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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Cadmium Holding FW Pty Ltd v Gold Coast City Council  QPEC 51
CADMIUM HOLDING FW PTY LTD (ACN 617 270 812)
GOLD COAST CITY COUNCIL
1483 of 2018
Planning and Environment Court
Appeal against refusal
Planning and Environment Court, Brisbane
22 October 2019
2, 3, 4, 5, and 6 September 2019, with further material delivered on 13 September 2019
Williamson QC DCJ
Orders made in accordance with paragraph  of the reasons for judgment.
PLANNING AND ENVIRONMENT – APPEAL – where appeal against refusal of a development application seeking approval for 111 townhouses – whether proposed development is consistent with the preferred and intended settlement pattern – whether proposed development is an appropriate land use – whether the proposed development is an appropriate density — whether the development application should be approved in the exercise of the planning discretion.
Planning Act 2016 (Qld), ss. 45 and 60.
Planning & Environment Court Act 2016 (Qld), ss. 43 and 45.
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Smout v Brisbane City Council  QPEC 10
Zappala Family Co Pty Ltd v Brisbane City Council & Anor  QPELR 686
Mr C Hughes QC with Mr M Batty for the appellant
Ms J Brien with Ms D Whitehouse for the respondent
Thomson Geer for the appellant
Norton Rose Fulbright for the respondent
|The land, surrounding locality and planning context||3|
|The proposed development||8|
|The statutory assessment and decision making framework||9|
|Is the proposed use contemplated on the land?||10|
(a) Cadmium’s case
(b) Council’s case
Integration with urban fabric
Supporting a Walkable community
Within walking distance of centres and high frequency public transport
Diversity of housing choice
(c) Conclusion: land use
|Is the density of the proposed development appropriate?||29|
|Exercise of the planning discretion||30|
- The appellant (Cadmium) appeals against Council’s decision to refuse its impact assessable development application, which seeks approval to reconfigure, and develop, land situated on Foxwell Road, Coomera. The development proposed comprises 111 townhouses in a community title scheme. Council maintains the development application should be refused. It is for Cadmium to establish the appeal should be upheld. The appeal is a hearing anew.
- Council relies upon a single reason to refuse Cadmium’s development application. It contends the proposed development is inconsistent with the intended settlement pattern, as expressed in its planning scheme, City Plan. Council concedes there is no other reason to refuse the application if this issue is resolved favourably to Cadmium.
“…the experts agree that having regard to the subject land’s context and characteristics, the main planning issues in dispute may be summarised as:
a) Whether the land use is contemplated on the subject land; and
b) Whether the density is appropriate.”
- Cadmium submits the main planning issues, having regard to City Plan and the evidence, should be resolved in its favour. In addition, it relies upon three matters to inform the exercise of the planning discretion, which it contends are supportive of an approval in all of the circumstances. In this regard, Cadmium contends: (1) there is a town planning, economic and community need for the proposed development; (2) an approval would result in improved ecological and hydrological benefits for the land; and (3) the proposed development would advance the purpose of the Planning Act 2016 (PA). Council joins issue with items (1) and (2). As to item (3), it submits the purpose of the PA has little, if any, influence on the manner in which the planning discretion is exercised in this appeal.
- Before examining the ‘main planning issues’, it is necessary to set out some background with respect to: (1) the land and surrounding locality; (2) relevant planning context; (3) the proposed development; and (4) the statutory assessment and decision making framework.
- In dealing with the background matters, and, in turn, the main planning issues, references are made in these reasons for judgment to the transcript of the hearing. The transcript for days 4 and 5 of the hearing have, unfortunately, both been described by Auscript as ‘Day 5’. References in these reasons to ‘T5’ of the transcript should be treated as a reference to day 4 of the hearing, save where stated otherwise.
The land, surrounding locality and planning context
- The land the subject of the appeal comprises two contiguous and irregularly shaped lots. The lots have a combined area of 6.926 hectares, and a total frontage of 480 metres to Foxwell Road (the land). The land falls in an even slope from Foxwell Road in the north, to the edge of an estuary connected to the Coomera River channel in the south. Aerial photography reveals the land is vegetated in part, and improved with dwellings and associated outbuildings. The southern part of the land, which adjoins the estuary, has recognised ecological value.
- The surrounding land use context can be considered having regard to: (1) adjoining land; (2) the road network; and (3) the surrounding locality.
- With respect to adjoining land, the land to the west is rural residential in character, similar to the subject. Land to the east is presently unimproved, and appears to serve an environmental protection purpose. The land does not adjoin any existing, or approved multiple dwellings, small lots or dual occupancies as defined in City Plan.
- As I have said, the land has a 480 metre frontage to Foxwell Road. This is a major east-west connector road serving the eastern part of the suburb of Coomera. The road has a number of changes in horizontal alignment along its length. The land is positioned at one of the changes in alignment.
- The change in road alignment takes the form of a ‘dog-leg’ that wraps around the north-western corner of the land, coincident with the location of a roundabout. As a consequence, the land has two frontages to Foxwell Road, akin to a corner allotment. As the site inspection confirmed, the nature of the change in road alignment is such that there are limited locations where the entire frontage of the land can be appreciated in one viewshed.
- On the northern side of Foxwell Road, land is developed with traditional residential lots, improved with dwelling houses. This location was described in the evidence as Coomera Waters estate. It is an established residential community.
- With respect to the broader locality, the land is situated in Coomera, which is extensive in area and straddles the Pacific Highway. As I have said, the land is located in the eastern sector of the suburb. By reference to aerial photography, Mr Buckley described Coomera as an area that has matured from a ‘fringe area’ to an ‘urban area’, and is an integrated part of the urban fabric of the Gold Coast. Similarly, Ms Morrissy conceded Coomera is a well-planned emerging urban community focused around a series of centres, community facilities and public transport. I accept the evidence of Mr Buckley and Ms Morrissy in this regard. The evidence establishes the locality has progressed, in planning terms, well beyond a ‘greenfield’ area.
- The aerial photography before the Court demonstrates the land is located in close proximity to a significant amount of public and private infrastructure that supports residential development. More particularly, Exhibit 11 (at page 35), Exhibit 31 and Exhibit 3 (at pages 46 to 48) demonstrate the land enjoys convenient access to an extensive range of existing, and planned, services, infrastructure and facilities, namely: (1) the Coomera Town centre and associated high frequency public transport; (2) small convenience facilities; (3) a full-line supermarket and supporting specialties to the west; (4) a significant number of existing and approved child care facilities; (5) schools; (6) community facilities; (7) public transport, in the form of a low frequency bus route, which operates along Foxwell Road and connects to the high frequency public transport adjacent to the Coomera Town centre; and (8) the future Coomera connector road, intended in due course to provide connectivity across a number of local government areas.
- In his oral evidence, Mr Buckley emphasised the proximity of the land, and ease of access, to locations providing local employment opportunities, including Theme parks, the newly created Town centre, the Coomera TAFE and the Coomera marine precinct. I accept the land is proximate to, and enjoys reasonable access to each of these local employment opportunities.
- I accept Ms Morrissy’s evidence, which accords with Exhibit 31, that only the bus stop referred to in item (7) above is within reasonable walking distance of the land. The bus stop is located on the frontage of the land for the bus service that connects with the Town centre and high frequency public transport. Save for this bus stop, any future resident of the proposed development will access the services and facilities identified above by private car.
- In response to Ms Morrissy’s evidence, Cadmium drew attention to a state high school that is under construction to the west of the land on Foxwell Road. It is located opposite the intersection with Jotown Drive. This intersection is located a short distance to the west of the Coomera East Shopping Centre, which is itself some 2.4 kilometres west of the land. Cadmium relied upon the evidence of its traffic engineer, Mr Trevilyan, to contend the school is within walking distance of the land.
- Whilst I accept it is possible to walk from the land to the new state high school, the extent to which it is located within a reasonable walking distance is another question altogether. City Plan includes a definition of ‘Walking distance’. Central to the definition is the proposition that the walk under consideration is lawful and reasonable. Here, the 2.4 kilometre distance is not a ‘reasonable’ distance to expect residents to walk. This, in my view, is confirmed having regard to the definition of ‘Walkable catchment’ in City Plan. A ‘Note’ to this definition anticipates a walkable catchment involves a distance of 800 metres along a walkable route. Foxwell Road will, over time, become a walkable route as development is completed, and pedestrian paths are provided; however, the 2.4 kilometre distance from the land to the new school is more than 3 times the nominated distance of 800 metres.
