Body Corporate for Lindor and Planit Consulting Pty Ltd v Gold Coast City Council
[2018] QPEC 54
•30 November 2018
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council &
Anor [2018] QPEC 054 PARTIES: BODY CORPORATE FOR LINDOR COMMUNITY
TITLES SCHEME 29204 and PLANIT CONSULTING
PTY LTD ACN 099 267 711(appellant) v GOLD COAST CITY COUNCIL (respondent) and KOMUNE PTY LTD ACN 094 641 817 (co-respondent) FILE NO/S: 2230/17 DIVISION: Planning and Environment PROCEEDING: Hearing ORIGINATING Planning and Environment Court of Queensland COURT: DELIVERED ON: 30 November 2018 DELIVERED AT: Brisbane, QEII HEARING 12 – 16 and 26 – 28 March, 1 August, 18 and 25 October and 29 November 2018. DATES: JUDGE: Rackemann DCJ ORDER: The appeal is allowed and the development application is
refusedCATCHWORDS: PLANNING AND ENVIRONMENT – SUBMITTER
APPEAL AGAINST APPROVAL of a high rise mixed use
development – where the council approved the application but contended that the appeal should be allowed – extent of conflict with 2003 planning scheme – weight to be given to 2016 planning scheme – height and scale, density, site
coverage, set backs, amenity, plot ratio, landscaped areas,
minimum site area, podium and tower design, reasonable
expectations – whether sufficient grounds to justify approval notwithstanding conflict – whether height and density provisions overtaken by events – infill higher density development – character, amenity and consistency of built
form, traffic benefit, open space, need and economic benefits, optimising development, whether conflict mitigated by 2016 planning scheme.
COUNSEL: M Batty for the Appellant B Job QC for the Respondent C Hughes QC and J Lyons for the Co-Respondent SOLICITORS: Thomson Geer for the Applicant Corrs Chambers Westgarth for the Respondent McCullough Robertson for the Co-Respondent
Contents
Introduction .......................................................................................................................... 5
The land and the locality ...................................................................................................... 5
The proposal ......................................................................................................................... 5
The assessment regime ......................................................................................................... 7
The issues ............................................................................................................................. 8
The 2003 Planning Scheme .................................................................................................. 8
(i) Higher order provisions ............................................................................................................ 8
(ii) The LAP ................................................................................................................................... 10
(A) The intent ............................................................................................................................. 11
(B) The desired environmental outcomes.................................................................................. 13
(C) The local features statement ................................................................................................ 13
(D) Precinct intent ...................................................................................................................... 14
(E) Table of development ........................................................................................................... 15
(F) Place code ............................................................................................................................. 16(iii) High rise residential and tourist accommodation code ........................................................ 28
The 2016 Planning Scheme ................................................................................................ 29
(i) The strategic framework ......................................................................................................... 31
(ii) High Density Residential Zone Code ...................................................................................... 34(iii) The High-Rise Accommodation Design Code ........................................................................ 39
Reasonable expectations ..................................................................................................... 42
Grounds .............................................................................................................................. 42
Overtaken by events (grounds (g) and (i)) ......................................................................... 45
The SEQRP and infill higher density development (grounds (d) and (dd) ........................ 48
Character, Amenity and Consistency of Built Form (grounds (e) and (j)) ......................... 49
Traffic benefit (ground (f)) ................................................................................................. 50
Open space (ground (ee)) ................................................................................................... 50
Need and economic benefits (grounds (aa), (a), (b), (bb), (cc)) ......................................... 50
Optimising development (ground (c)) ................................................................................ 57
Conflict moderated by the 2016 scheme (ground (h)) ....................................................... 58
Conclusion on conflict and grounds ................................................................................... 58
Conclusion .......................................................................................................................... 59Introduction
[1] This submitter appeal is against the decision of the respondent Council to approve a
development application by the co-respondent. The application is for a development
permit for a material change of use to facilitate the development of a high rise mixed-
use development. The proposed development is on land situated at 114 and 144
Marine Parade Coolangatta and more particularly described as lot 0 on SP160635 (lot
0) and lot 1 on SP235706 (lot 1). Although the Council approved the application, it
advised on 7 March 2018 that it no longer supported approval and was of the view
that the appeal should be allowed.[1]
[1] Exhibit 1.
The land and the locality
[2] The land comprises 2 allotments both of which are developed. Lot 0 is presently
developed as the four-storey Beach Lodge apartments. Lot 1 is presently developed
and operated as the ten-storey Komune resort and beach club. The land has an area
of 1,740m[2] and is a rectangular shaped corner site with three street frontages: Marine
Parade to the north, Hill Street to the east and Boundary Street to the south. As a
result, it has only one adjoining neighbour, being the appellant’s building to the
immediate west.
[2] Ex FG 10 para 20.
[3] Marine Parade is the esplanade along the southern Gold Coast beaches of Kirra,
Coolangatta and Greenmount. The subject land is situated at the eastern end of
Marine Parade at the end of the Coolangatta esplanade and opposite the Coolangatta-
Tweed Heads Surf Club. Development within Coolangatta, and along Marine Parade
in particular, features high-rise building. There is however, a change in the scale of
that development with buildings to the west of Clarke Street being significantly larger
and taller than those to the east, where the relevant site falls.2
The proposal
[4] The proposed development is a 24 level (27 storeys for the purposes of the 2003
Planning Scheme) building comprising:
a resort hotel containing a five star 100 suite resort (with each suite containing one bedroom); an apartment component containing 94 residential apartments; and a restaurant, café and shop.
[5] The different elements of the proposed development are spread throughout the
building as follows:
at ground floor: retail and likely restaurant and café tenancies facing the ocean and the foyer for the five star hotel; at the podium level:
(i) a reflection pool along the Marine Parade and Hill Street boundary as well as other recreational areas including pool
deck, day-spa deck, a lawn and market gardens;
(ii) a day-spa for residents and guests; and
(iii) a fitness/conference facility for hotel guests along with other
resort facilities for hotel guests;
at levels 3-5: the beach lodge units in which the residents of the existing beach lodge building will be accommodated; at levels 6-10: the accommodation rooms for the five star hotel; at levels 11-15: two and three bedroom apartments (4 x 2 bedroom apartments and 2 x 3 bedroom apartments); at levels 16-21: two and three bedroom apartments (2 x 2 bedroom apartments and 4 x 3 bedroom apartments); at level 22: four penthouses (each comprising three bedrooms), and at level 23 the active rooftop, which is open to the public and comprises:
(i) an infinity pool which faces the ocean; (ii) lounge and dining areas; (iii) a bar; (iv) dining and function facilities; and (v) a wedding and function area.
[6] The proposed building:
has a maximum building height of 82.05 metres; has a podium of 9.45 metres in height; is of considerable width, being in the order of 50 – 51 metres for the tower;[3] has a total GFA of 19,714m2 equating to a plot ratio of 11.33; has a site cover of:
(i) 97.1% at podium; (ii) between 48.5% and 52.6% at tower levels; and (iii) 65.8% at roof terrace; has varying building setbacks, including built-to-boundary sections at ground level; has a vehicular access from both Boundary Street and Hill Street but removes all vehicular access from Marine Parade; incorporates landscaping on the street, at the podium deck and on the roof deck; includes communal open space facilities at both podium and roof levels for the total of approximately 1,792 m2; and has a total of 155 on-site car parking spaces. [3] Ex FG 8 para 18.
The assessment regime
[7] The Sustainable Planning Act 2009 (SPA) was in force at the time the development
application was made and at the time the appeal was commenced. The SPA continues
to apply to the appeal notwithstanding that the Planning Act 2016 took effect in July
2017.[4]
[4] See Planning Act 2016 section 311.
[8] The application, being an impact assessable development application, is to be
assessed having regard to ss 314(2) and (3) of the SPA and should be decided in
accordance with ss 324 and section 326 of the SPA.
[9] Section 326 of the SPA provides that an assessment manager’s decision must not
conflict with a relevant instrument unless there are grounds to justify the decision.
Relevant instruments include a Planning Scheme.
[10] The appeal proceeds by way of a hearing anew[5] and the co-respondent bears the onus
of establishing that the appeal should be dismissed.[6] The court must decide the appeal
based on the laws and policies applying when the application was made but may give
weight to any new laws and policies that the court considers appropriate.
Accordingly, in this case, the appeal is to be decided based on the 2003 Planning
Scheme but the court may give weight to the 2016 Planning Scheme.
[5] Sections 495(1).
[6] Section 493(2).
The issues
[11] The issues in the appeal may be summarised as:
the extent of conflict with the 2003 Planning Scheme; the weight to be given to the 2016 Planning Scheme and the extent of conflict with that scheme; and whether there are grounds which would justify a decision to approve the application notwithstanding conflict with an applicable planning instrument.
[12] At the heart of the alleged conflicts are matters concerning the height, scale, density,
site cover, plot ratio and setbacks of the building and issues of amenity. The co-
respondent accepts that there is conflict with the planning provisions, but disputes the
extent of the conflict.
The 2003 Planning Scheme
(i) Higher order provisions
[13] The 2003 Planning Scheme is divided into seven parts. The second part concerns
Desired Environmental Outcomes (DEOs). DEOs are expressed in terms of broad
policy outcomes which seek to achieve ecological sustainability for the city as a
whole.
[14] It was pointed out, for the co-respondent,[7] that its proposal, subject to not having
unacceptable amenity impacts, would further some DEOs and objectives concerning
development in and around Activity Centres maximising accessibility to places of employment, the enhancement of the tourism industry and the provision of a diverse
range of housing choice.
[7] Para 110 of the submissions on behalf of the developer Komune Pty Ltd. That paragraph asserts an absence of unacceptable amenity impacts, but I have found an unacceptable impact on character and visual amenity.
[15] The appellant alleged conflict with a number of DEOs, but, in the course of
submissions, was prepared to confine its case in relation to the 2003 Planning Scheme
to conflict with the Coolangatta Local Area Plan (LAP).
