K Page Main Beach Pty Ltd v Gold Coast City Council & Ors
[2011] QPEC 1
•04 February 2011
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1
PARTIES:
K PAGE MAIN BEACH PTY LIMITED
(Appellant)
v
GOLD COAST CITY COUNCIL
(Respondent)
And
KATHRYN ALBERT, PETER ALBERT, ALIMOY PTY LTD, MARY-ANNE ANDERSON, NEIL ANDERSON, RICHARD ARMOUR, PATRICIA ASPLET, PETER ASPLET, PAMELA BALCAM, D BARRY, J BARRY, JANICE BRADNAM, GLENDA CHAPPELL, JOHN CHAPPELL, JULIE COLE, PETER COLE, KIM COLLINS, TRACEY COPPINS, LARRAINE CORBETT, ANN CUTTS, BRUCE CUTTS, PETER DALY, ED DANKIEWICZ, JOAN DAWSON, JEAN DUNSTAN, ALAN EVAN, ROSLYN EVANS, HOHANNA FETTER, PAUL FORSTER, RICHARD FOWLER, GERALD GALLIENNE, DANIELLE GANIM, ROBERT GOWLAND, ROBYN GOWLAND, ANN GRANT-TAYLOR, THERESA GREER, BEVAN, GRIESBACH, ALAN GRUMMITT, WENDY GRUMMITT, ZARA HORNER, JAN JENNINGS, WARWICK JENNINGS, ADRIAN JOHNSTON, IAN JONES, GREGORY JOSEPHSON, MARGARET JOSEPHESON, MAIN BEACH PROGRESS ASSOCIATION, TERENCE MAJOR, WENDY MAJOR, EILEEN MATTHEWS, ROBERT MATTHEWS, TERENCE MCCAN, ROSS MCLEOD, SHIRLEY MCLEOD, MERVYN MILLER, PETER MORGAN, JOHN NAGAN, LILLIAN NAGAN, NANCY OAKLEY, CHRISTUS ORPHANIDES, LOUSIA ORPHANIDES, NEVILLE PASK, CARMEL PEACHEY, CRAIG PEACHEY. GEOFFREY PEARSELL, JULIE PEARSELL, PAUL PUCKERRIDGE, MARK PULLEN, SHAUN RABIE, PETER RIGBY, SHARRON RIGBY, MICHAEL ROOTES, GERLIND SOLOMON, PETER SOLOMON, JOSEPH TARPEY, GEORGE TOPARIS, PAULINE TOPARIS, A.M. TURNER, JOHN TYQUIN, PAMELA TYQUIN, PAUL VERTULLO AND GRAEME WEIDENFOFER
(First Co-respondents by Election)
And
JAMES RODERICK BYRNE AND PATRICIA IRENE BYRNE
(Second Co-respondents by Election)
And
GWYN AITKENHEAD, NEIL AITKENHEAD, JANICE FLOWER, THOMAS FLOWER, LORRAINE GARVIN, JAB AUSTRALIA PTY LTD, BETTY SMYTHE, B.ST CLAIR, E. ST CLAIR, JAMES STYLES AND DARRYL WATTERSON-HILLARD
(Self-represented Co-respondents by Election)
FILE NO/S:
BD 996 of 2009
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
04 February 2011
DELIVERED AT:
Brisbane
HEARING DATE:
7, 8, 9, 12, 13, 14, and 16 July 2010 with subsequent further submissions received to 05 August 2010.
JUDGE:
Rackemann DCJ
ORDER:
Appeal allowed; Development Application will be approved subject to conditions. The further hearing is adjourned to allow the parties to consider the conditions.
CATCHWORDS:
PLANNING AND ENVIRONMENT – Applicant appeal – Proposed high rise residential building on a beach front site at Main Beach – Whether building too tall and bulky given its location and site area – Building height substantially greater than designation on overlay map – Whether height nevertheless complies with relevant performance criterion – whether in keeping with the predominant residential character of the surrounding area – Whether height would result in a significant loss of visual amenity – Whether compliance with other requirements of applicable codes, including with respect to Plot Ratio, Amenity, and Shadowing – Grounds for approval not withstanding conflict.
Cases Considered
Main Beach Progress Association Inc v Gold Coast City Council & Anor (2008) QPELR 675
WBQH Developments Pty Ltd v Gold Coast City Council (2010) QCA 126
Cass v Gold Coast City Council & Anor (2008) QPELR 556
ARIA Property Group Pty Ltd v Maroochy Shire Council & Ors (2008) QCA 169
The Purcell Family v Gold Coast City Council (2004) QPELR 521
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
WBQH Developments Pty Ltd v Gold Coast City Council (2009) QPELR 748
The Proprietors “Park Lane Apartments” v Gold Coast City Council & Anor (1997) QPELR 178
COUNSEL:
Mr Gore QC and Mr Job for the appellant
Mr Hughes SC and Mr Lyons for the respondent
Ms Kefford for the co-respondents
Mr Byrne (Solicitor) for the second co-respondents
SOLICITORS:
Mallesons Stephen Jacques for the appellant
McDonald Balanda & Associates for the respondent
Hopgood Ganim for the first co-respondents
James Byrne & Rudz for the second co respondents
TABLE OF CONTENTS
INTRODUCTION
BUILDING HEIGHT
(i)HEIGHT IN KEEPING WITH THE PREDOMINANT RESIDENTIAL CHARACTER OF THE SURROUNDING AREA
(ii)VISUAL AMENITY
(iii)PRECEDENT
OTHER DEVELOPMENT REQUIREMENTS OF THE RESIDENTIAL CHOICE PLACE CODE
DENSITY(i)
SITE COVERAGE(ii)
BUILDING SETBACK(iii)
SITING(iv)
APPEARANCE(v)
LANDSCAPING(vi)
AMENITY(vii)
THE HIGHRISE RESIDENTIAL AND TOURIST ACCOMODATION CODE
(i)PLOT RATIO
(ii)SHADOWING
(iii)MIMIMUM SITE AREA
GROUNDS FOR APPROVAL NOT WITHSTANDING ANY CONFLICT
CONCLUSION
This applicant appeal is against the Council’s refusal of an application for a development permit, for a material change of use, to facilitate the development of a high rise apartment building on a vacant beachfront allotment at 3565 Main Beach Parade, Main Beach. The co-respondents by election were some of the submitters who objected to the proposal.
