Aesthete No. 15 Pty Ltd v Council of the City of the Gold Coast (No. 2)

[2025] QPEC 25

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Aesthete No. 15 Pty Ltd & Anor v Council of the City of the Gold Coast & Anor (No. 2) [2025] QPEC 25

PARTIES:

AESTHETE NO. 15 PTY LTD (ACN 627 545 019) and

AESTHETE NO. 20 PTY LTD (CAN 627 946 356)
(Appellants)

v

COUNCIL OF THE CITY OF THE 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:

5 November 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2025

JUDGE:

Kefford DCJ

ORDER:

I ORDER:

1.        THE APPEAL IS DISMISSED;

2.        THE DECISION OF THE COUNCIL OF THE CITY OF GOLD COAST MADE ON 5 MARCH 2024 IN RESPECT OF THE DEVELOPMENT APPLICATION FOR A DEVELOPMENT PERMIT FOR A MATERIAL CHANGE OF USE FOR MULTIPLE DWELLINGS (20 UNITS) IN RESPECT OF LAND SITUATED AT 90-92 PACIFIC PARADE, BILINGA, PROPERLY DESCRIBED AS LOTS 1 AND 2 ON RP87297, AND NOTIFIED IN THE DECISION NOTICE DATED 5 MARCH 2024, IS CONFIRMED.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS – where the Court approved development of land – where a development application for a 10-storey residential apartment building will be approved subject to conditions – whether the Court has the power to impose the conditions sought by the Appellants – whether the Court should exercise its discretion to impose conditions that require the installation of privacy screens

LEGISLATION:

Planning Act 2016 (Qld) ss 43, 45, 59, 60, 65

Planning and Environment Court Act 2016 (Qld) ss 43, 46, 47

Planning Regulation 2017 (Qld) s 31

CASES:

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, applied

Aesthete No. 15 Pty Ltd & Anor v Council of the City of the Gold Coast &Cielo Property Group Pty Ltd [2025] QPEC 18, considered

Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, approved

Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, approved

Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, applied

Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, applied

Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 48; [2015] QPELR 49, applied

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, applied

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2025] QCA 207, approved

Proctor v Brisbane City Council (1993) 81 LGRA 398, applied

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, applied

Wise v Maroochy Shire Council [1999] 2 Qd R 566, applied

Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, applied

COUNSEL:

E Morzone KC and K Wylie for the Appellants
S Hedge for the Respondent
M Batty KC and J Bowness for the Co-respondent

SOLICITORS:

Yates Beaggi Lawyers for the Appellants
HopgoodGanim Lawyers for the Respondent
Connor O’Meara for the Co-respondent

TABLE OF CONTENTS

Introduction

What are the proposed conditions in dispute?

What is the relevant framework for the decision?

Should the condition regarding screening be imposed?

How was the issue about interface, and the need for screening, addressed at the merits hearing?

Conclusions regarding imposition of the condition regarding screening

Conclusion

Introduction

1. This is a submitter appeal against Council’s decision to grant a development permit authorising the Co-respondent, Cielo Property Group Pty Ltd, to make a material change of use of land at 90-92 Pacific Parade, Bilinga (“the subject land”) to establish a 10-storey residential apartment building containing 20 units (“the proposed development”).  The proposed building is approximately 33.3 metres in height and contains nine levels of residential apartments.

2. The Appellants have interests in adjoining vacant land parcels at 89-91 Golden Four Drive, Bilinga (“the adjacent land”).  The adjacent land has the benefit of an approval for an 11-storey, 34.4-metre-tall residential tower that has not yet been constructed.  The Appellants appealed against the Council’s decision of 5 March 2024 to approve the proposed development subject to conditions.

