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  4. Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast - [2022] QPEC 31

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Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast[2022] QPEC 31

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast[2022] QPEC 31

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31

PARTIES:

TRICARE (BAYVIEW) PTY LTD

(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

FILE NO/S:

2361 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

16 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

8 – 12 November 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1. By 4 pm on 14 October 2022, the respondent is to provide the appellant with a draft suite of conditions.

2. By 4 pm on 28 October 2022, the appellant is to notify the respondent, in writing, of its position with respect to the draft suite of conditions.

3. The appeal be listed for review at 9 am on 22 November 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against Council’s refusal of development application – where the development application seeks to provide a contemporary residential aged care facility – where the Council contends that the re-development of a single storey building as part of an existing residential aged care facility and retirement facility is inappropriate because of the proposed height – where the proposed height is four storeys – where the Building height overlay map designates the land for development of two storeys – where the subject land contains a six-storey building that is to be retained – where the proposed four storey building conflicts with the planning scheme – whether the conflict should be given decisive weight – whether the existing use of the subject land is relevant – whether draft amendments to the planning scheme should be given weight – whether the community benefits from the proposed development could be provided in a three-storey building – whether approval would render it more difficult to refuse other development greater than two storeys in height – whether there is a need for the proposed development – whether the proposed development will provide appropriate facilities for ageing in place – whether the design of the proposed development has architectural merit – whether the proposed development will result in any unacceptable impacts – whether the proposed development involves an absence of town planning harm – whether the development application should be approved in the exercise of the planning discretion

LEGISLATION:

Acts Interpretation Act 1954 (Qld), ss 14D, 32D

Planning Act 2016 (Qld), ss 43, 45, 59, 60, 63, 264

Planning and Environment Court Act 2016 (Qld), ss 5, 43, 45, 46, 47, 60

Planning and Environment Court Rules 2018 (Qld) (current as at 18 March 2022) rr 22, 34, 35A, 35B, 35C

Planning and Environment Court Rules 2018 (Qld) (current as at 13 May 2019) rr 22, 32, 34, 35

Planning Regulation 2017 (Qld), ss 31, 70, sch 22 and sch 24

Uniform Civil Procedure Rules 1999 (Qld) r 166

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, cited

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

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

BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274, cited

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Collis Radio Ltd & Anor v Secretary of State for the Environment & Anor (1975) 29 P & CR 390, distinguished

Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, applied

Ecovale Pty Ltd v Council of the City of Gold Coast [1999] 2 Qd R 35, applied

Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, distinguished

Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, distinguished

Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved

I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36, approved

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Iverach v Cardwell Shire Council & Anor [2006] QEC 114; [2007] QPELR 196, approved

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, approved

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved

Leisuremark (Aust) Pty Ltd v Noosa Shire Council & Ors [1988] QPLR 137, distinguished

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved

Peter Rommel and Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99, distinguished

Poundstretcher v Secretary for the Environment [1988] 3 PLR 69, distinguished

Stringer v Minister of Housing and Local Government & Anor [1970] WLR 1281, cited

The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3; [2019] QPELR 487, considered

Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279, distinguished

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Williams McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33, approved

Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved

COUNSEL:

C L Hughes QC and M Batty for the Appellant

R S Litster QC and T Stork for the Respondent

SOLICITORS:

Minter Ellison Gold Coast for the Appellant

McInnes Wilson Lawyers for the Respondent

TABLE OF CONTENTS

Overview6

What are the features of the subject land and the locality?8

What is the nature of the proposed development?12

What functional design attributes are proposed for the residential aged care facility?13

How does the proposed development present?17

What is the relevant framework for the decision?20

A threshold difficulty with the Council’s case22

What is the appropriate approach to the assessment and decision-making process?24

Does the proposed development comply with the assessment benchmarks in City Plan?25

What is the significance of the non-compliance with the assessment benchmarks respect to height?27

What is the relevance of the existing lawful use of the subject land?32

What matters are in issue under s 45(5)(b) of the Planning Act 2016?37

What are the obligations of parties in identifying the issues in dispute?38

What issues arise for determination with respect to “relevant matters”?41

What weight should be afforded to the draft amendments proposed to City Plan?41

What are the proposed amendments?42

What is the progress of the draft amendments?44

What weight should be given to the draft amendments?45

Has Tricare demonstrated that the proposed development cannot be developed
within a three-storey building?50

Is the proposed development inconsistent with the reasonable community expectations?61

Does the cumulative effect of an additional building greater than two storeys
on the subject land tell against approval?62

Is there a need for the proposed development?66

What are the general principles that guide an assessment of need?67

What is Tricare’s case with respect to need?69

Will the proposed development result in a net loss of two aged care spaces?70

What does the evidence about need establish?75

What are the Council’s other arguments about need?82

Is there appropriately zoned land available for use?83

Does the existence of appropriately zoned land “meet the need” for residential aged care facilities?86

What is the need that the proposed development seeks to address?87

How does City Plan address the identified need?89

Will the proposed development provide appropriate facilities for ageing in place?92

Does the design of the proposed development have architectural merit?93

Will the proposed development result in any unacceptable impacts?95

Does the proposed development involve an absence of town planning harm?96

Should the development application be approved in the exercise of the planning discretion?96

Conclusion97

Overview

  1. [1]
    The demographic of Australia’s population is changing.  Australians are living longer than ever before.  As a result of the changing demographic, the number of people requiring aged care services will increase substantially over time.[1]  With advanced age comes greater frailty, and older people are more likely to have more than one health condition as their life expectancy increases.  As the population of older people increases, more people are expected to have memory and mobility disorders.[2]  A range of aged care services will be required to address the consequent decline in independence of the elderly in our community.  This includes greater need for residential aged care facilities.  The development the subject of this appeal seeks to provide a new residential aged care facility at Runaway Bay to address that need.
  2. [2]
    Residential aged care facilities provide support and accommodation for older people who are unable to continue living independently in their own homes and who need ongoing help with everyday tasks.  Approved providers of residential aged care must provide a range of care and services to residents, including social care, accommodation services and help with day-to-day tasks, personal care, and clinical care.[3]
  3. [3]
    The socio-economic profile of Runaway Bay, a northern suburb on the coastal strip of the Gold Coast, and those suburbs immediately surrounding it (being Paradise Point and Hollywell to the north, Coombabah and Arundel to the east, and Biggera Waters and Labrador to the south) comprises an older population attracted to the coastal lifestyle of the Gold Coast.  In that area, the average age of residents is significantly older than the average for each of South East Queensland and Australia.  Almost 30 per cent of the population in that area is aged over 60 years and there are large pockets of older and ageing residents (i.e., over 70 years) throughout that area.[4]
  4. [4]
    At present, that community is served by Tricare Runaway Bay Village and Bayview Place, which comprises both a long-standing retirement facility and a long-standing residential aged care facility.  The facilities are located on two contiguous allotments at 80 – 86 and 98 Bayview Street, Runaway Bay (“the subject land”).  The retirement facility and the residential aged care facility are housed in several buildings, including a six-storey building and multiple buildings of one, two, and three storeys in height. 
  5. [5]
    The existing residential aged care facility is located within the south-east portion of the subject land.  It is housed in two buildings.  One is a two-storey building containing 44 residential aged care places.  The other is an older single storey building on Lot 10 on RP 907714, proximate to Bayview Street.  It contains 42 residential aged care places.  Despite efforts made three to four years ago to refurbish the older building to the extent possible, the building still has a tired, institutional format.  For example, the aged care rooms contain two beds separated by a curtain, and there are communal toilets and showers.[5]  
  6. [6]
    The Appellant, Tricare (Bayview) Pty Ltd (“Tricare”), wants to redevelop part of the existing residential aged care facility.  It proposes to demolish the older single storey Bayview Street building and replace it with a contemporary facility housed in a new four-storey building accommodating 110 residential aged care places.  The new building will connect to the existing two-storey building, which will be retained.  The existing buildings on the subject land that house the retirement facility, including the six-storey building, will also be retained.
  7. [7]
    The proposed redevelopment will increase the total number of rooms on the subject land to 154 – a net increase of 68 rooms.  The proposed development will also deliver superior wellbeing outcomes for persons with dementia and high and complex care needs.  It will offer private rooms with connected (ensuite) bathrooms.  To enhance the quality of life of residents, the proposed development will provide improved social spaces such as a roof deck recreation area offering indoor and outdoor spaces including a cinema, wine bar, lounge, barbeque area and spaces to enjoy the view over the Broadwater and the Runaway Bay canals.  These benefits are to be provided on the subject land, co-located with the independent living units that are offered as part of the existing retirement facility, all of which is intended to achieve the laudable goal that the ageing population in the local area is provided an integrated community with a care continuum that facilitates “ageing in place”,[6] i.e., ageing within the community to which they are accustomed.
  1. [8]
    The proposed development was assessable development requiring impact assessment under Gold Coast City Plan 2016 (“City Plan”).[7]  As such, Tricare made a development application seeking a development permit for a material change of use for a residential care facility with 154 residential aged care places to facilitate its plan to redevelop part of the subject land.  The Council of the City of Gold Coast (“the Council”) refused the development application.  This is an appeal against that decision.
  2. [9]
    There is no dispute that, at four-storeys in height, the proposed development has a building height that exceeds that indicated on the Building height overlap map in City Plan.  Even though the subject land contains a lawful six-storey building and a lawful three-storey building, under City Plan it has a height designation of two storeys and nine metres. 
  3. [10]
    Tricare accepts that the proposed development conflicts with City Plan as it seeks an increase in building height that is beyond 50 per cent above that indicated on the Building height overlay map.  Nevertheless, Tricare contends that approval of its development application is appropriate having regard to, amongst other things:
    1. (a)
      the increasing need for residential aged care facilities in this part of the Gold Coast;
    2. (b)
      the public interest in replacing the existing out-dated facility with a contemporary facility that will provide residents with an enhanced quality of life; and
    3. (c)
      the public benefit from the provision of an integrated community with a care continuum that facilitates “ageing in place”.
  1. [11]
    The Council joins issue with Tricare’s contentions.  It contends that conflict with the height designation is a paramount consideration and one that should prevail.  It says that the matters relied on by Tricare are insufficient to justify approval of the proposed development.  With respect to the benefit to the public of providing a facility that will enhance the quality of life of the elderly, for example by providing access to views and fresh air, the Council contends those benefits are of little moment.  It says this is because those who might reside at the proposed development will likely enter the development at a stage of their life when they are frail and need high levels of care.[8] 
  2. [12]
    The appeal is a hearing anew.[9]  It is for Tricare to establish that the appeal should be allowed.[10] 

What are the features of the subject land and the locality?

  1. [13]
    Before considering the issues in dispute, it is first important to appreciate the features of the subject land and the character and identity of the locality generally.  There was some disagreement between the experts in this regard.
  2. [14]
    The subject land is located at 80 – 86 and 98 Bayview Street, Runaway Bay.  It comprises Lot 1 on RP 842344 and Lot 10 on RP 907714, which have a combined area of 6.3937 hectares.[11]  It has an irregular shape, informed by its boundary with a canal to its west, and a canal for part of its northern and southern boundaries.  Its eastern boundary fronts Bayview Street,[12] which has a higher order traffic function.  It provides a north-south link within Runaway Bay and accessibility to the Runaway Bay Shopping Village and has a public transport (bus) function.[13]
  1. [15]
    The subject land is currently used by Tricare for a residential aged care facility, a retirement facility containing independent living units, and related community facilities.[14] 
  2. [16]
    Mr Peabody, the architect retained by Tricare, opines that Tricare’s existing senior living community, known as Tricare Runaway Bay Village and Bayview Place, is an established part of the local identity with an existing and distinct sense of place as a master planned community.  He says it is recognised for offering residential choices for the senior population.  He says this is conveyed by the form of existing buildings in terms of their typology.[15]  During cross-examination, Mr Robinson, the architect retained by the Council, conceded that the existing Tricare residential aged care and retirement facilities are an established part of the local identity and character.[16]  During cross-examination, Mr Perkins, the town planner retained by the Council, accepted that the character of the local area had been dominated by aged care and retirement living developments for decades.[17]  I accept this evidence.
  1. [17]
    Nearby development is predominantly residential.[18]  The subject land is also mere moments from the Runaway Bay Shopping Centre, which is on the opposite side of the canal to the north of the subject land.  In addition, a small medical complex and gated residential community adjoins the southern boundary of the subject land.[19] 
  1. [18]
    Mr Robinson says the nearby residential development is dominated by one, two and three-storey buildings with smaller footprints and a thinner, broken-edged form.[20]  He opines:

“Generally, the development along Bayview Street, between Bayview Street [bridge] and Oatland Street/Lee Road is characterised by relatively narrow finger like building frontages with landscaped street setbacks, a diversity of building designs and orientations, (which are not generally long lengthy, flat, or bulky in their presentation to Bayview Street), containing pitched roof forms, variations in skyline and mainly with upper storey balconies.”[21]

  1. [19]
    During his cross-examination, Mr Robinson accepted that the local area includes buildings with a height of up to four storeys, although that is not generally the height in the area.  He says that the local identity and sense of place is also informed by varying architectural styles.  It includes some modern development but is of a predominantly 80s and 90s style that is very utilitarian.  He describes the local area as containing architecture that is “not terribly exciting” and “all pretty ordinary”.[22]
  2. [20]
    Mr Robinson supports his opinions with photomontages annexed to his individual statement of evidence.  The Council submits that Mr Powell, the visual amenity expert retained by Tricare, accepts the photomontages to be representative of the views of the eastern side of Bayview Street.  The Council says that the finger-like frontages are also apparent from the plan view seen on page 13 of Exhibit 2.7.  It submits that, with the benefit of the photomontages and plans, the Court would accept Mr Robinson’s description of the local identity and sense of place.[23]
  3. [21]
    The Council’s submission about the evidence of Mr Powell does not fully reflect the evidence, which was as follows:

“And you would agree that the composite images that he prepared from Google Earth fairly represent the views to the eastern side of the road?---Yes, they – they do. Obviously, some have – there’s been a few changes since those images, but the – the main nuance or thing that’s drawn out in reality when you experience these is, you don’t drive or walk along the road, sort of, looking perpendicular to – sort of, looking at 30 to 45 degrees of direction of travel. And what that means is that, for instance, in montage B, down the bottom image, right-hand side - - - 

Yes?--- - - - there’s a – sort of, a hybrid black/white car – a rear of a black car and a front of a white car.

Yeah?---If you look above the rear windscreen of the – or rear screen of the black car, you can see a prominent, sort of, lift overrun of I think it’s number 35 Madang Crescent – I can confirm that in a little while, but that one you can see just to the left of that too, and a grey car and a – a, sort of, a canal or a small waterway. And what that canal waterway does, as well as the form of the lift overrun and the four storeys of Madang Crescent is, that opens up a – sort of, a – a view towards that – that building. So - - -

Yes?--- - - - yeah, the – the streetscape – yeah, look, it’s – it’s a good start. But it’s not representative of the – the experience that you get from walking or driving along.

Well, I’ll come back to that in a moment because the point you make is, that you don’t experience it looking perpendicular to the sites?---Generally that’s correct, yes.

Right. But this allows you to, at least, appreciate what is to be found on either side of the road, and it’s a fair representation of what is to be found on either side of the 30 road?---Yeah. So the form of presentation is geared towards showing more of what you see at the very edge of the road and less of what you might perceive or see behind it, yes.

It’s an analysis tool; you agree with that?---It is an analysis tool. It’s not a 35 completely unhelpful one. It’s – it’s a good tool. I use it myself - - -

Yes?--- - - - but it needs to be considered in balance - - -

Indeed?--- - - - with other material.”[24]

(emphasis added)

  1. [22]
    I accept Mr Powell’s observations. 
  2. [23]
    I find that, generally, the development along Bayview Street, between the Bayview Street bridge in the north and Oatland Street and Lee Road in the south, is characterised by relatively narrow, finger-like building frontages punctuated by landscaped street setbacks, and a diversity of building designs and orientations.  While some buildings are not long, flat, or bulky in their presentation to Bayview Street, others are.  Similarly, while some buildings contain pitched roof forms, others have a flat roof (or have the appearance of a flat roof).[25] 
  3. [24]
    In relation to the height of existing buildings in the locality, Mr Powell opines that the existing streetscape in the immediate vicinity of the subject land includes a perpendicular view from Bayview Street down the driveway toward the existing six-storey building on the subject land and a view across the road to existing three and four storey buildings.  From the south-east, the six-storey building can be glimpsed above the existing buildings on the subject land.  It is clearly visible across the driveway for vehicle occupants and pedestrians approaching from the north-east.  Further to the north and east, within 300 metres of the subject land, Mr Powell says development typically ranges from one to four storeys in height.  He says there are three to four-storey buildings located between 120 and 200 metres north of the subject land.[26]
  4. [25]
    Mr Perkins took issue with the views expressed by Mr Powell.  He notes that the six-storey building on the subject land far predates either City Plan or the 2003 Planning Scheme.  Further, of two other properties referenced by Mr Powell, Mr Perkins notes that:
    1. (a)
      33 Madang Crescent is a four-storey apartment building that was approved under delegated approval on 1 April 2010 under the superseded Our Living City Gold Coast Planning Scheme 2003; and
    2. (b)
      based on the Council’s records, the apartment building at 89 Bayview Street, which presents four levels to Bayview Street, was established prior to the commencement of the superseded Our Living City Gold Coast Planning Scheme 2003. 
  5. [26]
    Although the six-storey building on the subject land and the other buildings identified by Mr Perkins were approved under earlier planning schemes and have the appearance of being constructed in the 1980s or 1990s, they nevertheless exist.  They are relevant to an appreciation of the character and amenity of the local area.  The observations of His Honour Judge Quirk in The Purcell Family v Gold Coast City Council & Ors[27] are pertinent in this regard.  His Honour observed:

“[20] The point was made that some of this development was approved prior to planning controls relevant to the determination of this appeal. I do not regard that as being a matter of telling importance. The development that lends character to this area is there on the ground and there is every indication that it will remain there for some considerable time. To suggest that its influence upon the area’s visual amenity should be disregarded because it was approved prior to the planning controls we are considering here is, as I see it, a little unrealistic. To do so would attribute to the area a character which it simply does not have.”[28]

  1. [27]
    There is nothing in City Plan that warrants a consideration of the character and amenity of the local area without paying due regard to the contribution made by the existing buildings (or the existing lawful use on the subject land).  Further, and in any event, the use of the six-storey building on the subject land is a mandatory consideration to which I must have regard in carrying out an assessment of the development application.[29]
  2. [28]
    Mr Powell’s opinions are supported by the photographs that were before me.  Unlike Mr Robinson’s Google photomontage (which has the limitations explained by Mr Powell),[30] the photographs that Mr Powell included in his report present a balanced view of the local area.[31]  I accept Mr Powell’s evidence about the character of the local area.

What is the nature of the proposed development?

  1. [29]
    The proposed development involves the demolition of part of the existing single storey residential aged care facility at the south-eastern corner of the subject land, adjoining Bayview Street.  There, Tricare operates an existing residential aged care facility comprising 86 residential aged care places.[32]  An existing, more modern two-storey residential aged care facility will be retained.[33]
  2. [30]
    The proposed development will provide 154 residential aged care places, comprising 44 places in the building to be retained and 110 places in the new building.[34]  This will provide a net increase of 68 places.  The proposed residential aged care facility will be conducted in association with the adjacent retirement facility, with all accommodation provided in private rooms.[35] 
  3. [31]
    The proposed development is depicted in plans and images in Exhibit 2.7.
  4. [32]
    The plans and images show that the proposed new building has four levels above a basement car park.  The fourth level is a partial storey only.  The basement car park will contain 83 spaces, bicycle facilities and building services.
  5. [33]
    Levels 1, 2 and 3 all have residential aged care rooms (21, 43 and 46 rooms respectively).  The ground floor will accommodate the main foyer, reception, kitchen and dining room, communal café with a terrace and a private dining room, nurses’ facilities, and back of house facilities.
  6. [34]
    Level 4 comprises a separate “destination” away from the residential levels.  It has a much smaller floor plate than the levels below.  It is positioned towards the north-western part of the building.  It only includes communal facilities, such as an activity room, small cinema, lounge, and open terraces.  These are important facilities.  I describe them in more detail in paragraphs [36] to [50] below.
  1. [35]
    In his individual report, Mr Powell details the height parameters of the proposed development.  He says that the highest part of the proposed development, being the lift overrun at RL[36] 18.7 metres AHD,[37] will occur over a surveyed ground level of 2.98 metres AHD, resulting in a height of 15.72 metres.  The architects agree.[38]  These details accord with the plans that are before me in Exhibit 2.7. 

What functional design attributes are proposed for the residential aged care facility?

  1. [36]
    The proposed development incorporates design attributes that are intended to better meet the needs of senior Australians, particularly those living with dementia.  With respect to the design attributes proposed, and the benefits they provide to senior Australians, I was assisted by the evidence of Ms Catherine Wells, the retirement and aged care consultant retained by Tricare.  Over the last 30 years, Ms Wells has worked with small and large private, not-for-profit, and charitable providers across the country for home care, retirement living and residential aged care.  She has studied supply and demand issues and worked with residents and their families to understand what they are looking for in aged care.  She has visited a vast number of residential aged care buildings across Australia.[39]
  2. [37]
    In her individual statement, Ms Wells identifies that the design of the proposed development provides individual accommodation in large rooms of between 31 and 33 square metres plus a seven square metre ensuite.  The rooms offer each resident a well-designed, partially self-contained, private space that includes a bedroom, lounge area, ensuite, built-in cabinetry for storage, television, desk, and tea-making facilities.  This private space provided in the individual rooms sits within the residents’ larger home (i.e., the residential aged care facility).[40]  Ms Wells explains that the individual bathroom facilities, by way of ensuites, provide residents with personal hygiene privacy, which is important for the dignity of older Australians given the challenges that they may face at that stage of their life.[41]  The room design also enables the elderly to enjoy the simple things that many Australians take for granted in their normal daily lives, such as the ability to have a space to display photos and to store personal items that, in traditional facilities, are required to be left behind because of a lack of personal space.[42]
  3. [38]
    The proposed development also includes shared wellbeing and social spaces as part of the home, which are available for all residents and their loved ones to access and enjoy.  Those shared spaces include:
    1. (a)
      all the common facilities located on the partial fourth storey, namely:
      1. a roof deck recreation area with outdoor spaces to enhance the quality of life of residents and their loved ones by providing access to natures’ elements, such as fresh air and breezes;
      2. indoor recreation spaces, including a cinema, wine bar, lounge, and barbeque area;
      3. two terrace areas (described on the plans as the Broadwater Terrace and the South Terrace) offering elevated views over the Broadwater and the Runaway Bay canals and suburb; and
    2. (b)
      other wellbeing and social spaces within the first three floors, including a café, a multi-purpose space, a hair and beauty salon, multiple dining rooms, lounges, and activity spaces for smaller groups of residents, all provided in a more home like and non-institutional manner.[43]
  4. [39]
    The proposed development will include a superior level of technology, which will be utilised to efficiently manage and assist resident needs; communicate with residents, their loved ones and visitors and staff; and support resident care, lifestyle and connection with loved ones and the broader community.[44]
  5. [40]
    The overall design of the home will offer a contemporary and nonclinical or institutional living experience through, for example:
    1. (a)
      the incorporation of high ceilings and doors and large windows to provide a feeling of space and an abundance of natural light and connection with the outdoors;
    2. (b)
      fit out and finishes that are non-institutional and more like a contemporary home.  This is exemplified by the absence of linoleum running along the floors and halfway up the walls, the absence of hospital style handrails, the absence of clinical hallways, the absence of hospital style serveries, the absence of visible wash basins along hallways, and the placement of back of house facilities out of sight as much as possible;
    3. (c)
      an internal grand landscape atrium visually connecting the outdoors into the residents’ rooms;
    4. (d)
      social spaces for enjoyment and wellbeing of residents and their visitors; and
    5. (e)
      access to a rooftop area to enjoy the outdoors and connection to the surrounding community.[45]
  6. [41]
    Ms Wells opines that the proposed development will be designed for all persons needing residential aged care, including those living with dementia.  She says the design is in line with the recommendations of the Royal Commission into Aged Care Quality and Safety and the Australian Government Response to the Final Report Royal Commission into Aged Care Quality and Safety.[46]  Ms Wells provided cogent explanations that supported her opinions. 
  1. [42]
    Ms Wells explains that the shape of the building, which is described by Mr Robinson as a square form building with a large central courtyard,[47] visually connects the outdoors into the resident rooms and social spaces.  This will provide for the enjoyment and wellbeing of residents and their visitors.[48]  The building’s shape also provides residents with the opportunity to exercise via a circular corridor, with rest stops provided at locations that provide a view of the greenspace of the atrium.  The provision of continuous circuit walking paths, without dead ends, is important for providing older Australians with a good opportunity for daily exercise.  It can be contrasted with a design that provides corridors to a “dead end” and the associated need to turn around.  That alternative form of design does not encourage movement, particularly for those utilising walking aids.  Designs with “dead end” corridors also present orientation difficulties for persons with dementia, who make up a high proportion of residents in residential aged care facilities.[49]  For those reasons, I accept the evidence of Ms Wells about the benefit to older Australians from the adoption of the square form of the building and the associated internal grand landscape atrium. 
  2. [43]
    Ms Wells says that the design of the building provides safe (designed for mobility) and easy (via a lift) access to the fourth-floor recreation area and the outdoors.  It will enable the residents to enjoy the views over the broadwater and the surrounding neighbourhood.  The residents will be able to watch the world go by from an elevated position, thereby giving them a sense of connection to the community.  The residents will be able to watch the weather and feel the natural elements (wind, rain, sun, heat, cool, fresh air) from an elevated position.  Ms Wells says this is important for residents’ wellbeing as everyone relates to, and benefits from, fresh air and sunlight.  Ms Wells explains that these are all things that can be difficult to access for older Australians[50] and they are not prioritised in most residential aged care facilities.  They are benefits that are taken for granted by younger, mobile persons.[51] 
  1. [44]
    In addition, Ms Wells says that a rooftop recreation and social space offering beautiful surrounds and views over water and the neighbourhood is a unique and desirable space for all ages.  Such an enjoyable space, that does not feel clinical or like “aged care”, will encourage visitors of all ages to spend time and engage with residents of the facility.  The inclusion of the cinema, barbeque area and associated space for children to play will deliver a space that children will enjoy.  Visits from children bring a new vibe for all residents.  Older persons gain significant mood uplifts from having younger people around (and younger people can develop more empathy for older people and for their behaviours and loss of function).  As such, the design encourages intergenerational connections between residents, children, grandchildren, friends, and community visitors,[52] which I accept to be important.
  2. [45]
    The fourth-floor design also promotes social inclusion and prevents social isolation.  It does so through its provision of enjoyable and easy to access social spaces that are aligned to activities undertaken in normal life.  Cinemas, wine bars, and outdoor dining are all available in normal life.  The design of the proposed development will make them available to frail aged persons (as they should be). 
  3. [46]
    The design also provides the residents’ families an opportunity to take very frail persons on a manageable outing.  Ms Wells explains that for very frail persons and those with dementia, leaving the home can be difficult and stressful for both the resident and the family.  The fourth-floor space will provide the family with an opportunity to be social with their loved one (outside of their room) in an environment that feels like an outing.  It can be contrasted with social spaces that are incorporated within the residential floors.  It is the experience of Ms Wells, from conducting focus groups with aged care residents, that residents and families become territorial of their accommodation and living spaces.  Social spaces incorporated on residents’ floors or in wings near resident accommodation do not attract the use of residents from other floors or wings.  This is because the residents and families from the other floors or wings feel they are encroaching on the private spaces dedicated to different residents.  In contrast, where the social spaces are located on a separate non-residential living floor, residents and families from all areas of the residential service feel it is their shared space to freely access.[53]
  4. [47]
    Ms Wells says that the interaction of residents with their loved ones and communities is incredibly valuable for wellbeing and quality of life.  She says residents should not just be cared for; they should be happy. 
  5. [48]
    Ms Wells also says that the design attributes of the proposed development will stimulate the pleasure senses of the brain and, in turn, the enjoyment of older persons.  It will do so through the inclusion of nice and varied environments.  That design attribute can be contrasted with typical older designs, where residents are only able to access the same social space outside their individual accommodation each day.[54]
  6. [49]
    The design of the proposed development, with its fourth-floor recreation area and its associated benefits, can be contrasted with that offered in older residential aged care facilities, which are designed around functionality, with limited attention to aesthetics and social spaces.  Ms Wells says those facilities can be depressing and, consequently, do not encourage persons to visit, or if they do visit, discourages visitors to spend quality time just enjoying their loved one’s company.[55]
  7. [50]
    For the reasons provided above, Ms Wells opines that the design of the proposed development, including the provision of the fourth-floor recreation areas, will improve the lifestyle quality of frail aged persons.[56]  Having regard to the design attributes outlined, Ms Wells opines that the proposed development will convert an older undesirable institutional aged care site into a modern and desirable home for 110 older Australians who need frail aged accommodation and care.  She says that the partial fourth floor is a crucial part of achieving an innovative and non-institutional environment and improved quality of life for older Australians and their loved ones in the Gold Coast community.[57]
  8. [51]
    I accept the evidence of Ms Wells about the design attributes of the proposed development and its many associated benefits for older Australians.  I do not accept the Council’s contention, referred to in paragraph [11] above, that the benefit to the public of providing a facility that will enhance the quality of life of the elderly is of little moment. 