- If the definition of Walkable catchment in City Plan is disregarded, my view is in any event confirmed by recognised contemporary planning practice. Evidence is routinely given in this Court that a reasonable walking distance, in contemporary town planning terms, is in the order of 800 to 1000 metres, or, 10 to 15 minutes duration. Adopting this yardstick, a 2.4 kilometre walk from the land to the new state high school is not representative of a reasonable, or easy walking distance in contemporary town planning terms.
- Turning to relevant planning context, the town planning witnesses agreed the land is suitable for urban development purposes. I accept this point of agreement.
- The above point of agreement is supported by, and consistent with, Council’s decision to grant an approval to reconfigure the land for urban purposes. The approval is extant and was granted by Council in March 2017, authorising the creation of 26 lots, an internal private road and a conservation area in the order of 3.727 hectares.
- Whilst it was agreed the land is suitable for an urban purpose, the town planning witnesses disagreed as to the form, scale and intensity that this urban purpose may take.
- Mr Buckley supports the proposed development as an appropriate urban form and density, which he considered represents a ‘good result’ in planning terms.
- Ms Morrissy expressed a different view. In her opinion, the land is only suitable for larger lot urban housing, with a variety of lot sizes, ranging from 400m2 to 600m2. It was submitted on behalf of Council that ‘larger lot urban housing’ exhibits a relatively uniform development yield, which was said to equate to about 15 dwelling units per net hectare of land. The application of this metric to the land would, as Council contended, result, ‘at the most’, in 54 dwellings. This yield is more than twice that achieved under the development approval granted by Council in March 2017, and assumes the developable area of the land is about 3.2 hectares. A proportion of the land is constrained by known ecological values. It is uncontroversial that a substantial dedication of land (in the order of 3.35 hectares) is required to appropriately respond to known, and mapped, ecological values of the land.
- The dispute between the town planning witnesses as to the development potential of the land is resolved by an examination of the proposed development against Council’s planning scheme, City Plan. Version 3 was in force at the time Cadmium’s development application was properly made, and is the primary assessment benchmark against which the application must be assessed. Two particular aspects of City Plan require examination in this appeal, namely the Strategic framework and the Emerging community zone code.
- The Strategic framework identifies an intended ‘settlement pattern’ for the city. It is made up of two broad areas, namely an urban and non-urban area. Within these two broad areas, locations have been given particular designations to guide the intended settlement pattern of the city. The designations can be identified on Strategic framework map 2, which is a broad scale map. Its broad scale nature is confirmed by a note at the foot of the map stating it ‘has been created to be viewed at a whole of city level and should not be viewed with cadastre’.
- It is common ground the land forms part of the urban area of the city, and is designated New communities on Strategic framework map 2. Despite the scale of the mapping, the land can be identified on map 2 as a small speck located towards the eastern edge of the urban area of Coomera. It is removed from the Town centre and Railway station, and is surrounded by land included in the ‘Suburban neighbourhoods’ designation. This designation is applicable to areas where there is existing urban development, which is predominantly low density residential in nature.
- A ‘Note’ to s.3.3.4 of the Strategic framework states New communities are shown conceptually on map 2. They are said to be located in ‘greenfield areas in the city’s urban area’. In planning terms, ‘greenfield’ areas may also be described as future urban or emerging community areas. In locations such as these, land uses are encouraged to transition from vacant/non-urban to a range of urban purposes, subject to the timing and delivery of necessary infrastructure. That the land would contribute to such a transition is reflected in its underlying zoning.
- The land is included in the Emerging community zone. City Plan envisages that land included in this zone is, inter alia, suitable for transition from non-urban to urban purposes. The zone code anticipates such a transition will occur after detailed land use and infrastructure planning has been completed. Ms Morrissy readily conceded the land has undergone detailed site based investigations relevant to land use and infrastructure planning.
- The Emerging community zone code describes the character of the zone as consisting of: (1) large expanses of low intensity or undeveloped land that is not properly serviced by infrastructure; and (2) areas that have recently been developed for urban purposes and are awaiting appropriate rezoning. Having regard to the land and surrounding locality, the first character statement is not applicable here. The second character statement is also of little assistance. To the extent a ‘rezoning’ is required, the surrounding land use context, read with the applicable zoning map, suggests much of this locality, save for a few exceptions, has been developed and rezoned to reflect its use for an urban purpose. This is reflected in Strategic framework map 2. It is also confirmed by the evidence of the town planning witnesses. They described the New community, of which the land forms part, as having already emerged, and being well established. In this context, the land can be seen, in planning terms, as a vestige of the New communities designation in this locality.
The proposed development
- Cadmium’s development application seeks approval to develop the land with a gated townhouse development in a community titles scheme. The development has seven stages, and includes private internal roads and approximately 5,200 m2 of communal open space. The proposed townhouses have four bedrooms, and are contained in a mix of 10 building types that range from two to three storeys in height. The built form of three storeys reads as only two storeys when viewed from Foxwell Road. This is because the built form has been designed to maintain a constant roof height, with the lowest level of the built form becoming exposed at the rear as the land slopes from Foxwell Road towards the Coomera River. The size and scale of the built form proposed ranges from a Duplex arrangement up to an including a six pack.
- The proposed development is limited to part of the land only. It will have a development footprint of 3.569 hectares. The remainder of the land is to be rehabilitated and dedicated for ecological purposes. The area to be dedicated is vegetated and adjoins the estuary to the south. It is located up to 60 metres north of the highest astronomical tide. The area to be dedicated is in the order of 3.35 hectares, excluding bio basins. Given the extent of vegetation in the area to be dedicated, it is reasonable to expect the development will be largely screened from view for locations south of the land.
- The architectural plans for the proposed development include a series of elevations that helpfully illustrate the development in its context. With the benefit of the architectural elevations, I am comfortably satisfied the development has been designed to respect the topography of the land. I am also satisfied the architecture, and proposed finishes, will appear modern and attractive. The built form has been articulated to provide visual interest and variation. The site coverage of the development equates to 20.55% of the total site area.
- The plans for the development demonstrate it will be generously landscaped.
- The proposed landscaping will assist in breaking up the built form to avoid the impression of a cluster, or sea of townhouses. This is particularly so along the Foxwell Road frontage of the land. The built form in this part of the land will comprise building types 2, 3 and 13. Each of these building types present as a two storey building to Foxwell Road, and are designed as a Duplex. Eighteen buildings (with 36 units) are proposed along the Foxwell Road frontage of the land.
- The size, bulk and number of buildings proposed along Foxwell Road can be compared to the existing houses located on the northern side of that same road. Aerial photography, overlayed with the proposed plan of development, demonstrates that the built form proposed appears comparable, in two respects, with existing houses located to the north, namely: (1) the proposed built form and existing houses appear to have a similar footprint size; and (2) the spacing between each of the proposed built forms, and the spacing between each of the existing houses appears to be similar. It does however appear from the visual aids before the Court that the proposed development will have a greater extent of landscaping compared to existing development to the north of Foxwell Road.
- The proposed development includes built form which is greater in size than a dwelling house. These larger building types have been sited towards the centre of the developable area of the land. They will be screened from view from Foxwell Road as a consequence of the topography, intervening built form (units 1 to 36) and proposed landscaping.
The statutory assessment and decision making framework
- Cadmium’s development application is impact assessable.
- It is common ground the applicable statutory assessment and decision making framework for the application is prescribed by the PA. Relevantly, the framework prescribed by the PA requires the application to be, inter alia, assessed in accordance with s.45(5), and decided in accordance with s.60(3). The former requires the assessment to be carried out against the relevant assessment benchmarks, which, in this case, principally relates to the provisions of City Plan raised by Council in support of refusal.
- I have approached the assessment of the development application, and the exercise of the town planning discretion, consistent with my decisions in Smout v Brisbane City Council  QPEC 10 and Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16. I have also had the benefit of, and agree with, her Honour Judge Kefford’s very recent decision in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46, where her Honour traversed the statutory and decision making framework in the PA. Central to the reasoning in each of the above decisions is the following proposition: the town planning discretion to be exercised (for an impact assessable application under the PA) is more flexible than its statutory predecessor. The exercise of the discretion under the PA for an impact assessable application is not mandated by a ‘conflict and grounds’ test.
- I now turn to deal with the main planning issues identified by the town planning witnesses.
Is the proposed use contemplated on the land?
- The first of the ‘main planning issues’ identified by the town planning witnesses is resolved by an examination of City Plan, and an assessment of the application against the provisions of that document providing locational guidance for the proposed development.
- This task starts from the premise that the ‘development’ proposed involves the making of a material change of use. The use proposed is Multiple dwelling, which is a defined use in City Plan.
