In brief

The case of Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2018] QPEC 6 concerned a submitter appeal against the decision by the Sunshine Coast Regional Council (Council) to approve a development application for a development permit to reconfigure a lot (1 into 44 lots) and a development permit for a material change of use (44 detached houses and 510 square metres of shops). The proposed development included the construction of 43 two-storey buildings. Thirty-three of the allotments were proposed to be exclusively used as dwelling houses with the remaining 10 allotments to be used for both commercial and residential use.
 
The grounds of the appeal were that the proposed development conflicted with the Maroochy Plan 2000 (Maroochy Plan) in the following ways:
  1. Issue 1 - fragmentation to the Village Centre.
  2. Issue 2 - inconsistency with the desired character of the locality.
  3. Issue 3 - conflict with the Code for Reconfiguring a Lot and the Code for Town and Village Centres.
  4. Issue 4 - conflict with the Code for Transport, Traffic and Parking.
The Appellants argued that there were no sufficient grounds warranting the approval of the development application.
 
The Court dismissed the appeal on the basis that there were sufficient matters of public interest to approve the proposed development despite the conflicts with the Maroochy Plan.

Construction of the Maroochy Plan

The Court noted that the usual principles of statutory construction apply to the interpretation of planning schemes. The Court applied the principles of statutory interpretation set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 which relevantly stated as follows:
 
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole."
 
"Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated…by adjusting the meaning of the competing provisions to achieve the result which will best give effect to the purpose and language of the provisions while maintaining the unity of all the statutory provisions."
 
 
"the proper method of construction…[involves] identification of those parts of the planning scheme which are germane to the issues of the case, and their consideration to discern the tenor of the scheme, as a whole, and, by that process, to discover whether or not the proposed development accords with the scheme."

Issue 1 - fragmentation to the Village Centre

The Appellants argued that the proposed development is in conflict with the Retail and Centres Hierarchy under the Maroochy Plan. The Appellants submitted that relevant provisions of the Maroochy Plan seek to maintain the Village Centre for commercial and retail development, and that the proposed development contemplated by the Maroochy Plan would not provide for the scale of retail and commercial development as it is primarily small lot housing.
 
The Appellants also argued that the proposed development does not adequately meet the provisions under Part 3.11 of the Maroochy Plan, being the Statement of Desired Precinct Character for Planning Area Number 11 Coolum Beach, as only 10 of the 43 detached houses could be categorised as being a shop-top residential use. The Appellants submitted that the proposed development only goes part way to satisfying the requirements of the planning scheme and does not cater for the mixed-use goals envisioned for the Village Centre Precinct.
 
The Court relevantly held that the proposed development is not in contravention with Part 3.11 of the Maroochy Plan as development in a Village Centre Precinct is not solely for retail and commercial facilities. The Court determined that the proposed development adequately provides for a mix of uses as it includes both residential and retail development which is encouraged under the Maroochy Plan.

Issue 2 - inconsistency with the desired character of the locality

The Court determined that the proposed development was not in conflict with the relevant strategic intent and local policy under the Maroochy Plan. The Court held that it would not be appropriate to find the proposed development to be in conflict with the Maroochy Plan for the following reasons:
  1. A "detached dwelling" is a preferred and acceptable use in the Village Centre Precinct.
  2. The proposed development would provide for mixed-use development as it includes a range of residential, retail and commercial facilities, therefore meeting the expectations set in the General Intent for Centre Precincts.
  3. There was no evidence that the proposed development is in conflict with the relevant provisions of the Maroochy Plan regarding the commercial role of the Village Centre Precinct, as the dwellings in the Tourist Node could be used for visitor accommodation.
  4. The small scale nature of the proposed development meets the General Intent for Centre Precincts under the Maroochy Plan as Village Centre Precincts "are expected to have premises that remain relatively small scale" (see paragraph [98]). The small scale nature of the proposed development balances the tensions that arise between the reservation of the Precinct for commercial and residential development, and other potential uses of the Village Centre Precinct.
  5. The small allotment size of the proposed development does not meet the minimum size under the Code for Reconfiguring a Lot. The Court however relevantly held that the small allotment size seeks to achieve the desired character of the Village Centre Precinct and further emphasised that compliance with an acceptable measure is not mandatory and alternative solutions can be provided in order to satisfy the performance criteria.

