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- Unreported Judgment
Upan Company Pty Ltd v Gold Coast City Council (No. 2) QPEC 50
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Upan Company Pty Ltd v Gold Coast City Council (No. 2)  QPEC 50
UPAN COMPANY PTY LTD (ACN 161 162 134) as trustee for the HAPSBERG FIXED TRUST
GOLD COAST CITY COUNCIL
2009 of 2020
Planning and Environment
Hearing of an appeal
Planning and Environment Court of Queensland at Brisbane
28 September 2021
16 and 17 September 2021
RS Jones DCJ
The appeal is dismissed.
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
CONFLICT WITH PLANNING SCHEME – where proposed development results in unacceptable impacts in respect of setbacks and site cover – loss of stepped design – building height transition – where appeal dismissed
Planning Act 2016 (Qld) s 78
Brisbane Islamic Centre Limited v Brisbane City Council & Anor  QPEC 14;  QPELR 378
Comiskey Group (a firm) v Moreton Bay Regional Council & Ors  QPEC 132;  QPELR 168
Upan Co Pty Ltd v Gold Coast City Council  QPEC 37
Mr M Batty for the appellant
Mr N Loos for the respondent
Mills Oakley Lawyers for the appellant
Norton Rose Fulbright for the respondent
- On 22 October 2018, the Gold Coast City Council (the respondent) issued a decision notice approving a development which included a mix of two and three-bedroom apartments over 20-storeys. That approval was granted in favour of Upan Co Pty Ltd (the appellant). Notwithstanding that approval, the appellant sought approval of another form of residential development pursuant to s 78 of the Planning Act 2016. In the joint expert report of the town planners, the changes to the proposed development, when compared to that approved, were as follows:
- (a)A reduction in the number of storeys from 20 to 19;
- (b)An increase in the overall building by 3.75m;
- (c)A reduction in the number of apartments from 55 to 50;
- (d)An increase in the range of apartment styles to include up to five-bedroom apartments;
- (e)An increase in the number of car parking spaces from 107 to 113;
- (f)A change to the external façade treatments and design;
- (g)An alteration to the floor plan to create larger living and balcony areas;
- (h)A reduction in certain building setbacks, while increasing others, across different levels of the building;
- (i)An increase in the overall area of communal space; and
- (j)A reduction in the extent of transition in building height.
- The respondent opposed the application for a changed development which resulted in a hearing in this court between 7 and 11 June 2021. On 28 July 2021, this court delivered its reasons for consideration by the parties.
- The reason for adopting that approach could be summarised as follows. First, I considered that there were a number of features associated with the proposed development which would result in a superior outcome to that approved by the respondent. Second, most, if not all, of the amenity issues raised against the appellant were dismissed. Third, notwithstanding those positive conclusions, I nonetheless found that the development as now proposed involved material non-compliance with relevant provisions of the respondent’s planning scheme (the City Plan). In particular, the proposed development did not incorporate a form of podium and tower construction which resulted in a finding that as proposed, it would not sit comfortably within the existing streetscape and would tend to “crowd” Main Beach Parade and possibly also Woodroffe Avenue.
- In that regard, the court at first instance made the following observations:
“Based on the evidence, particularly that of Mr Curtis assisted by the photo montages, 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 that it does not ‘crowd’ the street I may have been minded to allow the appeal.
By way of conclusion then, had the proposed development been conditioned to require a podium form with appropriate setbacks to Main Beach Parade and possibly also Woodroffe Avenue, I might have approved the proposed development. That however, is not the current situation. In circumstances where the possibility of imposing such a condition was not raised during the course of the appeal, the approach I will take is to publish my reasons but hear further from the parties before making orders.”
- The matter came back before the court on 16 and 17 September 2021. On the first of those dates, the appellant provided to the court a number of revised plans showing what is now proposed from various views to the north, south, east and west, attached to the affidavit of Mr Leong. On any reasonable view of things, it can be accepted that the appellant has made some attempt to address the court’s concerns by providing for a setback at the upper levels. While not comprising of a podium and tower form of construction, it was said on behalf of the appellant that the revised plans would provide an adequate solution to the “crowding” problem by:
“providing a setback of the building at the upper level so as to not crowd Main Beach Parade; and achieve an outcome consistent with a podium and tower form but in a step form, consistent with the approved development.”
- The respondent, however, does not accept that the now proposed form of development is compliant with its City Plan. It was submitted on behalf of the respondent that the appeal ought therefore be dismissed. On the other hand, it was submitted on behalf of the appellant that it should be given the opportunity to satisfy the court that in fact, as now proposed, the development would provide an adequate response to the concerns expressed by the court about compliance with the relevant provisions of City Plan.
