A.White Kabi Submission

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5. Considering my role as Kabi Orchard Manager between 2007 and 2011 when the business
   closed, I am well placed to confirm its “Use” as an integrated ‘Permaculture’ operation
   ceased from April 2011.

6. On or about 28 April 2011, the owner of Kabi Organic Golf Course and Orchard (Ms Rena
   Merchant) closed the golf course, commercial orchard, restaurant, bar, and retail
   operation.

7. I recall the owner advising the entire operation was to be closed immediately, with only a
   ‘skeleton staff’ of greenkeepers employed to mow the course until the property sold.

8. My position of Orchard Manager and Mr John Trembath’s position of Permaculture
   Gardener was made redundant, along with several other staff members.

9. After these events, having raised the matter of Kabi’s lapsed “Use” in correspondence to
   Sunshine Coast Regional Council, on or about 8 June 2011 I received a telephone call from
   Development Compliance Officer (Mr Michael Cantori) who advised Council considered
   Kabi no longer complied with their conditions of approval.

10. I recall Mr Cantori detailing how Council’s investigations into the matter confirmed Kabi
    ceased operation some months earlier and given its original development approval was
    considered lapsed, any future sport and recreational use (Golf) at Kabi would be non-
    compliant, without a renewed Material Change of Use (MCU) application.

11. Mr Cantori confirmed this in an 8 June 2011 email requesting I contact Council should the
    golf course resume “operating as a use” in the future. See below:




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     12. With CYC’s application made on the questionable assumption ‘Existing Use’ rights haven’t
         lapsed, I am concerned the application may be misleading, not properly made, and non-
         compliant with processes of the Integrated Development Assessment System (IDAS).

     13. By failing to lodge their application as an MCU, the applicant may avoid State Referral
         Agency assessment, as would seem appropriate for a major new sport, recreation and
         tourism accommodation facility on land zoned Regional Landscape and Rural Production
         Area (RLRPA).

     14. To clarify the circumstances surrounding cessation of the Sport/Recreation and
         Permaculture “Uses” in 2011, I tender evidence provided by Kabi Organic Golf Course and
         Orchard to Fair Work Australia (FWA) at proceedings in 2011.

Background

     15. In 2011, Kabi gardener Mr John Trembath and I lodged Unfair Dismissal claims in FWA.

     16. It is important to note, our cases failed as the Respondent (Ms Rena Merchant) proved the
         golf course and orchard had ceased operation, with the roles and responsibilities of
         Orchard Manager and Gardener no longer fulfilled.

     17. The FWA decision and findings in these proceedings is a matter of public record with my
         case [U2011/7833] available to view at: White, Aaron Denis v Kabi Organic Golf Course -
         [2011] FWA 8348 | Fair Work Commission (fwc.gov.au)

     18. The following excerpts from Paragraph’s [26], [27] & [30] of Commissioner Spencer’s
         December 2011 FWA decision confirm the golf course/orchard’s cessation of operations.

Commissioner Spencer’s December 2011 FWA Decision:

       P [26] It was the main submission of the Respondent with respect to s 389 (1) (a) of the Act,
       that the Applicant’s position of employment was made redundant, due to the Respondent’s
       ill-health, and the business no longer being financially viable. In support of this, the
       Respondent confirmed that no one was employed, to do the job previously performed by the
       Applicant.

       P [27] The Respondent submitted that, the Applicant was informed, verbally and in writing
       on 28 April 2011, that his employment was made redundant. As stated the reasons for this
       were cited as Ms Merchant’s ill health and the business suffering continued financial losses
       and would be closed on 30 April 2011. Later on that day, the employees were informed of
       the redundancy, it was submitted, the Applicant was made aware that the business would
       be open for an additional day due to a pre-booked event. At the same time, the Applicant
       was made aware of the fact a skeleton staff would be employed until such time that the
       business was sold. This was supported by the evidence of Mr Troy Maclaren, Course
       Superintendent.

       P [30] It was submitted that as the business was ceasing its operations, there were no
       positions created or alternative positions available for the Applicant. Additionally, the
       Respondent contended that because of this, it was not reasonable in the circumstances of
       the Applicant, to redeploy him within the enterprise, as it was no longer operational.

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Further Evidence Submitted to FWA

     19. To further illustrate the abandonment of the Permaculture “Use”, I refer to the sworn
         “Examination in Chief” evidence of Ms Rena Merchant’s witnesses at the 16 November
         2011 FWA hearing.

     20. Kabi’s Financial advisor/Accountant Mr Craig Offenhauser and Course Superintendent Mr
         Troy Maclaren appeared as witnesses for the Respondent.

