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Upan Company Pty Ltd v Gold Coast City Council[2022] QCA 75

Upan Company Pty Ltd v Gold Coast City Council[2022] QCA 75

SUPREME COURT OF QUEENSLAND

CITATION:

Upan Company Pty Ltd v Gold Coast City Council [2022] QCA 75

PARTIES:

UPAN COMPANY PTY LTD

ACN 161 162 134

AS TRUSTEE FOR THE HAPSBERG FIXED TRUST

(applicant)

v

GOLD COAST CITY COUNCIL

(respondent)

FILE NO/S:

Appeal No 13277 of 2021

P & E Appeal No 2009 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2021] QPEC 37; [2021] QPEC 50 (Jones DCJ)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2022

JUDGES:

Sofronoff P and Morrison JA and Davis J

ORDERS:

  1. Application for leave to appeal refused.
  2. The applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – MATTERS FOR CONSIDERATION BY COUNCIL – CHANGE APPLICATION FOR RESIDENTIAL APARTMENT BUILDING – HEIGHT, BULK AND SCALE – where the applicant applied to the Council for development approval to build a high-rise residential building – where the Council approved the development to include a mix of two and three bedroom apartments over 20 storeys – where the applicant applied to alter the development approval pursuant to s 78 of the Planning Act 2016 (Qld) – where the Council refused the application – where the applicant appealed to the Planning and Environment Court – where the learned primary judge published reasons but decided to hear from the parties before making orders – where the applicant’s proposed development had not conditioned to require a podium form with appropriate setbacks – where the possibility of imposing such a condition was not raised during the appeal – where the learned primary judge dismissed the appeal – where the applicant seeks leave to appeal against the dismissal – whether dismissing the appeal without making a finding that compliance with all assessment benchmarks could not be achieved by imposing development conditions – whether the applicant was denied procedural fairness by dismissing the appeal – whether the learned primary judge erred when assessing the changed development against the assessment benchmarks in circumstances where the learned primary judge found the approved development did not have a tower and podium form – whether the application for leave should be granted

Planning Act 2016 (Qld), s 60, s 82

Planning and Environment Court Act 2016 (Qld), s 63

Brisbane Islamic Centre Ltd v Brisbane City Council [2016] QPELR 378; [2016] QPEC 14, cited

Comiskey Group (a firm) v Moreton Bay Regional Council [2012] QPELR 168; [2011] QPEC 132, cited

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28, followed

COUNSEL:

S C Holt QC, with S J Hedge, for the applicant

G A Gibson QC, with N D Loos, for the respondent

SOLICITORS:

Mills Oakley for the applicant

Norton Rose Fulbright for the respondent

  1. [1]
    SOFRONOFF P:  For the reasons given by Morrison JA, I agree that leave to appeal should be refused and with the costs order proposed by his Honour.
  2. [2]
    MORRISON JAUpan Company Pty Ltd is a property developer.  It applied to the Gold Coast City Council for a development approval to build a high-rise residential building at Main Beach.  The building fronted Main Beach Parade (on the western side) and, but for a small reserve, would have absolute beach frontage.
  3. [3]
    On 22 October 2018, the Council gave its approval for that development which included a mix of two and three-bedroom apartments over 20 storeys.
  4. [4]
    On 13 February 2020, Upan applied pursuant to s 78 of the Planning Act 2016 (Qld) to alter the development approval under a “change application”.  The proposed development was different from that which had been approved.  A joint expert report summarised the changes which included:
    1. (a)
      an increase in the overall building height by 3.75m;
    2. (b)
      a change to the external facade treatments and design;
    3. (c)
      a reduction in certain building setbacks, while increasing others, across different levels of the building; and
    4. (d)
      a reduction in the extent of transition in building height.
  5. [5]
    The external treatment of the two buildings was vastly different, as revealed in photomontages tendered on the appeal.[1]
  6. [6]
    The Council refused the application.
  7. [7]
    Upan then appealed to the Planning and Environment Court.[2]  Pursuant to s 43 of the Planning and Environment Court Act 2016 (Qld) that appeal was a hearing anew.
  8. [8]
    After a five-day hearing the learned primary judge published reasons but decided to hear from the parties before making orders.[3]  His Honour said[4] the reason for that approach was that: (i) had the proposed development been conditioned to require a podium form with appropriate setbacks to Main Beach Parade and possibly also Woodroffe Avenue, his Honour might have approved the proposed development; (ii) that was not the current situation; and (iii) the possibility of imposing such a condition had not been raised during the appeal.
  9. [9]
    Upan subsequently provided the Council with new plans, urging that they would address his Honour’s concerns.  The Council did not agree.  There followed several mentions of the matter during which the parties debated how to proceed, including whether, as the Council urged, the change application should be dismissed.  His Honour ultimately delivered further reasons, dismissing the appeal.[5]
  10. [10]
    Upan now seeks leave to appeal against the dismissal of the appeal.  The proposed grounds are that the learned primary judge erred in law by:[6]
    1. (a)
      Ground 1 - dismissing the appeal without making a finding that compliance with all assessment benchmarks could not be achieved by imposing development conditions;
    2. (b)
      Ground 2 - denying the applicant procedural fairness by dismissing the appeal in a peremptory fashion without an adequate opportunity to present evidence and submissions in relation to potential conditions; and
    3. (c)
      Ground 4 - assessing the changed development against the assessment benchmark in overall outcome OO3(e)(i)(B) of the Light Rail Urban Renewal Area Overlay[7] in circumstances where he found the approved development did not have a tower and podium form.
  11. [11]
    Before this Court, Grounds 1 and 2 assumed most importance.  Ground 4 was pressed but as will appear, confronted considerable hurdles in its acceptance as a basis for the grant of leave to appeal.