[16] The respondent alleged conflict with DEO SOC.1 and Planning Objective 1.3. My
ultimate conclusion is not dependent on my finding with respect to conflict with these
provisions. The DEO provides as follows:
“the establishment, conservation and enhancement of local character and the
promotion of a distinctive local identity and sense of place for the various
communities of Gold Coast City”.
[17] I accept the submission on behalf of the co-respondent that the relevant community
is that of Coolongatta. That community derives its local character, local identity and
sense of place from precincts which are dealt with in the LAP (discussed later). For
the reasons given later the proposal would not conserve or enhance local character.
[18] Planning objective SOC 1.3 is as follows:
“to achieve a built form which highlights the basic structural elements of the
city’s development pattern and maintain clarity in character between the
various component parts.”
[19] It was submitted, for the co-respondent, that the words ‘basic structural elements’ and
the fact that they support a city wide DEO “highlight a broad-brush application of this
provision”. It was contended that the proposal, being a high rise built form, highlights
the basic structural element of development and character in this part of the city. As
is observed later, on a city-wide level, Coolangatta is a major concentration of high-
rise development on the edge of the city. The respondent did not address submissions
in relation to whether the built form highlights ‘the basic structural elements’ of the
city’s development pattern. It was instead submitted, on its behalf, that the proposal
does not maintain clarity in character between the various ‘component parts’,
particularly precincts 1 and 2 of the relevant local area plan (discussed later). That
contention, which depends on the meaning of ‘component parts’; and whether they
extend to individual precincts within a local area plan, was not addressed by the co- respondent. Ultimately, it is unnecessary for me to express a concluded view in
relation to this aspect the case. My ultimate conclusion is not dependent on whether
there is conflict with this provision.
[20] Part 3 of the Planning Scheme adopts a broad city-wide strategy to achieve ecological
sustainability. That planning strategy contains two major components: key strategies
that apply across the entire city; and land use themes that apply to particular parts of
the city. One of the key strategies is the city image and townscape strategy. The key
elements and relationships of the city’s landscape and form are shown on four city
image planning strategy maps. As was pointed out for the co-respondent, they
include: PS11 which shows Coolangatta/Tweed as a major concentration along the
high-rise spine; and PS13 which shows Coolangatta/Tweed as “city edges – high-
rise”.[8] The proposal is consistent with those designations.
[8] It also shows the “Coolangatta town centre” as a primary visual node. The subject site lies beyond
[21] Under the 2003 Planning Scheme ‘high-rise’ was defined to be any building with a
height of five storeys or more above mean ground level. On a city-wide level,
Coolangatta is a major concentration of high-rise development on the edge of the city.
That is not to say however, that there may not be particular intents for particular
precincts within Coolangatta at a more detailed planning level.[9]
[9] Discussed later in the context of the Local Area Plan.
(ii) The LAP
[22] The site falls within the Coolangatta LAP in the 2003 Planning Scheme. The purpose
of such plans was to indicate that parts of the city were divided into special planning
units with unique characteristics for the purposes of land use and development
control. They identified areas of the city with a particular local identity, or
development character, that would benefit from consistent planning guidance and
development control. The Coolangatta LAP is comprised of:
an intent provision for the local area; DEOs; a local area features statement; intent statements for various precincts; a table of development; and a place code.
(A) The intent
[23] The statement of intent for the LAP is as follows:
“The purpose of this local area plan (LAP) is to provide for the
integrated and detailed planning of the Coolangatta central area, which
is recognised as a regional centre in the Gold Coast system of activity
centres, and the major centre for the southern part of the Gold Coast.
It is intended to develop as an economically diverse, functional and
robust centre providing for the needs of its local population and
regional catchment, and continue to build on its role as an important
tourist destination.
Only high quality developments, which ensure that Coolangatta
continues to evolve as the signature southern beach-side destination
and major southern centre of Gold Coast city are preferred. New
developments should respond to the natural physical environment of
Coolangatta by including these attributes as key considerations of
design. Proposals that provide for the rejuvenation of existing
buildings are appropriate provided they contribute to the creation of a
higher quality and more liveable built environment, and do not
compromise future intended development opportunities in that
locality.
Coolangatta will be Gold Coast’s pre-eminent southern beach-side
destination and a magnet for foreshore leisure, community and cultural
activities. It will be orientated to serve a wide range of ages and
groups, be focused on the beaches and adjacent town centre and cater
for holiday makers and residents alike. The environmental and
physical features of the beaches (North Kirra Beach, Kirra Beach,
Coolangatta Beach, Greenmount Beach and Rainbow Bay), including
water quality, and the visual prominence of Kirra, Greenmount,
Snapper Rocks and Point Danger Headlands will be recognised for their ecological, recreational and scenic values and for their
contribution to the character, culture and lifestyle of Coolangatta”.
[24] It was submitted for the co-respondent that there is much in the statement of intent
with which the subject proposal is consistent, in that it would:
contribute to an economically diverse functional and robust centre providing for the needs of its users;
further the role of Coolangatta as an important tourist destination; provide a high quality mixed-use development to assist in ensuring Coolangatta will continue to evolve as the signature southern beach destination and major southern centre of the Gold Coast city; involve the rejuvenation of the existing aged buildings by their replacement with a higher quality more liveable environment for many residents and visitors; assist with Coolangatta being identified as the city’s pre-eminent southern beach-side destination; and act as a “magnet” for leisure and cultural activities that serve a wide range of ages and groups and caters for both holiday makers and residents, through the provision of a range of accommodation types, a five-star hotel with a “wellness spa”, wedding and conference facilities and attractive public rooftop facilities. [25] The claims of contribution to the centre should be seen in light of the fact that the site
is not within the centre precinct under the LAP. I otherwise accept the submissions.
[26] The intent also expresses a concern for the visual prominence of the Greenmount
Headland. Mr Peabody, Mr Powell and Mr McGowan, did not consider that the
proposal would detract from the prominence of Greenmount. Mr Peabody
acknowledged[10] that the visual relationship of the proposal with Greenmount Hill was
[10] Ex FG 9 para 3.1.1.8, and 3.1.2.23(f).
a matter for the visual amenity experts but, from an architectural perspective,
considered[11] that the proposal was sufficiently separated so as not to overcrowd the
skyline or dilute the appearance of Greenmount Hill. Mr Powell considered that “on
weighing and balancing everything together” it was hard to see that the proposal
would detract from the visual prominence of the hill. Mr McGowan opined[12] that the
‘abrupt transition’ constituted by the proposal would still provide enough separation
from the headland to maintain its prominence and would provide a more obvious form
to punctuate the landscape feature. He considered that there was enough ‘breathing
space’ between the proposal and the headland such that the qualities of the headland
would not be eroded despite the building being ‘relatively large’.
[11] T3 – 22.
[12] Ex FG 8 paras 157(d) and 194(e), T2-47.
[27] The appellant, in light of the oral evidence and the submissions of the co-respondent,
elected not to maintain an allegation of conflict with the intent of the LAP.[13] The
respondent did not identify the intent as one of the provisions with which it alleged
conflict.[14]
[13] Para 52 (a) of the further written submissions on behalf of the appellant.
[14] See para 3 (a) of the submissions of the respondent.
(B) The desired environmental outcomes
[28] The desired environmental outcomes include the following with which the appellants
and the respondent alleged conflict:
3.5 The impacts of unit and tower development are managed so that the amenity of surrounding locations is not adversely impacted (refer to soc 5).
[29] The specific impacts of the development on residential amenity are considered
elsewhere and are not undue, but for the reasons discussed later there will be an undue
impact on character and visual amenity.
(C) The local features statement
[30] The local features statement includes the following:
“Appropriate development will have regard to its setting and
incorporate appropriate measures to mitigate offsite impacts
(including visual amenity, identified view corridor protection and
overshadowing impacts)”.
[31] The appellants asserted that the proposal does not have appropriate regard to its
setting (i.e. outside of the Coolangatta Centre in circumstances where the co-
respondent seeks a built form that is more intense and taller than the built form in the
centre) or incorporate appropriate measures to mitigate off-site impacts (i.e. visual amenity, in that the proposed development would be of an inappropriate height, bulk,
scale, plot ratio etc.). For the reasons stated elsewhere I accept those contentions.
(D) Precinct intent
[32] The site falls within Precinct 2 (Point Danger, Rainbow Bay and Geenmount Hill) of
the LAP. The statement of intent for Precinct 2 is as follows:
“This precinct is intended to comprise a mix of permanent residential
accommodation, visitor accommodation and local services that serve
the resident and visitor population. Development is intended to be at
a lesser intensity and scale than in the centre.
Local services are intended to be of a scale which does not undermine
centre uses, and does not create residential amenity impacts. These
local services are intended to be concentrated in locations currently
accommodating non-residential uses, highlighted on Coolangatta LAP
map 8.2 – Precincts in the hashed areas of Precinct 2.
The hashed areas in this precinct include the only land in the Precinct
intended for local services to serve the needs of local residents and
visitors. Uses, which are more suited to being located in the centre,
are not appropriate. New development is intended to be mixed use
and retain local service functions at ground level. Protection of
existing vegetation and existing views/site lines across the bay is
envisaged throughout the precinct.”
[33] The intent for the Coolangatta centre (Precinct 1) is as follows:
“This precinct offers the highest development potential in the Local Area
Plan appropriate to a Regional Centre, particularly between Marine Parade
and Griffith St; with uses preferred including a wide range of commercial
activities, retail shops, offices, entertainment, community services, and
tourist and residential accommodation. Car parking is to be designed so it
does not form a dominant part of the streetscape. It is necessary to
accommodate a transition between the centre core and the tourism residential uses adjoining in Precinct 2 therefore it has been divided into two sub-
precincts:
Sub-precinct 1a – Central Core Sub-precinct 1b – Transition Area”
[34] The intent for the Transition Area is as follows:
“Land between MacDonald and Clarke Street is intended to provide a
transition area between the centre and Greenmount Hill, with the focus
on maintaining active street frontages of a continuous shopping strip
along Griffith Street. High rise residential, resort development, and
mixed use retail is appropriate, providing amenity impacts can be
managed with the scale of development to be less than that found in
central core area. Access to a lot should be limited to Marine Parade.
