Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd
[2025] QPEC 18
•3 September 2025
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 18
PARTIES:
AESTHETE NO. 15 PTY LTD (ACN 627 545 019) and AESTHETE NO. 20 PTY LTD (ACN 627 946 356)
(Appellants)
v
COUNCIL OF THE CITY OF GOLD COAST
(Respondent)
and
CIELO PROPERTY GROUP PTY LTD (ACN 644 682 717)
(Co-Respondent)
FILE NO/S:
64/24
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Southport
DELIVERED ON:
3 September 2025
DELIVERED AT:
Brisbane
HEARING DATE:
9, 10, 11, 12, 16, 17 & 20 June 2025.
JUDGE:
Prskalo KC DCJ
ORDER:
THE APPEAL IS RETURNED TO THE APPLICATIONS LIST FOR REVIEW IN BRISBANE ON 20 OCTOBER 2025.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – where the co-respondent seeks approval of a development permit for a material change of use for a multiple dwelling – where the respondent approved the development application subject to conditions – where the appellants appeal against the respondent’s decision – where the development exceeds the height prescribed in a Building height overlay map in the planning scheme – whether the development complies with the height up-lift provision in the planning scheme – whether the development complies with the planning scheme – whether there are relevant matters that support refusal or approval – whether the development should be approved in the exercise of the discretion
LEGISLATION:
Planning Act 2016 (Qld) ss 43, 45, 59, 60, 65A
Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47
Planning Regulation 2017 (Qld), s 31
Acts Interpretation Act 1954 (Qld), s 14B
CASES:
Abeleda v Brisbane City Council (2020) 6 QR 441; [2021] QPELR 1003; [2020] QCA 257
Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] QPELR 342
Archer & Ors v Council of the City of Gold Coast [2024] QPELR 387; [2022] QPEC 59
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793; [2019] QPEC 16
Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2023] QPELR 1160; [2022] QPEC 32
Brisbane City Council v YQ Property Pty Ltd; [2021] QPELR 987
Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor; Ruffin & Ors v City of Gold Coast & Anor [2023] QPEC 32
G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9
Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209; [1990] LG 679
Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14
Kangaroo Point Residents Association Inc v Brisbane City Council [2015] QPELR 203; [2014] QPEC 64
K Page Main Beach v Gold Coast City Council [2011] QPELR 406; [2011] QPEC 1
Lynch v Commissioner of Police [2022] QCA 166
McLucas & Ors v Council of City of Gold Coast & Anor [2024] QPELR 283; [2022] QPEC 56
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
S & S No. 4 Pty Ltd v Council of the City of the Gold Coast & Ors [2024] QPEC 42
SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24; [2006] QPEC 74
SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362
The Body Corporate for 62 Pacific Community Titles Scheme 45586 & Anor v Council of the City of Gold Coast & Anor; Sexton v Council of the City of Gold Coast & Anor [2025] QPEC 13
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1073; [2022] QPEC 31
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309; [2021] QCA 95
Undershaft (No 1) v Commissioner of Taxation 253 ALR 280
WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126
WBQH Developments Pty Ltd v GCCC (2009) QPELR 748; [2009] QPEC 054
Wilhelm v Logan City Council & Ors [2021] QPELR 132
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147
COUNSEL:
E Morzone KC and K Wylie for the appellants
S Hedge for the respondent
M Batty KC and J Bowness for the co-respondentSOLICITORS:
Yates Beaggi Lawyers for the appellants
Hopgood Ganim Lawyers for the respondent
Connor O’Meara Solicitors for the co-respondentIntroduction
This is a submitter appeal against the respondent Council’s approval of a development application permitting the co-respondent Cielo Property Group Pty Ltd to construct a 10-storey residential apartment building (the proposed development) at 90-92 Pacific Parade, Bilinga (the site).
The development application was properly made on 28 August 2023. At that time, the planning scheme in effect was the Gold Coast City Plan 2016 (version 10) (City Plan).
The development application was impact assessable and required public notification. The public notification attracted 32 properly made submissions and the majority were in opposition to the proposal.[1] The development application was approved with conditions on 5 March 2024.
[1] Ex 19; and see the list of principal submitters at pp 126-128.
The appellants have interests in land at 89-91 Golden Four Drive, which is located immediately behind the site. On 27 October 2023, the second appellant obtained a development permit for a material change of use for a multiple dwelling on two adjoining parcels of vacant land at 89-91 Golden Four Drive (the vacant land). The appellants, between them, own the parcels of land. The vacant land has the benefit of an approval for an 11-storey, 34.4-metre-tall residential tower, which has not yet been acted upon.
In the City Plan, the site is within the Medium density residential zone (MDRZ), with a maximum building height designation of 23 metres on the Building height overlay map. The proposed development is a tower rising to approximately 33.79 metres.[2] It is uncontroversial that the proposed development does not comply with the quantitative height standard designated in the Building height overlay map.
[2] At 33.3 metres in the plans, but due to a sag in the natural ground line, formally admitted by the co-respondent to be 33.79 metres: T3-81.
Specific outcome 3.3.2.1(9) of the City Plan permits increases in building height up to a maximum of 50% above the Building height overlay map in limited circumstances in urban neighbourhoods provided a cumulative list of requirements are met.
The appellants contend for refusal, arguing that the proposed development does not comply with the Council’s planning scheme, in particular the height uplift provision in s 3.3.2.1(9) of the City Plan, amongst other non-compliances.
Deciding development applications under the Act
The appeal to the Planning and Environment Court is by way of hearing anew: s 43 of the Planning and Environment Court Act 2016 (Qld) (PECA). Pursuant to s 45 of PECA, it is for Cielo Property Group Pty Ltd to satisfy the court that the appeal should be dismissed. The court’s power to decide the appeal is contained in s 47 of PECA.
Pursuant to s 46(2) of PECA, the court must assess the development application under s 45 of the Planning Act 2016 (Qld) (the Act) as if it were the assessment manager for the development application. The statutory framework assessment is prescribed by the Act. The Act requires, amongst other things, the development application to be assessed in accordance with s 45(5) and decided in accordance with s 59(3) and s 60.
Section 45(5)(a)(i) of the Act requires an impact assessment to be carried out against the assessment benchmarks in a categorising instrument for the development.[3]
[3] Pursuant to s 45(5)(b) of the Act, the impact assessment may be carried out against, or having regard to, any other relevant matter, although this is not mandatory: see Abeleda v Brisbane City Council [2020] QR 441 at [32].
Pursuant to s 45(7), the assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made. The City Plan (version 10) is such a categorising instrument: s 43(3) of the Act.
Pursuant to s 45(5)(a)(ii), the impact assessment must also be carried out having regard to any matters prescribed by regulation. Section 31(1) of the Planning Regulation 2017 (Qld) requires the court to have regard to, amongst other things:
(a)any development approval for, and any lawful use of, the premises or adjacent premises, pursuant to s 31(1)(f); and
(b)the common material, pursuant to s 31(1)(g).[4]
[4] This is defined to include any properly made submissions about the development application which have not been withdrawn: Schedule 24 – Dictionary.
The court must therefore have regard to the appellants’ Golden Four Drive approval and the properly made submissions by the submitters.
Section 45(8) permits weight to be given to a planning scheme amendment that took effect after a development application was properly made. No party advanced a submission that there was a relevant amendment to be considered.
Section 60(3), in combination with s 59(3), confers a broad discretion to approve a development application, be it in whole or in part, or to refuse it.
The discretion is to be exercised in accordance with the approach derived from the appellate cases: Brisbane City Council v YQ Property Pty Ltd; [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441; Wilhelm v Logan City Council & Ors [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309. From these cases, it can be observed:
(a)When carrying out an impact assessment under s 45 and s 60 of the Act, the ultimate decision calls for a ‘broad, evaluative judgement’.
(b)The discretion conferred by s 60(3) admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor.
(c)The exercise of the discretion under s 60(3) is subject to three requirements, including that it be based upon the assessment carried out under s 45.
(d)The Act does not alter the characteristic of a planning scheme, which remains a reflection of the public interest. Despite its broad nature, the discretion must be exercised having regard to the fact that the planning scheme is the embodiment of the public interest.
This Court may in its discretion approve a development even where specific outcomes of the planning scheme regarding building height exceedance are not met: see Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1073.
An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the Act. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of discretion conferred by s 60(3): see Abeleda v Brisbane City Council at [54][5].
[5] Citing Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793 at [53] to [54].
In forming an evaluative judgement, I have had the benefit of opinion evidence from town planners, architects, visual amenity experts, economic need experts, and solar and wind engineering experts, as well as access to photographs of the area, plans, elevations, sections, renders, landscape design plans, visual representations of other approved developments, maps, and a photomontage compilation.
At the commencement of the hearing, the parties arranged a site inspection of the local area. Observations on the site inspection do not form part of the evidence. The site inspection did however enhance my appreciation of the photographic evidence and the various visual aids tendered on appeal.
The site and the surrounding locality
The site consists of two contiguous residential allotments at 90-92 Pacific Parade, which is at the southern extent of the Gold Coast suburb of Bilinga. Bilinga is considered a southern beach suburb of the City’s well known coastal strip. Across Pacific Parade is Joe Doniger Park and North Kirra Beach, which affords the site extensive beach and ocean views.
The site is properly described as Lots 1 and 2 on RP 87297. The combined lots have a rectangular shape and a total area of 1,012 square metres with an approximate 20 metre frontage to Pacific Parade. Consistent with the local topography, the site is relatively flat.
The site is currently improved by two dwellings, an older 2 storey dwelling at the front and a single storey dwelling on the ‘battle axe’ lot at the rear, both with access from Pacific Parade. Ornamental shrub species exist within the front setback, and the canopy of a Royal Poinciana extends between the two dwellings.