There were a large number of submitters, many of whom used a pro-forma. The number of submissions is relevant, but of greater weight is the validity (or otherwise) of the grounds relied upon. Those grounds, insofar as they are reflected in the issues defined in this appeal, are considered in these reasons.
The issues in dispute centre upon the height, bulk and scale of the proposal and alleged consequent character and amenity impacts. A central allegation is that the building is too tall and bulky given its location and site area.
The site has an area of 882 m², being about 20m wide and about 44m deep. Three of its frontages are to public land – Main Beach Parade to the west, Beulah Lane (an access lane to the beach) to the north and the beach to the east. The southern boundary is to land which has a three storey residential development called “On the Beach.” That development is, as one might expect, orientated to the east and has also been built close to its common boundary with the subject site.
The site rises from the Main Beach Parade frontage (by about 2 m) to the beach frontage. Beyond that, the beach dune falls away to the beach proper. The proposed apartment building would cover 35% of the site, with landscaping proposed in the remainder.
The building itself is relatively narrow, presenting a width to the Main Beach Parade frontage of just under 13 metres. It incorporates side setbacks of between 3.78m and 4.83m from Beulah Lane, 4.75m from the southern boundary (with a small section reduced to 3.5m) and 8.5m from Main Beach Parade. The setback from the beach frontage is 6.85m.
The building’s orientation, design, setback and landscaping will provide an attractive presentation to the access lane to the beach. It will provide some further casual surveillance of that lane and serve to “activate” that frontage.
The locality of Main Beach is well defined. That part to the west of Tedder Avenue is developed with low rise residential housing, while that part to the east of Tedder Avenue, which includes the subject site, features a mixture of high and low rise residential development[1]. The high rise development visually dominates. As the urban design experts agreed:
“The subject site is located in a part of Main Beach that is predominantly a precinct accommodating a large number of tall residential buildings as opposed to that part of Main Beach to the west of Tedder Avenue which is predominantly a low rise precinct.”[2]
[1] There is also a business/commercial strip within Tedder Avenue.
[2] Exhibit 5, Table 12, page 3.
The proposal is for what would read as a 7 storey building with a partial 8th storey. The generous floor to ceiling heights result in the building technically being 10 storeys for the purposes of the planning scheme.
The units in the proposed building are large. The ground level apartment is to have 3 bedrooms; the next 5 levels are to each have 4 bedrooms and there is a penthouse apartment proposed for the top 2 levels. There are 2 basement levels proposed, with the first basement level containing 16 car park spaces, and the second basement level containing plant and storage areas. The proposal has a GFA of 2,049.37m², with most of the levels being about 280m². The 8th storey is less than 90m².
The maximum height of the building above finished ground level varies, due to the slope of the site, and the relatively small spatial extent of the 8th level. The 8th level will be set in on 3 sides, so that the building reads as a 7 storey building from the street. The east-facing side of the building will be 24.35m above finished ground level. At its west-facing side, the building will be 27.08m in height. The height to the top of the recessed 8th level is 29.43m.
Whilst ‘high rise’ development, the proposal is considerably lower than the tall towers which visually dominate to the west of Main Beach Parade. It is also lower than 3 nearby beachfront high rise developments, namely Golden Sands (18 storeys), Hibiscus (12 storeys) and Beachside (16 storeys), which are also to the east of Main Beach Parade. The closest and shortest of those (Hibiscus) is about 4m taller than the proposal. The joint report of the urban design experts described the building as ‘not tall’ while the joint report of the visual amenity experts referred to it as transitional. At the equivalent of 10 storeys, the building would be however, distinctly high rise.
As the relevant experts agreed, the proposed building is of high architectural quality and considerably better than the architectural quality of many of the buildings in Main Beach.
It is proposed to design, develop and operate the building so as to achieve a 6 star green-star rating. There is currently only 1 such rated residential building in the country.
The site falls within the Residential Choice Domain under the planning scheme. The statement of Intent for that domain is as follows:
“This domain seeks to support the provision of a range of housing choice that is responsive to the changing demographic structure of the City, whilst maintaining an efficient land use pattern. The purpose of this domain is to support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwelling and apartment buildings that relate well to each other. This domain seeks to:
· support residential densities that are moderately higher than traditional detached dwelling areas;
· facilitate a wide variety of home office, home occupation and residential support services to be located within the domain, commensurate with local residents’ needs; and
· achieve a high standard of residential amenity across the range of dwelling types in the domain.
Generally speaking, development for residential apartments is consistent with the Intent for the domain. The controversy in this case is not the type of development proposed, but its form and, in particular, its height, bulk and scale.
Building Height
The case against the proposal, in relation to height, relied, to a significant extent, on the relevant overlay map, being OM6-3, which depicts what is called “maximum building height.” That map shows the land to the immediate west of Main Beach Parade as within a 25 storey designation, while the land to the immediate east, including the subject site, lies within a 3 storey designation.
The proposal is for a building which is substantially taller than the 3 storeys which the overlay map, read in isolation, would suggest is the maximum. That was a recurring theme in the submissions made in opposition to the proposal during public notification and in the evidence called and submissions made by the respondent and co-respondents by election in its appeal. Reference was also made to the provisions of earlier planning schemes in relation to height.
Whether the proposal conflicts with the planning scheme by virtue of its height cannot, however, be determined simply by looking at the overlay map in isolation. Its relevance and proper application depend on the provisions of the planning scheme which refer to it. It is therefore necessary to examine those provisions to determine what use is to be made by the overlay map for the purpose of assessing the subject application.
The Table of Development for the Residential Choice Domain provides that, where (as here) proposed development exceeds the maximum number of storeys for the site identified on the overlay map, the application is impact assessable, rather than code assessable. The maximum height, as shown on the overlay map, is not an absolute maximum to which the planning scheme requires rigid adherence. It is the maximum beyond which an impact assessable development application is required. While the respondent and co-respondents conceded that the overlay map does not set mandatory maximum height, they submitted that substantial weight should be given to the overlay map in assessing the application[3].
[3] Reference was made to the extent to which the planning scheme uses height maps.
