Today’s court victory for the community over Sekisui and the Sunshine Coast Council is not just a victory over a massive, billion-dollar, high-rise development in the environmentally important coastal strip at Yaroomba. It could prove to be a victory for all Queensland communities. Here’s a take on today’s decision from PBCA President and former barrister Barry Cotterell.
The Decision in Development Watch Inc v Sunshine Coast Regional Council & Anor  QCA 6 (The Sekisui Appeal)
The Court of Appeal found that the judgment in the Planning and Environment Court was affected by the three errors of law.
Firstly, “Although her Honour noted substantial opposition to the development and, by implication, concerns about the height of some of the buildings and structures, no finding was made as to the local community’s expectations regarding height…
Absent any finding as to the expectations of the local community regarding the height of buildings and structures, the reasonableness of the local community’s expectations in light of the planning provisions applying to the subject land could not be assessed, let alone compared to the actual proposal to determine whether the two were consistent. The failure to make such a finding was an error of law.”
“Second, although the planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the land, there was in this case a credible source of evidence as to the expectations of the local community, and a substantial one at that… The height of the proposed development was a recurring ground of objection in virtually all the opposing submissions that were placed before the primary judge.
The Court, referring to the decision, said “The problem with such a broad-brush approach is two-fold because it overlooks the need to first determine what the expectations of the local community were concerning the height of any development and gives primacy to the planning scheme to such a degree that it set to nought the evidence sourced from the local community.
The court was required to take that evidence into account as part of the common material but that did not occur because any opposition to the proposed development was seen to be trumped by the planning scheme. This was another error of law.”
The third error arose because the Court of Appeal was not “persuaded that the primary judge was free to ignore Version 18” which was “the most current indicator of what was considered to constitute, in the public interest, the appropriate development of the land”.
The court stated that “the primary judge made specific reference to the 2007 Approval having been granted “12 years ago” before observing that “the planning needs of the community are not static or immutable”. Whilst that may be accepted, her Honour went on to hold that it “is reasonable for the community to expect that the subject land might be developed for a more intensive form of development …” than that which was permitted under the 2007 Approval. However, if contextual notice had been taken of Version 18, it would have been readily appreciated that the planning scheme had headed in the opposite direction. Simply, the change to the planning scheme brought about by Version 18 was a relevant consideration in that sense and ought to have been accorded significant weight. The failure to do so was another error of law.”
The result of the Court of Appeal decision is to again emphasise the fact that “the planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the land” but that there is a need to first determine what the expectations of the local community were as set out in the evidence sourced from the local community by way of the submissions to Council.
This is a clear statement that both the Council and the Planning and Environment Court need to take the evidence sourced from the local community by way of submissions into account in order to determine the expectations of the local community with regard to the development.
Barry Cotterell. PBCA President.