Approach of the primary judge

  1. [12]
    The learned primary judge identified the issues in dispute which had been agreed between the parties[8]:
    1. (a)
      whether the setbacks and site cover of the proposed change application are acceptable and do not result in unacceptable impacts have regard to provisions of the City Plan;
    2. (b)
      whether the landscaping, de-planting and streetscape outcomes of the proposed change application are acceptable and do not result in unacceptable impacts having regard to provisions of the City Plan;
    3. (c)
      whether the overall building form, building height and building height transition outcomes of the proposed change application, combined with the building design outcomes in the two preceding subparagraphs, are acceptable and do not result in unacceptable impacts having regard to the provisions of the City Plan;
    4. (d)
      whether the density outcomes of the proposed change application are acceptable;
    5. (e)
      whether the wind impacts of the proposed changed application are acceptable;
    6. (f)
      whether any non-compliance with the City Plan can be conditioned, such that compliance is achieved; and
    7. (g)
      whether there are a number of relevant matters that favour approval in the event that the proposed development failed to comply with the City Plan in a material way.
  2. [13]
    As will become apparent there was only one area which caused the learned primary judge to withhold approval of the proposed development. 
  3. [14]
    Because the appeal concerned a change application in respect of an existing approved development, s 82(2) of the Planning Act was relevant.  It provided:

82 Assessing and deciding change applications for other changes

  1. (1)
    This section applies to a change application, other than for a minor change to a development approval.
  1. (2)
    For administering the change application, and assessing and deciding the change application in the context of a development approval, the relevant provisions apply –
  1. (a)
    as if –
  1. (i)
    the responsible entity was the assessment manager; and
  1. (ii)
    the change application was the original development application, with the changes included, but was made when the change application was made; and
  1. (b)
    with necessary changes.”
  1. [15]
    On an appeal dealing with a change application the responsible entity was the P&E Court and it therefore stood in the position of the assessment manager.
  2. [16]
    Because it was in the position as assessment manager, s 60(2) of the Planning Act was central to the contentions advance by Upan.  Section 60(2) relevantly provides:[9]

60 Deciding in development applications

  1. (1)
  1. (2)
    To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment –
  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and
  1. (c)
    may impose development conditions on an approval; and
  1. (d)
    may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.”
  1. [17]
    The learned primary judge examined various aspects relevant to the appeal before him, by reference to matters such as the local character, relevant provisions of the City Plan, privacy and views, landscaping and shadowing.  When his Honour dealt with the material differences between the approved development and the proposed development, his Honour identified that many of the differences were of no significance but there were two critical issues to be determined.[10]
  2. [18]
    The first was whether the proposed development complied with those provisions of the City Plan concerned with height, bulk and scale and, to a lesser extent, those provisions concerned with architectural features.  His Honour identified the particular aspect of this first issue, as being “the incorporation of a podium or the lack thereof.”
  3. [19]
    In the reasons which followed his Honour identified the relevant provisions of the City Plan.  The two which featured ultimately were: (i) the Light Rail Urban Renewal Overlay code (LRURA) and Overall Outcome 3(e)(i)(B); and (ii) the Medium Density Residential Zone code (MDRZ) and Overall Outcome 2(d)(v).  His Honour ultimately concluded that the proposed development did not comply with those two important provisions of the City Plan.  They provide:

LRURA, OO3(e)(i)(B)

Design buildings to foster distinct Gold Coast character

  1. (e)
    Local character reflects a combination of built form and mix of uses, and is characterised by the following areas and their outcomes:
  1. (i)
    building form is characterised by either:
  1. (B)
    high rise buildings with a clearly defined ‘tower and podium form’, where podiums are built to the street edge and may be interspersed or ‘fractured’ by public spaces, landscaped areas or pedestrian access ways …

MDRZ OO2(d)(v)

