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CITE

Unreported Judgment

Palmer v Council of the City of Gold Coast[2023] QPEC 47McDonnell DCJ
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Palmer v Council of the City of Gold Coast[2023] QPEC 47

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Palmer v Council of the City of Gold Coast [2023] QPEC 47
PARTIES:	CLIVE FREDERICK PALMER (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent)
FILE NO/S:	2800/2020
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	22 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	2, 6 – 9 December 2022, 8 – 10 February 2023 with further written submissions received 13 November 2023.
JUDGE:	McDonnell DCJ
ORDER:	1. The appeal is dismissed 2. The respondent’s decision to refuse the application is confirmed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APLICATION – appeal against decision to refuse a development application for preliminary approval for material change of use and a variation request – where the land is in the Guragunbah Local Area Plan – whether the land use is consistent with the LAP Intent – whether the built form, density, character and visual amenity are appropriate – whether there is a need for the proposal – whether the proposal is compliant with assessment benchmarks – whether the proposed development can be conditioned to achieve compliance with assessment benchmarks – whether the proposal should be approved in the exercise of the discretion.
CASES:	Abeleda v Brisbane City Council [2020] QCA 257 Arora Construction Pty Ltd & Anor v Gold Coast City Council & Anor [2012] QPEC 052 Ashvan Investment Unit Trust v Brisbane City Council & Ors [2019] QPELR 793 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 258 Cox v Brisbane City Council & Anor [2022] QPEC 10 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 Hua Shang Co Pty Ltd v Brisbane City Council & Ors [1991] QPR 99 Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 Isgro v Gold Coast City Council & Anor [2003] QPELR 414 Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328 Skateway Pty Ltd v Brisbane City Council (1980) 1 APAD 417 TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 Trinity Park Investments v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2021] QCA 95 Wilhelm v Logan City Council & Ors [2021] QPELR 1321 William McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33
LEGISLATION:	Planning Act 2016 (Qld) s 31(1), s 43, s 43(7), s 45(5) Planning and Environment Court Act 2016 (Qld) s 43, s 45(1), s 46(1), Planning Regulation 2017 (Qld), s 31, sch 24.
COUNSEL:	C Hughes KC, M Batty, B Rix and L Walker for the Appellant R Litster KC and J Ware for the Respondent
SOLICITORS:	Mills Oakley for the Appellant HopgoodGanim for the Respondent

Introduction

[1]
The Appellant has appealed against the Council’s refusal of a development application on land at Gooding Drive, Merrimac on the Gold Coast.

The site and its locality

[2]
The site is in the Guragunbah Flood plain. It has frontages and access to both Gooding Drive (515m) and Boowaggan Road (780m) and has an area of 75.95 hectares. There is a lake in the northern part of the site. Worongary Creek traverses the central part of the site in a north-south direction. Water courses on the site are enclosed by riparian vegetation. These are the site’s low points. There are patches of dense vegetation around the cluster of buildings and along the Gooding Drive frontage, and a stand of dense remnant vegetation adjacent to the southern boundary. Otherwise, vegetation across the site is sporadic. While relatively flat, there is an elevated area at the northern corner, minor hummocks in the western part, and two hills along the southern boundary. The site sits between a range of land uses, including low rise residential, community facilities, and the open space flood plain to the north and south.^[1]
[3]
Over the years the site has been used for various rural activities and most recently as a function facility. It is currently improved by a cluster of buildings near the northern corner of the site and a number of ancillary buildings are dispersed across the site.^[2]
[4]
The area to the west of the site and extending to the Brisbane/Gold Coast rail corridor, predominantly comprises townhouses, dual occupancies, dwelling houses, aged care accommodation, stables, outdoor storage, and undeveloped land. To the east is Merrimac State School, Boowaggan Park, and Lakelands Golf Course. Adjoining the land is the Merrimac Sewerage Treatment Plant (STP). The STP is operated by the Council and serves this part of the Gold Coast. Future expansion of the STP is proposed. Two residential towers of 8 and 9 storeys are located within the Lakelands Golf Course site. Immediately opposite the site, to the north on Gooding Drive, is a commercial precinct including medical and dental centres, childcare facilities, a garden centre, and land owned by the Council which is designated as part of the Greenheart Parklands.
[5]
South of the site is an undeveloped parcel of land. It extends to Robina Stadium and Robina Town Centre in the south, the railway line in the west and Robina Parkway in the east. This parcel is identified in the Local Government Infrastructure Plan as a Future Trunk Park (City Recreation Park), forming part of a broader network of parklands provided by the Council known as “Greenheart Parklands”.
[6]
Robina Town Centre is located between 6 minutes (pursuant to the economists)^[3] and 8 minutes (pursuant to town planners)^[4] drive time from the site. The site is located 2 kilometres east of the Pacific Motorway interchange and the motorway, and to the east within a kilometre is Robina Parkway.
[7]
The proposed Merrimac Railway Station is to be constructed as part of the Cross River Rail project. For the purposes of considering this application I accept that the Merrimac Railway Station will proceed. The town planners observed that:-
1. the Queensland Government’s Cross River Rail project website states that the procurement process for a building contractor will commence in later 2022 with the station scheduled to open in time for the first Cross River Rail services to the Gold Coast being 2025;
2. Mr Trevilyan stated in the Traffic JER that construction of Merrimac Station is to commence in 2022. On 14 April 2022, the constructors issued a works notice to residents indicating that early investigation works were commencing in April;
3. funding commitments for the station were announced in the State Government Budget for 2022.^[5]

The proposal

[8]
The development application seeks:
1. a preliminary approval for a material change of use in accordance with the Greenheart Gardens Development Plan (V1.5) to facilitate the development of the land for predominantly Residential Activities (up to 3,000 dwellings) and associated Business Activities, Community Activities, Industrial Activities, Recreation and Environmental Activities, Tourism and Entertainment Activities, and Transport and Infrastructure Activities including up to 2,000m² gross floor area for a Neighbourhood Mixed Use Hub; and
2. a variation request to vary the effect of the Gold Coast Planning Scheme 2003 (Version 1.2)^[6].
[9]
The development application is described by reference to numerous documents.^[7] The Appellant described it as a residential community in buildings ranging from 1 to 8 storeys in height, with modest associated retail and commercial services. It proposes to deliver the development over a 20-year period.
[10]
The Council expressed concern that an extremely broad range of uses is sought to be facilitated by the application. It takes the reference to “Activities” in the application for preliminary approval to be a reference to the defined activity groups in Schedule 1.1.1 of the 2016 Planning Scheme.^[8] The Activities include each Defined Activity Group in the 2016 Planning Scheme, except “Rural Activities”, meaning that 74 uses are sought to be facilitated. The only provisos are:
1. “Residential Activities” are to be predominant and limited to 3,000 dwellings;
2. other non-residential activities are to be “associated” with the “Residential Activities”, with non-residential uses to include up to 2,000m² for a Neighbourhood Mixed Use Hub.
[11]
Council submitted that this causes there to be uncertainty as many of a broad range of uses therefore become code assessable. Thus, it said the preliminary approval seeks to facilitate future development applications being subject to code assessment in circumstances where the ultimate use cannot be identified with any precision.
[12]
The Appellant said the proposed development was not too uncertain to approve, that the material comprising the development application would not leave a reasonable person in any doubt as to what is proposed. It said that the very nature of the application, seeking preliminary approval and a variation request, means that there are no detailed designs. Rather, it is the subsequent development permits, requiring further assessment, which will contain that detail. The Appellant submitted that the proposal limits the range of uses that are code assessable (or accepted development) and limits the scale of those uses by reference to height, GFA and total dwelling numbers. Exceedance of those limits are a trigger for impact assessment.
[13]
I proceed on the basis that to the extent there is uncertainty about what is proposed it is a matter that can be resolved by the imposition of conditions, and that the proposal is for development described in the following paragraphs.
[14]
Up to 3,000 dwellings are proposed with 2,000m² supporting commercial and retail space, with the balance site comprising open space, in various forms. The town planners agreed:

“44.
The Plan of Development and associated drawings propose the following:

(a)
a cluster of urban residential development in the north-western corner of the site adjacent to Gooding Drive and Boowaggan Road;
(b)
a second cluster of urban residential development in the west of the site, adjacent to Gooding Drive and adjoining urban residential land to the south, but separated from both the road frontage and properties to the south by an open space buffer (and easements);
(c)
a third, smaller cluster of urban residential further south along the south-western side boundary;
(d)
the balance of the site to be provided as open space, which will involve rehabilitation works and pedestrian and cycle paths (including indicative connections to adjoining land and streets);
(e)
an indicative road network connecting the three pockets of urban residential development;
(f)
a neighbourhood mixed-use hub located in the western corner of the site adjacent to Gooding Drive; and
(g)
a community node within the open space.

45.
The clusters of urban residential development are proposed to be positioned on constructed pads, that involve earthworks to establish a pad level above the relevant flood levels.
46.
In total 18.2ha of land is proposed to be developed for urban purposes and 57.7ha of land is proposed to be provided as open space, including environmental rehabilitation areas, communal open space for future residential development, and publicly accessible open space….
47.
Building heights are proposed to be–1 - 2 storeys in the western corner of the site interfacing with Gooding Drive,–3 - 4 storeys along the south-western boundary and northern boundaries fronting Gooding Drive and Boowaggan Road, and stepping up to 5 – 6 storeys and then 7 – 8 storeys towards the centre of the site and adjacent to the proposed open space.
48.
A maximum of 3,000 dwellings is proposed.”^[9]

[15]
Two precincts are proposed,^[10] the Open Space Precinct and the Urban Residential Precinct. 76% of the site will be rehabilitated as open space. To accommodate the 3,000 dwellings and the mixed-use hub, 41 buildings are proposed in the 18.2ha Urban Residential Precinct in locations and at heights depicted on Map 09 – Building Footprint map and Map 04 – Building Heights map as follows:
1. 3 buildings with a height of 1 – 2 storeys;
2. 17 buildings with a height of 3 – 4 storeys;
3. 9 buildings with a height of 5 – 6 storeys; and
4. 12 buildings with a height of 7 – 8 storeys.
[16]
Map 09 - Building Footprint indicates the location of the Indicative Development Site within the Urban Residential Precinct and the Indicative Building Floorplate Location within the Development Sites. It is an acceptable outcome for site cover for assessable development in the Urban Residential Precinct that the extent of building footprints is generally in accordance with the location shown on Map 09. Map 04 - Building Heights depicts the building height in metres and storeys. Across the Urban Residential Precinct it ranges from 1 – 8 storeys. In the Open Space Precinct, a 2-storey height is proposed. A material change of use across both precincts is impact assessable if it involves building work and exceeds the height identified on Map 04. Assessable development in the Urban Residential Precinct meets the performance outcome if building height and structure height does not exceed that shown on Map 04. It is an acceptable solution for assessable development in the Urban Residential Precinct that building heights are consistent with the heights shown on Map 04.^[11]
[17]
As the site is flood prone, the proposed development involves significant cut and fill to achieve building pads.^[12] It is proposed that Worongary Creek and the areas from which the fill is to be removed, are to be rehabilitated.

What is the decision-making framework?

[18]
While the development application was lodged and decided under the Sustainable Planning Act, as the appeal was commenced on 1 October 2020, it must be determined under the Planning Act 2016 (Qld) (“PA”) and the Planning and Environment Court Act 2016 (Qld) (“PECA”). The appeal is a hearing anew.^[13] The Appellant bears the onus in the appeal.^[14] Different assessment and decision-making requirements apply to the two parts of the development application.^[15] The part of the development application seeking preliminary approval for a material change of use is to be assessed and decided in accordance with ss 45, 59 and 60 of the PA. As the development application was impact assessable, the assessment:
1. must be carried out:
  1. (i)
    against the assessment benchmarks in a categorising instrument in force at the time the development application was lodged, being, relevantly, the Council’s 2003 Planning Scheme (V1.2) (2003 Scheme); and
  2. (ii)
    having regard to the matters prescribed by regulation, relevantly, any development approval for, and any lawful use of, the premises or adjacent premises, and the common material, including the properly made submissions.
2. may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.^[16]
[19]
The 2016 Planning Scheme (currently V9) (2016 Scheme) has since come into force. The 2016 Scheme is relevant for the purposes of the determination of this appeal, both as a relevant matter reflecting the Council’s contemporary statement of planning intent pursuant to s 45(5)(b) of the PA, and as a statutory instrument entitled to weight as considered appropriate by the Court pursuant to s 45(8) of the PA. While weight may be afforded to the 2016 Scheme, the PA does not require that the application be assessed against it. The issue is the weight to be attributed to it.
[20]
Weight should be attributed to the 2016 Scheme because:
1. it is the Council’s contemporary statement of planning intent; and
2. there is a continuation of the planning outcomes sought for the site from the 2003 Scheme to the 2016 Scheme.
[21]
A broad discretion is conferred by s 60(3) PA in deciding an impact assessable application.^[17] The decision-maker is to balance the factors to which consideration may be given. The factors in favour of approval and the factors in favour of refusal have to be balanced and the weight to be attributed to each factor is a matter for the decision-maker.^[18] Non-compliance with an assessment benchmark does not necessarily dictate refusal of a development application.^[19] The PA does not alter the characterisation of a planning scheme as a reflection of the public interest. The extent to which a flexible approach to the exercise of discretion will prevail will turn on the facts and circumstances of each case, including the nature and extent of the non-compliance, if any, identified with an assessment benchmark.
[22]
The variation request is to be assessed and decided under s 61 PA. Section 61(2) provides:

“(2) When assessing the variation request, the assessment manager must consider:

the result of the assessment of that part of the development application that is not the variation request; and

the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied; and

the affect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and

any other matter prescribed by regulation.”