     21. It is important to note, evidence in these transcript excerpts was provided 7 months after
         the golf course closed and orchard operation was shut down:

Examination in Chief - Mr Offenhauser (16/11/2011)

        [PN 96]
        Commissioner Spencer: All right. Those other range of expenses that you refer to, are you
        saying that they were put against the other two silos that you referred to, the other - - -?

        Mr Offenhauser: I haven't done an attribution of the other expenses. This is just gross
        profit. Income direct, expenses, which is basically labour, super, and specific expenses like
        the boxes to pack the fruit with specific items. The other overhead on-cost expenses, I
        haven't done an allocation for those. They're around the 10 - a rule of thumb is between 10
        and 20 per cent. So because of these figures there was never a question whether the
        orchard was a viable proposition or should be maintained in any way, shape or form.

        [PN 138]
        Commissioner Spencer: Are you aware if they're (the fruit trees) being maintained at all?

        Mr Offenhauser: To my knowledge, no, they're not, they're not. They're not being
        maintained. It's closed. It's not earning income and hopefully it's not incurring any expense.

        [PN 147]
        Commissioner Spencer: All right. So, in closing the doors, and that's a question. Are the
        doors closed on this business?

        Mr Offenhauser: The doors are closed. There is no income being received from golf - fruit
        and - from golf, food and beverage or fruit, nothing at all, zero.

        [PN 156]
        Commissioner Spencer: All right. On the basis of Mr White's skills and position, was there
        any opportunity to redeploy him in any of the work that you maintained in the - for example,
        he has made reference to the golf - the greenkeepers that have been maintained and so has
        Mr Trembath in relation to their gardening and orchard management. He was the head
        gardener, Mr Trembath. Have there been any consideration of redeploying them in those
        roles?

        Mr Offenhauser: Our primary objective was the golf course.




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        [PN 157]
        Commissioner: When you say that, your primary objective was to maintain - - -?

        Mr Offenhauser: Our golf course.

Cross examination of Mr Offenhauser

        [PN 175]
        Mr White: In relation to that, the consultation was with the greenkeepers as to what to do
        with the golf course. Could you explain why, as the most qualified orchardist obviously
        on the premises, that I wasn't consulted about what was best to do with the orchard?

        Mr Offenhauser: Because the orchard - the business was closing. The orchard was
        non-functioning. It was like the pro shop. There was no-one that came in and said, "Well,
        now, what we should do with the pro shop. What do we do with all the merchandise in the
        pro shop? What do we do with all the food and beverage?" Those items were, "They're
        closed." Actually the orchard was the easiest because if you've got a heck of a lot of
        merchandise, shirts and shoes and golf clubs and everything else, can we return it, or can we
        not return it, and then you're stuck with all these golf bags. But the orchard was
        straightforward. It was the business is closing. That division was non-existent any more.

Examination in Chief - Mr Troy Maclaren (Course Superintendent) (16/11/2011)

         [PN 279]
         Mr Maclaren: Look, you know, because we've got such a small crew now, there are a lot of
         things that get left, and I guess the orchard is probably the first one that suffers. Because
         our main priority is to keep the golf course as a saleable product, so when Rena decides to
         put it on the market, it still looks like a golf course, and that's why we were kept employed.

         [PN 280]
         Commissioner: The harvesting of the fruit though. That's not being done by employees, is
         it?

         Mr Maclaren: No, it's a non-working orchard as we speak. You know, we don't receive any
         money for it. We just look after the golf course grounds and unfortunately the orchard will
         - or fortunately, whatever, the orchard is a part of the golf course and needs to be tidy. So
         when the time does come that the property is put on the market, it gets what we can get
         for it, I guess. You know, rather than what used to be a golf course orchard.

     22. These statements prove from April 2011, the Permaculture and Golf Course “Uses” of Kabi
         ceased with only a skeleton staff of greenkeepers employed to prioritise maintenance of
         the disused golf links and improve the property’s sale prospects.

     23. I reject any contention the integrated Permaculture “Use” at the time was ongoing,
         considering the only two staff members responsible for maintaining the Permaculture
         orchard and gardens were made redundant.




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Town Planning Conditions

     24. When Kabi was originally approved, I assume Council included Town Planning Conditions
         to prevent the integrated Permaculture component of the application being exploited as
         ‘greenwash’ just to gain approval and later ‘dis-integrated’ for commercial convenience.

     25. Whilst CYC may not have witnessed events of 2011 under the former owner, it seems
         unlikely they’d be unaware of Kabi’s history and therefore have a responsibility to ensure
         assertions made in their applications and public notification documents are factual.

     26. I note CYC contends “The golf course has continued to be maintained and used since its
         construction more than 20 years ago”, however events of 2011 prove that when Kabi
         closed its gates to golfers in preparation for sale, the operation discontinued its “Use” as a
         public golf course/orchard.

