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Upan Company Pty Ltd v Gold Coast City Council[2021] QPEC 37

Upan Company Pty Ltd v Gold Coast City Council[2021] QPEC 37

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Upan Company Pty Ltd v Gold Coast City Council [2021] QPEC 37

PARTIES:

UPAN COMPANY PTY LTD (ACN 161 162 134) as trustee for the HAPSBERG FIXED TRUST

(appellant)

v

GOLD COAST CITY COUNCIL

(respondent)

FILE NO:

2009/2020

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

28 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 to 11 June 2021

JUDGE:

R S Jones DCJ

ORDERS:

I will publish my reasons but hear from the parties before making orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF OTHER CHANGE APPLICATION – where original application concerned stepped form high rise residential development – where appellant seeks approval of other change application for built form residential development – where proposed other change concerns reductions of storeys, increase of building height

WHERE PROPOSED OTHER CHANGE RAISED NUMEROUS ISSUES – whether proposed other change application complied with provisions of planning scheme concerning bulk, height, and form – density – character and streetscape – landscaping and deep planting – shadowing, privacy and views

              CONFLICT WITH PLANNING SCHEME – whether proposed development results in unacceptable impacts in respect of setbacks and site cover – landscaping, de-planting and streetscape outcome – loss of stepped design – building height transition – density – wind – whether proposed development can be appropriately conditioned to achieve compliance

LEGISLATION:

Planning Act 2016 (Qld) s 45, 60, 78, 82

Planning and Environment Court Act 2016 (Qld) s 43

CASES:

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

Brisbane City Council v YQ Property Pty Ltd [2020] 48 QLR; [2020] QCA 253

Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52

Mirani Solar Farm Pty Ltd v Mackay Regional Council [2018] QPELR 1158; [2018] QPEC 38

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4

COUNSEL:

Mr M Batty with Ms S Hedge for the appellant

Mr N Loos with Mr R Yuen for the respondent

SOLICITORS:

Mills Oakley Lawyers for the appellant

Norton Rose Fulbright for the respondent

Introduction

  1. [1]
    This proceeding is concerned with an appeal by Upan Company Pty Ltd (the appellant) against a decision of the Gold Coast City Council (the respondent) to refuse the appellant’s proposed change application in respect of a high rise residential development at Main Beach on the Gold Coast.  For the reasons set out below, I will publish my reasons but hear from the parties before making orders.

Background

  1. [2]
    The subject site is situated at 3547 Main Beach Parade, Main Beach and is more properly described as Lot 22 on SP277505.  The site comprises an area of approximately 1,261 m2, is of regular shape and, at its eastern boundary faces directly onto the beach.  Its western boundary fronts Main Beach Parade and its northern boundary fronts Woodroffe Avenue.  The only thing preventing absolute beach frontage to the site is a narrow esplanade and a reserve known as Hindle Reserve.
  2. [3]
    The site is situated within the Medium Density Residential Zone within the respondent’s planning scheme (the City Plan).  It is also subject to a number of codes under that scheme and, in particular, the Light Rail Urban Renewal Area Overlay code, the Medium Density Residential Zone code, the High Rise Accommodation Design code and the General Development Provisions code.[1]  Land on the western side of Main Beach Parade falls within the High Density Residential Zone.  However, somewhat surprisingly, under the Building height overlay map, both the high-rise and the medium density mapped areas fall within an area described as “HX – areas” where no building height limit is prescribed.[2]
  3. [4]
    Unsurprisingly, given its access to the beach, its unimpeded views to the east and its proximity to the well-known restaurant district at Tedder Avenue, the site provides an ideal opportunity for a premium residential development.  Consistent with that, the appellant lodged a development application and, on 22 October 2018, the respondent issued a decision notice approving that development which included a mix of two and three bedroom apartments over 20 storeys.  Notwithstanding that approval, the appellant sought approval of another form of residential development pursuant to s 78 of the Planning Act 2016.  While more will be said about the differences between the approved development and the proposed development below, it is convenient at this stage to set out a summary of those differences.  In the joint expert report of the town planners,[3] the changes are summarised as follows:
    1. (a)
      A reduction in the number of storeys from 20 storeys to 19 storeys, including a covered roof top recreation area;
    2. (b)
      An increase in the overall building height by 3.75m;
    3. (c)
      A reduction in the number of apartments, from 55 to 50;
    4. (d)
      An increase in the range of apartment types where initially two and three bedroom units were intended.  The type range has increased a wider range of apartments from two to five bedrooms are now proposed.  This results in an overall increase in the number of bedrooms and residential density from 133 bedrooms or one bedroom per 9.47m2of site area, to 145 bedrooms or one bedroom per 8.57m2 of the site area;
    5. (e)
      An increase in the number of resident car parking spaces from 107 to 113;
    6. (f)
      A change to the external façade treatments and design;
    7. (g)
      An alteration to the floor plans to create larger living and balcony areas;
    8. (h)
      A reduction in certain building setbacks, while increasing others, across different levels of the building;
    9. (i)
      An increase in the overall area of communal space of 203.48m2 (from 465.3m² to 668.78m²); and
    10. (j)
      A reduction in the extent of transition in building height.
  1. [5]
    As will become apparent, a not insignificant number of those changes are of little if any importance to the outcome of this appeal.[4]  As the photomontages show,[5] the external treatment of the two buildings is vastly different.  In this regard, I would note that it was agreed among the relevant expert witnesses that the photomontage images were a sufficiently accurate representation of both the approved and proposed developments.

