Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast

[2022] QPEC 31

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31

PARTIES:

TRICARE (BAYVIEW) PTY LTD
(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST
(Respondent)

FILE NO/S:

2361 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

16 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

8 – 12 November 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1.      By 4 pm on 14 October 2022, the respondent is to provide the appellant with a draft suite of conditions.

2.      By 4 pm on 28 October 2022, the appellant is to notify the respondent, in writing, of its position with respect to the draft suite of conditions.

3.      The appeal be listed for review at 9 am on 22 November 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against Council’s refusal of development application – where the development application seeks to provide a contemporary residential aged care facility – where the Council contends that the re-development of a single storey building as part of an existing residential aged care facility and retirement facility is inappropriate because of the proposed height – where the proposed height is four storeys – where the Building height overlay map designates the land for development of two storeys – where the subject land contains a six-storey building that is to be retained – where the proposed four storey building conflicts with the planning scheme – whether the conflict should be given decisive weight – whether the existing use of the subject land is relevant – whether draft amendments to the planning scheme should be given weight – whether the community benefits from the proposed development could be provided in a three-storey building – whether approval would render it more difficult to refuse other development greater than two storeys in height – whether there is a need for the proposed development – whether the proposed development will provide appropriate facilities for ageing in place – whether the design of the proposed development has architectural merit – whether the proposed development will result in any unacceptable impacts – whether the proposed development involves an absence of town planning harm – whether the development application should be approved in the exercise of the planning discretion

LEGISLATION:

Acts Interpretation Act 1954 (Qld), ss 14D, 32D

Planning Act 2016 (Qld), ss 43, 45, 59, 60, 63, 264

Planning and Environment Court Act 2016 (Qld), ss 5, 43, 45, 46, 47, 60

Planning and Environment Court Rules 2018 (Qld) (current as at 18 March 2022) rr 22, 34, 35A, 35B, 35C

Planning and Environment Court Rules 2018 (Qld) (current as at 13 May 2019) rr 22, 32, 34, 35

Planning Regulation 2017 (Qld), ss 31, 70, sch 22 and sch 24

Uniform Civil Procedure Rules 1999 (Qld) r 166

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, cited

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34; [2018] QPELR 1102, approved

BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274, cited

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Collis Radio Ltd & Anor v Secretary of State for the Environment & Anor (1975) 29 P & CR 390, distinguished

Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, applied

Ecovale Pty Ltd v Council of the City of Gold Coast [1999] 2 Qd R 35, applied

Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, distinguished

Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, distinguished

Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved

I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36, approved

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Iverach v Cardwell Shire Council & Anor [2006] QEC 114; [2007] QPELR 196, approved

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, approved

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved

Leisuremark (Aust) Pty Ltd v Noosa Shire Council & Ors [1988] QPLR 137, distinguished

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved

Peter Rommel and Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99, distinguished

Poundstretcher v Secretary for the Environment [1988] 3 PLR 69, distinguished

Stringer v Minister of Housing and Local Government & Anor [1970] WLR 1281, cited

The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3; [2019] QPELR 487, considered

Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279, distinguished

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Williams McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33, approved

Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved

COUNSEL:

C L Hughes QC and M Batty for the Appellant

R S Litster QC and T Stork for the Respondent

SOLICITORS:

Minter Ellison Gold Coast for the Appellant

McInnes Wilson Lawyers for the Respondent

TABLE OF CONTENTS

Overview

What are the features of the subject land and the locality?

What is the nature of the proposed development?

What functional design attributes are proposed for the residential aged care facility?

How does the proposed development present?

What is the relevant framework for the decision?

A threshold difficulty with the Council’s case

What is the appropriate approach to the assessment and decision-making process?

Does the proposed development comply with the assessment benchmarks in City Plan?

What is the significance of the non-compliance with the assessment benchmarks respect to height?

What is the relevance of the existing lawful use of the subject land?

What matters are in issue under s 45(5)(b) of the Planning Act 2016?

What are the obligations of parties in identifying the issues in dispute?

What issues arise for determination with respect to “relevant matters”?

What weight should be afforded to the draft amendments proposed to City Plan?

What are the proposed amendments?

What is the progress of the draft amendments?

What weight should be given to the draft amendments?

Has Tricare demonstrated that the proposed development cannot be developed within a three-storey building?

Is the proposed development inconsistent with the reasonable community expectations?

Does the cumulative effect of an additional building greater than two storeys on the subject land tell against approval?

Is there a need for the proposed development?

What are the general principles that guide an assessment of need?

What is Tricare’s case with respect to need?

Will the proposed development result in a net loss of two aged care spaces?

What does the evidence about need establish?

What are the Council’s other arguments about need?

Is there appropriately zoned land available for use?

Does the existence of appropriately zoned land “meet the need” for residential aged care facilities?

What is the need that the proposed development seeks to address?

How does City Plan address the identified need?

Will the proposed development provide appropriate facilities for ageing in place?

Does the design of the proposed development have architectural merit?

Will the proposed development result in any unacceptable impacts?

Does the proposed development involve an absence of town planning harm?

Should the development application be approved in the exercise of the planning discretion?

Conclusion

Overview

1. The demographic of Australia’s population is changing.  Australians are living longer than ever before.  As a result of the changing demographic, the number of people requiring aged care services will increase substantially over time.[1]  With advanced age comes greater frailty, and older people are more likely to have more than one health condition as their life expectancy increases.  As the population of older people increases, more people are expected to have memory and mobility disorders.[2]  A range of aged care services will be required to address the consequent decline in independence of the elderly in our community.  This includes greater need for residential aged care facilities.  The development the subject of this appeal seeks to provide a new residential aged care facility at Runaway Bay to address that need.

   [1]Exhibit 3.2 p 23 [63].

   [2]Exhibit 3.2 pp 20-1 [47].

2. Residential aged care facilities provide support and accommodation for older people who are unable to continue living independently in their own homes and who need ongoing help with everyday tasks.  Approved providers of residential aged care must provide a range of care and services to residents, including social care, accommodation services and help with day-to-day tasks, personal care, and clinical care.[3]

   [3]Exhibit 3.2 p 19 [43] and p 21 [52].

3. The socio-economic profile of Runaway Bay, a northern suburb on the coastal strip of the Gold Coast, and those suburbs immediately surrounding it (being Paradise Point and Hollywell to the north, Coombabah and Arundel to the east, and Biggera Waters and Labrador to the south) comprises an older population attracted to the coastal lifestyle of the Gold Coast.  In that area, the average age of residents is significantly older than the average for each of South East Queensland and Australia.  Almost 30 per cent of the population in that area is aged over 60 years and there are large pockets of older and ageing residents (i.e., over 70 years) throughout that area.[4]

   [4]Exhibit 3.2 p 30 [82] and pp 31-3.

4. At present, that community is served by Tricare Runaway Bay Village and Bayview Place, which comprises both a long-standing retirement facility and a long-standing residential aged care facility.  The facilities are located on two contiguous allotments at 80 – 86 and 98 Bayview Street, Runaway Bay (“the subject land”).  The retirement facility and the residential aged care facility are housed in several buildings, including a six-storey building and multiple buildings of one, two, and three storeys in height. 

5. The existing residential aged care facility is located within the south-east portion of the subject land.  It is housed in two buildings.  One is a two-storey building containing 44 residential aged care places.  The other is an older single storey building on Lot 10 on RP 907714, proximate to Bayview Street.  It contains 42 residential aged care places.  Despite efforts made three to four years ago to refurbish the older building to the extent possible, the building still has a tired, institutional format.  For example, the aged care rooms contain two beds separated by a curtain, and there are communal toilets and showers.[5]   

   [5]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 4-5; Exhibit 9.2.

6. The Appellant, Tricare (Bayview) Pty Ltd (“Tricare”), wants to redevelop part of the existing residential aged care facility.  It proposes to demolish the older single storey Bayview Street building and replace it with a contemporary facility housed in a new four-storey building accommodating 110 residential aged care places.  The new building will connect to the existing two-storey building, which will be retained.  The existing buildings on the subject land that house the retirement facility, including the six-storey building, will also be retained.

7. The proposed redevelopment will increase the total number of rooms on the subject land to 154 – a net increase of 68 rooms.  The proposed development will also deliver superior wellbeing outcomes for persons with dementia and high and complex care needs.  It will offer private rooms with connected (ensuite) bathrooms.  To enhance the quality of life of residents, the proposed development will provide improved social spaces such as a roof deck recreation area offering indoor and outdoor spaces including a cinema, wine bar, lounge, barbeque area and spaces to enjoy the view over the Broadwater and the Runaway Bay canals.  These benefits are to be provided on the subject land, co-located with the independent living units that are offered as part of the existing retirement facility, all of which is intended to achieve the laudable goal that the ageing population in the local area is provided an integrated community with a care continuum that facilitates “ageing in place”,[6] i.e., ageing within the community to which they are accustomed.

   [6]Exhibit 3.2 p 20 [45].

8. The proposed development was assessable development requiring impact assessment under Gold Coast City Plan 2016 (“City Plan”).[7]  As such, Tricare made a development application seeking a development permit for a material change of use for a residential care facility with 154 residential aged care places to facilitate its plan to redevelop part of the subject land.  The Council of the City of Gold Coast (“the Council”) refused the development application.  This is an appeal against that decision.

   [7]Planning Act 2016 s 44.

9. There is no dispute that, at four-storeys in height, the proposed development has a building height that exceeds that indicated on the Building height overlap map in City Plan.  Even though the subject land contains a lawful six-storey building and a lawful three-storey building, under City Plan it has a height designation of two storeys and nine metres.  

10. Tricare accepts that the proposed development conflicts with City Plan as it seeks an increase in building height that is beyond 50 per cent above that indicated on the Building height overlay map.  Nevertheless, Tricare contends that approval of its development application is appropriate having regard to, amongst other things:

    (a)the increasing need for residential aged care facilities in this part of the Gold Coast;

    (b)the public interest in replacing the existing out-dated facility with a contemporary facility that will provide residents with an enhanced quality of life; and

    (c)the public benefit from the provision of an integrated community with a care continuum that facilitates “ageing in place”.

