Upan Company Pty Ltd v Gold Coast City Council

Upan Company Pty Ltd, the applicant, sought development approval from the Gold Coast City Council for a high-rise residential building on land at Main Beach. The Council approved the development, allowing for a mix of two and three-bedroom apartments over 20 storeys. Subsequently, Upan applied to alter the development approval under section 78 of the Planning Act 2016 (Qld), which the Council refused. Upan appealed this refusal to the Planning and Environment Court. The primary judge, in publishing reasons for the dismissal of the appeal, found that the proposed development materially contravened the City Plan. However, he did not impose a condition requiring a podium form with appropriate setbacks, as it was not raised during the appeal. The primary judge gave the parties an opportunity to address this issue before making final orders. Upan subsequently sought leave to appeal against the dismissal of the appeal.

The legal issues before the court involved the procedural fairness of the primary judge's decision and whether he erred in assessing the changed development against the assessment benchmarks. The court considered whether the primary judge dismissed the appeal without determining that compliance with all assessment benchmarks could not be achieved through development conditions. Additionally, the court examined whether Upan was denied procedural fairness by dismissing the appeal without imposing such conditions. The court also reviewed whether the primary judge correctly assessed the changed development against the benchmarks, given his finding that the approved development did not have a tower and podium form.

In dismissing the appeal, the primary judge exercised his discretion by declining to reopen the appeal to consider new plans proposed by Upan. The court found that the primary judge was not in error, as the existing proposal contravened the City Plan and no condition had been formulated to overcome this. The new plans, which had not been subject to a change application or the appeal, represented a substantial departure from the proceedings to that point. The primary judge's findings on contravention of the City Plan remained, and without a condition, he was satisfied that the change application could not be approved. The primary judge's decision to refuse the reopening and dismiss the appeal was not in error.

The court refused the grant of leave to appeal and ordered that Upan pay the respondent's costs of and incidental to the application. The orders reflected the court's view that the proposed appeal would fail.