Attention was drawn to those higher order provisions of the planning scheme which refer to the preservation and enhancement of local character and to amenity[4]. For the reasons which I give later, I do not consider that this proposal would detract from the character or unduly impact upon amenity. Reference was also made to the Residential/Tourism Pacific Coast Land Use Theme which provides, in part, as follows (my underlining):
“Chapter 12Residential/Tourism – Pacific Coast
The Residential/Tourism – Pacific Coast Land Use Theme acknowledges the diversity of residential and tourism development along the Pacific Coast. It is located predominantly on the eastern side of the Gold Coast City Highway from Coolangatta to Labrador, and includes the eastern foreshores of the Nerang River at Surfers Paradise.
[4] Reference was made to DEO Soc 1 and supporting planning objectives, the Urban Heritage and Character Strategy, UH Policy 2 including UH 2.9, CI Policy 2 including 2.1 and the Urban Residential Landuse Theme.
1.0Planning intent
This Land Use Theme is distinct from the Urban Residential Land Use Theme, in that it recognises the need for both permanent residential accommodation and tourist accommodation, together with other related services and facilities.
However, the intended mix of permanent and tourist accommodation/facilities varies within this Land Use Theme. For example, there are character areas, such as Main Beach, Chevron Island, Budds Beach, Mermaid Beach, Burleigh Heads, Currumbin and Tugun, that each have a particular character and amenity that favours a strong permanent residential component, complemented by low intensity tourist development. By contest, areas such as Surfers Paradise and Broadbeach are much more strongly orientated toward tourism, while Coolangatta, Tallebudgera and Palm Beach appeal more to family holiday makers and those wishing to stay in a less intensive tourist environment.
Not all the coastal strip is therefore suitable or acceptable for high intensity tourist accommodation and entertainment facilities.
….
It is therefore intended that the special character of the various parts of the coastal strip be respected in future development in order to retain distinctive urban areas that offer diverse lifestyle and leisure opportunities.
…
A diversity of high quality architectural styles and urban design is envisaged, reflecting local character and townscape considerations, and incorporating Crime Prevention Through Environmental Design (CPTED) principles. Overlap Maps OM4-Residential Density and OM6-Maximum Building Height will be used to clearly articulate the desired outcome of density and built form for the various parts of the coastal strip.”
The respondent and co-respondents placed emphasis on the last paragraph of that statement of intent. The appellant pointed out that Main Beach, whilst referred to in that statement of intent, is included in the Residential Choice Domain rather than the Tourist Residential Domain (a point which had been made by the Council in attempting to support its approval in Main Beach Progress Association Inc v Gold Coast City Council[5]).
[5] (2008) QPELR 675 at [16].
This provision was examined in the Main Beach Progress Association case. As I pointed out (and as the written submissions on behalf of those co-respondents represented by Hopwood Ganim acknowledge), attention must ultimately be directed to the way in which the planning scheme gives effect to the overlay maps through the provisions relating to the applicable domain. That provides a more detailed basis for determining the level of expectation which may legitimately and reasonably be said to arise from the overlay maps.
As Fryberg J (with whom McMurdo P and Atkinson J agreed) observed in WBQH Developments Pty Ltd v Gold Coast City Council[6]:
“The function of domains is to implement through effective planning measures the purpose of each Land Use Theme. They are said to be the key to the assessment status of individual development proposals within their subject areas. Each domain provides specific information on development provisions for any development proposed within that domain. The provisions of the relevant domain must be carefully examined for definitive information on development within that domain.”
[6] (2010) QCA 126.
Further, Mr Hughes SC acknowledged that any conflict with the higher order provisions of the planning scheme, about the height maps clearly articulating the desired outcome, would be slight and easily overcome if the proposal was nevertheless found to have satisfactorily addressed the relevant performance criterion, concerning building height, within the relevant domain.
The provisions of the scheme for the Residential Choice Domain use the overlay map for building height in two ways: firstly, as already observed, as a trigger for when a development application will require impact assessment; secondly, it references the overlay map in the “Development Requirements” section of the Residential Choice Place Code. It does so however, only in the acceptable solutions to two identically worded performance criteria (PC1 and PC6), which state:
“All buildings must be of a height which is in keeping with the predominant residential character of the surrounding area. Building height must not result in a significant loss of residential amenity.”
Consistency with the height, as designated on the overlap map, is one of the acceptable solutions to that performance criterion. The code is performance based. Adoption of the acceptable solutions in not mandatory. In this case the non adoption of the acceptable solution triggers impact assessment. It cannot properly be regarded as also a prohibition on the approval of an impact assessable application, or even as necessarily establishing conflict with the relevant code. As the planning scheme itself provides (my underlining):
“Any impact assessable development must comply with the relevant parts of the whole Planning Scheme. Development that is consistent with the Acceptable Solutions of the code is considered to have complied with the code’s requirements. Development that does not comply with an Acceptable Solution may present an alternative solution to demonstrate compliance with the relevant Performance Criteria, in order to satisfy the requirements of the code.”
In the Main Beach Progress Association case I said:
“[89] Accordingly, as the Court has observed on a number of occasions, compliance with acceptable solutions is not mandatory. The “performance based” approach to codes in IPA planning schemes admits of the prospect of alternative solutions which may comply with the planning scheme, by meeting the performance criteria. Because the development requirements only reference the overlay maps in the acceptable solutions, the designations cannot be regarded as absolute maximums, notwithstanding the heading to the building height map.”
In short, in the context of the Residential Choice Domain, proposed development which complies with the designation in the overlay map is acceptable in terms of height. Proposed development which exceeds that designation on the map might (or might not) be acceptable, depending upon the result of impact assessment.
The overlay map is of relevance. Its use as a trigger for impact assessment and as an acceptable solution (compliance with which is said by the scheme to be desirable) and the Residential Tourism-Place Coast Landuse Theme[7] provide some positive encouragement for development which complies with the height designation on the overlay map, but it would be wrong to regard the designation on the map as setting mandatory maxima[8]. It would also be wrong to conclude that any development in excess of the designation is necessarily in conflict with the development requirements for land, such as the subject site, which is in the Residential Choice Domain.
[7] Assuming it to be applicable to land in Main Beach within the Residential Choice domain.
[8] Compare ARIA Property Group Pty Ltd v Maroochy Shire Council & Ors [2008] QCA 169 at [56], [63].
