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  4. McEnearney v Council of the City of Gold Coast - [2024] QCA 246

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McEnearney v Council of the City of Gold Coast[2024] QCA 246

McEnearney v Council of the City of Gold Coast[2024] QCA 246

SUPREME COURT OF QUEENSLAND

CITATION:

McEnearney v Council of the City of Gold Coast [2024] QCA 246

PARTIES:

SUE-MAREE McENEARNEY

(applicant)

v

COUNCIL OF THE CITY OF GOLD COAST

(first respondent)

RIDGE PROPERTIES PTY LTD

ACN 143 878 915

(second respondent)

FILE NO/S:

Appeal No 10214 of 2024

P & E Appeal No 222 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Southport – [2024] QPEC 32 (McDonnell DCJ)

DELIVERED ON:

6 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2024

JUDGES:

Bond and Flanagan and Boddice JJA

ORDER:

Application for leave to appeal is refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant seeks leave to appeal against a decision of the Planning and Environment Court, dismissing her submitter appeal against the respondent council’s approval of a development application by the second respondent regarding a change to its previous development approval – whether, as contended by the applicant, the Planning and Environment Court erred in dismissing her appeal – whether leave to appeal should be granted

ENVIRONMENT AND PLANNING – PLANNING – PLANNING CONTROLS – QUEENSLAND – GENERALLY – LOCAL PLANNING INSTRUMENT – where the applicant seeks leave to appeal against a decision of the Planning and Environment Court, dismissing her submitter appeal against the respondent council’s approval of a development application by the second respondent regarding a change to its previous development approval – where the second respondent’s previous development approval was not compliant with the current assessment benchmarks – where the new development application by the second respondent, regarding a change to the previous development approval, was also non-compliant with the current assessment benchmarks – where the applicant contends that the primary judge erred by paying too much regard to the fact that the previous development approval was already non-compliant with the current assessment benchmarks – where s 82(4) of the Planning Act 2016 (Qld) provides that, in deciding a development application, the assessment benchmarks apply “only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval” – whether the primary judge erred in finding that even though the new development application was non‑compliant with the assessment benchmarks, in light of the previous non-compliant development approval, the new development application should still be approved

ENVIRONMENT AND PLANNING – PLANNING – PLANNING CONTROLS – QUEENSLAND – GENERALLY – LOCAL PLANNING INSTRUMENT – where the applicant seeks leave to appeal against a decision of the Planning and Environment Court, dismissing her submitter appeal against the respondent council’s approval of a development application by the second respondent regarding a change to its previous development approval – where the second respondent’s previous development approval was not compliant with the current assessment benchmarks – where the applicant contends that the primary judge erred by failing to give effect to community expectations as expressed in objections, and by allowing the existence of the previous development approval to “displace” the community expectations as expressed in the objections and the current assessment benchmarks – whether the primary judge erred in taking the previous development approval into account when considering the issue of community expectations

Planning Act 2016 (Qld), s 45(5)(a)(ii), s 60(3), s 82(2), s 82(4)

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

Planning Regulation 2017 (Qld), s 31(f)

Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257, applied

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

Catterall v Moreton Bay Regional Council [2021] QPELR 850; [2020] QPEC 52, considered

HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230; [1992] QCA 384, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, considered

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1073; [2022] QPEC 31, cited

Upan Co Pty Ltd v Gold Coast City Council [2023] QPELR 1285; [2022] QCA 75, considered

COUNSEL:

J M Horton KC, with H Stephanos, for the applicant

R N Traves KC, with J E Bowness, for the first respondent

C L Hughes KC, with L I Walker, for the second respondent

SOLICITORS:

Anderssen Lawyers for the applicant

Corrs Chambers Westgarth for the first respondent

RedeMont for the second respondent

  1. [1]
    BOND JA:  I agree with the reasons for judgment of Flanagan JA and the order proposed by his Honour.
  1. [2]
    FLANAGAN JA:  On 4 April 2014, the Council of the City of Gold Coast (First Respondent) granted to Ridge Properties Pty Ltd (Second Respondent) a development permit for a material change of use for a mixed-use development for a site located at 3 Rutledge Street, 2-18 Marine Parade and 119 Musgrave Street, Coolangatta (Development Approval).  The Development Approval was granted pursuant to the Gold Coast Planning Scheme 2003 (Qld).
  2. [3]
    The learned primary judge described the Development Approval as follows:
  1. “[2]
    The original development permit for a material change of use to facilitate a redevelopment of the Site was granted on 4 April 2014. That approved a 15 and 10 storey mixed-use development comprising Apartments, Resort hotel, Tavern, a Shopping centre and Service industry. That approval has been changed a number of times by way of minor changes and other changes.
  1. [3]
    The Development Approval is for a Material Change of Use for Multiple dwellings, Short-term accommodation, Resort complex, Food and drink outlet, Shop, Office, Health care services, Service industry and Hotel. It is proposed in 4 buildings over 4 stages, being:
  1. Building 1 (16 storeys) (Stage 1) comprising multiple dwellings and the hotel use;
  1. Building 2 (10 storeys) (Stage 2) comprising multiple dwellings and retail uses;
  1. Building 3 (4 storeys) (Stage 3) comprising a resort complex and retail uses; and
  1. Building 4 (3 storeys) (Stage 4) comprising multiple dwellings.”
  1. [4]
    On 2 February 2016, the Gold Coast City Plan commenced.
  2. [5]
    On 17 March 2022, the Second Respondent applied to the First Respondent to change the Development Approval for an “other” (i.e. a non-minor) change (Change Application).  These proposed changes were summarised by the primary judge as follows:[1]
  1. “(a)
    the removal of Building 4 (formerly intended to be Stage 4);
  1. changes to Building 2, to:
  1. its architectural design;
  1. increase its height from 10 storeys to 14 storeys, an increase of 11.2m; and
  1. provide an additional 7 dwelling units;
  1. changes to Building 3, to:
  1. its architectural design;
  1. increase its height from 4 storeys to 7 storeys, an increase of approximately 5.1m; and
  1. provide an additional 14 hotel suites;
  1. the consolidation of Stages 2 and 3 so that the development will proceed as two stages, with Stage 1, comprising Building 1, completed;
  1. the introduction of an Indoor sport and recreation use;
  1. an increase in the retail/commercial gross floor area (gfa) of the development from 2947m² to 4360m²;
  1. internal amendments to the ground floor layout, tenancies and laneway; and
  1. an increase in the amount of car parking provided from 540 to 621.”
  1. [6]
    On 15 June 2023, the First Respondent resolved to approve the Change Application.  The Applicant filed a submitter appeal against the First Respondent’s decision to approve the Change Application.
  2. [7]
    On 21 June 2024, the Planning and Environment Court of Queensland (P&E Court) dismissed the Applicant’s appeal and confirmed the decision of the First Respondent.
  3. [8]
    By application filed on 2 August 2024, the Applicant applies to this Court for a grant of leave to appeal the decision and orders of the P&E Court.  The application is made pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld), which provides:
  1. “(1)
    A party to a P&E Court proceeding may appeal a decision in the proceeding, but only on the ground of error or mistake in law or jurisdictional error.
  1. However, the appeal may be made only with the leave of the Court of Appeal.”
  1. [9]
    For leave to be granted, the Applicant must not only demonstrate an arguable error or mistake in law, but must also establish that the error is material in that it could have materially affected the decision of the P&E Court.[2]
  2. [10]
    If granted leave, the Applicant seeks to raise four grounds of appeal:[3]
  1. The primary judge erred in treating an existing development approval (for building heights not anticipated) by the Planning Scheme to offer a means for further exacerbation of such heights.
  1. The primary judge erred in:
  1. not giving effect to s 3.3.2.1(10) of the Strategic Framework as placing a strict control as to maximum building height;
  1. treating the assessment of the proposed building height as governed by s 3.3.2.1(9) (and without finding each and every outcome of that provision was satisfied).
  1. The primary judge erred in permitting the achievement of building heights by incremental approval and change which could not lawfully have been achieved directly.
  1. The primary judge erred in failing to give effect to community expectations as expressed in objections by reason of the development approval, such approval affording no proper basis in law to render unreasonable the expectations the community has expressed.
  1. [11]
    For the reasons which follow, the application for leave to appeal should be refused with costs.

