Archer v Council of the City of Gold Coast

In Archer v Council of the City of Gold Coast, the appellants, individuals who had submitted objections to the development application, challenged the Council’s approval of a proposal for the partial demolition and redevelopment of the Old Burleigh Theatre Arcade. The proposed development included the construction of a multi-dwelling building with 30 units, food and drink outlets, and shops. The existing building on the site is locally heritage listed, and the proposed height of the development exceeds the height indicated on the Building higher overlay map. The appellants argued that the development would unacceptably impact on the heritage values of the building, result in unacceptable traffic impacts, and be inappropriate in terms of built form, density, and traffic issues.

The primary legal issue before the court was whether the proposed development would unacceptably impact on the heritage values of the heritage-listed building and whether the built form of the development was appropriate under the relevant planning scheme. Additionally, the court needed to determine whether the development would result in unacceptable traffic impacts and whether there were relevant matters that would support the approval of the development. The court also had to consider whether the development should be approved in the exercise of the Council's discretion. Furthermore, the Chief Executive to the Department of State Development, Infrastructure, Local Government and Planning argued that the appeal related to the referral agency's response and whether the court must assess the development application against the State development assessment provisions.

The court examined the statutory framework governing appeals and determined that the appeal was an eligible submitter appeal against the decision made by the Council. The court concluded that while the appeal was a hearing anew, it did not need to undertake the assessment required by the assessment manager and the referral agency. Instead, the court was to determine whether the Council’s decision was legally sound, taking into account the statutory criteria and relevant planning policies. The court found that the Council had adequately considered the relevant statutory criteria and planning policies and that the development did not unacceptably impact on the heritage values of the building, was appropriate in terms of built form, and would not result in unacceptable traffic impacts. Consequently, the court dismissed the appeal.

The court ordered that the applications for costs thrown away by the adjournment of the hearing on 23 May 2022 be dismissed and adjourned the appeal 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.