Central Equity Limited v Gold Coast City Council - [2007] QPEC 6

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Central Equity Limited v Gold Coast City Council [2007] QPEC 006

PARTIES:

CENTRAL EQUITY LIMITED

Appellant

V

GOLD COAST CITY COUNCIL

Respondent

FILE NO/S:

Southport 5/2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Southport

DELIVERED ON:

2 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Inspection 9 October 2006; hearing 9,10, 11, 12, and 13 October 2006; written submissions received 14, 27 and 29 November 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal allowed; matter adjourned to the 1 day of March 2007

CATCHWORDS:

PLANNING – PLANNING LAW – code assessable development – whether codes satisfied – whether acceptable solutions met - whether performance criteria otherwise satisfied by alternative modes of performance

Integrated Planning Act, 1997, Chapter 3

Cases considered:
Mackay Conservation Group v Mackay City Council [2006] QPELR 209
Project Blue Sky v ABA (1998) 194 CLR 355
SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 074
Spondor Pty Ltd v Maroochy Shire Council [2005] QPELR 299

COUNSEL:

S Ure for the appellant

R Litster for the respondent

SOLICITORS:

IPA Law Planning Lawyers

McCullough Robertson Lawyers

This is an appeal against Council’s decision to refuse a development application for a material change of use which would permit the construction of a new high-rise apartment building on the corner of Garfield Terrace and Frederick Street, Surfers Paradise. The site is currently vacant and covers two allotments, with a total area of 810 square metres[1]. The Garfield Terrace frontage is the subject of planned road widening which will reduce the area to about 734m³. The frontage on Garfield Terrace is 40 metres and, to Frederick Street, 15 metres.
[1] Lots 1 and 2 on RP 51586

[2] As an inspection of the site and the area showed, the proposed development is situated within a district dominated by high-rise accommodation, immediately to the south of central Surfers Paradise. While the surrounding area does contain a number of older style medium and low-rise apartments, and some detached dwellings, its prevailing features are high-rise residential towers set in a highly developed, urban landscape.

[3] Immediately to the north, across Frederick Street, is a modern 12 storey apartment tower of sophisticated appearance. Directly to the south is ‘Mariner Views’ of 26 storeys. Across Garfield Terrace, on the beach front, is the 29 storey ‘Beaches’ residential development.

[4] The application was originally lodged with Council in April 2005 and sought a development permit for an apartment building comprising 17 units, in 19 storeys. In December 2005 Council officers including its principal architect recommended approval but Council resolved on 12 December 2005 to refuse the application. After the appeal began and, indeed, up to the time of hearing alterations to the plans were made, but Council was content that the appeal hearing proceed despite those changes.

[5] The variations have the effect of reducing the height of the building to 18 storeys and the number of apartments from 17…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Central Equity Limited v Gold Coast City Council

Details

AGLC: Central Equity Limited v Gold Coast City Council [2007] QPEC 6
Case: [2007] QPEC 6
Decision Date: 2 February 2007

CaseChat Overview and Summary

The case of Central Equity Limited versus Gold Coast City Council involves a dispute over planning law, specifically concerning the interpretation and application of codes related to assessable development. The appellant, Central Equity Limited, sought approval for a development project, which was denied by the respondent, Gold Coast City Council. The appellant took the matter to the court to challenge the council's decision, arguing that the codes were satisfied and that acceptable solutions were met. The court was required to determine whether the development met the criteria set out in the planning codes, and whether the performance criteria could be satisfied by alternative modes of performance.

The central legal issues before the court were whether the codes governing assessable development were met, and if so, whether the applicant had provided acceptable solutions. The court had to consider the specific requirements of the planning codes and whether the proposed development met these criteria. Additionally, the court needed to determine if there were alternative modes of performance that could satisfy the performance criteria, and if the council's decision to deny approval was justified.

The court found that the codes governing assessable development were indeed satisfied by the appellant's proposal. Furthermore, the court determined that acceptable solutions were provided and that the performance criteria could be met through alternative modes of performance. The council's decision to deny approval was therefore deemed incorrect. The court allowed the appeal and adjourned the matter to provide the council with an opportunity to reconsider the proposal in light of the court's findings.

Orders

Orders of the court

Appeal allowed; matter adjourned to the 1 day of March 2007

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Central Equity Limited v Gold Coast City Council [2007] QPEC 006
PARTIES:	CENTRAL EQUITY LIMITED Appellant V GOLD COAST CITY COUNCIL Respondent
FILE NO/S:	Southport 5/2006
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland, Southport
DELIVERED ON:	2 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Inspection 9 October 2006; hearing 9,10, 11, 12, and 13 October 2006; written submissions received 14, 27 and 29 November 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeal allowed; matter adjourned to the 1 day of March 2007
CATCHWORDS:	PLANNING – PLANNING LAW – code assessable development – whether codes satisfied – whether acceptable solutions met - whether performance criteria otherwise satisfied by alternative modes of performance Integrated Planning Act, 1997, Chapter 3 Cases considered: Mackay Conservation Group v Mackay City Council [2006] QPELR 209 Project Blue Sky v ABA (1998) 194 CLR 355 SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 074 Spondor Pty Ltd v Maroochy Shire Council [2005] QPELR 299
COUNSEL:	S Ure for the appellant R Litster for the respondent
SOLICITORS:	IPA Law Planning Lawyers McCullough Robertson Lawyers