In brief

The case of Sanad Capital Pty Ltd v Sunshine Coast Regional Council and Anor [2023] QPEC 8 concerned a submitter appeal by Sanad Capital Pty Ltd (Submitter) to the Planning and Environment Court of Queensland (Court) against the decision of the Sunshine Coast Regional Council (Council) to approve an impact assessable development application (Development Application) for a development permit for a material change of use for a tourist attraction, being a surf park (Proposed Development), on agricultural land at Glass House Mountains.

The Court considered whether the Proposed Development is in conflict with the South East Queensland Regional Plan (SEQRP) and the Sunshine Coast Planning Scheme 2014 (SCPS), and in particular the significance of the loss of good quality agricultural land, whether there are unacceptable impacts on amenity or landscape values, the location of the Proposed Development being outside a "tourism focus area", and the economic value of the Proposed Development.

The Court dismissed the appeal and approved the Development Application (see [2] and [157]).

Background

Surf Parks Australia Pty Ltd (Co-respondent) sought to establish a surf park on 13 hectares of agricultural land at Glass House Mountains, adjacent to the Bruce Highway (Land). The Land is an "important agricultural area" with Class B agricultural land under the State Planning Policy (at [13]). It is also relevantly located within the Rural Zone and the regional inter-urban break, and is included in the Scenic Amenity Overlay, in the SCPS (at [13]).

The Development Application involves the reconfiguration of two lots to create a 10-hectare lot for the surf park on the northern part of the Land and a three-hectare lot for the remaining good quality agricultural land, as well as a material change of use of the northern lot to develop "…a high quality, purpose built surf park dedicated to surfers and those who want to become surfers" (see [6] to [7]).

During public notification of the Proposed Development the Submitter, which was also granted a development approval for a material change of use for a tourist attraction for a surf park on land at Glenview in September 2021, objected to the Development Application (see [3] and [14] to [15]).

The Council approved the Development Application, subject to conditions, on 14 December 2021 (at [3]).

Court finds that the loss of good quality agricultural land does not weigh against approval in circumstances where the exceptions in the assessment benchmarks are met

The Court was satisfied that the exceptions to the assessment benchmarks in the SCPS and the SEQPR that seek to protect agricultural land from being fragmented, alienated, or diminished are satisfied (at [25]) for reasons including the following:

  • Need The Court accepted the evidence that both the Submitter's and Co-respondent's surf parks will attract approximately 200,000 visits per annum and that there was no evidence to suggest that the Submitter's surf park alone could accommodate this demand (at [59]).The Court held that any reduction in profit made by the Submitter's surf park "…is a matter of private economics and not determinative of the issue of need" (at [60]). Further, qualitative matters such as "…the promotion of competition, choice, and healthy lifestyles, the prospect of jobs, and the contribution two surf parks would make to the tourism infrastructure of the Sunshine Coast with consequential economic benefits" support a need for the Proposed Development (at [61]).

  • No other suitable sites The Court accepted evidence that the Land is "…'as well placed, if not better placed' than any alternative site" (at [64]) and was satisfied that there was no other suitable and available site for the Proposed Development (at [72]). The Court did not consider the loss of good quality agricultural land to be a matter warranting refusal because "…the land in question is not of substantial value" (at [86]).

Court finds that the Proposed Development is not "urban development" and does not depart from the relevant assessment benchmarks in the SCPS

Items (a) and (b) in table 3.8.2.1 of the Strategic framework in the SCPS (Strategic Framework) are aimed at protecting and enhancing regional and sub-regional inter-urban breaks and avoiding adverse impact by urban or residential development (at [88]). Overall outcome 6.2.19.2(2)(p) of the Rural Zone Code in the SCPS also provides that development does not adversely impact upon the functional integrity of the regional and sub-regional inter-urban breaks (at [89]). The Scenic Amenity Overlay Code provides similar aims, in particular Performance Outcome PO2 states that "[u]rban and rural residential development does not occur within the regional inter-urban break" (at [90]).

The main issues in dispute were "…whether there will be signage that would detract from scenic amenity, whether the vegetation will seem 'unnatural' because it is in straight lines, and whether the time it will take to become established is of concern" (at [96]). The Court found in favour of the Council and the Co-respondent in respect of each issue having accepted the evidence of the visual amenity experts that the Proposed Development "…would not significantly diminish the scenic amenity and landscape values of the inter-urban break" (see [93] to [94] and [97] to [99]).

The Court was also satisfied that the Proposed Development will not diminish the sense of separation provided by the inter-urban break (see [93] and [100]) and that the Proposed Development was not "urban development" for the purposes of PO2 of the Scenic Amenity Overlay Code despite it possessing elements that are often found in urban settings (at [108]).

Court finds that the location of the Proposed Development outside of the "tourism focus area" does not conflict with the relevant assessment benchmarks in the SCPS

Specific outcome 3.4.6.1(a) of the Strategic Framework states that tourist orientated activities and services are to be within the "tourism focus area" (at [110]).

