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CITE

Unreported Judgment
Appeal Determined (QCA)

McEnearney v Council of the City of Gold Coast[2024] QPEC 32McDonnell DCJ
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McEnearney v Council of the City of Gold Coast[2024] QPEC 32

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32
PARTIES:	SUE-MAREE MCENEARNEY (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) and RIDGE PROPERTIES PTY LTD (ACN 143 878 915) (Co-Respondent)
FILE NO/S:	222/23
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Southport
DELIVERED ON:	21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	3 and 7 to 10 May 2024
JUDGE:	McDonnell DCJ
ORDER:	The appeal is dismissed. The decision of the Respondent is confirmed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the Appellant appeals against the Respondent’s decision to approve a change application (other than for a minor change) to a development approval – where the Court is required to consider the impacts of the change application on community expectations, character, height, built form, location, amenity including noise, visual amenity, shadow impacts, loss of views and privacy and mix of uses – whether the impacts of the change application are acceptable having regard to the assessment benchmarks and other matters only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval – whether the change application should be approved in the exercise of the planning discretion
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors (2000) QPELR 193 Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors (2009) 164 LGERA 119 Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52 Fitzgibbons Hotel Pty Ltd, Tholian Nominees Pty Ltd & Ors v Logan City Council & Rolfe Pty Ltd [1997] QPELR 208 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; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Skateway Pty Ltd v Brisbane City Council (1980) 1 APAD 417 TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 Upan Company Pty Ltd v Gold Coast City Council [2022] QCA 75 WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54 Wilhelm v Logan City Council & Ors [2020] QCA 273 Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33
LEGISLATION:	Planning Act 2016 (Qld) ss 45(5), 60(3), 82, 82(2), 82(4), 82(6) Planning and Environment Court Act 2016 (Qld) ss 43, 45(1)(a)
COUNSEL:	J Bowness for the Respondent C Hughes KC, M Batty and L Walker for the Co-Respondent
SOLICITORS:	The Appellant was self-represented Corrs Chambers Westgarth for the Respondent MinterEllison Gold Coast for the Co-Respondent

Introduction

[1]
The Co-respondent has the benefit of a development approval for a material change of use for land located at 3 Rutledge Street, 2–18 Marine Parade and 119 Musgrave Street, Coolangatta (Development Approval). The land is more particularly described as Lot 1 on SP310551, Lot 20 on SP320551, Lot 3 on SP320551 and Lot 2 on C28551 (the Site).^[1] The Co-respondent seeks to change the Development Approval. This is a submitter appeal against the Respondent’s decision to approve an application to change the Development Approval.
[2]
The original development permit for a material change of use to facilitate a redevelopment of the Site was granted on 4 April 2014. That approved a 15 and 10 storey mixed-use development comprising Apartments, Resort hotel, Tavern, a Shopping centre and Service industry. That approval has been changed a number of times by way of minor changes and other changes.
[3]
The Development Approval is for a Material Change of Use for Multiple dwellings, Short-term accommodation, Resort complex, Food and drink outlet, Shop, Office, Health care services, Service industry and Hotel. It is proposed in 4 buildings over 4 stages, being:
1. Building 1 (16 storeys) (Stage 1) comprising multiple dwellings and the hotel use;
2. Building 2 (10 storeys) (Stage 2) comprising multiple dwellings and retail uses;
3. Building 3 (4 storeys) (Stage 3) comprising a resort complex and retail uses; and
4. Building 4 (3 storeys) (Stage 4) comprising multiple dwellings.
[4]
To facilitate changing the Development Approval, the Co-respondent made a change application to the Respondent (Change Application). The nature of the changes are characterised as “other than for a minor change”. This engaged s 82 of the Planning Act 2016 (Qld) (Planning Act). Section 82(2) required the Change Application to be administered, assessed and decided by the Respondent as if it were, amongst other things, the original development application inclusive of the changes, but made when the Change Application was made. Thus, the Change Application was treated as if it were impact assessable and required public notification. There were 39 properly made submissions.
[5]
On 15 June 2023, the Respondent resolved to approve the Change Application. The Appellant has appealed this decision to the Court.
[6]
The proposed changes can be summarised as follows:
1. the removal of Building 4 (formerly intended to be Stage 4);
2. changes to Building 2, to:
  1. its architectural design;
  2. increase its height from 10 storeys to 14 storeys, an increase of 11.2m;^[2] and
  3. provide an additional 7 dwelling units;
3. changes to Building 3, to:
  1. its architectural design;
  2. increase its height from 4 storeys to 7 storeys, an increase of approximately 5.1m; and
  3. provide an additional 14 hotel suites;
4. the consolidation of Stages 2 and 3 so that the development will proceed as two stages, with Stage 1, comprising Building 1, completed;
5. the introduction of an Indoor sport and recreation use;
6. an increase in the retail/commercial gross floor area (gfa) of the development from 2947m² to 4360m²;
7. internal amendments to the ground floor layout, tenancies and laneway; and
8. an increase in the amount of car parking provided from 540 to 621.
[7]
Mr Holmes, the Director of development at the KTQ Group, the entity that will manage the development and own and operate the resort complex in Building 3,^[3] explained the impetus for the Change Application is to:
1. allow more units in Building 2 to take better advantage of the Site’s northern aspect, facilitating more units of a high standard;
2. provide for larger apartments, to meet the expectations of purchasers, including to facilitate work from home arrangements, as the smaller 1 and 2 bedroom apartments in the approved development are no longer attractive to purchasers or feasible to build;
3. move communal recreation spaces to the rooftop so that more residents have the opportunity to enjoy the outlook to the ocean;
4. increase the yield of the resort complex to make it more viable and vibrant;
5. improve the aspect of rooms in the resort complex and ensure that they can be constructed more cost effectively;
6. increase the “critical mass” of retail and commercial space to implement KTQ’s vision of delivering a “lifestyle precinct” and activate this area; and
7. introduce an Indoor sport and recreation use (a gym) to activate the precinct during the day and provide a “full offer” gym to guests and residents.^[4]
[8]
It is uncontroversial that the Indoor sport and recreation use is the only new use. Its inclusion increases the commercial gfa by 411m². The use is code assessable in the Neighbourhood centre zone. The gym will comprise part of a larger “wellness centre” within the proposal.
[9]
The Appellant says the change would be unacceptable having regard to its impacts on character and amenity, including visual amenity, privacy and shadowing. The Appellant’s concerns arise because of the built form and height of the proposed development.
[10]
For the reasons that follow, I am satisfied that the Change Application ought be approved.

What are the features of the Site and the surrounding area?

[11]
The following description of the Site and neighbouring properties is taken from the Joint Expert Report of the Visual Amenity and Architecture experts, Mr Curtis, for the Co-respondent, and Mr Olsson, for the Respondent (VA JER).^[5] I accept this description, which is supported by Figures 2 to 9 and 11 to 31 of the VA JER.
[12]
The Site is located at the eastern end of the Kirra foreshore area, between Percy Pease Memorial Park (to the west) and Kirra Point (to the east), opposite the beach and the Kirra Beach Pavilion to the north. The Kirra Beach Pavilion houses the Kirra Beach Surf Lifesaving Club and a separate restaurant tenancy. It is a local heritage place.^[6] The Kirra Beach Pavilion’s principal façade addresses the beach. The building’s rear façade addresses Marine Parade. The building’s red hip and gable roofs distinguish the building and highlight its prominence along Marine Parade as a local landmark.
[13]
The Site has a total combined area of 8,973m², with frontages to Marine Parade, Miles Street, Musgrave Street and Rutledge Street. It comprises the whole block, with the exception of a 3 storey multi-unit residential building (“Wavebreak”) on the corner of Marine Parade and Rutledge Street.
[14]
It has been cleared of all former structures, other than the existing house at 119 Musgrave Street. The house will be demolished as part of the development. Stage 1 of the approved development, comprising Building 1, was completed in late 2023. Building 1, which is 16 storeys high, influences the character of the area particularly in relation to height. The Site is essentially level, other than for the abrupt incursion of Kirra Hill at the Site’s south-east corner where the existing house is located.
[15]
Recent high-rise development is located opposite Percy Pease Memorial Park along Musgrave Street and extends along Miles Street diagonally opposite the Site to the south-west.^[7]
[16]
To the east of the Miles Street intersection, Musgrave Street is comprised of three carriageways. The central primary carriageway extends over the Kirra Hill ridgeline. Towards the eastern end of the Site’s frontage to Musgrave Street, the adjoining lower carriageway service road terminates and transitions to a densely vegetated verge that is elevated above the Site to adjoin the central carriageway, providing visual screening to the Site below.
[17]
Opposite the Site, on the southern side of Musgrave Street, extending from the corner with Miles Street, is a 3 storey rendered masonry multi-unit residential building set back from the street behind the service road and landscaping. This building extends along the frontage to the end of the service road where the vegetated verge is elevated and rises above the primary central carriage. Two 2/3 storey detached houses adjoin the elevated verge on the slope of Kirra Hill. The eastern house is adjoining by two older 3 to 4 storey multi-dwelling buildings elevated above the carriageway. These buildings are partially screened by vegetation.
[18]
Rutledge Street is partially unformed. Two older multi-dwelling buildings referred to as “Kirra Gardens” and “Grand Corniche” are located on the eastern side of Rutledge Street, opposite the Site between Marine Parade and Musgrave Street, at the base of Kirra Hill. These buildings appear as 8 storeys when viewed from the west near the Site.^[8] The Appellant resides in this location.
[19]
The following description of the local area is taken from the VA JER, which I accept as it is supported by visual aids, particularly Figures 33 to 37:^[9]

“… the Site’s surrounding local area is primarily characterised by the following elements and relationships:

Kirra Hill, which is located at the eastern end of the Kirra foreshore where it provides a vertical edge and backdrop to the foreshore and separates it from the adjacent Coolangatta foreshore;

the coastal projection of Kirra Point at the northern end of Kirra Hill that has a vegetated rocky appearance and is a prominent local landmark;

the scale and horizontal expanse of the Kirra foreshore that includes the open landscape character of Roughton Park that adjoins Kirra Beach and provides panoramic views along the coastline and across the Coral Sea to the horizon; and

Musgrave Street that extends along the southern side of Roughton Park where it:

provides the principal means of access to the foreshore;
is the local area’s primary commercial strip;
has a highly legible east-west axial alignment that structures the local settlement pattern; and
provides an abrupt interface separating the adjoining existing development to the south from the foreshore open space to the north.