Active street frontages is also desirable along Marine Parade.”
[35] The intent for Precinct 2 is for development to be of a lesser scale and intensity than
both the central core and the transition area of the centre. The proposal, which would
be the largest development in Coolangatta, conflicts with the intent for Precinct 2.
Indeed the co-respondent accepted that there is conflict with the expectation that
development in Precinct 2 will be of a lesser intensity and scale than in the centre[15].
[15] Submissions on behalf of the developer para 127(b)
(E) Table of development
[36] The LAP includes a table of development. Pursuant to s 7.6.1 of chapter 2 of division
1 of part 6 of the town plan any use not listed in section A of the table of development
should be considered undesirable or inappropriate in the LAP or LAP precinct.
Some point was initially taken about ‘restaurant’ and ‘shop’ not being listed in section
A of the table of development for Precinct 2. However, both the appellant and the
respondent abandoned reliance on any inconsistent use point.
(F) Place code
[37] The LAP includes a place code with performance criteria and acceptable solutions.
Development that does not comply with an acceptable solution may present an
alternative solution to demonstrate compliance with the relevant performance
criterion in order to satisfy the requirements of the code. PC1 relates to building
height, it provides as follows:
Building Height
PC1 AS1 The height and scale of new The maximum height of buildings buildings must: in each precinct does not exceed
(a) be consistent with the height and scale the relevant maximum shown on of existing buildings; Coolangatta LAP map 8.2 – (b) reflect transition between precincts; (c) reflect the role of Coolangatta as a building heights. “Regional Centre”; (d) reinforce the distinctive high rise spine of the coastal strip and not negatively impact on neighbouring sites.
[38] LAP map 8.3 shows the subject site within a 10 storey maximum building height area.
There is obvious non-conformity with the acceptable solution. Indeed, at 27 storeys
as defined in the 2003 Planning Scheme, the proposal would not conform to the
acceptable solution even if it were located within the centre where maximum building
height is 25 storeys for precinct 1a and 15 storeys for precinct 1b. It was submitted
for the co-respondent that the proposal nevertheless satisfies the performance
criterion. It was submitted, for the appellants, that the ‘primary’ conflict with the
performance criterion is with sub-paragraph (b) although there is, it was contended,
also conflict with sub-paragraph (a). It was submitted for the respondent that there is
conflict with sub-paragraph (b).
[39] It was submitted for the co-respondent that the proposal satisfies sub-paragraph (a).
The proposal is not of a height and scale which is consistent with buildings within
Precinct 2 where the subject site lies between Clarke Street and Hill Street. Indeed, I
accept the evidence of Mr Mack that the proposal is not consistent with buildings
within Precinct 2 more generally, it being of a height and scale substantially greater
than even the high-rise buildings in precinct 2 at Rainbow Bay.[16] However, as was
[16] See Mack T3-34.
pointed out for the co-respondent, sub-paragraph (a) of the performance criterion is
not limited in its focus to buildings within the same block or the same precinct.
Indeed, the drafting does not provide any description of the location of the existing
buildings with which the subject must be compared. This differs from other
performance criteria which are expressly focused on the precinct in which the
development is located. In such circumstances it is difficult to simply ignore the
height of existing buildings beyond the precinct boundary. When regard is had to the
height and scale of existing buildings in Coolangatta more generally, particularly in
the centre where there are three buildings Sanbano (26 storeys), Northpoint (24
storeys) and Ocean Apartments (26 storeys) of similar height, the proposal can be
seen to be broadly consistent for the purposes of sub-paragraph (a).[17]
[17] See Powell, Ex FG 8 para 185, T3-26 line 4.
[40] It was also submitted for the co-respondent that no conflict arises with sub-paragraph
(b) because the site is not in a position of transition between precincts. I do not accept
that application of the provision. The transition which is referred to is that achieved
by having development of different height and scale in different precincts.
Relevantly, for present purposes, the transition which development on the subject site
should reflect is the transition from the centre and its two sub-precincts to the lesser
height and scale of development in Precinct 2. As Mr McGowan accepted[18], the
development of the proposal would not reflect such a transition. It rivals anything in
Precinct 1. The proposal conflicts with PC1.
[18] T2-54 line 35, T3 – 6 line 18. See also Powell Ex FG8 para 186, T3-19 line 44, Peabody T2-21 l 43
[41] It was submitted for the correspondent that any transition is compromised by the
existence of the Reflections towers and by council’s planning in the 2016 planning
scheme. The Reflections towers are within precinct 1b and are not as tall as the tallest
buildings in precinct 1a. Further the eastern most tower steps down to an extent at its eastern end. The existence of this development does not mean that the proposal is not
in conflict with PC1. The 2016 planning scheme is considered later. It also provides
for a gradation in maximum building height with greater building heights in the centre
than at the subject site. It provides for a 50% uplift in height, which if applied, has
some potential to affect the transition, but it is subject to certain conditions and it does
not contemplate development on the subject site to the height proposed.
[42] It was also submitted for the co-respondent that this provision needed to be considered
in the context that issues in relation to height are in a state of ‘flux’ given that the
council is reviewing the height mapping for the planning scheme area. For the
reasons given later, the council’s process in that regard has not progressed to the point
where one would put the planning documents to one side.
[43] PC2 of the LAP deals with accommodation density. It provides as follows:
Accommodation Density
PC2 AS2.1 Accommodation density must be consistent The dwelling density is one dwelling per with the character and intent of the precinct lot; in which the development is located. OR AS2.2 The maximum dwelling density in any precinct does not exceed the relevant accommodation density (RD number) shown for that precinct on Coolangatta LAP Map 8.4 – maximum residential density.
[44] According to map 8.4 the land is located in Precinct RD-7. In that precinct the
maximum residential density is one bedroom per 25m2 of site area. The density of
the proposed development equates to one bedroom per 5.44m2 of net site area[19] which
is more than four times the density of the acceptable solution.
[19] Ex FG 9 pg 24 para 3.1.3.2
[45] The proposal is also in conflict with the performance criteria in that it is not consistent
with either the character or the intent of the precinct in which it is located.
Mr Peabody could not point to anything within Precinct 2 that has a density of
anything like what is proposed and conceded that the proposal was not consistent with the character of Precinct 2.[20] Insofar as the intent of the precinct is concerned, it was
accepted, on behalf of the co-respondent, that the proposal is in conflict with the intent
for development to be at a lesser intensity and scale than in the centre.[21] It is
noteworthy that the density is more than double that which would be compliant with
the acceptable solution in the Coolangatta Centre.
[20] T2–22 ll 23-27.
[21] Submissions on behalf of the developer para 146(a).
[46] Mr Peabody expressed the view[22] that the proposal “responded to the unique situation
of the site with three street frontages” which afforded the opportunity to allow for a
greater density without impacting on the amenity of the neighbouring context.
However, in cross-examination he conceded that there were a number of other lots in
the locality with the same feature.[23] Further, the test is one of consistency with
character and intent rather than amenity generally and, in any event, the excessive
density of the proposal by reference to the character and intent of the precinct within
which it falls is an aspect of the development which contributes to its detrimental
impact on character and visual amenity[24] (discussed later).
[22] FG 9 pg 25 para 3.1.3.11.
[23] T2-31 – T2-32.
[24] See also Adamson Ex FG10 para 179.
[47] In this context, I accept Mr Mack’s opinion that the density of the proposal is
conspicuously out of step with the character and intent of the precinct within which
it is located.[25] Both Mr Peabody[26] and Mr Schneider[27] acknowledged conflict with
the performance criterion. However, Mr Peabody expressed the view[28] that the design
outcome is consistent with the character and intent of what he referred to as the
‘esplanade precinct’, which takes in the land along the esplanade including that in the
centre. That precinct is however, a construct of his own. It is not reflected in the
planning scheme. The performance criterion requires attention to the precinct in
which the development is located under the planning scheme which, in this case, is
precinct 2. The proposal is in conflict with PC2.
[25] Ex 9 pg 24 para 3.1.3.7, see also Adamson Ex FG 10 para 179.
[26] T2–34.
[27] Ex FG 10 pg 53 para 291(c).
[28] Ex FG 9 paras 3.1.3.9 and 3.1.3.12.
[48] PC3 of the LAP deals with site coverage and provides as follows:
Site Coverage
PC3 AS3.1.1 Site coverage must be consistent with the The maximum site coverage for any character and intent of the precinct in development does not exceed the following: which it is located. Precinct 1a 90 percent for the first three storeys and 40 per
cent thereafter
Precinct 1b 75 per cent for the first three storeys and 40 per cent thereafter Precinct 2 40 per cent Precinct 3 10 per cent Precinct 4, 5, 6, 7 40 per cent; and 8 OR AS3.1.2 In Precincts 2, 4, 5, 6, 7 and 8, the maximum
site coverage for a detached dwelling does
not exceed 50 per cent.
[49] The applicable acceptable solution site cover is 40%. The proposal has a site
coverage of 97.1% for the podium element, 48.5% to 52.6% for the tower element
and 65.8% for the roof terrace. The proposal therefore departs from the acceptable
solution. Indeed the site cover is greater even than that provided for in the acceptable
solution in respect of Precinct 1a which has the highest site cover for the first three
storeys.
[50] There is also conflict with the performance criterion.[29] Insofar as the character of the
[29] See Adamson Ex FG 10 para 191.
precinct is concerned, the co-respondent did not point to any other development in
the precinct which could be said to have a site coverage consistent with that proposed.
In the joint report of the architects, Mr Peabody opined[30] that the proposal was
consistent with the character and intent of the ‘esplanade precinct’, but that is not the
subject of the provision. Mr Peabody again relied upon the ‘unique situation’ of the
site with its three street frontages in affording the opportunity for greater site cover without adversely affecting the amenity of the neighbouring context,[31] but the site is
not unique in having three street frontages, the test is not a general amenity test and,
in any event, the excessive site cover relative to the character and intent of the precinct
in which the site falls contributes to the proposals adverse impact on character and
visual amenity (discussed later).
[30] Ex FG 9 para 3.1.4.12.
[31] Ex FG 9 para 3.1.4.11.
