"The Beachfront" legal challenge
Where is this proposed development?
The site of the proposed development is located at 84 and 85 Pacific Boulevard, 2 and 6 Talinga Street, and 61 and 63 Iluka Avenue, Buddina. 5 residential houses will be replaced with 73 Units and a Corner Store at a height of 21m.
What is the status on the legal challenge?
On 22 October 2021, Judge Long delivered his decision on the controversial 2019 approval by the Sunshine Coast Regional Council of the “Buddina Beachfront”. At the proceedings in the Planning and Environment Court on 26 and 27 November 2020, Judge Long told the Court he would take time to review the evidence, the law, and deliver his decision at a later date with no time-frame for this decision following his deliberations.
Judge Long found in favour of Council and the developers, dismissing our application. He provided documented details of his reasons later that day. Click HERE for a link to judgement document.
After discussions with our barrister, the Directors met to consider the Judge’s decision, legal advice relating to the options available and the financial cost of an Appeal against the decision, noting that our right of Appeal expires on 3 December 2021. The Directors have decided not to proceed with an Appeal in the Supreme Court.
Key issues ?
Impacts on endangered loggerhead turtles
Coastal erosion, climate change and sea level rise - in a State declared erosion prone area
Compliance with planning scheme assessment benchmarks
Impacts on traffic
Impacts on school safety
This was one of the likely outcomes of the legal challenge
We believed there were three possible outcomes:
The Judge may have determined that Council did not properly evaluate the development application and he may decide to issue orders that it be returned to Council for re-assessment with application of the appropriate assessment benchmarks; or
The Judge may have determined that Council did not properly evaluate the development application and he may determine that re-assessment is not necessary, allowing the development to proceed with the amended approval conditions which Council approved during the legal process; or
The Judge may have found in favour of Council and the developer, Pacific Diamond 88
Why did the legal process take such a long time?
During the long drawn-out legal processes from November 2019 to November 2020, council and the developer sought to change the approval conditions relating to Turtle lighting. This was one of the components of the case we argued were not lawful. The process was suspended for several months from April to July 2020 allowing Council to process the approval changes. Further delays were incurred as Council's changes to approval conditions altered our legal arguments and our Court documents required amendment and re-submission.
What other impacts did Council's change have on approval conditions?
The changes made and approved by Council in July 2020 (half-way through the legal process) not only improved the turtle lighting approval conditions, but created enforceable outcomes at (i) construction and (ii) ongoing for the life of the building. Future unit owners from now on will always be liable for penalties that would apply to each incident where a unit owner fails to comply with the approval conditions.
In making this decision, council created a HUGE WIN for the endangered loggerhead turtles and the Buddina Community. It is through their actions in extensively amending the approval conditions, Council appear to have effectively acknowledged their original approval was unlawful due to the conditions that were unenforceable which is unlawful.
YES, together we HAVE made a difference!
See our latest news (click on this link)
On the 30th of April 2019, the Sunshine Coast Council approved the development of a 7 storey, 21m high-rise consisting of 73 apartments, a shop and 188 car parking spaces (MCU18/0190) on the corner of Pacific Boulevard, Talinga Street and Iluka Avenue. The petition requesting Council reject this development application was disregarded, even though the petition had more than 1,000 signatures.
Friends of Buddina had long argued that the proposed “Buddina Beachfront” development breached the Planning Scheme, including that its lighting would negatively impact the nearby endangered loggerhead turtles' nesting habitat. In addition, the building height, excess site-coverage, mass and density with less than prescribed setbacks would significantly impact local residents’ views, vistas, amenity and privacy together with the loss of the beachfront character when viewed from the beach.
The concerns of the residents of Buddina were taken up and an Originating Application was lodged in November 2019. The P&E Court initial dates were set and legal processes commenced early in 2020 with Friends of Buddina as the Applicant, Sunshine Coast Regional Council as the 1st respondent and Pacific Diamond 88 as the 2nd respondent.
On 8 April 2020, the developer (2nd respondent) submitted a “minor change” proposal to Council (1st respondent) for proposed changes relating to the Turtle Lighting approval conditions, one of the subjects of the P&E Court documents lodged by Friends of Buddina. This arrangement was made between the two co-respondents in the case - interesting tactics!
During May 2020 all parties agreed that the Directions Orders of the Court be vacated until the minor change application has been decided. On 23 July 2020, Council (1st respondent) approved the “minor change” proposal for the developer (2nd respondent). Legal proceedings recommenced and dates were reset and amended documents lodged, culminating in the Planning and Environment Court hearing on 26 and 27 November 2020.
