Archer v Council of the City of Gold Coast - [2022] QPEC 59

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59

PARTIES:

NICOLLE PATRICIA ARCHER AND WAYNE EDMUND PURCELL
(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST
(Respondent)

AND

JWZ PARTNERS DEVELOPMENT GROUP PTY LTD (ACN 634 372 526) AS TRUSTEE FOR JWZ UNIT TRUST

(Co-respondent)

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(Co-respondent by Election)

FILE NO/S:

1892 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2022 (site inspection), 23 May 2022, and 6 – 10 June 2022 and further submissions received on 15, 17, 24 and 30 November, 2 and 19 December 2022

JUDGE:

Kefford DCJ

ORDER:

The applications for costs thrown away by the adjournment of the hearing on 23 May 2022 are dismissed.

The appeal is adjourned for further review, by telephone, on 31 January 2023 to allow the Respondent to prepare the necessary suite of conditions to be attached to an approval of the proposed development.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where the development application is for partial demolition and redevelopment of the Old Burleigh Theatre Arcade – where the proposed development is for a multiple dwelling building containing 30 units, food and drink outlets and shops – where the existing building on the subject land is locally heritage listed – where the height of the proposed development exceeds the height on the Building higher overlay map – where the appellants contend the development is unacceptable due to, inter alia, impact on heritage values and issues relating to traffic, density and built form – whether the proposed development will unacceptably impact on the heritage value of the locally-heritage-listed building – whether the built form of the proposed development is appropriate having regard to s 3.3.2.1(9) of City Plan – whether the proposed development will result in unacceptable traffic impacts – whether there are relevant matters that support approval – whether the proposed development should be approved in the exercise of the discretion

PLANNING AND ENVIRONMENT – APPEAL – where the Chief Executive to the Department of State Development, Infrastructure, Local Government and Planning contends that the State development assessment provisions are a mandatory consideration – whether the appeal relates to the referral agency response – whether the Court must assess the development application against the State development assessment provisions

LEGISLATION:

Acts Interpretation Act 1954 (Qld) ss 14D, 32D

Planning Act 2016 (Qld), ss 23, 43, 44, 45, 48, 54, 55, 56, 59, 60, 62, 65, 66, 229, sch 1, sch 2

Planning and Environment Court Act 2016 (Qld) ss 37, 43, 46, 47

Planning Regulation 2017 (Qld) ss 19, 20, 21, 22, 30, 31, 43, sch 10

Queensland Heritage Act 1992 (Qld) ss 112, 114, 122, 123

Queensland Heritage Regulation 2015 (Qld) sch 2

Statutory Instruments Act 1992 (Qld) ss 7, 23

Transport Infrastructure Act 1994 (Qld) ss 62, 70

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied

Ashvan Investments Unit Trust v Brisbane City Council & Ors[2019] QPEC 16; [2019] QPELR 793, approved

Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, distinguished

Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, approved

Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; (2017) QPELR 487, distinguished

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, approved

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409, distinguished

I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 721, approved

ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52; [2017] QPELR 1117, distinguished

Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPELR 41, approved

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, applied

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved

Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, applied

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, approved

McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, approved

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied

Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, approved

Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, approved

Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41 [2021] QPELR 592, distinguished

The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, approved

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, approved

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] LGERA 82; [2014] QPELR 686, applied

COUNSEL:

D Jones (direct brief) for the Appellant (Archer)
M Batty and H Stephanos for the Respondent
C L Hughes KC and B Rix for the Co-respondent
K Buckley for the Co-respondent by Election
D O’Brien KC and K Buckley for the Co-respondent by Election (for supplementary submissions only)

SOLICITORS:

The Appellant (Purcell) was self-represented
McCullough Robertson for the Respondent
Low Doherty and Stratford for the Co-respondent
Minter Ellison for the Co-respondent by Election

TABLE OF CONTENTS

Introduction

What are the issues to be determined?

What does the proposed development entail?

What is the applicable framework for the decision?

What is the nature of the subject appeal?

What are the Court’s powers on appeal?

What is required for an assessment under s 45 of the Planning Act 2016?

What are the relevant categorising instruments?
Are the State development assessment provisions assessment benchmarks?
What are the matters prescribed by regulation for the assessment under s 45(5)(a)(ii)?
What are the relevant matters under s 45(5)(b)?

What is required for a referral agency assessment under s 55 of the Planning Act 2016?

What is the appropriate approach to the assessment and decision-making process?

Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre?

What were the issues upon which the parties focussed in written submissions?

How is the identification of the heritage values and cultural heritage significance to be approached?
Is it necessary to achieve compliance with Temporary Local Planning Instrument No. 7 in the event of inconsistency with the Conservation Management Plan?
Is compliance with the assessment benchmarks determined by ascertaining consistency with the Conservation Management Plan?
Is there an error in Temporary Local Planning Instrument No. 7 and is the Conservation Management Plan deficient?

What do the relevant assessment benchmarks about heritage impacts require?

What is the place of cultural heritage significance on the subject land?

What is the cultural heritage significance of the former De Luxe Theatre?

What are the pre-1976 elements that are identified in the approved conservation management plan?

Does the proposed development involve inappropriate removal or demolition of the fabric of the former De Luxe Theatre?

Does the proposed development appropriately recognise, conserve, respect and protect the cultural heritage significance of the former De Luxe Theatre?

Is the proposed use compatible with the conservation and management of the cultural heritage significance of the former De Luxe Theatre?

Conclusion re heritage assessment

Is the built form of the proposed development appropriate?

What is the surrounding built form context?

Does the building height of the proposed development accord with the intended building height pattern and the desired future appearance for the local area?

Does the proposed development reinforce the local identity and sense of place?

What informs the planned local identity and sense of place?
What informs the existing local identity and sense of place in this local area?

Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable?

Does the proposed development contribute to a varied, ordered, and interesting local skyline?

Does the proposed development achieve an excellent standard of appearance of the built form and street edge?

Does the proposed development contribute to housing choice and affordability?

Does the proposed development protect important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features?

Does the proposed development preserve the deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map?

Does the proposed development ensure the safe, secure, and efficient functioning of the Gold Coast Airport or other aeronautical facilities?

Does the density of the proposed development exceed that shown on the Residential density overlay map?

Conclusion regarding built form

Will the proposed access arrangements result in unacceptable traffic impacts?

What is required by the State development assessment provisions and the assessment benchmarks in City Plan?

Is the proposed access to the public roadway safe?

Will the proposed access worsen the operating conditions of the Gold Coast Highway?

Is there a difficulty because of the proximity of the access to the u-turn facility at Brake Street?
Are the arrangements for the on-site manoeuvring of medium rigid vehicles acceptable?

Conclusion regarding traffic impacts

What is the significance of the properly made submissions and lay witness statements?

What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?

Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9?

Is the subject land well-suited for the proposed development?

Is the proposed development supportive of and consistent with the Gold Coast Light Rail Stage 3 project?

Will the proposed development positively impact on the local community by creating employment opportunities?

Is there a need for the proposed development?

Should the development application be approved in the exercise of the planning discretion?

Costs of the adjournment of the hearing on 23 May 2022

Conclusion regarding the proposed development

Introduction

Immediately adjacent the intersection of Goodwin Terrace and the Gold Coast Highway, at 64 Goodwin Terrace and 1823 Gold Coast Highway, Burleigh Heads, are two lots, Lots 1 and 2 on RP 72012 (“the subject land’).
Lot 1 on RP 72012 has an area of 1,181 square metres and fronts Goodwin Terrace. It contains a building of local heritage significance variously known as the former De Luxe Theatre building (“the former De Luxe Theatre”) and the Old Burleigh Theatre Arcade.
Lot 2 on RP 72012 immediately adjoins the southern boundary of Lot 1 and fronts the Gold Coast Highway. It has an area of 632 square metres and is vacant.[1] Lot 2 is now properly described as Lots 1 and 2 on SP 313766.
[1]Exhibit 3.02 p 78.
The subject land was previously adjoined by a freehold lot on its western boundary that contained a service station. That lot is now part of the road reserve for the Gold Coast Highway. It is under development as a bus station, which is to be associated with the planned light rail station further to the west. The current plans for the light rail station indicate that the station will be in the road reserve for the Gold Coast Highway at a location that is proximate to the subject land.
The Co-respondent, JWZ Partners Development Group Pty Ltd, wants to redevelop the subject land. It proposes to demolish most of the former De Luxe Theatre to facilitate the redevelopment.
On 3 July 2020, JWZ Partners Development Group Pty Ltd made a development application to Gold Coast City Council (“the Council”) for a development permit for a material change of use for a multiple dwelling building containing 30 units, food and drink outlets and shops and a development permit for building works to authorise partial demolition of the former De Luxe Theatre (“the development application”).
Due to its proximity to a State controlled road, being the Gold Coast Highway, the development application required a referral agency assessment by the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning (“the Chief Executive”).[2] The Chief Executive was a concurrence agency and was required to assess the development application against, amongst other things, the State development assessment provisions version 2.6, which was in effect at the time the development application was made.[3] On 20 April 2021, the Chief Executive provided a referral agency response (“the referral agency response”). The referral agency response required the Council to attach conditions, plans and specifications to any development approval given by the Council. A copy of the relevant conditions, plans and specifications were attached to the referral agency response.[4]
[2]Planning Act 2016 s 54; Planning Regulation 2017 (Qld) (reprint current 27 March 2020) s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, items 1 and 2.
[3]Planning Act 2016 s 55; Planning Regulation 2017 (Qld) (reprint current 27 March 2020) s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4.
[4]Exhibit 3.42.
The development application was impact assessable and, as such, required public notification. During the public notification period, the Council received about 86 properly made submissions opposing the proposed development, including a petition with about 181 signatories, and one submission in support. Ms Nicolle Archer, a resident of Tallebudgera, and Mr Wayne Purcell, a resident of Southport, (collectively referred to as “the Appellants”) each made a submission opposing the proposed development.[5]
[5]Exhibit 4.07 and Exhibit 4.08.
By decision notice dated 25 May 2021, the Council approved the development application, subject to conditions. The development approval attached the additional conditions, plans and specifications as required by the referral agency response.
On 22 July 2021, the Appellants commenced this appeal.[6] Ms Archer contends that the proposed development will have an unacceptable impact on the heritage values of the former De Luxe Theatre, and that the built form of the proposed development is inappropriate. Mr Purcell joins with Ms Archer with respect to those matters. He also contends that the proposed development would have an unacceptable traffic impact on the Gold Coast Highway.
[6]A single appeal was lodged on behalf of numerous appellants. Each of the other appellants withdrew as parties to the proceedings prior to the trial commencing or shortly after it had commenced.
JWZ Partners Development Group Pty Ltd and the Council dispute those contentions. The allegations about unacceptable traffic impacts are also disputed by the Chief Executive.
The issue for me to determine is whether, in the exercise of the planning discretion, the development application should be approved.
What are the issues to be determined?
Before dealing with the issues that remain to be determined, I wish to make some preliminary observations about the way the issues in dispute were identified and the written submissions provided by the parties addressing them.
In accordance with the usual practice of the Court,[7] an agreed list of issues was tendered by JWZ Partners Development Group Pty Ltd, without opposition, as a document identifying the focus of the dispute between the parties.[8] It was admitted as Exhibit 1.11.
[7]Practice direction 2 of 2020 [25].
[8]Pursuant to an order made by me on 6 June 2022, with the agreement of all the parties, the issues in the trial were limited to the issues identified in Exhibit 1.11. The hearing proceeded on that basis.
Exhibit 1.11 is divided into five parts, namely:
(a)land use and development generally;
(b)bulk, height, scale, form and appearance;
(c)traffic;
(d)heritage; and
(e)other relevant matters.
Under each heading, the document contains a broadly worded question with compound propositions. The document then also sets out an extensive list of provisions of City Plan or a small handful of documents to support the proposition. The identification of the issues in this way created many difficulties. Three are particularly worthy of comment.
First, where provided, the list of provisions in Exhibit 1.11 was sizeable. Exhibit 1.11 did not reveal which of the provisions listed are the subject of allegations of non-compliance by the Appellants. Where those provisions contained compound propositions, as many did, Exhibit 1.11 did not reveal the extent of the provision that was in dispute.[9] For example, with respect to land use and development, there was a list of 24 provisions of City Plan. It was only through my questioning of the Appellants during final submissions that the provisions (and the parts thereof) with which the Appellants alleged non-compliance were clarified.[10] On the topic of land use and development, it is only five provisions in the list of 24.
[9]For example, one of the provisions in issue is performance outcome PO1 of the Medium density residential zone code. That provision requires setbacks that are sufficient to address several separate and distinct planning issues including the protection of adjacent amenity, the provision of access around the building, the provision of a contribution to the streetscape and the provision of on-site car parking.
[10]Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7 and 19-20.
Further, despite having identified an imposing list of provisions said to be relevant to the real issues in dispute, in its written submissions JWZ Partners Development Group Pty Ltd did not refer to many of them.
Second, where Exhibit 1.11 refers to a small handful of documents, the Exhibit does not reveal whether there is a dispute about:
(a)the status of the document (as an assessment benchmark or otherwise); nor
(b)whether the whole document is said to be relevant to the assessment process under s 45 of the Planning Act 2016, or only part of it, or the basis on which it is otherwise said to be relevant.