- Whilst the characterisation of the proposed use is not in issue, each party sought to emphasise different aspects of City Plan to advance its case. I will therefore deal with this issue by examining each party’s case separately, and by reference to the particular provisions of City Plan relied upon in support of each case.
(a) Cadmium’s case
- As I have already said, the land is included in the Emerging community zone under City Plan. This zone has a direct link with the ‘New communities’ area in the Strategic framework. The link is reflected in performance outcome PO7 of the zone code, which requires New communities to be developed in accordance with the Strategic framework. Section 3.3.4 of the Strategic framework contains specific provisions with respect to ‘New communities’.
- Cadmium submits the Strategic framework, in particular s.3.3.4, anticipates and guides development of the kind proposed in New communities. It submits this is clear having regard to s.184.108.40.206(5), which contains specific locational requirements for, inter alia, Multiple dwellings in New communities. Ms Morrissy described this provision of City Plan as providing a ‘key test’. The provision states:
“Small lot housing, dual occupancy and multiple dwellings occur in new communities in low concentrations where they achieve a dispersed or gentle-scattering effect. These dwellings are limited to the following lots where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings:
(a)corner lots; or
(b)lots with both street and rear lane access; or
(c)lots within a 400 metre walk of a mixed use centre or specialist centre.”
- The above provision of City Plan contemplates Multiple dwellings in New communities, subject to three requirements, namely where: (1) they, in conjunction with small lot housing and dual occupancies, occur in low concentrations and achieve a dispersed or gentle-scattering effect; (2) they are limited to one of three alternative lot locations; and (3) the lot on which the use is proposed does not adjoin existing or approved small lot housing, dual occupancies or multiple dwellings.
- Cadmium contends the proposed development satisfies items (1) and (3) above. It further contends the land falls within one of the three alternative lot locations in item (2), namely the land is a corner lot.
- Council does not join issue with Cadmium’s case about items (2) and (3) above. This is consistent with the evidence of Mr Buckley and Ms Morrissy. They agreed the land is a corner lot, and development (existing and approved) on adjoining land does not include small lot housing, dual occupancies or multiple dwellings. I accept these points of agreement.
- Council joins issue with Cadmium’s case about item (1) above. This raises the following disputed issue for determination: whether the proposed development will, in conjunction with small lot housing and dual occupancies, occur in low concentrations and achieve a dispersed or gentle-scattering effect? This question is to be determined in the context the proposed development will not adjoin, and will be well removed from, any existing small lot housing, multiple dwellings or dual occupancies.
- Mr Buckley and Ms Morrissy approached the resolution of this question differently.
- (a)he characterised s.220.127.116.11(5) of City Plan as one of a number of ‘drivers’ encouraging the achievement of higher densities in ‘New communities’, that is to say, it is a driver to achieve residential densities that exceed a dwelling house on a single lot, where appropriate;
- (b)he recognised the encouragement to which he referred in s.18.104.22.168(5) of City Plan as qualified because it is directed towards specific sites - the land is one such site because it is a corner lot for the purposes of s.22.214.171.124(5);
- (c)he recognised the planning purpose underlying s.126.96.36.199(5) was two-fold: (1) to encourage future development that avoids ‘a sea of houses’ (and consequential urban sprawl) by breaking up such development with a range of uses, namely those contemplated by the provision itself; and (2) to ensure a ‘sea of houses’ is not replaced with ‘an ocean of units’;
- (d)he approached the issues of concentration, dispersal and scattering as a factor of ‘built form separation’, which can be achieved by distance, and the setting of the land itself; and
- (e)he was of the opinion that an appropriate ‘built form separation’ would be achieved here by reason of: (1) the separation distance between the proposed development and surrounding development provided by the Foxwell Road reserve; (2) the separation distance between the proposed development and the nearest multiple dwellings; and (3) the setting of the proposed development, which involves a high proportion of open space to building, creating the desired dispersal and scattering effect.
- Ms Morrissy is of the opinion the proposed development does not comply with s.188.8.131.52(5). In her view, the proposed development, if approved, will result in a high concentration or cluster of multiple dwellings on the land, thereby cutting across the underlying planning purpose of s.184.108.40.206(5). Central to Ms Morrissy’s reasoning are two assumptions recorded at paragraph 94(b) of the first town planning joint report. The two assumptions relate to the interpretation of s.220.127.116.11(5) of City Plan. Ms Morrissy said:
“(b) I do not interpret this specific outcome to mean that all of the land included in the New communities designation can be used for multiple dwellings and that the broader locality (which takes in different zoned land and strategic designations) can be relied upon to achieve the desired effect of contributing multiple dwellings in low concentrations to accomplish the dispersed or gentle-scattering effect;”.
- In practical terms, Ms Morrissy started from the premise that s.18.104.22.168(5) of City Plan did not envisage that: (1) all of the land included in the New communities can be used for multiple dwellings; and (2) land in surrounding designations and/or zones can be relied upon to achieve the desired concentration and dispersal effect.
- The first of the two assumptions made by Ms Morrissy is an appropriate one. It is, in truth, no more than a statement of the underlying planning purpose of the provision, namely to limit the location of, inter alia, multiple dwellings in the New communities designation. The second assumption is more problematic in the circumstances of this case.
- The part of s.22.214.171.124(5) that is of focus here speaks of a particular concentration, dispersal and scattering effect. An assessment with such matters in mind is subjective. Ultimately, they are matters about which an opinion will be formed based on a visual impression. Reasonable minds may differ about that visual impression in any given case.
- Importantly, whether the visual assessment is limited to the land, or takes in a broader locality is not prescribed by s.126.96.36.199(5) of City Plan. This, in my view, means the extent of the visual assessment required to assess compliance with the provision will turn on the circumstances of each case. Given the size of the land, and given the planning context discussed in paragraphs ,  and , the circumstances here call for a visual examination of the development in two respects: (1) it should be assessed having regard to the land, and the proposed design absent consideration of the surrounding context; and (2) having regard to the land and the proposed design in the context of the surrounding locality.
- The land is a large site. It is common ground the developable footprint exceeds 3.5 hectares. With a developable area of this size, coupled with the scale and intensity of development proposed, it is reasonable to consider whether the proposed development will achieve the desired level of concentration and dispersal when considered in isolation from its surrounding context. When considered in this way, I am satisfied the proposed development, as designed, will achieve the concentration and dispersal effect required by s.188.8.131.52(5) of City Plan. This is demonstrated by the architectural plans and elevations, which enable the design and siting of the proposal to be closely examined.
- As a matter of impression, the architectural elevations illustrate the view of the development from Foxwell Road. That view will be consistent with a low concentration of multiple dwellings. This is, in large measure, because the full extent of the proposed built form, and consequential density, is unable to be appreciated from Foxwell Road. The viewshed is limited because: (1) the horizontal alignment of Foxwell Road ‘dog-legs’ along the frontage of the site to significantly obscure views of the development in a single plain; and (2) the layout of the development is such that a large part of the proposed built form will be obscured from view behind landscaping and/or the buildings proposed along the Foxwell Road frontage.
- It is also clear from the plans and elevations that the project architect has given significant attention to the layout and siting of built form to provide space and separation around buildings. The space and separation is achieved by a combination of two design techniques: (1) by breaking up the built form into a number of buildings of varying sizes; and (2) by separating the built form in a way which provides space for landscaping and green space, all of which contributes to the space around, and visual softening of, the built form.
- I was not persuaded that Ms Morrissy’s assessment of the development gave sufficient recognition and weight to the design and siting features to which I have referred in paragraphs  to . Mr Buckley, on the other hand, referred to these design and siting matters, and gave them significant weight in his assessment. As a consequence, I prefer Mr Buckley’s evidence with respect to the issue of compliance with s.184.108.40.206(5) of City Plan.
- I would add, even if Ms Morrissy’s approach to s.220.127.116.11(5) of City Plan was adopted, the design and siting features of the proposed development discussed in paragraphs  to  satisfy me, as a matter of fact and degree, compliance is demonstrated with this provision of City Plan. I do not however accept, in the circumstances of this case, the assessment should be confined in this way.
- As Mr Buckley said, he approached the assessment of the development against s.18.104.22.168(5) of City Plan on the footing it seeks to avoid, inter alia, an ocean of units. I accept this approach is correct, and accept that an examination of the development, in its broader context, confirms this intent will be achieved. The development achieves this intent, and the desired concentration and dispersal effect sought by s.22.214.171.124(5) of City Plan because (1): the land is isolated from other New communities designated land in the locality, which facilitates the dispersal and gentle–scattering of multiple dwellings in that area; and (2) the land is well separated from other existing and approved development in the locality (irrespective of its zoning or Strategic framework area designation) where small lots, dual occupancies and multiple dwellings exist, or are approved.