The Reasons

  1. [12]
    The learned primary judge noted that the appeal was to be determined under the Planning Act 2016 (Qld) and the Planning and Environment Court Act 2016 (Qld).  The appeal proceeded by way of rehearing, with the Second Respondent bearing the onus.
  2. [13]
    Her Honour identified the assessment and decision-making framework for the Change Application as that set out in s 82(2) and s 82(4) of the Planning Act.  Section 82(2) provides:
  1. “82
    Assessing and deciding change applications for other changes

…

  1. For administering the change application, and assessing and deciding the change application in the context of the development approval, the relevant provisions apply—
  1. as if—
  1. the responsible entity were the assessment manager; and
  1. the change application were the original development application, with the changes included, but was made when the change application was made; and
  1. with necessary changes.”

Section 82(4) provides:

  1. “(4)
    To remove any doubt, it is declared that the following matters apply, only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval—
  1. the assessment benchmarks;

…

  1. if the development to which the change application relates requires impact assessment—any matters the assessment must or may be carried out against or having regard to under section 45(5)(a)(ii) or (b).”
  1. [14]
    Before her Honour, the Applicant submitted that the assessment regime did not make the existing Development Approval a benchmark, and that the prior decision to approve buildings over three storeys in height on the subject site did not justify approving the Change Application.  The Applicant submitted that the Change Application had to be assessed against the assessment benchmarks relevant to a 14‑storey building in that location.
  2. [15]
    Her Honour rejected these submissions, primarily on the basis that they ignored the preceding words in s 82(4) that the assessment benchmarks apply “only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval”.[4]  In support of this construction, her Honour referred to the decision of the P&E Court in Catterall v Moreton Bay Regional Council,[5] and the observations made by this Court in Upan Company Pty Ltd v Gold Coast City Council:[6]

“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.  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.”

  1. [16]
    Her Honour observed that the assessment and decision-making process was to be approached, subject to contextual changes, consistently with the decisions of this Court, including Abeleda v Brisbane City Council.[7]
  2. [17]
    Her Honour dealt with the issue of height at Reasons, [51]–[65].  Her Honour noted that the proposed height of the buildings, which was non-compliant with the three‑storey (15 metre) limit specified on the Building height overlay map, was a significant issue for the Applicant.  Her Honour noted that ordinarily, such a non-compliance would warrant significant weight in the exercise of the court’s discretion about whether to approve a development application.  By reference to Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast,[8] her Honour considered that the provisions of the Gold Coast City Plan should not be applied in an inflexible or unyielding way in circumstances where the existing built form reflected neither the planned building height pattern nor the desired future character of the area depicted on the overlay map, and where the lawful use of the land far exceeded the planned maximum building height.  This included s 3.3.2.1(10), which provides that increases in building height beyond 50% above the building height overlay map are not anticipated in urban neighbourhoods.
  3. [18]
    Her Honour identified a number of relevant matters in considering the Change Application’s non-compliance with s 3.3.2.1(10).  These matters included that Building 1, at 16 storeys, was already non-compliant and had influenced the character of the site and the locality.  Her Honour observed that to ignore Building 1 would be to ignore a factor which influenced the current character of the site.[9]  Another consideration was that the existing Development Approval already authorised development which far exceeded that specified on the Building height overlay map.  Her Honour further noted that the appeal concerned a Change Application, which was required to be assessed and decided “in the context of the development approval”.[10]  Her Honour observed:[11]

“The assessment benchmarks and other matters pursuant to s 45(5) of the Planning Act apply to this assessment ‘only to the extent the matters are relevant to assessing and deciding the change applications in the context of the development approval’.”

Her Honour considered that the existing and approved built form on the site was highly relevant to the Court’s assessment, as both far exceeded the planned maximum building height.[12]  Her Honour’s consideration of “built form” in the Change Application was to be assessed having regard to how much the existing building had already exceeded the planned maximum building height.

  1. [19]
    Having identified these relevant considerations, her Honour concluded that although the proposal was non-compliant with the Building height overlay map, this consideration should not be determinative of the appeal.[13]
  2. [20]
    By reference to the Scheme provisions, in particular s 3.4.1(8) of the Strategic framework, her Honour considered that those provisions regarding neighbourhood centres encouraged more intensive development.  Section 3.4.1(8) of the Strategic framework provides:

“Varied building height and form throughout the network of centres reinforces urban legibility and centre identity, creates a sense of place and supports housing choice and affordability.

