S & S No. 4 Pty Ltd v Council of the City of Gold Coast
[2024] QPEC 42
•20 September 2024
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
S & S No. 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42
PARTIES:
S & S NO. 4 PTY LTD (ACN 648 406 277)
(appellant)
v
COUNCIL OF THE CITY OF GOLD COAST
(respondent)
And
LINDSAY CLARE
(first co-respondent by election)And
JOHN CRIDDLE
(second co-respondent by election)And
NARELLE CRIDDLE
(third co-respondent by election)
And
DAVID CROSS(fourth co-respondent by election)And
NICOLE CROSS
(fifth co-respondent by election)And
VALERIE ANN HAMILTON
(sixth co-respondent by election)And
NICOLA SUZANNE HANSFORD
(seventh co-respondent by election)And
JOHN HICKS ON BEHALF OF COMMUNITY ALLIANCE (ACE) ASSOC INC
(eighth co-respondent by election)And
LANCIA JORDANA
(ninth co-respondent by election)And
GERARD McCORMICK
(tenth co-respondent by election)And
STEPHEN MORTENSEN
(eleventh co-respondent by election)And
NICK ROWE
(twelfth co-respondent by election)And
ANTHOULA SMITH
(thirteenth co-respondent by election)And
JEANETTE SPEEDY
(fourteenth co-respondent by election)And
JOHN BERNARD VOLZ
(fifteenth co-respondent by election)And
SALLY JENNIFER BOWERS
(sixteenth co-respondent by election)
FILE NO/S:
2194 of 2022
DIVISION:
Planning and Environment Court
PROCEEDING:
Applicant appeal against refusal
ORIGINATING COURT:
Planning and Environment Court, Southport
DELIVERED ON:
20 September 2024
DELIVERED AT:
Brisbane
HEARING DATE:
15, 16, 17, 18 & 19 July 2024
JUDGE:
Williamson KC DCJ
ORDER:
1. The respondent is to provide a draft conditions package to the other parties by 16 October 2024.
2. The appeal is adjourned to 23 October 2024 for review in Brisbane.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against a decision to refuse an 18 storey mixed use development in the Centre zone – where development exceeds the height prescribed in a Building height overlay map in the respondent’s planning scheme – whether a building height uplift provision in the respondent’s planning scheme is complied with – whether the development will have unacceptable traffic safety impacts – whether the development complies with the respondent’s planning scheme – whether the discretion should be exercised in favour of approval or refusal.
CASES:
Abeleda v Brisbane City Council (2020) 6 QR 441
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850
Dajen Investments & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309LEGISLATION:
Planning Act 2016, ss 45, 59 and 60
Planning and Environment Court Act 2016, ss 43, 45 and 46
COUNSEL: Mr C Hughes KC with Mr B Rix for the appellant
Mr M Batty and Ms M Rodgers for the respondentMr T Matthews KC with Mr M Campbell for the co-respondents by election
SOLICITORS: Minter Ellison Gold Coast for the appellant
Corrs Chambers Westgarth for the respondentEden Lawyers for the co-respondents by election
Introduction
This is an applicant appeal against Council’s decision to refuse an impact assessable development application seeking approval for a high-rise development in the Centre zone at Palm Beach.
The land the subject of the development application is a prominent site, located towards the middle of the Palm Beach district centre, on the south-western corner of the intersection of Gold Coast Highway and Palm Beach Avenue (the site). Having regard to existing improvements in combination with its centre zoning, the site is materially underdeveloped; it is ripe for redevelopment. It was uncontroversial that Council’s adopted planning controls encourage a form of redevelopment significantly greater than the bulk, height, scale and density of the existing development on the site.
Council, and the co-respondents by election who made properly made submissions adverse to the development application (the submitters), oppose the appeal and contend for refusal. The planning issues advanced in support of refusal by Council and the submitters overlap. The issues go to matters of building height, traffic safety and compliance with version 8 of Council’s 2016 planning scheme (the planning scheme).
At first blush, the case in favour of refusal starts on a solid footing. The proposed development exceeds the standard prescribed in Council’s planning scheme for building height in the order of 50%. The significance of the exceedance was not lost on the public; 1863 properly made submissions objecting to an earlier iteration of the development took issue with excessive building height and density. While the building height exceedance is an important issue, it is not fatal to the success of the development application. Unlike other parts of the planning scheme area, the land is not included in a designation where there is an expression of planning policy discouraging building height at or above 50% greater than the prescribed standard: cf with s 3.3.2.1(10). Relevantly here, the planning scheme provides an opportunity for building height ‘uplift’ in excess of the prescribed standard in a mixed use centre, provided specific requirements are met. Whether the requirements of the uplift provision are met in the circumstances of this case is the key planning issue in the appeal.
The appeal is a hearing anew: ss 43 and 46(1) of the Planning & Environment Court Act 2016.
It is for the appellant to establish the appeal should be upheld: s 45(1)(a) of the Planning & Environment Court Act 2016.
The site and surrounding locality
The site:
(a)is level and rectangular in shape;
(b)comprises two contiguous lots with a total area of 1,230 m2;
(c)has two driveways;
(d)is improved with built to boundary single level commercial buildings that have a gross floor area of 1,070 m2;
(e)is improved with a large electronic billboard (advertising device) mounted on top of one commercial building, facing the signalised intersection at Gold Coast Highway/Palm Beach Avenue: Ex. 5.03, p. 25;
(f)has no significant vegetation; and
(g)is not burdened or benefitted by any easements.
As to adjoining neighbours, the site is well placed. It has no residential neighbours. The only adjoining neighbour is the Palm Beach Hotel. This use sits on an ‘L-shaped’ lot, which is 5,050 m2 in size and adjoins the southern and western boundaries of the site.
To the immediate south of the site there is an aggregation of built form comprising older single and two storey commercial buildings. It is either built to boundary or has a small setback to the Gold Coast Highway. The two-storey built form is the Palm Beach Hotel, which includes a drive-thru liquor component. The rear of the hotel faces an at-grade carpark that spans between Palm Beach Avenue (to the north) and Fifth Avenue (to the south).
To the immediate west of the site is the same at-grade carpark discussed above. It presents a 40 metre wide frontage to Palm Beach Avenue. The carpark is available to hotel patrons and provides paid parking facilities for the public. The at-grade carpark area provides a generous separation distance from the rear of the site to an older single storey commercial building to the west of the carpark.
The site has two road frontages. It has a 29 metre frontage to the Gold Coast Highway, which is a four lane median divided State controlled road with peak hour volumes (past the site) in the order of 2,640 to 2,800 vehicles. On-street parallel parking is available on both sides of the Gold Coast Highway. The site has a 39 metre frontage to Palm Beach Avenue, which is a two-way, two-lane Council controlled sub-arterial road providing the main connection from Palm Beach to the Pacific Motorway in the west. This road carries peak hour traffic volumes past the site in the order of 610 to 680 vehicles. On-street parallel parking is available on the sides, and in the centre median, of Palm Beach Avenue.
Forward planning documents convey an expectation that the Gold Coast light rail is intended to pass the site through a passenger transport corridor, connecting Broadbeach and Coolangatta. While no funding is committed, and the precise timing for the delivery of this infrastructure is unknown, it can be observed that the Department of Transport and Main Roads has started planning for the project. The planning reflects, at this stage, that a light rail station will be provided on the northern side of the Gold Coast Highway/Palm Beach Avenue intersection: Ex. 6.10, Figure 3.