- The separation to which I have referred in item (2) of paragraph  will be achieved, in part, because the Foxwell Road reserve provides a separation distance, or space, between the land and nearby residential development. It is also achieved because no adjoining land is developed with, or has an approval for, small lots, dual occupancies or multiple dwellings.
- Given the above, I am satisfied the proposed development complies with s.126.96.36.199(5) of City Plan.
- Cadmium places significant reliance upon compliance with s.188.8.131.52(5) of City Plan to submit the use proposed is appropriate on the land. It is a submission of considerable force.
- Council does not agree. It submits the relevant enquiry is not confined to s.184.108.40.206(5). It invites the Court to consider the appropriateness of the proposed land use by reference to a number of additional provisions of City Plan, which are said to constrain the location and density of development on the land. Cadmium joins issue with Council’s contentions in this regard.
(b) Council’s case
- Council contends City Plan contains contextual, and locational, constraints of relevance to an assessment of the acceptability of the proposed land use. The provisions relied upon fall into one of three categories, namely: (1) provisions with respect to the New communities designation in the Strategic framework; (2) the Emerging community zone code; and (3) provisions that are described as supportive and ‘higher order’. Council contends the proposal does not comply with the provisions of City Plan captured in items (1) and (2).
- There are 13 provisions of City Plan relied upon by Council to contend the location and density of development on the land is constrained to larger urban lot housing. Based on Council’s written submissions, it is contended this outcome is the product of five constraints applicable to the land and proposed development. Those constraints are said to require development to:
- (a)integrate with the urban fabric;
- (b)support walkable communities;
- (c)support land use and public transport integration by locating within walking distance of centres, high frequency public transport, and community facilities;
- (d)have timely and easy walking access to an appropriate range of goods and services, public transport and employment opportunities; and
- (e)deliver a mix of housing forms comprising a predominance of standard sized house lots interspersed with a small number of small lot housing, dual occupancies or multiple dwellings.
- I will consider each of the five constraints relied upon by Council in turn, save for subparagraphs (c) and (d), which I will deal with as a single point.
Integration with urban fabric
- Council submits the proposed development does not comply with s.220.127.116.11(2) of City Plan, which states:
“These areas will be an integratedpart of the city’s urban fabric and support well designed, walkable communities, focused around centres, public transport stops and community facilities. (emphasis added)
- The ‘context’ emphasised by Council, and its expert, Ms Morrissy, is the Strategic framework designation for the surrounding land. As I have already said, the land is included in the New communities area, but is isolated from other land in this designation. The surrounding land is included in the Suburban neighbourhoods designation. The Council contends the proposal does not integrate with this context.
- Contrary to Council’s position, I am satisfied the proposed development complies with s.18.104.22.168(2) of City Plan. This is so for four reasons.
- First, the provision, read sensibly and practically, is not directed at any one particular development. Rather, the provision is describing, in an aspirational way, the forward planning intention for particular locations, which are described as ‘These areas’. The ‘areas’ to which this description applies are ‘New communities’. Locations of this kind are said to be greenfield areas, and are earmarked to transition from vacant urban land to new urban communities. The land is not, of itself, a greenfield area. It is a vestige of a former greenfield area, namely Coomera, which has matured from a ‘fringe area’ to an ‘urban area’. That location, taken as a whole, has matured to be an integrated part of the urban fabric of the Gold Coast.
- Mr Buckley’s oral evidence, understood with the benefit of aerial photography of the locality, satisfies me the proposed development will integrate with the Coomera community, which, in turn, integrates with the urban fabric of the city. In this way, compliance is achieved with s.22.214.171.124(2) of City Plan.
- Second, I am comfortably satisfied the proposed development will integrate with the immediate surrounding urban fabric. As is clear from Exhibit 31, it will be surrounded on three sides by urban development. The evidence demonstrates the proposed development will be integrated with this surrounding urban fabric by reason that it will:
- (a)connect to existing hard infrastructure, namely roads, sewer, water, power and pedestrian/cycle pathways; and
- (b)enjoy convenient access to an extensive range of existing and planned services, infrastructure and facilities described in paragraphs  and .
- Mr Buckley was resolute in his view that the proposed development would integrate with the existing urban fabric of Coomera. In his oral evidence, he explained why this was so in the following exchange with Mr Hughes QC:
“I just need to ask you briefly to state your position with respect to, first of all, in the specific outcomes subparagraph (2) whether this proposed development would form an integrated part of the urban fabric, first of all?---Very much so. As I indicated, the area has matured enormously and it is on that major artery, which is Foxwell Road, which has a significant role and function within the community, and development that’s focused on that artery and is connected to it both in terms of its design and its connection to public transport stops is very much a development that I say would be integrated in the true meaning of the word.”
- I accept this aspect of Mr Buckley’s evidence without reservation.
- Mr Buckley’s evidence explains how, from a town planning perspective, the development will integrate with the existing urban fabric. In his opinion, it will integrate because the design of the development focuses upon, and connects to, Foxwell Road, which is a major east-west arterial road. The road connects this part of Coomera to an extensive range of services and facilities, including a Town centre and high frequency public transport.
- Third, the Council’s case is pregnant with the proposition the proposed development will fail to integrate with the surrounding planning context because it comprises multiple dwellings rather than dwelling houses. I do not accept this proposition. The reason for this is simple enough. It sits uncomfortably with City Plan, which anticipates that the land, and surrounding area, may include a mix of residential housing types, including multiple dwellings and dwelling houses. That housing forms may comprise a mix of forms is clear from s.126.96.36.199(5) of City Plan. This point was, in my view, correctly emphasised by Mr Buckley in his oral evidence.
- Ms Brien put squarely to Mr Buckley that the proposed development would not integrate with the surrounding planning context. The question put to Mr Buckley, and his response was as follows:
“Mr Buckley, having regard to the location of this site, in its planning context – as is set out in the zoning maps – ie, that it is adjacent to low density residential and green space, to approve high density development on this site – that is not an integrated outcome, is it?---I think it is. The – the integration that this scheme talks about – sorry – to go back a step, the fact that it’s different to other housing doesn’t mean it’s not integrated. Integration comes from the provisions of the scheme which anticipate a mix of these residential development options in – in the new community areas. And the integration occurs by, obviously, design and by, yes, considerations of context. But I don’t – I don’t subscribe to the view that because it’s different to houses that there’s some problem.”
- Mr Buckley made a number of points in response to Ms Brien’s question, namely: (1) that the proposed development will be different to other housing forms in the locality does not mean it will fail to integrate with the urban fabric; (2) the extent to which integration is anticipated, and achieved, by a mix of land uses is informed by the planning scheme; and (3) the planning scheme here contemplates that integration may be achieved by a mix of uses, including multiple dwellings.
- The first point made by Mr Buckley is a sensible town planning proposition, and I accept it.
- As to the second and third points, I accept Mr Buckley’s evidence. It is, as Mr Buckley said, necessary to look at City Plan to ascertain what it anticipates in terms of the mix of residential uses in this locality, and how those uses will integrate with the urban fabric. The key provision in this regard is s.188.8.131.52(5) of City Plan. This provision anticipates a mix of residential uses, including multiple dwellings in the New communities area, subject to locational constraints. For reasons given above, the proposed development complies with this provision of City Plan, which, in turn, supports the opinions expressed by Mr Buckley.
- Fourth, the Strategic framework does not support the proposition that multiple dwellings on the land will fail to integrate with the surrounding Suburban neighbourhoods context. The verbiage of City Plan relevant to the Suburban neighbourhoods expressly anticipates the prospect of a mix of residential land uses. Section 184.108.40.206(1) of the Strategic framework states:
“Suburban neighbourhoods are places for low intensity, low-rise, predominantly detached housing that retains and enhances local character and amenity by maintaining existing scale, building height and intensity despite its proximity to public transport or other services. They are less clustered and characterised by a feeling of openness, with buildings positioned in a generous landscaped setting.” (emphasis added)
- As this Court has said on many occasions, the notion of ‘predominance’ does not mean exclusivity. It conveys an element of flexibility, which, in this case, admits of the prospect that uses other than detached housing may occur on land designated Suburban neighbourhoods, provided there is a predominance of detached housing. The uses other than dwelling houses contemplated in this designation are identified in s.220.127.116.11(5) of City Plan. This provision bears a striking similarity to s.18.104.22.168(5), and states:
“Low intensity, low-rise small lot housing, dual occupancy and multiple dwellings occur in suburban neighbourhoods in low concentrations where they achieve a dispersed or gentle-scattering effect. These dwellings are limited to the following lots where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings:
(a) corner lots; or
(b) lots with both street and rear lane access; or
(c) lots within a 400 metre walk of a mixed use centre or specialist centre.”
