Is lack of negative impact an independent ground to justify conflict?

In brief - Court finds that development application conflicts with local planning scheme

The case Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54 involved an appeal against the decision of the Sunshine Coast Regional Council to refuse a development application made by Viridian Noosa Pty Ltd (Receivers and Managers Appointed) for a material change of use of 38 apartments in an approved, fully constructed resort development on Noosa Hill. The development application sought to provide for permanent residence as a lawful use of the existing resort. His Honour Judge Robin QC dismissed the appeal on the basis that there was a conflict with the Noosa Plan 2009, and there were not sufficient grounds to justify an approval despite the conflict.

Case

This case involved an assessment under section 326(1)(b) (Other decision rules) of the Sustainable Planning Act 2009 of the conflict of the development application with the Noosa Plan 2009 and whether there were sufficient grounds to justify an approval of the development application despite the conflict.

Facts

Sunshine Coast Regional Council refused development application

The development application was lodged with the council by Viridian Noosa under the Sustainable Planning Act and was subsequently refused by the council on the basis of a conflict with the Noosa Plan 2009.

The conflict related to the council's planned use of the existing resort for temporary tourist accommodation, rather than the permanent residential use proposed under the development application. The appeal was an appeal to the Planning and Environment Court against the council's refusal of the development application.

Decision

Permanent residential accommodation would conflict with planning scheme

His Honour Judge Robin QC found an inconsistency between the development application and the assessment table for the attached housing zone under the Noosa Plan 2009. The assessment table for the attached housing zone listed consistent and inconsistent uses. As His Honour noted, consistent uses:

...include detached house or community residence 'if not on lot 889 SP203086, being the Viridian Noosa Resort at Viewland Drive ...' or multiple housing 'if not on lot 889, (etcetera)', or, as further consistent use 'visitor accommodation, ... type 4 conventional' [at 23].

His Honour noted that inconsistent uses were those residential uses listed in section 9.20, being specific outcome O40.

His Honour concluded that a "finding of conflict becomes inescapable" [at 27] when one looked to the specific outcomes for the Noosa Heads locality, in particular specific outcomes O39 and O40. Specific outcome O39 set out consistent uses for the Noosa Heads locality, which provided:

O39: The following defined uses and use classes are consistent uses ... Commercial business Type 1 if an estate sales office; home-based business type 1; detached house; or community residence if not on lot 889 (etcetera); multiple housing if not on lot 889 (etcetera), and (e) visitor accommodation, types 1, 2, or 4 [at 27].

O40 set out inconsistent uses for the Noosa Heads locality which provided that:

O40: The following defined uses and use classes are inconsistent uses and are not located in the Attached Housing zone -

...

Detached House; or Community residence if on lot 889 (etcetera),

...

Multiple housing if not on lot 889 (etcetera)... [at 27]

This led His Honour to conclude that the Noosa Plan 2009 "could hardly be clearer or more specific that visitor accommodation is wanted on the site; accommodation for permanent residence is not" [at 31].

Lack of negative impacts only relevant as a supporting element in justifying approval of the development application

With conflict having been established, His Honour then assessed whether there were sufficient grounds to justify an approval of the development application despite the conflict. His Honour was satisfied that there were no negative impacts of the proposal. However, His Honour noted that such a consideration "has traditionally not been regarded as a ground for the purposes of a provision like section 326" [at 32].

His Honour noted that the Court of Appeal might be changing its approach in this regard and in support of this statement His Honour favourably referred to the recent decision of the Court of Appeal in Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, [2012] 191 LGERA 452, where it was held that the absence of a negative impact might be a relevant consideration.

Ultimately, His Honour concluded that in this case there were not sufficient grounds to justify an approval of the development application. His Honour also found that, in general, a lack of negative impacts was not sufficient as a ground in its own right to justify an approval but rather, it was only relevant as a supporting element to an independent ground.

Held

His Honour held that:

1. The appeal be dismissed; and

2. The development application be refused.