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  4. The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast - [2025] QPEC 13

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The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast[2025] QPEC 13

The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast[2025] QPEC 13

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

The Body Corporate for 62 Pacific Community Titles Scheme 45586 & Anor v Council of the City of Gold Coast & Anor; Sexton v Council of the City of Gold Coast & Anor [2025] QPEC 13

PARTIES:

THE BODY CORPORATE FOR 62 PACIFIC COMMUNITY TITLES SCHEME 45586 AND MICHAEL JOHN SPARKSMAN

(Appellants)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

and

LGDC MCINNESVILLE PTY LTD (ACN 657 430 923)

(Co-respondent)

FILE NO/S:

1333/23

PARTIES:

MICHAEL EDWARD SEXTON

(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

and

LGDC MCINNESVILLE PTY LTD (ACN 657 430 923)

(Co-respondent)

FILE NO/S:

3118/23

DIVISION:

Planning and Environment

PROCEEDING:

Appeal 

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2025, 19 to 23 May 2025 and 28 May 2025

JUDGE:

Kefford DCJ

ORDER:

I order:

  1. the appeal is allowed;
  2. the decision of the Respondent to approve the Corespondent’s development application is set aside; and
  1. the Co-respondent’s development application is refused.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the Co-respondent seeks approval of a development permit for a material change of use for a multiple dwelling – where the Respondent approved the development application subject to conditions – where the Appellants commenced two appeals against the Council’s decision which were heard together – where the appeal focuses on a building height uplift provision – whether the proposed development complies with s 3.3.2.1(9) of City Plan – whether the proposed development meets the necessary outcomes to allow for the departure from the quantitative building height standard – whether the proposed development reinforces local identity and sense of place – whether the proposed development achieves a well managed interface – whether the proposed development contributes to a varied, ordered and interesting skyline – whether the proposed development achieves an excellent standard of appearance of the built form and street edge – whether the outcome of housing choice and affordability is satisfied – whether the Appellants’ additional reasons for refusal are material to the outcome – whether there are relevant matters that support approval – whether the proposed development should be approved in the exercise of the discretion

LEGISLATION:

Planning Act 2016 (Qld) ss 43, 45, 59, 60

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

Planning Regulation 2017 (Qld) s 31

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59; [2024] QPELR 387, approved

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32; [2023] QPELR 1160, approved

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153, applied

Council of the City of Gold Coast v DVB Projects [2023] QCA 213, applied

Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, applied

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31; [2023] QPELR 1073, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

COUNSEL:

E Morzone KC and D Whitehouse for the Appellants

S Hedge for the Respondent 

C Hughes KC and J Bowness for the Co-respondent

SOLICITORS:

TelcoTech Legal for the Appellants

HopgoodGanim Lawyers for the Respondent 

Hickey Lawyers for the Co-respondent

TABLE OF CONTENTS

Introduction4

What is the character of the subject land and the locality in which it sits?5

What does the proposed development entail?9

What design features of the proposed development inform its built form appearance?9

What are the landscape design features of the proposed development?11

What is the applicable framework for the decision?12

What are the issues in dispute?13

What do the relevant assessment benchmarks with respect to height require?14

What evidence was adduced by the parties about the remaining disputed issues?16

Is there compliance with s 3.3.2.1(9) of City Plan?19

Is there compliance with the outcome in s 3.3.2.1(9)(a) regarding a reinforced local identity and sense of place?22

Is there compliance with s 3.3.2.1(9)(b) regarding a well managed interface?26

Is there compliance with the outcome in s 3.3.2.1(9)(c) regarding a varied, ordered and interesting local skyline?27

Is there compliance with the outcome in s 3.3.2.1(9)(d) regarding an excellent standard of appearance of the built form and street edge?28

Is there compliance with the outcome in s 3.3.2.1(9)(e) regarding housing choice and affordability?32

What is the nature and extent of non-compliance with s 3.3.2.1(9) of City Plan?34

Are the Appellant’s additional reasons for refusal material to the outcome?35

Are there relevant matters that support an approval?36

Should the proposed development be approved in the exercise of the planning discretion?37

Conclusion37

Introduction

  1. [1]
    At the southern end of the Gold Coast, adjacent the coast and extending from Tugun Beach in the north to Kirra Beach in the south, there is a relatively narrow band of land containing urban development.  Within this coastal strip, at the south-eastern corner of Pacific Parade and Archer Street, Bilinga, is a prominent site that is ripe for redevelopment.  It is located at 66 Pacific Parade and 2A Archer Street, Bilinga (“the subject land”).  Presently, it is improved by two older buildings of no notable architectural merit and that are of a height, bulk, scale and density that is far less than that encouraged by Gold Coast City Plan 2016 (“City Plan”).
  2. [2]
    The Co-respondent, LGDC McInnesville Pty Ltd, seeks to re-develop the subject land for a 10-storey residential apartment building (“the proposed development”).  To that end, it made a development application to the Respondent, the Council of the City of Gold Coast (“the Council”), seeking a development permit for a material change of use for a multiple dwelling (“the development application”).
  3. [3]
    The development application was impact assessable and required public notification.  The public notification attracted many properly made submissions, including submissions by each of The Body Corporate for 62 Pacific Community Titles Scheme 45586, Michael John Sparksman and Michael Edward Sexton, the Appellants.  The Appellants have residences near the subject land.
  4. [4]
    The Council approved the development application subject to conditions.  
  5. [5]
    The Appellants commenced these two appeals against the Council’s decision.  The appeals raise the same key issues for consideration and were heard together.  The issues focus on a building height uplift provision found in the specific outcome in s 3.3.2.1(9) of City Plan.
  6. [6]
    The building height uplift provision permits flexibility to depart from the quantitative building height standard in City Plan provided that eight outcomes are achieved.  The Appellants contend that the proposed development does not meet five of them.  The Appellants’ case calls for consideration of issues related to the local identity and sense of place, interface management, the skyline, the standard of appearance of the built form and street edge, and housing choice and affordability.
  7. [7]
    LGDC McInnesville Pty Ltd and the Council join issue with the reasons for refusal advanced by the Appellants.  
  8. [8]
    LGDC McInnesville Pty Ltd bears the onus of establishing that the proposed material change of use should be approved: s 45 of the Planning and Environment Court Act 2016 (Qld).

What is the character of the subject land and the locality in which it sits?