- The above provision, like s.22.214.171.124(5), anticipates multiple dwellings in the Suburban neighbourhoods designation, subject to specific locational constraints. The provision does not suggest multiple dwellings will, absent further consideration, fail to integrate with low intensity residential uses in the same designation.
- For the reasons given above with respect to s.126.96.36.199(5) of City Plan, I am satisfied the proposed development is consistent with the locational constraints expressed in s.188.8.131.52(5). This, in my assessment, is one of a number of indicators suggesting the proposed development will integrate with its surrounding context.
- Accordingly, I am satisfied the first of the five constraints relied upon by Council does not warrant refusal of the development application.
Supporting a Walkable community
- Council contends s.184.108.40.206(2) of City Plan constrains, inter alia, multiple dwellings to locations that create walkable communities. It submits this constraint is not met because the development is not located within walking distance of a centre and/or high frequency public transport.
- The relevant starting point is the phrase ‘walking distance’. This is a defined administrative term in City Plan. It is ‘the distance between two points that a person may lawfully and reasonably take on foot’. For the reasons given in paragraphs ,  and , I am satisfied the proposed development is not within ‘walking distance’ of a centre and/or high frequency public transport as that term is defined in City Plan.
- The next matter to be considered is: What is the impact, if any, of paragraph  when the proposed development is assessed against s.220.127.116.11(2) of City Plan? This provision states:
“These areas will be an integrated part of the city’s urban fabric and support well designed, walkable communities, focused around centres, public transport stops and community facilities.” (emphasis added)
- I am satisfied, contrary to Council’s submissions about ‘walkable communities’, that s.18.104.22.168(2) of City Plan does not warrant refusal of the development application. This is so for the following reasons.
- First, Council’s submissions assume the provision can sensibly be applied as if it were a constraint, and on a site-by-site basis. I have difficulty with such an approach given the provision commences with the phrase ‘These areas’. This is a clear reference to New communities, which are locations shown ‘conceptually’ on Strategic framework map 2. By referring to ‘areas’, rather than sites within the designation, s.22.214.171.124(2) is describing the layout of a New community, which comprises many parts.
- Second, s.126.96.36.199(2) of City Plan does not, in terms, require multiple dwellings to be located within walking distance of a centre and/or high frequency public transport. The provision does however speak of ‘These areas’ supporting walkable communities, and being focused around, inter alia, ‘public transport stops’. These points of difference are important. The language of the provision does not match the locational constraint advanced by the Council as warranting refusal of the development application.
- Third, s.188.8.131.52(2) of City Plan anticipates that New communities will be designed to, inter alia, support a walkable community. This phrase should not be approached as if it were a constraint on multiple dwellings requiring them to be located within walking distance of a centre or high frequency public transport. As the evidence demonstrates, new development can ‘support walkability’ in other ways.
- As Mr Buckley’s evidence demonstrated, new development can support a walkable community by: (1) increasing the residential population, which, in turn, assists in achieving a critical population mass to support centres and public transport; and (2) providing appropriate pedestrian connectivity to services and facilities, including public transport.
- With respect to the item (1) above, the point made by Mr Buckley was a simple and logical one: by increasing the residential population, existing services and facilities are supported by the demand created by that growth, which, in turn, contributes to the ongoing existence and vitality of those services and facilities. This is said to benefit the community as a whole, including those who are located within walking distance of the services and facilities.
- The proposed development will, as Mr Buckley said, increase the critical mass that supports existing services and facilities in this locality, including centres and public transport. In this way, the development will contribute to the walkability of the community, while being well located to enjoy easy, and timely, access to a broad range of services and facilities identified in paragraphs  and .
- With respect to item (2) in paragraph , new development can support a walkable community by focusing around public transport stops, and providing internal and external pedestrian facilities to encourage the use of such a facility. The proposed development will support walkability in this way.
- The architectural plans for the development demonstrate it will have an internalised system of roads and communal open space. This environment will be comfortable for walking, and if required, cycling. Three pedestrian links are provided from the internal road system to the frontage of the land on Foxwell Road. The pedestrian links connect to a new footpath, which will be provided along the frontage of the land. The pedestrian links, coupled with the new footpath, will facilitate pedestrian access to an existing bus stop located just outside the land on Foxwell Road. This, in my view, will encourage the use of public transport and thereby support a walkable community. It is to be noted that the bus service travels along Foxwell Road, and facilitates access to the Coomera Town centre, and high frequency public transport.
- The architectural plans for the proposed development, supported by the evidence of Mr Trevilyan, who is an experienced traffic engineer, demonstrate the development makes appropriate provision for internal and external pedestrian connectivity. Mr Trevilyan described the level of pedestrian connectivity in the locality as ‘quite good’. I accept his evidence, which reinforces my view that the proposed development will, to the extent a single development is able, support a walkable community.
- Fourth, the extent to which development is required by s.184.108.40.206(2) of City Plan to support a walkable community is informed by two further provisions of City Plan, namely ss.220.127.116.11(6)(b) and (7)(b). These provisions apply to land in the New communities designation.
- Section 18.104.22.168(6)(b) identifies the Council’s planning requirements with respect to the transition of vacant urban land to New communities. Section 22.214.171.124(7)(b) identifies Council’s planning requirements with respect to the layout and design of New communities. These provisions state:
“(6) The transition of vacant land to new communities will:
(b) ensure timely and easy access to an appropriate range of goods and services, and employment opportunities, public transport and community and recreational facilities;”
“(7) The layout and design of new communities:
(b) include an interconnected system of streets and open spaces that provide pleasant and comfortable walking and cycling environments and support public transport;”
- Neither of the above provisions of City Plan require development to be located within walking distance of a centre, or high frequency public transport. In contrast, subsection (6)(b) speaks of timely and easy access to, inter alia, a range of goods and services and public transport. Subsection (7)(b) speaks of development providing a pleasant and comfortable walking and cycling environment. It also speaks of development supporting public transport. These provisions do not, in terms, provide direct support for Council’s contention that multiple dwellings are constrained by s.126.96.36.199(2) of City Plan.
- For the reasons given in paragraphs  to  above, I am satisfied the proposed development complies with ss.188.8.131.52(6)(b) and (7)(b) of City Plan.
- Sections 184.108.40.206(6)(b) and (7)(b) are, in my view, consistent with ss.220.127.116.11(2)(e)(ii)(B), (iv) and (v) of the Emerging community zone code. The zoning provisions are overall outcomes for the zone code, and state:
“(e) New communities –
(ii) involve a staged transition of vacant urban land to new communities to ensure:
(B) new communities have timely and easy access to an appropriate range of goods and services, and employment opportunities, public transport and community and recreational facilities;
(iv) have an interconnected system of streets and open spaces that offer a pleasant and comfortable walking and cycling environment;
(v) are designed to encourage an effective and efficient public transport system;…”
- The above provisions of City Plan do not, in terms, support the Council’s contention that multiple dwellings are constrained to locations within walking distance of a centre or high frequency public transport. The provisions, as I have said, speak in similar terms to ss.18.104.22.168(6)(b) and (7)(b). Given the reasons set out in paragraphs  to , I am satisfied the proposed development complies with ss.22.214.171.124(2)(e)(ii)(B), (e)(iv) and (e)(v) of City Plan.
- I am satisfied that s.126.96.36.199(2) of City Plan, to the extent it requires new development to support a walkable community, does not give rise to a reason to refuse the development application. Rather, the development will, to the extent it is able, support a walkable community.
Within walking distance of centres and high frequency public transport
- Three of the five locational and contextual constraints relied upon by Council to refuse the development application are founded on the submission that City Plan constrains higher intensity housing forms to locations within walking distance of a high frequency public transport stop, a major employment area, neighbourhood centre or a district and regional level community and recreation facility. Acceptance of this proposition is fundamental to the opinions expressed by Ms Morrissy.
- The position adopted by Council, prima facie, finds support in s.188.8.131.52(4) of City Plan, which states:
“New communities provide a diversity of housing choices, through a mix of lot sizes and higher intensity housing forms, if they are within walking distanceof a high frequency public transport stop, a major employment area, neighbourhood centre or a district and regional level community and recreation facility.
Larger lot urban housing occurs on land where services and infrastructure are not as advanced, to appropriately respond to environmental and landscape features, on steeper slopes to minimise earthworks and to provide a transition to the city’s non-urban areas.” (emphasis added)
- Council contends the proposed development does not comply with the first paragraph of s.184.108.40.206(4) because: (1) the development is a form of ‘higher intensity housing’; and (2) the development is not within walking distance of the services and facilities identified in the provision.