This broad-brush approach was adopted with respect to the topic of heritage, about which Exhibit 1.11 identifies the issue as follows:
“5.Whether the proposed development represents an appropriate redevelopment of a local heritage place having regard to the following:
(a)The documents which came into effect prior to lodgment of the subject application on 3 July 2020, being:
(i)      Temporary Local Planning Instrument (TLPI) No. 7, which came into effect on 30 July 2019 (and ceased effect on 30 July 2021);
(ii)     the Entry of the building on the Gold Coast Heritage Register on 6 December 2019;
(iii)     Council’s endorsement on 18 June 2020 of the Conrad Gargett Final Conservation Management Report for the former “De Luxe Theatre/Old Burleigh Theatre Arcade” Conservation Management Plan (the CMP);
(iv)     the Heritage Overlay Code in City Plan; and
(b)TLPI No. 9, which commenced on 30 July 2021 (after the lodgment of the subject application on 3 July 2020) and the weight to be accorded that document, particularly as it was drafted and commenced effect after the Council’s endorsement of the CMP.”
This approach provided less clarity about the nature of the dispute than the original court documents. It also invited confusion about the real issues in dispute. This is demonstrated by my exchange with Mr Purcell during his oral submissions, where he referred to a provision of the Heritage overlay code that was not the focus of an allegation in the Notice of Appeal and about which he had not questioned the relevant witnesses during the trial.[11] When questioned about its relevance, he pointed to the broad wording in Exhibit 1.11, before ultimately abandoning the issue.
[11]Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 22-4.
Third, Exhibit 1.11 fails to distinguish between the mandatory assessment against assessment benchmarks and the discretion to have regard to relevant matters. Consequently, the document invites the Court to ask and answer the wrong questions. This difficulty flowed through to an error in approach by the parties to which I refer in more detail in paragraphs [138] to [144] below. It also left me in the unenviable position of having little assistance identifying the evidence relevant to my assessment of the proposed development against the relevant assessment benchmarks in the Heritage overlay code: an exercise which is mandated by s 45(5)(a)(i) of the Planning Act 2016.
The lack of assistance provided by JWZ Partners Development Group Pty Ltd in framing the issues in Exhibit 1.11 was exacerbated by a deficiency in the level of assistance provided by the parties in the written submissions.
In Peach v Brisbane City Council & Anor,[12] His Honour Judge Williamson QC observed:
“[71] I accept there will be cases where the nature of the development proposed may result in an imposing number of non-compliances with a planning scheme. Where a party elects to nominate such a list of non-compliances, it must accept the consequence that attaches to that election. By nominating and advancing an imposing list of non-compliances, a party will be expected to provide commensurate assistance to the Court in relation to each alleged non-compliance, particularly where the planning provisions comprise compound propositions. The assistance will include detailed written submissions.
[72]To assist the Court, written submissions are ordinarily expected to: (1) identify each of the planning scheme provisions in issue; (2) make submissions, where required, as to the proper interpretation of each provision in issue, particularly where a provision contains compound propositions; (3) identify the evidence relied upon to establish compliance, or non-compliance with each provision in issue; and (4) provide some analysis of the evidence, and where relevant, identify why the evidence relied upon should be preferred to other contrary evidence.
[73]Points (2), (3) and (4) above will not be discharged by a party asserting compliance or non-compliance with a planning scheme, and seeking to establish this by merely repeating the words of the planning provision relied upon. An assertion of this kind, absent any reference to, or analysis of the evidence, is of little assistance. It leaves the Court with the unenviable task of analysing all of the evidence to determine what is relied upon to establish compliance or non-compliance with an assessment benchmark. It also leaves the Court to determine, for itself, why a party contends particular evidence should be accepted in preference to contrary evidence. This, in my view, is unsatisfactory.”[13]
[12][2019] QPEC 41; [2020] QPELR 54, 67 [72].
[13]Peach v Brisbane City Council & Anor [2019] QPEC 41; [2020] QPELR 54, 67 [71]-[73].
I agree with His Honour’s observations. They are equally apposite for a party with the onus that provides a list of provisions of a planning scheme on which it relies to support approval of its development application. The written submissions for Ms Archer and JWZ Partners Development Group Pty Ltd were deficient in this regard.
The deficiencies with Exhibit 1.11 and the written submissions had material consequences for the resources of the Court. They led me to spend hours reading, and contemplating, the many provisions of City Plan referred to and the thousands of pages in the almost 200 exhibits tendered during the trial so that I might be confident that I had fully considered all those issues at play.[14] This, in turn, caused me considerable delay in producing these reasons.[15]
[14]The peril in not doing so is highlighted by the observations of Burns J in Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6 at [48] to [51].
[15]It also impacted other litigants of this Court, as this matter consumed valuable time that could have otherwise been used to address reserved judgments for other appeals.
Having regard to the difficulties referred to above, the issues ventilated in the written submissions, and the confinement (to an extent) of the issues in the oral submissions on behalf of the Appellants,[16] it seems to me that the issues that remain to be determined can be broadly summarised as follows:
[16]Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7 and 19-20.
1.   Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre?
2.   Is the built form of the proposed development appropriate?
3.   Will the proposed access arrangements result in unacceptable traffic impacts?
4.   What is the significance of the properly made submissions and lay witness statements?
5. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
6.   Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9.
7.   Is the subject land well-suited for the proposed development?
8.   Is the proposed development supportive of, and consistent with, the Gold Coast Light Rail Stage 3 project?
9.   Will the proposed development positively impact on the local community by creating employment opportunities?
10. Is there a need for the proposed development?
11. Should the development application be approved in the exercise of the planning discretion?
Before turning to consider each of those issues, it is helpful to understand the nature of the proposed development.
What does the proposed development entail?
The proposed development involves the partial demolition and redevelopment of the existing, locally-heritage-listed building on the northern extent of the subject land, being the former De Luxe Theatre. The theatre on the subject land ceased some time ago, in mid-1966, having operated for about 36 years prior. No substantive extant built form from the theatre, such as the auditorium, remains. Those parts of the built form that were material to use of the building for a theatre were entirely removed as part of a redevelopment of the subject land in the mid-1970s.
The heritage retention and demolition component of the proposed development involves:
(a)the retention and re-use of the brick part of the existing structure that fronts Goodwin Terrace, which was constructed around 1955. It is described in the evidence as “the front bookend”;
(b)the demolition of the middle part of the existing structure, which was constructed around 1977;
(c)the demolition of the brick part of the existing structure that sits in about the middle of the subject land, which was constructed around 1955 and is described in the evidence as “the rear bookend”.
The proposed redevelopment of the subject land also involves a 14-storey (43.5-metre-high) building containing:
(a)retail and food and beverage tenancies on the ground floor, which are split across four tenancies and have a total area of 394.5 square metres;
(b)extensive outdoor dining areas associated with the food and beverage tenancies;
(c)a “double height” atrium dining area within the development, located immediately behind the retained front bookend;
(d)30 residential units split across the 13 “above ground” levels, comprising:
(i)four apartments containing two bedrooms;
(ii)20 apartments containing three bedrooms; and
(iii)six apartments containing four bedrooms;
(e)communal residential facilities (including a pool and gymnasium), which are located on top of a three-storey podium at the southern part of the development (with no tower structure above);
(f)three levels of basement car parking, which provide 84 car parking spaces for residents, residents’ guests and users of the retail and dining tenancies and bicycle parking; and
(g)heritage interpretation works designed to increase the prominence, and remembrance, of the history of the place.
The first three levels of the development have a podium form, commensurate with the three-storey-high retained front bookend.[17] The podium form replicates the extent of the former theatre building and extends further southward in a differing style. Above that podium is the 11-storey tower form. The tower form is setback from the Goodwin Terrace frontage by four metres when measured to the edge of the balconies and nine metres when measured to the face of the substantive building. It is setback 31.5 metres from the southern property boundary and about six metres from the eastern property boundary where it adjoins a property containing a building known as “La Pacifique”. There is no setback from the western property boundary.
[17]See, for example, Exhibit 2.02 pp 24 and 26.
All vehicular access will be to the Gold Coast Highway. The driveway access is proposed at the most south-easterly part of the subject land. It is in the same location as the present vehicular access to the subject land. Pedestrian access to the subject land will be facilitated via Goodwin Terrace and the Gold Coast Highway to the west, adjacent to the proposed bus and light rail transport hub.
What is the applicable framework for the decision?
An appeal is a creature of statute. To understand the proper function of this Court on appeal, including the applicable framework for the Court’s decision, it is necessary to understand the right of appeal that has been invoked and to look to the language of relevant statutes in that regard.[18]
[18]Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 418 [89].
Of particular interest in this appeal is whether the Court is required to undertake the assessment required to be carried out by the referral agency under the Planning Act 2016 (Qld).
Here, the appeal was commenced by individuals who were eligible submitters for the development application.[19] There are two rights of appeal conferred on eligible submitters in relation to a development application under s 229 and sch 1, s 1(4) and table 2, items 2 and 3 of the Planning Act 2016. They are:
[19]An eligible submitter is a person who makes a properly made submission about a development application; who has not withdrawn the submission before the development application is decided; and who has not given the assessment manager a notice stating that the person will not be appealing: see the definitions of “submitter” and “eligible submitter” in sch 2 of the Planning Act 2016.
“2. Eligible submitter appeals
For a development application or change application other than an excluded application, an appeal may be made against the decision to approve the application, to the extent the decision relates to–
(a)any part of the development application or change application that required impact assessment; or
(b)a variation request.
3. Eligible submitter and eligible advice agency appeals
For a development application or change application other than an excluded application, an appeal may be made against a provision of the development approval, or a failure to include a provision in the development approval, to the extent the matter relates to–
(a)any part of the development application or change application that required impact assessment; or
(b)a variation request.”
(emphasis added)
The Notice of Appeal does not state the legislative basis for the appeal.
In the Supplementary Submissions of the Co-respondent by Election, the Chief Executive submits that the right of appeal that was exercised by the Appellants was that conferred under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016. That is, the Chief Executive says that this is an appeal against the decision made by the Council under s 60 of the Planning Act 2016.[20] It further submits that the Court is tasked to exercise the original jurisdiction for the assessment of a development application. It says to do so, the Court must undertake the assessment required to be carried out by the assessment manager and the referral agency. The Chief Executive submits that this is implicit from two things. First, the fact that, under s 43 of the Planning and Environment Court Act 2016 (Qld), the appeal is a hearing anew. Second, s 46(5) of the Planning and Environment Court Act 2016 states that the Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act2016) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions. The Chief Executive says that it follows that the State development assessment provisions are a matter against which the development application must be assessed by the Court.[21]
[20]Exhibit 13.03 p 2.
[21]Exhibit 13.03 p 2.
On the Chief Executive’s approach, there is no difference between the appeal rights under items 2 and 3 of table 2 in sch 1 of the Planning Act 2016. The Chief Executive relies on the reference to the appeal being by way of hearing anew to justify the Court revisiting every aspect of the development application process.
I disagree with the Chief Executive’s analysis.[22] It ignores that s 43 of the Planning and Environment Court Act 2016 (Qld) does not only state that an appeal is by way of hearing anew. It states:
“43 Nature of appeal in general
Subject to any relevant enabling Act, an appeal to the P&E Court is by way of hearing anew.”
(emphasis added)
[22]Even if I am wrong about this, it does not affect the outcome in this appeal as, either way, the nature and extent of compliance with the State development assessment provisions is a matter to which regard may be had. Further, for reasons provided below, I am satisfied that there is compliance with the State development assessment provisions in this case. Their legal status does not change that outcome, nor change my view that they do not stand in the way of an approval.
It is necessary to carefully consider the appeal right conferred under the relevant enabling Act.
Under item 2 of table 2 in sch 1 of the Planning Act 2016, an appeal may be made against “the decision to approve the application”. The power to make a decision to approve the application is conferred by s 60 of the Planning Act 2016, which states:
“60     Deciding development applications
(1)This section applies to a properly made application, other than a part of a development application that is a variation request.
…
(3)To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—
(a)     to approve all or part of the application; or
(b)     to approve all or part of the application, but impose development conditions on the approval; or
(c)     to refuse the application.
(4)The assessment manager must approve any part of the application for which, were that part of the application the subject of a separate development application, there would be a different assessment manager—
(a) other than to the extent a referral agency for the development application directs the refusal of the part under section 56(1)(c); and
(b)     subject to any requirements of the referral agency under 56(1)(b).
(5)The assessment manager may give a preliminary approval for all or part of a development application, even though the development application sought a development permit.
…”
The relevant decision is that of the assessment manager.
Pursuant to s 59(3) of the Planning Act 2016, and subject to s 62, the assessment manager’s decision is required to be based on the assessment of the development carried out by the assessment manager. Section 45 of the Planning Act 2016 specifies the assessment that must be carried out by the assessment manager.
A response received from a referral agency limits the assessment manager’s decision-making powers referred to in ss 59(3) and 60(3) and (4) in the manner identified in ss 56 and 62 of the Planning Act 2016. They relevantly state:
“56     Referral agency’s response
(1)After assessing the development application, the referral agency must decide—
(a)     to tell the assessment manager that the agency has no requirements for the application; or
(b)     to direct the assessment manager to do any or all of the following—
(i)to give any development approval subject to stated development conditions;
(ii)to give any development approval for only a stated part of the application;
(iii)to give any development approval only as a preliminary approval;
(iv)to impose a stated currency period for a development approval given; or
(c)to direct the assessment manager to refuse the application for stated reasons.
…
(4)The referral agency must give a notice (a referral agency’s response) about the referral agency’s decision to—
(a)     the applicant; and
(b)     the assessment manager.
…
62Complying with referral agency’s responses
Other than to the extent a referral agency’s response provides advice, an assessment manager’s decision must—
(a)comply with all referral agency’s responses; and
(b)if a referral agency’s response requires conditions to be imposed on a development approval—include the conditions exactly as stated in the response.”
As such, where the eligible submitter appeal is commenced under item 2 of table 2 in sch 1 of the Planning Act 2016, the Court undertakes the assessment under s 45 as though it was the assessment manager. It is not required to undertake the assessment carried out by the referral agency for an appeal against the assessment manager’s decision. This is supported by two further matters of context.

