GemLife Appeal in Planning and Environment Court
Today (30 May 2024) Her Honour Judge Kefford announced her judgement.
She has upheld Noosa Council planning staff’s recommendation to reject the Gemlife application for a seniors’ living community adjacent to the Cooroy Golf Club, which included dwellings and a clubhouse on Club land, in March 2021. All councillors supported this decision.
Her Honour Judge Kefford: “I order the appeal be dismissed. The development application seeking a development permit for making a material change of use and a development permit for reconfiguration of lots is refused.”
February 2024 – Resumption of the GemLife Appeal
The first five days of this appeal took place last year, from 26 July to (and including) 1 August. On the final day, GemLife’s lawyer requested an adjournment of the hearing, in order to address Her Honour Judge Kefford’s concerns regarding the lack of clarity and several contradictions in the Appellant’s evidence.
The adjournment was allowed and GemLife offered to pay Noosa Council’s costs thus far. At the time, the expectation was that the appeal hearing would resume in September.
However, after another Minor Change Application and new evidence from expert witnesses and the revision of many plans, the date for the resumption of the hearing was finally agreed for February 2024.
The first and second days were taken up with cross examination of the Visual Amenity, Water Quality and Town Planning expert witnesses for both Noosa Council and GemLife. Judge Kefford then allocated all of Thursday, for the writing of the Closing Submissions, which were required to be emailed to her Associate by 4pm that afternoon.
On Friday, the final day of the hearing, these submissions were tendered in hardcopy and discussion took place on outstanding matters. Evidently the provision of aged care cannot be guaranteed; contractural arrangements such as Bank Guarantees have no validity in town planning, the reconfiguration of the boundary of several lots seems to have difficulties, and it is still not clear that this is truly a Retirement residential estate, as all plans and many reports indicate it would be a GemLife Luxury Resort.
Also, Condition 14, of GemLife’s Proposed Draft Conditions, The obligations in the Myall Street Agreement dated 27 July 2023 must be complied with., was abandoned.
The hearing was concluded that afternoon, however Her Honour asked for further submissions on the reconfiguration of various lots, to be submitted at a future date and indicated that it will be more than a year before she will be able to produce a judgement as, she has a long list of judgements to finish and will be going on extended leave sometime later this year.
CARA President’s Report 2023
The GemLife appeal in the Planning and Environment Court, lodged in April 2021, has progressed slowly. CARA is a co-respondent by election with Noosa Council in the appeal. Members attended court in Brisbane for four days, until GemLife requested an adjournment in August this year, so they could improve their evidence. The hearing resumes19February 2024and will run for 3-4 days.
Report on the 2023 GemLife Appeal
CARA is Co-Respondent-by-Election in GemLife’s Planning and Environment Court Appeal against Noosa Council’s refusal of its Myall Street development application.
26 July, Wednesday: At 10am Judge Kefford began the appeal with an explanation of court etiquette and provided three printed pages on court procedure, titled: Information for self-represented litigant. This document includes sections on trial procedure and particularly ‘Evidence’, which has already been very useful.
The rest of the day we heard opening statements from the barristers for GemLife and Noosa Council, outlining the evidence they expect to rely on in the trial.
There were also submissions on another matter. The State Department that provides the conditions related to traffic on Myall Street, do not wish to be present at the appeal, however Judge Kefford has required that they stay involved.
27 July, Thursday: Today a site inspection took place in Cooroy, attended by the judge and barristers from both sides, plus CARA’s representatives.
28 July, Friday: The morning session opened with the hearing of objections from the barristers acting for GemLife and the Noosa Council. Objections to our various Lay Witness Statements were flagged by GemLife’s barrister, but these will be dealt with at a later date, once we have been briefed by him.
For the rest of the day, the following Expert Witnesses were cross-examined by all interested parties: For GemLife, Gavin Duane – Economic Need; Catherine Wells – Aged Care Facilities; and Jeffrey Blunden – Golf Course Sustainablility.
The court was adjourned at 4.15pm, to allow the community representative and court spectator to catch the train back to Cooroy, which was very much appreciated!
31 July – Monday: GemLife’s barrister had various objections to some paragraphs of our Lay Witness Statements (from seven CARA members), some of whom are also members of the Cooroy Golf Club – these statements were dealt with in the morning. The hearsay, opinion of a non-expert, relevance and speculative sentences were struck out, but plenty of testimony was accepted.
The rest of the day was occupied by the cross-examination of expert witnesses. Jeffrey Blunden (Golf Course Sustainability expert for GemLife) returned for another session, then Marcus Brown (Need Expert for Noosa Council) answered many questions very competently. The day finished with the testimony from Nathan Powell, Visual Amenity and Character Expert Witness for GemLife.
