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  4. McLucas v Council of the City of Gold Coast & Marquee Flora Pty Ltd - [2022] QPEC 56

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McLucas v Council of the City of Gold Coast & Marquee Flora Pty Ltd[2022] QPEC 56

McLucas v Council of the City of Gold Coast & Marquee Flora Pty Ltd[2022] QPEC 56

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56

PARTIES:

McLUCAS & ORS

(First Appellants)

GRI & ORS

(Second Appellants)

(VIDJON & ORS

(Third Appellants)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

MARQUE FLORA PTY LTD

(Co-Respondent)

FILE NO/S:

2428 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

16 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

27-30 June 2022, 1 & 5 July 2022, 4 and 24 August 2022

JUDGE:

Rackemann DCJ

ORDER:

The appeal is adjourned to allow the parties to consider appropriate conditions of approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of four-storey dwelling – where land was in Medium Density Residential Zone – where proposal would replace a detached dwelling and a two-storey multiple dwelling with three units – whether the design, bulk, height and scale will have unacceptable impacts upon character and amenity – whether proposed development satisfies the strategic framework building height uplift provisions of the planning scheme – whether absence of an on-site area for service vehicles is acceptable – whether there are “relevant matters” that either support approval or refusal

CASES:

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

Bell Co Pty Ltd v Council of the City of Gold Coast & Anor [2022] QPEC 32

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

Lawrence v Gold Coast City Council & Anor [2022] QPEC 19

Smout v Brisbane City Council [2019] QPELR 684 at [54]

Stradbroke Island Management Organisation Inc v Redland Shire Council & Anor [2002] 121 LGERA 390

LEGISLATION:

Planning Act 2016 ss 45(5), 60(3)

Planning and Environment Court Act 2016 ss 43, 45, 46, 47

Planning Regulation 2017 ss 31(1)(f), 31(2)(a)

COUNSEL:

B Rix for the first appellants

H Stephanos for the second and third appellants

J Ware for the respondent

B Job KC and D Purcell for the co-respondent

SOLICITORS:

Mills Oakley for the first, second and third appellants

Corrs Chambers Westgarth for the respondent

Connor O'Meara Solicitors for the co-respondent

Introduction

  1. [1]
    This appeal is by submitters against the respondent’s approval, subject to conditions, of a development application, by the co-respondent, for a development approval to facilitate the development of a 4-storey, seven-unit multiple dwelling across two lots at 798-800 Pacific Parade Currumbin.  The proposed development would replace two separate, somewhat aged, buildings, being a detached dwelling and a two-storey multiple dwelling with three units.

The site and locality

  1. [2]
    The subject site falls within Currumbin, one of the southern beach suburbs along the Gold Coast’s well-known coastal strip.  As the architectural experts agreed,[1] the local area is well-defined by the legible edges provided by Currumbin Creek to the north, development on the ridge of Currumbin Hill to the west, the sea to the east and the termination of Pacific Parade at its intersection with Tomewin Street to the south.
  2. [3]
    The subject site is a flat, regularly shaped, level site composed of two lots with a combined area of 785m².  It has a 20-metre road frontage to Pacific Parade, which forms an esplanade to Currumbin Beach.  All private development in this part of Currumbin is on the western side of Pacific Parade, facing the beach to the east.  The site is well positioned for a development that would offer a high level of amenity to its occupants, including expansive beach views.

The proposal

  1. [4]
    The proposal features:
    1. (i)
      four residential levels, with 2 x three-bedroom units on Levels 2 to 4 and one three-bedroom unit on Level 1 (ground level);
    2. (ii)
      ground level communal facilities, in the form of a communal wellness centre, lap pool and communal open space, together with private open space, including a pool, for the ground level unit;
    3. (iii)
      a rooftop with:
  • a lift over-run
  • four private open space areas containing pools, decks and pergola structures
    1. (iv)
      a single crossover vehicle access from Pacific Parade;
    2. (v)
      landscaping,[2] including at the rooftop, and
    3. (vi)
      a basement carpark.
  1. [5]
    The proposal would, as Mr Robinson (the architect called by the respondent) said, read as three storeys above a recessed and landscaped ground level.  It has a contemporary design.

The assessment framework

  1. [6]
    The development application was subject to impact assessment.  Such assessment:[3]
    1. (1)
      must be carried out:
      1. against the relevant assessment benchmarks;
      2. having regard to any matters prescribed by regulation; and
    2. (2)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
  2. [7]
    One of the matters prescribed by regulation is that impact assessment must be carried out having regard to, relevantly, any development approval for, and any lawful use of, adjacent premises[4] to the extent the assessment manager considers the matter is relevant to the development.[5]
  3. [8]
    There is a broad discretion, conferred by s 60(3) of the Planning Act 2016 (PA), in relation to deciding a development application that requires impact assessment.  It is for the decision maker to weigh and balance the factors to which consideration may be given.[6]  In that context, non-compliance with an assessment benchmark does not necessarily dictate the refusal of a development application.  The extent to which a flexible approach to the exercise of the discretion will prevail will turn on the facts and circumstances of each case.[7]
  4. [9]
    It is for the co-respondent to establish that this appeal ought be dismissed.[8]  The appeal is by way of hearing anew.[9]  Section 45 of the PA applies as if the Court were the assessment manager.[10]  In deciding the appeal the Court must confirm the respondents’ decision, change it, or set it aside and make a decision replacing it, or returning the matter to the entity that made the decision (here the respondent) with directions the Court considers appropriate.[11]

The issues

  1. [10]
    The agreed list of issues in the appeal, as amended[12] raise the following:
  1. whether the design, bulk, height and scale of the proposed development will have unacceptable impacts upon the character and amenity of the area. 
  2. whether the proposed development satisfies the strategic framework building height uplift provisions of City Plan;
  3. whether the absence of an (on-site) area for service vehicles, including MRVs and SRVs, is acceptable, and
  4. whether there are “relevant matters” that either support approval or refusal of the development application, and
  1. [11]
    The appellants asserted consequential non-compliance with a number of provisions of the respondents’ planning scheme (City Plan) in relation to grounds 1 and 3 and relied on provisions of proposed amendments to City Plan as one of the ‘relevant matters’.  In the course of addresses counsel for the appellants further confined the appellants’ case by narrowing the scope of the provisions which they asked the Court to consider.
  2. [12]
    Counsel for the appellants, in oral submissions, summarised the appellants’ case as being that the proposal is non-compliant in terms of height, density and site cover in particular and that those non-compliances have material impacts in terms of dominance of the built form and impact on the streetscape character and the vegetated hillscape character of Currumbin Hill.[13]

Observations about some of the appellants’ experts

  1. [13]
    Before discussing the issues it is convenient to deal with some matters concerning some of the appellants’ experts.  Adverse submissions were made, on behalf of the co-respondent, about Mr Follent (architect), Mr Butcher (visual amenity expert) and Mr Holland (traffic expert).
  2. [14]
    Mr Follent was involved not just as an expert in the appeal, but was also active at the time the development application was before the Council.  He assisted in the preparation of the ‘pro-forma’ style submissions used by many who lodged submissions.  It is, of course, not uncommon for a professional to help someone to properly formulate their submission about a development application, but in Mr Follent’s case he:
    1. (i)
      not only assisted in formulating the submissions, but disseminated them amongst the community and not only upon request, but also voluntarily;
    2. (ii)
      gave an interview to television media expressing adverse opinions about the proposal, and
    3. (iii)
      is on the executive committee of the Friends of Currumbin Inc, one of the appellants.
  3. [15]
    This calls into serious question whether, as an expert witness in the appeal, he was in a position to bring to bear the appropriate level of objectivity.  I have nevertheless considered the content of his evidence and, to his credit, he did make some reasonable concessions.
  4. [16]
    Mr Follent and Mr Butcher participated, with their counterparts, in a preliminary meeting and joint report process in order to consider appropriate viewpoints for the preparation of photomontages for analysis.  Agreement was reached.  Almost immediately thereafter both approached the appellants’ solicitors, with no notice to the other parties or their experts, to obtain montages from other viewpoints, using different focal lengths.  That was contrary to the purpose of the court ordered preliminary JER.  It was, to say the least, unfortunate.
  5. [17]
    Some criticisms were levelled at Mr Holland.  Those matters are dealt with in the course of dealing with the service vehicles issue.  They did not give me cause to doubt Mr Holland’s professional objectivity.

Service vehicles

  1. [18]
    It is convenient to deal with the dispute about on-site provision for service vehicles first.  That is because it potentially affects the layout of the proposal at ground level.  Counsel for the appellants acknowledged in oral submissions,[14] the issue can, at worst for the co-respondent, be addressed by conditions requiring the proposal to be modified to accommodate the appropriate on-site service vehicle.
  2. [19]
    City Plan includes a Transport Code (TC).  It includes:
  • a statement of purpose;
  • overall outcomes to achieve the purpose;
  • development assessment benchmarks for assessable development in the form of performance outcomes and acceptable outcomes.
  1. [20]
    The purpose of the TC is to ensure transport needs associated with the development of land are met.  The overall outcomes include, relevantly, that:
    1. (1)
      Development -
      1. ensures that onsite access and parking, manoeuvring and servicing areas are designed to result in a safe, pedestrian focussed environment and promote a high quality public realm;
      2. ensures that onsite access and parking, manoeuvring and servicing areas are designed to result in a functional and efficient site layout that minimises impacts on surrounding areas and traffic movement.
  2. [21]
    In relation to servicing, the relevant performance outcomes and acceptable outcomes are as follows:

Servicing

PO5

Development accommodates for the required design service vehicle, including waste collection vehicles to service the development

AO5

Development is designed to cater for the largest service vehicle in accordance with Table 9.4.13-9: Minimum class of service vehicle.

PO6

Development is designed to ensure:

  1. (a)
    that areas are provided for loading and unloading of service vehicles;
  2. (b)
    that loading operations are contained wholly within the site; and
  3. (c)
    that pathways from service areas to tenancies are an appropriate width to allow for pallets and trolleys to manoeuvre without conflicting with doors, gates or landscaping.

AO6.1

Development is designed to provide for the design service vehicle in accordance with Table 9.4.13-8: Service vehicle requirements.

AO6.2

Service areas are designed in accordance with AS 2890.2-2002 Parking facilities Part 2: Off-street commercial vehicle facilities.

  1. [22]
    Table 9.4.13-8 provides that, for sites of less than 1,000m², the development should accommodate the design service vehicle in accordance with Table 9.4.13-9, but a separate service bay and associated manoeuvring area are not required.  Table 9.4.13-9 provides the following in relation to the minimum class of service vehicle for multiple dwellings.