…

In neighbourhood centres, building form is more intensive than surrounding neighbourhood areas, but provides a sensitive transition to nearby residential areas. Building height complements the surrounding neighbourhood.”[14]

  1. [21]
    At Reasons [64], her Honour set out the Strategic framework height uplift provisions, being ss 3.3.2.1(8), (9) and (10):
  1. “[64]
    The Strategic framework height uplift provisions, ss 3.3.2.1(8), (9) and (10), provide as follows:
  1. ‘(8)
    The Building height overlay map shows the building height pattern and desired future appearance for local areas within urban neighbourhoods. This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high-rise areas.
  1. Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:
  1. a reinforced local identity and sense of place;
  1. a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
  1. a varied, ordered and interesting local skyline;
  1. an excellent standard of appearance of the built form and street edge;
  1. housing choice and affordability;
  1. protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;
  1. deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and
  1. the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities.

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

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

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

  1. [22]
    Her Honour was satisfied that the proposal in the Change Application met the qualitative objectives of s 3.3.2.1(9) of the Strategic framework.
  2. [23]
    Having considered issues of character, visual amenity, floor plate size and gfa (i.e. gross floor area), density and intensity, communal open space, architectural merit, built form, scale and character, as well as amenity and need, her Honour concluded that the Change Application should be approved.  In this respect, her Honour referred to the broad discretion under s 60(3) of the Planning Act and was ultimately satisfied that the benefits of the proposal outweighed any adverse impact arising from the proposal’s non-compliance as to height.[15]
  3. [24]
    Her Honour reasoned as follows:[16]
  1. “[133]
    The Scheme and the Development Approval inform expectations as to building form, land use, character and amenity. The proposal does not find support in the Building height overlay map, but this should not be applied inflexibly in the present circumstances. The Scheme supports more intense development on the Site than other land included in the Urban neighbourhoods designation. The Strategic framework and the Neighbourhood centre zone code support a building height which complements the surrounding neighbourhood. The height of the proposal is consistent with the height of other development in the locality, including the Kirra “spine” of high-rise buildings along Kirra Beach. The change will support the planned intent for the Site as part of a distinct neighbourhood centre and will complement the existing and planned character of Kirra. Important elements of local character, including Kirra Hill and the Kirra Beach Pavilion will continue to be protected. The retail components of the use will be convenient for the day to day needs of the immediate neighbourhood. The evidence demonstrates that there will not be unacceptable impacts on amenity. The changes result in an improved architectural outcome.”

Grounds 1, 2 and 3

  1. [25]
    Grounds 1 to 3 may be dealt with together.  As acknowledged by the Applicant:

“The error manifests itself in different ways, but with the same main basic error:  a failure to construe and apply the strict control on building height.”[17]

  1. [26]
    The Applicant submits that the primary judge erred by excusing the exceedance in height by reference to the Development Approval granted under the Gold Coast Planning Scheme 2003 (Qld).  According to the Applicant, the effect of this was to allow what was presented as an incremental Development Approval to circumvent strict building height controls.[18]
  2. [27]
    The Applicant does not dispute that in assessing the Change Application the primary judge was required to have regard to the Development Approval.  This is the effect of s 82(4)(d) and s 45(5)(a)(ii).  Section 31(f) of the Planning Regulation 2017 (Qld) provides that for s 45(5)(a)(ii) of the Planning Act, the impact assessment must be carried out having regard to any development approval for, and any lawful use of, the premises or adjacent premises.  The Applicant’s submission is that while her Honour had to have regard to the Development Approval, it could not in itself “[afford] positive support for approving more height exceedances”.[19]  This resulted in the primary judge treating the existing Development Approval as a basis for exacerbating the building height, which “far exceeded” those contemplated by the Building height overlay map.[20]  Her Honour’s approach, according to the Applicant, also resulted in a failure to properly assess the proposed building heights against the Strategic framework provisions relating to building height.
  3. [28]
    The essence of the Applicant’s complaint is that the height restrictions “anticipated” by s 3.3.2.1(10) “demanded significant weight”.[21]  The asserted error is that in dealing with s 3.3.2.1(10), the primary judge gave a matter of great weight, little weight.[22]  The authority cited for this asserted error is the following statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[23]

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.  This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.”

(citations omitted)

The applicant therefore asserts that the decision to grant the Change Application was so unreasonable that no reasonable person could have made it.  The applicant has fallen well short of establishing such an error for two primary reasons.

