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  4. Thorogood v Council of the City of Gold Coast - [2023] QPEC 13

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Thorogood v Council of the City of Gold Coast[2023] QPEC 13

Thorogood v Council of the City of Gold Coast[2023] QPEC 13

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Thorogood v Council of the City of Gold Coast [2023] QPEC 13

PARTIES:

NEIL MICHAEL THOROGOOD

(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

SRI FIDUCIARIES 2 PTY LTD ACN 647 487 732, ATF SRI PROPERTY TRUST 2

(Co-respondent)

FILE NO/S:

160/2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

11 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8-9 May 2023

JUDGE:

Everson DCJ

ORDER:

The appeal will be dismissed upon a judgment package ordered by the Court.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of a multiple dwelling in the Medium density residential zone

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the Planning Scheme

CASES:

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

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

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147.

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

M J Batty and N A Batty for the Co-respondent

H M Stephanos for the Respondent

SOLICITORS:

MacDonnells Law for the Co-respondent

Norton Rose Fulbright Australia for the Respondent

Introduction

  1. [1]
    This is a submitter appeal against the decision of the respondent to approve a development permit for a material change of use for a Multiple dwelling (“the proposed development”) on land situated at 34 Tedder Avenue, Main Beach (“the site”).  The proposed development is a three-storey multiple dwelling with one unit per storey above a basement car park.[1]  The appellant contends that it will cause unacceptable shadow impacts to his neighbouring dwelling contrary to reasonable amenity expectations of nearby residents.

The site and the surrounding area

  1. [2]
    Pursuant to the respondent’s planning scheme (“the planning scheme”)[2] the site is in the Urban neighbourhoods area pursuant to the Strategic framework.[3]  It is located within the Medium density residential zone.[4]  Pursuant to the Building height overlay map, the site is in the “2-storey (9 metres)* may include a partial third storey subject to code assessment” area.[5]  It is noteworthy that the land on the opposite side of Tedder Avenue is in the unlimited height area pursuant to the Building height overlay map.[6]  While extremely tall multiple dwellings predominate on the eastern side of Tedder Avenue opposite the site, there is much less intensive development on the western side of Tedder Avenue.  There are however numerous examples of buildings of three storeys or more in the vicinity of the site on the western side of Tedder Avenue.[7]
  2. [3]
    The site itself is flat with a total area of 511m² and a 15.69 metre frontage to Tedder Avenue.[8]
  3. [4]
    The appellant is the joint owner of 2/32 Tedder Avenue which is the central townhouse in a two-storey multiple dwelling adjoining the site immediately to the south and which has frontages to both Tedder Avenue and Hughes Avenue.[9]

The proposed development

  1. [5]
    While the Building height overlay map designates a two-storey multiple dwelling 9  metres in height with a partial third storey as subject to code assessment, the proposed development contemplates three storeys and a height of 13.5 metres.[10]  The building presents as a three-storey building with some rooftop elements and a minor basement protrusion above ground level.[11]  It is therefore impact assessable.

The statutory assessment framework

  1. [6]
    Pursuant to the Planning and Environment Court Act 2016 (Qld) (“PECA”), the appeal is by hearing anew,[12] and the co-respondent must establish that the appeal ought to be dismissed.[13]  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:
  1. (2)
    The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if-
  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.
  1. [7]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (Qld) (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the planning scheme.[14]  It must also be carried out having regard to any matters prescribed by regulation.  Accordingly, s 31(1)(g) of the Planning Regulation 2017 (Qld) states that I must have regard to “the common material”.  This is defined to include any properly made submissions about the development application which have not been withdrawn.[15]  In this regard, there were six properly made submissions and they all opposed the proposed development.  In addition to the submission of the appellant, another submission raised concerns about shadow impacts in circumstances where the submitters lived in the same building as the appellant.[16]  The issue was briefly mentioned by another submitter as well.[17] 
  2. [8]
    Additionally, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[18]
  3. [9]
    Pursuant s 60 of the PA, the court in determining an appeal about a development application is conferred a wide discretion. The section relevantly states:
  1. (3)
    To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide-
  1. (a)
    to approve all or part of the application; or
  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application.
  1. [10]
    In undertaking this task, the observations of Mullins JA in Abeleda & Anor v Brisbane City Council & Anor are instructive:

[42] …The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

[43] …The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application.  The weight given to each of the factors is a matter for the decision-maker in the circumstances…[19]

  1. [11]
    The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council, notably that the same principles which apply to statutory construction apply to the construction of planning documents,[20] and that such documents need to be read as a whole in a way which is practical and as intending to achieve a balance between outcomes.[21]

