PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Seymour CBD P/L v Noosa Shire Council [2002] QPEC 021 PARTIES: SEYMOUR CBD PTY LTD Appellant v NOOSA SHIRE COUNCIL Respondent FILE NO: 4178 of 2001 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 29 April 2002 DELIVERED AT: Brisbane HEARING DATE: 8, 9, 10, 11, 12 April 2002 JUDGE: Judge Robin QC ORDER: Appeal dismissed CATCHWORDS: Integrated Planning Act 1997 s.3.5.21, s.3.5.22, s.3.5.23, s.3.5.29, s.3.5.30, s.3.5.33(7), s.6.1.23, s.6.1.25, s.6.1.29, s.6.1.30 Local Government (Planning and Environment) Act s.4.12, s.4.13(12), (13), (15), s.4.15 Seymour CBD Pty Ltd v Noosa Shire Council (2001) QPEC 066 Roy Somerville Surveys Pty Ltd v Logan City Council (1991) 74 LGRA 104 Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 390 Vynotas Pty Ltd v Brisbane City Council (2002) 1 Qd R 108 Queensland Fencing Supplies Pty Ltd v Logan City Council (1996) QPELR 233 Jezreel Pty Ltd v Brisbane City Council (2001) QPELR 92 Grosser v Council of the City of Gold Coast (2001) 117 LGRA 153 Bone v Mothershaw (2002) QCA 120 Waltons Stores (Interstate) Limited v Maher (1987-88) 164 CLR 387 2 Developer appeal – respondent Council refused extension of time limited under a development permit for erection of a building to be commenced – respondent Council refused extension of currency period to establish Material Change of Use – Council contended its underlying development approval and the development permit were invalid, so that no extension could be granted – non-compliance with non- relaxable provisions in town planning scheme as to gross floor area, site cover and minimum landscaped open space – whether approval and development permit were invalid – whether estoppel prevented Council raising its contention – whether decisions in Vynotas Pty Ltd v Brisbane City Council and Roy Somerville Surveys Pty Ltd v Logan City Council applied – estoppel held not available – in any event, the appeal failed on the merits. COUNSEL: M. Daubney SC & J. Haydon for the appellant P. McMurdo QC & R. Litster for the respondent SOLICITORS: Stubbs Barbeler Grant for the appellant Wakefield Sykes for the respondent [1] The appellant/developer’s objective in this appeal is to obtain extensions until 30 June 2006 of the currency period in respect of a Development Permit for a Material Change of Use of Premises and (by way of changing a condition of development approval) of the date specified in Condition 36.1 of the respondent Council’s decision notice of 1 October 1999 which provided that the Development Permit should lapse if “the use or erection of a building or other structure associated with the use has not been commenced by June, 2002.” The permitted use combines Multiple Dwelling (57 units), representing new development, and “a maximum of 23 commercial tenancies”, representing a reduction from established commercial tenancies. The Site and Its Environs [2] The appellant’s site is presently developed as a shopping centre known as “Bay Village”, 18 Hastings Street, Noosa Heads, which was developed pursuant to 3 appropriate town planning consents in the 1980’s. The site (Lot 1 on RP 14446, Parish Weyba, County of March) is 5,865 square metres in area. It has a frontage to Noosa Parade of about 62.8 metres, a depth of 117 metres on the east and 96 metres in the west. Although the sides are effectively parallel, the Hastings Street frontage is only 29.5 metres, in separate sections of 20 metres in the west and 9.5 metres roughly in the middle of the balance of what would otherwise be the Hastings Street frontage. On either side of this short section of frontage is a pair of shops; all, inconsistently with the current planning regime, enjoy 100% site coverage, and so seem unlikely to be redeveloped. A fifth shop is built right up to the street alignment on the next site to the east. These five parcels are by far the smallest remaining in Hastings Street. For the moment, it seems fanciful to imagine any of them added to the appellant’s site. The shops on them, typically a ground floor and upper storey, will frustrate attempts that might be made on the appellant’s site to offer a prospect of open space adjoining Hastings Street. [3] The appellant’s original development application was made on 10 November 1997, shortly before the commencement of amendments to the Town Planning Scheme for the Shire of Noosa which considerably reduced the intensity of development permitted in Hastings Street on 5 December 1997. It was not the only application made to take advantage of more “generous” provisions of the scheme gazetted on 15 December 1990. Others related to 25 Hastings Street (Tingirana) and 32 Hastings Street (The Sebel): see Appendix I and Appendix J respectively to Mr Sobey’s Planning Report. Those projects are now constructed. Evidence suggested they represent