A broader study area reveals the site is located at the southern end of Palm Beach, which is a well-defined and consolidated suburb. The suburb is bookended by Tallebudgera Creek to the north and Currumbin Creek to the south. The eastern edge of the suburb is defined by the ocean. The Pacific Motorway defines the western edge. A prominent character element is the Gold Coast Highway, which provides a north-south spine. Perpendicular cross-streets extend from the spine in an easterly and westerly direction, providing an orthogonal street network. This facilitates permeability and walkability for pedestrians, particularly where cross-streets terminate at the beach. This occurs at the eastern end of Palm Beach Avenue, about 140 metres east of the site.
The existing built form character of Palm Beach is not homogenous.
The area to the east of the Gold Coast Highway between the two bookends includes medium to high rise residential buildings. The built form is a prominent visual and character element. The age, height, scale and design of the buildings vary. Modern built form (about 29 to 39 metres in height) is visually dominant near the site when it is viewed from the Gold Coast Highway (looking north and south). Existing development to the west of the Gold Coast Highway is less intense than the eastern side. It retains a low-rise character, albeit with prominent exceptions. Existing built form also varies in age, scale and design. While predominantly residential in nature, the western side of the Gold Coast highway is punctuated with commercial uses. Uses of this character are concentrated in the Palm Beach district centre. The site is located in about the middle of the centre.
The Palm Beach district centre is a traditional highway orientated centre occupying five street blocks, from Eighth to Fourth Avenue between the Gold Coast Highway and Cypress Terrace. In land use terms, the centre comprises a mix of shops, offices, commercial and personal services, older houses and newer multiple dwellings. The tallest buildings in the centre are: (1) a mixed use development between Fourth and Fifth Avenue; and (2) a new 39 metre high multiple dwelling (comprising a tower and modest podium) located at the corner of Seventh Avenue and Cypress Terrace.
Mr Curtis, who is an architect and landscape architect, undertook a detailed examination of the existing character of the Palm Beach district centre. His examination and conclusions about character are helpfully set out in s 3.1.1.2 of exhibit 6.03. I accept this evidence. It establishes the following matters.
First, a significant contributor to the character of Palm Beach and its district centre is the Gold Coast Highway. The highway defines the eastern edge of the centre. It is visually dominant. Its presence and level of activity is unmistakeable, undeniably contributing to the feel, identity and sense of place. In terms of streetscape character and pedestrian amenity, the highway edge makes a poor contribution. Mr Curtis described the streetscape in the centre as exposed, robust and harsh. This can be accepted given the highway edge lacks meaningful landscaping and exhibits limited pedestrian amenity. This is not assisted by the existing built form in the centre that faces the highway.
The existing built form facing the Gold Coast Highway generally comprises one and two storey commercial buildings built to boundary (or close to it). It is visually dominated by the height and scale of new development on the eastern side of the Gold Coast highway, which is transitioning to a taller and more intense residential character.
In the district centre, a review of existing built form reveals that tower and podium design is uncommon, if not the exception to the rule. The built form is also fragmented, varying in age and design. From a streetscape perspective, the built form does not present a continuous activated face to the highway. Rather, it is a collection of buildings that are punctuated by local roads, driveways, service areas and access points to carparks. The disruptions in built form continuity have resulted in the presentation of hard building edges to local roads, adjoining properties and the Gold Coast Highway.
Second, the road network in and around the centre is rectilinear. The roads connecting to the Gold Coast Highway at right angles are ‘Avenues’. The layout of the road network, and legibility it provides, contributes to the character, local identity and sense of place of Palm Beach, including the centre.
Save for a few exceptions I will mention shortly, a number of common character elements can be identified in the Avenues comprising the centre. The ‘street edges’ of the Avenues are, in the main, hardscaped and exhibit varying degrees of pedestrian friendliness. Built form is predominantly one to two storeys in height. Save for one exception, tower and podium design is not present. There are significant variations in the design and age of built form. The streetscape and built form, in the main (save for a few exceptions) are, as a consequence of the above matters, visually discordant, lacking the activation and amenity expected in modern planning terms for a centre location.
As I have said, there are exceptions to the above. They are as follows:
(a)a new 39 metre high tower and podium design has been constructed on the corner of Seventh Avenue and Cypress Terrace, and can be seen popping up above the roofline of the district centre on its western edge;
(b)Fifth Avenue at its eastern end (approaching the Gold Coast Highway) presents the most cohesive section of streetscape within the centre – this is due to a combination of street trees within the verge and activated building frontages; and
(c)an existing two storey commercial development along the southern edge of Eighth Avenue presents a coherent activated frontage to the footpath.
Third, the underlying subdivision pattern in the district centre is not uniform. Large lots appear to be concentrated to the south of the intersection of Palm Beach Avenue and the Gold Coast Highway. The greatest concentration of smaller allotments (that may require amalgamation in the future) are located to the north of Palm Beach Avenue. The subdivision pattern is relevant to existing and future character. In terms of future character, the subdivision pattern taken in conjunction with the adopted planning controls gives a sense of those sites that are likely candidates for redevelopment. The site is such a candidate.
Fourth, Palm Beach Avenue is fairly described as the most important of the Avenues in the centre. Mr Curtis identified four reasons why this is so. Save for some additional emphasis that I would add, I agree with his reasons. The reasons, taken in combination, can be stated as follows:
(a)the road is classified as a sub-arterial road located at the midpoint of the district centre;
(b)the road has a different function to the other Avenues within the district centre – it provides access to the Pacific Motorway (M1);
(c)the road is greater in width than the other Avenues in the district centre, accommodating a row of central parking with intermittent landscaping; and
(d)the road extends to the east of the Gold Coast Highway, providing access to the beach.
Finally, the contribution Palm Beach Avenue makes at present to the feel, identity and sense of place of the district centre is not particularly telling. The northern side of the street is improved with a two storey commercial building that wraps around the corner. The balance of this side of Palm Beach Avenue is characterised by development that varies in age and design. It is fragmented. The fragmentation is the product of inconsistent setbacks and the disruption of built form by driveways. While there is some landscaping, the pedestrian environment does not enjoy particularly good amenity. The southern side of Palm Beach Avenue includes the site. The streetscape is activated in part in this location by commercial built form. That form varies in quality, design, age and setbacks. The balance of the streetscape is visually dominated by the at-grade carpark to the rear of the Palm Beach Hotel.
With the benefit of considerable visual aids before the Court, and the evidence of Mr Curtis, I have little hesitation in concluding that the existing character, identity, feel and sense of place for the Palm Beach district centre is informed by a combination of elements, namely that: (1) it is exposed on one side to a highway carrying significant volumes of passing traffic; (2) it has a mix of low intensity land uses; (3) there is a clear predominance of low rise and small-scale built form, which is fragmented, varies in design and is dated; (4) existing built form is subordinate (in terms of bulk, height and scale) to new development on the eastern side of the Gold Coast Highway; (5) there is a clear predominance of street frontages, which are not activated, or lack the pedestrian environment/amenity expected in a centre of this size and function; and (6) the district centre is within walking distance to the beach and proximate to natural features (see paragraph [13]).
With respect to item (4) above, this conclusion is not difficult to reach having regard to recently approved and constructed development to the east of the site, across the Gold Coast Highway. This area is earmarked for medium density residential living and is outside the district centre. Exhibit 9.20, in conjunction with the site inspection conducted with counsel, confirms the eastern side of the highway is undergoing significant redevelopment to the north and south of Palm Beach Avenue. In this location, older development is being replaced with taller, modern built form ranging in height from five to 13 storeys. Adjacent to the site, there is a new mixed use nine storey building on the south-eastern corner of the intersection of Gold Coast Highway and Palm Beach Avenue: Ex. 9.20, building H. A modern nine storey building has been constructed further to the east of this development (Ex. 9.20, building I), which adjoins a site with an approval for a ten storey building: Ex. 9.20, building J. A nine storey building is also approved to the north of the eastern side of the intersection of the Gold Coast Highway and Palm Beach Avenue. It is not yet constructed: Exhibit 9.20, building G.