1 August – Tuesday: For several days, her Honour Judge Kefford has expressed concern and frustration with the lack of clarity and contradictions in evidence relating to the development. This was especially evident in the plans presented to Judge Kefford, both in hard copy and digital versions, and in evidence from the Expert Witnesses.
Of considerable concern is the fact that the proposed development is described in various original and amended development applications lodged with Noosa Council, as “Multiple Housing – Type 5 Relocatable”. The Queensland Government’s traffic conditions also use this definition. However, sometime between 2020 and 2021, this use definition changed to “Multiple Housing – Type 3 Retirement and special needs”.
The overall confusion led to a request by the Appellant for an adjournment of the appeal hearing, to address these concerns. Judge Kefford granted the adjournment and announced that GemLife has offered to pay Noosa Council’s costs, the amount to be agreed upon.
4 August – Friday: A review was held on Friday morning to discuss the date that the hearing will resume and other matters. A possible additional Minor Change Application was foreshadowed by the Appellant. The date settled on was 22 September 2023.
9 July 2023 – Last Minute Vote for Golf Club Deal
Before the GemLife planning court appeal begins in Brisbane later this month, the judge has asked GemLife to provide evidence that would assure the court that the golf club members are satisfied the recent changes are acceptable.
Unfortunately, the club committee intends only presenting the GemLife side of the case, despite being asked by members to present the alternative point of view.
This means members who see a poor outcome for the club, and for the Cooroy community in general, are having to put their case without access to the club’s email lists.
These members therefore urge other disaffected members to attend the Special Meeting at 5:30pm, Thursday 20 July to vote the motion down.
Read more here:
https://noosamatters.com.au/the-giant-over-50s-lifestyle…/
Cooroy Golf Club at the Crossroads
In 2019, land-lease property developer GemLife lodged a development application for an Over-50 Luxury Retirement Resort, with 246 housing units, on private land adjoining Cooroy Golf Course in Myall Street, Cooroy. The application called for a reconfiguration of lots and included the transfer for 1.2ha (now 1.82ha) of golf course land to the developer. In exchange, the club was to receive a new clubhouse, fairway redesign, a golf buggy shed, and club membership fees from each new home owner for 10 years.
In February 2021, Council planning staff recommended refusal on a number of grounds includinginconsistencies with Noosa Plan zoning, negative environmental impacts, high housing density, effects on the Lake Macdonald Water Supply Catchment, and adverse impacts on Cooroy’s infrastructure and amenity.
The proposal was unanimously rejected by councillors at the General Committee Meeting the following month. GemLife filed a Notice of Appeal in the Planning and Environment Court in April 2021, and Cooroy Area Residents Association joined with the Noosa Council as Co-Respondent in the appeal.
In March 2022, GemLife reduced the number of lots by 18 in response to concerns from Noosa Council about building houses and infrastructure in the flood prone and environmentally sensitive Riparian Zone.
At the time GemLife’s development application was lodged with the Noosa Council, the proposed entry road was located on private property, land that was under contract to GemLife.
However, on 10 February of this year, GemLife lodged a Minor Change Application with the court, which included plans that show the entry road to the golf clubhouse and the residential estate now located on Cooroy Golf Club property, which would obliterate the signature 15th fairway. The entry road’s location appears to have been changed without consultation with the club members or committee.
This further incursion into the golf course has prompted dissatisfaction among many club members, who were already uneasy about the previous changes. They are now concerned that this classic rural golf course is in danger of being impacted by this proposed high-density residential estate, which reduces its length and changes its layout. It’s important to them that the golf course retains its integrity, even though a new clubhouse might be attractive to some members.
Members are also concerned about the intrusion of the housing estate on the playability of the course, the liability of players and/or the club when stray balls enter the housing estate, and the extra costs involved in running and maintaining a new clubhouse. Other fears included the reduction from a standard par 72 course to a par 67, which would have an effect on the quality of the course and therefore its popularity with players.
Concerned golf club members have called for a Special General Meeting on 28 March, to pass the following motions:
a) Given the significant changes to the GemLife proposal, the management committee is directed to cease and withdraw from all discussions and negotiations around the sales or exchange of assets with GemLife forthwith.
b) That no part of the current 15th hole be sold or exchanged with GemLife.
The Cooroy Golf Club newsletter, received by members last week, announced that the latest plans for the proposal will be available for examination by members from Monday. At several information sessions this week, committee members will join with GemLife representatives to clarify the issues, and answer any questions members may have on how the proposal will affect the golf course. Members are invited to provide feedback on these latest changes.
