the proposed development is consistent with the character of the locality, particularly in circumstances where the proposed development would be a use that exists in built form that is already established. [44] It is submitted that this suite of relevant matters that favour the Court, in the exercise of its discretion, approving the proposed development, subject to reasonable and relevant conditions. [45] On the contrary, the appellants rely upon the following as relevant matters in contending that the proposed development should be refused:45 1. the proposed development is contrary to reasonable expectations; 2. the proposed development will result in unacceptable amenity impacts; 3. the proposed development would not advance the purpose of the PA. [46] I deal with these topically in my assessment against the scheme having regard to the matters prescribed, and further the assessment having regard to the other relevant matters. Acoustic Amenity [47] There is no issue about any nuisance from light, dust, odour, vibrations, invasion of privacy, obstruction of sunlight and breezes etc. Character amenity in terms of built form since there will be no changes to the exterior of the building. The gym classes 44 Cf. Bell v Brisbane City Council (2018) 230 LGERA 374 at [50] re an analogy in Brisbane City Plan 2014. 45 The concept of ‘relevant matters’ was considered by this Court in Peach v Brisbane City Council (2019) QPEC 41 and Mater Health Services North Queensland Ltd v Townsville City Council & Ors [2019] QPEC 45. -- 18 of 40 -- 19 will occur inside an existing building which need some internal fitout. The gym activities will not be visible from the street and movements to and from the gym do not impact visual amenity. [48] The appellants remain concern about noise emanating from the use impacting the residential character and amenity of the locality. Given the location of the Roydon Apartments across from a beach in Far North Queensland, the residents enjoy a commensurately high standard of amenity with other urban areas in Cairns. The appellants contend that the development will adversely impact their residential amenity with a predominant focus on noise from cars and gym patrons within the carpark and as patrons moved up the stairs and along the exposed balcony particularly in the morning operating hours between 4.45am and 7.00am. [49] The issue of acoustic amenity for residents on adjoining properties requires assessment against the following benchmarks in Cairns Plan: (a) Strategic Framework. Section 3.1(1) states that the strategic framework sets the policy direction for the planning scheme forms the basis for ensuring appropriate development occurs within the planning scheme area for the life of the planning scheme. s.3.3.1(1)(l) provides for the region to grow and evolve in a way that achieves a high standard of amenity; s.3.3.1(7) provides that the development is located, designed and operated to ensure that any potential adverse or detrimental impacts are, in order of priority, avoided, mitigated or managed; s.3.3.5.1(3) provides that residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from residential amenity of the area or compromise the role and successful function of centres within the hierarchy. (b) Tourist Accommodation Zone Code s.6.2.24.2(3)(c) seeks to achieve an overall outcome that development to provide a high level of amenity taking into account impacts such as traffic, noise, dust, odour and lighting; PO3 requires that development is consistent with the purpose and overall outcomes of the zone; PO6 requires that development is located, designed and operated and managed to respond to the characteristics, features and constraints of the site and its surrounds; PO7 requires that development is not to adversely affect the tropical, tourist and residential character and amenity of the area in terms of traffic, noise, dust, odour, lighting or other physical or environmental impacts; -- 19 of 40 -- 20 (c) Sport and Recreation Activities Code s.9.3.23.2(2)(b) requires development to be of a scale and design which complements the desired character of the locality; s.9.3.23.2(2)(c) requires development to minimise adverse impacts on the amenity of nearby sensitive land uses; PO1 requires development to be located, designed and operated to avoid adverse impacts on nearby sensitive land uses in relation to light, noise, odour and other nuisance; PO3(b) requires development to be located and designed to be compatible with the character of the local area. [50] I had the benefit of a site inspection and aerial photographs to assist my understanding of the evidence of the immediate physical environment relevant to the development application, including the building and commercial uses on the land, the interface between the carpark, the building and the neighbouring Roydon complex and the overall residential character and amenity of the immediate surrounds of the land. [51] The land at 2-8 Trinity Beach Road in Trinity Beach has an area of 2,965m 2 bounded by Trinity Beach Road and Vasey Esplanade. It is improved by a two storey building which wraps around an internal onsite car park. The car park area contains 36 marked parking bays, bins store, a bike rack and some landscaping works. bin store, bike racks, and landscaping. The “L” shaped building has two wings - one aligned to Trinity Beach Road and the other to Vasey Esplanade adjacent to a “T” intersection. Upon arrival patrons are expected to park in the uncovered car park, walk up a staircase through a top entry door, then along an open veranda walkway and into the gym by a dedicated entry door. They will exit through other doors further along the veranda walkway and then retrace their movements to exit the car park area. [52] The land has a long history of non-residential uses. Since 2009, there have been numerous approvals over the land that support the site’s redevelopment for non- residential uses. As was articulated by Ms Morrissy in the town planning joint report, these approvals include:46 (e) 8 July 2009: Shopping Facilities, Detached Bottle Shop and Restaurant (Ref. 8.8.1078); (f) 8 May 2013: Multiple dwellings, Holiday Accommodation, Restaurants and Shopping Facilities (Ref: 8/8/1248); (g) 29 January 2014: Change to conditions for Approval Ref. 8/8/1248; (h) 29 February 2016: Shopping Facility, Business Facilities and Restaurant (Approval Ref. 8/8/1411); (i) 7 December 2016: Operational Work (Engineering) associated with Approval Ref. 8/8/1411 (Ref. 8/10/487); (j) 31 August 2017: Outdoor Sales (Car Hire) associated with 8/8/1411 (Ref: 4/4/1482); 47 Noise JER, p.4. para.19. -- 20 of 40 -- 21 (k) 24 November 2017: Operational Work (Landscaping and Electrical) associated with Approval Ref. 8/8/1411 (Ref. 8/10/602); and (l) 29 April 2019: Change to Approval Ref. 8/8/1411 (Ref. 8/8/1411). [53] The current development approval for, and lawful uses of, the land in the existing building allow shopping facilities, business facilities and restaurants. The building accommodates a range of commercial uses, but there are vacant tenancies on both levels. The ground floor tenancies are a number of food outlets/restaurants, a convenience store, a homeware store and a car hire office. The first floor tenants include a Thai massage parlour, a day spa and a tutoring business. [54] The adjoining land to the north is the appellant’s four level “Roydon Beachfront Apartments” complex used for both tourist and permanent accommodation purposes. Holiday makers and permanent residents enjoy a tropical garden setting and beach frontage along Vasey Esplande. The orientation of the Roydon complex is stepped and tapered from the Vasey Esplanade frontage and angles south westerly towards the rear common boundary with their living areas and balconies overlooking the carpark toward the building on the subject land. The outlook from the several Roydon units varies depending on their setback and height. Some have a direct line of sight into the adjoining car park; most have a view of the adjoining building; some are afforded greater separation from the adjoining building, and enjoy a wider landscaped area in between, than other. [55] Specialty retail food and convenience uses are focused on the “T” intersection of Trinity Beach Road and Vasey Esplanade at