The site is immediately surrounded by the following land uses:
(a)to the north-east (towards the beach): across Pacific Parade is Joe Doniger Park, which forms part of the open space that extends continuously along Pacific Parade to the north-west and south-east. The park has a combined pedestrian and cycle path that meanders along its alignment. Vegetation within the park is typically characterised by single or sparsely spaced trees and pine specimens, the Norfolk Pines being the most prominent of these and which are primarily located close to the edge of Pacific Parade. The open space adjoins the beach with the Coral Sea beyond.
(b)to the south-east (along Pacific Parade, towards Kirra): 88 Pacific Parade is an older 2 to 3 storey brick multiple dwelling with a flat roof.
(c)to the south-west: at the rear boundary of the site was previously a car hire business, which has now been demolished, with the appellants’ land at 89-91 Golden Four Drive now vacant and ready for development.
(d)to the north-west: at 94-96 Pacific Parade, the site is adjoined by a narrow driveway that provides access to the battle axe block at 94 Pacific Parade, which accommodates a 4-storey multiple dwelling[6]. Adjoining the driveway to the north-west at 96 Pacific Parade and at the front of the block, is a recent 6-storey multiple dwelling with a roof terrace and of contemporary appearance [7].
[6] Described as ‘recent’ in the Architecture Joint Report (Ex 11) and as comparatively ‘older’ in Visual Amenity Joint Report (Ex 9).
[7] Described in the Visual Amenity Joint Report (Ex 9) as a recently constructed 7-storey multiple dwelling.
Broadly, the site is located in Bilinga at the southern end of the Gold Coast, between the Pacific Ocean and the Gold Coast Highway (and the Golden Four Drive service road parallel to the highway). Across Golden Four Drive to the south-west is the Special Purpose Zone, which includes the Gold Coast Airport and Southern Cross University. The suburb of Tugun lies to the north-west and Coolangatta, including the Coolangatta major centre, to the south-east.
The town planning experts identify the locality of the site as:
That locality, in a town planning sense, is described as the land in Bilinga north-east of the Gold Coast Highway (to the foreshore including the wide beach) between Mills Street in the north-west and Musgrave Street in the south-east, which shares the 23m height category on the Building height overlay mapping and the RD6 category on the Residential density overlay mapping, and is predominantly zoned Medium density residential: Town Planning Joint Report at [26].
While the local area is part of a longer band of residential development that extends further to the north-west (up to at least Mills Street), the visual amenity experts settled on Graham Street as marking the northern boundary. Graham Street marks a “conspicuous narrowing of the band of development (from 100m to 60m) compressing the depth of the blocks and influencing the form of development on those lots: Visual Amenity Joint Report at [14] and Ex 43.
The architects describe the urban area to the north-east of the Gold Coast Highway as a relatively narrow coastal strip that includes land within the suburb of Bilinga to the south-east of Short Street and land within Tugun to the north-west of Short Street. Persons travelling along the Gold Coast Highway and Golden Four Drive will experience this area as a visual continuum, with the two suburbs appearing as one contiguous coastal urban area, due to the continuity of the settlement pattern, the consistency of the MDRZ land use designation, and the general similarity and variety of the residential built form.
However, the site is located within an area which has a height overlay of 23 metres that abruptly changes to 15 metres (3-storeys) to the north-west of Mills Street and 29 metres to the south-east of Musgrave Street in Kirra. Future development, if reflecting the different height overlay designations, is likely to increasingly differentiate localities within the contiguous urban strip.
The architects agree that the changes to the height overlay designations and the separation provided by the Gold Coast Highway and the coastline assist to delineate and characterise the local area of primary relevance to the site. While the identification of the ‘consolidated’ local area may assist to focus discussion of the proposed development’s impact, the architects believe the local area remains part of the extended coastal strip. This extended coastal strip will be understood as part of the coastal strip’s broader identity and sense of place: Architecture Joint Report at [29] to [33].
The character of the local area
Whether the local area is defined by a longer or shorter part of the coastal strip, the overall impression is the same. The character of the area is one which is predominantly residential in nature, but of varying built forms, including taller apartment buildings, interspersed with lower rise houses and multiple dwellings.
The character of a locality is the aggregate impression formed having regard to the individual features and traits of the development and the natural environment in the locality: G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9 at [91].
Regardless of the precise location of the immediate locality’s northern boundary whether Mills or Graham Street, the local area is characterised by:
(a)The visual prominence and focus of the beach foreshore and the park along Pacific Parade;
(b)A mix of building types and styles, whose built form, scale, and bulk are not highly prominent and do not result in visual dominance over the parkland and foreshore setting along Pacific Parade. These buildings include older modestly scaled dwelling houses, larger contemporary dwellings, older 2 and 3 storey flats and apartment buildings, and a mix of newly completed and approved apartment buildings.[8]
[8] See generally the photographs captured by Dr McGowan on 10 June 2025 for the existing built form north to Graham Street (Ex 44); the taller building height analysis (Ex 37) and renders of ‘height uplift’ approvals (Ex 45).
The local area in this appeal was recently considered in The Body Corporate for 62 Pacific Community Titles Scheme 45586 & Anor v Council of the City of Gold Coast & Anor; Sexton v Council of the City of Gold Coast & Anor [2025] QPEC 13 (The Body Corporate for 62 Pacific). Consistently with the evidence in the present appeal, Kefford DCJ considered that Pacific Parade, Golden Four Drive and Musgrave Street provided a clear and logical demarcation of the boundaries of the local area. As to the northern boundary, her Honour stated at [26]:
“Regardless of whether one considers the northern extent of the local area to be defined by Mills Street, Graham Street, or Cahill Street, the overall impression of the existing character of the local area is the same. It is informed by the aggregation of the individual features and traits of the existing development, the infrastructure and the natural environment context in which that built form sits.”
The beach and foreshore park are important landscape features that define the structure, character, and amenity of the area. There is a difference in the characteristics of each of Pacific Parade and Golden Four Drive and the contribution or impact which each of those make to the overall character of the area. Pacific Parade enjoys a higher level of amenity being adjacent to the foreshore and park. Built form development on Pacific Parade is also likely to have more influence on the beach and foreshore.
Golden Four Drive is nearer to and associated with the Gold Coast Highway and presents more as a transport orientated corridor rather than an esplanade with a scenic foreshore setting. This is further reinforced by the presence of elements such as bus stops and access points to the Gold Coast Highway.[9]
[9] Consistently with Dr McGowan’s opinion at [193] of the Visual Amenity Joint Report (Ex 9).
I adopt the observations of Kefford DCJ in The Body Corporate for 62 Pacific at [31] and [32]:
[31] Although there are differences in the amenity experience of Golden Four Drive and Pacific Parade, the taller built form along Golden Four Drive contributes to the character of the immediate locality. From viewing locations in Pacific Parade, Joe Doniger Park, the foreshore and the beach, the development on Golden Four Drive provides a backdrop to that located in Pacific Parade.
[32] From distant locations, such as the beach, the building form on Golden Four Drive and Pacific Parade merge into a single layer and one cannot readily identify their precise location. In addition, from more distant viewpoints, the buildings in Golden Four Drive appear similar in height to buildings of lesser height on Pacific Parade. That is because of the angle of view from such locations. That said, as one moves closer to the buildings in question, the parallax diminishes and the building forms and relative heights are more evident.”
In the present appeal, the observations in that case are supported by my review of the Digital Photomontage Methodology Report (Ex 5) and were also adopted by Mr Buckley in evidence, with whose opinion in that respect I agree.[10]
[10] Mr Buckley – T2-79.
An area in transition
The visual amenity experts recognise that the local area is progressing through a period of transition from relatively low intensity, predominantly low-rise development, to larger medium and high-rise built form: Visual Amenity Joint Report at [18].
The town planning experts agree that the local area is in transition:
The City Plan’s intent for the locality is for it to transition from a smaller-scale and lower-rise built form to a larger-scale and medium and high-rise built form. The increased number of taller buildings having been constructed and approved is considered to progress achievement of the ultimate built form character: Town Planning Joint Report at [30].
Having regard to the City Plan and the expert evidence, in my view, it is uncontroversial that the local area is transitioning towards a planned character of buildings consistent with the Medium density residential zone and the opportunities for increased height afforded by s 3.3.2.1(9) of the City Plan. This finding mirrors that of Kefford DCJ in The Body Corporate for 62 Pacific at [135].
Exhibit 45, prepared by Mr Mewing, gives a fuller picture of the changing nature of buildings in the locality. Buildings, existing, under construction and approved in excess of 8 storeys are of regular occurrence amongst other building heights. The buildings in excess of 8 storeys are all above 23m in height: Town Planning Joint Report at [26] to [28].
Exhibit 37 documents the either approved or constructed taller buildings in the local area between Mills and Musgrave streets; it identifies 22 such buildings, ranging from 4 to 11 storeys.[11]
[11] The height analysis originally included 23 buildings, but number 20 on the list (a 12 storey, 34.5m tower at 99 Golden Four Drive) was struck out. The list also does not include 66 Pacific Parade: the development approval by Council for a 10 storey, 31.8 m building was set aside on appeal to the Planning and Environment Court in The Body Corporate for 62 Pacific.
Along Pacific Parade, the presently constructed taller buildings are predominantly 7 to 8 storeys. Those existing buildings that exceed the 23m height overlay do so either only marginally or moderately. The exception is ‘Porta Pacifique’, which is an 11-story, 31m high older building at 134 Pacific Parade on the corner of Cahill Street, some 400 metres to the north-west of the site.
Along Golden Four Drive, the Pavilion development comprises of two constructed high rise 10-storey towers, both rising to approximately 34 metres. The Pavilion 1 development on the corner of Golden Four Drive and Lang Street is designated partly in the Neighbourhood centre zone with commercial/retail space at ground level providing a neighbourhood centre function. Pavilion 2 on the adjoining site is integrated with Pavilion 1.