Issues in Dispute

  1. [6]
    The issues in dispute were agreed between the parties and documented.[6]  Leaving aside for the moment the references to the various provisions of the planning scheme, the issues in dispute are described as follows:
  1. Whether the setbacks and site cover of the proposed change application are acceptable and do not result in unacceptable impacts having regard to the following provisions of the City Plan;
  2. 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 the following provisions of the City Plan;
  3. Whether the overall building form, building height and building height transition outcomes of the proposed change application, combined with the building design outcomes in [1] and [2], are acceptable and do not result in unacceptable impacts having regard to the following provisions of the City Plan;
  4. Whether the density outcomes of the proposed change application are acceptable, having regard to the identified provisions of the City Plan;
  5. Whether the wind impacts of the proposed change application are acceptable;
  6. Whether any non-compliance with the City Plan can be conditioned, such that compliance is achieved; and
  7. 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.
  1. [7]
    During the course of the proceeding, it was agreed that any concerns involving wind impacts could be addressed by the imposition of appropriate conditions.  It is no longer an issue in dispute. 

Legislative Framework

  1. [8]
    Pursuant to s 43 of the Planning and Environment Court Act, this proceeding is by way of a hearing anew where the appellant bears the onus to establish that the appeal should be upheld.[7]
  2. [9]
    Section 82 of the Planning Act 2016 is concerned with changes other than a minor change and relevantly provides:

“(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. the responsible entity where the assessment manager; and
    2. the change application where the original development application, with the changes included, but was made when the change application was made; and
  2. (b)
    with necessary changes.”
  1. [10]
    The expression “relevant provisions” is defined in s 82(6) as follows:

“(6) In this section—

relevant provisions means—

  1. (a)
    Section 45(6) to (8); and
  2. (b)
    Part 2, division 2, other than section 51; and
  3. (c)
    Part 3, other than sections 63 and 64(8)(c); and
  4. (d)
    the development assessment rules.”
  1. [11]
    Recently in Catterall & Ors v Moreton Bay Regional Council & Anor, Judge Williamson QC made the following observations with which I respectfully agree:[8]

“[41] It was uncontroversial as between the appellants and co-respondent that s 82 of the PA conferred a broad discretion on the responsible entity (or this court on appeal) to decide the change application as if it were impact assessable….

[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 practical terms, this means the assessment and decision making process for a change application under s 82 of the PA is founded upon, but not limited to:

  1. (a)
    an identification of the change/s proposed to the development approval;
  1. (b)
    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. (c)
    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.

[46] Whilst it can be accepted that the assessment process for a change application under s 82 of the PA involves more than a comparison of approved and amended plans, it is of little assistance to describe the assessment, in general terms, as broad or narrow. This is because the breadth of an assessment will be a product of the precise changes proposed to an approval, and the planning issues arising for consideration as a consequence of those changes. .…No hard and fast rule can be prescribed as a consequence.  It will inevitably turn on the facts and circumstances of each case…”

  1. [12]
    Both the approved development application and the proposed application were code assessable under the City Plan.  Recently in Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council,[9] in the context of code assessment, it was observed that “the more important the assessment benchmark, the more likely is it that non-compliance will be determinative against approval.”
  1. [13]
    As already observed, the appellant in this case relies on a number of discretionary matters to support approval of the proposed development.  Pursuant to s 45(5)(b), an impact assessment must be carried out against the assessment benchmarks in a categorising instrument, such as the City Plan,  for the development, and may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise. Neither s 45 nor s 60 of the Planning Act, insofar as they are concerned with code assessment, expressly provide for the taking into account “other relevant matters”.  However, that omission is of little, if any, consequence.  In Brisbane City Council v YQ Property Pty Ltd, the Court of Appeal observed:[10]

“[62] The Act’s approach in respect of code assessments is slightly different in that s 45(3) does not include reference to “any other relevant matter” but s 60(2) expressly confers the assessment manager with the discretion to approve the application “even if the development does not comply with some of the assessment benchmarks”. The interplay of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument.

[63] None of this is to suggest the nature and extent of an application’s inconsistency with a planning instrument might not end up being a determinative consideration against approval in an individual case, depending upon the circumstances of that case. However, a case like the present, in which an inconsistency with the Biodiversity Areas Overlay Code was outweighed by the overall ecological benefits of the development, well illustrates the utility of the discretion which the Planning Act reserves to the assessment manager.” (footnotes omitted)

  1. [14]
    It is of course now a moot point that the City Plan is, prima facia, a representation or embodiment of the community expectations.

The local character

  1. [15]
    Any pedestrian walking north or south along Main Beach Parade, if he was sufficiently interested, would observe that a different form of development has occurred and continues to occur on the eastern side of that road when compared to what has occurred on the western side.  The western side is dominated by taller and more massive structures located on large parcels of land.  One example of this is the development known as Spinnaker which comprises of 32 storeys and is situated on a large area of land which includes outdoor entertainment areas, a swimming pool and a tennis court.  Another good example is the development known as Xanadu which comprises of two 25 storey towers on a large parcel of land which also includes expansive open areas, a swimming pool and tennis courts.
  2. [16]
    On the eastern side of Main Beach Parade, development ranges from large single unit dwellings through to development up to 18 storeys. Another distinguishing feature is that development on the eastern side has occurred on much smaller and narrower lots.[11]  However, it could be reasonably said that over time the height of buildings on this side of the road have been increasing.  Save for a development (Golden Sands) which was approved in circa 1981 at 18 storeys, both the approved development (of 20 storeys) and the proposed development (of 19 storeys) together with a recently approved development referred to as “Dune”, indicate a trend towards materially taller structures than had been previously approved.  In this regard, it is interesting to note that notwithstanding an intention to limit the height of buildings on the eastern side to 32 metres in the future, the respondent has recently approved the Dune development which is slightly in excess of 50 metres. 
  3. [17]
    The differences in the external features of the approved development and the proposed development are significant.  However, as has already been identified, this proceeding does not turn on a comparison of the two proposals.  The question is, does the proposed development comply with the City Plan or, to the extent that it may not, are there sufficient relevant or discretionary matters to warrant approval notwithstanding that noncompliance.  In the joint expert report of the town planners, Mr Perkins said:[12]