It was suggested during cross-examination that, in character terms, the Palm Beach district centre exhibits characteristics of a village, or has a village feel. I do not accept this is a fair characterisation of the existing character of the centre. It does not have, nor does it exhibit, a village character. This is, in large measure, for the reasons given by Mr Curtis, which I accept. He concluded that the district centre was not a village given its size, highway orientation and feel/identity/sense of place derived from existing built form. These matters, taken together with the features identified in paragraph [27], do not exhibit a village character or village feel.
The proposed development
The appellant seeks approval for a material change of use of the site. A mix of new uses are proposed, namely multiple dwelling (16 units – 4 x 2 bedroom and 12 x 3 bedroom), short term accommodation (135 hotel rooms), food and drink outlet, function facility, indoor sport and recreation and hotel.
The form of the development proposed is depicted in architectural plans (Ex. 5.01), landscape plans (Ex. 5.02) and photomontages (Ex. 5.03). Save for the total building height stated in metres, a review of this bundle of documents confirms the development is as described by the architects in their joint report. Paragraphs 21 to 23 of that joint report (Ex. 6.05) are as follows (figures omitted):
“21 The proposed 18 storey development will have a total height of 58.5m comprised of a 5-storey podium and a 13-storey tower. Four basement levels will accommodate car parking (refer to Figures 17 and 18 below).
22 The podium, including the awning that extends along and partially over the Gold Coast Highway and Palm Beach Avenue frontages, will have a site cover of 100%. The podium accommodates hotel front and back of house facilities, recreation facilities, Café, dining and bar tenancies, a health spa, building services and a porte-cochere along the Palm Beach Avenue frontage, which provides vehicle and service access to the Site. A two storey void space is provided at levels 3 and 4 over a recreation terrace and café/bar that extends along the Palm Beach Avenue and Gold Coast Highway frontages.
23 The tower has a reduced site cover of 66.80% and will accommodate hotel rooms and suites on its lower nine storeys and a mix of 2 and 3-bedroom apartments on its upper four storeys (refer to Figure 19 below).”
Contrary to paragraph 21 of the architects’ joint report, the proposed elevations and floor plans indicate that the overall building height is, at its tallest, 58.83 metres. This figure differs not only to that stated above, but also to: (1) the building height stated in the town planning joint report (58.65 metres); and (2) the building height suggested by Mr Batty in cross-examination to Mr Curtis (61.85 metres). The figure of 58.83 metres is calculated by deducting the height of the ground floor at its lowest level (north of grid line A in the outdoor dining area), which is RL 5.37, from the highest point on the roof of the development, being the ‘Top of Screen & Fire stair’ at RL 64.200.
I am satisfied this point of clarification is without consequence. This is because I have proceeded on the footing that the maximum height of the built form, including any structures or plant on the roof, will not exceed RL 64.200. This is consistent with the proposed plans and photomontages. It is also consistent with Mr Curtis’ evidence. To remove any doubt, a development condition should be imposed prescribing the maximum height of the development, including any structures or plant on the roof, by reference to a registered level. This level will be RL 64.200 AHD.
The architects examined the setbacks of the proposed development to the site boundaries: Ex. 6.05, para 24. While there was some disagreement about particular dimensions, a review of the plans confirms Mr Curtis’ opinion should be accepted. His evidence establishes that the setbacks for the proposed development vary as one moves from the building base up the tower. The development (save for particular protrusions identified by Mr Curtis): (1) is built to boundary from ground level to level 2; (2) is set back from three of the four site boundaries on level 3, ranging from 0.6 to 1.5 metres; (3) is set back from all boundaries on level 4, ranging from 1.62 to 3.0 metres; (4) is set back from all boundaries on levels 5 to 13, ranging from 2.38 to 4.5 metres; and (5) is set back from all boundaries on levels 14 to 17, ranging from 1.4 to 4.5 metres.
Photomontages were prepared for the proposed development by Mr Petersen. The images depict the development from viewing points agreed in the joint report marked exhibit 6.01. It is Mr Petersen’s view, along with Mr Curtis, that the photomontages are an accurate depiction of the proposed development. I accept this evidence. The photomontages are of great assistance.
Mr Petersen was cross-examined about the accuracy of the photomontages in light of condition 7 of the Chief executive’s amended referral agency response (Ex. 4.03). He was asked whether condition 7, which requires all but a few balconies to be treated with gap free materials, had been reflected in the photomontages. Mr Petersen confirmed this was not the case. This point was then taken up in cross-examination with Mr Curtis. He explained that the requirements of condition 7 were of little moment and could readily be included in the design without altering the appearance of the development as depicted in the photomontages. I accept Mr Curtis’ evidence in this regard.
The photomontages, examined together with the proposed landscaping plans and architectural plans, make good Mr Curtis’ evidence about the design of the proposal and its acceptability. The particular part of his evidence to which I refer is comprehensive. It is set out in paragraphs 31 to 169 of exhibit 6.05. Save for two points of clarification, I accept this evidence. It was of great assistance.
The two points of clarification relate, in the first instance, to a red line at 10.5 metres high in the photomontages and, secondly, the reference made to impacts of an ‘alternative 39 m high development’. The former is a reference to a height standard stated in an acceptable outcome in the planning scheme for new podiums: AO1.1(c) of the High-rise accommodation design code. The standard envisages a situation where there is no neighbouring low-set built form. This applies to the Palm Beach frontage of the site but not the southern end of the site on the Gold Coast Highway frontage. In my view, it is unclear whether the 10.5 metre standard is intended to apply to this case. As a consequence, I have put it to one side, along with any reference to it in the evidence. The latter point of clarification, at first blush, appears to represent an attempt to call in aid an alternative development as a point of comparison. On closer inspection, this is not the case. I have approached this aspect of Mr Curtis’ evidence on the basis that where reference is made to a 39 metre high development, this is for the purposes of comparing the proposed development, in terms of impacts, to one that complies with the applicable Building height overlay map.
With the benefit of Mr Curtis’ evidence, the architectural plans, landscape plans and photomontages, I was satisfied about the following matters of siting, design and built form appearance.
The proposed development has been designed and sited as follows:
(a)the built form is aligned with the boundaries of the site, parallel to the Gold Coast Highway and Palm Beach Avenue. This alignment, as demonstrated by the photomontages, positively contributes to the legibility of the orthogonal street layout. It reinforces the corner of the intersection of the Gold Coast Highway and Palm Beach Avenue, which is an important urban element for the district centre;
(b)the built form is designed to activate two street frontages in different ways. Access is provided for pedestrians and vehicles (left in-left out only) from Palm Beach Avenue to the proposed hotel’s porte-cochere and basement parking (108 equivalent carparking spaces). No vehicle access is permitted from the Gold Coast Highway (condition 5, Amended referral agency response (Ex. 4.03)). Access from this frontage is limited to pedestrians. A pedestrian entrance to the ground floor is provided via an oversized door at the corner of the Gold Coast Highway and Palm Beach Avenue. This, again, reinforces the prominence of the corner. In the context of access and activation for the development as a whole, an examination of the design for both road frontages makes good Mr Curtis’ point that:
“Except for the fire egress and substation, the east facing Gold Coast Highway frontage and the north facing Palm Beach Avenue frontage are almost fully visually permeable and activated by the porte-cochere that functions as the hotel’s ‘Grand entrance’ and the adjoining restaurant/bar.”
