In brief

The case of Body Corporate For Roydon Community Titles Scheme 1487 & Anor v Cairns Regional Council & Anor [2020] QPEC 60 concerned an appeal against the Cairns Regional Council’s (Council) decision to approve a development permit for a material change of use for an F45 training gym. The appeal was brought by the body corporate and onsite manager (Appellants) of the residential apartments adjoining the subject land at 2-8 Vasey Esplanade, Trinity Beach (Subject Land).

The Court allowed the appeal and refused the development application for the following reasons:

  • The proposed development did not comply with the assessment benchmarks for amenity, location of use and community need, and gave rise to unacceptable impacts relating to noise.

  • The proposed development did not provide adequate onsite parking and manoeuvring to accommodate the demand generated by the use.

  • Although the proposed development would 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 training gym.

Proposed development

The impact assessable development application sought a material change of use for a type of indoor sport and recreation use on the Subject Land, being an F45 training gym specialising in 45 minute classes involving high intensity, circuit based workouts (F45 Gym). The F45 Gym was to operate across three tenancies on the first floor of an existing commercial building.

The Subject Land was located within the Tourist accommodation zone of the CairnsPlan 2016 (version 1.3) (Tourist Zone), which did not contemplate the indoor sport and recreation use proposed by the development application.

The existing carpark was to accommodate the F45 Gym’s parking demand, and the operating hours would be from 5.00 am to 10.30 am and 4.00 pm to 7.30 pm on weekdays, 6.30 am to 9.30 am on Saturdays and 7.30 am to 10.00 am on Sundays. Only one class would occur at a time and group classes would be capped at 25 people per class.

Assessment and decision rules under the Planning Act 2016

The Court set out a detailed summary of the assessment and decision rules under the Planning Act 2016 (Qld) (Planning Act) at paragraphs [11] to [33] of the judgment and made a number of key observations regarding the consideration of impact assessable development applications.

The Court noted that in contrast to code assessment, impact assessment “may” be carried out “against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise” (see section 45(5)(b) of the Planning Act). The Court stated that a “relevant matter” could include relevant matters of positive and negative attributes of the proposed development and proceeded to list a number of examples of what may constitute a “relevant matter” (at paragraph [16]). The Court stated that the distinction between carrying out the impact assessment “against” or “having regard to” any other relevant matter was purposeful, and provided the following example (at paragraph [17]):

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”.

The Court emphasised the continued importance of the planning scheme and other planning instruments being the “comprehensive expression of what will constitute, in the public interest, the appropriate development of land” (at [22]). Importantly, the Court stated that section 45 of the Planning Act demonstrated the continued importance of the assessment benchmarks, in that the section mandated that assessment “must” be carried out against such benchmarks, in contrast to the permissive “may” in section 45(5)(b) when considering other relevant matters.

The Court also referred to the recent Court of Appeal decision of Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 as affirming the approach that has been adopted by the Planning and Environment Court in decisions such as Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 (at paragraphs [50] to [54]) and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 (at paragraphs [12] to [22]). The Court set out the relevant principles that could be distilled from Abeleda at paragraph [28] of the judgment and concluded this analysis with the following:

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.

Court’s assessment of the development application

The Court assessed the development application in accordance with the relevant assessment benchmarks in the CairnsPlan 2016 (version 1.3) and the Far North Queensland Regional Plan 2009. The Court’s critical findings were as follows:

  • The proposed development would not achieve a “high level of amenity” when taking into account noise impacts (see overall outcome s.6.2.23.2(3)(c) of the Tourist Zone code), nor was it located, designed and operated to ensure that any potential adverse or detrimental noise impacts would be avoided (see PO6 of the Tourist Zone code). The noise impacts were said to derive from the “periodical concertation of arrival and departure of cars and patrons in the morning operating period” (at paragraph [86]).

  • The development application did not include a draft noise management plan and as such “the assessment process is left wanting” (at paragraph [86]).

  • Although the proposed development would serve tourist needs, such service 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” (at paragraphs [97] and [116]).

  • When regard was had to “the existing approval and pro rata allocation of carparks across each of the tenancies in the whole building” it was apparent that only six carparks were earmarked for the F45 Gym. This would result in a deficit of 17 car parks when the table of minimum rates in the Parking and Access Code was considered (at paragraphs [105] to [106]).

  • The Court was “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” (at paragraph [131]).

  • Although the town planners acknowledged that the proposed development would meet community need, the Court stated that “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” (at paragraph [136]).

Conclusion

The Court therefore determined that it was appropriate to allow the appeal and refuse the development application.

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 2021.

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