which the subject site is located. This mix of uses stretches back on the northern side of Trinity Beach Road to its intersection with the roundabout at Jamieson Street. [56] On the opposite southern corner of the “T” intersection of Trinity Beach Road and Vasey Esplanade is a single-story building comprising a restaurant with open decks facing out to the roads and beach. Adjoining the site to the west is public space containing a bus set down area and a turnaround, public toilets, and small area of open space. [57] Trinity Beach is a beachside suburb situated about 22 km north of the Cairns CBD. The suburb is a significant permanent residential area as well as a holiday accommodation destination. It is a popular destination for day visitors, especially on weekends, when significant use is made of the long esplanade park and swimming beach. The permanent and tourist accommodation areas spread throughout the streets. It has a greater concentration of tourist accommodation closer to the beach, and with permanent residential uses dominating the balance of the suburb. [58] Trinity Beach is served by a spine collector road Trinity Beach Road from the Captain Cook Highway. Travel to the land from another suburb necessitates travel from the Captain Cook Highway along the length of Trinity Beach Road towards the “T” intersection with Vasey Esplanade which extends along the breach frontage. Travel will be by motor vehicle, and, although less likely, by bus termination behind the land. [59] Whilst the no lay witness statements were tendered in support of the appellants’ position, the 52 submissions made against the proposal bare in evidence as part of the common material tendered by consent and to which regard must be had in the -- 21 of 40 -- 22 assessment pursuant to s 45(5)(b) of the Act. The submissions do not have the force of sworn evidence, and they are further weakened because they are in substantially similar terms apparently authored by Brazier Motto town planners and signed by the relevant submitter resident. [60] In any event, for the issue of noise amenity the co-respondent was put on notice about the resident’s concerns with Mr King’s Noise Impact Assessment report then before the Council as follows: 1. It is completely unrealistic that nay noise emanating from the gym, including music, patron conversation and vehicles can be adequately mitigated to ensure there are no adverse impacts on the residential amenity of the Roydon Apartments. 2. It is unrealistic to expect that the level of amplified background music for high intensity classes within the tenancy not exceed 70 db(A) at 3 metres form the sound source. 3. There are significant concerns that excessive noise will be generated by patrons loitering in the car park area near the ingress or egress to the gym before and after their class. 4. The report fails to recognise that the Roydon Apartments comprises 4 storeys, and a two meter acoustic barrier (then proposed) will not provide any noise mitigation to units located on levels 2, 3 or 4. [61] Evidence of amenity was lead from the town planning experts and noise experts. [62] There is no dispute that the noise likely to be generated by the gym will exceed measurable acoustic standard. So much is made plain by the joint expert report by the noise experts. In doing so they had regard to various documents noting the nature and scope of use and previous noise assessments of Mr King which is part of the common material. [63] The experts identified three potential adverse or detrimental noise impacts for consideration and assessment in respect of the proposed development, being: 1. The noise generated between 04:45 and 07:00 by the arrival of cars to the car park and subsequent departure of these cars from the car park; 2. The noise generated during the period 04:45 to 07:00 by the closure of the doors and boots of cars parked in the car park including the noise typically generated by motor vehicle remote keyless entry systems; 3. The noise generated from within the gym due to the exercise activities conducted inside the premises. [64] To quantify the level of noise generated by the arrival and departure of cars to and from the carpark, and the level of noise generated by the closure of car doors and boots, the noise experts conducted a structured series of onsite noise level measurements during the period 5.00 am – 7.00 am on 14 July 2020.47 Unattended 47 Noise JER, p.4. para.19. -- 22 of 40 -- 23 noise logging was conducted over the period 7.15am on 14 July 2020 to 1.15pm on 21 July 2020. The data obtained from this log was subsequently analysed by Mr King and distributed to Mr Brown and Mr Byers for review and consideration.48 Mr Brown and Mr Byers then undertook independent analysis of the results of the attended noise measurements and the unattended noise logging data. Each of Mr Brown and Mr Byers conducted further acoustic calculations.49 [65] Prevailing ambient instantaneous noise levels measured from the balcony of Unit 119 Roydon Beachfront Apartments over a seven-day period between 04:45 and 07:00 was 51 -77 dBA and averaged in the range of 55 – 57 dBA. The measured level of noise generated by the described noise sources from the carpark was “well within the 51-77dBA range of the ambient noise levels and quite comparable to the 55-57 dBA average value of the ambient noise levels.”50 [66] They opined that “having regard to the results of the attended noise level measurements together with the most likely distribution of motorcars within the car park that would be expected to result during the period of 04:45 to 07:00 with the gym operational” the level of noise generated “is unlikely to exceed the relevant sleep disturbance criteria applicable to the bedroom spaces of the residential units. If the emitted noise levels were to exceed the sleep disturbance criteria, this outcome would occur only under abnormal conditions and would result in only marginal exceedance of the criteria.”51 [67] Notwithstanding that the noise from these sources would “not result in unacceptable levels of noise emission to the units of Roydon Beachfront Apartments” the experts considered that it would be appropriate to mitigate against the noise generated by installing an acoustical barrier along the common boundary of 3m in height (with such barrier offering a minor degree of additional attenuation when the car park was operating under abnormal conditions), and manage the noise by implementing a Noise Management Plan including a requirement for all patrons to minimise noise in the carpark and to park their cars as close to the access stairs as possible when attending the premises prior to 7am.52 [68] The noise experts also recommended migration and management measures to deal with noise generated from within the premises whilst the classes were conducted to ensure that adequate noise containment is achieved. The recommended measures included installation of a layer of fixed glass or solid sheeting over the existing sliding glass window in the northern façade to create a double-glazed window, and fitting acoustic seals to two unhinged doors on the western façade to terrace areas with the doors to be kept closed. Management measures included restricting patron and staff entry and exit to the southern doorway with that door being fitted with a self-closing mechanism.53 [69] Accordingly, if, as contended by the Co-Respondent and the Respondent, the relevant noise impacts are only those capable of empirical measurement (with which I 48 Noise JER, p.4. para.20. 49 Noise JER, p.4. para.21. 50 Noise JER, para. 23(v), p. 5. 51 Noise JER, para. 23. 52 Noise JER, para. 23] (iv) & 28. 53 Noise JER, paras. 26 & 27. -- 23 of 40 -- 24 disagree), from the activity of the F45 gym development can be designed and operated to avoid, mitigate or manage potential adverse or detrimental impacts by: 1. Limiting the use of the premises to class-based fitness training; 2. Limiting internal noise levels within the gym space: for amplified music or instructor speech to 70 dBA LAeQ,T measured at 3m from any loudspeaker; and for the dropping of weights to 95 dB(A) LAMAX,T measured from the point of impact. 