[51] Mr Mack said that the site cover is inconsistent with the character of the precinct.[32] I
accept his evidence on this. Indeed Mr Peabody conceded in cross-examination that
the site cover is not consistent with the character of Precinct 2.[33] Again the proposal
conflicts with the intent for development of a lesser intensity and scale than in the
centre. The proposal conflicts with PC3.
[32] Ex FG 8 para 73, Ex FG 9 para 3.1.4.4.
[33] T2-23.
[52] Setbacks up to 3 storeys are dealt with in PC4 of the LAP which provides as follows:
Building setback (up to 3 storeys)
Mixed use or commercial buildings – all Mixed use or commercial buildings – all precincts precincts PC4 AS4.1 Building bulk must be greatest within the The building has a: first 3 storeys, graduating to towers above,
(a)
frontage setback that may vary and achieve an average of 1.5 metres for
to ensure that the resulting built form is not
the first storey and a further 3 metres
bulky and visually intrusive. Setbacks for the second and third storeys;
(b) zero side or rear setbacks up to a
must contribute to an interesting
height of three storeys.
streetscape, visual amenity, and the
perception of spaciousness, whilst not
interrupting the streetscape appearance.
[53] The proposal departs from AS4.1 and so it is necessary to assess the proposal against
PC4. The building does have its greatest bulk in the first three storeys and graduates
to the tower above, but the resulting built form is still bulky and visually intrusive and
the negligible setbacks do not contribute to an interesting streetscape, visual amenity,
or the perception of spaciousness[34] and would interrupt the streetscape appearance.
[34] See Adamson Ex FG 10 para 202, 222.
In this respect:
the podium of the proposed development has a site cover of 97% (i.e. it occupies almost all of the land); the setbacks of the proposal are generally zero metres at ground to Marine Parade and zero metres at podium to Marine Parade; setbacks of the proposal to the Lindor boundary are one metre at ground level and one metre at podium; setbacks of the proposal are generally zero metres at ground to Hill Street and zero metres at podium to Hill Street; the setbacks of the proposal are generally zero metres at ground to Boundary Street and zero metres at podium to Boundary Street; Mr McGowan acknowledged that:
(i) the overall bulk of the proposal would be substantial;[35] (ii) there are no buildings outside of Precinct 1 that would be as [35] T2-61.
bulky as the proposed development;[36]
(iii) the bulk of the building is a function of both its height and
width;[37] and
(iv) on pure numbers the proposed development would be the
bulkiest building in the whole of Coolangatta.[38]
[36] T2-61.
[37] T2-61.
[38] T2-62.
[54] The proposal is one of considerable bulk and its excessive height, bulk, scale and
intensity produces a building which is both bulky and visually intrusive[39] as can be
appreciated from the photomontages.
[39] Ex FG 10 paras 202 and 222(a).
[55] The provision calls for setbacks to contribute to certain things. One of those is a
perception of spaciousness. In the architects’ joint report Mr Peabody expressed the
view[40] that the wider envelope of the podium element with the tower element further
[40] Ex FG 9 para 3.1.6.15(d).
setback will, at street level, enhance the perceptions of spaciousness with the tower
element physically separated and not appearing to be overbearing to the streetscape.
That however, overlooks the effect of the podium itself, and its relative lack of
setback, on a perception of spaciousness. In the course of cross-examination Mr
Peabody expressed the view that the podium and its relationship with the streetscape
did offer a sense of spaciousness through materials, detail and articulation of the ground shop front plane[41], but the provision calls for setbacks which contribute to a
perception of spaciousness. This part of PC4 envisages the use of setbacks but
effectively none is provided to the street frontage. The proposed development would
not have setbacks that contribute to a perception of spaciousness. Similarly, there is
nothing about the minimal setbacks which contributes to visual amenity.
[41] T2-40.
[56] Insofar as the streetscape is concerned, Mr Peabody[42] saw the extent of variation of
[42] Ex FG 9 para 3.1.6.15(c) and (e).
setbacks at each level as contributing to an interesting streetscape and the composition
of the podium and tower elements, including the setback arrangements, as enhancing
the streetscape appearance and defining the edge of the ‘esplanade precinct’ whilst
activating the streetscape with restaurant, café and shop facilities. As has already been
observed however, the ‘esplanade precinct’ is not recognised by the planning scheme.
The subject site falls within a part of Marine Parade between Clarke and Hill Streets
where development generally has similar building setbacks to road frontages and
contains landscaping including trees at street level.[43] In context, the setbacks would
not positively contribute to an interesting streetscape but would interrupt the
streetscape appearance.[44]
[43] Ex FG 10 para 237.
[44] Ex FG 10 para 207, 222(b).
[57] The proposal conflicts with PC4.
[58] Setbacks above 3 storeys are dealt with in PC6 which provides as follows:
Building Setback (Above Three Storeys)
Mixed Use or Commercial Buildings – Mixed Use or Commercial Buildings – All Precincts All Precincts PC6 AS6.1 The upper storeys of buildings must not Above three storeys, the tower setback at cause adverse impact on neighbouring least 3 metres from all podium edges which sites. The development opportunities of have a street frontage. neighbouring sites must be considered when assessing impacts of development. AS6.2
The tower is setback 2 metres from inside
the podium edge for the initial two storeys
plus 0.5 metres for every 3 metres (or part
thereof) measured to the outermostprojection of the remainder of the tower.
[59] The proposal departs from the acceptable solutions[45] and so requires assessment
against the performance criterion. The adverse impacts upon neighbouring sites which could be said to arise from setbacks and which were relied upon were those
relating to impacts on views and overshadowing on occupants of Lindor in those
respects. For the reasons discussed elsewhere there are no significant adverse impacts
on Lindor in those respects. The proposal does not conflict with PC6.
[45] T2-40
[60] Amenity is dealt with in PC 24 as follows:
Amenity Protection
PC24 AS24 A new use must not detract from the amenity No acceptable solution provided. of the local area, having regard, but not limited, to the impact of: (a) noise; (b) hours of operation;
(c) traffic;
(d) lighting;
(e) signage;
(f) visual amenity;
(g) privacy;(h) odour and emissions.
[61] It has already been noted that the proposal has only one neighbour (Lindor). As Mr
Ovenden acknowledged,[46] specific amenity impacts, such as noise, can be managed
through the imposition of conditions on any approval. Traffic issues raised by the
appellant were not pursued as reasons for refusal. Ultimately, the two specific impacts
on residential amenity upon which some reliance was placed were: impacts on views;
and overshadowing. It was conceded in the appellant’s submissions however, that the
court would not refuse the proposal solely on the basis of those impacts.
[46] T5-67.
[62] Understandably, Lindor has been developed to take advantage of its northerly aspect
to the beach. Those expansive and attractive views would not be interrupted by the
proposal. The proposal would have some impact on secondary views to the east, but
the extent of the effect (compared to a building which adopted the acceptable
solutions) does not represent a significant diminution of overall amenity.
[63] The proposal would cast a greater shadow than one which adopted the acceptable
solutions. That would affect the eastern balconies off the main bedrooms of the Lindor
apartments to some extent. Those balconies would however, be out of shadow by
10:30 am in the winter solstice. Further, there are other balconies which offer access
to sunlight. The impact is not significantly adverse.
[64] It was also contended by the appellant and the respondent that the proposal would
have an adverse impact in terms of character and visual amenity. That impact would
arise, it was contended, from the excessive height, bulk, scale, plot ratio, site cover
and density of the proposal. It was submitted for the co-respondent that the proposed
development would simply be another high-rise-development in a locality replete
with this form of development and accordingly would be harmonious with the
character of the locality.
[65] The approach of the co-respondent and its witnesses focused on the large and tall
buildings which exist in the Coolangatta centre and the relationship the proposal
would have with that development. Mr Peabody saw the context and character of the
land as having a stronger connection with what he referred to as the ‘esplanade
precinct’ along the length of Marine Parade, between Kirra and Greenmount, which
is predominantly in the centre, than with the areas of Greenmount Hill, Rainbow Bay
and Point Danger within precinct 2.[47] That connection to the ‘esplanade precinct’ is
not however, reflected in the planning documents (which treat the centre quite
differently to the land in Precinct 2) or in the existing development (which features a
change in the scale of development to the east of Clarke Street).
[47] Ex FG 9 para 2.27.
[66] Whilst I have accepted, for the purpose of PC1(a) of the Place Code that the proposal
is broadly consistent with the height and scale of the existing buildings in
Coolangatta, I also accept Mr Mack’s evidence that there is a strong distinction
between development in the centre in Precinct 1 and that to the immediate east in
Precinct 2, where development is at a lesser scale and intensity.[48] The development
[48] Ex FG 8 para 192(a).
of the proposal on the subject site would, as he pointed out, be out of scale with its
context and appear as a visual outlier outside the (tall) high rise building cluster of
the centre[49] and would erode the sense of place both within Precinct 2 between Clarke
and Hill streets and in Precinct 1.[50] I accept that the proposal would have a detrimental
impact in terms of character and visual amenity of the local area. Impacts would flow
from the excessive scale and intensity (including height, density, site cover and plot
ratio) of the proposal given its location.[51] I accept Mr Adamson’s opinion that the
proposal is out of character with its location given the height of buildings between
Clarke and Hill Streets.[52] I also accept Mr Ovenden’s opinion that the proposal would
have a significant impact on character based on what is intended.[53]
[49] Ex FG 9 para 3.1.1.13.
[50] Ex FG 9 para 3.1.1.12, see also Ex FG 8 para 122.
[51] Adamson T5-89
[52] Ex FG 10 para 246.
[53] Ex FG 10 para 251, 256.