11. The Council joins issue with Tricare’s contentions.  It contends that conflict with the height designation is a paramount consideration and one that should prevail.  It says that the matters relied on by Tricare are insufficient to justify approval of the proposed development.  With respect to the benefit to the public of providing a facility that will enhance the quality of life of the elderly, for example by providing access to views and fresh air, the Council contends those benefits are of little moment.  It says this is because those who might reside at the proposed development will likely enter the development at a stage of their life when they are frail and need high levels of care.[8] 

    [8]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 22; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 12 November 2021) 54-5.

12. The appeal is a hearing anew.[9]  It is for Tricare to establish that the appeal should be allowed.[10] 

    [9]Planning and Environment Court Act 2016 (Qld) s 43.

    [10]Planning and Environment Court Act 2016 s 45.

    What are the features of the subject land and the locality?

13. Before considering the issues in dispute, it is first important to appreciate the features of the subject land and the character and identity of the locality generally.  There was some disagreement between the experts in this regard.

14. The subject land is located at 80 – 86 and 98 Bayview Street, Runaway Bay.  It comprises Lot 1 on RP 842344 and Lot 10 on RP 907714, which have a combined area of 6.3937 hectares.[11]  It has an irregular shape, informed by its boundary with a canal to its west, and a canal for part of its northern and southern boundaries.  Its eastern boundary fronts Bayview Street,[12] which has a higher order traffic function.  It provides a north-south link within Runaway Bay and accessibility to the Runaway Bay Shopping Village and has a public transport (bus) function.[13]

    [11]Exhibit 8.1 p 1 [3].

    [12]Exhibit 3.3 p 6.

    [13]Exhibit 3.3 p 6 [11].

15. The subject land is currently used by Tricare for a residential aged care facility, a retirement facility containing independent living units, and related community facilities.[14] 

    [14]Exhibit 3.1 p 5 [9].

16. Mr Peabody, the architect retained by Tricare, opines that Tricare’s existing senior living community, known as Tricare Runaway Bay Village and Bayview Place, is an established part of the local identity with an existing and distinct sense of place as a master planned community.  He says it is recognised for offering residential choices for the senior population.  He says this is conveyed by the form of existing buildings in terms of their typology.[15]  During cross-examination, Mr Robinson, the architect retained by the Council, conceded that the existing Tricare residential aged care and retirement facilities are an established part of the local identity and character.[16]  During cross-examination, Mr Perkins, the town planner retained by the Council, accepted that the character of the local area had been dominated by aged care and retirement living developments for decades.[17]  I accept this evidence.

    [15]Exhibit 3.1 p 11 [35(a)]; Exhibit 4 p 5 [15]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 40 and 42.

    [16]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 60.

    [17]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 65.

17. Nearby development is predominantly residential.[18]  The subject land is also mere moments from the Runaway Bay Shopping Centre, which is on the opposite side of the canal to the north of the subject land.  In addition, a small medical complex and gated residential community adjoins the southern boundary of the subject land.[19] 

    [18]Exhibit 3.1 p 5 [9]-[11]; Exhibit 3.3 p 5 [10].

    [19]Exhibit 3.3 p 5 [10].

18. Mr Robinson says the nearby residential development is dominated by one, two and three-storey buildings with smaller footprints and a thinner, broken-edged form.[20]  He opines:

    “Generally, the development along Bayview Street, between Bayview Street [bridge] and Oatland Street/Lee Road is characterised by relatively narrow finger like building frontages with landscaped street setbacks, a diversity of building designs and orientations, (which are not generally long lengthy, flat, or bulky in their presentation to Bayview Street), containing pitched roof forms, variations in skyline and mainly with upper storey balconies.”[21]

    [20]Exhibit 3.1 p 12 [37(a)].

    [21]Exhibit 4.4 pp 3-4 [11].

1. During his cross-examination, Mr Robinson accepted that the local area includes buildings with a height of up to four storeys, although that is not generally the height in the area.  He says that the local identity and sense of place is also informed by varying architectural styles.  It includes some modern development but is of a predominantly 80s and 90s style that is very utilitarian.  He describes the local area as containing architecture that is “not terribly exciting” and “all pretty ordinary”.[22]

   [22]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 65-6.

2. Mr Robinson supports his opinions with photomontages annexed to his individual statement of evidence.  The Council submits that Mr Powell, the visual amenity expert retained by Tricare, accepts the photomontages to be representative of the views of the eastern side of Bayview Street.  The Council says that the finger-like frontages are also apparent from the plan view seen on page 13 of Exhibit 2.7.  It submits that, with the benefit of the photomontages and plans, the Court would accept Mr Robinson’s description of the local identity and sense of place.[23]

   [23]Submissions on behalf of the Council p 25 [94].

3. The Council’s submission about the evidence of Mr Powell does not fully reflect the evidence, which was as follows:

   “And you would agree that the composite images that he prepared from Google Earth fairly represent the views to the eastern side of the road?---Yes, they – they do. Obviously, some have – there’s been a few changes since those images, but the – the main nuance or thing that’s drawn out in reality when you experience these is, you don’t drive or walk along the road, sort of, looking perpendicular to – sort of, looking at 30 to 45 degrees of direction of travel. And what that means is that, for instance, in montage B, down the bottom image, right-hand side - - - 

   Yes?--- - - - there’s a – sort of, a hybrid black/white car – a rear of a black car and a front of a white car.

   Yeah?---If you look above the rear windscreen of the – or rear screen of the black car, you can see a prominent, sort of, lift overrun of I think it’s number 35 Madang Crescent – I can confirm that in a little while, but that one you can see just to the left of that too, and a grey car and a – a, sort of, a canal or a small waterway. And what that canal waterway does, as well as the form of the lift overrun and the four storeys of Madang Crescent is, that opens up a – sort of, a – a view towards that – that building. So - - -

   Yes?--- - - - yeah, the – the streetscape – yeah, look, it’s – it’s a good start. But it’s not representative of the – the experience that you get from walking or driving along.

   Well, I’ll come back to that in a moment because the point you make is, that you don’t experience it looking perpendicular to the sites?---Generally that’s correct, yes.

   Right. But this allows you to, at least, appreciate what is to be found on either side of the road, and it’s a fair representation of what is to be found on either side of the 30 road?---Yeah. So the form of presentation is geared towards showing more of what you see at the very edge of the road and less of what you might perceive or see behind it, yes.

   It’s an analysis tool; you agree with that?---It is an analysis tool. It’s not a 35 completely unhelpful one. It’s – it’s a good tool. I use it myself - - -

   Yes?--- - - - but it needs to be considered in balance - - -

   Indeed?--- - - - with other material.”[24]

   (emphasis added)

   [24]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 44.

4. I accept Mr Powell’s observations. 

5. I find that, generally, the development along Bayview Street, between the Bayview Street bridge in the north and Oatland Street and Lee Road in the south, is characterised by relatively narrow, finger-like building frontages punctuated by landscaped street setbacks, and a diversity of building designs and orientations.  While some buildings are not long, flat, or bulky in their presentation to Bayview Street, others are.  Similarly, while some buildings contain pitched roof forms, others have a flat roof (or have the appearance of a flat roof).[25] 

   [25]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 44-5.

6. In relation to the height of existing buildings in the locality, Mr Powell opines that the existing streetscape in the immediate vicinity of the subject land includes a perpendicular view from Bayview Street down the driveway toward the existing six-storey building on the subject land and a view across the road to existing three and four storey buildings.  From the south-east, the six-storey building can be glimpsed above the existing buildings on the subject land.  It is clearly visible across the driveway for vehicle occupants and pedestrians approaching from the north-east.  Further to the north and east, within 300 metres of the subject land, Mr Powell says development typically ranges from one to four storeys in height.  He says there are three to four-storey buildings located between 120 and 200 metres north of the subject land.[26]

   [26]Exhibit 4.1 p 5 [11]-[12].

7. Mr Perkins took issue with the views expressed by Mr Powell.  He notes that the six-storey building on the subject land far predates either City Plan or the 2003 Planning Scheme.  Further, of two other properties referenced by Mr Powell, Mr Perkins notes that:

   (a)33 Madang Crescent is a four-storey apartment building that was approved under delegated approval on 1 April 2010 under the superseded Our Living City Gold Coast Planning Scheme 2003; and

   (b)based on the Council’s records, the apartment building at 89 Bayview Street, which presents four levels to Bayview Street, was established prior to the commencement of the superseded Our Living City Gold Coast Planning Scheme 2003. 

1. Although the six-storey building on the subject land and the other buildings identified by Mr Perkins were approved under earlier planning schemes and have the appearance of being constructed in the 1980s or 1990s, they nevertheless exist.  They are relevant to an appreciation of the character and amenity of the local area.  The observations of His Honour Judge Quirk in The Purcell Family v Gold Coast City Council & Ors[27] are pertinent in this regard.  His Honour observed:

   “[20]The point was made that some of this development was approved prior to planning controls relevant to the determination of this appeal. I do not regard that as being a matter of telling importance. The development that lends character to this area is there on the ground and there is every indication that it will remain there for some considerable time. To suggest that its influence upon the area’s visual amenity should be disregarded because it was approved prior to the planning controls we are considering here is, as I see it, a little unrealistic. To do so would attribute to the area a character which it simply does not have.”[28]

   [27][2004] QPEC 9; [2004] QPELR 521.

   [28]The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, 524 [20]. See also K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56].

2. There is nothing in City Plan that warrants a consideration of the character and amenity of the local area without paying due regard to the contribution made by the existing buildings (or the existing lawful use on the subject land).  Further, and in any event, the use of the six-storey building on the subject land is a mandatory consideration to which I must have regard in carrying out an assessment of the development application.[29]

   [29]Planning Act 2016 s 45(5)(a)(ii); Planning Regulation 2017 s 31.

3. Mr Powell’s opinions are supported by the photographs that were before me.  Unlike Mr Robinson’s Google photomontage (which has the limitations explained by Mr Powell),[30] the photographs that Mr Powell included in his report present a balanced view of the local area.[31]  I accept Mr Powell’s evidence about the character of the local area.

