Just to our South, the residents of Coolum and Yaroomba are engaged – once again – in an epic community battle against a giant developer, their own Council and the findings of the same judge – twice – that their Town Plan doesn’t actually count for much when it comes to building heights and density.
In simple terms, the judge said she considered the interests of the community in relation to the development and then exercised her discretion to override those interests and approve the development, up to 7 storeys in a place the Town Plan said should be TWO storeys at most.
The Sekisui-Yaroomba case has become infamous. An ecologically important slice of beachfront land just south of Coolum, a controversial (6-5) decision by the previous developer-friendly Sunshine Coast Council, over 9,000 community submissions against it, a judge’s ruling in favour of the development, a massive community effort to finance a successful appeal to the Supreme Court, then back to the same judge and the same decision…and now – a second appeal.
What an extraordinary test of community endurance against a system weighted against them.
The Queensland Court of Appeal has held that “…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.
It has also said that “The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.”
Yet the judge in the Sekisui case referred to her “judicial discretion” which she exercised and which exists in section 45(5) of the Planning Act 2016. This discretion is also available to the Council assessment manager.
The community is allowed an input where the development is “impact assessable” and, while the assessment must be carried out against the assessment benchmarks, it “may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.”
It is the relatively undefined nature of “any other relevant matter” that creates the discretion, which undermines the significance of the planning scheme in the assessment process, and can tip the overall balance from being in the public interest to favour development.
Because planning schemes are drafted by Councils, subjected to public consultation, then approved by the State and, required to be updated regularly, the planning scheme should not be overriden, simply interpreted.
Developers have a significant advantage over the community in having their applications approved as assessment is mainly based on evidence selected, provided and paid for by the developer.
While the community does have the opportunity to make submissions on impact assessable applications, the time provided by the Act is very limited and the community frequently requires technical assistance which can be timely and costly, with residents rarely organised for such a complex task.
The resort to the undefined “any other relevant matter” can undermine the community confidence in the process and unfortunately result in accusations of bias.
While bias of an individual may be suspected, it is difficult to prove.
However, the bias of the Planning Act in favour of developers is clear and while the views of the community are to be ‘considered’ they are by no means treated as dominant.
Communities like ours are led to believe their Planning Scheme promises them protection against greedy, out-sized developments, but these ‘discretionary’ powers in Queensland law are wide enough to drive a developer’s bulldozer through.
With this built-in weakness, it’s more important than ever that we elect a Mayor and Councillors prepared to stand up and defend their Town Plans as best they can.