  1. [9]
    The subject land is comprised of Lot 1 on RP118329 and Lots 0, 1, 2, 3 and 4 on BUP688.  It is rectangular in shape.  It has frontages of approximately 20 and 50 metres to Pacific Parade and Archer Street respectively, and an area of 1,009 square metres.
  2. [10]
    The topography of the subject land is generally level, with a gentle fall from its northeast corner adjacent Pacific Parade to its south-west corner.  The surface of the land is below RL 5.0 metres Australian Height Datum. 
  3. [11]
    Currently, the subject land is improved by a two- to three-storey multiple dwelling at 66 Pacific Parade and a two-storey multiple dwelling on the Archer Street frontage.  Neither building exhibits any notable architectural merit.  The subject land has extensive areas of hardstand and a dearth of landscaping.  Each building is presently accessed via crossovers on Archer Street.  
  4. [12]
    As the subject land is a corner lot, it immediately adjoins neighbouring residential uses on only two of its boundaries.  Adjoining the subject land, at 64 Pacific Parade, is an older style highset fibre cement sheet and weatherboard dwelling house that is elevated on a brick-enclosed ground storey.  On the Archer Street frontage, the subject land adjoins a five-storey multiple dwelling located at 4 Archer Street.
  5. [13]
    Across Pacific Parade are Joe Doniger Park and North Kirra Beach.  There is a twostorey dwelling house on the opposite corner of Pacific Parade and Archer Street, beside which sits a one-storey dwelling house fronting Archer Street.
  6. [14]
    The subject land is in Bilinga.  It forms that part of the coastal strip that lies at the southern end of the Gold Coast between Tugun to the north-west and Coolangatta to the south-east.  The subject land, and the nearby area, is mapped as part of:
    1. the “Urban area” on Strategic framework Map 1 – Urban areas;
    2. the “Urban neighbourhoods” on Strategic framework Map 2 – settlement patterns;
  1. the “Coastal tourism/urban strip” and “Investigation for future light rail” on Strategic framework Map 5 – focus areas for economic activity;
  1. an area served by “High frequency public transport routes” and “Coastal pedestrian and cycle network” and “Specialist centre – Airport” on Strategic framework map 6 – integrated transport; and 
  2. the “Consolidation area” on Strategic framework map 9 – consolidation and expansion areas. 
  1. [15]
    The narrow, elongated band of urban development surrounding the subject land is comprised of seven predominantly residential blocks, which are:
    1. mapped as part of the Medium density residential zone in City Plan, apart from a small area at the corner of Lang Street and Golden Four Drive that is in the Neighbourhood centre zone; and 
    2. designated on City Plan’s Building height overlay map as 23 metres, but which may reasonably be anticipated to be developed with buildings up to 34.5 metres in height if there is compliance with s 3.3.2.1(9) of City Plan; and
    3. designated on City Plan’s Residential density overlay map as “RD6 – up to 300 bedrooms per net hectare (1 bed/33m2)”.
  2. [16]
    This band of urban development is wedged between Pacific Parade to the east, Golden Four Drive to the west and Musgrave Street to the south-east.
  3. [17]
    Pacific Parade is a wide esplanade road that runs parallel to the open space of the North Kirra Beach foreshore, including Joe Doniger Park, and the ocean.  The eastern side of Pacific Parade contains no residential development.  It is lined by a row of mature Norfolk pines in a wide, grassed esplanade with a walking and cycle path adjoining coastal dunes and a wide, sandy beach.
  4. [18]
    To the west, Golden Four Drive runs parallel to the Gold Coast Highway, beyond which lies the Gold Coast airport.  Golden Four Drive functions as a service road, providing bus stops and extensive on-street parking.  
  5. [19]
    Musgrave Street is a wide road that is divided by a median street.  It crosses from Coolangatta Road and curves around the southern end of the area that has a designated height of 23 metres.  South of Musgrave Street is designated on City Plan’s building height overlay map as 29 metres.  That area to the south has a different character, with residential buildings of greater height, bulk and scale.  
  6. [20]
    The area designated on City Plan’s building height overlay map as 23 metres terminates in the north at Mills Street.  Between Mills Street and Musgrave Street are six short cross streets that connect Golden Four Drive and Pacific Parade.  They are George, Graham, Cahill, Johnstone, Archer and Lang Streets.  The cross streets provide important perpendicular entry points to the parkland and foreshore.
  7. [21]
    Pacific Parade, Golden Four Drive and Musgrave Street provide a clear and logical demarcation of the eastern, western and southern boundaries of the local area in which the subject land sits.  
  8. [22]
    There is not a single, readily appreciable feature that provides such a demarcation for the northern boundary of the local area.  
  9. [23]
    To the extent that the height demarcation shown on City Plan’s maps is not readily perceivable from the existing built form near Mills Street, it can reasonably be assumed that the change in character will be perceptible in the future as the area south of Mills Street is redeveloped.
  10. [24]
    North of Graham Street, the band of urban development narrows from 100 metres to 60 metres.  As such, the lots within the two residential blocks between Graham Street and Mills Street having a more compressed depth than those located further south.  This influences the form of development on those lots and their contribution to the character of the area.  
  11. [25]
    There is a bend in Pacific Parade at Cahill Street.  As it is only slight, the proposed development will be visible from north of Cahill Street.  Its visibility diminishes as one approaches Graham Street because of the intervening street trees.  
  12. [26]
    Regardless of whether one considers the northern extent of the local area to be defined by Mills Street, Graham Street, or Cahill Street, the overall impression of the existing character of the local area is the same.  It is informed by the aggregation of the individual features and traits of the existing development, the infrastructure and the natural environment context in which that built form sits.
  13. [27]
    The variance in height of the existing built form significantly contributes to the sense of place and local identity.  
  14. [28]
    The local area contains a mix of residential building types and styles.  There are modest-scale dwelling houses and two and three-storey apartment buildings with an older appearance interspersed among more contemporary large dwelling houses and multi-storey buildings.  The taller, contemporary buildings range between seven and 11 storeys in height.
  15. [29]
    The contribution that built form makes to the sense of place and local identity is not homogenous.  Parts of the local area have less variation in the building height, such as in the area between Cahill and Graham Streets.  In that part of the local area, building heights are predominantly low.
  16. [30]
    In the immediate locality to be examined in this case, the sense of place and local identity is influenced by buildings on Pacific Parade and Golden Four Drive that have a range of heights, including some that are greater than 23 metres.  
  17. [31]
    Although there are differences in the amenity experience of Golden Four Drive and Pacific Parade, the taller built form along Golden Four Drive contributes to the character of the immediate locality.  From viewing locations in Pacific Parade, Joe Doniger Park, the foreshore and the beach, the development on Golden Four Drive provides a backdrop to that located in Pacific Parade.  
  18. [32]
    From distant locations, such as the beach, the building form on Golden Four Drive and Pacific Parade merge into a single layer and one cannot readily identify their precise location.  In addition, from more distant viewpoints, the buildings in Golden Four Drive appear similar in height to buildings of lesser height on Pacific Parade.  That is because of the angle of view from such locations.  That said, as one moves closer to the buildings in question, the parallax diminishes and the building forms and relative heights are more evident. 
  19. [33]
    Although the height of built form is a defining characteristic of the sense of place and identity of this local area, it is not the only relevant contributor.  The architectural design of the built form in the locality makes an important contribution to its identity.  
  20. [34]
    Given the mix of building types, styles and ages in this local area, the built form can generally be described as having a mixed character.  Closer consideration reveals that, despite this mix, there are three evident unifying features in their design.  
  21. [35]
    First, the built form in this locality is generally characterised by a design that seeks to take advantage of the views and breezes afforded by their coastal location.  There is a predominance of buildings with balconies oriented towards Joe Doniger Park and the beach.  As is evident on the many photographs before me, this design feature is not only prevalent in those buildings that front Pacific Parade.  It is also a feature of those buildings that take their access from Golden Four Drive, and those that take their access from the short cross streets between Pacific Parade and Golden Four Drive: see, for example, the photographs at Exhibit 4 pp 31, 40, 43, and 55 and Exhibit 7, pp 6 and 7.  
  22. [36]
    Second, the contemporary multi-storey developments in the locality incorporate deep recesses, steps, angles and other forms of modulation in their street-fronting facades: see, for example, the photographs at Exhibit 6 pp 12-7 and Exhibit 9 pp 14-5 .  
  23. [37]
    Third, the taller buildings in the local area incorporate visually recessed or contracted upper floor levels: see, for example, the photographs at Exhibit 6 pp 60-3.
  24. [38]
    Overall, the existing character of the local area is that of a coastal, predominantly residential area that is in transition to a greater intensity of built form.  It contains buildings of varying height, which adopt a design that is generally characterised by:
    1. prominent balconies oriented towards the coast;
    2. pronounced modulation in the street-fronting facades in the form of deep recesses or stepping or both; and 
    3. visually recessed or contracted upper floor levels on taller buildings. 
  25. [39]
    As I have already mentioned, the local area is in the Medium density residential zone and is designated on the Building height overlap map as having a height of 23 metres. 
  26. [40]
    The extent to which taller buildings, including those greater than 23 metres in height, inform the character of the local area can reasonably be expected to change as City Plan’s intentions for the area are realised.  
  27. [41]
    Presently, there are many seven-storey buildings in the local area.  Between Cahill Street and Musgrave Road there is also six buildings with a height greater than 23 metres.  A further five sites have effective development approvals that authorise multi-storey residential buildings more than 23 metres tall.  In addition, there are several approvals for buildings of around seven storeys and 23 metres in height. 
  28. [42]
    I attribute no meaningful weight to the approval to develop land at 90-92 Pacific Parade for a 10-storey tall residential building.  Its potential contribution to the character of the local area is far less certain given it is currently the subject of an appeal to this Court.  
  29. [43]
    Like the existing built form, the approved development is characterised by a design that includes: 
    1. balconies oriented towards the coast; 
    2. pronounced modulation in the street-fronting facades in the form of deep recesses or stepping or both; and
    3. visually recessed or contracted upper floor levels on taller buildings.

What does the proposed development entail?

  1. [44]
    The proposed development involves a new use of the subject land for a multi-storey building containing 27 units.  There are nine units with two bedrooms, 17 units with three bedrooms and one penthouse unit with three bedrooms.  
  2. [45]
    The units will be served by 52 carparks located in two basement levels, which will be accessed via a double vehicle crossover from Archer Street at the western end of the subject land.  The driveway ramp to the basement is along the south-eastern boundary.  
  3. [46]
    There is visitor parking and communal open space of about 140 square metres located at the ground level.  Communal pedestrian access is proposed from both Pacific Parade and Archer Street.  The ground floor apartment also has a private access from Pacific Parade.
  4. [47]
    The ground floor contains an entrance and provides approximately 140 square metres of communal open space in the form of a small courtyard area with a modest pool.
  5. [48]
    The proposed development has three apartments per level.  There are two long narrow apartments with the short side oriented to the beach and ocean and a third apartment across the full width of the building at the south-western end (adjacent 4 Archer Street).
  1. [49]
    The living rooms of the narrow apartments are oriented towards the street and coastal views, with balcony spaces of about 18 square metres that can accommodate a small dining setting.  The balcony for the smaller apartment in the western part of the building is 13 square metres.  It angles out from the building to enable better views towards the north-east.

What design features of the proposed development inform its built form appearance?