The Court held that developing a tourist attraction outside of a "tourism focus area" will not necessarily conflict with the Strategic Framework which is supported by Specific Outcome 3.4.6.1(e) providing for a merits-based assessment of tourist development in other areas (at [111]).

The Court rejected the Submitter's argument that only nature and hinterland tourist uses are consistent with the values of the inter-urban break because it was incorrectly premised on the description of tourist uses for the Glass House Mountains listed in Table 3.4.6.1 of the Strategic Framework being exhaustive and the Table makes no reference to the inter-urban break (at [113]). The Court also rejected the Submitter's argument that the SEQRP intends to restrict the types of tourist uses permitted to nature-based tourism, because "tourist and outdoor recreation" in the inter-urban break is also contemplated (at [114]).

The Court found that the Proposed Development did not, by virtue of its location outside of the "tourism focus area", conflict with the SCPS (at [116]).

Court finds that the Proposed Development will not unacceptably effect amenity

The Submitter asserted that the Proposed Development would have unacceptable adverse impacts on local amenity due to the noise that might be generated by machinery and patrons contrary to section 6.2.19.2(2)(f) and Performance Outcome PO1 of the Rural Zone Code and Overall Outcome 9.4.3.2(2)(a) of the Nuisance Code (see [117] to [119]).

The Submitter produced no evidence relating to noise. The expert engaged by the Co-respondent opined that there was suitable separation between the Proposed Development and existing land uses and that the Proposed Development would not result in environment amenity impacts (at [120]). The Court was satisfied that the various conditions on approval pertaining to amenity, including the establishment and maintenance of an agricultural buffer and the compliance of acoustic measures and treatments with a noise impact assessment, were sufficient to ensure "…no significant, unacceptable, or unreasonable negative effect on amenity" (at [121]).

Court finds that provisions in the SCPS relating to the encouragement of tourist activity favour approval

The Council and the Co-respondent argued that the SEQRP and the SCPS exhibit an underlying policy of encouraging appropriate tourist development. The Submitter did not dispute this contention, but reiterated the need to preserve good quality agricultural land (at [124]).

The Court observed that the SCPS "…recognises tourism as a 'traditional sector' and 'high-value' industry in the economy of the Sunshine Coast" (at [125]). The Court accepted that, subject to those regarding the preservation of good quality agricultural land, the assessment benchmarks in the SEQRP and the SCPS promoting tourism favour approval of the Proposed Development (at [126]).

Court finds that the Planning Regulation 2017 does not prescribe a matter to be considered and, even if it did, it would not favour refusal of the Proposed Development

The Submitter contended that the Proposed Development is non-compliant with the assessment benchmarks in schedule 10, part 16, division 2 of the Planning Regulation 2017 (Qld) (Planning Regulation), which concern development assessment for a tourist or sport and recreation activity in the SEQ regional landscape and rural production area and the SEQ rural living area.

Under item 24 of schedule 10 of the Planning Regulation, "[a] material change of use of premises for a tourist activity…is assessable development if", among other things, "the use…involves an ancillary commercial or retail activity with a gross floor area of more than 250m2" (at [132]). Whether the shop, kitchen, and bar included in the plans for the Proposed Development involve an "ancillary commercial or retail activity with a gross floor area of more than 250m2" was in dispute (at [133]).

The Submitter argued that the total gross floor area (GFA) of the shop, kitchen, and bar exceeds 250m2 because "…the operation of the bar will necessarily involve an area greater than [its recorded GFA] as some patrons will congregate at and near the bar" (at [135]). Whereas, the Co-respondent submitted that the shop, kitchen, and bar are not ancillary to the tourist attraction for the purpose of the definition of "tourist activity" because the uses form part of the activity (at [136]).

The Court did not accept the Co-respondent's argument on the basis that it "…would produce an inconsistency in the treatment of 'ancillary'…in Schedule 24 and item 24(b)(ii)" (at [137]). Rather, the Court held that the shop, kitchen, and bar each involve an ancillary commercial use, but none are essential to the operation of the Proposed Development as a tourist facility (at [140]). The total GFA of the shop, kitchen, and bar is exactly 250m2 and, applying the planning provisions with "common sense", the Court held that the spilling of commercial activity "at and near the bar" will not cause the total GFA to exceed this threshold.

Thus, the Court held that schedule 10, part 16, division 2 of the Planning Regulation is not a prescribed matter under section 45(5)(b) of the Planning Act 2016 (Qld) to be considered and, even if it was, it would not weigh in favour of refusal of the Proposed Development (see [141] to [147]).

Conclusion

The Court, in conclusion, held that "[t]he loss of a small area of good quality agricultural land will be more than offset by the economic and social benefits provided by the proposed development, which can be delivered without unacceptable impacts on amenity or town planning considerations" (at [152]).

The Court dismissed the appeal and approved the Development Application. The Court recognised that changes to the conditions of the Development Application may be appropriate before final orders are made (at [157]).

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 2024.

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