Exhibit 45 documents the renders and typical floor plans of not yet constructed developments which have height uplift approvals:[12]
(i)2 Pacific Parade – 34.4m – 11 storeys;
(ii)8 Pacific Parade – 27.9m – 7 storeys;
(iii)55 Golden Four Drive – 34.4m – 10 storeys;[13]
(iv)89-91 Golden Four Drive – 34.4m – 11 storeys (the appellants’ approval);
(v)107-109 Golden Four Drive – 33.7m – 10 storeys.
[12] The development at 133 Golden Four Drive is stated in Ex 37 (and also the Town Planning Joint Report at p 51 and the Visual Amenity Joint Report at p 7) to be a 7-story, 23m building; this was corrected during evidence to be a 9-story building at approximately 32m and the subject of an appeal.
[13] Said to be an 11-storey building in Ex 37.
If approved, the proposed development will be the only high rise building on Pacific Parade, other than 2 Pacific Parade, located some 300 metres south-west of the site.
Given the lot pattern, land uses, and access to views, the more contemporary multiple dwellings in the area (including a number of approved but unbuilt developments) are characterised by vertically stacked, generally rectilinear floor plates, with prominent balconies directed towards the beach. A number of taller buildings incorporate recessed or contracted upper floor levels: see the Visual Amenity Joint Report at [22].
For example, existing buildings to the north of the site on Pacific Parade demonstrate physical or visual recessing of upper levels: see Joint Visual Amenity Report – Figure NP12 at p 38. This design feature, amongst others, was considered to be an important feature of the existing built form (as a general although not necessarily uniform characteristic) and was held to contribute to the character of the local area in The Body Corporate for 62 Pacific: [38], [140] – [141].
The evidence in the present appeal indicates that the recessing of upper levels of tall buildings is present in relation to some but not all of the existing developments, and obviously present on only one of the five approved developments shown in Ex 45.
The present built form exhibits a variety of architectural styles. The taller buildings to some degree adopt various devices to minimise bulk, some more successfully than others.[14]
[14] See for example: Mr Curtis at T3-92; Mr Holt at T5-65; Mr Richards at T5-7.
The architectural character of the locality is neither unique or distinctive, and not necessarily of a consistent high quality. The photomontages reveal the wide variety of architectural forms and expressions in the locality. Recent buildings exhibit a contemporary coastal character, typical of other coastal areas in the region. These new developments consist of generally vertically flat stacked floor plates of similar form, with visually prominent and generous balconies that capitalise on the views towards the coastline. There are also balconies with views to local streets as well as the hinterland to the west: Mr Richards, Architecture Joint Report at [244] to [245].
Overall, the character of the local area is that of a coastal, predominantly residential area that is in transition to a greater intensity of built form. There are a range of building heights and forms which seek to maximise views to the ocean, and taller buildings which include elements to reduce the impact of their bulk and scale.
The site within the City Plan
The City Plan maps the site as:[15]
(a) within the ‘Urban area’ on Strategic framework map 1 – designated urban area;
(b) within the ‘Urban neighbourhoods’ and ‘Investigation for light rail urban renewal area’ and near the ‘State and major road network’ on Strategic framework map 2 – settlement pattern;
(c) within the ‘Coastal tourism/urban strip’ and ‘Investigation for future light rail’ on Strategic framework map 5 – focus areas for economic activity;
(d) near the ‘High frequency public transport routes’ and ‘Coastal pedestrian and cycle network’ (and ‘Specialist centre – airport’) on Strategic framework map 6 – integrated transport;
(e) in the ‘Consolidation area’ on Strategic framework map 9 – consolidation and expansion areas.
[15] Town Planning Joint Report (Ex 7) at [43].
As indicated, the site has Medium density residential zone designation and a maximum building height designation of 23 metres on the Building height overlay map. The properties neighbouring the site also have a MDRZ designation except for the property at 3 Lang Street, Bilinga, which is within a Neighbourhood centre zone. The site is included in the RD6 category on the Residential density overlay map.
The town planning framework
Zones in the City Plan organise the area in a way that facilitates the location of the preferred or acceptable land uses. Assessment benchmarks for each zone are contained in a zone code. Each zone code identifies the following:
(a)the purpose of the code;
(b)the overall outcomes that achieve the purpose of the code;
(c)the performance outcomes that achieve the overall outcomes and purpose of the code;
(d)the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code;
(e)the performance and acceptable outcomes for the precinct.[16]
[16] City Plan Extracts (Ex 8) – Part 6 at 6.1(8) at p 128.
Pursuant to s 5.3.3(4)(c) of the City Plan, a development that complies with the purpose and overall outcomes of the code complies with the code; and a development that complies with the performance or acceptable outcomes complies with the purpose and overall outcomes of the code. Although this section relates to code assessable development, it remains applicable in the context of impact assessable development: see Archer v Council of the City of Gold Coast & Ors [2024] QPELR 387 (Archer) at [452].
In SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24, Rackemann DCJ stated at [48]:
It is not legitimate to regard departure from acceptable solutions as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or ‘dispensation’. It is another way of achieving compliance with the relevant performance criterion.
While compliance with an acceptable outcome is not mandatory, that does not mean that the content of an acceptable outcome is irrelevant. It may indicate what the planning scheme desires or prefers as development in a particular area: WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [36].
While acceptable outcomes in a planning scheme may be relevant in ascertaining the legislative intention of a planning scheme in a particular area, it depends on the terms of the provision itself: Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309; [2021] QCA 95 per Brown J at [110].
The purpose of the MDRZ Code is to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents.[17] The purpose of the code will be achieved through the overall outcomes expressed at s 6.2.2.2(2), which include:[18]
(d) Built form (excluding Dwelling houses on small lots):
(i)has a building height that does not exceed that indicated on the Building height overlay map;
(ii)contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport;
(iii)is setback from road frontages to promote an urban setting and interface with the street;
(iv)is setback from side and rear boundaries to protect the amenity of adjoining residences; and
(v)has varying site cover to reduce building dominance and provide areas for landscaping.
[17] City Plan Extracts (Ex 8) – Part 6 at 6.2.2.2 at p 129.
[18] City Plan Extracts at p 131.
Performance outcome 3 (PO3) of the MDRZ Code is one of the performance outcomes that achieve the overall outcomes:
“PO3 Building height and structure height does not exceed that shown on the Building height overlay map.”[19]
[19] City Plan Extracts at p 137.
By exceeding the height in the overlay map, the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and PO3 of the MDRZ Code.
Part 3 of the City Plan contains the Strategic framework. The framework sets the policy direction for the City Plan and has a planning horizon of 2031.[20]
[20] City Plan Extracts – Part 3 Strategic framework at p 12.
As to specific outcomes for building heights in urban neighbourhoods, s 3.3.2.1 states:
(8) The Building height overlay map shows the building height pattern and desired future appearance for local areas within urban neighbourhoods. This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high-rise areas.
(9) Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:
…
(b)a reinforced local identity and sense of place;
(c)a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
(d)a varied, ordered and interesting local skyline;
(e)an excellent standard of appearance of the built form and street edge;
(f)housing choice and affordability;
(g)protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;
…
(10) Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.
Note: No criteria have been identified for building heights which are more than 50% above the Building height overlay map, because such increases are in conflict with City Plan.
This provision has been comprehensively analysed in numerous cases: Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1073; Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2023] QPELR 1160; Archer v Council of the City of Gold Coast & Ors [2024] QPELR 387.
I respectfully adopt the summary by Kefford DCJ in Archer at [295]. For reasons explained in greater detail in the cases, with respect to impact assessable development in “Urban neighbourhoods” and in the Medium density residential zone:
(a) non-compliance with the quantitative standard expressed through the building height overlay map is a matter of significance under City Plan;
(b) building height in excess of the quantitative standard is not anticipated in the Medium density residential zone;
(c) the building height overlay map, read with s 3.3.2.1(8) of the Strategic framework, indicates that development that is non-compliant with the quantitative standard is inconsistent with the intended building height pattern and desired future appearance for a local area;
(d) where the exceedance of the height designated on the building height overlay map is up to 50 per cent, s 3.3.2.1(9) of the Strategic framework admits of a degree of flexibility with respect to building heights, subject to close scrutiny of the development in the context of the identified outcomes;
(e) if support for the proposed height is established by reference to s 3.3.2.1(9) of the Strategic framework, by operation of the hierarchy of provisions in s 1.4 of City Plan, the nature and extent of non-compliance with City Plan, in terms of building height, is materially diminished; and
(f) diversity of appearance is contemplated across different urban neighbourhoods and, as such, each case will turn on the facts and circumstances relevant to that case; but
(g) if there is not compliance with s 3.3.2.1(9) of the Strategic framework, non-compliance with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion; and
(h) City Plan does not support an outcome where the degree of exceedance is greater than 50 per cent of the quantitative standard expressed through the building height overlay map: development of that nature conflicts with City Plan and any resultant non-compliance with s 3.3.2.1(10) of the Strategic framework and s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion.
The parties did not challenge the correctness of the analysis in these cases. The overlay maps are an important metric. To exceed the height on the overlay map, a proposal must meet all of the requirements in s 3.3.2.1 (9) to avail itself of planning support. Whether these requirements are met in any given case turns on matters of judgement, impression, fact, and degree.
The proposed development
The development application sought a development permit for a material change of use for a multiple dwelling on the site.