  1. [50]
    The proposed development is ten storeys and approximately 31.8 metres in height.  To the extent that aspects of final design are not resolved, such as the air conditioning plant on the roof, LGDC McInnesville Pty Ltd says that the conditions of any approval can ensure that the height does not exceed 32 metres.  I agree.
  2. [51]
    The proposed development is a long, narrow building.  It is approximately 40 metres long and 15 metres wide.  One of the narrow façades of the building faces towards Pacific Parade, the esplanade, foreshore and beach.  The other addresses the adjoining development at 4 Archer Street.  The longer facades address Archer Street and the adjoining development at 64 Pacific Parade. 
  3. [52]
    According to the dimensions on the plans, the building is set back approximately:
    1. four metres, measured to the balcony edge, from the boundary with Pacific Parade;
    2. 3.5 metres from the boundary with Archer Street;
    3. 3.5 metres from the boundary with 64 Pacific Parade; and
    4. four metres from the boundary with 4 Archer Street.
  1. [53]
    The main bulk of the building is comprised of eight uniform floor plates sitting above a recessed ground floor and capped by a tenth floor with a slightly reduced floor plate.
  2. [54]
    The eight floors that comprise the tower have a site coverage of 53 per cent (approximately 534 square metres).  The site coverage of the top floor is slightly less at 49 per cent (approximately 494 square metres).  
  3. [55]
    The proposed development adopts a contemporary design that utilises a combination of:
    1. a textured concrete finish that is painted with a soft palette of neutral colours, with subtle differences between the colours;
    2. clear and opaque glazing, with opaque glazing limited to those areas where its use is required to address potential privacy and overlooking impacts;
    3. clear balustrading to balconies, other than on level 1 where a solid balustrade is provided to address privacy;
    4. on the long facades facing Archer Street and 64 Pacific Parade, bronze-look batten screening devices with expanding aperture angled towards the beach;
    5. bronze look aluminium and stone tile fencing; and
    6. crazy pavement.
  1. [56]
    As is identified in the architectural plans, the building adopts a broadly rectilinear form with minimal shaping to achieve a bold architectural form.  The shaping is limited to:
    1. a subtle curve to each of the corners of the building;
    2. a concave recessive form to the full width cantilevered balconies on the Pacific Parade elevation;
    3. a slight angle to the façade presenting to 4 Archer Street;
    4. two small, curved recesses in the longer facades, one of which accommodates a landscape planter box at each level to create the appearance of a green spine; 
    5. a very slight recessing for the half of the floorplate on the top floor that is closest to Pacific Parade;  
    6. a roofline that is slightly setback from the line of the balconies fronting Pacific Parade. 
  2. [57]
    This minimal shaping contributes to the proposed development having not only a bold architectural form but also a solid and bulky appearance.  The appearance of bulk is mitigated, to a small degree, by the design of the balconies, which create a feathered profile on the corners of the building and the Pacific Parade elevation.  
  3. [58]
    The building’s solid appearance is reinforced by the wall treatments on three of the facades, being those other than the Pacific Parade façade.  For three facades, the proposed development adopts a largely flat façade treatment comprised of full height glazing panels adjoining painted textured concrete panels.  The glazing and concrete panels are interspersed and arranged vertically and horizontally in a single plane.  This provides little relief to the visual bulk, particularly as they do not render any shadows.  Although three colours are used on the concrete panels, they are very similar and do little to reduce the appearance of bulk.  The two long façades have some vertical sun screening, but it is limited in its extent.
  4. [59]
    On each façade, the floor line extrudes from the face of the building by about 250 millimetres.  This is insufficient to create any material perception of recess, shadowing or modulation.  It does not offset the impression that each of the facades, other than the Pacific Parade façade, involves an elongated built form arranged on a single plane. 
  5. [60]
    The recessing of the top floor is minimal.  In addition, the colour treatment of the textured concrete panels on the top floor is only subtly different to the colours on the balance of the building.  The differences in setback and colours are so slight that they are not readily perceived at first glance: the design does not present as incorporating any material physical or visual recessing of the top floor. 
  6. [61]
    Overall, the interspersing of glazing with concrete panels, coupled with the colour variations, recesses and bronze-look batten screening, enhance the appearance of verticality.  Further, when coupled with the balconies, those design features assist to erode the appearance of bulk, but the extent to which they do so is minimal and generally ineffective.  Collectively, these design elements are insufficient to create an impression of modulation or recessing of the built form.  

What are the landscape design features of the proposed development?

  1. [62]
    The landscape design for the Pacific Parade frontage incorporates a private courtyard entry to the ground floor unit and an access to the ground floor communal open space.  The entry location for each is identified by an awning.  
  2. [63]
    The proposed development uses vertical, bronze-look aluminium blades interspersed with solid columns to create a fence along Pacific Parade.  The fence blades are closely spaced adjacent the courtyard for the ground floor unit to ensure privacy.  Near the communal space, particularly proximate the pool, there is greater spacing to provide clear views of the contiguous lush screen planting.  Landscaping is proposed in recesses, on columns and spilling through the fence.  
  3. [64]
    Near the street corner, the proposed development incorporates a pool and lush screen planting, including feature palms.  The line of the open-style fence is within the subject land, weaving amongst the landscaping.    
  4. [65]
    The open-style fence continues around the corner of the subject land into Archer Street and weaves amongst lush landscaping on that street edge.  It ends at a point that is approximately one-third of the way along the Archer Street façade.  At that point, as one travels towards the centralised pedestrian entry, there is a section of solid fence that is treated with stone tile.  The pedestrian entry is covered by an awning with a landscaped roof.  
  5. [66]
    The balance of the Archer Street frontage, which accounts for about 40 per cent of its length, incorporates infrastructure such as the driveway, fire booster cabinets and the transformer.  This type of infrastructure is essential for multi-storey development and is generally required to be located on the street edge.  The proposed development incorporates this essential infrastructure at a logical location and pays careful attention to its visual treatment.  Planter boxes containing trailing plants are proposed on top of the fire booster cabinet and vertical bronze-look battens are to be fixed to its face.  
  6. [67]
    The building will be marginally cantilevered over the driveway.  Beyond this, along the boundary with 64 Pacific Parade, a one-metre-high trellis flanked by planter boxes containing climbing plants will be visible.  Those parts of the driveway and visitor parking bays that stand clear of the building will be covered by a vegetated arbour extending to the boundary with 4 Archer Street.
  7. [68]
    Overall, my review of the landscape plans and the architectural elevations and sections reveals that, at the ground floor, the proposed development has an animated interface that adopts a visual pleasing combination of materials, finishes and lush screen planting.

What is the applicable framework for the decision?

  1. [69]
    Under s 43 of the Planning and Environment Court Act 2016, subject to ss 46(2) and (5), the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
  2. [70]
    The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
  3. [71]
    Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 8 of Gold Coast City Plan 2016 (“City Plan”) is such a categorising instrument: s 43 of the Planning Act 2016. The correct approach to the construction of planning schemes was recently confirmed in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153 at [82]–[93].
  4. [72]
    Weight can be given to amendments to City Plan: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. The parties agree that there are no relevant amendments to be considered in this case.
  5. [73]
    Pursuant to s 45(5)(b) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:
    1. any development approval for, and any lawful use of, the premises; and
    2. the common material for the development application.
  1. [74]
    The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.  
  2. [75]
    Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86].  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 [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]–[22].  
  3. [76]
    As is explained in those authorities:
    1. the ultimate decision called for when making an impact assessment is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme;
    2. the exercise of the discretion under s 60(3) of the Planning Act 2016 is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the Planning Act 2016; and
    3. the Planning Act 2016 does not alter the characterisation of a planning scheme as a document that reflects the public interest.
  4. [77]
    In determining issues of compliance with assessment benchmarks, the Court is entitled to make its own assessment of all the evidence.  It is not obliged to act on the opinions proffered by the experts: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.  The Court should make its own assessment and form its own conclusions based on the available evidence.  In some instances, the determination of the issues may call for value-laden judgments about which reasonable minds may differ.  One example is where the issue relates to visual amenity and character impacts.  In those instances, findings may be based on the Court’s own assessment of evidence such as photos, plans, elevations, sections, landscape design plans, visual representations, and photomontages: Council of the City of Gold Coast v DVB Projects [2023] QCA 213. 
  5. [78]
    With that framework in mind, I now turn to identify the issues in dispute.

What are the issues in dispute?