Notwithstanding the abrupt variations in the existing building heights along Musgrave Street, the built form is visually dominated by heights of up to 15 storeys that create a prominent vertical edge extending along the southern side of Musgrave Street. This vertical edge provides a robust contrast to the horizontal open expanse of the foreshore opposite and is complemented by the line and height of the Norfolk Island Pines along the southern side of Roughton Park adjoining Musgrave Street.

The perpendicular relationship of Kirra Hill (Kirra Point) and the existing development adjoining its eastern slope along Rutledge Street to the abovementioned vertical edge of built form along the southern side of Musgrave Street and Marine Parade assists to spatially define and frame the foreshore open space ...

This relationship also results in Kirra Hill terminating the vista to the east along Marine Parade … , which contributes to reinforcing a visual activity focus/node centred on the grouping of properties neighbouring the intersection of Marine Parade and Miles Street, which are the foreshore’s two primary access roads. The grouping is comprised of Percy Pease Memorial Park, the Approved Development, the high-rise development along Musgrave Street opposite the park, and the Kirra Beach Pavilion …”

[20]
In a planning context:
1. the Coolangatta major centre is approximately 550m to the east;
2. the Southern Cross University Campus is approximately 1.3km to the west;
3. the Gold Coast Airport Terminal is approximately 1.85km to the west;
4. the locality surrounding the Site comprises a mix of low-rise dwellings and low, medium and high-rise multiple dwellings;
5. taller buildings are generally located to the east on the higher ground behind the Site; and
6. there is a cluster of taller buildings to the west on and near Musgrave Street and to the east in the Coolangatta major centre.^[10]

What is the statutory assessment and decision-making framework?

[21]
The appeal is to be determined under the Planning Act and the Planning and Environment Court Act 2016 (Qld) (PECA), and proceeds by way of hearing anew.^[11] The Co-respondent bears the onus in the appeal.^[12]
[22]
The assessment and decision-making framework for the Change Application is set out in s 82(2) of the Planning Act which states:

“82 Assessing and deciding change applications for other changes

…

For administering the change application, and assessing and deciding the change application in the context of the development approval, the relevant provisions apply—

as if—

the responsible entity were the assessment manager; and

the change application were the original development application, with the changes included, but was made when the change application was made; and

with necessary changes.”

[23]
The expression “relevant provisions” is defined in s 82(6) of the Planning Act as follows:

“(6) In this section—

relevant provisions means—

section 45(6) to (8); and

part 2, division 2, other than section 51; and

part 3, other than sections 63 and 64(8)(c); and

the development assessment rules.”

[24]
To administer the Change Application as if it were the original development application inclusive of the changes proposed requires the impact assessment process to be applied, with necessary changes.
[25]
Section 82(4) of the Planning Act is also relevant to assessing and deciding the change application. This provision states:

“(4) To remove any doubt, it is declared that the following matters apply, only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval—

the assessment benchmarks;

…

if the development to which the change application relates requires impact assessment—any matters the assessment must or may be carried out against or having regard to under section 45(5)(a)(ii) or (b).”

[26]
The Appellant submitted that:
1. this assessment regime does not make the existing Development Approval a benchmark;^[13]
2. the prior decision to approve buildings over 3 storeys in height on this Site does not justify approving this change which also sees development in excess of the Building height overlay map.^[14]
3. that the requirements that the changes not be considered in “isolation” and that assessment of “additional”, “increase” and “incremental” impact is flawed.^[15] Rather, the Appellant submitted the change application must be assessed against the assessment benchmarks relevant to a 14 storey building in that location.^[16]
[27]
This approach ignores the preceding words in s 82(4) that the assessment benchmarks apply “only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval”. It is not disputed that the existing Development Approval is not a benchmark.
[28]
These provisions have been considered by the Court in some detail in Catterall & Ors v Moreton Bay Regional Council & Anor^[17] in which Williamson KC DCJ made the following observations with which I respectfully agree:

“[41] It was uncontroversial as between the appellants and co-respondent that s 82 of the PA conferred a broad discretion on the responsible entity (or this court on appeal) to decide the change application as if it were impact assessable…

[42] I agree the discretion to decide the change application is broad and, subject to contextual changes, is guided by, inter alia, relevant principles discussed in Ashvan Investments and Murphy. An important contextual change is identified in ss 82(2) and (4) of the PA. Both of these provisions include the phrase ‘in the context of the development approval’. The purpose of this phrase is to make clear that the assessment and decision making process occurs in the context that the application is one to change an existing development approval, as distinct from a fresh development application. In practical terms, this means the assessment and decision making process for a change application under s 82 of the PA is founded upon, but not limited to:

an identification of the change/s proposed to the development approval;

an identification of the planning issues, be they positive or negative, arising for consideration as a consequence of the change/s proposed to the development approval; and

an assessment of the planning issues arising as a consequence of the change/s to the development approval, having regard to the requirements of the ‘relevant provisions’, and assessment benchmarks, to the extent they are relevant.

…

[46] Whilst it can be accepted that the assessment process for a change application under s 82 of the PA involves more than a comparison of approved and amended plans, it is of little assistance to describe the assessment, in general terms, as broad or narrow. This is because the breadth of an assessment will be a product of the precise changes proposed to an approval, and the planning issues arising for consideration as a consequence of those changes. In some cases, the extent of change may require a broad assessment. In other cases, the extent of the change may require a more limited assessment. No hard and fast rule can be prescribed as a consequence. It will inevitably turn on the facts and circumstances of each case. Two points can however be made with certainty about the breadth of an assessment under s 82 of the PA.

[47] Having regard to s 82 of the PA, it is clear the assessment process does not require the development, including the change, to be assessed as if it were a fresh development application. Nor does the exercise involve an assessment of the changes proposed in isolation, or out of context….” (footnotes omitted).

[29]
Similarly, the Court of Appeal observed in Upan Company Pty Ltd v Gold Coast City Council:^[18]

“In the course of his analysis the learned primary judge identified that the approved development itself had been non-compliant with the City Plan, but the Council had approved it notwithstanding material areas of non-compliance. I pause to note that the fact that the approved development had been non-compliant with the City Plan was not a matter before his Honour as part of the appeal. In other words, the Council having approved it and granted a development approval, and there being no appeal in respect of the approved development, there was nothing that the learned primary judge could do about it. The subject matter of the appeal with which his Honour was dealing was the proposed change to that approval.”

[30]
The assessment and decision making process is to be approached, subject to contextual changes, consistently with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,^[19] Abeleda & Anor v Brisbane City Council & Anor,^[20] Wilhelm v Logan City Council & Ors,^[21] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.^[22] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.^[23] That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.^[24]

What is the planning framework?

[31]
The Site is in the Urban footprint of the South East Queensland Regional Plan 2017. The Gold Coast City Plan 2016 (Version 8) (Scheme) was in effect at the date the application was properly made.^[25] Version 9, Version 10 and Version 11 (now in effect) have come into effect since Version 8. The designations and zoning of the land remain unchanged in Versions 9, 10 and 11.^[26] There is no suggestion that the later versions are relevant to the Court’s determination. I proceed on the basis that Version 8 only is relevant. Development may comply with either the purpose and Overall outcomes, or the Performance or Acceptable outcomes to comply with the relevant codes.^[27]
[32]
The Site is mapped on the Strategic framework maps as follows:
1. Strategic framework map 1 – Designated urban area: Urban area category;
2. Strategic framework map 2 – Settlement pattern: Urban neighbourhoods category and Investigation for light rail urban renewal area category;
3. Strategic framework map 3 – Light rail urban renewal area: Site not mapped;
4. Strategic framework map 4 – Green space network: Landscape character areas (Kirra Point and Kirra Hill) category;
5. Strategic framework map 5 – Focus areas for economic activity: Coastal tourism/urban strip category;
6. Strategic framework map 6 – Integrated transport: Site is near Coastal pedestrian and cycle network strategy;
7. Strategic framework map 7 – Strategic infrastructure sites and corridors: Site is near Investigation for light rail corridor category;
8. Strategic framework map 8 – Coomera town centre area (indicative access and mobility): not applicable; and
9. Strategic framework map 9 – Consolidation and expansion areas: Consolidation area category.
[33]
The Site is included in the Neighbourhood centre zone and is subject to a number of Scheme overlays, relevantly:
1. Building height overlay: 3 storeys and 15m category; and
2. Residential density overlay: RD6 category up to 300 bedrooms per net hectare (1 bed/33m²).
[34]
The Neighbourhood centre zone extends west of the Site along the southern side of Musgrave Street to Haig Street. The total area of land in the Neighbourhood centre zone between Rutledge Street in the east and Haig Street in the west is approximately 2.8ha with a length of approximately 55m. With the exception of the Site, the land in the Neighbourhood centre zone has a maximum building height of 29m on the Building height overlay map.^[28] The Site is subject to a 3 storey height designation. The existing approval is in excess of this 3 storey height designation. This non-compliance increases with the changes proposed.
[35]
Land to the north, west and north-east of the Site (including Percy Pease Park) is included in the Open space zone. Land to the near south, south-west and east is included in the Medium density residential zone, with the Coolangatta major centre further to the east included in the Centre zone.

What are the issues requiring determination?

[36]
The issues in dispute were agreed by the parties.^[29] Appropriately, through the course of the hearing, the Appellant revised the issues, identifying issues no longer in dispute, conceding that the proposal complied with those provisions. The issues raised require the Court to consider community expectations, character, height, built form, location, amenity including noise, visual amenity, shadow impacts, loss of views and privacy, mix of uses, matters in support of approval and matters in support of refusal.
[37]
The Appellant was not content with the identification of the changes agreed between the Co-respondent and the Respondent. The Appellant summarised the nature and extent of the changes as follows:

“(a) An increase in the number of beds from 490 to 550, an increase of 60 beds and 12.4%. The residential density for the Site is 272. The 550 beds proposed is a 103% increase over the residential density overlay map.