- It is further submitted on behalf of Council that s.220.127.116.11(4), which is to be construed as a constraint on the location of higher intensity housing, is supported by a number of City Plan provisions. In particular, Council’s submissions emphasise ss.3.2.1, 3.2.2, 3.3.1(6), (7) and (12) of the Strategic framework.
- Section 3.2 of City Plan contains the statement of Strategic intent. Sections 3.2.1 and 3.2.2 form part of this statement and describe the planning vision for the Gold Coast in the coming decades. The planning vision is expressed in broad terms. For example, s.3.2.1 speaks of the Gold Coast developing into a world-class city. Section 3.2.2 describes the intended settlement pattern and shape of the city.
- Council relies upon the following parts of s.3.2.1, namely:
“…The City Plan supports greater development intensity and smaller lot sizes in the city’s well-serviced and highly urbanised areas while requiring lower development intensities and larger lot sizes in areas where services and infrastructure are not as advanced. This will also provide a transition to the city’s non-urban areas.
By focusing on centres, the City Plan will support these places to mature into more vibrant and appealing urban places. Public areas will be safer and more attractive, and will be better designed for working, walking and living. Greater flexibility will support centres as they grow into mixed use employment areas that facilitate economic growth and attract skilled workers and investment.
Efficient access and connectivity is essential to any world-class city…
As a world-class city, the Gold Coast will have an efficient transport system that reduces congestion. Our vision involves re-prioritising safety, mobility and public transport to ensure streets, centres and neighbourhoods are designed for people first, not cars. This means getting the most out of our road infrastructure and prioritising active transport like walking and cycling. Our focus will range from local travel around neighbourhoods to city-wide options that connect our centres with efficient public transport.
Affordable living opportunities – where affordability comprises the initial and ongoing costs of housing including transport and maintenance – are a strong focus of this City Plan and will be planned for by:
(b) ensuring housing is appropriate to the context of the place, whether urban, suburban or rural;…”
- Council relies upon the following part of s.3.2.2:
“…Growth and development will be concentrated in an integrated network of well serviced places – places with good access to public transport, services and infrastructure assets, or places where improvements to public transport provide a catalyst for mixed use development and higher density living…”
- The written submissions prepared on behalf of Council place considerable reliance upon ss.3.2.1 and 3.2.2 of City Plan. At paragraph 92 of those submissions, it is contended ss.3.2.1 and 3.2.2 of City Plan ‘direct the location of higher development intensity and density to be in centres and areas that benefit from public transport services and infrastructure’.
- Section 3.3.1 of City Plan contains the strategic outcomes for one of the city shaping themes, namely ‘Creating liveable places’. Strategic outcomes (6), (7) and (12) state:
“(6) High intensity urban activity optimises land well-serviced by public transport, infrastructure and community facilities and provides mixed use centres and specialist centres and urban neighbourhoods with improved amenity.
(7) Medium and higher intensity housing occurs in mixed use centres and specialist centres and urban neighbourhoods.
(12) New communities are located in the urban area to achieve an orderly and efficient use of land and deliver a mix of housing forms. They are supported by social and essential infrastructure, an appropriate range of goods and services and employment opportunities, and active and public transport.”
- By reference to the above Strategic outcomes, Council sought to make the point that City Plan gives specific locational guidance for higher density housing, such as that proposed. Council contends the proposed development does not comply with that guidance because: (1) it will not be well-serviced by public transport; (2) it will not be located within a mixed use centre, specialist centre or urban neighbourhood; and (3) it will not be supported by an appropriate level of social and essential infrastructure.
- I accept the provisions of City Plan to which Council refers anticipate and encourage higher density forms of housing in particular locations. I do not however regard the provisions relied upon, either individually or collectively, as expressing discouragement for the development the subject of this appeal. In my view, Council has overstated the effect of the provisions upon which it relies. The provisions do not intend to constrain the location of, inter alia, multiple dwellings in New communities. This is clear having regard to the language of each provision relied upon, which I will deal with in turn.
- The first paragraph of s.18.104.22.168(4) of City Plan is an aspirational statement about ‘housing diversity’ across ‘greenfield’ areas known as New communities. The provision anticipates that housing diversity may be provided in a broadly expressed way, namely ‘through a mix of lot sizes and higher intensity housing forms’. The breadth of the statement is demonstrated by focussing on the phrase ‘higher intensity housing’. This is not a defined term, and potentially includes all multiple dwellings up to and including the most intense form of development anticipated in City Plan, namely RD8 (up to 769 bedrooms per net hectare). Adopting a practical and sensible approach in all of these circumstances suggests the provision it is not intended to operate as a specific constraint on the location of all multiple dwellings in New communities.
- In my view, there are three further indicators that are consistent with the proposition that s.22.214.171.124(4) of City Plan is not to be applied as if it were a constraint on the location of all multiple dwellings in New communities.
- First, s.126.96.36.199 includes a specific provision constraining the location of multiple dwellings in the New communities designation, namely subsection (5). Unlike subsection (4), it is directed at, inter alia, multiple dwellings, which is a defined use in City Plan. It prescribes specific locational requirements for this defined use. If, as council contends, subsection (4) is to be applied as a constraint on the location of all multiple dwellings in New communities that begs the rhetorical question: what is the purpose of subsection (5)?
- Second, it is well established that the principles of statutory construction apply to the interpretation of planning schemes. One such principle requires a planning scheme to be construed on the prima facie basis its provisions are intended to give effect to harmonious goals. If ss.188.8.131.52(4) and (5) are to be given effect and applied as the Council contends, they would not achieve harmonious goals and, in my view, would conflict. This is because the provisions, if applied as constraints to the location of multiple dwellings, would have overlapping and inconsistent locational requirements for the same planning scheme designation, namely New communities.
- Whilst subsection (5) provides for multiple dwellings to be within walking distance of a centre, it does not purport to limit the location of multiple dwellings to sites only within walking distance of the facilities identified in subsection (4). It anticipates higher density housing, including multiple dwellings, on corner lots and where a rear lane is identified. These locations are not constrained by centre facilities, or proximity to high frequency public transport. This difference, in my view, gives rise to a conflict between subsections (4) and (5). It arises only on Council’s case, and requires resolution. Where conflicting statutory provisions are identified, it is recognised the conflict may be resolved by determining which is the leading provision and the subordinate provision, and which must give way to the other.
- Here, s.184.108.40.206(5) of City Plan is the leading provision with respect to the constraint on the location of multiple dwellings in New communities. This is clear from the nature of the provision, which is, in terms, a locational constraint directed at a specific form of development. In this case, that constraint is directed at a defined use. This level of specificity is to be contrasted with subsection (4). This provision is directed at a different topic, namely the provision of housing diversity. The diversity of which it speaks is aspirational, and refers to a form of development that lacks specificity. The phrase higher density housing encompasses a very broad range of development densities and includes a number of defined uses.
- When considered in this light, subsection (4) is to be treated as a general provision, which gives way to subsection (5). The latter is the specific locational constraint. The proposed development complies with subsection (5). It should also be noted that the development will, in my view, contribute to the diversity of housing choice in this locality, as is anticipated by subsection (4). In this way, a harmonious balance between the provisions, and their application to the specific circumstances of this case, is achieved.
- Third, Council’s position is not supported by ss.220.127.116.11(6) and (7) of the Strategic framework and ss.18.104.22.168(e)(ii), (iv) and (v) of the Emerging community zone code, which provide relevant context. All of these provisions apply to the land and provide guidance about, inter alia, the proximity of development to services and facilities. A cursory review of these provisions reveals they speak of development having ‘timely and easy access’ to services and facilities, including public transport. They also speak of communities being located to ‘reduce social isolation’. The proposal complies with these objectives. Importantly, the objectives do not reflect a deliberate planning decision to restrict all multiple dwellings in New communities to locations within walking distance of the facilities identified in s.22.214.171.124(4) .
- If, however, a contrary view is taken, I do not regard s.126.96.36.199(4) as requiring refusal in the circumstances of this case. The non-compliance (i.e. not being located within walking distance to the facilities identified) does not sound in any appreciable planning consequence. Further, the proposed development will be well located to access a wide range of services and facilities. It will support a walkable community. It will be within walking distance of, and provide support for, existing public transport. It will also contribute to the diversity of housing choice in this location. Each of these matters are consistent with the planning objectives articulated in ss.188.8.131.52(2), (3), (5) and (7) of City Plan. This consistency will be achieved by development that will have no unacceptable town planning impacts.
- Further, I have difficulty in accepting that ss. 3.2.1, 3.2.2, 3.3.1(6), (7) and (12) of the Strategic framework are of assistance to Council’s case. This is so for the following reasons.
