The Turgun Joint Venture Pty Ltd v Gold Coast City Council

[2001] QPEC 33

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	The Tugun Joint Venture Pty Ltd v Gold Coast City Council
[2001] QPE 033
PARTIES:	THE TUGUN JOINT VENTURE PTY LTD (ACN 092 076 867)

Appellant

and

GOLD COAST CITY COUNCIL

Respondent

FILE NO/S:	1018 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	18 May 2001
DELIVERED AT:	Southport
HEARING DATE:	8-9 May, 2001
JUDGE:	Judge Quirk
ORDER:
CATCHWORDS:
COUNSEL:	Mr C. Hughes for the Appellant Mr R. Litster for the Repsondent
SOLICITORS:	Phillips Fox for the Appellant Witheriff Nyst for the Respondent

[1]        This appeal turns on a relatively short point. It is whether the height of a

proposed multiple unit development at Tugun is such as to call for a refusal of the

relevant application. The subject land is a beachfront allotment occupying 1437 m2. It has frontage to Golden Four Drive which has the function of a service road running

beside the Pacific Highway. The site is presently vacant.

[2]        The relevant town planning scheme is a “Transitional Planning Scheme” within

the meaning of chapter VI of the Integrated Planning Act. Under division 8 (and in

particular section 6.1.30(3)) this matter must be decided under section 4.13(5) of the

repealed Act.

[3]        In the town planning scheme the land is included in the “Resort Residential 1”

zone. The statement of intent for that zone indicates:

“The intent of this zone is to implement the objectives of the Mixed Residential and Tourist Accommodation P.D.L.U. in the Strategic Plan. It is intended to permit a mix of medium and high density residential development and a limited range of commercial development to provide entertainment and recreational facilities for tourists and residents. The dominant development within this zone will comprise multi-unit buildings. It is envisaged that this zone will accommodate tourists and those residents who prefer a more diverse urban environment.

All land within the Resort Residential 1 zone is included in a Residential Density and Building Height category as shown on the Residential Density and Building Height Maps. The basic and maximum allowable development density in any building height control or limit for specific sites is indicated in the provisions. In respect of building heights it is not envisaged that development will achieve the maximum permissible height in most instances. To meet objectives in respect of variation in townscape and urban character, the council will seek to achieve gradation in building heights to complement groupings of high or low rise development. Development will also be subject to other provisions which seek to maintain residential amenity.”

[4]        Under the Strategic Plan the land is designated as indicated in the above-

mentioned statement of intent. In respect of the relevant PDLU, it is said that:

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“Development in these areas will be required to accord with the provisions

applicable to the Resort Residential 1 zone.”

In the table of development for that zone the proposed use of multi-unit building is a

permitted development, however a proposal of this kind is governed by section 4.16

which sets out:

“Provisions in respect of multi-unit buildings… in the… Resort
Residential 1 zone… ”.

[5]        The height of development is dealt with specifically in section 4.16.4 the stated

purpose of which is:

“To provide for diversity in the built form of the city and for the orderly development of the city’s townscape through the grouping of high-rise structures and the imposition of transitional building heights which complement such groupings.”

Section 4.16.4.1 provides:

“The permitted height of any multi-unit building… shall not exceed the number of

storeys as shown on the residential and building height maps provided that –

… … … ..

(ii)        where a height appears in brackets on the Residential Density and Building Height maps, that height shall denote the maximum height to which development may be increased, subject to the town planning consent of the council.

… … ..… ”.

[6]        On the relevant Residential Density and Building Height maps the area between

Dune Street and Sand Street in which the subject land is found, is designated “D2(D2),

H3(H7)”. The area north of Dune Street is designated “D1(D1), H3(H3)” and the area

south of Sand Street is designated “D2(D2), H3(H5)”.

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[7]        Regard must be had to the Strategic Plan’s statement of intent for the Mixed

Resident and Tourist Accommodation designation which indicates:

“It is envisaged that these areas will accommodate both tourists and permanent residents with the result that their intrinsic character will differ from multi-unit development areas because a greater diversity of development will occur. Accordingly, the preferred dominant land use is multi-unit buildings of varying densities.”

The emphasis that is placed on ‘diversity’ and the ‘varying densities’ of intended multi-

unit buildings must be noted.