The residential density overlay map shows the residential density for the Site at 1 bed per 33m². The 2019 approval sits at 1 bed per 18m². The proposed 2022 application would result in 1 bed per 16m². This is greater than the 1 bed per 25m² that is set for the very centre of the Kirra neighbourhood zone.

…

The enlargement of Stage 2 of the development is an increase from 14,904m² to 23,568m², an increase of 8,664m². This is a 58% increase in the gfa of Stage 2 of the development Buildings 2 and 3.

The enlargement of Building 2 of the development is an increase from 8,173m² gfa to 14,165m² gfa, an increase of 5,992m² gfa. This is a massive increase of 73% to the gfa of Building 2.

The enlargement of Building 3 of the development is an increase from 3,501m² to 5,043m², an increase of 1,542m². This is an increase of 44% to the gfa of Building 3.

The increase in the height of Building 2 from 10 storey to 14 storey in a 3 storey height limit takes the uplift above the 3 storeys from 233% to 367%.

The increase in the height of Building 3 from 4 storeys to 7 storeys in a 3 storey height limit takes the uplift above the 3 storeys from 50% as provided for in the City Plan to 133%.

The increase in the floor plate of Building 2 from 914m² to 1,629m² is an additional 715m², which is an increase of 78%. This is 117% above the City Plan floor plate limit of 1750m².

The increase in the floor plate of Building 3 is from 1,011m² to 1,083m². This is an increase of 72m², an increase of 7%. This is 44% above the City Plan floor plate limit of 750m².

The increase in Retail/Commercial space for the development as a whole has increased from 2,947m² to 4,360m², an increase of 1,413m². This is an increase of 48%.

…

The decrease in separation distance between Building 2 and Building 3 has reduced from 13m to 10m in circumstances where the City Plan requires 25m. This is 60% less than what is required by the City Plan.

The decrease in communal open space has reduced from 10,750m² (as required by the City Plan) to 2,505m², a decrease of 8,200m² and 77% below what is required by the City Plan.”^[30]

[38]
These changes were raised in the “Background” section of the issues document. I took this to mean that they are raised as relevant to the consideration of the changes, rather than as issues requiring determination. Many of the metrics in [37] are expressed in terms of a percent in excess of or below that said to be identified by a Scheme provision. This approach fails to have regard to:
1. the Development Approval;
2. the nature of the assessment required to be undertaken;
3. that the particular Scheme provision relied upon in ascertaining a particular metric is but one means of achieving compliance with the relevant code; and
4. the removal of Building 4. It is not apparent how the metrics relevant to the removed Building 4 have been recognised in these figures.

For these reasons, where the provision in issue requires consideration of the metric identified, I have had regard to the particular metric. However, the focus of the assessment and decision-making is on the planning issues arising as a consequence of the changes, as observed above.

What are the community expectations?

[39]
The Respondent received 39 properly made submissions in respect of the Change Application.^[31] One submission supports the change. The other 38 object to it. These submissions and the Appellant’s statement raise the following areas of concern:
1. excessive building height beyond that envisaged in the Building height overlay mapping maximum and the 50% uplift, and shadow impacts;
2. noise impacts, particularly in relation to the relocation of the hotel pool and activity to the rooftop of the hotel component;
3. character and visual impacts;
4. traffic impacts on the local road network and insufficient vehicle parking;
5. impacts on views;
6. inappropriate land use;
7. inadequate building setbacks; and
8. excessive residential density.
[40]
The Scheme and the Development Approval for the Site inform the community’s reasonable expectations as to the development that may occur on the Site as well as the character of the Site and its contribution to the character of the locality. The statement and properly made submissions give insufficient weight to the Development Approval. For this reason, the statement and submissions do not establish a reasonable expectation about the nature of the built form on the Site against which the Change Application should be considered. However, in the course of dealing with the issues in dispute, I have been conscious of the submitters’ and Appellant’s concerns, particularly where they are associated with the changes.

What are the Scheme provisions in issue relevant to a consideration of these matters?

[41]
In addition to the height uplift provisions of the Strategic framework and PO3/AO3 of the Neighbourhood centre zone code (extracted further below), the following Scheme provisions are in issue.
[42]
Strategic outcome 3.4.1(8) of the Strategic framework provides:

“Varied building height and form throughout the network of centres reinforces urban legibility and centre identity, creates a sense of place and supports housing choice and affordability.

In mixed use centres and specialist centres, building height and form reinforce the need for higher levels of activity and intensity. The highest intensity of built form occurs in the highest order centres.

In neighbourhood centres, building form is more intensive than surrounding neighbourhood areas, but provides a sensitive transition to nearby residential areas. Building height complements the surrounding neighbourhood.”

[43]
Specific outcome 3.4.5.1(5) of the Strategic framework provides:

“Building height in neighbourhood centres complements the function and desired future appearance of its surrounding neighbourhood.”

[44]
Specific outcome 3.4.5.1(8) of the Strategic framework relevantly provides that the design, location and operation of neighbourhood centres ensures they:
1. are established in locations where they can effectively serve neighbourhood needs and integrate with existing neighbourhood focal points such as public transport services, parks and other community facilities wherever possible;

…

are not dominated by supermarkets or bulky and large built form;
are separated by a minimum 1000 metre walk from any existing centre, except where within the light rail urban renewal area or large master planned sites where this does not undermine the orderly development or viability of nearby centres; and
maintain the reasonable amenity expectations of nearby residents, having regard to local character, built form and residential amenity in terms of noise, parking and other associated trading impacts.

[45]
From the Neighbourhood centre zone code:

“(1) The purpose of the Neighbourhood centre zone code is to provide for a small mix of land uses to service residential neighbourhoods.

It includes small scale convenience shopping, professional offices, community services and other uses that directly support the immediate community.

The purpose of the code will be achieved through the following Overall outcomes:

Land uses –

provide day-to-day goods and services and diverse business opportunities without exceeding the needs of the immediate neighbourhood, detracting from the residential amenity of the area or undermining the viability of mixed use or specialist centres;

…

Housing is provided at a form, scale and intensity that is appropriate for the zone and each particular locality it is in where the following outcomes are satisfied:

…

retention of important elements of neighbourhood character and amenity, and cultural heritage;

…

Built form –

is of a height and density that complements its surrounding neighbourhood.”

…

PO4

Density does not exceed that shown on Residential density overlay map.

Where not identified on the overlay map, density does not exceed one dwelling per 400m².

For Rooming accommodation, accommodating more than four unrelated people, density does not exceed one bedroom per 133m².

AO4

No acceptable outcome provided.

PO10

Non-residential development:

serves the needs of the immediate neighbourhood catchment – generally calculated as the planned population and jobs within a 1,000 metre walk from the centre;

supports a range of neighbourhood centre uses and enterprise opportunities; and

provides a range of goods and services to satisfy the day to day convenience needs of the immediate neighbourhood catchment.

AO10

No acceptable outcome provided.

[46]
From the High-rise accommodation design code, relevant to Building 2:

“(2) The purpose of the code will be achieved through the following overall outcomes:

Development is designed to create attractive, high-quality visually appealing buildings and protect the privacy and amenity of neighbouring residential premises.

Slender towers relate to existing high-rises and enhance views of the city skyline.

Tower development mitigates negative visual and physical impacts through appropriate setbacks and design.

Where they occur (in accordance with zone intentions), podiums are designed to engage with the street and be of a scale that is complementary to adjoining and nearby buildings.”

…

Performance outcomes

Acceptable outcomes

Tower base (podium)

PO1

Where podiums are envisaged by the zone, tower base form respects the framework of established built form, adjacent streets, parks and public or private open spaces.

AO1.1

Tower base heights:

are well-proportioned to frame adjacent park land and on-site open space;

match neighbouring low-set built form; or

are no greater than 10.5 metres in height where no neighbouring low-set built form exists.

AO1.2

Tower base setbacks:

match adjacent established setbacks; and

continue public open space areas provided along street frontages.

PO4

Slender tower form promotes:

open, attractive and distinct skyline;

small, fast moving shadows;

view corridors between nearby towers;

…

balconies as an extension of indoor living space.

AO4.1

Tower floor plate is limited to 750m² per tower (includes all services, lift and stairwell annex, etc.)

Note: Balconies are excluded from calculations to encourage larger private outdoor space areas.

AO4.2

Tower form provides a unique profile when compared to nearby existing and proposed towers of similar height.

PO5

Tower form mitigates negative visual and physical impacts, including impacts on privacy, by setting back from streets, parks, open space and adjacent properties and tower forms.

AO5.1

Tower form (including balconies) along:

single frontages step in at least 3m from the base (podium); or

corner frontages can have up to 1/3 tower width extend straight down at the corner point to reinforce the intersection if negative ground level wind effects are mitigated.

AO5.2

New towers are separated a minimum distance of 25m from any existing or approved adjacent and on-site tower(s).

AO5.3

Tower form is coordinated to off-set with adjacent existing and proposed towers to ensure:

prominent tower views to natural features like the beach and rivers are not obstructed; and

views of the sky and access to sunlight from the public realm and private open space areas are maximised.

PO11

Communal space areas:

are accessible, useable and safe;

enhance the attractiveness of the development;

provide opportunities for social interaction; and

create pleasantly shaded outdoor areas.

AO11.1

Communal space is provided at a rate of 11m² per intended user of the site and is designed for simultaneous use by individuals and groups.

