The case of GTH Project No. 4 Pty Ltd v Noosa Shire Council & Ors [2024] QPEC 26 concerned an appeal to the Planning and Environment Court of Queensland (Court) by GTH Project No. 4 Pty Ltd (Applicant) against the decision of the Noosa Shire Council (Council) to refuse a development application (Development Application) seeking a development permit for a material change of use to facilitate a seniors' living community and golf clubhouse and a development permit for reconfiguring a lot (boundary realignment and access easement) in respect of land described as Lot 33 on MCH 2281 and Lots 1, 2, and 3 on SP 115864 located at 30, 114, 122, and 144 Myall Street, Cooroy, Queensland (Subject Site).

The relevant planning scheme applicable to the Development Application is the Noosa Plan 2006 (Noosa Plan 2006). However, the Noosa Plan 2020 (Noosa Plan 2020) came into effect soon after the Development Application was properly made, and thus, with the endorsement of both parties, it was given considerable weight by the Court in its exercise of the planning discretion under section 60 of the Planning Act 2016 (Qld) (Planning Act). Significantly and importantly, the material change of use aspect of the Development Application is impact assessable whereas the reconfiguring a lot aspect is code assessable (see [106] and [111]).

The Court considered each of the 13 issues in dispute, broadly relating to significant adverse impacts on the Subject Site's natural environment and landscape and non-compliance with the relevant assessment benchmarks in the Noosa Plan 2006, and ordered that the Development Application be refused and the appeal be dismissed (see [529] and [530]).

The Subject Site, which is located outside the mapped urban boundary and urban growth boundary for the township of Cooroy, spans 38.1654 hectares whereby part of the Subject Site is an existing golf course operated by the Cooroy Golf Club and the remainder of the Subject Site is largely undeveloped and has a history of use for small-scale agricultural activities (see [1] to [3] and [141]).

The Development Application proposes the following (Proposed Development):

• That Lot 3 and a small portion of the existing golf course fairways on Lots 1 and 2 be developed for a seniors' living community comprised of "…214 detached dwelling units, a manager's unit, a community clubhouse and other communal facilities…" and a new golf course clubhouse (see [69(a)] and [69(b)]). 

• That the remainder of the Subject Site be reconfigured to facilitate, among other things, "…a single, internal access road that will provides access from Myall Street to the new golf course clubhouse and seniors' living community" (at [5(c)]).

The Applicant alleged that the proposed location of the seniors' living community use complied with the relevant assessment benchmarks in the Noosa Plan 2006 and that any non-compliances identified are without substance (at [178]). The Council contended that the seniors' living community was not an appropriate use of the Subject Site and relied on three key assessment benchmarks of the Noosa Plan 2006 (at [122]).

The Court identified that the proposed location of the seniors' living community use does not comply with relevant sections of the Strategic Framework, overall outcomes and specific outcomes of the Cooroy & Lake Macdonald Locality Code, and a specific outcome of the Residential Uses Code within the Planning Scheme (at [177]).

The Court found that the Proposed Development was at odds with the outcome sought to be achieved in the Strategic Framework, and as a result "…would undermine the Noosa community's confidence that population growth and associated change will not adversely impact upon the character, lifestyle and environment enjoyed by its residents" (at [148]).

The Council alleged that the Proposed Development, and in particular the proposed seniors' living community, would have an unacceptable impact on the character of the locality and is inconsistent with assessment benchmarks in the Noosa Plan 2006 relating to built form, density, and visual amenity and character impacts (see [208] and [217]). The Applicant contended that a dense vegetation buffer could be planted to screen the proposed seniors' living community from Myall Street and that it would not have a detrimental impact on the character of the locality (at [271]).

The Court recognised that the Subject Site "…materially contributes to the visual cue that the township of Cooroy sits in a broader rural context" having regard to its frontage onto Myall Street which is a major road corridor to the town centre of Cooroy, and its positioning at the southern edge of Cooroy which forms part of the landscape that is the gateway to the town centre (see [234] and [236]).

The Court, having regard to the Noosa Plan 2006 and Noosa Plan 2020, found that the Subject Site is not intended to be used for urban development, the proposed seniors' living community does not comply with specific outcomes of the Cooroy & Lake Macdonald Locality Code, and that even with the proposed vegetation buffer it would have an unacceptable and detrimental impact on the character of the locality (see [242], [262], and [287]).

The Court gave considerable weight to the Noosa Plan 2020 as it came into effect soon after the Development Application was properly made. The Council contended that the Proposed Development does not comply with several provisions of Noosa Plan 2020, including in the Strategic Framework, Recreation and Open Space Zone Code, performance outcomes of the Rural Residential Zone Code, performance outcomes of the Cooroy Local Plan Code, and performance outcomes of the Special Residential Code (at [351]). The Applicant conceded that the Proposed Development does not comply with the relevant provisions of the Strategic Framework, Cooroy Local Plan Code, and Special Residential Code (at [352]).

The Court held that the Applicant's concessions were "…hardly surprising given the [S]ubject [Site] is entirely outside the mapped urban boundary", and ultimately found that the "…Noosa Plan 2020 maintains, and possibly even strengthens, the strategic policy position reflected in Noosa Plan 2006 that urban development should not occur on land outside the mapped urban boundary" (see [352] and [390]).

The Applicant asserted there was a very strong need for the proposed seniors' living community on the basis that "…there are well-established principles associated with considerations of need, particularly for seniors' accommodation", and that these principles are recognised in the Noosa Plan 2016 and Noosa Plan 2020 (see [396], [399], and [400]). The Applicant also asserted that the "…Noosa Plan 2020 has very substantially underestimated the size of the population that requires facilities of the type proposed", "...that all existing similar facilities in the catchment area are full…", and "...that there is an absence of suitable alternative sites" (see [401] to [403]).

The Council submitted that the need to deal with the aging population does not warrant an approval of the Proposed Development (at [406]). Further, the Council argued "...that the existence of that need…does not remove the role of the town planning scheme to seek to distribute the location of such competing needs within its planning area" and "...that there is insufficient need to warrant setting aside the important planning strategies in Noosa Plan 2006" (see [407] and [410]).

The Court found that both the Noosa Plan 2006 and Noosa Plan 2020 sufficiently provide for the growth required to address the need for additional housing, including seniors' housing, by way of urban infill and redevelopment rather than establishing new development on vacant land outside of the urban growth boundary and urban boundary (at [427]).The Court did acknowledge that the proposed relocation and improvement of the golf clubhouse and the improvement of the golf course facilities would be a material benefit to the community but this on its own was insufficient to persuade the Court that there is a need for the Proposed Development as a whole (see [467] to [469]).

Furthermore, the Court found that the Proposed Development would not improve the diversity of housing in the area as there are already two manufactured home parks in Cooroy (at [458]). To that end, the Court held that the Applicant had not persuaded the Court to the requisite standard that there is a need, let alone a strong need, for the proposed seniors' living community (at [460]).

The Court found that the Proposed Development's partial compliance with the relevant assessment benchmarks in the Noosa Plan 2006 and Noosa Plan 2020 in conjunction with the matters in support of approval do not form a sound town planning basis to approve the Development Application because that would be contrary to the "…formally expressed planning strategy to preclude urban development on the [S]ubject [Site]" (see [510] and [511]).

The Court ordered that the appeal be dismissed and the Development Application refused (at [530]).