  1. [29]
    First, the Change Application was to be assessed and decided in accordance with s 82 of the Planning Act.  Section 82 falls within Chapter 3, Division 2 of the Planning Act.  Division 2 deals with changing development approvals.  Subdivision 2 of Division 2 concerns changing a development approval, other than the currency period, after all appeal periods in relation to the approval end.  It is in this context that both s 82(2) and s 82(4) refer to assessing and deciding the change application “in the context of the development approval”.
  2. [30]
    The application of s 82(2) to the Change Application was correctly identified by the primary judge as follows:[24]

“To administer the Change Application as if it were the original development application inclusive of the changes proposed requires the impact assessment process to be applied, with necessary changes.”

  1. [31]
    Section 82(4) declares which matters apply in deciding a change application in the context of a development approval.  For present purposes, these matters included the assessment benchmarks, including s 3.3.2.1(10) of the Strategic framework and, given the Change Application required impact assessment, those matters in s 45(5)(a)(ii) or (b).  As discussed at [27] above, those matters included any development approval for, and any lawful use of, the premises or adjacent premises.[25]
  2. [32]
    The words “only to the extent the matters are relevant to assessing and deciding the change application” in s 82(4) recognise that matters relevant to an impact assessable change application may differ.  For example, there may be change applications where the proposal has no relevant impact on amenity, traffic or acoustics.  The words “to the extent relevant” recognise that the weight to be afforded to any particular factor in a proposed change application may vary.
  3. [33]
    Such a construction accords with the observations of Williamson KC DCJ in Catterall v Moreton Bay Regional Council:[26]
  1. “[41]
    It was uncontroversial as between the appellants and co‑respondent that s 82 of the [Planning Act] conferred a broad discretion on the responsible entity (or this court on appeal) to decide the change application as if it were impact assessable.  In this regard, I was referred to Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; [2019] QPEC 16 (Ashvan Investments) at [35]–[86] and the discussion to similar effect in Murphy v Moreton Bay Regional Council [2019] QPEC 46 (Murphy).
  1. [42]
    I agree the discretion to decide the change application is broad and, subject to contextual changes, is guided by, inter alia, relevant principles discussed in Ashvan Investments and Murphy.  An important contextual change is identified in s 82(2) and (4) of the [Planning Act].  Both of these provisions include the phrase ‘in the context of the development approval’.  The purpose of this phrase is to make clear that the assessment and decision making process occurs in the context that the application is one to change an existing development approval, as distinct from a fresh development application.  In practical terms, this means the assessment and decision making process for a change application under s 82 of the [Planning Act] is founded upon, but not limited to:
  1. an identification of the change/s proposed to the development approval;
  1. an identification of the planning issues, be they positive or negative, arising for consideration as a consequence of the change/s proposed to the development approval; and
  1. an assessment of the planning issues arising as a consequence of the change/s to the development approval, having regard to the requirements of the ‘relevant provisions’, and assessment benchmarks, to the extent they are relevant.”

(citations omitted)

  1. [34]
    Williamson KC DCJ noted in Catterall that such a construction was confirmed by the explanatory note to the Planning Bill 2015 (Qld), which relevantly states:[27]

“The intent of the reference to assessing and deciding the change application ‘in the context of the development approval’ is that the proposed change should not be considered in isolation.  Neither however is the entirety of the development including the change re-assessed.  Instead, it is intended the change be assessed with reference to the context of the development approval already existing for the development.

For example, if there is a development approval for a 10 storey building, and an applicant seeks to change the approval to add a further 2 storeys, the additional 2 storeys is intended to be assessed in the context of a 10 storey building, against the assessment benchmarks relevant to a 12 storey building in that locality.

To this end, the clause clarifies that only the matters for assessment… that are relevant to assessing the change in the context of the original approval are relevant for the assessment of the change application.

For example, if a development approves development for several different purposes (such as a shopping centre, cinema and service station), and the change application seeks only to change the development for the purpose of the cinema, it is unlikely that the assessment benchmarks relevant to the other purposes would be relevant in assessing the change application.”