3. One of the Appellants key contentions in the appeal was that the proposed development did not achieve a well-managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents.  In support of that contention, the Appellants relied on several assessment benchmarks in Gold Coast City Plan 2016 (version 10) (“City Plan”), including:

   (a)the height uplift provision in s 3.3.2.1(9) of the Strategic framework;

   (b)performance outcome PO1 (and the related acceptable outcome AO1) of the Medium density residential zone code; and

   (c)performance outcomes PO4, PO5 and PO13 (and related acceptable outcomes AO4, AO5.2, AO5.3 and AO13) of the High rise accommodation design code.

4. On 3 September 2025, Her Honour Judge Prskalo KC delivered reasons for judgment.  Her Honour’s reasons comprehensively address each of the Appellants key contentions, including those with respect to the interface between the proposed development and the building approved on the Appellants’ land.  Ultimately, Her Honour determined that Cielo Property Group Pty Ltd had discharged its onus and satisfied the Court that the appeal should be dismissed.  Her Honour concluded that, in due course, the development application would be approved subject to conditions.  To facilitate the preparation of a suite of conditions, Her Honour ordered that the appeal return to the applications list for review, where it would remain until a dispute arose about conditions of approval: Aesthete No. 15 Pty Ltd & Anor v Council of the City of the Gold Coast &Cielo Property Group Pty Ltd [2025] QPEC 18.

5. There is now a dispute between the parties about one condition that the Appellants contend should be imposed.  That is the dispute before me.

   What are the proposed conditions in dispute?

6. On 1 October 2025, Cielo Property Group Pty Ltd notified the other parties that it did not consider any aspect of the Court’s findings required any change to the conditions package originally attached to the Council’s decision notice of 5 March 2024 that approved the development application. 

7. On 20 October 2025, the Appellants notified the other parties of the changes they contended should be made to the conditions package attached to the Council’s decision notice.  The proposed amendments were wholly contested by the Council.  Cielo Property Group Pty Ltd took a more conciliatory approach to some of the proposed amendments.

8. Since that time, the extent of the dispute about conditions has narrowed.  As is identified in the Appellants’ Submissions on Conditions, the Appellants no longer contend for a condition that would require developer’s structural and geotechnical measures to be subject to the peer review and consent of the owners of 89-91 Golden Four Drive.  The Appellants now accept that such a requirement is not reasonably required and is an unreasonable imposition upon the development.  That (belated) concession is appropriate.

9. During the course of the hearing of the conditions dispute, the parties requested several short adjournments and, by the end of the day, there was a further narrowing of the conditions in dispute. 

10. The dispute now only relates to whether there should be an additional condition requiring screening to be applied to levels 1 to 8 inclusive of the rear façade of the proposed development, which façade contains fenestration and balconies that face the adjoining land at 89-91 Golden Four Drive.

    What is the relevant framework for the decision?

11. There is no dispute about the relevant framework for the decision. 

12. Under s 43 of the Planning and Environment Court Act 2016, subject to ss 46(2) and (5), the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.

13. The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.

14. Sections 45(5)(a)(i) of the Planning Act 2016 mandates assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 10 of City Plan is such a categorising instrument: s 43 of the Planning Act 2016. 

15. Pursuant to s 45(5)(b) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:

    (a)the development approval for, and the lawful use of, the premises or adjacent premises; and

    (b)the common material for the development application, including any properly made submissions.

1. There is a power to impose development conditions on a development approval: s 60(3)(b) of the Planning Act 2016.  It is expressed in general terms: Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [8].

2. In relation to the proper approach to the construction of the power of a planning authority to impose conditions, the Honourable Justice of Appeal Doyle recently observed in Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2025] QCA 207:

   “[23]    The observations of Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499 to 500 (applied unanimously in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566) offer a helpful starting point in approaching the construction of the power of a planning authority to impose conditions.

   [24]His Honour observed that such power is to be understood:

   “not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council, as being ‘the implementation of planning policy’, provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained.”

   [25]It follows that a determination of the scope of a power (or limit on a power) to impose a condition requires a review of the relevant legislative regime and consideration of the planning policy.”

