Planning and Environment Court of Queensland allows appeal for approval of a development application for short-term disability accommodation at Mount Tamborine

In brief

The case of SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Scenic Rim Regional Council (Council) to refuse an impact assessable superseded planning scheme application made by SDA Property Nominees Pty Ltd (Applicant). The development application sought an approval to develop land at 1-11 Eagles Retreat Place, Mount Tamborine (Site), with 11 Tourist Cabins and a communal leisure facility for short-term accommodation for people with disabilities and their carers and families (Proposed Development).

The superseded planning scheme for the development application was the Beaudesert Shire Planning Scheme 2007, which was in force as at 20 June 2018 (Planning Scheme).

The Council's position in the early stages of the appeal was that the Proposed Development ought to be refused, but later supported its approval subject to the imposition of reasonable and relevant conditions. This included, principally, a condition requiring that the Proposed Development be designed for specialist disability accommodation, which was accepted by the Applicant. The appeal, and approval of the application, was opposed by two submitters (Submitters).

The issues for the Court to determine were whether the Proposed Development complied with the Planning Scheme and whether, ultimately, the development application ought to be approved or refused in the exercise of the discretion under section 60(3) of the Planning Act 2016 (Qld) (Planning Act). In doing so, the Court also considered matters favouring both approval and refusal of the application and, in particular, whether there was a need for the Proposed Development.

The Submitters did not call any expert to give evidence in the appeal and did not cross-examine any of the Applicant's and Council's expert witnesses. The evidence of the expert witnesses engaged by the Applicant and Council demonstrated that either the Proposed Development complied with the Planning Scheme or that conditions could be imposed to bring the Proposed Development into compliance.

The Court was satisfied that the Proposed Development, with relevant conditions, demonstrated compliance with the Planning Scheme and allowed the appeal.

Court finds that the Applicant demonstrated compliance with all aspects of the Planning Scheme

The Submitters alleged that the Proposed Development did not comply with 27 provisions of the Planning Scheme. The Court had to determine whether there is compliance with the following (at [68]):

1. The Specific Assessment Criteria for the Escarpment Protection Precinct (namely Specific Outcomes SO1, SO4, and SO5).

2. The General Assessment Criteria for the Tamborine Mountain Zone Code (namely Overall Outcomes OO2, OO5, OO38, OO52, and OO58).

3. The Tourist Cabin Code (namely Specific Outcomes SO1, SO2, and SO3(a) and Overall Outcomes (a) and (b)).

4. The Desired Environmental Outcomes (namely sections 2.1.3(2)(1) and 2.1.3(3)(b)).

5. The Strategic Framework (namely section 2.2.11(1), 2.2.11(2)(c), 2.2.11(3)(a) and (c), 2.2.11(6) and 2.2.11(11)). 

After a detailed analysis of specific provisions in each aspect of the Planning Scheme and considering the relevant evidence provided by the experts engaged by the Applicant, the Court rejected the allegations of non-compliance and held that the Applicant had demonstrated that the Proposed Development complied with the Planning Scheme (see [102] to [275]). 

Court considers other relevant aspects of the Proposed Development

The Court also had to determine the following (at [69]):

1. Whether the Proposed Development is an appropriate use of the land.

2. Whether the Proposed Development would result in unacceptable visual amenity impacts.

3. Whether the Proposed Development is consistent with the amenity and character of the surrounding area.

4. Whether there are relevant matters that individually, or cumulatively, favour approval of the Proposed Development.

5. Whether there are relevant matters that individually, or cumulatively, favour refusal of the Proposed Development.

Court finds that the Proposed Development is an appropriate use of the Site

One of the Submitters argued that the Proposed Development was not an appropriate use of the Site, asserting that an appropriate use of the Site would be constituted by a dwelling. The other Submitter asserted that the Proposed Development was not an appropriate use of the Site as well, relying upon inconsistency with the amenity and character of the surrounding area; the inconsistent scale, bulk, built form, and intensity of the Proposed Development; the adverse impacts on the amenity of residents; the character of the surrounding area; and that not all the "large adverse impacts can be mitigated by conditions" (see [279]).

The Court did not accept the submissions, holding that they were inconsistent with the expert evidence and ignored that the Proposed Development complied with the Planning Scheme, and that the Proposed Development was consistent development in the relevant Tamborine Mountain Zone and Escarpment Protection Precinct (see [278] and [280]). 