Turning to matters of built form appearance, the proposed development has four identifiable components; it has a base (ground floor), a podium, a middle and a top. These distinct forms modulate the bulk of the building and fragment the continuity of its height.
As I have already said, the base or ground floor of the building provides for vehicle and pedestrian access via a porte-cochere adjoining Palm Beach Avenue and an outdoor dining colonnade activating the Gold Coast Highway frontage. Behind the porte-cochere and outdoor dining area is a ‘double height space’ with the hotel lobby, restaurant/bar, lifts and back of house facilities. Mr Curtis helpfully described this part of the development in these terms (Ex. 6.05, para 35):
“The porte-cochere, lobby and restaurant/bar are all accommodated within a double height space that reinforces the hotel’s visibility and presence at the corner of the intersection. A feature staircase within the double height space connects the ground floor to a foyer on the third storey (Level 02) that provides access to a function space foyer and day-spa. Containerised landscaping extends around the north and east facing sides of the floor plate to provide an elevated vegetated edge to the street frontages.”
The podium, which is built to boundary for the first 3 of its 5 storeys, is differentiated from the tower above. The differentiation is achieved by a combination of setbacks, articulation and the use of varied external materials and finishes. In particular, there is a clear separation between the top floor of the podium and the tower above, where recreation facilities are provided. This separation is such that it provides an appreciable visual break between the podium and tower above. It can be observed that Mr Robinson, Dr McGowan and Mr Richards, who also gave evidence about the design of the proposal, suggested the separation between the podium and tower was insufficient and the transition confusing. I do not accept this evidence is made good by the photomontages.
The podium is built to the western boundary. The photomontages reveal this wall will be visually apparent because of its juxtaposition with an at-grade carpark. Redevelopment of the adjoining land, as encouraged by the planning scheme, is likely to conceal most of this built to boundary podium wall. In the interim however, the wall has been designed with a decorative pattern to visually articulate and fragment its visual mass. The top storey of the podium also includes fringe landscaping that provides a cap, which will soften its visual impact.
The southern podium wall is built to boundary and adjoins an existing low-rise commercial building. The podium wall is visible above the adjoining development when viewed from the south. Redevelopment of the adjoining site in accordance with the planning scheme is likely to conceal most, but not the upper most part, of the podium wall. Again, for the interim period, the design of this part of the podium will display decorative patterns and has changes in colour. This will serve to visually articulate the appearance of the podium and fragment its visual mass.
The tower sitting above the podium has two distinct components. The first component can be seen from levels 5 to 13. This is where the hotel suites are located. The second component can be seen from levels 14 to 17. This part contains the proposed residential apartments. The two components are readily distinguishable by reference to: (1) the proposed landscaping regime; (2) differing building materials; (3) the position of windows/external openings; and (4) the provision of continuous or non-continuous balconies. Only the residential component has continuous balconies on its northern and eastern sides. As would be expected, the balconies for the hotel suites are limited by the size of each suite and the need to achieve physical separation from any adjoining suite.
The photomontages and architectural plans also reveal that the western and southern facades of the tower have been designed in anticipation of redevelopment of the Palm Beach Hotel and the associated at-grade carpark. The design response is entirely sensible and explains visual differences between the north/east facades on the one hand and south/west facades on the other.
The provision of a cap, or skirt, around the top of the tower differentiates it from the residential component beneath. The cap finishes the top of the building in an attractive way and further breaks down the visual height, bulk and scale of the development.
The hotel is intended to achieve a 4 plus star standard. In support of this stated intention, evidence was led from Mr Gedoun; he is an experienced hotel operator. The proposed hotel will be owned and operated by one of Mr Gedoun’s companies, with assistance from the TFE Group.
Mr Gedoun’s evidence establishes that the intention to operate the hotel to a particular star rating is reflected in the design of the development. For example, his evidence helps to understand why the internal layout of the hotel includes services and facilities, such as a day spa and conference area. While I accept Mr Gedoun’s evidence in this regard, it does need to be treated with some caution. Whether the hotel will be operated in a way that achieves a particular star rating is, in my view, elusive in planning terms; it is not a feature of the development I am satisfied should be the subject of a condition. As a consequence, the matter of importance in my assessment has been the built form and the extent to which it manifests Mr Gedoun’s stated intention. This is to be ascertained from the proposed plans. The built form depicted in the plans, unlike the stated intention, can be the subject of a condition.
Statutory assessment framework
The statutory assessment framework for this appeal is prescribed by the Planning Act 2016 (the Act). The Act requires, among other things, the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.
Section 45(5)(a)(i) of the Act mandates assessment against assessment benchmarks in a categorising instrument. Section 45(7) confirms that the reference to an assessment benchmark is one in effect when the development application was properly made. Here, that captures version 8 of the planning scheme (the planning scheme): Ex. 9.01.
Section 45(8) of the Act permits the giving of weight to a planning scheme amendment that took effect after a development application was properly made. In this case, this captures version 11 of the planning scheme, which was in force at the time the appeal was heard. The outcome of the appeal does not turn on the application of this version of the planning scheme. The disputed issues are all identified by reference to version 8: Ex. 8.08, footnote 42.
The statutory assessment framework is to be approached in accordance with the following Court of Appeal authorities, namely: Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441; Wilhelm v Logan City Council & Ors [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309. Having regard to these authorities, it can be observed:
(a)the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad, evaluative judgment’;
(b)in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the Act admits of more flexibility to approve an application in the face of non-compliance with a planning scheme;
(c)the exercise of the discretion under s 60(3) of the Act is subject to three requirements, including that it be based upon the assessment carried out under s 45; and
(d)the Act does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.
Planning context
Council’s planning scheme commenced in February 2016 and was amended for alignment with the Act in July 2017. As I have already observed, version 8 of this document contains the assessment benchmarks of relevance to this appeal.
The Strategic framework is contained in Part 3 of the planning scheme. It sets out the forward planning for the planning scheme area. A review of that forward planning reveals the identification of a network of centres and an associated centres hierarchy: s 3.4. Palm Beach is a mixed use centre, designated as a district centre in the hierarchy. This is the lowest level of mixed use centre in the hierarchy: s 3.4.1(5).
District centres are discussed in ss 3.4.2.1(12) and (13) of the Strategic framework as follows:
“(12) District centres support a mix of employment activities as well as other population needs related to goods and services. They are limited in size and intensity to serve the ‘employment precinct’ role provided by the higher order mixed use centres – central business district, principal centres and major centres. More intensive development activity is focused in these higher order mixed use centres.
(13) District centres provide a range of retail, office and employment land uses and some community and civic services for a catchment of between 20,000 and 40,000 people and are intended to provide around 3,000 jobs. Services include:
(a)entertainment and recreational facilities (including cinemas);
(b)primary, secondary and limited tertiary education facilities;
(c)State or City of Gold Coast services and facilities;
(d)health services;
(e)community facilities;
(f)professional services;
(g)subregional retail facilities including a discount department store (in some district centres where there is an economic need), full-line supermarkets and specialty supporting retailing;
(h)secondary retailing, including bulk retailing automotive retailing and service stations; and
(i)visitor accommodation.”
The Palm Beach centre is one of 12 district centres discussed in s 3.4.2.1. Subsection (21) of this provision states:
“(21) Palm Beach is an integrated, mixed use centre comprising shopping, residential accommodation, eating, entertainment, community and ancillary services for residents and tourists.”