Built form (excluding Dwelling houses on small lots) –

  1. (iv)
    has varying site cover to reduce building dominance and provide areas for landscaping.”
  1. [20]
    In the course of his analysis the learned primary judge identified that the approved development itself had been non-compliant with the City Plan, but the Council had approved it notwithstanding material areas of non-compliance.[11]  I pause to note that the fact that the approved development had been non-compliant with the City Plan was not a matter before his Honour as part of the appeal.  In other words, the Council having approved it and granted a development approval, and there being no appeal in respect of the approved development, there was nothing that the learned primary judge could do about it.  The subject matter of the appeal with which his Honour was dealing was the proposed change to that approval.
  2. [21]
    In considering the questions of height, bulk and scale his Honour identified “what this proceeding is about in reality, namely the absence of any stepping (including a podium) in the floor plates as the building rises from ground level.”[12]  His Honour then examined the nature of the proposed building in its existing context at Main Beach.  Having noted that the existing approved development was not of a podium form, but rather a stepped form of development,[13] his Honour then made several relevant findings:
    1. (a)
      the proposed development had no podium form at all;[14]
    2. (b)
      the adoption of a policy or objective to introduce a podium and tower form of development in this precinct was a legitimate planning strategy;[15]
    3. (c)
      the City Plan contemplated a podium and tower form of development, not necessarily a stepped form of development;[16]
    4. (d)
      the evidence left his Honour “unpersuaded that the proposed development would not result in an unacceptable outcome in respect of bulk and scale”;[17]
    5. (e)
      the proposed development would not comply with important provisions of the City Plan, and in particular OO2(d)(v) of the MDRZ Code and OO3(e)(1)(B) of the LRURA Overlay Code concerned with “clearly defined tower and podium form”.[18]
  3. [22]
    As his Honour noted,[19] that was a finding that the proposed development would involve material non-compliance with the City Plan.  His Honour turned to discretionary matters raised on behalf of Upan.  Responding to a submission by Upan that the proposed development was of a bulk, scale, density and height that could be reasonably expected within that locality, and therefore was not a substantial change in bulk or design from the approved development, his Honour said:[20]

“In any event, it is not just the absence of a podium itself that is the issue.  The real issue is that without some degree of variation in site cover, be it by podium and tower or other stepped form of development, the proposed development would result in a building that would, to an unacceptable level, dominate or crowd the existing and planned streetscape.”

  1. [23]
    Having said that his Honour set out the conclusions he had reached.  First was that “in its present form the proposed development does not comply with important provisions of the City Plan”.  Second, there were no discretionary matters that would warrant approval notwithstanding that non-compliance.[21]
  2. [24]
    His Honour then observed that the proposed development contemplated a superior product mix of apartments and a far more attractive form of development than that already approved.  His Honour continued:[22]

“And, had it incorporated a podium with setbacks from Main Beach parade, possibly also Woodroffe Avenue, sufficient to reduce its bulk and scale so it does not ‘crowd’ the street, I may have been minded to allow the appeal.”

  1. [25]
    His Honour then continued to set out his conclusions:[23]

[74] With a podium and tower built form, it would not only be compliant with OO3(e)(i)(B) of the LRURA overlay code, but it would also sit comfortably with the 24 story apartment block directly to the north west (Pacific Towers).  It would also sit comfortably with the Pearl development, almost directly across the road and the proposed Dune development, further to the south.  Albeit both of those buildings are on much smaller lots.

[75] According to Dr McGowan, the ‘stepped’ form permits more sympathy with the existing built form on the eastern side of Main Beach Parade and the human scale.  If the proposed building had a podium and tower form, at least insofar as height is concerned, the podium would likely be reasonably compatible with the large building being constructed on the other wise of Woodroffe Avenue.  And, while there is no direct evidence on the point, it would seem not unreasonable to infer that a podium of the type included in the Dune and Pearl developments would be more compatible with the human scale than the first nine levels of the approved development.  The introduction of a podium form of development might also be expected to soften the shadowing and privacy concerns, such as they are, held by the respondent.

[76] By way of conclusion then, had the proposed development been conditioned to require a podium form with appropriate setbacks to Main Beach Parade and possibly also Woodroffe Avenue, I might have approved the proposed development.  That however, is not the current situation.  In circumstances where the possibility of imposing such a condition was not raised during the course of the appeal, the approach I will take is to publish my reasons but hear further from the parties before making orders.”

  1. [26]
    Mr Holt QC, appearing for Upan, submitted that the proper construction of his Honour’s reasons led to the conclusion that he was not stipulating that any proposed condition had to be directed to a podium and tower built form, but rather to overcome the more generalised issue in respect of bulk and scale, particularly of a building unacceptably dominating or crowding the streetscape.  For a number of reasons, I consider that submission should be rejected.
  2. [27]
    First, when first identifying the critical issues his Honour characterised them as compliance with the provisions of the City Plan concerned with height, bulk and scale, but added “in particular, the incorporation of a podium or the lack thereof.”[24]  His Honour then linked that to the provision of the LRURA which stipulated that building form was to be characterised by, inter alia, high rise buildings with a clearly defined tower and podium form.  It was that provision with which his Honour found that the proposed development did not comply.[25]
  3. [28]
    Secondly, his Honour made clear that the central issue was one concerning a podium in the proposed development by describing it as “what this proceeding is about in reality, namely the absence of any stepping (including a podium) in the floor plates.”[26]
  4. [29]
    Thirdly, his Honour accepted the evidence that the proposed development was more reflective of the Gold Coast character, but qualified that by finding that the proposed development had no podium form at all.[27]  His Honour then made clear the relevance of the absence of a podium form, by finding that the adoption of a policy or objective to introduce a podium and tower form was a legitimate planning strategy.[28]
  5. [30]
    Fourthly, having made that finding his Honour then identified several nearby developments that had podium forms of construction (Dune, Pacific Views and Pearl),[29] and in that context made the finding that the City Plan contemplated a podium and tower form of development, but not necessarily a stepped form of development of the type that the Council had approved.[30]
  6. [31]
    Fifthly, whilst it is true to say that his Honour was unpersuaded that the proposed development would not result in any unacceptable outcome in respect of bulk and scale,[31] and observed that the dominance or crowding had been shown in the photomontages,[32] his Honour made an express finding that the proposed development would not comply with the provisions of the City Plan that required a “clearly defined tower and podium form”.[33]
  7. [32]
    Sixthly, in a section dealing with what his Honour expressed to be “conclusions”, his Honour made it plain that if the proposed development had incorporated a podium and tower built form, he may have been minded to allow the appeal.[34]  His Honour emphasised the fact that he was concerned with a podium and tower form, by comparing the position with three local developments.[35]
  8. [33]
    Seventhly, in my view, his Honour could not have been clearer in identifying what a possible condition might require then what was identified in paragraph [76] of those reasons namely, “had the proposed development been conditioned to require a podium form with appropriate setbacks to Main Beach Parade and possibly also Woodroofe Avenue.”
  9. [34]
    Mr Holt submitted that by reference to some comment made at one of the mentioned hearings the published reasons should be read in a way not concerned with the requirement for a podium and tower-built form.  I would also reject this submission.  First, comments made in a different context than delivery of published reasons do not provide a solid basis to qualify expressed reasons.  Secondly, his Honour made it plain in the reasons delivered on 28 September 2021 what his findings were in the first set of reasons.  In the course of explaining why he had delivered reasons but adjourned the final determination so that parties could address the issue of conditions, his Honour said:[36]