“It is therefore Mr Perkins’ opinion the Change Application (other change) would likely have greater impacts than the approved development from the proposed changes to site cover and setbacks. The Change Application (other change) in comparison to the approved development:

  1. (a)
    creates a different built form of greater bulk and scale;
  1. (b)
    removes any element of a podium and tower form;
  1. (c)
    creates a different skyline with reduced openness;
  1. (d)
    creates larger shadows;
  1. (e)
    reduces building separation (at part of the building);
  1. (f)
    increases the building’s dominance to the streetscape; and
  1. (g)
    removes the ability to provide measurable landscape treatment at different intervals of the building.”
  1. [18]
    During an exchange between myself and Mr Perkins, Mr Perkins seemed to agree that many of the matters he identified were the consequences of the change to the built form.  This was taken up by the respondent in its written submissions.

Changes to the built form

  1. [19]
    Returning to the material differences between the approved and the proposed developments identified above, a number of those differences are of no significance in the context of this proceeding.  They include the number of storeys, the increase in the car parks and ingress and egress arrangements.  As Mr Perkins correctly pointed out, there are two critical issues to be determined.  First, whether the proposed development complies with those provisions of the City Plan concerned with height, bulk and scale and, to a lesser extent, those provisions concerned with architectural features.  In this case in particular, the incorporation of a podium or the lack thereof.
  2. [20]
    While the difference in the residential density between what has been approved and that proposed is of little significance in respect of the outcome of this proceeding, it is of some interest.  Performance Outcome (PO) 5 prescribes a density of one bedroom per 33m2, though no Acceptable Outcome (AO) is provided.[13]  The approved development exceeds that density at 1/9.47m2 as does that proposed at 1/8.57m2.  Nothing was made of this increase in density in this proceeding but the level of density was clearly a matter of concern in the decision making process.  In fact, it was termed a “key consideration”.[14]  However, notwithstanding that significant level of non-compliance with that key consideration, the approved development was recommended as it was determined that “… the proposal meets the purpose and overall outcomes of the light rail urban renewal overlay code”.[15]  The stepped design, described in the respondent’s officer’s report as “3 distinct built forms in the vertical plane”, was clearly a factor the respondent considered important in deciding to approve the development.[16]  

Relevant Provisions of City Plan

  1. [21]
    By reference to the agreed list of issues in dispute, but not in the same order as they appear in Exhibit 3 and the written submissions of the appellant, the relevant provisions of the City Plan are as follows.  Unsurprisingly, as seems to be inevitable in planning documents, there is a considerable degree of overlapping and repetition of themes and desired outcomes.

Character and Streetscape

The character of the local area is a relevant concept for a number of assessment benchmarks:

Code

Provision

Benchmark

LRURA

OO 3(a)(iii)

Place making helps development contribute to strengthening local character through locating and designing development to respect and complement the scale, character, form and setting of on-site and adjacent properties.

LRURA

OO 3(e)

Local character reflects a combination of built form and mix of uses…

MDRZ

OO 2(b)(v)

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

(v) whether intended outcomes for building form/city form and desirable building height patterns are negatively impacted, including the likelihood of undesirable local development patterns to arise if the cumulative effects of the development are considered;

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

MDRZ

OO 2(b)(vi)

MDRZ

PO2(b)

Site cover contributes to neighbourhood character…

The following assessment benchmarks relate to streetscape:

Code

Provision

Benchmark

LRURA

OO 3(b)(i)

Built form interfaces with the street to create strong defined building edges and provides opportunities to engage with the street by:

(i) integrating balconies, building overhangs and canopies into the built form that are carefully designed and scaled to support the street and positioned to maximise function and pedestrian comfort…

(iv) the inclusion of streetscape and landscape design elements that are high-quality, sustainable and positively engage the built form with adjacent streets, parks and open space

 

OO 3(b)(iv)

LRURA

OO 3(c)

The building form interfaces with the street, creating strongly defined building edges and providing opportunities to engage with street life. Built form, uses that activate the street, tree planting and pedestrian facilities improve the comfort, environmental and visual quality of streetscapes.

 

OO 3(d)(ii)

Quality building form at the street level interacts and enhances street life by: … (ii) setbacks and street level design that promotes positive public to private realm transition and appropriate level of access and surveillance based on the nature of the uses;

MDRZ

OO 2(d)(iii)

Built form…(iii) is set back from road frontages to promote an urban setting and interface with the street.

MDRZ

PO1(c)

Setbacks … (c) contribute to the streetscape character

 Landscaping and deep planting

Code

Provision

Benchmark

MDRZ

PO2(a)

Site cover is balanced between built form and green areas for landscaped private open space

HRAD

OO 2(g)

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

GDP

PO4

The proposal provides landscape work that protects and enhances the character of the local area.