First, for this type of appeal, the assessment manager is a respondent to the appeal and the applicant for the development application is a co-respondent, but there is no requirement to name the concurrence agency as a co-respondent to the appeal.[23] That is not the case for an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016.
[23]Planning Act 2016 s 229 and sch 1, s 1(4) and table 2, item 2. Cf Planning Act 2016 s 229 and sch 1, s 1(4) and table 2, item 3.
Second, this construction is supported by s 46 of the Planning and Environment Court Act 2016, which, relevantly, states:
“46     Nature of Appeal
(1)If, for a Planning Act appeal, the appellant was the applicant or a submitter for a development application the subject of the appeal, section 43 applies subject to subsections (2) to (5).
(2)The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—
(a)     the P&E Court were the assessment manager for the development application; and
(b)     the reference in subsection (7) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
(emphasis added)
There is no stipulation, in s 46 of the Planning and Environment Court Act 2016 or elsewhere, that s 55 of the Planning Act 2016 applies for the Court’s decision as if the Court were a referral agency.
That said, eligible submitters are not denied the right to appeal the referral agency’s decision. The relevant appeal right with respect to such matters is that under item 3 of table 2 in sch 1 of the Planning Act 2016. That provision confers a right to appeal against “a provision of the development approval, or a failure to include a provision in the development approval”.
In relation to a development approval, sch 2 of the Planning Act 2016 defines “provision” as “all words or other matters forming, or forming part of, the approval”.
The types of matters that will from part of an approval is informed by s 63 of the Planning Act 2016, which states:
“63     Notice of decision
(1)The assessment manager must give a decision notice about the assessment manager’s decision to—
…
(e)     if a negotiated decision notice is not given in relation to the decision—each principal submitter; and
…
(2)The notice must be in the approved form and state—
(a)     whether the application is approved, approved in part or refused; and
(b)     if the application is approved in part—the extent to which the application is approved; and
(c)     if the application is approved or approved in part—whether the approval is a preliminary approval, a development permit, or both; and
(d)     if section 64(5) applies—that the assessment manager is taken to have approved the application under that subsection; and
(e)     if development conditions are imposed—
(i)the conditions; and
(ii)for each condition—whether the condition was imposed directly by the assessment manager or required to be imposed under a referral agency’s response; and
(iii)for each condition imposed under a referral agency’s response—the referral agency’s name; and
(iv)for each condition about infrastructure under chapter 4—the provision of this Act under which the condition was imposed; and
(f)     if the application is refused—
(i)whether the assessment manager was directed to refuse the application and, if so, the referral agency directing refusal and whether the refusal was solely because of the direction; and
(ii)for a refusal for a reason other than because of a referral agency’s direction—the reasons for the refusal; and
(g)     for a variation approval—the variations; and
(h)     the name, residential or business address, and electronic address of each principal submitter; and
(i)      the day the decision was made.
(3)The notice must also state, or be accompanied by, the documents prescribed by regulation.
…”
(emphasis added)
Under s 43 of the Planning Regulation 2017, a decision notice for a development application that is approved must also be accompanied by any approved plans, specifications, or drawings for the development approval.
As such, where the eligible submitter appeal is commenced under item 3 of table 2 in sch 1 of the Planning Act 2016, the appeal may relate to, amongst other things:
(a)a condition that was required to be imposed under a referral agency’s response;
(b)a failure to include a condition in the development approval; and
(c)a failure by a referral agency to direct refusal.
For an appeal of that nature, depending on the grounds of the appeal, in hearing the appeal anew, the proper function of the Court may be informed by:
(a)ss 55 and 56 of the Planning Act 2016, which addresses the requirements for the referral agency’s assessment; and
(b)ss 65 and 66 of the Planning Act 2016, which govern permitted and prohibited development conditions.
That the Court may be required to stand in the shoes of a referral agency for an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016 is supported by two further matters of context.
First, for an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016, the assessment manager is a respondent to the appeal and the applicant for the development application is a co-respondent.[24] In addition, the concurrence agency is to be named as a co-respondent to the appeal if the appeal is about a concurrence agency’s referral response.
[24]Planning Act 2016 s 229 and sch 1, s 1(4) and table 2, items 2 and 3.
Second, this construction is supported by s 46(5) of the Planning and Environment Court Act 2016, which states:
“(5)The P&E Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions.”
(emphasis added)

What is the nature of the subject appeal?

Pursuant to s 230 of the Planning Act 2016, an appeal to this Court is commenced by lodging a notice of appeal that is in the approved form and succinctly states the grounds of appeal.
On 22 July 2021, the Appellants commenced this appeal by lodging their Notice of Appeal with the registrar of this Court. The Notice of Appeal named the Council as respondent and JWZ Partners Development Group Pty Ltd as co-respondent. It did not name the Chief Executive as a co-respondent.[25] The Chief Executive later elected to join the appeal pursuant to s 230(3)(f) and sch 1, s 1(7) of the Planning Act 2016.
[25]Exhibit 1.01.
In the prayer for relief, the Appellants’ Notice of Appeal records that the Appellants appeal against:
“… the decision of the Respondent, dated 25 May 2021, to approve subject to conditions, the Co-Respondent’s development application …”[26]
[26]Exhibit 1.01.
The relief sought is that the appeal be allowed, and the development application be refused.
As I have already mentioned in paragraph [7] above, the Chief Executive was a referral agency for the development application. Its referral agency response required the Council to attach conditions, plans and specifications to any development approval, a copy of which were attached to the referral agency response.[27]
[27]Exhibit 3.42.
Neither the prayer for relief nor the grounds of appeal in the Notice of Appeal refer to a provision of the development approval that relates to the referral agency response, or to a failure to include a provision in the development approval having regard to the referral agency assessment requirements. The Notice of Appeal makes no reference to the Chief Executive’s referral agency response.
The absence of reference to those provisions of the decision notice that relate to the referral agency response in the Notice of Appeal together with the failure to name the Chief Executive as a co-respondent is a strong indication that the appeal was commenced under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016, i.e., an appeal against the decision made by the Council, as assessment manager, under s 60 of the Planning Act 2016.
In her written submissions, Ms Archer confirms her intention to appeal only against the Council’s decision. She says her appeal was commenced under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016.[28]
[28]Outline of Argument on behalf of the Appellants p 7 [4.4].
Mr Purcell’s intention is not so limited. It was clear from Mr Purcell’s conduct in the appeal that he seeks to take issue with the extent of compliance with the State development assessment provisions. In effect, he seeks to challenge a provision of the development approval, being that part of the decision notice that records that the Chief Executive directed the Council to give any development approval subject to the stated development conditions.
Further, the desire to challenge the decision insofar as it relates to the Chief Executive’s assessment is apparent from the grounds of appeal wherein the Appellants allege that the proposed development should be refused having regard to provisions of the State development assessment provisions.[29]
[29]Exhibit 1.01 p 6.
In this case, I am persuaded that:
(a)it is appropriate to proceed on the basis that Mr Purcell has exercised his right of appeal under both item 2 and item 3 in table 2 of sch 1 of the Planning Act 2016; and
(b)the failure to name the Chief Executive as a co-respondent should be excused under s 37 of the Planning and Environment Court Act 2016.
My decision in that regard is informed by two matters.
First, in the notice of the decision provided to JWZ Partners Development Group Pty Ltd, the Council complied with its obligations in s 63(2)(e)(ii) and (iii) of the Planning Act 2016 by attaching a copy of the Chief Executive’s referral agency response to the decision notice. However, it failed to do so when it gave the decision notice to the Appellants. This is acknowledged by the Council.[30] As such, the Council failed to fully comply with its obligations under s 63 of the Planning Act 2016. This explains the absence of a challenge in the Notice of Appeal to the contents of the Chief Executive’s referral agency response.
[30]Exhibit 11.07 p 1.