[23]
The discretion to decide a variation request is broad. Section 61(3) PA provides:

“The assessment manager must decide —

to approve—

all or some of the variations sought; or

different variations from those sought; or

to refuse the variation sought.”

[24]
A variation approval may only vary the effect of a local planning instrument in relation to development that is the subject of a variation approval, or that is the natural and ordinary consequence of the development that is the subject of the variation approval.^[20] I respectfully observe and adopt Williamson KC DCJ’s approach in Cox v Brisbane City Council & Anor in relation to this provision:

“Whilst the discretion conferred upon the assessment manager to decide a variation request is broadly stated, the exercise of that discretion is, in my view, constrained by s 43(7) of the Act. This provision limits the extent to which a variation approval may do one of the matters mentioned in s 43(1). In short, there must be a nexus between the variations granted by the variation approval and the ‘development’ the subject of the variation approval. Given ss 50(3), 60 and 61 of the Act, the relevant nexus is to be understood as one between the development approved by the assessment manager and the variations granted by the variation approval.” (Footnotes omitted).^[21]

[25]
If the preliminary approval is refused, the variation must be refused. For this reason, the assessment of the preliminary approval for a material change of use is undertaken first.
[26]
The development application was properly made on or about 9 June 2015.^[22] In response to the Council’s Information Request, the Appellant reduced the dwelling units proposed from 5,000 to 4,000, reduced the development footprint from 23 hectares to 19.2 hectares, and increased the open space from 52.9 hectares to 56.7 hectares. Following public notification, the Appellant changed the proposal again reducing the height, scale, and intensity in response to concerns raised in the submissions. These changes included a reduction in the maximum height from 30 storeys to 8 storeys, a reduction in the dwelling units to 3,000, a change from buildings on engineered platforms to buildings on earthwork pads, a reduction in the development footprint to 18.2 hectares and an increase in open space to 57.7 hectares.^[23] Thus, the development considered at the time of public notification was quite a different proposal to that now before the Court.
[27]
The properly made submissions are part of the common material to which the Court must have regard in undertaking its assessment.^[24] As they were not tendered during the course of the hearing,^[25] the parties provided them following the conclusion of the hearing. The 10 submissions were marked as Exhibits 2.75 – 2.34.
[28]
As the properly made submissions are limited in number, they are not strongly representative of community expectations. I have reviewed the submissions. Nine submissions opposed the development then made. One simply raised concerns. The issues raised about the then development of 4,000 homes in buildings up to 30 storeys high were:
1. existing infrastructure, including the school, was inadequate to accommodate the additional population;
2. height, scale and density, and the potential for impacts;
3. the proposal was inconsistent with the low-rise residential character of Merrimac;
4. approval would cause traffic issues;
5. redevelopment in the flood plain would alter run-off in heavy rainfall;
6. the 8,000m² GFA mixed-use neighbourhood centre was out of centre development; and
7. of odour concerns due to proximity to the Merrimac Sewerage Treatment Plant.
[29]
Some indicated that they did not oppose development on the site but considered a proposal more in keeping with their perceived character and current uses of the area to be preferable.
[30]
While regard must be had to the submissions in making this decision, they should be afforded limited weight. This is because:
1. they considered a previous iteration of the proposal which proposed a greater number of dwellings in buildings up to 30 storeys in height, and a larger centre which was different in character to the proposal before the Court. The development application has changed since the public notification process;
2. the evidence is that flooding and stormwater issues do not warrant refusal and are matters that can be addressed by the imposition of conditions; and
3. concerns about traffic, character, odour and impacts are speculative. These matters have now been considered by the experts and I have had regard to that evidence in making this decision.

Issues in dispute

[31]
Orders were made on 14 February 2023 identifying the issues remaining in dispute between the parties as the matters referred to in:
1. Exhibit 1.60 – Appellant’s written submissions;
2. Exhibit 1.61 – Respondent’s updated outline of submissions; and
3. oral submissions.
[32]
Broadly, the issues for consideration are:
1. land use;
2. built form, density and character and visual amenity;
3. transport and traffic planning;
4. odour;
5. ecology;
6. need;
7. other relevant matters; and
8. the variation request.
[33]
The Council indicated that it did not maintain that flooding, stormwater management, water quality, or acid sulphate soils are issues requiring refusal of the application.^[26] It accepted that it should be possible to achieve technical outcomes in relation to these issues, which I took to mean that these issues could be addressed by the imposition of appropriate conditions. I proceeded on the basis that these issues are not matters requiring refusal of the application and can be addressed by the imposition of conditions. As failure to manage acid sulphate soils could have significant adverse consequences,^[27] ground water monitoring and reporting in perpetuity will be essential.
[34]
While a hydraulic solution is achieved, this reflects what is required pursuant to the relevant benchmarks. The development footprint is acceptable from a flood plain function perspective. While not a basis for refusal, nor is resolution of the water issues a basis for approval. Resolution of the water issues clears the way for development in the flood plain.

The 2003 Scheme

[35]
The Gold Coast Planning Scheme 2003 (V1.2) (2003 Scheme)^[28] was in effect when the development application was properly made. For the purposes of the 2003 Scheme, the site:
1. is wholly within the Guragunbah Local Area Plan (LAP);
2. is predominantly shown as Active/Passive Recreation on LAP Map 14.7;
3. is partly shown as Tourist/Built Environment, Passive Recreation, Conservation Area and Open Space Corridor shown on LAP Map 14.7;
4. is subject to the Natural Wetland and Waterway Areas, Acid Sulphate Soils Hazard Areas, Natural Hazard (Flood) Management Areas, Conservation Strategy Plan and Scenic Tourist Routes Overlays;
5. subject to other overlays of limited relevance for the present purposes.^[29]
[36]
The structure of the 2003 Scheme is that, for land contained within a Local Area Plan, the assessment of development is guided by the provisions of the relevant Local Area Plan. The Codes sit below the LAP Place Code, with the Place Code always taking precedence over the provisions of any other code, including any Specific Development Code.^[30]
[37]
The 2003 Scheme provides, with respect to Local Area Plans, that:

“Each LAP includes specific provisions that relate to the scale, character and density of development desired for that LAP area. These provisions are intended to apply to all self, code and impact assessable development in the LAP. The provisions are presented within the LAP-specific Place Code.

…

Any impact assessable development must comply with the relevant parts of the whole Planning Scheme. Development that does not comply with an Acceptable Solution may present an alternative solution to demonstrate compliance with the relevant Performance Criteria, in order to satisfy the requirements of the Code.”^[31]

[38]
The LAP states that:

“The purpose of this Local Area Plan (LAP) is to provide detailed planning and management for the Merrimac/Carrara Floodplain, now known by its Aboriginal name, Guragunbah. This flood plain is of enormous importance to the city. Guragunbah provides the last significant largely undeveloped remnant of the Nerang River flood plain system. This LAP seeks to protect the hydraulic functions of the Guragunbah flood plain, while allowing limited residential, tourism and recreational development. There is also an opportunity to provide an extensive open space resource for the City which complements existing and future urban development.”^[32]

[39]
The relevant Desired Environmental Outcomes in the LAP are:

“3.1 The achievement of urban development that is of a scale, form and character appropriate to the immediate local area and the intended open character of the flood plain.

3.2 The optimisation of opportunities for urban development, consistent with the environmental capacity of the land and the continuing functioning of the flood plain.

3.3 The maintenance of existing significant views and enhancement of the visual quality and landscape character of the flood plain, with significant open space areas located so that they are visible from the Pacific Highway, Gold Coast City Railway and other major transport routes.^[33]

[40]
The LAP goes on to note that:

“This LAP seeks to provide for a mix of land uses, including urban residential, tourism facilities and limited local commercial uses, within an environment of predominantly open space and waterbodies. Urban development is expected to be clustered, to maximise the opportunities to provide open space areas. The LAP provides for more intensive development, where this is appropriate in the context of the future strategic development of the City, to support the key regional centre at Robina and the major new transport interchanges at Nerang and Robina Railway Stations. Guraganbah LAP Map 4.7 – Conceptual Land Use illustrates one future vision of the flood plain.”^[34]

[41]
The Guraganbah LAP Place Code seeks to maintain and enhance the open landscape character, natural features and the low population density settlement pattern of the LAP area including by seeking to:
1. ensure tourist and residential activity takes place at low densities; and
2. maintain and protect existing open space and recreation areas within the Local Plan area.^[35]
[42]
I respectfully agree with the observations of Rackemann DCJ when considering this LAP:

“One possible approach would be to exclude residential development from flood affected areas within the flood plain, but that would arguably lead to an unnecessary waste of development potential. The planning scheme does not adopt that approach. Rather, the relevant provisions (discussed below) contemplate ‘a limited mix of urban residential and tourist facilities, within a predominant environment of open space and ecologically sustainable waterways.”^[36]

The 2016 Scheme

[43]
The 2003 Scheme has been replaced by the 2016 Planning Scheme. Version 9 of that scheme is currently in force (2016 Scheme). Extracts from Version 8 are in evidence before the Court.^[37] No issue is taken by the Appellant with respect to any material differences as between Version 8 and Version 9.^[38] The Council’s submissions refer to both versions 8 and 9. Accordingly, I proceed on the basis that the Council also takes no issue.
[44]
Pursuant to the 2016 Scheme the site is:
1. within the Limited Development (Constrained Land) Zone;
2. within the area covered by Conceptual Land Use Map 10 (‘CLUM’) – Merrimac/Carrara Flood Plain – Special Management Area;
3. relevantly, subject to the Acid Sulphate Soils, Environmental Significance, Flood, and Industry, Community Infrastructure and Agricultural Land Interface Area overlays; and
4. subject to other overlays of limited relevance for the present purposes.^[39]
[45]
It is mapped within the following designations of the CLUM:-
1. Tourism – Built Development;
2. Active/Passive Recreation;
3. Open Space Corridor;
4. Pedestrian and Bike Improvement;
5. Passive Recreation;
6. Conservation Area; and
7. new roads and road improvements (in Gooding Drive).^[40]
[46]
The provisions that are in issue from the 2016 Scheme form part of a hierarchy whereby where there is inconsistency between provisions within the City Plan, the following rules apply:

relevant assessment benchmarks specified in the Regulation prevail over the City Plan to the extent of any inconsistency;

the strategic framework prevails over all other components to the extent of the inconsistency for impact assessment;

overlays prevail over all other components (other than the matters mentioned in (a) and (b) to the extent of the inconsistency;

zone codes prevail over use codes and other development codes to the extent of the inconsistency; and

provisions of Part 10 may override any of the above.^[41]

[47]
For the purposes of the Limited Development (Constrained Land) Zone Code:

Each zone code identifies the following:

the purpose of the code;

the overall outcomes that achieve the purpose of the code:

the performance outcomes that achieve the overall outcomes and the purpose of the code;

the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code;

the performance and acceptable outcomes for the precinct.^[42]

[48]
The 2016 Scheme provides:

Code assessable development:

…

that complies with:

the purpose and overall outcomes of the code complies with the code;

the performance or acceptable outcomes complies with the purpose and overall outcomes of the code; and

…

Impact assessable development:

is to be assessed against the identified assessment benchmarks in the assessment benchmarks column;

is to be assessed against any assessment benchmarks for the development identified in Part 4, Division 4, Subdivision 1 & 2 of the Regulation.^[43]

[49]
Thus, for the site, the development categories identified on the CLUM are very similar to those on LAP Map 14.7, i.e. predominantly ‘Active/passive recreation’ with a smaller area of ‘Tourism – built development’ in the norther corner.