   [30]See paragraph [21] above.

   [31]In forming my views in this regard, I was assisted by the site inspection that occurred on the first day of the hearing.  It allowed me to gain an appreciation of the extent to which the various photos and photomontages reflect the true experience of the local area.

   What is the nature of the proposed development?

4. The proposed development involves the demolition of part of the existing single storey residential aged care facility at the south-eastern corner of the subject land, adjoining Bayview Street.  There, Tricare operates an existing residential aged care facility comprising 86 residential aged care places.[32]  An existing, more modern two-storey residential aged care facility will be retained.[33]

   [32]Exhibit 4.7 p 3 [17].

   [33]Exhibit 4.7 p 4 [19] and [20].

5. The proposed development will provide 154 residential aged care places, comprising 44 places in the building to be retained and 110 places in the new building.[34]  This will provide a net increase of 68 places.  The proposed residential aged care facility will be conducted in association with the adjacent retirement facility, with all accommodation provided in private rooms.[35] 

   [34]Exhibit 4.7 p 4 [19] and [20].

   [35]Exhibit 4.7 p 4 [21].

6. The proposed development is depicted in plans and images in Exhibit 2.7.

7. The plans and images show that the proposed new building has four levels above a basement car park.  The fourth level is a partial storey only.  The basement car park will contain 83 spaces, bicycle facilities and building services.

8. Levels 1, 2 and 3 all have residential aged care rooms (21, 43 and 46 rooms respectively).  The ground floor will accommodate the main foyer, reception, kitchen and dining room, communal café with a terrace and a private dining room, nurses’ facilities, and back of house facilities.

9. Level 4 comprises a separate “destination” away from the residential levels.  It has a much smaller floor plate than the levels below.  It is positioned towards the north-western part of the building.  It only includes communal facilities, such as an activity room, small cinema, lounge, and open terraces.  These are important facilities.  I describe them in more detail in paragraphs [36] to [50] below.

10. In his individual report, Mr Powell details the height parameters of the proposed development.  He says that the highest part of the proposed development, being the lift overrun at RL[36] 18.7 metres AHD,[37] will occur over a surveyed ground level of 2.98 metres AHD, resulting in a height of 15.72 metres.  The architects agree.[38]  These details accord with the plans that are before me in Exhibit 2.7. 

    [36]Reduced level.

    [37]AHD refers to Australian Height Datum.

    [38]Exhibit 3.1 p 16 [44].

    What functional design attributes are proposed for the residential aged care facility?

11. The proposed development incorporates design attributes that are intended to better meet the needs of senior Australians, particularly those living with dementia.  With respect to the design attributes proposed, and the benefits they provide to senior Australians, I was assisted by the evidence of Ms Catherine Wells, the retirement and aged care consultant retained by Tricare.  Over the last 30 years, Ms Wells has worked with small and large private, not-for-profit, and charitable providers across the country for home care, retirement living and residential aged care.  She has studied supply and demand issues and worked with residents and their families to understand what they are looking for in aged care.  She has visited a vast number of residential aged care buildings across Australia.[39]

    [39]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 2.

12. In her individual statement, Ms Wells identifies that the design of the proposed development provides individual accommodation in large rooms of between 31 and 33 square metres plus a seven square metre ensuite.  The rooms offer each resident a well-designed, partially self-contained, private space that includes a bedroom, lounge area, ensuite, built-in cabinetry for storage, television, desk, and tea-making facilities.  This private space provided in the individual rooms sits within the residents’ larger home (i.e., the residential aged care facility).[40]  Ms Wells explains that the individual bathroom facilities, by way of ensuites, provide residents with personal hygiene privacy, which is important for the dignity of older Australians given the challenges that they may face at that stage of their life.[41]  The room design also enables the elderly to enjoy the simple things that many Australians take for granted in their normal daily lives, such as the ability to have a space to display photos and to store personal items that, in traditional facilities, are required to be left behind because of a lack of personal space.[42]

    [40]Exhibit 3.2 p 46 [124]; Exhibit 4.2 p 11 [5.4].

    [41]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 6.

    [42]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 7.

13. The proposed development also includes shared wellbeing and social spaces as part of the home, which are available for all residents and their loved ones to access and enjoy.  Those shared spaces include:

    (a)all the common facilities located on the partial fourth storey, namely:

    (i)a roof deck recreation area with outdoor spaces to enhance the quality of life of residents and their loved ones by providing access to natures’ elements, such as fresh air and breezes;

    (ii)indoor recreation spaces, including a cinema, wine bar, lounge, and barbeque area;

    (iii)two terrace areas (described on the plans as the Broadwater Terrace and the South Terrace) offering elevated views over the Broadwater and the Runaway Bay canals and suburb; and

    (b)other wellbeing and social spaces within the first three floors, including a café, a multi-purpose space, a hair and beauty salon, multiple dining rooms, lounges, and activity spaces for smaller groups of residents, all provided in a more home like and non-institutional manner.[43]

    [43]Exhibit 3.2 p 46-7 [124]; Exhibit 4.2 p 11 [5.4].

14. The proposed development will include a superior level of technology, which will be utilised to efficiently manage and assist resident needs; communicate with residents, their loved ones and visitors and staff; and support resident care, lifestyle and connection with loved ones and the broader community.[44]

    [44]Exhibit 3.2 p 47 [124]; Exhibit 4.2 p 11 [5.4].

15. The overall design of the home will offer a contemporary and nonclinical or institutional living experience through, for example:

    (a)the incorporation of high ceilings and doors and large windows to provide a feeling of space and an abundance of natural light and connection with the outdoors;

    (b)fit out and finishes that are non-institutional and more like a contemporary home.  This is exemplified by the absence of linoleum running along the floors and halfway up the walls, the absence of hospital style handrails, the absence of clinical hallways, the absence of hospital style serveries, the absence of visible wash basins along hallways, and the placement of back of house facilities out of sight as much as possible;

    (c)an internal grand landscape atrium visually connecting the outdoors into the residents’ rooms;

    (d)social spaces for enjoyment and wellbeing of residents and their visitors; and

    (e)access to a rooftop area to enjoy the outdoors and connection to the surrounding community.[45]

    [45]Exhibit 3.2 p 47 [124]; Exhibit 4.2 p 12 [5.4].

16. Ms Wells opines that the proposed development will be designed for all persons needing residential aged care, including those living with dementia.  She says the design is in line with the recommendations of the Royal Commission into Aged Care Quality and Safety and the Australian Government Response to the Final Report Royal Commission into Aged Care Quality and Safety.[46]  Ms Wells provided cogent explanations that supported her opinions. 

    [46]Exhibit 4.2 p 12 [5.6]

17. Ms Wells explains that the shape of the building, which is described by Mr Robinson as a square form building with a large central courtyard,[47] visually connects the outdoors into the resident rooms and social spaces.  This will provide for the enjoyment and wellbeing of residents and their visitors.[48]  The building’s shape also provides residents with the opportunity to exercise via a circular corridor, with rest stops provided at locations that provide a view of the greenspace of the atrium.  The provision of continuous circuit walking paths, without dead ends, is important for providing older Australians with a good opportunity for daily exercise.  It can be contrasted with a design that provides corridors to a “dead end” and the associated need to turn around.  That alternative form of design does not encourage movement, particularly for those utilising walking aids.  Designs with “dead end” corridors also present orientation difficulties for persons with dementia, who make up a high proportion of residents in residential aged care facilities.[49]  For those reasons, I accept the evidence of Ms Wells about the benefit to older Australians from the adoption of the square form of the building and the associated internal grand landscape atrium. 

    [47]Exhibit 3.1 p 12 [37(a)].

    [48]Exhibit 4.2 p 12 [5.4].

    [49]Exhibit 4.2 p 12 [5.8].

18. Ms Wells says that the design of the building provides safe (designed for mobility) and easy (via a lift) access to the fourth-floor recreation area and the outdoors.  It will enable the residents to enjoy the views over the broadwater and the surrounding neighbourhood.  The residents will be able to watch the world go by from an elevated position, thereby giving them a sense of connection to the community.  The residents will be able to watch the weather and feel the natural elements (wind, rain, sun, heat, cool, fresh air) from an elevated position.  Ms Wells says this is important for residents’ wellbeing as everyone relates to, and benefits from, fresh air and sunlight.  Ms Wells explains that these are all things that can be difficult to access for older Australians[50] and they are not prioritised in most residential aged care facilities.  They are benefits that are taken for granted by younger, mobile persons.[51]  

    [50]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 7.

    [51]Exhibit 3.2 p 48 [128] and p 49 [131]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

19. In addition, Ms Wells says that a rooftop recreation and social space offering beautiful surrounds and views over water and the neighbourhood is a unique and desirable space for all ages.  Such an enjoyable space, that does not feel clinical or like “aged care”, will encourage visitors of all ages to spend time and engage with residents of the facility.  The inclusion of the cinema, barbeque area and associated space for children to play will deliver a space that children will enjoy.  Visits from children bring a new vibe for all residents.  Older persons gain significant mood uplifts from having younger people around (and younger people can develop more empathy for older people and for their behaviours and loss of function).  As such, the design encourages intergenerational connections between residents, children, grandchildren, friends, and community visitors,[52] which I accept to be important.

    [52]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

1. The fourth-floor design also promotes social inclusion and prevents social isolation.  It does so through its provision of enjoyable and easy to access social spaces that are aligned to activities undertaken in normal life.  Cinemas, wine bars, and outdoor dining are all available in normal life.  The design of the proposed development will make them available to frail aged persons (as they should be). 

