Australand Holdings Ltd v Gold Coast City Council - [2007] QPEC 29

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Australand Holdings Ltd v Gold Coast City Council & Ors [2007] QPEC 029

PARTIES:

AUSTRALAND HOLDINGS LIMITED
Appellant

V

GOLD COAST CITY COUNCIL
Respondent

and

CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
First Co-Respondent

and

CHIEF EXECUTIVE OF THE ENVIRONMENTAL PROTECTION AGENCY
Second Co-Respondent

FILE NO/S:

No BD 1201 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

4 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30, 31 October and 1, 2 and 8 November 2006, with written submissions being received to 28 November 2006

JUDGE:

Rackemann DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Mr D R Gore QC, with him Mr T Trotter for the Appellant

Mr M Hinson SC, with him Mr S Ure for the Respondent

No appearance by or on behalf of Co-Respondents

SOLICITORS:

Allens Arthur Robinson for the Appellant

King & Co for the Respondent

Australand Holdings Limited (Australand) appeals against a decision of the Gold Coast City Council, made on 12 December 2005, to approve a development application, made on 4 May 2004, for, amongst other things, a preliminary approval, overriding the planning scheme, for a material change of use, to facilitate a master planned residential development.

Australand appeals against parts of the Council decision relating to the way in which the effect of the planning scheme for the land is to be varied and in relation to the conditions of approval.

The subject site, which comprises of the order of 30 hectares, is located at Oxenford Hope Island Road and Pendraat Parade, Hope Island. It has, in recent times, undergone extensive earthworks in association with the construction of the Hope Island canal, which it fronts. The site has an elongated shape running in a south-east to north-west direction, with a substantial water frontage of some 1578 metres[1]. A significant focus for the proposed development is an oval shaped inlet from the canal, which is proposed to be used as a private marina. The canal was constructed to overcome drainage and flooding constraints to development.
[1]Exhibit 17A

The site lies within a broader locality which features existing and proposed residential estates, golf courses and resorts. The Lion’s Haven Retirement Village is located to the east. To the west of the site, across Santa Barbara Road, is the Marina Shopping Village. The Hope Island canal adjoins the site to the north. North of the canal lies “The Pines” private golf course and residential development. On the southern side of the Oxenford Hope Island Road lies the Hope Island Golf Course.

The site is included within the Hope Island Local Area Plan (LAP) under the 2003 planning scheme. Version 1.0 of that LAP was replaced by version 1.0 on 7 March 2005, but without any amendment which is material for present purposes. The purpose of the LAP is:

“to maintain the diverse contrast of high quality resort/residential facilities, international hotels, new developing residential communities, small villages, marine industries, retail and tourist attraction in Hope Island. This LAP also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Australand Holdings Ltd v Gold Coast City Council

Details

AGLC: Australand Holdings Ltd v Gold Coast City Council [2007] QPEC 29
Case: [2007] QPEC 29
Decision Date: 4 April 2007

CaseChat Overview and Summary

Australand Holdings Limited (Australand) appeals against a decision of the Gold Coast City Council (Council) to approve a development application, made on 4 May 2004, for, amongst other things, a preliminary approval, overriding the planning scheme, for a material change of use, to facilitate a master planned residential development. Australand appeals against parts of the Council decision relating to the way in which the effect of the planning scheme for the land is to be varied and in relation to the conditions of approval. The primary focus of the appeal was the competing versions of the "walkable neighbourhoods" provisions and, in particular, the dispute as to whether continuous public access along 100 per cent of the site’s canal frontage ought to be provided for. Australand's proposed public access/bikeway/boardwalk system is, I am satisfied, appropriate. It would provide a functional link through the site, with connections at each end, to facilitate cyclist and pedestrian circulation through and beyond the site. It would not only be functional but would also provide an attractive amenity to users, who would enjoy what Mr Mainwaring referred to as a diverse, secure and stimulating experience, while circulating throughout the precinct. That experience would include reasonable and appropriate access to the canal front, particularly around the marina inlet, which is a focus of the development, will contribute to the quality of the environment and, as Mr Hassell attested, will be of an order of magnitude, in scenic quality, above that of the canal itself. While the proposal involves canal edge housing, something which is commonplace in the Gold Coast region (and elsewhere), it also provides ample canal edge park, including access to the activity around the marina inlet. The Council's preference relies significantly, for its justification, on the Australand site's importance in achieving a broader vision for a continuous public canal front pathway throughout the canal system to which the LAP applies. It is only the effect of the LAP for the subject site however, which can be varied in response to the subject application. The subject application is not an available vehicle to vary the effect of the LAP in relation to the broader area to which it relates and is not an appropriate vehicle for attempting to achieve that effect in this case. Further, the future pursuit and realisation of a continuous canal front pathway system over the entire 11 kilometre canal system, without deviation from a waterfront, is uncertain at present and the document which first proposed it (the HICMP) is now two years old, was subject to adverse submissions when informally notified and has not progressed to, or significantly towards, incorporation into the LAP. The appeal in relation to the variation concerning the pathway system should be allowed.

Orders