[67] The plot ratio is dealt with in PC34 which provides as follows:
Plot ratio
Plot ratio All precincts PC34 AS34.1 The bulk of the development proposal must The basic plot ratio described before each be proportional to the character of the local precinct in the Table to Performance area, with some bonus in floor space Criterion PC34 are not exceeded; or available where identified public benefits are provided and/or exhibits and an AS34.2 unusually high standard of urban design. The basic plot ratio is exceeded by the Building bulk will generally be greater incorporation of bonus element, in a within Precinct 1 with a lesser building bulk development consistent with the provisions being permitted in peripheral commercial of Planning Scheme Policy 18 – using the and tourist accommodation precincts where urban design bonus provisions, provided development is intended to be less intensive. the maximum plot ratios described in each precinct in the Table to Performance The intent of this section is to allow for a Criterion PC34, are not exceeded. built form that addresses the street at ground level, with tall, narrow structures above third floor level, to enable sunlight penetration and views to be achieved.
[68] Reference to the table for performance criterion 34 reveals that the basic plot ratio for
Precinct 2 is 2:1 with the maximum plot ratio being 4:1. Relevantly, the basic plot
ratio for development even in the centre is 3:1 with a maximum plot ratio being 6.5:1.
The proposed development has a plot ratio of around 11.3:1. As such, the proposed
development significantly departs from the Acceptable Solution as it is of the order
of three times that envisaged.
[69] I turn to the Performance Criterion. The proposal, which is to put what would be the
bulkiest building in the whole of Coolangatta outside of precinct 1, sits
uncomfortably with that part of the performance criterion which provides that building bulk will generally be greater within precinct 1. It was pointed out, on behalf
of the co-respondent, that the word ‘generally’ admits of the prospect of buildings of
similar bulk outside of precinct 1. However, as Mr Schneider acknowledged[54] (in the
[54] Ex FG 10 para 291(e).
course of conceding what he considered to be conflict), the proposal has a plot ratio
which exceeds even that planned for precinct 1. Indeed, Mr Peabody was unaware of
any other building in the LAP area which has a plot ratio greater than the proposal,[55]
although he thought that the bulk of the proposal was similar to the bulk of the
buildings in the balance of the area in the ‘esplanade precinct’ including, in particular,
precinct 1.[56] Reliance was placed on evidence that the Reflections Tower 1 is similar
in width to the proposal (although not as tall) and the Reflections Tower 2 (also not
as tall) is slightly wider whilst the proposed development is about as tall as Sanbano
(which is far more slender[57]). Reference was also made to the height and bulk of
buildings elsewhere in the local area, including those within Greenmount, although
Mr McGowan conceded in cross examination that there are no buildings outside
precincts 1a or 1b that are as bulky as the substantial bulk of the proposal[58]
[55] T2-30 l 23.
[56] T2-43 l 30.
[57] T2-62 l 28.
[58] T2-61 l 41.
[70] As already noted, Mr McGowan acknowledged that on pure numbers the proposal
would be the bulkiest building in the whole of Coolangatta. The site is located
between Clarke Street and Hill Street within precinct 2 where development is and is
expected to be of a lesser scale and intensity. That is part of the character of the local
area. In the circumstances I prefer the opinion of Mr Adamson (to that of Mr
Peabody[59]) that the bulk of the development proposal is not proportional to the
character of the local area.[60]
[59] T2-42.
[60] See Adamson Ex FG 10 para 233.
[71] As to the second paragraph of the performance criterion, the built form addresses the
street at ground level. Mr Peabody acknowledged that the development is not a
narrow structure above the third floor[61] although it is narrower on its east/west axis
and there are no undue impacts in terms of the loss of sunlight penetration or views
such that the gravity of any conflict with the second paragraph is reduced.
[61] T2-29, 30
(iii) High rise residential and tourist accommodation code
[72] The issues in the appeal included conflicts with the High Rise Residential and Tourist
Accommodation Code (HRR and TA code). The appellant did not rely upon those
conflicts at the conclusion of the case, but the respondent continued to rely upon
conflict with some provisions of the code. My ultimate conclusion is not dependent
on my finding of conflict with the code.
[73] The purpose of the code is to ensure that high rise developments are at a scale and
intensity which maintains open character within high rise areas of the city. Through
the application of the code high rise developments are, amongst other things, to
contribute positively to the local, and wider city character. High rise developments
are to ensure that adverse impacts on surrounding public spaces are maintained at
acceptable limits.
[74] PC11 and its acceptable solution relates to landscape work. It provides as follows:
Landscape Work
PC11 AS11 The development must include landscaped The development includes a areas adjoining the frontages of the site landscaped area of average width which enhance the streetscape and of 3 metres, with a minimum width contribute to the desired character of the of 1.5 metres, which: area.
(a) adjoins all frontages of the site; (b) is landscaped so as to be of the same level as, and integrated with, the
footpath;
(c) comprises deep planting of at least 50 per cent of this site area.
[75] The relative lack of setbacks is such that AS11 is not met. The proposal conflicts
with PC11 in that it does not include landscaped areas adjoining the frontages of the
site. The landscaping proposed is in the road reserve. Mr Adamson contrasted the
proposal with properties fronting Marine Parade from Clarke Street to Hill Street and
further to the east which have no podium levels, generally have similar building
setbacks to road frontages and separation from adjoining residential properties.
Those properties generally have sufficient landscaping including trees at street level, which provides a residential character and amenity.[62] That is consistent with the
desired character of the area which is described in the intent for precinct 2 in the LAP
as comprising a mix of permanent residential accommodation, visitor accommodation
and local services that serve the resident and visitor population. The setbacks
exhibited by the proposed development are such that no substantial planting could be
provided on the subject site in order to fulfil the performance criterion.[63] Mr Ovenden
was also of the view that landscaping was insufficient.[64] I prefer the opinions of Mr
Adamson and Mr Ovenden to that of Mr Schnieder who considered that the
performance criterion was met. The proposal conflicts with PC11.
[62] Ex FG 10 para 237.
[63] Exhibit FG 10 paras 238, 239.
[64] Exhibit FG 10, para 242.
[76] PC12 deals with the minimum site area. It provides as follows:
Minimum Site Area
PC12 AS12.1 The site must have an appropriate area to The development is an apartment, residential accommodate the proposed use, landscape hotel, serviced apartment building or hostel buffer areas, and ancillary amenities and accommodation exceeding four storeys in facilities. height, and the site has a minimum area of
600m2.
AS12.2 has a minimum area of 2,500m2.
[77] The proposal does not adopt the acceptable solution. The excessive site cover, lack
of real setbacks and consequent absence of landscaping on the site at ground level
along the road frontages are indicative of an inadequate site area for the scale of
development proposed. There is conflict with PC12.
The 2016 Planning Scheme
[78] The 2016 Planning Scheme is a matter of weight. It commenced on 2 February 2016,
some six weeks after lodgement of the development application. The application
therefore progressed whilst the 2016 scheme was in force. The scheme has been the
current scheme for more than two years. It is entitled to substantial weight. That was
the opinion of Mr Ovenden and Mr Schneider.[65] Mr Adamson considered that it
should be given equal weight.[66] It was submitted for the co-respondent however, that
the significance of any conflicts with the 2016 Planning Scheme in terms of building height and density should be tempered in light of a building height study which the
Council is undertaking. That work was commissioned in May 2015 with the purpose
of providing a policy framework to guide development of medium and high rise
developments along the southern coastal strip.
[65] Exhibit FG 10, para 55.
[66] Ex FG 10 para 53.
[79] The existence of the study demonstrates that the Council has been actively
investigating a review of planning heights across the city. At this stage however, no
amendments to the City Plan have been formulated for public consultation. Mr
Schneider acknowledged[67] that the planning for updated building height limits was
[67] Exhibit FG 10, para 144.
not sufficiently progressed to guide assessment of development applications. He saw
the building heights in the planning scheme as being overtaken by events and used a
‘first principles’ assessment of height. Whether the planning scheme provisions in
relation to building height have been overtaken by events is considered further later
but I do not consider that the building height study has overtaken the current planning
scheme. The planning scheme should continue to regulate development at this time[68].
As Mr Ovenden said: matters are not advanced enough to put the current planning
framework to one side.[69] In any event, the study provides does not support the
proposal. As Mr McGowan accepted, the study contemplates medium height
buildings for the subject land and its block, compared to tall buildings within the
centre of Coolangatta.[70]
[68] Exhibit FG 10, para 108.
[69] Exhibit FG 10, para 67.
[70] Exhibit FG 8, para 158(c) and T3-12 to T3-13. The site is identified as having a height of 55m. the co-respondent pointed to a proposal for new heights to be introduced prior to the 50% bonus provision being removed as providing a window for a building of similar height to that proposed. The process is however, at much too early a stage to put any weight on such a possibility.
[80] Reference was made on behalf of the co-respondent to, amongst other things, a
planning committee agenda report of 11 October 2017 which referred to a number of
matters including the following:
during the preparation of the City Plan multiple studies were not able to be completed due to the required timeframes to complete the City Plan; those studies included a city wide building height strategy; building height has not been reviewed since 2003; there are a number of anomalies between zoning height and density across the city; and determining a sustainable city shape is a complex body of work that will result in fundamental changes to the City Plan.
[81] It was submitted that conflict with the 2016 Planning Scheme particularly in relation
to height or density must be viewed in the context that:
the question of building height is in a state of flux; building heights were not reviewed for the purpose of implementing the 2016 Planning Scheme and have not been reviewed since at least 2003, and the Council admits that there are significant inconsistencies between zoning, height and density across the city.
[82] As Mr Ovenden observed however, ongoing planning studies are not unique. They
represent the evolving nature of planning and they do not always line up with the
planning scheme drafting and adoption process. He observed this is particularly so
for large local governments and for studies at such a significant scale with significant
city wide implications such as the building height study. The existence of such
studies alone does not warrant abandonment of key elements of the planning
framework that underpins the scheme in effect at the time.[71] I agree.
[71] FG 10 para 107.
[83] Further, the 2016 Planning Scheme was not simply a case of carrying forward the
provisions of the 2003 Scheme. Notable changes to the regime (discussed later) were
made. In my view, the 2016 Scheme remains of significance and should be given
substantial weight, notwithstanding the work which is being undertaken on the
building height study.
