PBCAI opposes attempt to build dwellings instead of Motel due to lack of finance
"Thomco is now not prepared to risk financing the project, but wants the community to take the risk that Thomco will develop the Motel in the future. Thomco’s history suggests further applications rather than compliance with Court approvals."
PBCAI is unanimously supportive of opposing the latest Thomco Application and have requested that Council advise the Court as set out below, with our reasons.
Thomco’s priority has always been to build the dwellings for sale, preferably as permanent accommodation, and the agreement to change the dwellings to visitor accommodation at the hearing in October 2018 was simply a means to that end and to the Consent Order.
While the present application seeks to build the dwellings before the motel, the dwellings, in fact, may never be built. This means the Motel may never be built despite it being used as the short-term visitor accommodation wedge to argue for approval of the entire development.
Thomco is attempting to obtain the normal developer’s 60% pre-commitment before building the dwellings.
Could Thomco’s failure to proceed with building the Motel be because the dwellings are overpriced? Perhaps the location down behind the Peregian Beach Hotel and the IGA, sheltered from sea breezes and with only a view facing west over the other dwellings in the housing estate and overlooking Emu Swamp is not attractive. The need to have all double glazed windows closed to keep out the refrigerator and air conditioning noise from the Hotel and IGA could also be deterring buyers.
The advertised price for the dwellings “from $750,000” up to “from $1,027,000” is a lot to pay under these circumstances and we understand that none have sold.
The sale prices also differ from the low cost accommodation intended for the site under the Noosa Plan, although this might not deter buyers. The Motel is to provide the low cost accommodation.
The Precedents for failure to comply:
There is a definite pattern in Thomco’s court processes, which first began in 2007.
It agrees to whatever it takes to get a Court Order through mediation and then fails to implement the Order. It simply uses an Order to try and mediate a better outcome (for Thomco) with its next application.
Thomco failed to activate the 2010 Consent Order but applied to vary it to allow things that it had conceded to achieve the mediated settlement. The Court required Thomco to readvertise these requirements, some of which were subsequently approved, but then Thomco again failed to proceed.
In 2014, Thomco abandoned the commercial building approved on David Low Way and obtained approval to build the IGA making it impossible to implement the 2010 Consent Order without demolishing parts of the IGA complex. Incidentally, PBCAI supported the IGA application as preferable to the 2010 Consent Order. The IGA was built and is operating successfully.
In 2016, Thomco sought to revive the 2010 Consent Order, which had expired, with two applications to this Court (1361/2017 and 1360/2017). They were both discontinued on 2 July 2019.
The 2010 Consent Order required Thomco to transfer a portion of the land at the western end bordering the National Park to the Council for environmental purposes. Thomco failed to do this. The transfer was a condition of the 2014 IGA approval. Again Thomco failed to do this. In 2018, Noosa Council took action to enforce the transfer and just prior to the hearing of Appeal No 4066 the land was finally transferred.
It was also a condition of the 2014 IGA approval that Thomco would not remove the native trees from the current part of the site unless required for operational reasons. Despite not starting any building, Thomco cleared and mulched most of the trees (which had been planted in 1964).
Thomco also persisted in accessing the site from Rufous Lane near the Kindergarten, despite Council’s advice to Thomco that it was not permitted.
The Peregian Beach community has no confidence that Thomco will comply with Orders of the Court and is not prepared to assume that it will exercise any discretion in favour of the community or the public interest.
The sole director of Thomco is Tony Scanlon, who contacted me as President of PBCAI in April 2017, and I met with him at 10am on 6 April 2017. At that meeting, I asked him what Thomco would do if it could not get approval for the permanent accommodation for which it had applied. He said then the development would not proceed. Thomco maintained its application for the dwellings to be permanent accommodation, which did not comply with the Noosa Plan, until about 15 October 2018. We are still waiting for the development to commence.
The Motel as Priority
While opposing the 2016 application, PBCAI was prepared to accept that the Motel part was a reasonable compromise, in that it provided low cost short-term visitor accommodation which the Noosa Plan requires and for which there is a demand in Peregian Beach.