Relevant provisions of the planning scheme

  1. [12]
    In the Strategic framework s 3.3.2.1 permits increases in building height up to a maximum of 50% above the Building height overlay map to occur in limited circumstances in urban neighbourhoods where a number of outcomes are satisfied.  These include:
  1. (b)
    a well-managed interface with, relationship to and impact upon nearby development including the reasonable amenity expectations of nearby residents.
  1. [13]
    In terms of shadow impacts, part of the General development provisions code (“the Code”) is relevant to the determination of this appeal.  In s 9.4.4.2, the Purpose relevantly states:
  1. (1)
    The purpose of the General development provisions code is to provide a consistent approach to city wide issues and avoid duplication of regulation throughout the City Plan.
  1. (2)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    Development is designed to maintain the expected level of amenity for the area.[22]
  1. [14]
    Thereafter Performance outcome 8 specifically states:

PO8

The building is designed and located to ensure that the shadow cast by the building does not detract from a comfortable living and ground level environment and the access of adequate sunlight to private and public spaces having regard to:

  1. (a)
    the degree of containment of the shadow on the subject site at different times of the day on the summer and winter solstice and spring and autumn equinox;
  1. (b)
    the cumulative impact of the shadow and existing shadows;

…

  1. (e)
    the effect of the shadow on any other site or other building.[23]
  1. [15]
    In applying the provisions of the code identified above, s 5.3.3 of the planning scheme provides:

…

  1. (4)
    Code assessable development:

…

  1. (c)
    that complies with:
  1. (i)
    the purpose and overall outcomes of the code complies with the code;
  1. (ii)
    the performance or acceptable outcomes complies with the purpose and overall outcomes of the code; …

…[24]

The issues in dispute

  1. [16]
    The issues in dispute in the appeal narrowed substantially and by the time of the hearing were very narrow in compass.  What remained for determination was:
  1. whether the proposed development (limited to only the alleged shadow impacts) satisfied the outcome in s 3.3.2.1(9)(b) quoted above;
  1. whether the proposed development complied with PO8 of the Code; and
  1. whether various relevant matters support an approval of the proposed development, focussing upon the extent to which it complied with provisions of the planning scheme and managed impacts upon amenity.[25]

Discussion

  1. [17]
    The focus of the appellant’s case was that when giving effect to the relevant provisions of the planning scheme identified above, and particularly PO8 of the Code, any infill development such as the proposed development needs to take into account the orientation of adjoining residences and, in the case of his property, needs to take into account that there will be shadowing of his main habitable areas including his only outdoor recreation space, namely his backyard.[26]  It is from this perspective that he submits that there has been non-compliance with the identified provisions of the planning scheme.
  2. [18]
    As noted above, certain submitters raised the same issues.  Further, at the hearing lay witnesses, Ms Lund, the appellant’s partner, Ms Warner and Mr Hyne, the owners of the adjoining townhouses at 32 Tedder Avenue, also raised similar concerns.  Obviously, given the context of the area, where multiple dwellings are both common and anticipated by the planning scheme, notable shadow impacts occur in the vicinity of the site.  Shadowing impacts as a consequence of future development is an issue best assessed through expert evidence and technical modelling, and I have the benefit of the evidence of three experts in this regard together with numerous shadow impact diagrams. 
  3. [19]
    Three architects gave evidence.  Mr Curtis was called on behalf of the co-respondent, Mr Richards on behalf of the respondent and Mr Bonnefin on behalf of the appellant.  Both Mr Curtis and Mr Richards relied upon shadow diagrams prepared by another architect, Mr Pope.[27]  These were prepared having regard to the parameters contemplated by PO8 of the Code.  They compared the shadow impacts of the proposed development with a code assessable development which complied with the relevant acceptable outcomes in the planning scheme.  Mr Curtis concluded:

Based on the shadow diagrams, I believe the proposed development will not result in a shadowing of the neighbouring properties that would be significantly greater than that resulting from an alternative development on the subject that was consistent with the applicable Acceptable Outcomes for building bulk and setbacks.[28]

Mr Richards also produced a diagram demonstrating increased shadowing at midday in mid-winter and at midday in equinox to demonstrate this.[29]  Mr Richards concluded that “...there is an additional impact to the neighbour to the south but this impact is relatively minor.”[30]

