PLANNING & ENVIRONMENT COURT OF

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: 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 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 (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, ) 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 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). In the event, the appellant itself commenced

a “conditions” appeal in this court on 7 July 1998, which the Council resolved to

defend after its offer of discussions to resolve issues was not responded to. Later

discussions proved fruitful and the appeal was withdrawn on 14 July 1999 (Appeal

No. 2911 of 1998). The original application was made under s.4.12 of the Local

Government (Planning and Environment) Act 1990 (“P&E Act”), the 1998 appeal

enlivened s.4.13(12) and (13). By reason of s.4.13(17) of the P&E Act, any

approval indicated by the Council was without force or effect until a Development

Permit was issued. 7

[8] The appellant then applied (apparently the same day) “for modification of

conditions of development approval” to quote Mr Sobey’s description, using the

Council’s form headed “IDAS Development Application – Changing or Cancelling

Conditions, Development Approvals & Currency Periods, Integrated Planning Act

1997.” The amended plans now tendered included a large number of changes,

assessed in the Deputy Shire Planner’s Report as favourable, those noted being:-

“a. Expansion of the retail floor space – (total use area is still well below that which currently exists on the site). b. Relocation of the reception/lobby to the first floor. c. Alteration to parking arrangements including general separation of residential (first floor) and commercial parking (ground floor) a much improved layout and a deletion of most tandem spaces. d. Significant increases in podium level landscaping, with units in the eastern and western wings now focussed on the internal space rather than the adjoining properties. e. Greater setbacks to Hastings Street and aesthetically improved structural arrangements in this area; f. Increased area of ground level landscaping/pedestrian area in the courtyard to Hastings Street.”

[9] The appellant had made its point, at least in part, in relation to its conditions appeal.

The Council’s decision of 30 September 1999 to approve the application and grant a

Development Permit subject to identified conditions was the subject of a Decision

Notice dated 1 October 1999. Although the established “retail” uses must be

regarded as established and “as of right”, the Decision Notice refers to a Material

Change of Use of Premises – Shops, Professional Offices, Medical Centre,

Restaurants (maximum 23 commercial tenancies) and a Multiple Dwelling (57

units). By Condition 36:-

“This Development Permit for a Material Change of Use of Premises lapses if:-

36.1 The use or erection of a building or other structure associated with the use, has not been commenced by June, 2002 ...”. 8

The currency period (which the appellant seeks to have extended) has not been

specially fixed, as might have been done, but there is a “default” period of four

years specified in legislation: IPA s.3.5.21. I understood Mr McMurdo QC (for

the Council) to accept that the appellant had until the end of September 2003 to

commence the new use on its site. The Deputy Shire Planner’s justification for

condition 36.1 was :-

“5.3 LIFE OF THE APPROVAL

This application was lodged in November, 1997 and advertised in that month. The application was lodged prior to significant Scheme amendments in December, 1997. The current proposal does not meet those provisions. The original plans contained insufficient detail and it was not until May, 1998 that adequate detail was available to enable an approval to flow. The appeal was then filed. The appeal was not prosecuted actively, as the applicant was placing emphasis on other projects and it was known that the issues on the appeal were likely to be capable of resolution without a hearing.

Effectively, the approval has had a significant life already and without the appeal the Development Permit would have been issued in June, 1998. As the development does not comply with current Scheme provisions and as the matter has not been placed before the community for some time, it is believed that the life that attaches to the approval should extend no later than June, 2002 ie. the conventional 4 year life. A condition to this effect is included.”

[10] What appears not to have been appreciated is that the proposal did not meet the

1990 Scheme provisions either.

[11] By its letter of 21 August 2001, the Council offered the following reasons for its

refusal on 16 June 2001 to extend the currency period on the appellant’s

application:

“1. The proposed development is not in keeping with the character now sought for the Hastings Street precinct.

2. The additional gross floor area and site coverage adds significantly to the visual bulk and scale of the building and is likely to adversely impact on the amenity of the 9

streetscape and locality. The lack of landscaped open space further accentuates the appearance of bulk and contributes to a loss of amenity on site.

3. The development is contrary to non-discretionary provisions of the Schedule to the Planning Scheme, relating to gross floor area, site coverage and minimum landscaped open space.

4. The development has not been publicly notified since November 1997 and the community has not been allowed the opportunity to comment about the proposal since that time. The public may raise valid planning issues that should be considered particularly since the proposal’s non- compliance with the current Scheme requirements are substantial and are not minor.”

[12] Although that statement of reasons may be read as referring to the Planning Scheme

as it has become more recently, it is in terms applicable to the 1990 Scheme. It was

not suggested that the appellant’s case would be helped in any way by reference to

subsequent Scheme changes. In the current appeal, the Council explicitly set up the

invalidity of the approval and Development Permit under the 1990 Scheme as a

reason why they could not be extended. Last October some “preliminary points”

were argued. It is convenient to note at this point that the evidence is neutral or

tends both ways regarding the likelihood that new public notification of the proposal

would attract unfavourable submissions from the community. Neither Tingirana

nor The Sebel attracted objections. A finding that objections would be unlikely

could not possibly be justified.

GFA, Site Cover and Landscaping are Longstanding Issues

[13] The proposal’s non-compliance with limits in the Planning Scheme on gross floor

area and site coverage and with the minimum requirement for landscaped open

space has been an issue from the outset. See the Town Planning Department’s 10

report of 30 January 1998 exhibited to Mr Sobey’s affidavit filed 28 March 2002.

The next report (15 May 1998) described gross floor area as 7,817 square metres,

against a maximum permitted of 7, 976 square metres before the 5 December 1997

amendments, which reduced the limit to 5,865 square metres. As to landscaped

open space, the conditions recommended to the Council and indicated by it in the

May, 1998 approval would have required compliance, insofar as plans submitted for

a Development Permit (Building Works) must make:-

“2.1 Provision is to be made for 1,838 m² of landscaped open space, exclusive of the podium level of landscaping, provided that if the population density is further reduced, the requirement for landscaped open space may also be reduced consistent with Scheme provisions.”