The proposed development is a multiple dwelling of 20 units, made up of six 2- bedroom units; two 3-bedroom units; eleven 4-bedroom units and one 6-bedroom unit, totalling 68 bedrooms. The “bedrooms” calculated as part of Council’s delegated assessment report include multi-purpose rooms, and therefore are different to what is indicated on the development plans.[21]
[21] See extract from Council’s delegated report, Visual Amenity Joint Report at p 11.
In terms of built form, the proposed development comprises a single building which is 10 storeys and approximately 33.79 metres in height. The proposal also incorporates: (a) two levels of basement carparking; (b) nine levels of residential dwellings/apartments; and (c) a roof terrace with a pool and gym.
The metrics of the proposed development are set out at page 11 of the Visual Amenity Joint Report:
Development Aspect
Metric
Site Cover
Ground floor: 37%
Levels 1-3: 48%
Levels 4-7: 47.8%
Level 8: 34.8%
Rooftop: 22%
Total site cover: 56%
Setbacks to Pacific Parade
Ground level: 0m (water metre); 2.5m (wall)
Levels 1-3: 4.1m
Level 4: 5m
Levels 5-8: 4.5m
Setbacks to rear (89-91 Golden Four Drive)
Ground level: 5.95m
Levels 1-3: 4.7m
Level 4: 5.6m
Levels 5-8: 5m
Setbacks to north-west side neighbour (94-96 Pacific Parade)
Ground level: 0m (water tank); 1.5m
Levels 1-3: 3.5m
Level 4: 3.5m
Levels 5-8: 3.5m
Setbacks to south-east side neighbour
Ground level: 0m
Levels 1-3: 3.5m
Level 4: 3.5m
Levels 5-8: 3.5m
Density
1 bed per 14.9 square metres
Communal open space
172 square metres
Private open space per unit
Between 12 square metres – 179 square metres per dwelling
Car parking
41 resident
4 visitor
As depicted in the plans, the building form is characterised by its elongated external envelope that responds to the size and shape of the site, presenting its narrower dimension to the Pacific Parade frontage. The floor plates are all essentially alike in size and shape.[22] The significantly narrower north-east facing (Pacific Parade) and south-west facing (rear) facades are distinguished by the four storey high arches at the base of each façade.[23] While mostly open to the sky, the roof terrace is partially sheltered by the ‘flat’ projecting roof over the gym, service core, lift lobby and sitting area. The roof is set back from the perimeter of the roof terrace.[24]
[22] Architecture Joint Report – Mr Curtis at [177].
[23] Architecture Joint Report – Mr Curtis at [180].
[24] Architecture Joint Report – Mr Curtis at [184].
The issues in dispute
Despite the large number of planning scheme provisions in issue, approval or refusal of the proposed development turns on the resolution of four key issues:
(a)whether the proposed development complies with Specific outcome 3.3.2.1(9) – the uplift provision;
(b)whether the setbacks, site cover, and separation of the proposed development have unacceptable impacts on residential amenity including in terms of overlooking, overbearing, loss of outlook, shadowing, natural light or ventilation;
(c)whether the density of the proposed development causes unacceptable impacts; and
(d)if non-compliance with the relevant benchmarks is established, whether there are any other relevant matters that support approval or refusal.
The provisions in issue have been grouped into categories which the appellants say are largely subsumed by the various sub-paragraphs of Specific outcome 3.3.2.1 (9), save for issues associated with excessive residential density and adverse amenity for future occupants: see the Appellants’ Amended Benchmark Groupings (Ex 56). The appellants continue to rely upon the benchmarks listed under the various sub-paragraphs of Specific outcome 3.3.2.1(9) headings to support or buttress the overall allegation of non-compliance with the particular sub-paragraphs of s 3.3.2.1(9) in issue.
The appellants contend that the majority of the non-compliances they rely upon, particularly of the lower order provisions of the planning scheme, including in the Medium density residential zone code, the High rise accommodation design code and the General development code, can largely be subsumed into the consideration of Strategic outcomes 3.3.1(3) and (5) and Specific outcome 3.3.2.1(9).
The appellants continue to rely upon these subsumed lower-order provisions as secondary non-compliances to buttress or support the nature or extent of the non-compliance with Specific outcome 3.3.2.1(9).
The appellants submit that there is non-compliance with six sub-paragraphs of Specific outcome 3.3.2.1(9) and that these non-compliances are decisive reasons for refusal. Non-compliance is alleged with sub-paragraphs (9)(b), (c), (d), (e), (f) and (g), which correspond to the amended benchmark groupings at paragraphs (2) to (7) in Ex 56.
To focus the real issues in dispute, the appellants accept that non-compliance with (9)(g), namely “protection for important elements of local character or scenic amenity”, does not require separate determination – if compliance is found with the other uplift criteria, the appellants accept that compliance with (9)(g) will follow.
The appellants also concede that if compliance is found with the uplift provision, having considered that provision in the context of the corresponding group of lower-order benchmarks, it is unnecessary for the court to give these other provisions their own separate consideration because non-compliance will not in that event separately warrant refusal. Conversely, the appellants submit that if the court finds non-compliance with the uplift provision, it will inevitably find non-compliance with most of the other benchmarks; together this will constitute serious non-compliance with the planning scheme justifying refusal.
I have considered the Appellants’ Amended Benchmark Groupings (Ex 56) and have assessed the proposed development having regard to each of the assessment benchmarks. I accept that it is unnecessary for the court to individually assess each of the other assessment benchmarks as they do not, of themselves, materially impact the outcome of the proceeding. As I have said, approval or refusal of the proposed development turns upon the resolution of the four key issues identified in [74] above.
As a matter of legal construction, the appellants also submit that compliance with Specific outcome 3.3.2.1(9) can only occur where all eight sub-paragraphs in that provision are complied with and that non-compliance with any one of those sub-paragraphs should be a decisive reason for refusal.[25]
[25] Appellants’ Part A Submissions at [32].
The respondent and co-respondent submit that the proposed development complies with the uplift provision.
The respondent concedes non-compliances only in relation to height and density on the overlay maps. The height non-compliance is overtaken by the uplift provision and the density non-compliance is submitted not to warrant refusal.
The co-respondent submits the proposed development is architecturally meritorious and does not result in any unacceptable character or amenity impacts. It warrants approval subject to the imposition of lawful and appropriate conditions.
A number of submitters objected to the development application, although they have not all appeared on the hearing of the instant appeal. Their concerns rest in the height, bulk, and scale of the proposed development and consequent detriment to the amenity of the area. The concerns, conveniently summarised in the Town Planning Joint Report[26], include:
(a)Height and whether the proposal qualifies for a 50% uplift in accordance with 3.3.2.1(9);
(b)Overlooking, loss of outlook, and shadowing;
(c)The performance outcomes for residential density, site cover, and setbacks;
(d)The adequacy of parking; and
(e)Noise.
[26] Town Planning Joint Report at p 10, [39].
The submissions made to Council in response to the publicly notified development provide a source of evidence about community expectations. Ultimately, the submitters’ concerns must be considered through the prism of the relevant statutory provisions, the planning scheme, and the evidence. The main themes of the submissions include matters of relevance which largely mirror the arguments advanced by the appellants on the appeal. In dealing with the issues in contention, I have remained conscious of the matters raised by the submitters. The determination of each issue calls for value-laden judgements about which reasonable minds may differ.
A particular construction of the uplift provision
The appellants argue that the uplift provision should be construed to intend that a development offer more than what is otherwise expected under the planning scheme to justify an increase in building height. This is said to make sense given that the planning scheme, by its other provisions (be they Strategic framework provisions or zone and other development codes), already seeks outcomes for development in relation to the matters in issue in this case, such as impacts on character and amenity, built form, and the attractiveness or appearance of the built form.[27]
[27] Appellants’ Part B Submissions at [8].
During the opening, the appellants submitted that the uplift provision provides an incentive to developers, which seeks from them a higher standard than is otherwise expected by the planning scheme.[28]
[28] See for example at T1-48, L40.
Mr Carter[29] and Mr Turnbull[30] appeared to suggest that the phrase “in limited circumstances” required the building to be particularly excellent or exceptional to justify the application of the uplift.
[29] Architecture Joint Report at [255].
[30] T6-59, L10.
While those outcomes may naturally be achieved by a development which meets the criteria for the uplift, in my view, that is not the test for compliance with the uplift provision.
In McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283 at [132], Rackemann DCJ considered a similar submission as it related to the housing choice and affordability criterion. There it was submitted that the bar for compliance was set too low to get the reward of the uplift and that the proposal should meet the criteria in a way that “sets it apart” from other development. Rackemann DCJ did not consider that the criteria should be affected by a preconceived assumption as to how high the bar should be. Further, it was held that the “limited circumstances” in which the uplift is available are the circumstances in which all criteria are met.
In Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [125], the appellants contended that a well managed interface for the uplift provision requires something more than the bare minimum anticipated by the planning scheme for a code compliant development. The point was further developed to suggest that compliance required “a superior outcome than what is provided by a code compliant approval”. Williamson DCJ had misgivings as to whether such a submission should be accepted because it involved, impermissibly, reading words into the uplift provision.
It is uncontroversial that the uplift provision seeks a standard which is achieved by applying the words of the provision itself. For example, I accept the appellants’ submission that “well managed” means something more than merely acceptably managed or acceptable and that the uplift provision is seeking a higher standard than average or usual management.[31]
[31] See for example, the Appellants’ Part B Submissions at [44].
Similarly, an excellent standard of appearance presents a higher standard than some other standard which, for example, might seek to mitigate negative visual impacts. Reinforce represents a stronger standard than a requirement which merely seeks to promote or retain or not detract from a local sense of identity and place.[32]
[32] See for example the submissions at T7-37.