3. Increasing to 3m the height of the acoustic barrier to be erected along the common property boundary with Roydon Beachfront Apartments; 4. Installing the acoustical upgrades to the proposed gym as described in the report; 5. Developing and implementing a Noise Management Plan. [70] In the submission of the Co-Respondent, the joint report of the noise experts demonstrates that approval of the proposed development will not have any unacceptable amenity impacts. I disagree. The evidence of the noise experts in using their specialist knowledge to undertake quantitative testing against standards and apply professional judgments is clearly a relevant to assess against and to have regard, but it is not the end of the matter. As Jones DCJ said in Bassingthwaighte v Roma Town Council:54 "While the evidence of appropriate experts must of course be respected and given due weight, the Court is not obliged to fall in with their assessment of what impacts other people ought find acceptable. Reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses" [71] Once the scope of the expert testing and opinion regarding the concentrated number of movements of cars and patrons to, from and within the carpark and building is largely confined to a scientific assessment, it remains necessary to consider the wider scope of acceptable acoustic amenity of affected residents, tourists and other users having regard to the character of the neighbourhood and accepting the design and management conditions recommended by the experts. Of course, the acoustic amenity of affected residents is poignant here. [72] This court has traditionally relied upon planning experts to make assessment of amenity while recognising that it is matter of fact upon which a layman’s opinion is as good as a planning expert. [73] Mr Buckly was alive to the concerns of the appellants saying that:55 “Well, there’s a level of familiarity between the operations of a car park with the – with Roydon; I accept that. Of course, what we’re 54 Bassingthwaighte v Roma Town Council [2011] QPELR 63 at [63] citing Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QPELR 224 at [51] and Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 at [61] and [92]. 55 T2-60/30-34. -- 24 of 40 -- 25 talking about here is a change and a very material change to the use of the car park at hours which I say are sensitive to residential living.” [74] However, he relied heavily upon his personal and professional familiarity of the area. He did not inspect the site and surrounds before 7 am and has never observed the patrons and operations of an F45 Gym. Mr Schomburgk and Ms Morrissy both conducted early site inspections and belatedly visited an F45 gym. Unfortunately, the town planning joint expert report was prepared before the publication of the noise expert’s joint report. Mr Buckley relied heavily upon giving utmost primacy to the strategic outcomes in s 3.3.1(1)(l) and s 3.3.1(7) of the Strategic Framework, which was not shared by the two other town planning experts Mr Schomburgk and Ms Morrissy who tended to defer to the quantitative and qualitative assessments of the noise experts and their recommendation conditions. [75] In the planning joint expert report, Mr Schomburgk opines that: “[79] The Strategic Framework provisions with which the Appellant says the proposal does not comply relate primarily to impacts on the surrounding amenity, and the relationship of the proposed use with the tourist accommodation and residential area in which it sits. [80] The impacts on the amenity of surrounding properties due to noise will be the subject of separate expert advice and opinion, and we have not yet received a Joint Report in that regard. However, I note Mr Buckley’s concerns … regarding potential impacts on noise and amenity due to the early starting time. While I agree that these have the potential for unacceptable impact, they are matters which, in my opinion, are capable of mitigation by appropriate conditions of approval and by management of the facility by its operator/management. I do not agree with Mr Buckley that these are matters that necessarily warrant refusal of the application.” [76] Relevantly, Ms Morrissy considered that: [93] I agree with Mr Schomburgk’s opinions…and provide the following comments on the parts of the Strategic Framework raised by the appellant: (a) the proposed development is intended to achieve a high standard of amenity and conditions of approval will assist in this respect; (b) I understand a key concern of the Appellant is the noise that would be generated by the proposed use, particularly in respect of early morning use of the car park. Mitigation and management measures are currently proposed and conditioned, though are also being further considered by the acoustic experts; … [94] Amenity impacts arising from potential noise and car parking demand generated by the proposed development are being assessed in further detail by other experts. Where -- 25 of 40 -- 26 these can be appropriately minimised and mitigated, I do not consider that approval of the proposed development would result in non-compliance with the Strategic Framework. [77] Ms Morrissy further opined in the Town Planning joint expert report at [95]: “In response to Mr Buckley’s opinions…, I agree that amenity is an important consideration and key issue in this appeal. In this case, the key element of amenity raised as a concern is that of noise. Without having the benefit of considering the results of the JER of the Acoustic experts, I am unclear as to whether the noise generated by use of the car park would be fairly described as ‘adverse’ or ‘detrimental’, particularly having regard to the noise mitigation conditions imposed by Council and possible additional recommendations that the Acoustic experts might make.” [78] Mr Buckley’s opinions did not change despite the receipt of the noise joint report. He explained his position this way:56 “Sure. I – I understand the point they’re making but I think, just to counter for that there’s a difference between meeting standards and a difference between not hearing it. And – and this goes back to some of the things I touched on in my statement about the 30 regularity and the timing of the – of the impost on people’s amenity and lifestyle but – you might put with a noisy garbage truck – just to use something completely different – one day a week. But if it’s twice a day, which happens around town here where – with the larger tourist accommodation houses that the amount of rubbish that’s being produced, that – that lifts, if you like, the tolerance to another level. And 35 the constant reminders of those sorts of intrusions and interventions, in my experience, are real and I take comfort from the scheme using the words “avoidance of impacts” as being important to suggest that one should take a very careful approach to those interfaces.” [79] It seems to me that Mr Buckley simply highlighted the facts and circumstances of the interface between the Roydon Apartments and the existing building on the land, in addition to real potential impacts arising from normal human behaviour within the carpark, o the stairwell and along the exposed balcony between 4.45am and 7.00am. It seems to me that opening hours with a commencement time of 5am (with cars and patrons potentially arriving from 4.45am) is not characteristic of the residential amenity experienced in this locality. [80] Mr Buckley considered it foreign to the characteristic of the neighbourhood for activity in the tourist and residential locality to start before 7 am.57 None of the town planners could identify any uses that commence operation in the Tourist Accommodation Zone at 5 am. [81] To the extent that there are any residual amenity concerns, the co-respondent and respondent contend that can be dealt with by the preparation of a management plan. They draw comfort from remarks in Harris v Scenic Rim Regional Council58 that: 56 T2-51/26-39 57 T2-54/5-47 58 Harris v Scenic Rim Regional Council (2014) 201 LGERA 12 at [238] -- 26 of 40 -- 27 “Conditions requiring management plans to address various issues implement an adaptive management approach. An adaptive management approach is a proper approach to deal with uncertainty as to potential impacts: Telstra Corp Ltd v Hornsby Shire Council at [162]-[165]; Ulan Coal Mines Ltd v Minister for Planning at [99]; Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347 at [131]; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd [2010] NSWLEC 48 at [181]–[185].” [82] I do not accept such an adaptive approach in the absence of a draft noise management plan is appropriate in a case such as this where the assessment against the benchmarks of the scheme draw sharp focus on amenity. [83] On the facts of this matter, the major source of potential adverse impact on the residential amenity of the residents of Roydon Apartments is the behaviour of the gym’s patrons in the carpark, on stairs and the exposed balcony entrance to the F45 Gym. In this regard, the proposal operationally concentrates car and people movements of up to 25 patrons arriving for the first session, and then a crossover of patrons 25 departing and a further 25 arriving, with a final 25 departing in the last session. This will occur within at least 15 minute windows in 45 minute intervals over the morning operating hours, and again in the evening class operating hours. The experts agree that the proposed increased 3 m acoustic barrier along the common boundary will generate negligible benefit under normal operating conditions of the car park (with apparently no consideration to the ingress or egress to the gym before and after their class). It is not clear to me what is meant by “abnormal conditions” or the nature and frequency of those exceedances. However, I note that the noise experts were open to the prospect that “under abnormal conditions” emitted noise levels would result in a marginal exceedance of the sleep disturbance criteria. I assume the proposed Noise Management Plan will promote normal conditions, but I am not assisted with any draft document to assess if or how it will realistically curtail “abnormal conditions” including likely conversational noise near along the first floor veranda as patrons enter and exit the gym before and after their class. Further, the noise experts maintain the recommendations limiting internal noise levels for amplified music or instructor speech within the gym space to 70 dBA LAeQ,T measured at 3m from any loudspeaker. It is not clear to me how this will be realistically achieved if the gym is to conduct its classes as expected. [84] It seems to me that the court is left with an evidentiary gap with an invitation to speculate about critical matters that are at the heart of the assessment and exercising its planning discretion under s 45(5) and deciding the appeal under section 60(3) of the Planning Act 2016 (Qld). [85] The predominant Strategic Framework requires regional growth and evolvement in a way that achieves a high standard of amenity (s 3.3.1(1)(l)), requires development is located, designed and operated to ensure that any potential adverse or detrimental impacts are first avoided, then mitigated then managed (s 3.3.1(7)) and requires that non-residential uses do not detract from residential amenity of the area (s 3.3.5(3)). Similarly, Tourist Accommodation Zone Code promotes an overall outcome for development to provide a high level of amenity including noise (s 6.2.24.2(3)(c)) supported by performance outcomes of consistency with the zone’s purpose, responsive management to the site and surrounds, and not adversely affect the tourist and residential character and amenity of the area including noise, dust. And likewise -- 27 of 40 -- 28 the, Sport and Recreation Activities Code complementary development and minimising adverse amenity impacts for neighbours (s.9.3.23.2(2)(b) & (c)), with performance outcomes requiring development to be located, designed and operated to avoid adverse noise impacts on nearby sensitive land uses (PO1) and to be compatible with the local character (PO3(b)). [86] On my assessment, I am not persuaded that the proposal achieves a high standard of amenity or is located, designed and operated to ensure that any potential adverse or detrimental noise impacts in the periodical concertation of arrival and departure of cars and patrons in the morning operating period are avoided. I do not accept that deferment by a prospective management plan is an appropriate way for residual amenity issues to be resolved. There remains in my view potential impacts at times of “abnormal conditions” reliant upon noise management plan to be policed by the operator to somehow avoid, mitigate or manage human behaviour of patrons outside the gym confines. In the absence of any draft plan to help me assess its capacity to effectively curtail potential impacts against the planning scheme benchmarks, I think the assessment process is left wanting. I am not satisfied that patron behaviour beyond the gym glass can be effectively managed this way. In any event, I think the noise of normal patron behaviour and interaction in the elevated areas of the building in the morning period will detract will from the tourist and residential character and amenity within an area zoned, and therefore erode its high level of amenity. I am bound to conclude that the activity generated in and around the gym at the interchange of the daily morning sessions is not complementary development and will not minimise adverse amenity impacts for neighbours being the nearby sensitive land uses and is not compatible with the local character. Location and Appropriateness of Use [87] The appellants contend that the proposed development would be an unacceptable use in this location. The co-respondent asserts that the proposed development would be an appropriate use in this location and is consistent with the provisions of the planning scheme because it is small scale, will compliment surrounding uses, support and meet the convenience needs of the local community, does not detract from amenity, generated notice will be avoided by conditions, there is a planning, community and economic need for the proposed development, and there are no traffic matters warranting refusal. The Council joins with the co-respondent. [88] This issue calls for assessment against the following benchmarks in Cairns Plan: (a) Strategic Framework s.3.3.5.1(3) requires that residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area, or compromise the role and successful function of centres through the hierarchy of centres. s.3.3.11.1(11) requires development for recreational activities that generate noise, light, dust, odour or other like nuisances are located, designed and operated to avoid impacts on sensitive land uses. (b) Tourist Accommodation Zone Code -- 28 of 40 -- 29 s.6.2.2.24(3)(a) requires short term accommodation is provided at a scale, density and in locations that service tourist needs. 6.2.24.2(3)(d) requires development facilitates opportunities for establishing tourist facilities and services within, and adjacent to, tourist accommodation to complement the tourist accommodation and enhance the attractiveness of tourist areas. PO3 requires that development is consistent with the purpose and overall outcomes of the zone. PO4 seeks that non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including (a) being located in highly accessible locations; (b) their proximity with other similar uses; (c) providing for the identified convenience needs of the community. (c) Sport and Recreation Activities Code s.9.3.23.2(1) requires sport and recreation activities are appropriately located, designed and operated. s.9.3.23.2(2)(d) requires development to provide sufficient onsite parking and manoeuvring for the use. (d) Parking and Access Code s.9.4.8.2(2)(a) requires onsite vehicle and bicycle parking facilities are provided to accommodate the demand generated by the development. PO1 seeks that onsite vehicle and bicycle parking is provided to accommodate demand generated by the development. [89] I will not repeat my above discussion about the appropriateness of the use in the location, in terms of generating noise, impacting sensitive land uses and detracting from residential amenity in the area, is relevant to and significantly overlaps with the issue of the locality of the use when also assessed against ss.3.3.5.1(3), s.3.3.11.1(11) and s.9.3.23.2(1). [90] Since the land and its building is already designated for non-residential uses and it is of such a nature that there is no relevant detraction from the role and function of centres through the hierarchy. This leaves further assessment against the