“… Third, notwithstanding those positive conclusions, I nonetheless found that the development as now proposed involved material non-compliance with the relevant provisions of the respondent’s planning scheme (the City Plan).  In particular, the proposed development did not incorporate a form of podium and tower construction which resulted in a finding that as proposed, it would not sit comfortably within the existing streetscape and would tend to ‘crowd’ Main Beach Parade and possibly also Woodroffe Avenue.”

State of satisfaction at 28 July 2021

  1. [35]
    In my view, it is plain that at the time of publishing the first set of reasons, his Honour was not satisfied that compliance could be achieved by imposing development conditions.  That is plain because of the findings to which I have referred in paragraphs [21] to [25] above. And it follows from the fact that if his Honour had been so satisfied then, as his Honour said, he might have approved the application.
  2. [36]
    I phrase the state of affairs that way because s 60(2)(d) gives power to refuse the application “only if compliance cannot be achieved by imposing development conditions”.  His Honour had not reached the point when that state of satisfaction had to be held, as the question of conditions had not been agitated in the appeal.
  3. [37]
    The learned primary judge found that the proposed development would not comply with provisions of the City Plan, and in particular that which was concerned with a clearly defined tower and podium form.  It was the absence of the podium form which would have led his Honour, at that point, to dismiss the appeal, but for letting the parties address the question of a condition to require a podium form.  Whilst one of the issues had been identified as whether any non-compliance with the City Plan could be conditioned such that compliance was achieved,[37]  the possibility of imposing such a condition had not been raised during the course of the appeal.  I pause to note that Mr Holt QC accepted that on the appeal neither Upan nor the Council had raised the proposition that a condition might be imposed and thus satisfy the non-compliance issues.[38]  It was for that reason that his Honour decided to publish his reasons and hear further from the parties before making orders.
  4. [38]
    Therefore, in my view, it follows that had matters remained in that state his Honour would have been satisfied that compliance could not be achieved by the imposition of a condition, and thus entitled to refuse the change application and dismiss the appeal.

What happened then?

  1. [39]
    When the reasons were handed down on 28 July 2021 the learned primary judge made some comments.  Noting that the only order to be made that day was the publication of the reasons his Honour said:[39]

“But look, the reason why I’ve done that is that I found that there was non-compliance, to use – in our jargon, with the planning scheme.  But only insofar as the – call it setback, call it podium, whatever.  In other words, I have rejected all of the counsel’s (sic) concerns on amenity.

And if you read the judgment, the – as I said, the only issue is the setback: be it by podium or other means.  And, so, I thought the best thing to do would be to publish the reasons, give the parties an opportunity to consider my reasons and then come back before the court.”

  1. [40]
    Upan sought to rely upon that passage to qualify what was said in the formal set of reasons handed down that day.  As explained above, it does not, in my view, have that effect.  Plainly that was an occasion where his Honour was simply trying to paraphrase the effect of the first set of reasons, rather than rewrite what was in them.
  2. [41]
    That hearing ended on the basis that the parties would read the reasons and consult with the council if necessary, with a view to setting a date some four weeks away for a final mention.[40]
  3. [42]
    Some six weeks later the matter was mentioned again before the learned primary judge.  Both sides had agreed that a further seven days was necessary to “effectively work out where we’re going to land, following the delivery of the reasons for judgment”, as it was phrased by counsel then appearing for Upan.[41]
  4. [43]
    The parties were aware that his Honour was only five weeks from retirement, and counsel for Upan assured his Honour that the position would be known the following week.[42]  Counsel went on to say that “it may be that your Honour doesn’t, in fact, have to hear round 2, if there is to be a round 2.”[43]
  5. [44]
    The matter was next mentioned before the learned primary judge seven days later on 16 September 2021.  Relying upon an affidavit filed by the council, it was explained to his Honour that the competing positions between the council and Upan was as to whether there ought to be a future hearing or not.[44]  The parties had communicated with one another in the interim period since 28 July 2021, but on 26 August 2021 Upan had supplied new plans to the Council, proposing that they be the subject of a condition so that the appeal could be allowed.  Upan had announced that it would seek a hearing date, but the council questioned the utility of that course.  It opposed a further hearing on the basis that it had sought to reach a compromise with Upan, but that did not occur and “we’ve given it a good try, but we don’t want this to become round 2 of the hearing.”[45]
  6. [45]
    Upan’s position was put forward as being:

“(i) the reasons had been handed down and effectively invited a particular course, namely that amended plans could be conditioned to result in a particular outcome;

  1. (ii)
    Upan said they amended the plans, which they had presented to Council, met what was said in the first set of reasons, whereas the Council disagreed;
  1. (iii)
    there was therefore a contest between both parties; and
  1. (iv)
    it would be a complete denial of natural justice for the learned primary judge to dismiss the appeal that day ‘without my client having the right to be heard on those plans, and whether they fit within your Honour’s reasons for judgment.’”[46]
  1. [46]
    His Honour questioned the nature of the dispute and whether it would be, in effect, “a contested minor change application”.[47]  Counsel for Upan responded by saying that the nature of the hearing was “whether the amended plans that my client is putting forward, effectively reflect the findings in your Honour’s reasons for judgment, and therefore effectively meet what your Honour is seeking in terms of the reasons for judgment”.[48]
  2. [47]
    Again, asserting that there was a right on Upan’s part to have the new set of plans adjudicated by the learned primary judge, Upan answered his Honour’s next question in much the same way.  His Honour asked whether the further hearing proposed would involve, in effect, a re-running of the whole appeal.[49]  The response was that the question was whether the new plans reflected the reasons for judgment.[50]
  3. [48]
    Insofar as Upan contended at that hearing that there was a right to be heard on the plans, that was an error.  There was no right to be heard beyond the opportunity reflected in the reasons published on 28 July 2021.  That concerned whether the proposed development, as it stood at that time, could be the subject of a condition which would overcome the non-compliance which his Honour had found with, inter alia, the LRURA Overlay Code.  Instead of that, Upan presented an entirely new set of plans for a different form of building.  Those plans had been provided to the Council in an effort to secure its agreement.  But that was not forthcoming.  In truth what Upan were seeking to do was to apply to reopen its case in the appeal and to amend the basis of the change application which led to that appeal.
  4. [49]
    The position of Upan was then advanced as being:

“We say that these amended plans reflect what your Honour said in the reasons for judgment.  That should be the end of it.”[51]

In response to that his Honour asked how he could reach that conclusion without hearing expert evidence.  The response from Upan was to say that it was the findings of the Court with which Upan’s proposed development needed to be consistent, and that all it was trying to do was to demonstrate that “what we can deliver is consistent with the reasons for judgment.”[52]

  1. [50]
    As argument progressed, the Council pointed out that the first set of reasons and the findings did not seek amended plans.  To proffer those plans as the basis for another hearing was to “[by-pass] the condition idea and profess a new plan.”[53]  His Honour then asked the next question, as to what the nature of the hearing would be.  It was then that Upan made the response that a condition could be imposed requiring that the development being in accordance with the new set of plans.[54]
  2. [51]
    As matters stood then on 16 September 2021, Upan was proposing a further hearing, with contested evidence from both sides, with a view to establishing that a condition could be imposed requiring the proposed development to now be built in accordance with the new set of plans.  The mention hearing ended with his Honour indicating that he would think about the proposal.
  3. [52]
    The matter returned before the learned primary judge on 17 September 2021.  His Honour was told that the position between the parties had not changed in the interim.  His Honour observed that he could not see how he could resolve the existing dispute, that is to say the dispute based on the new set of plans, without hearing further evidence, and that would be a “re-hearing based on … some form of de facto [opposed] minor change application.”[55]
  4. [53]
    His Honour questioned what sort of evidence was envisaged by Upan, and the response was evidence to show that the new set of plans were consistent with the reasons for judgment.[56]  In the course of the following exchanges, Upan made clear again that what it was seeking was a condition that the proposed development now be built in accordance with the new set of plans.[57]

The reasons delivered on 28 September 2021

  1. [54]
    The learned primary judge delivered the second set of reasons on 28 September 2021.  In it his Honour set out the reason for adopting the approach of delivering the first set of reasons for consideration:[58]

[3] The reason for adopting that approach could be summarised as follows.  First, I consider that there were a number of features associated with the proposed development which would result in a superior outcome to that approved by the respondent.  Second, most, if not all, of the amenity issues raised against the appellant were dismissed.  Third, notwithstanding those positive conclusions, I nonetheless found that the development as now proposed involved material non-compliance with the relevant provisions of the respondent’s planning scheme (the City Plan).  In particular, the proposed development did not incorporate a form of podium and tower construction which resulted in a finding that as proposed, it would not sit comfortably within the existing streetscape and would tend to ‘crowd’ Main Beach Parade and possibly also Woodroffe Avenue.”