3. The power (and obligation) to impose development conditions must be read subject to the statutory provisions about lawful conditions. Section 65 of the Planning Act 2016 imposes a constraint on the power to impose conditions: Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [8]. It, relevantly, states:

   “65     Permitted development conditions

   (1)A development condition imposed on a development approval must–

   (a)     be relevant to, but not an unreasonable imposition on, the development or the use of premises as a consequence of the development; or

   (b)     be reasonably required in relation to the development or use of premises as a consequence of the development.”

4. Determining whether conditions are reasonably required, for s 65(1)(b), involves a consideration of the proposed development and the changes that the development is likely to produce: Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, 113; Proctor v Brisbane City Council (1993) 81 LGRA 398, 401-4; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14].

5. The condition must be a reasonable response to the change in the existing state of things: Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, 303; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14].

6. A condition that is not “reasonably required” in respect of a proposed development may nevertheless be “relevant” if it maintains proper standards in local development or in some other legitimate planning sense, such as where it is reasonably imposed in the interests of rational development of the area: Proctor v Brisbane City Council (1993) 81 LGRA 398, 404; Wise v Maroochy Shire Council [1999] 2 Qd R 566, 571; Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, 153. The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition: Proctor v Brisbane City Council (1993) 81 LGRA 398, 404.

7. Even if a condition is one that can be legitimately imposed having regard to the constraints in s 65 of the Planning Act 2016, there is no obligation to do so.  The assessment manager, and this Court on appeal, retains a residual discretion to otherwise determine what lawful conditions should be imposed: Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5].

8. The discretion is not to be exercised capriciously.  Regard must be had to all relevant considerations, including relevant provisions of the planning documents: Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [9]; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 67 [93]; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, 499-500. Improper considerations must be disregarded. As was noted by His Honour Judge Rackemann in Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 48; [2015] QPELR 49, 55 [24] citing Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92; [2010] QPELR 148:

   “… That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose.  A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority. In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Div 2 of Pt 5.  That includes assessment by reference to the planning scheme.”

   (footnotes omitted)

9. The result must not offend against common sense and the conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 86-8 [152]-[157]. The condition must be fair and reasonable in the circumstances of the case.

   Should the condition regarding screening be imposed?

10. The Appellants contend that a condition with respect to screening should be imposed in the following terms:

    “1.From Level 1 to Level 8, inclusive, apply a treatment to the rear façade, as follows:

    1.1Where there is external glazing with no intervening balcony (such as on part of the Level 01-03 rear bedroom windows): install either fixed obscure (translucent) glazing in any part of the window below 1.5m above floor level, or privacy screens up to 1.5m above floor level that achieve 50% transparency; and

    1.2Where a balcony is located: install either fixed obscure (translucent) glazing to the balcony up to 1.5m above floor level, or privacy screens up to 1.5m above floor level that achieve 50% transparency.”

11. The Appellants contend that this condition is a lawful condition under s 65 of the Planning Act 2016 on two bases. 

12. First, the Appellants submit that the condition is:

    “for a proper planning purpose and in furtherance of the purposes of the Act of “creating ... efficient, safe and sustainable development safe and sustainable development” (s3(1)(c)) and “applying ... safety in the built environment in ways that are ...of public benefit” (s5(2)(i)).

13. Second, the Appellants’ contend that its proposed condition is reasonably required to mitigate unacceptable adverse amenity impacts that would be occasioned by the interface with and impact on nearby development, including that associated with overlooking and privacy.  They say that there is limited separation between the proposed development and the approved development on the adjacent land and, as such, the proposed condition is a reasonable response to the change in the existing state of things brought about by the proposed development.

14. The Council and Cielo Property Group Pty Ltd oppose the imposition of the Appellants’ proposed additional condition about screening.  Both resist its imposition, in the exercise of the Court’s discretion, on the basis that it is evident from the findings of Her Honour Judge Prskalo KC that:

    (a)the proposed condition is not required to adequately protect the privacy and amenity of potential future residents of 89-91 Golden Four Drive in accordance with the adopted planning controls; and

    (b)it is therefore an unnecessary imposition on the development.