(i) The strategic framework
[84] The co-respondent pointed out that its proposal would have economic advantage
which would support the specific outcomes for the Coolangatta major centre (s
3.4.2.1) and the tourist economy (s 3.5.4.1). It should be noted however that s
3.5.4.1(2) seeks tourist-related development which, amongst other things, is
consistent with the intended intensity and built form of the area. The intentions in relation to intensity and built form are dealt with later in the context of the more
detailed provisions of the planning scheme.
[85] Section 3.3 of the strategic framework relates to creating liveable places. Section
3.3.1 are the strategic outcomes which include the following:
“(3) Housing is provided in a form, height and scale consistent with the function, amenity and desired future character of local areas and centres, and promotes a sense of community, cohesion and wellbeing. Housing is attractive and well designed.”
Insofar as height is concerned, the planning scheme includes building height overlay
maps. Section 3.3.2 deals with Urban Neighbourhoods and includes the following
specific outcomes:
“(9) Increases in building height up to a maximum of 50 per cent above the building height overlay map may occur in limited circumstances in urban neighbourhoods where all of the following outcomes are satisfied: (a) a reinforced local identity and sense of place;
(b) a well-managed interface with, relationship to and impact on nearby development, including the reasonable amenity
expectations of nearby residences;
(c) a varied, ordered and interesting local skyline;
(d) an excellent standard of appearance of the built form and street edge;
(e) housing choice and affordability;
(f) protection for important elements of local character or scenic amenity, including views from popular public outlooks to the
city’s significant natural features;
(g) deliberate and distinct built form contrasts in locations where building heights change abruptly on the building height overlay
map; and
(h) the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities
…
(10) Increases in building height beyond 50 per cent above the building height overlay map, are not anticipated in urban neighbourhoods. Note: No criteria have been identified for building heights which are more than 50 per cent above the building height overlay map,
because such increases are in conflict with City Plan.”
[86] The Building Height Overlay Map under City Plan 2016 shows a height of 38 metres
for the subject site. The site does not qualify for consideration for an increase in
maximum building height up to 50% because as, Mr Peabody[72] and Mr Schneider[73]
[72] T2-26.
[73] T5-27
acknowledged, it fails at least criterion 9(g). Further, I accept Mr Mack’s evidence
that the proposal fails 9(a) in that it would diminish the sense of place. Mr Peabody’s’
evidence was that the proposal would reinforce local identity and sense of place by
positively contributing to defining the extent of the ‘esplanade precinct’ but, as has
been observed, that precinct is no part of the planning scheme and development to the
east of Clarke Street is of a different scale to that to the west. It was submitted for the
co-respondent that the proposal would meet the criterion by providing high quality
residential and 5 start hotel development on a desirable and well located beach front
site and by assisting to ensure that Coolangatta continues to evolve as the signature
southern beach destination and major southern centre of the Gold Coast Centre. It is
the built form of the proposal however, that in context, would have the effect of
diminishing the sense of place.
[87] Even if the proposal had met the pre-conditions, the proposed height of 82 metres
would still be 1.4 times what could be achieved even if the bonus provision was
available. The proposal therefore finds itself in conflict with the City Plan. The co-
respondent acknowledged conflict with 3.3.2.1(10). There is also conflict with s
3.3.1(3) with respect to the height of the proposal which is not consistent with the
amenity and desired future character of the local area.[74]
[74] The desired future character of the local area, in relation to height, may be gleaned from the height maps read in conjunction with the provisions which allow for a 50% uplift subject to prerequisites being met.
[88] The submissions for the co-respondent again referred to building height being in a
‘state of flux’ and to the prospect of a building of a similar height being achievable if
ultimately a new building height of 55 meters is adopted before the 50% uplift
provisions are abolished. As already observed, the council’s review of building
heights is not advanced enough to put the current planning scheme to one side nor to
place weight on the hypothetical development opportunity referred to.
(ii) High Density Residential Zone Code
[89] The subject site is within the high density residential zone so the development is
subject to the High Density Residential Zone Code. The purpose of that code is to be
achieved through a number of overall outcomes which include the following:
housing is provided at a form, scale and intensity that is appropriate for the zone and each particular locality it is in where the following outcomes are satisfied: … Design and amenity
(v) whether intended outcomes for building form/city form and desirable building height patterns are negatively impacted,
including the likelihood of undesirable local development
patterns to arise if the cumulative effects of the development
are considered;
(vi) retention of important elements of neighbourhood character
and amenity, and cultural heritage;
(vii) whether adjoining residential amenity is unreasonably
impacted;
…
Built form –
(i) has a building height that does not exceed that indicated on the Building Height Overlay Map;
(ii) is set back from side and rear boundaries to protect the amenity
of adjoining uses
(iii) is set back from road frontages to promote an urban setting and
interface with the street; and
(iv) has varying site cover to reduce building dominance and
provide for landscaping.
[90] It is of note that compliance with the Building Height Overlay Map is one of the
overall outcomes under the 2016 Planning Scheme.
[91] Insofar as overall outcome 2(b)(v) is concerned the co-respondent again referred to
the circumstances surrounding the building height study, building height being in a
‘state of flux’ and the prospect of a building of similar height being acceptable if a
new building height of 55m were adopted prior to abolition of the provisions allowing
a 50% uplift. The desirable building height patterns for the purposes of the provision
should however, be taken to be those provided for by the planning scheme. The
overlay map provides for the tallest buildings on Marine Parade to be located in the
designated centre with a gradation away from the centre, particularly towards
Rainbow Beach. The proposal does not reflect this pattern. It is significantly taller
than the height which would apply even if the 50% uplift from the height shown on
the overlay map to the 2016 scheme were applied. As was said by Mr Ovenden:[75]
“this is not a development concept that is nibbling at the margins. The
proposal is stepping significantly outside the current building height
provisions of the Scheme, on a site that sits outside the core of the
Coolangatta Centre. It is currently in an area that is intended to transition to
lower scale residential uses (from the core)”.
[75] FG10 para 159.
The proposal would negatively impact desirable building height patterns.
[92] Overall Outcome 2(b)(vi) relevantly seeks retention of important elements of
neighbourhood character and amenity. There is a clear planning strategy in the 2016
planning scheme (as there was in the 2003 Planning Scheme) for development of the
greatest height and intensity to be located in the centre, with height and intensity
reducing outside the centre.[76] This is reflected in important elements of
neighbourhood character and amenity. In circumstances where the proposal would
be larger and more intense than the form of development present in the centre, the
proposal does not retain important elements of neighbourhood character and amenity.
[76] The highest maximum height on the building overly map applies in the centre. The greatest density on the residential density overlay map (which applies to accepted development subject to requirements) applies in the centre. The centre zone code does not otherwise have performance outcomes and acceptable outcomes governing setbacks, site cover and density as applies in the High Residential Density Zone Code. Those metrics are relatively unconstrained in a zone code which, for assessable development, consists only of the purpose and overall outcomes of the code.
[93] Overall Outcome 2(b)(vii) relates to whether adjoining residential amenity is
unreasonably impacted. For the reasons already given I do not consider that adjoining
residential amenity would be unreasonably impacted in terms of loss of views or
overshadowing. The proposal would however result in a detrimental impact on
character and visual amenity.
[94] The proposal conflicts with Overall Outcome 2(d)(i) because it has a building height
which does exceed that indicated on the Building Height Overlay Map.
[95] Insofar as Overall Outcome 2(d)(ii) is concerned, the setback to the adjoining
neighbour does not result in any specific undue amenity impact.
[96] In respect of Overall Outcome 2(d)(iii), the ground level of the proposed development
has a setback that reduces to as little as 0 meters along Marine Parade. A 0 metre
setback is also provided to the Hill Street and Boundary Street frontages (as a
minimum). The level 1 podium element generally has a setback of zero metres also.
The proposal would not be setback from road frontages to promote an urban setting
and interface with the street.
[97] Overall Outcome 2(d)(iv) seeks a built form with varying site cover to reduce building
dominance and provide areas for landscaping. The provision provides no guidance as
to the nature or extent of any variation of site cover and reduction of building
dominance or any provision of landscaping by reference to which compliance or non-
compliance is to be judged. The provision should be construed as requiring a variation
of site cover to reduce building dominance and provide for landscaping to more than
a trivial or insignificant extent. The proposal does have varying site cover, but does
not significantly reduce building dominance in context. The building remains, as I
have found, one of excessive height, scale and intensity which is bulky and visually
intrusive in its context notwithstanding the variation of site cover. The podium
element, which has a site cover of 97.1%, is not a feature which assists in reducing
building dominance. The provision of landscaping is not insignificant albeit that I
have found it to be inadequate in the context of other provisions.
[98] Setbacks are dealt with in Performance Outcome 1 of the Code which provides as
follows:
PO1 AO1 Setbacks Setbacks are as follows:
(a) Assist in the protection of adjacent Setback Minimum distances amenity; measured in metres (m)
(b) Allow for access around the [99] Front Height Setback
building; up to 23m 4m (c) Contribute to streetscape character; for that part 6m
and exceeding (d) Provide separation between 23m
buildings to maintain view corridors. [100] Side and rear up to 4.5m 1.5m
Note: building setbacks may also be for that part 2m influenced by shadow provisions in 9.4.4 General Development Provisions Code between 4.5m – 7.5m for that part an extra exceeding 0.5m is 7.5m added for every 3m in height or part thereof over 7.5m
Between on site Double the applicable side habitable setback buildings (where not attached) [101] OR
Setbacks for Dwelling houses on small lots …
[102] In the absence of more meaningful setbacks for the large podium there is departure
from the Acceptable Solution. Insofar as the Performance Outcome is concerned, the
setback does not unduly adversely impact upon the residential amenity of the adjacent
Lindor development. Further, it does not unduly detrimentally affect the maintenance
of the view corridors. Whether it allows for access around the building was not put
in issue in the particulars. For the reasons discussed in the context of the setback
provisions of the 2003 planning scheme however, the setbacks would not contribute
to streetscape character in this part of Coolangatta.[77] I do not accept that it would
[77] See also Adamson, Ex FG10 para 203, 204.
contribute to an intended streetscape character.[78] There is conflict with PO1.
[78] Ex FG10 para 292(k).