     27. CYC’s main argument to support their contention the golf course is operating as a “Use” is
         a reference to the ‘great cost to owner’ of mowing the closed golf links. See Pivotal
         Perspective’s Planning report:

         “In terms of the golf course use, the course and greens have been mowed up to 2 times per
         week and the bunkers maintained since the use commenced. If the use was not operating,
         why would this occur at great cost to the owner.”

     28. I contend the ‘cost to the owner’ of mowing a disused recreation facility during liquidation
         of its assets is irrelevant to the issue of the premises permitted “Use”, pursuant to the
         original development permit (as referred to in Conditions 43 and 54).

     29. It appears at some point after 2011 some activities compatible with the site’s former
         permaculture “Use” may have resumed, which of course is “as of right” not requiring a
         permit in the Rural Zone.

     30. However, I reject any contention the possible resumption of Permaculture activities on
         the site could somehow restore the lapsed approval of the sport/recreational facility and
         its ancillary “Uses”.

     31. I also note the CYC application fails to clarify if the owners have maintained organic
         certification through membership of the Biological Farmers Association, which raises
         questions regarding compliance with Town Planning ‘Condition 44’ of the original
         approval:

         Condition [44] The Owner/operators of the proposed development are required to be
         members of the Biological Farmers of Australia. Accordingly, there is not to be any use of
         non-organic chemicals on the site.

     32. I contend the above information proves beyond doubt the originally approved “Use” of
         the premises as an “Integrated Permaculture Designed Organic Orchard and Golf Course
         Complex (18 holes)” lapsed in 2011, as confirmed by Council at the time.



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33. In the second instance, I contend the scale of CYC’s proposed accommodation facilities
    and associated infrastructure is excessive and conflicts with the Noosa Plan 2020.

34. I contend the CYC application conflicts with the overall outcomes of the Noosa Plan 2020
    Rural Zone Code 6.8.3.2.

35. [6.8.3.2] (2) The viability of existing and future rural activities is protected from the
    intrusion of incompatible uses.

    I contend the excessive scale and layout of this proposal makes it an incompatible use
    which fails to protect existing and future rural activities from intrusion.

36. 6.8.3.2 (3) Areas for primary production are conserved and lot fragmentation is avoided.

37. I contend the inclusion of Lot 650 M37380 in the application effectively fragments this 40
    Hectare title from its potential agricultural use.

38. 6.8.3.2 (8) The establishment of outdoor recreation and small-scale tourism facilities in
    suitable locations is facilitated in a manner that does not significantly compromise the
    rural productivity or ecological values of the land.

    I contend the excessive scale of the CYC proposal with its four significant development
    sites cannot be considered a “small-scale tourism facility” which I note would be more
    appropriate for this location.

39. 6.8.3.2 (10) Houses or outbuildings may be available for short term guests where there is
    no resultant changes to the rural amenity or rural production of the area.

    Whilst CYC contend the proposal doesn’t compromise the rural amenity or production
    potential of the site, the significant footprint of the development, its associated
    infrastructure, including internal roads and its sport/recreational use, inevitably
    diminishes the area available for realistic agricultural production.

    I question the feasibility of the CYC proposal to operate pig and chicken tractors in the
    vicinity of the tourist accommodation.

    The proposed buildings would permanently change the sites amenity (which currently
    maintains its rural character) to the character of a medium to large-scale tourism resort.

40. 6.8.3.2 (16) Development maintains and enhances the significant scenic and landscape
    values of the area. The built form of development integrates with and complements the
    rural character intended for the zone and sensitively responds to the landscape.

    Through its significant footprint, the CYC proposal fails to maintain or enhance the
    significant scenic and landscape values of the area. It cannot be argued that the numerous
    development clusters proposed ‘sensitively respond to the landscape’.




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41. I contend the CYC application conflicts with the Noosa Plan 2020 Criteria for assessment in
    the Rural Zone Table 6.8.3.3:

    Performance Outcomes [PO2]
    “Development does not result in the loss or diminished productive capacity of Agricultural
    Land Conservation Area (ALCA)”

    Aside from the proposal fragmenting Lot 650, one of the development areas appears to be
    sited on the previous Washington Navel Orange block of trees, which I recall were some of
    the most productive on the site.

    I contend it’s inevitable such an extensive development must diminish the productive
    capacity of the sites ALCA.

42. [PO4] Visitor accommodation:
    (1)is at a small scale and low density that protects the environmental and rural
    values of the land.

    I contend a tourism development which accommodates up to 300 people cannot
    be considered ‘small scale’ as it exceeds the scale of any existing rural visitor
    accommodation facilities in Noosa Shire.