provisions relating to tourism, local community, and car parking. Service complement and enhance the attractiveness of tourist areas. [91] The purpose of the Tourist Accommodation Zone Code is to provide for short term accommodation supported by community uses and small-scale services and facilities in locations where there are tourist attractions.59 The benchmarks promote this purpose by requiring the proposal to serve the tourist needs, compliment tourist accommodation, and enhance attractiveness of the tourist area. 59 Section 6.2.24.2(1) -- 29 of 40 -- 30 [92] The co-respondent submits that the proposed development is for a necessity of life, in circumstances where it provides a contemporary and convenient location for both residents and tourists to exercise. It draws support from the evidence of the economist Mr Duane, and the town planners, Mr Schomburgk and Ms Morrissy. [93] The gym will be conveniently located to the local resident and tourist markets alike near the beach being a well-utilised recreation area.60 Mr Duane opined that the tourist market would add to the demand for gym facilities in this location,61 and that the proposal would support the tourist and tourist accommodation industry.62 He considered this against a backdrop of the tourism economy in the area and more broadly. He acknowledge that over 5.7 million visitors were recorded in 2019 to the Cairns local government area.63 The commensurate tourism expenditure in the Cairns local government area in 2019 totalled $3.8 billion dollars.64 Total tourism retail expenditure is projected to grow by 2026 at an average of 4.1%.65 Accordingly, tourism adds 20% to 30% to retail spending broadly in the Cairns economy and higher in key tourist locations such as the Northern Beaches.66 Mr Duane illustrated by map the concentration of the tourist accommodation facilities within the catchment area, particularly within walking distance of the proposed development. [94] As noted by Mr Schomburgk, the proposed F45 gym has tailored programs/memberships for short periods of time that would suit a short-term visitor to the Trinity Beach area.67 He opined that a land use like the proposed is an “integral element in the formation and maintenance of a vibrant and attractive residential and tourist community”.68 He explained that with the ever increasing popularity of fitness centres for residents and with the attractiveness of Trinity Beach for tourists there is “a community benefit in having this type and scale of facility in a conveniently accessible location, such as this.”69 Mr Schomburgk concluded that the proposal would support the local community “because it offers a land use that is increasingly popular (as evidenced by the growth of the fitness industry) and will serve local residents as well as tourists that might be accommodated in the many tourist accommodation complexes in the immediate vicinity”.70 Mr Schomburgk also remarked in the joint planning expert report that “the proposal will add to the attractiveness of Trinity Beach as a tourist destination, by adding to the convenience of a fitness facility for tourists, thereby responding ‘to the changing needs and expectations of the tourism industry….’ and meeting ‘the varying needs of visitors to the region’”.71 Mr Duane gave similar oral testimony.72 [95] Similarly, Ms Morrissy was of the opinion that the proposed development “adds to the experiences the community can have at Trinity Beach”.73 She opined that an 60 Report of Duane, para.5.1(f). 61 Report of Duane, para.5.1(e). 62 T2-8, L1-10. 63 Report of Duane, para.4.12. 64 Report of Duane, para.4.12. 65 Report of Duane, para.4.12. 66 Report of Duane, para.4.13. 67 Statement of Schomburgk, para.9 68 Town Planning JER, para.75. 69 Town Planning JER, para.76. 70 Town Planning JER, para.84. 71 Town Planning JER, para.85. 72 T2-8/1-10. 73 Town Planning JER, para.93(e). -- 30 of 40 -- 31 appropriately designed and managed proposal could comfortably co-exist with tourism accommodation uses and other commercial uses that occur in the area.74 [96] The gym is proposed to occupy three tenancies comprising a total of 344m 2 which includes 252m 2 for exercise space, and the balance 82m 2 for amenities, changerooms, storage and administration. While the physical gym facility will occupy a relatively small space, it will provide more than a small-scale service, which is concentrated in 45 minutes class, with at least 15 minute intervals in blocks of operations on weekday mornings and afternoons, and weekend morning. Extrapolation of the maximum patrons for each class shows the gym’s potential to attract up to 1125 persons every week. Mr Schomburgk and Ms Morrissy could not point to any other uses that draws that number of persons. [97] While the proposal will serve the tourist needs, on my assessment that would be very limited and marginal having regard to the nature and type of specific gym use limited to classes only, capped class sizes, and membership (including casual ad hoc membership). Only to that limited extent will it compliment the tourist accommodation. The potential to enhance attractiveness of the tourism area of Trinity Beach is also limited in the same way. Further, rather than enhance the tourist attraction to the area, the gym will predominantly serve the wider residual community drawn from a wider trade area, and who will necessarily converge on the tourist area for their particular class based destination gym. Parking [98] The Sport and Recreation Activities Code and Parking and Access Code require that development provides sufficient onsite parking and manoeuvring for the use and demand generated by the development. The appellant may provide car parking in accordance with the minimum rates set out in Table 9.4.8.3.b, or provide on-site vehicle to accommodate the demand generated by the development. [99] The co-respondent and respondent rely upon the evidence of Mr Douglas who was the only traffic expert to give evidence. [100] Mr Douglas reviewed the proposal75 and the current site layout, including existing parking provision.76 In his oral evidence Mr Douglas affirmed that his report adopted a floor area of 420m² for his parking assessment77 rather than the 334m² adopted by the town planning experts.78 None of the town planners gave evidence as to the correct calculation of the relevant GFA by reference to the current development plans and the planning scheme provision. [101] He considered that the mix of uses in the building is unlikely to result in the peak parking demand of the individual uses coinciding to the extent that occurs in a supermarket anchored shopping centre. He opined that the uses are likely to have varying peak parking times.79 74 Town Planning JER, para.96. 75 Report of Douglas, p.5, s.3. 76 Report of Douglas, p.6, s.4.0. 77 Report of Douglas, paras. 9, 10 & Table 4.1, noting the correct sum of the areas if 440m2. 78 Town planning JER, p. 7, para.42, apparently excising the staff room and storage area of 96m2. 79 Report of Douglas, p.6, para.18 -- 31 of 40 -- 32 [102] Mr Douglas opined that many occupiers of the nearby residential facilities would not drive to the subject site.80 Similarly, he expected that tourist patronage to the subject site are likely to be made on foot.81 And he noted the convenience of the bus service that runs to and from Kewarra Beach, Trinity Beach, Trinity Park, James Cook University, Smithfield, Cairns Hospital and the Cairns CBD,82 at half hourly services on weekdays between 6am and 5.30pm and hourly from 5.30pm to 10.30pm. [103] Mr Douglas relied upon an AusTraffic parking survey undertaken between 2 July and 4 July 2020 which found that car-parking on the subject site did not exceed 49% of capacity at any time, and that approximately 19 spaces were available during the peak demand period.83 A greater number of parking spaces were found to be available by the AusTraffic survey at the times the proposed gym would be undertaking training sessions.84 He surmised that the 29 day parking survey demonstrated that ample parking spaces are available within the subject site and on the surrounding street within close proximity of the land at the present time.85 The survey results show that 22 parking spaces or more were available at all times, at a minimum, onsite during the period in