Council of the City of Gold Coast v DVB Projects Pty Ltd

The City of Gold Coast Council is seeking leave to appeal against a decision of the primary judge in the Planning and Environment Court that allowed an appeal by DVB Projects Pty Ltd against the Council’s refusal of a development permit for a material change of use. DVB applied to the Council to change the use of a parcel of land in Broadbeach to permit the construction of a 26-storey multiple dwelling building with 35 apartments. The Council refused the application, and DVB appealed to the P&E Court. The primary judge allowed the appeal and ordered that the development application be approved subject to conditions.

The legal issues before the Court were whether the primary judge's findings on varying site cover and its effects on reducing building dominance and providing areas for landscaping were open to challenge, and if so, whether leave to appeal should be granted. The Council contended that the primary judge misconstrued the relevant benchmarks or concluded that the limited variations in site cover would reduce building dominance and provide areas of landscaping, notwithstanding the absence of any evidence to that effect. The Court considered whether the primary judge's findings involved questions of law that could be successfully challenged on appeal.

The Court found that the primary judge made findings about varying site cover and its effects based on her own assessment of the evidence, including the plans, sections, elevations, visual representations, photomontages, and expert evidence. The Court held that the primary judge's findings on varying site cover and its effects were findings of fact, not questions of law. The primary judge had considered the evidence and provided reasons for her findings. The Court concluded that the proposed grounds for appeal did not involve questions of law and could not succeed. Therefore, leave to appeal should be refused.

The Court made the following orders: (1) the application for leave to appeal is refused; and (2) the applicant pay the respondent's costs of the application. The judges of the Court unanimously agreed with the decision. The ratio of the decision is that findings about varying site cover and its effects based on an assessment of the evidence are findings of fact, not questions of law, and cannot be successfully challenged on appeal unless there is a misconstruction of the relevant benchmarks or a failure to consider relevant evidence.