[103] PO2 deals with site cover. It provides:
Site cover
PO2 AO2 Site cover Site cover does not exceed 50 per cent for
(a) is balanced between built form and dwelling houses and dual occupancy;
ORgreen areas for landscaped private For all other uses, site cover does not exceed open space; accumulative total of:
(a) 50% of net site area up to 8 storeys. (b) contributes to neighbourhood
(b) 40% of net site area from 9 to 15 storeys;
character and amenity; and
(c) 30% of net site area or 750m2 per building,
(c) promotes slender bulk form;
whichever is the lesser, above 15 storeys.
(d) promotes an open, attractive and distinct skyline; and
(e) facilities small, fast moving shadows.
[104] The proposal at 97.1% site cover for the podium, 48.5% to 52.6% for the tower and
65.8% for the roof terrace is well in excess of the Acceptable Outcome.
[105] Insofar as the performance outcome is concerned although landscaping is proposed,[79]
built form moving east of the centre, particularly in the area of Coolangatta to the east
of Clarke Street where the subject site lies. I am not satisfied that it has been
demonstrated that the planning schemes have been overtaken by events.
[132] I also do not consider that the fact that the Council has carried forward the height and
density overlay mapping from the 2003 Planning Scheme, whilst it undertakes a
height study, means that its planning strategy has been overtaken by events or that the
weight to be accorded to the current scheme should be seriously moderated. The
study is merely the first step in the Council considering matters in relation to height.
Its position in relation to any proposed amendments to the scheme is yet to be
determined and no planning scheme amendments have been put on public
notification. There is no event which has overtaken the planning strategy. The
Council in the meantime has carried forward the planning strategy and indeed has, in
material respects, strengthened it by referring to the overlay mapping in the relevant
Performance Outcomes and also in an Overall Outcome and in the Strategic
Framework provisions. As was observed earlier, I am of the view that the provisions
of the 2016 Planning Scheme remain of significance and should be given substantial
weight notwithstanding the work which is being undertaken on the building height
study.
The SEQRP and infill higher density development (grounds (d) and (dd)
[133] Reference to the South-East Queensland Regional Plans (SEQRPs) does not greatly
assist. The 2009 SEQRP has been identified as being appropriately advanced by the
Strategic Framework of the 2016 Planning Scheme. Under the SEQRP 2017, the site
is depicted within the Regional Economic Cluster, but these areas are subject to more
refined planning.
[134] The 2017 SEQRP provides that its goals, elements, strategies and sub-regional
directions are to be implemented through local government planning schemes. It is also stated that SEQs Centres are varied, and therefore warrant more detailed planning
by local government to determine the best outcomes for these localities, including the
most desirable form and distribution of density. Further still, the 2017 SEQRP relies
on local planning schemes to determine the most suitable zone for each land parcel
within the urban footprint. Local government planning schemes are to provide the
finer grained local policy in advancing the relevant matters of State and regional
significance. While local governments are required to ensure that planning schemes
reflect the 2017 SEQRP, the co-respondent does not point to anything in the 2017
SEQRP with which the 2016 Scheme is inconsistent.
[135] The co-respondent pointed to the SEQRP’s for planning objectives of
accommodating growing populations in in-fill development and development which
contributes to housing choice. These are objectives which find reflection in the
planning schemes. It may be accepted that the proposal supports high level objectives
in that it involves high density infill development which would make efficient use of
infrastructure and contribute to housing choice, but that does not mean that the extent
of development is appropriate in the face of conflict with the more detailed provisions
of the planning scheme.
Character, Amenity and Consistency of Built Form (grounds (e) and (j))
[136] The proposal’s impact on amenity has been considered elsewhere. It was submitted,
for the co-respondent, that exceedances of development parameters would not be
accompanied by any adverse amenity impacts. Much was made of the fact that the
site enjoys 3 street frontages and only has 1 adjoining neighbour (Lindor). It would
not have a significant impact on residential amenity in terms of specific impacts such
as loss of views or overshadowing but the inconsistency with both the existing and
planned character associated with placing what would be the largest building in
Coolangatta where it is not intended would give rise to impacts on character and
visual amenity.
[137] Much was sought to be made of the proposal’s consistency with the character of the
so called ‘esplanade precinct’, but that overlooks the obvious planning strategy of not
treating all land along the esplanade in the same way. The proposal is inconsistent
with the existing, planned and likely built form and character of the part of esplanade
in which it is located.
[138] In discerning what he perceived to be the planning intent for the site, Mr Schneider
concluded that there was an intention for there to be a “renewal and transformation”
for the Coolangatta urban neighbourhood. In that regard he referred to s 3.2.2 of the
2016 Planning Scheme which refers to around two thirds of dwellings over the next
20 years being accommodated in “renewed and transformed centres and key inner
city urban neighbourhoods” and that areas “will be targeted for renewal and
transformation”. These passages of strategic intent do not establish that the subject
land is identified or targeted for renewal and transformation but, in any event, Mr
Schneider does not identify how a broad intention for renewal or transformation
translates to support for a building of the height, bulk and scale proposed given the
more detailed provisions of the Planning Scheme. Indeed he acknowledged[93] that it
[93] T 5-22 lines 1-5.
would be unusual for the intent for renewal and transformation to be seen to be
encouraging development that is nearly half as high again as development that
attracted the 50% bonus provisions in the strategic framework of the 2016 Planning
Scheme.
Traffic benefit (ground (f))
[139] Should the development proceed there would be a benefit in traffic terms by the
removal of all existing ingress and egress manoeuvres (including reverse
manoeuvres) across the Marine Parade frontage for the likely benefit in safety for
cyclists, motorists and pedestrians.[94]
[94] Exhibit 15, paras 29-32.
Open space (ground (ee))
[140] The proposal would provide some open space which would be usable for public and
private visual access to significant landscape features.
Need and economic benefits (grounds (aa), (a), (b), (bb), (cc))
[141] Mr Duane’s conclusions in respect of need were as follows:
“10.1 Overall, the research in relation to economic need indicates
that there is strong economic need for the subject development
for a variety of reasons, including:
(a) the Gold Coast LGA, including the suburbs immediately surrounding the subject site, are
projected to grow over the next 20 years. In a growth
area, there is need for diversity and choice of
household product in multi-unit developments such as
that proposed;
(b) in addition, the Gold Coast and Coolangatta are designated as major tourist precincts which are
projected to accommodate substantial tourist
populations on the Gold Coast over time. Beachside
developments are important components of catering
for the tourist market;
(c) the location of the site means that multi-unit development will help reinforce a compact form of
settlement, resulting in improved efficiencies and use
of existing infrastructure in the surrounding area;
(d) the proposed site is well located to infrastructure, and the efficient use of infrastructure in rapid growth areas
is important to ensure a sustainable economic return;
(e) the proposal is for 27 storeys (24 of use). In view of the surrounding development plus infrastructure etc.
in the area, there is a reasonable expectation from the
local community that a new development approval
would be similar to these facilities. While some of
these matters include town planning issues (beyond
my discipline), I am able to say as an economist that
pressure to maximise (within reason) the development
site such as the subject land will continue given it is
difficult to amalgamate larger parcels of land and the
scarcity of future development land within the
Coolangatta area;
10.2 In summary, the subject development represents an
opportunity, of which there are a limited number, to
consolidate residential and tourist development in a location which provides a high degree of residential and tourist amenity
and which is served by significant levels of private and public
infrastructure, supporting residential/tourist uses.
10.3 The subject development represents an opportunity that
contributes to the stated planning objectives, particularly in
South East Queensland Regional Plan 2009 and 2017,
ofaccommodating significant population growth in infill
development in locations served by all necessary infrastructure
and, in particular, public transport. Increasing population
density in such areas not only achieves planning goals but
achieves greater economic efficiency in terms of the use of
existing and proposed infrastructure which in turn benefits the
community generally.
10.4 The subject proposal represents orderly development within the suburb of Coolangatta. 10.5 The proposal will add a 5 star resort of which there is not currently one provided in the Coolangatta market in close proximity to the airport. In addition, it would provide a wedding venue and function facilities together with a day spa providing a significant point of difference with other facilities provided in the immediate area. 10.6 As I understand it, a compliant development would result in a much smaller facility and would not provide the same level of benefits as the subject proposal.”
Mr Schneider opined that there is a planning need for the proposal. In that regard he
observed that significant development opportunities in the Coolangatta area and in
precinct 1 of the LAP area in particular are currently constrained by a number of factors
including:
the presence and age of existing developments; the large size, and limited number, of landholdings along the Marine Parade esplanade; the small and fragmented pattern of land holdings along Griffith Street; the topography and natural features of the land area; and the town planning framework.
His analysis within precinct 1 led him to conclude that there are currently limited
opportunities for redevelopment within that precinct.[95]
[95] Ex 16, paras [50]-[54].
[143] Mr Duane surveyed the underutilised land in the area. Of the sites currently developed
for less than four storeys most do not sit on the beachfront and many are small in size
and would require amalgamations. Of those which are currently developed for more
than four storeys but less than ten storeys few are under a single ownership along
Marine Parade and most beachside land has the complication of community titling.
[144] There was a degree of tension between the co-respondent’s case on visual amenity
which emphasised potential future developments in the locality[96] and its case on
[96] Ex 11 figure 3.
planning need, which focused on the limited opportunity for redevelopment. I accept
that there are limitations and complications associated with securing redevelopment
opportunities, but that is not to say that no such opportunities will be realised.[97]
[97] See Ovenden T5-64.
[145] In coming to his conclusions, Mr Duane’s report dealt with the following matters:
the planning framework; information about the Gold Coast economy and tourism market; information about the Coolangatta tourist market; population in growth trends in the Gold Coast Local Government Area and particularly in Coolangatta; supply; the proximity of the land to infrastructure; matters relating to amenity; and economic benefits.
[146] Mr Duane concluded his review of the planning framework by stating that the
proposed development responds to the planning context. For the reasons already
given however the proposal finds itself in conflict with both the 2003 and 2016
planning schemes. Mr Duane observed that, reflecting the planning context,
Coolangatta is a very popular area particularly with residents and tourists as it is close
to public transport and a range of facilities. It is an attractive location where under- utilised land, such as the subject site, is being developed for a range of different types
of accommodation and residential densities resulting in increased population density.