How does the proposed development present?

  1. [52]
    There is disagreement between the experts about the visual presentation of the proposed development. 
  1. [53]
    Mr Robinson opines that the presentation of the proposed development will be alien to the locality.  He describes the bulk of the proposed development as a long, three-storey slab-like form with a frontage of 58 metres.  He says the design of the proposed development involves a square form building with a large central courtyard.  Mr Robinson opines that such a form exacerbates the large external face of the building and, when viewed from the street, presents as a long, uniform, institutionalised building in its scale – a bulky, slab-like outcome.  Mr Robinson says this is a plan form that is somewhat alien to the locality.  He says that the locality is dominated by one, two and three-storey buildings with a smaller footprint than the proposed development and with thinner, broken-edged building forms that result in more articulated and finer-grained building forms in the locality.  Mr Robinson illustrates his point in Figure 7 of the Joint Expert Report: Architecture, which he describes as “Illustration of a square form building with a large central courtyard (left) versus a building footprint with a ‘wings’ arrangement (right)”.[58]
  2. [54]
    Mr Robinson says that while the subject land may dominate the locality in a landowner sense, the existing development on the land does not dominate the locality’s streetscape or skyline (except for the historic six-storey high anomaly at the centre of the subject land).  He says the subject land’s frontage is composed of low-height, low-impact buildings that are largely screened from the street by landscaping.  Mr Robinson says the proposed development, at three storeys high (plus partial fourth storey) and presenting a 58-metre-long wall of continuous street fronting façade with largely flatline roof profile, represents a considerable uplift in development.  He opines that it is a bulky form that will dominate the street front at this location.[59]
  3. [55]
    Mr Peabody disagrees with Mr Robinson about the visual presentation of the proposed development.  He says the proposed development represents a well-resolved and articulated building envelope.  The elevations to the three-storey portion of the proposed development are articulated by:
    1. (a)
      terrace areas, which are a combination of horizontal and vertical elements that “bookend” the proposed development and offer lightweight, activated edges to the three-storey portion of the building envelope;
    2. (b)
      expressed portal frames to the lower two storeys, which have vertical and horizontal elements and provide punctuation and stepping along the facades;
    3. (c)
      vertical blades that extend in a horizontal pattern across the length of the third level between the two “bookend” terraces; and
    4. (d)
      a general articulation and modulation of form.[60]
  4. [56]
    Mr Peabody says that each of these design features have horizontal and vertical elements, and they are not in a consistent plane.  There is also a lot of recess within each of the elements.  Mr Peabody’s descriptions of these elements are well-demonstrated in Figure 6 of the Joint Expert Report: Architecture.[61]
  5. [57]
    The fourth storey portion of the building envelope, located on the northwest corner of the new residential aged care facility, steps back from the line of the three-storey building envelope below.  Mr Peabody opines that this reduces the impact of this building element.  The impact of the fourth storey is further lightened by the landscape-covered pergola structures, which extend to the east and south over the outdoor terraces.[62]  Mr Peabody further opines that these design elements result in a three-storey elevation that presents to the Bayview Street frontage as a highly articulate and well-resolved built form outcome.[63] 
  6. [58]
    Mr Powell gave evidence of the visual impact of the proposed development.  He explains that, in his view, visual impact can only result from what can be seen or clearly perceived.[64]  Mr Powell opines that, because the lift overrun is set well back from the edges of the building (and almost central to the uppermost floor), it will not be perceivable from the public road reserve to the east, or from residential dwellings to the south, or from the internal driveways of the subject land to the north and west.  He says this is demonstrated in the various 3D drawings and renders produced by Cottee Parker, which he extracts as Figures 5 to 9 in his report.[65]  Although the 3D drawings were not prepared by Mr Powell, before relying on them he reviewed their accuracy to satisfy himself that they appropriately represented the presentation of the proposed development.[66]  I accept his evidence in that regard.
  7. [59]
    Mr Powell explains that the lift overrun represents approximately 0.22 per cent of the overall development site building footprint measured to its outermost projection (including the western building to be retained), or 0.29% of the new building footprint (excluding the western building), or 0.36% of the third storey gross building area.[67]  Mr Powell opines that whether it is 22 or 36 hundredths of one percent, or somewhere in between, the lift overrun will not have any material visual impact on the public and private domains surrounding the subject land.  I accept this evidence.
  8. [60]
    As for the partial fourth storey, Mr Powell says that any perception of building height and scale from surrounding areas will necessarily be a product of the height and horizontal separation (or setback) of the primary building from the boundaries and any horizontal stepping adopted between levels.[68]  Mr Powell notes that the proposed development adopts substantial setbacks to boundaries and to existing buildings.  They exceed the relevant acceptable outcomes.  In addition, Mr Powell says the fourth level adopts substantial horizontal stepping from the south and east, such that it is completely concealed from view from the road to the east and south-east and residences to the south.  He says the design also adopts considered stepping from the north.  Because of this, the fourth-storey roof appears to have a similar height to that of the north-east stairwell, which is approximately 13.5 metres high.[69] 
  9. [61]
    Mr Powell opines that the building presents to the street as three storeys when viewed from the north-east.  He explains that this appearance is achieved by the combined visual effect of the height of the porte-cochere roof, the inclusion of a void over the entry, and the appearance of two levels above the porte-cochere roof and void.  Consequently, the northern façade of the building will have the appearance of being three storeys and less than 13.5 metres in height when viewed from the street.[70]
  10. [62]
    From the north-west (when standing in front of adjacent the six-storey building), Mr Powell says the top of the northern face of the proposed building will sit below the 13.5 metre height line at the northern building face, and the building will be largely concealed behind dense landscaping.[71]
  11. [63]
    Based on the above analysis, Mr Powell opines that from surrounding public and private locations, the proposed building will appear as three storeys and less than 13.5 metres in height.  He also opines that, from a visual amenity perspective, the height and form of the proposed development, which informs its visual manifestation, accord with the local visual character, and will make a positive contribution to the local area.[72]  During cross-examination, in response to a suggestion that the proposed development would represent an alien form, Mr Powell opined that the proposed development is compatible with the existing form.  He says the articulations in the building (referred to in the Joint Expert Report: Architecture) breaks the building up vertically.  Further, street trees and new tree plantings will soften the frontage of the proposed development.  When challenged about the impact of the vegetation, Mr Powell gave a cogent explanation of its ability to moderate the built form to a substantial degree.[73]
  12. [64]
    Mr Robinson agrees that the fourth-storey component of the building will not dominate and is unlikely to be seen from many public vantage points.  He says the access driveway will be the vantage point with the most view of the fourth storey.[74]  He also accepts that the building will be perceived predominantly as three storeys in height.[75]
  13. [65]
    I prefer the evidence of Mr Peabody and Mr Powell about the form, design, and visual impact of the proposed development to that of Mr Robinson.  The opinions of Mr Peabody and Mr Powell were supported by cogent explanations and accord with what is depicted in the elevations (and the plans generally).  In contrast, it seems to me that Mr Robison placed too much emphasis on the plan views of the proposed development and paid insufficient regard to its external presentation.  The evidence of Mr Peabody and Mr Powell persuades me that the proposed development has considerable architectural merit.

What is the relevant framework for the decision?

  1. [66]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies to this appeal. 
  2. [67]
    Pursuant to s 46 of the Planning and Environment Court Act 2016, the exercise of the discretion must be based on an assessment that is carried out under s 45 of the Planning Act 2016.[76]  It, relevantly, states:

“(5) An impact assessment is an assessment that—

  1. (a)
    must be carried out—
  1. (i)
    against the assessment benchmarks in a categorising instrument for the development; and
  1. (ii)
    having regard to any matters prescribed by regulation for this subparagraph; and
  1. (b)
    may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.

Examples of another relevant matter—

  • a planning need
  • the current relevance of the assessment benchmarks in the light of changed circumstances
  • whether assessment benchmarks or other prescribed matters were based on material errors

Note—

See section 277 for the matters the chief executive must have regard to when the chief executive, acting as an assessment manager, carries out a code assessment or impact assessment in relation to a State heritage place.

  1. (6)
    Subsections (7) and (8) apply if an assessment manager is, under subsection (3) or (5), assessing a development application against or having regard to—
  1. (a)
    a statutory instrument; or
  1. (b)
    another document applied, adopted or incorporated (with or without changes) in a statutory instrument.
  1. (7)
    The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.
  1. (8)
    However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to—
  1. (a)
    if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document; or
  1. (b)
    another statutory instrument—
  1. (i)
    that comes into effect after the development application is properly made but before it is decided by the assessment manager; and
  1. (ii)
    that the assessment manager would have been required to assess, or could have assessed, the development application against, or having regard to, if the instrument had been in effect when the application was properly made.”
  1. [68]
    With respect to assessment benchmarks, s 43 of the Planning Act 2016 relevantly states:

“43 Categorising instruments

  1. (1)
    A categorising instrument is a regulation or local categorising instrument that does any or all of the following—
  1. (a)
    categorises development as prohibited, assessable or accepted development;
  1. (b)
    specifies the categories of assessment required for different types of assessable development;
  1. (c)
    sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.
  1. (2)
    An assessment benchmark does not include—
  1. (a)
    a matter of a person’s opinion; or
  1. (b)
    a person’s circumstances, financial or otherwise; or
  1. (c)
    for code assessment—a strategic outcome under section 16(1)(a); or
  1. (d)
    a matter prescribed by regulation.

Examples of assessment benchmarks—

a code, a standard, or an expression of the intent for a zone or precinct

  1. (3)
    A local categorising instrument is—
  1. (a)
    a planning scheme; or
  1. (b)
    a TLPI; or
  1. (c)
    a variation approval, to the extent the variation approval does any of the things mentioned in subsection (1).”
  1. [69]
    City Plan is a categorising instrument containing assessment benchmarks relevant to the assessment called for by s 45 of the Planning Act 2016.  Although there are other categorising instruments, the parties have not put them in issue.  Neither of the parties contend that an assessment of the development against the assessment benchmarks in those other categorising instruments informs the appropriate outcome in this case. 
  2. [70]
    The development application was properly made on 13 December 2019.  At that time, Gold Coast City Plan 2016 version 7 (“City Plan”) was in effect.[77]  The assessment must be undertaken against that version.[78]
  3. [71]
    At the time of the hearing, version 8 of City Plan 2016 was in effect.[79]  Although weight may be given to that version,[80] neither party contends that it should be.  That said, the Council seeks to rely on a possible amendment, not yet in effect, as a relevant matter.  I will deal with that issue later.
  4. [72]
    In relation to s 45(5)(b) of the Planning Act 2016, although examples are given, the term “relevant matter” is not defined.  In an appropriate case, the absence of a negative impact or detrimental effect may be taken into account as a relevant matter.[81]  Personal circumstances of a person (including a corporation),[82] financial or otherwise, are not a relevant matter to which regard may be had.[83]

A threshold difficulty with the Council’s case

  1. [73]
    The Council submits:

“27. The application is impact assessable and, so, the assessment:

  1. (a)
    must be carried out against the assessment benchmarks in a categorising instrument for the development (and, although not relevant here, having regard to any matters prescribed by regulation); and
  1. (b)
    may be carried out against, or having regard to, any other relevant matter.”[84]
  1. [74]
    Section 31 of the Planning Regulation 2017 (Qld) contains matters that are prescribed for the purpose of an impact assessment under s 45(5)(a)(ii) of the Planning Act 2016.  It relevantly states:

“31 Matters impact assessment must have regard to generally—Act, s 45

  1. (1)
    For section 45(5)(a)(ii) of the Act, the impact assessment must be carried out having regard to—

…

  1. (f)
    any development approval for, and any lawful use of, the premises or adjacent premises; and
  1. (g)
    the common material.”

(emphasis added)

  1. [75]
    Common material is defined for a development application to mean:

“all the material about the application that the assessment manager receives before the application is decided, including—

  1. (i)
    any material relating to a proposed development application that is substantially similar to the development application as made; and
  1. (ii)
    any material attached to, or given with, the development application; and
  1. (iii)
    any material relating to the application given to the assessment manager after the application is made; and
  1. (iv)
    any referral agency’s response, including any advice or comment given by a referral agency and any response given under section 57 of the Act; and
  1. (v)
    any properly made submissions about the application, other than a submission that is withdrawn; and
  1. (vi)
    any other submission about the application that the assessment manager has accepted; and
  1. (vii)
    any other advice or comment about the application that a person gives to the assessment manager.”
  1. [76]
    As will be evident from my reasons below, the impact of the proposed development on the character and appearance of the local area is in issue.  To assess the impact, it is necessary to have regard to the existing character and appearance of the local area.  As I have already identified in paragraphs [4] to [6] above, a significant portion of the existing development on the subject land is proposed to be retained.  It includes the two-storey building containing residential aged care facilities and the one, two, three and six-storey buildings that form the existing retirement facility. 
  2. [77]
    In those circumstances, pursuant to s 31(1)(f) of the Planning Regulation 2017, the impact assessment must be carried out having regard to the use of the premises for a residential aged care facility in a two-storey building and the use of the premises for a retirement facility housed in one, two, three and six-storey buildings.
  3. [78]
    As such, the Council’s submission is wrong at law.  The error in the Council’s approach is a fundamental defect that infected the Council’s case, including the approach of its witnesses.[85]  
  4. [79]
    There is a second error in the Council’s submission.  It relates to the obligation, under s 31(1)(g) of the Planning Regulation 2017, to carry out the impact assessment having regard to the common material.  There was relevant common material referred to by the parties.  It included, amongst other things, the landscape plans in Exhibit 2.6 and the plans of the development in Exhibit 2.7.[86]  It is necessary to consider that common material to understand the built form of the proposed development and to assess its potential impact.

What is the appropriate approach to the assessment and decision-making process?

  1. [80]
    The assessment and decision-making process outlined above is to be approached consistent with the recent Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[87] Abeleda & Anor v Brisbane City Council & Anor,[88] Wilhelm v Logan City Council & Ors[89] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[90]  Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors[91] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[92]
  2. [81]
    There is a broad discretion in determining the appeal.  Section 47 of the Planning and Environment Court Act 2016 requires the Court to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate. 
  3. [82]
    As is apparent from the Court of Appeal decisions, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[93]  In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.[94]  Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[95]  The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.[96]  Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted.  Although the exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.[97]

Does the proposed development comply with the assessment benchmarks in City Plan?

  1. [83]
    Under City Plan, the subject land is:
    1. (a)
      included within the urban neighbourhoods element for the Strategic framework;
    2. (b)
      within the Medium density residential zone; and
    3. (c)
      mapped on Building height overlay map - map 12 with a height designation of two storeys and nine metres.[98]
  1. [84]
    As such, the development application for the proposed development requires impact assessment against, relevantly, the Strategic framework, the Medium density residential zone code, and the Multiple accommodation code in City Plan.[99]
  2. [85]
    Tricare admits that:
    1. (a)
      the proposed development is an area designated on the Building height overlay map as having a height of two storeys or nine metres;[100]
    2. (b)
      the proposed development is four storeys in height; and consequently,
    3. (c)
      the height of the proposed development does not comply with:
      1. the specific outcome in s 3.3.2.1(10) of the Strategic framework; and[101]
      1. the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.[102]
  1. [86]
    The specific outcome in s 3.3.2.1(10) of the Strategic framework states:

“Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.”[103]

  1. [87]
    The overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code states:

“Built form (excluding Dwelling houses on small lots) –

  1. (i)
    has a building height that does not exceed that indicated on the Building height overlay map.”[104] 
  1. [88]
    The Council concedes that the proposed development complies with all other relevant assessment benchmarks, other than s 3.3.2.1(9) of the Strategic framework.[105] 
  2. [89]
    Section 3.3.2.1(9) of the Strategic framework states:

“(9) Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:

  1. (a)
    a reinforced local identity and sense of place;
  1. (b)
    a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
  1. (c)
    a varied, ordered and interesting local skyline;
  1. (d)
    an excellent standard of appearance of the built form and street edge;
  1. (e)
    housing choice and affordability;
  1. (f)
    protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;
  1. (g)
    deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and
  1. (h)
    the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities.

Note: Where the Building height overlay map shows both storeys and metres, the lesser of the two shall apply, and any fraction which results from the calculations shall be rounded down to the nearest floor or partial floor.”[106]

  1. [90]
    The proposed development seeks an increase in building height of more than 50% above the Building height overlay map.  As such, this provision is not engaged. 
  2. [91]
    That the outcomes in s 3.3.2.1(9) do not apply to the proposed development is supported by the note to s 3.3.2.1(10) of the Strategic framework, which states:

“Note: no criteria have been identified for building heights which are more than 50% above the Building height overlay map, because such increases are in conflict with City Plan.”[107]

  1. [92]
    Notes form part of the City Plan.[108] 
  2. [93]
    Here, the proposed development conflicts with City Plan by reason of its proposed height.  It can be accepted that the identified non-compliances with City Plan cannot be conditioned to achieve compliance.[109]

What is the significance of the non-compliance with the assessment benchmarks respect to height?

  1. [94]
    It is well established that the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks.[110]  The decision can be informed by other relevant matters.[111]  Nevertheless, to ascertain the weight to be attributed to the non-compliance in undertaking the exercise of the planning discretion, one must examine the verbiage of the planning scheme to ascertain the degree of importance that the planning scheme attaches to the requirements in the provisions.[112]
  2. [95]
    The Council alleges that s 3.3.2.1(10) and the associated note are a “core planning strategy.”[113]  Neither the Council nor its experts identified provisions of City Plan that support a finding that the two assessment benchmarks with which there is non-compliance are identified in City Plan as a “core planning strategy”. 
  3. [96]
    Tricare disagrees.  It submits that the Council’s allegation is a blatant attempt to elevate the importance of the height provisions in this case in circumstances where they are the only assessment benchmarks in respect of which non-compliance is alleged.[114]  That said, it is not suggested by Tricare that the planned outcome with respect to height is not important. 
  1. [97]
    I am not persuaded that it is necessary, or appropriate, to attribute the label “core planning strategy” to s 3.3.2.1(10) or its note.  There are many assessment benchmarks against which the proposed development was required to be assessed.  The assessment benchmarks are not limited to provisions with respect to building height.  They address matters as varied as the density of development, bulk, scale, setbacks, roof form, local character, landscaping, and open space provision.  Further, City Plan does not label its policy with respect to building height, or any of the other matters dealt with in the myriad of other applicable assessment benchmarks, as a “core planning strategy”. 
  2. [98]
    The real issue is the significance of the non-compliances with the specific outcome in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.  That is informed by considering the context in which those assessment benchmarks appear.
  3. [99]
    Section 3.3.2.1(10) forms part of the Strategic framework.  The whole of the City Plan, including the Strategic framework, is an assessment benchmark for impact assessable development.[115]
  1. [100]
    The Strategic framework sets the policy direction for the Gold Coast to 2031.[116]  It comprises the strategic intent, six city shaping themes, strategic outcomes for development for each theme, elements that refine and further describe the strategic outcomes, and specific outcomes sought for each element.  It also includes mapping.[117]
  2. [101]
    Section 3.3.2.1(10) is just one of many specific outcomes in the “Urban neighbourhoods” element in s 3.3.2.  Notes to s 3.3.2 relevantly state:

“Note:  Urban neighbourhoods are locations included in the Medium density residential and High density residential zone.  Unless stated otherwise, Urban neighbourhoods may also include locations in other zones, such as the Neighbourhood centre and community facilities zone depending on context.

Note:  Urban neighbourhoods are not locations included in the Low density residential zone.”[118]

  1. [102]
    As I have already noted, the subject land is included within the urban neighbourhoods element for the Strategic framework.  It is also in the Medium density residential zone. 
  2. [103]
    The planning intent with respect to the height of buildings in urban neighbourhoods is the subject of more than one specific outcome.  To appreciate the significance that City Plan attributes to non-compliance with s 3.3.2.1(10), it assists to read it in the context of the specific outcomes that immediately precede and follow it.  They state:

“(8) The Building height overlay map shows the building height pattern and desired future appearance for local areas within urban neighbourhoods.  This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high rise areas.

  1. (9)
    Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:
  1. (a)
    a reinforced local identity and sense of place;
  1. (b)
    a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
  1. (c)
    a varied, ordered and interesting local skyline;
  1. (d)
    an excellent standard of appearance of the built form and street edge;
  1. (e)
    housing choice and affordability;
  1. (f)
    protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;
  1. (g)
    deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and
  1. (h)
    the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities.

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

  1. (10)
    Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.

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

  1. (11)
    Urban neighbourhoods are diverse and distinguished by a distinct appearance, identity and built form in each neighbourhood.”[119]
  1. [104]
    It is evident from these provisions that it is anticipated that there will be diversity in appearance in urban neighbourhoods, and that the building height pattern and desired future appearance for a local area is that depicted on the Building height overlay map.  As is evident from s 3.3.2.1(9), City Plan provides a degree of flexibility for building height in local areas.  However, the flexibility is bounded by strict parameters. 
  2. [105]
    It is apparent from this context alone that City Plan adopts a stringent policy with respect to height in order to tightly control the building height pattern and desired future appearance of local areas. 
  3. [106]
    As I have identified in paragraph [100] above, specific outcomes for elements refine and further describe strategic outcomes.  The specific outcomes in ss 3.3.2.1(8) to (11) refine strategic outcomes for the “Creating liveable places” theme.  With respect to building height, the strategic outcomes in s 3.3.1 state:

“(3) Housing is provided in a form, height and scale consistent with the function, amenity and desired future character of local areas and centres, and promotes a sense of community cohesion and wellbeing. Housing is attractive and well-designed.

  1. (5)
    Varied building height and form throughout the city reinforces local identity, creates a sense of place and supports housing choice and affordability and the function and desired appearance of each local area.”[120]

(emphasis added)

  1. [107]
    The planning vision that informs these strategic outcomes is set out in the strategic intent.[121]  Part of the vision is to support the development of the Gold Coast as a world-class city.[122]  That is intended to be achieved by shifting from “development on the city’s fringe to redevelopment of urban centres and key inner-city neighbourhoods”.[123]  Not all urban areas will be renewed and transformed.  Some are planned to be “protected to maintain their existing appearance and amenity”.[124]
  2. [108]
    City Plan recognises that urban design excellence is also vital to any world-class city.  The strategic intent states:

“Our City’s urban design and architecture is world-class and our iconic skyline is internationally recognised. As we become a world-class city, well designed buildings and places will continue to reinforce local identity and sense of place, and provide places that are attractive, functional, safe and accessible, while supporting social diversity and cultural expression.”[125]

(emphasis added)

  1. [109]
    The strategic intent with respect to “City shape and urban transformation” in s 3.2.2 states:

“…  building height and form will continue to vary across the city, including areas where building heights are planned to change abruptly to achieve a deliberate and distinct contrast in built form.  This will reinforce community identity, create a sense of place, support housing choice and affordability and reflect the city’s different places and spaces …”[126]

(emphasis added)

  1. [110]
    When the specific outcomes in s 3.3.2.1 are considered in that context, it is apparent that the control on building height is a defining parameter for the desired future character of local areas, but it is only one of the parameters that informs the intended local identity and the sense of place planned for local areas across the local government area. 
  2. [111]
    The other aspect of City Plan with which there is non-compliance is the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.  The purpose of that code is:

“… to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents.”[127]

  1. [112]
    That purpose is to be achieved through the overall outcomes, which includes the overall outcome in s 6.2.2.2(2)(d)(i).  It states:

“(d) Built form (excluding Dwelling houses on small lots) –

  1. (i)
    has a building height that does not exceed that indicated on the Building height overlay map;”[128]
  1. [113]
    To similar effect, performance outcome PO3 of the Multiple dwelling code states:

“PO3

Building height and structure height does not exceed that shown on the Building height overlay map.”

