RESIDENTS have overturned a Sunshine Coast Council development approval that would have seen an additional 124 units built within the Novotel Twin Waters Resort.
The victory came after the developer, the Abacus Property Group, this month withdrew as co-respondent with the council in an appeal by the North Shore Village Community Title Scheme against the October 2015 development approval.
The developer has been contacted for comment but has yet to respond.
In 2012 the council rejected a 158-unit proposal and successfully defended the decision in the Planning and Environment Court.
Then in October 2015 to the residents' dismay it approved a 124-unit application made in January of the same year.
The development was slated for the north east corner of the Twin Waters Resort on the corner of Ocean Drive and North Shore Road.
Both applications sat outside the intent of the Maroochy Plan 2000 under which it was assessed and the 2014 Sunshine Coast Planning Scheme which allows a maximum of 60 units on the constrained site.
North Shore Village body corporate chairman Clive Shepherd, a former negotiator for Rio Tinto, said the council was not listening to its ratepayers.
He said the approval had allowed two buildings to four storeys and two buildings to three storeys when the planning scheme had a two-storey limit.
Five of the structures were also in excess of 40 metres in length which was outside the building code.
"They were long and fat and double-sided buildings with a corridor ion the middle and apartments to the left and right.'' Mr Shepherd said.
"Plus the density was six times the existing Novotel hotel and twice that of the North Shore Village.
"The densities were unacceptable.
"The Planning Scheme had gone to a lot of trouble to maintain the resort character but this was too dense.
"It was basically buildings, a pool and a road. There was no way the character was being maintained.
"There was an enormous adverse impact.
"We are quite happy to accept the normal interpretation of the planning scheme which is for 50-60 units. The difference with 124 is enormous."
He described the council's behaviour as inconsistent and strange.
"Having successfully opposed and defended the first application for the 158-unit development at great expense to the ratepayer, why would the council then go and approve a 124-unit development with many similar features,'' Mr Shepherd said.
He said the North Shore Village body corporate had warned council officers of the risk the development application had been made primarily to increase the land's value ahead of the proposed sale of the resort.
The resort sits inside the Abacus Hospitality Fund which announced two years ago its intent to sell down its assets and has since divested its Rydges Tradewinds and Ridges Esplanade properties in Cairns.
The Australian newspaper reported this month of a potential $130m sale of the Novotel resort to Hainan Airlines, well above its $67.5m book value in December last year. At the time Abacus declined to comment about the potential sale.
Mr Shepherd said the body corporate had also provided the opinion of an experienced Town Planner as to why the proposal still conflicted with the Maroochy Plan 2000 under which it was assessed.
"This seemed to be ignored," he said.
Sunshine Coast Council planning chairman Christian Dickson said he had yet to be briefed by the legal department.
He said although he was "hammered" when the decision was made to approve the development his personal view was he believed there was capacity to expand the resort.
Cr Dickson said compared with the earlier application he felt the 2015 proposal had addressed issues of setbacks, height from the beach and visual amenity.
"It didn't tick all the boxes but the short-term and long-stay accommodation supported economic development,'' Cr Dickson said.
"Obviously a decision has been made against the council position and we will need to review that."
Division Eight Councillor Jason O'Pray said he had not voted when the 2015 approval was granted because he had two years' earlier accepted free overnight accommodation at the resort after a tourism event.
He said the proposal had sat below the tree line in a similar manner to residential properties.
"If it has come out of the court it is what it is,'' Cr O'Pray said.
Mr Shepherd said his Body Corporate had felt it had not been listened to so it employed a consultant, paid good money and got the owners on board.
"I met the Abacus consultant whose brief was to get council to approve with as many units as possible,'' he said.
"It was all about the numbers. The whole focus was to do a deal with council.
"It was obvious to us council had made up its mind.
"Four of us went to meet Jason O'Pray and Christian Dickson and we all came away thinking we were not going to do any good here.
"Council supported us the first time round and introduced the 2014 Planning Scheme which was slightly stricter (than the Maroochy Plan 2000).
"We took the view that council could give a liberal view of the superseded scheme and it gave a very liberal view.
"We were only given one meeting with council and at the end it was pretty clear it was going through.
"We gathered as many objections as possible but all were just dismissed.
"We were given advice that despite a strong case without council support we would struggle.
"I had decided personally to give up but soon found within the resort lawyers skilled in the area.
"I was rung by planning law expert Philippa England (who owns property in the village) who convinced me to lodge an appeal."
Dr Philippa England is the senior lecturer in law at Griffith University with research expertise in planning and environmental law, climate change law and local government law.
"So we circled the wagons,'' Mr Shepherd said. "She was prepared to write the case.
"Then another owner, registered barrister Matthew Conrick, decided to make sure an appeal would be heard so appealed himself.
"Obviously they were both extremely well written and we were off to the races.
"Without that expertise it would have been impossible. I could not have climbed the learning curve.
"The court agreed our Body Corporate application was valid despite attempts by Abacus to have it made invalid.
"Twenty four hours later I had a call from Abacus. It was a new face wanting to sit down for a cup of coffee.
"He had four options to do a deal. I would have been happy but others were far more cautious.
"Why do a deal? In the planning scheme there is provision for 50-60 units not 124.
"Abacus asked the court for an adjournment for talks to be held and then the next month asked for another but there weren't any talks.
"At the end of three months it had to return to the court where they asked for another adjournment.
"The judge gave them one month but said that was the last before court ordered mediation.
"After that Abacus gave up and agreed to the consent order."
The consent order, signed by all parties, asked Planning and Environment Court Judge Michael Rackemann to uphold the residents' appeal.
Mr Shepherd said he could only speculate at the reason.
"I do know in this particular case council very early on made a decision to back the development,'' he said.
"Once made it got its ducks in a row.
"The question for the council is 'why did you back this development'.
"A Google search of the Abacus Hospitality Fund would have given the context.
"The lesson is do the basic homework."
In the latter part of his working life Clive Shepherd, an the economist and financial manager, was employed by Rio Tinto as a negotiator dealing with power contracts and other matters.
"It meant when Phillipa gave me the information I could use it,'' he said.
"I was used to working with 10 lawyers. It was second nature to me.
"If council approves a development the system is absolutely weighted against you.
"Even with my skills I couldn't have done it without the expertise we had.
"When Cr Dickson (planning head Cr Christian Dickson) got up in front of councillors and told them they were quite within their rights to make a different decision (to the first application) it was clear the culture in council had changed 100%.
"That was a big, big change.
"We were fully convinced if we went to court we would have won.
"The council is pushing stuff through basically saying "they wouldn't dare challenge us".
"There was an enormous amount of work we had to do to develop a legitimate, strong application. It was a good investment.
"It was a really small block with a road which cut it in half. To put a lot of units on it you would have to cram them.
"I first met Jason O'Pray at an Abacus town hall meeting. His parting comment was he was desperate to see the resort further developed to compensate for the loss of the Coolum resort.
"He must temper that desperation with the planning scheme. What's the point of approving a development to see it end in court. That's another lesson for council.
"The 2014 Planning Scheme was more prescriptive on height where the Maroochy Plan 2000 was not.
"We expected a fairly strict interpretation as a result. Instead they looked at the Maroochy Plan as providing more wriggle room to approve.
"The reason the 2014 Planning Scheme is more prescriptive we were told was because the ratepayers had demanded it.
"They are now not listening to ratepayers."
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