The Council has been more enthusiastic about pointing out the flexibility of its planning scheme, with respect to building height, in other cases, where it has approved development in excess of the height designations on the overlay maps, than in this case where it refused the development application.
In Cass v Gold Coast City Council & Anor[9] the Council approved a proposal which exceeded the relevant height and density designation on the relevant overlay maps. In dismissing an appeal against that approval, I said, consistently with the Council’s case, (my underlining):
“[32] These two maps were particularly relied upon by the appellant, in asserting conflict with the planning scheme. The maps must however, be read in the context of the planning scheme and having regard to the way the planning scheme utilises and gives effect to them. When that is done, it becomes evident that a departure from what is shown in those maps is not necessarily fatal and does not necessarily lead to a conclusion that a decision to approve the proposal would be in conflict with the planning scheme. It may affect the level of assessment and whether a proposal can claim to be compliant with certain acceptable solutions in the applicable code, but it does not preclude alternative solutions. For this reason the use of the word “maximum” may, unfortunately, have a tendency to mislead.”
[9] [2008] QPELR 556.
In the Main Beach Progress Association case, Senior Counsel for the council (which had, again, approved a proposal which exceeded the relevant height designation) described the heading to the map as “inappropriate” and the maps as “indicative only.”
In the Main Beach Progress Association case I said:
“The maps are not however, irrelevant. They are referenced in the acceptable solutions. While admitting of the prospect of other solutions, the planning scheme regards it as “desirable” that impact assessable development comply with acceptable solutions to ensure that the performance criteria is met, although there is also the prospect of an alternative solution.”
In short, the overlay map is relevant, but not necessarily determinative. That conclusion is, I perceive, consistent with the approach of the Court of Appeal in WBQH Developments Pty Ltd v Gold Coast City Council[10] as reflected in the following passages of the reasons of Fryberg J (my underlining):
[10] (2010) QCA 126 at [35]-[37].
“[35] In my judgment nothing in the passage quoted suggests that her Honour treated the maximum building height as mandatory or prescriptive. On the contrary, she expressly recognised the true function near the beginning of her reasons (citations omitted):
[7] Its failure to meet AS1 triggered impact assessment, instead of code assessment of the project. However, that does not establish a conflict with PC1. Compliance with acceptable solutions is not mandatory. If QBQH can demonstrate an alternative solutions meets PC1 there is no conflict.”
What her Honour wrote was undoubtedly correct.
[36] As WBQH correctly conceded, that does not mean that the content of an acceptable solution is irrelevant. It may indicate what the planning scheme desires or prefers as development in the particular area. It takes but a small inference from such a conclusion to find that the intent of the Scheme is to favour such development in that area. I reject WBQH’s submission that an express statement of desire is irrelevant in indicating a planning scheme intent. Under the heading “Planning Intent” this Planning Scheme expressly asserts that the overlay maps articulate the desired outcome. Moreover the Scheme makes a development impact assessable if it does not comply with the map. For an applicant to have to jump through extra hoops and pay the extra fees consequent upon that classification is not an indication of favour toward applications of that class.
[37] Of course the existence of such an intent does not conclude the question whether there is conflict between the proposal and the Planning Scheme. That necessarily follows from the fact that compliance with the performance criteria will satisfy the provisions of the code notwithstanding non-compliance with a corresponding acceptable solution. The existence or otherwise of such a conflict must be determined on all of the evidence and on the proper construction of the Planning Scheme as a whole. The weight to be given to the intent may be small. It is the task of the judge to evaluate all relevant matters in the exercise of the judgment of a specialist court.”
While conceding that the designations on the overlap map were not mandatory maxima, Senior Counsel for the Council contended that any development exceeding the three storeys should “retain or at least respect the open and generally low rise character of the surrounding area including the 3 storey beachfront strip”.
A proposed building which exceeds the acceptable solution as substantially as this one does would ordinarily attract somewhat closer scrutiny than one which exceeded the designation to only a minor extent[11], but ultimately the test is not whether the proposal approximates the acceptable solution,[12] but rather whether it meets the performance criterion. The performance criterion, in relation to height, is not specifically related to whether the proposal is of a low rise appearance or is within any particular margin of tolerance over the designated height on the overlay map.
[11] The Purcell Family v Gold Coast City Council [2004] QPELR 521 at 526(1).
[12]SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 at [48].
As was pointed out on behalf of the appellant, the planning intent for the Residential Choice Domain may be compared with, for example, the purpose of the Detached Dwelling Place Code which expressly seeks to “maintain a low rise urban form.” Further, it may be noted that the Council has seen fit to create local area plans, specific to other areas within the beach strip, namely the Spit, Surfers Paradise, Broadbeach, Burleigh, Palm Beach, Currumbin Heads and Coolangatta, but has been content to apply the provisions of the Residential Choice Domain to Main Beach, rather than descend to any more detailed planning for this locality.
The relevant performance criterion raises two issues, namely:
(1) whether the building would be of a height which is in keeping with the predominant residential character of the surrounding area; and
(2) whether the height of the building would result in a significant loss of residential amenity.
Those issues are essentially matters of fact, degree and judgment. In considering these matters I was assisted by the evidence of a number of experts and by visual aids, including photographs and photomontages. Some care, however, needs to be exercised in using these aids since, for example, a photograph or photomontage will show what appears by looking in a particular direction only from a particular point. Further it might not show the whole of what is visible either side of the borders of the photo. In this case my understanding of the evidence was greatly assisted by a detailed inspection of the site, some nearby premises and the area in general.
Height in keeping with the predominant residential character of the surrounding area
While this part of the performance criterion uses imprecise language, it calls for:
(i) an identification of the “surrounding area;”
(ii) an assessment of the “predominant residential character” of that area; and
(iii) a finding as to whether the proposal would, in terms of building height, be “in keeping with” that character.
“Predominant” means ascendant or prevailing.[13]
[13]Macquarie Dictionary, 2010.
The word “surround” means to enclose on all sides.[14] The word ‘area’, in context, connotes a relatively broad spatial identification of the land surrounding the site. The experts who gave evidence of their assessment of such matters took account of development on both sides of Main Beach Parade[15].
[14]Macquarie Dictionary, 2010.