Multiple dwelling

Not applicable

Multiple dwelling if:

  1. (a)
    There are 3 dwellings or less

Not applicable

Multiple dwelling if:

  1. (a)
    an internal (private) circulation road way is proposed
  1. (b)
    a vertical built form (tower) is proposed

Standing area for an MRV on-site

  1. [23]
    The traffic engineers approached the matter on the basis that the acceptable outcome was not adopted by the proposal, because it did not provide for an on-site standing area for an MRV.[15]  That seems to have been on the basis that one defaults to the third of the above categories whenever the proposal is for more than three dwellings.  That is not necessarily correct.  The default category is the first.  It applies in circumstances where neither of the other two do.  The appellants and the respondent however, contend that the traffic engineers’ conclusion was correct, because the proposal, being for seven dwellings, although not falling within category two, does fall within category three, by reason of being a form of development described in sub-paragraph (b), namely a vertical built form (tower).
  2. [24]
    It was submitted, for the appellant, that the proposal does not fall within either of the second or third categories and therefore falls within the first, for which there is no requirement.  In that regard it was submitted that:
    1. (i)
      a proposal only falls within the third category if it has both a private circulation road, as described in sub-paragraph (a) and is of a vertical built form (tower), as described in sub-paragraph (b);
    2. (ii)
      the proposal does not have a private internal circulation road (a proposition which is uncontentious), and
    3. (iii)
      the kind of vertical built form caught by sub-paragraph (b) is a “tower”, which is not a description that could fairly be applied to the subject proposal.
  3. [25]
    The drafting of the third category is not as helpful as it could be.  Unlike the treatment of certain kinds of food and drink outlets, where the word “or” is placed between sub-paragraphs, the drafter of the TC did not insert either an “and” or an “or” or even a semi-colon between the sub-paragraphs in question.[16]  Further, the drafter has used the expression “tower” in connection with “vertical built form”, when that term has no defined meaning for the purposes of City Plan.
  4. [26]
    The ordinary meaning of a tower, when used to describe a building, is one that is high in proportion to its lateral dimensions.[17]  Unsurprisingly, it is a word that, as senior counsel for the Co-respondent pointed out in the course of oral submissions, is used a number of times elsewhere in City Plan in the context of high-rise buildings.[18]  I would not regard the proposal, which is a 4-storey building not disproportionately tall relative to its width, as being for a vertical form of development of a kind that could be described as a tower, as that term would ordinarily be understood.
  5. [27]
    It was submitted, for the respondent[19] that:
    1. (1)
      sub-paragraphs (a) and (b) are alternatives;
    2. (2)
      sub-paragraph (a) contemplates “horizontal development”, namely side-by-side development, such as townhouses, which Mr Holland said is the form of development which provides such internal private circulation roads; and
    3. (3)
      The description “vertical built form (tower)” simply distinguishes development that involves dwellings placed on top of each other (vertical built form), from the side-by-side (horizontal) built form that is caught by sub- paragraph (a).
  6. [28]
    One can, of course, position one thing (such a dwelling unit) over another without thereby creating a tower.  The drafter did not expressly confine sub-paragraph (a) or draw the distinction with sub-paragraph (b) as submitted on behalf of the respondent.  The drafter chose to use the word “tower” to describe the kind of vertical built form to which the provision applies.  The proposal would not ordinarily be thought to answer that description.  Senior counsel for the co-respondent contended that the respondent’s argument failed to confront that.  Further, it is difficult to see what work the first (default) category for multiple dwellings has to do on the approach of the appellants and the respondent.  It is unnecessary for me to express a concluded view on the matter however, because, for the reasons which follow, I am satisfied that, in any event, the proposal does not need to provide for an MRV to be acceptable in the circumstances.  The same applies in relation to a further submission, on behalf of the co-respondent, that the terms of PO6(c) suggest that the performance outcome is not directed to multiple dwellings.
  7. [29]
    The proposal does not make onsite provision for an MRV (which is 8.8 metres long), being a vehicle associated with, for example, office and furniture removal.  The use of such a vehicle for the purposes of occupants of the subject proposal would be relatively infrequent.  Mr  Healey, (the traffic engineer engaged by the respondent), estimated some 14 vehicles in a year.[20]  Mr Healey and Mr Pekol (the traffic engineer engaged by the co-respondent) expressed the view that onsite provision for an MRV ought not be required in the circumstances of this case.
  8. [30]
    In the joint report Mr Holland questioned the justification for not requiring onsite provision for an MRV and went on to say that “at the very least” onsite provision should be made for a standard SRV, which he regarded as likely to be a more regular delivery vehicle to multi-unit dwellings.  The proposal can be amended to make provision for that.  I do not regard Mr Holland’s support, at the hearing, for the provision for an MRV to be a shift of position (as was suggested on behalf of the co-respondent).  As noted, his statement in the joint report about provision for an SRV was on a “at the very least” basis and only made after he questioned the justification for not providing an MRV.
  9. [31]
    Mr Pekol pointed out that typical grocery delivery trucks (those used by the two largest grocery chains – being 6 metres long)[21] could be accommodated onsite with the present design, on the northern side of the driveway.  Only the largest of SRVs (being 6.4 metres in length)[22] would not fit on the site.  Mr  Healey did not consider that the proposal needed to make onsite provision for an SRV,[23] but considered that if provision was to be made, then it should be for a standard SRV.
  10. [32]
    The scope and gravity of this issue needs to be put into perspective.  The remaining traffic issue relates to service vehicle provision, which is but one aspect of the arrangements for dealing with vehicles associated with the proposal.  The concern, in so far as it relates to the provision for an MRV, relates to a vehicle which would only be used in relation to occupants of the proposed development relatively infrequently.  Further, Mr  Holland acknowledged in the joint report[24] that there is no safety issue.  For the reasons which are discussed later, a safety issue which he later raised in his individual report[25] is not, in my view, of significant concern.
  11. [33]
    The subject site is located in an area with significant off-street provision for parking.  Pacific Parade is a distributor road in the road hierarchy.  It is a two-lane undivided road with parallel parking on its western side and angle parking on its eastern side.  There are two on-street loading zones, each within approximately 100 metres, in either direction, from the subject site. 
  12. [34]
    In the joint report Mr Pekol questioned the need for onsite provision for an MRV, given the small increase in the number of dwellings that would result from the proposed development and the availability of on-street parking, including the loading zones.[26]  Other than expressing a preference for the provision of a standard SRV if on-site provision is to be made for delivery vans, Mr Healey expressed the following views in the joint report:[27]

“(a) The delivery demands for the proposed development are unlikely to increase significantly from that which would be generated by the existing development given that the number of dwellings is only increasing from four dwelling now to seven dwellings once developed;

  1. (b)
    the vast majority of deliveries to the development are likely to be via smaller delivery vehicles predominantly vans and SRVs for home delivery of groceries and similar goods;
  1. (c)
    the preference for parking or standing of delivery vehicles is likely to be the on-street parking spaces which exist adjacent to the site.  He notes that both Coles and Woolworths Supermarket operators discourage their delivery drivers from accessing private driveways;
  1. (d)
    on-street provision for large deliveries occurring by MRVs is entirely acceptable given that deliveries by these vehicle types is likely to be infrequent and existing loading zones can accommodate these demands, consistent with the existing situation;

…”

  1. [35]
    In so far as the comparison with the existing dwellings on the site are concerned, it was accepted, in the joint report, that the existing dwelling house site could accommodate an MRV.  Mr Pekol did not accept that the existing multiple dwelling site could “arguably” accommodate an MRV, as Mr Holland asserted in the joint report.[28]  In his individual report Mr Holland sought to show how an MRV could be accommodated, albeit that he described the situation as “tight” and showed it as involving some overhang when done in a forward direction.[29]  As Mr Pekol and Mr  Healey pointed out in their testimony however, even if one ignores the impediments of existing vegetation and a bin storage, opening the rear doors and gaining access to the rear of the truck would be a challenge.[30]
  2. [36]
    When pushed on the practicality for an MRV being accommodated on the existing multiple dwelling unit site, Mr Holland said that he thought that if an MRV could not find a parking space or a loading zone then it would be driven onto the site after the bins were removed, even though it might overhang more than he had shown.  I am however, satisfied that, for the reasons given by Mr Pekol and Mr Healey, the capacity of the existing multi-dwelling site to accommodate an MRV is more theoretical than practical.
  3. [37]
    In so far as the on-street loading zones are concerned, Mr Holland pointed out that the spaces in those zones are not always available (although during Mr Pekol’s survey at least one was available 80% of the time) and they are time-limited (to 20 minutes).  That, together with their distance from the subject site, means that they will not necessarily provide a space that is available or suitable if, for example, a unit full of furniture is being moved, such that a greater amount of time is needed.  Further, Mr Holland, in his individual report, raised, for the first time, a potential safety issue if an MRV, having been frustrated in finding a suitable space, chose to park with its “nose” into the site, but with the remainder of the vehicle completely blocking the footpath, and with its rear hanging out into the parking lane, thus requiring any pedestrians to enter further into the roadway in order to walk behind it.
  4. [38]
    The scenario which Mr Holland conjured of a driver of an MRV being presented with such a circumstance and making such an inconsiderate decision is one which, if it were to occur, would likely be very infrequent.  Further, as Mr Pekol pointed out, there are other ways to avoid or minimise the risk that the driver of the MRV will be unable to find a suitable park.  For example, an arrangement could be made for the furniture removal truck to arrive at a time of day when parking demand is typically low or the customer could, in effect, “reserve” the necessary space or spaces on the western side of the street, by parking cars in them in advance of the truck arriving.  Mr Pekol’s evidence was that some furniture companies encourage their customers to make such arrangements.  The situation is not, he pointed out, unique.[31]
  5. [39]
    In the circumstances the magnitude of the risk either of no appropriate space being able to be found or of the scenario of concern of Mr Holland is not, in my view, significant.  I do not consider that the failure to make on-site provision for an MRV would result in any significant deficiency or any significant adverse traffic or safety impact, render the proposal unacceptable or cause non-fulfilment with the purpose or relevant overall outcomes of the TO.  In that regard I prefer the evidence of Mr Pekol and Mr Healey that, in the circumstances, there is no need to make provision for an MRV on the site.
  6. [40]
    In so far as SRVs are concerned, the same on-street parking is available to accommodate them.  Further, SRVs can be accommodated in the angled spaces on the eastern side of the street.  Smaller SRVs can use the single angle parking bays although, as Mr Healey acknowledged,[32] the width of the spaces (2.5 metres) is such that a design SRV (2.3 metres wide) would require two spaces.
  7. [41]
    I accept the points made by Mr Healey in sub-paragraphs 30(a) and (c) of the joint report, extracted earlier, to the effect that the proposal will not significantly increase delivery demands and the preference for parking or standing of delivery vehicles is likely to be on-street.  I accept the evidence of Mr Healey and Mr Pekol that the proposal is acceptable.
  8. [42]
    The appellant produced two plans showing how on-site provision could be made for a design SRV if that were required.  There was some debate about which of those would be preferable/acceptable.  Given my conclusion it is unnecessary for me to resolve that debate.

Building height and the height uplift provisions

(i)  The provisions of City Plan

  1. [43]
    Building height was a key issue in the appeal, although the height of the proposal was criticised by the appellants in the context also of the proposal’s bulk, scale, form and appearance.  City Plan contains a number of provisions in relation to building height.
  2. [44]
    City Plan features a Strategic Framework as well as zone codes.  The Strategic Framework sets the “policy direction” for City Plan and is its “major element”.[33]  It provides that the Gold Coast’s city shape is made up of an Urban Area comprising a number of places and a Non-Urban Area comprising a number of other places.  The subject site is within the Urban Neighbourhoods,[34] which are within the Urban Area.  The Strategic Framework goes on to provide specific outcomes for all Urban Neighbourhoods.  Those specific outcomes include the “height uplift” provisions referred to later.
  3. [45]
    The subject site also falls within the Medium Density Residential zone.  Accordingly, the Medium Density Residential Zone Code (the MDRZC) is relevant.  It contains a statement of purpose, to be achieved through overall outcomes.  It then provides “specific benchmarks for assessment” in the form of performance outcomes and acceptable outcomes.
  4. [46]
    The purpose of the MDRZC is as follows:

“The purpose of the Medium Density Residential Zone 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.”

The proposed development, being a multiple dwelling, is of a nature that is appropriate within the zone.

  1. [47]
    The overall outcomes include the following, in relation to building height:

“(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. (iv)
    whether intended outcomes for building form/city form and desirable building height patterns are negatively impacted, including the likelihood of undesirable local development patterns to arise if the cumulative effects of the development are considered.
  1. (v)
    retention of important elements of neighbourhood character and amenity, and cultural heritage.

…

  1. (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;

… .”

  1. [48]
    The performance outcomes and acceptable outcomes for assessable development include the following in relation to height:

PO3

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

OR

…

AO3

No acceptable outcome provided.

