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  4. NL Varsity Nominees Pty Ltd v Gold Coast City Council - [2022] QPEC 29

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NL Varsity Nominees Pty Ltd v Gold Coast City Council[2022] QPEC 29

NL Varsity Nominees Pty Ltd v Gold Coast City Council[2022] QPEC 29

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

NL Varsity Nominees Pty Ltd v Gold Coast City Council [2022] QPEC 29

PARTIES:

NL VARSITY NOMINEES PTY LTD

(appellant)

v

GOLD COAST CITY COUNCIL

(respondent)

FILE NO:

2487/2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

2 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 to 21 April 2022, 11 August 2022

JUDGE:

Kent QC, DCJ

ORDER:

The appeal is dismissed

CATCHWORDS:

REAL PROPERTY – RETIREMENT VILLAGES

Where the respondent has refused the appellants development application for a retirement village – whether the proposed development will expose older individuals to an unacceptable risk of flooding – whether the development will cause a need for medical evacuations of residents during flood events – whether there is an economic and community need for the development 

ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – MATTERS FOR CONSIDERATION BY COUNCIL – ACCESS

Where the respondent has refused an application concerning the appellants property development – where the respondents refusal centres on the fact that the proposed land is flood affected – whether the design of the development are appropriate to manage the flood risk – whether the proposed management measures are appropriate to manage the flood risk – whether the development is incompatible with the level of flood hazard

LEGISLATION:

Planning and Environment Court Act 2016 (Qld), s 43, 45(2), 46(2)

Planning Act 2016 (Qld), s 45(5)-(7), 59(3)

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

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 (applied)

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793 (considered)

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 (cited)

Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 (cited)

Cheung & Ors v Brisbane City Council [2021] QPEC 39 (cited)

Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29 (cited)

Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272 (cited)

COUNSEL:

Mr C Hughes QC and Mr B Rix for the appellant

Mr N Andreatidis QC and Mr N Loos for the respondent

SOLICITORS:

Colin Biggers and Paisley Lawyers for the appellant

Hopgood Ganim Lawyers for the respondent

Introduction

  1. [1]
    The appellant (“Noble Life”) appeals against the refusal by the respondent Council of a development application concerning the appellant’s proposed development on land at Robina on the Gold Coast, of a high-rise retirement village.  The proposal is for the construction of a 17-storey building on the bank of, and slightly overhanging, Lake Orr. It is to include 120 units of varying sizes with the lower floors being car parks. The application was refused on 4 August 2020, giving rise to the current appeal.
  2. [2]
    The Council’s grounds for refusal centre mainly on the fact that the land is flood affected from the Nerang River and access to it is extremely hazardous during relevant flood events.  The reasons refer to a number of aspects:

-The proposed development will introduce more than 200 older people into a known flood hazard area and expose them to the risk of flooding and the need for evacuation during flood events in cases of medical emergencies;

-It does not avoid the flood constraint, rather the relevant flood emergency management plan (FEMP) adopts a “shelter in place” response which the Council says is inappropriate; 

-It thus does not comply with, and is not acceptable having regard to, a number of assessment benchmarks; 

-It would cause “scour effects”, i.e. unacceptable erosion, considering the proposed development’s proximity to the Lake Orr Weir; 

-It encroaches over the waterway, there is a shortfall in public connection, and any identified need for the development does not justify its proceeding compared to the significant concerns identified.  It is said that the proposed development cannot be conditioned to address all the aspects of the City Plan with which it does not comply.  Its approval is therefore not in the public interest.

Assessment Criteria

  1. [3]
    The appeal is by way of a hearing anew.[1]  Noble Life, as the applicant, carries the onus.[2]
  2. [4]
    As the application is impact assessable, assessment must be carried out against relative assessment benchmarks in a categorising instrument (in this case the City Plan) for the development and having regard to any matters prescribed by regulation.  The assessment may be carried out against, or having regard to, any other relevant matter other than a person’s personal circumstances, financial or otherwise.[3]  The decision of the Court is thus to be based on the assessment required by s 45(5)-(7) of the PA (pursuant to s 59(3) of the PA, subject to s 46(2) of the PECA).
  3. [5]
    The approach to such an assessment is set out in Ashvan Investments Unit Trust v Brisbane City Council[4] and has since been affirmed by the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor.[5]
  4. [6]
    What is thus required is a balanced decision in the public interest, based upon an assessment of the merits of an application, having regard to established policy and other relevant considerations.[6]  It is described as a broad and flexible approach[7] and a “broad evaluative judgment”.[8]  The decision must be a balanced one in the public interest considered against the backdrop of the relevant planning scheme and proper planning practice.[9]  The evidence and principles touching on the issues is set out below.

The Land

  1. [7]
    The subject site is at 25 Lake Orr Drive, Robina, described as Lot 120 SP 171262.  It has an area of 6,647 m2 and is identified by the Gold Coast City Plan, V7 as being in an Innovation Zone within the Bond University Precinct.  It is currently vacant, relatively flat and generally low lying with a slight slope from west to east across the subject site, sloping from the lake bank to the private road.  The neighbouring site to the north has been developed as student accommodation, an 8-storey building constructed on a podium extending out from the lake bank.

The Proposed Facility

  1. [8]
    The proposal involves the establishment of a 17-storey high rise retirement facility including a total of 120 units; 12 one-bedroom units, 94 two-bedroom units and 14 three-bedroom units.  The lower levels are three floors of car parking providing a total of 133 parking spaces.  Thus, the accommodation effectively commences on the fourth storey; relevantly, Noble Life argues, above all possible flood levels.  The building also includes a roof top pool, theatre, ballroom, communal kitchen and lounge facilities as well as a helipad.

The City Plan

  1. [9]
    As outlined above, the land is in an urban area, and indeed a suburban neighbourhood[10] and is within the innovation zone (Bond University Precinct).  It requires impact assessment, as although the majority of land has a 54-metre height limit,[11] the parts of the land that are an extension of the adjoining lake have a two-storey/14-metre height designation.[12] 
  2. [10]
    As identified in the list of issues for determination,[13] a number of assessment benchmarks in the planning scheme are in contest between the parties.  Of central importance is the Flood Overlay Code (FOC)[14] including s 8.2.8.2, purpose, particularly at (2): “the purpose of the flood overlay code is to regulate development occurring in flood effected areas to ensure development does not cause, increase or have cumulative potential to cause or increase, the risks and/or hazards associated with flooding” (emphasis added). Also relevant within purpose are subsections 3(a), 3(b) and 3(g) and Performance Outcomes PO5, PO9 and PO11.  In summary, the Code aims at overall outcomes avoiding or lessening the adverse impacts of flooding with development located, designed and managed to mitigate the risk to life and to property. There should be no extra burdens on counter-disaster response efforts and best practice approach to flood plain management should be achieved and maintained.  There should be no increase in the level of risk to life; undue exposure to flood hazard should be avoided and developments must demonstrate that sufficient access or egress will be available to enable evacuation during a range of floods, up to and including the designated flood.  This is consistent with the higher order Strategic Outcomes in 3.8.1(14), 3.8.7.1(1) and 3.8.7.1(2).  Development in natural hazard areas should only occur if it is located, designed and managed to mitigate the risk to life and property. 
  3. [11]
    The application of PO7 of the FOC is in issue.  The table produced at 8.2.8-3 for that performance outcome sets out a number of land uses with the accompanying level of designated flood for the purposes of the FOC.  The Council submits that where the proposal can be more than one of those generically described, non-defined uses, regard should be had to the stricter standard applicable because the decision is concerned with human life, safety and wellbeing.  The proposal can be seen as residential, but the Council argues it could also be seen as a home for the aged, and during a flood event, the building becomes a “place of refuge”.  In these circumstances, the Council submits that the designated flood level should be at .5% AEP[15] (i.e. a Q200 Flood, an event recurring once in 200 years) rather than the 1% AEP applied for residential buildings. 
  4. [12]
    The Council submits that the proposal does not comply with the overall outcomes and performance outcomes referred to because the proposal puts lives at risk, increases the number of people at risk, increases the number of people likely to need evacuation and places additional burden on the Council’s resources or emergency services. 
  5. [13]
    In this context, Noble Life points out that the development would be consistent with the City Plan acceptable outcomes if one only considered the building rather than its access.  Even considering the access, the requirement is that it not be inundated in a Q100/Q200 event.  These events are in the order of 2 metres lower than the PMF (the Probable Maximum Flood, a theoretical estimate of the largest flood that can possibly occur). 
  6. [14]
    The case advanced for Noble Life is that the City Plan does not demand a “no risk” outcome, rather, the issue is whether the risk presented by the periodical isolation from flooding, in the context of the risk mitigation measures inherent in the proposal, is reasonably acceptable.  Further the use proposed is one which is contemplated in the zone; of good design, providing excellent amenity; and generally well located. The Council argues, broadly, that there is non-compliance with the Planning Scheme; and as regards the flood risk, the City Plan should be read from the point of view of an underlying policy of conservatism, which informs the balancing exercise, particularly when considering risk, which in this case is not sufficiently mitigated. This is because the appropriate soft control measures cannot be assumed to be
  1. (a)
    sufficient and effective;
  2. (b)
    properly implemented in any particular instance or, importantly;
  3. (c)
    kept in place for the life of the development.