(emphasis added)
This is an accurate description of the existing land uses in the Palm Beach district centre. The proposed land uses are also consistent with this description. If approved, the development will comprise a mix of uses that serve residents and tourists.
Council’s forward planning does not suggest the role and function of the Palm Beach centre is intended to change. It will remain a district centre. While the footprint of the centre will remain unchanged, considerable growth is, however, anticipated, and encouraged, in terms of the built form. This can be demonstrated by reference to building height overlay maps. Building height overlay map 21 indicates that the height profile encouraged for the Palm Beach district centre is 39 metres. This can be contrasted with the existing profile, which, adopting a favourable view, is predominantly one to two storeys, or about 9 to 10 metres in height. The proposed development is in the order of 59 metres in height, or put another way, 50% taller than the height depicted on the relevant Building height overlay map.
There was no dispute the planning scheme encourages dramatic change to the height, bulk and scale of built form in the Palm Beach district centre. The controversy is whether the proposed development pushes this encouragement beyond breaking point. Council and the submitters contend the proposed development does precisely this; they say it is too big, bulky and overbearing. The appellant contends otherwise, relying upon a building height uplift provision in the strategic framework.
Section 3.4.4.1(4) of the Strategic framework explains the purpose of the Building height overlay maps for mixed use and specialist centres. It states:
“(4) The Building height overlay map shows the desired building height pattern and appearance for mixed use centres and specialist centres. This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high-rise areas.”
What is the desired building height pattern and appearance for the Palm Beach district centre?
The relevant Building height overlay map provides for a desired building height profile across the district centre of 39 metres. This is defined in the planning scheme as ‘High rise building height’. It can be contrasted with the building height profile desired for surrounding land in the Medium density residential zone. Development in the immediate surrounds is planned to be 29 metres in height, which is defined in the planning scheme as ‘Medium rise building height’. The profile reduces in height as one moves further to the west and south. These areas are planned, predominantly, for buildings of 2 storeys (9 metres), which may include a partial third storey. A building of this height is defined in the planning scheme as ‘Low rise building height’. When the Building height overlay map is considered as a whole, it reflects a forward planning strategy as to the desired building height pattern and appearance for Palm Beach: the desired pattern and appearance involves high rise buildings in centre stepping down to surrounding residential development (out of centre), which is predominantly medium rise, reducing to low rise further to the west and south. This is a deliberate strategy. It is confirmed as such by the last sentence of s 3.4.4.1(4) of the Strategic framework. This provision speaks of a ‘deliberate and distinct contrast’ between, inter alia, ‘medium or high-rise areas’. The contrast suggests here that Council, as the planning authority, desires a building height pattern and appearance where the tallest and most intense activities occur in centre.
The Building height overlay maps reflect an important metric for development assessment. This is reflected in overall outcome (2)(d)(ii) of the Centre zone code (the CZC). This provision is relevant to ‘built form’ and provides as follows:
“Built form-
…
(ii)has a building height that does not exceed that indicated on the Building height overlay map;
The proposed development, with a maximum height of RL 64.200, exceeds the building height in metres shown on the Building height overlay map. It is, as a consequence, non-compliant with overall outcome (2)(d)(ii) of the CZC.
Despite the absolute terms of overall outcome (2)(d)(ii), the Building height overlay maps do not prescribe an inflexible standard for development proposed in the Centre zone. This is exposed by s 3.4.4.1(5) of the strategic framework. This provision provides an opportunity to achieve greater building height in a mixed use centre where a cumulative list of requirements are met (the uplift provision). The uplift provision is in the following terms:
“(5) Increases in building height occur in mixed use centres and specialist centres 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 residents;
(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’ significant natural features;
(g)deliberate and distinct built form contrast in locations where buildings 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.”
Compliance with subsections (e), (g) and (h) of the uplift provision is not in issue in this appeal. Compliance with subsection (g) is, in my view, a matter supporting approval when it is considered in the context of the discussion at paragraph [64].
It was submitted on behalf of the appellant that the uplift provision is different to the uplift provision considered by the Court in recent cases: e.g., Dajen Investments & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32. The Court has considered ss 3.3.2.1(9) and (10) of the Strategic framework. They apply to urban neighbourhoods and not centres. The former is a building height uplift provision. A comparative exercise makes good the point advanced by the appellant. There are two differences of note between the uplift provision applying to centres as distinct from urban neighbourhoods. They are:
(a)s 3.3.2.1(9), unlike s 3.4.4.1(5), provides that increases in building height may occur in ‘limited circumstances’; and
(b)s 3.3.2.1(10) states a policy position for which there is no analogue in s 3.4.4.1, namely it makes clear that increases in building height beyond 50% are not anticipated in urban neighbourhoods – no equivalent policy statement is made in relation to mixed use centres.
The absence of ‘limited circumstances’, in combination with the absence of an analogue to s 3.3.2.1(10), indicates Council, as the planning authority, has made a deliberate planning decision in relation to building height uplift for land in mixed use centres. The deliberate decision is one that admits of greater flexibility for increased building height (in comparison to urban neighbourhoods). This is perhaps unsurprising given medium and high rise buildings are intended to be concentrated in mixed use and specialist centres to ‘reinforce urban legibility, centre identity [and] sense of place’: s 3.2.2.
This should not, however, be taken as a suggestion that building height prescribed for development in centre can be treated as if it were unlimited or without constraint. The overlay maps are an important metric. To exceed the height shown on an overlay map, a proposal located in centre must meet all of the requirements set out in s 3.4.4.1(5) to avail itself of planning scheme support. The requirements may, unlike the urban neighbourhoods designation, be met by a proposal that is more than 50% greater than the height prescribed by an applicable overlay map. Whether these requirements are met in any given case turns on matters of judgment, impression, fact and degree.
Finally, it should be observed as a matter of context that the scale and intensity of development proposed in centre is expected, inter alia, to be consistent with what is anticipated by the hierarchy of centres: see overall outcomes (2)(b)(ii) and (2)(d)(i) of the CZC. It is unnecessary to dwell upon this in any detail here because it cannot be sensibly suggested that an approval will: (1) disrupt the centre’s hierarchy; or (2) detract from the stated intention that the highest intensity of built form occur in the highest order centres (as anticipated by, among other things, s 3.4.1(8) of the Strategic framework). As to item (1), it was not suggested by any party contending for refusal that the proposed development, if approved and constructed, would lead to the Palm Beach centre having a role and functioning as anything other than a district centre. As to item (2), I accept Mr Perkins’ evidence. He said the proposed development will not blur or confuse the distinction between the height, bulk and scale planned for Palm Beach in comparison to that planned for higher order centres. This would include areas such as Broadbeach and Surfers Paradise on the coastal strip of the Gold Coast. That these areas will not be usurped by the bulk, height and scale of the proposal is obvious once it is appreciated that they include sites promoted for high rise development, free of a building height limit.
The submissions
The development application was impact assessable and subject to public notification. The notification process attracted 1,965 properly made submissions. About 95% (1,863) objected to the proposed development. The remainder supported approval.
The submissions are contained in exhibits 9.03 to 9.06. I have perused them, with particular focus given to those adverse to approval.
The submissions adverse to the proposal need to be read with care. They are directed towards an iteration of the development application where approval was sought for a much taller building than the proposal before the Court. The submissions were also cast without the benefit of the photomontages before the Court.
A review of the adverse submissions reveals a number of common issues were identified. The issues related to building height, density, traffic impacts, inadequate carparking provision and adverse impacts on character, local identity and sense of place. Each of these matters were the subject of consideration in this appeal.