  1. [35]
    In the present case, the existing Development Approval was, as correctly submitted by the First Respondent, subject to rights of submission and appeal and to impact assessment.[28]  Importantly, Building 1 – which was 16 storeys – had already been built by the time of the Change Application.  Her Honour noted that the character of the local area had changed by reason of the construction of Building 1.[29]  The weight to be afforded s 3.3.2.1(10), in the context of the existing Development Approval, was a matter for the primary judge.
  2. [36]
    Secondly, the Applicant’s submission that s 3.3.2.1(10) should be construed as imposing a “strict building height control” is contrary to authority.  In Abeleda, this Court quoted with approval the decision of Williamson KC DCJ in Ashvan Investments Units Trust v Brisbane City Council, wherein his Honour observed:[30]
  1. “[53]
    An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court.  That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls.  The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the [Planning Act].  Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question.  That question is no longer answered by a provision such as s 326(1)(b) of the [Sustainable Planning Act 2009 (Qld)].  It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the [Planning Act].  It should not be assumed that non‑compliance with an assessment benchmark automatically warrants refusal.  This must be established, just as the non‑compliance must itself be established.”
  1. [37]
    As observed by Mullins JA in Abeleda:[31]

“The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) [Sustainable Planning Act], it is no longer appropriate to refer in terms of one aspect of the public interest ‘overriding’ another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.  The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application.  The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision-making in a way that advances the purpose of the Act.”

  1. [38]
    As the primary judge noted, the discretion under s 60(3) of the Planning Act is broadly expressed.  It was a matter for her Honour in assessing and deciding the Change Application, to determine how, and in what way, non-compliance with s 3.3.2.1(10) informed the exercise of this wide discretion.  In exercising this discretion, and as outlined above, her Honour had regard to numerous considerations.  Her Honour was ultimately satisfied that the proposal met the qualitative objectives of s 3.3.2.1(9) of the Strategic framework and promoted the intended character of the zone and did not have any unacceptable impacts on the amenity of adjoining uses.[32]  It may be accepted that her Honour did not strictly engage with s 3.3.2.1(9) of the Strategic framework.  There was, however, no requirement for her Honour to assess the proposal against each limb of s 3.3.2.1(9) as if it applied to the proposal.[33]  Rather, her Honour assessed the Change Application on its merits, and in the context of an existing Development Approval in which a 16‑storey building had already been constructed on the site.
  2. [39]
    In oral submissions, the Applicant further submitted that the primary judge should not have given s 3.3.2.1(10) less than significant weight by reference to s 3.4.1(8) of the Strategic framework.[34]  Section 3.4.1(8) is set out at [20] above.  The Applicant submitted that s 3.4.1(8) draws a distinction between “building form” and “building height”.  In neighbourhood centres, it is “building form” which is identified as “more intensive”.  “Building height”, on the other hand, “complements the surrounding neighbourhood”.  According to the Applicant, it follows that in observing that “the Scheme provisions regarding neighbourhood centres encourage more intensive development provided it sensitively transitions to surrounding residential areas”,[35] her Honour failed to distinguish between “building form” and “building height”.
  3. [40]
    This submission should not be accepted.  It fails to read Reasons [60] in context.  Her Honour’s consideration of s 3.4.1(8) was in the wider context of assessing and deciding the Change Application.  This is apparent from the preceding discussion at Reasons [59]:

“Scheme provisions indicate the Site may accommodate a more intense development outcome than other land included in the Urban neighbourhoods designation, if other criteria are met.  The Site is included in the Neighbourhood centre zone.  While a ‘neighbourhood centre’ may form part of an ‘urban neighbourhood’, there are other, finer grained provisions which apply to the Site which envisage a greater level of intensity because the Site is within a particular locality and designated as a neighbourhood centre.  The Strategic framework provisions dealing with neighbourhood centres, and the Neighbourhood centre zone code, contain more specific provisions relating to land use, intensity, character and amenity expectations for the Site than the Urban neighbourhoods element.  The following matters indicate a more intense land use and built form is envisaged on the Site.”

  1. [41]
    When this paragraph is read with Reasons [60], her Honour was simply observing that as the site was included in the Neighbourhood centre zone, the relevant scheme provisions accommodated a “more intense development”.[36]  Further, in the conclusion at Reasons [133], her Honour correctly applied the language of s 3.4.1(8), observing:[37]

“The Scheme supports more intense development on the Site than other land included in the Urban neighbourhoods designation.  The Strategic framework and the Neighbourhood centre zone code support a building height which complements the surrounding neighbourhood.”