Issues for determination

  1. [15]
    The parties have agreed on a number of issues to be determined.  These include:
  1. Whether the location and design of the development (including its flood immunity) and the associated management measures that are proposed (including but not limited to the FEMP and flood emergency operational plan (FEOP)) results in the appropriate management of flood risk for the development, its residents (and visitors and staff) and their property.  This is having regard to the relevant assessment benchmarks, matters prescribed by s 31(1)(d) of the Planning Regulation 2017, and other relevant matters.
  2. Having regard to paragraph 1 above, whether the development is incompatible with the level of flood hazard.
  3. Whether the existing pedestrian and cycle connection over the Lake Orr Weir is currently blocked at the eastern side and, if so, whether that ought stand in the way of approval of the development as a result of a lack of public connection for the development.
  4. Whether the development’s contribution to housing diversity favours approval.
  5. The extent to which the development’s consistency with, and contemplation by, the zone in which the land is located and the extent to which the development supports surrounding centres and zones supports approval of the development.  This is taking into account the relevant assessment benchmarks, the matters prescribed by s 31(d) of the Planning Regulation 2017, and the other relevant matters.
  6. The extent to which the development’s efficient use of constrained land supports approval of the development, again taking into account the assessment benchmarks, the matters prescribed by s 31(d) and other relevant matters.
  7. The extent to which the development’s positive contribution to the built form and amenity in the locality by the utilization of a high-quality design supports approval of the development, again taking into account the assessment benchmarks, the matters prescribed by s 31(d) and other relevant matters.
  8. The extent to which the development’s contribution to public parks and active transport infrastructure favours approval, again taking into account the assessment benchmarks, the matters prescribed by s 31(d) and other relevant matters.
  9. Whether, as a relevant matter in support of refusal, the possible development of the land for knowledge industries would result in greater community benefits through job creation and the encouragement of innovation, creative, entrepreneurial and other newly emerging activities.
  10. Whether the following are relevant matters in support of approval of the development:
    1. (a)
      the development is consistent with reasonable public expectations as to the development of the subject land;
    2. (b)
      development of the land consistent with what is herein proposed would be in the public interest;
    3. (c)
      there is an economic need, community need and planning need for the development.
  11. If the other matters set out above favour approval, whether they are separately or together, sufficient or insufficient to overcome the issues stated in paragraphs 1 and 2.

These issues fall to be decided on the evidence, which includes expert evidence in a number of categories, discussed as follows.

Economic and Community Need

  1. [16]
    The degree of need (both economic and community) for a development of the kind contemplated by the proposal is in issue. The economic need is described by the Council as the demand for retirement facilities within the agreed economic catchment; the community need refers to the general benefits, including greater choice for the public and better community facilities in the surrounding public areas.
  2. [17]
    It is common ground that South-East Queensland, and the Gold Coast in particular is projected to have significant population growth in the next 20 years. There is therefore a need for further accommodation. The Gold Coast City Plan version seven came into effect on 1 July 2019. It contemplates population increase for the Gold Coast of 320,000 over the next 20 years. There is reference to a need for about 130,000 new dwellings over that time frame.
  3. [18]
    In that context, Section 3.2.2 “City Shape and Urban Transformation” includes the following observation:

“Because the Gold Coast’s urban areas will not significantly expand, the majority of these dwellings (around 2/3) will occur in the consolidation area, particularly in renewed and transformed centres and key inner city urban neighbourhoods. The remaining 1/3 of new dwellings will occur in the expansion area, particularly in the urban areas (as shown in strategic framework map 1) of Coomera, Pimpama and Upper Coomera.”

  1. [19]
    Desired outcomes, for example under the “Innovation Zone Code”, s 6.2.17.2, include orderly and efficient settlement pattern, characterised by appropriate access to public transport; proximity to major employment concentrations, centres, social and community infrastructure facilities and important amenity features; capacity of available infrastructure to support the development; and delivery of a generous mix of housing form, sizes and affordability outcomes that meet housing needs for the locality.
  2. [20]
    There is a distinction, relevant to the considerations in this appeal, to be made between residential aged care as compared with retirement facilities.  Residential aged care is for residents who cannot live without assistance or support, whereas retirement facilities provide independent living with some offering a more limited form of assistance (home care services can also be obtained in the same way they are delivered to residential homes).  Noble Life argues in this case that the proposed development is targeted at the younger age bracket of the likely cohort of people interested in (independent) retirement facility living. This is relevant in that a younger, presumably fitter and more independent cohort is a relevant factor to the degree of acceptable risk; however the degree to which this targeting will be successful, and its continuing effect as residents “age in place” over time, is contested by the Council.