Density

Code

Provision

Benchmark

MDRZ

OO 2(c)(i)

Character consists of urban neighbourhoods that vary from pockets of detached housing on smaller lots to medium or higher intensity places containing medium-rise buildings

MDRZ

PO5

Density does not exceed that shown on Residential density overlay map.

Shadowing, privacy and views

Code

Provision

Benchmark

LRURA

OO 3(b)(ii)

Protecting sunlight and sky views within surrounding network of streets, parks public and private space and other shadow sensitive areas

MDRZ

PO2(e)

Development facilities, small fast-moving shadows

GDC

PO8

Building designed and located to ensure that shadow cast by the building does not detract from comfortable living and ground level environment and access to adequate sunlight in private and public spaces

MDRZ

OO 2(b)(vii)

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

(vii) whether adjoining residential amenity is unreasonably impacted

MDRZ

OO 2(d)(iv)

Built form (excluding Dwelling houses on small lots)-

(iv) is set back from side and rear boundaries to protect the amenity of adjoining residences

MDRZ

PO1

Setbacks:
 a. assist in the protection of adjacent amenity;
 b. allow for access around the building;
 c. contribute to the streetscape character; and
 d. allow for on-site car parking.

MDRZ

PO2

Site cover:
 b. contributes to neighbourhood character and amenity;

HRAD

OO 2(a)

Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of neighbouring residential premises.

HRAD

OO 2(c)

Tower development mitigates negative visual and physical impacts through appropriate setbacks and design.

HRAD

OO 2(e)

Development provides a high-standard of amenity and visual interest for users and neighbours, including a high-standard of communal and private open space.

HRAD

PO5

Tower form mitigates negative visual and physical impacts, including impacts on privacy, by setting back from streets, parks, open space and adjacent properties and tower forms.

GDP

OO 2(a)

Development is designed to maintain the expected level of amenity for the area.

GDP

PO2(e)

The proposed development prevents loss of amenity and threats to health and safety, having regard to:

(e) visual amenity

…

(g) privacy

…

GDP

PO2(g)

Height, bulk and scale (on the loss of the stepped design)

Code

Provision

Benchmark

LRURA

OO3 (e)(i)(B)

Design buildings to foster distinct Gold Coast character

(e) Local character reflects a combination of built form and mix of uses, and is characterised by the following areas and their outcomes:

(i) building form is characterised by either:

(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.

(iii) ‘Primary focus areas’ and ‘Frame areas’ encourage innovative high rise towers that advance the Gold Coast’s iconic skyline and are free from a height designation. Appropriate height will be determined by design criteria and site context;

OO 3(e)(iii)

MDRZ

OO 2(d)(v)

Built form (excluding Dwelling houses on small lots)-

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

MDRZ

PO2

Site Cover:

  1. a.
    is balanced between built form and green areas for landscaped private open space;

 b. contributes to neighbourhood character and amenity;

 c. promotes slender bulk form;

 d. promotes an open, attractive and distinct skyline; and

 e. facilitates small, fast moving shadows.

HRAD

OO 2(a)

Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of neighbouring residential premises.

HRAD

OO 2(b)

Slender towers relate to existing high-rises and enhance views of the city skyline.

HRAD

OO 2(c)

Tower development mitigates negative visual and physical impacts through appropriate setbacks and design.

HRAD

PO4

Slender tower form promotes:

 a. open, attractive and distinct skyline;

 b. small, fast moving shadows;

 c. view corridors between nearby towers;

 d. efficient interior climate control; and

 e. balconies as an extension of indoor living space.

  1. [22]
    Those provisions of the City Plan identified in the list of issues and repeated in the appellant’s written submissions have been set out in full to yet again emphasise an issue I have previously raised.[17]  Namely, parties should limit references to a planning scheme within the issues in dispute to only the most relevant and important parts of that scheme and not plead every provision that might possibly be offended.  Even the most cursory review of the provisions set out above, would reveal an extensive level of overlapping and repetition of planning themes and philosophies. Examples of unnecessary and oppressive references to the planning scheme includes but was not limited to the following.
  2. [23]
    No less than 13 provisions of the City Plan were referred to in respect of deep planting and streetscape.  Deep planting hardly rated a mention either during the hearing or in the respondent’s final submissions, written and oral.  That is hardly surprising as the only landscaping matter in issue appeared to be the loss of the opportunity for landscaping on the terraces created by the stepped design.
  3. [24]
    In respect of shadowing, privacy and views, again, no less than 13 provisions of the City Plan were said to be called up.  That is in circumstances where shadowing and loss of sunlight affected only one other site and, as is discussed below, the extent of any impact on privacy and views was also extremely limited.
  4. [25]
    Pleasingly however, when it came to the most significant issues in dispute, under the heading, “Building form, streetscape and density outcomes of the changed proposal”, the respondent limited itself to only five provisions of the City Plan.[18]
  5. [26]
    Turning then to the alleged areas of non-compliance.

Landscaping

  1. [27]
    Landscaping did not raise a mention in the respondent’s submissions and, as identified above, the only real issue appeared to be the loss of the opportunity for some planting on the terraces of the stepped levels of the approved development.  That such an opportunity is not present in the proposed development, could not by any stretch of the imagination, warrant refusal either of itself or in combination with any other matter.