  1. [49]
    As with other sites on the western side of Pacific Parade, the subject site is within a “3-storey (15 metre)” designated area on the relevant Building height overlay map (BHOM).
  2. [50]
    It would appear, on the face of those provisions read in isolation, that to be compliant with City Plan in relation to building height, development on the subject site would have to not exceed 3 storeys or 15 metres in height.  The provisions of the MDRZC must however, be read subject to the provisions of the Strategic Framework.  In that regard:
    1. (1)
      Section 1.4(1)(b) of City Plan provides that, where there is an inconsistency between the provisions within City Plan, the Strategic Framework prevails over all other components to the extent of the inconsistency for impact assessment, and
    2. (2)
      Section 3.3.2.1(a) of the specific outcomes for the Urban Neighbourhoods in the Strategic Framework makes express provision for increases in building height up to a maximum of 50% above the BHOM, in limited circumstances in Urban Neighbourhoods.
  3. [51]
    Accordingly, consistently with the provisions of City Plan as to height, land which is:
    1. (i)
      within the Urban Neighbourhood’s designation under the Strategic Framework; and
    2. (ii)
      within the Medium Density Residential zone; and
    3. (iii)
      within a 3-storey (15 metre) designation under a BHOM;

may be developed for up to 3 storeys or 15 metres[35] or, in limited circumstances, to 4 storeys[36] or 22.5 metres.[37]  That was uncontroversial.[38]

  1. [52]
    The provision of the Strategic Framework permitting an increase of building height up to a maximum of 50% is as follows:

“(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 element 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. [53]
    It may be noted that the provision:
    1. (i)
      appears immediately after sub-section (8), which states, in part, that the BHOM shows the building height pattern and desired future appearance for local areas within urban neighbourhoods.  City Plan contemplates, by sub-section (9), that increases of up to 50% can nevertheless occur, in the limited circumstances provided for.  It might be noted that a similar uplift provision exists in the provisions of the Strategic Framework for Mixed Use Centres and Specialist Centres,[39] but the extent of the increase is not capped at 50%, or at all;
    2. (ii)
      offers a substantial incentive (increases in height up to 50%) for development that satisfies the criteria;
    3. (iii)
      provides that all criteria needs to be satisfied, and
    4. (iv)
      appears immediately before sub-section (10), which provides that building height increases above 50% are not anticipated.

(ii)  The relationship of the uplift provisions to the discretion in deciding the development application

  1. [54]
    The co-respondent’s proposal, at four storeys and 15.9 metres in height, exceeds the designation on the BHOM, but is within a 50% “uplift”.  The co-respondent contends that its proposal is compliant with City Plan as to height, because it satisfies all relevant criteria for the uplift.  In the alternative, it says that any failure to meet the criteria simply results in the proposal being non-compliant.  That is not necessarily decisive.  It was submitted that it does not remove this Court’s discretion to approve the development application and that the Court should exercise the discretion in its favour in any event. 
  2. [55]
    I accept the correctness of the co-respondent’s submission as to the availability of the discretion.  Counsel for the appellants and for the respondent also acknowledged that a failure to qualify for the “uplift” did not remove the discretion.[40]  I respectfully adopt what Williamson QC DCJ said in Bell Co Pty Ltd v Council of the City of Gold Coast & Anor[41] about the so-called “principle” from the decision in Stradbroke Island Management Organisation Inc v Redland Shire Council & Anor[42] that was decided under a now superseded and materially different statutory regime.  That is not to say that the provisions of City Plan or any non-compliance would lightly be put to one side.  Non-compliance is relevant to the exercise of discretion, but whether it is determinative is a different question.

(iii) The extent of the uplift

  1. [56]
    The uplift provision permits increases of building height “up to” a maximum of 50%.  Before descending to an examination of the criteria, it is appropriate to make some observations about the nature and extent of the “uplift” sought.  It was pointed out, for the appellants, that the maximum “uplift” is sought.  That is literally true, because:
    1. (i)
      the BHOM expresses maxima in both storeys and metres;
    2. (ii)
      for the “uplift” the lesser of the two maxima applies which, in this case, is the three storeys; and
    3. (iii)
      the 50% uplift of three storeys results in a rounded down maximum of four storeys.
  2. [57]
    The above, however, does not tell the whole story.  In that regard:
    1. (i)
      the absolute height to which a 3-storey development could occur consistently with the BHOM, with no “uplift”, is 15 metres;
    2. (ii)
      for all practical purposes, the proposed development is within that 15  metres.  Only the lift over-run, (which represents about 2% of the roof area and 1% of the site area), protrudes by only some 90 centimetres above that.  That protrusion has no material consequence;[43]
    3. (iii)
      The predominant roof line is 12.2 metres in height, or 12.8  metres to the top of the rooftop planters;
    4. (iv)
      the “uplift” is only 1 storey.
  3. [58]
    Accordingly, in substance, the difference in height, between the proposed development and one that would require no uplift to be compliant as to height is that the proposal expresses its absolute height over four storeys rather than three.[44]  There is however, nothing about that 4-storey presentation itself which has a significant adverse consequence.  The only one suggested was in relation to character  which, for the reasons given later I reject.  Otherwise, as Mr Reynolds said,[45] the 4-storey presentation has a positive effect by virtue of its articulation.

(iv)  Notional Alternative Development

  1. [59]
    There was some attempt to compare the impacts of the proposal to a notional alternative development which is identical to the subject proposal save for the removal of one storey.  Such a development would be of an absolute height which is substantially below the 15 metres up to which development may occur consistently with the BHOM.  The comparison is a false and unhelpful one.  The applicant does not have any such proposal.  As Mr Cutis said,[46] it is a speculative over-simplification of how an alternative 3-storey development might be designed and has no regard to how the design brief might be changed.  For example, even Mr  Butler, the visual amenity expert engaged by the appellants, said in the joint expert report that he would reasonably expect that a 3-storey form with an articulated roof could be higher than the notional alternative.[47]  Further, the reasonable expectation as to building height which one gets from reading the planning scheme provisions set out earlier, is not limited to a 3-storey building of the height of that hypothetical notional alternative development.

(v) Criterion (a)

  1. [60]
    The first criterion requires a reinforced local identity and sense of place.  Reinforcement requires more than just an absence of undue adverse impact.  It  connotes a strengthening.[48]  Local identity and sense of place are broad concepts not defined in City Plan. 
  2. [61]
    The legible edges that define the local area, as agreed by the architecture experts has already been noted.  The identity and sense of place of that local area are influenced by both the natural and built form elements.  That includes the following matters referred to Mr Curtis:[49]
  1. (i)
    the wide sandy beach that extends between Currumbin Point and Elephant Rock;
  1. (ii)
    the rocky landforms of Currumbin Point and Elephant Rock;
  1. (iii)
    the unique location of the surf club on the rocky projection that adjoints Elephant Rock;
  1. (iv)
    the narrow strip of open space separating the beach from Pacific Parade;
  1. (v)
    the edge of built form that extends along Pacific Parade, opposite the beach;
  1. (vi)
    the vegetated slope west of Pacific Parade and its built form;
  1. (vii)
    the visually dominant upper slope of Currumbin Hill, above Woodgee Street that, although including some development, primarily contributes to the landscape amenity of the local area.

Mr Curtis saw those aspects of the local identity as influencing the sense of place. 

  1. [62]
    In so far as the built form along Pacific Parade is concerned, Mr Curtis fairly observed that it includes:[50]
  1. (i)
    a mix of commercial, detached dwellings and multiple dwellings dating from the mid-twentieth century through to the current day that encompass an eclectic mix of vernacular and architecturally designed buildings.  These building maximise access to views to the east and are generally characterised by balconies and terraces that optimise opportunities for engagement with the sub-tropical climate;
  1. (ii)
    varied frontage setbacks and frontage treatments ranging from car parking hard stands to landscaped front yards;
  1. (iii)
    varied building heights, that although predominantly ranging between one and 4 storeys, include the prominent exceptions of the 12-storey The Rocks Resort at 828 Pacific Parade and the eight-story Nioka mixed used development at 794 Pacific Parade;
  1. (iv)
    with the notable exception of The Rocks Resort, a relevantly consistent façade width along the Pacific Parade frontage;
  1. (v)
    abrupt differences in height between some adjoining developments.
  1. [63]
    In that context, he saw the proposal as reinforcing the contribution of the edge of built form along the Pacific Parade frontage in that the proposal will:[51]
  1. (i)
    maximise access to views to the east from each apartment and have an attractive, articulated human scale appearance characterised by balconies and terraces that optimise opportunities for engagement with the sub-tropical climate;
  1. (ii)
    have a frontage setback that will include human scale architectural elements and landscaping within the setback that will provide visual interest to animate the frontage and contribute more to the amenity of the streetscape than most other existing development along Pacific Parade;
  1. (iii)
    have a height that will be consistent with the predominant existing building heights of between one and four storeys along Pacific Parade and will be significantly less than the 12-storey The Rocks Resort and the eight-storey Nioka developments that will continue to dominate the streetscape;
  1. (vi)
    although having the greater building width along the Pacific Parade frontage than some other existing developments, the bifurcation of the floor plan and the street front façade will effectively integrate the proposed development with the existing “grain” of development along Pacific Parade;
  1. [64]
    Further, it will not obstruct views to or from the more elevated areas to the west to any greater extent than could a 3-storey, 15 metre development whilst providing, on the rooftop terrace, a more attractive architectural and landscape design that will better complement the vegetated backdrop than would a metal roof.[52]  I found his evidence persuasive.
  2. [65]
    Mr Robinson correctly pointed out that the built form in Currumbin is not static.  It is evolving.  There are relatively few architecturally meritorious buildings.  Existing buildings have a limited life.  New development is occurring and will continue to occur.  Illustrations of that are to be found in the approval for a development of at least 4 storeys at 780 Pacific Parade[53] and an approval to add a third storey (with an unusually high floor to ceiling height of 6.7 metres), to the existing two-storey building adjoining the subject site to the immediate south at 796 Pacific Parade. That will bring the height of that building to 13.4 metres, being between the height of the predominant roofline of the proposal and its maximum height in absolute terms.  In his view the proposal would build on the local identity, but with a more contemporary typology.[54]
  3. [66]
    Mr Robinson does not see the proposed height as creating undue visual obstruction, given that a 3-storey building could be built to 15 metres in height.  He considers that the landscaped nature of the rooftop will reinforce the association with the green vegetated backdrop to the west and, in this way, reinforce this aspect of local identity.  He otherwise sees the height of the proposal as sitting comfortably with the predominant building heights of one to four storeys along Pacific Parade, leaving the standout eight-storey Nioka and 12-storey The Rocks Resort to maintain their dominance.[55]  His evidence sits comfortably with that of Mr Curtis and I accept it.
  4. [67]
    Mr Powell similarly saw the local identity and sense of place as affected by the natural features that provide high levels of amenity and an attractive setting for built form, the built form itself and the vegetation to the west.[56]  In so far as the built form is concerned, he observed that, with the exception of the two larger buildings (Nioka and The Rocks Resort) the built form:[57]

“…is typically well-integrated with the landscape, has a human scale, ranges in height between one and four storeys to the north of Elephant Rock and accommodates a broad mix of styles, periods, forms and colours”.