which the survey was undertaken.86 Parking occupancy did not exceed 33% on the surrounding streets at any time during the period in which the survey was undertaken.87 He opined that the parking surveys indicated that the proposed gym is unlikely to result in any relevant parking overspill.88 He further opined that the proposal is not expected to generate parking demand that would result in overfill parking beyond the subject site.89 And even in the unlikely event that parking overfill was to occur, he considered that there is ample spare parking capacity available on surrounding streets.90 [104] After cross-examination, I have found Mr Douglas’s assessment wanting both quantitatively and qualitatively. Even within the bounds of Mr Douglas’s assumptions there is still a shortfall of seven car parks required by Table 9.4.7.3b to meet the theoretical demand generated by the use.91 He has sought to overcome this outcome by treating the proposal as being within a centre zone and assumed that local residents and tourists will make up a significant proportion, which is not borne out by any evidence. [105] It seems to me that insufficient weight has been given to the likely peak demand generated by the proposed development compared to the previously approved car parks (especially during usual business hours) available to meet the demand. Relevantly for this assessment, court must have regard to the prescription of 36 onsite car parks as required by existing approval for the land pursuant to condition 8 of the Development Permit for Land (8/8/1411). These will be used for onsite parking and manoeuvring in conjunction with the other commercial tenancies and uses in the building. This is already less than the scheme requirements of 1 space per 25m 2 80 Report of Douglas, p.6, para.17. 81 Report of Douglas, p.8, para.24. 82 Report of Douglas, p.7, para.19 83 Report of Douglas, p.15, para.39. 84 Report of Douglas, p.15, para.40. 85 Report of Douglas, p.9-14., Table 5.1 and para.34-35. 86 Report of Douglas, p.13, para.34. 87 Report of Douglas, p.13, para.35. 88 Report of Douglas, p.15, para.42 & 43. 89 Report of Douglas, p.16, para.43. 90 Report of Douglas, p.16, para.44. (AB, p.1007) 91 Report of Douglas, p.7, Table 4.1 -- 32 of 40 -- 33 applicable to shops, office, and food and drink, which equates to 86 spaces.92 I am also guarded about the utility of AusTraffic survey data as a reliable indicator of current car park demand in circumstances where many of the building’s tenancies are vacant, and the impacts of the COVID-19 pandemic at their peak in the months of May – June 2020. Instead of 22 parking spaces or more being available at all times, when regard is had to the existing approval and pro rata allocation of carparks across each of the tenancies in the whole building, there are only six earmarked for the three tenancies proposed for the gym. The minimum rates in Table 9.4.8.3.b required for Indoor Sport and Recreation (Gym) out of centre, equate to minimum number of 23 car spaces for this proposal using the area of 334m². This would result in a deficit of 17 spaces when using the table of minimum rates, which does not meet the benchmarks to a significant degree. [106] On my reckoning of the evidence, these deficiencies will further increase at a time when two classes run in sequence. That is up to 25 patrons arriving and waiting, for the previous 25 patrons to depart within the 15 minute window between every 45 minute class session. Of course, the out of business hours of operation for the proposed gym will enable the full utilisation of the car park, however, demand will increase at session cross-over times. But at times when the gym’s operational hours overlap with the building’s other commercial business there will be greater demand and competition for onsite car parking across all the tenancies in the building. [107] I am not satisfied that the proposal provides onsite parking and manoeuvring sufficient for, or to accommodate, the demand generated by the use contrary to the benchmarks. Community Need [108] The co-respondent and Council contend that there is demonstrated town planning, community and economic need for the proposed development. [109] The matter community need involves consideration of matters promoting physical wellbeing of the community including convenience, proximity of like uses, accessibility, choice, range, depth, competition, price, improved services and facilities in a locality, and user’s amenity.93 [110] Need, in planning terms, is widely interpreted as indicating a facility that will improve the ease, comfort, convenience and efficient lifestyle of a community.94 Need does not mean a pressing need or a critical need.95 Consideration of need is determined from the perspective of the community and not that of the developer, commercial competitors or submitters. These principles are reflected in the Explanatory Notes for the Bill that was enacted as the Act while explaining s 45(5)(a)(ii) by reference to planning need: 92 2170m2 total GFA, apply rate of 1 space per 25m2 = 86.8 – adopt 86 93 Fabcot v Cairns Regional Council [2020] QPEC 17 at [29]; Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245, 249-250; Cut Price Stores Retailers v. Caboolture Shire Council [1984] QPLR 126 at 131; Roosterland Pty Ltd & its agents v. Brisbane City Council [1986] QPLR 515, 517; and Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193, [21]. 94 Murphy v Moreton Bay Regional Council & Anor (2019) QPEC 46 at [506], citing Isgro v Gold Coast City Council & Anor [2003] QPELR 414 at [21]. 95 Cut Price Stores Retailers v Caboolture Shire Council (1984) QPELR 126 at 131. -- 33 of 40 -- 34 “There is considerable judicial authority about need in a planning sense. Generally it does not refer to a pressing or urgent need, but refers to whether the community’s interests in general, as opposed to the proponent’s, or another individual’s interests would be well served by a particular decision. For this reason need cannot be conflated with demand for a facility or service. It is a relative concept so it is not desirable to seek to define it in statute. It is best established on a case by case basis having regard to the circumstances of each case.” [111] These matters are directly relevant to an assessment against PO4 of the Tourist accommodation zone code which seeks an outcome that non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including (a) being located in highly accessible locations; (b) their proximity with other similar uses; (c) providing for the identified convenience needs of the community. [112] Mr Schomburgk opined that a land use like the proposed is an “integral element in the formation and maintenance of a vibrant and attractive residential and tourist community”.96 He saw benefit in the co-location of the proposed gym with the other facilities offered from the premises “especially for the convenience of tourists who may not be familiar with the region.”97 Mr Schomburgk testified that:98 “[T]he proposed development is one which will enhance and improve the quality of life of residents of, and visitors to, Trinity Beach. Gymnasia, and F45-type of gym in particular, provide a valuable service to the community in terms of physical (and often, as a result, mental) health and well-being, and the surge in membership of such facilities in recent years is testament to the community’s desire to avail themselves of those facilities in order to improve their overall well-being.” [113] Ms Morrissy analysed the sport and recreation uses in the surrounding area. She observes in the planning joint expert reports that whilst it may appear that there are a high number of indoor sport and recreational facilities available in the Northern Beaches region it is significant to note that “there are a variety of types of facilities and services offered” which “are located in different locations, so as to be convenient and accessible to a number of local areas.”99 In this regard she noted that the proposed gym will serve the local community and will provide a different type of fitness club to other indoor sport and recreation facilities in the immediate and broader area.100 She explained:101 “For some people, a fitness or workout regime is part of a daily routine. Even when travelling for business or recreation, in my opinion, the desire to exercise can be commonplace. This is evidenced by the fact that many hotels and resorts offer gyms on the 96 Town Planning JER, para.75. 