Following the Court ordered mediation in Appeal No 4066, Thomco’s solictors agreed, in an open letter dated 8 May 2018, that the Motel would be built prior to or concurrently with Stage 1. This was subsequently followed up in the Affidavit of Thomco’s Town Planner, Christopher Schomburgk dated 25 May 2018 at paras 13 (b) (y) page 15, and especially 14(f) which he says was to address “concerns raised by the other parties’ town planners”.
Therefore, the priority of the Motel conforms with the opinions of the Town Planners in preparing the JER. To attempt to circumvent the expert advice in this manner (this Application) is inappropriate.
The letter dated 8 May 2018 states “our client intends, at the hearing of the appeal, to rely upon a changed proposal…” which included that the Motel would be built prior to or concurrently with Stage 1.
The parties and the Court proceeded on this basis and the Consent Order of 21 June 2019 required that the Motel would be built prior to or concurrently with the dwellings.
The priority of the Motel was fundamental to PBCAI agreeing to settle before the completion of the hearing. If this change had been raised in the settlement negotiations there would have been no consent order.
NOT A MINOR CHANGE UNDER SECTION 78
PBCAI strongly objects to Thomco’s attempt to change a fundamental term of the Consent Order. In this regard, PBCAI agrees with Noosa Council, that the change sought is not a minor change as, if it is approved, it would result in a significantly different development – one lacking low cost short-term visitor accommodation.
PBCAI submits that the Consent Order requires Thomco to build the Motel with priority (Stage 1) because of Council’s and the community’s need for the short-term visitor accommodation provided by a Motel.
For Thomco to propose to vary this recent Consent Order to firstly build the 20 by 3, 4 and 5 bedroom dwellings is a significant change, not a “minor change”, from what was approved.
If this application were approved, when would Thomco propose to build the Motel, given its lack of success in selling the dwellings to-date? How would Thomco guarantee that this would occur? Would Thomco then raise the construction impacts on the dwellings as a reason not to build the Motel?
The approval of the amendment, at very least, would result in no low cost accommodation and no short-term visitor accommodation for many years to come contrary to the argued “need” for the development.
PBCAI submits that the proposal to build the dwellings first, without any guarantee that the short-term visitor accommodation provided by the Motel will be built requires public notification.
Without the Motel, and the short-term visitor accommodation, the development is the small lot housing development Thomco initially sought. Thomco has even intimated in the submission to Council that there is no requirement for it to deliver “Motel Style Accommodation”.
The real reason behind this Application
The alleged reason for the need to vary the Consent Order relates to the staging of the project and is said to be “ a result of construction constraints around delivering the Motel building in Stage 1. …These construction impacts will negatively affect the operation and visitor attendance of the Motel and will undermine the viability of the project.” Between 8 May 2018 and the date of this application there was nothing which changed the “construction constraints”. The application also conveniently ignores construction impacts which would negatively affect the occupation of the dwellings if they were built before the Motel. The construction impacts really arise from the site and are contributed to by the site density.
PBCAI would submit that the real reason for the Application relates to Thomco’s inability or unwillingness to fund the Motel without the sale, or sufficient pre-commitment to the sale, of the dwellings.
The submission to Council stated that “the developments funding requirements dictate that the construction of the Accommodation Dwelling Units must be done within Stage 1.” The submission further said “The requirements for construction funding cannot be met if the Motel Building is constructed in Stage 1, as currently approved.” This does not explain why concurrent construction is not possible, except for the irrelevant funding issue.
In confirmation, PBCAI notes that the Affidavit of Anthony Scanlon, dated 8 November 2019, focuses almost exclusively on Thomco’s financial circumstances as the reason for the proposed change.
Thomco now wants to divert the funding it purported to have for the Motel to construct the majority of the dwellings before the Motel. Clearly, Mr Scanlon is saying Thomco is now not prepared to risk financing the project, but wants the community to take the risk that Thomco will develop the Motel in the future. Thomco’s history suggests further applications rather than compliance with Court approvals.