- In support of its application to be heard, the appellant referred to two previous decisions of this court, being Brisbane Islamic Centre Limited v Brisbane City Council & Anor and Comiskey Group (a Firm) v Moreton Bay Regional Council & Ors. In my respectful opinion, both of those decisions can be readily distinguished.
- In the Brisbane Islamic Centre case, after the court published its reasons, the parties were able to reach a “whole site” solution which addressed the concerns expressed about the proposal in its original form. As a consequence of that, the court was able to dispose of the appeal by way of a minor change application brought by the appellant and not opposed by the respondent Council. That is not the situation here. In this case, the respondent’s position is that the proposed development, even as now amended, does not adequately address the concerns expressed by the court. It must follow from that stance that the respondent is of the opinion that the form of development now proposed is still at odds with the relevant provisions of its City Plan.
- Turning then to the reasons given by this court in Comiskey Group. In that case, the court concluded that any tension between the proposed development and those parts of the planning scheme dealing with character, amenity, and hierarchical issues were very much at the lower end of the scale. In this regard, the court said:
“Contrary to the Council’s submissions, these facts and circumstances lead me to conclude that this proposal does not constitute a serious departure from its obvious planning intent nor necessarily a significant change in planning strategy.” (Footnote deleted).
- It was also found that there was a very strong community and planning need for the proposed development. That said, the court was left in the situation where it considered there were a number of serious matters that still needed to be addressed concerning the impact on the relevant traffic network. In this regard, the court said:
“In circumstances where community well-being will be materially approved by the proposal and its conflicts and/or tensions with the planning scheme made at the lower end of the scale there are, in my view, sufficient grounds to justify the proposal despite the conflicts.
Usually, such a finding would lead to the appeal being allowed. However, here there is too much uncertainty surrounding the traffic issues to allow that to happen at this stage. Such uncertainties contained in the appellant’s case would usually lead to a dismissal in most forms of civil and, in particular, commercial litigation. Proceedings such as this do not fall into that category. Significant community issues are involved in addition to the commercial interests of the appellant.
Had it been the situation that the engineers involved expressed a view that the traffic issues were insoluble or could only be solved with major and complex roadworks, I would have dismissed the appeal. However, that is not the case. As I have already pointed out, the three traffic engineers presently opposed to the proposal seem confident that solutions acceptable to the Council and the Chief Executive are achievable. Whether those solutions area [sic] acceptable to the appellant on a commercial basis or for whatever other reasons would of course be a matter for it.”
- There are a number of features that distinguish this case from Comiskey Group. First, at that stage there was a strong sense of optimism between at least three of the traffic engineers that an acceptable traffic outcome could be achieved. Further, and significantly, both the relevant Council and the Chief Executive of the Department of Transport and Main Roads endorsed a process which would permit a final decision of the court not to be made until the traffic engineers were given the opportunity to try and identify an acceptable traffic outcome. That can be distinguished from the current situation. As I have already observed, the respondent not only strongly opposes the proposed development and any further hearing of the matter, it wants the appeal to be dismissed.
- The situation I am left in is as follows. First, on the plans before me on their own, I could not be satisfied that a condition requiring the now proposed design outcome would satisfy the concerns expressed by me in my reasons given on 28 July 2021, let alone whether it would sufficiently comply with the respondent’s City Plan. It is all but inevitable in my view, that to be so satisfied would require the hearing of further evidence. While it might be expected that no further evidence would be required about matters involving impacts on amenity, it would not be unreasonable to expect that at least some, most likely contested, evidence of an architectural and visual amenity nature would be required. In other words, it would seem all but inevitable that yet another merits hearing, albeit a relatively abbreviated one, would be required. That would be an undesirable outcome in my view.
- Accordingly, notwithstanding my view that there are a number of aspects of the proposed development that are superior to the development currently approved, I nonetheless have reached the conclusion that the only acceptable outcome is that the appeal ought be dismissed.
- Accordingly, the order of the court is:
- 1.The appeal is dismissed.
 Upan Co Pty Ltd v Gold Coast City Council  QPEC 37.
 Upan Co Pty Ltd v Gold Coast City Council  QPEC 37 at  – .
 See Exhibit 1.
  QPELR 378.
  QPELR 168.
 Ibid at .
 Comiskey Group (a Firm) v Moreton Bay Regional Council & Ors  QPELR 168 at  – .
- Published Case Name:
Upan Company Pty Ltd v Gold Coast City Council (No. 2)
- Shortened Case Name:
Upan Company Pty Ltd v Gold Coast City Council (No. 2)
 QPEC 50
RS Jones DCJ
28 Sep 2021