Positive attributes outweigh non-compliance: Planning and Environment Court of Queensland dismisses a submitter appeal in respect of a proposed 5-star resort complex in Airlie Beach

In brief

The case of Save Our Foreshore Inc v Whitsunday Regional Council & Ors; Meridien AB Pty Ltd (Receivers & Managers Appointed) (In Liquidation) & Anor v Whitsunday Regional Council & Anor [2023] QPEC 34 concerned two appeals to the Planning and Environment Court of Queensland (Court) against the decision of the Whitsunday Regional Council (Council) to grant a preliminary approval for a material change of use including a variation approval (Preliminary Approval) and a development permit for a material change of use for seven multiple dwelling units/short term accommodation units for a 46.7 metre high, 12-storey 5-star resort complex (Proposed Development) on land located in Airlie Beach, Queensland (Land).

The appeals were with respect to the Preliminary Approval and not the development permit component, and were as follows:

1. A submitter appeal by local community organisation, Save Our Foreshore Inc (SOF), against the Preliminary Approval (Submitter Appeal).

2. An applicant appeal against conditions imposed in the Preliminary Approval (Applicant Appeal).

The relevant planning scheme was the Whitsunday Planning Scheme 2017 (version 3.6) (Planning Scheme) and the variations sought to the Planning Scheme were as follows (at [9]):

(a) to increase the maximum building height to 47 metres;

(b) to make code assessable a resort complex up to 47 metres on the Land when assessed against the Canal Street Resort Complex Development Code, Landscaping Code, and Transport and Parking Code; and 

(c) to make accepted development building works for the Proposed Development.

The issues in dispute as agreed between the parties included the following (at [20]):

1. Relevance of the draft planning scheme.

2. Promotion of tourism and economic growth.

3. Protection of natural landscape values.

4. Height of the proposed buildings.

5. Need.

The Court found that whilst it is "…common ground that the height of the building exceeds that which is provided for in the [P]lanning [S]cheme" (at [22]) need outweighed the non-compliance with the relevant height limit.

The Court determined that the Submitter Appeal ought to be dismissed and adjourned the appeals to allow the parties to incorporate amendments to the conditions of the Preliminary Approval.

Relevance of the draft planning scheme

At the time of the appeals, the Planning Scheme was in the process of being amended (at [17]). As these amendments were not in force, they were not given any weight under section 45(8) of the Planning Act 2016 (Qld). However, the Court considered the Coty principal, as restated in the case of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, as follows:

"[21]    The Coty principle identifies two public interest considerations when considering development applications in an era when a new planning scheme is under construction but not yet taken effect…

[23]     The first public interest consideration is the avoidance, as far as possible, of a judgment which will render more difficult the ultimate decision as to the form that a planning scheme should take…

[24]     The second public interest consideration…is that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation…"

As the Council had already resolved to adopt the draft amendments, the Court determined that only the second public interest consideration is relevant (at [19]).

Court finds that the Proposed Development supports economic and tourism growth

The strategic intent of the Planning Scheme includes five themes with a strategic outcome proposed for each theme and includes land use strategies for achieving the strategic outcome. The strategic outcome for economic growth in section 3.2.2.1(1) of the Planning Scheme states as follows:

"The economic resilience, wealth creating and employment generating capacities of the Region's key sectors are protected and enhanced for present and future generations."

The land use strategies for achieving that outcome in section 3.2.2.2(7) of the Planning Scheme states as follows:

"…new or expanded tourist accommodation and ancillary [b]usiness activities are located in Airlie Beach…A major regional function facility is located adjacent to Airlie Beach Main Street and Esplanade area…"

The Court found that this theme was satisfied for the reasons that the Proposed Development provides tourism opportunities and is located within the relevantly identified area.

Court finds that the Proposed Development will not impact the "core values" of the local landscape

SOF alleged that the Proposed Development did not comply with the environment and heritage theme insofar as it relates to landscape values. The strategic outcome for this theme in section 3.2.3.1(1) of the Planning Scheme states as follows:

"The cultural heritage and life supporting capacities of air, eco-systems, soil and water are conserved, enhanced or restored for present and future generations."