[15] Richards T 4-48 to 49, Roughan T 5-9, Chenoweth T 5-58, Brown T 5-76, Hassal T2 – 64 & 65, Reynolds Ex 5 tab 15 para 55, the joint report of the urban design experts has been extracted above.
In WBQH Developments Pty Ltd v Gold Coast City Council[16], Kingham DCJ at first instance, said:
“As a starting proposition, I am not attracted by a narrow enquiry about character. Without good reason, the court should not adopt an overly restrictive approach or confine consideration to a narrow radius around the site.”
[16] 2009 QPELR 748 at 749 K-L
In the Main Beach Progress Association case[17] I rejected the contention that the extent of the “surrounding area” is to be limited to that part of the area which is within the same designation on the overlay map. The parties did not cavil with that proposition in this case. It was submitted for the Council that the “surrounding area” in this context could be either Main Beach as a whole or that strip of land, on either side of Main Beach Parade, North of Narrow Neck and South of the alignment of John Kemp Street. It was submitted on behalf of those co-respondents represented by Hopgood Ganim, that the surrounding area could be regarded as Main Beach as a whole, given it is a very well defined suburb.
[17] At para [100].
Main Beach is indeed a well defined part of the Gold Coast. In the Main Beach Progress Association case I described the predominant residential character of the area of Main Beach as a whole as follows[18]:
“Considered from a city wide perspective, Main Beach forms part of the “beach strip” and the “high rise spine” of “tall buildings along the coastline.” So much is acknowledged in planning strategy maps PS-10 and PS-11. The part of Main Beach which currently contributes to that spine is the area east of Tedder Avenue, which is visually dominated by high rise high density residential towers”
[18] At para [99].
As I have already noted, the site falls within that part of Main Beach, east of Tedder Avenue, which is visually dominated by high rise residential buildings. As long ago as 1996, it was said by Newton DCJ in The Proprietors “Park Lane Apartments” v Gold Coast City Council & Anor[19]-
“The predominant feature of the built environment in the Main Beach area is the number of high rise tower buildings… Main Beach also has many low rise unit buildings but they are not the predominant feature in the area.”
[19] (1997) QPELR 178 at 180.
While the “surrounding area” would take in development on both sides of Main Beach Parade, even if one were to look only at the beachfront strip, east of Marine Parade, the built form, in terms of height, is a mixture of heights from low to high rise, including three towers proximate to the subject site.
It is unnecessary for me to reach a concluded view about the exact boundaries of the “surrounding area” for the purposes of the performance criterion. However it is approached, the prevailing residential character, in terms of height, is mixed, with high rise buildings being visually dominant and influencing the predominant residential character of the area.
That does not necessarily mean that any building of any height on any site will necessarily be in keeping with the mixed predominant residential character. In the Main Beach Progress Association case, I observed that the mix, in Main Beach, is not entirely random. In particular[20]-
“A striking part of the predominant character of the surrounding residential area… is the dramatic difference between the predominantly high rise areas to the west of Tedder Avenue and the exclusively low rise nature of the residential development to the west of Tedder Avenue (and the low rise nature of the commercial strip).”
[20] At para [101].
Having regard to that “dramatic difference”, I allowed a submitter appeal against the Council’s approval of a proposed 5 storey development on the western side of Tedder Avenue, notwithstanding the mix which exists with Main Beach more generally.
No doubt conscious of that, the respondent and the co-respondents by election sought to mount a somewhat similar case, pointing to differences in relation to development on the eastern and western sides of Main Beach Parade. The two sides of Main Beach parade do not, however, exhibit the same dramatic difference that occurs on either side of Tedder Avenue. To the west of Tedder Avenue, development is exclusively low rise. To the east of Main Beach Parade building heights are mixed and vary from what would, in ordinary parlance, be described as low rise to medium and high rise. A significant proportion of the eastern side of Main Beach Parade forms the frontage to the allotments on which Golden Sands, Hibiscus, and Beachfront Towers are built. There are also other buildings on the eastern side of Main Beach Parade which exceed 3 storeys in height[21].
[21] See Ex 8, figure 6.
There was an attempt to reduce the significance of the existing 3 tall buildings on the eastern side of Main Beach Parade, on the basis that their construction pre-dates the relevant planning controls, which give some encouragement to 3 storey development to the east of Main Beach Parade. Reliance was placed upon the following part of the reasons of Kingham DCJ at first instance in WBQH Development[22] in relation to the relevance of two existing tall buildings in Miami:
“[24] In resolving these linked questions of area and character, the existence of the two buildings cannot be disregarded. Nevertheless, the circumstances in which they were constructed and the pattern of development in the area since their construction is relevant in determining later planning scheme provisions. When built, planning approval was not required. There was, then, no height restriction or preference expressed by a planning scheme. Since then, a seven storey height restriction or trigger has been a feature of all three Planning Schemes adopted in 1982, 1994 and 2003. Under those schemes no further building of that nature at this end of Palm Beach have been approved. Whether any were applied for is not in evidence. The fact is a broad policy intention that has been repeatedly endorsed by the Council and there has been no departure from it. The impact the existence of these buildings may have on the application of the current planning scheme must be considered in that context.”
[22] [2009] QPELR 746 at 749.
The factual context in that case was quite different to this. As the photograph attached to the reasons of the Court of Appeal (which is also annexed to these reasons) shows, the two buildings at Palm Beach stood out, at one end of an area otherwise dominated by low rise development.
While the proposed highrise in WBQH sought to gain comfort from the 2 existing tall highrise buildings Kingham DCJ found, however, (my underlining):
“ [37] While there are distinct features at the southern end of Palm Beach, the two tall buildings stand in contrast to the predominant built form. Even on a narrowly delineated scale, at that end of the suburb, arguments are legitimately raised that the distinctive local character is established by the low rise development of Currumbin Sands and the remaining single dwellings south of the Towers. There is also the influence on character of the open space of the Parkland to be considered.
A [38] Palm Beach presents to me as a distinct coastal part of the city because of the geographical features which delineate its northern and southern extents and because of the consistency of its built form which differs from that encountered in other coastal parts of the city. Overlay Map 6 reinforces a planning intent to preserve that character, low rise residential development.
B [39] Royal Palm and Princess Palm are discordant features which clash with, rather than complement that character. A third building of a similar height to the smaller of the two will be no less discordant.