- Sections 3.2.1 and 3.2.2 are broad statements of planning intent that apply to the entire planning scheme area, and have a planning horizon of 2031. The provisions undoubtedly encourage higher density housing in centre locations, and where appropriately serviced with essential social and hard infrastructure. This is consistent with s.184.108.40.206(5) in so far as it seeks to constrain the location of multiple dwellings by reference to, inter alia, a prescribed walking distance to a mixed use or specialist centre.
- Importantly, however, the locations for higher density housing forms identified in ss.3.2.1 and 3.2.2 are not the only locations where multiple dwellings may occur in New communities. Section 220.127.116.11(5) anticipates higher density housing forms in New communities on corner lots, such as the land, provided the desired concentration, dispersal and scattering effect is achieved.
- Contrary to Council’s submissions about ss.3.3.1(6), (7) and (12), I am satisfied the proposed development will be appropriately serviced by public transport, and supported by an appropriate level of social and essential infrastructure.
- At present, the public transport services most immediate to the land comprise a modest bus service. This service provides an important connection between the eastern and western parts of Coomera. It provides a connection to and from the newly constructed Town centre, and high frequency public transport (Rail station). In this context, I am satisfied the proposed development will be well serviced by public transport. The background set out at paragraphs  and  also demonstrates the development will be supported by a wide range of social and essential infrastructure.
- I would also add the following with respect to each of ss.3.3.1(6), (7) and (12).
- It is doubtful s.3.3.1(6) applies to the proposed development. It speaks of ‘High intensity’ urban activity. The evidence established the subject proposal is medium density development.
- Section 3.3.1(7) speaks of medium and higher intensity housing occurring in mixed use centres, specialist centres and urban neighbourhoods. Like ss.3.2.1 and 3.2.2, the provision provides encouragement for the location of medium and higher density housing. It does not purport to constrain its location to only centres or urban neighbourhoods. This is confirmed by subsection (12). This subsection, which is specific to ‘New communities’, does not, in terms, limit the location of higher density housing in the manner suggested by Council.
- In my view, the Strategic framework includes specific provisions constraining the location of multiple dwellings. Two such provisions are ss.18.104.22.168(5) and 22.214.171.124(5). The latter applies to the subject to proposal, and compliance has been demonstrated. The provision does not, contrary to Council’s case, constrain development in the terms expressed in s.126.96.36.199(4) of the Strategic framework.
- For completeness, I would add that I am satisfied the second paragraph of s.188.8.131.52(4) is not applicable to this case. As paragraphs  and  of these reasons for judgment makes clear, this is a locality where I am satisfied the existing services and infrastructure are well advanced. Further, it was not suggested by Council that a larger lot housing development was required on the land to appropriately respond to environmental landscape features; to manage sloping land; or to provide a transition to a non-urban area. In this context I note, it was accepted by Council that environmental matters can be the subject of conditions of approval, and do not warrant refusal of the application.
- Given the above, I am satisfied that s.184.108.40.206(4) of City Plan, and the supporting provisions relied upon by Council, do not warrant refusal of the development application.
Diversity of housing choice
- Council submits the proposed development does not comply with s.220.127.116.11(4) of City Plan because, inter alia, it is not designed to provide a diversity of housing choice on the land. That is to say, it does not include a mix of lot sizes and housing forms. The outline of submissions prepared on behalf of Council footnote paragraph 90 of the first town planning joint report in support of this submission. This is a reference to Ms Morrissy’s contribution to the joint report, which states, in part:
“In my opinion, the proposal:
b) is not designed to provide a diversity of housing choices on the subject land, by including a mix of lot sizes and housing forms. Whilst it may be more a matter of legal interpretation, I do not consider that specific outcome 18.104.22.168.(4) is intended to facilitate one type of housing product and lot size over all land in the New Communities designation and that the surrounding land (in different zones and strategic designations) can be relied upon to achieve the desired mix of housing types and intensity. Rather, I interpret this specific outcome to envisage variety in housing type and density within (or on) the land designated New communities.”
- Section 22.214.171.124(4) of City Plan is set out above in paragraph . Council’s position assumes this provision is to be construed as if housing diversity is to be provided on each site in the New communities designation and, coupled with this, surrounding land in different planning designations cannot be relied upon to demonstrate the desired mix. I do not accept s.126.96.36.199(4) should be construed in this way.
- The provision does not require housing form diversity to be achieved on a site-by-site basis. For reasons I have already given, the provision speaks in terms of an area. The diversity of housing form encouraged is anticipated across that area. The proposed development will contribute to the achievement of that desired diversity.
- Further, the Council’s case is not supported by ss.188.8.131.52(7) and 184.108.40.206 of City Plan. The former is relevant to the New communities designation. The latter is relevant to land included in the Emerging community zone. Neither of these provisions, particularly s.220.127.116.11(7), require a mix of housing types to be provided on each site in the New communities designation.
- There is, in my view, one provision of s.18.104.22.168 of City Plan that may, not must, result in an outcome where a mix of housing forms are provided on one site – it is s.22.214.171.124(5). The provision anticipates small lot housing, dual occupancies and multiple dwellings in New communities. This development may occur in New communities where in low concentrations, and where they achieve a dispersed or gentle-scattering effect.
- To satisfy s.126.96.36.199(5) of City Plan, a site may be of a size and shape that requires a mix of housing types to achieve the desired concentration and dispersal effect. For the reasons I have given in paragraphs  to , that is not an outcome which is required in the circumstances here.
- I am satisfied that s.188.8.131.52(4), to the extent it is relied upon by Council to require a mix of housing types in the proposed development, does not warrant refusal.
(c) Conclusion: land use
- Having regard to the above, I am satisfied the first of the two main planning issues is resolved in favour of the proposed development. That is to say, the proposed development will be an appropriate use of the land.
Is the density of the proposed development appropriate?
- This question is answered in the affirmative.
- City Plan includes a specific provision dealing with development density in New communities, namely s.184.108.40.206(3), which states:
“Generally new communities achieve a minimum dwelling yield of between 15 to 25 dwellings per hectare net. These yields will be higher surrounding the Pimpama mixed use centre.”
- The above provision is expressed as a ‘minimum’ dwelling yield. It is common ground the development has a dwelling yield of 31.3 dwellings per hectare net and, in turn, exceeds the stated minimum dwelling yield. In the circumstances, I am comfortably satisfied compliance is demonstrated with s.220.127.116.11(3) of City Plan.
- That the resulting dwelling yield of the proposed development is acceptable finds support in s.18.104.22.168(3) of City Plan. It also finds support in two further matters, namely: (1) the proposed development complies with s.22.214.171.124(5) City Plan. This provision is set out in paragraph  and regulates the location and layout of higher density residential housing forms on the land; and (2) the density proposed does not give rise to any unacceptable town planning impacts, which is a clear indicator the development will have no appreciable, let alone adverse, planning consequences.
- The grounds relied upon by Council in the context of development density overlap with the grounds advanced with respect to the land use question. So much is clear from the following oral submission made by Ms Brien about s.126.96.36.199(3) of City Plan:
“…the proper interpretation of (3) is that what is intended is that the yield across the site may not necessarily be uniform. And that is then completely consistent with then further down when there is this concept of achieving a dispersed or gentle scattering effect across the site, because that is consistent that you would have if you have different densities across the site that is more consistent with the concept of a – or gives some meaning to those words, I guess. It allows those words to have some work rather than if the intention under (3) is it will just be the same density necessarily across the site. Then those words seem to be – have some difficulty in having any application.” (emphasis added)
- Contrary to Ms Brien’s oral submission, s.188.8.131.52(3) of City Plan does not identify how the stated minimum dwelling yield may be achieved ‘across the site’. The provision speaks of a minimum dwelling yield for ‘New communities’, which are, as I have already said, sensibly understood to mean identified areas in the city. The dwelling yield that may be achieved in any given case in the New communities designation is more likely to be guided by, inter alia, s.184.108.40.206(5) of City Plan.
- Section 220.127.116.11(5) of City Plan states the locational test to be met for particular housing forms in New communities. The provision applies to the subject development and requires the particular housing form proposed to have a low concentration, and achieve a specific dispersal and scattering effect. Compliance with this provision may, not must, require a mix of housing forms to achieve the desired level of concentration, dispersal or scattering.
- Having regard to a number of considerations, which are discussed above in paragraphs  to , the proposed development complies with s.18.104.22.168(5) of City Plan absent a mix of housing forms.