Joint Expert Report

  1. [21]
    The joint expert report on economic need, Exhibit 5.05, refers inter alia to a submission made to the Transport and Local Government Committee in September 2012 by the Retirement Village Association, containing relevant evidence as to the context in which need arises.  Relevant points made include:
  • Queensland faces an enormous challenge in how to care for and house an ever- increasing ageing population.  It is vital that a wide range of choice in retirement accommodation is available.
  • Seniors have, in their individual ways, contributed to the growth of the nation and thus earned the right of choice in accommodation, service options and care in later life.
  • One such option is the retirement village service/accommodation model as has emerged over the past 30 years or more.  Retirement villages house more than five per cent of people over age 65 and more than 10 per cent of those aged over 75.
  • The retirement village industry is diverse, spanning church and charitable operators, larger listed entities and smaller independent operators.
  • Nationally, there are over 1,950 retirement villages accommodating around 160,000 or more Australians.
  • In Queensland around 40,000 older people live in one of the 280 retirement villages developed in the last 30 years, comprising of around 37,000 units.
  • Retirement villages:
  • enable people to downsize and live affordably as they age;
  • enable people to live in a purpose-built community facility with full-scale infrastructure;
  • enable people to age near the areas they live or grew up in, assisting them to maintain their networks and social connections;
  • contribute to the diversity of housing, stock and density targets in suburbs;
  • provide a communal and support of living environment for people who need it most;
  • reduce the economic burden across all levels of government in the delivery of housing and support for older people.
  1. [22]
    The submission also includes information that the average age of a resident in a retirement village is 78 and the age of entry is 73 (as at 2012; this is now 75, see [70] below). This tends to conflict, or is in tension with, Noble Life’s stated aim to market the development to a younger age bracket, or at least the likely cohort entering the development.  In any case, the submission also outlines that retirement village units were generally priced considerably below the median house price in the surrounding suburbs, enabling older people to profitably downsize; this aspect was considered to be increasingly under threat.  Many factors contribute to a lack of affordable seniors’ accommodation in Queensland, the main one being the cost of developing or re-developing retirement villages in locations suitable to the cohort.
  2. [23]
    Advantages of retirement facilities include improving residents’ lifestyles and providing significant savings for local and federal governments by delaying residents’ entry into government-funded aged care facilities.  Research also indicates that the majority of people living in retirement villages are happy in doing so.
  3. [24]
    Generally, the experts’ review of key literature indicates a number of challenges relating to accommodation for older persons including:
  • the Australian population is ageing and the number of residents requiring aged care and retirement facilities will increase substantially over time;
  • supplying affordable accommodation is difficult, particularly the provision of quality accommodation in highly sought after areas;
  • there are constraints to supply due to a number of issues, including planning and financial issues;
  • many Australians wish to age in place within the communities they have lived in most of their lives;
  • increasing expectations around the standard of living for older people, with impacts on the size, location and quality of retirement living and aged care developments and the provision of support services.
  1. [25]
    As to the proposed development, Mr Duane, Noble Life’s expert economist, opines that it will provide a modern retirement village facility creating choice in close proximity to existing communities and infrastructure.[16]  Ms  Wells, Noble Life’s retirement and aged care industry expert, opines that the development will deliver a new form of retirement living that is not currently available in the catchment area and therefore significantly improve diversity of retirement living options for persons over the age of 55 or 65 years.[17]  These experts obviously both favour approval, in that there is an identifiable need for the development.

Ms Meulman

  1. [26]
    Ms Meulman, the Council’s economist[18], agrees that the proposed development would deliver a modern retirement village but considers the subject site is somewhat isolated[19] from supporting community facilities and infrastructure.  Bermuda Street, which it adjoins, is a challenging street for pedestrians to cross, with up to six lanes of traffic plus bike lanes at the intersection with Lake Orr Drive.  There is a pedestrian underpass running beneath Bermuda Street, however it is poorly lit and has a tendency to be muddy making it an unattractive pedestrian route, as was observed on the site visit.[20]
  2. [27]
    Ms Meulman also notes that of the four competing retirement villages in the catchment area, three have minimum ages of 65 and one of 55 years; this suggests capacity and intent from those villages to accommodate a younger cohort if this is in demand. There is nothing, in her view, unique about the proposal restricting its attraction to the younger market, e.g. there are only 14 three bedroom units, which are considered more likely to appeal to active retirees.
  3. [28]
    Ms Meulman opines that there is no guarantee the residents entering will be young and independent and will remain so during their tenure[21]; they will likely have increasing needs for support; the surrounding facilities which are conveniently accessible are limited; and integrated access to care as residents’ needs change is not offered. Thus although there is a degree of need for retirement living options such as is proposed, it is outweighed in this case by the drawbacks. The development would concentrate up to 170 older persons on the site, who may be increasingly subject to cognitive and mobility changes as they age, in a location detached from other facilities, services and amenities.[22] The site, in the Innovation Zone, is better retained for research, technology and education purposes, of greater economic and employment benefit to the Gold Coast economy,[23] although Noble Life points out that no proposal for such an alternative use presently exists.[24]
  4. [29]
    Ms Meulman says there are other better options for additional retirement living facilities, including expansion and redevelopment of existing retirement facilities as well as vacant sites. Noble Life argues that the Court ought not be distracted from examining the present proposal by engaging in an attempt to compare the merits of other particular sites where no current proposal exists,[25] however in my view there has not been an impermissible digression in this case. Other possible sites which are above flood level have been pointed out during the evidence, but not, in my view, to compare them in detail; rather, to have that broad fact taken into account when considering the degree of need for the present proposal. It is correct to say that the present proposal is the only one under consideration in this matter.

Ms Wells

  1. [30]
    As to isolation, Ms Wells notes that based on the target market, it is likely most residents would be living independently and able to drive or be assisted to access the services and infrastructure in the local and wider area.  Thus, pedestrian access to those services and amenities is not of critical importance.
  2. [31]
    Ms Wells generally agrees with Mr Duane and opines that there is a significant need considering the increasingly older population in the catchment area and a current and increasing shortfall of retirement facility supply.  Thus, the risk is older Australians being forced to leave their local community to access appropriate accommodation, or persons not accessing appropriate retirement housing choices.
  3. [32]
    She emphasises that expectations of retirees are changing and existing and proposed stock for the market should contribute to diversity, changing expectations and increased choice.  She opines that the present stock is focused on an older target market seeking an environment with built in care.  Existing stock is older with more traditional broader retirement facilities constructed between 1980 and 1996.  She opines that these sites focus on attracting an older population; they provide for “built in” care arrangements, which the proposal does not.
  4. [33]
    Similarly, proposals for new sites and extensions to existing sites, she opines, have a primary focus on the over 75 years population with inbuilt care.  Thus, there is limited existing or proposed access for younger retirees or older independent persons seeking a contemporary retirement community not focused on care.  She notes that future redevelopment or expansion of existing sites does not have a known timeframe and such redevelopment is often very slow.
  5. [34]
    She considers that the proposed development is attractive in a number of ways. It will significantly contribute to choice and housing diversity.  It will significantly increase housing choices for retirees and seniors that is attractive and suitably designed for the target market; is accessible to services and infrastructure; is accessible to the catchment area and thus enabling seniors to age in their neighbourhood.  She opines that the proposal offers self- contained services that promote independence, wellbeing, social inclusion and lifestyle for the intended target market.
  6. [35]
    Ms Wells opines that the proposal offers the only retirement facility in the catchment focused on the younger independent and active retiree or those transitioning to retirement; that is, focused on independent living and not care.[26] Thus, vertical apartment living offers a choice for the target market to be able to enjoy this style of accommodation with a community of persons at the same life stage.  She notes the contemporary design and fit out for aging needs including modern technology and innovations, larger individual accommodation than existing stock including accommodation with at least two bathrooms, covered and secure parking with direct access to accommodation, built in security, and access to a range of contemporary shared amenities.  Although the proposal focuses on independent living, if the need arises there is access to a range of higher care environments in the catchment.
  7. [36]
    She has reviewed the FEMP and FEOP and opines that the FEOP is suitable and appropriate for the intended market and mitigates as much as possible the risks to the intended residents,[27] although she appropriately defers to the flood experts in this regard.  Thus, on balance she supports approval.

Mr Duane

  1. [37]
    Mr Duane similarly supports the development referring to improved access to retirement village services; limited existing supply; appropriate access to other facilities and amenities; attractive design of the facility; increased choice and efficient use of the land.  He considers the proposal to be of significant community benefit.