Ecology

[50]
At present, all but about 2.5 ha of the site is open space. This proposal will cause the loss of about 15ha open space, which will be converted to built form.^[44] Driven by the need to achieve flood immunity, substantial earthworks are proposed over much of the site, significantly altering the landform and destroying existing wetlands, including the existing casuarina dominated wetland in the north-western part of the site. The site is presently significantly degraded and the wetlands highly disturbed and of low value to aquatic fauna due to current and past land management practices. It was considered that they are capable of rehabilitation. Some of the wetlands on the site will be removed and are proposed to be replaced by a much larger area of wetland.^[45]
[51]
The aquatic ecologists, Ms Conacher for the Appellant and Ms Thorburn for the Council, agreed that the net ecological benefits of the proposed restoration of wetlands outweighed the loss of wetland values, due to the significant improvement to the extent and value of functioning wetlands on the site. They confirmed that, in their opinion, “the net ecological benefits arising from the restoration of wetland habitat would meet the relevant desired environmental outcomes of the planning schemes.”^[46] Ms Thorburn agreed that her residual concerns with respect to long term maintenance^[47] of the wetlands and staging^[48] of the development could be dealt with by way of conditions.
[52]
Dr Watson, terrestrial ecologist for the Council, opined:
1. “The proposed rehabilitation across the excavated areas can provide an improved ecological outcome;”^[49] and
2. “Significant vegetation, including remnant vegetation, known koala habitat and a known sea eagle nest occur to the immediate south (as part of a ridgeline). The proposed built development is well set back from this area,”^[50] and
3. Connectivity within the site will be improved.^[51]
[53]
As to terrestrial ecology, the Council accepted^[52] having regard to the Habitat Restoration Strategy November 2022,^[53] and the evidence of Mr Moffit, (for the Appellant) that the development facilitates “rehabilitation to establish a significant net ecology benefit”,^[54] subject to three residual concerns on the part of Dr Watson. The Council accepted Dr Watson’s concerns were matters for conditions. His residual concerns require the provision of:
1. a more acceptable ecological outcome for the primary fauna linkage to the north-east across Gooding Drive and Pad 2;^[55]
2. flood-free fauna refuge;^[56] and
3. appropriate staging.^[57]
[54]
Dr Watson’s evidence was that, while terrestrial fauna movement north-south will be challenged by the absence of a flood free refuge, there was no scheme provision requiring it and that its absence does not warrant refusal. Mr Moffit accepted that the northern connection across Gooding Drive, being the secondary connection, is inadequate to provide a habitat connection to the north-east and that due to the building configuration on the other side of Gooding Drive it cannot function as a corridor.^[58] He proposed the establishment and maintenance of a 15 metre wide fully vegetated landscape strip along the Gooding Drive frontage to supplement the primary connection point.^[59] His evidence assumed that a minimum 50-metre-wide gap would be provided at the primary crossing point on Gooding Drive consistent with note 2e on Map 08 – Environment.^[60]
[55]
The terrestrial ecologists agreed:
1. the rehabilitation management plan must be defined through robust development conditions and staged so that rehabilitation commences as soon as reasonably possible after the completion of earthworks, and progressed in a timely manner to ensure ecological benefits are realised as soon as practicable;
2. rehabilitation is to be managed and if targets are not achieved, further management must be implemented; and
3. the rehabilitation area must be clearly defined and protected by an environmental covenant, with ecological integrity maintained in perpetuity.^[61]
[56]
Except in respect of the water courses and associated riparian vegetation on the ridgeline on the south-eastern boundary of the site, the proposal does not address the ecological conditions in the manner proposed by the 2003 Scheme, which emphasises the protection and restoration of the natural landforms and features, The provisions in the 2016 Scheme are similar. In particular, the proposed rehabilitation:
1. will completely re-engineer the site. Little of the natural landform will remain undisturbed;^[62]
2. is driven by the earthworks required to achieve flood immunity;
3. will not establish the pre-clear regional ecosystems that would have existed on the site;^[63] and
4. the existing casuarina dominated wetland on the north-western part of the site is not retained, due to earthworks for the proposal.^[64]
[57]
Despite these non-compliances, I am satisfied that the proposal will result in a net ecological benefit. For these reasons, I am satisfied that the remaining matters of ecological concern including staging, long term maintenance, ground water monitoring, remediation and the improvement to the northern linkage crossing Gooding Drive, and the robust rehabilitation plan are matters that can be satisfactorily addressed by the imposition of conditions.
[58]
The Appellant submitted that there were not ecological reasons that warrant refusal of the application. Rather, due to the substantial net ecological benefits for the site and surrounds, with the exception of the suboptimal connection north across Gooding Drive, that the ecological benefits speak strongly in support of the proposal.
[59]
I accept that the ecological benefits arising from the proposal is a factor which weighs in favour of the approval. However, it is simply one factor to which regard must be had in the exercise of discretion.

Air quality

[60]
The remaining air quality issue is related to the STP owned and operated by the Council, which adjoins the site to the east. It has been operating on the present site for at least 40 years. The STP has a current design capacity of approximately 190 equivalent persons (EP). It is anticipated that growth in demand for the STP will be between 1.9 and 2.8 times more by 2066, the ultimate growth horizon, being Stage 9.^[65] The site is within 1 km of the STP. Future residential built form associated with this proposal will be located approximately 400 metres from the nearest STP treatment unit.^[66]
[61]
The relevant air quality outcomes from the 2003 Scheme are:
1. Planning Objectives Soc 5.1, Soc.5.4 and Soc.5.5 support DEO Soc.5 and provide:

“Soc.5.1 to ensure that land uses that have the potential to conflict with residential amenity are adequately separated and/or buffered from residential areas.

Soc.5.4 to ensure that new residential development does not unreasonably constrain productive or community facilities or significant transport infrastructure, including extractive resource haulage routes, by locating in areas where reasonable expectations for residential amenity, cannot be met.

Soc.5.5 to ensure that new residential development in locations in proximity to community facilities or significant transport infrastructure, including major roads and railway lines, incorporates adequate design treatments to mitigate any potential amenity impacts.”^[67]

PC23 and PC24 of the LAP Plan Code and the corresponding acceptable solutions provide:

“PC23 The proposed development must take into account and seek to ameliorate any negative aspects of the existing amenity of the local area, having regard to, but not limited to the existing impact of:

(h) odour and emissions.”

“PC24 Residential development must be designed and located to promote a landscaped living environment to deliver a consistently high standard of residential amenity that complements the predominant open space and nature conservation character of the LAP.”

“AS24.1 No residential uses occur within a one kilometre radius of the Gold Coast City Council Treatment Plant, unless:

Further improvements to the treatments works eliminate the potential for unpleasant odours within this buffer area; or

It can be demonstrated that a consistently high level of residential amenity can be maintained with regard to unpleasant odours.”

“AS24.2 Residential development does not take the form of a conventional suburban estate.”^[68]

[62]
The relevant air quality outcomes from the 2016 Scheme make similar provision, including:
1. Strategic Outcome 3.8.1(13) of the Strategic Framework:

“Residential uses and other sensitive uses are located away from areas that could cause environmental harm or environmental nuisance from emissions or other impacts;”

Specific Outcome 3.8.6.1(5) from the Strategic Framework:

“Existing or planned sensitive uses do not unreasonably constrain or adversely impact on the safe and optimal operation of existing and planned strategic infrastructure sites and corridors that are important to the efficient functioning of the city or region. Strategic infrastructure sites and corridors include:

essential public services and facilities, such as water and wastewater treatment plants, major electricity infrastructure, landfill sites, emergency facilities and hospitals:”^[69]

From the Industry, Community Infrastructure and Agriculture Land Interface Area Overlay Code PO3:

“Development for residential accommodation (excluding a Dwelling house or Dual occupancy) does not increase the number of people living in an area affected by noise, dust, or odour in a Community infrastructure interface area show on the Industry, community infrastructure and agriculture land interface area overlap map.”^[70]

[63]
Mr Welchman for the Council, and Mr King for the Appellant, prepared a number of reports. The Air Quality JER (First AQ JER) addressed the issues in dispute in their area of expertise. This report contained no areas of disagreement. In the Supplementary Air Quality JER (SAQ JER) the experts addressed the extent to which they considered the matters in the First AQ JER to be reasons for refusal. This is where disagreement arose. There are no issues of public health or safety that arise from the issue of air quality. Rather, the issue is amenity.
[64]
The experts agreed:
1. to adopt the methodology and modelling of the WSP Stantec Report dated 25 May 2021 which had been commissioned by the Council and addressed odour emissions of the STP, including for Stage 9;^[71]
2. that Stage 9 normal operations and upset scenarios will represent the worst-case potential impacts of the STP.^[72] The 4 upset conditions considered in the Stantec Report are not an exhaustive list of possible circumstances in which odour emissions are likely to be higher than defined in the normal scenarios of the report.^[73] The upset conditions are an unusual but normal and necessary aspect of the operation of the STP;^[74]
3. if dispersion modelling predicts exceedance of the 5ou odour criteria, it suggests environmental nuisance is likely to occur.^[75]
[65]
The upset conditions for the STP have not been catalogued. Those considered in the Stantec report are examples; there may be others. The experts agreed modelling of Stage 9 of the STP demonstrated that:
1. under “normal operations” odour concentrations at the development do not exceed the odour criterion and that the development is suitably buffered to the STP on that basis.^[76] However, Mr King accepted that odours will be perceptible from time to time at the development under normal operating conditions,^[77] as it would be at existing residential areas to the east and west;^[78]
2. for Upset Scenarios 1 and 3 the odour criterion are exceeded at sensitive receptors at this site and existing sensitive receptors.^[79] During that time the amenity of the proposal may be unsuitable, as it would be at existing sensitive receptors.^[80] Upset Scenarios 2 and 4 are not of concern.^[81]
[66]
The experts disagreed about whether these issues are reasons for refusal. Their primary areas of disagreement are:
1. whether upset conditions should be considered in the evaluation of the reasons for refusal;^[82]
2. whether predicted occurrence of odour impacts at existing sensitive receptors due to upset conditions mitigates against upset conditions being considered reasons for refusal;
3. whether upset conditions that are predicted to cause elevated odour levels constitute non-compliance with the Environmental Authority, and therefore, upset conditions need not be considered reasons for refusal for the proposed development;
4. whether potentially elevated odour levels for 2 weeks per year (Upset Condition 1) or once in 20 years for a duration of 4 weeks (Upset Condition 3) are a significant risk to residential amenity that constitutes a reason for refusal;
5. whether future residents of this proposal are likely to provide an unreasonable constraint on the STP.^[83]
[67]
I am not persuaded that because odour from the STP is an amenity issue, not a health issue, consideration of normal operations alone is appropriate. While I consider that the limited likelihood of these scenarios occurring is a matter which reduces the weight to be given to this consideration, that is but one relevant factor. These scenarios are not an exhaustive list. The 2003 Scheme and 2016 Scheme provisions require the consideration of both the STP and the residents. They require that regard be had to the community infrastructure and whether the proposal may unreasonably constrain or adversely impact the safe and optimal operation of that infrastructure now and in the future. The significance of the infrastructure is also relevant in determining whether regard should be had to upset conditions. The STP operates 24-hours a day, 7 days-a-week and is a vital piece of community infrastructure. There was no suggestion that the STP would be shut down even in the event of a catastrophic failure of the type considered by the experts. This is a factor which may weigh in favour of having regard to upset conditions. However, for the reasons that follow it has not been necessary to determine this issue.
[68]
Undoubtedly, constraining this essential community infrastructure has the potential for significant adverse consequences for the community.
[69]
It was accepted by Mr King that the greater the number of people in the vicinity of the STP, the greater the potential for complaint. He observed that the existence of complaints does not indicate that environmental nuisance is occurring.^[84] There is no record of process failures (although it was unclear what was meant by the phrase “process failures”) occurring at the STP.^[85] The Department of Environment and Science has no record of complaints received at the STP.^[86] Council records reveal two complaints over 10 years. This limited complaint history relates to the historical operation of the STP. It provides little comfort in relation to the future operation and complaints which may be made about the STP developed to Stage 9.
[70]
The Environmental Authority for the STP relevantly imposes conditions on the operation of the STP as follows:
1. Condition 1-G1 – all reasonable and practicable measures must be taken to prevent the likelihood of environmental harm being caused;
2. Condition 1-G2 – other than is permitted by this Environmental Authority, the release of a contaminant into the environment must not occur; and
3. Condition 1-A1 – odours or airborne contaminants must not cause environmental nuisance at a sensitive place or a commercial place.^[87]
[71]
Environmental harm refers to any adverse effect or potential adverse effect, including environmental nuisances. A potential adverse effect may be temporary or permanent, and can be of any magnitude, duration or frequency.^[88]
[72]
The 2003 Scheme recognises that unreasonable constraints may be imposed on community facilities if reasonable community expectations are not met. If residents’ expectations are not met it is likely they will make complaints about the odour from the STP. Community expectations are informed by the planning scheme which, relevantly, tells residents they may expect a consistently high standard of residential amenity at this site.
[73]
Mr King opined that residents of the development are likely to be aware of the existence of the STP in forming their reasonable expectations. He proposed that future residents be given notice informing them of the existence of the STP, which would also inform their expectations.^[89] It was unclear how a condition requiring the giving of such notices would practically be implemented, managed, and enforced. However, even if this could be achieved, that the existence of the STP would inform their expectations and the need for such a condition suggests that the amenity future residents might experience at the site would not be of a consistently high standard of residential amenity as envisaged by the 2003 Scheme, contrary to PC24 of the Place Code. Further, I am satisfied that there is inadequate separation of the site from the STP which has the potential to adversely impact upon residential amenity even under normal operations. As discussed below this proposal places considerable urban development on land mapped for active/passive recreation purposes. The potential for unpleasant odours within 1 km of the STP has not been eliminated.
[74]
For these reasons, I am not satisfied that a “consistently high level of residential amenity” can be maintained consistent with the residents’ reasonable expectations. The relevant benchmarks are not met.
[75]
The air quality experts agreed that the proposal would constrain the STP with respect to its ability to comply with the Environmental Authority and its ability to treat additional sewage in the future, but that it would need to design odour abatement to meet the 5ou criterion at the existing receptors in any event.^[90] Because the proposal places sensitive receptors in closer proximity to the STP than the closest present sensitive receptors, I accept that the constraint is more significant than presently exists. This is evident from the experts’ consideration of upset conditions as they observed:

“If the Merrimac STP was upgraded to ensure that the worst upset condition was mitigated so that it did not cause exceedances of the Department of Environment and Science’s odour criterion at existing sensitive receptors, there would likely be residual exceedances at the Greenheart Gardens development. The residual exceedance would be about 18% above the criterion…a 71.8% reduction in odour emissions is required to abate odour levels at the most affected existing receptor to achieve compliance with the odour criterion. Whereas a 76.1% reduction in odour emissions is required to abate odour levels at the most affected receptor at the Greenheart Gardens development.”^[91]

[76]
The greater the number of people in the vicinity of the STP, the greater the likelihood of exposure to odour. This corresponds with an increase in the potential for people to experience nuisance and thus for the STP to be non-compliant with its environmental authority. If the STP is found to be causing environmental nuisance or environmental harm, additional plant and equipment and odour control devices may be required to address this.^[92]
[77]
While I accept that it must be assumed that the STP will operate in compliance with the conditions of approval and its environmental authority, the placement of an additional 6,000 - 7,500 people in close proximity to the STP has the potential to increase the likelihood that the operator of the STP will not be able to comply with the environmental authority. The occurrence of detectable odour is not limited to upset conditions, as acknowledged by Mr King. Further, the making of a complaint does not mean environmental harm has occurred. However, this increased number of people in proximity to the STP increases the likelihood of complaints about odour from the STP under normal operating conditions. In addition, the proposal would need to be considered a sensitive receptor for future upgrades of the STP so that future odour abatement systems would need to be designed to meet the odour criteria at the site.
[78]
For these reasons, it follows that the proposal places a constraint on the STP, including its safe and optimal operation, which is inconsistent with the benchmarks in the 2003 Scheme and the 2016 Scheme.
[79]
It is of little comfort that any adverse odour impacts experienced at this site will be experienced at existing sensitive receptors. The Court must consider the proposal before it and is presently concerned with whether the reasonable expectations for the residential amenity of the residents at this site can be met. The 2003 Scheme requires this amenity be of a consistently high standard whilst not unreasonably constraining the STP. Due to the importance of the STP to the community, these are significant considerations that weigh strongly against approval of the proposal.