2. The design also provides the residents’ families an opportunity to take very frail persons on a manageable outing.  Ms Wells explains that for very frail persons and those with dementia, leaving the home can be difficult and stressful for both the resident and the family.  The fourth-floor space will provide the family with an opportunity to be social with their loved one (outside of their room) in an environment that feels like an outing.  It can be contrasted with social spaces that are incorporated within the residential floors.  It is the experience of Ms Wells, from conducting focus groups with aged care residents, that residents and families become territorial of their accommodation and living spaces.  Social spaces incorporated on residents’ floors or in wings near resident accommodation do not attract the use of residents from other floors or wings.  This is because the residents and families from the other floors or wings feel they are encroaching on the private spaces dedicated to different residents.  In contrast, where the social spaces are located on a separate non-residential living floor, residents and families from all areas of the residential service feel it is their shared space to freely access.[53]

   [53]Exhibit 3.2 pp 48-9 [131]; Exhibit 4.2 p 13 [5.9]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

3. Ms Wells says that the interaction of residents with their loved ones and communities is incredibly valuable for wellbeing and quality of life.  She says residents should not just be cared for; they should be happy.  

4. Ms Wells also says that the design attributes of the proposed development will stimulate the pleasure senses of the brain and, in turn, the enjoyment of older persons.  It will do so through the inclusion of nice and varied environments.  That design attribute can be contrasted with typical older designs, where residents are only able to access the same social space outside their individual accommodation each day.[54]

   [54]Exhibit 3.2 p 49 [131].

5. The design of the proposed development, with its fourth-floor recreation area and its associated benefits, can be contrasted with that offered in older residential aged care facilities, which are designed around functionality, with limited attention to aesthetics and social spaces.  Ms Wells says those facilities can be depressing and, consequently, do not encourage persons to visit, or if they do visit, discourages visitors to spend quality time just enjoying their loved one’s company.[55]

   [55]Exhibit 3.2 p 47 [131].

6. For the reasons provided above, Ms Wells opines that the design of the proposed development, including the provision of the fourth-floor recreation areas, will improve the lifestyle quality of frail aged persons.[56]  Having regard to the design attributes outlined, Ms Wells opines that the proposed development will convert an older undesirable institutional aged care site into a modern and desirable home for 110 older Australians who need frail aged accommodation and care.  She says that the partial fourth floor is a crucial part of achieving an innovative and non-institutional environment and improved quality of life for older Australians and their loved ones in the Gold Coast community.[57]

   [56]Exhibit 3.2 pp 48-9 [131].

   [57]Exhibit 4.2 p 12 [5.5]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

7. I accept the evidence of Ms Wells about the design attributes of the proposed development and its many associated benefits for older Australians.  I do not accept the Council’s contention, referred to in paragraph [11] above, that the benefit to the public of providing a facility that will enhance the quality of life of the elderly is of little moment. 

   How does the proposed development present?

8. There is disagreement between the experts about the visual presentation of the proposed development. 

9. Mr Robinson opines that the presentation of the proposed development will be alien to the locality.  He describes the bulk of the proposed development as a long, three-storey slab-like form with a frontage of 58 metres.  He says the design of the proposed development involves a square form building with a large central courtyard.  Mr Robinson opines that such a form exacerbates the large external face of the building and, when viewed from the street, presents as a long, uniform, institutionalised building in its scale – a bulky, slab-like outcome.  Mr Robinson says this is a plan form that is somewhat alien to the locality.  He says that the locality is dominated by one, two and three-storey buildings with a smaller footprint than the proposed development and with thinner, broken-edged building forms that result in more articulated and finer-grained building forms in the locality.  Mr Robinson illustrates his point in Figure 7 of the Joint Expert Report: Architecture, which he describes as “Illustration of a square form building with a large central courtyard (left) versus a building footprint with a ‘wings’ arrangement (right)”.[58]

   [58]Exhibit 3.1 p 12 [37(a)].

10. Mr Robinson says that while the subject land may dominate the locality in a landowner sense, the existing development on the land does not dominate the locality’s streetscape or skyline (except for the historic six-storey high anomaly at the centre of the subject land).  He says the subject land’s frontage is composed of low-height, low-impact buildings that are largely screened from the street by landscaping.  Mr Robinson says the proposed development, at three storeys high (plus partial fourth storey) and presenting a 58-metre-long wall of continuous street fronting façade with largely flatline roof profile, represents a considerable uplift in development.  He opines that it is a bulky form that will dominate the street front at this location.[59]

    [59]Exhibit 3.1 pp 12-3 [37(a)].

11. Mr Peabody disagrees with Mr Robinson about the visual presentation of the proposed development.  He says the proposed development represents a well-resolved and articulated building envelope.  The elevations to the three-storey portion of the proposed development are articulated by:

    (a)terrace areas, which are a combination of horizontal and vertical elements that “bookend” the proposed development and offer lightweight, activated edges to the three-storey portion of the building envelope;

    (b)expressed portal frames to the lower two storeys, which have vertical and horizontal elements and provide punctuation and stepping along the facades;

    (c)vertical blades that extend in a horizontal pattern across the length of the third level between the two “bookend” terraces; and

    (d)a general articulation and modulation of form.[60]

    [60]Exhibit 3.1 p 9 [27]; Exhibit 4.3 p 4 [9]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 52-3.

12. Mr Peabody says that each of these design features have horizontal and vertical elements, and they are not in a consistent plane.  There is also a lot of recess within each of the elements.  Mr Peabody’s descriptions of these elements are well-demonstrated in Figure 6 of the Joint Expert Report: Architecture.[61]

    [61]Exhibit 3.1 p 9.

13. The fourth storey portion of the building envelope, located on the northwest corner of the new residential aged care facility, steps back from the line of the three-storey building envelope below.  Mr Peabody opines that this reduces the impact of this building element.  The impact of the fourth storey is further lightened by the landscape-covered pergola structures, which extend to the east and south over the outdoor terraces.[62]  Mr Peabody further opines that these design elements result in a three-storey elevation that presents to the Bayview Street frontage as a highly articulate and well-resolved built form outcome.[63] 

    [62]Exhibit 3.1 p 9 [27].

    [63]Exhibit 3.1 p

14. Mr Powell gave evidence of the visual impact of the proposed development.  He explains that, in his view, visual impact can only result from what can be seen or clearly perceived.[64]  Mr Powell opines that, because the lift overrun is set well back from the edges of the building (and almost central to the uppermost floor), it will not be perceivable from the public road reserve to the east, or from residential dwellings to the south, or from the internal driveways of the subject land to the north and west.  He says this is demonstrated in the various 3D drawings and renders produced by Cottee Parker, which he extracts as Figures 5 to 9 in his report.[65]  Although the 3D drawings were not prepared by Mr Powell, before relying on them he reviewed their accuracy to satisfy himself that they appropriately represented the presentation of the proposed development.[66]  I accept his evidence in that regard.

    [64]Exhibit 4.1 p 8 [18].

    [65]Exhibit 4.1 p 8 [20] and p 10.

    [66]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 53-4.

15. Mr Powell explains that the lift overrun represents approximately 0.22 per cent of the overall development site building footprint measured to its outermost projection (including the western building to be retained), or 0.29% of the new building footprint (excluding the western building), or 0.36% of the third storey gross building area.[67]  Mr Powell opines that whether it is 22 or 36 hundredths of one percent, or somewhere in between, the lift overrun will not have any material visual impact on the public and private domains surrounding the subject land.  I accept this evidence.

    [67]This was agreed by the architects: Exhibit 3.1 p 16 [44].

16. As for the partial fourth storey, Mr Powell says that any perception of building height and scale from surrounding areas will necessarily be a product of the height and horizontal separation (or setback) of the primary building from the boundaries and any horizontal stepping adopted between levels.[68]  Mr Powell notes that the proposed development adopts substantial setbacks to boundaries and to existing buildings.  They exceed the relevant acceptable outcomes.  In addition, Mr Powell says the fourth level adopts substantial horizontal stepping from the south and east, such that it is completely concealed from view from the road to the east and south-east and residences to the south.  He says the design also adopts considered stepping from the north.  Because of this, the fourth-storey roof appears to have a similar height to that of the north-east stairwell, which is approximately 13.5 metres high.[69] 

    [68]Exhibit 4.1 p 9 [22].

    [69]Exhibit 4.1 p 9 [23]-[24].

17. Mr Powell opines that the building presents to the street as three storeys when viewed from the north-east.  He explains that this appearance is achieved by the combined visual effect of the height of the porte-cochere roof, the inclusion of a void over the entry, and the appearance of two levels above the porte-cochere roof and void.  Consequently, the northern façade of the building will have the appearance of being three storeys and less than 13.5 metres in height when viewed from the street.[70]

    [70]Exhibit 4.1 p 11 [25]-[26].

18. From the north-west (when standing in front of adjacent the six-storey building), Mr Powell says the top of the northern face of the proposed building will sit below the 13.5 metre height line at the northern building face, and the building will be largely concealed behind dense landscaping.[71]

    [71]Exhibit 4.1 p 11 [28].

19. Based on the above analysis, Mr Powell opines that from surrounding public and private locations, the proposed building will appear as three storeys and less than 13.5 metres in height.  He also opines that, from a visual amenity perspective, the height and form of the proposed development, which informs its visual manifestation, accord with the local visual character, and will make a positive contribution to the local area.[72]  During cross-examination, in response to a suggestion that the proposed development would represent an alien form, Mr Powell opined that the proposed development is compatible with the existing form.  He says the articulations in the building (referred to in the Joint Expert Report: Architecture) breaks the building up vertically.  Further, street trees and new tree plantings will soften the frontage of the proposed development.  When challenged about the impact of the vegetation, Mr Powell gave a cogent explanation of its ability to moderate the built form to a substantial degree.[73]

    [72]Exhibit 4.1 p 13 [31a]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 53.

    [73]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 58-60.

20. Mr Robinson agrees that the fourth-storey component of the building will not dominate and is unlikely to be seen from many public vantage points.  He says the access driveway will be the vantage point with the most view of the fourth storey.[74]  He also accepts that the building will be perceived predominantly as three storeys in height.[75]

    [74]Exhibit 4.1 pp16-7 [45].

    [75]Exhibit 3.1 p 28 [54].

21. I prefer the evidence of Mr Peabody and Mr Powell about the form, design, and visual impact of the proposed development to that of Mr Robinson.  The opinions of Mr Peabody and Mr Powell were supported by cogent explanations and accord with what is depicted in the elevations (and the plans generally).  In contrast, it seems to me that Mr Robison placed too much emphasis on the plan views of the proposed development and paid insufficient regard to its external presentation.  The evidence of Mr Peabody and Mr Powell persuades me that the proposed development has considerable architectural merit.