  1. [20]
    Despite producing his own analysis Mr Bonnefin accepted the accuracy of the shadow diagrams relied upon by Mr Curtis and Mr Richards.[31]  Mr Bonnefin adopted a different approach in his analysis.  Firstly, he only modelled the impacts on the appellant’s property.  Secondly, he modelled the proposed development compared with the proposed development less one storey and compared to the existing development on the site.  Thirdly, he modelled at various times – not just the times set out in PO8 referred to above.  More significantly however Mr Bonnefin proceeded upon a thesis that in his opinion “a reasonable solar amenity expectation should be to have 50% [180 minutes] solar exposure between the hours of 9.00am to 3.00pm to livings [sic] spaces during the Winter Solstice.”[32]  No statutory basis for this assertion is to be found in the planning scheme or elsewhere that I can discern.  As Mr Richards observed, this is not an approach “that is used in Queensland and not a provision within the City Plan”.[33]
  2. [21]
    More concerning is that Mr Bonnefin claimed that a study undertaken by him showed a 94.5% decrease in direct solar exposure to the ground level rear windows of the appellant’s property during the hours of 9.00am to 3.00pm attributable to the proposed development.[34]  Mr Bonnefin conceded that at no point in his evidence did he expose the reasoning as to how the percentage had been calculated.  The consequence was that the other experts were unable to attempt to verify the accuracy of this assertion.  Moreover, in presenting his evidence in this way, Mr Bonnefin did not comply with what has been described as a prime duty of an expert in giving opinion evidence, which is to furnish the court with the criteria enabling evaluation of the validity of the expert’s conclusion.[35]
  3. [22]
    Things did not go well for Mr Bonnefin in cross-examination.  He conceded that his shadow analysis contained mistakes.[36]  He also conceded that the shadow analysis relied upon by the other experts, the accuracy of which he did not dispute, demonstrated that with the exception of the spring equinox, residents could reasonably expect the shadow impacts from the proposed development.[37]  Therefore, according to Mr Bonnefin any unacceptable impact on amenity was confined to a very limited part of the year.  Further, he conceded that on his evidence any unacceptable amenity impact would only be for a portion of the day.[38]
  4. [23]
    In circumstances where Mr Bonnefin failed to discharge his duty as an expert to furnish the court with criteria enabling an evaluation of his conclusions, presented an analysis which involved unhelpful parameters (by not comparing a code assessable development with the proposed development) and presented inaccurate shadow diagrams, I prefer the evidence of Mr Curtis and Mr Richards to that of Mr Bonnefin.
  5. [24]
    As a consequence of the expert evidence which I accept, I am satisfied that the proposed development is designed and located to ensure that shadows cast from it will not detract from a comfortable living and ground level environment and the access to adequate sunlight to private spaces having regard to the criteria set out in PO8 of the Code.  In any event, I am satisfied that the purpose and relevant overall outcome of the Code are satisfied as the proposed development is designed to maintain the expected level of amenity for the area.
  6. [25]
    Although the focus of alleged non-compliance with s 3.3.2.1(9)(b) of the Strategic Framework was only on the rear of the appellant’s property, the expert evidence which I accept, does not establish any non-compliance even from this limited perspective.  I make this finding cognisant that I have previously found that this provision requires a broader focus.[39]
  7. [26]
    Given my factual findings above, it is unnecessary for me to consider the relevant matters put forward by the co-respondent as supporting an approval of the proposed development.

Conclusion

  1. [27]
    The co-respondent has discharged the onus of demonstrating that the appeal should, in due course, be dismissed.  I accept the evidence of Mr Curtis and Mr Richards that the relevant assessment benchmarks have been satisfied such that there will not be unacceptable amenity impacts as a consequence of the proposed development.
  2. [28]
    In order to give effect to conditions which have been negotiated by the parties in the course of the appeal, I therefore adjourn the further hearing of the appeal to allow the respondent to prepare a package of appropriate conditions.

Footnotes

[1]  Ex. 9, para 22.

[2]  Gold Coast City Plan 2016 (Version 8).

[3]  Ex. 2, para 4.

[4]  Ibid, para 5.

[5]  Ibid, para 6.

[6]  Ibid, p 166.

[7]  Ex. 5, para 35, Fig. 33.

[8]  Ibid, para 14.

[9]  Ibid, paras 20 – 22 and Figs. 11, 16 and 17, Ex. 11, p 29 and Ex. 19.

[10]  Ex. 9, para 50.

[11]  Ex. 5, para 38(i).

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

[13]  Ibid s 45(2).

[14] Planning Act 2016 (Qld) s 45(5)(a)(i).

[15] Planning Regulation 2017 (Qld), Schedule 24.

[16]  Ex. 3, pp 24 – 37.

[17]  Ibid, p 8.

[18] Planning Act 2016 (Qld) s 45(5)(b).

[19]  [2020] QCA 257.

[20]  [2014] QCA 147 at [52].

[21]  Ibid at [56].

[22]  Ex. 2, p 119.

[23]  Ibid, p 122.

[24]  Ibid, p 87.

[25]  Ex. 1.

[26]  T2-65 – T2-66.

[27]  Ex. 7.

[28]  Ex. 5, para 153.

[29]  Ibid, para 158 and Ex. 23.

[30]  Ibid, para 157.

[31]  T2-44, ll 20 – 30.

[32]  Ex. 5, para 162(b).

[33]  Ex. 17, para 10.

[34]  Ex. 5, para 162(a).

[35] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729, [59] per Heydon JA.

[36]  T2-50, ll 1 – 31.

[37]  T2-44, ll 20 – 30.

[38]  T2-45, ll 15 – 21.

[39] Lawrence v City of Gold Coast & Anor [2022] QPEC 19 at [32].

Close

Editorial Notes

  • Published Case Name:

    Thorogood v Council of the City of Gold Coast

  • Shortened Case Name:

    Thorogood v Council of the City of Gold Coast

  • MNC:

    [2023] QPEC 13

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    11 May 2023

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
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
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
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
3 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Cite 3 - [2014] QCA 147

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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