In the context of Main Beach, Golden Sands, Hibiscus and Beachfront Towers, while historical, are not discordant with the character of the surrounding area. Something of the difference in character between Palm Beach and Main Beach can be gleaned from a comparison of the photographs annexed to these reasons.
A similar issue arose earlier in The Purcell Family v Gold Coast City Council[23] where Quirk DCJ said as follows:
[23] [2004] QPELR 521 at [20] and [23].
“I do not regard that as being a matter of telling importance. The development that lends character to this area is there on the ground and there is every indication that is will remain there for some considerable time. To suggest that its influence upon the area’s visual amenity should be disregarded because it was approved prior to the planning controls we are considering here is, as I see it, a little unrealistic. To do so would attribute to the area a character which it simply does not have.
…
“I believe the development that is in place in this particular part of Marine Parade is important because the determinative matter as identified in the Performance Criterion is whether the proposal is in keeping with the predominant residential character of the surrounding area. As I have indicated I am persuaded by the evidence that it would be.”
It is the predominant residential character of the surrounding area which must be assessed. There is nothing in the planning scheme which warrants applying the test in PC1 without paying due regard to the existing buildings which contribute to that character. I am not, at least in the context of this case, prepared to discount the influence of the existing tall buildings on the eastern side of Main Beach Parade, in determining the predominant residential character.
The respondents and the co-respondents by election painted the character of the eastern side of Main Beach Parade as more “open” than the western side. That is true to an extent. There are fewer tall high rise buildings and those are shorter than many of the tall high rise buildings to the west of Main Beach Parade (creating something of a gradation in height – west to east - towards the beach) and are separated by a greater number of low rise developments.
It should be noted that, as the visual experts identified, there are two visual catchments (or sub catchments) on the eastern side of Main Beach Parade. The distinction between development on the eastern and western sides of Main Beach Parade is more noticeable in the southern of those, where development varies from 2 to 7 storeys[24], but there are no existing high rise developments which are in the same order of magnitude as Golden Sands, Hibiscus, Beachfront Towers or indeed, the proposal. The difference is however, much more subtle in the northern visual catchment which includes these three existing high rise developments (as well as the subject site).
[24]This refers to the building at the southern extremity (Kapulua), which is much shorter than the proposal.
Mr Chenoweth acknowledged the difference would probably not be obvious to a first time visitor as they drove along Main Beach Parade. He said[25]:
“...To a casual observer driving there for the first time, like a lot of the Gold Coast you get the impression that this is a highrise area. It really requires more – either a more trained eye or someone who’s more experienced in the nuances and subtleties of the Gold Coast to realise that there are differences.”
[25]T 5-45.
Mr Reynolds, the town planner called by the appellant, described the difference accurately in the following passage of the joint report of the town planners:
“55.Taken together, Mr Reynolds concludes that the predominant residential character of the surrounding area is closely spaced high rise residential apartment buildings. There exists a transition to a greater spacing of high rise to the beach (between Golden Sands and Beachside Tower Apartments), creating an increased sense of open character between those towers. However, this existing transition is subtle in the local context of the site…The result is a distinctly fragmented and mixed urban form to the east of Main Beach Parade in the local context of the site.”
Even allowing for that subtle distinction either side of Main Beach Parade, the proposal’s height will, I find, sit comfortably and be ‘in keeping’ in the context of the residential character of the surrounding area. Although distinctly high rise (the equivalent of a ten storey building) it is not as tall as the development to the western side of Main Beach Parade and is marginally shorter than the shortest of the tall high rise buildings on the eastern side of Main Beach Parade.
The respondent and co-respondent painted the building as neither fish nor fowl, in that it is neither as tall as the existing towers nor as short as the low rise residential development. The description of the building by some of the experts as transitional was seized upon and I was reminded of what I said in the Main Beach Progress Association case about a proposed 5 storey building being neither one thing nor the other, in the context of the sharp distinction in Tedder Avenue between tall high rise on the one side and low rise on the other. I have already noted that, in the context of Main Beach Parade, there is something of a graduation in building height, from west to east, towards the beach[26]. There remains however, significant height disparities between the high and low rise elements on the beachfront site. The proposal, which, in terms of height, is of a similar order of magnitude to Hibiscus and substantially taller than the low rise developments, will be distinctly high rise and will be “in keeping” with that.
[26] Indeed the visual amenity experts described the visual environment in which the subject site lies as transitional. See para 2.7 of the report of the meeting of 10 May 2010.
Further, the building is sufficiently separated from the three existing taller buildings on the beachfront side to maintain a somewhat more open character on the Eastern side of Main Beach Parade. Not only is it a relatively narrow building, set back from the boundaries of its own site, but it is separated from Golden Sands to the north by Beulah Lane, three low rise developments and a substantial open area on the southern part of the Golden Sands site. It is separated from Hibiscus, to the south, by two intervening low rise developments. Beachfront Towers is located further to the south again, with further intervening low rise development (as well as Aloha Lane) between Hibiscus and Beachfront Towers. I do not accept Mr Chenoweth’s assessment that the proposal would unduly fill the gap between the existing high rise.
There was an attempt to bring a consideration of site area into the question of whether the building height of the proposal would be in keeping with the predominant residential character of the surrounding area. It was said, as Newton DCJ had observed in the Park Lane Apartments case, that (my underlining):
“High rise buildings are predominant and the new Residential Developments are generally of high quality, comprising tall accommodation towers on relatively large sites which feature extensive landscaping”.
Indeed, Mr Brown’s opposition to the proposal was influenced by his view of the height of the building and the site area considered together[27]. It was submitted, on behalf of the Council, that:
“the prevailing residential character, is a combination of tall buildings occupying relatively small footprints in substantial allotments, or relatively low buildings, occupying a greater proportion of allotments, in circumstances where both afford an open residential urban character”.
It was submitted that the proposal was neither of those.
[27] T 6-34 L 25; T 6-59.
I am not sure that the performance criteria, in dealing with building height, invites a consideration of site area. The provisions which specifically deal with site area are discussed later. The site is perhaps modestly sized for a development of this height, although, as was pointed out for the appellant, it is greater than the minimum area of 600square metres specified in the acceptable solution to PC 12 of the High Rise Residential and Tourist Accommodation Code. On the other hand, the building footprint covers only 35 per cent of the site area, would have substantial landscaped setbacks and is on a site which has public land on three sides, including the access lane to the beach (such that the space about the building will appear greater than just that which is available on site).