[8]        In respect of diversity the Strategic Plan has a specific objective which is:

“To achieve diversity in townscape and urban character”.

This objective is explained in this way.

“Development in these areas will be subject to provisions that establish permitted and permissible residential densities and building heights both of which vary for particular parts of the city so as to achieve variety in townscape and urban character. The council will seek to achieve gradation in building heights to complement groupings of high or low-rise development. This gradation will be achieved both as the result of the maximum permitted and permissible heights stipulated and also through the exercise of the council’s discretion in assessing permissible development. Accordingly it is envisaged that development will not achieve the maximum permissible building height in most instances.”

It was this particular passage which gave rise to the major dispute which arose in the

appeal.

[9]        The proposed development is intended to reach seven storeys in height. However,

it has been skillfully and attractively designed and, about this, there was no real dispute.

The intended site coverage is of in the order of 27 per cent which is relatively low. It was

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pointed out that with existing development standards for the area, site coverage of a

three-storey, multi-unit development could be expected to be of in the order of 40 per

cent.

[10]      The lower level of site coverage provides an opportunity for a substantial set back

from the road frontage and extensive landscaping which, in this case, has been given a

good deal of care and thought and has achieved, as the material indicates, a very pleasing

result. The landscaping plan compliments the existing vegetation which contributes, in a

substantial way, to the area’s character. The lower level of site coverage also reduces

impact upon views, breezes, etc. enjoyed by neighbours.

[11]      The very experienced architect, William Job (who did not design it), discussed the

architectural merit of the proposal. He praised the design’s high degree of reticulation,

the level of detail and the horizontal elements which it presented. These features, he

explained, gave the building a “light and airy feel” and reduced any impression of a

massive structure. In the opinion of Mr Job the proposal would have a very positive

influence on the area’s character and set a high standard for its future development.

[12] Both Mr Job and the appellant’s town planning consultant, Mr Grummitt, were

critical of the approach taken by the assessing planning officer who made an adverse

report which led to the proposal’s refusal. They felt that, in seeking to apply the,

“gradation in building height” principle which is spoken of in the objective of the

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Strategic Plan which is set out above (and which appears in other parts of the scheme) the

officer had read the objective too rigidly and narrowly and had supposed that what was

intended was some form of “string line” effect within the various precincts. This would

have the result of a maximum height being allowed only towards the middle of a precinct

and an even tapering of building height as one moved to its extremities. Both Messrs Job

and Grummitt were of the opinion that such an approach, if applied, would lead to a quite

unfortunate visual result and not the diversity in building form and density which

appeared to them to be the central theme of the objective.

[13]      The planning officer who was the author of this report was not called. The

council planning consultant (Mr Hall) who did give evidence, sought to distance himself

from the “string line theory” appreciating, no doubt, the obvious difficulties with such a

rigid planning approach. Nevertheless he was opposed to a seven-storey building at this

point in the precinct which is three allotments removed from its northern end. He pointed

out that development presently found in this most northerly section of the H3(H7)

precinct (which takes in about 10 allotments) was no greater than three storeys. He

expressed the opinion that a seven-storey development would be undesirably out of place

in this setting.

[14]      As I see it, there is a weakness in this reasoning in that it places undue weight on

the form of development now found in the area and ignores the fact that many of these

buildings are of considerable age. This is one of the last areas of the Gold Coast with

direct ocean frontage that has not been redeveloped to a substantial extent. Immediately

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to the north of the subject land is a single-storey detached house (with a “fibrolite” roof)

that is many years old. Although there was no direct evidence on the point, to suppose

that development of this site will remain in this form indefinitely is to ignore reality and

common experience of what has occurred in this part of the State.

[15]      Furthermore, there is no support whatsoever in the planning documents for the

proposition that, in this part of the precinct, development will be confined to three storeys

in height. The indications given by the Residential Density and Building Height Maps

are quite to the contrary. Notwithstanding its expressed disavowal of the “string line”

approach, the council’s case was inevitably driven back to dependence on the notion that

there should be some form of tapering of height at the extremities of each precinct,

particularly where it meets another where a lower height limit is imposed. A good deal

was sought to be made of the fact that, in the precinct to the north, a maximum height of

three storeys is intended.