43. [PO5] Uses such as nature-based tourism, outdoor education, environment
    facilities and outdoor sport and recreation may be appropriate where:

  1.   they cannot be more appropriately located in urban areas;
  2.   they have an indelible connection to rural or ecological values of the site;
  3.   there is an overriding community benefit of the development;
  4.   they are not located on Agricultural Land Conservation Area as shown on
       the Agricultural Land Overlap Maps in schedule 2 or are temporary in nature so as not
       to compromise agricultural uses in the future;

  I note the Visitor Accommodation component of the application is being assessed as ‘Short
  Term Accommodation’ however aside from its scale, the proposal does include elements of
  Nature-based tourism.

  On point 3, I reject any contention the applicant has successfully provided evidence of an
  overriding need in the public interest which would overcome the numerous conflicts with
  the Noosa Plan 2020.

  On point 4, I note nature-based tourism should not be “located on Agricultural Land
  Conservation Areas.”

44. I contend the CYC application conflicts with the Noosa Plan 2020 Visitor Accommodation
    Code 9.3.5.3 Performance Outcome 3:

    “Development has a scale and density that is compatible with the intent of the zone and
    the preferred character for the local area in which it is located”.



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         As outlined above, the CYC proposal exceeds a scale and density that could be considered
         ‘compatible with the intent of the zone and the preferred character of the local area in
         which it is located’.

         Considering the property sits in a quiet rural hamlet, it is clear the range of activities and
         commercial tourism accommodation products being proposed by CYC would adversely
         impact local amenity with its increased traffic, noise etc.

     45. Were the CYC proposal assessed under ‘nature-based tourism’ guidelines I contend the
         CYC application would conflict with the Noosa Plan 2020:

         9.3.5.3 The criteria for assessment of Nature-based tourism is to be “subordinate to rather
         than dominating the natural features of the site with a site layout and design that blends
         into the landscape”

         I contend the scale and layout of the CYC proposal dominates the natural features of the
         site with its large buildings which fail to blend into the landscape.

         I note the CYC proposal is of an entirely different scale and character to the original golf
         course development where a Queenslander was renovated as the clubhouse/restaurant,
         which was in keeping with the character of the surrounding area.

     46. I note the Noosa Plan 2020 Acceptable Outcome for Nature Based Tourism 20.5 which
         states: Buildings take the form of small, separate buildings:

            (1) the gross floor area of any one building, such as a lodge, does not exceed 250m²;
            (2) the average area of all buildings does not exceed 90m².

         I contend the proposed site of what appears a conventional tourism activity of significant
         scale, would be more suited to a genuine Nature-based tourism facility that complies with
         ‘Acceptable Outcomes’ of the Noosa Plan 2020.

Lot 650 on M37380

     47. I have concerns with the application’s inclusion of Lot 650 on M37380, which increases
         the potential development area by 40 Hectares, over and above the previous approval
         site.

     48. It is unclear from the application what is planned for this large parcel of adjoining land,
         however it’s notable that by increasing the overall site area of a proposal, an applicant can
         increase the maximum Gross Floor Area (GFA) and visitor numbers allowable.

     49. In any case, inclusion of Lot 650 on M37380 (40 ha) constitutes a significant and seemingly
         unnecessary expansion of the original approval area, which I contend opens the door for
         future applications to exploit this very developable parcel of land.

     50. I note CYC’s Pivotal Perspective Planning Report asserts the historical use of Lot 650 for
         cattle farming somehow supports their claim of an ongoing Permaculture “Use” on the
         golf course/orchard.

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      51. It is misleading to contend the original Kabi owner’s beef production was connected to the
          integrated permaculture operation of the golf course/orchard considering the owner
          produced beef on several properties in the area (including Lot 650) and this was operated
          as an entirely separate enterprise to the golf course/permaculture orchard.

      52. I note the idea of integrating free range livestock into operation of the orchard and golf
          course was never raised during my years at Kabi, for obvious reasons.


Conclusion

In the first instance, I am requesting Council refuse the CYC application on the grounds the applicant
failed to resolve the matter of their ‘existing use’ approval being lapsed in 2011, as outlined above in
Paragraphs 1 to 32.

Considering the CYC application is misleading and based on contentious existing use rights, I contend
any Council approval of the application on its merits would be unsafe, without the applicant re-
submitting an updated and properly made Material Change of Use application, which may require
referral to State Advice Agencies.

In the second instance, I am requesting Council refuse the application on the grounds the proposal
conflicts with the Noosa Plan 2020, as outlined above in Paragraphs 33 to 46.

I contend the layout and scale of the CYC proposal is excessive, particularly with its expansion onto
Lot 650, a 40ha title not included in the original approval, as outlined above in Paragraphs 47 to 52.

In addition, I contend the application failed to prove an overriding need in the public interest exists
for a hinterland ‘Visitor Accommodation’ tourism facility of this scale.

Please note, should Council require any further information or evidence please do not hesitate to
contact me via email or on my mobile phone (details provided).

I look forward to your response,

Yours Sincerely,

Aaron White
Kin Kin




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