…

[47]
From the Multiple accommodation code, relevant to Building 3:

PO10 Where the development includes five or more dwellings, communal open space is provided on site that: is accessible, useable and safe; is available for the recreational use of all occupants of the development; provides outdoor recreational areas required to service the open space needs of residents or guests of the development; aesthetically complements buildings on the site; enhances the attractiveness of the development; provides opportunities for social interaction; is designed and located to reduce internal and external impacts on the amenity of residents and neighbouring premises; and creates a pleasant streetscape by establishing landscaped (incorporating shade trees where practicable) areas adjoining the frontages of the development.	AO10.2 Communal open space including any landscaped area is provided at the following rates:
	11m²	for every bedroom, or 10m² (or part thereof) of the area provided for sleeping within a short-term accommodation, hostel, or residential care facility
	22m²	for each one bedroom dwelling
	35m²	for each two bedroom dwelling
	45m²	for each dwelling of three or more bedrooms

[48]
From the General development provisions code 9.4.4.2(2):

“(2) The purpose of the code will be achieved through the following overall outcomes:

Development is designed to maintain the expected level of amenity for the area.

…

Performance outcomes

Acceptable outcomes

Amenity protection

PO1

Development mitigates any negative effects to amenity, health and safety from existing surrounding activities having regard to:

noise;

hours of operation;

…

visual amenity;

…

privacy;

…

AO1

No acceptable outcome provided.

PO2

The proposed development prevents loss of amenity and threats to health and safety, having regard to:

noise;

hours of operation;

…

visual amenity;

…

privacy;

…

AO2

No acceptable outcome provided.

Shadow Impacts – for all development 3 or more storeys

PO8

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

the degree of containment of the shadow on the subject site at different times of the day on the summer and winter solstice and spring and autumn equinox;

the cumulative impact of the shadow and existing shadows;

the effect of the shadow on the ocean beach, Broadwater foreshore, or riverside or beachside public open space;

the location of the shadow on non-residential areas external to the site; and

the effect of the shadow on any other site or other building.

AO8.1

The width of the shadow cast in any direction by each level of the building, excluding balconies and lift wells, does not exceed twice the width of the shadow cast in any other direction.

Note: Figure 9.4.4-1 not inserted.

AO8.2

The shadow cast by the building in a true south direction has a length 0.25 times the height of the building, as measured from ground level adjacent to the southern side of the subject building to the top of the topmost storey, and does not intrude onto any other site, or does not cast shadow onto any other building on the same site.

Note: Figure 9.4.4-2 not inserted.

AO8.4

The shadow cast by any building does not cover any part of the ocean beach or Broadwater foreshore when the shadow has a bearing of 145º east of true north and the length of the shadow is 1.6 times the height of the building as measured from the ground level to the top of the topmost storey.

Note: For the purpose of this acceptable outcome, the ocean beach is defined as that area east of a line 10m east of and parallel to the foreshore seawall line and the Broadwater foreshore is defined as that area east of the leading edge of the revetment wall.

Built form, scale and character

[49]
In addition to the evidence of Mr Curtis and Mr Olsson, the Court also had the benefit of the evidence of the town planners, Mr Perkins for the Co-respondent, and Mr Buckley for the Respondent.
[50]
At the direction of Mr Curtis and Mr Olsson, photomontages were prepared as a visual aid. The viewpoints for these photomontages were selected and agreed by Mr Curtis and Mr Olsson and were not challenged in cross-examination. I accept Mr Olsson’s evidence that the photomontages, rather than the elevations, provide a more realistic view of the before and after proposals, including a better contextual consideration, particularly in relation to topography and other buildings.

Height

[51]
A significant issue for the Appellant is the proposed height of the buildings, which is non-compliant with the 3 storey (15m) limit specified on the Building height overlay map.
[52]
Ordinarily, such a non-compliance would warrant significant weight in the exercise of the Court’s discretion about whether to approve a development application. However, the following matters are relevant in the consideration of this non-compliance.
[53]
First, Building 1, at 16 storeys, is non-compliant and influences the character of the Site and the locality. To ignore this building would be to ignore a factor which influences the current character of the Site.
[54]
Second, the Development Approval authorises development which far exceeds that specified on the Building height overlay map. The history of the approvals for the Site reveals that, relevantly:
1. the original approval was granted in 2014 and pre-dates the building height strategy in the Scheme. Buildings of 10 and 15 storeys were approved;
2. approved Buildings 1 and 2 have exceeded the 50% height uplift of the designation that now exists since originally approved in 2014;
3. approved Building 3 exceeds the building height overlay designation at 4 storeys, but was approved after being assessed against s 3.3.2.1(9); and
4. there has always been a 4 level hotel/resort component as part of the original approval.
[55]
The existing non-compliance with the Building height overlay map is exacerbated by the change as follows:
1. Building 1: approved at 16 storeys (no change);
2. Building 2: approved at 10 storeys, proposed at 14 storeys;
3. Building 3: approved at 4 storeys, proposed at 7 storeys; and
4. Building 4: approved at 3 storeys (no longer proposed).^[32]
[56]
As Kefford DCJ observed in Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast,^[33] s 3.3.2.1(10) should not be applied in an inflexible or unyielding way, in circumstances where the existing built form does not reflect the planned building height pattern and the desired future character of the area depicted on the Building height overlay map, and the lawful use of the land far exceeded the planned maximum building height.^[34]
[57]
Third, the appeal is about a change application. It must be assessed and decided “in the context of the development approval.”^[35] The assessment benchmarks and other matters pursuant to s 45(5) of the Planning Act apply to this assessment “only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval.”^[36]
[58]
The existing and approved built form on the Site is highly relevant to the Court’s assessment. Both far exceed the planned maximum building height. The Change Application must be considered in that context. For these reasons, that the proposal is non-compliant with the Building height overlay map should not be determinative of the appeal.
[59]
Scheme provisions indicate the Site may accommodate a more intense development outcome than other land included in the Urban neighbourhoods designation, if other criteria are met. The Site is included in the Neighbourhood centre zone. While a “neighbourhood centre” may form part of an “urban neighbourhood”, there are other, finer grained provisions which apply to the Site which envisage a greater level of intensity because the Site is within a particular locality and designated as a neighbourhood centre. The Strategic framework provisions dealing with neighbourhood centres, and the Neighbourhood centre zone code, contain more specific provisions relating to land use, intensity, character and amenity expectations for the Site than the Urban neighbourhoods element. The following matters indicate a more intense land use and built form is envisaged on the Site.
[60]
First, the Scheme provisions regarding neighbourhood centres encourage more intensive development provided it sensitively transitions to surrounding residential areas and does not undermine the centres’ hierarchy. Relevantly, 3.4.1(8) of the Strategic framework provides:

“Varied building height and form throughout the network of centres reinforces urban legibility and centre identity, creates a sense of place and supports housing choice and affordability.

…

[61]
Second, the Scheme recognises that Coolangatta, and adjoining Kirra and Rainbow Bay, is the heart of international surfing.^[37] Kirra is intended to provide tourist accommodation and facilities that appeal to family holiday makers and those wishing to stay in a less intensive tourist environment.^[38] To put that into perspective, the greatest proportion of tourist accommodation and facilities is to occur close to the larger coastal centres including Surfers Paradise and Broadbeach. The areas of lowest intensity include Main Beach, Chevron Island, Budds Beach, Mermaid Beach, Burleigh Heads, Currumbin and Tugun. Kirra falls in between these two groups. This is not suggestive of a low intensity outcome.
[62]
Third, PO3 of the Neighbourhood centre zone code reveals the intent of the Building height overlay map in that zone. It provides:

PO3

Development is of a height that:

promotes the intended character of the zone; and
does not impact on the amenity of adjoining uses.

AO3

Building height does not exceed 2 storeys with a maximum height of 14m or that shown on the Building height overlay map.

AND

Structures do not exceed a height of 14m or that shown on the Building height overlay map.

This requires consideration of qualitative matters of character and impact on amenity when determining whether more intense development is appropriate for the Site.

[63]
In the context of considering the impacts of increased height upon character and amenity it is appropriate to have regard to the planning rationale for the height designations. This rationale can be determined from Specific outcome 3.3.2.1(9).
[64]
The Strategic framework height uplift provisions, ss 3.3.2.1(8), (9) and (10), provide as follows:

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

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

a reinforced local identity and sense of place;

a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;

a varied, ordered and interesting local skyline;

an excellent standard of appearance of the built form and street edge;

housing choice and affordability;

protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;

deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and

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

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

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

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

[65]
For the reasons that follow, I am satisfied that the proposal meets the qualitative objectives of s 3.3.2.1(9) of the Strategic framework, promotes the intended character of the zone and does not impact on the amenity of adjoining uses consistent with PO3 of the Neighbourhood centre zone code.

Character

[66]
The local character of an area should be interpreted broadly, and not by reference to a narrow inquiry.^[39] Mr Curtis and Mr Olsson agreed that the existing character is informed by Kirra Hill, Kirra Point, the foreshore and Musgrave Street. The built form in the locality is “visually dominated” by heights up to 15 storeys that create a prominent vertical edge extending along the southern side of Musgrave Street.^[40] Kirra Hill terminates the vista to the east along Marine Parade, reinforcing a “visual activity focus/node” centred on the group of properties neighbouring the intersection of Marine Parade and Miles Street. This identification of a “node” is consistent with the Scheme provisions, supporting a more intense development on the Site. It also assists to create a sense of place.
[67]
The emerging character of the area is informed by development over the last 10 years comprising ongoing medium and high-rise mixed use and multiple dwellings. These buildings have become a dominant building typology neighbouring the coastline. The planned character for Kirra, as informed by the Scheme, includes:
1. tourism activity centred around the beach;^[41]
2. an intended mix of tourism and housing which varies from the offering at Surfers Paradise and Broadbeach, by being “less intense” and more family oriented, but more intense than other beachside communities such as Main Beach and Burleigh Heads;^[42]
3. protection of the Kirra Beach pavilion as a local heritage place;^[43]
4. taller development along the southern side of Musgrave Street and Marine Parade, with development stepping down in height and density to the south;^[44] and
5. a neighbourhood centre, including the Site, as its “focal point” with more intense development outcomes.^[45]
[68]
For the balance of the Neighbourhood centre zoned land extending west along Musgrave Street to Haig Street, and the Medium density residential zoned land to the south and west between Musgrave Street and Winston Street, the Building height overlay map provides for a maximum height of 29m, and 43.5m if the height uplift criteria are satisfied. The buildings existing or under construction in this area are generally 12 to 15 storeys, with only a few lower at 7 to 8 storeys. As Mr Buckley opined, that the Site is opposite and offset from this Kirra “spine” on the southern side of Musgrave Street would not be readily appreciated by those passing along Marine parade and Musgrave Street. I accept Mr Curtis’ evidence that Building 1 has transformed the previous low rise character of the Site from the former 2 storey Kirra Beach Hotel to a high-rise urban centre focus consistent with the scale and intensification of the existing development along Marine Parade and Miles Street.^[46] Mr Olsson agreed, observing that the proposed heights are consistent with the emerging character of the Kirra neighbourhood centre and the “spine”, and assists in creating a varied and interesting local skyline.^[47]
[69]
I accept this evidence. The building heights proposed are consistent with building heights in the local context and the emerging character of the Kirra neighbourhood centre and the high-rise “spine” along the coastal strip.^[48] For these reasons, I am satisfied they complement the “desired future appearance” of the surrounding neighbourhood in satisfaction of Specific outcome 3.4.5.1(5) of the Strategic framework.