Shadowing

  1. [28]
    In respect of shadowing, it is uncontroversial that both the approved and proposed developments will cast shadows that will impact on the development across the road known as Spinnaker.  It is also uncontroversial that it is only Spinnaker that is impacted on in a negative way and that the shadow cast by the proposed development is greater than that cast by the development approved.
  2. [29]
    It must, however, be kept firmly in mind that both the approved and proposed developments are located within a precinct with no height limitations.  In this regard, as the respondent’s assessment manager reported, “it is reasonable to assume that shadow impacts are expected within areas with an undefined height limit.”[19]  I agree with that assessment.
  3. [30]
    The work of Mr Richards, an architect relied on by the respondent, shows that at 9 am in the summer solstice the approved development will cast a shadow over the north east corner of the Spinnaker site.  At the 9 am equinox the shadow would just touch on the south eastern face of the building.  At the same times the shadow from the proposed development almost covers the entire pool area and covers significantly more of the face of the Spinnaker building.[20]
  4. [31]
    Mr Richards reduced the extent of the difference between the two shadows to percentage terms and square meterage.  I did not find that analysis particularly helpful, with all due respect.  That is particularly so in respect of the 9 am equinox when the only shading of the pool area will be that already existing on site.
  5. [32]
    While Mr Richards is undoubtedly correct in saying Spinnaker will be in shadow longer if the proposed development goes ahead, that situation will only be relatively short lived.  The shadow from both developments will be a fast moving one as was recognised by the author of respondent’s in-house report.[21]
  6. [33]
    On the evidence before me, I am satisfied that the shadow of the proposed development will be fast moving and will not impact in any material way on shadow sensitive areas.[22]  And, insofar as there might be an additional negative impact on the comfortable living environment of the residents in Spinnaker, it would not amount to an unreasonable or unacceptable outcome.[23]  Accordingly, insofar as there might be a level of non-compliance with the City Plan in respect of shadows, it is very much at the lower end of the scale and would not warrant refusal.

Privacy and views

  1. [34]
    Unsurprisingly, impacts on privacy and views barely rated a mention in the respondent’s oral and written submissions.  As was the case concerning shadowing, these impacts are, in a realistic sense, limited only to the building to the immediate south, Beachside Towers.
  2. [35]
    It is unnecessary to refer to any of the provisions of the City Plan to dispose of the issue of views.  All the relevant experts agreed that the dominant views are the beach and ocean views.  Those views would not be negatively affected to any meaningful extent.  Insofar as the secondary views to the north are concerned, I accept the evidence of Mr Curtis, the architect relied on by the appellants, to the effect that any difference in impact between the approved and the proposed is very much at the minor end of the scale.
  3. [36]
    Turning then to the impacts on privacy, the evidence is that in respect of Beachside Towers, privacy up to level two was likely to be improved and that there were no meaningful negative impacts on levels two to eight.  That is, there are no concerns in respect of privacy for half of the floors of that building.
  4. [37]
    Before proceeding further, I would make two observations.  First, it needs to be borne in mind that Beachside Towers is also situated in the high-rise precinct where the height and density of surrounding buildings will almost inevitably create privacy issues.  Second, it is difficult to identify exactly what the respondent’s case is on this matter. 
  5. [38]
    As I understand it, Dr McGowan’s concerns about privacy arise because, not being stepped back from Main Beach Parade, the proposed development would be closer to Beachside Towers at those levels where the approved development is reduced in scale by way of the setbacks. [24]  In the absence of any probative evidence about the extent of any impacts on privacy, I was left in the situation where it is necessary to draw inferences from the photomontages.  As I have already said, it is uncontroversial that it is only one building that would be affected and only the upper eight levels of that building.  By reference to the images in Exhibit 5, it also seems likely that it would only be the western section of those upper levels that would be affected.[25]
  6. [39]
    It can be accepted that there might be a risk that the proposed development, or a small proportion of it, might result in a higher level of non-compliance with the City Plan concerning privacy.[26]  However, on balance I am satisfied that any impact on privacy, over and above that caused by the approved development, would tend to be very much towards the lower end of the scale.
  7. [40]
    For the reasons given, I am satisfied that none of the issues raised concerning shadowing, views and privacy, either of themselves or combined would warrant refusal.

Height, bulk and scale

  1. [41]
    Before going on to deal with this topic, I should point out that this is not a case where the approved development is compliant with the City Plan but that proposed is not.  As the internal assessment reports reveal, the stepped building was approved notwithstanding material areas of non-compliance.  That is why some of the witnesses, when comparing the two designs resorted to terms such as the proposed development “results in less compliance with overall outcomes”.[27]
  2. [42]
    Turning then to 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.  According to Mr Richards, this was the “critical” or “key” issue.[28]  It was also clearly seen as the main or key issue by Dr McGowan.[29]  And, according to Mr Perkins, “it’s the mass of the building at the higher levels which is the issue.”[30]
  3. [43]
    As can be readily discerned, the other areas of alleged non-compliance are largely the direct consequences of the overall mass of what is proposed.
  4. [44]
    Quite clearly, the proposed development exceeds that approved in terms of site cover.  That is particularly so from level 6 and even more so above level 9.[31]  It is also uncontroversial that it is 3.75m taller.
  5. [45]
    Reference to differences in scale and dimensions are, of themselves not very helpful.  As Dr McGowan pointed out, it is how the building relates to the existing streetscape and the human scale and contributes to an open skyline that are the critical matters.[32]
  6. [46]
    Turning first to the issue of height.  It will be recalled that the site is in a precinct without a height restriction.  That a building was to occur on the site 3.75m higher than that approved, would not be likely to offend the expectations of the residents of the area.  Indeed, in this regard, as already observed, notwithstanding an intention to limit the height of buildings to 32m on the eastern side of Main Beach Parade, the respondent has approved the Dune development at about 50m.  As Mr Perkins said, the real concern is the mass of the proposed development.  The height of itself is not significant.[33] 
  7. [47]
    Having disposed of the issues of shadowing, views and privacy in favour of the appellant, the difference in height is of no consequence.  It is also convenient here to dispose with the change in the form and scale of the proposed development at the top level.  Overall, I am not satisfied that the reduction of the floor area and shape of the building at the top level will have any meaningful impact on how the proposed development will fit in with the existing and proposed streetscape in respect of the bulk and scale.[34]