    How was the issue about interface, and the need for screening, addressed at the merits hearing?

15. The Appellants acknowledge that issues about interface with and impact on nearby development, including that associated with overlooking and privacy, were raised by them, and the subject of evidence adduced by the parties, during the merits hearing before Her Honour Judge Prskalo KC. 

16. In that respect, the Appellants say the issue arose in the context of assessment benchmarks in City Plan that address the amenity of nearby residents in the context of the physical interrelationship between two high-rise towers, including performance outcomes PO4 and PO5 (and the associated acceptable outcomes AO5.2 and AO5.3) of the High rise accommodation design code.  The Appellants also acknowledge that as part of the merits hearing, they alleged non-compliance with performance outcome PO13 (and associated acceptable outcome AO13) of the High rise accommodation design code and the specific outcome in s 3.3.2.1(9)(c) in the Strategic framework of City Plan.

17. These submissions are uncontested.  They accord with my review of the exhibits and the transcript, and I accept them.

18. With respect to the evidence, the Appellants’ submit that the evidence adduced at the merits hearing demonstrates that:

    (a)the proposed development and the approved development on the adjacent land both involve high rise towers;

    (b)the approved development on the adjacent land includes a series of residential dwellings in its northern corner, which include bedrooms, outdoor terraces and living spaces that are orientated directly toward the subject land;

    (c)the proposed development provides a series of rear dwelling units that each have two bedrooms (including the master bedroom) and an outdoor terrace that oriented directly toward the corresponding north-facing units approved on the adjacent land; and

    (d)once constructed, there will be 11.5 metres between habitable room windows in the two buildings and nine metres between outdoor terraces, with no intervening privacy screening on the approved development on the adjacent land.

    (e)Mr Nathan Powell, the visual amenity expert retained by Cielo Property Group Pty Ltd, gave expert evidence and:

    (i)accepted that the proposed rear facing windows will result in some degree of overlooking of the neighbouring balconies and, as such, do not comply with acceptable outcome AO13(a) of the High rise accommodation design code;

    (ii)opined that the proposed development would satisfy acceptable outcome AO13(a) of the High rise accommodation design code if a condition was imposed in the terms now sought by the Appellants; and

    (iii)opined that the recommended condition would further assist to limit overlooking impacts and achieve a well-managed interface.

1. The Appellants submissions about the evidence is uncontested.  It accords with my review of the evidence, and I accept them.

2. In terms of submissions on this issue at the merits hearing, the Appellant says:

   (a)in its written submissions, Cielo Property Group Pty Ltd said:

   “At worst, the alleged privacy impacts are a matter for conditions. Mr Powell marked up the result of such conditions in Figure NP2 on p24 of the Visual amenity joint report, Exhibit 9.”

   (b)in oral submissions, Cielo Property Group Pty Ltd said:

   “Firstly, we say a screening’s not required to meet the planning scheme provisions that are in issue.  The position of Mr Curtis and Mr Powell on that point could not have been clearer in the joint report. It’s not required, and that’s why it hasn’t been proposed, but if your Honour were to take a different view, contrary to what is submitted commencing at paragraph 78, it’s still open to your Honour to impose that condition. It doesn’t – it's not a matter that the appellant – pardon me, the co-respondent is seeking, but it doesn’t diminish from your Honour’s discretion.

   In terms of any suggestion that this is a surprise or that your Honour wouldn’t be minded to do it, your Honour has the benefit of the visual amenity joint report where - and as was put to Mr Carter during cross-examination, it was effectively agreed by all three experts that screening would be possible and that it could be done adequately, and your Honour sees that in the visual amenity joint report, exhibit 9, page 13, at paragraph 40, where it was said, “The experts agree that to the extent the court finds necessary,” so consistent with what I’ve just submitted –”

3. There is no dispute about these matters.  They accord with my review of the written and oral submissions, and I accept them.