In my view, the words of the provision don’t call for a demonstration of a better outcome on all criteria identified in lower order provisions, but simply that the proposed development meet the criteria in the provision. The words of the criteria should be applied. They call for value laden judgements to be made. The criteria do not prescribe a process to be followed in making the necessary judgements such as appears to be suggested by the appellants. The assessment is to be undertaken having regard to the facts and circumstances that pertain by reference to the evidence.
Specific outcome 3.3.2.1(9)(b) – local identity and sense of place
The appellants allege that the proposed development does not satisfy outcome 3.3.2.1(9)(b) of the City Plan: a reinforced local identity and sense of place.
The phrase “reinforced local identity and sense of place” is not defined in the planning scheme, and so is to be given its plain and ordinary meaning: S&S No 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42 at [86].
What constitutes the relevant local identity and sense of place are questions of fact to be determined having regard to the circumstances of the case. The phrase calls for consideration of both the planned and existing local identity and sense of place: Archer v Council of the City of Gold Coast & Ors [2024] QPELR at [299].
The use of the word “reinforce” requires the strengthening of local identity and sense of place. The factors that go to make up local identity and sense of place vary according to the facts and circumstances of the case. The factors to be considered are not limited to what exists at the time of the assessment. The size of the local area should not be unduly narrow. The extent of the local area considered should be informed by existing circumstances, the adopted planning controls and extant development approvals that have been granted but not yet acted upon: Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [105], [106]. Having regard to these comments, I find the local area to be that depicted in Mr Buckley’s Ex 37.
One of the planning concepts that informs the local identity and sense of place of an area is building height. The desired future appearance for local areas within urban neighbourhoods is shown on the Building height overlay map. Building form and design is also relevant: Archer v Council of the City of Gold Coast & Ors at [302], [305].
The appellants’ case is that the proposed development fails to comply with Specific outcome 3.3.2.1(9)(b), including for the following reasons:
(a) The proposed development will exceed the 23m height limit by nearly 11m (being 48% above the limit) in circumstances where that degree of exceedance is atypical along Pacific Parade, is centrally located within the local area or locality, is located only 9 metres from another development that has already been approved to exceed the height limit and will be imposing and will dominate its surrounds.
(b) The proposed development will dominate the most important elements of the local identity and sense of place and character, being the coastal edge (the ocean, the beach, and the dune system) and the Joe Doniger parkland, including the prominent pine trees.
(c) The proposed development will dominate the drive along Pacific Parade.
(d) Other buildings on Pacific Parade alongside the parkland and foreshore typically do not exceed 8 storeys, and if they exceed 23m in height they do not exceed the height limit or dominate their surrounds by as much as the proposed development (approximately 11m), are on larger sites and generally mitigated or softened through elements of articulation, colouration, setbacks particularly at the upper levels and landscaping.
The appellants accept, as agreed by the town planning and visual amenity experts, that the character of the local area is in a state of change and is informed by, amongst other things, recent approvals, including those which exceed the building height overlay. It is also agreed that the sense of character is developing and changing and that is determined by the built form of the area.
However, the appellants argue that the reasonable expectations of local residents must be gleaned from the planning scheme and that the intended character of the locality is not of ‘regular’ approvals in excess of 8 storeys or 23m. Under cross examination on this point, Mr Buckley posited the issue in this way: a person looking at the planning scheme reasonably wouldn’t expect there to be no buildings taking advantage of the 50 per cent uplift.[33]
[33] Mr Buckley – T2-51.
As established by Mr Buckley’s review of the existing and approved taller buildings in the area (Ex 37), the proposed development will not be the tallest building in the area, nor the widest, nor most dense.
As pointed out by the appellants, the proposed development will however be the only high rise building on Pacific Parade, other than 2 Pacific Parade. The approved development at 2 Pacific Parade is at the southern end of the defined local area and at the edge of the change in height limit from 23m to 29m in the overlay map.
While not a high rise as defined, Porta Pacifique (at 134 Pacific Parade and rising to 31m) is an older building on a larger allotment, surrounded by a tennis court, pool area, and landscaping. The appellants also point out that developments which generally have a larger bulk, scale, and form are located on larger parcels of land. While it is true that, for example, the Pavilion 1 and 2 developments and 2 Pacific Parade are on larger parcels of land, it is also true they are larger buildings.
Three other high-rise towers have been approved along Golden Four Drive, as outlined at [46] above. The appellants accept that the planning scheme draws no distinction between Pacific Parade and Golden Four Drive in respect of zoning designation, height limit, or density. It is argued however that the impact of these developments on the overall coastal character is dissimilar to the impacts of the proposed development, by reason of their more distant location from the parkland and foreshore. From the parkland and foreshore, and driving along Pacific Parade, it is argued these buildings do not visually intrude upon the parkland or foreshore due to their more distant location and the parallax of views.
The appellants’ essential point is that due to its height, scale, and location on a narrow allotment, the proposed development will negatively dominate the local area particularly from the public realm. Further, by reason of its poor separation with the adjoining Golden Four Drive development, the proposed development will result in a conglomeration or massing of two high rise towers; this will be another unique feature of the locality, and by dint of that will be out of character. The appellants argue that no other built form within the local area dominates its surrounds to the same degree as the proposed development will with its combined height, inadequate upper-level side and front setbacks, high density, and highly visible location; the dominance of the building will be out of character with the identity of the local area. As such, the appellants submit that the proposed development is at odds with and does not reinforce the local identity and sense of place.
The appellants argue that the proposed development fails to comply with the related benchmarks identified in Ex 56 at paragraph 2. The development is said to negatively impact upon the amenity, character, and living conditions both within the development (due to rear unit treatments) and for neighbouring properties and the broader public realm (due to its dominant height, bulk, and form), thereby failing to align with the planning scheme’s desired outcomes for promoting well-being and potentially cohesion: this fails to comply with Strategic framework SO 3.3.1(3) and (5). In respect of the remaining benchmarks, the appellants argue that the proposed development’s prominent location and design attributes (height, bulk, scale, and minimal setbacks at the upper levels) result in a dominant and uncharacteristic building that is not appropriately cognisant of the desired future character or the distinct identity of the Pacific Parade locality and fails to adequately reinforce or reinterpret its relaxed seaside residential character.
The co-respondent argues that the appellants’ contentions are predicated on the court ignoring the properties and approvals located on Golden Four Drive as an influential part of the local identity and sense of place. This, the co-respondent submits, is not the appropriate approach and would result in an undue narrowing of the local area.
The local character of an area should be interpreted broadly and not by reference to a narrow inquiry. Without good reason, the court should not adopt an overly restrictive approach or confine consideration to a narrow radius around the site: WBQH Developments Pty Ltd v GCCC (2009) QPELR 748 at [25]. However, a consideration of a more localised context may be relevant to ensure characteristics to the immediate locality are not glossed over by the use of a broad descriptor applying to a broader study area: Bell Co Pty Ltd & Ors v City of Gold Coast & Anor [2023] QPELR 1160 at [84] to [85].
I do not consider there is any logical reason to split the locality between Pacific Parade and Golden Four Drive, although I also do not apprehend the appellants’ argument seeks to do so.
I accept that by its location on Pacific Parade, the proposed development will have a more immediate visual connection to the foreshore than a development which is further removed from the beach on Golden Four Drive. The fact that the development is centrally located on Pacific Parade does not tell against approval, nor does the fact that it adjoins another uplift development. If the proposal is found to satisfy the uplift provision (which includes criterion (c) and requires a well-managed interface with nearby development), that is a matter which weighs heavily in support of an approval.
I do not accept that the height exceedance is “atypical” on Pacific Parade, where both 134 Pacific Parade (existing) and the two towers at 2 Pacific Parade (approved) are of a similar height. The fact that Golden Four Drive has transitioned to medium and high-rise buildings quicker than Pacific Parade is unremarkable. Similar to what was described in Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [63], it will take time to achieve the planned character for Bilinga. The transition is happening at a more accelerated rate on the Golden Four Drive side of the local area, but the character of the Pacific Parade side of the locality is not static. The planning scheme encourages change, which is to be reasonably expected throughout the locality and not just on land parcels with a frontage to Golden Four Drive.
In my view, the photomontages demonstrate that the proposed development will not overly dominate the coastal environment, the foreshore, or Pacific Parade in a visual sense: see Ex 5, pp 20 and 29, where the layering of built form from Golden Four Drive and Pacific Parade are both apparent from Pacific Parade and beyond.
Consistently with that view, Mr Mewing describes the reinforcement of the local identity and sense of place by “urban consolidation with taller buildings”.[34] The appellants’ town planning expert, Mr Holt considered that the proposed development generally complied with this criterion.[35]
[34] Town Planning Joint Expert Report at [104].
[35] Town Planning Joint Expert Report at [128].
I am assisted by the opinions of the architects, Mr Curtis and Mr Richards and the visual amenity experts, Dr McGowan and Mr Powell.
Mr Curtis considers the proposed development is shown to be consistent with and reinforce the differences in the appearance, bulk, and scale between neighbouring buildings that creates an eclectic mix of old and new development. The proposed development responds to the setting and sub-tropical climate with prominent private outdoor space and fenestration that characterises the building’s appearance and provides access to views, sunlight, and breezes to support a lifestyle that is engaged with the setting. The proposed development has an overall form that is consistent with recent taller multiple-dwelling building developments that are characterised by elongated floor plans that generally reflect the longitudinal shape of the lots: Architecture Joint Report at [240].
I consider, as identified by Mr Curtis in evidence, that the design of the proposed development has been resolved to address its site constraints, including through what he describes as a “rich palette of varied architectural elements”[36] of articulation and modulation which incorporates:
(a) the tripartite breakup of the composition of the Pacific Parade frontage;
(b) layering of the front façade by the projecting balconies which erode the mass of the building;
(c) the setback and crowning of the top part of the building, with the design of the penthouse area;
(d) the well-established device of distinctive columns and arches at the base of the building at the Pacific Parade frontage which animate the appearance of it and alludes to the coastal location of the building;[37]
(e) subtly projecting floor plate edges, fenestration and batten screening which modulate the length of the longer facades;[38] and
(f) integrated landscaping to soften the interface with the street.[39]
[36] T4-20, L3.