  1. [114]
    These provisions do not, on their face, admit of the same degree of flexibility that appears in the Strategic framework.
  2. [115]
    The subject land is shown on Building height overlay map – map 12 within an area bounded by an orange dashed line, which is recorded in the legend to indicate “2 Storey (9 metres)* may include a partial third storey subject to code assessment”.[129]  The proposed development is four storeys in height. 
  3. [116]
    As is evident from the provisions referred to above, the non-compliances with the specific outcome in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code involve a clear departure from a forward planning strategy that is intended to shape the built height pattern and desired future appearance for local areas within urban neighbourhoods.  To the extent that the proposed development conflicts with the planned height for the subject land, it is also inconsistent with one of the parameters that informs the broader strategy to reinforce local identity and create a sense of place.
  4. [117]
    In an assessment of the proposed development undertaken only against the assessment benchmarks referred to in paragraphs [86] and [87] above, it is easy to accept the Council’s case that the non-compliances are deserving of decisive weight and the development application should be refused.  However, the assessment process under s 45 of the Planning Act 2016 requires me to have regard to matters prescribed by s 31(f) of the Planning Regulation 2017.  They impact on the weight to be attributed to the non-compliances with City Plan in this case.

What is the relevance of the existing lawful use of the subject land?

  1. [118]
    The Council submits:

“135. The existing six-storey building on the site was built before the commencement of City Plan.[130] As a result, the building precedes, by some considerable time, the building height strategy evident in City Plan. Tricare has not alleged that the Council has not consistently applied the building height strategy in its City Plan at Runaway Bay[131] or elsewhere as a reason that City Plan should be disregarded.

  1.  Buildings that pre-date City Plan have no, or very limited, relevance.[132]”[133]
  1. [119]
    By reason of its height, the existing six-storey building on the subject land is inconsistent with the planned building height pattern and desired future appearance for this local area. 
  2. [120]
    The six-storey building on the subject land precedes the building height strategy in City Plan by some considerable time.  As such, the building’s existence does not demonstrate that the Building height overlay map has been overtaken by events. 
  3. [121]
    I do not regard the inconsistency between the existing built form and the Building height overlay map as demonstrative that the Building height overlay map is inappropriate for the subject land.  It can readily be accepted that planning schemes are forward looking in nature.  They seek to facilitate certain changes to meet the various policy objectives considered important at the time the planning scheme is prepared.  City Plan sets the intentions for future development in the City Plan area for 20 years.[134]  The Building height overlay map in City Plan can be taken to reflect an intentional policy shift away from buildings of six storeys in height in this local area.  It can also be readily accepted that it is the intention of the planning authority that a decision that departs from the Building height overlay map is not to be made lightly.
  4. [122]
    Nevertheless, I do not accept that buildings that pre-date City Plan have no, or very limited, relevance.  The Council’s submission in this regard is wrong at law.  As I have explained in paragraphs [66] to [78] above, the impact assessment must be carried out having regard to “any development approval for, and any lawful use of, the premises or adjacent premises”. 
  5. [123]
    The Council’s error of law is not remedied by its reliance on Grosser & Anor v Council of the City of Gold Coast.[135] 
  6. [124]
    In that case, the Court of Appeal overturned a decision of the Planning and Environment Court to approve a material change of use to an existing residential dwelling to permit its use for an art school, art gallery and cafeteria.  The relevant land was at 44 Ashmore Road, Bundall.  It was improved by a house.  The use of the land on the opposite side of Ashmore Road had been described by the primary judge as “intensive commercial and retail development” and the use of the land on the two blocks around the subject site on the southern side was described as comprising 28 properties with nine medical centres, eight home occupation uses and two unlawful on-residential uses.  The subject site was within the Residential Dwelling House Zone and the Detached Housing Preferred Dominant Land Use designation under the 1994 Scheme.  It was surrounded by similarly designated sites. 
  7. [125]
    In her reasons for judgment, White J records that the primary judge found that:

“To some extent it may be said that the Strategic Plan so far as this particular area is concerned has simply been overtaken by events to the stage where this portion of Ashmore Road is really dominated now by semi-commercial aspects of the medical centres and home occupations.”[136]

  1. [126]
    The primary judge also observed that the court was “dealing with a plan which (so far as this particular area is concerned), has simply been overtaken by events.”[137]  Those findings informed the primary judge’s decision to approve the development application.
  2. [127]
    White J, with whom Thomas and Williams JJA agreed, observed:

“[38] The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July 2000.  The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 at 211:

“It should not be necessary to repeat it but his (sic) Court is not the Planning Authority for the City of Brisbane. It is not this Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council (1972) 26 LGRA 322 at 327). As was observed by Carter J in Sheezel v Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to ‘cut across’ in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.”

This stated a proposition which the Court said was “common sense … for which no authority was required” [46]. See also Ampol Petroleum (Q'land) Pty Ltd v Pine River Shire Council [1989] QPLR 133 per Row DCJ at 134, 136; Bullock v Hervey Bay Town Council [1983] QPLR 98 per Carter DCJ at 100; Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 per Quirk DCJ at 208; and the discussion in Fogg Land Development in Queensland (1987) pp 390 et seq.”[138]

  1. [128]
    White J also found:

“It seems that his Honour failed to recall that the medical centres upon which he appeared to place so much reliance for this state of affairs had been approved prior to the 1994 Scheme, that none had been approved since, that they were a prohibited development use for this area and if they ceased to operate as medical centres the sites would revert to being residences and that they were contrary to the clearly expressed intent of the Strategic Plan and that the council had not department [sic. departed] from adherence to that Plan.  His Honour made findings about amenity, traffic consideration and the objections to the application and no complaint is made about those findings.  Even though the Strategic Plan is one of the factors to take into account it is an important factor. It appears that his Honour’s perceived error about the medical centres so infected his approach that he impermissibly “cut across” the planning strategy adopted by the council and exceeded his jurisdiction.”[139]

(emphasis added)

  1. [129]
    Thomas and Williams JJA agreed with the analysis of White J.  Williams JA added:

“The critical error of law in the reasoning of the learned judge at first instance is encapsulated in the statement: “having regard to the range and type of uses already approved in the area, I do not regard the provisions of the Residential Dwelling House Zone as entirely appropriate to the subject land”. As White J has demonstrated, that reasoning is contrary to the approach approved by the Court in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268, citing with approval part of the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 at 211 – the passage quoted by White J.”[140]

  1. [130]
    Grosser & Anor v Council of the City of Gold Coast[141] can be distinguished from the present case on three bases.
  2. [131]
    First, the development application in that case fell to be assessed under a different legislative regime to that which applies here.  The assessment of the development application was required to be undertaken pursuant to the transitional provisions in the Integrated Planning Act 1997 (Qld).  Pursuant to s 6.1.29(2) of the Integrated Planning Act 1997, s 3.5.5 did not apply to assessing the application.  As such, the obligation to assess the development having regard to “any development approval for, and any lawful use of, premises the subject of the application or adjacent premises”[142] was displaced.  Instead, the development application required assessment having regard to applicable matters in the Local Government (Planning and Environment) Act 1990 (Qld).[143]  
  3. [132]
    Second, the development application was required to be decided under a different legislative regime to that which applies here.  Pursuant to s 6.1.30 of the Integrated Planning Act 1997 and s 4.5(5A) of the Local Government (Planning and Environment) Act 1990, the Court, standing in the shoes of the local government, was required to refuse the development application if the application conflicted with any relevant strategic plan or development control and there were not sufficient planning grounds to justify approving the application despite the conflict.[144]
  4. [133]
    Third, there are marked differences in the factual scenario.  As is evident from the quote above, in Grosser & Anor v Council of the City of Gold Coast[145] White J found that if the existing (inconsistent) uses ceased to operate as medical centres, the sites would revert to being residences.
  5. [134]
    Here, the only aspect of the existing use that is proposed to change is that part of the existing residential aged care facility that is housed in a single storey building.  The remainder of the use, and the associated built form, is lawful and it is to continue.  Further, it is uncontroversial that the residential aged care facility and the retirement facility uses are contemplated and acceptable uses on the subject land under City Plan.  It is only the height of some of the buildings that does not accord with City Plan’s intentions for building height on the subject land. 
  6. [135]
    Although the six-storey building containing part of the lawful retirement facility has the appearance of being constructed in the 1980s or 1990s, it nevertheless exists.  There is no evidence to suggest that this position will change in the foreseeable future, or at all.[146]  It will continue to inform the character of the local area for some time to come.  Contrary to the submission of the Council,[147] this is a matter to which I must have regard. 
  7. [136]
    The built form in the local area comprises a range of attached and detached dwellings and multiple dwellings ranging in height from one to six storeys.[148]  That built form does not reflect the planned building height pattern and the desired future character of the local area depicted on the Building height overlay map.  The lawful use on the subject land has built form of a height that far exceeds the planned maximum building height.  It undermines the present ability to achieve the planned building height pattern and desired future appearance in this local area.  Further, the absence of evidence to suggest that the position will change in the foreseeable future, if at all, is a matter of considerable force.  In combination, these matters diminish the potency of the non-compliance.  They put the development application into a different context than one where a building with a non-compliant building height is introduced into a local area where the existing development accords with the planned height.
  8. [137]
    The combination of those factors in this case suggests to me that the specific outcome in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code should not be applied in an inflexible or unyielding way as contended for the by Council.  To do so would fail to give sufficient recognition to the features of the subject land and the locality, including the lawful use of the premises. 
  9. [138]
    As was aptly observed by His Honour Judge Williamson QC in I B Town Planning v Sunshine Coast Regional Council:[149]

“[111] … Section 45(5)(a)(ii) of the Act, read with s 31(1)(f) of the Planning Regulation 2017, make it clear that the approved use is a mandatory consideration in the assessment of the development application. An underlying purpose for this includes a matter of practicality; it is to ensure the assessment, and decision making process, is not carried out in an artificial way without reference to the particular circumstances of the land and locality. The weight given to matters of this kind in the assessment is, however, a different question. …”

  1. [139]
    In my view, in this case the weight to be given to the mandatory consideration in s 45(5)(a)(ii) of the Planning Act 2016, read with s 31(1)(f) of the Planning Regulation 2017, is not so weighty as to, of itself, warrant approval of the proposed development.  It does, however, temper the Council’s prima facie compelling case for refusal.

What matters are in issue under s 45(5)(b) of the Planning Act 2016?

  1. [140]
    As is noted in paragraph [67] above, in addition to the mandatory considerations in s 45(5)(a), the Planning Act 2016 permits an assessment to be carried out against, or having regard to, any other relevant matter.  This begs the question: what are the relevant matters that the parties have put in dispute in this case?  Unfortunately, this question is not easily answered as there is a disconnect between the parties about the issues in dispute.
  2. [141]
    Tricare submits:

“The issues in dispute between the parties are included as Annexure A to this document.  The issues are Exhibit 10.6 before the Court.”[150]

  1. [142]
    The Council submits:

“The issues in dispute

  1. By Order[151] the issues were identified by the documents comprising Exhibits 1.1 at [8], 1.3, 1.4 and 2.9 (Reasons for Refusal 1 to 3 on p.1 of 6).  The final list of issues (delivered for the purpose of Practice Direction 2 of 2020) became Ex. 10.6.”[152]
  1. [143]
    The Council’s submission creates confusion about the issues that require determination.  The Council does not identify the relevance of the first sentence of paragraph 25 of the Submissions on behalf of the Council.  By its inclusion, the Council appears to contend that the issues in dispute are more extensive than those identified in Exhibit 10.6.  My apprehension in that regard was not assuaged by the Council’s opposition to a draft order, sought by Tricare after the hearing concluded, replacing the earlier order with one that defined the issues to be determined as those identified in Exhibit 10.6. 
  2. [144]
    The lack of assistance provided by the Council in the identification of the real issues in dispute is disappointing, particularly having regard to the events that led to the admission of Exhibit 10.6, including its admission, without objection by the Council, as the final version of the issues in dispute.[153] 

What are the obligations of parties in identifying the issues in dispute?

  1. [145]
    When the orders were made defining the issues in dispute, the parties did not have the benefit of all the reports of experts that were tendered as part of the hearing.  That is not unusual.  As I have already mentioned, an appeal to this Court about a decision relating to a development application is by way of hearing anew.[154]  Further, resolution of the issues in dispute in an appeal to this Court about a development application is often informed, to a significant degree, by consideration of expert reports prepared after the commencement of the appeal. 
  2. [146]
    Although the expert reports are prepared after the commencement of the appeal, they are available prior to the commencement of the hearing.  This is because, under the Planning and Environment Court Rules 2018 (Qld), subject to the grant of leave, the evidence-in-chief of the expert witnesses is comprised of their expert reports.  This includes joint reports produced in relation to a meeting of experts and further statements of evidence prepared in relation to any issue of disagreement recorded in a joint report.[155]  Consequently, while the experts have not been cross-examined, the parties to the proceeding have the benefit of most of the evidence that will inform the determination of the issues in dispute.  This allows them to make informed decisions about the extent to which the previously anticipated issues in the trial can be narrowed to reflect the real issues in dispute. 
  3. [147]
    The Planning and Environment Court Rules 2018 do not require parties to file and serve pleadings.  As such, there is no ongoing obligation on the parties to amend a pleading upon the receipt of the expert reports.[156]  However, the flexibility afforded to the parties to conduct the litigation free from the strict pleading rules in the Uniform Civil Procedure Rules 1999 does not mean the parties are at liberty to pursue issues that are not real issues in dispute.  As much is apparent from the observations of His Honour Judge Williamson QC in Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor,[157] wherein His Honour said:

“This flexibility does not mean the parties are at liberty to notify a substantial number of reasons for refusal that are underpinned by an oppressive number of planning scheme provisions. To do so smacks of a “win at all costs” attitude or, alternatively, has the appearance of a scatter gun approach to litigation. Irrespective of which description applies in any given case, the notification of issues in this way may not perform favourably when examined against the professional conduct rules mandating the responsible use of Court process and privilege[158] nor when examined against rule 10(2) of the Planning and Environment Court Act 2016.”[159]

  1. [148]
    I agree with His Honour.  Those observations are equally apposite to the maintenance of issues that are not real issues.
  2. [149]
    Section 10 of the Planning and Environment Court Act 2016 states:

“10 Principles for exercising jurisdiction

  1. (1)
    In conducting P&E Court proceedings and applying the rules, the P&E Court must–
  1. (a)
    facilitate the just and expeditious resolution of the issues; and
  1. (b)
    avoid undue delay, expense and technicality.
  1. (2)
    The parties to a P&E Court proceeding impliedly undertake to the court and each other to proceed in an expeditious way.”
  1. [150]
    Planning and Environment Court Practice Direction 2 of 2020 assists the Court in the discharge of its obligations under s 10 of the Planning and Environment Court Act 2016.  Compliance with it assists the parties in that regard also.  Relevantly, it states:

“Purpose

  1. The purpose of this Practice Direction is to set out case management procedures for the just and expeditious resolution of the issues in proceedings and avoid undue delay, expense and technicality.
  1. This Practice Direction applies to all proceedings in the Planning and Environment Court.

…

Arrangements for Hearings

…

  1. …
  1. (c)
    On the first day of a hearing, the party that bears the onus should provide an agreed list of the disputed issues that remain for determination or, in the absence of agreement, the parties should provide their respective lists of issues.”
  1. [151]
    It might reasonably be expected that, prior to the hearing commencing, and ideally prior to the allocation of hearing dates,[160] each party would review the expert reports to decide the extent to which the previously anticipated issues in the trial can be narrowed to reflect the real issues in dispute.  Each party must undertake the task and provide the resultant list to the Court on the first day of a hearing if it is to properly discharge its obligations under s 10 of the Planning and Environment Court Act 2016 and comply with the Court’s procedural requirements under paragraph 25(c) of Planning and Environment Court Practice Direction 2 of 2020.
  2. [152]
    A party’s failure to pay proper regard to its obligations under s 10 of the Planning and Environment Court Act 2016 and paragraph 25(c) of Planning and Environment Court Practice Direction 2 of 2020 may result in an order to pay costs.[161]  Unfortunately, any such order is insufficient to remedy the waste of the finite resources of the Planning and Environment Court[162] occasioned by such unsatisfactory conduct.  A failure to identify the real issues in dispute unnecessarily protracts litigation.  It lengthens the time required for the hearing and inappropriately consumes the time judicial officers are afforded to prepare reasons for judgment.  This impedes the Court’s ability to dispose of the subject proceeding in a timely manner.  It also prejudices the interest of other litigants awaiting reasons for judgment.  As has been recognised by the High Court, achieving the most efficient use of court resources is a matter of public interest.[163]
  3. [153]
    Here, the Council’s conduct with respect to identification of the issues in dispute is unfortunate.  The Council defaulted in the procedural requirement in paragraph 25 of Planning and Environment Court Practice Direction 2 of 2020 as it did not provide any list of the issues on the first day of hearing.  This does not sit comfortably with the Council’s responsibilities in the proceeding to facilitate the just and expeditious resolution of the issues.
  4. [154]
    The Council’s disappointing conduct persisted throughout the hearing.  Its decision during the trial to oppose paragraphs 1 and 16 of Tricare’s list of issues, based on stylistic changes, does not sit comfortably with its responsibility to avoid undue technicality.  Further, in apparent disregard of my rulings on these issues during the hearing, the Council contends in its written submissions that the issues in dispute are identified by reference to the earlier orders.[164]  The Council’s submission about the ambit of the issues in dispute left me with the unenviable and time consuming task of comparing the issues identified in Exhibits 1.3, 1.4, 1.5 and 2.9 to those identified in Exhibit 10.6 to ascertain the issues that Council contends remain to be determined.  It caused delay in the preparation of these reasons for judgment.
  5. [155]
    The Council is a regular litigant in this Court.  It should be well familiar with its obligations under s 10 of the Planning and Environment Court Act 2016 and paragraph 25 of Planning and Environment Court Practice Direction 2 of 2020.  Its conduct with respect to the identification of the issues in dispute fell short of what is expected.

What issues arise for determination with respect to “relevant matters”?

  1. [156]
    Having considered Exhibits 1.3, 1.4, 1.5, 2.9, 10.3, 12.1 as compared to Exhibit 10.6, it seems to me that the matters identified in those documents call for consideration of the following questions:[165]
  1. What weight should be afforded to the draft amendments proposed to City Plan?
  1. Has Tricare demonstrated that the proposed development cannot be developed within a three-storey building?
  2. Is the proposed development inconsistent with the reasonable community expectations?
  3. Does the cumulative effect of an additional building greater than two storeys on the subject land tell against approval?
  4. Is there a need for the proposed development?
  5. Will the proposed development provide appropriate facilities for ageing in place?
  6. Does the design of the proposed development have architectural merit?
  7. Will the proposed development result in any unacceptable impacts?
  8. Does the proposed development involve an absence of town planning harm?
  1. [157]
    The first four questions relate to matters that the Council alleges arise for consideration under s 45(5)(b) of the Planning Act 2016 and which it contends supports its case for refusal.  The balance are “relevant matters” raised by Tricare as supportive of approval.

What weight should be afforded to the draft amendments proposed to City Plan?

  1. [158]
    The Council alleges that, contrary to the public interest, approval of the proposed development would cut across and be inconsistent with draft amendments to City Plan.  Those draft amendments propose to include the subject land in the Low-medium density residential zone and which does not anticipate buildings of the height proposed, including the draft specific outcomes in ss 3.3.2.1(9), (10) and (11) and associated notes.

What are the proposed amendments?

  1. [159]
    Since 2017, the Council has been drafting amendments to City Plan that are known as “Major Update 2 & 3” amendments.[166]
  1. [160]
    The Council says that the draft amendments of importance to this appeal are:
    1. (a)
      amendment of and addition to the specific outcomes in s 3.3.2 of the Strategic framework;
    2. (b)
      the introduction of a new Low-medium density residential zone and associated code, which is proposed to apply to the subject land and other properties to the south and east in Runaway Bay; and
    3. (c)
      a new Building height overlay map, which maintains a building height of nine metres for the subject land and allocates it to the “low” building height category.
  1. [161]
    The draft specific outcomes in ss 3.3.2.1(9) and (10), new specific outcome in s 3.3.2.1(11) and draft notes state:

“(9) Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:

  1. (a)
    the development is not located within the Low-medium density residential zone;
  1. (b)
    The development is not located within The Spit Master Plan height sensitive area, as identified on the Building height overlay map;
  1. (c)
    the development is not within a neighbourhood element area, as identified on the Neighbourhood elements overlay map;
  1. (d)
    a reinforced local identity and sense of place;
  1. (e)
    a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
  1. (f)
    a varied, ordered and interesting local skyline;
  1. (g)
    an excellent standard of appearance of the built form and street edge;
  1. (h)
    housing choice and affordability;
  1. (i)
    protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;
  1. (j)
    deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and

(k) the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities.

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

  1. (10)
    Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.

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

Note: Specific outcome (10) does not apply to locations in urban neighbourhoods that are within the Low-medium residential zone, a neighbourhood element area, as identified on the Neighbourhood elements overlay map or The Spit Master Plan height sensitive area. This is because in these locations increases beyond the Building height overlay map are in conflict with the City Plan.

  1. (11)
    Increases in building height in urban neighbourhoods within the Low-medium density residential zone, and a neighbourhood element area, as identified on the Neighbourhood elements overlay map, above the Building height overlay map, are not anticipated as these areas have a deliberate planned building height.

…

Note: Urban neighbourhoods are conceptually shown on strategic framework map 2

Note:  Urban neighbourhoods are locations included in the Low-medium density residential, Medium density residential and High density residential zones. Unless stated otherwise, Urban neighbourhoods may also include locations in other zones, such as the Neighbourhood centre and Community facilities zone depending on context.

Note:  Urban neighbourhoods are not locations included in the Low density residential zone.”[167]

  1. [162]
    In the draft Low-medium density residential zone code:
    1. (a)
      the overall outcome in s 6.2.2.2(2)(e)(i) seeks that the built form and scale of development does not exceed the building height identified on the Building height overlay map;[168]
    2. (b)
      the overall outcome in s 6.2.2.2(2)(e)(iii)(A) seeks that the built form and scale of development positively contributes to urban context, by, among other things, supporting achievement of planned character;[169] and
    3. (c)
      performance outcome PO3 seeks that building and structure height does not exceed the building height shown on the Building height overlay map.[170]
  2. [163]
    The Council says that no performance-based circumstance to uplift building height is identified.
  3. [164]
    The draft amendments to City Plan also insert an administrative definition of “low building height”, which means the height shown on the Building height overlay map.[171]
  4. [165]
    To summarise, if adopted, the draft amendments will identify the subject land as being in the Low-medium density residential zone and will ascribe it a height designation of “9 metres” on the Building height overlay map.[172]  In addition, for the most part, the area on the western side of Bayview Street, including the subject land and the land to its south, will be designated “low” building height on the Building height overlay map.[173]

What is the progress of the draft amendments?

  1. [166]
    As I mentioned in paragraph [159] above, the proposed amendments have been in train for about five years.  During that period, there has been four rounds of public consultation about the proposed amendments, which were undertaken between:
    1. (a)
      27 September 2019 and 11 November 2019;
    2. (b)
      6 January 2020 and 12 February 2020;
    3. (c)
      12 May 2020 and 10 June 2020; and
    4. (d)
      9 March 2021 and 8 April 2021.[174]
  2. [167]
    Over the course of the public consultation, there was only one material change to the draft specific outcomes that limit building heights in the Low-medium density residential zone to those stated on the Building height overlay map.  In the second round of public consultation, additional wording was included in the second note to the specific outcome in s 3.3.2.1(10).  It emphasised that increases beyond the heights identified on the Building height overlay map are in conflict with the City Plan.[175]
  3. [168]
    On all four occasions that the draft amendments were the subject of public consultation, the subject land has been shown on the proposed Building height overlay map as having a height limit of nine metres.
  4. [169]
    On 16 February 2021, the Council resolved:

“That if there are no significantly different changes arising from the fourth round of consultation, the Chief Executive Officer, in consultation with the Mayor and Chair of the Planning and Environment Committee, is authorised to send a request to the State Government for approval to adopt the Major update 2 & 3 amendment package.”[176]

  1. [170]
    At the time of the hearing, there had been no resolution to vary or abandon Major Update 2 and 3.[177]

What weight should be given to the draft amendments?

  1. [171]
    Although the appeal is by way of hearing anew,[178] there is an obligation to assess the proposed development against the assessment benchmarks that were in effect when the development application was properly made.[179]  That legislative position is consistent with the presumption against retrospectivity of laws, which protects against the injustice of a person’s rights being affected by later legislation.  That said, the legislation permits the Court to give the weight that it considers is appropriate in the circumstances to another statutory instrument that comes into effect after the development application is properly made but before it is decided by the Court.[180] 
  2. [172]
    Neither the Planning Act 2016 nor the Planning and Environment Court Act 2016 make express reference to giving weight to draft documents that have not yet been adopted or come into effect.  Nevertheless, it is a relevant matter to which regard may be had under s 45(5)(b) of the Planning Act 2016.  The weight to be given to the draft amendments is in the discretion of the Court.  The Court’s discretion is broad and must be exercised judicially.[181]  The exercise of the discretion may be informed by issues of fairness and all other relevant circumstances.[182]
  3. [173]
    The public interest in giving weight to draft amendments was explained by Hardie J in Coty (England) Pty Ltd v Sydney City Council,[183] who observed:

““It is important, in the public interest, that whilst the respondent council’s local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.

An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned “Residential—Class C”. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter.”[184]

  1. [174]
    The issue was considered more recently by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,[185] wherein Henry J (with whom Fraser and Morrison JJA agreed) observed:

“[21] The Coty principle identifies two public interest considerations when considering development applications in an era when a new planning scheme is under consideration but not yet taken effect. Each was separately described by Hardie J in the passage quoted above as “important, in the public interest”. Both share the underlying policy that completely ignoring a draft plan would “frustrate, and tend to diminish public confidence in, the planning process”. It is convenient to discuss these public interest considerations from the perspective of a court hearing an appeal from an assessment manager, though the Coty principle also applies to that original decision maker.

[22] It is conceivable that on the facts of a particular case one or other of those considerations may attract such significant weight as to have a determinative effect on the outcome. Importantly however, neither are expressed as inevitably determinative considerations. That is unsurprising because their relative significance will vary from case to case, depending upon the circumstances of each case.