  1. [79]
    The issues in dispute have evolved over the course of preparation for hearing, including by reason of minor changes made to the development application.  After each party closed its case, the Appellants further confined their allegations.  I commend Mr Morzone KC and Ms Whitehouse for their sound forensic judgment in that regard.  
  2. [80]
    The remaining issues raised by the Appellants in support of their case for refusal involve allegations of non-compliance with the assessment benchmarks in:
    1. the strategic outcome in s 3.3.1(3) and the specific outcomes in ss 3.3.2.1(5), 3.3.2.1(8), 3.3.2.1(9)(a) to (e), and 3.8.3.1(1) of the Strategic framework;
    2. the overall outcomes in ss 6.2.2.2(2)(b)(iv), (vi) and (vii) and (d)(i), (iii), (iv) and (v) and performance outcomes PO1(a) and (c), PO2(b), (c) and (d), PO3, and PO5 of the Medium density residential zone code;
    3. the overall outcomes in ss 9.3.14.2(2)(a), (c) and (f) and performance outcomes PO3(a) and (c), PO4(b), (c) and (e), PO5, PO10(d), (e), (g) and (h), and PO16 of the Multiple accommodation code; and
    4. the overall outcomes in s 9.4.4.2(2)(a) and performance outcomes PO2(e) and PO4 of the General development provisions code.
  3. [81]
    That said, if LGDC McInnesville Pty Ltd demonstrates compliance with ss 3.3.2.1(9)(a) to (e) of City Plan, the Appellants concede that the other alleged noncompliances are not determinative.
  1. [82]
    LGDC McInnesville Pty Ltd and the Council concede non-compliance with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcomes PO3 and PO5 of the Medium density residential zone code.  LGDC McInnesville Pty Ltd and the Council otherwise join issue with the allegations of non-compliance.  LGDC McInnesville Pty Ltd contends that, to the extent that the proposed development does not fully comply with s 3.3.2.1(9) of the Strategic framework, any such non-compliance would not warrant refusal.  It says this is because the non-compliance would be minor and technical and able to be ameliorated by the imposition of lawful development conditions.  
  2. [83]
    Each party also raises relevant matters in support of their respective positions.  
  3. [84]
    Although the question of compliance with many assessment benchmarks is put in issue, all parties agree that an assessment of the proposed development against each of them is unnecessary.  According to the parties, the outcome of the appeal will turn on my findings with respect to compliance with the outcomes in ss 3.3.2.1(9)(a) to (e) of City Plan.  I agree.  I commend the parties for their responsible approach.

What do the relevant assessment benchmarks with respect to height require?

  1. [85]
    City Plan contains assessment benchmarks against which development in the Gold Coast local government area is to be assessed.  
  2. [86]
    City Plan uses 23 zones to organise the local government area in a way that facilitates the location of the preferred or acceptable land uses.  The subject land is included in the Medium density residential zone.  Relevant assessment benchmarks are included in the Medium density residential zone code, the purpose of which is:

“… to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents.”

  1. [87]
    That purpose is to be achieved through the overall outcomes, which include, relevantly:

“(d)Built form (excluding Dwelling houses on small lots) –

  1. has a building height that does not exceed that indicated on the Building height overlay map;”
  1. [88]
    Performance outcome PO3 of the Medium density residential zone code is one of the performance outcomes that achieve the overall outcomes.  It, relevantly, states:

“PO3

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

  1. [89]
    The Building height overlay map includes the subject land within an area designated for a height of 23 metres.  
  2. [90]
    The height of the proposed development is 31.8 metres.  As such, the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code.  
  3. [91]
    Before considering the significance of those non-compliances, it is necessary to assess the proposed development against the specific outcome in s 3.3.2.1(9) of the Strategic framework.  It states:

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

  1. a reinforced local identity and sense of place; 
  2. a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents; 
  3. a varied, ordered and interesting local skyline; 
  4. an excellent standard of appearance of the built form and street edge; 
  5. housing choice and affordability; 
  6. protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features; 
  7. deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and 
  8. the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities. 

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

  1. [92]
    This provision, and other assessment benchmarks in City Plan about building height, have been addressed by this Court on numerous occasions.  This Court has considered the context of the assessment benchmarks and the degree of importance that City Plan attaches to them.  I adopt the analysis in Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31; [2023] QPELR 1073 at 1096—1101 [86]— [116]; Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, [2023] QPELR 1160 at 1167—8 [31]—[36] and 1169—73 [45]—[62]; Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59; [2024] QPELR 387 at 446—9 [285]—[295], 450—2 [299]—[302] and [305]—[309], 469— 74 [392]—[414].  None of the parties challenge the relevant analysis of City Plan in those cases.
  1. [93]
    In this case, the Appellants submit that there is non-compliance with five of the eight outcomes, namely the outcomes in ss 3.3.2.1(9)(a), (b), (c), (d) and (e).  With respect to s 3.3.2.1(9)(e), the Appellants have abandoned reliance on affordability and now only put housing choice in issue.

What evidence was adduced by the parties about the remaining disputed issues? 

  1. [94]
    Although the ultimate issues in dispute are confined in nature, I had a copious amount of evidence to assist me with their determination.  
  2. [95]
    The evidence includes, amongst other things:
    1. the plans that form part of the changed development application, including:
      1. an aerial photograph annotated with key features in the locality;
      2. a height analysis, which identifies the location of multi-storey developments of five or more storeys that are built, under construction, approved, subject to appeal and not yet effective, or the subject of a development application only;
      3. a representation of the developments that are built, under construction and approved in the form of a contextual coastal elevation;
      4. a site analysis that identifies prevailing winds and onshore breezes;
      5. an analysis of development density;
      6. images depicting the design inspiration and proposed materials;
      7. a description of the considerations that inform the development of the design, such as the shaping of the building to create a bold architectural form;
      8. dimensioned plans for each level that detail information such as the layout of the units; the location of walls, glazing, sliding doors, and balcony areas; and setbacks;
      9. elevations for each façade that record the materials used in each façade’s composition;
      10. sections through the building;
      11. details about the design of each boundary interface;
      12. a height diagram depicting the extent of the building that is over 23 metres in height; and
      13. a shadow study;
    2. the landscape plans that form part of the changed development application, which record:
      1. relevant aspects of site context;
      2. the design vision;
      3. details of the landscape design for the ground floor, level 1 and typical apartment levels and level 9;
      4. details of the planting character to be adopted at the ground floor;
      5. the proposed landscape for sections through the subject land;
      6. details of planting profile depth and the planting palette;
    3. several Certificates of the Chief Executive Officer of the Council provided under s 251 of the Local Government Act 2009 (Qld), which attach development approvals for 21 multi-storey buildings in the local area.  The development approvals include detailed layout plans, elevations, sections and some visual representations of those developments;
    4. many photographs of existing development and views in the surrounding locality; and 
  1. expert opinion evidence, including photomontages, from Mr Zac Petersen, who is a landscape designer and arborist with specialist expertise in architectural visualisations.
  1. [96]
    At the commencement of the hearing, the parties arranged a site inspection of the local area.  My observations on the site inspection do not form part of the evidence.  That said, it enhanced my appreciation of the photographic evidence and my understanding of those plans relating to approved and constructed developments. 
  2. [97]
    The accuracy of the evidence identified in paragraph [95] above was not challenged, and I accept it.  
  3. [98]
    The parties also adduced expert opinion evidence from: 
    1. Mr Leslie Curtis, Mr Peter Richards and Mr Malcolm Middleton, the architects retained by LGDC McInnesville Pty Ltd, the Council and the Appellants respectively; 
    2. Mr Nathan Powell, Dr Nicholas McGowan and Mr Dean Butcher, the visual amenity and landscape experts retained by LGDC McInnesville Pty Ltd, the Council and the Appellants respectively;
    3. Mr David Perkins, Mr Leo Mewing and Mr Shane Adamson, the town planners retained by LGDC McInnesville Pty Ltd, the Council and the Appellants respectively;
    4. Mr Gavin Duane, an economist retained by LGDC McInnesville Pty Ltd, who gave evidence about housing affordability and choice; and
    5. Dr Jennifer Stubbs, a social planner retained by the Appellants, who gave evidence about housing policy, land economics and affordable housing.
  4. [99]
    In this case, the experts’ reports provided many photographs of the area.  The evidence of the experts also assisted me to analyse the evidence identified in paragraph [95] above.  Relevantly:
    1. the architects’ evidence helped me understand the architectural design devices used in the design and their intended impact on building appearance; 
    2. the evidence of the visual amenity and landscape architect experts:
      1. assisted my comprehension of:
        1. the relationship between proximity and visual dominance;
        2. design aspects that inform prominence;
        3. the impact of parallax on views; and
        4. available view angles from adjoining developments; and
      2. clarified the nature and extent of landscaping that can be supported in the proposed planter boxes; and
    3. the evidence of the town planners assisted by identifying:
      1. the key aspects of the development approvals that will inform the future character of the local area; 
      2. key provisions of City Plan that inform the planning intention for the area.
  5. [100]
    In addition, I have statements from Ms Catherine Hanley, Ms Lynne Moore, Mr Michael Sparksman, Mr Tony Whittrod and Ms Patricia Bolster.  They each reside in the local area.  The statements include photographs of the area and describe its attributes.  I also have the submissions that form part of the common material, some of which provide photographs and describe attributes that the authors say inform the local area’s character.  
  6. [101]
    The determination of each issue calls for value-laden judgments about which reasonable minds may differ.  My factual findings in these reasons are not attributable to the evidence of one or more of the experts.  Rather, unless I state otherwise, my findings are based on my own assessment of the unchallenged evidence identified in paragraph [95] above. 
  7. [102]
    With those general observations in mind, I now turn to consider the issue of compliance with s 3.3.2.1(9) of City Plan.

Is there compliance with s 3.3.2.1(9) of City Plan?