Transport and traffic planning

[80]
The Council indicated that the traffic issues remaining at large are:
1. the tension between the urban designers, particularly Mr Richards, and the traffic engineers, about the proximity of the site to the proposed Merrimac Railway Station;
2. the Cheltenham Drive issues;
3. the acceptability of certain works to the relevant government department being;
  1. (i)
    the inclusion of bus stops within the site, contrary to the “decision” of the referral agency; and
  2. (ii)
    the works on the Gooding Drive roundabout.
4. accessibility.^[93]
[81]
The relevant provisions of the 2003 Scheme include:

“DEO Soc.2 The location and design of residential areas and support facilities to maximise accessibility to community facilities and places of employment, and to maximise opportunities for community interaction.”

“Soc.2.1 to facilitate an efficient urban form that offers high levels of accessibility between residential areas and Activity Centres and Activity Clusters.”

“Soc.2.2 to maximise residential densities in and around Activity Centres and Activity Clusters.”^[94]

[82]
The Council submitted in relation to the 2003 Scheme, that the proposal is inconsistent with the transport and traffic planning outcomes intended by:
1. DEO Ecol.3 and Planning Objectives Ecol.3.1 and Ecol.3.2 which seek to achieve an urban form that reduces the need to travel and minimise the length of trips and support the maximum use of public transport systems and non-motorised means of transit;
2. DEO Soc.6 and Planning Objectives Soc.6.1 and 6.3 which seeks to ensure that an accessible and affordable public transport system that efficiently connects the various parts of the city and offers choice and convenience to residents and visitors is provided;
3. the Transport Key Strategy which aims to create an urban form that reduces dependence on the private motor vehicle and increases the proportion of trips taken on public transport services;
4. TR Policy 1 which is “achieving an urban form that favours transit modes, reduces private motor car dependency.” The planning objectives to support this policy include:

“TR 1.2 to facilitate the development of a mix of residential forms, particularly medium density housing and housing for public transport dependent groups, such as the aged, in close proximity to line haul bus and rail terminals.

…

TR 1.4 to facilitate intensification of development and locations close to existing or proposed public transport services.”

TR Policy 3 and Planning Objective TR3.5 for the Transport Key Strategy which intends for new development to promote and support the use of public transport throughout the City;

the Purpose of the Car Parking, Access and Transport Integration Code, together with PC21 and PC22, which seek to integrate public transport with private development.^[95]

[83]
Ease of access and the reduction in the reliance upon private transport are common themes emerging from these provisions. Similar themes emerge from the 2016 Planning Scheme benchmarks.
[84]
The Appellant submitted that the evidence about the traffic planning and transport issues favours approval.

Proximity to the proposed Merrimac Railway Station

[85]
The traffic engineers agreed that:
1. the Merrimac Railway Station (station) is planned to commence in 2022 and expected to be fully constructed before the proposed development is complete;^[96]
2. railway stations are typically serviced by feeder buses and this is likely to occur at the station;^[97] and
3. it was appropriate that only a portion of the development proceed until the station is fully operational.^[98] Mr Trevilyan suggested a figure of 25%.^[99]
[86]
In considering this issue the traffic engineers had regard to the Department of Transport and Main Roads Public Transport Infrastructure Manual (PTIM) which indicates the reasonable walk-up catchment for a rail station is 800m and a limited walk-up catchment is 1.2km.^[100] For the bus stop the typical catchment is 400m and the limited catchment is 800m.^[101]
[87]
None of the site is within 800m of the station. While the traffic engineers agreed that the majority of the site is within 1.2km walking catchment of the station,^[102] this is not correct, as demonstrated by Mr Trevilyan’s Figure 1.^[103] Figure 1 shows that most of the western portion (pad 1) and a very small part of the eastern portion (pad 2) lie within the 1.2 km limited walk-up catchment. The balance of the buildings comprising the built form, including all of pad 3, (about half the total number of buildings in the proposal) is beyond this. This is significant.
[88]
The 1.2 km catchment is “as the crow flies” as envisaged by the PTIM. However, the PTIM recognises that the surrounding environment including terrain, land use, traffic, safety, and permeability of the area are also relevant. Mr Richards’ evidence was that, while there is a dedicated cycleway along part of the southern carriageway of Gooding Drive, the footpath is close to the carriageway and very narrow in places, and Gooding Drive has a posted speed limit of 70km per hour.^[104] These features lessen the attractiveness of the walk or cycle to the station, which in turn impacts on the accessibility of the station to the site. This is particularly relevant for the substantial portion of the site beyond the limited walk-up catchment of the station.
[89]
Only development on pad 2 is within a 400-metre walk-up radius of the bus stop on Gooding Drive. This stop is presently serviced hourly, making a very limited contribution to improving the accessibility of the station to residents. The Appellant proposed two bus stops within the site to address accessibility. These stops will not proceed as they are contrary to a condition proposed by the Department.^[105]
[90]
The Appellant relied upon recommendations for improvements to the public and active transport network as proposed in its Travel Demand Management Strategy (TDMS). The TDMS includes measures to improve the infrastructure associated with cycling or walking from the site to the station. However, implementation of these measures cannot be achieved solely by the Appellant. It places obligations on the Council and possible the state. The Council submitted that a condition seeking to bind the Council (or the State) is unlawful, and that at the least the TDMS requires utilisation of Council resources which is undesirable. The Appellant agreed that off-site works proposed under the TDMS to encourage active and public transport cannot be done without DTMR’s approval.
[91]
For the present purposes, I have assumed that the TDMS can be fully implemented. I have placed less reliance on the provision of any feeder bus services. While they are likely to eventuate once the station is operational, their frequency is unknown. Compliance with the TDMS and the operational station will improve public transport accessibility to the site. While I am satisfied that this would assist in addressing the benchmarks requiring reduced reliance upon private motor vehicles, the physical distance between the site and the station remains an issue. None of the proposed 3000 dwellings on site is within the reasonable walk-up catchment of the station. A large proportion of the proposed built form housing the future residents is outside the limited walk-up catchment of the station. The substantial portion of the proposed buildings (and thus the future population) located beyond the limited walk-up catchment to the station are not proximate to the station. Access to the station for those residents within the reasonable walk-up catchment to the bus stop is marginally improved by this access to the bus. Those residents outside even the limited walk up catchup to the station will be largely dependent upon private vehicles for access to the station. This is a compromised outcome. For these reasons, I am not satisfied the proposal site is proximate to the future station. This is a factor that does not support approval.
[92]
The Appellant submitted that the proposal is the last remaining opportunity for a medium density development of this nature to be located proximate to the station. As I am not satisfied that the proposal site is proximate to the station, I do not consider this submission further.
[93]
This concept of proximity and a walkable route of 800m is continued in the 2016 Scheme. As none of the site is within an 800m walkable route of the station the proposal does not gain support in relation to proximity from the 2016 Scheme.

Cheltenham Drive intersection issues

[94]
This issue relates to whether there is sufficient space within the existing road reserve to accommodate the proposed infrastructure upgrades in a manner consistent with the Council’s design standards. The Council maintains that the proposed upgrade to the Robina Parkway and Cheltenham Road intersection is unacceptable. The evidence is that the works can be delivered, accepting that the verges and pedestrian pathways (which are presently substandard) will remain substandard. The benchmarks refer to infrastructure being efficient and functional and attractive to pedestrians. The works proposed will not worsen the present situation, including the experience of the pedestrian, and the “geometry is same or better at the intersection with the works”.^[106] It was not suggested that pedestrian safety was compromised. As the intersection is presently compromised, and is not worsened by the proposal, this is not a factor which warrants refusal of the application. The parties agreed that these works require a separate approval from the Council. That this approval may not be granted is a risk for the Appellant.

Road upgrades to Gooding Drive, Robina Parkway and Nerang/Broadbeach Road intersection

[95]
The Appellant proposed upgrade works to the Gooding Drive State controlled intersection. The State concurrence agency response did not require an upgrade of this roundabout. For this reason, this is not a factor which warrants refusal of the application.

Accessibility

[96]
Robina is an Activity Centre. The Robina Town Centre is between 6 - 8 minutes’ drive time and Robina Railway Station is 10 minutes’ drive away. The traffic engineers wrongly assumed that the station will be an Activity Centre.^[107] This informed their views, particularly in relation to accessibility to Activity Centres. They relied upon both the existence of the station and the additional public transport services they assumed the station will attract, and implementation of the TDMS to support their view that the proposal will have high accessibility to other areas of the Gold Coast and Brisbane without reliance upon motor vehicles. The proposal is so dependent upon the proposed station that they agreed that only a portion of the proposal should proceed until the station is fully operational. Absent this station, the proposal is not well serviced or conveniently accessible to rail or high frequency bus routes. The proposal will be largely car based and so will not satisfy the benchmarks seeking to reduce the reliance upon private sector vehicles and provide for residential areas which maximise accessibility between residential areas and community facilities and places of employment and provide high levels of accessibility to Activity Centres and Activity Clusters.
[97]
As to proximity to Robina Activity Centre, both the need experts and the traffic experts referred to drive time to Robina Town Centre. This does not suggest that the proposal has a “high level” of access to Robina Town Centre. Mr Perkins, Mr Williams and Mr Richards considered the site not well located with respect to Robina Activity Centre and considered access was most likely by private vehicle. The bus route is not really direct.^[108] Any future access through Greenheart Parklands is likely to be in the nature of a recreation route rather than an active transport route.^[109] Even with the station in operation, and the TDMS fully implemented, I am not satisfied that the site is proximate to the Station and so a high level of accessibility to Robina Town Centre is not achieved. The benchmarks are not met.
[98]
The TR Policy provisions are not satisfied because the proposal is not “in close proximity” to either a line haul bus terminal or rail terminal. The existing bus stop on Gooding Drive is not a line haul terminal and there is no evidence that it would become one.
[99]
I am not satisfied that the proposal maximises accessibility to community facilities and places of employment and provides high levels of accessibility to Robina Town Centre. Nor does it maximise residential densities in and around Activity Centres and Activity Clusters. The evidence of the traffic engineers’ that, absent the station, they support development of only a portion of the proposal supports my view that this proposal does not maximise residential densities in and around Activity Centres. Even with the station operational, the site is not proximate to it. The benchmarks are not met. For these reasons transport and traffic planning matters do not support approval.