[23] The first public interest consideration is the avoidance, as far as possible, of a judgment which would render more difficult the ultimate decision as to the form the planning scheme should take. The rationale behind that consideration is the desirability of the court not making a decision on a planning appeal in circumstances where it would make the democratic process surrounding the development of a new planning scheme more difficult. This first consideration, sometimes referred to as the “non-derogation principle”, was not relevant below. That is because Council’s decision had already been made by the time the learned primary judge delivered his reasons. The process by which the draft scheme would in due course become law only remained “a formality”.

[24] The second public interest consideration in the Coty principle is that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation. This consideration allows the court to take into account the terms of a draft scheme or other planning instrument before that draft instrument has entered into force. It is a concession to the reality that planning is an ongoing process and that it is unwise to ignore the future direction of a planning scheme when the development the subject of the application will have to co-exist with whatever that future direction might be. …”[186]

  1. [175]
    Here, the Council submits that the proposed amendments to City Plan evidence a deliberate planning strategy for building height by:
    1. (a)
      providing a deliberate planned building height in the new Low-medium density residential zone; and
    2. (b)
      in the specific outcome in s 3.3.2.1(11), providing that an increase of up to 50 per cent additional height, which may be otherwise available in urban neighbourhoods, is not available for land within the Low-medium density residential zone.
  2. [176]
    The Council says the draft amendments to City Plan provide a clear future direction as to the desired building height outcomes for the subject land and those parts of the surrounding area.  It submits that the draft amendments are more restrictive than the current City Plan: they offer no provision for uplift. 
  3. [177]
    The Council submits that the proposed amendments have reached an advanced stage and should be given significant weight.  It says that they herald a shift in planning policy that the proposed development would cut across.  It says the fact that the proposed development is not in consonance with the proposed strategy is a matter that warrants refusal of the proposed development.
  4. [178]
    Tricare disagrees.  It submits that they should be given no weight for five reasons.
  5. [179]
    First, Tricare submits that the extent of public consultation indicates that the draft amendments have a tortured history.  They submit that the fact that the draft amendments have been unable to be progressed in any meaningful way is an indicator that they remain uncertain and should not be given weight in this proceeding.  It says that indicator is persuasive in this case given:
    1. (a)
      the public submissions from the fourth round of public consultation are still being reviewed;
    2. (b)
      the attitude of the State to the draft amendments is not known; and
    3. (c)
      even if the State approves the proposed amendments, there is no certainty about if or when any amendments are likely to be made.
  6. [180]
    I do not consider this to be a compelling basis to give the draft amendments no weight.  While the progress of the draft amendments has been slow, at the time of the hearing they had reached an advanced stage and there had been no resolution to vary or abandon the amendment process.
  7. [181]
    Second, Tricare says, unlike in Coty (England) Pty Ltd v Sydney City Council,[187] the draft amendments are not specifically directed to the subject land or this local area.  Rather, they apply on a city-wide basis.  Tricare submits that the Court would be slow to give weight to a draft amendment where it is a draft amendment applied across the whole of the local government area and is not directed towards impact, character, or streetscape in a particular locality.  It says, considered in that context, the draft amendment is a blunt instrument that needs to be approached cautiously.
  8. [182]
    There is considerable force to this submission.  On 15 February 2018, the Council’s City Planning branch produced a report titled “Major Building Height and Residential Density Anomalies – Phase 2 PO98/1132/06/01”.[188]  That report indicates that the draft changes were not considered on a site-by-site basis.  Rather, the changes will apply to approximately 33,000 properties with a combined area of about 3,017 hectares that are located in the Medium density residential zone but which have a residential density designation of between 1 dwelling per 400 square metres and one bed per 50 square metres and a building height below 16 metres or three to four storeys.[189] 
  9. [183]
    Third, Tricare submits the draft amendments should not be given weight where the development on the subject land has been established for many years and has formed an obvious part of the local character and identity.  It says that the draft change to the zone on this highly developed site, which already includes a six-storey building and several three-storey buildings, will have no impact on those aspects of the current land use.
  10. [184]
    This submission also has some force for the reasons explained in paragraphs [118] to [139] above.
  11. [185]
    Fourth, Tricare submits that the draft amendments, at least in respect of the subject land, are not in the public interest.  In the submission of Tricare, the public interest in this case lies in the provision of appropriate and modern facilities to accommodate ageing in place in a locality where there is a clear need for development of this type.
  12. [186]
    This reason appears to be directed at the broader issue of how the Court should exercise its ultimate discretion to either approve or refuse the application for the proposed development.  That is an issue that I consider later.
  13. [187]
    Fifth, Tricare submits that the apparent objectives of the amendment can be achieved regardless of whether the present application is approved.  The proposed development is in an existing aged care and retirement facility.  As compared to the local government area the subject of the draft amendment, it occupies but a small area.  As such, the intent of the amendment would not fail from the approval of this development application.  Tricare says an approval of the proposed development would not cut across, or even inhibit the implementation of, the draft provisions across the City (assuming the draft amendment is ultimately approved and adopted).
  14. [188]
    There is considerable force to this fifth reason advanced by Tricare.  It is a matter that distinguishes this case from the situation that pertained in Coty (England) Pty Ltd v Sydney City Council.[190]
  15. [189]
    The second, third and fifth reasons advanced by Tricare in support of its position that the draft amendments should be given no weight call for a degree of circumspection when determining the weight to be attributed to a draft amendment. 
  16. [190]
    Here, a decision to approve the proposed development would not involve the introduction of a building that exceeds the draft planned height into an area (or even on a site) that otherwise accords with the draft planned height limit.  The subject land already contains a six-storey building and three-storey buildings and there is no evidence to suggest that this position will change in the foreseeable future, or at all.  As such, the approval of the proposed development would not render the decision to adopt the draft amendments any more difficult than it already is given the existing built form on the subject land.  As such, a decision to approve the proposed development would not offend the first public interest consideration referred to in Brisbane City Council v YQ Property Pty Ltd.[191] 
  1. [191]
    The second public interest consideration referred to in Brisbane City Council v YQ Property Pty Ltd[192] is of greater significance in this case.  Here, a decision to approve the proposed development would add to the extent of built form in the local area that is not in consonance with the town planning decisions which have been embodied in the draft amendments that are in the course of preparation.  The draft amendments are more restrictive than the current City Plan.  If adopted, they will remove the limited degree of flexibility about building height that exists in s 3.2.2.1(9). 
  2. [192]
    That said, I do not consider that a decision that does not give determinative weight to the draft amendments would frustrate, or tend to diminish public confidence in, the planning process.  The planning process is one that:
    1. (a)
      mandates an assessment against the assessment benchmarks that were in effect when the development application was properly made; and
    2. (b)
      permits, but does not oblige, the decision maker to have regard to other relevant matters, of which this is but one. 
  3. [193]
    Further, it is difficult to appreciate how the draft amendments strengthen the Council’s case that the non-compliances with City Plan are deserving of decisive weight.  In this case, City Plan presently does not admit of the application of the flexibility afforded by s 3.2.2.1(9) because of the extent to which the proposed height exceeds that designated in the Building height overlay map.[193]  Nevertheless, for the purpose of the exercise of my discretion, I am prepared to assume that the draft amendments add weight to the Council’s case for refusal.
  1. [194]
    On balance, I am satisfied that the draft amendments are a relevant consideration and deserving of weight, but I do not consider the proposed development’s inconsistency with the draft provisions should, of itself, be given determinative or decisive weight.

Has Tricare demonstrated that the proposed development cannot be developed within a three-storey building?

  1. [195]
    The Council alleges that Tricare has not demonstrated:
    1. (a)
      why it is not possible to develop the land consistently with s 3.3.2.1(10) and s 6.2.2.2(2)(d) of City Plan; or
    2. (b)
      why it is necessary to depart from s 3.3.2.1(10).[194]
  2. [196]
    It relies on these matters as “relevant matters” to which regard may be had under s 45(5)(b) of the Planning Act 2016. 
  1. [197]
    The Council’s allegations call for Tricare to provide a reason that it has not proposed a residential aged care facility with a height consistent with the lesser of two storeys or nine metres (plus up to 50 per cent additional building height, as potentially permitted under s 3.3.2.1(9)) as a “relevant matter” that tells against approval. 
  2. [198]
    At the outset, it seems reasonable to assume that the Council’s allegation is not intended to invite consideration of personal circumstances, financial or otherwise.  As I have already mentioned in paragraph [72] above, the personal circumstances of a person, financial or otherwise, are not a relevant matter under s 45(5)(b) of the Planning Act 2016. 
  3. [199]
    The Council appears to rely on the issue in response to Tricare’s allegation that:

“The building height is reasonably required in this case to provide a design which provides appropriate contemporary living for this type of residential accommodation, appropriate amenity, a landscaped atrium connected with the outdoors, recreational and social spaces and to ensure that the development has the capacity to cater for appropriate age care provision now and into the future.”[195]

  1. [200]
    With respect to that allegation, Tricare submits:
  1. Fourth, approval of the proposed development and the consequential replacement of the existing older residential aged care facility on the site, will result in the provision of contemporary facilities for residents and visitors on a suitable site in a suitable location. Exhibit 9.2, a series of photographs tendered through Ms Wells, and confirmed by Mr O'Shea, confirms that the existing Tricare facility, while acceptable is tired and in need of refreshment. It is in the public interest that this regeneration occurs. Mr Robinson described the existing facility as “very old fashioned and outdated……”.[196] He commented that the shared bathrooms are a terrible thing for elderly people, the size of the existing rooms are quite small, that the rooms have a lack of privacy and that the building typology is “old fashioned”.[197] In comparison, Exhibit 10.7 tendered through Mr O'Shea, shows how, with the partial fourth storey, the desired modern amenity can be provided.
  1. Accordingly, there is an increasing public and community need not just:
  1. (a)
    to accommodate older members of the Runaway Bay community; but also
  1. (b)
    to redevelop and modernise existing facilities including the subject site having regard to growth, limited existing vacant places, the age of most of the facilities and limited future supply.”[198]
  1. [201]
    When Tricare’s allegation is read in the context of its submissions, it is apparent that the matters raised by Tricare relate to the pressing need, in the public interest, to replace the existing facility.  It proposes to address that pressing need with the proposed development, which is a four-storey building.  There is no evidence to suggest that, in the event it was not successful, it would propose an alternative use with a built form limited to two, or even three, storeys in height.  For reasons explained in paragraphs [250] to [314] below, I am satisfied that there is a pressing need for the proposed development.
  1. [202]
    So, what is the case advanced by the Council to support refusal?  The Council submits:

“120. First, there is no evidence that the building height is required to provide the landscaped atrium. Sitting, as it does, in the undeveloped middle of the proposed building, it is self-evident it does not require the construction of a fourth storey.

  1. Second, Tricare’s architect, Mr Peabody, did not see it as any part of his brief to consider whether any other design, that fits within 3 storeys, could address the matters raised in issue 9[199], although he acknowledged that “there may be many ways that a three-storey scheme could be designed”.[200]
  1. Mr Robinson did address issue 9. He provided two alternative schemes, to assess what could be contained within a footprint of a three storey building.[201] Such schemes could progress into exemplary designs with modifications.[202]
  1. Ms Wells identified ways in which the Tricare Proposal is alleged to support the key principles of the new Aged Care Act in ex.4.2 (p.18), those benefits incorporate matters Ms Wells identified at paragraphs 127 to 131 of Ex.3.2 (pp.48-49).
  1. Ms Wells agreed that a function facility could be provided indoors as well as outdoors. Ms Wells deferred to the architects as to the ability to incorporate design features for rooms within 3 storeys.[203]
  1. The crux of Ms Wells disagreement as to the ability to design a facility in three storeys appears to that she considered it necessary to maximise the number of contemporary aged care beds provided.[204]
  1. Of the benefits identified by Ms Wells, all are incorporated within Mr Robinson’s alternative schemes except two.
  1. The first is the separation of the fourth floor roof top from other floors. The second is views over the Broadwater.
  1. Mr Robinson identified that it is common for aged care facilities to incorporate a recreation space within the ground floor. While Mr Robinson agreed there were benefits to a rooftop space, he does not consider it critical to have such a space on the roof in order for it to be special.[205]
  1. Of course, since Tricare has not developed any designs to meet issues raised, the Court is not assisted by any evidence that a separate top floor could not be provided. On the other hand, the Court does have the views of Mr Peabody that there are “many ways to design a three-storey, four storey building”.[206]
  1. Mr Robinson’s schemes do not permit glimpses over the Broadwater. However, all of the other elements Ms Wells identified[207] are provided: the ability to access fresh air and sunlight, enjoy the weather and elements, take in views and watch the world go by from an elevated position. (Ms Wells also identified a desire to see the beach or feel the sand, but there is no suggestion either of those are provided by the proposed development, although direct views would be possible at the Labrador site[208].
  1. Tricare relies on photos taken by drone (in ex.9.1). Mr Powell agreed that only views from point A and C in ex.9.1 are of particular relevance.[209] The Broadwater is only visible from point A, is a distant glimpse of parts of the Broadwater. Further the obvious features of the outlook and landscape from point C are the roofs of the balance of the Tricare land, including the 6 storey building[210].
  1. Tricare has failed to prove the matters the subject of issues 9 and 12. On the other hand, there is plausible evidence that it is possible to design a 3 storey building that provides all of the benefits said to accrue from the Tricare proposal, with one exception. The exception is the absence of views of the Broadwater. However, in light of the ability to provide all of the other amenity aspects of the Tricare proposal in a 3 storey building and the relatively minor glimpses of parts of the Broadwater, the provision of those glimpses is not of significance in the exercise of the Court’s discretion.”[211]
  1. [203]
    I do not accept the Council’s submissions.  For the reasons provided below, I am not persuaded that a three-storey building would provide all the benefits associated with the proposed development.  To the extent that the Council’s submissions create the impression that there is plausible evidence to the contrary, that is because they make selective reference to the evidence of the experts in a way that creates a skewed impression of it. 
  2. [204]
    The Council’s reference to the evidence of Mr Peabody that “there may be many ways that a three-storey scheme could be designed” is taken out of context.  That statement by Mr Peabody appears in the Joint Expert Report: Architecture in the following context:

“4. NR’S ALTERNATIVE SCHEME

  1. At the core of this appeal is the appellant’s application to be permitted a 4th storey of development. An outcome which would be equivalent to a 100% uplift in number of storeys over that shown on the planning scheme’s building height overlay map.
  1. To assist the Court NR has provided, as part of his JER discussion, an alternative scheme which removes the fourth level and houses the now displaced communal functions and terraces within a three-storey building envelope. There are many ways that a three-storey scheme could be designed – this is one example scheme. Reference is made by NR to this alternative scheme throughout the JER to demonstrate the relative amenities, qualities and outcomes that could be achieved by a compliant three storey development. Further details of NR’s alternative scheme are setout (sic) in section 6 of this JER.
  1. SP acknowledges that whilst there may be many ways that a three-storey scheme could be designed, the design for proposed development, subject of this Appeal, is represented by the architectural drawings relied upon by the experts as per para 7(f).”[212]

(emphasis added)

  1. [205]
    The statement by Mr Peabody appears well-after that part of the Joint Expert Report: Architecture where the experts outline the design brief.  In s 3.2 of the report, the experts record:

“3.2. Design approach

  1. As described in para 4, the proposed development includes the retention and improvement of an existing two storey residential care facility, the demolition of an existing single storey residential care facility, the addition of a new residential care facility (generally in the same location as the single storey residential aged care facility), and the rationalisation of the entry driveway off Bayview Street along with associated landscape works.
  1. The new residential care facility includes:
  • Basement – 83 car spaces, bicycle spaces and building services.
  • Ground Level – main foyer and administration spaces, communal café and private dining room, 21 residential aged care (rac) units with associated lounges, terraces, dining spaces and nurse/care facilities, and ‘back of house’ areas including kitchen, laundry and associated loading dock.
  • Level 2 – 43 rac units with associated lounges, terraces, dining spaces and nurse/care facilities along with salon and consult rooms.
  • Level 3 – 46 rac units with associated lounges, terraces, dining spaces and nurse/care facilities.
  • Level 4 – communal activity room, cinema, lounge (and wine bar) and open terraces.
  1. According to the architectural drawings the existing two storey residential care facility includes:
  • Ground Level – 22 rac units, lounge, multi-purpose room and servery.
  • Level 2 – 22 rac units, lounge, staff training and servery.
  1. The existing two storey residential care facility and the new residential care facility shall be connected by a covered walkway at ground and level 2.
  1. The existing two storey residential care facility and the new residential care facility are planned with central landscaped courtyard spaces offering natural light and outlook to rac units internally orientated.
  1. It is acknowledged that the planning and functional arrangement for the proposed development has been carefully considered to meet the Appellant’s brief.
  1. SP is of the understanding that the planning and functional arrangement for the proposed development includes establishing a subtle separation between public spaces, communal spaces, residential wings, and service/administration zones to ensure the resident’s environment remains familiar and uninterrupted by unrelated activities. Equally, communal spaces such as the café and private dining room on the Ground Level and the activity room, cinema, lounge (and wine bar) and open terraces on Level 4, are intentionally planned as destinations within the facility offering residents, their family and friends, the opportunity to visit welcoming spaces which are not specifically associated with particular residential wings. SP acknowledges this is also a matter for other experts to comment on.”

(emphasis added)

  1. [206]
    Mr Peabody’s evidence should also be understood with an appreciation of the “Further details of NR’s alternative scheme … setout (sic) in section 6 of this JER”.[213]
  2. [207]
    Section 6 of the Joint Expert Report: Architecture contains the following evidence about Mr Robinson’s alternative scheme:

“6. NR’S ALTERNATIVE SCHEME

  1. At the core of this appeal is the appellant’s application to be permitted a 4th storey of development. An outcome which would be equivalent to a 100% uplift in the number of storeys over that shown on the planning scheme’s building height overlay map. It is NR’s view that the proposed development could reasonably be housed within a three-storey envelope that is compliant with the planning scheme. Furthermore, that such a configuration would be able to maintain much of the resident amenity provided in the appellant’s 4 storey scheme.
  1. To assist the Court NR has provided, as part of his JER discussion, an alternative scheme which removes the fourth level and houses the now displaced communal functions and terraces within a compliant three-storey building envelope. There are a number of ways that such a scheme could be designed. However, for ease of comparison, NR has chosen to construct his redesign as a modification of the appellant’s scheme. Reference has made by NR to this alternative scheme throughout the JER so that NR could examine the relative amenities, qualities and outcomes that could be achieved by a compliant three storey development.
  1. NR’s alternative scheme is composed of two options. Option 1 results in a loss of 3 rac units when compared to the proposed scheme. Option 2 loses no rac units when compared to the proposed scheme.
  1. Option 1

i. Level 4

  1. (a)
    Communal functions and terraces removed. Plant space remains. It is noted the plant space will still exceed the 50% uplift height limit. Refer to para 41.

ii. Level 3

  1. (a)
    Northern wing of building pushed northwards to allow for the insertion of 4 additional rac units.
  1. (b)
    11 rac units to the north-western corner of level 3 removed.
  1. (c)
    Activity room, cinema, lounge, wine bar, toilets, circulation space, and south terrace - all equivalent in size to the appellant scheme inserted. The terrace would have views to the west.
  1. (d)
    170.25m2 Broadwater terrace inserted along northern side of level 3. (This terrace would be 53.8% the size of the Broadwater terrace shown in the appellant scheme). The terrace would have views to the west, north and north-west.

iii. Level 2

  1. (a)
    Northern wing of building pushed northwards to allow for the insertion of 4 additional rac units.

iv. Ground Level

  1. (a)
    Northward extension to level over creates extended shaded spaces to porte cochere entry area

v. SUMMARY: Net loss of 3 rac units compared to proposal scheme

  1. Option 2

i. Level 4

  1. (a)
    Communal functions and terraces removed. Plant space remains. It is noted the plant space will still exceed the 50% uplift height limit. Refer to para 41.

ii. Level 3

  1. (a)
    Northern wing of building pushed northwards to allow for the insertion of 4 additional rac units.
  1. (b)
    8 rac units to the north-western corner of level 3 removed.
  1. (c)
    Activity room, cinema, lounge, wine bar, toilets and circulation space - all equivalent in size to the appellant scheme inserted. The south terrace is deleted.
  1. (d)
    133.38m2 Broadwater terrace inserted along northern side of level 3. (This terrace would be 42% the size of the Broadwater terrace shown in the appellant scheme). The terrace would have views to the west, north and north-west.

iii. Level 2

  1. (a)
    Northern wing of building pushed northwards to allow for the insertion of 4 additional rac units.

iv. Ground Level

  1. (a)
    Northward extension to level over creates extended shaded spaces to porte cochere entry area

v. SUMMARY: Same number of rac units to proposal scheme

  1. SP’s opinion regarding alternative schemes is outlined in para 30.”[214]

(emphasis added)

  1. [208]
    Appendix B to the Joint Expert Report: Architecture, Exhibit 3.1, contained drawings of the alternative schemes.
  2. [209]
    Mr Peabody addressed Mr Robinson’s alternative schemes further in his individual statement of evidence, where he opines that there appears to be amenity, functional and operational deficiencies with the alternative schemes.  The deficiencies include poor circulation, increased travel distances to access lifts, circulation conflict occasioned by residents being required to travel through “public spaces” to access dining areas, decreased amenity occasioned by residential aged care suites overlooking roofs, the loss of residential aged care suites with water views across the adjoining canal, and construction over site infrastructure with consequent adverse implications to project feasibility.[215]
  3. [210]
    During cross-examination, Mr Litster QC touched on the matter briefly in the following exchange:

“Thank you.  At paragraph 30 of the JER you acknowledge that there may be many ways that a three-storey scheme could be designed.  That’s there referencing the previous paragraph in paragraph 29 where Mr Robinson talks about alternative scheme?‑‑‑It’s – it obviously falls under section 4 where Mr Robinson talks ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ about his alternative scheme.

Right?‑‑‑?‑‑‑And yes, there are many ways to design a three-storey, four-storey building, but in my opinion that isn’t part of this matter, but that’s for the court to decide obviously.”[216]

  1. [211]
    When Mr Peabody’s evidence is considered in this broader context, it is apparent Mr Peabody does not accept that there are many ways that a three-storey scheme could be designed that delivers the same benefits as that delivered by the proposed development.  Rather, he appears to be directing focus back to the real issue in this case, namely the acceptability of the proposed development.  His approach is an orthodox one.  It has long been recognised by this Court that it is not the function of the Court to redesign a development.  The Court’s function is to pass judgment on the development that is proposed.[217]
  2. [212]
    Turning then to the evidence of Mr Robinson that the Council relies on: it too does not persuade me that it is possible to design a building that complies with all the assessment benchmarks and delivers all the public benefits that would be delivered by the proposed development. 
  3. [213]
    At the outset, I note that even Mr Robinson was not prepared to endorse his alternative schemes.  During cross-examination, he clarified that, in his opinion, the two alternative schemes presented by him in Appendix B of the Joint Expert Report: Architecture are not exemplary design outcomes nor high-quality urban design outcomes.[218]  As such, Mr Robinson’s alternative schemes would conflict with City Plan.[219]
  4. [214]
    Putting that to one side, I do not otherwise regard Mr Robinson’s opinion that a three-storey building could deliver the same community benefits as the proposed development to be persuasive.  Having heard his evidence, I was left with the overwhelming impression that Mr Robinson has little appreciation of the amenity, functional and operational considerations that are relevant to the design of a contemporary residential aged care facility.  He did not appear to be familiar with the recommendations of the Royal Commission into Aged Care Quality and Safety or the Australian Government Response to the Final Report Royal Commission into Aged Care Quality and Safety. 
  5. [215]
    During his cross-examination, Mr Robinson conceded the need for higher ceilings to accommodate mechanical electrical services, such as lifting devices, and to provide enhanced liveability.[220]  However, several of his criticisms of the design of the proposed development exposed the lack of depth to his understanding of the functional and operational considerations that inform the design of a residential aged care facility. 
  6. [216]
    For example, in his individual statement of evidence, Mr Robinson criticised the adoption of long, virtually straight elevations on the proposed development as an outcome driven by the desire for heightened room servicing efficiency.[221]  I prefer the evidence of Ms Wells on the operational considerations that inform that design attribute.  As Ms Wells explains, that form of design is informed by the needs of residents with dementia.  She says that increasingly people are coming into residential aged care with a diagnosis of dementia.  For those residents, it is important that they have lines of sight, and the ability to exercise by walking a loop.[222] 
  7. [217]
    With respect to Mr Robinson’s criticism of the incorporation of a large internalised landscaped courtyard rather than landscape amenity at the periphery of the subject land, Ms Wells explains that this allows those residents who are bedridden the opportunity to view garden space from their room.[223]
  1. [218]
    Ms Wells disagrees with Mr Robinson’s view that his alternative schemes achieve the same outcome for older Australians as the proposed development.  In her statement of evidence, she explains that, in option 1, the relocation of social spaces from level four to level three results in the removal of the continuous walking path for residents and results in dead end corridors.  It bears repeating that Ms Wells says that continuous circular walking paths, without dead ends, is important for daily exercise.  Walking to a dead end and then needing to turn around does not encourage movement, particularly for those with walking aids.  Continuous circular walking paths are also important for persons with dementia.  Ms Wells explains that the significance of that design parameter is that persons with dementia make up a high proportion of residents in all residential aged care facilities.[224]
  1. [219]
    Ms Wells also explains that both of Mr Robinson’s alternative schemes reduce the overall number of social spaces by replacing the terrace and lounge on the northwest corner of level three with the social spaces from level four.  Ms Wells explains that multiple social spaces on each resident accommodation floor are important for resident enjoyment.  It enables residents to find quiet spaces (outside of their individual rooms) for both resident and family privacy.[225]
  2. [220]
    Both of Mr Robinson’s alternative schemes also result in some residents’ rooms and important rest stops along the hallways on the north side overlooking a roof below rather than overlooking the greenspace of the atrium as they would in the proposed development.  This is not an optimal outcome for residents’ wellbeing and is not in line with providing a superior housing choice for older Australians as opposed to the traditional residential aged care options of the past.[226]
  3. [221]
    Another feature of both of Mr Robinson’s alternative schemes is that they result in the social spaces being part of the level three resident accommodation floor.  It bears repeating that in Ms Wells’ experience, having conducted focus groups with aged care residents, residents and families become territorial of their accommodation and living spaces.  Social spaces incorporated on other residents’ floors or in wings near resident accommodation do not attract the use of residents from different floors or wings as they and their families feel they are encroaching on the private spaces intended for others.  Where social spaces are located on a separate non-residential living floor, residents, and family from all areas of the residential service feel it is their shared space to freely access.[227]
  1. [222]
    The relocation of social spaces from level four to level three in both of Mr Robinson’s alternative schemes would have those spaces form a normal everyday part of level three.  This results in removal of a destination entertaining area away from resident living areas, which is a matter of material benefit for reasons already explained in paragraphs [44] to [47] above.[228]
  2. [223]
    I accept the evidence of Mr Peabody and Ms Wells about the amenity, functional and operational deficiencies with Mr Robinson’s alternative schemes.  I find the evidence of Ms Wells about the community benefits of the design of the proposed development to be compelling.  Ms Wells’ evidence persuades me that the fourth-floor recreation area is a design attribute with material benefits to the community.  Contrary to the submissions by the Council, its absence from Mr Robinson’s alternative schemes cannot lightly be ignored.[229]  Ms Wells’ evidence also persuades me that the access to a variety of shared spaces is also an important design feature.  This feature is lacking in Mr Robinson’s alternative schemes.  Overall, Ms Wells’ evidence comfortably persuades me that the proposed development reflects a carefully considered design and that the combination of design elements adopted will deliver material benefits to older Australians. 
  3. [224]
    In those circumstances, I am not persuaded that this matter raised by the Council tells against approval of the proposed development.
  4. [225]
    Further, even if the Council’s allegation was established, I would ascribe it little weight.  City Plan does not require that use of the subject land for residential aged care provide all the design benefits proposed by Tricare.  In those circumstances, the fact that a different design in a building of three storeys might be able to deliver a function facility either indoors or outdoors, or a residential aged care facility with similarly sized rooms, or some other residential aged care facility with different features is not a compelling reason to refuse the proposed development given the community benefits associated with it.  The real issue is whether the proposed development should be approved.

