Kirra Developments Pty Ltd v Council of the City of Gold Coast
[2022] QPEC 38
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Kirra Developments Pty Ltd v Council of the City of Gold Coast[2022] QPEC 38
- Add to List
Kirra Developments Pty Ltd v Council of the City of Gold Coast[2022] QPEC 38
Kirra Developments Pty Ltd v Council of the City of Gold Coast[2022] QPEC 38
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Kirra Developments Pty Ltd v Council of the City of Gold Coast [2022] QPEC 38 |
PARTIES: | KIRRA DEVELOPMENTS PTY LTD (ACN 610 282 089) (appellant) v COUNCIL OF THE CITY OF GOLD COAST (respondent) |
FILE NO: | 3053/2021 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 6 October 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26-27 September 2022 |
JUDGE: | Kent KC, DCJ |
ORDER: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – POWERS WITH RESPECT TO PLANNING SCHEMES – APPEAL where the respondent has refused the appellants minor change application – where the application was refused for reasons including that the change was not minor – where the proposed minor change does not vary the external features of the development – where there is no discernible change in external impact – whether the change is a minor change – whether the proposed minor change would result in a substantially different development – whether the change is consistent with reasonable community expectations – whether there are no unacceptable town planning impacts – whether the proposal changes the character of the area – whether noncompliance with an assessment benchmark mandates refusal of an application |
LEGISLATION: | Planning Act 2016, s 53, 78, 80, 81, 81A, 82, 82A Planning and Environment Court Act 2016, 43, 45 |
CASES: | Tricare (Bayview) Pty Ltd v Gold Coast City Council [2022] QPEC 31 Dunland Property Pty Ltd v Brisbane City Council [2021] QPEC 34 Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPELR 113 Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPELR 112 Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council [2011] QPELR 27 Dempsey v Brisbane City Council & Ors [2012] QPELR 396 Zumbo v Brisbane City Council [2020] QPEC 14 Dixing International Pty Ltd v Sunshine Coast Regional Council [2013] QPELR 39 Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 Carillon Development Ltd v Maroochy Shire Council and Birch Carroll and Coyle Ltd & Ors [2000] QPELR 216 Abeleda v Brisbane City Council & Anor [2020] QCA 257 |
COUNSEL: | Mr D O'Brien KC with Mr J Lyons for the appellant Mr G Gibson KC with Mr R Yuen for the respondent |
SOLICITORS: | Minter Ellison, Gold Coast for the appellant McInnes Wilson for the respondent |
Introduction
- [1]The appellant (“Kirra”) appeals against the refusal by the respondent Council of proposed changes to an existing development approval in relation to the development which is under construction on the subject land at 102 Albatross Avenue, Mermaid Beach on the Gold Coast. The background is that following lodgement of the original development application on 4 December 2019 for a multiple dwelling, concern was expressed by Council as to the proposed five stories. The public notification process proceeded and 25 submissions were received; 22 in support and three objections. Further correspondence ensued between the parties and eventually in October 2020 Kirra changed the application to four storeys. Approval was granted on 26 November 2020.
- [2]The existing approval is thus for a residential building which is 15 metres and five levels in height, consisting of four storeys and an enclosed void space, bathroom, toilet and stairwell at level five and including four residential units. Importantly this already represents the maximum permitted uplift in building height according to Specific Outcome 3.3.2.1 (9) (“SO9”)[1] of the City Plan; although the building does not exceed the maximum permitted height (15m according to the relevant overlay map[2]) it has achieved the maximum 50 per cent uplift in the permitted number of storeys, from three to four and a half, rounded down to four (pursuant to the Note to SO(9)).
- [3]Subsequently Kirra made an application for a minor change, in simplified terms seeking the addition of a master bedroom suite and second living area on level five, the roof area of the building. The request was refused by the Council (for reasons including that the change was not a “minor change” and it sought approval for a development which was in breach of the relevant Specific Outcome relating to height) resulting in the commencement of this appeal. One of the points made by Council is that this represents a reversion to the original five storey concept (which was resisted by Council) after the application has been changed and after the public notification process;[3] that is, a reversion to something Kirra had agreed to abandon. Kirra acknowledges that this may appear at first blush irregular, but the legislation allows for it and the appeal is to be determined on its merits.
- [4]The approval was granted under Version 7 of the Gold Coast City Plan 2016 however the change application was made under Version 8 of the Plan. Fortunately there is no operative difference.