Built form, density, character and visual amenity

[100]
The Appellant contended that this a medium density development, which should be approved to take advantage of the opportunity to development a site to this density in proximity to the station. It submitted that issues of built form and density, including character and visual amenity, can be dealt with by way of conditions and do not warrant refusal of the application.^[110] Further, the Appellant said that Mr Powell’s design refinements and indeed matters of appearance and character, can be readily achieved by way of conditions.^[111] In my view, this approach fails to give adequate weight to the provisions of the 2003 Scheme regarding the proposed character of the site.
[101]
The experts engaged to address landscape, visual amenity and character issues in the proceedings were Dr McGowan for the Appellant, and Mr Powell for the Council. The experts engaged to address architecture and urban design issues were Mr Curtis for the Appellant, and Mr Richards for the Council.
[102]
The visual amenity experts agreed the key outcomes of relevant are:
1. from the 2003 Scheme
  1. (i)
    Establishment, conservation and enhancement of local character; protection and enhancement of the visual value of significant landscape features within both the built and natural areas of the City; maintenance and enhancement of the open landscape character and natural features of the Guragunbah LAP area; and support for its role in providing ‘breathing space’ for the built up areas of the City.
  2. (ii)
    The achievement of urban development that is of a scale, form and character appropriate to the immediate local area and the intended open character of the floodplain; at a scale and density that is consistent with the intent of the LAP; with buildings of a height that is in keeping with the predominantly open space character of the area and does not result in a significant loss of visual amenity; and a scale and relative visual prominence that do not dominate the Guragunbah landscape.
  3. (iii)
    Buildings sited to complement the natural landscapes and topographical features of the site and the surrounding flood plain/open space area, having regard to significant views and vistas.
  4. (iv)
    The maintenance of existing significant views and enhancement of the visual quality and landscape character of the flood plain, with significant open space areas located so that they are visible from the Gold Coast City Railway and other major transport routes; and preservation and maintenance of view sheds identified and described on Guragunbah LAP Map 14.3.^[112]
2. From the 2016 Scheme
  1. (i)
    Development does not erode and if practical contributes to the expansion of the extent, function and values of the green space network; development maximises opportunities to create visually prominent green space; areas of landscape character that contribute to the city’s unique landscape and built form are identified and protected; and a continuous green space system remains visible from the city’s major transport routes.
  2. (ii)
    The Merrimac/Carrara floodplain special management area provides a continuous green space network; the diverse green space network provides for scenic amenity and includes the Merrimac/Carrara floodplain special management area; and the Merrimac/Carrara flood plain special management area is to retain its appearance as a significant, largely undeveloped remnant of the Nerang River flood plain system.
  3. (iii)
    The layout and design of the Merrimac/Carrara floodplain special management area responds to opportunities and constraints both on site and from the surrounding locality, including scenic amenity and landscape features; and character of the floodplain special management area consists of a continuous green space area made up of largely undeveloped land with clusters of urban residential and some tourism related development occurring in the least flood affected and least environmentally sensitive areas.
  4. (iv)
    Housing is provided in a form, height and scale consistent with the amenity and desired future character of local areas and centre; residential and tourist accommodation development occurs within a low-medium rise, low-medium intensity environment; built form is of a scale and visual presence that is not visually dominant on the landscape; building height is low rise; built form is low to medium intensity, low to medium rise in accordance with Conceptual Land Use Map 10; and site cover is to be such that it reduces the dominance of buildings and protects the semi-rural character.^[113]
[103]
These four experts identified the viewpoints (VP) relevant to consideration of these issues, being VPA to VPL.^[114] Relevant photomontages were prepared by Mr Peterson.^[115] The Council submitted that the photomontages could not be relied upon to assess the visual amenity impacts of the proposal because:
1. the proposal was amended twice after the photomontages were prepared;
2. after the trial commenced, updated photomontages were prepared for VPC, VPG and VPJ to reflect new landscaping measures, but these did not reflect topographical changes or layout changes made as a result of the two amendments; and
3. without producing new photomontages, Mr Peterson could not say whether the changes diminished the value of the photomontages for the purposes of assessing visual amenity.
[104]
I disagree. The photomontages should be treated with a degree of caution. However, they are a useful guide when considering the visual amenity impacts of the proposal. The witnesses gave evidence with awareness of the changes made to the development by the two amendments and having regard to these changes, and aware of the Council’s concerns about the inaccuracies in the photomontages.^[116] The photomontages show blocks for buildings and do not depict the actual buildings which will include articulation including that provided by windows and balconies. I accept that the experts have extensive experience and were fully informed about the proposal and that the photomontages are simply one tool in the kit which the experts relied upon to inform their opinions.
[105]
Dr McGowan proposed further conditions of approval to reduce the potential for adverse impacts on visual amenity, landscape and character of the area. These conditions:
1. limit the height and extent of enclosed rooftop spaces along the lines of proposed Condition 15;^[117]
2. impose specific landscape outcomes at certain parts of the site to provide screening of proposed built form from certain viewpoints, along the lines of proposed Condition 16. He also proposed possible reference to detail in provisions such as PO12 and PO43 of Table 3.3.2 of the Plan of Development; and
3. require specific architectural treatment to the fourth storey of all buildings fronting the corner of Gooding Drive and Boowaggan Road, and possible reference to the detail provided in provisions such as PO12 and PO13 of Table 3.3.2 of the Plan of Development.

Viewpoints – visual amenity

[106]
The visual amenity experts agreed that the open space of the site has limited visual accessibility and that there are limited opportunities to view the proposal from the future Greenheart Parklands.^[118] Dr McGowan and Mr Powell agreed that there was potential for significant impacts requiring further consideration from VPG, VPJ, VPH and VPK.^[119] Mr Powell also had concerns regarding VPC.^[120]

VPH and VPK

[107]
With respect to VPH the visual amenity experts agreed it would be desirable for landscaping to be incorporated in the Open Space Precinct to screen views from this viewpoint to proposed buildings 24, 33, 34 and 36. With respect to VPK. they agreed that if buildings were limited to the heights and roof forms depicted in the photomontages, that they would not unreasonably detract from the key characteristics and features of this view.^[121] A material change of use involving building work and exceeding the heights depicted in the photomontages is impact assessable; it could occur subject to that assessment.

VPC

[108]
Mr Powell proposed Building 27 be adjusted to be of acceptable bulk, so as to be more likely to maintain and enhance open character and not dominate the landscape. In his opinion, this would be achieved if at least the front third of the building was limited to four storeys and any upward transition occurred towards the rear. He accepted that, if it could be demonstrated that substantial existing vegetation could be retained along the road frontage to screen the top of Building 27, this would satisfy him.^[122] Dr McGowan had no detail about the retention of vegetation along that frontage but observed that the footprint of Building 27 had been reduced and that there was ample space for tree planting in the Open Space Precinct. To address this, Mr Peterson produced further photomontages showing vegetation screening Building 27 in 10 years’ time.^[123] This would address Mr Powell’s concerns, provided the relevant landscaping was installed five years before Building 27 was commenced.^[124] I accept the diagrams depicting the building massing of Building 27 at Figures 4a and 4b of Mr Powell’s individual report^[125] demonstrate that this part of the building is prominent and that the staging of the vegetation proposed by Mr Powell (if able to be implemented as intended) enables the bulk of Building 27 to be addressed. However, for the reasons contained in [114], I am not satisfied that the Appellant has demonstrated that the landscaping can be implemented as proposed.

VPG

[109]
Mr Powell opined that it was necessary to reduce the heights of proposed buildings 33 and 34, and potentially 32, to 6 storeys to ensure that the built form does not have an unreasonable visual impact. As designed, these buildings change the quality and extent of views including some obstruction of the hinterland from the Lakelands Golf Course.^[126] Dr McGowan considered it desirable to reduce the visibility of these three buildings so that they were not overly dominant. He opined that if extensive vertical landscape treatment was not demonstrated to effectively screen and soften the built form, it would be necessary to reduce the heights of those buildings.^[127]
[110]
After the VALC JER report was written, and as a result of a change to the proposal, the indicative footprints of Buildings 32, 33 and 34 were reduced. Dr McGowan opined that this was likely to reduce the prominence of these buildings. Other factors he said were relevant to reducing the visibility of the built form of these buildings were that the Plan of Development:
1. specifically required the provision of landscaping to soften the built form from this viewpoint; and
2. required extensive vertical landscaping on buildings above 4-storeys.^[128]
[111]
Buildings 32, 33 and 34 are proposed to be 8-storeys high.^[129] That these buildings impact upon the views to the hinterland is apparent from Mr Powell’s Figure 6b.^[130] For the reasons set out at [114], I am not satisfied that the Appellant has demonstrated that the proposed vegetative screening will satisfactorily ameliorate the dominance of the built form from this viewpoint. In forming this view, I accept Mr Powell’s evidence that these buildings are now proposed to be clustered closer together, which would increase the visible intensity of the forms, further increasing visual impacts.^[131]

VPJ

[112]
VPJ is approximately 165 metres from the site on Macadie Way, looking north. The existing views across the open flood plain landscape are attractive. The experts agreed that the development would introduce numerous buildings into the view which would diminish its open space qualities. In particular, Buildings 21, 23, 25 and 26 would be particularly prominent.^[132] Dr McGowan’s evidence was that, if it could not be demonstrated that substantial screening vegetation in the Open Space Precinct between the site boundary and these buildings effectively screened and softened these buildings, then the heights of the buildings would need to be reduced. Building 21 would need to be reduced from 6 to 3 – 4 storeys, Building 23 from 8 to 6 storeys, and Buildings 25 and 26 from 4 to 2 storeys.^[133] Mr Powell opined that both the reduction of building heights and additional screening was necessary.^[134]
[113]
Dr McGowan considered that there was sufficient space in the Open Space Recreation Area to accommodate sufficient vegetation to substantially screen these buildings and that the Plan of Development and the imposition of conditions could adequately address this.^[135] He prepared a plan depicting the location of additional landscaping he recommended^[136] and modelled in the photomontages.^[137] That the built form diminishes the open space qualities from this viewpoint even at Year 10 is demonstrated in Exhibit 9.29, p 7. The floor plates of Buildings 25 and 26 have doubled since preparation of the JER and this is not reflected in Exhibit 9.29. Mr Powell opined that this change in floor plate would increase the visible bulk of these buildings, which I accept.
[114]
For the reasons that follow, I am not satisfied that it has been demonstrated that the proposed landscaping can be implemented as proposed and that if it is that it will mitigate the unacceptable adverse impacts identified from VPC, VPG and VPJ:
1. the constraints on the locations identified for additional landscaping have not been properly considered by the experts;
2. the landscaping proposed to ameliorate the impact of the built form from VPJ:
  1. (i)
    would be required to be located in an easement, the terms of which do not permit planting of vegetation;^[138]
  2. (ii)
    would be located in a bioretention basin and a sedge pond, where trees ought be excluded; and
  3. (iii)
    if these factors can be overcome and the vegetation planted as proposed, as the floor of the basin is 4 metres lower than the pad height, the proposed vegetation would not provide immediate screening even if planted at 5 metres;
3. the landscaping proposed to ameliorate the impact of the built form from VPG is to be located in a rehabilitated wetland zone adjacent to Boowaggan Road. It overlaps Gin House Creek, the banks of which are not to be disturbed, contains wetland low flow inverts and a removable slotted weir structure. These factors adversely impact the ability to plant the proposed vegetation in the location intended. That the area is between 0.5 and 1.5 metres lower than the road proposed in that area impacts on the ability of any vegetation to provide the intended screening;
4. the area in which landscaping is proposed adjacent to Gooding Drive is 1.8 metres lower than the road and will be susceptible to a Q3 month flood event,^[139] which has the potential to impact on the ability of the vegetation to provide the requisite screening.
[115]
These factors diminish the ability of the proposed landscaping to achieve the ameliorative effects proposed by Dr McGowan. I am not satisfied the imposition of conditions requiring the additional landscaping proposed will ameliorate the visual impacts of the proposal so as to meet the benchmarks. It is more than vegetative screening can do to mitigate the visual impact of 41 buildings of the heights proposed and meet the requirements of the 2003 Scheme.

Character

[116]
Even if I accepted that the vegetation could be implemented and that it reduces the impacts from the development, I do not accept that the open character of the flood plain is maintained. There is an expectation for some urban development on the site. This is a factor which informs future character. However, both schemes contemplate clusters of urban development while retaining the open character of the flood plain.
[117]
Mr Curtis considered the immediate local area to be the Guraganbah flood plain, and the development that sits within it and that neighbours it. He opined that the local area is predominantly low-rise with the occasional taller building, in various locations.^[140] Mr Powell opined that the built or approved medium or high rise development is ‘quite well scattered throughout the floodplain’.^[141] This is consistent with the photomontages and maps in evidence which depict the local area, including Exhibit 9.22 prepared by Dr McGowan and Mr Mewing which depicts existing and approved but unconstructed medium and high-rise development in and around the LAP area.^[142] I accept this.
[118]
Mr Curtis accepted that the proposal would cause a change of character bringing an urban flavour. However, he considered that the predominant landscape character will prevail and be maintained.^[143] Mr Richards opined that the development form bears no relationship to the local character. While there are multi-storey developments in the vicinity, the Merrimac area does not contain another development like this.
[119]
As observed by Mr Richards, this proposal is a very large-scale development. He opined that, while development on each building pad could be considered compact, the overall development form, being separated by wide green corridors could not.^[144] I agree. That the development is limited to one part of the site spread over three building pads separated by green corridors enables the balance of the site to retain its open character. However, this character is not retained on the 18.2ha of the site on which the buildings are proposed. In this portion of the site, the intended open character of the flood plain will be lost. This is apparent from Figure 19 of the AUD JER.^[145] Further, the scale, form and character of the proposal is in marked contrast to the immediate local area and the intended open character of the flood plain. While I accept the proposal optimises the opportunity for urban development consistent with the continuing function of the flood plain, it does so at the expense of the intended open space character of the flood plain. The environmental capacity of the land is compromised by the proposal due to its adverse impact on the character of the floodplain. For these reasons, DEO 3.1 and DEO 3.2 of the LAP are not met.
[120]
Mr Richards and Mr Curtis agreed that the proposal will have a distinctive identity and a sense of place. However, it does not do this in conjunction with neighbouring low-rise areas. While the open space portion of the proposal conserves and enhances the local character, I am not satisfied that for the overall site this is achieved. Much was made of other approvals in the area, but they are not of the scale of this proposal. That the character will not be conserved and enhanced by the proposal is apparent from Exhibit 9.22.
[121]
I find that the proposal:
1. fails to maintain and enhance the open landscape character of the LAP area;
2. is not of a scale and form ”appropriate to the immediate local area and the intended open character of the flood plain”, is not of a height which is in keeping with and complements the “predominantly open space” character of the surrounding area, does not ensure that buildings are sited to complement the natural landscapes and topographical features of the site and surrounding flood plain/open space area, and buildings have not been designed so that their scale and relative visual prominence do no dominate Guraganbah landscape;
3. would not achieve the enhancement of the visual quality and landscape character of the flood plain, and would not maintain the overall open character and visual quality of the flood plain and support its role in providing ‘open breathing space’ for the built up areas of the City; and
4. due to the location of these buildings their relative prominence does not maintain and enhance the recognised landscape quality.