As to site cover, at this stage, the Town Planning Department and the Council

accepted the proposed development as a special case, the Report indicating:-

“4.2.2 Site Cover

The issues associated with site cover relate substantially to the fact that the existing building exceeds 80% coverage. The proposal considered by Council on 12/2/98 indicated a site cover 72.5% with the amended plans now indicating 70.6%. One significant element of concern associated with the site cover issue related to whether or not it was possible for major areas of existing floorspace to be retained within the new development or whether substantial demolition is inevitable. Plans submitted by the applicant’s architect clearly define which areas of the building will be demolished and retained. Conditions of approval requiring that demolition be consistent with these plans could be imposed.

Given the existing development and the fact that the proposed alterations to the building discussed above and below will result in a development which meets the intent of the scheme, it is considered that the site cover circumstances are acceptable.”

As will be seen, the assessment that, except for site cover, compliance had

been achieved was mistaken.

[14] The Noosa Parade frontage of the site is presently occupied by a concrete carpark of

two levels, the above ground level not being covered. The existing retail 11 development, accessible through the carpark or, for pedestrians, from Hastings

Street, is constructed to the north. The proposal includes the demolition of the south-western corner of the carpark, which became an encroachment on a service road immediately east of Noosa Parade on land taken to provide access to (inter alia) the Sheraton as well as the site. The proposal also includes the demolition of a two-storey building presently constructed to the Hastings Street alignment towards the west, that building leaving only a relatively narrow pedestrian entry on the western boundary to the retail area. Unusually, in my experience, this developer claims credit for retention of facilities already constructed, as an achievement of ecological sustainability. This has been seen as justifying approval of site cover, or a building “footprint”, well in excess of what the Scheme permits, namely 45% with a possibility that up to 60% maximum may be allowed in defined circumstances, none of which exists (or was contended by the appellant to exist) here, although the erroneous view may have been taken that the 60% maximum was available. The original Planning Report of 30 January 1998 exhibited to Mr Sobey’s affidavit, contains the following discussion:

“6.2 SITE COVER

The site cover for the development has been calculated at 72.5%, 12.5% over the maximum permitted and 27.5% over the normal 45% figure. The excess is a function of the existing development, which has a site cover exceeding 80%. In these circumstances and as a matter of planning principle, it can be argued that the modified development is an improvement to the existing site cover figure and therefore full compliance with the current provisions is not necessary. This argument might only attract support, where the balance elements of the development proposal adequately meet Scheme provisions. As will be discussed below, there remain a number of concerns about the development’s compliance with Scheme provisions and at this stage, the site cover is considered to be excessive, even though it improves the circumstances over existing development.

Town Planning Department’s Report 30/1/98 – Ordinary Meeting 12/2/98 12

An alternative way of viewing the site cover, is to treat the levels of the building separately. That is the first two levels of the development already exist and it is these which render an improvement over existing site cover. Levels 3-4 are new and these feature a site cover of close to 45%, but within the basic figure permissible on the site.

[15] On 12 October 2001 I heard and on 25 October I determined preliminary issues

between the parties. What happened turned out not to resolve this appeal. For

reasons which need not be repeated at any length here, I determined that,

notwithstanding slight differences between the parties’ planners as to precise

measurements, gross floor area of the proposed development had to include the

upper level of carparking and so exceeded what the Scheme allowed; likewise, site

cover was established to be grossly excessive. The landscaping issue came down to

the permissibility or otherwise of including landscaping on an elevated podium not

visible from the street. In terms of the Scheme, these requirements (unlike many

others) were mandatory and the Council was without power to relax them. I

rejected the appellant’s argument based on Roy Somerville Surveys Pty Ltd v Logan

City Council (1991) 74 LGRA 104, Queensland Fencing Supplies Pty Ltd v Logan

City Council (1996) QPELR 233 and Jezreel Pty Ltd v Brisbane City Council

(2001) QPELR 92 to the effect that the Scheme provisions might be disregarded as

irrelevant or unreasonable in respect of this development, in circumstances where

there was no evidence to support such a conclusion.

[16] Now, after an airing of the appeal on the merits, the Court has before it all the

evidence, essentially opinion evidence, which the appellant might wish to adduce.

Factually, the site is shown to be surrounded by developments that exceed in their

intensity what the 1990 Planning Scheme (let alone its successor provisions) would

permit. See Exhibit 21, Table 3.7 (Mr Venn) and Exhibit 25 (Mr Sobey). This 13

situation amounts to a factor for consideration by the Council, and now the court,

but not a determinative consideration: the appellant acquires no right to develop

excessively merely because others, for a whole host of reasons, have got away with

it. Compare Grosser v Council of the City of Gold Coast (2001) 117 LGRA 153.

Clause 27(2) of the Scheme might be thought to support an argument that the

appellant is entitled to have existing development which is to be retained

disregarded when the site cover issue is assessed. In the end, I did not take Mr

Daubney SC, who appeared for the appellant, to rely on such an argument. Even on

this basis, that is, that site cover is taken to be the notional site cover of proposed

residential development, considered alone, the site cover maximum of 45% is

exceeded (by something between 1% and 2%), with none of the Scheme-recognised

possibilities of relaxation applicable.

[17] Views of the merits of the appellant’s proposal varied, according to the sides on

which those who expressed opinions gave evidence. One of the features of the

proposal is that it represents mixed development, of a kind not favoured by the

Scheme for Hastings Street properties. It is not right to say that the Scheme has

nothing to say about mixed developments of the kind proposed. Shops (not to

exceed 100 square metres, at the cost of being regarded as multiple shops) are

permitted at the rate of one for every twenty residential units. What the appellant

proposes greatly exceeds this, but relaxations are permitted by the Scheme in this

regard. Although the retail development, as it exists and as it is proposed to be,

attracted some just criticism, notably by Mr Robinson, its usefulness was praised or

acknowledged by witnesses on both sides. If the mixed use is to go ahead,

management issues to do with regulating it, in particular to deal with “negative

spaces” (said by Mr Job to be unavoidable) which might make things somewhat 14

easier for the criminally inclined, will have to be addressed. No-one suggested there

was any value in the “retail” premises to the extent that they would provide a

location in Hastings Street for the ubiquitous “name” outlets which tend to pop up

in any large shopping mall. The thought was that Noosa Heads, as a national, indeed

international destination would offer something different.