Calculation of Undersupply

  1. [38]
    Although the experts have made projections over a fairly long timeframe – up to 2041 – the Council submits, and I accept, that the longer timeframes past 2026 are of little relevance, involving an unhelpful degree of speculation (for example, in the interim other developments may come online which are code assessable and thus proceed more quickly). Thus I view the expert evidence in this context.
  2. [39]
    Mr Duane and Ms Meulman disagree on the calculation of the degree of undersupply of relevant accommodation in the catchment. On the penetration rate – the proportion of persons over 55 in the catchment area who live in a retirement facility – Mr Duane adopted a rate of 7%, as opposed to 4.8% or 5.5% adopted by Ms Meulman. The dispute arises from different approaches to the calculation. The Council submits that 7% is too dramatic a jump from the current rate of 2.6%, although the rate is increasing. It is said that the catchment has a lower figure than the South-East Queensland average, as explained by Ms Meulman.[28] I am inclined to adopt the figure of 5.5%.
  3. [40]
    There is also a dispute, in this context, as to what assumptions should be made as to the number of retirees per Independent Living Unit (“ILU”). Ms Meulman adopts a figure of 1.39 per ILU, whereas Mr Duane adopted 1.3 persons. These figures make some difference to the calculations, but not a marked difference. In Table 6 on p 50 of the Joint Expert Report (JER) (Exhibit 5.05), dealing with supply and demand in the catchment, Mr Duane arrives at an undersupply of 740 units by 2026 (a shortfall of, broadly, about 6-7 retirement villages at 105 to 120 ILU’s per village). On a penetration rate of 5.5%, the figure becomes 500 ILU’s, or 4-5 villages. On the other hand, looking only at the primary sector,[29] in Ms Meulman’s assumptions the figure is 236 units or less by 2026, or about 2 villages.[30]
  4. [41]
    Thus I proceed on the basis there is a definite need; the best estimates on the projections give an undersupply in the range of two to five retirement villages by 2026; but in my view this feature, while significant, is not decisive.

Conclusion re: Economic Need

  1. [42]
    There is no doubt that there is an economic need for a development of the kind contemplated by the proposal. In this context, Noble Life points to the City Plan itself[31] which contemplates the proposed use as being code assessable in the zone, acknowledging such a use being contemplated or perhaps encouraged.[32] Where the parties differ is as to the degree of the need.  In considering the competing arguments on this point, there is doubt, as identified by Ms Meulman, as to the long term effectiveness of Noble Life’s stated intention to target a younger market. Further the Council points to other available sites – without descending to detailed competing attributes where no competing proposal exists, but pointing out that land around the Robina Town Centre, for example, has all of the amenities of the proposed site and is more conveniently located, with a hospital and no flood risk.  Mr Schomburgk, Noble Life’s town planning expert, accepted that both Robina Town Centre and the “beachfront strip” east of the Gold Coast Highway were acceptable possible locations.[33]
  2. [43]
    I also note Ms Wells’ observation that although the quantitative analysis of supply discussed above is useful, it is also important to compare qualitatively; the proposal is for modern retirement independent living, a style of which there is little supply.[34] This is, in my view, certainly a relevant factor to be considered, with a number of others, such as amenity, connectivity and quantitative undersupply. There is no doubt the City Plan contemplates such a use in the Zone, and it appears to be an efficient use of the land.
  3. [44]
    Overall, whilst acknowledging the benefits of the proposal, it is my view that the economic need and other features thereof considered in the joint economic need report do not strongly favour approval.  Standing alone, they would not be decisive in favour of the application.

Connectivity

  1. [45]
    Some of the issues concerning connectivity have been canvassed above. Ms Meulman takes the strongest view on this issue, saying that the site has access to only very limited facilities. However she conceded that there was a good range of medical facilities within a comfortable walk, both to the immediate south of the land and across the road, accessible both by underpass and a traffic controlled intersection. The site does not seem to be integrated in any meaningful way with the Bond University Campus, in that the communicating gate is locked.[35]
  2. [46]
    As noted, Mr Reynolds ultimately concluded that connectivity and services were not a matter for refusal,[36] although as I have mentioned, the Council points to the Robina Town Centre area (which is not flood affected) having all of the relevant attributes plus proximity to a hospital; there is, of course, no present proposal for a retirement village facility in that area.
  3. [47]
    The experts called by Noble Life all supported the development on the aspect of connectivity.
  4. [48]
    Overall, although the degree of integration with the surrounding area may not be ideal, the lack of connectivity could not, standing alone, be a reason to reject the proposal. I do note that if the appeal was successful, conditions might be considered to improve the attractiveness and trafficability of the pedestrian underpass.

Flood Risk

  1. [49]
    The Council identifies three aspects of this risk:

(a) the risk of an incident in the building after access has been cut off (either a medical incident for a resident or something else such as a fire);

(b) the risk of a person entering floodwaters – either to leave the building after the boom gate has automatically lowered, or to return after access is cut off, e.g. after taking a car to high ground

(c) the risks associated with evacuating special needs/ vulnerable residents, on average, every 4.8 years.

  1. [50]
    Noble Life submits that on the evidence the flood risk is the only factor preventing approval; absent that risk, which it argues is appropriately ameliorated, the development ought be approved, see the JER on town planning[37] and the evidence of Mr Reynolds.[38] Thus assessment of the risk is central.

Hard and Soft Controls

  1. [51]
    The controls of the risk as proposed fall into the categories of “hard” controls – such as the designed features of the building as constructed – and “soft” controls, such as the procedures put in place to manage behaviour of residents in an emergency. Broadly, Noble Life points to a combination of the relevant measures – the building design and construction, together with the emergency plans – as appropriately ameliorating the risk; the Council takes the contrary position.
  2. [52]
    The hard controls include that the residential units are above any possible flood level, the PMF.[39] This refers to the Possible Maximum Flood level, said to be a 1 in 10,000 years event. Two of the three car park levels are also above the PMF. The lowest car park floor only becomes inundated at a Q500 level (a .05% event) and then only slightly; moreover this level is actually above the City Plan acceptable outcome requirement for habitable areas.[40] Noble Life submits that the main reason for refusal is in effect the risks associated with the cut off of road access in a Q10 event, which is more frequently than the City Plan contemplates; moderate inundation is only permitted in a Q100/Q200 event.[41] This, says Noble Life, is a problem with access, but not the building itself. Of course access, for an older population in a flood event, is important.
  3. [53]
    It is in the case of loss of access that the soft controls of procedures become relevant. Even then, Noble Life submits, it must be remembered that the rising water is not fast flowing[42] such that boat rescue as well as helicopter rescue is possible. I note, in this context, that the case has not focused on “scour” effects from flooding, as mentioned in the grounds for refusal.
  4. [54]
    The hard controls also include a flood gauge together with its automatic locking of the boom gate to the car park at certain levels, preventing residents from attempting to drive into flood waters; the lifts designed to operate in an emergency, with mechanical components and the generator above flood levels[43]; and a Helipad on the roof, together with a stair climbing platform for a stretcher, for emergency evacuation.
  5. [55]
    The soft controls include the FEMP (Exhibit 7.02) and the FEOP (Exhibit 7.01). Broadly, the plans call for “sheltering in place” for up to 72 hours, provided for by continuation of water, sewerage and power supply as well as lift operation, and sufficient food and medications being on hand. There is the possibility, at lower flood levels, of evacuation of high-risk residents (of whom a list is kept and presumably updated) by the high clearance 20 passenger four wheel drive bus to be provided; others remain onsite.

Evidence as to Flood Risk

Mr Youssef

  1. [56]
    A number of witnesses discussed the flood risk issue.  These included Mr Youssef, the Coordinator Disaster Management of the Gold Coast City Council.  He has lengthy experience in fire and emergency services including high level roles and membership of representative boards and command level operational roles.  He also has extensive educational qualifications in fire and emergency management.

Effectiveness of Plans

  1. [57]
    Speaking from his experience,[44] Mr Youssef pointed out problems with the effectiveness of the plans. Severe weather events often impact areas north of the Gold Coast prior to the Gold Coast itself, with the result that finite emergency resources are often committed to immediate demands rather than being kept in reserve for an area that may be impacted in the future, such as the Gold Coast.  He gave the recent example of the February 2022 flooding events, which impacted the Sunshine Coast and Brisbane before the Gold Coast; another instance was the weather event from ex-tropical cyclone Debbie in 2017.  In an emergency, rescue resources are finite and must be deployed appropriately according to priority events that are actually occurring rather than being kept in reserve for potential future situations; the corollary is that availability of sufficient rescue resources in emergencies is necessarily uncertain.