  1. [55]
    Referring to the new plans his Honour found that whilst Upan had made “some attempt to address the court’s concerns by providing for a setback at the upper levels”, nonetheless it did not comprise a podium and tower form of construction.[59]
  2. [56]
    His Honour also noted the competing positions.  The Council did not accept that the now proposed form of development was compliant with the City Plan and submitted that the appeal should be dismissed.  On the other hand, Upan contended that it should be given an opportunity to satisfy the P&E Court that, as now proposed, the development would provide an adequate response to the concerns about non-compliance expressed in the first set of reasons.[60]
  3. [57]
    The learned primary judge referred to Upan’s “application to be heard” and the two authorities relied upon by Upan, namely Brisbane Islamic Centre Ltd v Brisbane City Council[61] and Comiskey Group (a firm) v Moreton Bay Regional Council.[62]  His Honour distinguished both of those decisions and then concluded:[63]

[12] The situation I am left in is as follows.  First, on the plans before me on their own, I could not be satisfied that a condition requiring the now proposed design outcome would satisfy the concerns expressed by me in my reasons given on 28 July 2021, let alone whether it would sufficiently comply with the respondent’s City Plan.  It is all but inevitable in my view, that to be so satisfied would require the hearing of further evidence.  While it might be expected that no further evidence would be required about matters involving impacts on amenity, it would not be unreasonable to expect that at least to some, most likely contested, evidence of an architectural and visual amenity nature would be required.  In other words, it would seem all be inevitable that yet another merits hearing, albeit it a relatively abbreviated one, would be required.  That would be an undesirable outcome in my view.”

  1. [58]
    His Honour then determined that the only acceptable outcome was to dismiss the appeal.
  2. [59]
    A number of observations can be made about the learned primary judge’s second set of reasons.
  3. [60]
    First, his Honour made clear that the material non-compliance that he had found in the first set of reasons was, in particular, that the proposed development did not incorporate a form of podium and tower construction.  It was that “which resulted in a finding that as proposed, it would not sit comfortably within the existing streetscape and would tend to ‘crowd’ Main Beach Parade and possibly also Woodroffe Avenue.”
  4. [61]
    Secondly, that finding, of course, related to the plans upon which the change application was made, upon which the Council determined to refuse the change application, and upon which the appeal was conducted.
  5. [62]
    Thirdly, his Honour made a finding that the plans by themselves would not permit his Honour to reach a state of satisfaction that a condition requiring the development to be built according to the new plans would satisfy the concerns expressed by his Honour in the first set of reasons.  Nor would the plans on their own permit his Honour to reach a conclusion that they would sufficiently comply with the City Plan. 
  6. [63]
    Fourthly, his Honour found that it was all but inevitable that to reach such a state of satisfaction would require a further contested hearing which amounted to another merits hearing.  Further, the additional merits hearing would not be in respect of the plans upon which the change application was made, which were considered by the Council and refused, and which were the subject of the appeal to that point.  Put simply, the new set of plans consisted of a redesign of the proposed development which had been the subject of the change application.
  7. [64]
    Fifthly, it is evident that the learned primary judge understood the application by Upan to be an application to reopen the appeal, albeit that the underlying proposal was to seek a condition based on plans which had not been considered as part of the change application or the appeal. 
  8. [65]
    Sixthly, in refusing to entertain the further hearing, his Honour was refusing the application to reopen.  On any review that was a matter of discretion.