I was particularly interested in the content of submissions to gauge the public’s view about the local identity and sense of place of Palm Beach. This is a matter to be considered for subsection (a) of the uplift provision. While there is a very substantial number of adverse submissions that are repetitive in terms and substance, I considered one to be a good representation of how the public view the identity and sense of place of Palm Beach. The adverse submission states (Ex. 9.04, p. 3228):
“There are few other locations on the Gold Coast like the villages of Palm Beach, Currumbin and Tugun. Visitors travel from far away to enjoy the outdoor low-key lifestyle still available in this unique part of the Gold Coast.
…
Palm Beach has been a suburban, low to medium rise residential area for nearly 100 years successfully preserving its village atmosphere. The Centre District, which is the lowest in the hierarchy of centres under the City Plan, is characterised by small boutique shops, cafes, restaurants businesses and local services. The Palm Beach shopping precinct incorporating Coles, a butcher, liquor outlet, pharmacy and other speciality shops is single level.”I do not accept the assessment here (in relation to sense of place and local identity) should proceed on the footing that the above discussion represents the complete picture. It makes no reference to the planning scheme and planned character. It makes no reference to how that planning will impact on sense of place and local identity. Further, the discussion set out above sits uncomfortably with the findings in paragraphs [28] and [29].
The adverse submissions are entitled to weight in the assessment of the development application. The issues raised, and the overwhelming number adverse to the development point towards refusal. However, when adverse submissions are viewed through the lens of paragraphs [75] and [78], they do not, in my view, attract significant weight in the exercise of the discretion.
The disputed issues
Council’s written submissions, which were adopted and relied upon by counsel for the submitters, contend (Ex. 9.29, para 18) that the issue of approval/refusal in this appeal turns on the resolution of three questions, namely:
(a)whether the proposed development complies with the uplift provision;
(b)whether the proposed development gives rise to unacceptable traffic impacts, including safety impacts; and
(c)whether the proposed development should be approved or refused having regard to relevant matters nominated by the parties, including need.
Non-compliance with the planning scheme (beyond the uplift provision) is also relied upon to refuse the development application. Consistent with Council’s written submissions, this alleged non-compliance will be examined contemporaneously with the questions posed in subparagraphs (a) and (b).
Does the development comply with the uplift provision?
The uplift provision is set out at paragraph [67]. It comprises 8 subsections.
Council, and the submitters, do not allege non-compliance with subsections (e), (g) and (h). The dispute between the parties is directed at subsections (a), (b), (c), (d) and (f).
For the reasons that follow, I am satisfied the proposed development complies with the disputed parts of the uplift provision. In arriving at this conclusion, I readily accept, given the nature of the subject matter, that compliance is a matter about which reasonable minds may differ. In this regard, I was grateful for the assistance of Mr Schomburgk, Dr McGowan, Mr Robinson and Mr Richards. Their evidence was based on a careful and close examination of the development. On balance, however, I preferred the evidence of Mr Curtis and Mr Perkins. I was satisfied they, unlike their counterparts, gave appropriate weight to the dramatic built form changes promoted by the planning scheme for the district centre, and the extent of discord (in built form terms) this would create during the period of transition from existing to planned character. Their views were also consistent with my own views of the visual aids before the Court. The visual aids demonstrate a range of things, including that the proposed development: (1) will not be too big, bulky or overbearing when considered in its context, including context provided by existing built form on the eastern side of the Gold Coast Highway (as discussed in paragraphs [15] and [28]; (2) will be of a height that achieves an appropriate contrast and distinction with surrounding development (of the kind discussed in paragraph [64]); (3) will be of an excellent standard of appearance; and (4) will not adversely impact on the future development potential of adjoining or adjacent land.
I will now deal with the disputed subsections of the uplift provision in turn.
Subsection (a): a reinforced local identity and sense of place
Subsection (a) requires consideration to be given to whether the increase in building height proposed above that prescribed on the relevant overlay map will, if approved, reinforce ‘local identity and sense of place’. This phrase is not defined in the planning scheme. Having regard to the immediate context in s 3.4.4.1, there is no reason to conclude it is to be given anything other than its plain and ordinary meaning. No party suggested otherwise.
What is the local identity and sense of place?
The local identity and sense of place is influenced by a combination of features. They are identified at paragraph [27] and can be split into two categories; natural features and the existing built environment.
With respect to the natural environment, the suburb of Palm Beach is surrounded by the beach, coastal edge and natural landscape features: paragraph [13]. The proposed development will not remove, alter or detract from these natural features. Rather, the proposed development will activate two streets in the district centre and, in doing so, improve pedestrian comfort and access to, among other things, the beach. This will reinforce local identity and sense of place to the extent it is informed by the provision of pedestrian access (for residents and tourists) to an important natural feature of the suburb, namely the beach.
The existing built environment of Palm Beach is discussed at paragraphs [7] to [28]. The existing character, feel and sense of place of the district centre is informed by a combination of the following elements, namely: (1) the presence of a highway carrying significant volumes of passing traffic; (2) the predominance of low rise and small-scale built form that is fragmented, varied in design and dated; (3) that existing built form is subordinate (in terms of bulk, height and scale) to new development on the eastern side of the Gold Coast Highway; and (4) a predominance of street frontages, which are not activated, or lack the pedestrian environment/amenity expected for a centre of this size and function. These matters in combination indicate that the local identity and sense of place for the centre is fairly described as a busy, highway orientated centre with a built environment ripe for redevelopment and, save for limited exceptions, is lacking pedestrian amenity.
Having regard to the features of the built environment discussed above, I am satisfied the proposed development will ‘reinforce’ the character/sense of place/local identity in five ways. First, it will be located in the ‘centre of the district centre’ on a prominent site; this will reinforce the importance of the centre in land use terms. Second, the contrast between the proposed development and existing built environment will reinforce that the district centre is ripe for redevelopment. Third, the proposed development will likely act as a catalyst for the redevelopment of other sites within the centre. Fourth, a comparison between the proposed development and existing development in the Medium density residential zone will reinforce that the district centre accommodates the tallest and most intense land uses in Palm Beach. Fifth, the proposed development will not interfere with those parts of the district centre exhibiting appropriate levels of pedestrian amenity.
Before dealing with the future built form character of the district centre, it is correct to observe, as Mr Schomburgk said, that there are elements of the existing centre the planning scheme seeks to maintain. It was his view that this captured the pedestrian friendly parts of the centre where there are activated street frontages: T4-28, L21-33. This can be accepted as correct. The proposed development will not detract from these features of the centre and, in my view, will reinforce them. It will do so by creating a pedestrian focus at the corner of Palm Beach Avenue and the Gold Coast Highway. This focus will activate two street frontages, reinforcing the prominence and identity of Palm Beach Avenue.
When an assessment of a development application involves an examination of character, sense of place and local identity, it can be approached in the manner discussed in Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850 at [86]:
“An assessment of the character of an area should be considered broadly, and fairly. Subject to the requirements of the adopted planning controls, this means it is an assessment that should be informed by not only existing character, but also: (1) an objective reading of the adopted planning controls to ascertain whether existing character is intended to remain unaltered or, like here, intended to change over time; and (2) extant development approvals granted in the relevant area by an assessment manager, but not yet acted upon.”
Here, an examination of built form character, and the acceptability of the proposal in this context, must take into account the extent to which development approvals (yet to be activated) and the planning scheme represent a departure from existing character. The former is not a matter of particular moment for the centre at present. It is the impact of the planned change that is significant.