PBCAI refers to the Planning Act 2016, s 43 (2):
(2) An assessment benchmark does not include—
(a) …; or
(b) a person’s circumstances, financial or otherwise; or
and s 45:
(5) An impact assessment is an assessment that—
(a) must be carried out—
(i) against the assessment benchmarks in a categorising instrument for the development; and
(ii) having regard to any matters prescribed by regulation for this subparagraph; and
(b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
Thomco’s personal or financial circumstances of not being able to fund the Motel without first selling and constructing the dwellings is an irrelevant consideration for the Planning and Environment Court.
PBCAI as a Party to Application No. 3387 of 2019
PBCAI is a non-profit community organisation run by volunteers.
PBCAI and the Peregian Beach Community have been involved with Thomco since 2008. PBCAI became a Respondent by Election to Appeal No 4066 in 2017 and, after using thousands of pro bono hours and the $40,000, raised from the community, considered that this 11 year old battle was finally resolved with the Consent Order of 21 June 2019. We are now asking will Thomco ever accept and construct what it gets the Court to approve?
PBCAI would submit that it is “directly affected by the relief sought” by Thomco as it was a party to Appeal No 4066 and, as such, to the Consent Order of 21 June 2019 which Thomco now seeks to alter to the disadvantage of PBCAI and the Peregian Beach Community. The proposed change will at very least delay the building of low cost short-term visitor accommodation, if not permanently remove it from the development, which is a very real possibility given Thomco’s track record.
PBCAI by becoming a Respondent by Election to Appeal No 4066 has established an interest in this matter by our participation, and of course, was a party to “the Consent” which resulted in the Consent Order of 21 June 2019 (See Collard v Brisbane City Council (2010) QPELR 6. PBCAI would submit that Aveo Clayfield Pty Ltd v Brisbane City Council  QPEC 60 is not directly on point and should not be followed because PBCAI has a direct interest in this matter established by our participation in both the Appeal and the Consent Order which would be affected by the relief sought.
However, while PBCAI and the community wants to ensure that the Motel is actually built, we cannot afford the time and expense of constantly responding to Thomco’s numerous applications which seek to wear down the community’s resolve in order to pursue its latest change to its plans.
Noosa Council is also seeking in opposing this application to ensure that the Motel is actually built and available to provide low cost short-term visitor accommodation.
For these reasons, PBCAI is hopeful that the Court, being aware that PBCAI will be “directly affected by the relief sought” will consider the weight this adds to the case presented by Noosa Council, which is representing the views of the Peregian Beach community and seeking to uphold the Noosa Plan in the public interest.
The Consent Order complies with the Noosa Plan. In the Court of Appeal in Bell v Brisbane City Council & Ors  QCA 84, His Honour McMurdo, JA referred to planning schemes generally and stated:
…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land. In Clark v Cook Shire Council,69 Keane JA, with the agreement of the other members of this Court said:
“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.”
PBCAI requests that Council advise the Court that PBCAI is opposed to this Application for the above reasons but while it maintains its interest in the outcome and supports the upholding of both the Consent Order and the Noosa Plan, it does not wish to participate in the Application as a party.
That PBCAI requests that Council advise the Court that PBCAI:
· is opposed to Thomco’s Application 3887/2019 to vary the Consent Order of 21 June 2019, so that Thomco does not have to build the Motel prior to or concurrently with the 20 dwellings which it is attempting to sell;
· has no confidence that Thomco will comply with Orders of the Court based on its past failures to comply with previous Orders;
· strongly supports the priority of the Motel which will provide low cost short-term visitor accommodation required by the Noosa Plan and for which there is a demand in Peregian Beach;
· maintains its interest in the outcome and strongly supports the upholding of both the Consent Order and the Noosa Plan;
· does not wish to participate in the Application as a party for cost reasons but will support Council’s opposition.
Carried Unanimously 10 November 2019