Helicopters

  1. [58]
    There are limited resources on the Gold Coast for emergency medical support by helicopter.  The Emergency Helicopter Network (EHN) includes four assets, none of which are stationed at the Gold Coast and the nearest of which, at Archerfield in Brisbane, is a 30-minute response time from the Gold Coast.  Each of those assets include two air crew and two clinical crew with the capacity to carry two or three seated patients or two stretcher patients.  Further, a rooftop evacuation (such as is contemplated in this case) requires the crews to operate in visual meteorological conditions, requiring a minimum of 800 metres visibility, clear of cloud, and not in close proximity to thunderstorms, hail or severe turbulence.[45]  These features obviously impact the potential availability of helicopter evacuation from the proposed development’s helipad. Reliance on the EHN also seems to me to presume that there will not be a more urgent competing demand on those resources, given that the type of flooding event under consideration may be of widespread impact across South-East Queensland.

Human Unpredictability

  1. [59]
    Mr Youssef said that based on his experience, however good the plans are, people under pressure in emergency situations including evacuations can respond in ways that are unpredictable.[46]  The ability of individuals to implement plans is impacted by a range of factors; the main factor is the individual concerned (i.e. the person whose task it is) being actually ready and doing what is required to ensure they completely understand the plan, that it is front of mind and that they have a personal level of readiness to act in the way required when the event occurs.  Maintaining this level of readiness is challenging, in his experience.[47]  Thus relying on plans as a fundamental risk control is questionable.
  2. [60]
    Thus, based on his experience, Mr Youssef observes that a number of factors may impact the effectiveness of the proposed FEMP and FEOP.  These factors include:
    1. (a)
      The use of the helipad may not be viable due to non-availability of aircraft, or weather conditions and there are no other contingencies for medical emergencies once the shelter in place strategy is implemented. 
    2. (b)
      There is a risk of residents attempting to leave or enter the building, regardless of flood warnings and directions from staff. As he said in evidence, he has seen some quite erratic behaviour in his time in emergency management, and people are unpredictable and may make illogical decisions putting themselves and others at risk.[48] His preference is thus not to put people in a position of risk.[49]
    3. (c)
      Fire services may be unable to access the building in an emergency with the necessary resources.
    4. (d)
      There is no guarantee the required staff with relevant operational responsibilities will be on site or able to successfully implement the plans.  The FEMP and FEOP contain many triggers, processes, responsibilities and requirements and may be complex to implement in a dynamic disaster event.[50]
  3. [61]
    Mr Youssef said that emergency messaging can be inconsistent or unreliable in emergency events, but acknowledged that the internal messaging system planned for this development would be more robust.[51]

Neil Collins

  1. [62]
    Noble Life called Neil Collins as an expert in relation to hydraulic engineering and flood emergency management planning.  He is an engineer specialising in flood and water resources and has extensive experience in such matters.  He and other relevant experts consulted in producing the joint expert report[52] and also in the updating of the FEMP.  He opines that the FEMP will allow all residents, guests and management to safely shelter in place for up to 72 hours, with appropriate water supply, working toilets, cooking facilities, light and power and a working lift for access.  Although there will be a small number of “special needs” people on site, his view is they will have sufficient time to evacuate early in a flood, using the high clearance minibus to be provided by management.  He says that 72 hours is the maximum period of isolation in an extreme flood, and isolation periods are much less for more typical floods, more likely, for example, to be no more than 46 hours in a one-in-100 (1%) event. I pause to note that this mathematical description of the likelihood of flood events, as I understand it, is not intended to indicate such an event will occur once in 100 years; rather, there is a 1 in 100 chance of such an event occurring in a particular year.  Consistent with this distinction, there have been two such events in Brisbane since 1974 and four since 1890.[53] The proposed evacuation trigger level of 2.3m AHD[54] would be reached, on Council’s flood modelling, on average once every 4.8 years.[55]
  2. [63]
    Mr Collins differs in opinion on many of the topics touched upon by Mr Gissing, a witness for the Council on emergency management and disaster risk management.  It is helpful, as a way to understand Mr Collins’ evidence, to summarise some of these points of difference:

-Firstly he is of the view that sheltering in place, which is broadly the tactic embraced by the FEMP, is appropriate and is employed in many similar developments across the Gold Coast, indeed evacuation in many situations is not practicable. 

-He says that the flood model employed by the FEMP is conservative, as it ignores the flood mitigation benefits of Hinze Dam, Stage 3 of which reduces flood levels in the relevant area. 

-Medical retrieval during a flood is possible by ambulance in the lower-level flooding events; and during more severe events where the road access is cut, patients could be carried to Bermuda Street, which is at a much higher level, for evacuation.[56]  It is not clear to me how practicable this is; there is a significant slope for a stretcher to be carried up to access Bermuda Street.

-He considers helicopter rescue will be required in the unlikely event of a medical emergency in a severe flood, but there is to be a contractual arrangement with a commercial helicopter service for this. Mr Gissing was critical of this, likening the use of a commercial, non-specialist helicopter to sending an Uber to a cardiac arrest.[57] I also note Mr Youssef’s commentary about helicopters, see [58] above.

-He agreed with the proposition, referred to by Mr Gissing, that the Commission of Enquiry into the 2011 floods in Brisbane recommended that housing for the aged is best sited in flood free areas.[58]

  1. [64]
    As to special needs people being reluctant to evacuate, and residents who chose to stay changing their mind and trying to leave by entering flood waters, Mr Collins considers these risks should be appropriately addressed through procedures and controls in the FEOP.  He acknowledges possible problems with behavioural issues of residents, such as not properly following directions etc, but such issues need to be controlled by the building manager through the operational management plan with proper communication, clear instructions and appropriate controls.  He acknowledges the risks of the FEMP not being appropriately maintained over time, but says this is an operational management issue and the operator will be bound to comply with approval conditions requiring maintenance of the FEMP.  He says that the operational management plan should include a provision for flood awareness training and an implementation of the FEMP.
  2. [65]
    Mr Collins said that the flood modelling exercise involved considerable conservatism, including allowing for climate change risk.  Historically, he said that there would not have been a flooding event in the last 17 years that would have isolated the site.[59]  He also said that the FEMP has been done to a high standard and overall the development should not add to any burden on emergency services during a flood.
  3. [66]
    It is noteworthy, however, that a photograph reproduced at page 100 of Mr Collins’ statement of evidence was taken on 28 February 2022, during the recent flooding event.  It shows a car in the roundabout in flood waters up to the top of the wheel arches.  This is apparently the area where the intention is to raise the level of the road. Possibly Mr Collins was referring to a situation after this work has been completed, and the raised level of the roundabout and access road would no doubt give a different result in a flood to a similar level.
  4. [67]
    Mr Collins was largely responsible for the production of the FEMP.  Qualitative risk analysis is included on Page 21 of that document,[60] analysing the risks to four separate vulnerable elements of the development.  Mr Collins accepted, after a correction to the table during evidence, that the risks to residents, staff and visitors from such persons attempting to enter or exit the subject site while flood water is over the access road, while unlikely, has a consequence level of catastrophic and a risk rating of extreme.[61]  The same categorisation applies to the element of critical facilities given that emergency services will be unable to access the subject site by road once the roads are inundated to a depth of 500 millimetres, although the likelihood rating of such an event is again unlikely.