Visual amenity

[70]
Mr Curtis undertook a detailed analysis of the viewpoints.
[71]
In respect of Building 2, he observes that, compared to the Development Approval, it:
1. maintains a similar physical separation to Building 1 and has a similar tower width;^[49]
2. similarly provides a “robust vertical building edge along the northern side of Musgrave Street that contrasts with the existing development opposite but complements the height and vertical edge of the existing high-rise developments along Musgrave Street and Miles Street to the west;”^[50]
3. has a legible height differentiation with the taller Building 1, when viewed from neighbouring public spaces, and maintains a gradation of building height to the east;^[51]
4. has a more animated façade appearance due to the curvilinear/angled alignment of its balconies;^[52]
5. continues to provide clear visual expression of the individual human scale storeys and activate the façade appearances through the balconies and projecting floor slabs;^[53]
6. achieves a more open and transparent appearance through legibly thinner glass balustrades;^[54]
7. provides greater setbacks to external walls of the upper storeys relative to the storeys below, to differentiate the top of the building and provide a more distinctive “crowning” of the built form;^[55]
8. provides a revised podium arrangement, providing a coherent base to the built form and maintaining a visual reference, but fractures the overall height of the building to provide a transition in height and scale to the pedestrian environment;^[56] and
9. with respect to Musgrave Street:
  1. the podium of Building 2 provides a similar gradation in height to the former Building 4;
  2. the building appears as a modulated and undulating wall of vertical blade louvres punctuated by vertical recesses and balcony openings. The height of the mid-rise façade relates to the height of the existing development on the opposite side of Musgrave Street;^[57] and
  3. the building contributes to a more visually cohesive streetscape.
[72]
In respect of Building 3, Mr Curtis observes that, compared with the Development Approval, it:
1. adopts an orthogonal form consistent with Buildings 1 and 2, and other neighbouring buildings;
2. will continue to provide a gradation in height to the north when viewed from neighbouring public spaces;
3. has external colouring that complements the colour of the “Wavebreak” building;
4. includes a highly articulated podium reinforcing the spatial definition of the street; and
5. includes design features at Levels 2 to 5 that assist and mitigate the visual impact of the bulk, providing depth to the visual mass.
[73]
Mr Curtis considers that the changes result in improvements to Buildings 2 and 3, when compared with the Approved Development, as they will:
1. have a more varied, refined and interesting form and façade appearance that effectively mitigates the visual impact of its bulk;
2. have a more cohesive visual relationship to the neighbouring multiple dwellings, including those on the southern side of Musgrave Street; and
3. contribute to a more cohesive and consistent local urban structure and character.
[74]
Mr Curtis’ opinions are shared by Mr Olsson.^[58] I accept this evidence, which is supported by the photomontages and plans.

Floor plate size and gfa

[75]
There are no assessment benchmarks nominated by the Appellant that apply a limit on development in respect of gfa. The floor plate size is relevant to AO4.1 of the High-rise accommodation design code, which is applicable to Building 2. The floor plan size specified in the Acceptable outcome is exceeded by the Development Approval. The 750m² floor plate “requirement” for the Site is an Acceptable outcome under the High-rise accommodation design code, not a requirement.
[76]
Consideration has been given to the issues relevant to the corresponding Performance outcome (PO4) in these reasons and I am satisfied that there is compliance with PO4 of the High-rise accommodation code.

Density and intensity

[77]
The changes result in an increase in residential density on the Site from approximately 1 bed per 18m² to 1 bed per 16m². This is a continued non-compliance with Performance outcome PO4 of the Neighbourhood centre zone. However, it is not a significant increase in density, having regard to the density approved.
[78]
Mr Perkins and Mr Buckley opined that the town planning implication for increased density is increased demand on infrastructure. The Council officers indicated that there is sufficient capacity in the urban services including water, sewer and transport networks to cater for the increased density. I accept that the increased residential density and commercial floor space will not compromise the provision of these services.
[79]
If the intensity or density of development are inappropriate, that would ordinarily be reflected in unacceptable impacts arising from the development. The alleged impacts are examined throughout these reasons. No such impacts are supported by the evidence. The additional land use and increase in intensity of the use by way of increased commercial gfa, number of hotel rooms and residential density are acceptable for the following reasons.
[80]
First, while the Site has a density designation of 1 bed per 33m², compliance may be achieved with the Neighbourhood centre zone code by compliance with Overall outcome 2(d)(i) of the code. I accept Mr Perkins’ evidence that the proposed density will complement the surrounding neighbourhood, having regard to its existing character incorporating development of considerable scale.
[81]
Second, for the reasons in [60] and [61], the Scheme envisages a greater level of intensity on the Site, provided other criteria are met.
[82]
Third, the intensity and density are similar to those already approved,^[59] and remain consistent with the emerging character of the locality.
[83]
For these reasons, I am satisfied that there is compliance with Overall outcome 2(d)(i).

Communal open space

[84]
The Appellant submits that the amount of communal open space proposed is insufficient. In respect of Building 2, PO11/AO11 of the High-rise accommodation design code applies. In respect of Building 3, PO10/AO10 of the Multiple accommodation code applies.
[85]
The Change Application locates communal open space on the rooftops of Buildings 2 and 3. Proposed Building 2 has a useable rooftop recreation area of 500m², including a swimming pool, spa, dining and recreation area, with a roof over. It is intended as a recreational space for Building 2 residents. Proposed Building 3 has a 1083m² rooftop terrace area with useable communal open space comprising 866m², and includes a swimming pool, recreation pool and a bar. The amenity is enhanced with pergolas, shade structures and landscaping. While the tops of the buildings are higher, they are stepped in, providing what Mr Curtis described as a “distinctive crowning” of the buildings,^[60] reducing impacts on amenity and enhancing the attractiveness of the development.
[86]
The proposed communal open space outcomes are superior to the outcomes in the Development Approval for the following reasons. Users of these open space areas will have views to the beach and surrounding areas. They also offer the opportunity for breezes and sunlight for all occupants of the buildings. The nature of these spaces will “provide opportunities for social interaction”, create pleasantly shaded outdoor areas, enhance the attractiveness of the development and will be accessible, useable and safe. For these reasons, I am satisfied that there is compliance with PO11 of the High-rise accommodation design code, and PO10 of the Multiple accommodation code.

Architectural merit

[87]
Having regard to the evidence of Mr Curtis and Mr Olsson, I accept that the change will result in an improved development outcome. The particular architecturally meritorious features include:
1. the change in Building 2 better differentiates from Building 1 so that the two do not appear together, but rather as different. This reduces the appearances of the bulk;
2. the screening the lower part of Building 2 provides a visual focus closer to the ground for pedestrians and provides a sympathetic relationship to the scale of the buildings on Musgrave Street. The buildings provide a gradation of scale and bulk better relating it to the existing context of Musgrave Street;
3. the top of the building steps down and incorporates some landscaping;
4. there is cohesion in building form;
5. changes in the articulation, fenestration and design;
6. Building 3 is more consistent with the grid-like urban form of the area and the colour is more complementary to the area, the setting, and the beach;
7. the grid pattern to the façade erodes the bulk of the building; and
8. the roof of Building 2 will provide a functional roof terrace with a degree of permeability.
[88]
The design features of the buildings mitigate the visual impact of the bulk of the buildings. I accept this evidence, which is consistent with the images depicted in the photomontages.

Conclusions regarding issues of built form, scale and character

[89]
Overall, this evidence establishes that as a result of these features, the proposal will result in an improved high quality architectural outcome, which will more positively contribute to the current and emerging built form and character of the locality.
[90]
This evidence establishes that the proposal offers “varied building height and form”. It is attractive, high quality and visually appealing. It is more intense than the residential development on the southern side of Musgrave Street, but sensitively transitions to it due to the distance between the Site and that development, and the screening of the lower part of Building 2. Due to the screening on Building 2 and the graduated scale and form, the Building 2 height and density complement the neighbourhood on the southern side of Musgrave Street. It is consistent with the neighbourhood to the east of the Site. The form, scale and intensity are appropriate to the locality, having regard to the Site’s strategic position (discussed below), the context of the development and its proximity to the Kirra “spine”. Thus, the neighbourhood character and amenity are retained, consistent with the expectation of the community informed by the Scheme, the current use of the Site and the Development Approval. There is no suggestion that the cultural heritage of the Kirra Beach Pavilion is impacted by the proposal. The character, amenity and cultural heritage of the neighbourhood are retained.
[91]
The evidence of Mr Holmes and Mr Duane, which I accept, establishes that the proposal will contribute to housing choice and availability, introducing larger apartments than approved, and providing more affordable options, in a well serviced location.
[92]
For these reasons, I am satisfied that there is compliance with Strategic outcome 3.4.1(8) and Specific outcome 3.4.5.1(8)(e) of the Strategic framework, Overall outcome 2(b)(vi) of the Neighbourhood centre zone code and Overall outcomes 2(a), (b) and (d), PO1, PO4 (shadowing is dealt with below) and PO5 of the High-rise accommodation design code. Accordingly, the refusal of the Change Application is not warranted for reasons of built form, scale and character.