Issue 3 - conflict with the Code for Reconfiguring a Lot and the Code for Town and Village Centres

The Appellants argued that the proposed development caused a serious conflict with the Code for Reconfiguring a Lot and the Code for Town and Village Centres. The argument was based on the following:
  1. The proposed development is inconsistent with the desired character of a Village Centre as the development is primarily for small lot housing with little retail development.
  2. The proposed development does not meet the minimum allotment size which is 1,200m² under the Code for Reconfiguring a Lot.
  3. The intended development form for a Village Centre is for retail and commercial development with higher density residential above, not predominately detached dwellings as contemplated by the proposed development.
  4. The proposed development does not meet the intended scale of retail and commercial development and will not adequately cater for the needs of future residents and visitors.
The experts for the Respondent and Co-respondent argued that there were no conflicts. It was submitted as follows in the relevant joint expert report:
  1. The proposed development will contribute to the established mixed uses of the area.
  2. The proposed development meets the intent of the Maroochy Plan as it will provide for a range of retail, commercial, and accommodation facilities.
  3. The proposed development is not in conflict with the Code for Reconfiguring a Lot as reconfiguration is concerned with land tenure.
  4. The proposed development is not in conflict with the acceptable or preferred outcomes for Village Centre Precincts as a "detached house" is a preferred or acceptable use in this type of centre.
The Court found that the proposed development was not in conflict with the Code for Town and Village Centres. The Court determined that the proposed development would provide additional mixed uses in the Village Centre Precinct and therefore meets the intent of the Maroochy Plan. The Court further noted that a "detached house" is a preferred or acceptable use in a Village Centre Precinct and therefore was determined to not be in conflict with the Maroochy Plan. The Court did however determine that the proposed development conflicted with the Code for Reconfiguring a Lot because the proposed lots did not meet the minimum allotment size. The Court relevantly stated as follows, "…there is no warrant to regard the conflict as being technical or so minor as to be inconsequential" (see paragraph [110]). The Court however went on to say that the "point is that the consideration of the preferred lot dimensions means that the balancing of various aspirations of the strategic plan, for this Precinct in [the Maroochy Plan], demands that more particular weight be given to the statements of intended reservation of the Precinct for commercial and…residential development" (see paragraph [110]).
 
Issue 4 - conflict with the Code for Transport, Traffic and Parking
The Appellants primary submission regarding transport, traffic and parking concerned the potential impact of the proposed development on pedestrian safety as a result of the direct vehicular access to the lots fronting Heathfield Road. The Co-respondent's traffic engineering expert proposed to combine some driveways and therefore reduce the total number of driveways. By combining some of the driveways, pedestrian safety would be improved in two ways. Firstly, pedestrian crossing distances would be reduced. Secondly, the number of cars exiting from a driveway at the same time would be reduced, therefore reducing traffic on the street at any one time. The Court agreed.
 
On-site and street parking was also an issue in the appeal. In particular, the Appellants argued that the extra street parking generated by the proposed development would cause a loss of 41 on-street car parking spaces. The Court relevantly held that the Maroochy Plan does not require that the existing potentiality for on-street be maintained. Further, the Court was satisfied that there is capacity in the surrounding streets to cater for the additional street parking demand. The Court was also satisfied that the on-site parking arrangements did not give rise to any conflict with the Maroochy Plan.
 

The Court determined that there was sufficient need for the proposed development to warrant approval despite the conflicts with the Maroochy Plan

The Court considered whether the need for the proposed development was sufficient enough to warrant approval of the proposed development despite the conflicts with the Maroochy Plan. The Court relevantly held that there was sufficient need for the development for the following reasons:
  1. The proposed development achieves the criteria set out in Desired Regional Outcome 8 of the South East Queensland Regional Plan 2009-2031 as it provides housing choice and diversity, provides a diverse residential offering, and improves the general amenity of the area.
  2. The proposed development will not adversely impact the surrounding amenity.
  3. The development would involve mixed use development.
  4. There was sufficient interest in the development as 80% of the lots have been pre-sold.

Conclusion

The Court relevantly held that despite the conflicts with the Code for Reconfiguring a Lot greater weight should be given to the intention of the Village Centre Precinct - which is to provide a range of residential, retail and commercial facilities. The Court also held that there was sufficient need for the development and therefore, the Court dismissed the appeal.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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