Second, there is no prejudice to any party to proceed in this way. The Notice of Appeal referred to provisions of the State development assessment provisions against which the Chief Executive was required to assess the development application. It alleged non-compliance with them. As such, the parties were on notice that the Appellants sought to agitate for refusal by reference to the State development assessment provisions. The case was prepared by all on that basis.[31]
[31]Planning Act 2016 s 55; s 22 of the Planning Regulation 2017 (Qld) (current as at 27 March 2020), s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4.
What are the Court’s powers on appeal?
Pursuant to s 47 of the Planning and Environment Court Act 2016, the Court has power to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the entity that made the decision with directions the Court considers appropriate. This confers a broad discretion on the Court in determining the appeal.
The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.[32] The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provide relevant guidance in that respect.
[32]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.
In conducting the appeal as a hearing anew, the Court hears the matter afresh and is not limited to consideration of the material before the referral agency or the assessment manager.[33] The Court can overturn the decision appealed against regardless of whether the Appellants can demonstrate that, having regard to all the evidence before the Court, the decision is the result of some legal, factual, or discretionary error on the part of the assessment manager or the referral agency.[34]
What is required for an assessment under s 45 of the Planning Act 2016?
[33]See Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, [145].
[34]Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 597 [57]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180-1 [23].
As I have mentioned in paragraph [8] above, the development application required impact assessment. Impact assessment was required for all parts of the development application.[35] As such, under s 45 of the Planning Act 2016, the assessment:
(a)must be carried out:
(i)against the assessment benchmarks in a categorising instrument for the development; and
(ii)having regard to any matters prescribed by regulation; and
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
[35]See Exhibit 5.01 p 45: City Plan s 5.2, p 46: City Plan ss 5.3.1 and 5.3.2, p 49: City Plan s 5.5, p 50: City Plan Table 5.5.2 and Exhibit 5.03 p 7.
To the extent that the assessment is against or having regard to a statutory instrument (such as a categorising instrument) or another document applied, adopted, or incorporated (with or without changes) in a statutory instrument, the assessment must be against or having regard to the statutory instrument or other document as in effect when the development application was properly made.[36] However, the Court may give the weight it considers is appropriate, in the circumstances, to amendments or replacements to statutory instruments and new statutory instruments that commence after the development application is properly made but before it is decided by the Court.[37]
[36]Planning Act 2016 ss 45(6) and (7).
[37]Planning Act 2016 s 45(8); Planning and Environment Court Act 2016 s 46(2).
What are the relevant categorising instruments?
A categorising instrument is a regulation or local categorising instrument that sets out the assessment benchmarks that an assessment manager must assess assessable development against.[38] An assessment benchmark does not include, amongst other things, a matter of a person’s opinion or a person’s circumstances, financial or otherwise.[39]
[38]Planning Act 2016 s 43(1).
[39]Planning Act 2016 s 43(2).
Gold Coast City Plan is a categorising instrument containing assessment benchmarks relevant to the assessment called for under s 45 of the Planning Act 2016. The development application was properly made on 3 July 2020. At that time, Gold Coast City Plan 2016 version 7 (“City Plan”) was in effect.[40] The assessment must be undertaken against that version.[41]
[40]See Exhibits 3.12 and 5.1.
[41]Planning and Environment Court Act 2016 s 46(2)(a); Planning Act 2016 s 45(7).
The Court may also give weight to any amendments to City Plan. In this case, while City Plan has changed, the Council submits that there are no relevant or meaningful changes between the versions.[42] That was not disputed by any party. As such, there are no relevant amendments to City Plan raised for consideration in this appeal.
[42]Written Submissions on behalf of the Respondent p 8 [34].
Temporary Local Planning Instrument No. 7 (Protection of the Old Burleigh Theatre Arcade) 2019 (“Temporary Local Planning Instrument No. 7”) is also a categorising instrument containing assessment benchmarks that was in effect at the time that the development application was properly made. As such, the impact assessment must be carried out against the assessment benchmarks in Temporary Local Planning Instrument No. 7.
Temporary Local Planning Instrument No. 7 ceased to have effect on 29 July 2021, being two years after it commenced.[43]
[43]Planning Act 2016 s 23(6).
Temporary Local Planning Instrument No. 9 (Protection of the Old Burleigh Theatre Arcade) 2021 (“Temporary Local Planning Instrument No. 9”) came into effect on 30 July 2021, i.e., after the development application was properly made.[44]
[44]Planning Act 2016 s 45(8).
Ms Archer submits:
“4.40The TLPI expired on 30 June 2021 (sic). As a result, the Temporary Local Planning Instrument No 9 (Protection of the Old Burleigh Theatre Arcade) 2021 (TLPI9) was created to replace the TLPI. TLPI9 came into effect on 30 June 2021.
4.41 Importantly the TLPI9 only came into effect after the Development Application was decided by the Respondent. Accordingly the assessment manager is unable to rely on s 45(8) of the PA to afford any weight to the TLPI9.”[45]
[45]Outline of Argument on behalf of the Appellants p 14 [4.41].
I do not accept that the Court cannot afford any weight to Temporary Local Planning Instrument No. 9. Pursuant to s 46(2) of the Planning and Environment Court Act 2016, the Court assesses the development application under s 45 of the Planning Act 2016 as if it were the assessment manager except that it may give the weight it considers is appropriate, in the circumstances, to new statutory instruments that commence after the development application is properly made but before it is decided by the Court.
Temporary Local Planning Instrument No. 9 is a statutory instrument[46] that commenced before I published these reasons for judgment. I may give it the weight that I consider appropriate in the circumstances.
[46]Statutory Instruments Act 1992 (Qld) s 7; Planning Act 2016 s 23.
Are the State development assessment provisions assessment benchmarks?
The document defining the issues in dispute[47] refers to the State development assessment provisions.[48] Mr Purcell and Ms Archer submit that the State development assessment provisions are assessment benchmarks for the development application.[49]
[47]The issues in dispute were originally defined by reference to paragraphs 7 and 8 of the Notice of Appeal (Exhibit 1.01), the Respondent’s List of Matters in Support of Approval (Exhibit 1.04) and the Co-Respondent’s List of Matters Supporting Approval (Exhibit 1.03): see paragraph 1 of the Order of Rackemann DCJ made 9 December 2021 (Exhibit 1.05). However, by the time the hearing commenced the issues had narrowed and, in accordance with paragraph 25 of the Planning and Environment Court Practice Direction 2 of 2020, at the commencement of the trial they were identified by reference to a list of issues prepared for the trial (Exhibit 1.11). With the consent of the parties, during the opening, I ordered that the issues for the trial would be defined by reference to Exhibit 1.11: Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 9.
[48]Exhibit 1.11 p 2 [4(i)]
[49]Further Submissions on behalf of the Appellant (Ms Archer) p 4 [18].
In support of his submission, Mr Purcell relies on s 30(1) of the Planning Regulation 2017, which states:
“For section 45(5)(a)(i) of the Act, the impact assessment must be carried out against the assessment benchmarks for the development stated in schedules 9 and 10.”
Ms Archer makes a similar submission, except that she refers to s 31(1) of the Planning Regulation 2017, which states:
“For section 45(5)(a)(ii) of the Act, the impact assessment must be carried out having regard to—
(a)the matters stated in schedules 9 and 10 for the development.”

Mr Purcell and Ms Archer note that sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 lists the State development assessment provisions as “matters referral agency’s assessment must be against”.
The submissions of Mr Purcell and Ms Archer about the contents of the Planning Regulation 2017 are accurate. However, it does not follow that the State development assessment provisions are assessment benchmarks for the purpose of s 45(5)(a)(i) of the Planning Act 2016. Care must be taken to consider those provisions to which Mr Purcell and Ms Archer refer in context.
When one considers the Planning Regulation 2017 more broadly, it becomes apparent that sch 9 and sch 10 of the Planning Regulation 2017 have more than one purpose. For example:
(a)pursuant to s 44(5) of the Planning Act 2016 and ss 19 and 20 of the Planning Regulation, sch 10 categorises development as prohibited development and assessable development;
(b)pursuant to s 45(2) of the Planning Act 2016 and s 20 of the Planning Regulation, sch 9 and sch 10 state the category of assessment required for assessable development stated in the schedules;
(c)pursuant to s 54(2)(a) of the Planning Act 2016 and s 22(1)(a) of the Planning Regulation, sch 9 and sch 10 prescribe the referral agency for the development applications stated in the schedules; and
(d)pursuant to s 55(2) of the Planning Act 2016 and s 22(1)(b) of the Planning Regulation, sch 9 and sch 10 prescribe the matters the referral agency:
(i)may or must assess the development application against; and
(ii)may or must assess the development application having regard to.
Further, when one looks at the whole of sch 9 and sch 10, it is apparent that care is taken to identify the role of each particular provision of the schedule through headings and descriptions in tables.
Relevantly, in terms of the provision in sch 10 relied on by Mr Purcell and Ms Archer:
(a)pt 9 is headed “Infrastructure-related referrals”;
(b)div 4 is headed “State transport infrastructure—referral agency’s assessment”;
(c)subdiv 2 is headed “State transport corridors and future State transport corridors”; and
(d)table 4 is as follows:

Table 4—Material change of use of premises near a State transport corridor that is a future State transport corridor

Column 1

Column 2

1       Development application requiring referral

Development application for a material change of use other than an excluded material change of use, that is assessable development under a local categorising instrument, if all or part of the premises—