Amenity

Shadowing

[93]
PO8/AO8 of the General development provisions code and PO4/AO4 of the High-rise accommodation design code are relevant. Shadow diagrams were prepared to assist this analysis. Shadows cast by vegetation are not shown in the diagrams. Mr Curtis and Mr Olsson agree that the changes will result in marginally increased shadowing to the properties opposite the development in Musgrave Street. The additional shadows are generally contained within the Site and in the street reserves of Musgrave Street and Rutledge Street. There was no suggestion that shadows would impact the ocean beach or beachside public open space.
[94]
Mr Curtis considered more detailed shadow diagrams at 30 minute intervals to better understand how quickly the shadows move.^[61]
[95]
I am satisfied that the additional shadow impacts will not detract from a comfortable living and ground level environment because:
1. the additional shadowing is limited to the morning in winter months, being the most extreme time of year with respect to shadow length, and falls primarily within the front setback or roofs of the buildings on Musgrave Street;
2. these properties are already impacted by shadowing from existing tall trees in the road reserve (which is not shown in the shadow diagrams, but was confirmed by Mr Olsson); and
3. the 30 minutes shadow diagrams demonstrate that these shadows are “fast moving”.^[62]
[96]
For these reasons, PO8 is satisfied.

Views

[97]
There is no provision in the Scheme identified as seeking to protect private views. It has been held by this Court that there is no right to a view.^[63] The evidence of Mr Curtis and Mr Olsson is that the changed Building 3 will obstruct marginally more of the distant view of the beach from viewpoints VPD and VPE, which are the views from the building in which the Appellant resides.
[98]
I am satisfied that this impact is not unreasonable because:
1. the view will be dominated by the views of the coastline;
2. the changed Building 3 will provide a slightly greater glimpse of Kirra Beach adjacent to the Kirra Beach Pavilion than the approved Building 3; and
3. the open sided roof terrace of changed Building 3 provides greater permeability and is more visually interesting than the blank roof form of approved Building 3.
[99]
As to public views, the evidence of Mr Curtis and Mr Olsson is that the changed development:
1. will not obstruct views from the beach to Kirra Point Headland;
2. will not result in any additional view obstruction to Kirra Point from Musgrave Street and Miles Street; and
3. the additional storeys on Buildings 2 and 3 will not result in any reduction of views to the hinterland.
[100]
I accept this evidence, which is supported by the images depicted in the photomontages.

Overlooking and privacy

[101]
The setbacks proposed are compliant with AO1 of the Neighbourhood centre zone code, except for the setback of Building 2 to Rutledge Street at Levels 2 to 7 only. This was assessed as acceptable in the existing Development Approval and is not substantially altered.
[102]
Residences are located on the southern side of Musgrave Street and the eastern side of Rutledge Street. I accept that no overlooking or privacy impacts arise from the changes for these residences because:
1. while setbacks to Musgrave Street are slightly reduced, Musgrave Street is 30m wide, which provides significant separation to adjoining uses;
2. the separation distance between “Grand Corniche” and Building 2, and Building 3 and “Kirra Gardens”, is 61m. This provides significant separation; and
3. the setbacks from Building 3 to “Wavebreak” are increased.
[103]
The separation distance between Buildings 1 and 2 is about 12m. The separation distance between these two buildings has been reduced by approximately 150mm. I accept Mr Olsson’s evidence that this slight reduction will not have a substantial effect upon how the two buildings would be perceived, upon how the separation would be perceived, or on the amenity as between the two buildings.
[104]
The separation distance between Buildings 2 and 3 has been reduced from approximately 13m to approximately 10m. Building 3 has been designed so that its southern elevation is virtually blank, apart from one small opening. The façade has been articulated with an angled blade to avoid potential privacy issues. The hotel suites in Building 3 are orientated to the east, the west and the north, and have been screened. I am satisfied that the separation distance between Buildings 2 and 3 is acceptable and does not impact upon privacy within the Site.
[105]
For these reasons, compliance is achieved with PO1 and PO2 of the General development provisions code in so far as they relate to visual amenity and privacy, and PO5 of the High-rise accommodation design code. Further, the improved architectural merit of Building 2, in combination with the setbacks, mitigate negative visual and physical impacts of the building, achieving compliance with Overall outcome 2(c) of the High-rise accommodation design code.

Traffic

[106]
The traffic issues were abandoned by the Appellant in the course of the hearing. However, they are addressed here because the acceptability of traffic impacts remain relevant to the appropriateness of the scale and intensity of the development.
[107]
Mr Healey for the Respondent, and Mr Pekol for the Co-respondent, gave evidence to assist the Court. They considered that the traffic engineering related aspects of the change relevant to their discipline were:
1. an increase in the number of hotel rooms from 78 to 92 (an additional 14 rooms);
2. an increase in the food and drink outlet gross floor area from 189m² to 253m² (an additional 64m²);
3. an increase in the number of Multiple dwellings from 201 to 203 (an additional 2 dwellings), together with a mix of dwelling types with:

a reduction in the number of 1 bedroom dwellings by 27 dwellings;
an increase in the number of 2 bedroom dwellings (an additional 20 dwellings);
an increase in the number of 3 bedroom dwellings (an additional 6 dwellings; and
an increase in the number of 4 bedroom dwellings (an additional 3 dwellings);
1. an increase in the shop gfa from 956m² to 1,032m² (an additional 76m²);^[64]
2. the addition of 551m² of commercial gfa (office), which is new;
3. the addition of 411m² gfa of indoor sport and recreation (gymnasium) use, which is new; and
4. an increase in the onsite car parking provision from 540 to 621 spaces (an additional 81 spaces).

[108]
These changes give rise to the following traffic engineering issues:
1. the proposed vehicular access arrangements;
2. on-site car parking provision; and
3. the traffic and amenity impacts resulting from the additional traffic generated by the change.
[109]
Both the Development Approval and the Change Application seek access from Marine Parade, Rutledge Street and Musgrave Street. The location and form of these access points remain unchanged. I accept the evidence of Mr Healey and Mr Pekol that the access points are adequately separated from nearby intersections, provide adequate site distance to oncoming traffic and incorporate pedestrian sight splays in accordance with the Scheme and relevant Australian Standards. For these reasons, I am satisfied that on-site access results in a safe pedestrian focussed environment and the vehicular access arrangements are acceptable.
[110]
On-site car parking is required in accordance with Table 9.4.13-3 of the Transport code. The minimum car parking requirement for the approved and proposed development is 517 and 588 cars respectively.^[65] The number of carparks provided increases from 540 to 621, exceeding the number of car parks required. For Stage 1, 337 spaces are proposed where 273 spaces are required. For these reasons, the proposed on-site car parking provision, including by stage, satisfies the relevant requirements of the Transport code including Overall outcomes 9.4.13.2(2)(a)(i), 9.4.13.2(2)(a)(ii), 9.4.13.2(2)(e)(ii), AO1/PO1 and PO22, and is sufficient.
[111]
221 resident bicycle parking spaces and 60 visitor bicycle parking spaces are proposed. Having regard to the relevant Austroads guidelines, Mr Pekol and Mr Healey considered that these bicycle parking spaces were appropriate. End of trip facilities can be appropriately located within the development. Accordingly, the proposal provides, or can provide, adequate bicycle and end of trip facilities in compliance with PO10 of the Transport code.
[112]
The traffic engineers estimate that the additional traffic generated by the change would equate to approximately 35 to 40 vehicles per hour during the weekday morning, evening and Saturday midday peak hours.^[66] The Site is likely to be accessed by Marine Parade (east and west) and Miles Street (south). This equates to approximately 12 to 14 vehicles per hour on each of these roads.
[113]
The experts agreed that Miles Street would have ample spare capacity to accommodate this additional traffic. The projected increase in traffic on Marine Parade would equate to approximately a 1% increase in pre-development (2020) traffic volumes. For these reasons, I accept that the increase in traffic generated by the change would be unlikely to have a significant adverse impact on local traffic operations, safety or residential amenity. As such, Overall outcomes 9.4.13.2(2)(e)(i) and 9.4.13.2(2)(e)(ii) of the Transport code are satisfied.