What is the relevant framework for the decision?

1. The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies to this appeal.

2. Pursuant to s 46 of the Planning and Environment Court Act 2016, the exercise of the discretion must be based on an assessment that is carried out under s 45 of the Planning Act 2016.[76]  It, relevantly, states:

   [76]See also Planning Act 2016 s 59.

   “(5)An impact assessment is an assessment that—

   (a)must be carried out—

   (i)      against the assessment benchmarks in a categorising instrument for the development; and

   (ii)     having regard to any matters prescribed by regulation for this subparagraph; and

   (b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.

   Examples of another relevant matter—

   •     a planning need

   •     the current relevance of the assessment benchmarks in the light of changed circumstances

   •     whether assessment benchmarks or other prescribed matters were based on material errors

   Note—

   See section 277 for the matters the chief executive must have regard to when the chief executive, acting as an assessment manager, carries out a code assessment or impact assessment in relation to a State heritage place.

   (6)Subsections (7) and (8) apply if an assessment manager is, under subsection (3) or (5), assessing a development application against or having regard to—

   (a)a statutory instrument; or

   (b)another document applied, adopted or incorporated (with or without changes) in a statutory instrument.

   (7)The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.

   (8)However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to—

   (a)if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document; or

   (b)another statutory instrument—

   (i)      that comes into effect after the development application is properly made but before it is decided by the assessment manager; and

   (ii)     that the assessment manager would have been required to assess, or could have assessed, the development application against, or having regard to, if the instrument had been in effect when the application was properly made.”

3. With respect to assessment benchmarks, s 43 of the Planning Act 2016 relevantly states:

   “43     Categorising instruments

   (1)A categorising instrument is a regulation or local categorising instrument that does any or all of the following—

   (a)     categorises development as prohibited, assessable or accepted development;

   (b)     specifies the categories of assessment required for different types of assessable development;

   (c)     sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.

   (2)An assessment benchmark does not include—

   (a)     a matter of a person’s opinion; or

   (b)     a person’s circumstances, financial or otherwise; or

   (c)     for code assessment—a strategic outcome under section 16(1)(a); or

   (d)     a matter prescribed by regulation.

   Examples of assessment benchmarks—

   a code, a standard, or an expression of the intent for a zone or precinct

   (3)A local categorising instrument is—

   (a)     a planning scheme; or

   (b)     a TLPI; or

   (c)     a variation approval, to the extent the variation approval does any of the things mentioned in subsection (1).”

4. City Plan is a categorising instrument containing assessment benchmarks relevant to the assessment called for by s 45 of the Planning Act 2016.  Although there are other categorising instruments, the parties have not put them in issue.  Neither of the parties contend that an assessment of the development against the assessment benchmarks in those other categorising instruments informs the appropriate outcome in this case. 

5. The development application was properly made on 13 December 2019.  At that time, Gold Coast City Plan 2016 version 7 (“City Plan”) was in effect.[77]  The assessment must be undertaken against that version.[78]

   [77]Exhibit 8.1 p 1 [1]-[2]. 

   [78]Planning and Environment Court Act 2016 s 46(2)(a); Planning Act 2016 s 45(7).

6. At the time of the hearing, version 8 of City Plan 2016 was in effect.[79]  Although weight may be given to that version,[80] neither party contends that it should be.  That said, the Council seeks to rely on a possible amendment, not yet in effect, as a relevant matter.  I will deal with that issue later.

   [79]Exhibit 8.1 p 2 [5].

   [80]Planning and Environment Court Act 2016 s 46(2)(b); Planning Act 2016 s 45(8).

7. In relation to s 45(5)(b) of the Planning Act 2016, although examples are given, the term “relevant matter” is not defined.  In an appropriate case, the absence of a negative impact or detrimental effect may be taken into account as a relevant matter.[81]  Personal circumstances of a person (including a corporation),[82] financial or otherwise, are not a relevant matter to which regard may be had.[83]

   [81]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1021 [61].

   [82]Acts Interpretation Act 1954 (Qld) s 32D.

   [83]Planning Act 2016 s 45(5); Acts Interpretation Act 1954 s 14D.

A threshold difficulty with the Council’s case

1. The Council submits:

   “27.The application is impact assessable and, so, the assessment:

   (a)must be carried out against the assessment benchmarks in a categorising instrument for the development (and, although not relevant here, having regard to any matters prescribed by regulation); and

   (b)may be carried out against, or having regard to, any other relevant matter.”[84]

   [84]Emphasis added, footnote omitted.

2. Section 31 of the Planning Regulation 2017 (Qld) contains matters that are prescribed for the purpose of an impact assessment under s 45(5)(a)(ii) of the Planning Act 2016.  It relevantly states:

   “31Matters impact assessment must have regard to generally—Act, s 45

   (1)For section 45(5)(a)(ii) of the Act, the impact assessment must be carried out having regard to—

   …

   (f)     any development approval for, and any lawful use of, the premises or adjacent premises; and

   (g)     the common material.”

   (emphasis added)

3. Common material is defined for a development application to mean:

   “all the material about the application that the assessment manager receives before the application is decided, including—

   (i)any material relating to a proposed development application that is substantially similar to the development application as made; and

   (ii)any material attached to, or given with, the development application; and

   (iii)any material relating to the application given to the assessment manager after the application is made; and

   (iv)any referral agency’s response, including any advice or comment given by a referral agency and any response given under section 57 of the Act; and

   (v)any properly made submissions about the application, other than a submission that is withdrawn; and

   (vi)any other submission about the application that the assessment manager has accepted; and

   (vii)any other advice or comment about the application that a person gives to the assessment manager.”

4. As will be evident from my reasons below, the impact of the proposed development on the character and appearance of the local area is in issue.  To assess the impact, it is necessary to have regard to the existing character and appearance of the local area.  As I have already identified in paragraphs [4] to [6] above, a significant portion of the existing development on the subject land is proposed to be retained.  It includes the two-storey building containing residential aged care facilities and the one, two, three and six-storey buildings that form the existing retirement facility. 

5. In those circumstances, pursuant to s 31(1)(f) of the Planning Regulation 2017, the impact assessment must be carried out having regard to the use of the premises for a residential aged care facility in a two-storey building and the use of the premises for a retirement facility housed in one, two, three and six-storey buildings.

6. As such, the Council’s submission is wrong at law.  The error in the Council’s approach is a fundamental defect that infected the Council’s case, including the approach of its witnesses.[85]  

   [85]See, for example, the matters referred to in paragraphs [118] to [139] below.  Whether the error infected the Council’s case is not a relevant matter that I have had regarded to in determining the case.  This is a hearing anew.  It might, however, explain the difference in the outcome.

7. There is a second error in the Council’s submission. It relates to the obligation, under s 31(1)(g) of the Planning Regulation 2017, to carry out the impact assessment having regard to the common material.  There was relevant common material referred to by the parties.  It included, amongst other things, the landscape plans in Exhibit 2.6 and the plans of the development in Exhibit 2.7.[86]  It is necessary to consider that common material to understand the built form of the proposed development and to assess its potential impact.

   [86]See also Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 58 at lines 30 to 46 and 65-6 at lines 5 to 12.

   What is the appropriate approach to the assessment and decision-making process?

8. The assessment and decision-making process outlined above is to be approached consistent with the recent Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[87] Abeleda & Anor v Brisbane City Council & Anor,[88] Wilhelm v Logan City Council & Ors[89] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[90]  Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors[91] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[92]

   [87][2020] QCA 253; [2021] QPELR 987.

   [88][2020] QCA 257; [2021] QPELR 1003.

   [89][2020] QCA 273; [2021] QPELR 1321.

   [90][2021] QCA 95; [2022] QPELR 309.

   [91][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

   [92][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

9. There is a broad discretion in determining the appeal. Section 47 of the Planning and Environment Court Act 2016 requires the Court to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate. 

10. As is apparent from the Court of Appeal decisions, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[93]  In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.[94]  Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[95]  The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.[96] Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted. Although the exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.[97]

    [93]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77].

    [94]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40].

    [95]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804‑6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]‑[14].

    [96]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53].

    [97]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]-[57].

    Does the proposed development comply with the assessment benchmarks in City Plan?

1. Under City Plan, the subject land is:

   (a)included within the urban neighbourhoods element for the Strategic framework;

   (b)within the Medium density residential zone; and

   (c)mapped on Building height overlay map - map 12 with a height designation of two storeys and nine metres.[98]

   [98]Exhibit 8.1 p 1 [4].

2. As such, the development application for the proposed development requires impact assessment against, relevantly, the Strategic framework, the Medium density residential zone code, and the Multiple accommodation code in City Plan.[99]

   [99]Exhibit 7.8 pp 113-5 City Plan ss 5.1, 5.2, 5.3, 5.5; Exhibit 5.3 p 1 Table 5.5.2.

3. Tricare admits that:

   (a)the proposed development is an area designated on the Building height overlay map as having a height of two storeys or nine metres;[100]

   (b)the proposed development is four storeys in height; and consequently,

   (c)the height of the proposed development does not comply with:

   (i)the specific outcome in s 3.3.2.1(10) of the Strategic framework; and[101]

   (ii)the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.[102]

   [100]Exhibit 1.4.

   [101]Exhibit 1.4.

   [102]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 22; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 8 November 2021) 2.

4. The specific outcome in s 3.3.2.1(10) of the Strategic framework states:

   “Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.”[103]

   [103]Exhibit 5.2 p 17.

5. The overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code states:

   “Built form (excluding Dwelling houses on small lots) –

   (i)has a building height that does not exceed that indicated on the Building height overlay map.”[104] 

   [104]Exhibit 5.4 p 3.

6. The Council concedes that the proposed development complies with all other relevant assessment benchmarks, other than s 3.3.2.1(9) of the Strategic framework.[105] 

   [105]Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 22; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 8 November 2021) 21-2.