(emphasis added)

The emphasised words mirror the language of s 3.4.1(8) in relation to building height.

Ground 4: Failing to give effect community expectations as expressed in objections

  1. [42]
    The Applicant submits that the primary judge erred by failing to give effect to community expectations as expressed in objections.  Her Honour noted that in relation to the Change Application, there were 39 properly made submissions.[38]
  2. [43]
    At Reasons [40], her Honour observed as follows:

“The Scheme and the Development Approval for the Site inform the community’s reasonable expectations as to the development that may occur on the Site as well as the character of the Site and its contribution to the character of the locality.  The statement and properly made submissions give insufficient weight to the Development Approval.  For this reason, the statement and submissions do not establish a reasonable expectation about the nature of the built form on the Site against which the Change Application should be considered.  However, in the course of dealing with the issues in dispute, I have been conscious of the submitters’ and [Applicant]’s concerns, particularly where they are associated with the changes.”

  1. [44]
    In this passage, according to the Applicant, her Honour elevated the Development Approval to a status which it did not warrant.  Her Honour further erred in allowing the Development Approval to displace “the expectations expressed so clearly – and more recently – in s 3.3.2.1(10)”.[39]  Accordingly, the primary judge’s assessment of the reasonableness of the community expectations as to height, as expressed in their submissions, miscarried.[40]
  2. [45]
    The Applicant’s submissions cannot be accepted.  As correctly submitted by the Second Respondent, it has long been recognised in decisions of the P&E Court and this Court, that the reasonable expectations for the community are informed not only by the adopted planning controls, but also by what exists on the ground.[41]
  3. [46]
    What was “on the ground” in the present case was the already developed 16‑storey Building 1, comprising multiple dwellings and the hotel use; a high-rise development located diagonally opposite the site across Miles Street; and a medium‑rise development located across Rutledge Street.  As correctly submitted by the Second Respondent:

“It is not realistic to suggest that members of the community can form reasonable expectations as to the likely development of land by focusing on some only of the provisions of planning documents in a vacuum, disregarding other provisions, prior planning decisions of the local authority, current approvals and actual built form that exists.”[42]

  1. [47]
    Further, in assessing the Change Application, her Honour was required by s 82(4)(d) and s 45(5)(a)(ii) of the Planning Act, as well as s 31(f) of the Planning Regulation, to take the existing Development Approval into account, along with the lawful use of adjacent premises.  Such considerations cannot be irrelevant in assessing community expectations.
  2. [48]
    No arguable error of law has been established.

Disposition

  1. [49]
    The application for leave to appeal should be refused with costs.
  1. [50]
    BODDICE JA:  I agree with Flanagan JA.

Footnotes

[1]McEnearney v Council of City of Gold Coast [2024] QPEC 32, (“Reasons”) at [6].

[2]HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 at 237; Savage v Cairns Regional Council (2016) 214 LGERA 192 at 95 [8].

[3]The draft Notice of Appeal contains five grounds but the Applicant does not press Ground 5.

[4]Reasons, [27].

[5][2021] QPELR 850.

[6][2023] QPELR 1285, [20].

[7](2020) 6 QR 441.

[8][2023] QPELR 1073, [136]–[137].

[9]Reasons, [53].

[10]Planning Act, s 82(2).

[11]Reasons, [57].

[12]Reasons, [58].

[13]Reasons, [58].

[14]Reasons, [60].

[15]Reasons, [135].

[16]Reasons, [133].

[17]Applicant’s Outline of Argument, para 2.

[18]Applicant’s Outline of Argument, paras 14 and 15.

[19]Applicant’s Outline of Argument, para 19.

[20]Reasons, [54]–[58]; Applicant’s Outline of Argument, para 19(a).

[21]Applicant’s Oral Outline, para 4.

[22]Applicant’s Oral Outline, para 4.

[23](1986) 162 CLR 24 at 41.

[24]Reasons, [24].

[25]Planning Regulation 2017 (Qld), s 31(f).

[26][2021] QPELR 850.

[27]Catterall, [47].

[28]First Respondent’s Outline of Argument, para 18.

[29]Reasons, [68].

[30][2019] QPELR 793.

[31](2020) 6 QR 441, [42]–[43].

[32]Reasons, [65].