Is the proposed development inconsistent with the reasonable community expectations?

  1. [226]
    The Council alleges that the proposed development would be inconsistent with reasonable community expectations, which it says are informed by the inclusion of the subject land in:
    1. (a)
      the Medium density residential zone;
    2. (b)
      an area designated on Building height overlay map 12 for a building height of two storeys or nine metres;
    3. (c)
      the urban neighbourhoods element for the Strategic framework, thereby calling up the specific outcome in s 3.3.2.1(10).[230]
  2. [227]
    It says that approval of the proposed development is contrary to those expectations.
  3. [228]
    It can be accepted that reasonable community expectations are, at least in part, informed by the planning scheme.[231]  It is also informed by other matters, such as the physical environment of the locality, including all the existing development, even if the existing development was approved under an earlier planning regime.[232]
  4. [229]
    The submissions made in response to a publicly notified development application provide a source of evidence about community expectations.[233]  Here, there was only one properly made submission with respect to the development application.  It was made by an individual who provided an address of 76 Bayview Street, Runaway Bay.[234]  Despite having made the allegation with respect to community expectations, the Council, as custodian of the common material of which the submission forms part, elected not to tender a copy of the submission. 
  5. [230]
    The absence of significant community opposition is unsurprising when one recalls that the subject land has been used for a residential aged care facility and a retirement facility for many decades and, as part of that use, includes a six-storey building and several three-storey buildings.
  6. [231]
    In the circumstances, I do not consider that this issue lends any meaningful weight to either the case for refusal or the case for approval. 

Does the cumulative effect of an additional building greater than two storeys on the subject land tell against approval?

  1. [232]
    The Council alleges that there is an unacceptable risk that approval of the proposed development, in combination with the existing six-storey building on the subject land, will:
    1. (a)
      render it more likely that Tricare will seek to develop the balance of the land in a manner that is inconsistent with the height strategy; and
    2. (b)
      render it more difficult for the Council (and the Court) to refuse such applications.[235]
  2. [233]
    The Council submits that this involves material planning harm that warrants refusal.[236] 
  3. [234]
    In support of its submission, the Council relies on obiter dictum from the Court of Appeal and planning law decisions in other states of Australia and England.[237]  Before considering the case law, it is informative to revisit the extent of non-compliance with City Plan put in issue by the Council.  As I have already mentioned in paragraph [88] above, the Council concedes that the proposed development complies with all relevant assessment benchmarks other than ss 3.3.2.1(9) and (10) and 6.2.2.2(2)(d)(i).  Relevantly, the Council did not put in issue compliance with s 6.2.2.2(2)(b)(v) of the Medium density residential zone code.  It states:

“(b) 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:

…

  1. (v)
    whether intended outcomes for building form/city 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.”
  1. [235]
    Considering the Council does not allege non-compliance with s 6.2.2.2(2)(b)(v) of the Medium density residential zone code, it is difficult to accept the Council’s allegation that there is material planning harm of the type alleged. 
  2. [236]
    Leaving that difficulty to one side, the Council acknowledges that each development application must be assessed on its own merits.  However, it says that the allegation is a relevant matter to be considered in the exercise of the discretion.[238]  In support of its submission, the Council emphasised obiter dictum of Chesterman J in Gold Coast City Council v K Page Main Beach Pty Ltd, [239] in which His Honour observed that it was unduly optimistic to think that a decision to approve a development would not be regarded as a precedent for other high-rise apartment buildings.  I accept the force of the observations of Chesterman J.  However, to truly appreciate the significance of the observation, it is necessary to consider it in context, including by reference to those parts of His Honour’s reasons that were omitted from the paragraphs quoted by Counsel in written submissions. 
  3. [237]
    The appeal related to a development application for approval to develop a seven-storey building with a partial eighth storey apartment building at Main Beach.  Because of floor to ceiling heights, it amounted to a ten-storey building under the Gold Coast Planning Scheme 2003.[240] An overlay map designated a “maximum building height” of three storeys.  It was common ground that the overlay map’s reference to a “maximum” height was not prescriptive as other provisions of the planning scheme contemplated developments which may exceed the specified height.[241] 
  4. [238]
    Under the planning scheme, the overlay map was referenced in acceptable solutions in the Residential Choice Place Code, which were expressed in the planning scheme to be the desirable outcome.  The applicable performance criteria, for which the acceptable solution presented a desirable outcome, required the building to be of a height that was in keeping with the predominant residential character of the surrounding area and which would not result in a significant loss of visual amenity.  As such, the criteria called for a factual determination to be made, which required a value judgment about compliance with a performance-based outcome.[242]  In that respect, de Jersey CJ, which whom Muir JA and Chesterman JA agreed, found:

“20 The approach taken by the applicant verges on presenting the designated height in the overlay map as a controlling constraint rather than as a guide, although the applicant would disclaim such a position. The Scheme could have mandated that position, but has not, and has chosen to leave undefined the extent to which height should feature in the process of impact assessment.”[243]

  1. [239]
    It was in that factual context that Chesterman JA observed:

“37 Relevantly the height restriction set out in Overlay Map 6-3 could be overcome if the height of the proposed development was “in keeping with the predominant residential character of the surrounding area”. The applicant conceded before the P&E Court that the surrounding area included land to the west of Main Beach Parade in which buildings up to 25 storeys are permitted or desirable development.  The area to the west of Main Beach Parade is dominated by such high rise buildings. The concession allowed, and indeed obliged, the P&E Court to assess the height of the proposed development by reference to “the predominant residential character” of the area including the very many high rise buildings west of Main Beach Parade. A 10 storey building is not obviously out of keeping with such a context. Even if it were, a finding to the contrary would be one of fact.

38 Another consequence of the concession may well be that the height restrictions imposed in Overlay Map 6-3 of the area east of Main Beach Parade will be of little practical value in maintaining the area as one of low rise development. In that regard the primary judge’s remark that the instant decision will not be regarded as a precedent for other highrise apartment buildings in the vicinity may turn out to be unduly optimistic.

39 The possibility of such consequences, significant though they may be for town planning in the area of the Gold Coast City Council, does not confer jurisdiction on this Court. Its role is limited to correcting identifiable, and identified, errors of law.”[244]

  1. [240]
    When these observations are viewed in context, one can readily appreciate the force of Chesterman JA’s observations.  The approval of another building greater than the “desirable” outcome mapped on the overlay map had the potential to change “the predominant residential character”.  As such, it could change the factual matrix to be considered when assessing whether future development applications were compliant with the planning scheme.  This important context is not apparent from the selective quote in the Council’s written submissions.
  2. [241]
    In this case, the relevant assessment benchmark is of an entirely different character for two reasons. 
  3. [242]
    First, for the reasons explained in paragraphs [52] to [65] above, the approval of the proposed development would not materially change the character of the local area.  It certainly would not brand it irrevocably with the mark of an area where the planned building height pattern and desired future appearance of the local area is not achievable.[245]
  4. [243]
    Second, the height on the building height overlay map is not expressed as a preferred, desirable, or acceptable solution.  The assessment benchmarks in ss 3.2.2.1(10) and 6.2.2.2(2)(d) of City Plan do not call for a value-laden judgment.  They are a controlling constraint, and non-compliance with the provisions gives rise to conflict with City Plan.  This is a significant factor that distinguishes this case from the situations considered in Gold Coast City Council v K Page Main Beach Pty Ltd.[246]
  1. [244]
    I accept that consistent application of planning policy is an important consideration.  It is deserving of weight in the exercise of the discretion.  However, its importance is but one factor to be considered in the exercise of the discretion.  As was observed by Mahoney JA, with whom Meagher JA and Powell JA agreed, in BP Australia Ltd v Campbelltown City Council:[247]

“… His Honour, I think, accepted that, in the particular case, the safety and efficiency factors favoured what BP proposed. However, he saw the grant of consent to BP as “establishing a precedent readily invokable by prospective developers ...” of other relevant land. It was, in my opinion, upon this that his Honour’s reasoning turned.

I do not think that it was wrong for the judge so to reason. The relevance of a factor such as this has, I think, long been recognised in this area of the law. The bodies responsible for the making of decisions, including discretionary decisions, in this area of the law are, of course, not bound by the doctrine of precedent which binds courts of law. Their function is, in the exercise of discretionary powers, to take into consideration the relevant considerations, to weigh them one against the other, and to determine what, in the light of those considerations, should be done. Ordinarily, it would not be right for such a body to conclude that the effect of the relevant considerations is that one thing should be done and yet, without more, to do another. The grant of a discretion is the grant of the authority to do what the authority sees as the discretionary considerations to warrant being done.

But, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision made may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations. In the present case, it was, in my opinion, for his Honour to determine the weight to be given to the desirability of a “consistently applied planning policy of protecting Pembroke Road from new development having direct vehicular access ...” and of “the risk of establishing a precedent readily invokable by prospective developers of the residue of the undeveloped ‘island’ land ...”. I do not think that, in what his Honour did, there was error.”[248]

(emphasis added)

  1. [245]
    The real issue is: what weight should be attributed to the consideration?  I am not persuaded that the weight to be attributed to that issue is decisive or determinative weight as contended by the Council.  In this case, the weight to be attributed to this matter is tempered by each of the following three considerations.
  2. [246]
    First, for reasons explained in paragraphs [242] to [243] above, I find that a decision to approve the proposed development would not render it more difficult for the Council (and the Court) to refuse other applications in the local area, or in the broader local government area, that do not comply with the assessment benchmarks in ss 3.2.2.1(10) and 6.2.2.2(2)(d)(i) of City Plan.
  3. [247]
    Second, a decision to approve the proposed development will not adversely affect the public confidence that there will otherwise be consistent application of the planning policy with respect to height given the circumstances that pertain in this case, including the nature of the use and the existing lawful use of the subject land.  The circumstances that pertain in this case mitigate the prospect of a precedent that might be readily invokable by prospective developers of other land in the locality.[249]  So too will the draft amendments to City Plan, should they be adopted as is expected by the Council. 
  4. [248]
    Third, I am not persuaded that a decision to approve the proposed development would not render it more likely that Tricare will seek to redevelop the balance of the subject land in a manner that is inconsistent with the height strategy.  The Council’s submissions do not identify any direct or circumstantial evidence to support the allegation.  Further, even though the Council cross-examined Mr O'Shea, it did not put the proposition to him.  I am not prepared to draw an inference that Tricare will seek to develop the balance of the subject land in a manner that is inconsistent with the height strategy.
  5. [249]
    On balance, I am satisfied that the public confidence in the consistent application of planning policy is a matter that is deserving of weight.  It is a matter that tells against approval.  That said, in the circumstances of this case, it does not, of itself, warrant refusal.[250]

Is there a need for the proposed development?

  1. [250]
    Tricare contends that there is a need for the proposed development.  It says this is a relevant matter under s 45(5)(b) of the Planning Act 2016 that strongly favours approval of the development application. 
  2. [251]
    The Council does not dispute that a need for the proposed development is a relevant matter under s 45(5)(b) of the Planning Act 2016.  The Council acknowledges that an ageing population needs housing and care.[251]  It acknowledges that the economists agree that there will be a shortfall in aged care places in the relevant catchment in the period to 2041.[252]  In addition, the Council accepts that the proposed development will offer newer facilities that better meet modern expectations.[253]  Despite those acknowledgments, the Council submits that the need for the proposed development is hardly pressing.  In this regard, the Council relies on the evidence of the economist retained by it, Mr Brown, who opines that an economic need does not arise until around 2027 or 2028.  He describes that as a modest need.[254]

What are the general principles that guide an assessment of need?

  1. [252]
    The general principles that inform and guide an assessment of need are well settled.  They are conveniently summarised by His Honour Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council & Anor.[255]  As His Honour stated:

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.”[256]

  1. [253]
    Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community.[257]  Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[258]  Providing competition and choice can be matters that provide for a need, in the relevant sense, but of itself the addition of choice to the marketplace does not necessitate a finding of need.[259]
  2. [254]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances which the planning authority is to consider.[260]  It is but one of many issues that is required to be considered in a development application of this kind and is not, on any view, paramount.[261]
  3. [255]
    The concept of a latent unsatisfied demand is explained by Carter DCJ in Williams McEwans Pty Ltd v Brisbane City Council,[262] wherein His Honour observed:

“It should not, in my opinion, be thought that a rezoning can be justified by merely contriving a need which is, essentially, nothing more than an exercise in entrepreneurial (sic) skill, the effect of which is to give the applicant some commercial advantage (sic). Nor will land be· re-zoned in favour of the entrepreneur (sic) who seeks to create the need by the use of his land in the manner he desires. The basic assumption must be that there is in, existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all nor being adequately met by the scheme in its present form. If the need can be met by the proposal for re-zoning and is therefore of advantage to the community and does not ·thereby deny or otherwise affect the satisfaction of commumity (sic) need in other respects to its disadvantage, the re-zoning can be justified because it is consistent with the community will. The fact that the applicant thereby secures a commercial advantage for himself in these circumstances is really a matter of no relevance. …”[263]

(emphasis added)

  1. [256]
    Recent guidance on the concept was also provided in Abeleda & Anor v Brisbane City Council & Anor,[264] wherein Mullins JA (as her Honour then was, and with whom Brown and Wilson JJ agreed) observed:

“[51] The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[265]

(emphasis added)

What is Tricare’s case with respect to need?

  1. [257]
    Exhibit 10.6 identifies Tricare’s case with respect to need in the following terms:
  1. There is an ongoing economic public and community need:
  1. (a)
    to provide appropriate facilities (including recreational facilities) to properly house and care for the ageing population of South East Queensland including the Gold Coast and Runaway Bay generally and on this site, specifically, in a manner which allows that ageing to take place within each person’s relevant community.
  1. There is an increasing public and community need to accommodate older members of the Runaway Bay community, and to re-develop and modernise existing facilities such as on this site particularly, having regard to:
  1. (a)
    the high growth in over 70s (resulting in increased aged care demand);
  1. (b)
    the limited existing vacant places in current facilities;
  1. (c)
    the limited future supply, in the “pipeline”, of aged care development in the locality; and
  1. (d)
    the limited availability of appropriate sites (in terms of size and location) to reasonably and economically develop new, appropriately designed and scaled retirement and aged care development, and the uncertainty attending the development of any such sites.
  1. [258]
    The Council submits:

“148. Three aspects of the above need issues can be dealt with briefly:

  1. (a)
    Tricare must fail in respects of issue 6 as it relates to need for aged care (or any) facilities to assist with ageing in place in South East Queensland and the Gold Coast because that simply was not assessed.[266]
  1. (b)
    Tricare must also fail as to issue 7(b) because there was no evidence whatsoever of the vacancy rates at current facilities.
  1. (c)
    As to any allegation about a need for retirement facilities, Tricare must fail. The need report simply does not provide a supply and demand comparison for retirement living, as was acknowledged by Mr Duane[267]”[268]
  1. [259]
    I accept the Council’s submissions.  They appear uncontentious in that in its final submissions, Tricare did not advance those aspects of its case.  Rather, it focused on the expert evidence of the economic and industry experts to support the need for the proposed development.  That is a matter that the Council also addressed.  As such, it is necessary to consider the expert evidence.  
  2. [260]
    On the issue of need, I had the benefit of expert evidence from Mr Gavin Duane, and Mr Marcus Brown, the economic experts retained by Tricare and the Council respectively.  I also had the benefit of evidence from an industry expert, Ms Wells.  Before addressing their evidence, it is convenient to first address the primary argument advanced by the Council with respect to an absence of need, namely that approval of the proposed development would result in a net loss of two aged care spaces.

Will the proposed development result in a net loss of two aged care spaces?

  1. [261]
    The Council alleges that an approval will result in a net loss of two aged care spaces.  The alleged loss, together with the alleged irrelevance of the existing use of the subject land,[269] underpin the Council’s opposition to the proposed development.  In respect of the alleged loss, the Council submits:

“1. … Tricare’s proposal also involves relocating the occupants of 70 rooms from Tricare’s Labrador aged care facility to enable Tricare to redevelop that facility for a Retirement facility that does not include any aged care provision.[270] The result is a loss of two aged care rooms.

…

  1. Tricare also operates a residential aged care facility at Labrador, 1.5km to the south. It comprises 70 beds. Tricare consider that facility is no longer “economically sustainable”. Instead, it considers that land “provides ideal amenity for active retirees”, “particularly having regard to its location on the waterfront”. No doubt, that is because it has uninterrupted views of the Broadwater along its frontage. As a result, Tricare has decided that land will be redeveloped solely as a Retirement facility and will not include aged care beds. That development is planned to comprise (at least) four towers, the first being 14 storeys, on an area of land of approximately one hectare.
  1. The existing residents of the Tricare Labrador Facility will “require relocation” to another site and Tricare anticipates they will transfer to the Bayview Street facility when the Labrador facility closes.
  1. Plans for the Tricare Labrador site are in Exhibit 10.4.

…

  1. At the outset, it should be remembered that the result of the redevelopment of Tricare’s Runaway Bay and Labrador facilities is a net loss of two aged care beds, something acknowledged by Mr Duane.

…

  1. We note in passing, Ms Wells made a further point, which undermines Tricare’s position in this appeal. Ms Wells extolls the virtue of colocation of aged care and retirement facilities. However, approval of Tricare’s proposal will facilitate the removal of aged care from Labrador with its redevelopment solely for a Retirement facility with no co-located facilities. Mr O'Shea’s evidence was there was a corporate decision by Tricare not to develop aged care, co-located with retirement living, as part of the redevelopment at Labrador. At the subject land, co-location already exists, so there is no additional co-location benefit there. There is a reduction in housing choice.
  1. So understood, the outcome of choice might be demonstrated in the sense that there will be a new facility, (noting the overall reduction of 2 beds), but that says nothing as to the outcome of affordability.[271]

…

  1. The Council also acknowledges that the Tricare facility will, in the long-term, allow for ageing in place across the Bayview Street site. However, the development of the proposed facility involves the displacement of some of the residents of both the existing facility and the Labrador facility over a period of three to five years to other Tricare facilities or other providers.
  1. Mr Duane, Ms Wells and Mr O'Shea described ageing in place as keeping people in “their sole last deciding place they bought”, where they choose for their accommodation for as long as it is possible and safe to do so and close to where they are used to living. Ms Wells also considered social interaction and networks important in aged care.
  1. While Mr O'Shea indicated that the agreement to relocation would be required from residents at the Labrador facility, the reducing of numbers of residents in those facilities will provide reduced opportunities for social interaction and access to social networks and, as a result, not meet outcomes espoused by Ms Wells and Mr O'Shea. That will inevitably provide pressure on those residents to move.
  1. Further, the only facilities operated by Tricare in the catchment are the existing Tricare facility and the Tricare Labrador Facility. So, to relocate to other Tricare facilities would be inconsistent with ageing in place and the desire of residents to go to aged care close to home.
  1. The displacement of those residents in the way and with the effects discussed above is not consistent with the concept of ageing in place identified by Mr Duane, Ms Wells and Mr O'Shea.

…

  1. The evidence does not establish a latent unsatisfied demand that is not being met by City Plan. Appropriately zoned land is available for the use, including Tricare’s own land at Labrador and Runaway Bay. Mr O'Shea accepted that the Labrador site could be developed for aged care, although Tricare does not want to do that.

…

  1. In light of the underlying difficulties with Tricare’s need case, particularly the fact that it is simply providing facilities to soak up a need it creates by its election to redevelop its Labrador facility for retirement living, the specific need case ought to carry little weight in the exercise of the discretion.”[272]
  1. [262]
    In support of its submissions, the Council appears to rely on the evidence of Mr O'Shea.
  2. [263]
    Mr O'Shea is a director of TriCare Limited.  The Appellant in this appeal is a subsidiary of TriCare Limited A.C.N 009 657 345.[273]  Mr O'Shea is a director of TriCare Limited and is a sole director of the Appellant.[274]
  3. [264]
    Mr O'Shea has held the position as director of TriCare Limited for 23 years.  A substantial component of Mr O'Shea’s responsibilities is the planning, design and construction of aged care facilities and retirement communities.[275] 
  4. [265]
    According to Mr O'Shea, TriCare Limited operates five aged care facilities and two retirement communities at the Gold Coast, with a total of approximately 700 residents.  They include the facilities on the subject land and TriCare Labrador Aged Care Residence (“TriCare Labrador”), which is located at 71 Brighton Street, Biggera Waters.[276]
  5. [266]
    TriCare Labrador is located one and a half kilometres to the south of the subject land.  It is proposed to be redeveloped pursuant to current approvals, which Mr O'Shea identifies as:
    1. (a)
      a preliminary approval that includes a variation request pursuant to s 61 of the Planning Act 2016 varying the effect of City Plan in the manner identified in the TriCare Labrador Development Code; and
    2. (b)
      a development permit for making a material change of use for a retirement facility of 75 units over 14 storeys dated 25 June 2020.[277]
  6. [267]
    Mr O'Shea says that TriCare Labrador currently consists of 70 residential aged care places in single and shared accommodation.  The original section was constructed on or around 1975 and a new section was added on or around 1997.[278] 
  7. [268]
    Mr O'Shea notes that while TriCare Labrador generally addressed the standards applicable at the relevant time of development, the standards have moved on.  He says that TriCare Labrador no longer meets the current expectations or the reasonable expectation of the residents and the general community in respect to the appearance, amenity, and facilities of an aged care facility in that:
    1. (a)
      approximately half of the resident accommodation is in shared rooms;
    2. (b)
      a substantial percentage of residents do not have access to an ensuite, and are instead required to use communal toilets and showers;
    3. (c)
      the communal facilities (including lounge and dining rooms) are limited in number and size, and are substandard compared to modern aged care facilities; and
    4. (d)
      the internal and external appearance of the building is tired and dated, and not economical to refurbish or update.[279]
  8. [269]
    Mr O'Shea explains that the 70-bed facility at Labrador is not considered to be economically sustainable, although the site is considered to provide ideal amenity for many active retirees.[280]  As such, the redevelopment planned for the TriCare Labrador site involves a retirement community only.  It does not include any residential aged care places.  Mr O'Shea explains that this is because, to achieve economies of scale and the appropriate provision of services, TriCare Limited’s new aged care developments or extensions have included over one hundred residential aged care places.  During cross-examination, Mr O'Shea explained that to meet the requirements that follow from the Royal Commission into Aged Care Quality and Safety, and to resource a good clinical, catering and management structure, it is no longer feasible to build several smaller residential aged care facilities across many sites.  He also explained that to achieve an appropriate design for residential aged care facilities on the TriCare Labrador site a substantial portion of that site would be required.  It would displace the retirement facility.  Mr O'Shea says that it is not economically viable to develop the TriCare Labrador site for both retirement facilities and residential aged care facilities.[281]  
  9. [270]
    Because of the redevelopment of TriCare Labrador, the aged care facility will close, and the current 70 residential aged care places will require re-location to another site.  Mr O'Shea anticipates that the aged care residents in occupation at TriCare Labrador will transfer to the proposed development when TriCare Labrador is closed.[282]  However, as Mr O'Shea clarified in his oral evidence, this involves no more than the provision of an option to the residents of the Labrador facility to transfer to the proposed development if it is approved.  There is no obligation on the residents of TriCare Labrador to relocate to the proposed development.[283] 
  1. [271]
    I accept that approval of the proposed development may present TriCare Limited with a convenient means of facilitating redevelopment of the TriCare Labrador site.  However, having regard to the totality of Mr O'Shea’s evidence, I infer that the redevelopment of TriCare Labrador is not contingent on the approval of the proposed development.  That inference is supported by the development approval for the redevelopment of the TriCare Labrador site granted by the Council, which does not include a condition requiring the existing residents to be relocated to the subject land.  Rather, it approved a development on the TriCare Labrador site even though it made no provision for retention of the existing residential aged care places and made no provision for their relocation elsewhere. 
  1. [272]
    The TriCare Labrador site will be able to be redeveloped when the current residents cease to reside there, which Mr O'Shea explained may result from residents passing away (given the average period of occupancy is two and a half years and declining)[284] or by reason of the residents relocating elsewhere (such as into respite care in hospital).[285] 
  2. [273]
    In the circumstances, I do not accept the Council’s contention that the proposed development involves relocating the occupants of 70 places from Tricare’s Labrador aged care facility to enable Tricare to redevelop the Labrador site. 
  3. [274]
    Further, and in any event, the Council’s submission is contrary to the evidence.  The nature of the proposed development and the land the subject of the development application to be considered in this appeal are referenced in the common material.  The common material reveals that the Labrador site was not listed as part of the land the subject of the development application.  Further, the proposed redevelopment of the Labrador site, and the potential relocation of residents from that site, is not included in the description of the proposed development in the common material.  As I have already noted in paragraph [79] above, contrary to the Council’s submission, the proposed development must be assessed having regard to that common material. 
  4. [275]
    As for the other matters raised in the Council’s submissions, having regard to the totality of Mr O'Shea’s evidence, I am not prepared to infer, as apparently invited by the Council’s submission,[286] that TriCare Limited’s decision about redevelopment of the TriCare Labrador site is informed by that site’s uninterrupted views of the Broadwater along its frontage.  In addition, there is no direct evidence to support paragraphs 141 and 142 of the Council’s written submissions.  Those are not matters I am prepared to infer on the available evidence.  Further, in my view, having heard and observed Mr O'Shea give evidence, the submission in paragraph 166 is a misstatement of Mr O'Shea’s evidence.
  5. [276]
    Given my findings in paragraphs [262] to [275] above, I do not accept the Council’s submissions quoted in paragraph [261] above. 
  6. [277]
    If approved, the proposed development will increase the number of residential aged care places available on the subject land by 68. 