97 Statement at paras. 6 – 8. 98 Statement at para. 5; See also [158] Town Planning JER (Morrissy). 99 Town Planning JER, para 125 – 126. 100 Town Planning JER, para.93(c). 101 Town Planning JER, paras. 96 – 95. -- 34 of 40 -- 35 premises. In this regard, I consider an indoor sports and recreation use is not out of place in the Tourism accommodation zone; and that where appropriately designed and managed, the use can comfortably co-exist with tourism accommodation uses and other commercial uses that occur in these areas. The F45 model is a contemporary and popular way to exercise, with seemingly wide-reaching appeal (given there are F45 gyms internationally). The presence of an F45 gym in a tourism location, would in my opinion, serve as a positive contribution, given its popularity.” [114] The planning evidence also highlighted the positive benefit of the proposal filling a long term vacancy in the building and will be largely compatible with surrounding businesses, including bars, cafes and restaurants. [115] Mr Duane, who reported on economic need, also considered that the tourist market would add to demand for gym facilities, that the development would be conveniently located to the local resident and tourist markets near the beach and that the proposed development would occupy vacant tenancies that it would be “economically prudent to activate and occupy with a use that would be sustainable and vitalise the subject site.”102 [116] Subject to my further discussion below about economic and planning need, I am satisfied the gym will provide a community need but one limited by the nature, scope and times of operations of this particular proposed F45 Gym. The proposal will provide for a more conveniently located gym in a highly accessible location for local residents (alongside the broader community in the trade area). However, the proposal will be limited in its promotion and improvement of physical wellbeing of the local community, and it will provide limited competition and choice for the benefit of the community. This is because of the narrow scope of the proposed use as an F45 gym which limits itself to class workouts, of set times, with one class as a time of up to 25 people per class, and within confined morning and evening operating periods. Economic Need [117] Economic need involves consideration of whether there is ‘unsatisfied economic demand’ and whether the proposed development is necessary to cater for that demand.103 A fundamental element of economic need is that the development, if approved, would be financially viable.104 [118] The co-respondent and respondent point to the evidence of economist, Mr Duane, to supports a finding that there is sufficient demand for the type of development proposed. On the contrary, the appellant submits that his evidence is too general extrapolating need from population data and gym incidence, without particular regard for the particular F45 gym proposed, absence of distributional context of gym generally and no analyses of economic demand for the proposed gym. 102 Duane Report at 2.12 and 5.1. 103 Cf. Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435, [53]. 104 All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158. -- 35 of 40 -- 36 [119] Mr Duane broadly analysed the fitness and gymnasium industry. He identified Australian Bureau of Statistics data that showed that gymnasium participation, second only to walking, is an increasing and highly participated organised sport and physical recreational activity for Australians. [120] Demographically, Mr Duane recognised that fitness/gym activities were more popular with females, them having a higher participation rate of 18% compared to males with 15.9%. Younger people aged 18 – 24 years old participated at the rate of 28.9% cascading to the participation rate of 65 year olds of 8.6%. Mr Duane also noted the variation of establishments from 100m 2 for small operators to 1500 – 2000m 2 for large full service gyms with weight rooms, cardo workouts, pools etc. Mr Duane barely asserts that class-based gyms have formed an increasing part of the fitness market, with particular mentioned given to F45 gyms as an indoor class based gym over 45 minute sessions using 2700 exercises suited to the class theme; and CrossFit studios as indoor and outdoor programs. More broadly, memberships accounted for about half of a gym’s total revenues. [121] Using IBISWorld data, Mr Duane opined that the Australian gym and fitness industry had grown substantially in the decade with 2,856 “gymnasiums and fitness centres” (or one gym for every 8,000 people) in 2008/9 to 6,601 “gymnasiums and fitness centres” in 2019/20 or one for every 3,900 people. Mr Duane also relied upon information from the StepzFitness website boasting some 4,400 gyms and fitness centres in Australia or one for every 5,800, and relied upon the website of Physical Activity Australia indicating that about 30% of people have a gym membership, and with Australia’s aging population is also forecasted to stimulate demand for more class activates in full service gyms. More locally, Mr Duane listed 37 gyms in table 3.1 and plotted them on Map 3.1 within the Cairns urban area, which equates to one gym for 4,189 people.105 [122] Based on the information from websites and publication, Mr Duane deduced that a gym is “usually provided for a population of around 4000 to 6000 persons throughout urban areas of Australian and particularly in Cairns urban area given a young population who would likely use gymnasium facilities to a higher degree than the Australian average and with tourists adding to demand.”106 He later adopts a ratio of one gym for approximately 5,000 persons.107 [123] In apparent support of demand in the tourist market, Mr Mr Duane identified that:108 1. over 5.7 million visitors were recorded in 2019 to the Cairns local government area; 2. tourism expenditure in the Cairns local government area in 2019 totalled $3.8 billion dollars; 3. total tourism retail expenditure is projected to grow by 2026 at an average of 4.1%; 4. tourism adds 20% to 30% to retail spending broadly in the Cairns economy and higher in key tourist locations such as the Northern Beaches; 5. the concentration of the tourist accommodation facilities within the catchment area, particularly within walking distance of the proposed development.109 105 Duane Report - Not “27” as stated in para. 3.15, or “36” as stated in para. 3.16. 106 Duane Report para. 3.17. 107 Duane Report para. 4.4. 108 Duane Report para. para.4.12. 109 Duane Report, Map 4.2. -- 36 of 40 -- 37 [124] Mr Duane identified a catchment for the proposed gym comprising Kewarra Beach and Trinity Beach is said to be based on regional and local accessibility, the pattern of urban development throughout the region, significant physical barriers and the provision of competitive facilities. The catchment extends up to 3 km to the west, and is restricted to the east by the coast, to the north by Deep Creek and to the south by Earl Hill. The catchment population is currently 12,390 and is projected to increase to 14,080 by 2036. Based on the catchment population and using the ratio one gym every 5000 persons, Mr Duane posited that the catchment could sustain 2 to 3 gyms overtime. [125] Mr Duane undertook an analysis of the catchment area gym supply and identified only one other gym 1.7 km form the appeal site. This 15 year old gym offers strength training, group fitness, spin classes, bars/benches, personal training, beginner programs, and Keiser Air Express Circuit. There are also the identified gyms operating or approved to the north and south of the catchment, including the F45 gym at Trinity Park. [126] It seems to me that the evidence of economic need is infected by various shortcoming. [127] First, I think the ratio of 1:5000 adopted by Mr Duane resulted from a misinterpretation of the reliable data. It seems to me that the only independent and reliable data source identified by Mr Duane is the IBIS World 2020 report. However, I think he misdirected himself by relying on the figure of 6601 for ‘establishments’ on page 45 of Exhibit 4 as equating