[18] Mr Robinson, an architect called by the respondent, identified another possible

problem for the appellant’s proposed development of potential breach of the setback

requirements on the western boundary. On the basis of the Noosa Parade elevations,

the two floors of residential units to be constructed above the existing carpark are

shown as cantilevered across the ramp which leads to the upper floor of parking,

and which is adjacent to the western boundary of the site. Recent drawings from the

appellant’s architect indicate that there are to be pillars, and at least four of them,

constructed on the boundary to support the residential units above, in contrast to

earlier drawings. See page 207 of the transcript. It is not simply a question of the

side boundary setback, which may be the subject of relaxation: the pillars could

well reduce the trafficable width of the ramp from its existing slightly substandard

width to the extent that it could not accommodate lanes for movement of traffic in

each direction. There may be safety concerns regarding the appropriateness of such

access/ingress for a carpark serving 57 residential units. There was no evidence

from traffic experts on this particular topic. Mr Robinson thought a cantilever

structure might be difficult to achieve because of height restrictions, that cantilever

beams required would sit too low to permit effective use of the ramp. In the end,

Mr McMurdo (page 343 of the transcript) asked that the court make no findings

regarding width of the driveway, but he submitted that “relaxable requirements are

also relevant to whatever the discretion the Court now has.” (344). 15

Appellant’s arguments for Validity of Approval and Permit:

A. Non-binding Effect of “Transitional Planning Scheme”

[19] The appellant relied on strong dicta in Vynotas Pty Ltd v Brisbane City Council

(2002) 1 Qd R 108 to argue that the Scheme restrictions, being those of a

“transitional planning scheme”, should not be regarded as binding. At 113, Davies

JA said:

“...the scheme of the Integrated Planning Act appears to be that, so far as it applies to development and use of premises, a transitional planning scheme no longer has binding force but is of persuasive relevance only. Thus s. 2.1.23 provides that a local planning instrument, which includes a planning scheme, may not prohibit development on, or the use of premises; and more specifically s. 6.1.2(3) provides that a prohibited use in a former planning scheme is taken to be no more than an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. These provisions relate only to prohibitions, but if prohibitions in former planning schemes are now no more than policy statements it is unlikely that the legislature intended any other provisions in such schemes to continue to have binding effect upon development applications under the Act. It is, however, unnecessary to decide this last point.”

[20] Pincus JA said at 114:

“...it does not appear to me that the legislature intended, by the language used in Ch. 6 in the 1997 Act, to make the provisions of transitional planning schemes absolutely binding, in the decision of development applications.

On the other hand it is important to note that the 1997 Act did not by Ch. 6 create a planless situation. Citizens expect reasonable stability in the law’s treatment of permitted land use. It would be unfortunate if Ch. 6 were used to defeat the reasonable expectations of those who have relied on, and perhaps expended substantial sums on the faith of, existing planning arrangements. The degree of flexibility which Ch. 6 contemplates does not justify failure to give considerable weight to planning arrangements, as they existed when Ch. 6 commenced, so far as such arrangements are required to be applied by s. 6.1.29(3).” 16

[21] Thomas JA agreed with both sets of reasons; subsequently in Grosser his Honour

agreed with White J who said at 162-163:

“That the intention of the planning authority was that the 1994 Scheme was not to be lightly departed from is reflected in s. 17.1.2.3:

‘Without limiting the generality of the Council’s discretion to refuse an application, it shall be sufficient reason to refuse an application to rezone land where such rezoning would be in conflict with any provision of this Planning Scheme applicable to the area sought to be rezoned.’

It is no longer necessary to apply to rezone land if an applicant wishes to use land for purposes prohibited by its current zoning, and a development application under the IP Act relating to a transitional planning scheme is not to proceed as if it were a re-zoning application. The transitional planning scheme is one of a number of matters which s 6.1.29(3) of the IP Act directs shall be considered when assessing an application for material change of use and is, therefore, as Davies JA said at 210-211 [14] in Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206, of persuasive relevance only. Nonetheless, s 6.1.2(1) and (3) plainly require weight to be given to the fact that the use sought was a prohibited use under the transitional planning scheme.”

Following the quotation of Pincus JA’s views, the judgment goes on:

“There can be little doubt that s 6.1.2 of the IP Act maintains the importance of consistency with the intent of a transitional planning scheme.”

If the appellant’s proposal is to be assessed only in terms of the Planning Scheme,

it must be rejected, not approved as extended. If the Court of Appeal authorities

are applicable, this court ought to assess the proposal on the basis that the

Scheme’s effect is persuasive only, albeit of considerable weight and the approval

and Development Permit may not be regarded as invalid. Taking this approach, in

the end the appeal still fails. 17

B. The “Roy Somerville” Argument

[22] The ruling on the preliminary point was that once the Council or the court was

asked to make a decision under s. 3.5.22 or s. 3.5.33 of the IPA, the Council was not

estopped from setting up the invalidity of its original approval as relevant to such

decisions. It would be odd if the invalidity of something sought to be extended

could not be considered. The appellant now raises an estoppel against the Council

in a more subtle form. It submitted that Roy Somerville (decided upon earlier

legislation) and later applications of it under the P&E Act show that,

notwithstanding the terms of Clause 28 of the Planning Scheme (set out in the

reasons of 25 October 2001) “the Council had the power to issue the 1998

Development Approval”. Mr Daubney’s argument was:

“8. In Roy Somerville Surveys v. Logan City Council [1994] 1 Qd R 440, the Full Court considered the effect of section 33(16C) of the Local Government Act 193, which provided relevantly as follows:

‘It shall be unlawful for the Local Authority in the case of an application –

(a) (for) inclusion of land from a zone and the inclusion of the land so excluded in another zone; (b) to open a new road or subdivide land; or (c) for approval, consent or permission to use land or use or erect any building or other structure for any purpose,

to subject the approval of the application to a condition that is not prescribed by the scheme or by by-law or reasonably required by the rezoning of the land, the opening of the new road, the subdivision of the land, the use of the land, or the use or erection of the building or other structure in respect of which the application relates.’

