Sekisui House resort appeal decision: Development Watch scores win in long-running battle

A grassroots campaign against a $900m beachside Sunshine Coast development achieved a milestone court win. Here are the reasons why they won and where to now:

Emotions were high after a community group’s win in its appeal against Sekisui House’s $900m Yaroomba development, forcing the company to consider its options.

The Court of Appeal found three errors of law in an earlier decision by Judge Nicole Kefford to dismiss Development Watch’s appeal and approve the application for the beachside resort and development.

Three judges found that she disregarded submissions opposing the development because of height concerns, in their judgment to be published next week.

They ruled in Development Watch’s favour on Wednesday morning to allow the appeal.

Yaroomba Development

Sekisui House Yaroomba project director Evan Aldridge said the company would consider its options, including going back to the Planning and Environment Court for a project review or to opt for another development.

Development Watch president Lynette Saxton thanked the court for “getting it right”.

The campaign

While Ms Saxton acknowledged the group’s work was far from over she said the decision was a testament to the dedicated campaigning over several years.

She said the court win “restored the community’s faith in democracy”.

“This campaign has been absolutely enormous,” she said.

“When I look at how much work we and the community have put into this, I think all of that work could have been spent on helping charities and it would have been time much better spent than having to fight our own council’s decision.

“This should never have happened.”

Sunshine Coast Environment Council liaison Narelle McCarthy travelled to Brisbane to hear the decision and had tears in her eyes when it was handed down.

“I know the description people power is bandied about a little but this is absolutely a demonstration of it,” she said.

“Everyone involved – including those 9000 who wrote in objection to it – demonstrated an understanding of what was at stake in terms of an impact on the environment, nesting turtles, the amenity and the conflicts with the planning scheme in terms of the project’s bulk, height and scale.”

“This is really special and shows it’s worth fighting for.”

“It’s why we’re doing this … to demonstrate what’s important for the community.”

Where to now

Development Watch, the Sunshine Coast Council and SH Coolum have been ordered to file and serve written submissions regarding costs and the terms on which they believe the case should be remitted to the Planning and Environment Court.

“Let’s hope the Planning and Environment Court makes the right decision and we can put this protracted dispute to rest,” Ms Saxton said.

Mr Aldridge said the company would consider its options including the potential for an alternative development.

He said they could either continue with the court process or develop the site according to a 2009 approval for the Hyatt gated residential apartment and housing estate.

The 2009 development approval is up to four storeys.

“We’re disappointed with the court’s ruling,” Mr Aldridge said.

Sekisui House did not provide any further comment or respond to direct questions.

The court decision

Judge Nicole Kefford in 2020 dismissed Development Watch’s appeal against the development’s approval granted by Sunshine Coast Council.

The judgment dismissed concerns about the impact of light on nesting turtles on Yaroomba Beach.

Justice Martin Burns in his judgment said Development Watch’s attack on Judge Kefford’s decision was a narrow one, and focused on her finding that the development’s height was consistent with the reasonable expectations of the community.

“Although her Honour noted substantial opposition to the development and, by implication, concerns about the height of some of the buildings and structures, no finding was made as to the local community’s expectations regarding height,” Justice Burns’ judgment said.

“ … Absent any finding as to the expectations of the local community regarding the height of buildings and structures, the reasonableness of the local community’s expectations in light of the planning provisions applying to the subject land could not be assessed, let alone compared to the actual proposal to determine whether the two were consistent.

Residents fought against the $900m Sekisui House Yaroomba proposal over several years.

“The failure to make such a finding was an error of law.”

The judges also considered that of 11,666 submissions regarding the development, 9,288 were in opposition.

Justice Burns said although Judge Kefford acknowledged the strong opposition, there appeared to be no detailed analysis of the content of the submissions.

He said the “broadbrush” approach overlooked the need to determine the expectations of the community regarding heights, and gave primacy to the planning scheme to such a degree ”that it set to nought the evidence sourced from the local community”.

“The court was required to take that evidence into account as part of the common material but that did not occur because any opposition to the proposed development was seen to be trumped by the planning scheme,” Justice Burns said.

“This was another error of the law.”

The judges found a third error of law in Judge Kefford‘s consideration for a change in the planning scheme.

By the time of the hearing of the appeals in the court, the version of the Sunshine Coast Planning Scheme in force was Version 18 which required building heights to be consistent with community expectations and mandated compliance with specified height limits.

Judge Kefford had discretion to give the planning scheme change as much weight as she considered appropriate.

She ruled that compliance with the changed scheme had not been put to issue in the case.

However, Justice Burns found changes to the planning scheme should have been given significant weight.

He, alongside Justice McMurdo and Justice Morrison, found the three errors of law could have materially affected Judge Kefford‘s decision.

“Leave to appeal should accordingly be granted, the appeal allowed, the decision below set aside and the case remitted under s65 of the Planning and Environment Act 2016 (QLD) to be determined according to law,” the judgment stated.