What does the evidence about need establish?

  1. [278]
    As I have mentioned in paragraph [260] above, on the issue of need, I had the benefit of expert evidence from Mr Duane, Mr Brown, and Ms Wells.  Their evidence includes that in Exhibit 3.2, the Joint Experts’ Report – Need.
  2. [279]
    Although the experts ultimately disagree about whether there is a need for the proposed development, there were substantial areas of agreement.  Key points of agreement include the following matters.
  3. [280]
    There are clear differences between the roles, operations, and therefore, types of residents, in retirement facilities as compared with residential aged care facilities. 
  4. [281]
    Retirement facilities provide independent living with varying levels of assistance.  They target people over 65 years of age.  However, many now have an increasing focus on access to care and support.  Independent assisted living units in retirement facilities are targeted at those people wishing to live independently in a village environment, with some home and community care programs provided.  They are typically targeted at those aged over 70 years.[287]
  5. [282]
    Residential aged care facilities are for residents who cannot live without assistance.  The average age of entry to a residential aged care facility is 82 years old for men and 85 years old for women.  It is rising.  The average length of stay is two and a half years and is declining.[288] 
  6. [283]
    Residential aged care facilities are increasingly catering to an older age bracket with higher levels of care required.  The older entry age has occurred because of several factors, including that government policy seeks to keep older persons independent in their home for as long as possible.  The government has increased access to funded home care services to assist in achieving this.  At the same time, the distinction between low and high care in residential aged care was removed.  This has resulted in residential aged care facilities largely being for higher frail aged care, i.e., low care has been replaced by funded or fee for service home care for many.  Retirement facility operators have responded by increasing access to “structured fee for service” and “funded care services” in villages.  The inclusion of higher levels of care has resulted in retirement facilities attracting older age groups and becoming low care environments for the ageing.[289]
  7. [284]
    Traditionally, independent living units, independent assisted living units and residential aged care facilities have operated separately from each other.  However, as the average age of people entering retirement facilities and residential aged care facilities increases, the co-location of these facilities has resulted in integrated communities and care continuum communities where people can age in place.[290] 
  8. [285]
    The experts are in agreement that there are many challenges facing the provision of suitable facilities to accommodate older persons.  They include:
    1. (a)
      the Australian population is ageing and the number of residents requiring aged-care services will increase substantially over time;
    2. (b)
      supplying affordable accommodation can be difficult, particularly quality accommodation in highly sought-after areas;
    3. (c)
      there are constraints to supply due to a number of issues, including planning and financial issues;
    4. (d)
      many Australians wish to age in place within the communities they have lived in most of their lives; and
    5. (e)
      there are increasing expectations around the standard of living for older people as the “Baby Boomer” population ages, which will likely impact on the size, location and quality of aged care developments and the provision of support services.[291]
  9. [286]
    By and large the overwhelming experience of aged care providers is that, in general, persons in their mid to late 80s with immediate frail aged care needs seek to access residential aged care in the suburbs immediately surrounding their homes. This is typically within no more than a five-kilometre drive but may be further where it is highly accessible via major road networks.[292]  That said, Ms Wells says that older persons and their families will seek out aged care facilities that are much further from their home if they meet a particular need that is not able to be met in local aged care facilities.  For example, older persons may seek a facility that can address their cultural needs; or that specialises in a type of care, such as secure dementia, behavioural management, mental health, or palliative care; or which provides a built environment that meets their preferences for individual accommodation and access to shared amenity.[293]
  10. [287]
    The experts agree that the subject land is appropriate for use as a residential aged care facility integrated with the adjoining retirement facility.[294]  The subject land has the desired level of access to lifestyle, health, and essential services (through both on-site services and services in the immediate area) to enable persons to age well in their neighbourhood.[295]  Further, the approval of the proposed development on the subject land will provide diversity and choice of housing for the senior population within the Gold Coast, particularly in the coastal northern part of the city.[296]  Approval of the proposed development will provide an integrated community with a care continuum that provides an opportunity to age in place.[297]  Mr Brown acknowledges that the proposed development will provide new and contemporary facilities and, as such, represents an improvement to choice within the residential aged care sector of the aged care industry.[298]
  11. [288]
    In considering the likely demand and the current supply of residential aged care facilities, the experts agree that it is appropriate to consider a primary catchment that is coincident with the Gold Coast North SA3.  This includes the suburbs of Arundel, Biggera Waters, Coombabah, Hollywell, Labrador, Paradise Point and Runaway Bay.  That area extends for about five kilometres around the subject land.[299]  I accept that the identified catchment area is appropriate.
  12. [289]
    The catchment area has a population base that is older than the average in South East Queensland.[300]  The average age of residents in the catchment area is 43.6 years as compared to 38.1 years in South East Queensland.  The percentage of the population that is over 60 years old is 29.7 per cent as compared with 20.1 per cent in South East Queensland.  The experts agree that there are large pockets of older and ageing residents (i.e., residents over 70 years old) throughout the catchment area.  The locations of those pockets are illustrated on Map 3 in the Joint Experts’ Report – Need.[301]  There are significant concentrations of people aged over 70 years within a two-kilometre radius of the subject land. 
  13. [290]
    The catchment area population is projected to increase at a rate of 1.9 per cent per annum, reaching 109,466 persons by 2041.[302]  The number of persons aged over 70 years is currently (i.e., in 2021) estimated at 13,285 or 18 per cent of the total population of the total catchment area.  This age group is projected to almost double over the period to 2041, increasing to 25,025.  In 2041, persons aged over 70 years are projected to represent 22.9 per cent of the total population in the catchment area.  This reflects an average annual growth rate of persons over 70 years of age of 3.4 per cent over the period to 2041, as compared with a general population growth rate of 1.9 per cent across the overall catchment area over the same period.[303]  Overall, there is strong forecasted population growth in the catchment area, and the proportion of older residents is also projected to increase over the forecast period to 2041.[304]  As Mr Brown acknowledges, this indicates that the demand for retirement facilities and residential aged care facilities is likely to be high and, in relative terms, higher than the demand in South East Queensland generally.[305]  Mr Duane and Mr Brown both say this is demonstrative of a need for more residential aged care development in the catchment area.[306]
  14. [291]
    The experts agree that, in assessing need, it is useful to undertake a quantitative analysis of supply and demand and a qualitative analysis.[307]
  15. [292]
    The experts agree that an appropriately conservative benchmark to guide a quantitative analysis is a ratio of between 75 and 80 places per 1,000 people aged 70 years.[308]  In reaching that view, the experts considered, amongst other things, the planning ratios used by the Commonwealth Department of Health for the purpose of controlling supply and distributing Commonwealth funded residential aged care licences to approved providers of aged care.  The experts explain the basis for their view that the agreed assumption is an appropriate one.  I accept their explanation.
  16. [293]
    The experts agree that a quantitative analysis of the demand for permanent aged care places indicates that:
    1. (a)
      applying a ratio of 75 places per 1,000 people aged 70 years and over in the catchment area, there is an existing demand for 996 places and that demand is predicted to increase to:
      1. 1,168 places by 2026;
      2. 1,386 places by 2031;
      3. 1,613 places by 2036; and
      4. 1,877 places by 2041;
    1. (b)
      applying a ratio of 80 places per 1,000 people aged 70 years and over in the catchment area, there is an existing demand for 1,063 places and that demand is predicted to increase to:
      1. 1,246 places by 2026;
      2. 1,478 places by 2031;
      3. 1,720 places by 2036; and
      4. 2,002 places by 2041.[309]
  1. [294]
    There is agreement between the experts about the quantum of supply of residential aged care facilities in the catchment area.  In Table 4 and Map 4 of the Joint Experts’ Report – Need, the experts identify 12 residential aged care facilities in the catchment area.[310] 
  2. [295]
    In the suburb of Runaway Bay, there is the subject land, with 86 current operating places, and Paradise Lake Care Centre, which has 48 places.  Paradise Lake Care Centre also has a “provisional allocation” for an additional 110 provisional places.[311]  During cross-examination, Mr Duane explained that the reference to the “provisional allocation” is a reference to the traditional way of allocated aged care places through the Commonwealth government aged care funding process.  As was clarified by Mr Duane, although the Commonwealth government may have notionally indicated a preparedness to allocate funding to an additional 110 aged care places at Paradise Lake Care Centre, there is no development approval from the Council that would authorise the use, or its associated built form, on the Paradise Lake Care Centre site.[312]
  3. [296]
    In the suburb of Labrador, there are four facilities.  They are the facilities operated by Ozcare with 137 places, Blue Care with 161 places, Ozcare Parkwood Gardens with 144 places and Southport Lodge with 36 places.  At the time of the Joint Experts’ Report – Need, the Southport Lodge facility was sanctioned and unable to accept residents until mid-2021.  The experts were unable to ascertain the likelihood that Southport Lodge would be able to accept new residents after July 2021.[313]
  4. [297]
    There is one facility at Coombabah, known as Bupa Runaway Bay.  It has 108 places.[314]
  5. [298]
    At Biggera Waters, there are three facilities.  They are 501 Respite and Care Centre with 62 places, Harbour Quays Residential Aged Care with 131 places, and TriCare Labrador with 70 places.[315]  As I have already mentioned, the TriCare Labrador site has been approved for redevelopment.  It will only provide retirement living in the future.  Considering the evidence of Mr O'Shea, it is unlikely that the TriCare Labrador facility will accept new residents.  The supply of residential aged care places at TriCare Labrador is likely to decrease over the next few years through natural attrition.[316]
  6. [299]
    In the suburb of Arundel, St Vincent’s Care Services provides 50 places and Blue Care Woodlands Aged Care Facility provides 108 places.[317]
  7. [300]
    In total, at the time of the Joint Experts’ Report – Need, there were 1,141 operating places and 110 aged care places with provisional funding (but no planning or building approval) in the catchment.[318] 
  1. [301]
    The experts’ agreed quantitative analysis of need reveals that, based on the population in 2021, there is an indicative oversupply in the order of 78 to 145 places, depending on whether one compares the existing supply to the benchmark ratio of 80 or 75 places per 1,000 people aged 70 years and over in the catchment area.  The experts agreed qualitative analysis also reveals that:
    1. (a)
      applying a ratio of 75 places per 1,000 people aged 70 years and over in the catchment area to projected populations:
      1. there will be an indicative oversupply of 83 places in 2026;
      1. there will be an indicative undersupply of 135 places in 2031;
      2. there will be an indicative undersupply of 362 places in 2036; and
      3. there will be an indicative undersupply of 626 places in 2041;
    2. (b)
      applying a ratio of 80 places per 1,000 people aged 70 years and over in the catchment area:
      1. there will be an indicative oversupply of 5 places in 2026;
      2. there will be an indicative undersupply of 227 places in 2031;
      3. there will be an indicative undersupply of 469 places in 2036; and
      4. there will be an indicative undersupply of 751 places in 2041.[319]
  2. [302]
    The experts agree that qualitative dimensions are also relevant when considering the need for the proposed development.[320]  The qualitative dimensions were addressed by Ms Wells and Mr Brown. 
  3. [303]
    Ms Wells opines that of the 1,141 residential aged care places available across 12 residential aged care sites, most places (being 52 per cent) are offered across eight sites that were developed between 20 to 30 plus years ago.  They were not designed for the modern seniors and their needs and expectations.  This includes Blue Care Woodlands, St Vincents Arundel, 501 Care Centre, Tricare Labrador, Tricare Runaway Bay, Paradise Lakes Resort, Southport Lodge, and Keith Turnbull Place.  Although these sites have had various refurbishments and upgrades, they remain traditional residential aged care in appearance.  They tend to favour functionality over aesthetics, offer décor of more traditional aged care appearance, provide social spaces that may not encourage family visits and intergenerational activity, and provide smaller individual rooms (with the majority being less than 15 square metres) that have traditional interior fit outs.  Most of the rooms are private ensuited rooms, but there is a portion that are shared rooms with shared bathrooms.[321]
  4. [304]
    Blue Care Labrador, Ozcare Parkwood Gardens, and Bupa Runaway Bay offer 36 per cent of the available places.  They were developed between 7 and 15 years ago.  They offer newer accommodation with a greater number and variety of designated social spaces.  However, they largely still offer the internal and external appearance and layout of traditional residential aged care.  Further, the individual accommodation offers room sizes from around 16 to 19 square metres.  There are some shared rooms and shared ensuites.[322]
  5. [305]
    Only one site, Harbour Quays Aged Care, is designed as a contemporary residential aged care facility.  It accounts for only 11 per cent of the available spaces.  It offers larger single room accommodation (up to 31 to 35 square metres) with private ensuites, a contemporary residential design appearance and a range of modern and designated recreation and social spaces.[323]
  6. [306]
    TriCare Bayview is also one of only three sites (out of the 12 sites) offering the benefits of colocation with a retirement community.[324] 
  7. [307]
    In those circumstances, Ms Wells opines that there is a significant lack of contemporary residential aged care homes available as a housing and care choice for frail aged persons across the catchment.[325]  She says that the development of contemporary and non-institutional environments is in line with the findings of the Royal Commission into Aged Care and Safety and the expectations of older Australians.  She regards it as an imperative forward direction to support frail older persons in a quality and dignified home toward the end of their life in local communities across Australia.[326] 
  8. [308]
    Ms Wells opines that the proposed development will deliver a unique and contemporary environment (in both indoor and outdoor spaces) that is in very limited supply on the Gold Coast.  She says that it will cater to those with and without financial means, persons with dementia, persons needing end of life care, persons needing respite, and persons needing frail aged care.  She notes that dementia care and end of life care are core competencies for Tricare.  Ms Wells opines that the higher ceiling heights and partial fourth floor recreation and social spaces are key to delivering a contemporary home and a quality experience for current and future seniors.[327]
  9. [309]
    Mr Brown’s review of the residential aged care market within the catchment generally aligns with that of Ms Wells insofar as she says that a significant proportion of available places were approved and delivered some time ago.  He agrees that the proposed development would represent a more contemporary offering with larger rooms.  Mr Brown accepts that the provision of outdoor facilities and other recreational facilities proposed as part of the fourth floor represents a benefit and a point of difference.  However, Mr Brown expressed doubt about the extent to which the facility would cater to those suffering dementia and the ability to cater to those with and without financial means.
  10. [310]
    I accept the evidence of Ms Wells to which I refer in paragraphs [302] to [308] above.  In her oral evidence, she provided a cogent explanation of the basis for her opinion that the proposed development would cater to those suffering dementia, including by reference to the design aspects of the proposed development that are of notable assistance in that regard.  Ms Wells also provided a cogent explanation for her view that the proposed development would cater to those with and without financial means.  As is explained by Ms Wells, at other modern facilities, Tricare has provided a wide range of price points to suit the local community.  In addition, Ms Wells explains that there is a legislative requirement to provide access to persons that are unable to afford accommodation.  Those residents are known as supported residents.  In the South Coast region, the Commonwealth Government requires 17.8 per cent of resident places for each service to be for supported residents.[328]
  11. [311]
    In the face of the extensive agreement between the experts’ referred to above, the Council’s submits that the “need is hardly pressing”.[329]  As I mentioned in paragraph [251] above, in support of its submission the Council relies on the evidence of Mr Brown, who opines that an economic need does not arise until around 2027 or 2028 and describes that as a modest need.[330] 
  12. [312]
    I do not accept Mr Brown’s opinion that the need for additional places does not manifest until after 2026 (and most likely around 2027 or 2028).[331]  Mr Brown’s opinion in this regard is premised on four assumptions.  First, the 70 residential aged care places at TriCare Labrador will continue to be available.  Second, the 110 provisional places at Paradise Lake Care Centre will become available by 2021.  Third, the 36 places at Southport Lodge will be available.  Fourth, there will be no new facilities approved and constructed in the relevant period.[332]
  13. [313]
    For the reasons explained in paragraphs [267] to [272] above, I do not consider the first assumption to be a reasonable one.  I also do not consider the second assumption to be reasonable.  There is no evidence to indicate that any steps have been taken to obtain planning and building approvals that may be required to authorise the construction of a facility to deliver the 110 provisional places.  Further, I accept the evidence of Ms Wells that the development of residential aged care is often very slow with the planning and construction time often taking more than four years (and often more than six years).[333]  There is little evidence to assist me in testing the reasonableness of the third assumption, although the existence of a sanction is a matter that is suggestive of difficulties with the assumption.  Considering Ms Wells’ evidence regarding timeframes for delivery and the absence of evidence indicating there are other development applications for residential aged care facilities or relevant construction in the catchment area, I am comfortable that the fourth assumption is appropriate.
  14. [314]
    Having regard to the evidence referred to above, and my findings about it, I am comfortably satisfied that there a pressing need for the proposed development.  This is a compelling matter that weighs in favour of approval.
  15. [315]
    Considering my finding that there is a pressing need for the proposed development, it is unnecessary to address the other arguments advanced by the Council in opposition to Tricare’s case with respect to need.  However, I will do so for completeness even though my findings below with respect to those other arguments do not alter my ultimate view about the exercise of the discretion in this case.

What are the Council’s other arguments about need? 

  1. [316]
    The Council submits that the evidence falls short of establishing a need for the proposed development as the economists and Ms Wells agree that the identified need does not account for any future proposals or approvals for aged care facilities.  The Council says this is of some significance because Mr Duane identifies the subject land as underutilised and that its use for aged care is logical and economically sensible.  The Council says the proposed development would occupy only a small percentage of the larger area of the subject land that is owned by Tricare.  In support of its submission, the Council also refers to the evidence of Mr Buckley, the town planer retained by Tricare, who expects the balance of the subject land to be redeveloped at a bulk and scale consistent with the proposed development (if it is approved) and the existing six-storey building.  
  2. [317]
    The Council’s submissions in this regard are remarkable.  There is an apparent lack of logic in a submission that the proposed redevelopment of the subject land to provide additional residential aged care places is not needed because the subject land is available for redevelopment for additional residential aged care places at a bulk and scale consistent with the proposed development (if it is approved) and the existing six-storey building.
  3. [318]
    The Council further submits that there is no latent unsatisfied demand that is not being met by City Plan.  It says appropriately zoned land is available for the use, including Tricare’s own land at Labrador and Runaway Bay.[334] 
  4. [319]
    The Council’s contentions raise two questions for consideration:
  1. Is there appropriately zoned land available for use?
  2. Does the existence of appropriately zoned land “meet the need” for residential aged care facilities?

Is there appropriately zoned land available for use?

  1. [320]
    The Council contends that the need could be met on Tricare’s land at Labrador or Runaway Bay, or on other appropriately zoned land.
  2. [321]
    The Council’s submissions about the availability of Tricare’s land at Labrador and Runaway Bay are difficult to accept given:
    1. (a)
      the Council approved the redevelopment of the Labrador site for a retirement facility; and
    2. (b)
      the Council is here contending that the redevelopment of the Runaway Bay site for additional residential aged care should be refused. 
  3. [322]
    As for the Council’s submission that there is appropriately zoned land “available for use”,[335] it is apt to create a false expectation that the need for further residential aged care facilities could readily be met were the proposed development refused.  This position ignores the evidence of Ms Wells about the delays associated with progressing that form of development.  It also ignores that the experts did not identify any development application to facilitate further residential aged care places in the catchment area, nor did the Council (even though the Council would have ready access to such information, should it exist, given it is obliged to make such information publicly available).[336]
  4. [323]
    In section 6 of the Joint Experts’ Report – Need, the experts attempted to identify alternative sites that might be available for use.  Mr Brown opines that there are very few suitably zoned sites of sufficient scale to accommodate a facility that would offer a similar number of places as the proposed development.[337]  Although several appropriately zoned sites were identified by the experts, Mr Brown expressed reservations about the suitability of many of them.  With respect to some, he opines that they are unlikely to be of sufficient size.  For several others, he opines that the development costs associated with the sites would likely be too costly for an aged care operator.  In that respect, Mr Brown explained during his cross-examination that development of aged care is cost-sensitive in terms of the price paid for land.  He says aged care developments are, by and large, run by benevolent institutions.  As such, it is hard for operators to compete with developers of other residential products.  Mr Brown considers that to be a particularly vexed issue for the delivery of further residential aged care facilities in the catchment area.[338] 
  5. [324]
    Those sites identified by Mr Brown with the greatest probability of development for new residential aged care facilities are:
    1. (a)
      a 3.08 hectare parcel of land at 74 Usher Ave, Labrador, which is in the Medium Density residential zone, adjacent to Ozcare Parkwood (Labrador), and owned by Ozcare;
    2. (b)
      a 1.55 hectare site at 103 Olsen Avenue, Labrador, which is currently only being partially utilised as a second-hand care dealership;
    3. (c)
      an approximately 8,300 square metre site at 111 Olsen Avenue, Labrador, which is currently only being partially utilised as a sales and display facility for garden ornaments and a private dwelling; and
    4. (d)
      approximately 1,376 square metres of underutilised or vacant site within the existing St Vincent’s Aged Care facility at Arundel that could accommodate an expansion of facilities at St Vincent’s Aged Care.[339]
  6. [325]
    Mr Duane says that the sites identified by Mr Brown may be able to accommodate aged care facilities but notes that existing uses at 103 and 111 Olsen Avenue would need to cease first.  That is self-evident.  There is no evidence to suggest that it is likely to occur. 
  7. [326]
    In addition, Mr Duane says that to meet the projected level of demand for aged care places over time, redevelopment of a range of existing facilities or underutilised sites will be required.  Demand for sites to meet the projected population growth will also be generated by other housing types, such as residential units, retirement facilities and the like.  As such, there will be competition for the identified sites from a range of potential residential uses.  Given aged care facilities can often be unprofitable[340] and expensive to develop – a matter accepted by Mr Brown and Ms Wells[341] – Mr Duane opines that redevelopment of existing sites to a higher intensity use is economically sensible.[342]
  8. [327]
    I accept the evidence of Mr Brown and Mr Duane about the difficulties faced in delivering residential aged care facilities on alternative sites.  In those circumstances, I do not accept the Council’s contention that there is appropriately zoned land that is available for use for a residential aged care facility.  Even if one or more of the alternative sites or other appropriately zoned land was available (which I do not accept), the Council’s contention is nevertheless of little persuasive force.  This is because the economists agree that, by 2041, between six and seven additional residential aged care facilities, with about 110 residential aged care places per facility, will be required.[343]
  9. [328]
    Further, and in any event, the possible existence of alternative sites is not necessarily of decisive weight.  In this regard, the observations of Mullins JA (as her Honour then was, and with whom Brown and Wilson JJ agreed) in Abeleda & Anor v Brisbane City Council & Anor[344] bear repeating.  Her Honour found:

“[51] The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[345]

(emphasis added)

  1. [329]
    Those findings of the Court of Appeal sit comfortably with earlier Court of Appeal decisions such as Ecovale Pty Ltd v Council of the City of Gold Coast,[346] wherein Fryberg J observed:

“It must be remembered that the function of the Planning and Environment Court is to resolve appeals in individual cases. The court is not a super planning authority for the various local authorities of Queensland. It cannot in a particular appeal carry out the sort of inquiry which must be carried out to formulate a new planning scheme. In a case involving the rezoning of small allotments, I do not think the court derives much assistance from evidence relating to the market availability of a few other similar allotments in the neighbourhood. When such evidence is advanced by opponents of the development, its supporters may be tempted to advance evidence that the supposedly similar allotments are in fact unsuitable for the proposed development. Such an approach could turn the appeal into an inquiry into the suitability in planning terms of all those allotments. The resulting delay and cost may easily be imagined.”[347]

Does the existence of appropriately zoned land “meet the need” for residential aged care facilities?

  1. [330]
    The Council also contends that the mere existence of appropriately zoned land demonstrates that the need for the proposed development is adequately met by City Plan. 
  2. [331]
    As was observed by McMurdo JA, with whom Sofronoff P and Philippides JA agreed, in Bell v Brisbane City Council & Ors:[348]

“Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. Cases of that kind were identified in the explanatory notes for s 3.5.14 of the Integrated Planning Act. There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision-maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”[349]

(emphasis added)

  1. [332]
    In this case, consideration of the Council’s contention calls for closer scrutiny of two issues:
  1. What is the need that the proposed development seeks to address?
  1. How does City Plan address that need?

What is the need that the proposed development seeks to address?