The Court held that the section distinguished between circumstances in which a town plan prescribes expressly that a particular condition shall be imposed on any approval, on the one hand, and the expression in the plan of ‘requirements’ for an approval on the other. In regard to a plan which sets out ‘requirements’, it is subject to the overriding qualification that these requirements ‘be relevant to the particular proposal and reasonably required by it’. 18

9. The 1998 DA was processed under the provisions of the Local Government (Planning and Environment) Act 1990. Section 6.1(1) of that Act relevantly provided:

‘Where an application is made to a local government:

(a) pursuant to part 4 or 5;

(b) for any approval, consent or permission to use land or use or erect any building or other structure for any purpose as required by a planning scheme;

the local government is not to:

(c) subject its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates, notwithstanding the provisions of a planning scheme; ...’

10. This section clearly preserved the overriding qualification which had been the subject of the judgment in Roy Somerville ...”

[23] See now s. 3.5.30 of the IPA:

“Conditions must be relevant or reasonable

(1) A condition must –

(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or

(b) be reasonably required in respect of the development or use of premises as a consequence of the development.

(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”

and Jezreel.

[24] To the extent that this court’s views matter, the evidence does not show

unreasonableness in or any lack of relevance of the gross floor area, site cover or

landscaped open space requirements in clause 28(2)(iii) and (iv) respectively. 19

However, the question may be whether a reasonable Council could possibly have

taken another view.

[25] (Yet another basis on which the existing Development Permit could be supported

was briefly mentioned – that is, under the Council’s general mandate as a local

government. If that were the case, then no reference to the P&E Act or the IPA

would be necessary at all. As Mr McMurdo said, however, in that scenario the

appellant would have no basis for making its appeal to this court. For a recent

confirmation of the extent of a local government’s powers see Bone v Mothershaw

(2002) QCA 120.)

Estoppel

[26] In the appellant’s case, the flexibility available to the Council from the point of

view of departing from “mandatory” Planning Scheme provisions according to the

Roy Somerville doctrine is bolstered by the Court of Appeal’s confirmation that

transitional planning schemes are not absolutely binding in Vynotas and Grosser.

So, the appellant argues, the Council could lawfully do what it did in 1998 and

1999, and, if that not be so, is bound by an estoppel. The present estoppel argument

is encapsulated in the appellant’s written submissions:

“19. Whilst it is well settled that an estoppel by representation may not be set up where the effect of that estoppel would be the prevention of the performance of a statutory duty or the exercise of a statutory discretion, this argument is not available where the words or conduct of the authority involves a representation that the duty has been performed or the discretion exercised intra vires –Brickworks Limited v. Council of the Shire of Warringah (19356) 108 CLR 568; Wyong Shire Council v. Associated Minerals Consolidated Limited [1972] 1 NSWLR 114; Rubrico v. Ministry for Immigration (1989) 23 FCR 208. That is precisely the effect of the granting of each of the approvals in 1998 and 1999. On both occasions the Council’s stated position was that numerous of the Planning Scheme 20

requirements had not been met, including site cover and landscaping, but notwithstanding this, the Council passed resolutions granting the approvals, which were then issued to the Appellant. By the issuing of those approvals, the Council clearly and unequivocally represented to the Appellant that the Council had correctly exercised its power to grant the approvals. Indeed, the Council must itself have assumed it had correctly exercised its power to grant the approvals, otherwise it would not have granted them! Each of these representations necessarily carried with it a representation that the exercise of the power was intra vires. The intra vires exercise of the power in this case, for the reasons set out above, would have required an application by the Council of the ‘Roy Somerville overrider’ relating to reasonableness and relevance. By granting the approvals, the Council necessarily represented that it had applied those overriders, and it cannot now contend that the requirements of the Planning Scheme relating to gross floor area, site cover and landscaping were anything other than unreasonable or irrelevant to the application the subject of those approvals.

20. Detrimental reliance is an essential ingredient of a claim for estoppel – the affected party must have so acted or abstained from acting upon the footing of the state of affairs assumed that it would suffer a detriment if the opposite party were allowed to set up rights inconsistent with that assumption – Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, per Dixon J at 674. Detriment is assessed as at the time when the other party seeks to resile. This means, for example, that if a party orders its affairs in reliance on an assumption in such a way that it is now in a more disadvantageous position than it would have been if it had not acted on the assumption, then the necessary detriment is established – Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101. In Commonwealth v Clark [1993] Aust Torts Reports 62, 127, Ormiston J said that the requirement to establish an estoppel may be stated as being that there must be acts, facts or circumstances from which it can be inferred:

(a) that detriment to the party claiming the estoppel is more likely than not to occur if the other party is permitted to depart from the assumption relied upon; and (b) that detriment of that kind will derive from the first party’s proven acts or inaction in reliance on the assumption.”

Has the Appellant relied on Council induced assumptions to its detriment?

[27] The detriment which the appellant relied on includes expenditures deposed to by Mr

Millard, whose evidence was unchallenged. Many thousands of dollars are 21

involved, a proposition that could still be mounted, in my opinion, notwithstanding

that reference to dates suggested professional services of various kinds were

engaged in anticipation of the May 1998 development approval being forthcoming.

Mr Millard also refers to his having authorised almost $60,000 of expenditure “on

tenant fitout costs that, in the absence of a development approval would have been

borne by the tenant and not the appellant.” He says that in or about May 1998, he

caused marketing and public relations firms to be engaged to manage the publicity

and negative tenant response to the appellant’s announcement of the “development

application” at a cost of $7,836.98 – underlying that some of the expenditures he

deposes to must have incurred in an anticipatory way. Considerable detriment was

alleged in reduced rental returns, given that the appellant decided not to offer long

term leases at a certain point, so that some tenants were lost, those who remained or

were found were asked to pay less. While Mr Holman, who gave evidence of these

matters, was an impressive witness, he played no role in the management of Bay

Village before March 1999. The Council was able to demonstrate that the

appellant’s policy of offering only short term tenancies operated as early as

September 1997, before any application was even filed with the Council.