(a)     are within 25m of a State transport corridor; or

(b)     are a future State transport corridor; or

(c)     are—

(i)     adjacent to a road that intersects with a State-controlled road; and

(ii)     within 100m of the intersection

2       Referral agency

The chief executive

3       Limitations on referral agency’s powers

–

4       Matters referral agency’s assessment must be against

The State development assessment provisions

5       Matters referral agency’s assessment must have regard to

–

6       Matters referral agency’s assessment may be against

–

7       Matters referral agency’s assessment may have regard to

–

8       Fee for referral–

…

…

It is in the context referred to above that the reference to the State development assessment provisions in sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 is to be understood. It is a prescription of the matters against which a referral agency’s assessment must be carried out where the referral agency is the Chief Executive in relation to a development application of the type identified in sch 10, pt 9, div 4, subdiv 2, table 4, item 1.[50] That is, the prescription is made pursuant to s 55 of the Planning Act 2016 and s 22 of the Planning Regulation 2017 (Qld) (current as at 27 March 2020). Sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 does not prescribe the State development assessment provisions as assessment benchmarks that an assessment manager must assess assessable development against for the purpose of s 45(5)(a)(i) of the Planning Act 2016 and s 30(1) of the Planning Regulation 2017. It also does not prescribe the State development assessment provisions as a matter to which an assessment manager must have regard for the purpose of s 45(5)(a)(ii) of the Planning Act 2016 and s 31(1)(a) of the Planning Regulation 2017.
[50]By way of contrast, see sch 10, pt 1 of the Planning Regulation 2017.
What are the matters prescribed by regulation for the assessment under s 45(5)(a)(ii)?
Section 45(5)(a)(ii) requires an assessment that must be carried out having regard to any matter prescribed by regulation.
Section 31 of the Planning Regulation 2017 identifies matters to which regard must be had in the assessment of the development application. The matters identified therein are required to be considered only to the extent they are considered relevant to the development.[51]
[51]Planning Regulation 2017 s 31(2).
Those matters that the parties have relied on in this case are:
(a)any development approval for, and any lawful use of, the premises or adjacent premises;[52] and
(b)the common material,[53] including the Chief Executive’s referral agency response[54] and the properly made submissions about the development application.[55]
[52]Planning Regulation 2017 s 31(1)(f).
[53]Planning Regulation 2017 s 31(1)(g).
[54]Exhibit 3.49.
[55]Exhibits 4.01 to 4.90.
What are the relevant matters under s 45(5)(b)?
Section 45(5)(b) of the Planning Act 2016 provides that an assessment may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise. Although examples are given, the term “relevant matter” is not defined. In an appropriate case, the absence of a negative impact or detrimental effect may be considered as a relevant matter.[56] Personal circumstances of a person (including a corporation),[57] financial or otherwise, are not a relevant matter to which regard may be had.[58]
[56]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1021 [61].
[57]Acts Interpretation Act 1954 (Qld) s 32D.
[58]Planning Act 2016 s 45(5); Acts Interpretation Act 1954 s 14D.
Mr Purcell contends that an assessment of the development application against the State development assessment provisions is a matter that informs the appropriate outcome in this case. Although those provisions are not assessment benchmarks that the Court must assess the development application against under s 45 of the Planning Act 2016,[59] the referral agency response, and those matters that were relevant to the referral agency’s assessment under s 55 of the Planning Act 2016, are relevant matters for the purpose of s 45(5)(b) of the Planning Act 2016. Further, they are relevant to the extent that the appeal proceeds as an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016.
[59]See paragraphs [78] to [95] above.
What is required for a referral agency assessment under s 55 of the Planning Act 2016?
Before deciding to tell the Council to give the development approval subject to those conditions in the Chief Executive’s referral agency response, a referral agency assessment was required under s 55 of the Planning Act 2016. Pursuant to s 55 of the Planning Act 2016 and s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 (Qld) (current as at 27 March 2020), the development application must be assessed against the State development assessment provisions.
What is the appropriate approach to the assessment and decision-making process?
The assessment and decision-making process outlined above is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[60] Abeleda & Anor v Brisbane City Council & Anor,[61] Wilhelm v Logan City Council & Ors[62] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[63] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors[64] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[65]
[60][2020] QCA 253; [2021] QPELR 987.
[61][2020] QCA 257; [2021] QPELR 1003.
[62][2020] QCA 273; [2021] QPELR 1321.
[63][2021] QCA 95; [2022] QPELR 309.
[64][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[65][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].
As is apparent from the Court of Appeal decisions, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[66] In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.[67] Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[68] The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.[69] Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted. Although the exercise is to be based on the assessment carried out under ss 45 and 55 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.[70]
[66]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77].
[67]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40].
[68]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804‑6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]‑[14].
[69]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53].
[70]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]-[57].
JWZ Partners Development Group Pty Ltd bears the onus of establishing that the appeal should be dismissed.[71] I will now turn to the real issues that require determination as set out in paragraph [27] above.

Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre?
[71]Planning and Environment Court Act 2016 s 45.

Ms Archer and Mr Purcell contend that the proposed development represents an inappropriate redevelopment of a local heritage place. They say that it does not comply with:
(a)the overall outcomes in s 8.2.9.2(2)(a), (b), (d) and (e) and performance outcomes PO1, PO3 and PO5 of the Heritage overlay code; and
(b)that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting:
(i)specific outcome (5) in s 3.8.4 of City Plan;
(ii)overall outcomes (g), (h) and (i) in s 8.2.9.2(2) of the Heritage overlay code; and
(iii)performance outcomes PO9 and PO10 in the Heritage overlay code.[72]
[72]Outline of Argument on behalf of the Appellant (Archer) pp 5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7, 19-20 and 22-4.
JWZ Partners Development Group Pty Ltd and the Council dispute these contentions.
Even though an assessment against the assessment benchmarks is mandatory under s 45(5)(a)(i) of the Planning Act 2016, none of the written submissions addressed the issue of compliance with the assessment benchmarks relevant to heritage impacts in a meaningful way.[73] Instead, the written submissions focussed on issues about the status of various documents and whether the proposed development is consistent with the Conservation Management Plan Final Report: Former De Luxe Theatre / Old Burleigh Theatre Arcade prepared by Conrad Gargett dated May 2020 (“the Conservation Management Plan”)[74] that has been endorsed by the Council. It is convenient to deal with those issues first.
[73]This is unfortunate. It does not assist the Court with the timely disposition of the appeal.
[74]Exhibit 5.03.
What were the issues upon which the parties focussed in written submissions?
The various written submissions focussed on four issues, namely:
(a)the appropriate approach to the identification of the heritage values and cultural heritage significance for the assessment against the assessment benchmarks;
(b)whether it is necessary to achieve compliance with Temporary Local Planning Instrument No. 7 in the event of inconsistency with the Conservation Management Plan;
(c)whether the issue of compliance with the assessment benchmarks is determined by ascertaining consistency with the Conservation Management Plan; and
(d)whether there is an error in Temporary Local Planning Instrument No. 7 and whether the Conservation Management Plan was inadequate.
How is the identification of the heritage values and cultural heritage significance to be approached?
JWZ Partners Development Pty Ltd submits that it is the local heritage register that determines the heritage significance of a place. It says that issues of heritage significance cannot be sustained unless they are raised in the relevant statement of significance in the entry in the local heritage register. In support of its submission, JWZ Partners Development Pty Ltd refers to my decisions in ISPT Pty Ltd v Brisbane City Council[75] and Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor.[76]
[75]ISPT Pty Ltd v Brisbane City Council [2917] QPEC 52; [2017] QPELR 1117, 1128-9 [62].
[76][2017] QPEC 22; (2017) 222 LGERA 136; (2017) QPELR 487, 513-4 [121]-[122].
Care should be taken before citing a case as establishing a principle. I do not accept that my findings in those cases reveal a generally applicable matter of principle. My determinations turned on the proper construction of the applicable code (and the planning scheme policy referred to by that code).[77] Here, a different planning scheme applies.
[77]See ISPT Pty Ltd v Brisbane City Council [2917] QPEC 52; [2017] QPELR 1117, 1127-9 [57]-[67].
It is well-accepted that the same principles that apply to statutory construction apply to the construction of planning documents.[78] It is therefore necessary to read the applicable assessment benchmarks in their relevant context to determine how to approach the identification of heritage values and cultural heritage significance. Here, before turning to City Plan, it is helpful to appreciate the broader legislative context with respect to local heritage registers.
[78]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, [77] citing Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82 and AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1.
Under s 112 of the Queensland Heritage Act 1992 (Qld), a local government must identify places in its local government area that are of cultural heritage significance for the area:
(a)in its planning scheme; or
(b)in a local heritage register kept by the local government.
Where a place is identified in a local heritage register, under s 114 of the Queensland Heritage Act 1992, the entry in the register is to include:
(a)enough information to identify the location and the boundaries of the place; and
(b)a statement about the cultural heritage significance of the place.
Unless it has the consent of the owner of a heritage place, the Council cannot change the statement about the cultural heritage significance of the place other than to correct a minor error or to make a change that is not of substance.[79]
[79]Queensland Heritage Act 1992 (Qld) s 122.
Under s 123 of the Queensland Heritage Act 1992 and s 23 of the Statutory Instruments Act 1992, a planning scheme may apply, adopt, or incorporate a local government’s local heritage register.
With that legislative context in mind, one then turns to the provisions of City Plan.
The drafting style adopted in City Plan with respect to cultural heritage issues is vexing. Some provisions of City Plan expressly refer to the “local heritage register”[80] and the “stated significance of the local heritage place”.[81] Other provisions refer more broadly to the protection of the “significant values of the heritage place”[82] and the “cultural heritage significance embodied in the place”.[83]
[80]See, for example, the specific outcome in s 3.8.4.1(1) of City Plan.
[81]See, for example, the overall outcomes in s 8.2.9.2(c) and (f) of the Heritage overlay code.
[82]See, for example, the overall outcome in s 8.2.9.2(b) of the Heritage overlay code.
[83]See, for example, the overall outcome in s 8.2.9.2(d). See also performance outcomes PO1 and PO3 of the Heritage overlay code.
City Plan does not define “heritage place” as a place on the local heritage register or the State heritage register. Rather, it defines it as “a place, area, land, landscape, building or work that is of cultural heritage significance”.[84] However, it defines cultural heritage significance by reference to the Queensland Heritage Act 1992 (Qld),[85] wherein it is defined as:
“cultural heritage significance, of a place or feature of a place, means its aesthetic, architectural, historical, scientific, social, or other significance, to the present generation or past or future generations”
[84]Exhibit 5.01 p 137: City Plan Table SC1.2.2.
[85]Exhibit 5.01 p 133: City Plan Table SC1.2.2.
At first blush, the absence of reference to the stated cultural heritage significance in many provisions of the Heritage overlay code may indicate a legislative intent to invite a fresh consideration of the cultural heritage significance of a place. Ultimately, however, when regard is had to the applicability of the Heritage overlay code, I am not persuaded to adopt such a construction.
The Heritage overlay code is not a code that is of general application to all land throughout the local government area. It only applies to assessing material change of use, building work, reconfiguration of a lot and operational work for development that is subject to the Heritage overlay.[86] The legend on the Heritage overlay indicates that the mapping identifies local heritage places, state heritage places, local heritage protection boundaries, state heritage protection boundaries and heritage adjoining lots. Its focus is the cultural heritage significance of places on the local heritage register and the State heritage register.
[86]Exhibit 5.01 p 76: City Plan s 8.2.9.1.
Further, a construction that focusses on the stated cultural heritage significance is supported by the Strategic framework, which sets the policy direction for City Plan to 2031.[87] The Strategic framework comprises the strategic intent, six city shaping themes, strategic outcomes for development for each theme, elements that refine and further describe the strategic outcomes, and specific outcomes sought for each element. It includes mapping that provides essential spatial dimension to the Strategic framework.[88]
[87]Exhibit 5.01 p 19: City Plan s 3.1(1).
[88]Exhibit 5.01 p 19: City Plan ss 3.1(2) and (3).