  1. [68]
    In that context Mr Powell considered the proposal would reinforce the local identity and sense of place.  He pointed out that the minor excess of 15 metres (by reason of the lift over-run) will have no material effect and that the expression of four storeys up to 15 metres will have a main roof edge at approximately 12 metres, will be consistent with the mix in the local area and will not materially or significantly obscure views of vegetation on Currumbin Hill or of the ocean and will allow the two taller buildings to continue to dominate.  I accept each of those points.
  2. [69]
    Dr McGowan expressed the opinion that the “4-storey expression” of the development achieves an adequate level of compatibility and that the proposal represents an interesting and well-considered design outcome that is responsive to the local coastal character and, by replacing the existing built form on the subject land, would make a positive contribution to local identity and sense of place.  I accept that.  Both Mr Buckley and Mr Reynolds also saw the proposal as making a positive contribution,[58] which I accept.
  3. [70]
    The experts called by the appellants expressed a different opinion.  Mr Follent saw the elements of the local area as forming an identity of a village-scale place facing the ocean embraced by a green hillside.[59]  In terms of the sense of place, he saw the scale of buildings and their various uses along Pacific Parade as engendering a sense of “village” which has retained its authenticity over time, through a slow pace of renovation and redevelopment.  He saw the variety of architectural expression and street edge environment as adding interest and contributing to a streetscape character that appears “unpretentious and welcoming”.[60]
  4. [71]
    In Mr Follent’s view, the existing character is typified by small footprint buildings, of modest bulk and scale and exhibiting visually attractive proportions and predominantly expressing angled roofs.  In that context he considered that the proposal would not reinforce local identity and sense of place because:[61]
  1. (i)
    it would be a 4-storey building with a roof deck, that would read as a fifth storey, with a flat roof, which would be incongruous to the predominant two-three storey buildings with expressed angle roofs;
  1. (ii)
    it would obstruct views of Nioka, the ocean (from Murraba Street) and towards the vegetated hillside and ridge line of Currumbin Hill.
  1. [72]
    Mr Follent also raised issues about aspects of the design relating to solar exposure, the treatment of the frontage setback and landscaping.  Those issues are discussed later and are not of significant concern.
  2. [73]
    It should be noted that whilst Mr Follent acknowledged that the characteristics of the local area “as generally described by Mr Curtis”, define the identity of the “broad area”, he considered that the broad area could be “partitioned” into different “precincts”, with that of most relevance to the proposal being delineated by Murraba Street north to The Rocks development, west to the slopes on the ridge line of Currumbin Hill and eastwards to the beach.[62]  Mr Butcher expressed a similar view,[63] before going on to make observations about that part of the area including the built form along Pacific Parade being typically one to three storeys and less prominent when viewed from areas adjacent to Pacific Parade than development to the south of Murraba Street, which has an increased number of taller buildings and lesser setbacks.
  3. [74]
    Mr Butcher expressed the view that the proposal would not reinforce local identity and sense of place as[64]:
  1. (a)
    the 4-storey expression, in addition to the visible roof elements, would not reinforce either the predominant two-three storey character of the part of the locality north of Murraba Street or indeed the predominant two to 3-storey character of Pacific Parade more generally;
  1. (b)
    the proposal would not reinforce the coastal village character, bulk, scale and form of the built form north of Murraba Street which is predominantly two to 3 storeys and narrower frontages, and
  1. (c)
    the proposal is not sensitive to and does not reinforce the visual importance of the vegetated hill slopes and ridge lines of Currumbin Hill to the west, by reason of being an unreasonable visual intrusion.
  1. [75]
    Mr Adamson similarly referred to the predominant 2 to 3-storey existing building height and the potential for the proposal to intrude into the view lines of Currumbin Hill in expressing his view that the proposal would not reinforce the local identity of sense of place.  He described Currumbin as “essentially a low-key and low-intensity coastal village”[65]  Mr Venn agreed.[66]
  2. [76]
    I do not accept that the rooftop structures or the activity on the rooftop terraces would cause the proposed development to read as five storeys.  In this respect I accept the evidence of Mr Robinson.[67]  As he pointed out, the rooftop structures are positioned centrally and to users of Pacific Parade, the foreshore and the beach, will visually recede from conscious view and, at closer quarters, sometimes disappear due to parallax.  To the casual observer the building will read as four storeys, being three storeys above a landscaped and recessed ground level.  While the rooftop will be used, it will not always be occupied and a passer-by’s awareness of it will simply be as part of the “whole movement of the environment around you”.[68]  The most perceptible “top” of the building will be the formed horizontal tapered roof slab (at 12.2  metres) topped by the rooftop planter (at 12.8 metres) and broken up by the dynamic façade recesses.
  3. [77]
    Whilst Mr McGowan did not consider that the visible elements of the rooftop would substantially increase the bulk or scale of the building (which I accept), he pointed out that the application of a more recessive colour scheme to those elements would reduce the extent to which they would be apparent.[69]  That is a sensible suggestion that can be the subject of conditions of an approval.
  4. [78]
    I do not accept that consideration should be confined to or focused on the area north of Murraba Street.  The criterion calls for a consideration of the “local” identity and sense of place.  The relevant local area extends south to the termination of the Pacific Parade esplanade.  That area is, of course, experienced by moving through it, rather than from a static viewpoint or collection of static viewpoints.  Its identity and sense of place is to be assessed as a whole.  Localised variations within a broader area might sometimes be significant.[70]  In this case however, while the area might not be entirely homogenous, I do not consider that there is a sufficient warrant to carry out the assessment on the basis that the area north of Murraba Street is a separate precinct or sub-area.[71]
  5. [79]
    I accept that the most common height of buildings along Pacific Parade, expressed in the number of storeys, is three or less, but I do not accept that means that the proposal fails the criterion.  The built form character of Currumbin is both mixed and evolving, although, in the event that proposed amendments to City Plan (discussed later) come into effect, future development would be expected to be up to 12 metres in height.  Further, and in any event, it is not necessary that in order to reinforce local identity and sense of place, the development replicate the most common height in terms of the number of storeys.   
  6. [80]
    The built form along Pacific Parade currently includes development of varying heights, including buildings expressing a number of storeys in excess of three.  The most obvious of those are Nioka and The Rocks.  Whilst City Plan does not encourage or facilitate further development to that height, there are at least four other buildings, either existing or approved, that present as having more than three storeys.[72]  That is not the most common situation, but it is a not insignificant component of the range and whilst there are differences amongst them all it is difficult to see why a further development would, by virtue of its 4- storey expression, not sit comfortably within the mix.
  7. [81]
    In the course of cross-examination, Mr Butcher was confronted with a passage from the joint report he participated in with Mr Curtis in relation to the appeal in relation to the development at 780 Pacific Parade.  He was the expert nominated by the respondent/Council in that case.  Having referred to a predominant number of buildings along Pacific Parade with a height of between two and three storeys,[73] he went on to say, in the joint report in that case:[74]

“[69] A number of the more recent developments (excluding those identified as 794 Pacific Parade “Nioka” and 828 Pacific Parade, “The Rocks Resort”) demonstrate a building height of three-four storeys which, in DB’s opinion could still be considered to be consistent with desired future appearance and character of the overall Pacific Parade built form.  DB considers that this height of development adjoining Currumbin Beach is a desired development pattern especially for a coastal suburb such as Currumbin where development is interspersed with coastal and natural landscapes.”

  1. [82]
    In relation to the 4-storey building with a flat roof at 778 Pacific Parade Mr Butcher said, in that joint report, that “it is still of a height, scale and bulk that demonstrates the desired future appearance for the local area”.[75]  He later went on to say, in the same joint report, that if the then proposal were reduced to four storeys instead of five it “would allow a continued consistency in the height of buildings in the local area, that would enhance local character”.[76]  Being confronted with this appeared to somewhat flummox Mr Butcher who ultimately conceded that the subject proposal (in this appeal) is sufficiently consistent with what he described as the desired future appearance and character of the built form.[77]
  2. [83]
    I do not accept that the proposal would obstruct views to any unreasonable or undue extent.  Views for which concern was expressed were those to the vegetated slopes and ridge lines of Currumbin Hill to the west, to the ocean from Murraba Street and (by Mr Follent) to Nioka.  In that regard:
  1. (i)
    I accept that there is significance in the vegetated backdrop to the built form of Currumbin.  That is underscored by the provisions of the Ridges and Significant Hills Protection Overlay Code (RSJOC) which is dealt with later;
  1. (ii)
    I do not accept that the ocean view from Murraba Street has any special significance.  As Mr Robinson pointed out, it is not the primary entrance to the “village” of Currumbin.  The primary access is from Pacific Parade.  Further, if one is travelling by motor vehicle, any loss of ocean view as one travels down Murraba Street would be momentary and would not materially diminish the perception of, or anticipation of, the ultimate arrival and grandeur of the ocean view as one approaches Pacific Parade;[78]
  1. (iii)
    I do not accept that the view to Nioka is of any particular significance.  Mr Robinson certainly did not think so.  Mr  Follent seemed to be the only one concerned about it.  In any event, as Mr Robinson pointed out, any obstruction would be momentary and any impact minor.[79]
  1. [84]
    In any event, the extent to which the proposal would obstruct views is not unreasonable or undue.  In that regard:
  1. (i)
    the extent to which views are affected is influenced by the building envelope, rather than the number of storeys expressed within that envelope;
  1. (ii)
    some incidental interference with views will occur with any development, even a “complying” one.  What is reasonable to expect, in terms of the extent of the building envelope that will be permitted to interfere with views, is influenced by the planning scheme provisions;
  1. (iii)
    the evidence demonstrates that the proposal will not obstruct views to a materially greater extent than a development that could be developed in compliance with the BHOM, with no uplift.  Further, for the reasons given later, the extent of the building envelope in other respects (other than the height) is not unreasonable.
  1. [85]
    There was some attempt to compare the extent of interference that the proposal would have with notional developments of a lesser absolute height than 15 metres.  I  have already rejected the relevance of the notional alternative development which removed one storey from the subject proposal.  There was some attempt to suggest that a 3-storey development would not be expected to result in development to 15  metres in height or development which is to 15 metres in height to any great extent (on the basis that such development would have a sloping, rather than flat roof).  Mr Butcher, in the joint report, spoke of a 3-storey form with an articulated roof higher than the notional alternative, but resulting in an obstruction of views “somewhere between” the proposed development and that hypothetical.  Under cross-examination however, when asked to address his mind to the way in which  a skillion roof form could be used, he acknowledged that, depending on the roof type and structure, there may be little material difference between the impact of a 3-storey development with an angled roof line and the proposal.[80]  I was left unpersuaded by attempts to assess the reasonableness of the proposal’s interference with views by reference to a building height, in metres, of anything other than that nominated in the BHOM.
  2. [86]
    I do not accept that the proposed building is unduly wide or bulky.  The development site consists of two existing lots.  Developing those lots together accommodates a single building that is larger and wider than could have been accommodated on either developed in isolation.  Most existing development along Pacific Parade is developed on single lots.  Accordingly, the proposal is wider and larger than a number of buildings which present a narrow (10 metres or less) facade to Pacific Parade.  Indeed, as Mr McGowan conceded,[81] it would be one of the larger buildings along Pacific Parade.
  3. [87]
    Amalgamation is, of course, a relatively common feature of redevelopment and it is unsurprising (and should not fall beyond the scope of reasonable expectations) that a modest amalgamation of two lots could occur (with the consequent accommodation of a wider and larger building)[82] in the context of redevelopment as it occurs in Currumbin.  In any event however:
  1. (i)
    the amalgamated site, at 785m² in area and with a 20 metre frontage, is not particularly large or wide;
  1. (ii)
    the proposed building, at 15 metres, is not particularly wide;[83] and;
  1. (iii)
    deep recesses have been employed in the design of the front and side facades, with curved baton screens and slab edges flowing into them, so as to visually “cleave” the building into four smaller building blocks.  The recess of the front façade bifurcates that façade.  Whilst one will, as Mr Curtis conceded,[84] still be able to tell that the development is a single building, these design features will break down its visual bulk and allow it to integrate with the “grain” of development along Pacific Parade.[85]  Whilst some point was sought to be made, in the course of cross-examination of Mr Curtis, that as one looks at the building on an angle, at distance, the recess in the front façade is not obvious, as he pointed out, other articulations are.[86]  The recess in the front façade is, of course, most obvious when the building is observed from a position in front of it, which, in turn, is the position from which the width of the development is otherwise most obvious, and
  1. (iv)
    the provisions of City Plan dealing with specific development parameters are dealt with later and, for the reasons given, do not cause me to conclude that the proposal is inappropriate.
  1. [88]
    I do not consider that the roof form is inappropriate or causes the development to fail this criterion.  That is a matter addressed further in dealing with criterion (c).  I have already noted the positive contribution that the landscaped nature of the rooftop would make. 
  2. [89]
    I do not accept that the proposed development would unduly dominate its setting.  I have already discussed its 4-storey presentation.  Its absolute height is, save for a minor exceedance for the lift overrun, within that specified in the BHOM.  Indeed the main roof is considerably below that.  It is also comparable to the approved extension to the neighbouring building to the immediate south.  The design features which break down its building bulk have also been discussed.  The dominant buildings are, and will continue to be, Nioka and The Rocks Resort.  The proposed building will not rival those.
  3. [90]
    Mr Robinson[87] and Mr McGowan[88] were prepared to accept, in the course of their respective cross-examinations, that the proposal is the most dominant built form in some photomontages taken from particular viewpoints and which focus on the proposal, but, as Mr Robinson pointed out, “spot images” can be deceptive,[89] because there are many other things around that the viewer would be taking in and “life’s not like that”[90] in that the proposed building would be experienced as one moves through the area.  Further, while he conceded that the building would “stand out”, it was in the sense that it will be the “newest building in a strip of old buildings that aren’t really coherent”.[91]  That will change as the built form evolves.  That does not mean it fails the criteria.  It is difficult to see why its tendency to catch the eye as a new and attractive building in the context of older ones should be taken against the proposal particularly when, in order to satisfy another of the criteria, it must achieve an excellent standard of appearance of built form.  I am satisfied the proposal will sit appropriately within the evolving built form along Pacific Parade.
  4. [91]
    The RSHOC is dealt with later, but it is not credible to suggest that a building of the proposal’s height, on the flat land fronting the esplanade of Pacific Parade, will dominate the vegetation in the context of Currumbin Hill.  I have no hesitation in accepting the witnesses called by the respondent and by the co-respondent to that effect.
  5. [92]
    For the reasons given, I do not accept the essential foundations for the opinion of the experts called by the appellants that criteria (a) is not met.  I reject their opinion and prefer the evidence of experts called by the respondent and co-respondent.  This criterion is met.