[28] Complicating the issue of “detrimental reliance”, as to which the appellant has

considerably overstated the extent of the “detriment”, is that, in my view, whatever

stance of the Council the appellant “relied” on was not something proffered by the

Council, so much as something the appellant’s representatives talked the Council’s

planner into falling in with. There were a number of affidavits which I thought had

been very deliberately crafted, which gave the impression that it may have been the

Council which pressed for the retention of existing Bay Village retail and

carparking development. It may be accepted that the planning officer, Mr Summers 22

(who did not give evidence) was brought to a position of accepting that the existing

development could remain – then making consequential judgments about how

substantial residential development could be grafted onto it, but it strains credulity

to imagine that the development proposal under consideration was in any way

devised or promoted by the Council. My view is that it was the appellant, and for

perfectly understandable reasons, which wished to maximise the development that

could be achieved on its site (and the financial return therefrom) and devised a

strategy which it hoped would lead to a mixed development with a much larger

retail component than anything comparable in Hastings Street. Exhibit 29 is a

document of 5 February 2001 (of course much later in time) in which Mr Bayer, the

appellant’s architect, canvasses the merits of the appellant’s seeking extensions of

time, as it has done, rather than starting again. The document proceeds on the basis

it was appropriate to allocate 20% of the maximum GFA allowed to “retail”, but

acknowledges “a risk that the one shop per 20 units requirement may apply,

severely limiting the retail area to 300 square metres. We currently enjoy a

relaxation on this requirement and should continue to do so.” The document

records that Mr Bayer and Mr Sobey (the appellant’s town planner) “recommend

that the existing DA be retained and not create new risks with a new DA which may

have outcomes worse than noted above, as the public, new committees and the

planners may vary current favourable relaxations.”

[29] The appellant and its advisers have known of the GFA, site cover and landscaped

open space issues all along. While it omits to acknowledge some of the detail, it is

broadly true to say that the GFA compliance depended on excluding the above

ground level carparking (for which there was no warrant, in contrast with the

ground level carparking) and that the mandatory amount of “landscaped open 23

space” was provided only if landscaping on a podium at the second floor level was

included. I think it is a strong thing to say that if the appellant could persuade Mr

Summers of those propositions, it was “home”. As to the former, the Council was

able to demonstrate on the appeal, by establishing a document trail, that Mr Bayer

(in Ex. 27) was the source of the erroneously low GFA figure of 6683 m² which Mr

Summers or another author (apparently through inadvertence) accepted, in the

Deputy Shire Planner’s Report on the application of 14 July 1999 notwithstanding

the initial approach that the first floor carpark had to be counted. Mr Ball’s affidavit

exhibits a memorandum from his firm, Noosa Town Planning Pty Ltd regarding his

meeting of 4 November 1997 with the Council’s Chief Planner, Mr Weychardt and

Mr Bayer:

“1. Fifth storey as loft not allowed and not negotiable. 2. Gross floor area to; (a) include first level carpark, may delete unused carparks, turn these to units, or recreation room? (b) not to include open access decks. 3. Site coverage to be less than existing. 4. Outdoor eating area not to be counted in landscape calculation...... ”

[30] The Report last mentioned notes:

“GROSS FLOOR AREA.

Table 4.1 indicates a significant reduction in gross floor area, which is a consequence of the change in layout of the unit arrangements. The result has been a reduction in the size and bulk of the unit component of the development. The decked parking provision which currently exists on the site is technically capable of calculation for gross floor area purposes at its upper level, though this has not been included in prior calculations. When included, it consumes most of the gain.

Overall, the changes to the building have not altered in any significant way the size and bulk of building form previously considered by Council. Changes to other aspects such as setbacks and landscaping, which are discussed below, will have the effect of reducing size and bulk from areas external to the site.” 24

[31] A further indication that the appellant appreciated, or should have appreciated that

its proposal was a risky one in the sense of pushing boundaries, is Mr Ball’s file

note of 4 February 1998:

“In a phone discussion on 3 February 1998 Noosa Council Deputy Town Planner Paul Summers confirmed that the basis of the application was that a large part of the existing structure on site was to be retained.

This formed part of our justification regarding site coverage and other relaxations sought.

Summers indicated that in his view if during the building application or construction process it was decided that it was too difficult or expensive to retain the existing structure and the existing structure was demolished that the Planning Approval sought through this application would be void and have no right to be completed.

I am not sure if his view is correct and a legal interpretation should be obtained prior to this course of action being considered.”

[32] The appellant’s estoppel comes down to the somewhat unattractive one that it

deliberately cajoled the Council into making a close decision which was

questionable, if not clearly wrong, and then proceeded itself on the basis the

decision was good. Accepting that enough is shown to found an estoppel, I do not

think the appellant’s success in this regard affects the subject matter of this appeal.

The appellant is still in a position of saying that the Council has effectively

hamstrung itself (and in turn the court) for purposes of making the decisions

referred in s. 2.5.23 and s. 3.5.33(7) of the IPA. I adhere to the view reached last

October that there is no estoppel open against the Council in those respects.

[33] Let it be assumed that the Council may face difficulty if it went on the offensive to

prevent the appellant from doing what in terms of the Development Permit it is

authorised to do. The old adage that “Estoppel is always a shield and not a sword” 25

invoked in Waltons Stores (Interstate) Limited v Maher (1987-88) 164 CLR 387,

391 no longer holds: Ibid 400 ff. Estoppels are not open only to defendants or

respondents. The controlling consideration has come to be unconscionability.

Here, the Council has done nothing to suggest that the life of the development

permit (whose belated issue was attributable to the appellant’s 1998 appeal) might

be extended; indeed, the reasons given for Condition 36.1’s inclusion tend to

suggest the contrary. While contending that the 1998 approval and the 1999

Development Permit were beyond its power to issue, the Council has taken no

positive step to enforce that proposition. On a new development application a

permit to similar effect probably could not be granted, it should not be granted

without further public notification. In my opinion it would be unconscionable or

close to it for the Council, representing the public interest, to be held bound to the

subtle estoppels now advanced with the effect that an invalid approval with a

limited life may be extended, and possibly indefinitely. There is much flexibility as

to the remedy available where there is an estoppel established, see The Laws of

Australia (LBC) 35.6, [27], [38] and Waltons Stores, at 419 where Brennan J said

the court “goes no further than is necessary to prevent unconscionable conduct”. At

the very most, the court might hold the party estopped to the assumption induced –

see per Dixon J in Thompson v Palmer (1933) 49 CLR 507, 547, discussed in Laws

of [38]. Here, although the possibility of an extension may be inherent in

any time limited approval or permit, the evidence does not justify the appellant’s

setting up any positive assumption or expectation about getting more time.