Ms Archer lodged two lengthy submissions with the Council objecting to the proposed development and provided an affidavit in the appeal.[457] They attach results from an online community survey that she ran to ascertain the community sentiment and expectations in relation to the development application. The survey ran from 6 to 19 December 2020 and received 182 responses to questions about opinions on the Old Burleigh Theatre Arcade and the surrounding Burleigh village. As is observed by Ms Archer, that part of the community that responded to her survey expressed concern about the character of Burleigh being changed beyond comfort and recognition. Ms Archer also expresses concern that the proposed development’s design does not maintain enough publicly accessible space and that the social significance of the subject land, associated with its use after the theatre use, will be lost.
[457]Exhibit 9.1.
The affidavits of Mr Hicks, Mr Dick, Mr Magin and Mr Lethlean explain the significance of the existing building on the subject land to them and express concern about the loss of what they regard as important elements of the building, including its public accessibility. Mr Hicks also expresses a concern about the unattractive design and Mr Lethlean explains his concerns about impacts on views, and privacy and amenity.
The submissions and affidavits indicate that the community expects that the heritage listing will protect the existing building’s elements that reflect its more recent use for commercial tenancies. As would be evident from my findings above, the expectations that elements of the existing building that reflect its more recent use for commercial tenancies will be protected sits uncomfortably with the protection afforded by the entry of the subject land on the local heritage register. Consequently, little weight can be afforded to that expectation and the grounds for objection founded on that expectation.
The submissions and affidavits also reveal an expectation that the proposed development should comply with City Plan, particularly the outcomes sought in s 3.3.2.1(9). The objections are largely premised on a belief that the proposed development does not comply with City Plan and the protection it affords matters such as building height, building form, local character, setbacks, site cover, scenic amenity, shadowing, heritage, density, and car parking. It is reasonable to expect compliance with City Plan. In large measure, that is achieved by the proposed development. To the extent that the proposed development does not comply with City Plan, the submissions lend weight to the case for refusal of the development application.
What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
Exhibit 1.11 raises several relevant matters that are said to arise for consideration under s 45(5)(b) of the Planning Act 2016. They are framed by JWZ Partners Development Group Pty Ltd in the following terms:
“Land Use & Development Generally
1.Whether approval of the proposed development would achieve and further planning outcomes sought and encouraged by the Respondent’s Planning Scheme, City Plan 2016 (City Plan), including the provision of infill development; of housing choice and diversity; of a development that is well designed and that has appropriate regard to the amenity of, and is otherwise appropriately designed for, the locality in which the subject land is located; and of a development on land that is suitable for, and well suited for, development of the type proposed.
Such planning outcomes and other relevant matters that support approval are also found in the following assessment benchmarks:
(i)City Plan Strategic Framework, sections 3.3.1(1), (2), (3), (5), (6), (7), (9), 3.3.2.1(1), (2), (3), (4), (6), (9), (11);
(ii)City Plan Medium Density Residential Zone Code, sections 6.2.2.2(1), (2)(a), (2)(b), (2)(c)(ii) and Performance Outcome (PO) 1, PO2;
(iii)City Plan High-Rise Accommodation Design Code, sections 9.3.10.2(1), (2), PO10;
(iv)City Plan General Development Provisions Code, section 9.4.4.2(2)(a).
Bulk, Height, Scale, Form and Appearance
…
3.Whether in any event the proposed development is of a form, scale and intensity that warrants approval in the exercise of the Court’s discretion, in all of the circumstances, having regard to the following assessment benchmarks:
(i)City Plan Strategic Framework sections 3.3.2.1(4), (9), (11) and (16);
(ii)City Plan Medium Density Residential Zone Code, sections 6.2.2.2(2)(b) and (2)(d) and PO1, PO3 and PO5;
(iii)City Plan High-Rise Accommodation Design Code, sections 9.3.10.2(2)(a), (2)(b), (2)(c), (2)(e), (2)(g) and (2)(h) and PO5;
(iv)City Plan General Development Provisions Code, section 9.4.4.2(2)(a), PO1 and PO8,
and the Other Relevant Matters referred to hereunder.
…
Heritage
5.Whether the proposed development represents an appropriate redevelopment of a local heritage place having regard to the following:
…
(b)TLPI No. 9, which commenced on 30 July 2021 (after the lodgment of the subject application on 3 July 2020) and the weight to be accorded that document, particularly as it was drafted and commenced effect after the Council’s endorsement of the CMP.
Other Relevant Matters
6.Whether, in the exercise of this Court’s discretion, it is in the public interest and the interests of justice that the proposed development be approved having regard to the following, further, relevant matters:
(a)The proposed development is appropriate in terms of:
(i)      its compatibility with surrounding development (existing, approved and intended);
(ii)     it provision of appropriate and desirable infill development;
(iii)     its provision of:
A.housing choice and diversity;
B.a development that is well designed and that has appropriate regard to the amenity of, and is otherwise appropriately designed for, the locality in which the subject land is located;
C.a development on land that is suitable for, and well situated for, development of the type proposed,
(b)The proposed development is well located with respect to nearby public and private infrastructure including public open space (including public parklands and the beach); complementary and supporting uses (e.g. centre activities, sport, recreation, entertainment and dining facilities); and current transport facilities (private, active and public), as well as proximity to the proposed future Gold Coast Light Rail route (and a station) in the immediate vicinity of the subject land;
(c)The proposed development is consistent with and complementary to the land uses in the locality of the subject land and the proposed development is a natural and logical re-use of the subject land;
(d)The proposed development would make a positive contribution to the architectural built form, general development pattern and amenity of the area with no unacceptable adverse amenity or other impacts and no unacceptable adverse town planning consequences but rather it will enhance the amenity and enjoyment of the community, including by way of activation at ground/street level, provision of convenience tenancies and appropriate development above;
(e)The nature and location of the proposed development is consistent with the reasonable expectations of the community, in all of the circumstances;
(f)The proposed development is supportive of, consistent with, and will not detrimentally affect, the third stage of the Gold Coast Light Rail in the subject locality;
(g)The proposed development will positively impact on the local community by creating employment opportunities both during the construction phase and during the lifetime of the development;
(h)There is an economic, community and planning need for the proposed development.”
I have already addressed many of the provisions referred to by JWZ Partners Development Group Pty Ltd as part of my assessment of the development application against the assessment benchmarks and my consideration of the importance that City Plan attributes to the non-compliances. I have also already addressed much of the evidence about the matters on which JWZ Partners Development Group Pty Ltd relies. Having regard to my findings above, I am satisfied that:
(a)the proposed development achieves the planning outcomes sought in City Plan referred to in paragraph 1 of Exhibit 1.11;
(b)the proposed development is consistent with the assessment benchmarks referred to in paragraph 3 of Exhibit 1.11;
(c)the matters referred to in paragraphs 6(a), (b), (c), and (d) of Exhibit 1.11 have been established; and
(d)each of these matters supports approval of the proposed development.
The substantive issues that remain for consideration call for the following factual determinations:
1.   Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9?
2.   Is the subject land well-suited for the proposed development?
3.   Is the proposed development supportive of and consistent with the Gold Coast Light Rail Stage 3 project?
4.   Will the proposed development positively impact on the local community by creating employment opportunities?
5.   Is there a need for the proposed development?
Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9?
As I have discussed at paragraphs [84] to [86] above, Temporary Local Planning Instrument No. 7 ceased having effect on 29 July 2021. On 20 July 2021, the Council adopted Temporary Local Planning Instrument No. 9, which commenced on 30 July 2021.[458] It has effect for a period not exceeding two years from its commencement.[459] I may attribute such weight to Temporary Local Planning Instrument No. 9 as I consider appropriate in the circumstances.[460]
[458]Exhibit 5.03 p 2 [6].
[459]Planning Act 2016 s 23(6).
[460]Planning and Environment Court Act 2016 s 46; Planning Act 2016 s 45.
Temporary Local Planning Instrument No. 9 affects the operation of City Plan[461] by:
(a)amending the Heritage overlay map to identify the subject land as a local heritage place;[462]
(b)inserting a trigger to require impact assessment of building work that involved any removal, demolition, or partial demolition on the subject land;[463]
(c)nominating the Heritage overlay code of City Plan as the relevant assessment benchmark for assessing an application for building work;[464]
(d)inserting additional Strategic framework specific outcomes in s 3.8.4 of City Plan;[465] and
(e)inserting additional overall outcomes and performance outcomes in the Heritage overlay code.[466]
[461]Under s 23(3) of the Planning Act 2016, a temporary local planning instrument an affect the operation of another local planning instrument, such as a planning scheme, but it does not amend or repeal the instrument.
[462]Exhibit 5.03 p 17.
[463]Exhibit 5.03 p 17 and Exhibit 5.02 p 362: City Plan s 5.7.
[464]Exhibit 5.03 p 17 and Exhibit 5.01 p 47: City Plan s 5.3.3(5).
[465]Exhibit 5.03 p 17.
[466]Exhibit 5.03 pp 18-9.
Although the way Temporary Local Planning Instrument No. 9 affects City Plan is by amendment to the same parts of City Plan as Temporary Local Planning Instrument No. 7, the content of the assessment benchmarks inserted are materially different. The differences relate to the importance of retaining the pre-1976 fabric.
The additional specific outcome for the Strategic framework now states:
“(5)The Old Burleigh Theatre Arcade is an important heritage place for the City and is to be protected. Its removal or demolition will not be supported. Partial demolition may occurs (sic) when:
(i)those elements of the Burleigh Theatre Arcade identified through an approved Conservation Management Plan as being constructed prior to 1976 and contributing to the cultural heritage significance of the Old Burleigh Theatre Arcade, are protected as required by the Conservation Management Plan; and
(ii)development is designed and sited to appropriately respond to the cultural heritage significance of the Old Burleigh Theatre Arcade.
Note:The Conservation Management Plan must be approved by Council prior to the issue of any development approval over Lot 1 on RP72012.
Note:Any assessable development that is inconsistent with this provision is considered not to be in the public’s interest.”
(emphasis added)
Overall outcomes (g) and (i) are the same, but (h) now states:
“(h)Any development involving partial demolition ensures that the significant elements of the Burleigh Theatre Arcade identified through an approved Conservation Management Plan are protected and remain in-situ.”[467]
[467]Exhibit 5.03 p 18.
Performance outcome PO9 and much of performance outcome PO10 are the same. The only difference in performance outcome PO10 is in the first few lines of subparagraph (a), which now states:
“PO10
Development involving partial demolition of the Old Burleigh Theatre Arcade is to:
(a)ensure that the cultural heritage significance of the significant elements are to be protected and remain-insitu. The significant elements may include, but not limited to:
…”[468]
[468]Exhibit 5.03 p 19.
The relevance of the Conservation Management Plan to an assessment against Temporary Local Planning Instrument No. 7 was limited to its identification of the pre-1976 elements of the former De Luxe Theatre. It has greater relevance under Temporary Local Planning Instrument No. 9, which calls for consideration of the Conservation Management Plan to ascertain those 1976 that are significant and contribute to the cultural heritage significance of the former De Luxe Theatre.
With respect to components of significance, the Conservation Management Plan states:
“The entry in the Gold Coast Local Heritage Register identifies a number of ‘components of significance’. The findings of this report are in broad agreement that the 1955 sections of the building have heritage values, however the hierarchy of these values is more closely assessed at Section 5.6 below. Where those values identified in the Schedule differ to those in the ‘components of significance’ it is submitted that the Schedule should prevail.”[469]
[469]Exhibit 5.03 p 81.
The Conservation Management Plan includes a table that defines the level of significance of the different elements. In part, it states:

Level of significance

Understanding

Comments

High significance

Considered essential to the understanding, appreciation and cultural value of the place.