- [5]Helpfully the agreed list of issues has been condensed as firstly whether the appellant has satisfied the Court that the proposed change amounts to a “minor change” as described in Schedule 2 of the Planning Act 2016 (PA) and secondly, if so, should the application be approved or refused in all the circumstances. If the change is determined not to be a minor change, the administration of the change application falls to be determined under the more comprehensive processes under ss 82 and 82A of the PA; for example, s 82(2)(a)(ii) provides for the matter to be administered as if the change application were the original development application (in contrast to the same matters being considered; see s 81(2)(da) referred to below).
- [6]The Council argues that the proposed change is not a minor change in that it is not a change that “would not result in a substantially different development”.[4] Secondly, even if it is a minor change, the change application should be refused, in summary because the proposed change cuts across the building height restrictions in the relevant planning instrument - the City Plan - in that it is in direct conflict with Specific Outcome 3.3.2.1(10) (“SO10”) (as to increases in building heights) and there are no other criteria in the City Plan supportive of the change. Thirdly, evidence as to the character and amenity of the locality and the impact or lack thereof of the proposed development on the local character, the built form in the locality and the amenity in the locality are matters which have already been taken into account in permitting the 50 per cent uplift in the permitted number of storeys pursuant to SO(9) and thus do not provide separate support for the proposed change. The change thus cannot be said to be consistent with reasonable community expectations where it is in conflict with the building height Specific Outcome and there is further no discretionary matter which favours approval. The City Plan adopts a “stringent policy” as to height[5] (although, as noted above, this building does not exceed the external height permitted by the overlay map).
- [7]The appellant frames the issue as whether changes to the approved unit development, that result in no external changes or new or changed impacts, warrant refusal in circumstances where the Court has a broad discretion in such matters.
Nature of the Appeal
- [8]
- [9]The change application was made to the Council pursuant to s 78 of the PA. Section 80 thereof governs minor changes and they are to be assessed pursuant to ss 81 and 81A. S 81(2)(da) requires consideration of all matters that may be assessed against or had regard to if the change application were a development application.
- [10]The nature of the proposed change, as mentioned above, is that instead of an enclosed void in the roof area on level five, there would be a master bedroom suite and second living area in that space. Importantly, this has the effect of extending the building from four storeys to five storeys (as the term “storey” is defined[8]) and thus being in breach of the height parameters in the City Plan.
Minor change
- [11]Determining whether a proposed change results in a “substantially different development” is a “comparative task” involving a consideration of the changes between the existing and proposed plans and a matter to be considered “broadly and fairly, rather than pedantically”. The comparison involves evaluation which can be both quantitative and qualitative as may be relevant in the circumstances. Matters of scale and degree are often involved and the particular context and circumstances of the case are important[9].
- [12]Kirra argues that the proposed change, which admittedly alters the number of storeys because of the definition referred to, nevertheless does not change the height of the building, its architecture and setting on the land, its use or the intensity of the use. The building envelope remains completely unchanged and because there is no increase in the number of units there is no increase in the intensity of the use with the various consequences that may entail. Kirra is able to point to other examples of findings of minor change where, for example, the height of the building is significantly decreased[10] and where gross floor area is significantly increased.[11]
SO(10)
- [13]SO(10) is important. It provides that “increases in building height, beyond 50 per cent above the building height overlay map, are not anticipated in urban neighbourhoods.” It is followed by a note which provides “no criteria have been identified for building heights which are more than 50 per cent above the building height overlay map, because such increases are in conflict with City Plan.” As Council points out, the note is part of the City Plan; it is not an extrinsic aid.[12] The change proposal is thus in conflict with the City Plan.
- [14]When the increase in building height was approved for the development, pursuant to SO(9), it increased the permissible storeys from three to four. The change application seeks increase to five, which, as referred to above is not anticipated and is in conflict with the City Plan. Kirra acknowledges this, however argues that in the context noncompliance with an assessment benchmark does not mandate refusal in the particular circumstances of this case.
- [15]Council points out that a five storey development on the land will trigger impact assessment and the change application has not undergone public notification (PA ss 53 and 82) which has the effect of denying a right of appeal to a submitter[13] and other members of the public the opportunity to make relevant submissions.