In this latest newsletter an ultimatum is presented:
“It should be understood that if there is a YES vote on the Motion to be resolved at the Special General Meeting called by members and scheduled for 28th March 2023, then all discussions with GemLife will cease immediately without any further negotiations.”
Clearly, a YES vote would negate the need for an expensive and unnecessary 7-day appeal hearing in the Planning and Environment Court, since in our opinion the appeal is unlikely to succeed.
UPDATE 29 March 2023
Club members voted against the two motions. This means the appeal will continue.
March 2023 Update on Planning and Environment Court Appeal
A court requirement before the final hearing is that the parties to the appeal attend a Without Prejudice Conference (mediation session). This is generally a confidential discussion, to work out a better understanding of the issues, and perhaps a reduction of issues in dispute, reducing the overall cost of the appeal.
This took place in Brisbane this last Monday, 23 January, attended by GemLife, Noosa Council and Cooroy Area Residents Association representatives. At this stage the final court hearing was scheduled for February 2023.
Two days later, GemLife proposed a minor change to the development application, relating to the location of the entry roadway to the development.
As a result, the judge ordered that consideration of the Minor Change Application take place on the 24th of February.
No date was allocated for the final 7-day court hearing.
Julia Walkden
Secretary
Cooroy Area Residents Association Inc.
CARA President’s Report 2022
The GemLife appeal in the Planning and Environment Court, lodged in April 2021, is progressing slowly. However, a mediation session has been scheduled for 13December and a trial will be booked to run for several days, early next year. CARA is a co-respondent with Noosa Council in the appeal.
CARA Newsletter October 2022
GemLife Appeal Update
The appeal is moving along at a snail’s pace and there have been a lot of postponements. However, late this year there will be a without prejudice conference and, early in 2023, a trial will be booked to run for several days. CARA is a co-respondent with council in the case and at this stage the process hasn’t involved any costs. We will closely monitor the case moving forward, and after mediation will reappraise our involvement.
CARA Newsletter March 2022
GemLife Appeal News
GemLife’s appeal was lodged in the Planning and Environment Court on 23 April 2021, even though the project site is not consistent with zoning or local and state government plans. Cooroy Area Residents Association, has joined with the Noosa Council as Co-Respondent in the appeal. Various reviews were held in October and December 2021 and in February 2022, because the applicant had not fulfilled various obligations to the court. In March 2022 GemLife reduced the number of lots in response to concerns from Noosa Council about development in the Riparian Zone. Another review is scheduled for 7 April.
CARA President’s Report 2021
In February, Council planning staff recommended refusal of the GemLife Golf Resort proposal for 246 seniors’ housing units in Myall Street, and councillors unanimously backed this refusal at their Ordinary Meeting on 18 March. GemLife subsequently lodged an appeal and CARA has joined with Council as co-respondent to defend the appeal. We consider the proposal to be an inconsistent land use that will have serious impacts the town’s amenity and infrastructure.
CARA President’s Report 2020
GemLife’s proposal for 242 seniors’ housing units as part of a Gated Retirement Resort adjoining Cooroy Golf Course is still going through the approval process. Part of the applicant’s application is a gift to Cooroy Golf Club of $4.5 m worth of improvements. CARA was unable to hold our usual town meeting to outline the
project due to COVID restrictions. Because we considered the proposal to be an inconsistent land use and will have impacts the town’s infrastructure, our submission objects to approval by Noosa Council.
GemLife Development Application
The GemLife Retirement Resort proposal is considered by CARA to be inappropriate and should not be approved by Noosa Council. Some of the reasons include:
Inconsistent land use: The proposal is located on land within the Rural Zone, which is an inconsistent land use. The proposal is not a suitable use, given the context and characteristics of the site. The development would negatively impact on the Myall/Elm streets intersection and further exacerbate the parking problem in the Cooroy CBD. The proposal will negatively impact on the scenic and environmental values of the rural land for residents located to the north and south of the subject site.
Need: There is no need for the proposed rezoning for retirement housing, since Cooroy already has two retirement residential/resort living establishments. Also, in the New Noosa Plan, land opposite the site at 125 Myall Street, Cooroy (Lot 4 SP248479) is proposed to be zoned ‘Community Facilities’ for a Residential Care Facility in the future.
Insufficient buffer areas: The design does not provide sufficient buffer areas between the premises, which will lead to potential adverse amenity impacts.
Motor Vehicles: Statistical data indicates that 39% of dwellings in retirement housing have two vehicles, and 35.5 % one vehicle. If this flows on to GemLife, then the expectation is approximately 330 vehicles within this application.
The DA comes before the Council Planning Committee on 11 August. A decision will be made at the Ordinary Meeting on 20 August.