  1. [333]
    The issue of whether circumstances exist that create a need for a certain development in the public interest is a question of fact and degree that will turn on the circumstances of the case.
  2. [334]
    In this case, there was extensive evidence about the attributes of proposed development and how those attributes differ to those exhibited by traditional residential aged care facilities.  The relevant evidence, and my findings in relation to it, includes that set out in paragraphs [36] to [51] and [212] to [225] above.  The real issue is whether the provision of those attributes is a matter of public interest or nothing more than an exercise in entrepreneurial skill to give Tricare some commercial advantage.
  3. [335]
    Ms Wells opines that there is a changing community attitude towards the quality of accommodation that should be provided for the elderly.  She says that the attributes of the proposed development, set out in paragraphs [36] to [51] above, are of material benefit to older Australians.  She opines that the proposed development, including its innovative roof deck and larger room sizes, is imperative to improving the available choice in this location and to meeting the expectations of the current older Australians and the coming “baby boomers”.[350]  Ms Wells provides detailed and cogent explanations in support of her opinions.
  4. [336]
    The changed community attitude towards the adequacy of accommodation for the elderly is highlighted by the final report issued by the Royal Commission into Aged Care Quality and Safety in March 2021 and the Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety. 
  5. [337]
    The Royal Commission’s final report indicates that the aged care system is difficult to access and navigate.  The experts agree that a review of the key literature reveals that the challenges that face the provision of suitable facilities to accommodate older persons include supply constraints by reason of planning issues.[351] 
  6. [338]
    In response, the Commonwealth Government has outlined a five year, five pillar program for the reform of the aged care system.  The current system is no longer considered to meet the needs of the elderly or community expectations.  Part of second pillar to the program is to improve and simplify residential aged care by reforming residential aged care design and planning to better meet the needs of senior Australians, particularly those living with dementia.[352] 
  7. [339]
    In her individual report, Ms Wells explains that both the Royal Commission and the Commonwealth Government have indicated that designing with consideration for dementia and continuing to innovate the aged care environment is a matter of significant importance for providing quality of life for older Australians needing residential aged care.  They also note that a variety of innovative settings is important to provide choice and to meet all types of need and preferences. 
  8. [340]
    Ms Wells explains that the proposed development aligns to the aged Care Reforms announced by the Commonwealth Government in May 2021.  She says it will deliver a high-quality development for persons with dementia and high and complex care needs.  She notes that other residential aged care facilities that have been recently developed by Tricare are already considered superior built environments in the marketplace.  Ms Wells says they are likely to assist in informing what will be regarded as good innovative design for the Commonwealth Government’s new design guidelines.[353]
  1. [341]
    In addition, Ms Wells says that the proposed development supports the key principles of the proposed new direction in aged care.  The proposed development will deliver a new type of built environment in the catchment area supporting innovation and the right to exercise a choice that is different to the primarily traditional environments available.  Its inclusion of non-clinical institutional elements will promote independence, wellbeing and support dignified living.  Those elements include high ceilings and doors; an abundance of natural light, space, and connection with the outdoors; the removal of hospital style and clinical finishes; the removal of a hospital style servery; the removal of back of house as much as possible; and the internal grand landscape atrium visually connecting with garden space.  The larger, partially self-contained spaces offered in the rooms (i.e., the offer of a room that includes a bedroom, lounge area, ensuite, built-in cabinetry for storage, television, desk, and tea making facilities) will promote independence, dignified living, and space for informal carers to be comfortable.  The proposed development will provide residents with the opportunity to enjoy socialising with family and friends.  The offer of multiple social spaces, including the roof deck recreation area, will promote, and allow residents to enjoy the right to, social participation.  It will enable residents to live an active and meaningful life and enjoy the right to social spaces and activities that are accessible to members of society generally.  The proposed development will promote and foster relationships with family and friends in an environment that is conducive to relaxation and socialisation.  Through its provision of the type of social spaces and environments to which younger residents are ordinarily accustomed, such as a wine bar, the proposed development will promote positive community attitudes about aged care.[354]
  1. [342]
    I accept the evidence of Ms Wells referred to in paragraphs [334] to [341] above.  It satisfies me that it is in the public interest to provide residential aged care facilities that differ from that traditionally provided.  This is necessary to meet contemporary public expectations as identified by the report of the Royal Commission into Aged Care Quality and Safety and the Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety.  The evidence also satisfies me that the proposed development addresses that need.  I am comfortably persuaded that the design attributes referred to in paragraphs [36] to [51] and [212] to [225] above are not simply an exercise of entrepreneurial skill by Tricare.  The proposed development will deliver material benefits to older Australians.  It bears repeating that I do not accept the Council’s contention, referred to in paragraph [11] above, that the benefit to the public of providing a facility that will enhance the quality of life of the elderly is of little moment.  The provision of such facilities is a matter that is in the public interest.  It is a compelling consideration that supports approval. 

How does City Plan address the identified need?

  1. [343]
    As I have found above, the relevant need to be considered is not simply the need for residential aged care facilities.  It is a need for residential aged care facilities that meet contemporary public expectations as identified by the report of the Royal Commission into Aged Care Quality and Safety and the Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety. 
  2. [344]
    How does City Plan meet that identified need?
  3. [345]
    As part of the strategic intent to achieve a “world-class city”, City Plan recognises that it needs to plan for all households.  With respect to that intent, City Plan states:

“As we grow, we need to plan for all households so that privately owned, rental and socially rented housing options are available in well located places.  This requires planning for housing that is affordable, attractive and diverse with convenient access to transport, employment, community, recreation and other services.”[355]

(emphasis added)

  1. [346]
    Although no reference is made to housing for the elderly in this statement, the more detailed statements of intent indicate that there is an intention to provide such housing.  Relevantly, in relation to the “Creating liveable places” theme in the Strategic framework, the strategic outcome in s 3.3.1(4) states:

“Affordable housing or entry level priced housing meets the needs of low to moderate households, and purpose-built adaptable housing and accommodation meets the needs of seniors, people with disabilities, students and people in need of emergency accommodation.  These forms of housing are located close to facilities, services, public transport, employment and essential infrastructure.”[356]

(emphasis added)

  1. [347]
    It is agreed by the experts that the subject land is well located to a range of commercial facilities including Runaway Bay Town Centre, the coast itself and community facilities. The experts also record that bus route 711 runs along Bayview Street, past the subject land, with services offered between Hope Island and Southport.[357]
  2. [348]
    Ultimately, having considered the applicable planning instruments, the need and industry experts agree that the subject land has attributes that contribute to a more compact urban form, as sought by City Plan, and would provide diversity and choice of housing.  It was agreed by the experts that the subject land has the desired level of access to lifestyle, health, and central services to enable persons to age well in this neighbourhood.[358] 
  3. [349]
    Although the higher order provisions of City Plan identify a planning intention to provide accommodation to meet the needs of seniors, it does not necessarily follow that City Plan meets the identified need that will be addressed by the proposed development.
  4. [350]
    As I have already mentioned, the strategic outcome in s 3.3.1(4) of City Plan indicates a planning intent to provide “purpose-built adaptable housing and accommodation meets the needs of seniors”.  The Council was unable to identify other provisions of City Plan that assist to further that planning goal, and certainly none that assist in light of the vexing issue identified by the experts to which I refer in paragraphs [323] to [327] above and with which the Council did not cavil.
  5. [351]
    Relevantly, there is no zone in City Plan that is exclusively planned to be used for residential aged care facilities and retirement facilities.  The subject land is in the Medium density residential zone.  Land in that zone is not only planned for use for residential aged care facilities.  There are many types of use that are encouraged in the Medium density residential zone and that may compete for available land in that zone. 
  6. [352]
    Under City Plan, land in the Medium density residential zone is to provide for a range and mix of dwelling types including dwelling houses, dual occupancies, multiple dwellings, and community residences.  The land may also be used for relocatable home parks and rooming accommodation, neighbourhood centres and stand-alone small scale non-residential development.  Other land uses, such as car washes, child care centres, health care services, food and drink outlets, shops (other than a supermarket), veterinary services, community care centres, community uses, emergency services, educational establishments and places of worship, may also be considered if appropriately designed and located and if they do not detract from the residential amenity of the area.[359]
  7. [353]
    Further, under City Plan residential aged care facilities are required to meet the same assessment benchmarks that apply for other forms of intensive residential development.  For example, as with other forms of residential development, residential aged care facilities are required to comply with the assessment benchmarks in the Multiple accommodation code, which require:

“(a) Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of the occupants of the dwelling and neighbouring residential premises.

  1. (b)
    Development is designed and orientated to promote a safe environment within the site, adjoining streets and public realm.
  1. (c)
    Development is complemented by high-quality landscaping that contributes to the desired character of the area.

…

  1. (f)
    Development is designed to add visual interest to the streetscape, to contribute positively to the local and wider city character and image, and to achieve a high quality urban design, with highly functional, accessible, attractive, memorable and sustainable buildings and spaces.
  1. (g)
    Multiple dwellings, Short-term accommodation, Resort complexes, Residential care, Retirement facilities and Rooming accommodation uses up to 32 metres in height, promote a high standard of living and care for residents through their design, recreation facilities and location.”[360]
  1. [354]
    In addition to the requirement to meet those same planning goals about the standard of the design and the contribution to the character of the area, residential care facilities and retirement facilities are required to meet an additional hurdle.  In this respect, the Multiple accommodation code requires:
    1. (a)
      in the overall outcome in s 9.3.14.2(2)(h):

“Residential care facilities and retirement facilities are provided with self contained services and recreational facilities to meet the needs of residents.”[361]

  1. (b)
    in performance outcome PO17:

“Services and recreation facilities for residential care facilities and retirement facilities

PO17

A range of self-contained services and recreational facilities are provided.”[362]

  1. [355]
    That planning approach to residential aged care facilities under City Plan can be contrasted with the planning approach considered in Walters & Ors v Brisbane City Council & Anor.[363]  As is recorded in that case, Brisbane City Council proposed to adopt amendments to Brisbane City Plan 2014 and the proposed amendments were, in 2018, at a very late stage of the adoption process.  Brisbane City Council had resolved to amend Brisbane City Plan 2014 to support the provision of aged care accommodation.  The proposed amendments were intended to:
    1. (a)
      broaden the zones in the city where a retirement facility and residential care facility is envisaged, to encourage new retirement and residential care facilities in our neighbourhoods;
    2. (b)
      provide for retirement and residential care facilities in Low density residential and Low-medium density residential zones as code assessable where they meet existing height requirements;
    3. (c)
      increase allowable building height as code assessable for residential care facilities and retirement facilities in the Medium density residential and High density residential zones; and
    4. (d)
      facilitate retirement facilities and aged care facilities in well-serviced areas near existing shops, public transport, and key services.[364]
  2. [356]
    No encouragement of this kind is provided in City Plan for the development of residential aged care in the Gold Coast local government area. 
  3. [357]
    In summary, I readily accept that the Council has made provision in City Plan, in a land use sense, for residential aged care facilities.  It does so by permitting residential aged care facilities to be developed on land in the Medium density residential zone.  However, land in that zone is also planned to accommodate many other uses, including other forms of residential use.  This leaves the developers and operators of residential aged care facilities in the difficult position of needing to compete with developers of other residential products for possible development sites.  Under City Plan, residential aged care facilities are subject to the same development constraints with respect to height and intensity as that which apply to other forms of residential development.  They are required to meet the same neighbourhood design goals and deliver the same extent of character benefits for the neighbourhood.  In addition, residential aged care facilities must provide self-contained services and recreation facilities.  That is not a requirement for other forms of residential development (other than retirement facilities).
  4. [358]
    Having regard to the unchallenged evidence of the economists regarding the vexed issue facing developers of residential aged care facilities referred to in paragraphs [323] to [327] above, and the features of the planning regime referred to in paragraphs [345] to [357] above, I do not consider City Plan to be conducive to meeting the needs for residential aged care facilities that meet contemporary public expectations.
  5. [359]
    For the reasons provided above, I am satisfied that Tricare has demonstrated that there is a latent unsatisfied demand that is either not being met at all or is not being adequately met. 

Will the proposed development provide appropriate facilities for ageing in place?

  1. [360]
    As is recorded in Exhibit 10.6, Tricare alleges:

“4. The proposed development facilitates the important modern planning principle of providing for ageing in place, on sites in appropriate locations, with developments that provide necessary facilities for the amenity and well-being of the aged.

  1. There is an ongoing economic public and community need:
  1. (a)
    to provide appropriate facilities (including recreational facilities) to properly house and care for the ageing population of South East Queensland including the Gold Coast and Runaway Bay generally and on this site, specifically, in a manner which allows that ageing to take place within each person’s relevant community.
  1. There is an increasing public and community need to accommodate older members of the Runaway Bay community, and to re-develop and modernise existing facilities such as on this site particularly, having regard to:
  1. (a)
    the high growth in over 70s (resulting in increased aged care demand);
  1. (b)
    the limited existing vacant places in current facilities;
  1. (c)
    the limited future supply, in the “pipeline”, of aged care development in the locality; and
  1. (d)
    the limited availability of appropriate sites (in terms of size and location) to reasonably and economically develop new, appropriately designed and scaled retirement and aged care development, and the uncertainty attending the development of any such sites.”
  1. [361]
    I have already extensively addressed the evidence with respect to these contentions, and my findings with respect to that evidence, in my reasons above.  As such, it is unnecessary to deal with these contentions further, other than to observe that, with respect to these issues, the Council acknowledges that the proposed development:
    1. (a)
      will be contemporary and that the subject land is an appropriate site for an aged care facility; and
    2. (b)
      will, in the long-term, allow for ageing in place across the subject land.[365]

Does the design of the proposed development have architectural merit?

  1. [362]
    Tricare alleges that the proposed development has architectural merit.  It relies on that as a relevant matter that supports approval of the proposed development.[366]
  2. [363]
    I have already extensively addressed the evidence with respect to these contentions, and my findings with respect to that evidence, in paragraphs [29] to [65] above.  As I have noted, I am satisfied that the proposed development has architectural merit.
  3. [364]
    The architectural merit of the proposed development is also supported by the absence of allegations of non-compliance, and in fact the Council’s acceptance of compliance, with the many provisions of City Plan that contain assessment benchmarks with respect to the design of development.  Relevantly, those assessment benchmarks include:
    1. (a)
      the overall outcomes in ss 6.2.2.2(b)(vi) and (viii) and (d)(iii) and (iv) of the Medium density residential zone code, which state:

“(b) 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:

…

Design and amenity

…

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

…

  1. (viii)
    achievement of a high quality urban design through highly functional, accessible, attractive, memorable and sustainable buildings and public spaces;”

…

(d) Built form (excluding Dwelling houses on small lots) –

…

  1. (iii)
    is setback from road frontages to promote an urban setting and interface with the street;
  1. (v)
    has varying site cover to reduce building dominance and provide areas for landscaping.”[367]
  1. (b)
    the overall outcomes in the Multiple accommodation code set out in paragraphs [353] and [354] above;
  2. (c)
    the performance outcomes in the Multiple accommodation code, which state:

“Design and appearance

PO3

All buildings and ancillary structures are designed to:

  1. (a)
    contribute to the envisaged urban character of the local area;
  1. (b)
    promote casual surveillance of public streets, public open space and public areas;
  1. (c)
    add visual interest to the streetscape;
  1. (d)
    enable differentiation between buildings; and
  1. (e)
    avoid stark or austere appearance.

Roof form for buildings with 3 or more storeys

PO5

Building caps and rooftops are provided to contribute an attractive roofscape that enhances the architectural distinction of the building and effectively screens service structures, plant and equipment.

Note: building height incorporates allowance for plant and equipment, attractive building caps and rooftop features.

Services and recreation facilities for residential care facilities and retirement facilities

PO17

A range of self-contained services and recreational facilities are provided.”[368]

  1. [365]
    This extent of compliance with City Plan is relevant to the exercise of the discretion. 

Will the proposed development result in any unacceptable impacts?

  1. [366]
    Tricare alleges that the proposed development will not result in any unacceptable impacts, including visual impacts.[369] 
  2. [367]
    The Council disagrees for two reasons. 
  3. [368]
    First, the Council contends that approval of the proposed development will result in unacceptable visual impacts.  In that regard, it relies on the evidence of Mr Robinson to which I have referred in paragraphs [29] to [65] above.  For the reasons provided therein, I am satisfied that the proposed development will not result in any unacceptable impacts, including visual impacts.
  4. [369]
    Second, the Council says that to the extent that there are no other unacceptable amenity impacts, that is of no significance in the exercise of the discretion because the absence of such impacts is what should be achieved by the proposal as a matter of course. 
  5. [370]
    The Council’s submission in this regard should be approached with a degree of caution.  As I have already mentioned, under s 45(5)(a) of the Planning Act 2016, the assessment must be carried out against the assessment benchmarks in City Plan.  Relevantly, they include:
    1. (a)
      the overall outcomes in ss 6.2.2.2(b)(vii) and (d)(iv) of the Medium density residential zone code, which state:

“(b)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:

…

Design and amenity

…

  1. (vii)
    whether adjoining residential amenity is unreasonably impacted;

…

  1. (d)
    Built form (excluding Dwelling houses on small lots) –

…

  1. (iv)
    is setback from side and rear boundaries to protect the amenity of adjoining residences”[370]
  1. (b)
    the overall outcome in s 9.3.14.2(2)(a) the Multiple accommodation code, which states:

“Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of the occupants of the dwelling and neighbouring residential premises.”[371]

  1. [371]
    Compliance with these assessment benchmarks is a mandatory consideration in the exercise of the discretion.[372]

Does the proposed development involve an absence of town planning harm?

  1. [372]
    Tricare alleges that the proposed development involves an absence of town planning harm.[373] 
  2. [373]
    The Council disagrees for three reasons. 
  3. [374]
    First, approval of the proposed development would not be in consonance with the draft amendments to City Plan and such a decision would not be in the public interest.  I have already addressed this issue in paragraphs [158] to [194] above.
  4. [375]
    Second, the approval will render it more likely that Tricare will seek to develop the balance of the land in a manner inconsistent with City Plan and render it more difficult for the Council (and the Court) to refuse applications for such development.  This issue has been addressed by me in paragraphs [232] to [249] above.
  5. [376]
    Third, because it will result in unacceptable built form outcomes under specific outcome in s 3.3.2.1(9)(a), (c) and (d) of City Plan.  As I have already explained in paragraphs [89] to [92] above, this assessment benchmark is not engaged in this case. 

Should the development application be approved in the exercise of the planning discretion?

  1. [377]
    As I have noted in paragraph [82] above, whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion.  A planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.[374] 
  2. [378]
    For reasons explained above, the case for refusal is of significant force. 
  3. [379]
    The proposed development does not comply with the specific outcome in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code.  That is contrary to a forward planning strategy to limit the height of development on the subject land to two storeys and nine metres.  The strategy is intended to shape the built height pattern and desired future appearance for local areas within urban neighbourhoods.  To the extent that the proposed development conflicts with the planned height for the subject land, it is also inconsistent with one of the parameters that informs the broader strategy to reinforce local identity and create a sense of place.
  4. [380]
    The position under City Plan is intended to be strengthened in the future if the draft amendments to City Plan are adopted.  That lends further weight to the case for refusal.
  5. [381]
    Ordinarily, one would expect the planning intentions relevant to the designation of the subject land with a height limit of two storeys and nine metres would be given their full force and effect given the planning scheme is often regarded as an embodiment of the public interest.  As I have already observed in paragraph [117] above, in an assessment of the proposed development undertaken only against the assessment benchmarks referred to in paragraphs [86] and [87] above, it is easy to accept the Council’s case that the non-compliances are deserving of decisive weight and the development application should be refused.  However, the broad evaluative judgment called for by the legislation requires consideration of other matters.
  6. [382]
    In this case, other considerations that must be weighed in the balance when exercising the discretion, and which support approval, include:
    1. (a)
      the existence on the subject land of a lawful development for a residential aged care facility and retirement facility which is conducted in one, two, three and six-storey buildings; 
    2. (b)
      the current intention to retain the taller buildings on the subject land and to continue to lawfully use them for a residential aged care facility and a retirement facility, apart from with respect to a single building that is one storey in height that is proposed to be demolished and replaced;
    3. (c)
      the absence of evidence to suggest that there will be a change to the current intentions in the foreseeable future, or at all; and
    4. (d)
      the pressing need for the proposed development.
  7. [383]
    On balance, I am satisfied that, taken in combination, all the matters identified throughout my reasons above that tell against approval should not stand in the way of an approval given the considerations that I have identified that support approval.  Taken in combination, the matters that support approval are compelling.  They persuade me that the proposed development is meritorious and should be approved.

Conclusion

  1. [384]
    Tricare has discharged the onus.
  2. [385]
    In due course, the appeal will be allowed, and the Council’s decision changed to a development approval subject to lawful conditions. 
  3. [386]
    I will adjourn the appeal to 22 November 2022.  This is to allow the parties to prepare the necessary suite of conditions to be attached to the final judgment.  To facilitate that course, I direct as follows:
  1. By 4 pm on 14 October 2022, the respondent is to provide the appellant with a draft suite of conditions.
  2. By 4 pm on 28 October 2022, the appellant is to notify the respondent, in writing, of its position with respect to the draft suite of conditions.
  3. The appeal be listed for review at 9 am on 22 November 2022.

Footnotes

[1]  Exhibit 3.2 p 23 [63].

[2]  Exhibit 3.2 pp 20-1 [47].

[3]  Exhibit 3.2 p 19 [43] and p 21 [52].

[4]  Exhibit 3.2 p 30 [82] and pp 31-3.

[5]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 4-5; Exhibit 9.2.

[6]  Exhibit 3.2 p 20 [45].

[7] Planning Act 2016 s 44.

[8]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 22; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 12 November 2021) 54-5.

[9] Planning and Environment Court Act 2016 (Qld) s 43.

[10] Planning and Environment Court Act 2016 s 45.

[11]  Exhibit 8.1 p 1 [3].

[12]  Exhibit 3.3 p 6.

[13]  Exhibit 3.3 p 6 [11].

[14]  Exhibit 3.1 p 5 [9].

[15]  Exhibit 3.1 p 11 [35(a)]; Exhibit 4 p 5 [15]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 40 and 42.

[16]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 60.

[17]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 65.

[18]  Exhibit 3.1 p 5 [9]-[11]; Exhibit 3.3 p 5 [10].

[19]  Exhibit 3.3 p 5 [10].

[20]  Exhibit 3.1 p 12 [37(a)].

[21]  Exhibit 4.4 pp 3-4 [11].

[22]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 65-6.

[23]  Submissions on behalf of the Council p 25 [94]. 

[24]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 44.

[25]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 44-5.

[26]  Exhibit 4.1 p 5 [11]-[12].

[27]  [2004] QPEC 9; [2004] QPELR 521.

[28] The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, 524 [20].  See also K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56].

[29] Planning Act 2016 s 45(5)(a)(ii); Planning Regulation 2017 s 31.

[30]  See paragraph [21] above.

[31]  In forming my views in this regard, I was assisted by the site inspection that occurred on the first day of the hearing.  It allowed me to gain an appreciation of the extent to which the various photos and photomontages reflect the true experience of the local area.

[32]  Exhibit 4.7 p 3 [17].

[33]  Exhibit 4.7 p 4 [19] and [20].

[34]  Exhibit 4.7 p 4 [19] and [20].

[35]  Exhibit 4.7 p 4 [21].

[36]  Reduced level.

[37]  AHD refers to Australian Height Datum.

[38]  Exhibit 3.1 p 16 [44].

[39]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 2.

[40]  Exhibit 3.2 p 46 [124]; Exhibit 4.2 p 11 [5.4].

[41]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 6.

[42]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 7.

[43]  Exhibit 3.2 p 46-7 [124]; Exhibit 4.2 p 11 [5.4].

[44]  Exhibit 3.2 p 47 [124]; Exhibit 4.2 p 11 [5.4].

[45]  Exhibit 3.2 p 47 [124]; Exhibit 4.2 p 12 [5.4].

[46]  Exhibit 4.2 p 12 [5.6]

[47]  Exhibit 3.1 p 12 [37(a)].

[48]  Exhibit 4.2 p 12 [5.4].

[49]  Exhibit 4.2 p 12 [5.8].

[50]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 7.

[51]  Exhibit 3.2 p 48 [128] and p 49 [131]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

[52]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

[53]  Exhibit 3.2 pp 48-9 [131]; Exhibit 4.2 p 13 [5.9]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

[54]  Exhibit 3.2 p 49 [131].

[55]  Exhibit 3.2 p 47 [131].

[56]  Exhibit 3.2 pp 48-9 [131].

[57]  Exhibit 4.2 p 12 [5.5]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 8-9.

[58]  Exhibit 3.1 p 12 [37(a)].

[59]  Exhibit 3.1 pp 12-3 [37(a)].

[60]  Exhibit 3.1 p 9 [27]; Exhibit 4.3 p 4 [9]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 52-3.

[61]  Exhibit 3.1 p 9.

[62]  Exhibit 3.1 p 9 [27].

[63]  Exhibit 3.1 p

[64]  Exhibit 4.1 p 8 [18].

[65]  Exhibit 4.1 p 8 [20] and p 10.

[66]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 53-4.

[67]  This was agreed by the architects: Exhibit 3.1 p 16 [44].

[68]  Exhibit 4.1 p 9 [22].

[69]  Exhibit 4.1 p 9 [23]-[24].

[70]  Exhibit 4.1 p 11 [25]-[26].

[71]  Exhibit 4.1 p 11 [28].

[72]  Exhibit 4.1 p 13 [31a]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 53.

[73]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 58-60.

[74]  Exhibit 4.1 pp 16-7 [45].

[75]  Exhibit 3.1 p 28 [54].

[76]  See also Planning Act 2016 s 59.

[77]  Exhibit 8.1 p 1 [1]-[2]. 

[78] Planning and Environment Court Act 2016 s 46(2)(a); Planning Act 2016 s 45(7).

[79]  Exhibit 8.1 p 2 [5].

[80] Planning and Environment Court Act 2016 s 46(2)(b); Planning Act 2016 s 45(8).

[81] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1021 [61].

[82] Acts Interpretation Act 1954 (Qld) s 32D.

[83] Planning Act 2016 s 45(5); Acts Interpretation Act 1954 s 14D.

[84]  Emphasis added, footnote omitted.

[85]  See, for example, the matters referred to in paragraphs [118] to [139] below.  Whether the error infected the Council’s case is not a relevant matter that I have had regarded to in determining the case.  This is a hearing anew.  It might, however, explain the difference in the outcome.

[86]  See also Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 58 at lines 30 to 46 and 65-6 at lines 5 to 12.

[87]  [2020] QCA 253; [2021] QPELR 987.

[88]  [2020] QCA 257; [2021] QPELR 1003.

[89]  [2020] QCA 273; [2021] QPELR 1321.

[90]  [2021] QCA 95; [2022] QPELR 309.

[91]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[92]  [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

[93] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77].

[94] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40].

[95] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804‑6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]‑[14].

[96] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53].

[97] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]-[57].

[98]  Exhibit 8.1 p 1 [4].

[99]  Exhibit 7.8 pp 113-5 City Plan ss 5.1, 5.2, 5.3, 5.5; Exhibit 5.3 p 1 Table 5.5.2.

[100]  Exhibit 1.4.

[101]  Exhibit 1.4.

[102]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 22; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 8 November 2021) 2.

[103]  Exhibit 5.2 p 17.

[104]  Exhibit 5.4 p 3.

[105]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 22; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 8 November 2021) 21-2.

[106]  Exhibit 5.2 p 17.

[107]  Exhibit 5.2 p 17.

[108]  Exhibit 5.1 p 3 s 1.2.2(3).