4. Even though the Appellants acknowledge that the acceptability of the interface impacts of the proposed development were traversed in the merits hearing, they contend that it is appropriate for me to exercise my discretion to impose their proposed condition about screening because Her Honour Judge Prskalo KC did not conclusively deal with the matter.  According to the Appellants, Her Honour did not decide whether the extent of non-compliance with the High rise accommodation design code justified the condition recommended by Mr Powell.  Rather, the Appellants say that Her Honour only concluded that the proposed development complied with the higher order provision requiring a well-managed interface found in the specific outcome in s 3.3.2.1(9)(c) of City Plan.

5. I acknowledge that the primary headings in Her Honour Judge Prskalo KC’s judgment refer to various criteria in s 3.3.2.1(9) of City Plan.  This is understandable given Her Honour’s observation at paragraph [80] that:

   “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 noncompliance 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.”

6. That said, consideration of Her Honour’s reasons in Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 18 at [135] – [178], being those paragraphs under the heading “Specific outcome 3.3.2.1(9)(c) – a well-managed interface”, reveal:

   (a)Her Honour was well aware of the issues raised by the Appellants (and sought to be raised again now) and the evidence adduced by the Appellants with respect to those issues, but did not find the Appellants’ evidence to be compelling: see paragraphs [139], [140], [143], [145], [156] – [162], [165], [170], [171], [174], [176] – [178];

   (b)Her Honour was aware of each of the assessment benchmarks raised by the Appellants in support of its proposed condition: footnote 52 and paragraphs [145], [147], [151] – [155], [158] – [165], and [170];

   (c)Her Honour was satisfied that the rear setbacks to the adjacent land complied with acceptable outcome AO1 of the Medium density residential zone code, except for a 0.5 metre projection by the level 8 balcony: paragraphs [145] and [146];

   (d)Her Honour was greatly assisted by (and clearly accepted) the evidence of Mr Richards about design elements that contribute to a well-managed interface: paragraphs [148] and [149];

   (e)Her Honour was greatly assisted by (and clearly accepted) the evidence of Mr Powell and Dr McGowan about the issues of overlooking, overbearing, overshadowing, and outlooks or views, including their opinions about the extent of compliance with acceptable outcome AO1 of the Medium density residential zone code and acceptable outcomes AO13 of the High rise accommodation design code: paragraphs [150] – [156];

   (f)Her Honour found the proposed development complied with performance outcome PO4 (and the associated acceptable outcomes) of the High rise accommodation design code: paragraphs [165], [166] and [170];

   (g)Her Honour found the proposed development did not comply with acceptable outcome AO5.3 but complied with acceptable outcome AO5.3 and performance outcome PO5 of the High rise accommodation design code: paragraphs [162] and [164]; and

   (h)overall, Her Honour was satisfied that the proposed development complies with s 3.3.2.1(9)(c): paragraph [178].

7. Her Honour also dealt further with the Appellants’ concerns about the interface between the proposed development and the approved development on the adjacent land in [303] – [312], being those paragraphs under the heading “Adverse internal amenity impacts for future occupants”.  Relevantly, Her Honour observed:

   “[303]  The appellants argue a final standalone reason for refusal as being internal amenity outcomes, because:

   (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;

   …

   [304]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.

   [305]The relevant benchmarks appear in the Appellants’ Amended Benchmark Groupings at paragraph 9. This issue is assessed against those benchmarks.

   [306]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).

   …

   [308]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.”

8. There is no suggestion anywhere in Her Honour’s reasons that her many findings of compliance were contingent on the imposition of a condition requiring screening. Rather, Her Honour’s findings clearly relate to the proposed development without such a condition or design change: see, for example, paragraphs [69] – [73], [132], [140], [143], [148], [149], [151] – [155], [200] – [205], and [207].

9. It is clear from paragraphs [150] to [157] of Her Honour’s reasons that Her Honour accepted the primary views of Mr Powell and Dr McGowan that the prospect of unreasonable overlooking was already mitigated without the additional screening.  Mr Carter’s competing opinions that further screening was required were found not to be persuasive.  Those opinions relied on the NSW Apartment Design Code, a document not called up by City Plan: paragraphs [156] and [157].

