In brief

The case of Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54 concerned an appeal to the Planning and Environment Court against a decision by the Noosa Shire Council (Council) to refuse a development application lodged by owners of land which forms part of the existing development known as Beach Road Holiday Homes (Appellants). The development application sought flexibility to use 12 of the 48 houses within Beach Road Holiday Homes for permanent residential accommodation. 

The Planning and Environment Court dismissed the appeal for the following reasons:

  • The proposed development would offend the underlying planning policy to avoid the co-location of incompatible uses.

  • The proposed development would offend the underlying planning policy to ensure that the listed uses do not displace the opportunity for consistent uses.

  • The proposed development would undermine the Council's clear planning strategy which is to characterise all uses as either consistent or inconsistent uses in each zone and locality, and to sustain the tourism industry in Noosa.

  • There were no sufficient grounds which warranted approval of the proposed development.

Proposed development

The subject land is located at Noosa North Shore and is zoned as Visitor Mixed Use in the Noosa Plan (Amendment No 5) (Noosa Plan). The existing development comprises 48 houses, a central facility area, a manager's residence and other infrastructure for the purpose of providing short-term visitor accommodation. The existing approval prevents the Appellants from using the houses for permanent accommodation. 

The proposed development sought flexibility to use 12 of the 48 houses for either short-term visitor accommodation or permanent residential accommodation. The Council refused the application on the basis that the proposed use for permanent residential accommodation would conflict with the planning for the Noosa area. 

Relevant conflict with the Noosa Plan

The Sustainable Planning Act 2009 (Qld) (SPA) was in force at the time the development application was made and at the time the appeal was filed and therefore the SPA continued to apply to the appeal by force of the transitional provisions in the Planning Act 2016 (Qld).

The Council argued that there are three conflicts with the Noosa Plan which justify refusing the application. However, the Court found the evidence demonstrated that only one of the asserted conflicts had any merit. That sole conflict was confined to specific outcome O22 in the Noosa Plan which relevantly stated as follows (underlining added):

"O22  The following defined uses and use classes are inconsistent uses and are not located in the Visitor Mixed Use Zone -

k) Detached house;"

The Noosa Plan also contains the following relevant definitions: 

Inconsistent use - "the use is strongly inappropriate in the relevant zones because it is incompatible with other uses generally expected in that zone".

Detached house - "the use of premises for a single dwelling unit which comprises the whole of the building on one lot. The term includes uses and works incidental to and associated with the detached house. The term includes the temporary use as a display home or removal home. The use is not divided further".

The Appellants argued that the conflict with specific outcome O22 would be so minor as to be wholly insignificant. It was argued that the proposed development would not interfere with the underlying planning policy of the specific outcome, which is to avoid the co-location of incompatible uses. 

In response, the Council argued that the conflict would be significant for two reasons: firstly, the proposed development would offend the planning policy concerning co-location; and secondly, the proposed development would offend another underlying planning policy which ensures that the listed uses do not displace the opportunity for consistent uses.

The Court ultimately agreed with the Council, and concluded that the conflict would be significant and that there were no sufficient grounds otherwise warranting approval of the application. 

Proposed development would offend the underlying planning policy to avoid the co-location of incompatible uses

In considering the nature and extent of the conflict, the Court held that the proposed development would offend the planning policy to avoid the co-location of incompatible uses. 

The Court referred to specific outcome O21, which informs what uses are generally expected in the Visitor Mixed Use Zone (underlining added):

"O21 The following defined uses and use classes are consistent uses and are located in the Visitor Mixed Use Zone - 

a) Entertainment and dining Type 1;

b) Home-based business Type 1 or 2;

c) Open Space; and

d) Visitor accommodation Type 2 or 3."

The Appellants argued that a "Detached house" use is not incompatible with the uses referred to in specific outcome O21 because paragraphs (b) and (d) of the specific outcome contemplate permanent residential occupation. It was said that therefore the drafters of the Noosa Plan plainly acknowledge that houses in the Visitor Mixed Use Zone will be permanently occupied.

The Court rejected this view and relevantly held as follows:

  • The definition of "Home-based business" only includes the business use. If it were to include both the residential use and the business use, an application for a development permit could be approved for an inconsistent residential use by establishing a home-based business (at [56], [59]).

  • When the Noosa Plan is read as a whole, it is clear that the Council's planning strategy is to characterise all uses as either consistent or inconsistent uses in each zone and locality (at [60]).

  • The "Visitors accommodation" class only contemplates permanent residential occupation to facilitate on-site management of the visitor accommodation (at [62]).

The Court also stated that the clear planning strategy of the Noosa Plan was to sustain the tourism industry, and that a "Detached house" had the ability to reduce the extent of available visitor accommodation. The Court gave weight to evidence provided by the general manager of the parent company to Beach Road Holiday Homes, which highlighted significant difficulties arising from the co-location of short-term and permanent visitor accommodation within a resort.

Proposed development would offend the underlying planning policy to ensure that the listed uses do not displace the opportunity for consistent uses

The Court also held that the proposed development would offend the planning policy to ensure that the listed uses do not displace the opportunity for consistent uses. 

This planning policy was said to arise because specific outcome O22 deliberately states that the inconsistent uses are "not located in the Visitor Mixed Use Zone". The Court stated that this "additional requirement … reflects a planning policy to avoid the establishment of those uses in order to preserve the opportunity for establishment of uses that are encouraged (as consistent) in the Zone".

The Court held that in this case, the proposed development would offend this planning policy. The establishment of permanent accommodation on the subject land would result in the exclusion of consistent uses as prescribed under specific outcome O21 of the Noosa Plan. 

Appellant did not demonstrate that there were sufficient grounds to warrant approval despite the conflict with the Noosa Plan

The Court noted that despite the conflict, the development application ought to be approved if there were sufficient matters of public interest to justify approval despite the conflict. However, the Court noted that this had to be balanced against an assumption that it is in the public interest to maintain the terms of the Noosa Plan unless demonstrated otherwise.

The Court ultimately concluded that the Appellants did not demonstrate that there were sufficient grounds to warrant approval despite the conflict. A number of the key reasons for this conclusion are summarised as follows: 

  • The Appellants argued that the existing development and the surrounding locality had not been developed as planned, and that the maintenance of the status quo would involve maintaining an existing inconsistent use. The Court held that it was not satisfied that the replacement of one inconsistent use with another would result in a better planning outcome, nor did the Noosa Plan contain an express provision permitting such an approach.

  • The Court noted that the lack of proximity to Noosa commercial centres would result in a slower rate of growth for Beach Road Holiday Homes. The Court noted that although greater utilisation of housing was desirable, the evidence suggested that there could be detrimental effects on the attractiveness of the resort if permanent accommodation was introduced. The Court was ultimately not persuaded that approval of the proposed development would produce increased occupancy rates or other economic benefit. 

  • The management rights for the Beach Road Holiday Homes had been recently acquired, and the evidence of the new manager demonstrated that there had been a significant improvement in occupancy rates since the management rights had been acquired. 

  • The Appellants argued the proposed development would not result in any detrimental impact on the tourism sector. The Court held that although the impact on the tourism sector would be small, it would still increase the likelihood that the houses would not be available for short-term accommodation. The Court stated that having a diverse range of accommodation types is consistent with the Council's planning strategies as articulated in the planning scheme. 

Although the Court acknowledged that a number of factors weighed in favour of approving the proposed development, it was not persuaded that those matters were "of sufficient weight to overcome the clear planning strategy with respect to tourism apparent in the Noosa Plan". The Court held that it was not in the public interest to allow the development application, and the appeal was dismissed.

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 2020.

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