Mass and the podium

  1. [48]
    I should commence this discussion by saying at the outset that the other examples of stepped buildings west of this site are of no relevance.  They are all located well removed from the relevant precinct.  And, in any event, the wide range of design styles reflected in those buildings provides no real guidance as to what the podium and tower form of buildings envisaged in the City Plan (or the amendments) ought look like in this part of Main Beach.[35]
  2. [49]
    The photomontages depict both buildings from the north, south, east and west.  Dealing first with the views from the east.  Accepting for the moment that anyone on the beach or the reserve would be interested in comparing the mass of various buildings, from directly in front of either building, I am satisfied that any observer would find it difficult to discern any material difference in size or mass.
  3. [50]
    I am also satisfied that when looked at from the south east and north east, it would be the same.[36]  Mr Richards pointed out that from both the north east and south east, more sky is visible with the approved development.[37]  This difference is so marginal as to be of no real consequence in my view.  The real issues, as Dr McGowan pointed out, is the relationship with the existing buildings fronting Main Beach Parade and human scale.
  4. [51]
    As the photomontages show, the nature and extent of the differences between the two buildings are revealed when looked at in both directions along the street.  The respondent places considerable weight on four recently approved developments of podium and tower design in support of its case.  On the other hand, the appellant points to the absence of such building form in the existing streetscape in support of its case.  Before going on to deal with those matters, a number of observations can be made.
  5. [52]
    As Mr Perkins correctly pointed out, the objective of a podium includes relating building form to human scale and the activation of the pedestrian experience.[38] The City Plan also refers to the use of podiums “to have active edges of streets….”[39]  In this regard, I accept the evidence of Mr Curtis, which was to the effect that the lower levels of approved development was not of a podium form, but merely a 9 storey element of a stepped form of development.[40]  I also agree with Mr Curtis’ evidence that the proposed development is more reflective of the Gold Coast character, permits a better interaction with the beach and beyond by pedestrians and that the approved development has a more commercial office space appearance when compared to that now proposed.
  6. [53]
    Reliance on the proposed beach houses in this context is of no significance in my view.  The focus of a podium is directed to the street and pedestrian traffic.  The positioning of standalone dwellings facing the beach would not only not achieve that outcome but, in addition, would in no sensible way replicate the built form of a podium. 
  7. [54]
    That said, the proposed development has no podium form at all.  In this regard, I reject the concept of a negative podium.
  8. [55]
    It can be accepted that on both sides of the road, the streetscape is dominated by apartment blocks that do not have podiums.  As already mentioned, on the east side of Main Beach Parade there is more variation in height and scale, including three storey single unit dwellings.  There is no doubt that both the approved and proposed developments would be much larger than anything that exists now.  In saying that, I accept the evidence that in architectural terms the proposed development could still properly be described as having “slender bulk form”. 
  9. [56]
    In my view however, it would be wrong to place too much emphasis on the existing built form.  The adoption of a policy or objective to introduce a podium and tower form of development in this precinct is a legitimate planning strategy.  It is also a strategy that is having an impact on the ground, as evidenced by the Dune and Pearl projects and that at 3649 Main Beach Parade.  As Mr Perkins correctly pointed out, when considering the concept of streetscape, regard should be had not only to what exists now, but also to what is intended to occur under the City Plan.[41]  In respect of the Dune development, it can be accepted that the podium land will not continue to or enhance the pedestrian experience.[42]  However, in a physical sense, it does still present as a podium and tower form of development.
  10. [57]
    The apartment block known as Pacific Views, which is to the immediate south west of the site, has a built form that incorporates a podium like element.  At present, it is the only building fronting Main Beach Parade that has anything like a podium component.  However, as pointed out by Mr Perkins, both the Pearl building now under construction and the proposed Dune development will form part of the streetscape and incorporate a podium in their design.  And, of course if the approved development were to proceed, it would form part of the streetscape.  And, while not incorporating a podium, would introduce a stepped form of development.
  11. [58]
    I do not consider the other proposed podium and tower to the north to be part of the relevant streetscape to any meaningful extent.[43] It is located well to the north on the western side of Main Beach Parade and is separated from the site by open space and a caravan and campsite.
  12. [59]
    Turning briefly to the evidence of Ms Rayment, while accepting that the absence of a podium and tower form development did not comply with OO3(e)(i)(B) of the LRURA overlay code, she also appeared to accept that the approved development did.[44]  I would emphasise here that within the City Plan, it is a podium and tower form of development that is contemplated, not necessarily a stepped form of development of the type approved. 
  13. [60]
    In the appellant’s written submissions, it is said:[45]

“The appellant contends that the development proposed by the change application complies with the assessment benchmarks in the planning scheme. In particular, the removal of the stepped design from the approved development does not mean the proposed development is non-compliant with performance outcomes relating to site cover, set-backs, open skyline or slender towers. That is evident from a comparison of the photo montages and elevations of the approved and proposed developments, a small selection of which is attached at Appendix A.”