Exercise of the planning discretion
- Council’s case, stated broadly, involves a single reason for refusal. It contends the proposed development is inconsistent with the intended settlement pattern expressed in City Plan, principally the Strategic framework. I do not accept this is a valid reason for refusal in the circumstances of this case. The proposed development complies with the Strategic framework in City Plan. This, in turn, has the consequence that the proposal complies with PO7 of the Emerging Community zone code.
- Ms Brien conceded in oral submissions there is no reason to refuse the proposed development if it is, contrary to Council’s position, consistent with the preferred settlement pattern of development expressed in City Plan. I agree with this concession.
- In the exercise of the planning discretion, there are two compelling reasons, taken in combination, that comfortably satisfy me the application should be approved. Those reasons can be stated as: (1) the proposed development complies with City Plan; and (2) the proposed development will, as Mr Buckley said and I accept, represent a good planning outcome, which can be achieved absent any unacceptable impacts.
- The view I have reached would not be altered if s.22.214.171.124(4) of City Plan was applied as a ‘constraint’ to the proposed development. This is so for the reasons set out in paragraph .
- Cadmium also sought to rely upon three additional discretionary matters to contend the application should be approved. It contended:
- (a)the proposed development would advance the purpose of the PA;
- (b)there is a planning need for the proposed development; and
- (c)the development, if approved, would be superior in ecological terms to the development already approved by the Council for the land.
- It is unnecessary for me to determine whether the three contentions above have been established and, in addition, support an approval in the circumstances. I am satisfied the matters set out above are more than sufficient to establish the planning discretion should be exercised in Cadmium’s favour.
- I am satisfied Cadmium has discharged the onus, and Council’s decision to refuse the application should be set aside.
- Council’s decision to refuse the development application will, in due course, be replaced with an approval, granted subject to conditions. The appeal will be adjourned for the parties to agree on a suite of conditions.
- The orders of the Court will be:
- By 4pm on 20 November 2019, the Respondent is to provide a draft suite of conditions to the Appellant.
- The appeal be listed for review at 9.15 am on 22 November 2019.
 s.45(1)(a), Planning & Environment Court Act 2016 (Qld) (PECA).
 s.43, PECA.
 Oral submission made on day 5 of the hearing: T5-9, Line 39 to 46.
 Ex.6, p.7, paragraph 36. This was repeated in Ex.21, p.1, paragraph 1.0.4 and T5-44, Line 36 to 41.
 Ex.6, p.7, paragraph 36.
 Ex.32, p.2, paragraph 3 and p.24, paragraph 68(c).
 Ex.3, p.3.
 Ex.6, p.4, paragraph 12.
 Ex.6, p.5, paragraph 17.
 To the extent described at Ex.6, p.5, paragraph 19.
 Ex.6, p.5, paragraph 15.
 Ex.6, p.4, paragraph 12 and Buckley: T5-3, Line 43 to T5-4, Line 3.
 Ex.31, note .
 Ex.6, p.7, paragraph 37.
 T5-3, Line 39 to 42, read with Ex.3, p.46.
 T5-41, Line 36 to 38.
 Ex.11, section 6; Ex.3, pp.46 to 49; and Ex.31 (discussed at T5-3, Line 16 onwards).
 Ex.31, item 13.
 Ex.31, item 17.
 T5-21, Line 36.
 As discussed by Mr Buckley in his evidence at T5-4, Line 41 to T5-5, Line 1.
 Such as Dreamworld and Warner Brothers Movie World.
 T5-4, Line 22 to 39.
 Ex.21, paragraph 2.0.4; T5-38, Line 1 to 7.
 Ex.6, p.30, paragraph 124 b) and p.8, paragraph 45.
 T3-43, Line 41 to 43.
 By way of illustration, Sia & Anor v Brisbane City Council  QPEC 8,  to  and Jakel Pty Ltd v Brisbane City Council & Anor  QPEC 21,  onwards and, more recently, Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46, .
 Ex.6, p. 5, paragraph 13; Morrissy: T5-41, Line 40 to 42.
 Ex.3, p.4.
 T5-12, Line 4 to 11.
 Ex 6, p.19, paragraph 91; Ex.21, p.2, paragraph 2.0.7.
 Ex.6, p.19, paragraph 88, p.25, paragraph 114, p.30, paragraph 124 c); Ex.21, p.4, paragraph 2.0.20.
 Ex.33, p.16, paragraph 86.
 Ex.33, p.16, paragraph 84.
 s.45 subs.(5)(a)(i) and (6), PA.
 ss.3.2.2(a) and (b), read with Map SFM1 (Ex.5, p.1).
 Ex.5, p.2.
 Penultimate ‘Note’ at Ex.4, p.36.
 Ex.4, p.22.
 T5-40, Line 34 to 35.
 s.126.96.36.199(2)(b)(i) and (ii).
 Ex.5, p.8.
 See paragraph .
 As is vividly demonstrated by Ex.31.
 Ex.8, p.6, paragraph 16.
 Ex.8, p.6, paragraph 15.
 Ex.8, p.6, paragraph 16.
 Ex.3, pp.34 to 38.
 See also Ex.3, p.40.
 Ex.3, p.17, item 3.
 Ex.3, p.18.
 Ex.3, p.25, 26 and 33.
 Ex.3, p.18.
 Ex.33, paragraph 26; Ex.32, Annexure A, p.2, paragraph 11.
 Identified in Ex.20B, paragraph 5(a)(i) and (ii).
 Ex.4, p.135.
 Ex.6, paragraph 93.
 Buckley: T5-10, Line 14 to 19; Morrissy: Ex.21, paragraph 2.0.6(b) and T5-49, Line 4 to 25.
 Ex.2, p.38, paragraph (f).
 T5-10, Line 23.
 T5-10, Line 23 to 35.
 T5-35, Line 15 to 21.
 Ex.21, p.2, paragraph 2.0.6; T5-38, Line 15 to 18.
 Ex.6, p.20, paragraph 94(b).
 As discussed in paragraphs  and .
 Ex.33, pp.16 and 19, paragraphs 85 and 103.
 Exhibit 20B lists 15 provisions. As no reference was made to ss.3.6.1(1) and (3) in Council’s written outline, they are not included in the number of provisions relied upon.
 Ex.33, p.18, paragraph 97 citing s.188.8.131.52(2).
 Ex.33, p.18, paragraph 96 citing s.184.108.40.206(2).
 Ex.33, pp.19, 20, 22-26, paragraphs 101, 104, 117, 122 and 127 to 130, citing ss.3.2.1 and 3.2.2, ss.3.3.1(6) and (7), ss.220.127.116.11(4) and (5) and ss.3.6.1(1) and (3).
 Ex.33, pp.19 and 24, paragraphs 102 and 125, citing s.18.104.22.168(6)(b) and ss.22.214.171.124(2)(e)(ii)(B) and (e)(v).
 Ex.33, pp.23-24, paragraphs 122(b) and 126 citing ss. 3.2.1, 3.2.2 and 3.3.1, and s.126.96.36.199(4).
 Council’s submissions describe the provision as ‘particularly relevant’: Ex.33, p.19, paragraph 103.
 Ex.33, p.18, paragraph 97.
 T5-37, Line 28 to 39.
 Zappala Family Co Pty Ltd v Brisbane City Council  QPELR 686, 700 .
 Ex.4, p.22.
 T5-3, Line 39 to 42, read with Ex.3, p.46.
 T5-3, Line 16 to 5-6, Line 23.
 Ex.3, pp.46-49; Ex.31.
 Ex.3, pp.46-49; Buckley: T5-3, Line 27 to T5-4, Line 39.
 T5-8, Line 42 to T5-9, Line 2.
 T5-29, Line 40 to T5-30, Line 2.
 Ex.33, p.18, paragraph 96.
 T5-30, Lines 4 to 23.
 Ex.3, p.18.
 Council did not contend the development failed to comply with s.188.8.131.52(e)(iv).
 T3-34, Lines 29 to 36 and T3-35, Lines 8 to 21.
 Ex.33, pp.19 and 22, paragraphs 103(b) & (c), and 117.
 Ex.6, pp.18, 21-23, paragraphs 86 b) – d), 96, 102 and 106.
 Ex.33, pp.17-18, paragraphs 93 and 94.
 Ex.4, p.159.
 Zappala Family Co Pty Ltd v Brisbane City Council & Anor  QPELR 686, 698 .
 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 .
 Ex.33, p.23, paragraph 122(b).
 T5-6, Line 1 to 9 (day 5 of the hearing).
- Published Case Name:
Cadmium Holding FW Pty Ltd v Gold Coast City Council
- Shortened Case Name:
Cadmium Holding FW Pty Ltd v Gold Coast City Council
 QPEC 51
22 Oct 2019