[16] It has also to be noted, however, that this area is identified by the scheme as

“Special Development area number 21” the stated intent for which is found in Part 1-28

of the plan and is, in part, as follows :

“Areas included in this designation are located on the periphery of the Tugun commercial centre. These areas experience considerable noise impact from aircraft operations associated with the Coolangatta Airport and are subject to limitations on the height of buildings and other structures. Accordingly, it is not appropriate to consider increasing residential densities in these areas. As an alternative the council will give consideration to commercial development which will not conflict with nearby residential uses and is unlikely to adversely impact upon the commercial liability of the adjacent district centre or the efficient functioning of adjacent major roads.

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The preferred dominant land use is low-key commercial development such as small scale offices, retail developments which require large display areas, service stations and development which services the convenience needs of the tourist population”.

[17]      The three-storey height limit reflects what is largely there on the ground which is

development, mainly of a commercial kind and of recent origin (e.g. the Tugun tavern).

This appears consistent with what is set out in the Town Planning Scheme. The area has

its own character which would not, as I understand the evidence, be affected adversely to

any great extent by the presence of the proposal on the subject land.

[18]      In fairness, however, to the argument put forward by counsel for the respondent,

the concept of “gradation” is introduced by the planning documents. Whether the

gradation which is sought to be achieved should occur within each individual precinct or

whether it is intended to be achieved by the distribution of the various precincts (and their

respective height limitations) is not entirely clear. It must be kept in mind that this

passage of the scheme has citywide application and was not written only for this part of

Tugun. I do not believe that the last sentence of the quoted passage of the objective helps

much. It does no more than state the obvious fact that the physical constraints of some of

the allotments within the precinct would stand in the way of a uniform height of seven

stories within the precinct. Furthermore that would be as inconsistent with the objective

of diversity as would a uniform height of three stories.

[19]      In any event, however, I am not persuaded that placing the proposal on this site

would stand in the way of the achieving of some gradation in building height at the

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northern end of the precinct. Presently the precinct ends with a very generous width of

well-landscaped footpath. One then encounters a three-storey unit block of relatively

recent origin. Before one reaches the subject land there is the allotment on which stands

the old single-storied detached house. Though evidence did not descend to detail on the

matter, the possibility of a re-development of a height somewhere in between three and

seven storeys was certainly not excluded.

[20]      Perhaps a better idea of what the scheme intends to achieve in this precinct is

found in that part of it which lies between Shell and Sand Streets. This is best understood

by reference to the panorama that is Figure 2 to the report of Mr Job. A definite diversity

of building form and density can be seen and while a seven-storied unit development is

found a relatively short distance from the southern end of the precinct, there is an

apparent tapering of building height to a two-storey development at the precinct’s

extremity which is not unpleasant to the eye. I do not believe that it would be fanciful to

see the proposal as the precursor of a comparable spread of diversity of building height

and density in the northern part of this precinct.

[21]      The matters that are to be taken into account in assessing an application for town

planning consent pursuant to provision 4.16.4.1 of the scheme are set out in detail in

section 4.16.4.2. These matters were dealt with in the evidence and I am satisfied that the

proposal represents sufficient compliance with these matters to warrant approval.

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[22]      If I have misunderstood the scheme and there is some degree of conflict with the

Strategic Plan in respect of the matter of gradation in building height, I am well satisfied

that there are sufficient planning grounds for overlooking such conflict. These grounds

relate to the proposal’s demonstrated architectural merit, the role that it will play in

setting a high standard for future development in the area and the extent to which it will

fit comfortably in the amenity in which it will locate. As was pointed out in the evidence,

some minor relaxations are required in respect of development standards relating to side

boundary clearances but it was not really disputed that, in the circumstances of this case,

such relaxations were justified.

[23]      A number of adverse submissions in respect of the proposal were received and

evidence was called from two of these submitters who reside in “Spindrift,” the three-

storied unit block immediately to the south. While one can readily understand that these

residents would not welcome the proposal’s taking the place of a now vacant allotment,

the reasonableness of their expectations must be judged by reference to the contents of

the Town Planning Scheme.

[24]      On the whole of the evidence I am satisfied that the onus of showing that the

application was one that should be approved has been discharged and the appeal must

accordingly be allowed.

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