over-development of their sites according to current sensibilities, and the court agrees with that view. Tingirana, presumably constructed to address the beach, contributes to a “canyon” effect in Hastings Street, at least on the northern 4 (beach) side. Contributions towards giving a more open appearance have been extracted from developers on the southern side, where construction to the permitted maximum height of 15 metres (4 storeys) bodes to lead to a “wall” on the northern side of Noosa Parade. [4] Immediately to the west of the appellant’s site is the Sheraton Hotel, a very large structure which impresses as the dominant development from any observation point offering a view of it. This development was foisted upon the local community by the State Government, regardless of the provisions of the Town Planning Scheme; respects in which it offends are the 5th and 6th levels of accommodation and basement carparking. The Sheraton is not without its virtues, one being that its affiliation with an international hotel chain attracts visitors to Noosa. See the evidence of Mr Butt, a witness who impressed as both articulate and reasonable. Assuming the mantle of a representative of the local commercial community, he referred to the importance of providing for holiday makers and tourists staying south of Hastings Street a spacious, pleasant area to relax in and enjoy (which he suggested would be the pool area) to replace the amenity of sea views available to those staying on the beach side. Town Planning Scheme Provisions [5] Of course, such opinions are one thing, the commercial feasibility of private developers providing facilities is another. What the respondent may require is indicated, for present purposes, by the 1990 Town Planning Scheme. In Clause 10 (4) the intent of the relevant zone is spelled out: “Residential High Density Zone – This zone is intended to provide for areas of unit accommodation for predominantly holidaymakers 5 and tourists. There are limited areas of land included within the Residential High Density Zone and it is not intended to increase the area of land included within this zone over that existing at the appointed day. Buildings of up to four (4) storeys in height will be found in this zone and high levels of design, aesthetic and landscape treatments are demanded, commensurate with the tourism objectives of the Strategic Plan. To encourage diversity of building form and further control of the scale and bulk of buildings within the Residential High Density Zone, a maximum gross floor area for any site is stipulated. The Table of Zones provides for a broad range of uses which may be achieved with the consent of Council, all of which are intended to provide a level of attraction or service, associated with the holiday and resort functions found within this zone.” Reference to the Table of Zones shows restaurants as consent development, likewise “where the site has frontage to Hastings Street: Commercial premises Commercial services Fast food premises Hotels Night Clubs Passenger terminals Professional suites Service shops Shops Tourist facilities Vehicle hire premises”. There is no need to reproduce here the Planning Scheme’s Part E Special Requirements for Land in the zone with frontage to Hastings Street, clauses 27-29; they are set out in Seymour CBD Pty Ltd v Noosa Shire Council (2001) QPEC 066 paragraph [4]. How the Underlying Application Proceeded [6] The Council’s reaction to the application at its meeting held on 12 February 1998 was to advise the appellant its proposal did not meet a number of Scheme provisions 6 and to invite it to submit amended plans addressing the areas of concern. Accordingly, the Town Planning Department’s report of 15 May 1998, considered at the Council meeting of 28 May 1998, noted: “The principal alterations to the plans include the following: S Reduction in unit numbers from 65 to 57. S Alterations to the Hastings Street frontage which achieve much closer compliance with setback and slopeline criteria. S Major alterations to the Noosa Parade frontage including variations in setbacks and line and plane for the full length of the building, including the existing carpark level and the upper levels of the building. S Major alterations to the unit layout to achieve the variations above. S Clarification that the number of commercial tenancies will be reduced to a maximum of 23.” [7] By letter of the following day, the Council advised that at the meeting it resolved to approve the proposal, subject to indicated conditions. The letter advised that this did not indicate a final approval and that use rights would be available only upon the issue of a Development Permit, which would occur following the expiry of the appeal period, should no appeal be instituted by the appellant or any of the nine objectors (two of whom objected late).