The land use strategy for this theme in section 3.2.3.2(2) of the Planning Scheme states as follows:

"The core landscape values within the region are protected and, if practical, enhanced. The core landscape values include the urban gateways to Airlie Beach…as well as the significant visual backdrops as viewed from major scenic routes of…Shute Harbour Road…"

SOF alleged visual interruption to the core landscape values, to the extent that views to the ocean and the forested areas are considered "core landscape values". The Court accepted that there would be "no more than minor impacts" and did "…not consider that the proposal is inconsistent with the protection of the core landscape values…" (see [31] and [32]).

Courts finds that the positive attributes of the Proposed Development outweigh any adverse impacts because of non-compliance as to height

The Land is within "Precinct F" of the mixed use zone of the Planning Scheme, which has a maximum building height of 18 metres (see [33] and [38]).

The Court was satisfied that the "scale, character and built form" of the Proposed Development reflects its nature as a luxury resort (at [45]).

The Court then considered the Building Heights Overlay Code, in particular Table 8.2.5.3.2 of the Planning Scheme, which "…admits of the prospect of some development being of a greater height" (at [56]). The maximum height table is referenced in the acceptable outcome, but not in the performance outcome. The Court stated that "[a] proposal which does not conform to the maximum height in the table may still demonstrate compliance with the performance outcome" and concluded that "the [Proposed Development] would meet the performance outcome" (at [57]).

The Court went on to consider the proposed amendments to the Planning Scheme, which includes in a relevant performance outcome that the height of a building is not to unduly overshadow adjoining dwellings or dominate the intended streetscape character.

The Court accepted evidence that overshadowing would "not be unacceptable" and this evidence remained unchallenged (at [73]). Further, the Court held that the non-monolithic design of the Proposed Development reduces visual bulk by breaking the built form into components (at [75]).

The Court was satisfied that the Proposed Development would not dominate the intended streetscape character or otherwise have any undue impact on the streetscape (at [78]). The Court also accepted evidence that the Proposed Development would "make a positive contribution" (at [79]). 

The Court was satisfied that the positive attributes of the Proposed Development "…outweigh any adverse impact arising from the [Proposed Development's] non-compliance as to height" (at [90]).

Courts finds that there is a need in Airlie Beach for the Proposed Development

When considering the issue of need, the expert economists for the parties in their joint report had regard to relevant provisions in the following (at [91]):

• The Mackay, Isaac and Whitsunday Regional Plan.

• The Whitsunday Region Economic Development Strategy 2017-2021.

• Draft Regional Economic Development Strategy 2022-2025.

• The Whitsunday Destination Tourism Plan 2019-2024.

• The Strategic Framework of the Planning Scheme.

These documents, read together, recognise the importance of the tourism sector and the opportunity for diversity at Airlie Beach, including for high end accommodation (at [92]). It was recognised that Airlie Beach accommodation is "dominated by self-contained apartments" and "…none are to the 5-star level…" (see [94] and [95]).

The Court accepted that "…there is a public or community and an economic need for the proposal" (at [126]), for the following reasons:

1. The Proposed Development would involve the following community benefits:

   (a)    upskilling of local hospitality workforce to meet the standards of a premium hotel;
   
   (b)    additional employment;
   
   (c)    attracting high spending visitors;
   
   (d)    diversifying the premium accommodation options available in the Whitsunday region; 
   
   (e)    attracting the premium internation tourism market. 

2. The Proposed Development would "…address a public and community need to improve the extent and adequacy of facilities offered in Airlie Beach…where there is a clear gap in what is currently offered" (at [103]).

As to certainty that a five star operator could be secured, the Court was satisfied that one could be secured and the desired rating could be attained and retained having regard to the following (at [124]):

1. strong growing demand;

2. an upward trend of passengers through the airport;

3. an obvious gap in the market; 

4. the suitability of the location of the Land;

5. the range of facilities proposed;

6. the quality of the Proposed Development;

7. the cost efficiency of the design;

8. the opportunity for guests and visitors to enjoy premium views; 

9. the future potential for complementary development. 

Court finds support for the variation request

The Court stated that the "…preliminary approval for the material change of use supports the proposed variation request…" (at [138]) and "[t]he variations facilitate development of the kind subject to the preliminary approval but are otherwise generally in accordance with the rest of the [P]lanning [S]cheme" (at [137]).

Conclusion

The Court determined that the Applicant had discharged its onus that the Submitter Appeal ought to be dismissed. The Court therefore adjourned the appeals to enable the parties to consider the terms of an appropriate order, and to incorporate amendments to the Preliminary Approval to reflect the matters in the Court's judgment.