Even assuming site area to be relevant to this performance criterion, I do not consider that the site area, in this case, renders the height of the building out of keeping with the predominant residential character of the surrounding area.
Insofar as this part of the performance criterion is concerned, I generally prefer the evidence of the experts called by the appellant. Those experts who expressed contrary views were too heavily influenced by the fact that the proposal is not in accordance with the designation on the overlay map. I did not find their evidence, as to why the proposal did not nevertheless meet this part of the performance criterion, convincing. For example, Mr Richards, having identified the overlay map as the dominant feature of his reasoning[28] conceded that, if he put it to one side, “a tall building could be a possibility in that instance”[29].
[28] T4-45 l 50
[29] T4-51 l 21
Mr Brown, the town planner called by the co-respondents and Ms Roughan, the town planner called by the respondent, were heavily influenced by their perception that the proposal would be inconsistent with the planned character, which they took as dictated by the overlay map. While I have acknowledged the relevance of the overlay map, the opinions of Mr Brown and Ms Roughan gave too much weight to it. Asked whether she had used the overlay map both as the reason the proposal became impact assessable and as the reason why it could not be approved upon an impact assessment, Ms Roughan replied:
“That’s right. I think fundamentally that’s right …”[30].
[30] T5-25 l 45
Mr Reynolds, on the other hand, expressed the view, in the joint report as follows:
“68. Mr Reynolds says that, at all the scales the surrounding area is perceived, the proposal was consistent with the predominant residential character. It follows that the proposal does not represent a ‘new’ urban form or character. Specifically, the proposed building remains lower than the existing three towers on the eastern side of Main Beach Parade and is consistent with the mixed height and permanent residential apartment character of the area. For example, it is not an intensive tourist development. Because of the building’s form and height, it will maintain a greater open character on the eastern side of the Main Beach Parade compared to the western side. In this way the subtle existing transition (between the western and the eastern sides of Main Beach Parade) that has evolved in this part of Main Beach Parade will clearly be maintained”.
I accept the appellant’s submission that:
“Mr Reynolds considered the importance and bearing of OM 6-3 in a thorough and balanced way. The point that he makes that the stark distinction drawn by the map on opposite sides of Main Beach Parade is not so obvious in the local context of the site is valid, as is his view that the subtle distinction that exists is both maintained and enhanced by the proposal, which sits comfortably within the fragmented and mixed urban form that defines the area to the east of Main Beach Parade”.
In the context of this case, I do not consider that the designation on the overlay map ought be given determinative weight. I find that, as a matter of fact, the proposal is of a height which is in keeping with the predominant residential character of the surrounding area.
Visual amenity
The second limb of the performance criterion requires a consideration of the impact of building height on visual amenity. Impacts on visual amenity include that on outlook and views. Mr Reynolds was wrong to think that this did not include loss of outlook and views from within neighbouring properties, although he did not regard such impact as significantly adverse in any event.
In this case, there will be some loss of visual amenity for some neighbours, particularly from some of those to the west of Main Beach Parade, by reason of some interference with their outlook and views to the beach, ocean and sky. The question posed by the performance criterion however, is not whether there is any loss of visual amenity (there would be some even by reason of a 3 storey building) but whether the loss would be significant. That also involves questions of fact and degree.
The outlook and views enjoyed by many neighbours within Main Beach would be affected only to a trivial extent. Because the proposal is relatively narrow, the impact of its lower levels is likely to be less than what could be expected of a wider 3 storey development[31]. Attention therefore focused particularly on the likely impact of the higher storeys of the proposal on units in the mid levels of buildings to the west.
[31] Although, as the appellants pointed out, reasonable expectations should include the possibility, consistently with the scheme, of buildings higher than 3 storeys.
The greatest impact would, as Mr Chenoweth acknowledged, be to a small number of units above the fourth or fifth floor of the building most directly to the west (Carrington Court), up to possibly Level 12[32]. Dr Hassell did not consider that any loss or view from the Spinnaker Apartments would be significant.[33]
[32] T5.62-5-63
[33] T2-62 ll 12-14
The impact on those limited number of units in Carrington Court would, in absolute terms, be greater than for others. The existing views or vistas from these non-beachfront properties are framed by the existing beachfront buildings, particularly Golden Sands and Hibiscus. The views or vistas are quite substantial. As was pointed out on behalf of the respondent and co-respondents, the spacing between the existing high rise buildings allows for reasonable ocean views/vistas from the non beach front properties. The proposal would result in some further interference, but even so, the views or vistas would remain both reasonable and indeed substantial. It may be noted that the photo montages do not show the whole of the vistas from Carrington Court. In particular they do not show those available north of Golden Sands[34].
[34] T5-63 L35
The issue of character was also discussed in the context of visual amenity. For the reasons discussed, I do not consider that the height of the proposal would adversely affect the character of the area.
Mr Chenoweth was also concerned about the appearance of the building. That is discussed later, because this performance criterion is concerned with height. I do however, consider that the appearance of the building is likely to enhance rather than detract from the visual amenity of the area.
The building would also not be of such a height as to create any undue visual impression of being overbearing in its context. Indeed, Main Beach features many examples of high rise development in the immediate proximity of low rise development. There are taller buildings, including on the other side of Main Beach Parade, which are in the viewshed of the neighbouring low rise developments.
Having regard to the existing visual amenity and the likely impact of the proposal, I find that the likely loss of visual amenity resulting from the subject proposal would not, as a matter of fact and degree, be significant.
Precedent
The lay witness statements[35] show that there are some local residents who are concerned that approval of the proposal would, in effect, set a precedent for high rise development east of Main Beach Parade more generally. It was submitted, on behalf of the Council, that this concern has some basis, since it was said that the proposal would itself effect some change to the predominant residential character of the surrounding area, against which future proposals would be judged.
[35] Exhibits 31 – 40.