Consideration

  1. [66]
    As can be seen from the foregoing reasons, the sequence of events was:
    1. (a)
      Upan obtained a development approval from the Council for the land at Main Beach;
    2. (b)
      sometime later Upan lodged a change application pursuant to s 78 of the Planning Act;
    3. (c)
      the Council refused the change application;
    4. (d)
      Upan appealed that refusal to the P&E Court;
    5. (e)
      at the point when the Reasons #1 were published (28 July 2021), the learned primary judge: 
      1. found that the proposed development in the change application materially contravened the City Plan;
      2. was not satisfied that he should allow the appeal and approve the change application as it then stood;
      3. said that had the proposed development been conditioned to require a podium and tower construction then he may have approved it;
      4. found that no question of a condition had been agitated during the appeal; and
      5. gave the parties a chance to consider the reasons and address further before final orders were made.
  2. [67]
    At that point the primary judge was not satisfied that that the appeal should be allowed and was not satisfied that a condition could be imposed such that the change application could be allowed.  Section 60(2)(d) was not engaged at that point because his Honour had not concluded the appeal process, the parties being given the opportunity to address the question of a possible condition.
  3. [68]
    Thereafter, Upan applied to re-open the appeal, but only to propound a new set of plans that had not been the subject of: (i) the existing change application; (ii) consideration by the Council as part of the existing, or any other, change application; or (iii) the appeal.
  4. [69]
    What was proposed was not a minor amendment to the existing plans, but an entirely new design which, as his Honour found, did not incorporate a podium and tower built form.
  5. [70]
    Upan did not formulate or propound a condition that might be attached to the existing change application, such as to overcome the findings in Reasons #1.  So much was accepted by Mr Holt QC before this Court.[64]  Nor did Upan explain why it was that a condition had not been foreshadowed or raised earlier in the appeal.
  6. [71]
    The learned primary judge considered that he could not be satisfied, based on the new plans alone, that: (i) they revealed a condition that would overcome the findings in Reason #1; and (ii) the proposal inherent in them would comply with the City Plan.
  7. [72]
    The learned primary judge found that he might only reach such a stage of satisfaction after another merits hearing, this time in respect of the new plans and no longer in respect of the plans the subject of the existing change application.
  8. [73]
    His Honour exercised his discretion and declined to permit the appeal to be re-opened in those circumstances.
  9. [74]
    In my view, it cannot be demonstrated that the learned primary judge was in error in so doing because:
    1. (a)
      the existing proposal the subject of the change application contravened the City Plan;
    2. (b)
      unless a condition could be formulated to overcome that state of affairs, his Honour said he would not approve the change application and (inferentially) dismiss the appeal;
    3. (c)
      no such condition was formulated, let alone advanced;
    4. (d)
      instead, Upan produced yet another set of plans with a different design, seeking to re-open the appeal and propound those new plans as overcoming the contraventions found and concerns expressed in Reasons #1,
    5. (e)
      the new plans had not been the subject of a change application considered by the Council, nor the subject of the existing change application;
    6. (f)
      the new plans had not been the subject of the appeal;
    7. (g)
      what Upan proposed was a substantial departure from the proceedings to that point; there was no right on its part to insist on that departure being accommodated; to the contrary, Upan recognised that it was applying to re-open the appeal and have a further hearing on an issue that had not been raised before; as such, whether to permit a re-opening was always a matter that fell to be determined as a matter of discretion;
    8. (h)
      no condition having been advanced, his Honour’s findings on contravention of the City Plan remained;
    9. (i)
      further, in the absence of such a condition his Honour remained satisfied that the change application could not be approved, and therefore the appeal should be dismissed; and
    10. (j)
      that was the basis for his Honour’s exercising the discretion to refuse the re-opening and dismiss the appeal.
  10. [75]
    Put in terms of s 60(2)(d) of the Planning Act, his Honour was satisfied that compliance with the assessment benchmarks could not be achieved by the imposition of a development condition.  The statutory basis for the exercise of the power to refuse the application was thus enlivened, and the discretionary basis for exercising the power to refuse was, in my respectful view, sound.
  11. [76]
    It should also be noted, relevant to the question of granting leave, that failure on this application does not prevent Upan from making another change application.

Ground 4

  1. [77]
    Ground 4 concerned the assessment by the learned primary judge of the proposed development by reference to the assessment benchmark in 003(e)(i)(B) of the LRURA in circumstances where he found the approved development did not have a tower and podium form.  Upan contended that:[65]
    1. (a)
      the learned primary judge found that neither the approved development nor the proposed development had a tower and podium form; therefore, in that respect the proposed development represented no change from the approved development;
    2. (b)
      under s 82 of the Planning Act that meant that assessment against OO3(e)(i)(B) of the LRURA was irrelevant; and
    3. (c)
      even if it was capable of being relevant, given there was no change in the tower and podium nature of the development, there was no basis to find that non-compliance with OO3(e)(i)(B) warranted refusal.
  2. [78]
    In my view, there are considerable difficulties confronting the grant of leave to pursue this ground.
  3. [79]
    First, Upan’s position before the P&E Court was that compliance with OO3(e)(i)(B) was important.  It listed that provision in the agreed list of issues document that set the points of dispute for determination by the P&E Court.
  4. [80]
    Secondly, Upan engaged with OO3(e)(i)(B) in an attempt to persuade the P&E Court that there was either compliance with it, or that any non-compliance ought not tell against approval of the proposed development.[66]  The thrust of Upan’s submissions were that the proposed development did satisfy the function or purpose of OO3(e)(i)(B).
  5. [81]
    Thirdly, no part of Upan’s case before the P&E Court was that OO3(e)(i)(B) was irrelevant, or that the learned primary judge would be in error to assess the application by reference to it.
  6. [82]
    Fourthly, other than upon this contention Upan has not sought to challenge the findings that the proposed development did not comply with the City Plan, and in particular OO3(e)(i)(B) concerning a clearly defined podium and tower form.  The central argument advanced on the proposed appeal is as to the failure of the learned primary judge to allow Upan to respond to that finding by proposing a condition.  Thus Ground 4 relies on a new point not raised at any stage of the proceedings below.
  7. [83]
    Fifthly, authority suggests that Upan should be bound to its conduct of the case below, unless there are exceptional circumstances.[67]  Changing tack to now suggest that a question that was at the centre of the contest was, in truth, irrelevant, does not recommend itself as such a circumstance.
  8. [84]
    Sixthly, it is true to say that neither the approved development nor the proposed development had a podium and tower form.  If one focussed only on the aspect of a podium and tower design, then Upan is right to say that there was no change between the approved and proposed developments.  However, the City Plan provided for either a podium and tower form[68] or variable site cover which comprehended a stepped building design.[69]  The approved development had a stepped building form, which might explain why the Council gave its approval.  The proposed development offered neither.  Upan’s approach seems unnecessarily narrow in that respect.
  9. [85]
    Seventhly, Upan did not seek to agitate this point in the period after delivery of Reasons #1.  It is now submitted that the trigger for the point is the finding by his Honour, contrary to the evidence, that the approved development did not have a podium and tower form.  But that was evident from when those reasons were published.  Yet, nothing was done to seek to have the P&E Court consider any implications of that finding.
  10. [86]
    Further, the change application was not, on any view, a minor change.  Therefor s 82(2) of the Planning Act had application.  It relevantly provides:[70]