Acoustics

[114]
Mr King addresses acoustic issues arising from the change. He considers amenity generally, but also specifically the impact at the Appellant’s home.
[115]
The Respondent imposed conditions of approval on the Change Application.^[67] Relevant to the consideration of amenity are Conditions 7, 12, 13, 14 and 48. These conditions limit the use of the resort hotel rooftop communal open space to hotel guests only, prohibit live music entertainment on the rooftop and restrict conduct of the communal open space activities to between 7.00am and 10.00pm. Hours of operation of various of the uses are restricted, a dedicated noise complaint line is required and in house amplified music is to be fitted with a sound limiting device. Noise mitigation measures are proposed, including an acoustic barrier and roof elements to the porte-cochere and driveway. Certification by an acoustic engineer is required before the commencement of the use.
[116]
The nearest noise sensitive offsite residential receivers were identified by Mr King as:
1. 2 storey dwelling at 100 Musgrave Street;
2. 3 storey holiday apartments at 102–112 Musgrave Street;
3. Two 2 storey dwellings at 114 and 122 Musgrave Street;
4. Multi-storey dwelling at 22 Rutledge Street and 123 Musgrave Street; and
5. 3 storey dwelling at 20 Marine Parade.
[117]
The primary noise sources relevant to amenity impacts on offsite noise sensitive receptors were the noise of people and music in outdoor areas, the noise from vehicles including services vehicles on the Site and noise associated with mechanical plant and equipment.^[68] In respect of the Change Application, the matters of specific relevance to acoustic amenity relate to the increase in the number of accommodation rooms/dwellings, the increase in vehicular traffic and noise from use of the rooftop recreation areas on Buildings 2 and 3.
[118]
Mr King opined that:
1. to increase noise levels above that which are already approved, creating a noticeable change in noise levels (which is typically a 3dB(A) increase), the number of noise generating dwellings/rooms would need to more than double. The net increase of 14 hotel rooms and 2 Multiple dwellings is well below the doubling which would trigger a change required to be more closely considered;
2. the noise from use of the roof level recreation areas will comply with the adopted noise criteria, and that operation in accordance with Condition 12 will ensure that amenity of the surrounding land uses and the Appellant’s dwelling is not unacceptably affected; and
3. the vehicle noise as a result of the increase in the number of rooms/Multiple dwellings and the increase in on-site car parking will result in an imperceptible change in noise levels at any surrounding sensitive receptor. This is because the addition of 14 vehicles per hour to the pre-development peak hour flows of 170 to 290 vehicles per hour on Miles Street will result in a net increase of +0.3dB(A).
[119]
Mr King considered the combined effects of people and amplified music and was satisfied that the proposal would comply with the noise criteria. In undertaking his analysis, he considered the change in noise levels as a result of the increase in traffic, but considered the proposal before him with respect to other noise sources.
[120]
I accept Mr King’s evidence. For these reasons, I am satisfied that the proposed development can comply with the appropriate noise criteria at surrounding noise sensitive uses, subject to the imposition of conditions in accordance with Conditions 7, 12, 13, 14 and 48. Acoustic issues do not weigh in favour of refusal of the Change Application.
[121]
Having regard to amenity, Purpose 2(a), PO1, PO2 and PO8 of the General development provisions code are satisfied. Having regard to local character built form and residential amenity in terms of noise, car parking and other associated trading impacts, I am satisfied the reasonable amenity expectations of nearby residents, as informed by the Scheme, and the Development Approval, are met consistently with Specific outcome 3.4.5.1(8)(g).

Need

[122]
The authorities on the issue of need identify the following 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.^[69] 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.^[70]”^[71]
2. questions of need are assessed from the perspective of the community, and not from the perspective of a proponent of any particular development;^[72]
3. need must be a genuine need and not a contrived need;^[73]
4. planning need will only be established if it can be proven that the planning scheme in its current form does not adequately cater for the uses proposed;^[74] and
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”,^[75] and will have greater or lesser relevance depending on the circumstances.^[76]

[123]
Mr Duane’s evidence addresses need. He considers that the uses proposed on the Site are suitable having regard to the Site’s strategic location. It will provide high-end tourist facilities at Kirra. The key changes relevant to his expertise are:
1. the increase in retail/commercial floor space of 1,350m².^[77] Of that, 1,100m² is a gym/wellness centre proposed on Level 2 of Building 2 to serve hotel guests, residents of the development and those in the immediate surrounding area;
2. the ground floor retail in the laneway with an increased floor space of 241m²;
3. the increase in hotel rooms from 78 to 92, and the addition of a rooftop bar and pool area, which additional facilities he considered to be consistent with a typical high-rated accommodation facility; and
4. the increase in residential apartment numbers by 4 units (acknowledging that the number of bedrooms increases by 50, reflecting a greater number of 2, 3 and 4 bedroom apartments).
[124]
The proposal will provide a mix of 2, 3 and 4 bedroom dwellings, providing a greater diversity of housing choice than the Development Approval. Mr Duane opined that the gym and wellness centre will service residents and tourists within 1km of the Site and that the facility is consistent with a world class tourist precinct. The proposal provides a small mix of retail uses. I accept Mr Duane’s evidence that the proposal will be attractive for tourists looking for less intensive development than provided at Broadbeach and Surfers Paradise and that tourists would find the changed proposal more attractive. This is because the change offers an improved range of facilities, including the gym/wellness centre and room sizes. I accept that the mix of uses is appropriate for the Site, and that the small scale retail uses will be convenient for the day to day needs of the immediate neighbourhood.
[125]
Marine Parade and Miles Street are Council controlled distributor roads with 2 through lanes, kerbside parking lanes and a 50km/h speed limit. Marine Parade has dedicated on-street bicycle lanes along the Site frontage. Musgrave Street and Rutledge Street are Council controlled local roads with 2 through lanes, kerbside parking lanes (angled parking in Rutledge Street) and a 50km/h speed limit. There are 3 bus stops within 350m of the Site, serviced by 3 routes operating at regular intervals during peak periods. The Site is located within easy walking distance to established public transport services. Concrete footpaths are located on both sides of the fronting sections of Marine Parade, Musgrave Street, Rutledge Street and Miles Street, with signalised pedestrian crossings at the Miles Street and Marine Parade intersection. Marked on-road cycle lanes are provided in Marine Parade and Miles Street. For these reasons, the Site is well served by active transport infrastructure.
[126]
The Site is well located in terms of private and public infrastructure, public transport and amenities, including the beachfront, parks, retail, commercial, sporting and entertainment facilities. Further supporting this is the Site’s present use for apartments, the Kirra Hotel and some retail components. I accept that the only new use, the gym, is a facility ordinarily expected as part of a hotel and accommodation use. The increased provision of larger apartments facilitates accommodating a range of different family types and sizes, rather than the one-bedroom apartments originally proposed. In combination with the additional facilities comprising the rooftop bar, pool, gym and wellness centre, I accept this will be attractive to the market.
[127]
Mr Duane acknowledged that there is a need, and a theoretical capacity, to accommodate that need by way of the activation of existing approvals, but that “a substantial component of approvals is not being converted into new multiple dwellings”.^[78] Thus, multiple dwellings are being developed well below target levels. He opined that the approvals were not being converted into product for reasons including current construction costs and that the developer for a particular site may not actually intend to develop it.^[79]
[128]
The redesign of the proposal to better meet the demands of the market and to address the issue of construction costs increases the viability of the proposal, which will facilitate the activation of the approval enabling it to contribute to the housing supply. This is a factor which weighs in support of approval, in circumstances where the proposal does not cause unacceptable character or amenity impacts.
[129]
The tenant mix including the 400m² fresh food marketplace and smaller boutique retailers is intended to create a vibrant lifestyle area suitable to the local area. I accept Mr Duane’s evidence that the additional retail floor space will not impact on the hierarchy of centres. The proposal will provide a small mix of land uses to service residential neighbourhoods. As found above, it is not dominated by large built form and does not detract from residential amenity. For these reasons, there is compliance with Strategic outcome 3.4.1(8) regarding housing choice and affordability, Specific outcome 3.4.5.1(8)(a) and (f) of the Strategic framework, and the Purpose and Overall outcome 2(a)(i) and PO10 of the Neighbourhood centre zone code. Accordingly, the refusal of the Change Application is not warranted for reasons of amenity.

Should the Change Application be approved in the exercise of the planning discretion?

[130]
The discretion to decide the Change application is broadly expressed in s 60(3) of the Planning Act. 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. It is invariably a complicated and multifaceted exercise.^[80] Non-compliance with an assessment benchmark does not necessarily dictate refusal of a development application. The Planning Act 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.
[131]
The Appellant raised the following relevant matters in support of refusal:
1. previous planning decisions for Building 2 are far beyond the Scheme and the reasonable expectations of the community, and do not justify increasing the contravention with the Scheme with respect to height;
2. previous planning decisions for Building 3 are far beyond the Scheme and the reasonable expectations of the community, and do not justify increasing the contravention with the Scheme with respect to height;
3. 18 admitted code non-compliances for which there is “no acceptable outcome provided”;
4. 12 admitted code non-compliances for which there are “alternative outcomes proposed”, including, but not limited, to a 14 storey building where the Scheme provides a 3 storey height limit;
5. admitted non-compliances with Overall outcomes;
6. admitted non-compliances with the Strategic framework;
7. the change proposal is too intense;
8. the difference in height limit from the Kirra “spine” (10 storeys) to the Site (3 storeys) is deliberate;
9. the proposed development is too intense and has too large a footprint;
10. building height and scale in the context of the broader area, including Coolangatta and the university, is irrelevant;
11. the information request and further information request issued by the Council admit and confirm the development is too intense, too bulky, too high and out of character;
12. an earlier change to the proposal was justified on the basis of high quality architectural merit which is now being claimed again;
13. the peer review of the visual impact assessment undertaken determined that the 2019 development was too intense and out of character, and the 2022 changes only worsen this situation;
14. claims of “negligeable hard impacts” in terms of visual impacts, amenity impacts and shadowing are contradicted by the Respondent’s information requests, peer review and earlier shadow impact analysis;
15. the pivot away from assessment benchmarks to higher order Strategic outcomes of attracting tourism, economic benefit and world class city and travel destinations are irrelevant; and
16. Council’s information request and further information request point to refusal.
[132]
The previous planning decisions of the Council with respect to the Site are not relevant to the present assessment. Nor are the information requests and peer reviews associated with the processing of the Change Application by the Council. The authors of the peer reviews did not participate in the joint expert report process and were not called to give evidence. The Scheme provisions have been considered to the extent raised in the issues in dispute and are addressed in these reasons.
[133]
The Scheme and the Development Approval inform expectations as to building form, land use, character and amenity. The proposal does not find support in the Building height overlay map, but this should not be applied inflexibly in the present circumstances. The Scheme supports more intense development on the Site than other land included in the Urban neighbourhoods designation. The Strategic framework and the Neighbourhood centre zone code support a building height which complements the surrounding neighbourhood. The height of the proposal is consistent with the height of other development in the locality, including the Kirra “spine” of high-rise buildings along Kirra Beach. The change will support the planned intent for the Site as part of a distinct neighbourhood centre and will complement the existing and planned character of Kirra. Important elements of local character, including Kirra Hill and the Kirra Beach Pavilion will continue to be protected. The retail components of the use will be convenient for the day to day needs of the immediate neighbourhood. The evidence demonstrates that there will not be unacceptable impacts on amenity. The changes result in an improved architectural outcome.
[134]
Mr Perkins considered the positive factors arising from the changes to be additional tourist accommodation, a change to the residential product to better meet the target market, improved site activation, a more integrated, cohesive development, and a proposal consistent with the broader planning principle of intensification of the coastal “spine” where the Site is relevantly proximate to the airport, to the main centre at Coolangatta and on the planned light rail “spine”.
[135]
I am satisfied that the proposal offers the above benefits and that, taken together, they outweigh any adverse impact arising from the proposal’s non-compliance as to height. Accordingly, the Change application should be approved.