Density

[122]
The town planners agreed that the gross site density of the proposal is 39.5 dwellings per hectare.^[146]
[123]
Performance Criteria PC7 of the LAP Place Code provides that:

“The gross accommodation density must be low, to maintain and enhance the quality of the flood plain landscape and nature conservation values. However, in areas where large expanses of open space are securely managed, net densities may be greater, consistent with the land use pattern indicated on Guraganbah LAP Map 14.7 – Conceptual Land Use.”^[147]

[124]
If the land use patterns are consistent with that indicated on LAP Map 14.7 the acceptable solutions are for a gross site density not exceeding 25 dwelling units per hectare for a site not in the immediate vicinity of a railway station or Robina Town Centre, or not exceeding 75 dwelling units per hectare if in the immediate vicinity of a railway station or Robina Town Centre.
[125]
The Appellant does not contend that the density is low. Rather, it says that the provisions envisage greater density due to the secure management of the large expanse of open space so that the proposal fits comfortably within the range anticipated by the acceptable solutions.
[126]
The LAP speaks of the quality of the flood plain landscape by reference to both its character and its function. The LAP envisages protection of the hydraulic functions of the flood plain and the secure management of large expanses of open space, but not at the expense of character. For the reasons already discussed, the proposal does not maintain the character of the floodplain. Nor is the site located in the immediate vicinity of a railway station (existing or proposed) or Robina Town Centre. The proposal does not have a low population density settlement pattern as envisaged by the 2003 Scheme. Accordingly, neither PC7 nor the acceptable solutions are satisfied.
[127]
For these reasons, the proposal is not consistent with maintaining and enhancing the “low population density settlement pattern of the Guraganbah LAP area” or “ensuring tourist and residential activity takes place at low densities”, as required by the LAP Place Code purpose. For these reasons, the provisions of the 2003 Scheme concerning character, built form, density and views are not met. Protection of the open landscape character is a strong and recurring theme throughout the 2003 Scheme. In the circumstances, the built form, density, character and visual amenity impacts of the proposal are factors which weigh heavily against approval.

Land use

[128]
From the 2003 Scheme, Part 2, DEO Soc.2 provides:

“The location and design of residential areas and support facilities to maximise accessibility to community facilities and places of employment, and to maximise opportunities for community interaction.”^[148]

[129]
It is supported by the following Planning Objectives:

“Soc.2.1 To facilitate an efficient urban form that offers high levels of accessibility between residential areas and Activity Centres and Activity Clusters

Soc.2.2 To maximise residential densities in and around Activity Centres and Activity Clusters, where an acceptable level of amenity can be achieved

Soc.2.3 To facilitate the timely provision of conveniently located community facilities and open space areas and human service.”^[149]

[130]
The relevant provisions of the 2016 Scheme are:
1. from the Strategic Framework, Strategic Outcome 3.3.1(13):

“The Merrimac/Carrara flood plain special management area retains its appearance as a significantly large undeveloped remnant of the Nerang River flood plain system. Limited opportunities for low to medium intensity, low to medium rise residential and tourism related development exist in the least flood affected and environmentally sensitive areas.”^[150]

also from the Strategic Framework, the Specific Outcomes contained in 3.3.5.1(1), (2) and (4).^[151]

[131]
From the limited development (Constrained Land) Zone Code Overall Outcomes 2(b) and 2(d) are relevant:

“(b) Development outcomes within the Merrimac/Carrara flood plain special management area will be subject to detailed site based investigations and guided by the development intent identified on the Conceptual land use Map 10 – Merrimac/Carrara flood plain special management area

….

Land Uses –

include limited opportunities for low-to-medium intensity, low-to-medium rise residential and tourism related activities in the:

least flood affected;

least environmentally sensitive areas; and

guided by conceptual and use Map 10 – Merrimac/Carrara flood plain special management area.”

[132]
Thus, the overall planning strategy for the site in the 2003 Scheme is maintained in the 2016 Scheme.
[133]
Both parties acknowledged the over-riding importance of the LAP including the purpose of the Place Code. A relatively small part of the site is included in the Tourism-Built Environment category with the majority of the site mapped as Active/Passive Recreation. No part of the site is mapped residential. The LAP envisages urban development, including apartments, on the site. While the proposal seeks to locate urban development on land mapped for active/passive recreation on LAP Map 14.7, this not determinative. The LAP Map 14.7 “illustrates one long-term vision of the flood plain, but considerable flexibility is provided in the Local Area Plan to facilitate other innovative development proposals that may result in a different final development form”. Thus, it envisages flexibility and requires a site-specific assessment of technical matters to resolve the suitability and extent for urban development.
[134]
The Council submitted that the proposal is not consistent with DEO Econ 4 and Planning Objectives Econ 4.2 and 4.3 which seek enhancement of the tourist industry. The Appellant did not contend otherwise. Rather, it said that an opportunity to assist in accommodating residential growth in this part of the Gold Coast, in particular intensifying population in proximity to the station, and the rehabilitation of the site, should not be foregone in favour of a hypothetical, sufficiently intense, tourist development.
[135]
Tourism uses in the proposal are limited to the possibility of the provision of a bar in the mixed-use hub, the possibility that some of the residential accommodation may be made available for short-term holiday accommodation and that the open space areas would be publicly accessible. The sedgelands and wetlands will not be used due to their low-lying nature and the drainage features proposed.^[152] The areas identified for Local Park Recreation^[153] are adjacent to Pads 1, 2 and 3. These areas are either 1.8 metre AHD or 1.2 metres AHD. 1.8 metres AHD is the Q3-monthly immunity. Mr Curtis agreed that these areas would be “pretty wet”^[154] and “very wet”^[155] respectively. These areas do not meet the shape requirements for local recreation park^[156] nor does this open space area meet the requirement for recreation parks in the 2003 Scheme and the 2016 Scheme.^[157] For these reasons, the proposal makes limited provision for tourism uses.
[136]
I accept Mr Perkins’ evidence that he considers the “level of flexibility required to reconcile the scale, intensity and distribution of urban, primarily residential, development proposed on the site, with LAP Map 14.7 to be more than considerable and to be extreme and unrealistic.”^[158] This is because the proposal is for development on a greater portion of the site than envisaged by the LAP, and is of a scale that does not maintain and enhance the open landscape character, natural features and low population density settlement pattern of the LAP area. Nor is the proposal for limited residential, tourism and recreational development. It does not maintain and protect existing open space and recreation areas, as a considerable amount of urban development is proposed on land which is currently open space and mapped for active/passive recreation purposes. There is little usable open space. The proposal does not meet the benchmarks requiring high accessibility. These are significant non-compliances. For these reasons, the proposal does not satisfy the Purpose of the LAP Place Code and the LAP Intent Statement.
[137]
This inconsistency continues with respect to the 2016 Scheme. The proposal can only be said to be loosely based on the CLUM, which is intended to provide a guide to development intent. While I accept this still allows for some flexibility, there is a considerably greater portion of the site given over to development than envisaged on the CLUM, albeit that this has been achieved while also resolving the onsite water issues.
[138]
The 2016 Scheme envisages residential and tourist accommodation including a mix of housing types within a low to medium rise, low to medium intensity environment. The 2016 Scheme defines low rise building height to be a building up to 9 metres above ground level and up to 2 storeys, with an option for a partial third storey if the building height is within the 9 metres.^[159] Medium rise building height is defined as a building exceeding 9 to 32 metres above ground level, intended to be 3 to 8 storeys. 38 of the 41 buildings are proposed to be 3 to 8 storeys.^[160] The proposal seeks predominantly medium rise built form, in contrast with the 2016 Scheme’s intention for low to medium rise development.
[139]
While higher intensity urban development is envisaged near public transport and retail, commercial and community facilities to make efficient use of infrastructure and create highly accessible communities, as found above, the site does not enjoy a particularly high standard of public and active transport accessibility to Robina Town Centre and other city destinations. Further, this intensity is not to be achieved at the expense of the open character of the flood plain, the amenity of the residents or constraints upon the STP.
[140]
Accepting that the site is suitable for some urban development and the LAP affords some flexibility, I am not satisfied that the proposal is consistent with the LAP intent. The site is not sufficiently proximate to the Activity Centre at Robina to be considered a proposal which maximises residential densities in and around Robina. The site is not sufficiently well located with respect to Robina Town Centre, higher order public transport (existing and proposed) and areas of services, employment and social activity to justify departure from the clear planning intent for less intensive development on the site. This is supported by the findings with respect to visual amenity.

Need

[141]
The Appellant submitted that there is a need for the proposed development, arguably a very strong and pressing one, that supports approval. Indeed, the Appellant went further to submit that need supports approval as a stand alone matter and also as a matter that ought overwhelm any other issue that might be said to arise from approval of the development application. The Council disagreed.
[142]
The authorities on the issue of need identify as relevant considerations:
1. “Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Gold Club v Brisbane City Council (1982) QPLR 13 at 32 – 35, William McEwans Pty Ltd v Brisbane City Council (1981) 1 QPLR 33 at 35).”^[161]
2. questions of need are assessed from the perspective of the community and not from the perspective of a proponent of any particular development;^[162]
3. need must be a genuine need and not a contrived need;^[163]
4. planning need will only be established if it can be proved that the planning scheme in its current form does not adequately cater for the uses proposed;^[164]
5. need is a relative concept which must yield to amenity and other town planning considerations, “if the provision of a facility which would otherwise advance the physical well-being of a community will affect the capacity of residents in that community to enjoy life, then it can in truth be said that there is no need”^[165] and will have greater or lesser relevance depending on the circumstances.^[166]
[143]
Mr Leyshon, the economist called for the Council, accepted:
1. if developed as proposed, the site will add to housing choice in the area; and
2. if the residential component of the proposal proceeds, the proposed mixed use hub is justified.
[144]
In his opinion there is no significant need for the proposal.^[167] I accept this for the reasons that follow.
[145]
Mr Dimasi, for the Appellant, and Mr Leyshon agreed that the site is reasonably proximate to Robina Town Centre and very close to the planned Merrimac Train Station.^[168] The proposal will be in the primary trade area for the Robina major shopping centre. These experts dealt with proximity from the perspective of need, not accessibility. I have made findings regarding accessibility.
[146]
In relation to the Gold Coast, the Land Supply and Development Monitoring Report 2021 released by the Department of State Development, Manufacturing, Infrastructure and Planning provides an update on land supply and development activity across the South-East Queensland region. It contains the following observations:
1. dwelling approvals in the defined “expansion area” (greenfield housing areas) have exceeded the designated “expansion area” average benchmark in recent years;
2. dwelling approvals in the defined “consolidation areas” (mostly established suburbs) were below the average annual benchmark in 2020/2021;
3. dwelling approvals in the consolidation area (approximately 63.3%) for 2016/17 to 2020/21 were less than the expected share of 77%, but are continuing to move towards the planned share of dwelling approvals since 2016/17;
4. 37% (10,200) of new dwelling approvals on the Gold Coast for the period 2016/2017 to 2020/2021 were for high-rise dwellings (above 4 storeys) which exceeded the 2016 Census stock. In the same period high-rise dwellings comprised 55% of new dwellings approvals in the consolidation area;
5. in the Gold Coast consolidation area, the capacity of planned dwelling supply from 2021 onwards is about 14,000 more than the 2041 dwelling supply benchmark of 108,800 dwellings;
6. in the consolidation area, planned dwelling supply is equivalent to about 25 years of supply compared to the minimum requirement of 15 years supply under Shaping SEQ; and
7. the Gold Coast has about 11.7 years of uncompleted multiple dwelling approvals in the consolidation area. In 2021 this was equivalent to 31,129 uncompleted dwelling approvals.^[169]
[147]
The experts examined the study area, being the central Gold Coast, an area they defined by reference to Fig. 4.1,^[170] and which falls into the consolidation area. Mr Leyshon’s analysis indicted that in the study area between 2021 and 2041, there is a demand for an additional 11,793 dwellings, or 589 per annum.^[171] Mr Dimasi’s analysis indicated a demand for the same period of 737.^[172] However, these figures do not reliably establish need because the demand figures are based on data which needs to be treated with caution. The figures adopted are based on the Queensland Government Statisticians Office (QGSO) forward population projections down to the Statistical Area 2 (SA2). These projections provide one indication of the likely future demand for additional housing within Merrimac and the study area in general. Both experts agreed that that population projections to the SA2 level need to be treated with some caution, because estimates of population increase for the study area based on QGSO projections are fundamentally dependent upon the production of housing.^[173] As observed by Mr Dimasi, the QGSO SA2 population projections are about land supply capacity, not demand.^[174] Mr Leyshon remained of the view that the QGSO forward population projections for the period to 2041 should be treated with caution due to the volatility in recent patterns of population growth in Queensland, which I accept.^[175] For example, the COVID-19 pandemic has impacted on population growth rates relevantly in Queensland. To the extent there is any need it appears to arise from a shortfall in meeting population projections which does not indicate planning need.
[148]
Mr Dimasi agreed that on a theoretical calculation basis, the planning scheme has more than enough zoned land to meet the dwelling supply benchmarks,^[176] but this is not being converted to dwelling stock.^[177] He proffered numerous reasons for these approved developments not being constructed including intention to construct, feasibility, and suitability of the product for the market,^[178] but said it did not demonstrate a glut of potential supply. His reasons were speculative.
[149]
The Gold Coast has a stock of 11.7 years of uncompleted multiple dwelling approvals in the consolidation area, or between 29,741 – 33,021 dwelling approvals and this has been consistent for the period 2018-2021. In a period of heightened demand for housing, a proportion of the approved multiple dwellings in the study area have not converted to built stock. Neither expert identified the failure on the part of the planning scheme as being one of the reasons for this failure to convert.
[150]
The need for multiple dwellings on the Gold Coast can be met by activating these approvals. That this is not happening indicates a lack of need for multiple dwellings on the Gold Coast. This is reinforced by the data. While there has been an increase in prices in multiple dwellings since COVID-19, there was no growth in medium unit prices on the Gold Coast in the period January 2018 to February 2020. Mr Dimasi accepted that looking at long-term growth trends was a better approach.^[179] Accepting the rising prices was an indicator of demand, he could point to no such increase.^[180] The consistent supply of unactivated multiple dwelling approvals indicates that the planning scheme can deliver the required volume of multiple dwellings. While I accept that approvals are not being converted to dwellings, I am not persuaded that this is due to a failure of the planning scheme.
[151]
The 2016 Scheme is being reviewed on a regular basis, with 8 reviews undertaken in 7 years. It is also apparent that discussions between the Council and the State Government about amendments to the 2016 Scheme and the State’s concerns about housing supply and diversity and the community’s expectations regarding design and amenity are ongoing.^[181]
[152]
Mr Dimasi considered that the proposal will result in economic and social benefits for the community. As to these:
1. for the reasons set out above, I do not accept that the proposal will help meet a demonstrated planning need for additional dwellings in central Gold Coast;
2. there was no evidence addressing the issue of price competitiveness;
3. there was no evidence of employment opportunities provided by this proposal during and after construction. While I accept the construction phase will offer employment, post-construction employment opportunities will be limited primarily those offered by the 2,000m² mixed use neighbourhood hub;
4. Mr Dimasi opined that this development will “contribute to and broaden the diversity of the local community and increase community well-being opportunities for local employment, interaction, recreation and service”. As the proposal provides limited usable open space and the neighbourhood hub is limited in size and its composition is unknown, I am not satisfied of the ability of the proposal to make this contribution;
5. as I have found the proposal is not proximate to Robina, I am not persuaded that it would increase residential opportunities including choice to support Robina as a key regional centre; and
6. the provision of the modest commercial component of the proposal, providing for the convenience needs of the proposed new community, is not a factor which alone favours approval of the proposal.^[182]
[153]
In the circumstances, I am not satisfied there is a latent unsatisfied demand that is not being met by the planning scheme. That approvals are not being converted to product has not been demonstrated to be a shortcoming of the scheme.
[154]
Even if there is a need, I would not give it significant weight because:
1. the need is not such that justifies departure from the planning intent for the site;
2. it is appropriate that the Council, as the relevant planning authority, designate the location where that need should be met through the planning scheme;
3. more importantly, any such need should, in my view, yield to the considerations of character, amenity and the constraints on the STP; and
4. the 2016 Scheme will continue to be reviewed in accordance with the PA to ensure that it responds to the changes to the community at a local, regional and State level.^[183]
[155]
For these reasons, that the proposal would increase housing choice in the sense that any approval will add to housing choice,^[184] is not a factor which weighs in support of approval.