Fabric or elements should be retained and conserved.

Typically these elements and values are associated with the townscape qualities of the building.

These elements should be retained and conserved; intervention should be minimised; and new development should help maintain or enhance the significance

Significant

Considered important to the understanding, appreciation and cultural value of the place.

Fabric or elements may be altered if doing so enhances the site significance.

Typically these are 1955 elements, which contribute to the significance of the site as well as 1930s elements / remnants potentially discovered as part of future construction work (which are likely to be substantially altered or modified),

Where feasible and appropriate, these elements could be retained, however considered alteration (both major and minor) may occur providing aspects of higher cultural significance are not compromised.

(emphasis added)[470]
[470]Exhibit 5.03 p 82.

The elements identified of high significance are:
·     “Townscape connections between the former De Luxe Theatre / Old Burleigh Theatre Arcade and the Burleigh Heads foreshore, Mowbray Park, Memorial Park, the Burleigh Heads Bowls Club and the Burleigh Heads commercial precinct
·     Views to and from the front ‘book end’ to the Burleigh Heads foreshore (including the pine trees) and Mowbray Park (views to and from the north)
·     Views to and from the front ‘book end’ to the Burleigh Heads Bowls Club, Memorial Park and Burleigh Heads commercial precinct (views to and from the northwest and west)
·     Views from the Gold Coast Highway (southbound) to the front ‘book end’
·     Evidence of the 1955 footprint and form adapting the earlier 1930s footprint and form
·     The front ‘book end’ including the Goodwin Terrace front brick façade of the 1955–1966 theatre including the north elevation, east and west side returns, stepped parapet, roof form, fenestration, awning, and street frontage patterning below awning (including bullnose columns, central opening and side entries)
·     Original 1955 materials of the front ‘book end’ including face brickwork, bullnose brick columns at ground level, precast window lintels, rendered banding, timber windows (including frames, sills and remaining double hung leaves on west façade), awning structure (6 metal rods and plates) and soffits, metal raingoods (gutters, downpipes and headers)
·     The central 1955 ground floor public entry and access space (adapted from the earlier 1930’s central entry) including the ceiling finishes
·     Evidence of the fixings for the former ‘theatre’ sign mounted on the front façade up until 1966
·     The ‘De Luxe’ and ‘Thams Bros Est 1912’ theatre sign”[471]
[471]Exhibit 5.03 p 83.
The elements identified of significance are:
·     “Views to and from the west façade to the Burleigh Heads Bowls Club, Memorial Park and Burleigh Heads commercial precinct
·     Views from the Gold Coast Highway (northbound) to the rear ‘book end’
·     The rear ‘book end’ including the rear brick façade of the 1955–1966 theatre including the south elevation, east and west side returns, roof form including deep eaves, and fenestration
·     Original 1955 materials of the rear ‘book end’ including face brickwork, precast window lintels, rendered banding, timber windows (including frames, sills and remnant leaves), metal raingoods (gutters and downpipes)
·     Evidence of the 1955 planning (former apartments and possible projection room)
·     1955 apartment to second floor, rear ‘book end’ including layout, joinery and materials, and internal fitout (including cabinetry and light fittings)
·     Evidence of front 1955 apartments (originally 4) including front ground floor access corridors, internal timber stairs, timber T&G flooring and floor framing
·     Possible remnant section of wall to ground floor (in retail tenancy) and possible evidence of projection room to first floor”[472]
[472]Exhibit 5.03 pp 85-7.
Reading the provisions of Temporary Local Planning Instrument No. 9 with the Conservation Management Plan, only those elements identified as having high significance in the Conservation Management Plan are required to be retained. That is, those elements listed in [548] are the only elements that the Conservation Management Plan “requires” be protected.
The proposed development retains and conserves each of the elements of high significance. The proposed development will also conserve some of the elements of significance, such as joinery and light fittings from the 1955 apartments.[473] As such, the proposed development complies with all the requirements of Temporary Local Planning Instrument No. 9.
[473]See also Exhibit 2.02 pp 18-43.
The proposed development’s compliance with the most recent and focussed planning intentions, as reflected in Temporary Local Planning Instrument No. 9, materially diminishes the significance of the non-compliances with Temporary Local Planning Instrument No. 7 in the exercise of the discretion.
Is the subject land well-suited for the proposed development?

