Planning Report

been demonstrated to be increasingly in demand, would be a consistent and contiguous extension of the
NBC.

The prospective tenants, either large format retail, small-incubator businesses or commercial premises would
be keen to establish premises within high profile precincts like the site, as compared with internal, low-
exposure sites. There are limited available and appropriately zoned sites within the region with the site
attributes to accommodate a critical mass of tenants and create destination appeal.

The site represents an ideal location that will address the existing undersupply of large format retail uses
within the region. Further, the site is a natural extension of the existing Noosa Civic retail precinct. The co-
location of these facilities will increase the destination appeal of the overall Noosa Business Centre precinct.


8.6. PLANNING DISCRETION – CASE LAW
As the Planning Act 2016 (PAct) is a relatively new piece of planning legislation, there are few cases brought
before the Planning & Environment Court on how planning discretion can be applied by an Assessment
Manager, or by the Court itself via an appeal, in terms of planning discretion concerning ‘other relevant
matters’. However a recent judgment made by the Court, being Ashvan Investments Unit Trust v Brisbane
City Council & Ors (P & E Court reference: 2121/2018) confirmed the following key points for decision-
makers:

•   The PAct was expressly conceived to allow for an application to be approved despite non-compliance
    with an assessment benchmark;

•   That non-compliance with a planning instrument does not automatically warrant refusal;

•   That on balance the merits of an application, and having regard to established policy and other relevant
    considerations, can overcome any non-compliance where the purpose of the Act is advanced; and

•   The assessment manager and the Court have broad discretion when it comes to balancing competing
    considerations of planning instruments and ‘other relevant matters’;

The PAct states the purpose of the act to be:
    “... to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of
    land use planning (planning), development assessment and related matters that facilitates the
    achievement of ecological sustainability…”
Furthermore, the short definition of ‘ecological sustainability’ means:
    a balance that integrates –
    (a) the protection of ecological processes and natural systems at local, regional, State, and wider levels;
    and
    (b) economic development; and
    (c) the maintenance of the cultural, economic, physical and social wellbeing of people and communities.
Thus, there is a balancing act undertaken by Council (or the Court) to make a decision in the public interest.
This endeavour should be based on good town planning principles and should seek to deliver a decision
which best achieves the purpose of the PAct. The specific facts and circumstances of a particular case will
be what determines if a particular decision is made either for an approval or refusal.

In context to the identified conflicts with either the Planning Scheme (or Draft Plan), it is clear that any
conflict can be considered moderate and able to be overcome. The applicant has achieved the following
key outcomes for the land subject to this application:

•   Efficient – The applicant has effectively undertaken a masterplanning approach to the site in
    consideration of the current planning instruments, and also the Draft Plan;

•   Transparent – The landowner (and applicant) has been forthcoming with its intent to the develop the
    site in the immediate future since taking ownership in late 2016. The application is subject to Impact




58 OTHER RELEVANT MATTERS                                                                                              URBIS
                                                                      RPT-20190516-2-18 & 20 HOFMANN DRIVE, NOOSAVILLE_FINAL