In this case, there is little doubt the planning scheme heralds a significant departure, in built form terms, from the existing character of the district centre. Mr Schomburgk, the town planning witness called by Council, correctly characterised the extent of the change as ‘dramatic’. The planned change manifests in the promotion of materially bulkier and taller buildings, which may comprise towers sitting above a podium. Built form of this nature will materially alter the character of the centre – it would no longer be characterised as predominantly low rise, low intensity uses. The centre is intended to exhibit a greater scale and intensity of development in comparison to development outside of the centre. This is clear once it is appreciated that: (1) the building height profile of the centre as depicted in the relevant Building height overlay map is higher than the surrounding area (included in the Medium density residential zone); and (2) inflexible standards (empirical) are not prescribed in the planning scheme for setback distances or three-dimensional building controls (such as a site cover limitation) for towers that sit above a podium in the Centre zone. Item (2) means that the size and bulk of future built form, along with building-to-building relationships is, save for building height, examined primarily against qualitative rather than quantitative criteria.
The proposed development includes 102 carparks and 12 motorcycle spaces. For the purposes of the planning scheme, this is to be treated as 108 car parks. Council submitted that ‘it is likely insufficient car parks are provided’. This submission was made in reliance upon the evidence of Mr Healey. He opined that compliance with an acceptable outcome in the Transport code (AO1) required 196 spaces. The calculation supporting his conclusion is set out at paragraph 64 of exhibit 6.10.
I do not accept Mr Healey’s carpark calculation. It assumes the carparking rate applied to multiple dwelling units also applies to the hotel suites (short term accommodation units). Unsurprisingly, Mr Healey’s positioned softened in oral evidence. He accepted in cross-examination that the provision of 196 car parking spaces is higher than what is required. That said, Mr Healey was not prepared to express a view as to what was in fact required. This was because he did not ‘…have sufficient confidence in what an alternative solution might be based on’ in light of the data available: T3-82, L20-45. To remedy the shortcoming in the information available to assess an alternative solution, Mr Healey and Mr Trevilyan called for parking surveys of a similar development in the Palm Beach area (Ex. 6.10, para 74). Mr Pekol sought to obtain this information. The information he did obtain was put before the Court. In contrast, neither Mr Healey nor Mr Trevilyan carried out, or sought to obtain, the data they said was required to complete the assessment. This was troubling given if they had done so, the experts would have been in a better position to assist the Court. Further, survey work of the kind they requested would have revealed there is no similar development in Palm Beach to that proposed. This was pointed out to Mr Healey in his oral evidence. Troublingly, this came as a matter of surprise to him.
Mr Pekol, on the other hand, calculated an assumed parking demand of 92 to 115 spaces. His calculation was based on a number of considerations, including the nature of the proposed uses, relevant context (proximity to public transport), a single day of survey data obtained from Hotel X in Brisbane (which is operated by one of Mr Gedoun’s companies), published parking rates, the Gold Coast visitor travel survey data and the economic benefits report provided with the development application. With his calculation in mind, Mr Pekol examined the sufficiency of carparking supply. He expressed the view that the proposed development, with 108 equivalent carpark spaces, would adequately cater for the vast majority of the parking demand while also meeting a competing consideration. The competing consideration is this: an oversupply of carparks should be avoided as it would counteract an intention that alternative transport options are encouraged (i.e. public transport, walking etc). I accept Mr Pekol’s evidence.
Assuming it is accepted that AO1 of the Transport code is not met, it is necessary to consider compliance against performance outcome PO1 (Table 9.4.13-2). This provision states, in part:
“Development provides off-street car parking to accommodate the parking demand.
OR
Where located in the Centre zone…at rates that:(a) reduce congestion and car dependency;
(b) maximise the efficiency of carparking provided; and
(c) encourage alternative transport options such as walking, cycling and the use of public transport.”
Against the background of paragraphs [162] and [163], I am satisfied Mr Pekol’s evidence demonstrates compliance with PO1 of the Transport code. This is a strong indicator that the issue raised in relation to carparking supply has been adequately addressed. It also demonstrates that an indicator of overdevelopment relied upon by Council and the submitters has been discounted by the appellant.
The final traffic issue identified by the experts goes to the adequacy of proposed on-site servicing arrangements for vehicles larger than an ordinary sedan. In this regard, Mr Healey and Mr Trevilyan raised a number of concerns about the internal movements of buses and trailers, heavy rigid vehicles, medium rigid vehicles and waste collection vehicles. In response, Mr Pekol prepared swept path diagrams to demonstrate compliance with the planning scheme for on-site servicing, namely performance outcomes PO5, PO6 and PO7 of the Transport code.
Performance outcomes PO5, PO6 and PO7 are in the following terms (with accompanying acceptable outcomes omitted):
“PO5
Development accommodates for the required design service vehicle, including waste collection vehicles to service the development.
PO6
Development is designed to ensure:
(a) that areas are provided for loading and unloading of service vehicles;
(b) that loading operations are contained wholly within the site; and
(c) that pathways from service areas to tenancies are an appropriate width to allow for pallets and trolleys to manoeuvre without conflicting with doors, gates or landscaping.
PO7
Development ensures that service vehicle routes to and from the development minimise impacts on residential safety and amenity.”
An assessment against PO5, PO6 and PO7 requires consideration to be given to the architectural plans, swept path diagrams and Mr Pekol’s statement of evidence (Ex. 7.10, section 4). Save for one qualification, a review of this material demonstrates compliance with PO5, PO6 and PO7. The qualification is that the porte-cochere cannot accommodate the design service vehicle, which is a large coach. This does not however pose a concern given a point of agreement between the traffic engineers. It was agreed that it is acceptable in the circumstances here to assess on-site servicing by reference to a coaster bus and trailer configuration depicted in Figure 1 of exhibit 7.10. The swept path diagrams prepared by Mr Pekol demonstrate that the agreed coaster bus and trailer combination can manoeuvre in a manner that achieves compliance with PO5, PO6 and PO7. In these circumstances, non-compliance with the Transport code associated with onsite servicing for a large coach is not a matter that is cause for concern. Nor does it warrant refusal.
Council’s written submissions contend that the proposed development does not comply with PO5 and PO6 of the Transport code. Non-compliance is also pressed with overall outcomes 2(a)(i) and (ii) and 2(e)(i) and (iv) of the same code. The case in relation to non-compliance assumes that Mr Healey and Mr Trevilyan’s evidence is accepted. For reasons given above, I prefer the evidence of Mr Pekol. The opinions expressed by him were supported, as I have said, by a considerable body of work. This body of work demonstrates that the development complies with the overall outcomes that are the subject of alleged non-compliance. More particularly, the material demonstrates that on-site access and parking, manoeuvring and servicing areas have been designed:
(a)to provide a safe, pedestrian focussed environment, which is achieved principally through the provision of a prioritised crossing point and clear pathways for pedestrians to walk from the road frontages to the lobby and ground floor facilities;
(b)to provide a vibrant porte-cochere and lobby area (to the extent access, parking and servicing areas can contribute to a high quality public realm);
(c)to be functional and efficient in traffic engineering terms;
(d)to minimise impacts and be managed efficiently, which will include the management of the porte-cochere by a hotel operator; and
(e)for safe and efficient waste collection.
