Yaralla Sports Club short term accommodation development appeal against Gladstone Regional Council
Yaralla Sports Club is trying to appeal a decision of the Gladstone Regional Council after they refused their application for short-term accommodation units last year. Read the full details here.
A judge has ruled that an application for appeal of a rejected development at the Yaralla Sports Club will proceed to a hearing.
Yaralla Sports Club is trying to appeal a decision of the Gladstone Regional Council after it refused its application for short-term accommodation units last year, court documents reveal.
The sports club was represented by McCarthy Durie Lawyers and barrister Andrew Skoien in a preliminary hearing in the Brisbane Planning and Environment Court on November 30, 2021.
The council was represented by solicitor Troy Webb from McCullough Robertson Lawyers.
Yaralla alleged in appeal documents its development approval should be granted because there was a need for it, it was complementary to the existing uses of the land, it was consistent with the Gladstone Region Visitor Economy Strategy and it wouldn’t unacceptably impact on the development of short-term accommodation in Gladstone.
“To the extent that the court finds noncompliance with provisions of the planning scheme, such noncompliance is not material and ought not to result in a refusal of the development application particularly by reference to the relevant matters set out above,” Yaralla’s lawyers argued.
However, the court heard the council refused to grant the development application on June 3, 2021 because the economic and community need hadn’t been established, the suitability of the land hadn’t been established, the location and scale of the short-term accommodation wasn’t shown in a master plan, the rights of the community to make submissions should be protected, there was no community benefit to varying the planning scheme, it didn’t follow the planning scheme and the proposal didn’t overcome noncompliance with the Sport and Recreation Zone’s provisions.
The council did approve a theatre development at the site, however.
Judge Michael Rackemann said the two ‘threshold questions’ were whether Yaralla made a competent development application for a preliminary approval and whether the court was able to consider a change to the variation request.
He said there was ‘no doubt’ that Yaralla sought a variation request but there was ‘some uncertainty’ as to whether it sought a ‘bare variation request’.
“In the circumstances, I consider that the application is appropriately construed as one which sought a preliminary approval for a material change of use for future short-term accommodation and a variation request in relation to that component, in addition to the development permit for the material change of use for the theatre,” Judge Rackemann said.
He later said the court must consider changes to the development application if they were ‘minor’.
“I have already observed that, insofar as the definition of minor change is determined, the matter of potential concern is whether the change will result in substantially different development,” Mr Rackemann said.
“It might, at least at first blush, be thought that in that respect the drafter did not have a change of a variation request firmly in mind. However, the test is one which can be considered in the context of a change to a variation request.
“The test is one which requires consideration of what will “result” from the change.”
He said the development would only be impact assessable if it were over 12 metres tall and could still be ‘code assessable’ if it did not exceed 94 units in total.
Judge Rackemann found the change to the codes wouldn’t result in a ‘substantially different development’ and the changes were minor, and that the matter should proceed further.
The next hearing is set down on January 31 in the Brisbane Planning and Environment Court.
Following a confidential Gladstone Regional Council meeting on January 18, the council voted to instruct their solicitors to consent to judgment to settle the appeal.