Court finds that the Proposed Development would not result in unacceptable visual amenity impacts

The Court took into account the expert evidence and held that an approval, including conditions, of the Proposed Development would not give rise to unacceptable visual impacts for the reason that the Proposed Development had a limited visual catchment and thus impacts would be confined to a small number of properties (at [281]).

Court finds that the Proposed Development is consistent with the amenity and character of the surrounding area

The Court had to determine whether the Proposed Development was consistent with the amenity and character of the surrounding area, and in doing so, referred to its earlier reasoning. The Court considered the protection and maintenance of the amenity and landscape character values in the Tamborine Mountain escarpment, in the context of Specific Outcome SO1 of the Escarpment Protection Precinct (see [107] to [113] and [117]). 

In relation to amenity values, the Court accepted that the ecological values of the Site would be protected and maintained as the Proposed Development is setback from the well-vegetated south-eastern corner of the Site in respect of which rehabilitation and revegetation was proposed. The Court also held that the most pertinent contributors to the escarpment’s amenity, namely, the escarpment itself and the absence of development in the national park and conservation area leading to the escarpment, would remain unimpaired (at [107]).

In relation to landscape character values, the Court agreed with the expert evidence that the Proposed Development "…achieves an appropriate balance between built form and landscaping" (at [113]).

Court finds that relevant matters favouring approval outweigh those favouring rejection

The Applicant’s primary argument in support of approval was on the basis that the Proposed Development complies with, or can be conditioned to comply with, the Planning Scheme and, in this event, there are no planning reasons to warrant refusal (at 283]).

Even in the event of non-compliance with the Planning Scheme, the Applicant contended there were several matters that favoured an approval of the Proposed Development. The matters included that the Proposed Development would create a short-term tourism facility for people with disabilities in circumstances where such accommodation is not readily available in the region, that the Proposed Development is in the public interest, that the design of the Proposed Development provides for people with disabilities, that the Proposed Development will have no unacceptable impacts, and that there is a need for the Proposed Development (at [284]).

The Court accepted the Applicant's submissions that there was a need for the Proposed Development. The Court noted that the Planning Scheme "…recognises the importance of, and need for, short-term tourist accommodation on Tamborine Mountain" (at [294]). The Court accepted evidence from two economists, and held that "…there is currently a limited supply of short-term accommodation to meet the reasonable demands and requirements of people with disabilities" (at [301]).

The Submitters contended that several matters, either individually or cumulatively, favoured refusal. The Court’s finding that the Applicant demonstrated compliance with the Planning Scheme negated the Submitters' contentions that the Proposed Development is an overdevelopment of the Site; that it is inconsistent with reasonable community expectations for development in the area on the Site; that local infrastructure in the location did not support a proposal for non-residential purposes; and that there is no community, economic, or planning need for a proposal that warrants non-compliance with the Planning Scheme (see [305] to [307]).

The Court discussed community expectations, acknowledging various adverse proforma and non-proforma submissions objecting to the Proposed Development, and the statements of the Submitters (see [71] to [99]). The Court accepted that the Proposed Development was contrary to community expectations and would be taken into account in the exercise of the discretion, but stated that "[t]he content of the adverse submissions are not based on reasonable expectations…" and "…find little support in the technical evidence of the expert witnesses" (at [308]). As a result, the Court held that the community expectations submissions were "deserving of little weight" (at [308]).

Court’s exercise of planning discretion 

The Court reiterated that the Proposed Development complied with the Planning Scheme and that such carried "very significant weight" in the exercise of the discretion under section 60(3) of the Planning Act (at [311]). The Court referenced the case of Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPEC 16; [2019] QPELR 793 at [61], quoting "one would need strong reasons for refusing an application, which on its face, was consistent with the adopted planning controls" (citing Mackay v Brisbane City Council [1992] QLPR 65 at 67).

The Court stated that the "underwhelming" reasons in favour of refusing an approval proffered by the Submitters "...ought not to stand in the way of an approval" (see [305] to [312]). The Court termed the Proposed Development "a meritorious proposal", and held that it would have "no unacceptable impacts on amenity and character", that it complied with the Planning Scheme, and that it would "provide appropriate, and modern tourist accommodation, for a part of the community that are not well catered for" (at [313]).

Conclusion

The Court allowed the appeal and approved the application, subject to relevant conditions.