JWZ Partners Development Group Pty Ltd alleges that the subject land is well-suited for the proposed development. It relies on this as a relevant matter to support an approval.
This issue is uncontentious. All the town planning experts agree that the location of the subject land is well suited for residential development because it is close to a centre, public transport services, open space, and recreation areas.[474]
[474]Exhibit 7.02 p 58 [252].
I am satisfied that this matter has been established on the evidence. It is a relevant matter that supports approval.
Is the proposed development supportive of and consistent with the Gold Coast Light Rail Stage 3 project?
JWZ Partners Development Group Pty Ltd alleges that the proposed development is supportive of and consistent with the Gold Coast Light Rail Stage 3 project.
This was not contested by the Appellants.
As I have noted in paragraph [423] above, City Plan supports podium and tower form high-rise development and increases in residential density proximate to the light rail corridor. It also seeks the transformation of areas around light rail stations into places that are compact, interesting, connected, and active.
The proposed development is supportive of the Gold Coast Light Rail Stage 3 project in that way. It increases residential density, presents an interesting façade to the planned light rail corridor, and activates the ground plane immediately adjacent the planned bus interchange for the light rail and the proposed light rail station through its provision of commercial tenancies on the ground floor.[475] In this regard, I note the evidence of Dr McGowan and Mr Curtis referred to in paragraphs [315](d), [322] and [329] above, which I accept.
[475]See also the visual representation of the likely outcome is provided by the photomontage in Exhibit 2.01 p 49.
The grant of the approval by Department of Transport and Main Roads under s 62 of the Transport Infrastructure Act 1994 is indicative that the proposed development is consistent with the Gold Coast Light Rail Stage 3 project.
In those circumstances, I am satisfied that this is a relevant matter, and that it is established on the evidence.
Will the proposed development positively impact on the local community by creating employment opportunities?
JWZ Partners Development Group Pty Ltd alleges that the proposed development positively impacts on the local community by creating employment opportunities during the construction phase and during the lifetime of the development. Limited assistance was provided by JWZ Partners Development Group Pty Ltd in identifying the evidence it says establishes this allegation. It refers only to the evidence of Mr Perkins and Ms Morrissy.
Mr Perkins and Ms Morrissy each indicate that they have read the Co-respondent’s list of relevant matters that support approval[476] and agree with it. Although they did not identify the foundation for their respective opinions, insofar as their opinions relate to this issue, they were not challenged.[477]
[476]Exhibit 1.03.
[477]Exhibit 7.02 p 54 [243] and p 55 [248].
Self-evidently, the proposed development will require construction and it involves uses that include ongoing commercial operations. In those circumstances, I have no difficulty accepting the unchallenged opinions of Mr Perkins and Ms Morrissy.
This is a matter that lends marginal support to approval.
Is there a need for the proposed development?
JWZ Partners Development Group Pty Ltd alleges that there is a need for the proposed development. To assist me with this issue, I had the benefit of expert opinion evidence from Mr Duane, the economist retained by JWZ Partners Development Group Pty Ltd.
From an economic perspective, Mr Duane considers it relevant that:
(a)both the South East Queensland Regional Plan and City Plan envisage substantial further population and dwelling growth on the Gold Coast over the period to 2041;
(b)the planning documents identify that most of this growth will be catered for by infill development; and
(c)such growth is encouraged by the planning documents to occur:
(i)at or near centres, particularly higher order centres, and
(ii)in locations which enjoy, or will enjoy, good public transport options.[478]
[478]Exhibit 8.04 p 14 [2.21].
Population growth within the Gold Coast local government areas requires an additional 5,845 new dwellings each year (assuming the current Gold Coast City local government area average household size of 2.51 persons), which is equivalent to 146,115 new dwellings over the period 2016-2041.[479]
[479]Exhibit 8.04 p 16 [3.3].
In Mr Duane’s opinion, this population growth will require:
“… a diverse range of housing choice in separate communities/locations…to sustain the rate of this population growth, and given the developed nature of the area, infill multi-unit development …”.[480]
[480]Exhibit 8.04 p 16 [3.4].
Mr Duane considers the broad hectare land within the Gold Coast local government area that is available to accommodate the demand driven by the above population growth. He concludes that a total of 57,500 dwellings are available in the area, which falls well short of the dwellings required for the next 20 years.[481]
[481]Exhibit 8.04 p 18 [3.10] and Table 3.2.
For the local area containing the subject land,[482] a total of 320 dwellings per year will be required to accommodate the population growth. This equates to 6,400 dwellings in the 20-year period of 2021-2041.[483] Data pertaining to dwellings under construction, approved, planned, or proposed in this local area reveals that the numbers are well less than the likely demand.[484] During cross-examination, Mr Duane emphasised the need for redevelopment of existing sites, such as the subject land, to respond to this shortfall.[485]
[482]The local area identified by Mr Duane includes Burleigh Heads, Burleigh Waters, Eleanora, Miami, Palm Beach, and Varsity Lakes: see Exhibit 8.04 p 18 [3.11] and p 20 Map 3.1.
[483]Exhibit 8.04 p 18 [3.12].
[484]Exhibit 8.04 p 32 [4.15].
[485]Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 64-5.
Following his consideration of the most recent Land Supply and Development Monitoring Report 2021 released by the Department of State Development, Manufacturing, Infrastructure and Planning, Mr Duane concludes that:
“Overall, it is clear that the Gold Coast needs to have a high reliance on multiple dwelling development on infill sites or underutilised sites in the future to meet population targets. The information provided indicates that current development of multiple dwellings is well below the targeted benchmark levels and may well be ongoing into the future. Clearly, a substantial component of approvals is not being converted into multiple dwellings.
In that environment, well located sites, such as the subject development, able to incorporate dwellings in close proximity to significant infrastructure should be used for residential purposes. This is economically sensible”.[486]
(emphasis added)
[486]Exhibit 8.04 p 31 [4.5] and [4.6].
The proposed development will provide 30 dwellings. Although this equates to only 0.5 per cent of future demand, Mr Duane observes that the redevelopment of land such as proposed here will provide a significant contribution to housing supply over time.[487]
[487]Exhibit 8.04 p 31 [4.7].
Considered in the context of a mature city such as the Gold Coast, Mr Duane observes that development and redevelopment must be provided in numerous localities to ensure that a growing population can be accommodated (without urban sprawl) and to provide the public with an appropriate level of choice.[488]
[488]Exhibit 8.04 p 31 [4.9].
Mr Duane’s analysis of the factors pertaining to demand and supply leads him to conclude that there is a strong need for residential development such as the proposed development. He says that the proposed development will go significantly towards addressing the ongoing public or community need for the provision of accommodation. In his opinion, looking at all the attributes the subject land possesses and the demand within the local area, it would be economically sensible to develop the subject land for a higher density development.[489]
[489]Exhibit 8.04 p 33 [4.18]-[4.20].
I accept the evidence of Mr Duane. His opinions were cogent and premised on sound foundations. Mr Duane’s evidence satisfies me that there is a need for the proposed development. This is a relevant matter that supports approval.
Should the development application be approved in the exercise of the planning discretion?
The appropriate approach to the exercise of the planning discretion is explained in paragraphs [102] and [103] above.
As I have found above, there is a substantial degree of compliance with the assessment benchmarks. However,:
(a)the proposed demolition of some pre-1976 elements of the existing building does not comply with that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting specific outcome (5)(i) in s 3.8.4 of the Strategic framework, overall outcome (h) in s 8.2.9.2(2) of the Heritage overlay code and performance outcome PO10(a) in the Heritage overlay code;
(b)the height of the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code; and
(c)the density of the proposed development does not comply with performance outcome PO5 of the Medium density residential zone code.
Each of the non-compliances tells against approval. The non-compliances associated with the demolition of pre-1976 fabric of the former De Luxe theatre and the height of the proposed development are of considerable importance in the planning instruments and are deserving of significant weight in the exercise of the discretion. The reasonable expectations of the community that there will be compliance with planning instruments adds weight to the case for refusal.
That said, the weight to be given to the non-compliances is materially diminished because:
(a)Temporary Local Planning Instrument No. 7 has ceased to have effect and the proposed development complies with Temporary Local Planning Instrument No. 9, which is the most recent planning protection afforded to the former De Luxe Theatre;
(b)the proposed development satisfies all the outcomes in s 3.3.2.1(9) and, as such, City Plan provides encouragement for the building height proposed; and
(c)the proposed development is consistent with the underlying planning goals in City Plan with respect to density.
I must also have regard to those relevant matters that favour approval, each of which I have already identified in my reasons above. They include that the proposed development:
(a)is proximate to a centre, public parklands and the beach, and transport facilities, which facilities will be enhanced by the provision of the Gold Coast light rail station and associated bus stops proximate the subject land;
(b)will have no adverse amenity impacts;
(c)will make a positive contribution to the local area through its excellent design, including its activation of the street;
(d)is a viable re-use of an under-utilised heritage building in a manner that is compatible with its cultural heritage significance; and
(e)will meet a need for further infill development in an appropriate location.
On balance, I am satisfied that, taken in combination, the extent to which the proposed development does not comply with the assessment benchmarks should not stand in the way of an approval given the matters that I have identified that temper the significance of the non-compliances and the relevant matters that I have identified that support approval. Overall, the proposed development is meritorious and should be approved, subject to the imposition of reasonable and relevant conditions.
Costs of the adjournment of the hearing on 23 May 2022
There is one final matter that I must address. It relates to applications for costs made by several parties. The applications were made in the following context.
At a callover on 20 April 2022, this appeal was listed for hearing commencing 23 May 2022, with a site inspection to occur at Burleigh on Sunday 22 May 2022.
At about 4 pm on 20 May 2022, I listed the appeal for mention after it was drawn to my attention that Mr Purcell had sent an email about one hour earlier that noted, amongst other things:
“This email is to inform Her Honour that at approximately 9:30am Friday 20 May 2022, due to experiencing COVID symptoms, I undertook a COVID test at the Gold Coast University Hospital. As per health directives, I am required to self-isolate until test results are returned (potentially 3 days) or at least 7 days if returning a positive result.”
From the interchange with Mr Purcell at that mention, it was apparent that:
(a)the Appellants had been legally represented during preparations for the appeal;
(b)shortly before the callover, the Appellants became self-represented litigants in the appeal;
(c)Mr Purcell understood that the Appellants all intended that he would act as the primary spokesperson representing the interests of the Appellants and he did not believe that any other Appellant would be in a position to act as spokesperson;
(d)Mr Purcell did not want to disrupt the potential for the trial to proceed if it could and was, at that time, prepared to appear by phone or through an agent if that was permitted;
(e)Mr Purcell was content for the site inspection to proceed on Sunday 22 May 2022, even if he was in isolation; and
(f)on the proposed hearing schedule, the first witness was to be Mr Duane, who would be flying up from Sydney to appear in person.
Following the mention, at about 5:17 pm, Mr Purcell informed all the parties and the Court that he had received a positive test result for COVID-19.
On 23 May 2022, each of Mr Purcell and Ms Archer made an application to adjourn the hearing on the basis that, amongst other things:
(a)Mr Purcell had received a positive test result for COVID-19 and, consequently, he was not in a position to properly represent himself;
(b)the other parties had not complied with the obligations of the Practice Direction about the provision of a draft list of issues in dispute; and
(c)since the Appellants had elected to represent themselves, the other parties had engaged in multiple communications with respect to the trial with Mr Purcell alone and without having enquired about the contact details of the other Appellants. This reinforced Mr Purcell’s perception that he could represent all the Appellants without any further formal steps to authorise such action.
On the basis that Mr Purcell was self-represented and had received a positive test result for COVID-19, I granted the adjournment.
Following my decision to grant the adjournment, JWZ Partners Development Group Pty Ltd made an application for the costs thrown away by the adjournment, limited to the costs of two counsel for that day, costs of one solicitor and the witness expenses for Mr Duane. The Council also made an application for the costs thrown away by the adjournment, limited to the costs of one counsel for that day and the costs of two solicitors.
Ms Archer and Mr Purcell resisted the application for costs.
The starting position in the appeal is that each party is to bear its own costs.[490] However, under s 60 of the Planning and Environment Court Act 2016, the Court may make an order as to costs when a party has incurred costs in one, or more, of nine identified circumstances. There is no obligation on the Court to make an order if one or more of the circumstances is established. The Court retains an unfettered discretion to make an order as it considers appropriate.
[490]Planning and Environment Court Act 2016, s 59.
One of the circumstances that may give rise to a costs order is if a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding.[491] This is the foundation for the costs applications made by JWZ Partners Development Group Pty Ltd and the Council.
[491]Planning and Environment Court Act 2016, s 60(1)(c).
It is not necessary for me to determine whether the power to award costs is enlivened because, in the exercise of my discretion, I am not prepared to award costs for two reasons.
First, the possibility of an adjournment of the hearing should have been apparent to JWZ Partners Development Group Pty Ltd when it received an email from Mr Purcell on Friday evening about his positive test result for COVID-19 given it was known that Mr Purcell was self-represented and intended to speak on his own behalf. As such, if JWZ Partners Development Group Pty Ltd held genuine concerns about incurring unnecessary cost associated with Mr Duane’s attendance on the first day of hearing, it could have arranged to change the order in which it would call its witnesses. This would have ensured it was ready to proceed with the trial if that proved possible while also avoiding unnecessary costs in the event the appeal was adjourned.
Second, even if Mr Purcell had provided notice of the intention in his email of Friday evening, in which he otherwise promptly notified of the results of his COVID-19 test, such notice would not have alleviated the need for the parties (and their legal representatives) to attend on 23 May 2022.
Both applications for costs are dismissed.
Conclusion regarding the proposed development
JWZ Partners Development Group Pty Ltd has discharged the onus.
In due course, the appeal will be dismissed, and the development application approved. To that end, I will adjourn the appeal for further review, by telephone, on 31 January 2023 to allow the Council to prepare the necessary suite of conditions.

CITATION:	Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59
PARTIES:	NICOLLE PATRICIA ARCHER AND WAYNE EDMUND PURCELL (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) AND JWZ PARTNERS DEVELOPMENT GROUP PTY LTD (ACN 634 372 526) AS TRUSTEE FOR JWZ UNIT TRUST (Co-respondent) AND CHIEF EXECUTIVE OF THE DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (Co-respondent by Election)
FILE NO/S:	1892 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	23 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2022 (site inspection), 23 May 2022, and 6 – 10 June 2022 and further submissions received on 15, 17, 24 and 30 November, 2 and 19 December 2022
JUDGE:	Kefford DCJ
ORDER:	The applications for costs thrown away by the adjournment of the hearing on 23 May 2022 are dismissed. The appeal is adjourned for further review, by telephone, on 31 January 2023 to allow the Respondent to prepare the necessary suite of conditions to be attached to an approval of the proposed development.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where the development application is for partial demolition and redevelopment of the Old Burleigh Theatre Arcade – where the proposed development is for a multiple dwelling building containing 30 units, food and drink outlets and shops – where the existing building on the subject land is locally heritage listed – where the height of the proposed development exceeds the height on the Building higher overlay map – where the appellants contend the development is unacceptable due to, inter alia, impact on heritage values and issues relating to traffic, density and built form – whether the proposed development will unacceptably impact on the heritage value of the locally-heritage-listed building – whether the built form of the proposed development is appropriate having regard to s 3.3.2.1(9) of City Plan – whether the proposed development will result in unacceptable traffic impacts – whether there are relevant matters that support approval – whether the proposed development should be approved in the exercise of the discretion PLANNING AND ENVIRONMENT – APPEAL – where the Chief Executive to the Department of State Development, Infrastructure, Local Government and Planning contends that the State development assessment provisions are a mandatory consideration – whether the appeal relates to the referral agency response – whether the Court must assess the development application against the State development assessment provisions
LEGISLATION:	Acts Interpretation Act 1954 (Qld) ss 14D, 32D Planning Act 2016 (Qld), ss 23, 43, 44, 45, 48, 54, 55, 56, 59, 60, 62, 65, 66, 229, sch 1, sch 2 Planning and Environment Court Act 2016 (Qld) ss 37, 43, 46, 47 Planning Regulation 2017 (Qld) ss 19, 20, 21, 22, 30, 31, 43, sch 10 Queensland Heritage Act 1992 (Qld) ss 112, 114, 122, 123 Queensland Heritage Regulation 2015 (Qld) sch 2 Statutory Instruments Act 1992 (Qld) ss 7, 23 Transport Infrastructure Act 1994 (Qld) ss 62, 70
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied Ashvan Investments Unit Trust v Brisbane City Council & Ors[2019] QPEC 16; [2019] QPELR 793, approved Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, distinguished Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, approved Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; (2017) QPELR 487, distinguished Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, approved Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409, distinguished I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 721, approved ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52; [2017] QPELR 1117, distinguished Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPELR 41, approved Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, applied K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, applied Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, approved McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, approved Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, approved Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, approved Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41 [2021] QPELR 592, distinguished The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, approved Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, approved Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, approved Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] LGERA 82; [2014] QPELR 686, applied
COUNSEL:	D Jones (direct brief) for the Appellant (Archer) M Batty and H Stephanos for the Respondent C L Hughes KC and B Rix for the Co-respondent K Buckley for the Co-respondent by Election D O’Brien KC and K Buckley for the Co-respondent by Election (for supplementary submissions only)
SOLICITORS:	The Appellant (Purcell) was self-represented McCullough Robertson for the Respondent Low Doherty and Stratford for the Co-respondent Minter Ellison for the Co-respondent by Election

Table 4—Material change of use of premises near a State transport corridor that is a future State transport corridor
Column 1	Column 2
1 Development application requiring referral	Development application for a material change of use other than an excluded material change of use, that is assessable development under a local categorising instrument, if all or part of the premises— (a) are within 25m of a State transport corridor; or (b) are a future State transport corridor; or (c) are— (i) adjacent to a road that intersects with a State-controlled road; and (ii) within 100m of the intersection
2 Referral agency	The chief executive
3 Limitations on referral agency’s powers	–
4 Matters referral agency’s assessment must be against	The State development assessment provisions
5 Matters referral agency’s assessment must have regard to	–
6 Matters referral agency’s assessment may be against	–
7 Matters referral agency’s assessment may have regard to	–
8 Fee for referral– …	…