Ms Wells

A Rules Based Community

  1. [68]
    Ms Wells opined, relevantly to the probable effectiveness of the plans, that residents will be a group particularly likely to follow rules, such as the FEMP and FEOP, where they have chosen to live in a rules-based community.[62] The Council expressed doubt about this and the research it is based on and refers instead to the experience of Mr Youssef outlined above.[63]

Character of the likely Residents

  1. [69]
    As noted above, the proposal is aimed at younger retirees, capable of independent living; this is relevant, for example to the calculus of likely numbers of special needs residents requiring evacuation in the bus, and thus to risk generally including risk of need of emergency medical evacuation. Ms Wells bases this in part on the lack of built-in care facilities; the idea is that if a prospective resident cannot live independently, this retirement village is not aimed at that market and so the younger, independent cohort is likely to make up the majority.
  2. [70]
    However the effectiveness of this strategy may be doubtful. Ms Wells says the provider is clearly targeting people aged 55 and over; but they will not be asked to leave when they turn 65.[64] The average age for entry to a retirement facility is 75 years, the average age of residents is 81 years and the average time a resident has lived in their village is 8-9 years;[65] albeit these figures refer to such facilities generally rather than those targeted at those 55 and over, such as this proposal. Further, people who do enter at a younger age will obviously age during their residency. The average age of a resident increases with village age, stabilising after 20 years.[66]
  3. [71]
    Further as to the characteristics of the residents, Mr Reynolds, the Council’s town planning expert, points out that in 2018 50% of Australians aged 65 and over had a disability.[67] Mr Gissing refers to statistics as to vulnerability of older people; 85% of those over 55 access Pharmaceutical Benefits Scheme (PBS) subsidized prescriptions, each year one third of people over 65 experience a fall, and the median age of resuscitation attempts by Queensland Ambulance Service is 63 for males and 67 for females.[68]
  4. [72]
    No doubt the marketing strategy mentioned above will have an impact on the average age of the residents, but not all will be, and continue to be, relatively younger and independent over the life of the development, up to 70 years. The Council also submits that despite the apparent marketing intentions, there is no evidence an older prospective resident who wished to buy in would be turned away. Indeed the FEMP allows for pre-registration of special needs residents for assisted early evacuation.[69] Overall the characterisation of the proposed residents as younger and fitter than average retirees (a characterisation contested, as outlined above, by the Council), thus reducing flood-related risk is not, in my conclusion, a matter of significant weight.

The Responsibilities and Tasks of the Building Manager

  1. [73]
    The soft controls – the FEMP and FEOP – rely largely on a number of duties imposed on the Building Manager (BM) – see in particular p 26-7 of the FEMP. These range from appointing an unspecified number of Flood Wardens – volunteer residents and/or staff, trained in an unspecified way to co-ordinate the flood response; to communicating with residents; directing preparations; ensuring everyone is familiar with the FEMP; maintaining registers of (a) all residents (b) special needs residents; maintaining and operating the evacuation bus (presumably the BM wouldn’t drive it; someone, maybe a maintenance person, would have to be licenced and on site to do so); ensuring the flood warning system is operational and updated; being concerned with possible power rationing, signage and movement control of residents and others; and running annual emergency flood drills.
  2. [74]
    The BM needs to be able to do these things effectively despite possible distractions, in a possibly high pressure situation. I have noted Mr Youssef’s concerns on this aspect at [59]-[60] above.
  3. [75]
    Mr Gissing also noted that such plans, even when designed for professional emergency services, may not achieve adequate risk management, being assumptions-based and prone to failure.[70] The BM may be called upon to deal with complexity, uncertainty and stress – and that in that circumstance it is very easy to miss things, misunderstand things or not be able to fully absorb the information.[71] He saw the BM and his or her team as being required to be (simultaneously) the SES, fire brigade, ambulance, police, electrician and plumber; further there are likely to be, simply, unforeseen circumstances, a “failure of imagination”[72]. Thus he has concerns about the plans as effective risk management measures.
  4. [76]
    Mr Collins spoke to the plans, the FEMP in particular, their proposed operation, and that the risks were adequately mitigated and that there should be no additional burden on emergency services. His evidence is summarised at [62] to [67] above. He said, as to the BM being overwhelmed, the flood wardens are to assist as well as the maintenance manager.[73] The FEMP is partly based on assumptions, but the hard controls are not.[74] He left questions of human behaviour to others.[75]

Risk Generally

  1. [77]
    Dr Johnson was called by Noble Life as a structural and civil engineer and risk assessment expert. He, like Mr Collins, disagrees with Mr Gissing in that he feels Mr Gissing’s comments are based on the idea that any residential development in a flood plain is unacceptable because of the flooding risks. This, says Dr Johnson, is incorrect where:

-Both the Gold Coast City Council planning scheme and the State Planning Policy permit residential development in flood plains with suitable risk amelioration; in fact there are no Queensland local authorities which prohibit development in flood plains.

-In this case the habitable areas are above the PMF level; they will never be inundated in a flood event.

-The State Planning Policy states that development in flood areas should either avoid the natural hazard area or, where that is not possible, the development mitigates the risks to people and properties to an acceptable or tolerable level. He thus says the risk should be either minimised or mitigated to an acceptable or tolerable level.

  1. [78]
    As to statistical probabilities, he notes that there is a 63% chance that a 1% AEP event will occur during a specific period of 100 years.[76] Of course, as noted above, the evidence in this case is that four such events have occurred in Brisbane in the last 130 years; statistical projections ought be approached with caution.
  2. [79]
    He notes the Council’s Flood Overlay Code adopts a risk profile which is considered to be acceptable by the community[77], and again here the habitable floors will never be flooded. He notes that many human activities involve implicit acceptance of a degree of risk, for example, travel on public roads. He compares the risk presented by the development with more risky human activities, such as a motorist driving on flooded roads. Such a motorist has a real risk of death or injury occurring; conversely if a person is sheltering in place on the proposed site, there is no risk of death from drowning.[78] The rhetorical response to the motorist metaphor may be that they weren’t placed in the position of driving on flooded roads by a deliberate planning decision, as is being considered in this case.
  3. [80]
    He opines, therefore, that the mere existence of a non – zero risk is not sufficient to say that the risk is unacceptable. The proposed residents will be fully informed of the flood risk associated with the facility, and the need to evacuate from the facility early in a flood event, or shelter in place for its duration. As the Council has advocated sheltering in place as a suitable flood emergency response, there is no reason why this is not acceptable here.
  4. [81]
    He also opines that the risk of developing the proposal in the flood plain at this location is no greater than for a multitude of existing developments similarly situated within Gold Coast City. The planning scheme permits development in the form and location nominated, provided that risk to people’s lives in extreme flood events is satisfactorily mitigated, which it is in this case. Residents of the facility will not face any significant risk during a major flood event, and in fact, will be substantially better off than the majority of residents who occupy property in the Nerang River flood plain.[79]
  5. [82]
    Overall, Dr Johnson disagrees with Mr Gissing whose positions he says are unreasonably risk averse. There is a low probability (less than 2% in his opinion) that a requirement for medical evacuation will coincide with a period of shelter in place. There is in any case a helipad on the roof for this purpose. He calculates the probability of a fire occurring concurrently with a major flood as less than 1 in 16,000. Given the sprinkler systems in the building (and the reasonable ability of residents / managers / staff on site to combat fire), it could not reasonably be argued that the outbreak of fire is likely to be problematic for the development.[80]
  6. [83]
    Dr Johnson’s approach (as with Mr Collins’) was from the perspective of a theoretical analysis of risk, rather than first hand experience. The Council emphasised that the witnesses with actual experience in emergency management, Mr Youssef and Mr Gissing, express concerns about the soft controls, relying on their experience to identify the real risks, as outlined above.
  7. [84]
    Dr Johnson accepts that one cannot engineer human behaviour.[81] However as to the risk of manuals or procedures not being followed, he said that the presence of the onsite manager substantially reduces such a risk; there is a far better chance of the manual being followed if there are people tasked with that responsibility and the onsite management personnel will implement the flood management plan.[82] In essence, his opinion is that the risk is sufficiently mitigated. He considers that the FEMP is very well thought out.[83]
  8. [85]
    Mr Gissing has qualifications including a Master of Science and a Bachelor of Economics, and his profession is Emergency Management Disaster Risk Reduction. He has 19 years emergency management experience and has previously given expert evidence in the area. He was a Manager with the NSW State Emergency Service and a Deputy Chief Officer/ Director Emergency Management and Communication with the Victoria State Emergency Service.[84] He does not consider the risks to be moderated to an acceptable level. He opines that over the 70 year lifespan of the development the risk of a resident requiring urgent ambulance assistance during a flood isolation period is at least 10%.[85] He considered that the proposal’s susceptibility to flooding events relatively frequently, such as to trigger the emergency procedures is problematic; people may become desensitised to the plan.[86] Although it is obviously dangerous to do so, people do enter flood waters – it is ingrained behaviour.[87] This development would place people in a flood plain with greater proximity to flood waters, making such behaviour more likely.[88]
  9. [86]
    Overall Mr Gissing does not agree that the characteristics of the development, including the FEMP and FEOP, have mitigated the risks associated with the proposed development to an acceptable level.[89] He considers the FEOP to be lacking detail and more resembling a policy document than an operational procedure.[90] It makes a number of assumptions, including that residents will appropriately maintain a stock of necessary medication and a home emergency kit. He notes that arrangements with a private helicopter for emergency evacuation are not appropriate as outlined above; he opines that, where a private helicopter evacuation is proposed
    1. (i)
      the helicopter crew is unlikely to have the required skills and equipment for a medical emergency
    2. (ii)
      the helicopter is unlikely to be available in a timely manner
    3. (iii)
      it will be restricted by operational limitations, and
    4. (iv)
      its operations would need to be integrated with rescue and medical services.[91]