[37] T3-87.
[38] T3-88, L6-24.
[39] T4-24, L31.
Mr Richards considers that the proposed development exhibits a contemporary coastal and beachside character which he believes draws its cues from a range of buildings on the Gold Coast, for example including Burleigh Heads and Main Beach. These contemporary design elements include the stacking of similar floor plates, expressed floor slabs, curved balconies, arched forms, and emphasis on the horizontal line broken up by vertical expressions. Wall elements include full height glazing and screening to windows: Architecture Joint Report at [248].
There was substantial evidence as to the architectural features of the local area. Mr Powell said that the characteristics and features which contribute to local identity and sense of place were:[40]
(a) The wide range of building forms and heights, including buildings which exceed the building height overlay and range in height from 8 to 11 storeys;
(b) The beach and foreshore which influence the street patterns and assist to define the structure, character, and amenity of the area;
(c) The beachfront location and north-east orientation of lots which invite large balconies facing towards the ocean;
(d) The upper level or levels of mid to high rise buildings being physically recessed via stepping and/or visually recessed via use of finer grain or recessive colours/materials.
[40] Visual Amenity Joint Report at [190].
Dr McGowan identified a wider range of characteristics including balconies, rectilinear and stacked floor plates, high quality materials, extensive glazing, screening, contrasting colours, material treatments and visually or physically recessed upper levels. Dr McGowan noted that the visual or physical recessing of upper levels was common to a number of existing and approved medium and high-rise buildings.[41]
[41] Visual Amenity Joint Report at [197].
Mr Powell [191] and Dr McGowan [198] essentially consider that the proposed development reinforces the local identity and sense of place because:
(a)it achieves scale compatibility with a number of other medium and high-rise buildings in the area;
(b)it capitalises on and references its coastal setting, through building and balcony orientation, and contextually appropriate materials and landscaping;
(c)it incorporates large balconies that capitalise on coastal views and are climatically responsive; and
(d)the upper levels adopt a combination of physically and visually recessed elements.
The architects did not necessarily identify the recessed upper levels of buildings as significant. Mr Curtis said the design of the built form responds to the setting and sub-tropical climate with private outdoor space and fenestration to access views, sunlight, and breezes.[42] Mr Richards said that while recent buildings showed a coastal contemporary character, there was no unique or distinctive architectural character of the locality, and the built form was not of a consistently high quality.[43]
[42] Architecture Joint Report at [231].
[43] Architecture Joint Report at [244] to [245].
Figure NP12 at p 38 of the Visual Amenity Joint Report provides a visual representation of physical or visual recessing of upper levels on constructed built forms, a design feature which assumed prominence in The Body Corporate for 62 Pacific. In that case, as to the existing character of the local area, Kefford DCJ found at [38]:
“Overall, the existing character of the local area is that of a coastal, predominantly residential area that is in transition to a greater intensity of built form. It contains buildings of varying height, which adopt a design that is generally characterised by:
(a) prominent balconies oriented towards the coast;
(b) pronounced modulation in the street-fronting facades in the form of deep recesses or stepping or both; and
(c) visually recessed or contracted upper floor levels on taller buildings.
At [141], Kefford DCJ considered that these finer grained aspects of the existing built form significantly contributed to the local identity and sense of place:
… The extensive provision of balconies reinforces the locality’s coastal aspect. The pronounced modulation and recesses in the street-fronting facades and the physical and visual recessing of upper levels reduce the visual scale and bulk of the taller buildings. In combination, these design features ensure that the experience of the area from the public realm near development of substantial height, bulk and scale is not overwhelmed or overborne by the height and scale of the built form.
As a general proposition it may be accepted that there are a range of architectural devices which can be used to reduce the impact of the bulk and scale of taller buildings, including visually or physically recessed upper levels. Excluding the proposed development, the evidence presently before this court does not permit a detailed analysis as to the use of such devices on other existing and approved built forms in the local area.
The planning scheme seeks to achieve outcomes such as slender bulk form and contribution to skyline[44], and protecting amenity or not detracting or unreasonably impacting upon amenity[45], without necessarily prescribing all the architectural devices which may be used to achieve that outcome. The planning scheme encourages sub-tropical design outcomes, including private open space, communal open space, and balconies.[46]
[44] City Plan Extracts – HRAD Code Overall outcome (2)(b), PO4, PO8.
[45] City Plan Extracts – MDRZ Code Overall outcome (2)(a)(vii), (b)(vii); HRAD Code Overall outcome (2)(a), (c), PO5.
[46] City Plan Extracts – HRAD Code Overall outcome 2(e), (k), PO6, PO7.
The co-respondent ultimately submits that, unlike the proposal in The Body Corporate for 62 Pacific, the proposed development here will reinforce local identity and sense of place, in particular because, as identified by Mr Powell, it reflects the finer-grained building design features identified in Body Corporate for 62 Pacific at [38].
In the present appeal, the local identity and sense of place is characterised as a medium density residential area near the beach, with a range of building heights and styles, and taller buildings including elements to reduce the impact of their bulk and scale.
Assessing the proposed development for its reinforcement of that identity and sense of place, I consider that:
(a)The proposed development is, and presents as, a medium density residential development;
(b) The proposed development maintains a coastal style by reference to balconies, colours, and textures;
(c) The building maximises views to the ocean, by the significant balconies on the north-eastern side of the building, corner balconies at the rear, and fenestration;
(d) The building uses a range of architectural devices to reduce the impact of its bulk and scale including the elements identified by Mr Richards: recesses and screening on the long facades to break the bulk into four elements, scaled archways at the front and rear, generous and visible balconies, landscaping recesses, curved recesses, narrow profile to the beach, expressed floor slabs and rounded corners to soften the building form.[47]
[47] Architecture Joint Report at [212] – Figure 54.
The only expert who contended that the proposed development did not meet this criteria was the appellants’ visual amenity and architecture expert, Mr Carter. Mr Carter’s approach to this criteria was to consider whether the identity and sense of place that the proposed development would reinforce was “desirable” or one that should be reinforced.[48] He relied upon the deleterious amenity impacts of the interface with the Golden Four Drive development as a reason why he considered the building was not deserving of the height uplift and why it did not reinforce the identity and sense of place of the locality. Mr Carter’s opinion appeared to be informed by his overall approach of seeking design excellence. Mr Carter’s opinion has been considered, but I do not find it persuasive.
[48] Architecture Joint Report at [256] – [259].
I am satisfied the proposed development complies with s 3.3.2.1(9)(b).
Specific outcome 3.3.2.1 (9)(c) – a well-managed interface
The appellants allege that the proposed development does not comply with outcome s 3.3.2.1(9)(c) of the City Plan. That outcome is expressed as:
“a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents”.
The term relationship is broad enough to include a visual relationship[49] as well as matters of privacy, overlooking, and shadowing.
[49] Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32 at [60].
Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober, and simple notion not effected by some special sensitivity or eccentricity. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject: see Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] QPELR 324 at [40] (citations and footnotes omitted).
The use of the term ‘overbearing’ in an amenity and character context typically refers to the visual relationship between built form and a potential receptor. The receptor can be a person or other built form. An overbearing visual relationship is one characterised by excessive visual dominance in light of the relevant circumstances. The relevant circumstances include the existing character of an area, the content of adopted planning controls, and rights conferred by extant development approvals that, at the time of the assessment, have not been acted upon: Heidelberg Business Park Pty Ltd & Ors v Council for the City of Gold Coast & Anor [2025] QPEC 14 at [76].
In summary, the appellants contend that the proposed development will not achieve a well-managed interface with nearby development because:[50]
(i)the proposed development does not increase its setbacks as the building increases in height with the result that the proposed development results in a flat façade with limited articulation and the building being overbearing, particularly with respect to its higher levels;
(ii)the absence of increased side setbacks and increased height unreasonably affects the views that the residents of 89-91 Golden Four Drive could expect of the beach and ocean particularly at upper levels;
(iii)the apartment design for the rear apartments does not offset living rooms between apartment buildings nor turn the apartments to the preferred outlooks away from its rear neighbours thereby creating unacceptable amenity impacts;
(iv)the rear facade of the proposed building is predominantly a habitable façade meaning it contains windows and/or doors to habitable rooms (such as living rooms and some bedrooms) and balconies that compromise amenity due to visual and privacy issues;
(v)the proposed development fails to incorporate any or any sufficient blank walls, screens, angled louvres, or non-habitable rooms (e.g. bathrooms, laundries) to mitigate visual, amenity, and privacy impacts;
(vi)the increased height combined with the absence of variation in setbacks will block exposure to prevailing winds for 89-91 Golden Four Drive, resulting in adverse ventilation amenity for those residents;
(vii)the increased height combined with the absence of variation in setbacks will cause adverse impact to the solar access of 89-91 Golden Four Drive and other surrounding areas.
[50] Appellant’s Part A Submissions.
Mr Carter identified aspects of the building design which, in his view, cause negative and unreasonable visual and acoustic amenity impacts in particular upon 89-91 Golden Four Drive:
(a)Inadequate rear setbacks;
(b)Poor apartment planning and orientation that results in balconies and some habitable rooms facing the rear development;
(c)Lack of screening and non-habitable façade; and
(d)Height.[51]
[51] Mr Carter – Separate Report (Ex 23) at [54]; Visual Amenity Joint Report at [46] and p 15 – 20; Architecture Joint Report at [108].