[109]  This is an allegation in paragraph 3 of the reasons for refusal in the decision notice dated 4 August 2020.  Tricare does not contend that the proposed development could be conditioned to achieve compliance with these provisions.  In those circumstances, it is difficult to understand the Council’s insistence on maintenance of paragraph 3 of the reasons for refusal in the decision notice dated 4 August 2020 as a real issue in dispute: see paragraphs [140] to [157] below.

[110] Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.

[111] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015 [40].

[112] I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36, [288] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335-7 [18]-[22].

[113]  Exhibit 1.3 p 2 [5].

[114]  Written Submissions on behalf of the Appellant p 23 [89].

[115]  Exhibit 5.2 p 1 Note to s 3.1.

[116]  Exhibit 5.2 p 1 s 3.1(1).

[117]  Exhibit 5.2 p 1 s 3.1(3).

[118]  Exhibit 5.2 p 20.

[119]  Exhibit 5.2 pp 16-7 s 3.3.2.1.

[120]  Exhibit 5.2 p 14 s 3.3.1.

[121]  Exhibit 5.2 p 2 s 3.2.

[122]  Exhibit 5.2 p 2 s 3.2.1.

[123]  Exhibit 5.2 p 2 s 3.2.1.

[124]  Exhibit 5.2 p 2 s 3.2.1.

[125]  Exhibit 5.2 p 3 s 3.2.1.

[126]  Exhibit 5.2 p 8 s 3.2.2.

[127]  Exhibit 5.4 p 1 s 6.2.2.2(1).

[128]  Exhibit 5.4 pp 1-3 s 6.2.2.2.

[129]  Exhibit 5.9.

[130]  Thee (sic) building was present when Tricare purchases the site in 1999: T4-13/5; City Plan commenced on 2 February 2016: Ex.7.8, p.6. 

[131]  Given, Mr Robinson described about eighty percent of the nearby buildings as having been built in the 1980s or 1990s147, that is unsurprising 

[132] Grosser v Council of Gold Coast [2001] 117 LGERA 153 at 165-166.

[133]  Submissions on behalf of the Council p 32 (original footnotes).

[134]  Exhibit 5.1 p 1 s 1.1(3).

[135]  [2001] QCA 423; (2001) 117 LGERA 153.

[136] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 165 [45].

[137] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 165 [46].

[138] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 163-4 [38].

[139] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 165-6 [47].

[140] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 155 [6].

[141]  [2001] QCA 423; (2001) 117 LGERA 153.

[142] Integrated Planning Act 1997 s 3.5.5(2)(d).

[143] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 160-1 [28].

[144] Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 161 [29].

[145]  [2001] QCA 423; (2001) 117 LGERA 153.

[146]  By way of contrast, in Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, White J found that if the existing uses ceased to operate as medical centres the sites would revert to being residences.

[147]  See paragraph [73] above.

[148]  Exhibit 3.1 pp 5-6 [9]-[14].

[149]  [2021] QPEC 36, [111].

[150]  Written Submissions on behalf of the Appellant p 9 [39].

[151]  Exhibit 1.2.

[152]  Submissions on behalf of the Council p 5 [25].

[153]  See Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 8 November 2021) 3; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 3-14 and 71.

[154] Planning and Environment Court Act 2016 s 43.

[155] Planning and Environment Court Rules 2018 (Qld) (current as at 13 May 2019) rr 32, 34, 35; Planning and Environment Court Rules 2018 (Qld) (current as at 18 March 2022) rr 34, 35A, 35B, 35C.

[156]  cf. Uniform Civil Procedure Rules 1999 (Qld) r 166.

[157]  [2018] QPEC 34; [2018] QPELR 1102.

[158]  See r 21.3 of the Australian Solicitors Conduct Rules 2012 and r 59 of the 2011 Barristers’ Conduct Rules.

[159] Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34; [2018] QPELR 1102, 1111 [47] (original references).

[160] Planning and Environment Court Rules 2018 r 22.

[161] Planning and Environment Court Act 2016 s 60(1)(f) and (i).

[162]  It also wastes the resources otherwise available to the District Court of Queensland, given the Planning and Environment Court is constituted by a District Court judge with a commission appointing them as a judge of the Planning and Environment Court: Planning and Environment Court Act 2016 s 5.

[163] AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 190 [26] per French CJ citing Sali v SPC Ltd (1993) ^& ALJR 841 at 844 and 849; 116 ALR 625 at 629 and 636.

[164]  See Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 8 November 2021) 3; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 3-14 and 71.

[165]  I have already addressed the issues raised in paragraphs 1, 2 and 4 of Exhibit 1.3, paragraphs (a) and (c) of Exhibit 1.4, paragraphs 1 and 3 of the reasons for refusal in Exhibit 2.9, and paragraphs 1, 2 of Exhibit 10.6.  Some of the matters alleged appear to be uncontroversial.  However, given paragraph 25 of the Council’s written submission, it seemed prudent to address them.

[166]  Exhibit 8.2 p 1 [1].

[167]  Exhibit 6.2 pp 16-7; Exhibit 8.2 p 37.

[168]  Exhibit 8.2 p 145.

[169]  Exhibit 8.2 p 145.

[170]  Exhibit 8.2 p 148.

[171]  Exhibit 6.10 p 11; Exhibit 8.3 p 59.

[172]  Exhibit 8.2 p 6 [27].

[173]  Exhibit 8.3 p 121.

[174]  Exhibit 8.2 p 2 [2].

[175]  Exhibit 8.2 pp 37 and 72.

[176]  Exhibit 8.2 p 6 [29].

[177]  Exhibit 8.2 p 8 [36].

[178] Planning and Environment Court Act 2016 s 43.

[179] Planning and Environment Court Act 2016 s 46(2); Planning Act 2016 s 45(7).

[180] Planning and Environment Court Act 2016 s 46(2); Planning Act 2016 s 45(8).

[181] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, 563 [176].

[182] Iverach v Cardwell Shire Council & Anor [2006] QEC 114; [2007] QPELR 196, 203 [49]; K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, 563-4 [176]-[180], 573 [225].

[183]  (1957) 2 LGRA 117.

[184] Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, 125-6.

[185]  [2020] QCA 253; [2021] QPELR 987.

[186] Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, 993-4 [21]-[24] (footnotes omitted).

[187]  (1957) 2 LGRA 117.

[188]  Exhibit 8.2 p 6 [28].

[189]  Exhibit 8.3 p 125.

[190]  (1957) 2 LGRA 117.

[191]  [2020] QCA 253; [2021] QPELR 987.

[192]  [2020] QCA 253; [2021] QPELR 987.

[193]  See paragraph [88][90]above.

[194]  Exhibit 10.6 [12]; Exhibit 1.3 [8].

[195]  Exhibit 10.6 p 3 [9].

[196]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 61. 

[197]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 61.

[198]  Written Submissions on behalf of the Appellant pp 30-1.

[199]  T3-54/5-8

[200]  Ex. 3.1, architecture JER, p. 10 para 30.

[201]  T3-57/9-12; the alternative schemes are in Ex. 3.1, architecture JER, 28-38.

[202]  T3-58/20-22

[203]  T2-23/27

[204]  T2-23/14-19

[205]  T3-67/24-29

[206]  T3-54/1-3; a similar concession was made in Ex.3.1, architecture JER, p. 10 para 30

[207]  Ex.3.2, need and aged care JER, p. 49, paras 131iv; T2-22/9-11

[208]  T4-14/6-7

[209]  T2-33/34-35; T2-41/16-26

[210]  T2-42/28-31

[211]  Submissions on behalf of the Council pp 30-2 (original footnotes).

[212]  Ex 3.1 p 10.  NR is a reference to Noel Robinson and SP is a reference to Scott Peabody: Ex 3.1 p 2.

[213]  Exhibit 3.1 p 10 [29].

[214]  Exhibit 3.1 pp 22-3.

[215]  Exhibit 4.3 p 10 [32].

[216]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 53-4.

[217]  See, for example, Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, 276 [21]; Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, 569 [23]; and Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, 1060 [162]. 

[218]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 58.

[219]  See, for example, City Plan s 6.2.2.2(2)(b)(viii).

[220]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 67.

[221]  Exhibit 4.4 p 4 [17].

[222]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 9.

[223]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 9.

[224]  Exhibit 4.2 p 12 [5.8].

[225]  Exhibit 4.2 p 13 [5.9.1].

[226]  Exhibit 4.2 p 13 [5.9.2].

[227]  Exhibit 4.2 p 13 [5.9.3].

[228]  Exhibit 4.2 p 13 [5.9.4] and [5.9.5].

[229]  Exhibit 4.3 p 10 [32].

[230]  Exhibit 10.6 p 3 [13]; Exhibit 1.3 p [13].

[231] Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40]; Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, 45 [96]; Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, [43], and [45]-[47]. 

[232] The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56].

[233] Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, [46].

[234]  Exhibit 2.9 p 2.

[235]  Exhibit 10.6 pp 3-4 [14]; Exhibit 1.3 p 2-3 [10] and [12].

[236]  Submissions on behalf of the Council p 42 [174].

[237]  Submissions on behalf of the Council pp 45-50.

[238] Stringer v Minister of Housing and Local Government & Anor [1970] WLR 1281, 1294; Poundstretcher v Secretary for the Environment [1988] 3 PLR 69, 73-4.

[239]  [2011] QCA 332; (2011) 185 LGERA 55.

[240] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, 56 [1]-[2].

[241] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, 57 [3]-[5].

[242] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, 57 [7] and 60 [25].

[243] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, 59 [20].

[244] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, 61-2 [37]-[39].

[245]  This contrasts with the situation that pertained in Peter Rommel and Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99, 106; Leisuremark (Aust) Pty Ltd v Noosa Shire Council & Ors [1988] QPLR 137, 169-70; and Poundstretcher v Secretary for the Environment [1988] 3 PLR 69, 73-4.

[246]  [2011] QCA 332; (2011) 185 LGERA 55.

[247]  (1994) 83 LGERA 274.

[248] BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274, 279.

[249]  This situation can be distinguished from the situation in Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279.  In that case, the Supreme Court of Western Australia accepted, at [93] that adverse planning precedent is a permissible consideration in the circumstances specified in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117.  At [84] to [88], Chaney J explained the specified circumstances.  They arise when there exists a sufficient probability that there will be further applications for several undistinguishable developments of the same class sufficient in their totality to bring about the objectional condition of affairs.  Here, I am not persuaded that there is even a possibility of several undistinguishable developments, let alone a sufficient probability of them.  The present situation is also different in that respect to that which pertained in Collis Radio Ltd & Anor v Secretary of State for the Environment & Anor (1975) 29 P & CR 390; Peter Rommel and Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99; Leisuremark (Aust) Pty Ltd v Noosa Shire Council & Ors [1988] QPLR 137 (see particularly 169-70); and Poundstretcher v Secretary for the Environment [1988] 3 PLR 69, 73-4.

[250]  In contrast to the situation in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274.

[251]  Submissions on behalf of the Council p 38 [149].

[252]  Submissions on behalf of the Council p 38 [149].

[253]  Submissions on behalf of the Council p 28 [109].

[254]  Submissions on behalf of the Council p 38 [154].

[255]  [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[256] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[257] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20].

[258] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[259] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [19]-[21].

[260] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[261] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419 [28].

[262]  [1981] 1 QPLR 33.

[263]  [1981] 1 QPLR 33, 35.

[264]  [2020] QCA 257; [2021] QPELR 1003.

[265] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1018 [51].

[266]  T3-21/33-40.

[267]  T3-20/43-47; T3-21/40.

[268]  Submissions on behalf of the Council p 37 (original footnotes).

[269]  See paragraphs [73] to [79] and [118] to [139] above.

[270]  Having regard to the evidence of Mr O'Shea at T4-11/34-47 to 35/12, these submissions do not draw distinction between the various Tricare related entities.

[271]  Submissions on behalf of the Council pp 28-9.

[272]  Submissions on behalf of the Council pp 1, 4, 5, 28, 33, 34, 40 and 41.  I have omitted most of the footnotes.  They do not assist as they are almost all wrong. 

[273]  Exhibit 4.7 p 1 [1]-[2].

[274]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 11.

[275]  Exhibit 4.7 p 1 [1]-[3].

[276]  Exhibit 4.7 pp 1-2 [8].

[277]  Exhibit 4.7 p 2 [10]-[11].

[278]  Exhibit 4.7 p 2 [12].

[279]  Exhibit 4.7 p 3 [13]-[14].

[280]  Exhibit 4.7 p 3 [14].

[281]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 14, 15 and 21.

[282]  Exhibit 4.7 p 3 [16] and p 4 [22].

[283]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 7-8 and 17.

[284]  Exhibit 3.2 p 19 [43].

[285]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 11 November 2021) 17.

[286]  I take the words “As a result” to be inviting me to draw the inference to which I refer.

[287]  Exhibit 3.2 p 19 [43].

[288]  Exhibit 3.2 p 15 [43] and p 23 [60]-[61].

[289]  Exhibit 3.2 p 24 [65].

[290]  Exhibit 3.2 p 20 [45].

[291]  Exhibit 3.2 pp 23-4 [63].

[292]  Exhibit 3.2 p 25 [70].

[293]  Exhibit 3.2 p 25 [72].

[294]  Exhibit 3.2 p 9 [16].

[295]  Exhibit 3.2 p 15 [38].

[296]  Exhibit 3.2 p 15 [37]. 

[297]  Exhibit 3.2 p 24 [66] and [67].

[298]  Exhibit 3.2 p 24 [68].

[299]  Exhibit 3.2 p 25 [72] and p 27 Map 2.

[300]  Exhibit 3.2 p 31 Table 2.

[301]  Exhibit 3.2 p 30 [82] and p 33 Map 3.

[302]  Exhibit 3.2 p 28 [77].

[303]  Exhibit 3.2 p 28 [79].

[304]  Exhibit 3.2 p 28 [80].

[305]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 31.

[306]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 17 (Duane) and 31-2 (Brown).

[307]  Exhibit 3.2 p 36 [92].

[308]  Exhibit 3.2 p 36 [92].

[309]  Exhibit 3.2 p 44 [107] and p 45 Table 5.

[310]  Exhibit 3.2 p 40 [103]-[104], p 42 Table 4 and p 43 Map 4.

[311]  Exhibit 3.2 p 40 [104].

[312]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 18-9.

[313]  Exhibit 3.2 p 41 [104].

[314]  Exhibit 3.2 p 41 [104].

[315]  Exhibit 3.2 p 41 [104].

[316]  See paragraphs [267] to [272] above.

[317]  Exhibit 3.2 p 41 [104].

[318]  Exhibit 3.2 p 41 [105]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 18-9.

[319]  Exhibit 3.2 p 45 Table 5.

[320]  Exhibit 3.2 p 45 [116] and p 49 [132].

[321]  Exhibit 3.2 pp 45-6 [118]-[119].

[322]  Exhibit 3.2 p 46 [120].

[323]  Exhibit 3.2 p 46 [121].

[324]  Exhibit 3.2 p 46 [122].

[325]  Exhibit 3.2 p 45 [117].

[326]  Exhibit 3.2 p 46 [123].

[327]  Exhibit 3.2 p 47 [125].

[328]  Exhibit 3.2 p 50 [135].

[329]  Submissions on behalf of the Council p 38 [154].

[330]  Submissions on behalf of the Council p 38 [154].

[331]  Exhibit 3.2 p 62 [156] and p 65 [174].

[332]  Exhibit 3.2 p 42 Table 4; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 36-7.

[333]  Exhibit 3.2 p 45 [115].

[334]  Submissions on behalf of the Council p 40 [166].

[335]  Submissions on behalf of the Council p 40 [166].

[336] Planning Act 2016 s 264; Planning Regulation 2017 s 70 and sch 22.

[337]  Exhibit 3.2 p 62 [159]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 34.

[338]  Exhibit 3.2 p 51 [138]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 34-6

[339]  Exhibit 3.2 p 52 [139].

[340]  See Exhibit 3.2 p 22 [54].

[341]  Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 9 November 2021) 27; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 36. 

[342]  Exhibit 3.2 p 52 [142]-[144]; Transcript of Proceedings, Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast (Planning and Environment Court of Queensland, 2361/20, Kefford DCJ, 10 November 2021) 19.

[343]  Exhibit 3.2 p 44 [108].

[344]  [2020] QCA 257; [2021] QPELR 1003.

[345] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1018 [51].

[346]  [1999] 2 Qd R 35.

[347] Ecovale Pty Ltd v Council of the City of Gold Coast [1999] 2 Qd R 35, 47.

[348]  [2018] QCA 84; [2022] QPELR 289.

[349] Bell v Brisbane City Council & Ors [2018] QCA 84; [2022] QPELR 289, 305 [68].

[350]  Exhibit 4.2 p 18 [7.3].

[351]  Exhibit 3.2 p 23 [63].

[352]  Exhibit 4.2 p 4 [2.1] and [2.2].

[353]  Exhibit 4.2 p 17 [7.1].

[354]  Exhibit 4.2 p 18 [7.2].

[355]  Exhibit 5.2 p 3 s 3.2.1.

[356]  Exhibit 5.2 p 14.

[357]  Exhibit 3.2 p 13 [29].

[358]  Exhibit 3.2 p 15 [37]-[38].

[359]  Exhibit 5.4 p 1 ss 6.2.2.2(1) and (2)(a).

[360]  Exhibit 5.5 pp 1-2 s 9.3.14.2.

[361]  Exhibit 5.5 p 2.

[362]  Exhibit 5.5 pp 2, 4, 10, and 15.

[363]  [2019] QPEC 3; [2019] QPELR 487.

[364] Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3; [2019] QPELR 487, 519 [220] – 526 [234].

[365]  Submissions on behalf of the Council p 33 [138] and [139].

[366]  Exhibit 10.6 [10].

[367]  Exhibit 5.4 pp 1-3 s 6.2.2.2.

[368]  Exhibit 5.5 pp 2, 4, 10, and 15.

[369]  Exhibit 10.6 [8(e)].

[370]  Exhibit 5.4 pp 1-3 s 6.2.2.2.

[371]  Exhibit 5.5 p 1.

[372] Planning Act 2016 s 59(3).

[373]  Exhibit 10.6 [8(f)].

[374] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 808 [60].

Close

Editorial Notes

  • Published Case Name:

    Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast

  • Shortened Case Name:

    Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast

  • MNC:

    [2022] QPEC 31

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    16 Sep 2022

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
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
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Cite 2 - [2021] QPELR 1003
Cite 3 - [2021] QPELR 1003
Cite 4 - [2021] QPELR 1003
Cite 5 - [2021] QPELR 1003
Cite 6 - [2021] QPELR 1003
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Cite 8 - [2021] QPELR 1003
Cite 9 - [2021] QPELR 1003
Cite 10 - [2021] QPELR 1003
Cite 11 - [2021] QPELR 1003
Cite 12 - [2021] QPELR 1003
Cite 13 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
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Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342
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Acland Pastoral Co. Pty Ltd v Rosalie Shire Council [2007] QPEC 112
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Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
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Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
4 citations
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Cite 1 - [2019] QPEC 16
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Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
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Bell v Brisbane City Council [2018] QCA 84
2 citations
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Bell v Brisbane City Council & Ors [2022] QPELR 289
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Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council [2018] QPEC 34
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Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102
3 citations
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BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274
4 citations
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Cite 3 - (1994) 83 LGERA 274
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Brazier v Brisbane City Council (1972) 26 LGRA 322
1 citation
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Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
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Cite 7 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
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Cite 7 - [2021] QPELR 987
Bullock v Hervey Bay Town Council (1983) QPLR 98
1 citation
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Cite 1 - (1983) QPLR 98
Cherrabun Pty Ltd v Brisbane City Council (1985) QPLR 205
1 citation
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Cite 1 - (1985) QPLR 205
Collis Radio Ltd & Anor v Secretary of State for the Environment & Anor (1975) 29 P and CR 390
2 citations
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Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
4 citations
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Cite 1 - (1957) 2 LGRA 117
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Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35
3 citations
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Cite 1 - [1999] 2 Qd R 35
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Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
2 citations
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Cite 1 - (1990) QPLR 209
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Gold Coast City Council v K Page Main Beach (2011) 185 LGERA 55
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Cite 6 - (2011) 185 LGERA 55
Cite 7 - (2011) 185 LGERA 55
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Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332
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Cite 7 - [2011] QCA 332
Cite 8 - [2011] QCA 332
Grosser v Council of Gold Coast City (2001) 117 LGERA 153
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Cite 4 - (2001) 117 LGERA 153
Cite 5 - (2001) 117 LGERA 153
Cite 6 - (2001) 117 LGERA 153
Cite 7 - (2001) 117 LGERA 153
Cite 8 - (2001) 117 LGERA 153
Cite 9 - (2001) 117 LGERA 153
Cite 10 - (2001) 117 LGERA 153
Cite 11 - (2001) 117 LGERA 153
Cite 12 - (2001) 117 LGERA 153
Cite 13 - (2001) 117 LGERA 153
Grosser v Council of the City of Gold Coast [2001] QCA 423
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Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
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Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
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Isgro v Gold Coast City Council [2003] QPEC 2
6 citations
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Isgro v Gold Coast City Council (2003) QPELR 414
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Cite 1 - (2003) QPELR 414
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Cite 4 - (2003) QPELR 414
Cite 5 - (2003) QPELR 414
Cite 6 - (2003) QPELR 414
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Cite 1 - [2007] QPELR 196
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Cite 1 - [2006] QEC 114
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Knight v FP Special Assets Ltd [1992] HCA 28
2 citations
Jump To
Cite 1 - [1992] HCA 28
Cite 2 - [1992] HCA 28
Leisuremark (Aust.) Pty Ltd v Noosa Shire Council [1988] QPLR 137
3 citations
Jump To
Cite 1 - [1988] QPLR 137
Cite 2 - [1988] QPLR 137
Cite 3 - [1988] QPLR 137
Murphy v Moreton Bay Regional Council [2019] QPEC 46
4 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Cite 3 - [2019] QPEC 46
Cite 4 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
4 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Cite 3 - [2020] QPELR 328
Cite 4 - [2020] QPELR 328
Nicholls and Western Australian Planning Commission [2005] WASAT 40
1 citation
Jump To
Cite 1 - [2005] WASAT 40
Nicholls v Western Australian Planning Commission (2005) 149 LGERA 117
1 citation
Jump To
Cite 1 - (2005) 149 LGERA 117
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
3 citations
Jump To
Cite 1 - (2011) QPELR 406
Cite 2 - (2011) QPELR 406
Cite 3 - (2011) QPELR 406
Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 32
2 citations
Jump To
Cite 1 - [2018] QPEC 32
Cite 2 - [2018] QPEC 32
Parmac Investments Pty Ltd v Brisbane City Council & Ano r [2018] QPELR 1026
2 citations
Jump To
Cite 1 - [2018] QPELR 1026
Cite 2 - [2018] QPELR 1026
Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99
3 citations
Jump To
Cite 1 - (1971) 23 LGRA 99
Cite 2 - (1971) 23 LGRA 99
Cite 3 - (1971) 23 LGRA 99
Poundstretcher v Secretary for the Environment [1988] 3 PLR 69
4 citations
Jump To
Cite 1 - [1988] 3 PLR 69
Cite 2 - [1988] 3 PLR 69
Cite 3 - [1988] 3 PLR 69
Cite 4 - [1988] 3 PLR 69
Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521
4 citations
Jump To
Cite 1 - (2004) QPELR 521
Cite 2 - (2004) QPELR 521
Cite 3 - (2004) QPELR 521
Cite 4 - (2004) QPELR 521
Sheezel v Noosa Shire Council (1980) QPLR 130
1 citation
Jump To
Cite 1 - (1980) QPLR 130
Stringer v Minister of Housing and Local Government & Anor [1970] WLR 1281
2 citations
Jump To
Cite 1 - [1970] WLR 1281
Cite 2 - [1970] WLR 1281
The Purcell Family v Gold Coast City Council [2004] QPEC 9
4 citations
Jump To
Cite 1 - [2004] QPEC 9
Cite 2 - [2004] QPEC 9
Cite 3 - [2004] QPEC 9
Cite 4 - [2004] QPEC 9
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
3 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Cite 3 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
3 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Cite 3 - [2022] QPELR 309
Walters & Ors v Brisbane City Council & Anor [2019] QPELR 487
3 citations
Jump To
Cite 1 - [2019] QPELR 487
Cite 2 - [2019] QPELR 487
Cite 3 - [2019] QPELR 487
Walters v Brisbane City Council [2019] QPEC 3
3 citations
Jump To
Cite 1 - [2019] QPEC 3
Cite 2 - [2019] QPEC 3
Cite 3 - [2019] QPEC 3
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279
2 citations
Jump To
Cite 1 - [2016] WASC 279
Cite 2 - [2016] WASC 279
Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47
2 citations
Jump To
Cite 1 - [2014] QPEC 47
Cite 2 - [2014] QPEC 47
Wattlevilla Pty Ltd v Western Downs Regional Council [2015] QPELR 21
2 citations
Jump To
Cite 1 - [2015] QPELR 21
Cite 2 - [2015] QPELR 21
Wilhelm v Logan City Council [2020] QCA 273
4 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Cite 3 - [2020] QCA 273
Cite 4 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
4 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Cite 3 - [2021] QPELR 1321
Cite 4 - [2021] QPELR 1321
William McEwans Pty Ltd v BCC (1981) 1 Q.P.L.R 33
3 citations
Jump To
Cite 1 - (1981) 1 Q.P.L.R 33
Cite 2 - (1981) 1 Q.P.L.R 33
Cite 3 - (1981) 1 Q.P.L.R 33
Wingate Pty Ltd v Brisbane City Council (2001) QPELR 272
2 citations
Jump To
Cite 1 - (2001) QPELR 272
Cite 2 - (2001) QPELR 272
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6
3 citations
Jump To
Cite 1 - [2022] QPEC 6
Cite 2 - [2022] QPEC 6
Cite 3 - [2022] QPEC 6

Cases Citing

Case NameFull CitationFrequency
Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 181 citation
Archer v Council of the City of Gold Coast [2022] QPEC 596 citations
Development Watch Inc. & Anor v Sunshine Coast Regional Council [2023] QPEC 242 citations
Harbour Island Pty Ltd v Gold Coast City Council [2023] QPEC 292 citations
Kirra Developments Pty Ltd v Council of the City of Gold Coast [2022] QPEC 382 citations
McEnearney v Council of the City of Gold Coast [2024] QPEC 322 citations
McEnearney v Council of the City of Gold Coast [2024] QCA 246 1 citation
SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No. 2) [2022] QPEC 512 citations
The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast [2025] QPEC 132 citations
1

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