This court has, of course, been cautious about accepting arguments that it should refrain from giving an approval, otherwise justified on its own merits, out of fear that it might lead to a later inappropriate decision on some other site at some future time. Each application must be assessed on its merits. Further, I do not accept the factual premise of the Council’s submission, namely that the proposal would lead to a change in the predominant residential character of the surrounding area. I am satisfied that it would be in keeping with that character.
My conclusion that the proposal is appropriate in terms of building height is not made in spite of, but because of, the provisions of the planning scheme and, in particular, because of my findings of fact that the proposal would meet both limbs of the relevant performance criterion.
My conclusion is about this proposal on this site. In reaching my conclusion I have not attempted to determine what an appropriate building height on other sites along the beachfront strip might be. If anyone proposes a building in excess of three storeys (being the height on the overlay map) on another site in the future then the acceptability of that height would have to be judged by reference to the performance criterion. Different conclusions might well be open in relation to one or other of the limbs of the performance criterion, if proposals for similar height buildings were made for other sites. For example the same factual findings would not necessarily apply in the visual catchment which extends south of Beachfront Towers, or on a site or sites which would unduly fill the gap between this proposal (were it developed) and Hibiscus. In short, the factual conclusion that this proposal meets PC 1 would not be, and should not be regarded as, a precedent for a factual conclusion that any other proposal meets the performance criterion.
My conclusion as to the acceptability of the proposal’s building height also does not involve any criticism of the three storey height designation on the overlay map. That is a building height which is acceptable on any parcel of land within the designation. I can understand why the Council would wish proposals for high rise development on the beachfront to be subject to impact, rather than code, assessment.
Other development requirements of the Residential Choice Place Code
The Residential Choice Place Code (the purpose of which mirrors the intent for the Domain) contains development requirements for more than just building height.
(i) Density
Accommodation density is dealt with in Performance Criterion 2 and related Acceptable Solutions. Where, as here, the site is within a designation on Overlay Map OM 4 – Residential Density, the proposal will satisfy the Acceptable Solution if it does not exceed the designated density. The relevant map, in this case, is OM 4-9 which includes the subject site within an RD 6 designation, which permits up to one bedroom per 53 square metres of net site area. The proposal is within the Acceptable Solution. The contrary was not suggested.
(ii) Site Coverage
Site coverage is dealt with in PC 3 and the corresponding Acceptable Solutions. The site coverage of the proposal, at 35 per cent, is well within the 40 per cent referred to in the Acceptable Solution. The proposal complies. The contrary was not suggested.
(iii) Building Setback
Building setbacks are dealt with in PC 4 which provides:
“All buildings must provide for setbacks from the street frontage and the side and rear boundaries of the site, which are appropriate to the efficient use of the site and the streetscape character of this domain.”
It is also dealt with in PC1 and 2 of the High Rise Residential and Tourist Accommodation Code as follows:
“PC1
All buildings and associated structures must provide for setbacks from the street frontage and the side and rear boundaries, having regard to:(a) the efficient use of the site;
(b) the streetscape character of the local area;
(c) the existing and future built form of the adjoining sites;
(d)the separation from neighbouring properties and from frontages to roads.
PC2
The development must provide appropriate separation from adjoining developments and from other buildings on the same site to maximise:
(a) sunlight penetration;
(b) ventilation;
(c) privacy.
The proposal incorporates setbacks which substantially exceed those nominated in the corresponding Acceptable Solutions, except for minor exceedance at the upper levels. There will be some impact on the “On the Beach” development, but I am satisfied that the setbacks are appropriate in relation to the matters referred to. The setbacks are, I am satisfied, consistent with the performance criteria and are appropriate.
Siting
Siting is dealt with in PC8 which states as follows:
“All buildings must be sited to complement the built form of the surrounding area and to maximise utility of the open space on the site, having regard to a site analysis, prepared in accordance with Planning Scheme Policy 17- Site Analysis.”
There is no Acceptable Solution specified in relation to that Performance Criterion. The building, on its site, will complement the built form of the surrounding area, provide a substantial amount of on site open space, and proposes to treat that open space well. There is nothing about the siting of the building, within the boundaries of its site, which results in conflict with the Performance Criterion.
Appearance
Building appearance is dealt with in PC 9 and its associated Acceptable Solutions which are as follows:
PC 9 Acceptable Solutions PC 9 All buildings must be designed and constructed to a high aesthetic standard, and complement or enhance the character of the local area AS 9.1 The massing and proportions of new buildings are consistent with those of adjoining or neighbouring buildings AS 9.2 Building materials, patterns, textures and colours used in new buildings are complementary to those of nearby buildings
It has already been noted that the architectural quality of the proposed building is high and, indeed, higher than what applies to many other buildings in Main Beach. Whilst aesthetics are necessarily somewhat subjective, the building incorporates a range of interesting design features including in respect of materials, patterns, textures and colours. It will, I find, be designed and constructed to a high aesthetic standard.
While the mass and proportions of the proposed new building are obviously different from its immediate neighbour to the south, it is not particularly large in the context of Main Beach. It was pointed out that the use of design features results in a building which, in this case, is aesthetically different from others in the area, which are often characterized by the appearance of vertical stacking, layer upon layer, of visually identical floor plates (as if they were a stack of pancakes). That the proposal departs from that monotony would add some interest. What the Performance Criteria seeks is not replication, but designs which “complement or enhance” the character of the local area. I am satisfied that the proposal would do both.
(g)will enhance, and deliver a new standard for the streetscape of the locality for the many reasons also identified by Mr Middleton;
(h)delivers an improved CPTED outcome than would a low rise building, particularly to Beulah Lane; and
(i)provides a more open character than would be provided in the case of a 3 to 4 storey development, of the type which would be undoubtedly reasonably expected, with setbacks which merely comply with Acceptable Solutions. Such a development would obviously have a greater impact upon views from the street, and to the beach, over its 3 to 4 levels than would the proposal.
As to (a), I would use the words “reasonable and acceptable” rather than “maximum”. As to (i), the observation that the building is narrower than what could be expected of a low rise proposal needs to be balanced with the observation that it is higher and has greater mass than would be expected with such a low rise alternative.
Otherwise, I accept that those are aspects of a proposal which, I find, has substantial overall merit.
Conclusion
The appellant has discharged its onus. The appeal will be allowed and the application approved subject to conditions. I will give the parties an opportunity to consider the appropriate conditions.
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