As noted above, his rhetoric was somewhat colourful on this topic, however I do not consider this eroded the weight of his evidence and opinions; rather he presented as a passionate advocate for safety, with lived experience of the dangers of natural disasters.

  1. [87]
    Noble Life makes a number of relevant points in relation to the evidence of Mr Gissing. He accepted that the question of sufficient access is ultimately a matter for professional judgment involving fact and degree,[92] whereby risk can be acceptable in appropriate circumstances, and the matter boils down to the degree of appetite for risk.[93] Moreover, he conceded:
    1. (i)
      Shelter-in-place, as is predominately proposed here, and isolation, can be acceptable in appropriate circumstances, although there is a safety issue arising from the moment of isolation;[94]
    2. (ii)
      A flood event, for this development, does not create a problem in and of itself, only a risk of a problem, which risk may manifest in a variety of different emergency incidents of varying severity;[95]
    3. (iii)
      The development has a variety of measures, apart from the FEMP and FEOP, that serve to mitigate risk without completely removing it[96] including that the proposed development will not require a resident to be evacuated because of direct impact of flood waters on the living areas;[97]
    4. (iv)
      The goal of zero development on a floodplain, being the only way to avoid risk, “is a nonsensical proposition, because people do need to be able to develop on floodplains, but consistent with the risk”[98] and this Council has approved numerous developments within the floodplain.[99] This is doubtless true; here, what is proposed is a development which locates a number of older, and aging, residents in a location subject to intermittent flooding and it is those combined circumstances against which the risk falls to be assessed.[100]
  2. [88]
    Conversely the Council points to the fact that approval represents a deliberate decision to concentrate a vulnerable sub-set of the community on a risky site; a land use Mr Reynold described as inappropriate.[101] If an incident does occur in the 70 year life of the development the result is potentially catastrophic – see [67] above. The hard and soft controls, it argues, do not adequately mitigate the risk, and the ongoing enforcement burden on the Council is unacceptable. The very number of mitigative measures planned indicates this is an inappropriate use for the land. It argues the evidence of Mr Youssef and Mr Gissing ought be accepted, urging refusal.

Conclusion re: Flood Risk

  1. [89]
    Overall, I am inclined to the view that the evidence of Mr Youssef and Mr Gissing, having direct experience as they do with emergency management, should be preferred to that of Mr Collins and Dr Johnson which, with due respect, was more from the perspective of a theoretical analysis of risk. In any case, I am required to form my own conclusions as to the relevant factors, including degree of risk and the extent to which it is ameliorated to an acceptable level. This is in the context of the requirements of the planning scheme, the City Plan. As noted above, the purpose of the FOC is directed to ensuring development does not cause, increase or have cumulative potential to cause or increase, the risks and/or hazards associated with flooding. If it does cause or increase these risks or hazards, which despite the hard and soft controls it appears to do, it is hard to see how the proposal is consistent with the City Plan. The overall outcomes, as mentioned above, include

-avoiding or lessening the adverse impacts of flooding with development located, designed and managed to mitigate the risk to life and to property

-no extra burdens on counter-disaster response efforts

-best practice approach to flood plan management should be achieved and maintained

-there should be no increase in the level of risk to life

-undue exposure to flood hazard should be avoided and developments must demonstrate that sufficient access or egress will be available to enable evacuation during a range of floods, up to and including the designated flood.

  1. [90]
    As previously noted, development in natural hazard areas should only occur if it is located, designed and managed to mitigate the risk to life and property.  In my view, there is much in the Council’s argument that the City Plan has an element of conservatism, particularly in the context of a retirement facility.
  2. [91]
    My conclusion on this issue is that, in line with the opinion of Mr Gissing, the flood risk is not, despite the best efforts of the building design, the FEMP and FEOP, mitigated to an acceptable level in circumstances where:
    1. (a)
      the life of the development is 70 – 80 years, a lengthy period during which one or more severe flooding events may arise, which greatly impact access;
    2. (b)
      it is intended to house an older and ageing cohort;
    3. (c)
      a severe flooding event during that time is potentially catastrophic;[102]
    4. (d)
      the soft controls do not adequately manage the risk where human response to serious emergencies is variable and to a degree unpredictable, the residents and others may over time become desensitised to the plans, and helicopter or stretcher-based evacuation is problematic.

Positive Attributes / Exercise of the Planning Discretion / Conclusion

  1. [92]
    As outlined above, there is an identifiable need for developments of the kind proposed. Further, Noble Life points to a number of positive attributes. The proposed development doubtless represents built form and amenity of high quality.[103] There is little doubt that it would be (absent the flood risk) an efficient use of constrained land. Further the improvements to public areas outside of the subject site, the adjacent park and round-about, would be of benefit to a wider group than merely the residents of the development. Moreover, the fact is that the present proposal is the only existing application over the subject land and thus the only manner in which those collateral benefits might be delivered presently. This is raised in favour of approval. No doubt it is a favourable factor, however the Council argues any development of the site would be an efficient use thereof, and many other uses would more align with the zoning and present less risk.
  2. [93]
    The positive attributes do not outweigh the conclusions as to flood risk set out above.
  3. [94]
    As previously referred to, the City Plan does govern uses within the various zones. Relevantly for this appeal, see in particular Strategic Framework sections 3.8.1(14), 3.8.7.1(1) and 3.8.7.1(2) and within the Overlay Code the purpose statement, overall outcomes 3(a), 3(b), 3(g) and PO5, PO9 and PO11; these are important provisions of the Planning Scheme (assessment benchmarks). The conclusion as to risk means the provisions are not complied with; further the degree of need which undoubtedly exists is not determinative in favour of approval.
  4. [95]
    As Noble Life submits, from a planning perspective the proposal is one which ought be approved, apart from the flood risk; it is well designed and has collateral benefits for the immediate area. However, the proviso inherent in that submission applies; where I have concluded the risk is not acceptably mitigated, the proposal ought not be approved. The positive attributes which undoubtedly exist do not outweigh the unacceptable level of risk, such that the planning discretion ought not be exercised in favour of approval; Noble Life has not discharged the burden it carries. Describing this in terms of the indicated “Issues for Determination,” (see [15] above) the first two issues are determined against Noble Life; the flood risk is not managed to an appropriate and acceptable level, and thus the development is incompatible with the level of flood hazard. Although, as set out above, there are other matters favouring approval, separately or together they are insufficient to overcome the conclusion as to the first two issues. In all the circumstances the appeal is dismissed.