[34] There is no need to determine the difficult question whether the 1998 and 1999

approval and permit were invalid or not, according to the approach indicated in

Project Blue Sky Inc. v The Australian Broadcasting Authority (1998) 194 CLR 26

390. This aspect was briefly adverted to by Mr Litster when the preliminary issues

were argued. On the appeal proper, no submissions were made by reference to what

the High Court said. There are decisions in this court noted in the reasons of 25

October, 2001, paragraph [31] consistent with the view that approvals not

authorised by a planning scheme may be established to be invalid by a third party.

Are the considerations different if the challenge comes from the entity that granted

the approval? Most people would probably feel some natural impulse against

holding void an approval that had ripened into a development completely

constructed, the more so the more the developer was ignorant of having run risks or

of the existence of a likely challenger. The judgment may be made that some

consequences of some void “approvals” ought not be undone, especially at the

instigation of the approver. The present case does not present an equivalent degree

of difficulty.

Does Roy Somerville apply under the IPA and the P&E Act?

[35] In the circumstances it may be unnecessary to note the submissions made by the

Council regarding Roy Somerville Surveys, but they seem to be important and

deserving of notice. The Council’s submission was that, by reason of changes in the

legislation, the doctrine of Roy Somerville Surveys is inapplicable under the regimes

of the P&E Act and the IPA. What is missing from the later provisions is the

equivalent of s. 33(16C)(c) of the Local Government Act 1936 which provided:

“A requirement prescribed by the Scheme or by by-law does not apply with respect to any approval, consent or permission specified in paragraph (a) in a case where, under that paragraph it would be unlawful for the local authorities to subject the approval, consent or permission to that requirement as a condition thereof.” 27

In Roy Somerville, responding to an application for rezoning, the council had sought to impose conditions which reflected requirements of its town planning scheme, but neither its scheme nor any by-law prescribed the same matter as a condition of such an approval. The submission continued:

“The condition was not reasonably required in the particular case. Accordingly, the question was whether it was valid, because it represented the express requirements of the town planning scheme. This involved the proper interpretation of (c). The question thus became whether the relevant (car parking) requirement of the scheme was a ‘condition prescribed by the scheme or by-law’ within paragraph (a) of s. 33(16C). There was a recognised distinction between conditions of approval and requirements of by-laws. Thomas J (with whom the other members of the Court agreed) agreed with the following observation of Quirk DCJ in Gatehouse v. Brisbane City Council [1984] QPLR 90 (at 96):

‘It appears to me that the legislature, in its wisdom, has, except for very special circumstances in which the Plan prescribes expressly that a particular condition shall be imposed on any approval, left the applicability of ‘requirements’ in regard to re-zonings, subdivisions, and consent uses subject to the overriding qualification that they be relevant to the particular proposal and reasonably required by it.’

11. Accordingly, Roy Somerville Surveys turned upon the interpretation of paragraph (c) of s. 33(16C) which expressly affected the validity of requirements of planning schemes or by-laws. It recognised and proceeded upon the distinction between a requirement of a scheme or by-law and a condition imposed upon a specific approval.

12. Roy Somerville Surveys is not authority for the general proposition that a local authority can override its own town planning scheme. Instead, it resolved the proper interpretation of a provision which specifically addressed the application of a scheme or by-law.

13. By contrast, the PEA, and in turn the IPA, do not contain an equivalent of paragraph (c) of s.33(16C). They contain provisions affecting the validity of conditions imposed on a specified approval, but not the application of the express requirements within a scheme. The difference between a condition and a requirement is clear: the condition affects the content of an approval in a specific case, whereas a requirement is a legislative provision of general application being an element of the planning scheme or by-laws: PEA 28

ss.2.15(9) and 8.10(3). So the PEA (s.6.1(1)) did not address the application, even in an individual case, of requirements such as the three requirements of the planning scheme in question. Similarly, s. 3.5.30 of IPA addresses conditions of an approval, not the legislative provisions constituted by requirements of a scheme or by-laws. Instead, a Council was bound to implement, administer and enforce its planning scheme and was bound thereby: PEA s.2.1.16(1).

14. It is not surprising that the legislature, by the PEA and then IPA, abandoned the particular provision applied in Roy Somerville Surveys. There were difficulties presented by the construction which found favour in that case as Thomas J then recognised (p. 445).

15. Absent a provision equivalent to paragraph (c) of the former s.33(16C) there is nothing in the PEA or IPA to found the proposition that a local authority may act inconsistently with the requirements of its own planning scheme provisions. Its power to impose conditions in a particular case is constrained by the necessity to be reasonable, but the lawfulness and applicability of its planning scheme is relevantly unaffected.

16. Absent a provision such as s.33(16C), ‘Courts have long denied any right to ignore the requirements of legislation (including subordinate legislation) on the ground that it is unreasonable. (Thomas J at p. 445) The consequence in the present case is that the Council was not empowered to grant an approval inconsistently with the application of these requirements of its planning scheme. Its power to consent to a use was limited to a use which complied with those requirements. Insofar as it purported to a permit a use which did not comply with those requirements, it acted beyond power and any purported approval was of no effect. In this context, it is irrelevant to consider whether those requirements were reasonable in the particular context of this proposed development.”

I agree with that submission.

1999 Application to be Processed under P&E Act

[36] The Council also distinguished Vynotas, as concerned with s. 6.1.29 of the IPA,

and the considerations listed there. The decision was that the primary judge was not 29

required under sub-s.(3)(b) to regard the “Transitional Planning Scheme” of

Brisbane as binding in particular circumstances. There, the developer’s application

had been made under the IPA in October 1998 (see (2001) QPELR 14, 16F). The

present appellant’s application was made in November 1997, before the IPA

relevantly came into effect in March 1998. The present application, being one made

before the commencement of s.6.1.25 of the IPA, had to be dealt with under that

section. Further, the application (being within IPA s.6.1.23(1)(b)) is caught by sub-

s.(1)(a) and “must proceed” as if the P&E Act had not been repealed. In my view,

for the reason given, Vynotas has no application here.