Conclusion

[136]
For these reasons, I am satisfied that the Co-respondent has discharged the onus. Consistently with the submissions of the Co-respondent and the Respondent, the appeal is dismissed. The Respondent’s decision to approve the Change Application is confirmed.

Orders

[137]
The appeal is dismissed. The decision of the Respondent is confirmed.

Footnotes

[1]Ex. 9.03, CEO Certificate, Designations and Approvals, [17], p 3.

[2]To the extent that there was a disagreement about whether proposed Building 2 is 13 or 14 storeys, the Court proceeded on the basis that the shade structures indicated over the pool deck cause Building 2 to be 14 storeys. The important issue is the impact of the change.

[3]Ex 7.01, Statement of Jeremy Michael Holmes dated 6 December 2023, [1]–[3], [9], pp 1, 3.

[4]Ex 7.01, Statement of Jeremy Michael Holmes dated 6 December 2023, [22]– [28], pp 6–7.

[5]Ex. 6.04, Joint Experts’ Report on Visual Amenity and Architecture, [15]–[36], pp 10–27 (‘VA JER’).

[6]Ex. 9.10, Gold Coast Local Heritage Register – Kirra Beach Pavilion.

[7]Ex. 6.04, VA JER, Fig 16–17, p 19.

[8]Ex. 6.04, VA JER, Fig 30–31, p 27.

[9]Ex. 6.04, VA JER, [37]–[40], pp 28–31.

[10]Ex. 6.03, Joint Expert Report of Town Planners, [18]–[19], p 7 (‘TP JER’).

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

[12]PECA, s 45(1)(a).

[13]Ex. 10.15, Closing Submissions on behalf of the Appellant, [67], p 8.

[14]Ex. 10.15, Closing Submissions on behalf of the Appellant, [70], p 10.

[15]Ex. 10.15, Closing Submissions on behalf of the Appellant, [72], p 12.

[16]T1-28 ll 19–21.

[17][2020] QPEC 52.

[18][2022] QCA 75, [20].

[19][2020] QCA 253.

[20][2020] QCA 257.

[21][2020] QCA 273.

[22][2021] QCA 95.

[23][2019] QPEC 16, [35]–[86].

[24][2019] QPEC 46, [12]–[22].

[25]Ex. 9.03, CEO Certificate, Designations and Approvals, [21], p 4.

[26]Ex. 9.03, CEO Certificate, Designations and Approvals, [23], p 5.

[27]Ex. 2.01, Scheme Extracts, s 5.3.3(4)(c), p 91.

[28]Ex. 9.03, CEO Certificate, Designations and Approvals, [22], pp 4–5; Ex. 6.03, TP JER, [20]–[25] pp 7–8.

[29]Ex. 8.03, Issues in Dispute (as amended in the course of the hearing).

[30]Ex. 8.03, Issues in Dispute (as amended in the course of the hearing).

[31]Ex. 9.02, CEO Certificate, Other Change Application, Properly Made Submissions.

[32]Ex. 6.03, TP JER, [29]–[31], p 9.

[33][2022] QPEC 31, [136]–[137].

[34]Ibid, [137].

[35]Planning Act, s 82(2).

[36]Planning Act, s 82(4).

[37]Ex. 2.01, Scheme Extracts, Strategic framework, s 3.4.2.1(10), p 45.

[38]Ex. 2.01, Scheme Extracts, Strategic framework, s 3.5.4.1(4)(b), p 60.

[39]WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54, [25].

[40]Ex. 6.04, VA JER, [38], p 28.

[41]Ex. 2.01, Scheme Extracts, s 3.4.2(10), p 45.

[42]Ex. 2.01, Scheme Extracts, s 3.5.4.1(4), p 60.

[43]Ex. 2.01, Scheme Extracts, s 3.8.3.1(2)(e), p 80.

[44]Ex. 2.01, Scheme Extracts, pp 257, 264.

[45]Ex. 2.01, Scheme Extracts, s 3.3.2.1(6), p 29.

[46]Ex. 6.04, VA JER, [52], p 35.

[47]Ex. 6.04, VA JER, [92], p 56.

[48]Ex. 6.04, VA JER, [92], p 56.

[49]Ex. 6.04, VA JER, [80(a)–(b)], pp 51–52.

[50]Ex. 6.04, VA JER, [80(c)], p 52.

[51]Ex. 6.04, VA JER, [80(d)], p 52.

[52]Ex. 6.04, VA JER, [80(e)], p 52.

[53]Ex. 6.04, VA JER, [80(f)], p 52.

[54]Ex. 6.04, VA JER, [80(g)], p 52.

[55]Ex. 6.04, VA JER, [80(h)], p 52.

[56]Ex. 6.04, VA JER, [80(i)], p 52.

[57]Ex. 6.04, VA JER, [60(c)], p 39.

[58]Ex. 6.04, VA JER, [81], [83], [106], pp 53–54, 58.

[59]Ex. 6.03, TP JER, [96(c)], [97], p 31.

[60]T2-33 ll 40–44.

[61]Ex. 7.09, Separate Report of Mr Curtis.

[62]T2-31 ll 14–23.

[63]Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors (2009) 164 LGERA 119, [13]–[14].

[64]This comprises the sum of the individual gfa values on the marked-up version of the Ground Floor Changed Plan, which is slightly less than the 1197m² shown in the top right hand corner of that drawing.

[65]Ex. 6.02, Joint Report of Traffic Engineers, Appendix C, p 21 (‘Traffic JER’).

[66]Ex. 6.02, Traffic JER, Appendix D, p 23.

[67]Ex. 9.07, CEO Certificate, Other Change Approval, pp 12, 14, 15, 27.

[68]Ex. 7.04, Separate Report of Mr King, [25], p 16.

[69]Fitzgibbons Hotel Pty Ltd, Tholian Nominees Pty Ltd & Ors v Logan City Council & Rolfe Pty Ltd [1997] QPELR 208, 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors (2000) QPELR 193, 198.

[70]Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, 32–35; Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.

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

[72]Fitzgibbons Hotel Pty Ltd, Tholian Nominees Pty Ltd & Ors v Logan City Council & Rolfe Pty Ltd [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.

[73]Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, 32–35; Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.

[74]William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, [170].

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

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

[77]The Appellant contended that the increase in retail/commercial floor space was in fact 1,413m². Mr Duane opined that even this larger amount did not change his position.

[78]Ex. 7.03, Separate Report of Mr Duane, [5.5], p 45.

[79]T1-44 ll 19–28.

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

Editorial Notes

Published Case Name:
McEnearney v Council of the City of Gold Coast & Anor
Shortened Case Name:
McEnearney v Council of the City of Gold Coast
MNC:
[2024] QPEC 32
Court:
QPEC
Judge(s):
McDonnell DCJ
Date:
21 Jun 2024

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2024] QPEC 32	21 Jun 2024	Appeal against approval of change to development approval; appeal dismissed and decision confirmed: McDonnell DCJ.
Notice of Appeal Filed	File Number: CA 10214/24	02 Aug 2024	Application for leave to appeal filed.
Appeal Determined (QCA)	[2024] QCA 246	06 Dec 2024	Application for leave to appeal refused: Flanagan JA (Bond and Boddice JJA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
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
Ashvan Investments Unit Trust v Brisbane City Council	[2019] QPEC 16	3 citations Jump To Cite 1 - [2019] QPEC 16 Cite 2 - [2019] QPEC 16 Cite 3 - [2019] QPEC 16
Brisbane City Council v YQ Property Pty Ltd	[2020] QCA 253	2 citations Jump To Cite 1 - [2020] QCA 253 Cite 2 - [2020] QCA 253
Bunnings Building Supplies Pty Ltd v Redland Shire Council	(2000) QPELR 193	2 citations Jump To Cite 1 - (2000) QPELR 193 Cite 2 - (2000) QPELR 193
Calvisi v Brisbane City Council	[2009] 164 LGERA 119	2 citations Jump To Cite 1 - [2009] 164 LGERA 119 Cite 2 - [2009] 164 LGERA 119
Catterall & Ors v Moreton Bay Regional Council & Anor	[2020] QPEC 52	2 citations Jump To Cite 1 - [2020] QPEC 52 Cite 2 - [2020] QPEC 52
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	[2019] QPEC 46	2 citations Jump To Cite 1 - [2019] QPEC 46 Cite 2 - [2019] QPEC 46
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
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast	[2022] QPEC 31	2 citations Jump To Cite 1 - [2022] QPEC 31 Cite 2 - [2022] QPEC 31
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
Upan Company Pty Ltd v Gold Coast City Council	[2022] QCA 75	2 citations Jump To Cite 1 - [2022] QCA 75 Cite 2 - [2022] QCA 75
WBQH Developments Pty Ltd v Gold Coast City Council	[2009] QPEC 54	2 citations Jump To Cite 1 - [2009] QPEC 54 Cite 2 - [2009] QPEC 54
Wilhelm v Logan City Council	[2020] QCA 273	2 citations Jump To Cite 1 - [2020] QCA 273 Cite 2 - [2020] QCA 273
Williams McEwans Pty Ltd v Brisbane City Council	(1981) QPLR 33	4 citations Jump To Cite 1 - (1981) QPLR 33 Cite 2 - (1981) QPLR 33 Cite 3 - (1981) QPLR 33 Cite 4 - (1981) QPLR 33

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
McEnearney v Council of the City of Gold Coast	[2024] QCA 246	2 citations
McEnearney v Council of the City of Gold Coast (No. 2)	[2025] QPEC 3	2 citations

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McEnearney v Council of the City of Gold Coast[2024] QPEC 32