(vi) Criterion (b)

  1. [93]
    The second criterion requires a well-managed interface with, relationship to and impact on nearby development, including reasonable amenity expectations of nearby residents.  To be reasonable, expectations must, of course, take account of the planning scheme.
  2. [94]
    In so far as the immediate neighbours are concerned:
    1. (i)
      the building is of a height, in metres, that is within what City Plan allows (15 metres) and has a main roof, at the edges of the building closest to the neighbours that is significantly lower;
    2. (ii)
      the building is appropriately set back from its boundaries.  In oral submissions counsel for the appellants withdrew reliance on any setback issue, accepting the concession made by Mr Butcher,[92] that the relevant performance outcome was met;
    3. (iii)
      in the circumstances the proposal will not be unduly “overbearing”.  It will have no materially greater impact than should reasonably be expected;
    4. (iv)
      privacy is not a concern.  It is provided for by a combination of boundary fencing, complemented by landscaping at ground level and by internal blinds to upper levels.  Mr Follent was satisfied.[93]  Mr Robinson would prefer a measure which did not rely on the occupant of the unit.  He suggested an external screen.  Using a different kind of glazing is an alternative.  It is a matter that, at worst for the co-respondent, is for conditions, although counsel for the respondent foreshadowed that it would not be seeking the imposition of such a condition;[94]
    5. (v)
      shadowing was dropped by the appellants as an issue in the amended agreed list of issues;
    6. (vi)
      the building will present attractively.  The proposal has well designed facades to all sides.  It does not present an unattractive or blank façade to any of its neighbours.  Even those looking down on it from development on more elevated land to the west will be presented with a view not only of the facades of the building, but to the landscaped roof terrace that, as Mr Curtis pointed out,[95] will provide a more attractive outlook than the typical roof cladding of the neighbouring properties, and
    7. (vii)
      there was no adverse submission received from the neighbour to the immediate north or to the immediate south.
  3. [95]
    In so far as the wider “nearby development” is concerned the proposal would not, for the reasons given, be detrimental to its setting, including in relation to the streetscape and the character of the area by reason of its height, bulk or scale.  The appearance of the building and street edge is dealt with in the context of criterion (d) but, for the reasons given, both will be of an excellent standard.
  4. [96]
    Mr Butcher drew attention to the fact that some existing vegetation along the boundary of 796 Pacific Parade would be lost.  As Mr McGowan pointed out however, that vegetation is not visually significant and makes only a modest contribution to amenity.  Its replacement with a boundary fence should not be a surprising outcome.[96]
  5. [97]
    Landscaping is discussed later, but as Mr Butcher acknowledged, the existing landscaping on the site is quite scrappy[97] and the proposed landscaping will be amongst the best in Pacific Parade.[98]
  6. [98]
    Some issue was sought to be made about the boundary fencing, but fencing is not out of the ordinary.  A particular point was sought to be made about the combined effect of the boundary fence sitting atop the pool deck in the southern elevation.  As Mr Robinson pointed out however,[99] that is located up against the rear of a garage on the adjoining neighbour and so would have no detrimental effect.
  7. [99]
    In the circumstances I am well satisfied that the proposal meets the criteria.

(vii) Criterion (c)

  1. [100]
    Criterion (c) requires “a varied, ordered and interesting local skyline”.  The local skyline is influenced by more than one building.  The criterion therefore calls for an assessment of the effect of the proposal in the context of other development.  The provision requires both variety and order, in addition to interest.  In those circumstances order cannot mean uniformity.  I agree with Mr McGowan’s approach of assessing order by reference to whether there would be a harmonious arrangement.
  2. [101]
    One could perhaps take the view that the one to four-storey buildings along the flat land fronting the esplanade to Pacific Parade against the backdrop of Currumbin Hill have little to do with the “skyline”.  The case was however, conducted, and the evidence of the experts was given, on the basis that it does and I am content to assess compliance on that basis.
  3. [102]
    The appellants’ experts, in expressing the view that the proposal fails this criterion, particularly in relation to “ordered”, although not in relation to “varied”, raised many of the same arguments dealt with elsewhere in these reasons.  They include height, visual dominance, interference with views and insufficient landscaping.  For the reasons stated elsewhere, I do not accept those criticisms. 
  4. [103]
    Mr Follent went so far as to say that the proposal would create a “monolithic appearance and built form almost “joining” ‘the Nioka’ and ‘The Rocks’”.[100]  That is not a credible claim on its face.  It would appear that all that was meant was that if one were to look at an angle from a particular viewpoint with the proposal in the foreground, one would see ‘The Rocks’ in the background without seeing hilltop vegetation between the two.[101]  The proposal’s relationship to those latter buildings is better described by Mr  Curtis, as assisting to balance their visually dominant heights.[102]
  5. [104]
    Mr Follent also took issue with the adoption of a flat roof building form, which he described as “out of order” with the predominance of sloping roof forms.  There is, in fact, a variety of roof forms along Pacific Parade including low-pitched skillions, gables, hip roofs, horizontal parapets and flat roof forms.[103]  Indeed the existing two- storey building to the immediate south of the subject site has a flat roof, as does its approved third storey extension.  In the circumstances it is difficult to see why the proposal would fail to achieve a harmonious arrangement by reason of the adoption of a flat roof form.
  6. [105]
    Mr McGowan saw the proposal as achieving appropriate visual order as well as contributing to an interesting local skyline by having a scale and height that is sufficiently compatible with other existing and anticipated built form, and by adopting architectural measures that reference other built form outcomes in the locality.[104]  I accept those points.  As Mr Curtis pointed out, the landscaped nature of the roof terrace will contribute interest.[105]  I consider that Mr Robinson put it well in the following passage:[106]

“The local skyline is composed of a diverse mix of roof form types – low pitch skillions, gables, hip roofs, horizontal parapets and flat-topped roof forms.  The latter occurring on the site immediately to the south of the subject land (Houston Beachfront Apartments) and also near to the subject land at the Nioka building.  The proposal’s skyline offering with its lightly flared horizontal roof slab, softening rooftop planters and deep curved recesses, references both the flat-topped roof forms of the locality as well as the eaves and overhangs of the low-pitched gable and skillion roof forms.  The proposal’s skyline is both simple and understatedly dynamic with biophilia.  In my view it is appropriate for the locality and will bring variety, order and in particular interest to the local skyline.”

  1. [106]
    The criterion is met.

(viii) Criterion (d)

  1. [107]
    Criterion (d) requires an excellent standard of appearance of the built form and street edge.  Something is excellent if it has superior merit or is remarkably good.[107]  An excellent standard can be said to be one that is especially high.  That is not to say that perfection is required.  To take an analogy, an A-plus student may be said to have performed to an excellent standard, even though the student’s work may not have been perfect and someone else was top of the class.  The assessment of whether a proposed development achieves an excellent standard obviously involves matters of evaluative judgement upon which reasonable minds may differ.
  2. [108]
    The proposed building has been thoughtfully designed.  The various features are set out, at some length, by Mr Curtis in the joint report.[108]  Mr Robinson agreed with that description, and I accept it.  Both considered that the criterion is met.
  3. [109]
    Even Mr Follent was prepared to acknowledge positive aspects of the design.  In  particular he acknowledged that:[109]
    1. (i)
      the proposal is designed to deliver a quality building and considered piece of architecture which capitalises on its beachfront outlook and neighbourhood amenity;
    2. (ii)
      the design proposes high quality materials and finishes and has been assembled in an attractive composition of openness, clear lines, sculptured screening and façade articulation and the elegant treatment of projecting slope edges, complemented by balcony and rooftop plantings;
    3. (iii)
      in relation specifically to this criterion, the notable qualities of design that assist the proposal to contribute positively as contemporary architecture include:[110]
  • employment of a vertical, deep recess in the street façade to create an interesting composition and to provide privacy separation between the east facing apartments;
  • the long elevations to the north and south have similarly been interrupted with a recess to reduce the sense of a long building;
  • the edge of concrete slab to balconies has been “bevelled” to reduce the sense of slab “bulk”; and to give an elegance to the balcony;
  • planter boxes have been installed on the first-floor level and on the roof level which would be evident from the street;
  • outer edge planter boxes have been shown with the intent of adding greenery in specific places on the building elevations and around the perimeter of the recreation spaces on the rooftop;
  • timber-like materials are employed to balcony soffits and as batons screening of various shapes in plan and elevation.
  1. [110]
    Mr Follent however, placed some qualifications on his praise of the architectural qualities of the proposal and considered that there were design issues that remain unaddressed and “risk” rendering the proposal less than an excellent standard of appearance.[111]  In that regard:
    1. (i)
      Mr Follent’s concern about whether the balustrades to the street would be frameless and not too darkly tinted (so as not to reduce the sense of “lightness”) can be dealt with by conditions of approval;
    2. (ii)
      Mr Follent’s concern that, in the absence of passive solar mediating measures, the building presents as more of a “commercial aesthetic” could be addressed by the external screens that Mr Robinson suggested for privacy reasons, but the criticism is not one that I accept;
    3. (iii)
      Mr Follent described the colours of the proposal as “not unattractive” but as not conforming to the RSHOC.  That code is discussed later.  Colours are a matter for conditions but, for reasons given later, the colours in the RSHOC for Pacific Parade are inappropriate.  Subject to use of a more recessive colour for the rooftop structures, the proposed colours are appropriate.
  2. [111]
    Mr Butcher, in dealing with this criterion, again made reference to concerns about its 4-storey expression, a sense of “overbearing” and a domination of the streetscape.  I reject such concerns. 
  3. [112]
    Mr Butcher also took issue with the combined appearance of hard landscaping elements.  As Mr Butcher acknowledged[112] development along Pacific Parade does not have substantial landscaping.  He agreed that it could be described as minimal at best.  The reality is that the use of hard surfaces reflects the character along Pacific Parade, but, as Mr Butcher also agreed,[113] the landscaping proposed would be amongst the best in Pacific Parade.  The proposal would, I am satisfied, reflect the landscape character but improve upon the standard in Pacific Parade in a desirable way.
  4. [113]
    As Mr McGowan pointed out, consistently with what is shown in the photo montages, the proposal would present “an appealing range of materials and landscaping to provide visual interest to the street and will offer form and furniture at street level that contributes to a comfortable pedestrian environment”.[114]  Mr Powell made a similar point about the cohesive and attractive result of the combination of elements.[115]  I have no reason to doubt that the landscaping would be of high quality.[116]  As he pointed out, the proposal would represent a substantial improvement on the existing landscape interface.[117]  I accept that evidence from Mr  McGowan and Mr Powell.
  5. [114]
    For the reasons given I prefer the evidence of the witnesses called by the respondent and co-respondent and conclude that the criterion is met.