While Mr Carter’s focus was predominantly on the interface with 89-91 Golden Four Drive, in the conclusion expressed at [89] of the Visual Amenity Joint Report, he opines that the amenity impacts on neighbouring buildings are unreasonable and would not meet the expectations of nearby residents.
Similarly, Mr Holt considers the development does not comply with outcome 9(c): Town Planning Joint Report at [126].
For Mr Holt, the significant issue with amenity is a result of the design and placement of habitable spaces and balconies that directly overlook adjoining dwellings. The resultant building bulk and scale is overbearing and impacts amenity in the form of light, noise, shadowing, and privacy: Town Planning Joint Report at [182]. Mr Holt considers that shadowing and visual amenity are the key issues raised in this appeal. When coupled with other areas of non-compliance such as site cover and building height, the development presents large for the subject site and not appropriate in scale or form to suit the site characteristics and surrounding development: Town Planning Joint Report at [183].
As indicated at [94] above, I accept the appellants’ submission that “well managed” means something more than merely acceptably managed or acceptable. I also accept that the relevant codes already require a high standard to ensure a development appropriately complements adjoining existing and approved development.[52]
[52] See for example MDRZ Code Overall outcomes (2)(a)(vii), (2)(b)(vi) and (vii), (2)(c)(ii), 2(d)(iv) and PO1(a), PO2(b); HRAD Code Overall outcomes (2)(a), (2)(c) and (2)(e); GDP Code Overall outcome (2)(a) and PO2(e) and (g) and PO8: conveniently extracted in Ex 56 at paragraph 3 and [45] of the Appellants’ Part B Submissions.
Compliance with the Medium density residential zone code setbacks
The visual amenity experts agree:[53]
[53] Visual Amenity Joint Report at p 13.
Side setbacks
The side setbacks typically comply with the acceptable outcome for setbacks at MDRZ Code AO1, up to and including level 4 (with the exception of some structures at ground level). Dr McGowan notes that level 5 substantially satisfies the acceptable outcome having a predominant setback of 4 metres to both sides: see Figure 5, enlarged in Ex 10.
Front setbacks
The front setbacks typically comply with acceptable outcome for setbacks at MDRZ Code AO1 up to an including level 6 (with the exception of some structures at ground level), with the balconies at levels 7 and 8 intruding into the AO setback by 1.5 meters: see Figure 6, enlarged in Ex 10. The intrusion is visually represented in Figure NP1 of the Joint Report at p 23, enlarged in Ex 10.
Rear setbacks
The rear setbacks typically comply with the acceptable outcome for setbacks at MDRZ Code AO1, except for a 0.5 metre projection into that setback by the level 8 balcony: Figure 6, enlarged in exhibit 10. The intrusion is visually represented in Figure NP3 of the Joint Report at p 25, enlarged in Ex 10.
As shown in Figure NP1 (Ex 10), up to and including level 6 of the proposed development, the rear setbacks perform better than required by MDRZ Code AO1. A comparison of the incursions of the proposed development and the Golden Four Drive development is visually depicted in Figure NP3 (Ex 10). The proposed development displays increased stepping at upper levels, although there is an incursion at level 8.
From a town planning perspective, Mr Mewing’s view is that the development presents a well-managed interface and relationship to nearby sites and development and is in keeping with the reasonable amenity expectations for the Medium density residential zone. This view is formed having regard to the development’s scale, built form (including setbacks to the boundaries) and the interface/design in the context of other developments within the neighbourhood and the provisions of the planning scheme: Town Planning Joint Report at [107].
I am satisfied the proposed development complies with s 3.3.2.1(9)(f).
Elements of local character or scenic amenity – Specific outcome 3.3.2.1 (9)(g)
The appellants allege that the proposed development does not comply with the outcome in s 3.3.2.1(9)(g) of the City Plan: protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features.
The appellants’ case is that the proposed development will not protect important elements of local character and scenic amenity as:
(a)the proposed development will be imposing upon and dominate the most important elements of the local identity and sense of place and character being the coastal edge (the ocean, the beach, and the dune system) and the Joe Doniger parkland, including the prominent pine trees, adjacent Pacific Parade;
(b)the proposed development will dominate the drive along Pacific Parade;
(c)the proposed development’s exceedance in height results in a highly prominent building that is visually dominant within the surrounding public realm areas and not consistent with local character.
From a town planning dimension, Mr Mewing is of the view the proposed development will not detract from existing views from any popular public outlooks towards the city’s significant natural features, or specific local character or scenic amenity elements.[99] Mr Holt considers the proposed development generally complies with this criterion.[100]
[99] Town Planning Joint Report at p 27 [118].
[100] Town Planning Joint Report at p 30 [128].
The visual amenity experts agree that the proposed development does not unreasonably impact views from public outlooks: Visual Amenity Joint Report at [202]. In my view, these opinions are borne out by the photomontage report showing in particular the view from Kirra Hill: see Ex 5 at p 35.[101] Further, for reasons already stated, the proposed development will not dominate Pacific Parade, the coastal edge, or the Joe Doniger parkland.
[101] See also Figure NP14 at p 55 of the Visual Amenity Joint Report.
Mr Carter’s opinion in the Visual Amenity Joint Report relates to the protection of views from the Golden Four Drive development to the beach and ocean. His concern is to protect the existing view potential of the appellants’ development. The issue of outlook and loss of views is dealt with in criterion (c).
I am satisfied the proposed development complies with s 3.3.2.1(9)(g).
Density
Because the proposed development’s residential density is materially more intense than that permitted by the planning scheme, the appellants contend the development application ought to be dismissed on this basis also, apart from, and separately to, the asserted non-compliance with s 3.3.2.1(9).
Performance outcome PO5 of the MDRZ Code requires that density not exceed that shown on the Residential density overlay map. The site is within the RD6 designation on the overlay map.[102]
[102] Town Planning Joint Report at p 17 [63]: Figure 6.
The density of the proposed development is 1 bedroom per 14.9 square metres, compared to the overlay map provision for 1 bedroom per 33 square metres. Other existing and proposed developments in the local area also exceed the density shown on the overlay map: Ex 37 and see, for example, the appellants’ proposed development with a density of 1 bedroom per 11.7 square metres.
The appellants’ case is that the exceedance of 121% from the prescribed maximum, represents a serious non-compliance with the planning scheme which is not answered by compliance with the uplift provision (if proved). The appellants point out that the proposed development falls within the RD6[103] precinct, although has a density that accords with the RD8 precinct, which is the highest density precinct recognised by the Residential density overlay map.
[103] This is stated in the Appellants’ Part B Submissions at [194] and elsewhere as RD5, which I take to mean RD6 as stated at [207] of the outline.
This performance outcome is a quantitative benchmark, against which the appellants contend there is no alternative complementary solution which can be measured or realised. The appellants seek to contrast the MDRZ Code planning control with the Centre Zone Code, which expressly contemplates in overall outcome 2(f) density in excess of that shown on the Residential density overlay map, subject to meeting prescribed outcomes.
In S & S No 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42, overall outcome 2(f) of the Centre Zone Code was stated by Williamson DCJ at [129] to be akin to a density uplift provision. The appellants argue that the absence of an analogous provision within the MDRZ Code is a strong indicator that the densities prescribed by the overlay map are not intended to be exceeded within this zone.
At paragraph 8 of the appellants’ amended benchmark groupings (Ex 56), non-compliance with overall outcome 6.2.2.2(2)(b)(v) of the MDRZ Code is alleged:
Design and amenity
… “whether intended outcomes for building form/city form and desirable building height patterns are negatively impacted, including the likelihood of undesirable local development patterns to arise if the cumulative effects of the development are considered” …
The appellants argue that because the proposed development is materially inconsistent with the forward planning policy established by the Residential density overlay map, the starting point must be refusal of the development application. Even if compliance with the uplift provision is achieved, the appellants contend that the density of the proposed development cuts directly across the scheme’s forward planning policy; and it is not the role of the court to gainsay the correctness of a planning instrument: Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209.
To inform the planning purpose of MDRZ Code PO5, it is appropriate, as the appellants submit, to consider the complementary higher order MDRZ Code overall outcomes. Within those outcomes, the appellants submit the only outcome that relates to residential density is overall outcome 6.2.2.2(2)(d)(ii) which provides: that built form:
“Built form … contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport.”
Because the subject site is within one of the higher density precincts, the appellants accept it potentially falls within a locality serviced by public transport. However, it is argued that the site does not fall within the City’s “high rise coastal spine” and is not sufficiently near centres. This is said to reinforce the planning intent that the subject site is not to be developed at the scale proposed.
While not defined, the ‘high rise coastal spine’ is said to be described in the Strategic framework Strategic intent 3.2.2 City shape and urban transformation, which explains where taller buildings will be delivered. Within that framework, the site is not located within Southport, Surfers Paradise, Broadbeach, nor within a mixed use or specialist centre, nor within one of the seven additional prescribed urban neighbourhoods which are designated to accommodate high rise buildings.[104]
[104] Appellants’ Part B Submissions at [199], [200].
The respondent and co-respondent contend that the site is within the “high rise coastal spine”, which is to be interpreted more broadly as the connected coastal area. The use of the words ‘high rise’ is said to connect the phrase to an area where a high-rise building is acceptable; this includes the subject locality by virtue of the uplift provision (in the context of the height overlay at 23m).
The coastal spine may be understood as the connected coastal area of the City of Gold Coast, which consists of both high rise and low rise built form.[105] For the purposes of this appeal, it is not necessary to determine whether the high rise coastal spine should be interpreted in the narrow sense urged by the appellants.
[105] See for example Heidelberg at [43] where it was said the City Plan intends that the character of Palm Beach is to change from predominantly low-rise coastal spine to one that is medium density, with opportunities for high rise development in limited circumstances, subject to satisfying the uplift criteria.