Development Assessment Rules
- [16]Council refers to the Development Assessment Rules (made under the PA), in particular rr 4(g) and (h). Rule 4(g) refers to introducing new impacts or increasing the severity of known impacts. Although there is no external impact from the change, the Council submits that the breach of the height limits in the City Plan is significant.[14] It is therefore necessarily a new impact. Although “impact” is not defined in the DA rules, there is reference to a dictionary definition including “the influence or effect exerted by a new idea, concept, ideology, etc”. The argument is that an impact is inherent in the breach of the height restriction as well as circumventing the concerns of Ms Terrill, referred to above and other concerned members of the public.
- [17]As to DA r 4(g), the argument is that the change removes an incentive that would have balanced a negative impact of the development, namely limiting the development to four-storeys. The conceptual difficulty with that argument is that r 4(h) refers to an incentive or offset that balances a (separate) negative impact of the development. In this case, the argument refers to the incentive and the negative impact as the same consideration, namely, the presence or absence of the fifth storey.
- [18]SO (9) and (10) were discussed in Bell. Relevantly, at [59]-[62] it was noted that an exceedance greater than 50 per cent is inconsistent with the City Plan including the relevant building height overlay map. There is reference to the “desired future appearance” of a local area within urban neighbourhoods, which is material and significant. Importantly, in that case the extra storey was visibly obvious on the eastern and western façades of the building.[15] There was additional bulk, height and scale visible from the public domain which would be perceived as overbearing and visually dominant.
- [19]This is distinct from the present case. As Kirra is at pains to emphasise, in the present case the changes are internal. The external envelope of the building and its appearance are completely unchanged in the change application. When account is taken of all of the things that are unchanged, as set out in [12] above, Kirra argues that the change - which alters the number of storeys without changing the overall height or external appearance of a building and arises only because of the definition of “storey” referred to - does not offend the “minor change” test.
- [20]I was referred to Carillon Development Ltd v Maroochy Shire Council and Birch Carroll and Coyle Ltd & Ors[16] as a guide to the approach to an application for a minor change. In particular, Council referred to the difference in the definition of minor change compared to previously; see [7]. Another aspect of the reasoning in that decision was that Quirk DCJ referred to the question of whether members of the community who may have had a right of objection would have been more likely to make submissions, had they had the opportunity of doing so, in relation to the matter the subject of the minor change application. In that case, the “minor change” was the removal of a cinema component from a shopping centre development and the application was refused. Here, where the external impacts of the change are not discernible it is not easy to conclude that further adverse submissions might have been provoked by the change; Ms Terrill had already advanced her objection, to a proposal of a five-storey building, in April 2020.
- [21]Another example of a minor change is in Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council and Ors (supra) (admittedly under the earlier regime of the Sustainable Planning Act). Judge Robin QC referred in that case to there being no changes in maximum site coverage, setbacks, vehicular access points, car parking or landscaping; no new use with different or additional impacts; no changes to the ability of the proposal to operate as intended or removal of a component integral to the operation of the development. There were no new impacts or increase in severity of known impacts. The scale, bulk and appearance was of course reduced (here, it is unchanged). The change was accepted as minor. Many of the same features are present here. There was a similar result, in a case which arguably involved greater change, in Dixing (supra).
- [22]In all the circumstances, applying the “minor change” test broad and fairly, rather than pedantically it is my conclusion that Kirra has established that the changes do not result in a substantially different development. This is because, as Mr Buckley sets out[17] the change is essentially concerned with the internal layout of the topmost unit. It does not vary the height and bulk of the building, its architecture and setting on the land – or any external features - its use or the intensity of the use as expressed in the number of units. There are no discernible changes in impacts.
The change application
- [23]Council argues that the change application should be refused because it is in conflict with SO (10), which is an important planning strategy expressed in strong terms. It also would “cut across” a matter raised by the submissions, namely the building height issue raised specifically in the objection of Ms Terrill referred to above. Kirra acknowledges the noncompliance with SO (10) however argues that noncompliance with an assessment benchmark does not mandate refusal of the application. Kirra refers to Abeleda v Brisbane City Council & Anor[18] at [53]:
“Williamson QC DCJ referred at [51] of Ashvan to the Legislature’s intention in enacting s 60(3) of the Act to dispense with the two part test under s 326(1)(b) of the SPA and observed that “means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion” and “the discretion conferred by s 60(3) of the [Act] admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor”. I agree with those observations.”