10. When one carefully considers the entire reasons for judgment, it is apparent that Her Honour Judge Prskalo KC considered Mr Powell’s evidence about the possible imposition of a condition about glazing or screening.  However, she did not express a view that such a condition was necessary.  It is apparent that this is because Her Honour was satisfied that the proposed development was acceptable in the absence of such a change to its design.  That is, although the recommended condition was acknowledged, Her Honour considered it unnecessary to require its imposition.  The condition was clearly not material to Her Honour’s conclusion that the design of the proposed development was sufficient to satisfactorily mitigate unacceptable adverse amenity impacts that would be occasioned by the interface with, and impact on, nearby development, including that associated with overlooking and privacy. 

11. For the reasons given above, I disagree with the Appellants’ assertions that Her Honour Judge Prskalo KC did not conclusively deal with the interface issue and the non-compliances with City Plan alleged by the Appellants. 

    Conclusions regarding imposition of the condition regarding screening

12. As I noted at paragraph [26] above, the Appellants advance two bases on which they contend that their proposed condition about screening is a lawful condition under s 65 of the Planning Act 2016.  I identify them in paragraphs [27] and [28] above.

13. With respect to the first basis, the Appellants’ submission misquotes the effect of the Planning Act 2016. Ignoring that, I accept that when considering whether the proposed condition should be imposed, it is relevant to have regard to ss 3 and 5 of the Planning Act 2016. 

14. That said, I do not accept the Appellants’ contention that consideration of ss 3 and 5 of the Planning Act 2016 alone demonstrates that the Appellants’ proposed condition about screening is a condition for a proper planning purpose and, as such, lawful under s 65 of the Planning Act 2016.  That submission is at odds with the recent observations of the Honourable Justice of Appeal Doyle in Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2025] QCA 207 at [25] where His Honour said that a determination of the scope of a power to impose a condition requires a review of the relevant legislative regime and consideration of the planning policy. Each limb of section 65 of the Planning Act 2016 also requires the condition to be considered in the context of the proposed development. 

15. As to the Appellants’ second contention, having regard to the relevant assessment benchmarks put in issue, Her Honour Judge Prskalo KC’s reasons, and my review of the exhibits and the transcripts, I am satisfied that the proposed condition is not required to mitigate unacceptable adverse amenity impacts that would be occasioned by the interface with, and impact on, nearby development, including impacts associated with overlooking and privacy.  It is not required to adequately protect the privacy and amenity of potential future residents of 89-91 Golden Four Drive in accordance with the adopted planning controls. 

16. I am satisfied that compliance with the relevant planning controls with respect to interface, privacy and overlooking are achieved without the proposed condition.  Those planning controls inform the planning purpose of a condition such as that sought by the Appellants.  Given there is already compliance with the planning controls (i.e., there is compliance without the imposition of the condition), the condition is an unnecessary and unreasonable imposition on the proposed development.  

17. In those circumstances, in my view, the Appellants’ proposed condition about screening is not a lawful condition under s 65 of the Planning Act 2016.

18. Further, and in any event, I am not prepared to exercise my discretion to impose the Appellants’ proposed condition about screening.  Based on my own review of the evidence (including the assessment benchmarks), submissions and transcript, it seems to me that it represents an unnecessary burden on the proposed development. 

    Conclusion

19. For the reasons provided, I do not accept that the conditions contained in the Council’s decision notice dated 5 March 2024 require amendment.

20. I propose to order:

    (a)the appeal is dismissed; and

    (b)the decision of the Council of the City of Gold Coast made on 5 March 2024 in respect of the development application for a development permit for a material change of use for multiple dwellings (20 units) in respect of land situated at 90-92 Pacific Parade, Bilinga, properly described as Lots 1 and 2 on RP87297, and notified in the decision notice dated 5 March 2024, is confirmed.