The proposed development would be consistent with the Light Rail Urban Renewal Code in that the proposed development:

is located in a section of the Overlay area that is remote from the Main Beach Light Rail Station. Such a matter is emphasised under the draft planning scheme where the subject land sits at the bottom of the hierarchy of regulated areas, being located in a “Transition Area”. Such a fact also highlights that the importance of the subject land providing a podium to support the light rail station is diminished.

Further, and perhaps most importantly, each of the Council’s witnesses accepted that the ground floor plane of the proposed development would be acceptable. The pedestrian experience provided by the proposed development, in the submission of the Appellant, would be of a high quality and is certainly not a reason for refusal;

  1. (i)
    consistent with Overall Outcome 3(a)(iii), the development would be located and designed to respect and complement the scale, character, form and setting of the adjacent properties.  The proposed development is consistent with the overwhelming character of Main Beach;
  2. (ii)
    consistent with Overall Outcome 3(b) the proposed development would engage with the street to maximise function and pedestrian comfort and protect sunlight and sky views.” (footnotes omitted; emphasis added)
  1. [61]
    The emphasised part of those submissions is referred to in the discretionary matters relied on by the appellant as a “softening” of the requirements for a podium and tower form in the draft planning scheme favouring approval in the event of non-compliance.[46]  Mr Perkins accepted that there did appear to be a softening of the requirement or preference for podium and tower development in the draft plan when compared to the relevant provisions of the City Plan.[47]
  2. [62]
    I am able to accept that most of what is advanced on behalf of the appellant is established by the evidence.  First, the absence of a podium form of development of itself would not necessarily amount to non-compliance.  As much was accepted by Mr Loos.  Each case will turn on its own merits.   Second, it may be accepted that it is likely that a greater emphasis might be placed on such a form of development the closer it is to a light rail station.  This site is located towards the northern end of the lowest level (the transition area) of the light rail regulated areas.  Third, there is no doubt that the development would be of a very high standard and permit a greater degree of pedestrian interaction with the street and beach than that proposed.
  3. [63]
    All of that said, the evidence leaves me unpersuaded that the proposed development would not result in an unacceptable outcome in respect of bulk and scale.  Mr Perkins’ concerns about the bulk and scale of what is proposed has already been referred to.  However, it is the evidence of Dr McGowan that I found most persuasive.  His evidence was that without setting the tower back from the street, be it by stepped design or podium and tower, the proposed development will result in a number of unacceptable planning outcomes.  To use his terminology, it would result in the building unacceptably “dominating” or “crowding” the streetscape.[48]
  4. [64]
    While I am not persuaded that there would be any material difference in the loss of skyline, the dominance or crowding referred to by Dr McGowan is well represented by a number of images in the photomontages.[49]
  5. [65]
    By way of conclusion on this aspect of the case, while I am satisfied that most, if not all, of the respondent’s concerns about amenity are unlikely to result in any unacceptable outcomes, that does not detract from the conclusion that I have reached that the proposed development would not comply with important provisions of the City Plan.  In particular, OO2(d)(v) of the MDRZ code and OO3(e)(i)(B) of the LRURA overlay code concerned with “clearly defined tower and podium form”.   In this regard, I agree with the observations made by Mr Perkins to the effect that the bulk and scale of the proposed development would be at odds with the respondent’s clear planning intent to have a less intensive form of development on the eastern side of Main Beach Parade.  Mr Perkins also expressed the opinion that that intent is reinforced by the amended scheme introducing a height limit.[50]  For reasons expressed below however, I have some reservations about the weight that ought be given to those amendments. 

Discretionary matters

  1. [66]
    Having determined that the proposed development would involve material non-compliance with the City Plan, it is necessary to address the discretionary matters raised on behalf of the appellant.
  2. [67]
    In paragraph 104 of the appellant’s written submissions, it is said:

“(a) The proposed development reflects the planning and community need for more, and more intensive residential development within the Main Beach area, within the identified light rail urban renewal area;

  1. (b)
    The proposed development will contribute and enhance the existing character and streetscape by complementing the extruded, consistent floor plate towers while exhibiting a high quality design, modern, interesting façade and landscaping;
  1. (c)
    The proposed development is supported by the draft planning scheme, especially in circumstances where the requirements of podiums are softened;
  1. (d)
    The proposal is of a bulk, scale, density and height that can be reasonably expected within the locality, which contains numerous high rises with views of the ocean;
  1. (e)
    As is apparent from Appendix A to these submissions and a review of the photo montages, the proposed development is not a substantial change in bulk or design from the approved development.”
  1. [68]
    The elements of the proposed development that reflects its high quality are expanded upon in paragraph 106 of the Appellant’s written submissions.
  2. [69]
    There is no doubt that, insofar as need is concerned, a need exists and the proposed development will provide for a much wider choice of product with up to five-bedroom apartments.  That said, I was not taken to any evidence that there is little or no need for the product range as approved or that there is a greater need for that proposed than for that approved.
  3. [70]
    In my view, the balance of the so-called discretionary matters relied on by the appellant have already been adequately addressed in dealing with the various issues raised.  I would add though, it is difficult to know just how much weight ought be afforded to the draft amendments.[51]  As the Chief Executive’s Certificate makes clear, both the stepped building and the proposed building have been assessed under CP2014. Further, insofar as the amendments are concerned, including the softening of the requirements for a podium, it is difficult to reconcile those amendments with the recently approved Dune development which was approved two years after the subject approval and exceeds the 32m height limit by nearly 20m.  It may take a little more time before the real force and effect of the amendments is revealed by reference to what actually occurs on the ground.
  4. [71]
    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.
  5. [72]
    For the reasons given, I have reached the following conclusions.  First, in its present form the proposed development does not comply with important provisions of the City Plan.  Second, there are no discretionary matters that would warrant approval notwithstanding that non-compliance.
  6. [73]
    Based on the evidence, particularly that of Mr Curtis assisted by photomontages, I am however, of the view that the proposed development contemplates a superior product mix of apartments and its external features would present as a far more attractive form of development than that approved.  And, had it incorporated a podium with setbacks from Main Beach Parade, and 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.
  7. [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 storey apartment block directly to the north west (Pacific Towers).[52]  It would also sit comfortably with the Pearl development,[53] almost directly across the road and the proposed Dune development,[54] further to the south.  Albeit both of those buildings are on much smaller lots.
  8. [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.[55]   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 dwelling being constructed on the other side 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.
  9. [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 the 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.