(ix) Criterion (e)

  1. [115]
    Criterion (e) simply states “housing choice and affordability”.  In Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor[118] Williamson QC DCJ observed that the absence of a qualifying verb rendered the drafting of this criterion unfortunate, but found it unnecessary to explore its meaning and outer limits due to non-compliance, in that case, with other provisions.
  2. [116]
    Choice and affordability are relative concepts.  The person who has two alternatives has choice as does a person with many more options, although the latter has greater choice.  Similarly, there are different levels or degrees of affordability.  The key to understanding this criterion is to read it in the context of what City Plan otherwise says about choice and affordability.
  3. [117]
    City Plan is a document that envisages and plans for substantial population growth.  It represents a “major shift” from development on the city’s fringe to redevelopment of urban centres and key inner-city neighbourhoods.[119]  Accordingly  it supports greater development intensity and smaller lot sizes in the city’s well-serviced and highly urbanised areas.[120]  Development intensity in the city’s urban area will generally increase.[121]
  4. [118]
    City Plan envisages that around 130,000 new dwellings will be needed, around two thirds of which will occur in the consolidation area.[122]  Currumbin falls within that area.[123]  As growth occurs there is a need to plan for all households and “this requires planning for housing that is affordable, attractive and diverse with convenient access to transport, employment, community, recreation and other services”.[124]
  5. [119]
    The strategic intent of the strategic framework goes on to say as follows in relation to planning for affordability:[125]

“Affordable living opportunities – where affordability comprises the initial and ongoing costs of housing including transport and maintenance – are a strong focus of this City Plan and will be planned for:

  1. (a)
    increasing housing choice across the city;
  1. (b)
    ensuring housing is appropriate to the context of the place, whether urban, suburban or rural, and
  1. (c)
    tailoring the city’s shape, transport systems, employment lands, community facilities, neighbourhood and homes to attain affordable lifestyles over the long term.”
  1. [120]
    Three things are of particular note.  First, affordability, as described in the introductory paragraph is a broad concept.  Secondly, it is planned for by the three things in the sub-paragraphs.  It is those things by which City Plan seeks to further affordability in that broad sense.  Thirdly one of those things is increasing housing choice.  In City Plan there is a link between choice and affordability.
  2. [121]
    The provisions of the strategic framework dealing with city shape and urban transformation states that “building height will continue to vary across the city” and “this will reinforce community identity, create a sense of place, support housing choice and affordability and reflect the city’s different places and spaces…”.  The broad profile of the city is shown in transects.  The proposal is not inconsistent with that.
  3. [122]
    That is carried forward to strategic outcome 3.3.1(5) which provides:

“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 future appearance of each local area.”

  1. [123]
    The specific outcomes for the urban neighbourhoods include the “uplift” provision in s 3.3.2.1(9).  They do so after sub-section (5) which sets a specific outcome that housing (in the urban neighbourhood) includes a mix of tenure, size and type to assist with affordability and location options and to support occupants from various social and cultural backgrounds including key workers. 
  2. [124]
    The specific outcomes for urban neighbourhood do not refer to “affordable housing”.  That form of housing is defined in City Plan to be:

“Housing that is appropriate to the needs of households with low to moderate incomes, if the members of the households will spend no more than 30% of gross income on housing costs.”

  1. [125]
    Affordable housing is the topic of s 3.3.1(4) of the strategic outcomes which provides:

“Affordable housing or entry level priced housing meets the needs of low to moderate income 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”.

Suburban neighbourhoods are said to provide options for smaller and more affordable housing options.[126]

  1. [126]
    The site falls within the Medium Density Residential Zone, the relevant code for which includes the following overall outcome:

“Housing needs

  1. (iv)
    delivery of a generous mix of housing form, sizes and affordability outcomes that meet the housing needs (including housing needs of the future) for the locality.”

What City Plan seeks, in relation to affordability for the land within the zone is a generous mix of affordability outcomes that meet housing needs for the locality.

  1. [127]
    Read in context, criterion (e) does not require the development itself to offer a mix of different kinds of accommodation.[127]  It also does not require accommodation to be affordable housing as defined.[128]  Rather it requires a proposal to support housing choice and affordability[129] as those terms are used for the purposes of City Plan.  Whether it does so should be assessed in light of what City Plan says about choice and affordability. 
  2. [128]
    The evidence of Mr Duane, which I accept, was to the following effect:
  1. (a)
    the area within which Currumbin falls is popular, close to public transport and a range of facilities;
  1. (b)
    the area is an attractive location where there is and will continue to be economic pressure for redevelopment of vacant or under-utilised land.  That pressure will drive development;
  1. (c)
    there is currently a high proportion of attached dwellings providing for singles and couples;
  1. (d)
    the proposal would increase diversity (provide choice) in that it would:
  1. (i)
    increase the number and proportion of three-bedroom units suitable for families;
  2. (ii)
    introduce a modern product into an area dominated by detached dwellings of various ages and older unit product;
  3. (iii)
    introduce a product at a price point above the existing unit product but less than if larger sized but fewer detached houses (an alternative land use in the zone) were provided;
  4. (iv)
    provide four levels;
  1. (e)
    the proposal would increase the supply of units, ideally placed to provide a very high level of amenity, in an area close to infrastructure (which the development would make more efficient use of), and amenities generally (including the beach), but where there is very limited vacant medium density zoned land;
  1. (f)
    there is a strong need for residential development, such as this, to occur.
  1. [129]
    It is unsurprising that Mr Duane[130] described the contribution of this single development as modest.  The contribution of a single development to such an objective applying to a wider area will be limited unless the uplift provisions were to be regarded as reserved for large scale development.  The modesty of the contribution of the proposal does not prevent it being judged to meet the criteria.
  2. [130]
    It is also unsurprising that Mr Duane saw the units as appealing to a more affluent buyer than the market for existing smaller, older units.  Further, one would, of course, not expect new development on the esplanade facing Currumbin Beach to be particularly inexpensive.  Neither of those matters however, dictate a conclusion that the criterion is not met.
  3. [131]
    When regard is had to the broad concept of affordability, as expressed in the strategic framework and to the way in which that is to be pursued, it seems to me that a proposal, like this, to increase density by providing more units, of a kind under-represented in the area, in a way that increases choice, at a price point above the existing older stock, but below detached housing redevelopment and on appropriately zoned land, in the Medium Density Zone in circumstances where it is consistent with the city’s shape and, for the reasons otherwise stated, appropriate to the context of the place and will make more efficient use of infrastructure, is a proposal that supports City Plan’s strategy for choice and affordability and satisfies the criterion.
  4. [132]
    It was submitted, for the appellants, that such a conclusion puts the bar for compliance too low to get the “reward” of the uplift and that it should meet the criterion in a way that “sets it apart” from other development.  I do not consider however, that the assessment of this criterion should be affected by a preconceived assumption as to how high the bar should be.  Further, the “limited circumstances” in which the “uplift” is available are the circumstances in which all criteria are met.  There is no reason to assume that each of the criteria will be equally difficult to satisfy.  I note also that the appellants complain of the modesty of the proposal’s contribution whilst being critical of its excess density.
  5. [133]
    Further submissions were heard with respect to this criterion.  On that occasion counsel for the appellants contended that the proposal fails because it simply offers “more of the same” in terms of its product and is not providing it at a location that, in truth, has the benefit of proximity to services and infrastructure.[131]  Having accepted the evidence of Mr Duane I reject that submission.
  6. [134]
    For the reasons given, I am satisfied that the criterion is satisfied.  Had I adopted the approach urged by the appellants however, and found that this criterion was not satisfied, I would nevertheless have exercised my discretion to dismiss the appeal and approve the development application.  That is not say that the “uplift” can be obtained without satisfying all of the criterion.  As has already been observed however, the failure to attract the uplift means that the development is inconsistent with City Plan in relation to height.  That is not necessarily fatal.  Whilst I acknowledge that City Plan’s provisions with respect to height are quite strong, this is a case where the proposal not only meets the other criteria for the uplift but has very significant merit.
  7. [135]
    As Mr Robinson pointed out,[132] the proposal puts forward an architecturally aspirational and high quality design which, whilst four storeys in expression, presents its perceptible bulk within the height, in metres, specified in the BOHM and represents a betterment opportunity for the community.  That is not to say that the specified height, in storeys, can lightly be ignored, but I am satisfied, in the circumstances of this case, that the four-storey expression has no adverse consequence.  The merit of the proposal is otherwise dealt with throughout these reasons.  In my view approval of it is in the public interest. 

(x) Criteria (f)

  1. [136]
    Criteria (f) requires protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s natural features.  The debate on this criterion was essentially a rehash of the arguments otherwise dealt with about the height, bulk and scale of the proposed building and the visual impact of that.  I do not consider that the proposal is problematic in those respects.  I am satisfied it meets the criterion.

(xi) Criterion (g)

  1. [137]
    This criterion requires deliberate and distinct built form contrast in locations where building heights change abruptly on the BHOM.  The proposal does not have the potential to affect any such contrast because it is not such a location.  That does not mean that the uplift is unattainable.  The provision for an “uplift” could not sensibly be interpreted as being available only where there is such an abrupt change on the BOHM.

(xii) Criterion (h)

  1. [138]
    Criterion (h) was not in issue.
  2. [139]
    For the reasons given, I find that the uplift criteria are satisfied.  The consequence of the height of the development may extend to that proposed.  I consider that it is appropriate in the circumstances under City Plan.  I also consider that the proposal does not offend overall outcomes 6.2.2.2(b)(v) or (vi).[133]

Other development parameters

(i) Setbacks

  1. [140]
    As has already been noted, the appellants ultimately abandoned this issue in light of the concession made by Mr Butcher. 

(ii) Density

  1. [141]
    Density is dealt with in PO5 of the MDRZC.  No acceptable outcome is provided.  The performance outcome relevantly requires that density not exceed that shown on a residential density overlay map which, in this instance, is one bedroom per 50m² of site area.  The proposal, at one per 37.4m² does not meet the performance outcome.
  2. [142]
    The density does not necessarily inform an assessment of the bulk of a building.  As Mr Buckley attested, “the number of bedrooms that you squeeze into the units are – is not going to affect the ultimate space that you work with”.[134]  Mr Reynolds made a similar point.[135]  Mr Adamson said that if one storey was removed from the subject proposal it would comply.[136]  If on the other hand however, a four-storey building provided one four bedroom unit per floor, it would comply.  Such hypothetical scenarios serve to illustrate the point that density is not an accurate indicator of bulk or scale.
  3. [143]
    Non-compliance with PO1 in this case has no discernible impact.[137]  It does not result in the purpose or overall outcomes of the MDRZC being offended and would not cause or contribute to me refusing the development application.

(iii) Site cover

  1. [144]
    Site cover is dealt with in both the MDRZC and the RSHPOC.  The latter is dealt with later.  This part of the reasons deals with the MDRZC provisions.
  2. [145]
    Overall Outcome 2(d)(v) provides that the built form “has varying site cover to reduce building dominance and provide areas for landscaping”.  Performance Outcome 2 provides as follows:

“Site cover:

  1. (a)
    is balanced between built form and green area for landscaped, private open space;
  1. (b)
    contributes to neighbourhood character and amenity;
  1. (c)
    promotes slender bulk form;
  1. (d)
    promotes an open, attractive and distinctive skyline; and
  1. (e)
    facilitates small, fast-moving shadows.
  1. [146]
    The relevant acceptable outcome is that site cover does not exceed a cumulative total of 50% of net site area (up to 8 storeys).
  2. [147]
    The building itself meets the 50% but the development is pushed to 51% (an excess of some 8m²) because of a booster box.  The excess is trivial.
  3. [148]
    The acceptable outcome is a way of achieving the overall and performance outcomes and the purpose of the code.[138]  That the proposal so closely approximates the acceptable outcome suggests a commensurate level of compliance with those provisions.  Mr Follent acknowledged that the exceedance by 8m² makes no material difference to compliance with the PO2.[139]  In the circumstances the site cover is, subject to a consideration of the provisions of the RSHPOC (discussed later), acceptable.