Footnotes

[1]Planning and Environment Court Act 2016 (PECA), s 43.

[2]PECA, s 45(2).

[3]PECA, s 46(2); Planning Act 2016 (PA), s 45(5).

[4][2019] QPELR 793.

[5][2020] QCA 257 at [52]-[62].

[6]Abeleda at [57].

[7]Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 at [8]- 10].

[8]Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 at [43].

[9]Cheung & Ors v Brisbane City Council [2021] QPEC 39 (Muir DCJ) at [9] referring to Dreamline (supra) at [10].

[10]Ex. 4.04, Planning Scheme Maps, p 2.

[11]Ex. 4.04, p 9.

[12]Ex. 4.03, Planning Scheme Extracts, p 101 and 134, AO5.

[13]Ex. 1.13.

[14]Ex. 4.03, Planning Scheme Extracts, p 150.

[15]Annual Exceedance Probability, the percentage chance per year of the occurrence of a flood of a given or larger size (Ex. 5.02, the flood risk JER, at p 6; Planning Scheme Extracts, Ex. 4.03, Schedule 1)

[16]Mr Duane’s report is Ex. 6.04.

[17]Ms Wells’ report is Ex 6.03.

[18]Ms Meulman’s report is Ex. 6.07

[19]Mr Reynolds, the Council’s town planning expert, did not wholly embrace this, opining that the site had fairly average, or a bit below average accessibility to services; T1 – 5 ll 1-14

[20]This was confirmed by the evidence of Mr Reynolds, see T5 – 65 l 41-T5 – 66 l 10

[21]Estimated at 8-9 years, see para 2.3.6

[22]Ex. 5.05 at para 197.

[23]Although Noble Life points to the observations from Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272 at 276, [21] to the effect that an application ought not be refused because the proposed use is not the best possible use for the site; the Court’s function is not to redesign proposals

[24]See the written submissions for Noble Life at [35]

[25]Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29 at [267] - [279].

[26]Although a degree of support is also contemplated, see Ex. 5.05, the Economic Need JER at p 58 para 131

[27]Ex. 5.05, para 130, p 54

[28]T2-59 ll 16-24

[29]Or “main trade sector”, the 5km radius from the site, see Ex. 5.05 para 74 p 32 and Map 2, p 34

[30]Ex. 6.04, Mr Duane’s statement, Table 3.2 p 8

[31]Referring to e.g. Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 at [185]

[32]Noble Life’s written submissions at [39]-[40]; reference is made to the evidence of Mr Reynolds at T5-71, lines 35-40 and the evidence of Ms Meulman at T2-52, lines 11-14 

[33]T 5-59, ll 38-39 and T 5-60, ll 35 - 42 respectively

[34]Ex. 5.05. p 53, para 122

[35]T5-54 ll 17-31

[36]T 5-88 ll 1-30

[37]Ex. 5.06 at p 41, paras 124-126

[38]T5-72 ll 10-17, T5-88 ll 27-30

[39]Ex. 5.02 at pp12-13, paras [46], [55]

[40]Ex. 4.03, Planning Scheme Extracts, p 152, Table 8.2.8-2, AO 2 and p 160, Table 8.2.8-6

[41]Ex. 4.03 p 155, Table 8.2.8-2, AO11(a), together with the description of ‘Designated Flood’ on p 157, Table 8.2.8-3 and the matrices on pp 158-159. 

[42]See e.g. Dr Johnson’s evidence at T4-17, ll 10-32

[43]An issue arose during the hearing as to the design of the lifts in this regard, resulting in a reworking of the design and a minor change to the application; an order was made permitting this on the 11th August 2022

[44]Noble Life point out that Mr Youssef was not treated as an expert witness; for example he was not part of a Joint Expert Report process. He should be treated as a witness of fact, and any opinions he proffered (as opposed to factual observations based on experience) are not admissible

[45]Ex. 6.08, Mr Youssef’s statement, p 3 paras 23-31

[46]T3-8, ll 35-45.

[47]T3-9, ll 15-25.

[48]T3-19, ll 8-14

[49]T 3-20, l 5; ll 33-42

[50]Ex. 6.08, Mr Youssef’s statement, at [41]-[44].

[51]T3-23, ll 24-25.

[52]Ex. 5.02.

[53]T3-40 ll 22-33

[54]Australian Height Datum

[55]Ex. 5.02, Joint Expert Report, p 40 para. 209

[56]Ex. 5.02, p 11, para. 36

[57]T4-91 l 7

[58]T3-56 l 25

[59]T3-37 ll 1-5

[60]With reference to the National Emergency Risk Assessment Guidelines (“NERAG”), the national standard for risk assessment

[61]As noted by the Council in its submissions at para [15]

[62]See e.g. Ex. 6.03, Ms Wells’ report, at p 7, para 2.11

[63]Council’s submissions at [45]-[46]

[64]T2-14 ll 36-47

[65]Ex. 6.04, Mr Duane’s statement, p 4

[66]Ex. 5.06, Town Planning JER, p 33

[67]Supra

[68]Ex. 5.02, JER on hydraulic engineering, flood hazard and management and risk management, p 25 para 118

[69]Ex. 7.02, p 3

[70]T4-66 ll 35-45

[71]T4-67 ll 7-14

[72]T4-67 ll 15-32

[73]T3-34 ll 33-43

[74]T3-56 l 35 – T3-57 l 7

[75]T3-58 ll 1-5

[76]Ex. 5.02 (the JER), p 35 para 181.

[77]See the overall outcomes at section 8.2.8.2(3); also the Strategic Framework, section 3.8.7.1

[78]Ex. 5.02, p 36 para 185

[79]Ex. 5.02, p 52 para 32(a)

[80]Ex. 6.02, Dr Johnson’s Statement of Evidence, p 14 paras 47-49.

[81]T 4-26 l 7

[82]T 4-26 ll 32-46

[83]T4-29 l 26

[84]Ex. 6.06, Mr Gissing’s Statement of Evidence, p 12-13

[85]Ex. 6.06 p 6 para 28

[86]T 4-60 ll 20-28

[87]T 4-74 ll 22-27

[88]T 4-74 ll 31-35

[89]Ex. 6.06 p 9 para 42

[90]Ex. 6.06 p 7 para 38

[91]Ex. 6.06 p 9 para 41g

[92]T4-58 ll 24-26

[93]T4-59 ll 25-27

[94]T4-53 ll 11-42

[95]T4-90 ll 26-45

[96]T4-94 ll 16-26

[97]T4-68 ll 7-9

[98]T4-93 ll 41-43

[99]T4-75 l 46 – T4-76 l 3

[100]See e.g. Ex. 6.06 p 4 para 20-23; p 8 para 39

[101]T5-81 l 44

[102]FEMP Table 4-2, as amended by Mr Collins’ evidence, T3-60 ll1-14

[103]Exhibit 5.06 p 5 para 6(d)

Close

Editorial Notes

  • Published Case Name:

    NL Varsity Nominees Pty Ltd v Gold Coast City Council

  • Shortened Case Name:

    NL Varsity Nominees Pty Ltd v Gold Coast City Council

  • MNC:

    [2022] QPEC 29

  • Court:

    QPEC

  • Judge(s):

    Kent QC, DCJ

  • Date:

    02 Sep 2022

Appeal Status

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

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