Should the proposal be approved in the exercise of the discretion?

[156]
For the reasons set out above, I am satisfied the application does not meet all the assessment benchmarks. To the extent conditions can be imposed to remedy non-compliance with the benchmarks these are discussed in the reasons. A balancing exercise needs to be undertaken in the exercise of discretion. It is invariably a complicated and multi-faceted exercise.^[185] It is not to be undertaken capriciously. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.^[186]
[157]
Relevant matters raised by the Appellant as supporting approval of the application included:

“(a) Mr Mewing has commented on the development’s compliance with the planning framework (including the 2003 Scheme and the 2016 City Plan) throughout this JER. Mr Mewing says that the development complies with the suitably balanced assessment of the planning framework, noting the flexible approach intended in the planning for the site and that such an approval is appropriate in any case given the strategic planning nature of the proposed development and the ongoing evolution of land use, transport and open space activities within the locality;

the proposed development has the potential to further and support the public interest and result in community benefits, advancing outcomes of the planning framework and beyond, through a positive intervention into the flood plain outcomes in terms of flood management, net ecological benefit (as a result of rehabilitation works), a significant open space contribution (including embellishment works), and provision of improved active transport connectivity into the future;

the proposed development will add to community well-being by creating opportunities for local recreation, interaction, employment and services;

the development results in improvements to the functioning of the site and surrounds, having regard to flood, traffic and infrastructure and ecological matters, as addressed through the JERs of other disciplines and represented in the reasons for approval;

the proposed development supports future public transport by constructing an extended bus bay on Gooding Drive. This provides the opportunity for increased bus services to connect to the planned Merrimac Railway Station and to other locations in the city;

…

the development respects and responds to the active and passive open space values of the site, with that open space facilitated through the development outcome;

the proposed development will support the Respondent’s intended Greenheart Parkland outcomes, which is important for safety and efficient use of community infrastructure, as discussed throughout this JER. This is less convincing without development occurring;

the proposed development will serve the public interest with a logical and efficient development of a site with good accessibility and amenity, providing housing choice for a range of sectors of the community, contribute to urban consolidation and a compact neighbourhood, and provide access to a range of small scale retail and commercial uses which support local residents;

the development does not result in unacceptable, adverse impacts from a town planning perspective (with technical matters to be addressed by other experts).”^[187]

[158]
The Appellant also raised need, the rehabilitation of the site, and that this site is the last remaining opportunity for a medium density development of this nature to be located proximate to the Merrimac Railway Station. Those issues have been considered in these reasons.
[159]
The scale, form, and character of the proposal are inconsistent with maintaining and enhancing the open landscape character, and low population density settlement pattern. Resolution of the “water” issues was not achieved consistently with the requirements of the 2003 Scheme that the natural features be maintained and enhanced. Similarly, while the ecological outcome for the site will be significantly improved, it does not reinstate the pre-development state of the site. For the reasons above, need is not a factor which in my view, supports approval. Even if there is a need, I am not satisfied that such need and the net ecological benefit arising from the rehabilitation of the site are such as to overcome the adverse impacts of the development on the character and visual amenity of the flood plain, that the proposal will be subject to adverse odours such that the residents would not enjoy a high level of amenity and the proposal places a constraint the STP. The proposal does not gain support from the 2016 Scheme given the broad continuation of the planning outcomes from the 2003 Scheme.
[160]
In the circumstances, nothing in the relevant matters relied upon by the Appellant persuades me that the preliminary approval ought be approved. In the exercise of my discretion, I refuse the application for preliminary approval.

Variation request

[161]
As the preliminary approval is refused, it follows that the variation request is also refused.

Conclusion

[162]
The Appellant has not discharged the onus. The appeal is dismissed. The decision of the Council to refuse the application is confirmed.

Footnotes

[1] Ex. 4.12 Visual Amenity Landscape and Character JER (“VALC JER”), [22], [24], [37].

[2] Ex. 4.12 VALC JER, [22].

[3] Ex. 4.23 Need JER, [33].

[4] Ex. 4.19 Town Planning JER, [34] – [35].

[5] Ex. 4.19, Town Planning JER, [29].

[6] Order of the Court made 2 December 2022.

[7] Ex. 7.05 Greenheart Gardens Plan of Development (v1.5); Ex. 9.04 Flood Impact Assessment (v3); Ex. 9.03 Stormwater Management Plan (v3); Ex. 9.01 Acid Sulfate Soils Management Plan (v3); Ex. 9.02 Acid Sulfate Soils Environmental management Plan (v2); Ex. 9.10 Travel Demand Management Strategy; Ex. 9.05 Proposed Layout Conceptual Model - SK008 (vR); Ex. 9.06 Proposed Layout Overall Earthworks Plan - SK009 (vM); Ex. 9.11 Wetland Distribution and Descriptions; Ex. 9.8 Greenheart Gardens Habitat Restoration Strategy (edition xii); Ex. 9.12 Roadworks Drawings; Ex. 9.13 Flood Emergency Management Plan.

[8] Ex. 8.03 2016 Scheme Extracts, 188 – 189.

[9] Ex. 4.19, Town Planning JER, [44]–[48].

[10] Ex. 7.05, Greenheart Gardens Plan of Development, 41.

[11] Ex. 7.05, Greenheart Gardens Plan of Development, 23 - 24.

[12] Ex. 9.06, Proposed Layout Overall Earthworks Plan.

[13] Planning and Environment Court Act 2016 (Qld) s 43 (‘PECA’).

[14] PECA s 45(1)(a).

[15] Cox v Brisbane City Council & Anor [2022] QPEC 10, [35].

[16] PECA s 46(1) - s 46(2); Planning Act 2016 (Qld) s 45(5) (‘PA’), Planning Regulation 2017 (Qld), s 31, sch 24.

[17] Ashvan Investment Unit Trust v Brisbane City Council & Ors [2019] QPELR 793, [35] – [83]; Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328, [469], [508]. This approach was endorsed by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd [2020] QCA 258, Abeleda v Brisbane City Council [2020] QCA 257 and Wilhelm v Logan City Council & Ors [2021] QPELR 1321.

[18] Trinity Park Investments v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2021] QCA 95, [80].

[19] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793, [53].

[20] PA, s 43(7).

[21] [2022] QPEC 10, [40].

[22] Ex. 8.01, CEO Certificate under s 251 of the Local Government Act 2009, 1 [1].

[23] Ex. 4.19, Town Planning JER, [56], [61].

[24] PA s 45(5)(a)(ii), s 31(1)(g); Planning Regulation 2017 (Qld) sch 24 (definition of ‘common material).’

[25] T2–6 [33] – [38].

[26] Ex. 10.04, Council’s List, [1](a).

[27] T3-63, [24] – [35].

[28] Ex. 8.02, 2003 Scheme Extracts.

[29] Ex. 8.01, Certificate under s 251 of the Local Government Act 2009, [3].

[30] Ex. 8.02, 2003 Scheme Extracts, 196 [4.0].

[31] Ex. 8.02, 2003 Scheme Extracts, 158 [9.0].

[32] Ex. 8.02, 2003 Scheme Extracts, 160 [1.0].

[33] Ex. 8.02, 2003 Scheme Extracts, 161 [3.0].

[34] Ex. 8.02, 2003 Scheme Extracts, 162 [5.0].

[35] Ex. 8.02, 2003 Scheme Extracts; Ex. 8.1, CEO Certificate under s 251 of the Local Government Act 2009, 169.

[36] Arora Construction Pty Ltd & Anor v Gold Coast City Council & Anor [2012] QPEC 052.

[37] Ex. 8.03, 2016 Scheme Extracts.

[38] Ex 1.60, Appellant’s Written Submissions, 12 n15.

[39] Ex. 8.04, Certificate under s 251 of the Local Government Act 2009.

[40] Ex. 4.19, Town Planning JER, 19 [84].

[41] Ex. 8.03, 2016 Scheme Extracts, 8 [1.4].

[42] Ex. 8.03, 2016 Scheme Extracts, 109 [6.1(8)].

[43] Ex. 8.03, 2016 Scheme Extracts, 8 [1.4].

[44] Ex. 4.18, Terrestrial Ecology JER, 28 [55].

[45] Ex. 4.08, First Aquatic Ecology JER, 7 [28].

[46] Ex. 4.14, Second Aquatic Ecologists JER, 16 [76].

[47] T3–77 [13]–[23].

[48] T3–77 [25]–[33].

[49] Ex. 4.18, Terrestrial Ecology JER, 30 [61].

[50] Ex. 4.18, Terrestrial Ecology JER, 32 [65].

[51] T3–54 [12]–[23].

[52] Ex 1.61, Respondent’s Updated Outline of Submissions, 84 [359]–[360].

[53] Ex. 9.08, Greenheart Gardens Habitat Restoration Strategy.

[54] T3–35 [11]–[16].

[55] T3–45 [25]–[42]; Ex. 9.43, Marked up Map 8.

[56] T3–46 [3]–[7].

[57] T3–46 [7]–[11].

[58] Ex. 4.18, Terrestrial Ecology JER 36 [91].

[59] Ex. 7.05, Greenheart Gardens Plan of Development, 47 (‘Note c’).

[60] Ex. 7.05, Greenheart Gardens Plan of Development, 47; T3–30 [34]–[35].

[61] Ex. 4.18 Terrestrial Ecology JER, 37 [93] – [95].

[62] T3–39 [25]–[26].

[63] T3–21 [23]–[24].

[64] T3–59 [36] - T3–60 [2].

[65] T3–59 [36] - T3–60 [2].

[66] Ex. 4.11, First Air Quality JER, 25 [77].

[67] Ex. 8.02, 2003 Scheme Extracts, 36 [5.2].

[68] Ex. 8.02, 2003 Scheme Extracts, 181.

[69] Ex. 8.03, 2016 Scheme Extracts, 81 [3.8.6.1(5)].