(iv) Communal open space

  1. [149]
    Communal open space is dealt with in the multiple accommodation code (MAC).  In the course of oral submissions counsel for the appellants said that the MAC and the General Development Code (GDC) do not add anything not already raised by the appellants in relation to the other codes, such that the Court need not deal with either.  On reflection I was concerned that might not have been a correct concession in relation to communal open space.  I will therefore deal with that topic even though it did not feature in the oral submissions.
  2. [150]
    Performance Outcome 10 includes the following provision raised in the agreed list of issues:

“Where the development includes five or more dwellings, communal open space is provided onsite that:

…

  1. (c)
    provides outdoor recreational areas required to service the open space needs of residents or guests of the development;
  1. (d)
    aesthetically complements buildings on the site;
  1. (e)
    enhances the attractiveness of the development;

…

  1. (h)
    creates the pleasant streetscape by establishing landscaped (incorporating ……trees where practicable) areas adjoining the frontages of the development.
  1. [151]
    Adoption of the acceptable outcomes for the proposed development would have entailed, amongst other things, providing 315m² of communal open space, at least 50% of which would have been in one outdoor parcel and 10% for deep planting.  The proposal is only for 107.4m² of communal open space.  That is not however, the end of the matter.
  2. [152]
    The experts called by the respondent and co-respondent considered that the performance outcomes were met.  In so far as the quantum of space is concerned, the adequacy of what is to be provided should be judged in light of:
    1. (i)
      the generous private open space to be provided within the development to, as Mr Follent acknowledged,[140] complement the communal open space.  In that regard the proposal features:
  • large north-east facing balconies to each dwelling;
  • a ground floor private courtyard and pool area for the ground floor dwelling;
  • a roof deck with four terraces and pools for four of the dwellings.
    1. (ii)
      the extensive recreation area (including the beach) directly opposite the site, something Ms Adamson conceded was relevant to the assessment of useable open space if one was being realistic.[141]
  1. [153]
    In the circumstances the communal open space satisfies PO10(c).
  2. [154]
    Mr Follent volunteered, in the joint report, that the attractiveness of the rooftop design enhances the development.  While the rooftop may be private, rather than communal, open space he considered that it satisfied the intent of PO10(d) and (e).[142]  He took issue with sub-paragraph (h), particularly in relation to the use of elevated (rather than deep-planted) vegetation detracting from the streetscape, although he struggled, in cross-examination to articulate the conflict that caused.[143]
  3. [155]
    Mr Butcher considered that the proposal did not meet PO10(d) or (e).  He pointed to the location of communal open space to the rear (south-west) corner of the site, out of sight of Pacific Parade and the minimal screening benefits he considered it would provide to residents to the south and west.[144]
  4. [156]
    I prefer the opinion of Mr Powell, with whom Mr McGowan agreed, that compliance is achieved here with PO10(d), (e) and (h) for the following reasons:[145]
    1. (i)
      PO10(d) – a similar design aesthetic and materials are proposed to be used to construct the communal open space, as are proposed for the building;
    2. (ii)
      PO10(e) – the proposal will aesthetically complement the building, both for future residents of the proposal (as the space contributes positively to the appeal to those residing in the proposal) and for neighbours (where positioning of the communal open space allows landscaping in deep soil to provide screening to the rear neighbour (where screen planting is presently absent or minimal between the existing uses);
    3. (iii)
      PO10(h) – as the entry to the communal open space is via a landscaped walkway which provides a clear physical connection to the street and includes mature tree planting immediately adjoining that path entry at the site frontage.
  5. [157]
    Further, Mr Powell explained, under cross-examination,[146] the appropriateness of the extent of the use of planters, rather than deep planting.  I accept his evidence.
  6. [158]
    The performance outcomes are achieved and the communal open space is acceptable.

RSHOC

  1. [159]
    The site falls within the Ridges and Significant Hills Protection – Overlay Map OMR3.  The overlay takes in most allotments in Currumbin, including those oriented to the ocean and those oriented to Currumbin Creek.[147]  That area is the subject to the RSHOC.  The purpose of that code is “to regulate development to ensure the protection, maintenance and enhancement of the natural and the scenic values of identified ridges and significant hills within the city”.  There was no issue about the purpose.  There is only one overall outcome, which is as follows:

“The landscape significance of the major ridge lines and minor ridge lines, including Burleigh Ridge and Currumbin Hill are characterised by their steep slopes and native vegetation cover, is protected by retaining and enhancing vegetation cover where possible and ensuring building designs preserve the existing natural landform and complement the vegetated hillscape character.”

  1. [160]
    Whilst most allotments in Currumbin are subject to the overlay, not all will pose an equal risk of development adversely affecting the slopes and vegetation cover of Currumbin Hill.  Development on the vegetated and elevated slope of the hill is an obvious candidate for close scrutiny.  Development down on the flat land, fronting the developed esplanade of Pacific Paradise, removed from the vegetation cover of the hillside, has relatively little potential to be of concern, particularly in relation to a proposal of only the height proposed.
  2. [161]
    As Mr Buckley attested:[148]

“While the overlay’s net has been cast quite wide, you have to acknowledge that…part of the overlay area that hugs Pacific Parade, and the lower parts of Murraba Street…and indeed the parallel roads…within the trees…that sort of have houses hanging off them, that are perched in full view really are something that is quite different to the balance of the …overlay area.”

  1. [162]
    Mr Reynolds agreed and attested that the provisions, while applicable, do not have “much traction” in the medium density zoned land of Pacific Parade, removed from the hill slope and its vegetation”[149]
  2. [163]
    I am satisfied that the proposal will not affect the steep slopes and native vegetation cover of Currumbin Hill, because it is physically separated from those things.  In context, the natural land form for which the overall outcome expresses concern is the natural landform of the hill.  The proposal will not affect that because it is on the flat land east of the hill.  The proposal, by its vegetated rooftop, will complement the vegetated hillscape character.  I am therefore satisfied that the proposal is consistent with the overall outcome.  That is sufficient, but I will also deal with performance outcomes/acceptable outcomes.
  3. [164]
    There were three performance outcomes put in issue[150], two of which have corresponding acceptable outcomes.  The first is PO1 that provides as follows:

“Site cover is controlled to:

  1. (a)
    reduce dominance of buildings and structures;
  1. (b)
    protect scenic and amenity values; and
  1. (c)
    maintain existing vegetation cover.
  1. [165]
    The relevant acceptable outcome is a site cover of 40%, which the proposal exceeds.
  2. [166]
    That the RSHPOC is concerned with Currumbin Hill is something which should be kept in mind when assessing compliance with the sub-paragraphs to PO1.  Accordingly, dominance is not so much concerned with the dominance of one building compared with its neighbour on the esplanade of Pacific Parade, but rather the dominance of buildings and structures in the context of Currumbin Hill.  The site cover of this proposal significantly reduces any dominance.  I have already rejected the allegation that the proposal is unduly dominant.
  3. [167]
    There is nothing about the exceedance of the 40% site cover in AO1 that leads, in this case, to a failure to protect scenic and amenity values including, importantly for the purposes of the RSHPOC, the scenic and amenity values of Currumbin Hill.
  4. [168]
    The site does not form part of the vegetated Currumbin Hill and does not, in any event, have vegetation of any significance.[151]
  5. [169]
    PO1 is satisfied.
  6. [170]
    PO2 requires that “building colours blend in with the natural landscape to soften the visual impact of buildings”.  The corresponding acceptable outcome is that “all buildings, structures, roofs and trims, where they are painted use the colours listed in Table 8.2.15-3 Building Colours”.  That table has some surprising inclusions such as, for Pacific Parade, bright blue, red and yellow.  Colours are ultimately a matter that can be dealt with at the conditions stage, but subject to the adoption of the suggestion of Mr McGowan, referred to earlier, that a more recessive colour be used on the rooftop structures I accept Mr Robinson’s evidence that the proposed colours are appropriate.  In the course of oral argument counsel for the appellants confined their case to seeking only the recessive colour for the rooftop.[152]  The respondent seeks the same change.[153]  PO2 is satisfied subject to the imposition of an appropriate condition.
  7. [171]
    PO3 provides that the building design:
  1. (a)
    minimises visual impact and prevents buildings from dominating the natural landscape;
  1. (b)
    is compatible with the natural characteristics of the area; and
  1. (c)
    avoids skyline intrusion.
  1. [172]
    I have already rejected any suggestion that the building would dominate the natural landscape.[154]  I accept that it is compatible with the natural characteristics of the area.  Whilst almost any development can literally break the skyline if you get close enough to it and/or look at it from a particular angle, at its height and situated on the flat land fronting the esplanade, the proposal could not sensibly be said to be a skyline intrusion in the context of Currumbin Hill.  PO3 is also satisfied.

Overdevelopment

  1. [173]
    It was submitted, on behalf of the appellants, that the proposal’s excess height, density and site cover combine to provide something which would constitute overdevelopment of the site.  I disagree.  Putting to one side the extent of “non-compliance”, which has been dealt with earlier I consider that Mr Robinson put it well in the following passage of the joint report:[155]

“… However I consider it critical to note, with regard to this proposed development, that firstly in my view these noncompliances, have not generated discernible adverse consequence on amenity, and secondly the increase in building bulk has in my view been successfully managed and offset by the sophisticated architectural manipulation of form, building recess, and materiality. Collectively these manipulations have broken the building into 4 smaller building blocks, whose ‘scale’ and ‘grain’ conforms with the Pacific Parade streetscape and lot patterning character. The manipulations of form, recess and landscaping at ground, level 1 and rooftop have also softened the effectively feathered the building bulk into both the streetscape landscape and the vegetated ridge beyond. The proposal will enhance and reinforce streetscape character and local identity. I do not view the proposal as being an overdevelopment of the land.”

The public submissions and reasonable expectations

  1. [174]
    There were 252 properly made submissions, all of which were adverse to the development application and the majority of which were from within the wider suburb of Currumbin.  63 submitters became appellants in this appeal.  The submissions were largely in the form of two pro-forma versions.  It was submitted, for the appellants, that this was evidence of a “strong level of community sentiment” which itself is testament of the divergence between what the community expects and what the development proposes.
  2. [175]
    The number of adverse submissions is not necessarily an accurate indicator of the views of the community as a whole.  Experience shows that submissions are often, at least predominantly, from those opposed to a development application.  That is unsurprising as the concerned are inherently more likely to be motivated to make a submission than the unconcerned.  The availability of pro-formas might also facilitate submissions.
  3. [176]
    That is not however, to deny the relevance of submissions.  In this case they demonstrate there is a not insignificant number of people sufficiently motivated to make a formal submission opposing the development and also a not insignificant number who have been willing to become appellants.  What ultimately matters most however, is the validity of the basis for the submitters’ concerns.  That must be considered through the prism of the relevant statutory provisions, statutory documents (particularly the planning documents) and the evidence.  The main themes of the submissions are set out in the joint report of the town planners[156] and include matters of relevance which have become issues in the appeal considered in these reasons.  In the course of dealing with the issues, I have been conscious of the fact of the submissions and I have made observations about what would be reasonable to expect in the circumstances.

The draft planning scheme amendments

  1. [177]
    There are proposed amendments to City Plan.  Although at a relatively advanced sage, those amendments have not come into force as yet.  Accordingly they have not yet reached the point where this Court could give them weight pursuant to s 45 of the PA.  The appellants asked the court to give them weight however, as a “relevant matter”.  Draft planning documents have, in some cases, been given weight under the so-called Coty principle, which was explained in Brisbane City Council v YQ Property Pty Ltd[157] as being supported by the following two public interest considerations:
  1. (a)
    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; and
  1. (b)
    a judgment should be arrived at, as far as possible, in consonance with town planning decision which have been embodied in the new planning scheme in the course of preparation.

As the Court of Appeal observed however[158] neither are inevitably determinative considerations.