[37] The parties presented opposed views as to whether what occurred in 1999 was

under the P&E Act, as the Council contended, or under the IPA, as the appellant

contended.

[38] If the appellant is correct, it may gain some benefit from the Vynotas point. The

appellant’s argument was that the 1999 application, in the IDAS form, was one for a

change of conditions pursuant to s.3.5.33 of the IPA. On that basis, sub-s.(7)(a)

provides that to the extent relevant, the Council must assess and decide the request

for a condition to be changed having regard to the matters it would have had regard

to if the request were a Development Application. The appellant’s argument says

that this, in turn, imports the provisions of ss.6.1.29 and 6.1.30. That argument is

difficult to accept. Division 8 of Chapter 6 of the IPA (Applications made .. after

the commencement of this division) is limited to apply to “development

applications for assessable development made after the commencement”

(s.6.1.28(1)). Section 3.5.33 is remarkable for avoiding any reference to an

“application” except as referring to the original underlying application (sub-s.(7)(b) 30

and sub-s.(7A) and by making relevant matters which would be considered “if the

request were a Development Application”. The expression “the request” is used

throughout the section, except in sub-s. (2) which says the developer may “ask” for

a condition to be changed. I do not think it is possible to bring such a “request” as

the 1999 one here under Division 8. Further, it is doubtful whether there was even

any “condition” to be changed. Part 5 Division 6-Conditions applies only to a

“condition in a Development Approval” (s.3.5.29). In this case, the application of

10 November 1997 was not effectively decided or dealt with until 30 September

1999 and 1 October 1999 when the “approval” given ripened into the “permit”

referred to in the P&E Act s. 4.13(12) ff. Note in particular sub-s. (17) whereby “an

approval ... has no force or effect until a permit has been issued” (and, as a

counterpart of s. 3.5.21 of the IPA, sub-s. (18)(a) whereby a permit lapses “where

the use ... the subject of the approval in respect of which the permit was issued, has

not been commenced within 4 years of the date of issue of the permit ...”). To 1

October 1999, the effect of the IPA was that the appellant’s application proceeded

entirely under the P&E Act. There is nothing novel about the four year currency

period in the IPA. The P&E Act contained in s. 4.15 provision for applications

seeking modification of applications, approvals or conditions.

2001 Application to be processed under IPA s. 6.1.29

[39] The Council accepts that the appellant’s current “requests” are made under the IPA.

The appellant’s submission regarding the 1999 application appears to apply to the

subsequent application/request. That brings in s. 6.1.29 and the Vynotas point so

that the Transitional Planning Scheme provisions may not be absolutely binding: the

submission acknowledges it is “clear that they should be given considerable weight 31

(Grosser).” Given that nothing in post 1990 Planning Schemes assists the appellant,

it fails to show that either of its “requests” ought to succeed.

[40] It should be made clear that no weight has been given to Exhibit 35 – “Proposals for

The Noosa Plan: Choosing Futures 2015” issued by the Noosa Council Strategic

Planning October 2001, although it is some support for Mr Robinson’s opinions

about what the community might think. On p. 48, dealing with Hastings Street, the

document expresses various views, including the following:

“In the past, limiting building height to 4 storeys has led to developments that maximise site cover and subsequently reducing landscaping and restrict views and spaces between buildings. While the height limit enhances the street’s character, the loss of spaces between buildings creates a wall-like effect. The bulk created by continuous 4 storey, flat roofed buildings on each side of the street can be unappealing.”

“NH2 Should the Noosa Plan require new development to have increased building setbacks, reduced height and more open space, as a means of opening up vistas from the street?”

The document is essentially a discussion paper inviting interested persons to

respond to the questions asked. It cannot be said that it even incorporates a Council

view, let alone anything in the nature of a policy. NH2 does not indicate a chemical

composition, rather the identifying number of one of the questions relating to Noosa

Heads.

Merits of Appellant’s Proposal Considered

[41] In the circumstances, it seems useful for the Court to form and express views

regarding the merits of the appellant’s proposal, rather than simply refuse to make

any order advancing it on the basis that the 1998 and 1999 approval and permit

were invalid. 32

[42] As to landscaped open space, the situation is unsatisfactory. The Planning

Department’s report of 15 May 1998 dealt with the subject in this way:

“4.1.1 Landscaped Open Space

The circumstances of landscaped open space requirements have varied considerably during the course of negotiation over this project. The original discrepancies in landscaped open space requirement and provision occurred as some units were proposed to include studies, which will be used as bedrooms and no landscaping allocation had been made by the applicant for these. During the course of negotiations, as unit numbers, bedroom numbers and parking layouts varied, so too has the required landscaped open space and the provided landscaped open space.

At present about 1800 m² of landscaping is proposed, with a shortfall of around 39 m². Parking modifications can be made to yield more deeply planted areas to achieve full compliance with requirements. Such calculations will exclude the podium landscaping (at level 2) which will serve as direct recreation space for the units.”

and made a recommendation that the application be approved subject to conditions

including, under A-B building:

“2. The plans submitted for a Development Permit (Building Works) are to comply with the following requirements:-

2.1 Provision is to be made for 1838m² of landscaped open space, exclusive of the podium level landscaping, provided that if the population density is further reduced, the requirement for landscaped open space may also be reduced consistent with Scheme provisions.”

[43] For some reason not revealed, when the Council formulated the conditions attached

to their Decision Notice of 1 October 1999, the recommendation was not picked up.

All that could be pointed to as requiring the appellant to provided landscaped open

space is approved drawing BA08a – Landscape Area Plan, reproduced in Figure 3

of Mr Venn’s report. It shows hatched areas at the Hastings Street level and bears

the note, printed in the largest section, “Landscape Area 1810 sqm”. Immediately

adjacent to a semi-circular, differently hatched “covered outdoor area 80sqm”. 33

Accepting that some recalculation has identified 1810m² as the non-relaxable

landscaped open space area, it seems to me that, on the basis of the documentation

that exists, landscaped open space is going to be what is left of the site when the

buildings are excluded and that it will be a matter of chance whether there is

sufficient landscaped open space. The approved plan and conditions are obscure as

to whether the landscaping on Level 2 attracts any credit. I have determined that it

does not. There is much force in the Council’s criticism of what is proposed at

ground level:

“much of the area included within landscaping is the planting of the fire exit on the eastern boundary, none of which will be visible from Hastings Street, and some of which will be visible from a point in Noosa Parade directly in line with that fire exit, but not otherwise. A good deal of the area, if “landscaping” as defined, is effectively a shopping mall.”