  1. [103]
    In summary, for the reasons explained below:
    1. the evidence does not demonstrate full compliance with the outcomes in ss 3.3.2.1(9)(a), (c) and (d);
  1. the partial non-compliance with the outcomes in ss 3.3.2.1(9)(a), (c) and (d) manifests in adverse planning impacts, namely visual amenity and character impacts;
  2. when considered both in isolation and in combination, the nature and extent of non-compliance with the outcomes in ss 3.3.2.1(9)(a), (c) and (d) attract significant weight in the exercise of the discretion; and
  3. although I am satisfied that there is compliance with the outcomes in ss 3.3.2.1(9)(b) and (e), the weight to be given to the extent of non-compliance with the specific outcome in s 3.3.2.1(9) of City Plan is not materially increased or decreased in this case by reason of the extent of compliance.
  1. [104]
    Before addressing the question of compliance with the outcomes in s 3.3.2.1(9) of City Plan, there are several general observations that can be made about the design of the proposed development that underpin my assessment of it against City Plan.
  2. [105]
    My consideration of the plans of the proposed development and photomontages, assisted by the expert evidence, reveals fix positive attributes to the design.  
  3. [106]
    First, the proposed development adopts a contemporary design that utilises a combination of materials.
  4. [107]
    Second, the full width cantilevered balconies of a concave recessive form on the Pacific Parade elevation: 
    1. create a feathered profile; 
    2. provide modulation through deep recesses;
    3. contributes visual interest to the Pacific Parade façade.
  5. [108]
    Third, the design addresses interface issues well in that:
    1. the setback of those levels up to and including the sixth storey (level 5) is greater than that anticipated in acceptable outcome AO1 of the Medium density residential zone code.  As such, it provides greater building to building separation at the levels of primary visual interface with 4 Archer Street and 64 Pacific Parade; 
    2. there are sufficient treatments to the lower-level balconies and fenestration to avoid inappropriate overlooking and unacceptable privacy impacts;
    3. the layout of the apartments avoid inappropriate overlooking and unacceptable privacy impacts as the living areas and balconies are oriented away from the neighbouring properties and towards coastal views;
    4. there is an absence of unacceptable overshadowing impacts; 
    5. the building is angled in a way that opens up views from those balconies at the corner of 4 Archer Street;
    6. the arbour supporting climbing plants over the driveway softens the outlook from the balconies of 4 Archer Street: see, for example, Exhibit 6 Figure NP18b;
    7. the proposed planter boxes along the boundary with 64 Pacific Parade provide a landscaped interface at and above ground level, which is capable of supporting screening plants, including palms up to six or seven metres tall and giant bird of paradise between three and six metres tall; and
    8. the landscaping in the planter boxes coupled with the arbour along that boundary, softens the peripheral outlook from the rear of 64 Pacific Parade: see, for example, Exhibit 6 Figures NP19b and NP20b.
  6. [109]
    Fourth, the proposed development has an animated ground storey interface that adopts a visual pleasing combination of materials, finishes and lush screen planting. 
  7. [110]
    Fifth, there are no unacceptable traffic impacts occasioned by the proposed development.
  8. [111]
    Sixth, like other development in the local area, the proposed development has been designed to take advantage of the views afforded by its coastal location.  
  9. [112]
    I have taken these positive features into account in my assessment of the proposed development against the outcomes in ss 3.3.2.1(9)(a) to (d) of City Plan.  That said, they are not the only design attributes of relevance to the assessment of the proposed development against the assessment benchmarks.  There are significant deficiencies in the design that are also relevant.  
  10. [113]
    Both the Archer Street façade and the corresponding long façade adjoining 64 Pacific Parade are longer than the building is high.  Consequently, as was explained by Mr Richards, articulation is necessary to break up the length of the building and provide an appearance of vertical bulk form.  Although attempts have been made in this regard, they are largely unsuccessful.
  11. [114]
    As I have already explained, the proposed development adopts a largely flat façade treatment addressing Archer Street.  It is comprised of clear glass panels adjoining painted textured concrete panels arranged vertically and horizontally in a single plane that renders little shadow.  It also adopts minimal variations in the colour treatment of the concrete panels.  The central recess creates a green spine that splits the length of the façade in two.  However, it does not meaningfully detract from the overall flatness of the façade.
  12. [115]
    This façade has high visual exposure.  It is visible from Pacific Parade, the North Kirra Beach foreshore (including from the pedestrian path), Archer Street and Golden Four Drive.  
  13. [116]
    Mr Middleton’s evidence about the appearance of the Archer Street elevation and façade accords with my analysis and, for that reason, I accept it.  Mr Middleton relevantly opines that, unlike the street-fronting facades of other development in the local area, the Archer Street façade is not an actively expressed façade.  He explains that it delivers a flat architectural expression that is not effectively relieved by any overall façade variation, apart from on the top floor.  He identifies that the top floor has a small setback with some landscape treatment for the front part of the building.  
  1. [117]
    Mr Butcher gave evidence to similar effect.  He additionally opines that the proposed development differs from existing built form because of the absence of a significant upper-level recess or the use of recessive colours to reduce the prominence of the additional height.  Mr Butcher says that the extent of the roofline setback from the balcony lines below is so minimal that it will not be readily discernible.  Further, in his view, the top floor is not defined by recessive colours or notable landscaping treatment.  Mr Butcher provides cogent explanations in support of his opinions.  Both are consistent with my findings and, as such, I accept them.
  2. [118]
    Apart from at the ground floor, the visual appearance of the Archer Street façade is replicated on the opposite façade, which presents to 64 Pacific Parade.  It is reasonably exposed to external views, although those from the foreshore are partly obstructed by the Norfolk pines.  There are two matters that inform the extent of exposure.  The first is the height of the building, particularly that part that exceeds 23 metres.  The second is the low-rise form of the adjacent building at 64 Pacific Parade, which does little to obscure the proposed development.  There is a reasonable prospect that redevelopment of the adjoining premises at 64 Pacific Parade will diminish the extent of this façade’s visual exposure in the future. 
  3. [119]
    The narrow façade adjoining 4 Archer Street is highly exposed.  Most of it is visible from along the opposite side of Archer Street and locations on Golden Four Drive near the intersection with Archer Street.  The visual exposure of this façade is a function of:
    1. the generous front setback and 5-storey height of 4 Archer Street; and
    2. the extent to which the proposed development exceeds 23 metres in height: see Exhibit 28 with the line marking the approximate 23 metre height.  
  4. [120]
    The extent of visual exposure of the narrow façade adjoining 4 Archer Street might diminish with time.  However, that is unlikely in the foreseeable future because:
    1. the adjoining site at 4 Archer Street presents as improved by a well-maintained, contemporary building, and not as a site that is ripe for redevelopment;
    2. the width of Archer Street is such that the redevelopment of sites further along it are unlikely to restrict the extent of the façade’s visibility; and
    3. there is no vegetation in Archer Street that will grow to restrict views of the façade.  
  5. [121]
    The façade adjoining 4 Archer Street has an even flatter, more solid and austere appearance than the Archer Street façade.  It is almost entirely comprised of adjoining textured concrete panels painted with two very similar colours.   
  6. [122]
    Overall, in my view, the negative attributes of the design materially overwhelm the positive features.  The culmination of all attributes is a built form that is far from excellent in its appearance.  Because of this, the proposed development will adversely impact the visual amenity and streetscape character of the immediate locality.  The proposed development’s high degree of exposure heightens the significance of this adverse impact.
  7. [123]
    Each of Mr Curtis, Mr Richards, Mr Powell, Dr McGowan, Mr Perkins and Mr Mewing ultimately conclude there is compliance with the outcomes in ss 3.3.2.1(9)(a), (c) and (d) of the Strategic framework.  Those conclusions are founded on their assessments of the visual impression created by proposed development’s design attributes.  Their assessments differ from mine.  As such, I do not accept their ultimate conclusions.  That said, aspects of their evidence accord with my analysis of the evidence in paragraph [95] above and, consequently, I accept those parts of their evidence.  I identify those aspects below.    
  8. [124]
    With those general observations in mind, it is convenient to now turn to my assessment of each of the outcomes.  

Is there compliance with the outcome in s 3.3.2.1(9)(a) regarding a reinforced local identity and sense of place?