  1. [178]
    The List of Agreed Issues refers to a number of provisions of the amendments.  The most significant, for present purposes, relates to the proposed reduction in building height, from three storeys and 15 metres, to 12 metres with no limit on the number of storeys.  The zoning would also change to a newly created zone, namely the low-medium density residential zone (that will apply to more than 33,000 properties across the city).  The building “uplift” provision will not be available to land in that zone.
  2. [179]
    The proposed amendments obviously do not assist the proposal, but I am not prepared to give them determinative weight against it.  The subject proposal, if approved, will not prejudice the amendments by cutting across them in any substantial way or making a decision on their adoption any more difficult.  The subject site is only one of many sites to be affected by the change.  The subject building, assuming the amendments proceed, will just be another building approved under what will then be the previous regime.  Further, the proposal, in this case, is for a building which is not dramatically out of scale with development that could reasonably be expected once the amendments have taken effect.  As has been noted, the main roof of the proposed building sits at 12.2 metres with a landscape planter taking it to 12.8 metres.  The rooftop structures above that recede and will have little impact and their impact would be further reduced by the application of a recessive colour.  That is illustrated by Figures NP22 and NP23.[159]  As Mr Powell said:[160]

“In my opinion, the visual impact of those components above 12m (refer to built form extending above the blue line at Figures NP17 to NP21) varies between minimal and negligible, as the rooftop planting screens and softens the impact of the additional height components when standing closest to the proposal (VP2, 3, 5, 8 & VP9 to VP11), and while the visibility of those components increases as the observer moves further away, the visual significance of those components in the context of the surroundings diminishes with distance (VP1, 4, 6 & 7).”

The use of a recessive colour on the rooftop is a reasonable measure that would ensure that the impact above 12 metres is minimal or negligible.

  1. [180]
    I have already found that the proposal is appropriate and will sit comfortably with its context.  I accept the evidence of Mr Robinson,[161] Dr McGowan[162] and Mr Powell[163] to the effect that it will continue to do so even once the new regime takes effect.

Relevant matters

  1. [181]
    The relevant matters relied upon by the appellants, in addition to the proposed planning scheme amendments, are that the development:
  • will create unacceptable visual amenity, privacy and traffic impacts and is not designed to maintain the expected level of residential amenity for neighbouring properties;
  • has a built form and design which is inconsistent with the character of the locality;
  • has a proposed height in metres and storeys discordant with the current and future planning intention for the land;
  • is, having regard to all of the matters in support of refusal of the development an over-development of the site, and
  • is inconsistent with the reasonable expectations of the community.

Those matters have already been discussed, and, for the reasons given, I reject each of those propositions.

  1. [182]
    The co-respondent and respondent’s relevant matters whether the development:
  • is of a high quality architectural design which will contribute positively to the existing streetscape and enhance the residential character of Pacific Parade;
  • is of an appropriate bulk, height and scale, and does not cause any unreasonable adverse impacts on the amenity of the surrounding development, and
  • achieves high-quality landscaping and open space outcomes which will ensure the amenity of residents.
  1. [183]
    Each of those issues have also been discussed and, for the reasons given, I accept each of those points.

Conclusion

  1. [184]
    For the reasons stated I am satisfied that the co-respondent has discharged its onus.  The appeal will be dismissed.  I will adjourn the proceeding to enable the parties to consider appropriate conditions of approval.

Footnotes

[1]Ex. 3.04, para 17.

[2]Ex. 7.01 pp 15-32.

[3]See s 45(5) of the Planning Act 2016.

[4]Section 31(1)(f) of the Planning Regulation 2017.

[5]Section 31(2)(a) of the Planning Regulation 2017.

[6] Abeleda v Brisbane City Council & Anor [2020] QCA 257.

[7] Smout v Brisbane City Council [2019] QPELR 684 at [54].

[8]Section 45, Planning and Environment Court Act (PECA).

[9]Section 43, PECA.

[10]Section 46(2), PECA.

[11]Section 47, PECA.

[12]Ex 8.02.

[13]T6-6.

[14]T6-6,7.

[15]Some point was sought and made abut Mr Holland’s apparent concession, in his individual report, that PO5 is satisfied, but it is clear from the content of his report that he has never been of the view that the development accommodates the required design service vehicle.

[16]See s 1.2.3 of the Planning Scheme which, amongst other things, provides that a semi-colon without more, is considered to be “and”.

[17]See Macquarie Dictionary.

[18]See Ex. 2.01 at p 34, Fig 10b, p 35, s 3.3.2.1(21), p 45, s 3.4.21.1(1), p 46, s 3.4.2.1(5), p 50, s  3.4.3.1, Ex. 9.09.

[19]Submissions effectively adopted by the appellants.

[20]T5-12.

[21]Ex. 3.02, p 35.

[22]T4-37.

[23]T5-11.

[24]Ex. 3.02, para 32.

[25]Ex. 4.03, para 12.

[26]Ex. 3.02, para 27.

[27]Ex. 3.02, para 30.

[28]Ex. 3.02, para 25(c).

[29]Ex. 4.03, para 15, 16.

[30]T4-38, T4-119, 120.

[31]T4-56, 57.

[32]T5-12.

[33]Ex. 3.01, p 15, s 3.1(1).

[34]See Strategic Framework Map 2.

[35]Whichever is the lesser.

[36]The 50% uplift is rounded down.

[37]Whichever is the lesser.

[38]T6-18.

[39]Section 3.4.4.1(5).

[40]T6-52, T6-107.

[41][2022] QPEC 32.

[42][2002] 121 LGERA 390.

[43]Example Butcher T4-17.

[44]Mr Curtis attested that a 3-storey development to 15 metres was not unrealistic, even with a flat roof design – T2-53.

[45]Ex. 3.03, para 114, T5-109.

[46]Ex. 3.04.

[47]Ex. 3.05, p 11, para 39c.

[48]See Macquarie Dictionary.

[49]Ex. 3.04, para 60.

[50]Ex. 3.04, para 60(e).

[51]Ex. 3.04, para 67(e).

[52]Ex. 3.04, para 67(d) and (f).

[53]Ex. 3.05, Fig NP7.

[54]Ex. 3.04, para 83.

[55]Ex. 3.04, paras 89, 90.

[56]Ex. 3.05, para 41.

[57]Ex. 3.05, para 41.

[58]Ex. 3.03, paras 97, 116.

[59]Ex. 3.04, para 32(m).

[60]Ex. 3.04, para 34(d).

[61]Ex. 3.04, paras 40(c) and 42.

[62]Ex. 3.04, para 30.

[63]Ex. 3.05, para 29.

[64]Ex 3.05, para 32.

[65]Ex. 3.03, para 136(a).

[66]Ex. 3.03, para 152(a).

[67]Ex. 3.04, para 91(i).

[68]Ex. 3.04, para 91(i), T2-62, 63.

[69]Ex. 3.05, para 47.

[70] Bell Co Pty Ltd v Council of City of Gold Coast & Anor (supra) at [85].

[71]I note that a confined approach was rejected in Lawrence v Gold Coast City Council & Anor [2022] QPEC 19.

[72]See Ex. 3.05, Figs NP4, NP5, NP6 and NP7.  I have not included NP9, which has been approved for an abnormally high third storey extension which arguably presents as more than four storeys.  I have also not included NP10 which arguably presents as more than three storeys by reason of the elevated basement projection.

[73]Ex. 9.07, para 67.

[74]Ex. 9.07, para 69.

[75]Ex. 9.07, para 74.

[76]Ex. 9.07, para 149.

[77]T4-21 – T4-23.

[78]Ex. 3.04, para 92(i).

[79]Ex. 3.04, para 91(vii).

[80]T4-29.

[81]T 3-79.

[82]T3-108.

[83]Ex. 3.05, para 52.

[84]Ex. T 2-43.

[85]Ex. 3.04, paras 67(e) and 151, Ex. 3.05, para 52.

[86]T2-44.

[87]T2-74.

[88]T3-78.

[89]T2-78.

[90]T2-74.

[91]T2-75.

[92]T4-27.

[93]Ex. 3.04, para 121.

[94]T6-109.

[95]Ex 3.04, para 62(h)(iii).

[96]Ex. 3.05, para 55.

[97]T3-112.

[98]T3-113.

[99]T2-76.

[100]Ex. 3.04, para 48(2).

[101]T2-72, 73.

[102]Ex. 3.04, para 74.

[103]Ex. 3.04, para 98.

[104]Ex. 3.04, para 58.

[105]Ex. 3.04, para 75.

[106]Ex. 3.04, para 98.

[107]Macquarie Dictionary.

[108]Ex. 3.04, para 62.

[109]Ex. 3.04, paras 35, 36.

[110]Ex 3.04, para 49.

[111]Ex. 3.04, para 51, 52.

[112]T3-112.

[113]T3-113.

[114]Ex. 3.05, para 59.

[115]Ex. 3.05, para 44(d).

[116]A minor dispute about the proportion of species native to the area that should be included is a matter for conditions.

[117]Ex. 3.05, para 44(d).

[118]Supra at paras 132 – 133.

[119]Ex. 2.01, s 3.2.1 at p 16.

[120]Ex. 2.01, s 3.2.1 at p 17.

[121]Ex. 2.01, p 19.

[122]Ex. 2.01, s 3.2.2 at p 18.

[123]Ex. 2.05.

[124]Ex. 2.01, s 3.2.1 at p 17.

[125]Ex. 2.01, s. 3.2.1 at p 17.

[126]Ex. 2.01, s 3.3.3.1(4), p 36.

[127]Although the fact that a proposal does offer that mix might be relevant in the particular circumstances of a case – see Lawrence v Council of the City of Gold Coast (supra).

[128] Lawrence v Council of the City of Gold Coast (supra) at [38].

[129]Or housing choice and affordability is supported.

[130]T2-88, 89.

[131]24/08/2022 p 47.

[132]Ex. 3.04, para 148.

[133]The appellants’ case was narrowed to those two sub-paragraphs of the “Design and Amenity” provisions.

[134]T5-64.

[135]T5–109.

[136]Ex. 3.03, para 143.

[137]Ex. 3.03, para 123.

[138]Ex. 2.01, s 6.1(8)(d).

[139]T3-23.

[140]Ex. 3.04, para 129.

[141]T4-109.

[142]Ex. 3.04, para 132.

[143]T3-30.

[144]Ex. 3.05, para 89.

[145]Ex. 3.05, paras 90, 94.

[146]T3-59, 60.

[147]Ex. 3.03, p 21, Fig. 8.

[148]T5-70.

[149]T5-111.

[150]Counsel for the appellants confined the case to those three in the course of oral submissions.

[151]T3-112.

[152]T6-98.

[153]T6-110.

[154]See Mr McGowan Ex. 3.05, para 83.

[155]Ex 3.04, para 160.

[156]Ex. 3.03, para 33.

[157][2020] QCA 253.

[158]Supra at [21] and [22].

[159]Ex. 3.05, p 41.

[160]Ex. 3.05, para 104(e).

[161]Ex. 3.04, paras 185-201.

[162]Ex. 3.05, para 110.

[163]Ex. 3.05, para 104.

Close

Editorial Notes

  • Published Case Name:

    McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd

  • Shortened Case Name:

    McLucas v Council of the City of Gold Coast & Marquee Flora Pty Ltd

  • MNC:

    [2022] QPEC 56

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    16 Dec 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 v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Bell Co Pty Ltd v Council of the City of Gold Coast [2022] QPEC 32
2 citations
Jump To
Cite 1 - [2022] QPEC 32
Cite 2 - [2022] QPEC 32
Brisbane City Council v Klinkert [2019] QPELR 684
2 citations
Jump To
Cite 1 - [2019] QPELR 684
Cite 2 - [2019] QPELR 684
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Matthew Lawrence v The City of Gold Coast [2022] QPEC 19
2 citations
Jump To
Cite 1 - [2022] QPEC 19
Cite 2 - [2022] QPEC 19
Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor (2002) 121 LGERA 390
2 citations
Jump To
Cite 1 - (2002) 121 LGERA 390
Cite 2 - (2002) 121 LGERA 390

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 595 citations
Dajen Investments Pty Ltd v Council of the City of Gold Coast [2023] QPEC 323 citations
Development Watch Inc. & Anor v Sunshine Coast Regional Council [2023] QPEC 243 citations
1

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