Footnotes

[1] See LRURA code, MDRZ code, HRAD code and GDP code.

[2] Exhibit 12 at p 194.

[3] Exhibit 4 at p 9.

[4] Changes (a), (c) and (e).

[5] Exhibit 5.

[6] Exhibit 3.

[7] Section 45(1)(a).

[8] [2020] QPEC 52.

[9] [2021] QPEC 4.

[10] [2020] 48 QLR at [62] – [63] per Henry J.

[11] See generally Exhibit 25.

[12] Exhibit 4 at p 32, [80].

[13] Exhibit 12 at pp 119 and 196.

[14] Exhibit 16 at p 4.  

[15] Ibid at p 46.

[16] Exhibit 16 at pp 17 – 18.

[17] Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPELR 1158 at [30]-[33].  Refer also to the observations of Williamson QC DCJ in Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102 at [47]-[48].

[18] See OO2(b)(v), OO2(d)(v), PO2 and PO5 of the MDRZ code and OO3(e)(i)(B) of the LRURA overlay code.

[19] Exhibit 16 at p 38, see also for example in Exhibit 25.

[20] Exhibit 15 at p 5.

[21] Exhibit 12 at p 38, as can be inferred from Exhibit 7 at p 33.

[22] OO3(b)(ii) of the LRURA code and PO2(e) of the MDRZ code.

[23] PO8 of the GDC.

[24] T3-37 at lines 5 – 13.

[25] Exhibit 5 at pp 45 – 46.

[26] See for example OO2(a) of the HRAD code and PO2(g) of the GDP code.

[27] See Exhibit 4 at p 41, [96]. 

[28] T2-48 at lines 22 – 47 and T2-49.

[29] T3-15 at lines 23 – 47 and T3-16.

[30] T4-38 at lines 18 – 26.

[31] Refer to Exhibit 4 at pp 11-12 and Exhibit 6 at pp 148-153.

[32] T3-15 at lines 23 – 47 and T3-16.

[33] T4-38 at lines 18 – 26.

[34] See for example Exhibit 5 at pp 36 and 42.

[35] Exhibit 23.

[36] Exhibit 23.

[37] Exhibit 5 at pp 42 – 46.

[38] T4-54 at lines 16 – 23.

[39] Exhibit 12 at p 128, Fig 8.2.12-7.

[40] T2-5 at lines 32 – 37.

[41] T4-37 at lines 1 – 17.

[42] The podium fronting the street is dominated by the entry to the underground carpark.

[43] At 3649 Main Beach Parade.

[44] T4-28 at lines 3 – 46 to T4-29 at lines 1 – 12.

[45] Written Submissions of Appellant at paras 3 and 4(d).

[46] Written Submissions of Appellant at para 104(c).

[47] T4-45 at lines 18 – 27.

[48] T3-15 at lines 23 – 47 to T3-17 at lines 1 – 23.  See also T3-46 at lines 13 – 21.

[49] Exhibit 5 at pp 30, 33 and 36.

[50] T4-40 at lines 17 – 47.

[51] Public consultation thereof ended 8 April 2021.

[52] Exhibit 5 at pp 35, 60 – 61.

[53] Exhibit 2 at p 56.

[54] Exhibit 2 at p 40.

[55] Ranging from large houses to 18 storey apartment blocks.

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:

    [2021] QPEC 37

  • Court:

    QPEC

  • Judge(s):

    R S Jones DCJ

  • Date:

    28 Jul 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council [2018] QPEC 34
1 citation
Jump To
Cite 1 - [2018] QPEC 34
Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102
2 citations
Jump To
Cite 1 - [2018] QPELR 1102
Cite 2 - [2018] QPELR 1102
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52
2 citations
Jump To
Cite 1 - [2020] QPEC 52
Cite 2 - [2020] QPEC 52
Mirani Solar Farm Pty Ltd v Mackay Regional Council [2018] QPEC 38
1 citation
Jump To
Cite 1 - [2018] QPEC 38
Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPELR 1158
2 citations
Jump To
Cite 1 - [2018] QPELR 1158
Cite 2 - [2018] QPELR 1158
Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4
2 citations
Jump To
Cite 1 - [2021] QPEC 4
Cite 2 - [2021] QPEC 4

Cases Citing

Case NameFull CitationFrequency
Upan Company Pty Ltd v Gold Coast City Council [2022] QCA 75 2 citations
Upan Company Pty Ltd v Gold Coast City Council (No. 2) [2021] QPEC 503 citations
1

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