- [24]Kirra refers again to the feature that the proposal does not exceed the nominated building height on the building height overlay map. Kirra’s town planning expert, Mr Buckley, opines that the proposed development is suitable in the context of the land and its surrounding locality referring to its built form, scale and character. It is within an area where walkability to services and public transport and for recreation is optimised, making it ideal for multiple dwelling. There are no unacceptable town planning impacts.[19] As noted above, there is no change to the external appearance or height of the building and there are no tangible or observable changes to the external appearance and thus no impacts on character or amenity.
- [25]Kirra notes that the existing approval complied with SO (9) and none of the relevant matters are altered by the proposed change. It also notes Mr Buckley’s observation that the proposal is consistent with reasonable community expectations in the sense that public notification was carried out at a stage which included the March 2020 plans for a residential building with an overall building height of 15 metres comprising five storeys with a master bedroom suite, walk in robe, ensuite, bar and stairwell within the enclosed part of level five. Thus, it is said that the proposed changes would not exacerbate any of the issues identified in the properly made submissions because the proposed changes are within the existing approved “envelope”.[20]
- [26]Kirra also argues that inconsistency with SO (10) is not fatal, referring to Tricare where a development that exceeded the height provisions was approved.[21] Further, Bell is particularly relevant in that it refers to another multiple dwelling development very nearby the subject land, at 111 Hedges Avenue, Mermaid Beach and it also considered the building height uplift provision. The submitter’s appeal against approval was successful, however in that case the proposed building exceeded (by not more than 50 per cent) both the permitted number of storeys as well as the external height.[22] Moreover, it was found that there was noncompliance with aspects of SO (9) which is not the present case. It was not a minor change decision.
- [27]Kirra submits that the change application should be approved where there are no additional external impacts from the existing approval, there is continued compliance with SO (9), there is no change to the character of the area and it is not a precedent for other developments.
- [28]Council refers to the importance of the building height Specific Outcome. Further, the matters bearing on SO (9) do not further assist the appellant. In essence, it is argued that Kirra has already maximised the building height permitted by the City Plan and the further uplift in terms of storeys should not be permitted. Thus Kirra has not discharged its onus and the appeal should be dismissed.
Consideration and conclusion
- [29]In my conclusion Kirra has discharged its onus. There are no external impacts beyond what was already approved, at a time when objections had been lodged referring to what was, at that point, a proposed five storey development. As Kirra submits, there is continued compliance with SO (9) and the proposal does not change the character of the area and is not a precedent for other development. Given the limited nature of the internal changes the appeal is allowed.
Footnotes
[1] Part of the Strategic Framework which prevails over other components for impact assessment; 1.4 (1)(b)
[2] Exhibit 13, the CEO Certificate, City Plan extracts, p 94
[3] Although submissions were made at a stage when the application included five storeys
[4] PA, Schedule 2, definition of “minor change”.
[5] Tricare (Bayview) Pty Ltd v Gold Coast City Council [2022] QPEC 31 at [105] (“Tricare”)
[6] Planning and Environment Court Act 2016 (PECA), s 43.
[7] PECA, s 45(2).
[8] See definition in Schedule 1 to the City Plan; the space would not be a storey if it contained only a lift shaft, stairway and bathroom in addition to the pool and outdoor areas; it is the addition of the bedroom and living area which makes the difference
[9] Dunland Property Pty Ltd v Brisbane City Council [2021] QPEC 34 at [14]; see also Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPELR 113 at [10] and Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPELR 112 at [13] as to the relevance of the Development Assessment Rules under the PA.
[10] Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council [2011] QPELR 27; Dempsey v Brisbane City Council & Ors [2012] QPELR 396, Zumbo v Brisbane City Council [2020] QPEC 14.
[11] Dixing International Pty Ltd v Sunshine Coast Regional Council [2013] QPELR 39.
[12] City Plan 1.2.2(3)
[13] Ms Terrill; her objection is at p 134-5 of the affidavit of Mr Buckley, Ex. 9
[14] Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 at [59] (“Bell”)
[15] See [41].
[16] [2000] QPELR 216
[17] Exhibit 6, the first affidavit of Mr Buckley, p 5, para 11.
[18] [2020] QCA 257, per Mullins JA as her Honour then was
[19] Exhibit 6, paras 23-24.
[20] Exhibit 6, paras 26-29.
[21] See in particular paras [243], [245]-[247].
[22] At [3]