Planning and Environment Court of Queensland determines whether a development approval granted by the Chief Executive administering the Environmental Protection Act 1994 (Qld) in respect of the construction of Surfers South Oceanway was legally unreasonable

In brief

The case of Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast & Anor (No 2) [2022] QPEC 3 concerned a declaratory proceeding in relation to an approval granted by the Chief Executive administering the Environmental Protection Act 1994 (Qld) for a development application which was made by the Council of the City of Gold Coast (Council) for a development permit for operational work to construct a four metre wide and 16 kilometre long shared public-use path (and associated works) along Northcliffe Terrace, Garfield Terrace and Old Burleigh Road (Development Application).

Background

The proposed development the subject of the declaratory proceeding is for operational work to effect the construction of a pathway called the "Surfers South Oceanway". The pathway is proposed to be constructed of new fibre-reinforced concrete atop a heavily bound base material, and is to include lighting and construction/relocation of park facilities such as showers, seating, bins, and viewing platforms (Proposed Development).

As the Proposed Development would be carried out within a Coastal Management District, the Chief Executive is the assessment manager for the Development Application and the Development Application is assessed against the State Development Assessment Provisions.

The relevant code in the State Development Assessment Provisions is State Code 8: Coastal Development and Tidal Works (State Code 8), in particular Performance Outcomes (PO) 1 to 5 and 23.

The Applicant in the declaratory proceeding argued that the Chief Executive's decision to approve the Development Application on the basis of compliance with the relevant performance outcomes was so unreasonable that no decision-maker could have reasonably made it.

The Chief Executive's delegate (who made the decision), carried out an assessment having regard to a positive assessment of State Code 8 undertaken by the Council's consultants (SMEC Assessment) as well as a further positive assessment contained in a technical agency advice prepared by the Department of Environment and Science upon referral of the Development Application (TA Advice).

Court held that the Applicant failed to demonstrate that it was beyond the bounds of reasonableness to conclude that there was compliance with sub-paragraph 2 of PO1

Sub-paragraph 2 of PO1 in State Code 8 relevantly provides as follows:
            "PO1    Development does not occur in the erosion prone area unless the development:
                        …
            2.         cannot feasibly be located elsewhere."

The Court held that the Applicant's contention in relation to sub-paragraph 2 was misconceived in that the word "elsewhere" means elsewhere than in the erosion prone area; however, the alternative feasible location of the proposed pathway identified by the Applicant was also in the erosion prone area. Further, it would not be unreasonable to conclude that a pathway connecting to other sections of pathway "…could not feasibly be located elsewhere than in the erosion prone area when the entirety of the beach, the houses fronting the beach and the road they front are all within that erosion prone area." (at [19](iv)).

Additionally, the SMEC Assessment, which was endorsed by the TA Advice, concluded on a reasonable basis that the proposed alignment of the pathway "…is as far as landward as is feasible, within the erosion prone area, having regard to the constraint of leaving what was thought to be an appropriate clearance to existing private properties." (at [20]).

Court did not accept that it was beyond the boundaries of reasonableness to conclude that there was compliance with PO2

PO2 in State Code 8 relevantly provides as follows:
            "PO2    Development other than coastal protection work:
            1.         avoids impacting on coastal processes; and
            2.         ensures that the protective function of landform and vegetation is maintained."

In determining that it was not beyond the boundaries of reasonableness to conclude that there was compliance with PO2, the Court observed that the term "avoids" in sub-paragraph 1 was not to be read such that it must be demonstrated that the Proposed Development would cause "…no impact whatsoever even at a trivial, immaterial or insignificant level…" (at [37]), and that the focus of sub-paragraph 1 was the impact on "coastal processes" and was not simply any impact on the dune.

Further, the Court held that contrary to the Applicant's contention, sub-paragraph 2 did not require that there would be no impact on landform or vegetation.

Conclusion

The Court concluded that the Applicant failed to demonstrate that the decision of the Chief Executive was legally unreasonable and that it will hear the parties in respect of a draft order to finalise the proceeding.