7. Section 3.3.2.1(9) of the Strategic framework states:

   “(9)Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all 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’s significant natural features;

   (g)deliberate and distinct built form contrast in locations where building 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.

   Note: Where the Building height overlay map shows both storeys and metres, the lesser of the two shall apply, and any fraction which results from the calculations shall be rounded down to the nearest floor or partial floor.”[106]

   [106]Exhibit 5.2 p 17.

8. The proposed development seeks an increase in building height of more than 50% above the Building height overlay map.  As such, this provision is not engaged. 

9. That the outcomes in s 3.3.2.1(9) do not apply to the proposed development is supported by the note to s 3.3.2.1(10) of the Strategic framework, which states:

   “Note: no criteria have been identified for building heights which are more than 50% above the Building height overlay map, because such increases are in conflict with City Plan.”[107]

   [107]Exhibit 5.2 p 17.

10. Notes form part of the City Plan.[108] 

    [108]Exhibit 5.1 p 3 s 1.2.2(3).

11. Here, the proposed development conflicts with City Plan by reason of its proposed height.  It can be accepted that the identified non-compliances with City Plan cannot be conditioned to achieve compliance.[109]

    [109]This is an allegation in paragraph 3 of the reasons for refusal in the decision notice dated 4 August 2020.  Tricare does not contend that the proposed development could be conditioned to achieve compliance with these provisions.  In those circumstances, it is difficult to understand the Council’s insistence on maintenance of paragraph 3 of the reasons for refusal in the decision notice dated 4 August 2020 as a real issue in dispute: see paragraphs [140] to [157] below.

    What is the significance of the non-compliance with the assessment benchmarks respect to height?

12. It is well established that the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks.[110]  The decision can be informed by other relevant matters.[111]  Nevertheless, to ascertain the weight to be attributed to the non-compliance in undertaking the exercise of the planning discretion, one must examine the verbiage of the planning scheme to ascertain the degree of importance that the planning scheme attaches to the requirements in the provisions.[112]

    [110]Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.

    [111]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015 [40].

    [112]I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36, [288] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335-7 [18]-[22].

13. The Council alleges that s 3.3.2.1(10) and the associated note are a “core planning strategy.”[113]  Neither the Council nor its experts identified provisions of City Plan that support a finding that the two assessment benchmarks with which there is non-compliance are identified in City Plan as a “core planning strategy”. 

    [113]Exhibit 1.3 p 2 [5].

14. Tricare disagrees.  It submits that the Council’s allegation is a blatant attempt to elevate the importance of the height provisions in this case in circumstances where they are the only assessment benchmarks in respect of which non-compliance is alleged.[114]  That said, it is not suggested by Tricare that the planned outcome with respect to height is not important. 

    [114]Written Submissions on behalf of the Appellant p 23 [89].

15. I am not persuaded that it is necessary, or appropriate, to attribute the label “core planning strategy” to s 3.3.2.1(10) or its note.  There are many assessment benchmarks against which the proposed development was required to be assessed.  The assessment benchmarks are not limited to provisions with respect to building height.  They address matters as varied as the density of development, bulk, scale, setbacks, roof form, local character, landscaping, and open space provision.  Further, City Plan does not label its policy with respect to building height, or any of the other matters dealt with in the myriad of other applicable assessment benchmarks, as a “core planning strategy”. 

16. The real issue is the significance of the non-compliances with the specific outcome in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.  That is informed by considering the context in which those assessment benchmarks appear.

17. Section 3.3.2.1(10) forms part of the Strategic framework.  The whole of the City Plan, including the Strategic framework, is an assessment benchmark for impact assessable development.[115]

    [115]Exhibit 5.2 p 1 Note to s 3.1.

18. The Strategic framework sets the policy direction for the Gold Coast to 2031.[116]  It comprises the strategic intent, six city shaping themes, strategic outcomes for development for each theme, elements that refine and further describe the strategic outcomes, and specific outcomes sought for each element.  It also includes mapping.[117]

    [116]Exhibit 5.2 p 1 s 3.1(1).

    [117]Exhibit 5.2 p 1 s 3.1(3).

19. Section 3.3.2.1(10) is just one of many specific outcomes in the “Urban neighbourhoods” element in s 3.3.2.  Notes to s 3.3.2 relevantly state:

    “Note:  Urban neighbourhoods are locations included in the Medium density residential and High density residential zone.  Unless stated otherwise, Urban neighbourhoods may also include locations in other zones, such as the Neighbourhood centre and community facilities zone depending on context.

    Note:  Urban neighbourhoods are not locations included in the Low density residential zone.”[118]

    [118]Exhibit 5.2 p 20.

20. As I have already noted, the subject land is included within the urban neighbourhoods element for the Strategic framework.  It is also in the Medium density residential zone. 

21. The planning intent with respect to the height of buildings in urban neighbourhoods is the subject of more than one specific outcome.  To appreciate the significance that City Plan attributes to non-compliance with s 3.3.2.1(10), it assists to read it in the context of the specific outcomes that immediately precede and follow it.  They state:

    “(8)The Building height overlay map shows the building height pattern and desired future appearance for local areas within urban neighbourhoods.  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.

    (9)Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all 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’s significant natural features;

    (g)deliberate and distinct built form contrast in locations where building 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.

    Note: Where the Building height overlay map shows both storeys and metres, the lesser of the two shall apply, and any fraction which results from the calculations shall be rounded down to the nearest floor or partial floor.

    (10)Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.

    Note: no criteria have been identified for building heights which are more than 50% above the Building height overlay map, because such increases are in conflict with City Plan.”

    (11)Urban neighbourhoods are diverse and distinguished by a distinct appearance, identity and built form in each neighbourhood.”[119]

    [119]Exhibit 5.2 pp 16-7 s 3.3.2.1.

22. It is evident from these provisions that it is anticipated that there will be diversity in appearance in urban neighbourhoods, and that the building height pattern and desired future appearance for a local area is that depicted on the Building height overlay map.  As is evident from s 3.3.2.1(9), City Plan provides a degree of flexibility for building height in local areas.  However, the flexibility is bounded by strict parameters. 

1. Those findings of the Court of Appeal sit comfortably with earlier Court of Appeal decisions such as Ecovale Pty Ltd v Council of the City of Gold Coast,[346] wherein Fryberg J observed:

   “It must be remembered that the function of the Planning and Environment Court is to resolve appeals in individual cases. The court is not a super planning authority for the various local authorities of Queensland. It cannot in a particular appeal carry out the sort of inquiry which must be carried out to formulate a new planning scheme. In a case involving the rezoning of small allotments, I do not think the court derives much assistance from evidence relating to the market availability of a few other similar allotments in the neighbourhood. When such evidence is advanced by opponents of the development, its supporters may be tempted to advance evidence that the supposedly similar allotments are in fact unsuitable for the proposed development. Such an approach could turn the appeal into an inquiry into the suitability in planning terms of all those allotments. The resulting delay and cost may easily be imagined.”[347]

   Does the existence of appropriately zoned land “meet the need” for residential aged care facilities?

   [346][1999] 2 Qd R 35.

   [347]Ecovale Pty Ltd v Council of the City of Gold Coast [1999] 2 Qd R 35, 47.

2. The Council also contends that the mere existence of appropriately zoned land demonstrates that the need for the proposed development is adequately met by City Plan. 

3. As was observed by McMurdo JA, with whom Sofronoff P and Philippides JA agreed, in Bell v Brisbane City Council & Ors:[348]

   “Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. Cases of that kind were identified in the explanatory notes for s 3.5.14 of the Integrated Planning Act. There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision-maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”[349]

   (emphasis added)

   [348][2018] QCA 84; [2022] QPELR 289.

   [349]Bell v Brisbane City Council & Ors [2018] QCA 84; [2022] QPELR 289, 305 [68].

4. In this case, consideration of the Council’s contention calls for closer scrutiny of two issues:

5. What is the need that the proposed development seeks to address?

6. How does City Plan address that need?

   What is the need that the proposed development seeks to address?

7. The issue of whether circumstances exist that create a need for a certain development in the public interest is a question of fact and degree that will turn on the circumstances of the case.

8. In this case, there was extensive evidence about the attributes of proposed development and how those attributes differ to those exhibited by traditional residential aged care facilities.  The relevant evidence, and my findings in relation to it, includes that set out in paragraphs [36] to [51] and [212] to [225] above.  The real issue is whether the provision of those attributes is a matter of public interest or nothing more than an exercise in entrepreneurial skill to give Tricare some commercial advantage.

9. Ms Wells opines that there is a changing community attitude towards the quality of accommodation that should be provided for the elderly.  She says that the attributes of the proposed development, set out in paragraphs [36] to [51] above, are of material benefit to older Australians.  She opines that the proposed development, including its innovative roof deck and larger room sizes, is imperative to improving the available choice in this location and to meeting the expectations of the current older Australians and the coming “baby boomers”.[350]  Ms Wells provides detailed and cogent explanations in support of her opinions.

   [350]Exhibit 4.2 p 18 [7.3].

10. The changed community attitude towards the adequacy of accommodation for the elderly is highlighted by the final report issued by the Royal Commission into Aged Care Quality and Safety in March 2021 and the Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety. 

11. The Royal Commission’s final report indicates that the aged care system is difficult to access and navigate.  The experts agree that a review of the key literature reveals that the challenges that face the provision of suitable facilities to accommodate older persons include supply constraints by reason of planning issues.[351]  

    [351]Exhibit 3.2 p 23 [63].

12. In response, the Commonwealth Government has outlined a five year, five pillar program for the reform of the aged care system.  The current system is no longer considered to meet the needs of the elderly or community expectations.  Part of second pillar to the program is to improve and simplify residential aged care by reforming residential aged care design and planning to better meet the needs of senior Australians, particularly those living with dementia.[352] 

    [352]Exhibit 4.2 p 4 [2.1] and [2.2].

13. In her individual report, Ms Wells explains that both the Royal Commission and the Commonwealth Government have indicated that designing with consideration for dementia and continuing to innovate the aged care environment is a matter of significant importance for providing quality of life for older Australians needing residential aged care.  They also note that a variety of innovative settings is important to provide choice and to meet all types of need and preferences. 