The overall outcome in 6.2.2.2(d)(ii) does not require the transition to higher intensity areas to be located exclusively within centres, or within the high rise coastal spine, but rather near to both, assuming a narrow interpretation of the latter phrase. If the phrase “high rise coastal spine” is understood in a broader sense, the proposed development is within it.
Irrespectively, as identified in Archer at [454], complementary higher order provisions which address intensity and density include ss 6.2.2.2(2)(a)(i) and (ii), b(i) and (ii), and (d)(ii), which state:[106]
(a) Land uses –
(i) include a range of medium density residential uses, predominantly permanent accommodation;
(ii) such as Multiple dwellings, Dual occupancies, Dwelling houses on small lots and Community residences are included in the zone to provide a mix of dwelling types and increase residential density;
[106] City Plan (version 7) applied in Archer, but the relevant provisions mirror those in City Plan (version 10).
…
(b) Housing is provided at a form, scale and intensity that is appropriate for the zone and each particular locality it is in where the following outcomes are satisfied:
Orderly and economically efficient settlement pattern
(i) degree of public transport service within a 400 metre walking distance, being the most desirable distance for pedestrian access, and the ease and safety of pedestrian access to that service;
(ii) proximity to major employment concentrations, centres, social and community infrastructure facilities and important amenity features, including the coast, recreational waterways and parkland;
…
(d) Built form (excluding Dwelling houses on small lots) –
…
(ii) contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport.
As held in Archer at [455], these provisions indicate that the underlying planning intention is to locate higher density residential development in locations that are near centres, the high-rise coastal spine, social and community infrastructure facilities, and areas well-serviced by public transport.
This planning intention is also evident in 3.2.2 of the Strategic intent relating to “City Shape and urban transformation”, which includes:[107]
Urban renewal and transformation will see an intentional city shape emerge. Growth and development will be concentrated in an integrated network of well serviced urban places – places with good access to public transport, services and infrastructure assets, or places where improvements to public transport provide a catalyst for mixed use development and higher density living. Our city shape will be characterised by a diversity of well-connected, liveable urban places and business efficiency and productivity. Avoiding sprawl outside our urban areas will protect our world-class environment and spectacular scenic amenity and help to ensure our investment in public infrastructure is environmentally and financially sustainable.
[107] As stated in Archer at [456] under City Plan (version 7): the relevant provisions mirror City Plan (version 10).
The planning intention is further supported by Strategic outcomes in Part 3.3 “Creating liveable places” pursuant to s 3.3.1:[108]
…
(6) High intensity urban activity optimises land well serviced by public transport, infrastructure and community facilities and provides mixed use centres and specialist centres and urban neighbourhoods with improved amenity.
(7) Medium and higher intensity housing occurs in mixed use centres and specialist centres and urban neighbourhoods.
(9) Urban neighbourhoods accommodate a diverse and well connected network of urban places. Development is focused on mixed use centres and specialist centres and public transport hubs, and densities are higher in areas with high frequency public transport, community facilities and infrastructure capacity.
[108] As stated in Archer at [456] under City Plan (version 7): the relevant provisions mirror City Plan (version 10).
The town planning experts
In Mr Mewing’s experience, residential density is not an accurate indicator of development intensity because it is influenced more by the number of bedrooms than by gross floor area. He also notes it is a metric which is typically exceeded by multiple dwellings in the Medium density and High density residential zones, whether code or impact assessable. The major town planning implications of any excessive density are likely to be for capacity of urban services – primarily water supply, sewerage, stormwater, and the transport network: Ex 7 at [193], [194].
Mr Holt agreed that residential density and exceedances in density are largely a contributor to an unreasonable load on the infrastructure demand and capacity within a locality. He agreed that the site location in relation to transport accessibility, proximity to centres, parkland and open space, and health and education facilities generally support an exceedance in dwelling density: Ex 7 at [201], [204].
Mr Mewing described the intent for development along the coastal spine of a scale that is medium to high rise, within an urban neighbourhood.[109] In re-examination, he explained that the subject site has good connectivity to public transport services. It is close to major employment concentrations and centres, and social and community infrastructure, including the airport and the university. It is very close to a small neighbourhood centre and close to the Kirra and Coolangatta centres beyond.[110]
[109] T4-48, L25.
[110] T4-68.
The appellants argue the site is sufficiently distant from the Coolangatta precinct and from other retail and non-retail services, such that it does not warrant a town planning outcome at this scale of density. While given in the context of housing choice and affordability, the appellants rely upon Mr Turnbull’s evidence that the location is sparsely provided for in terms of local amenities and infrastructure. The local amenities are detailed at [264] to [265] above, with Mr Turnbull’s map not quite capturing their full extent. While I accept that the Coolangatta centre is not within walking distance, the planning scheme does not impose this as a requirement.
I accept Mr Mewing’s and Mr Holt’s evidence that the site location supports an exceedance in density.
Further, as is evident from the findings above with respect to the built form and its impact, even though the proposed development exceeds the density limit, the exceedance does not sound in unacceptable planning and amenity impacts.
Although the proposed development does not comply with performance outcome PO5 of the Medium density residential zone code, the non-compliance is not a weighty consideration telling against approval.
I have reservations about the appellants’ characterisation of this single assessment benchmark as a planning strategy. Even if it could be so regarded, I am satisfied that the approval of greater density in this case would not of itself cut across future achievement of the planned density in the Medium density residential zone, either in this location or more broadly across the Gold Coast.[111]
[111] Cf:Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209, which concerned a re-zoning application.
Adverse internal amenity impacts for future occupants
The appellants argue a final standalone reason for refusal as being internal amenity outcomes, because:[112]
(a) the design of the rear apartments concentrates living rooms westward, directly facing the Golden Four Drive development and obliquely towards the airport, thereby ignoring valuable ocean views, breeze, and sunlight to the east while also creating overlooking and privacy conflict with the adjoining development;
(b) there is inadequate communal open space for residents and functional private open space; and
(c) the proposed development’s front door and lobby area is not sufficiently visible or inviting, is cluttered by services and is too far removed from the street edge.
[112] Appellants’ Part A Submissions.
The appellants further argue that the bedrooms and living spaces of the proposed development will not enjoy adequate natural light access, particularly during the winter months.[113]
[113] Appellants’ Part B Submissions at [222].
The relevant benchmarks appear in the Appellants’ Amended Benchmark Groupings at paragraph 9. This issue is assessed against those benchmarks.
As to the building interrelationship issues, the appellants rely upon the submissions related to the “well managed interface” uplift criteria. This issue was the subject of considerable evidence and has been considered in the analysis of compliance with uplift criterion (9)(c).
The complaint regarding the front door and lobby has been considered and rejected in the finding that the proposed development complies with uplift criterion 9(e).
As is evident from the findings in respect of the uplift criteria, in my view the rear apartments of the proposed development do not result in unacceptable privacy and overlooking impacts. I consider that the internal amenity of the rear apartments is appropriate given the zoning of the land and the development intensity sought by the planning instruments. There is appropriate internal amenity because:
(a)To the extent the rear apartments will have oblique views to the airport and hinterland beyond, such views are likely to be availed of by some people. This is consistent with the evidence of Mr Curtis who considered that, while maligned to some degree, there were people who would avail themselves of views to the Hinterland, even though there is an airport there.[114]
(b)Responding to the sub-tropical climate, the apartments to the rear have balconies, as an extension of indoor living space.
(c)Future residents can elect to purchase the rear apartments, no doubt at a different price point to the beach side apartments.
[114] T4-31.
I accept, as stated by Dr McGowan, that the proposed development provides a high standard of amenity for users in terms of accessibility and quality of open space, the quality of the design of the building and landscape, and the amenity afforded by the location: Ex 9 at [251].
Mr Mewing considers the proposed development includes a high standard of communal and private open space, which is accessible, usable, safe, functional, attractive, suitably designed, and of good sizing and utility in compliance with PO11 and PO12 of the HRAD Code: Ex 7 at [124].
As to natural light, Mr King considers that daylight will be available to all units of the proposed development when the sun is up, and direct sunlight will be available at different times of the day as the sun moves over the development. In his opinion, acceptable amenity will be achieved.[115]
[115] T2-83, L42.
During cross examination, it was suggested to Dr Cochrane that non-operable windows would make for poor cross flow ventilation. As submitted by the co-respondent, there is no reason why the windows depicted on the plans could not be made operable at the detailed design stage. I do not consider the evidence establishes non-compliance with PO4(d) of the HRAD Code, which requires a slender tower form promoting efficient interior climate control. In any event, there is deemed compliance with PO4 due to my finding there is compliance with AO4.1 and AO4.2.
Other relevant matters
The appellants do not appear to press the relevant matters originally notified in the Notice of Appeal, but rather now simply raise that there are no relevant matters that outweigh the serious non-compliances with the planning scheme and that there are no conditions offered that will cure the non-compliances.[116]
[116] Appellants’ Part B Submissions at [228]; Part A at [38].
The co-respondent raises a number of relevant matters in support of approval. Many of these have been dealt with by reference to the uplift criteria, and it is unnecessary to traverse them further.
Approval of the development in the exercise of the discretion
I find that the proposed development complies with s 3.3.2.1(9) of the City Plan. To the extent that the proposed development does not comply with assessment benchmarks, the non-compliances are not such as to warrant refusal in this case. In my assessment, the proposed development is highly meritorious and should be approved subject to lawful conditions.
Conclusion
I am satisfied that the co-respondent has discharged the onus.
In due course, the development application will be approved subject to conditions.
To facilitate the preparation of a suite of conditions, the appeal will be returned to the applications list for review on 20 October 2025. The appeal will remain on that list unless and until a dispute arises about conditions of approval.
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