With respect to (e), concern was expressed about the waste collection vehicle entering the site in a forward gear and exiting by reversing onto Palm Beach Avenue. At first blush, this is cause for concern. Any concern however was addressed by two things. Firstly, as was correctly pointed out by the traffic engineers, the planning scheme contemplates that it is acceptable for a waste collection vehicle to exit the site in reverse gear (exit) onto Palm Beach Avenue: Ex. 6.10, para 39. Second, Appendix C to Mr Pekol’s statement of evidence contains a waste management plan. The plan identifies the location of the refuse collection points, the size of refuse collection vehicles and swept path diagrams for waste collection vehicles as they enter and exit the site. I am satisfied this material demonstrates that waste collection can occur safely and efficiently. The conditions of approval should include a requirement that there is compliance with the waste management plan, updated as necessary to reflect the form of development before the Court.
In the circumstances, I am satisfied the traffic matters set out above do not call for refusal of the development application.
The submitters advanced additional traffic reasons for refusal beyond those set out above. The additional matters can be identified as follows: (1) non-compliance with PO2, PO11, PO13 and PO14 of the Transport code, which it was said cannot be cured by condition/s; (2) the dynamics of vehicle movements within the porte-cochere will mean it is not a safe place for pedestrians, mobility scooters and cyclists, which it was said cannot be cured by conditions/; (3) the proposed development does not comply with additional overall outcomes in the Transport code; and (4) insufficient on-site carparking will result in adverse effects on the local community and visitors.
It can be observed immediately that the submitters’ case in relation to items (1) to (4) assumes the Court does not accept Mr Pekol’s evidence. For reasons given above, my assessment of the development application has proceeded on a contrary footing. This is sufficient, in my view, to dispose of the further traffic issues raised by the submitters.
If, however, a contrary view is taken about this, I am satisfied the proposed plans (which depict the layout of the porte-cochere and its interface with Palm Beach Avenue), taken in combination with Mr Pekol’s evidence comfortably demonstrates the following:
(a)ample access is provided to carparking spaces for employees and visitors to the development in a basement carpark (PO2 of the Transport code);
(b)access for pedestrians and cyclists from Palm Beach Avenue, and in the porte-cochere itself, will be safe and convenient, principally via a prioritised crossing from the footpath to the front door of the lobby (PO11 of the Transport code); and
(c)access to the site for pedestrians and cyclists will be direct, safe, pleasant and comfortable via a prioritised crossing and system of pathways that lead from the Gold Coast Highway and Palm Beach Avenue to the lobby and dining facilities on the ground floor (PO13 of the Transport code).
Performance outcome PO14 of the Transport code requires development to contribute to the safe and efficient provision and operation of the bicycle network. The submitters, as I understood their case, contend that non-compliance arises with this provision because there was ‘an absence of incentives to encourage guests and employees to utilise existing bicycle infrastructure’. Putting to one side the misgivings I have as to whether PO14 requires ‘incentives’ of the kind submitted, I am satisfied that non-compliance with the provision does not call for refusal. This is for three reasons taken in combination. First, it is unrealistic to expect all of the uses proposed to encourage guests, visitors and staff to meaningfully utilise existing bicycle infrastructure in Palm Beach. As an example, it is nonsense to expect a guest staying at the hotel to arrive, or depart, with their luggage on a bicycle. Equally, it is nonsense to suggest visitors to the hotel for a function should be encouraged to ride a bike to and from the venue. Second, the proposed development does not have any unacceptable safety, functional or operational impacts on the bicycle network. The existing infrastructure will, in the event the development is approved and constructed, continue to function as intended and planned. This is so despite the absence of any incentive/s pressed by the submitters. That infrastructure will be available for use by residents, visitors and tourists taking up the facilities offered at the proposed development.
A significant part of the submitter’s case about traffic was directed to the porte-cochere and the safety of that environment for pedestrians. Particular emphasis was given to the ‘dynamic’ of this part of the development. It was said to be a busy place with: (1) vehicles coming and going; (2) heavy vehicles reversing onto Palm Beach Avenue; and (3) insufficient queuing capacity for vehicles waiting to enter the porte-cochere. It is correct to say that the porte-cochere will be a busy place. It is where guests and visitors will arrive. They will arrive by car, small coach or taxi/rideshare vehicle. Pedestrians will be coming and going in and out of the lobby and dining facilities. I do not, however, accept the porte-cochere will be unsafe.
Having regard to the proposed plans and Mr Pekol’s evidence, there can be little doubt that the dynamic, as it is described on behalf of the submitters, has been taken into account in the design. Indeed, the proposed plans indicate appropriate provision has been made: (1) for safe vehicle and pedestrian access; (2) for safe and functional vehicle set down areas; (3) for a pedestrian crossing to provide prioritised access from Palm Beach Avenue to the lobby of the hotel; and (4) for service vehicle requirements, including waste collection. These features of the design will contribute to the safety and efficiency, in traffic terms, of the development. This is in circumstances where the porte-cochere will be a slow speed environment under the control of the hotel operator. Contrary to the case advanced on behalf of the submitters, the safety of pedestrians, cyclists and mobility scooters can be secured by conditions. A condition will require the development to proceed generally in accordance with, among other things, the proposed plans of development and an updated waste management collection plan.
The submitters also contended that non-compliance arises in this case with particular overall outcomes in the Transport code. This contention assumes the evidence of Mr Healey and Mr Trevilyan was preferred by the Court. Further, the contention also assumes that the Court formed a different view to that set out in paragraphs [172] to [177]. Given the reasons relied upon to establish non-compliance have been rejected, it is unnecessary to dwell any further on this part of the traffic case advanced on behalf of the submitters.
Finally, the criticisms advanced by the submitters in relation to the provision made for carparking assumes the proposed development will not be able to meet the demand for guests, visitors and staff, which, in turn, will place extra demand on the adjoining paid parking facility and on-street parking. This is not a criticism I accept. It is overstated. Moreover, it is contrary to the reasons set out above and the finding that compliance has been demonstrated with PO1 of the Transport code.
I am satisfied the appellant has demonstrated that the traffic issues raised by Council and the submitters do not warrant refusal of the development application. Further, I am satisfied the issues raised do not give rise to non-compliance with the planning scheme that attracts meaningful weight adverse to approval in the exercise of the discretion.
Exercise of the discretion
The points advanced in favour of refusal were confined to the issues set out in paragraph [80]. For the reasons given above, I am satisfied it has been demonstrated that the disputed issues do not call for refusal of the development application. Rather, an examination of the disputed issues demonstrates that an approval, subject to conditions, will achieve compliance with the uplift provision and related contextual planning scheme provisions relied upon by Council and the submitters. This is a matter of significant, if not decisive, weight in favour of approval.
The appellant also advanced ‘relevant matters’ supportive of approval. They are set out in paragraphs 145 to 158 of the appellant’s written submissions. It is, in my view, unnecessary to traverse each of the relevant matters. It is sufficient to say they are consistent with the following propositions, which I accept, namely that the proposed development will, if approved:
(a)result in the redevelopment of an underutilised site in a manner consistent with, and promoted by, the planning scheme;
(b)act as a catalyst for the redevelopment of the Palm Beach district centre as a whole, being a matter in the public interest (reflected in the planning scheme);
(c)introduce high quality hotel accommodation for visitors, which will have no equal in Palm Beach;
(d)have no adverse traffic impacts;
(e)have no adverse amenity or character impacts; and
(f)have no adverse town planning consequences.
These matters, taken in combination with paragraph [181], are more than sufficient to satisfy me that the proposed development is highly meritorious and ought be approved subject to conditions.
Disposition of the appeal
The appellant has discharged the onus. Orders will be made in due course allowing the appeal and approving the proposed development subject to conditions.
The appeal is adjourned to 23 October 2024 for review in Brisbane. In the intervening period, Council is to prepare, and provide, a draft conditions package to the other parties for their consideration. This should occur no later than 16 October 2024. I will make a direction to this effect.
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