14. Ms Wells explains that the proposed development aligns to the aged Care Reforms announced by the Commonwealth Government in May 2021.  She says it will deliver a high-quality development for persons with dementia and high and complex care needs.  She notes that other residential aged care facilities that have been recently developed by Tricare are already considered superior built environments in the marketplace.  Ms Wells says they are likely to assist in informing what will be regarded as good innovative design for the Commonwealth Government’s new design guidelines.[353]

    [353]Exhibit 4.2 p 17 [7.1].

15. In addition, Ms Wells says that the proposed development supports the key principles of the proposed new direction in aged care.  The proposed development will deliver a new type of built environment in the catchment area supporting innovation and the right to exercise a choice that is different to the primarily traditional environments available.  Its inclusion of non-clinical institutional elements will promote independence, wellbeing and support dignified living.  Those elements include high ceilings and doors; an abundance of natural light, space, and connection with the outdoors; the removal of hospital style and clinical finishes; the removal of a hospital style servery; the removal of back of house as much as possible; and the internal grand landscape atrium visually connecting with garden space.  The larger, partially self-contained spaces offered in the rooms (i.e., the offer of a room that includes a bedroom, lounge area, ensuite, built-in cabinetry for storage, television, desk, and tea making facilities) will promote independence, dignified living, and space for informal carers to be comfortable.  The proposed development will provide residents with the opportunity to enjoy socialising with family and friends.  The offer of multiple social spaces, including the roof deck recreation area, will promote, and allow residents to enjoy the right to, social participation.  It will enable residents to live an active and meaningful life and enjoy the right to social spaces and activities that are accessible to members of society generally.  The proposed development will promote and foster relationships with family and friends in an environment that is conducive to relaxation and socialisation.  Through its provision of the type of social spaces and environments to which younger residents are ordinarily accustomed, such as a wine bar, the proposed development will promote positive community attitudes about aged care.[354]

    [354]Exhibit 4.2 p 18 [7.2].

16. I accept the evidence of Ms Wells referred to in paragraphs [334] to [341] above.  It satisfies me that it is in the public interest to provide residential aged care facilities that differ from that traditionally provided.  This is necessary to meet contemporary public expectations as identified by the report of the Royal Commission into Aged Care Quality and Safety and the Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety.  The evidence also satisfies me that the proposed development addresses that need.  I am comfortably persuaded that the design attributes referred to in paragraphs [36] to [51] and [212] to [225] above are not simply an exercise of entrepreneurial skill by Tricare.  The proposed development will deliver material benefits to older Australians.  It bears repeating that I do not accept the Council’s contention, referred to in paragraph [11] above, that the benefit to the public of providing a facility that will enhance the quality of life of the elderly is of little moment.  The provision of such facilities is a matter that is in the public interest.  It is a compelling consideration that supports approval. 

    How does City Plan address the identified need?

17. As I have found above, the relevant need to be considered is not simply the need for residential aged care facilities.  It is a need for residential aged care facilities that meet contemporary public expectations as identified by the report of the Royal Commission into Aged Care Quality and Safety and the Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety. 

18. How does City Plan meet that identified need?

19. As part of the strategic intent to achieve a “world-class city”, City Plan recognises that it needs to plan for all households.  With respect to that intent, City Plan states:

    “As we grow, we need to plan for all households so that privately owned, rental and socially rented housing options are available in well located places.  This requires planning for housing that is affordable, attractive and diverse with convenient access to transport, employment, community, recreation and other services.”[355]

    (emphasis added)

    [355]Exhibit 5.2 p 3 s 3.2.1.

20. Although no reference is made to housing for the elderly in this statement, the more detailed statements of intent indicate that there is an intention to provide such housing.  Relevantly, in relation to the “Creating liveable places” theme in the Strategic framework, the strategic outcome in s 3.3.1(4) states:

    “Affordable housing or entry level priced housing meets the needs of low to moderate households, and purpose-built adaptable housing and accommodation meets the needs of seniors, people with disabilities, students and people in need of emergency accommodation.  These forms of housing are located close to facilities, services, public transport, employment and essential infrastructure.”[356]

    (emphasis added)

    [356]Exhibit 5.2 p 14.

21. It is agreed by the experts that the subject land is well located to a range of commercial facilities including Runaway Bay Town Centre, the coast itself and community facilities. The experts also record that bus route 711 runs along Bayview Street, past the subject land, with services offered between Hope Island and Southport.[357]

    [357]Exhibit 3.2 p 13 [29].

22. Ultimately, having considered the applicable planning instruments, the need and industry experts agree that the subject land has attributes that contribute to a more compact urban form, as sought by City Plan, and would provide diversity and choice of housing.  It was agreed by the experts that the subject land has the desired level of access to lifestyle, health, and central services to enable persons to age well in this neighbourhood.[358]  

    [358]Exhibit 3.2 p 15 [37]-[38].

23. Although the higher order provisions of City Plan identify a planning intention to provide accommodation to meet the needs of seniors, it does not necessarily follow that City Plan meets the identified need that will be addressed by the proposed development.

24. As I have already mentioned, the strategic outcome in s 3.3.1(4) of City Plan indicates a planning intent to provide “purpose-built adaptable housing and accommodation meets the needs of seniors”.  The Council was unable to identify other provisions of City Plan that assist to further that planning goal, and certainly none that assist in light of the vexing issue identified by the experts to which I refer in paragraphs [323] to [327] above and with which the Council did not cavil.

25. Relevantly, there is no zone in City Plan that is exclusively planned to be used for residential aged care facilities and retirement facilities.  The subject land is in the Medium density residential zone.  Land in that zone is not only planned for use for residential aged care facilities.  There are many types of use that are encouraged in the Medium density residential zone and that may compete for available land in that zone. 

26. Under City Plan, land in the Medium density residential zone is to provide for a range and mix of dwelling types including dwelling houses, dual occupancies, multiple dwellings, and community residences.  The land may also be used for relocatable home parks and rooming accommodation, neighbourhood centres and stand-alone small scale non-residential development.  Other land uses, such as car washes, child care centres, health care services, food and drink outlets, shops (other than a supermarket), veterinary services, community care centres, community uses, emergency services, educational establishments and places of worship, may also be considered if appropriately designed and located and if they do not detract from the residential amenity of the area.[359]

    [359]Exhibit 5.4 p 1 ss 6.2.2.2(1) and (2)(a).

27. Further, under City Plan residential aged care facilities are required to meet the same assessment benchmarks that apply for other forms of intensive residential development.  For example, as with other forms of residential development, residential aged care facilities are required to comply with the assessment benchmarks in the Multiple accommodation code, which require:

    “(a)Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of the occupants of the dwelling and neighbouring residential premises.

    (b)Development is designed and orientated to promote a safe environment within the site, adjoining streets and public realm.

    (c)Development is complemented by high-quality landscaping that contributes to the desired character of the area.

    …

    (f)Development is designed to add visual interest to the streetscape, to contribute positively to the local and wider city character and image, and to achieve a high quality urban design, with highly functional, accessible, attractive, memorable and sustainable buildings and spaces.

    (g)Multiple dwellings, Short-term accommodation, Resort complexes, Residential care, Retirement facilities and Rooming accommodation uses up to 32 metres in height, promote a high standard of living and care for residents through their design, recreation facilities and location.”[360]

    [360]Exhibit 5.5 pp 1-2 s 9.3.14.2.

28. In addition to the requirement to meet those same planning goals about the standard of the design and the contribution to the character of the area, residential care facilities and retirement facilities are required to meet an additional hurdle.  In this respect, the Multiple accommodation code requires:

    (a)in the overall outcome in s 9.3.14.2(2)(h):

    “Residential care facilities and retirement facilities are provided with self contained services and recreational facilities to meet the needs of residents.”[361]

    [361]Exhibit 5.5 p 2.

    (b)in performance outcome PO17:

    “Services and recreation facilities for residential care facilities and retirement facilities

    PO17

    A range of self-contained services and recreational facilities are provided.”[362]

    [362]Exhibit 5.5 pp 2, 4, 10, and 15.

29. That planning approach to residential aged care facilities under City Plan can be contrasted with the planning approach considered in Walters & Ors v Brisbane City Council & Anor.[363]  As is recorded in that case, Brisbane City Council proposed to adopt amendments to Brisbane City Plan 2014 and the proposed amendments were, in 2018, at a very late stage of the adoption process.  Brisbane City Council had resolved to amend Brisbane City Plan 2014 to support the provision of aged care accommodation.  The proposed amendments were intended to:

    (a)broaden the zones in the city where a retirement facility and residential care facility is envisaged, to encourage new retirement and residential care facilities in our neighbourhoods;

    (b)provide for retirement and residential care facilities in Low density residential and Low-medium density residential zones as code assessable where they meet existing height requirements;

    (c)increase allowable building height as code assessable for residential care facilities and retirement facilities in the Medium density residential and High density residential zones; and

    (d)facilitate retirement facilities and aged care facilities in well-serviced areas near existing shops, public transport, and key services.[364]

    [363][2019] QPEC 3; [2019] QPELR 487.

    [364]Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3; [2019] QPELR 487, 519 [220] – 526 [234].

30. No encouragement of this kind is provided in City Plan for the development of residential aged care in the Gold Coast local government area. 

31. In summary, I readily accept that the Council has made provision in City Plan, in a land use sense, for residential aged care facilities.  It does so by permitting residential aged care facilities to be developed on land in the Medium density residential zone.  However, land in that zone is also planned to accommodate many other uses, including other forms of residential use.  This leaves the developers and operators of residential aged care facilities in the difficult position of needing to compete with developers of other residential products for possible development sites.  Under City Plan, residential aged care facilities are subject to the same development constraints with respect to height and intensity as that which apply to other forms of residential development.  They are required to meet the same neighbourhood design goals and deliver the same extent of character benefits for the neighbourhood.  In addition, residential aged care facilities must provide self-contained services and recreation facilities.  That is not a requirement for other forms of residential development (other than retirement facilities).