For these reasons, there will continue to be economic pressure for development in the
locality to increase population and tourist density.
[147] Mr Duane concluded that the attractiveness of the Coolangatta locality and its
proximity to important infrastructure means that inevitably economic pressure will
continue to drive development of these sites for greater density. He also concluded
that given the planning documents clearly indicate ongoing high-density residential
and tourist accommodation facilities in the major centre of Coolangatta and its
prominence as a destination for such facilities it is reasonable to expect ongoing
development for these types of facilities within the local community. A level of
economic pressure for high density residential and tourist accomodation development
within the major centre of Coolangatta may be accepted. What is at issue however,
is whether it is in the public interest to allow that pressure to give rise to the subject
development, of the intensity and scale proposed, in a location outside of the centre
precinct.
[148] Mr Duane’s conclusion in relation to the Gold Coast economy and tourism was that
significant tourism activity is occurring on the Gold Coast and is predicted to continue
over time with Coolangatta being one of the key coastal precincts for tourism
facilities. That is unsurprising.
[149] Insofar as the Coolangatta local area hotel and tourist market is concerned, Mr Duane
concluded that in light of the growing residential and tourist market on the Gold
Coast, there is an ongoing need for increased tourist facilities, particularly at
beachfront locations such as the subject site which he said essentially represented one
of the last opportunities to reinforce Coolangatta as a major tourist accommodation
facility providing a wide range of different star ratings. In this part of the report, Mr
Duane makes much of the intention to operate the facility as the only 5 star hotel in
the locality. Whilst the table in his report shows that there are a number of high
quality 4 and 4.5 star facilities available to the public at the upper end of the market,
I accept that a 5 star facility would be of benefit. It is however, only one component
of the proposal.
[150] Mr Duane next considered the population growth projected over the period to 2036
and concluded that there was a need for some 9,700 dwellings or 485 new dwellings
per year in the local area, which he then compared with the subject proposal of 94
units as representing only 0.9% of future demand.
[151] Insofar as Mr Duane’s 9,700 dwellings is concerned, it should be borne in mind that
he agreed in cross-examination that:
His local area includes Coolangatta, Currumbin, Tugun and Tweed Heads, with the smallest proportion of growth occurring within Coolangatta. Within this local area, the Cobaki Lakes development is in an approved master plan community which is intended to provide 5,500 dwellings. That reduces the future demand to 4,200 dwellings. The predicted demand represents not only units but also dwellings. The predicted demand is further reduced on the basis that, as Mr Duane identified, there are 1,561 dwellings which are already approved or under construction.[98] Further, those developments are limited to those of 20 dwellings or more. There will, of course, be additional supply in terms of smaller scale developments, including dwelling houses. The product of that exercise leaves a ‘demand’ of 2,639 dwellings over the 20 year period, or 130 per year.[99] [98] Exhibit 14, Table 6.1, p 66.
[99] T6-16.
[152] In terms of the need being met, City Plan 2016 has been prepared to cater for a 20
year horizon, and it is intended to be reviewed periodically to ensure that it responds
appropriately to the changes of the community at a local, regional and state level.[100]
[100] Exhibit 6, p 2, s 1.1(5)
Mr Duane’s report acknowledged that he did not carry out an exercise of matching
demand and supply looking at other sites that are available for development over time.
Rather, he viewed it as economically sensible to develop the site looking at all the
attributes it possesses as well as demand within the local area. He identified the site
as designated for residential development, sitting within a planned precinct with
higher density development close by and as currently underutilised in an economic sense. Of course the precinct within which the site falls under the 2003 Planning
Scheme did not envisage development of the scale and intensity proposed.
[153] Insofar as infrastructure is concerned, Mr Duane observed that there is a substantial
amount of infrastructure which the subject development would make greater
economic use of due to increased population/tourist density and greater economic
efficiency. He opined that the proposed development would involve efficient use of
existing and proposed infrastructure throughout the surrounding region to the benefit
of the community. I accept that the proposal would make economic and efficient use
of infrastructure.
[154] Insofar as amenity is concerned, Mr Duane expressed the opinion that a combination
of the factors referred to in his report mean that the subject proposal is ideally placed
to provide a high level of amenity to those who wish to live and visit Coolangatta. I
accept that is so.
[155] Insofar as economic benefits are concerned, Mr Duane concluded that the
combination of the proposed uses across residential, tourist, restaurant, wedding
venue/function venue and day spa with recreational deck would provide a significant
benefit to the local economy and provide a new destination for higher end travellers
within the Coolangatta market. I accept that the proposal would be of economic
benefit.
[156] I accept that the proposal would add to the choice of tourist and residential
accommodation in Coolangatta, further enhance employment and investment
opportunities in Coolangatta and enhance the tourism industry and further the role of
Coolangatta as an important tourist destination. It would provide increased
opportunity for visitors and tourists to enjoy the Coolangatta area and would provide
enhanced dining, retail, health and recreational facilities that would be available to
the public.
[157] I accept that the proposal responds to a level of need for further tourist and residential
development in the locality and would be of economic benefit. It is not however, a
need which the Planning Scheme fails to recognise. The Scheme makes provision for
tourist and residential development to occur. What it does not contemplate is
development of the scale and intensity proposed in the precinct in which the subject
site falls.
[158] It was submitted, for the co-respondent, that the drafters of the Scheme could not have
anticipated the need, in the public interest, to allow the number of storeys in its
development to accommodate its various components. It is difficult to conclude that
there is some deficiency in the provision made by the planning scheme or some public
interest in departing from the Planning Scheme so as to allow development of the
number of storeys proposed on this site in circumstances where Mr Duane did not
carry out an exercise of matching demand and supply. Further, the Planning Scheme
does make provision, in the designated centre, particularly in the centre core sub-
precinct 1(a)[101] for development more akin to the number of storeys proposed. I
[101] and in the same area under the 2016 Planning Scheme.
accept that there are limitations and complications associated with securing
redevelopment opportunities in the centre, but that is not to say that no such
opportunities will be able to be realised or that the subject site ought to be permitted
to be developed as if it fell within the centre.
[159] Mr Duane observed that a ‘compliant development’ on the subject site would result
in a much smaller facility and would not provide the same level of benefit as the
subject proposal. More development is however not always better development or
development which is appropriate in the circumstances. The economic benefits of
development must be balanced with other planning considerations. The balance is
struck in the planning scheme documents.[102]
[102] VG Projects v Brisbane City Council [2016] QPLR 404 at [111].
[160] I do not consider that the extent to which the proposal addresses a level of demand or
need or that the proposal would provide economic benefit is sufficient to overcome
the nature and extent of the conflict in this case.
Optimising development (ground (c))
[161] It was submitted, for the respondent, that it is in the public interest that development
of a strategically located piece of available and developable land, such as the subject
site, be developed to its optimum potential consistent with reasonable protection of
local character and amenity considerations. It was submitted that it is a nonsense to
suggest that a ‘compliant’ proposal could achieve the same benefits and that the site
would be wasted by such limited development. I accept that it is not in the public
interest for the development potential of a site to be wasted, particularly where development is otherwise addressing a public need. However, the proposal in this
case goes beyond reasonable and acceptable optimisation of development potential
and would, I am satisfied, have a detrimental effect on the existing and planned
character and visual amenity of the area.
Conflict moderated by the 2016 scheme (ground (h))
[162] Reference was made to changes to the treatment of a shop and restaurant under the
2016 Planning Scheme but it is unnecessary to dwell on that since, as has been noted,
the appellant and the respondent abandoned the inconsistent use point in any event.
[163] The co-respondent referred to the bonus provisions of the 2016 Scheme with respect
to height as permitting a building of up to approximately 18 storeys to be developed
on the subject site.[103] It has been observed however, that there are conditions on the
[103] Ex FG 8 para 140.
availability of the bonus, the proposal would not qualify for the bonus and, in any
event, the proposal is much taller than would be permitted even if the bonus was
applied.
[164] The co-respondents also referred to issues relating to height being in a state of ‘flux’
given that the council is reviewing the height mapping and submitted the height
standards are much more likely to increase than decrease. For the reasons already
discussed the work in the height study is at much too early a stage to put the current
planning to one side.
Conclusion on conflict and grounds
[165] I have found that the proposal conflicts with a number of provisions of the 2003 and
the 2016 Planning Schemes. The extent of conflict with both is significant. Conflict
with the 2003 scheme triggers a consideration of s 326 of the SPA. Consideration of
the 2016 Planning Scheme is a matter of weight. In Bell v Brisbane City Council
[2018] QCA 84 McMurdo JA said:[104] [104] At [66].
“Section 326(1)(b) will be engaged only where there is a tension
between the application of the relevant instrument, here a planning
scheme, and the public interest. If that tension exists, it will be for the
decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument. Necessarily, cases where
that tension exists will be exceptional, because a planning scheme
must be accepted as a comprehensive expression of what will
constitute, in the public interest, the appropriate development of land.”
[166] The consideration of whether there are sufficient grounds must proceed on the
premise that it is in the public interest that the planning scheme, in each relevant
respect, be applied, unless the contrary is demonstrated.[105] I am not persuaded that
[105] Bell v Brisbane City Council supra at [75]
the co-respondent’s grounds considered individually or collectively, demonstrate the
contrary. The provisions with which the proposal finds itself in conflict are soundly
based, have not been overtaken by events and have not been demonstrated to fail to
anticipate development in the public interest. I do not consider that there are sufficient
grounds to justify approval notwithstanding the conflict with the 2003 Planning
Scheme and I consider that the 2016 Planning Scheme, with which there is also
significant conflict, should be given substantial weight.
Conclusion
[167] The co-respondent has not discharged its onus. The appeal is allowed and the
development application is refused.
the centre precinct pursuant to the local area plan (discussed later).
and Schneider FG10 para 291(b).
to those in the centre.
Key Legal Topics
Areas of Law
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Planning & Development Law
Legal Concepts
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Jurisdiction
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Development Approval
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Refusal of Development Application
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