to ‘gyms and fitness centres’. The industry definition at page 5 of Exhibit 4 provides that ‘Industry businesses mainly operate health clubs, fitness centres and gymnasiums, and provide a range of fitness and exercise services’. When reading the report harmoniously, having regard to the definition of establishment, the industry definition and the passages appearing at pages 13 and 16 of Exhibit 4, it seems to me that leave no doubt that an establishment is not limited to ‘gyms and fitness centres’. Approaching the report this way results in the figure of 6601 establishments, equating to one establishment for every 3900 people This is more congruent with the ratio of gyms to people demonstrated for the Cairns local government area having a higher concentration of 4000 gyms per capita. Similarly, the comparative analysis demonstrates that the 5 establishments (including Pilates, yoga and gym facilities) in the catchment is also consistent with the saturation of establishments according to the IBIS World 2020 report. [128] Secondly, the economic need analysis lacks distributional context in relation to the catchment. Of the total gyms in Cairns, six are class-based gyms, including four F45 gyms located respectively 4.7 km, 14.7 km, 20 km and 31.4 km from the appeal site. Eleven established gyms are located about 10 km from the appeal site with the closest being only 1.7 km from the appeal site. Further, in the course of giving evidence, Mr Duane acknowledged the approval on 21 August 2020 of an additional class based cross training gym on the Cook Highway at Clifton Beach, bringing the proximate count to 12. I have insufficient evidence of the population within the 10 km radius of the site to assess that concentration proximate to the local community. In any event, there are five fitness establishments (including Pilates, yoga and gym facilities) already within the catchment which exceeds the ratio one for every 3900 people according to the IBIS World 2020 report, being 3.5 establishments. [129] Thirdly, the economic need analysis has insufficient regard to the demographic of people within the catchment. According to Mr Duane’s methodology, a gym is -- 37 of 40 -- 38 usually provided for a population of around 4000 to 6000 persons throughout urban Australia and the younger population of Cairns is likely use gyms to a higher degree than the Australian average with tourists adding to demand.110 It is not clear to me how Mr Duane supposed the higher younger population or tourist demand (as distinct from visitor numbers and retail expenditure)111 for gyms in Cairns. Further, when he adopted a ratio of one gym for every 5000 people, it seems to me that Mr Duane gave little or no weight to his later analysis of the socio-economic analysis that “a lower proportion of residents aged 20-40 years and over 60 years”.112 [130] Fourthly, the economic need analysis has insufficient regard to the practical accessibility of people within the catchment. In terms practical accessibility from people within the catchment, the community is served by a general gym, and it would be shorter and quicker for a Kewarra Beach resident to travel to the F45 Gym at Trinity Park, than to travel to the proposed development. The distance and travel time from Kewarra Beach to the site (5.7km and 9 minutes respectively) is comparable to the distance and travel time from Kewarra Beach to the existing F45 Gym in Trinity Park (5.1km and 8 mins respectively). Additionally, insufficient regard has been given the likelihood some Kewarra Beach residents choosing to travel north to attend the recently approved gym gym rather than to Trinity Beach. [131] On my reckoning of the evidence of economic need I am not satisfied there is a demonstrated unsatisfied economic demand for a class-based gym (or indeed any gym) in this planning area, or that the proposed development is necessary to cater for any demand. Planning Need [132] Even if demonstrated, the existence of economic need is not sufficient; consideration must also be given to planning need, which I also find is not demonstrated. [133] Planning need involves consideration of the extent to which a proposed development can be accommodated by existing planning provisions, which involves consideration of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development. Accordingly, the consideration of need is not to be undertaken in a vacuum and ought always be cognisant of the established policy and community expectations found the town planning benchmarks and controls.113 In Luke v. Maroochy Shire Council,114 Wilson SC DCJ said: “The undeniable purpose of a town planning scheme is to regulate, within reasonable limits, consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area.” 110 Duane Report para. 3.17. 111 Duane Report para. 4.5 – 4.11. 112 Duane Report para. 4.5. 113 Cf. Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350, [5]. 114 Luke v. Maroochy Shire Council [2003] QPELR 447 at 459 at [55] per Wilson SC DCJ. -- 38 of 40 -- 39 [134] In Abeleda & Anor v Brisbane City Council,115 Mullins JA (with whom the other judges agreed) examined and distinguished the way need was considered under the former Act in Gold Coast City Council v K&K (GC) Pty Ltd116 and Redland City Council v King of Gifts (Qld) Pty Ltd117 which both applied its earlier decision in Bell v Brisbane City Council.118 Mullins JA contrasted the former site focused considerations in the face of conflict with a scheme with the broader considerations of relevant matter under the new Act as follows:119 “The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.” [135] Mr Schomburgk notes that the nearest facility to the proposed development is a small Pilates studio in the Blue Moon Resort, some 220m west of the site but that this is a specialised health-related facility quite different to the F45 type gym proposed. He opined that the proposed site would be an appropriate location for an F45 type gym as it would be complimentary to the existing uses at the building (some of which are quite closely allied with the gym use i.e. spa and massage facilities) and also would serve local residents and tourists in the Trinity Beach area. He saw benefit in the co-location of the proposed gym with the other facilities offered from the premises “especially for the convenience of tourists who may not be familiar with the region.”120 [136] While the planners acknowledge community need will be met by the proposal, which I have found, all three town planners could not point to any planning need for an F45 class-based gym, or any gym, with a commencement time of 5am on weekdays. And for the reasons set out above in relation to location and appropriateness of use, in my view the proposed development is not an appropriate location for the proposed when assessed against the benchmarks of the planning scheme in terms of acoustic amenity and parking. 115 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 at [46] – [50]. 116 Gold Coast City Council v K&K (GC) Pty Ltd (2019) 239 LGERA 409 at [60], [63], [66], [67] & [68]. 117 Redland City Council v King of Gifts (Qld) Pty Ltd (2018) 230 LGERA 374 at [116], [117], [161], [169] & [171], 118 Bell v Brisbane City Council (2018) 230 LGERA 374 at [50]. 119 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 at [51]. 120 Statement at paras. 6 – 8. -- 39 of 40 -- 40 [137] While there is limited demonstration of community need further, I am not satisfied that any planning need for the type of use would be appropriately satisfied by the development on the appeal site. Further, there is no evidence that the proposal cannot be accommodated by existing planning provisions, having regard to the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development. Conclusion [138] Fort these reasons, I not satisfied that the land is an appropriate location for the proposed F45 Gym; or that it will not unduly detract from existing residential character and amenity of the Tourist Accommodation Zone; or that there are other relevant matters that justify approval of the development application. [139] Therefore, I am bound to allow the appeal and refuse the development application. [140] I will hear from the parties about any consequential orders consistent with this decision. Judge DP Morzone QC -- 40 of 40 --