[33]First Respondent’s Outline of Argument, para 29(e).

[34]Reasons, [60].

[35]Reasons, [60].

[36]Reasons, [59].

[37]Reasons, [133].

[38]Reasons, [4].

[39]Applicant’s Outline of Argument, para 37.

[40]Applicant’s Outline of Argument, para 37.

[41]Second Respondent’s Outline of Argument, para 38 citing Clarry v Brisbane City Council [2024] QCA 39, [37] per Mullins P (with whom Bond and Flanagan JJA agreed); The Purcell Family v Gold Coast City Council [2004] QPELR 521, [20] and [23]; K Page Main Beach Pty Ltd v Gold Coast City Council (2011) 180 LERA 278, [54]–[56]; Casinco Pty Ltd v Council of City of Gold Coast [2024] QPELR 184, [43].

[42]Second Respondent’s Outline of Argument, para 40.

Close

Editorial Notes

  • Published Case Name:

    McEnearney v Council of the City of Gold Coast

  • Shortened Case Name:

    McEnearney v Council of the City of Gold Coast

  • MNC:

    [2024] QCA 246

  • Court:

    QCA

  • Judge(s):

    Bond JA, Flanagan JA, Boddice JA

  • Date:

    06 Dec 2024

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QPEC 3221 Jun 2024Appeal against approval of change to development approval; appeal dismissed and decision confirmed: McDonnell DCJ.
Notice of Appeal FiledFile Number: CA 10214/2402 Aug 2024Application for leave to appeal filed.
Appeal Determined (QCA)[2024] QCA 24606 Dec 2024Application for leave to appeal refused: Flanagan JA (Bond and Boddice JJA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
4 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - (2020) 6 QR 441
Cite 3 - (2020) 6 QR 441
Cite 4 - (2020) 6 QR 441
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
2 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
3 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Cite 3 - [2019] QPELR 793
Casinco Pty Ltd v Council of City of Gold Coast [2024] QPELR 184
1 citation
Jump To
Cite 1 - [2024] QPELR 184
Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52
1 citation
Jump To
Cite 1 - [2020] QPEC 52
Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850
3 citations
Jump To
Cite 1 - [2021] QPELR 850
Cite 2 - [2021] QPELR 850
Cite 3 - [2021] QPELR 850
Clarry v Brisbane City Council [2024] QCA 39
1 citation
Jump To
Cite 1 - [2024] QCA 39
H A Bachrach P/L v Caboolture SC (1992) 80 LGERA 230
2 citations
Jump To
Cite 1 - (1992) 80 LGERA 230
Cite 2 - (1992) 80 LGERA 230
H A Bachrach Pty Ltd v The Council of the Shire of Caboolture [1992] QCA 384
1 citation
Jump To
Cite 1 - [1992] QCA 384
McEnearney v Council of the City of Gold Coast [2024] QPEC 32
2 citations
Jump To
Cite 1 - [2024] QPEC 32
Cite 2 - [2024] QPEC 32
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
1 citation
Jump To
Cite 1 - [1986] HCA 40
Murphy v Moreton Bay Regional Council [2019] QPEC 46
1 citation
Jump To
Cite 1 - [2019] QPEC 46
Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521
1 citation
Jump To
Cite 1 - (2004) QPELR 521
Savage v Cairns Regional Council (2016) 214 LGERA 192
1 citation
Jump To
Cite 1 - (2016) 214 LGERA 192
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31
1 citation
Jump To
Cite 1 - [2022] QPEC 31
Tricare (Bayview) Pty Ltd v Gold City Council [2023] QPELR 1073
2 citations
Jump To
Cite 1 - [2023] QPELR 1073
Cite 2 - [2023] QPELR 1073
Upan Co Pty Ltd v Gold Coast City Council [2023] QPELR 1285
2 citations
Jump To
Cite 1 - [2023] QPELR 1285
Cite 2 - [2023] QPELR 1285
Upan Company Pty Ltd v Gold Coast City Council [2022] QCA 75
1 citation
Jump To
Cite 1 - [2022] QCA 75

Cases Citing

Case NameFull CitationFrequency
Heidelberg Business Park Pty Ltd v Council of the City of Gold Coast [2025] QPEC 143 citations
ML Parkway Pty Ltd v Townsville City Council [2024] QPEC 532 citations
1

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