If you are keen to read our Outline of Argument referenced during the Court case, a copy is available in the Documents section below together other documents.
Together we can make a difference!
So what's the problem?
Learn about the Issues
Impacts on loggerhead turtles
To put it simply - marine turtles dig dark beaches.
Scientific research confirms artificial light at night (both direct and sky glow) deters nesting turtles and disorientates hatchlings which are then unable to find the sea or successfully disperse to the open ocean.
Buddina beach provides one of the most important nesting habitats on the Sunshine Coast for the endangered loggerhead turtles, typically recording the highest number of confirmed nests and high percentages of male hatchlings (critical for the endangered species survival as increasing temperatures result in feminisation of the population).
A 7 storey building will be visible for some distance from and along the beach. All visible lights will negatively impact the beach and inshore waters, deterring turtles from nesting and disorientating hatchlings. Research confirms that turtles are negatively impacted by lights up to 18km distant.
Coastal erosion, climate change and sea level rise
The proposed Buddina Beachfront development is located 100% in a State Government declared erosion prone area. This land was impacted by cyclones in the 1970's. This resulted in Council considering options to resume sections of beachfront land most at risk which included the proposed site.
We now know much more about climate change and predicted sea level rise than we did in the 1970's. The planning scheme requires applications for development to consider the predicted effects of climate change and sea level rise, and specifically requires that development within a declared erosion prone area avoids:
Intensification of existing uses;
New permanent built structures; and
Seaward extensions to existing built structures
The proposed development will intensify the existing existing footprint and use in excess of 1,000%; it includes new permanent built structures, and is situated seaward of existing built structures.
Impacts on local Traffic
Traffic volumes are already high and delays are experienced on local roads around the nearby Kawana shopping centre, particularly during peak hours and school pick-up and drop-off times.
Can you imagine if more of the beachfront was further developed into high-density high-rise? This proposed development alone will increase the car usage from 5 households to that of 73 units plus a shop Plans identify space for 187 cars.
Compliance with the Planning Scheme
The planning scheme requires that development must not cause any unreasonable loss of amenity for surrounding premises. This includes the building mass and scale relative to its surrounding, overshadowing, privacy and overlooking.
Friends of Buddina believes the mass and scale of this development far exceeds the planning scheme assessment benchmarks with regards to:
View and streetscape from the beach
School safety - Buddina State School
The proposed development site is located beachside, opposite the Buddina State School. Many parents and students are concerned about safe travel to and from school as many walk, ride or scooter past the proposed carpark entry every school day morning and afternoon.
The development will also overlook the school oval and school pick up and drop off zone which is a child-safety concern for many in the school community.
The Sunshine Coast Regional Council approved this proposed development application on the 30th April 2019, despite 84 formal submissions opposing the development and a petition (with more than 1,000 signatures of residents) to reject the development application .
The community concerns about this development were disregarded by Council. Whether you live in this area or come here to bike ride, walk, or surf, the unique character of this area we all enjoy is about to change and many residents believe for the worst.
Get involved - what you can do? HAVE YOUR SAY
It's important for residents to participate in the Council's New Sunshine Coast Planning Scheme Project as their proposed changes that will impact each and every one of us.
The first step is to register now to receive updates about the new Planning Scheme. Click HERE to register
Documents and access links
Judge Long's decision - Planning and Environment Court 22 October 2021
Sunshine Coast Regional Council - Operational Works Approval – OPW21/0110 8 July 2021
(note: this OPW has been approval by Council whilst legal proceedings are in progress)
Friends of Buddina - Court Document Outline of Argument 23 November 2020
Friends of Buddina - Court Document Amended Originating Application (D205 of 2019) 4 September 2020
Sunshine Coast Regional Council - Minor Change Approval – MCU18/0190.01 23 July 2020
Friends of Buddina - Court Document Originating Application (D205 of 2019) 5 November 2019
Sunshine Coast Regional Council - Negotiated Decision Notice – MCU18/0190 amendments 12 September 2019
Sunshine Coast Regional Council - Approved Decision Notice – MCU18/0190 8th May 2019
Sunshine Coast Regional Council - Approval Conditions – MCU18/0190 30th April 2019
Sunshine Coast Regional Council - Development.i website DA documents – MCU18/0190