The case of Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 44 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Douglas Shire Council (Council) to refuse a development application for a material change of use for a resort complex (Proposed Development) in respect of a vacant parcel of land at 71 to 85 Port Douglas Road, Port Douglas, Queensland (Subject Site).

Under the relevant planning scheme, being the Douglas Shire Planning Scheme 2018 (version 1) (Planning Scheme), the Proposed Development is impact assessable.

The outcome of the appeal was largely informed by the Court's findings with respect to "…the appropriateness of the design and landscaping…having regard to its character and amenity impacts and the appropriateness of the scale of the use proposed to be located on the [S]ubject [Site]" (at [29]). Based on these findings, the Court upheld the Council's decision to refuse the Proposed Development and dismissed the appeal because it was not satisfied that it reflects the character and amenity of the Port Douglas locality, that the scale of the Proposed Development complies with the relevant assessment benchmarks, and there were no relevant matters favouring an exercise of the Court's discretion to approve the Proposed Development.

The tropical resort town of Port Douglas is located approximately 65 kilometres north of Cairns, Queensland. Significantly and importantly, Port Douglas is situated between the Great Barrier Reef and the Daintree Rainforest, which are internationally renowned UNESCO World Heritage natural attractions. The proximity to these natural attractions as well as the general character and scenery are contributing factors to Port Douglas' status as one of Australia's premier tourist destinations (at [1]).

The Proposed Development involves a luxury five-star resort complex contained in a single building which measures approximately 165 metres long and 75 metres wide, and that comprises five levels, 240 guest rooms for visitor and tourist accommodation, extensive leisure facilities, a rooftop terrace as well as 332 car parking spaces, 14 motorcycle bays, and 88 bicycle bays (see [4] and [321]).

The Council argued that the design of the built form and the landscape character of the Proposed Development is unacceptable because it would cause unacceptable impacts on the amenity, character, and sense of Port Douglas and the local area (at [6]). The Council also argued that there are inadequate proposed car parking arrangements and noncompliance with some of the relevant assessment benchmarks under the Planning Scheme (see [5] and [11]).

The Applicant disputed the allegations of noncompliance with the Planning Scheme and argued that the Court should have regard to the economic need and other benefits of the Proposed Development, and approve the Proposed Development even if it does not comply with some of the assessment benchmarks pursuant to section 60(2)(b) of the Planning Act 2016 (Qld) (Planning Act) (see [12] and [16]).

The Planning Scheme recognises the character and sense of place as being critical to the tourism industry, which alongside the sugar cane industry, is a leading industry in Port Douglas for employment, population growth, and economic activity (at [53] and [359]). The Court emphasised that "…a strong planning policy to maintain the distinctive sense of place and character of Port Douglas and the various communities within Port Douglas" can be discerned from the Planning Scheme, and went on to note that is why the assessment benchmarks require built form to integrate with the established urban qualities that distinguish Port Douglas from other destinations in Queensland (see [51] and [52]).

The Court also noted that in addition to the established urban qualities, there are also certain distinct features that contribute to the distinguished character and sense of place in Port Douglas, and these include the tropical climate, topography, physical setting, dominance of natural environment, dominance of vegetation over built form, forests growing down to the shoreline, and the built-form character of the existing development (see [70] to [78]).

The Council argued that the Proposed Development "…present[s] as an over-scaled, intense resort development which disregards the distinctive tropical vernacular that makes Port Douglas and informs the sense of place for both residents and visitors" (at [31]). The Applicant admitted that the built form of the Proposed Development was different to the existing built form in Port Douglas. However, the Applicant maintained that the Proposed Development could be consistent with the character and sense of place in Port Douglas because it is "…dominated by tropical vegetation and appropriate landscaping" (at [14]).

The Court found that the Proposed Development does not comply with the relevant assessment benchmarks because of its dominant and bulky nature, and inconsistency with the character and sense of place in Port Douglas, and that it does not "…offer a positive or meaningful contribution to the character of the township or the local area within which it sits" (see [166] and [167]).

It was common ground that the nature of the Proposed Development, being for a resort complex, is one that can be appropriately accommodated on the Subject Site. The issue was that the Proposed Development included intense dinning, function, and entertainment uses, which the Council argued could not be appropriately accommodated on the Subject Site because of the possibility that these intense leisure facilities were of a scale that would draw both residents and visitors away from the Town Centre, as the Subject Site is 2.5 km from the Port Douglas activity centre, which would be contrary to the Council's deliberate forward planning strategy (at [266]).

The Court, having regard to the Planning Scheme as a whole, found that "…there is strong encouragement for tourist accommodation uses and entertainment uses in the Port Douglas Town Centre in preference to, but not to the exclusion of, its development in other parts…such as Daintree Village, Cape Tribulation, or Craiglie" (at [287]). The Court then applied the relevant assessment benchmarks to the Proposed Development and found that the scale of the Proposed Development was unacceptable for the Subject Site and inconsistent with the forward planning strategy in the Planning Scheme (at [311]).

It was also common ground that for the Proposed Development to be acceptable, the demand for car parking must be accommodated on the Subject Site and only the Subject Site, despite there being a wide road verge immediately adjacent to the Subject Site. This is because the use of the wide road verge for car parking would have a detrimental effect on the character and sense of place in Port Douglas, and pose an unacceptable safety risk to both residents and visitors (at [319]).

The Court considered the relevant assessment benchmarks relating to car parking arrangements and found that the Proposed Development would need to provide 521 car parking spaces, as opposed to the proposed 332 car parking spaces, on the Subject Site to achieve compliance (at [320]). The Court therefore held that the Applicant had not demonstrated that there would be adequate car parking provided or that an appropriate amount of car parking could be conditioned, and therefore the Proposed Development does not comply with the relevant assessment benchmarks relating to car parking arrangements (at [346]).

The Court found as follows in the exercise of the planning discretion (see [374] to [377]):

• The need for tourist accommodation is a planning need that presently exists.

• There is evidence in support of an existing economic need and public benefit because of the importance of tourism to the economy.

• An appropriately designed, luxury, five-star resort complex on the Subject Site would positively contribute to the overall well-being of the Port Douglas community.

• The introduction of a luxury resort complex elsewhere in Port Douglas would have the potential to deliver similar benefits.

• There are other possible sites for luxury tourist accommodation in the Port Douglas area that presently exist.

• There is not any other benefit provided by the Proposed Development that supports approval.

However, the Court found that the partial compliance with the Planning Scheme and the relevant matters do not form a basis to approve the Proposed Development because of the non-compliances with the relevant assessment benchmarks, particularly relating to the character and sense of place in Port Douglas (at [412]).

The Court held that the Proposed Development does not comply with the relevant assessment benchmarks and that no relevant matters warranted an exercise of the planning discretion in section 60(2)(b) of the Planning Act. Therefore, the Court upheld the Council's decision to refuse the Proposed Development and dismissed the appeal (at [413]).