32. Having regard to the unchallenged evidence of the economists regarding the vexed issue facing developers of residential aged care facilities referred to in paragraphs [323] to [327] above, and the features of the planning regime referred to in paragraphs [345] to [357] above, I do not consider City Plan to be conducive to meeting the needs for residential aged care facilities that meet contemporary public expectations.

33. For the reasons provided above, I am satisfied that Tricare has demonstrated that there is a latent unsatisfied demand that is either not being met at all or is not being adequately met. 

    Will the proposed development provide appropriate facilities for ageing in place?

34. As is recorded in Exhibit 10.6, Tricare alleges:

    “4.The proposed development facilitates the important modern planning principle of providing for ageing in place, on sites in appropriate locations, with developments that provide necessary facilities for the amenity and well-being of the aged.

    6.There is an ongoing economic public and community need:

    (a)to provide appropriate facilities (including recreational facilities) to properly house and care for the ageing population of South East Queensland including the Gold Coast and Runaway Bay generally and on this site, specifically, in a manner which allows that ageing to take place within each person’s relevant community.

    7.There is an increasing public and community need to accommodate older members of the Runaway Bay community, and to re-develop and modernise existing facilities such as on this site particularly, having regard to:

    (a)the high growth in over 70s (resulting in increased aged care demand);

    (b)the limited existing vacant places in current facilities;

    (c)the limited future supply, in the “pipeline”, of aged care development in the locality; and

    (d)the limited availability of appropriate sites (in terms of size and location) to reasonably and economically develop new, appropriately designed and scaled retirement and aged care development, and the uncertainty attending the development of any such sites.”

1. I have already extensively addressed the evidence with respect to these contentions, and my findings with respect to that evidence, in my reasons above.  As such, it is unnecessary to deal with these contentions further, other than to observe that, with respect to these issues, the Council acknowledges that the proposed development:

   (a)will be contemporary and that the subject land is an appropriate site for an aged care facility; and

   (b)will, in the long-term, allow for ageing in place across the subject land.[365]

   [365]Submissions on behalf of the Council p 33 [138] and [139].

   Does the design of the proposed development have architectural merit?

2. Tricare alleges that the proposed development has architectural merit.  It relies on that as a relevant matter that supports approval of the proposed development.[366]

   [366]Exhibit 10.6 [10].

3. I have already extensively addressed the evidence with respect to these contentions, and my findings with respect to that evidence, in paragraphs [29] to [65] above.  As I have noted, I am satisfied that the proposed development has architectural merit.

4. The architectural merit of the proposed development is also supported by the absence of allegations of non-compliance, and in fact the Council’s acceptance of compliance, with the many provisions of City Plan that contain assessment benchmarks with respect to the design of development.  Relevantly, those assessment benchmarks include:

   (a)the overall outcomes in ss 6.2.2.2(b)(vi) and (viii) and (d)(iii) and (iv) of the Medium density residential zone code, which state:

   “(b)Housing is provided at a form, scale and intensity that is appropriate for the zone and each particular locality it is in where the following outcomes are satisfied:

   …

   Design and amenity

   …

   (vi)     retention of important elements of neighbourhood character and amenity, and cultural heritage;

   …

   (viii)   achievement of a high quality urban design through highly functional, accessible, attractive, memorable and sustainable buildings and public spaces;”

   …

   (d)Built form (excluding Dwelling houses on small lots) –

…

(iii)is setback from road frontages to promote an urban setting and interface with the street;

(v)has varying site cover to reduce building dominance and provide areas for landscaping.”[367]

[367]Exhibit 5.4 pp 1-3 s 6.2.2.2.

(b)the overall outcomes in the Multiple accommodation code set out in paragraphs [353] and [354] above;

(c)the performance outcomes in the Multiple accommodation code, which state:

“Design and appearance

PO3

All buildings and ancillary structures are designed to:

(a)contribute to the envisaged urban character of the local area;

(b)promote casual surveillance of public streets, public open space and public areas;

(c)add visual interest to the streetscape;

(d)enable differentiation between buildings; and

(e)avoid stark or austere appearance.

Roof form for buildings with 3 or more storeys

PO5

Building caps and rooftops are provided to contribute an attractive roofscape that enhances the architectural distinction of the building and effectively screens service structures, plant and equipment.

Note: building height incorporates allowance for plant and equipment, attractive building caps and rooftop features.

Services and recreation facilities for residential care facilities and retirement facilities

PO17

A range of self-contained services and recreational facilities are provided.”[368]

[368]Exhibit 5.5 pp 2, 4, 10, and 15.

1. This extent of compliance with City Plan is relevant to the exercise of the discretion. 

   Will the proposed development result in any unacceptable impacts?

2. Tricare alleges that the proposed development will not result in any unacceptable impacts, including visual impacts.[369] 

   [369]Exhibit 10.6 [8(e)].

3. The Council disagrees for two reasons. 

4. First, the Council contends that approval of the proposed development will result in unacceptable visual impacts.  In that regard, it relies on the evidence of Mr Robinson to which I have referred in paragraphs [29] to [65] above.  For the reasons provided therein, I am satisfied that the proposed development will not result in any unacceptable impacts, including visual impacts.

5. Second, the Council says that to the extent that there are no other unacceptable amenity impacts, that is of no significance in the exercise of the discretion because the absence of such impacts is what should be achieved by the proposal as a matter of course. 

6. The Council’s submission in this regard should be approached with a degree of caution. As I have already mentioned, under s 45(5)(a) of the Planning Act 2016, the assessment must be carried out against the assessment benchmarks in City Plan.  Relevantly, they include:

   (a)the overall outcomes in ss 6.2.2.2(b)(vii) and (d)(iv) of the Medium density residential zone code, which state:

   “(b)Housing is provided at a form, scale and intensity that is appropriate for the zone and each particular locality it is in where the following outcomes are satisfied:

   …

   Design and amenity

   …

   (vii)    whether adjoining residential amenity is unreasonably impacted;

   …

   (d)Built form (excluding Dwelling houses on small lots) –

   …

   (iv)is setback from side and rear boundaries to protect the amenity of adjoining residences”[370]

   (b)the overall outcome in s 9.3.14.2(2)(a) the Multiple accommodation code, which states:

   “Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of the occupants of the dwelling and neighbouring residential premises.”[371]

   [370]Exhibit 5.4 pp 1-3 s 6.2.2.2.

   [371]Exhibit 5.5 p 1.

7. Compliance with these assessment benchmarks is a mandatory consideration in the exercise of the discretion.[372]

   [372]Planning Act 2016 s 59(3).

   Does the proposed development involve an absence of town planning harm?

8. Tricare alleges that the proposed development involves an absence of town planning harm.[373] 

   [373]Exhibit 10.6 [8(f)].

9. The Council disagrees for three reasons. 

10. First, approval of the proposed development would not be in consonance with the draft amendments to City Plan and such a decision would not be in the public interest.  I have already addressed this issue in paragraphs [158] to [194] above.

11. Second, the approval will render it more likely that Tricare will seek to develop the balance of the land in a manner inconsistent with City Plan and render it more difficult for the Council (and the Court) to refuse applications for such development.  This issue has been addressed by me in paragraphs [232] to [249] above.

12. Third, because it will result in unacceptable built form outcomes under specific outcome in s 3.3.2.1(9)(a), (c) and (d) of City Plan.  As I have already explained in paragraphs [89] to [92] above, this assessment benchmark is not engaged in this case. 

    Should the development application be approved in the exercise of the planning discretion?

13. As I have noted in paragraph [82] above, whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion.  A planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.[374] 

    [374]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 808 [60].

14. For reasons explained above, the case for refusal is of significant force. 

15. The proposed development does not comply with the specific outcome in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.  That is contrary to a forward planning strategy to limit the height of development on the subject land to two storeys and nine metres.  The strategy is intended to shape the built height pattern and desired future appearance for local areas within urban neighbourhoods.  To the extent that the proposed development conflicts with the planned height for the subject land, it is also inconsistent with one of the parameters that informs the broader strategy to reinforce local identity and create a sense of place.

16. The position under City Plan is intended to be strengthened in the future if the draft amendments to City Plan are adopted.  That lends further weight to the case for refusal.

17. Ordinarily, one would expect the planning intentions relevant to the designation of the subject land with a height limit of two storeys and nine metres would be given their full force and effect given the planning scheme is often regarded as an embodiment of the public interest.  As I have already observed in paragraph [117] above, in an assessment of the proposed development undertaken only against the assessment benchmarks referred to in paragraphs [86] and [87] above, it is easy to accept the Council’s case that the non-compliances are deserving of decisive weight and the development application should be refused.  However, the broad evaluative judgment called for by the legislation requires consideration of other matters.

18. In this case, other considerations that must be weighed in the balance when exercising the discretion, and which support approval, include:

    (a)the existence on the subject land of a lawful development for a residential aged care facility and retirement facility which is conducted in one, two, three and six-storey buildings; 

    (b)the current intention to retain the taller buildings on the subject land and to continue to lawfully use them for a residential aged care facility and a retirement facility, apart from with respect to a single building that is one storey in height that is proposed to be demolished and replaced;

    (c)the absence of evidence to suggest that there will be a change to the current intentions in the foreseeable future, or at all; and

    (d)the pressing need for the proposed development.

19. On balance, I am satisfied that, taken in combination, all the matters identified throughout my reasons above that tell against approval should not stand in the way of an approval given the considerations that I have identified that support approval.  Taken in combination, the matters that support approval are compelling.  They persuade me that the proposed development is meritorious and should be approved.

    Conclusion

20. Tricare has discharged the onus.

21. In due course, the appeal will be allowed, and the Council’s decision changed to a development approval subject to lawful conditions. 

22. I will adjourn the appeal to 22 November 2022.  This is to allow the parties to prepare the necessary suite of conditions to be attached to the final judgment.  To facilitate that course, I direct as follows:

23. By 4 pm on 14 October 2022, the respondent is to provide the appellant with a draft suite of conditions.

24. By 4 pm on 28 October 2022, the appellant is to notify the respondent, in writing, of its position with respect to the draft suite of conditions.

25. The appeal be listed for review at 9 am on 22 November 2022.