[70] Ex. 8.03, 2016 Scheme Extracts, 137.

[71] Ex. 4.11, First Air Quality JER, 21 [61].

[72] Ex. 4.11, First Air Quality JER, 22 [66].

[73] Ex. 4.20, Second Air Quality JER, 7 [31].

[74] Ex. 4.20, Second Air Quality JER, 7 [32].

[75] Ex. 4.20, Second Air Quality JER, 8 [35].

[76] Ex. 4.20, Second Air Quality JER, 32 [41].

[77] T5–37 [45].

[78] T5–38 [17]–[18].

[79] Ex. 4.20, Second Air Quality JER, 32 [42].

[80] Ex. 4.11, First Air Quality JER, 53 [107].

[81] Ex. 4.20, Second Air Quality JER, 5 [21].

[82] Ex. 4.20, Second Air Quality JER, 14, 33[101]; T5-21 [38 – T5-22 [18]; T5-57 [42]-[47].

[83] Ex. 4.20, Second Air Quality JER, 33 [101].

[84] T5–46, [26]–[27].

[85] Ex. 4.11, First Air Quality JER, 62 [7].

[86] Ex. 4.11, First Air Quality JER, 64.

[87] Ex. 13.08, Environmental Authority, 5, 7.

[88] Environmental Protection Act 1994 (Qld) s 14.

[89] T5–43, [11].

[90] Ex. 4.11, First Air Quality JER, 53 [110].

[91] Ex. 4.11, First Air Quality JER, 53-54 [112].

[92] T5–42 [10]–[11].

[93] T8-3 [36] – T8-4 [3].

[94] Ex. 8.02, 2003 Scheme Extracts, 34.

[95] Ex. 1.62, Respondent’s Updated Outline of Submissions, 46 [196].

[96] Ex. 4.07, Traffic JER, 21 [7.1].

[97] Ex. 4.07, Traffic JER, 21 [7.1].

[98] T4-77 [47] - T4-78 [8]; Ex. 4.07, Traffic JER, 18 [6.3].

[99] T4-78 [7].

[100] Ex. 4.17, Architecture and Urban Design JER, 41 [110].

[101] ibid.

[102] Ex 4.07, Traffic JER, 21 [7.1(b)], p 21.

[103] Ex, 5.01, Separate Report of Mr Trevilyan, 7 (‘Figure 1’).

[104] Ex 4.17, Architecture and Urban Design JER, 38 [95], [96].

[105] Ex. 2.86, SARA Concurrence Referral Agency Response.

[106] T4–69 [22]–[37].

[107] Ex 4.07, Traffic JER, 9 [5.2]-[5.3].

[108] T2–65 [1]-[17].

[109] Ex. 4.19 Town Planning JER, 59 [245].

[110] Ex. 1.60, Appellant’s Submissions, 33 [95].

[111] Ex. 1.60, Appellant’s Submissions, 36 [98], 36 [105].

[112] Ex. 8.02, 2003 Scheme Extracts, 33 [1.0], 33 [1.2], 169 [8.1], 173 [PC14], 161 [3.1], 169 [8.1], 169 [PC1], 171 [PC6], 172 [PC9], 171 [PC8], 161 [3.3].

[113] Ex. 8.03, 2016 Scheme Extracts, 70 [3.7.3.1(9)], 35 [3.3.5.1(1)], 74 [3.8.1(1)], 36 [3.3.5.1(3)], 69 [3.7.3.1(4)], 69 [3.7.3.1(1)(d)], 26 [3.3.1(13)], 112 [6.2.18.2], 35 [3.3.5.1(1)], 112 [6.1.18.2(e)(i)], 25 [3.3.1(3)], 36 [3.3.5.1(4)], 114 [PO5], 114 [PO3], 113-114, [PO2].

[114] Ex. 4.10, Digital Photomontage Methodology Report, 25 (‘Vantage point Location Drawing’).

[115] Ex. 4.10, Digital Photomontage Methodology Report; Ex. 9.27, Digital Photomontage Methodology Addendum Report.

[116] T2–58 [26]–[37]; Ex. 5.11, Separate Report of Nathan Powell on Visual Amenity, Landscape and Character; T4–4 [2], T2–85 [23]; T2-30 [34].

[117] Ex. 10.08, Condition Intent Package dated 12 October 2022.

[118] Ex. 4.12, VALC JER, 41 [143].

[119] Ex. 4.12, VALC JER, 34 [128].

[120] Ex. 4.12, VALC JER, 43 [151(b)(i)].

[121] Ex. 4.12, VALC JER, 41 [148], 43 [150(k)].

[122] Ex. 4.12, VALC JER, 43[151(b)(i)].

[123] Ex. 9.27, Digital Photomontage Methodology Addendum Report 5.

[124] T4–20, [18]–[19].

[125] Ex. 5.11, Mr Powell’s Individual Report, 8 (‘Figure 4a’), 9 (‘Figure 4b’).

[126] Ex. 4.12, VALC JER, 32 [106].

[127] Ex. 4.12, VALC JER, [135].

[128] Ex. 5.02, Separate Report of Dr McGowan on Visual Amenity, Landscape and Character, 6-7 [10(h)].

[129] Ex. 4.10, 12, Table 3.5.1.

[130] Ex. 5.11, Mr Powell’s Individual Report, 11 (‘Figure 6b’).

[131] Ex. 5.11, Mr Powell’s Individual Report, 4 [14(b)].

[132] Ex. 4.12, VALC JER, [119], p 33.

[133] Ex. 4.12, VALC JER, 40 [139].

[134] Ibid, 41 [147].

[135] Ex. 5.02, Separate Report of Dr McGowan on Visual Amenity, Landscape and Character, 7.

[136] Ex. 9.19, Landscape Mitigation Measures (Revision D).

[137] Ex. 9.27, Digital Photomontage Methodology Addendum Report.

[138] Ex. 10.19, Bundle of Easement documents, 8.

[139] Ex. 10.19, Bundle of Easement documents; Ex. 10.11, Marked up Proposed Layout overall earthworks plan.

[140] T2-38 [3]–[19].

[141] T4-12 [7]–[16].

[142] Ex. 9.22, Building Height Plan.

[143] T2-36 [17]–[28].

[144] Ex. 4.17, Architecture and Urban Design JER, 40 [106].

[145] Ex. 4.17, Architecture and Urban Design JER, 21 (‘Figure 19’).

[146] Ex. 4.19, Town Planning JER, 76 [352]–[353], 81 [387].

[147] Ex. 8.02, 2003 Scheme Extracts, 171 [PC7].

[148] Ex. 8.02, 2003 Scheme Extracts, 34 [2.0].

[149] Ex. 8.02, 2003 Scheme Extracts, 34 [2.2].

[150] Ex. 8.03, 2016 Scheme Extracts, 26 [3.3.1(13)].

[151] Ex. 8.03, 2016 Scheme Extracts, 36.

[152] T2- 41 [25].

[153] Ex. 7.05, Greenheart Gardens Plan of Development, 47 (‘Map 08 – Environment’).

[154] T2-42 [17].

[155] T2-42 [38].

[156] T7-58 [13]–[21].

[157] Ex. 5.18, Mr Perkins’ Individual Report, 16 [32]–[33].

[158] Ex. 4.19, Town Planning JER 63 [264].

[159] Ex. 8.03, 2016 Scheme Extracts, 201 (definition of ‘low rise building height’).

[160] Ex. 8.03, 2016 Scheme Extracts, 201 (definition of ‘medium rise building height’).

[161] Isgro v Gold Coast City Council & Anor [2003] QPELR 414 [21].

[162] Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 [213]; TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 [9]; Isgro v Gold Coast City Council & Anor [2003] QPELR 414.

[163] Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 [32]-[35]; William McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33 [35].

[164] William McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33 [170].

[165] Skateway Pty Ltd v Brisbane City Council (1980) 1 APAD 417 [424].

[166] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 [20].

[167] Ex. 4.23, Need JER, 24 [125(a)]. At the time of writing the Need JER, the Palmer Leisure development for 1100 multiple dwellings within the Robina area was proceeding. Mr Leyshon said that the fact that the proposal was not proceeding may make some change to the demand/supply dynamic, but the proposal had not been taken into account in the economists’ analysis because it was not approved. That it was not proceeding did not change his opinions.

[168] Ex. 4.23, Need JER, 12 [33].

[169] Ex. 4.23, Need JER, 20-21 [47].

[170] Ex. 4.23, Need JER, 27.

[171] Ex. 4.23, Need JER, 34 [91].

[172] Ex. 4.23, Need JER, 35 [92].

[173] Ex. 4.23, Need JER, 28 [67], 32 [83].

[174] T4-40 [42]–[43].

[175] Ex. 5.14, Separate Report of Mr Leyshon on Economic Need, 9 [12].

[176] T4-45, [15]–[16].

[177] T4-48, [30]–[31].

[178] T4-46 [23]–[24]; Ex. 5.06, Separate Report of Mr Dimasi on Economic Need, 7 [2.9].

[179] T4-38 [28]–[34].

[180] T4-47 [32]–[38].

[181] Ex. 12.15, Letter from Deputy Premier to Gold Coast City Council.

[182] Ex. 4.23, Need JER, 42 [123(vi)].

[183] Ex. 8.03, 2016 Scheme Extracts, 5 [1.1(5)].

[184] Ex. 4.23, Need JER, 42 [125(e)].

[185] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, [60].

[186] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, [63] citing Hua Shang Co Pty Ltd v Brisbane City Council & Ors [1991] QPR 99, 102.

[187] Ex. 4.19, Town Planning JER, 101 [503].

Editorial Notes

Published Case Name:
Palmer v Council of the City of Gold Coast
Shortened Case Name:
Palmer v Council of the City of Gold Coast
MNC:
[2023] QPEC 47
Court:
QPEC
Judge(s):
McDonnell DCJ
Date:
22 Nov 2023

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Cases Cited List of Cases Cited by this judgment

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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
Arora Construction Pty Ltd v Gold Coast City Council	[2012] QPEC 52	2 citations Jump To Cite 1 - [2012] QPEC 52 Cite 2 - [2012] QPEC 52
Ashvan Investments Unit Trust v Brisbane City Council	[2019] QPEC 16	2 citations Jump To Cite 1 - [2019] QPEC 16 Cite 2 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor	[2019] QPELR 793	3 citations Jump To Cite 1 - [2019] QPELR 793 Cite 2 - [2019] QPELR 793 Cite 3 - [2019] QPELR 793
Bunnings Building Supplies Pty Ltd v Redland Shire Council	(2000) QPELR 193	1 citation Jump To Cite 1 - (2000) QPELR 193
Chaplin v Sunshine Coast Regional City Council	[2020] QCA 258	2 citations Jump To Cite 1 - [2020] QCA 258 Cite 2 - [2020] QCA 258
Cox v Brisbane City Council	[2022] QPEC 10	3 citations Jump To Cite 1 - [2022] QPEC 10 Cite 2 - [2022] QPEC 10 Cite 3 - [2022] QPEC 10
Fitzgibbons Pty Ltd v Logan City Council	(1997) QPELR 208	3 citations Jump To Cite 1 - (1997) QPELR 208 Cite 2 - (1997) QPELR 208 Cite 3 - (1997) QPELR 208
Indooroopilly Golf Club v Brisbane City Council	(1982) Q.P.L.R 13	3 citations Jump To Cite 1 - (1982) Q.P.L.R 13 Cite 2 - (1982) Q.P.L.R 13 Cite 3 - (1982) Q.P.L.R 13
Intrafield Pty Ltd v Redland Shire Council	[2001] QCA 116	2 citations Jump To Cite 1 - [2001] QCA 116 Cite 2 - [2001] QCA 116
Isgro v Gold Coast City Council	(2003) QPELR 414	3 citations Jump To Cite 1 - (2003) QPELR 414 Cite 2 - (2003) QPELR 414 Cite 3 - (2003) QPELR 414
Murphy v Moreton Bay Regional Council & Anor	[2020] QPELR 328	2 citations Jump To Cite 1 - [2020] QPELR 328 Cite 2 - [2020] QPELR 328
Skateway Pty Ltd v BCC & Ors	(1980) 1 APAD 417	2 citations Jump To Cite 1 - (1980) 1 APAD 417 Cite 2 - (1980) 1 APAD 417
TMP Holdings Pty Ltd v Caloundra City Council	[2002] QPELR 1	2 citations Jump To Cite 1 - [2002] QPELR 1 Cite 2 - [2002] QPELR 1
Trinity Park Investments Pty Ltd v Cairns Regional Council	[2021] QCA 95	2 citations Jump To Cite 1 - [2021] QCA 95 Cite 2 - [2021] QCA 95
Wilhelm v Logan City Council & Ors	[2021] QPELR 1321	2 citations Jump To Cite 1 - [2021] QPELR 1321 Cite 2 - [2021] QPELR 1321
William McEwans Pty Ltd v BCC	(1981) 1 Q.P.L.R 33	4 citations Jump To Cite 1 - (1981) 1 Q.P.L.R 33 Cite 2 - (1981) 1 Q.P.L.R 33 Cite 3 - (1981) 1 Q.P.L.R 33 Cite 4 - (1981) 1 Q.P.L.R 33

Cases Citing List of cases on Queensland Judgments citing this Judgment

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427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2)	[2024] QPEC 24	2 citations

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Palmer v Council of the City of Gold Coast[2023] QPEC 47