  1. [125]
    The Appellants allege that the proposed development does not comply with the outcome in s 3.3.2.1(9)(a) of the Strategic framework.  That outcome is expressed as “a reinforced local identity and sense of place”. 
  2. [126]
    The terms “local identity” and “sense of place” are not defined in City Plan.  They are concepts that call for consideration of the locality’s existing attributes and planned outcomes.
  3. [127]
    This issue was addressed by each of the architects, visual amenity experts and town planners.  There is a significant degree of overlap in their evidence, which is only partially attributable to the town planners summarising the evidence of the other expert disciplines.  The overlap extends to the experts’ extensive descriptions of what is depicted in the photographs, aerial photographs, mapping and photomontages that I have before me.
  4. [128]
    I have undertaken my own assessment of those documents and the development approvals for the existing and approved (but currently unconstructed) buildings.  In doing so, I was particularly assisted by:
    1. Mr Powell’s evidence about dominance, prominence and the effect of parallax;
    2. Mr Perkin’s collation of the key details of those buildings greater than 23 metres with corresponding visual images of them: Exhibit 16 pp 11-6; 
    3. the experts’ identification of key design features of existing multi-storey developments in the area during their cross-examination by Mr Morzone KC; and
    4. Mr Petersen’s representations of the approved development in the photomontages, which depicted those developments that are yet to be constructed as grey block forms that show the approved stepping and recesses in wall and floor planes. 
  5. [129]
    I have read each of the submissions while undertaking my assessment.  Those averse to approval express concern about building height, sub-standard appearance, site cover, setbacks, building bulk, density, loss of privacy, interruption of views and breezes, shadow impact, inadequate landscaping, and adverse impact on public car parking. 
  6. [130]
    Aspects of the submissions that express views about the proposed development must be approached with caution.  The submissions relate to an iteration of the development application that has since been changed.  They were also made without the benefit of the photomontages.  
  7. [131]
    Nevertheless, I was assisted by the photographs of the area provided in the submissions and the statements from the residents.  Collectively, they provide helpful evidence about how the residents of the area perceive the local identity and sense of place of Bilinga.  Relevantly, many residents consider Bilinga to have a low-key, coastal village feel and are concerned that the proposed development, by reason of its height and bulk, will erode that sense of place.  
  8. [132]
    Having regard to the limited number of tall buildings that exist in Pacific Parade near the subject land, I can appreciate the views expressed by the residents.  However, as I have already observed, an assessment of the “local identity” and “sense of place” calls for consideration of the existing attributes in the locality and the planned outcomes.
  9. [133]
    In this case, the planned outcomes are evident from City Plan.  They are also informed by the details of the many approved, but not yet constructed, buildings.
  10. [134]
    When one considers the planned outcomes, it is not difficult to conclude that Bilinga is an area in transition.  While the low-key village character may not yet be appreciably diluted by taller buildings along Pacific Parade, that situation is not planned to persist.  The area is intended to accommodate medium density residential development including multiple dwellings up to 23 metres, and in certain circumstances up to 34.5 metres, in height.  Many such buildings have recently been approved in this local area: see Exhibit 1 p 28 and Exhibit 16 pp 11-6.
  11. [135]
    Having regard to my review of City Plan and recent development approvals, I accept the opinion of Mr Perkins that the local identity is transitioning towards a planned character of buildings consistent with the Medium density residential zone and the opportunities for increased height afforded by s 3.3.2.1(9) of City Plan.  As is observed by Mr Perkins: 

“Bilinga is not a quiet, low key coastal retreat. Rather it is part of the City’s coastal tourism spine, close to the Coolangatta major centre, within the walking catchment of the planned light rail extension, and nearby an international airport with its regular passenger jet arrivals and departures adding to the sense of energy and activity.”

  1. [136]
    Although I do not adopt Mr Perkins view that Bilinga is not a quiet, low key coastal retreat, I accept that it is transitioning away from such a character.  I also accept the opinion of Mr Mewing in this regard.  He says that, because of recently constructed and approved taller buildings, the area is transitioning into a built form context that achieves urban consolidation with taller buildings as intended by the planning designations.
  2. [137]
    I have described the integers that inform the existing and planned character, and the local identity and sense of place in paragraphs [9] to [43] above.  
  3. [138]
    At first blush, one might conclude that the proposed development reinforces the local identity and sense of place.  Such a conclusion is attractive if one:
    1. adopts a general description of the existing built form as one comprising a mix of building ages, types and styles; and 
    2. focuses on the planned transition to buildings of greater height and density.  
  4. [139]
    This is the approach adopted by Mr Curtis, Mr Richards, Mr Powell, Dr McGowan, Mr Perkins and Mr Mewing.  
  5. [140]
    In my view, that approach does not give sufficient recognition to the unifying design features to which I refer in paragraphs [33] to [38] and [43] above.  Important features of the built form that are present in the locality are:
    1. the extensive provision of balconies on facades oriented towards the beach; 
    2. the incorporation of pronounced modulation and recesses in the street-fronting facades; and
    3. the recessing of upper levels of taller buildings, such as through visible stepping or setbacks or the use of recessive colours.  
  6. [141]
    In my view, those finer-grained aspects of the existing building form are not only evident in the immediate locality: they significantly contribute to the local identity and sense of place.  The extensive provision of balconies reinforces the locality’s coastal aspect.  The pronounced modulation and recesses in the street-fronting facades and the physical and visual recessing of upper levels reduce the visual scale and bulk of the taller buildings.  In combination, these design features ensure that the experience of the area from the public realm near development of substantial height, bulk and scale is not overwhelmed or overborne by the height and scale of the built form. 
  7. [142]
    These finer-grain design features were identified by Mr Powell.  In the Further Visual Amenity & Landscaping Joint Experts’ Report, he opines that the factors that influence local identity and sense of place are:
    1. the wide range of building heights in the local area, being from one to 11 storeys (including buildings of eight to 11 storeys that are more than 23 metres in height);
    2. the beachfront location and the north-east orientation of the land holdings, which invite large balconies facing towards the ocean:
      1. at the front of buildings along Pacific Parade;
      2. at the rear of buildings fronting Golden Four Drive; and, sometimes, 
      3. along the entire façade of the building or at corners of a building to direct views slightly more east or north; and
    3. the upper level or levels of mid-to-high rise buildings of various heights being:
      1. physically recessed via stepping; or
      2. visually recessed via the use of a finer grain or recessive colour or material; or 
      3. both physically and visually recessed.
    4. the location of the viewer to the various buildings.  As Mr Powell explains, the extent to which a building is experienced as dominant is largely informed by the proximity of the viewer to the building.  From more distant viewpoints, like the beach, taller development can appear as a cluster and may not be readily perceived as located on different streets. 
  8. [143]
    Mr Powell explains his views by reference to annotated photographs.  His explanations are cogent and compelling.  They accord with my own analysis, and, for that reason, I accept that evidence.
  9. [144]
    To an extent, the contribution made by these finer-grained building design attributes were also recognised by Mr Curtis in the Further Architecture Joint Experts’ Report, wherein he opines that:
    1. the characteristics that primarily contribute to its identity include:

“the design of the built form that responds to the setting and subtropical climate with private outdoor space and fenestration to access views, sunlight, and breezes.”

  1. important aspects of the local sense of place include:

“The built form that responds to the setting and sub-tropical climate with private outdoor space and fenestration to access views, sunlight, and breezes to support a lifestyle that is engaged with the setting.”

  1. [145]
    I accept Mr Curtis’ opinion to that extent.  It accords with my independent assessment of the characteristics of the built form in the locality.  That said, I do not share Mr Curtis’ view that this important attribute is reflected in the design of the proposed development.
  2. [146]
    As is observed by Mr Adamson, the existing developments in Pacific Parade that exceed 23 metres in height are generally sleeved by other built form.  The façade that they present to Pacific Parade contains significant articulation.  Mr Adamson opines that the same is not true of the proposed development.  He describes the proposed development as having a long and linear building form that is primarily comprised of floor to ceiling glass with no balconies, other than at the ends.  Mr Adamson also observes that the proposed development has an elongated shape and extensive presentation to Archer Street and the nearby open space.  He describes the presentation to Archer Street as different from other developments in the locality because it has little articulation and utilises a significant amount of glass.  He considers this difference to be significant because the proposed development is on a prominent corner and its Archer Street façade is exposed to views from the public open space, including the beachside parkland to the north and east.
  3. [147]
    I accept Mr Adamson evidence in this regard.  It accords with my own analysis of the evidence identified in paragraph [95] above. 
  4. [148]
    In the circumstances, I am not persuaded that the proposed development achieves the outcome in s 3.3.2.1(9)(a) of City Plan.  To the contrary, approval of the proposed development is inconsistent with the achievement of this outcome.  The extent of discord is more than technical.  It is material in both its extent and its significance.

Is there compliance with s 3.3.2.1(9)(b) regarding a well managed interface? 

  1. [149]
    The Appellants allege that the proposed development does not comply with the outcome in s 3.3.2.1(9)(b) of the Strategic framework.  That outcome is expressed as:

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

  1. [150]
    It is not disputed that the proposed development adequately addresses interface issues associated with privacy, overlooking and shadowing.  Nevertheless, the Appellants contend that the proposed development fails to achieve the outcome with respect to a well managed interface because of:
    1. inadequate setbacks at the top of the building;
    2. the flat, unarticulated presentation of the facades; and
    3. the minimal extent of the landscaping at the street edge and the limited community open space.
  2. [151]
    Given the findings that I have made in paragraph [103] above, it is unnecessary to address these issues at length.  It is sufficient to make a few observations about each of these issues. 
  3. [152]
    With respect to the first issue, the Appellants contend that the proposed development will have an unacceptably overbearing impact on 4 Archer Street and 64 Pacific Parade, particularly their outdoor living and external spaces.  The impact is said to be occasioned by the proposed development’s height coupled with its inadequate setbacks at the upper levels.
  4. [153]
    This issue was comprehensively addressed by Mr Powell.  He provides an analysis that, coupled with my own assessment, persuades me that:
    1. although the top four storeys of the proposed development are not within the stepped setbacks anticipated by the acceptable outcome AO1 of the Medium density residential zone code, there are greater setbacks at the lower levels where there are direct interfaces with the adjoining neighbours; 
    2. views of those parts of the proposed development exceeding that 23 metres in height are limited from the balconies at 4 Archer Street because of that building’s intervening rooflines and overhangs; 
    3. from the ground level outdoor spaces at 4 Archer Street, the upper levels of the proposed development do not materially add to the impact otherwise caused by the levels below 23 metres; 
    4. the sightlines from internal spaces at 64 Pacific Parade are limited; 
    5. the view line from external spaces at the ground level of 64 Pacific Parade would strike the proposed development at the slab edge for level 9 and the sense of overbearing caused by the height above 23 metres is not substantially different to the impact of the built form below that height; and 
    6. the adoption of greater setbacks at lower levels permits a landscape area at the interface with 64 Pacific Parade that is sufficient to incorporate plant species of a height and spread that will reduce the perceived building bulk at the lower levels. 
  5. [154]
    The second issue raised by the Appellants relates to the proposed development’s flat, unarticulated facades.  The Appellants rely on the evidence of Mr Middleton in this respect.  He opines that a better outcome would be achieved if:
    1. the proposed development provided adjustable screening; and 
    2. the structure of the building had greater variation; and 
    3. the facades incorporated more external treatments.  
  6. [155]
    Even if that was the case, it fails to demonstrate that the interface is not well managed: it only demonstrates that it could be more attractive.  This argument is unpersuasive.
  1. [156]
    I do not find the third issue persuasive as:
    1. the Appellants do not identify a relevant relationship between interface and the extent of community open space; and  
    2. for reasons provided elsewhere, I am satisfied that the landscaping at the street edge is excellent.
  2. [157]
    Overall, I am persuaded that the proposed development satisfies the outcome in s 3.3.2.1(9)(b) of the Strategic framework.

Is there compliance with the outcome in s 3.3.2.1(9)(c) regarding a varied, ordered and interesting local skyline? 

  1. [158]
    The Appellants allege that the proposed development does not comply with the outcome in s 3.3.2.1(9)(c) of the Strategic framework.  That outcome is expressed as “a varied, ordered and interesting local skyline”. 
  2. [159]
    The achievement of a varied, ordered, and interesting local skyline is a matter that calls for a value judgment.  It is a matter about which reasonable minds might differ.  
  3. [160]
    The experts all opine that the proposed development would achieve the outcome about a varied and ordered skyline.  Having regard to the photomontages, I agree.  It will introduce a building of a different height to, but in general alignment with, other tall buildings on Pacific Parade and Golden Four Drive.
  4. [161]
    The real issue is whether the proposed development achieves the desired outcome with respect to its contribution to an interesting local skyline.
  5. [162]
    Mr Curtis opines that the step in the roofline relative to the line of the storeys below is a design feature that varies its form and allows a fringe of landscaping along the two sides of the top floor plate.  In his opinion, this differentiates the appearance of the upper storey and assists to “crown” the building’s appearance.  According to Mr Curtis, this provides visual interest to the skyline.
  6. [163]
    Mr Richards expresses a similar opinion.  He considers that the proposed development makes an interesting contribution to the skyline by reason of:
    1. its cantilevered balconies that create feathered edges and a very interesting silhouette; and 
    2. the setback of the top level of the building and the incorporation of a strip of landscaping along the two sides of the building between the Pacific Parade elevation and the landscaped recess on the side of the building.
  7. [164]
    Mr Middleton disagrees with Mr Curtis and Mr Richards because the detail for the services on the roof is not finally resolved.  
  8. [165]
    I do not share Mr Middleton’s concerns about unresolved final design.  I also do not accept the opinions of Mr Curtis and Mr Richards.  They do not accord with the other evidence that I accept, such as the plans and photomontages.
  9. [166]
    On my review of the plans and photomontages, the variation of the top floor and roofline is minimal and insufficient to have a material visual impact.  I have set out my relevant findings in that regard in paragraphs [54], [56] and [60] above.  In my view, when seen as part of the skyline, the proposed development generally presents as a broadly rectangular building of a largely uniform appearance with a flat roof structure.  
  10. [167]
    Although I am persuaded that the proposed development contributes to a varied and ordered skyline, I am ultimately not convinced that its contribution is interesting. 

Is there compliance with the outcome in s 3.3.2.1(9)(d) regarding an excellent standard of appearance of the built form and street edge? 

  1. [168]
    The Appellants allege that the proposed development does not comply with the outcome in s 3.3.2.1(9)(d) of the Strategic framework.  It is expressed as “an excellent standard of appearance of the built form and street edge”.
  2. [169]
    The standard of appearance of the proposed development is another matter about which reasonable minds may differ.  It involves matters of impression and judgment.  
  3. [170]
    I have detailed my assessment of the design features that inform the built form appearance in paragraphs [50] to [59] above.
  4. [171]
    I accept the opinion of Mr Richards that the appearance of a building is not necessarily defined by focussing on individual features or elements that cause a building to stand out from others.  A range of architectural elements are employed in the design of a building.  Individually, each element might not be particularly special.  It is the way the elements are arranged or combined to form an ensemble that informs its visual impression.
  5. [172]
    Regarding the arrangement, and consequent visual impression, created by the proposed development’s design features, Mr Richards opines that the recesses in the longer facades break up the length of the wall.  He says this allows the building to be read as three connected elements.  According to Mr Richards, the verticality is enhanced by the full height solid and windowed walls, which create vertical striping through the façade that counterbalance the horizontal expressed slabs.
  6. [173]
    I accept this evidence in part.  On my review of the photomontages, the central recess breaks the length of the building into distinct halves.  This is not achieved by the size of the recess, which I regard as minimal, but by the inclusion of planter boxes.  The plants at each level of the recess create a green “spine” that divides the building in two.  I also accept that the appearance of verticality is, to an extent, enhanced by the repetitive interspersing of full height clear glass panels with textured concrete panels.  Each concrete panel is divided into parts using alternating colours, so that the size of each coloured concrete panel is proportionally greater in height than in width.  The same vertical stripe effect is achieved with the glazing.  Long lengths of glazing are broken into smaller panes by window framing so that each glass panel is proportionality greater in height than length.  The vertical sunscreen fins further add to an impression of verticality.
  7. [174]
    I accept that these design features assist in reducing the visual impact of the building’s length and its expressed horizontal floor plates.  Nevertheless, the extent to which they mitigate the impression of a single, elongated block form is severely hampered by the lack of modulation and the arrangement of the various materials on a single plane.  For those reasons, I do not accept Mr Richard’s opinion that the proposed development achieves an excellent standard of appearance.  
  8. [175]
    Mr Curtis also gave evidence that the building has an excellent standard of appearance.  He approached this issue by considering how well the proposed development resolves its functional requirements while responding to the opportunities and constraints of the subject land in its context.  In his view, s 3.3.2.1(9)(d) is satisfied if there is:
    1. effective mitigation of the visual impacts arising from building bulk;
    2. a high quality activated or animated interface with the pedestrian environment; and 
    3. articulated tower forms that would be attractive and contribute to the interest of the local skyline.
  9. [176]
    Regarding the key attributes of the proposed development and their influence on the standard of appearance of the built form, Mr Curtis says that the ground storey’s external wall along Archer Street is generally setback from the line of the floor plate above.  He states that this erodes the bulk of the building at ground level and provides a transitional interface between the internal space on the ground storey and the adjoining external open space areas.  In addition, Mr Curtis opines that the differentiation of the ground storey from the storeys above assists to provide a legible base to the built form and a visual reference that aids the transition of height and scale from the building to the pedestrian environment. 
  10. [177]
    Above the ground floor, the building has an extruded vertical form that reflects the elongated proportion of the subject land and the stacking of uniform floor plates. Mr Curtis says that this is consistent with recent development outcomes which adopt consistent setbacks in each tower level that comfortably comply with acceptable outcome AO1 in the Medium density residential zone code at the lower levels, but which do not comply at the upper levels.
  1. [178]
    Mr Curtis says that the building’s height is layered by the floor plate projections and floor to ceiling height fenestration between the floor plates.  He says that this fragments the building’s overall height and provides a clear expression to the building’s individual human scale storeys.
  2. [179]
    According to Mr Curtis, the length of the buildings is subtly modulated by the juxtaposition of the floor plate alignments that include: 
    1. dominant straight eastern and western floor plate edges; 
    2. an angled southern floor plate edge; 
    3. a concave northern floor plate edge; 
    4. curvilinear corners to the floor plate; 
    5. a prominent recess midway along the length of the floorplate on each side that divides the floor plate into two approximate halves; and 
    6. a smaller recess on each side of the northern part of the floor plate;
  3. [180]
    Mr Curtis says that further modulation is provided by:
    1. the differentiation of the ground storey from the storeys above, which assists to provide a legible base to the built form; 
    2. the differentiation of the upper most storey and reduced enclosed area of the northern half relative to the storeys below, which allows for a fringe of landscaping along the two sides of the floor plate that “crowns” the built form; 
    3. the floor to ceiling height glazing that adds a high level of transparency to the building’s appearance and reduces the visual solidity of the mass;
    4. the provision of planter boxes within the central floor plate recesses, which when viewed as a vertical stack contributes to the bifurcation of the north-west façade appearance and introduces a vertical landscape feature; 
    5. the incorporation of vertical blade screens between the floor plates at each storey, which complement the horizontal window mullions and provide a visual rhythm to the building’s appearance, thereby assisting to balance the horizontal proportions of the projecting floor plate edges; 
    6. the subtle sophisticated palette of external materials, colours and finishes that reflect the coastal location; 
    7. the vertical stack of deep balconies that extend across the full width and height of the building’s north facing façade, which have a curvilinear form that animates and characterises the appearance of the facades and erode their bulk; and
    8. the balconies at the southwest corner of the building. 
  4. [181]
    Finally, Mr Curtis relies on the accommodation of all car parking ground, which he says is preferable to on-grade car parking within building setbacks. 
  5. [182]
    Based on his analysis, Mr Curtis concludes that the proposed development is demonstrably well resolved and provides an excellent standard of appearance of the built form. 
  6. [183]
    I accept Mr Curtis’ description of each of the key attributes of the proposed development.  To the extent that they accord with my analysis set out above, I accept his opinion about their impact on the visual appearance of the building.  I can appreciate Mr Curtis’ view that the proposed development appears well-resolved.  That said, I disagree with his opinion that the design attributes modulate the proposed development.  I also do not subscribe to Mr Curtis’ view that the result is an excellent standard of appearance of the built form.  I prefer the evidence of Mr Middleton about the overall visual impact, which are more closely aligned with my own analysis.
  7. [184]
    As is explained by Mr Middleton, the design of the proposed development results in a large, bulky street elevation with little relief through form, shadow, screening and modelling.  The tower form has very limited articulation, relying only on a small indentation behind the northern unit kitchen area to create a recess and a slightly larger recess near the entry lobby.  To this is added some curvature to the balconies at either end of the building and essentially a straight-line wall expression for the balance, and majority, of the building.
  8. [185]
    To quote Mr Richards, the proposed development adopts a design approach that is characterised by its “uniformity”, and which is “efficient” and “cost-effective”.  Although the result may be characterised as “well-mannered”, these descriptors used by Mr Richards are hardly synonymous with excellence.  In my view, the arrangement of the various design elements and materials culminates in a built form that has a contemporary but solid, even bulky, appearance.  I accept that this descriptor is not apposite for the Pacific Parade elevation as that elevation has a far superior appearance to the balance of the building.  However, in my view, the appearance of the Pacific Parade façade is not sufficient to overcome the sub-standard appearance of the highly visible Archer Street façade, let alone the combined appearance of this façade and the even plainer façade that adjoins 4 Archer Street.  As such, I am not persuaded that the proposed development achieves an excellent standard of built form appearance.  
  9. [186]
    With the above matters in mind, I now turn to consider the appearance of the street edge.  
  10. [187]
    I describe the landscape design elements situated between the boundary and the building’s façade in paragraphs [62] to [68] above.  In my view, they combine to provide a visual pleasing outcome.  
  11. [188]
    Mr Powell and Dr McGowan opine that the landscape design contributes to an excellent standard of appearance of the street edge.  They confirm that the proposed landscaping is achievable given the extent of planting medium proposed.  Mr Butcher agrees but opines that it is not an excellent outcome.  Mr Butcher’s concerns focus on the lateral extent of Archer Street that is dedicated to the provision of necessary infrastructure.  
  12. [189]
    I prefer the evidence of Mr Powell and Dr McGowan to that of Mr Butcher on this issue.  The opinions of Mr Powell and Dr McGowan, and their identified foundations, accord with my assessment of the street edge based on the plans, landscape plans and photomontages.  Mr Butcher’s do not.
  13. [190]
    In the circumstances, to the extent that the appearance of street edge is informed by the landscape treatment between the boundary and the built form of the proposed development, I am satisfied that it achieves an excellent standard of appearance.  However, the excellence in the landscape treatment is not sufficient to overcome the adverse character and visual amenity impacts occasioned by the lack of modulation in the Archer Street façade and the visible extent of the facades facing the adjoining neighbours.  The overall visual result is that of a bulky building that presents multiple, largely flat facades to the public realm.
  14. [191]
    For the reasons provided, I am persuaded that there is only partial compliance with s 3.3.2.1(9)(d) of City Plan.  The proposed development does not achieve an excellent standard of appearance of the built form.  The extent of non-compliance is significant.  It sounds in unacceptable town planning impacts, namely unacceptable visual amenity and character impacts. 