[44] A consequence of the development existing on the five small parcels referred to in

paragraph [2] is that from Hastings Street the landscaping will be visible only to a

limited extent. If the idea of landscaped open space is to enhance the enjoyment of

a development site from outside, circumstances here conspire to frustrate that intent.

It should not be thought that I make any criticism of Mr Swanson, the appellant’s

landscape architect, who has done a job of high quality in carrying out his brief. His

difficulty is that so much of the existing retail and parking areas is to be retained.

The only positive damage to be done by the appellant’s proposal (from his point of

view) will be the loss of an attractive, well established leopard tree close to Hastings

Street. That should be more than made up for by three replacement trees proposed.

Planting in Noosa Parade will be intensive, on a small area, and serve to screen

and/or often the development, in particular the carpark there at present, and to be

retained, which all account unsightly. In Noosa Parade there will be a second

“screen” produced by enhancement of the planting which already exists on a 34

Council/median strip. There may be some planting of the roadway or footpath in

Hastings Street, as well. While such use of public land should be taken into

account, it cannot be used to assist the appellant to meet any minimum requirement

under the Planning Scheme.

[45] Views regarding the proposed development and its design vary. It represents a

creative response to a site which is unusual, because of the existing development.

Mr Sobey gives a fair description of the proposal in his report, Exhibit 5:

“6.1 THE PROPOSAL

The proposal is for a mixed use development of the site comprising 57 multiple dwelling units and a maximum 23 commercial tenancies to be used for shops, professional offices, medical centre and / or restaurants. The Hastings Street frontage section of the site will comprise ground level commercial tenancies with three levels of units above. The Noosa Parade frontage section of the site will comprise two levels of carpark, with two levels of units above. The units are designed in a ‘U’ shape with a central landscaped podium facing Hastings Street.

The site is not a greenfield site and reuse of the existing development is proposed. Significant parts of the existing development will be retained and includes the majority of the existing two level carpark and approximately 88% of the existing ground level retail area (as advised by The Buchan Group Architects). This development approach is in keeping with the intent of sustainable development, through reuse and minimising waste of the existing structure. The proposal is not about wasting community resources.

The proposal will reduce the existing site cover, reduce the existing commercial uses and introduce a significant residential component. The proposed redevelopment is generally consistent with the land use intent for the site under the Strategic Plan and Planning Scheme zoning.

The proposal is a balancing exercise taking into account the existing development, planning intent and an outcome which is an improvement to the existing situation.”

He proceeds to identify as issues requiring considering: 35

S existing character

S non compliance with Planning Scheme provisions

S character contemplated for Hastings Street

S should the development be approved

As to the last, his list of “positives” is defensible:

S Proposal is consistent with the intent of the Planning Scheme and Strategic Plan S Proposal is consistent and compatible with the established character in Hastings Street and Noosa Parade S Proposal adds a significant residential component to the site S Proposal reduces existing site cover S Proposal reduces extent of existing commercial use S Proposal minimises waste through reuse of existing development structures S Proposal improves building setbacks and landscaping to Hastings Street S Proposal removes existing building encroachment onto Noosa Parade S Proposal improves building design, landscaping and visual presentation to Noosa Parade S Proposal includes a significant internal landscape component above ground level

The negatives Mr Sobey acknowledges are the proposal’s failures in respect of

GFA, sitecover and landscaped open space.

[46] Mr Robinson condemned the building design, which he found “boring”; lest he be

left in sole command of the field as to aesthetic matters and community

expectations, the appellant sought (and was permitted) to call Mr Job, who was

prepared to bestow on the proposed building the accolade of “pleasant”. They

differed about whether the western elevation was just a long wall. The design was

said to be substandard insofar as bedrooms are located adjacent to ground access-

ways, compromising security. The fact is that the Council concluded the proposal

was acceptable in 1998 and 1999, against a background of successive 36

improvements. It is odd to be examining the minutiae of the proposal, such as the

suitability of the location of refuse facilities, in these circumstances.

[47] The Council was assessing the proposal against a 1990 Planning Scheme which has

been replaced by a more restrictive one (within weeks of the Development

Application’s being lodged). In those circumstances, there was nothing

inappropriate in Condition 36.1, which was based on the standard currency period

fixed by legislation, and an assumption that the appellant would not delay progress

of matters. Should the developer be allowed more time (twice what was originally

available) to proceed to development according to standards which were rejected by

planning authorities for the Shire as inappropriate after December 1997, especially

as it is now clear that the proposal did not even comply with the old requirements as

to GFA, site area and landscaped open space?

[48] The proposal, considered on its own merits, that is, without reference to the

Planning Scheme, does not exhibit such negative features that it ought to be

rejected. On the other hand, it exhibits no particular positive attributes which would

make construction of the project such a benefit for Noosa Heads that, if at all

possible, relaxations and indulgences should be offered to overcome obstacles in the

form of requirements of the Planning Scheme and the ordinary effects of the

standard currency period and of a condition which did not attract any appeal. My

view is that it was not within the Council’s powers to grant the de facto relaxations

regarding GFA, site cover and landscaped open space which it did (and perhaps

without full realisation of what it was doing) in 1998 and 1999. The appellant has

pointed to arguments fairly open that the Council did have such power. Assuming

those arguments to be valid, what the Council approved would stand, in the absence 37

of successful challenge from any quarter. Revisiting the matter in August 2001,

upon the appellant’s later application, the Council was entitled to take a different

view, not being estopped in any relevant way.

[49] In the result, the appellant, which carries the onus under the IPA s.4.1.50(4), has not

persuaded this Court that its latest application ought to be successful. In summary,

the court does not dissent from the assessments quoted in paragraph [11] above

from the Council’s letter of 21 August, 2001.