(2) For administering the change application, and assessing and deciding the change application in the context of the development approval, the relevant provisions apply

  1. (a)
    as if
  1. (i)
    the responsible entity were the assessment manager; and
  1. (ii)
    the change application were the original development application, with the changes included, but was made when the change application was made; and
  1. (b)
    with necessary changes.”
  1. [87]
    On its face s 82(2) requires the P&E Court (as assessment manager) to approach the change application (where it is not for a minor change, as was the case here) on the basis that the relevant Planning Act provisions apply as if the change application were the original development application, with the changes included.  Just how that provision might have affected the considerations now raised by Upan on this ground was not something raised before the learned primary judge, and that means this Court does not have the benefit of the P&E Court’s decision on that issue.
  2. [88]
    The foregoing matters make Ground 4 unsuitable as a basis for the grant of leave to appeal to this Court.  I would not grant leave to appeal in respect of ground 4.

Conclusion

  1. [89]
    For the reasons expressed above it is my view that the proposed appeal would fail.  I would therefore refuse the grant of leave to appeal.
  2. [90]
    I propose the following orders:
  1. Application for leave to appeal refused.
  1. The applicant pay the respondent’s costs of and incidental to the application.
  1. [91]
    DAVIS J:  I agree with the reasons of Morrison JA and the orders which his Honour proposes.

Footnotes

[1]  Exhibit 5.

[2]  To which I shall refer as the P&E Court.

[3] Upan Company Pty Ltd v Gold Coast City Council [2021] QPEC 37.  I shall refer to the reasons in that decision as Reasons #1.

[4]  Reasons #1 at [76].

[5] Upan Company Pty Ltd v Gold Coast City Council (No 2) [2021] QPEC 50.  I shall refer to those reasons as Reasons #2.

[6]  Ground 3 was not pressed.

[7]  To which I shall refer as the LRURA.

[8]  Reasons #1 at [6].

[9]  Examples omitted.

[10]  Reasons #1 at [25].

[11]  Reasons #1 at [41].

[12]  Reasons #1 at [42].

[13]  Reasons #1 at [52].

[14]  Reasons #1 at [54].

[15]  Reasons #1 at [56].

[16]  Reasons #1 at [59].

[17]  Reasons #1 at [63].

[18]  Reasons #1 at [65].

[19]  Reasons #1 at [66].

[20]  Reasons #1 at [71].

[21]  Reasons #1 at [72].

[22]  Reasons #1 at [73].

[23]  Reasons #1 at [74] – [76].

[24]  Reasons #1 at[19].

[25]  Reasons #1 at [65].

[26]  Reasons #1 at [42].

[27]  Reasons #1 at [54].

[28]  Reasons #1 at [56].

[29]  Reasons #1 at [56]-[57].

[30]  Reasons #1 at [59].

[31]  Reasons #1 at [63].

[32]  Reasons #1 at [64].

[33]  Reasons #1 at [65].

[34]  Reasons #1 at [73] and [74].

[35]  Reasons #1 at [75].

[36]  Reasons #2 at [3].

[37]  Reasons #1 at [76].

[38]  Appeal transcript T 1-50 lines 23-40, and T 1-54 line 41.

[39]  AB 1478 lines 18-27.

[40]  AB 1479.

[41]  AB 1481 lines 12-16.

[42]  AB 1481 line 31.

[43]  AB 1481 line 33.

[44]  AB 1484 line 5.

[45]  AB 1484 lines 23-37.

[46]  AB 1485 lines 19-29.

[47]  AB 1485 line 31.

[48]  AB 1485 lines 37-40.

[49]  AB 1486 line 4.

[50]  AB 1486 lines 7-13.

[51]  AB 1486 lines 17-19.

[52]  AB 1486 line 29.

[53]  AB 1487 line 8.

[54]  AB 1487 lines 38-40.

[55]  AB 1490 lines 28-34.

[56]  AB 1492 line 15.

[57]  AB 1493 lines 28-34.

[58]  Reasons #2 at [3].

[59]  Reasons #2 at [5].

[60]  Reasons #2 at [6].

[61]  [2016] QPEC 14; [2016] QPELR 378.

[62]  [2011] QPEC 132; [2012] QPELR 168.

[63]  Reasons #2 at [12].

[64]  Appeal transcript T 1-50 line 15.

[65]  Applicant’s Outline, paragraphs 25-31.

[66]  Upan’s written submissions, paragraphs 35-42, AB 106-109.

[67] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; [1985] HCA 28.

[68]  Overall Outcome 3(e)(i)(B) of the LRURA.

[69]  Overall Outcome 2(d)(v) of the MDRZ Code.

[70]  Emphasis added.

Close

Editorial Notes

  • Published Case Name:

    Upan Company Pty Ltd v Gold Coast City Council

  • Shortened Case Name:

    Upan Company Pty Ltd v Gold Coast City Council

  • MNC:

    [2022] QCA 75

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Davis J

  • Date:

    10 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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