Is there compliance with the outcome in s 3.3.2.1(9)(e) regarding housing choice and affordability? 

  1. [192]
    The Appellants contend that there is non-compliance with the outcome sought in s 3.3.2.1(9)(e) of the Strategic framework.  That outcome is expressed as “housing choice and affordability”.  
  2. [193]
    The dispute between the parties is now limited to whether the proposed development provides housing choice.  
  3. [194]
    The Appellant relies on the evidence of Dr Stubbs to contend that the proposed development does not provide housing choice because of its failure to provide studio and one-bedroom apartments.  
  4. [195]
    LGDC McInnesville Pty Ltd and the Council disagree.  They urge reliance on the evidence of Mr Duane.
  5. [196]
    For the reason explained in paragraph [103] above, it is unnecessary to address the issue of compliance with s 3.3.2.1(9)(e) in detail.  It is sufficient to make just a few observations about the meaning of the outcome, relevant context in City Plan and the evidence of Dr Stubbs and Mr Duane. 
  6. [197]
    As has been observed by this Court on several of occasions, the grammatical construct of s 3.3.2.1(9)(e) is unfortunate.  The absence of a verb appears to deny s 3.3.2.1(9)(e) the status of an outcome that is capable of satisfaction by a development: Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, [2023] QPELR 1160, 1185 [132]; Archer v Council of the City of Gold Coast & Ors [2022] QPEC 59; [2024] QPELR 387, 470 [396].  Nevertheless, it is to be given some meaning.  
  7. [198]
    I considered the meaning to be given to this outcome in Archer v Council of the City of Gold Coast & Ors [2022] QPEC 59; [2024] QPELR 387 at 469—75 [389] — [418].  The parties do not cavil with that analysis of City Plan, nor with the findings about the meaning to be given to this outcome.  To the contrary, the Council submits that the appropriateness of that approach is supported by the fact that the Council has amended City Plan, including s 3.3.2.1(9), since that decision.  It has not sought to change the wording of this outcome nor of the provisions of City Plan that provide relevant context and inform the meaning that was attributed to it.  In those circumstances, it is unnecessary to further address the meaning of the outcome here.
  1. [199]
    City Plan recognises the need for increased housing density to accommodate population growth without urban sprawl.  It does so by, amongst other things, allowing for increased heights in specific areas.  
  2. [200]
    In this locality, City Plan encourages redevelopment of the land to achieve urban consolidation.  This is apparent from the mapping to which I refer in paragraph [14] above.  It is also evidenced by, amongst other things:
    1. the inclusion of the land in the Medium density residential zone; 
    2. its designation on the Building density overlay map for a density that is far greater than the historical development present in the area; and
    3. its designation for a height of 23 metres on the Building height overlay map, which is a height far greater than the historical development that is present in the area. 
  3. [201]
    Dr Stubbs paid no material regard to this context, nor to many provisions of City Plan that reveal its approach to housing choice and affordability.
  4. [202]
    In an 86-page report, to which Dr Stubbs attaches a 40-page curriculum vitae, Dr Stubbs opines that the proposed development does not comply with various assessment benchmarks about housing choice and affordability: Exhibit 21.  
  5. [203]
    There are three matters that found Dr Stubbs’ opinions.
  6. [204]
    The first is Dr Stubbs’ approach to broad concepts of social policy with respect to housing, which is largely founded on the approach to social housing in New South Wales and Victoria.  To the extent that Dr Stubbs relies on the Queensland approach, her consideration is informed by the Queensland Government’s efforts to deliver social housing through legislation that sits outside the planning framework.
  7. [205]
    Second, Dr Stubbs’ opinions are underpinned by her consideration of rental affordability, purchase affordability and housing stress.  In this regard, Dr Stubbs places significant weight on her assessment of the proposed development’s inability to provide housing that would be affordable for target groups that she considers to be relevant.  Dr Stubbs identifies those target groups as low- and moderate-income households and very low-income working people who are not eligible for social housing.  She does not provide a cogent explanation for her definition of the target groups.  Her selection of the target groups and her decision to link them to housing on the subject land has no apparent foundation in City Plan. 
  8. [206]
    Third, Dr Stubbs’ opinion is founded on her interpretation of City Plan.  That interpretation:
    1. ignores relevant context in City Plan; 
    2. is entirely discordant with my findings in Archer v Council of the City of Gold Coast & Ors [2022] QPEC 59; [2024] QPELR 387 at 469—75 [389]—[418]; and 
    3. does not accord with other decisions of this Court that have dealt with the proper construction of City Plan.
  9. [207]
    In those circumstances, I find the evidence of Dr Stubbs in her primary report, Exhibit 21, to be of no assistance.
  10. [208]
    Dr Stubbs provided a second report, Exhibit 22, in which she responds to the report prepared by Mr Duane.  Dr Stubbs’ second report criticises Mr Duane’s analysis.  The criticisms reveal a fundamental misunderstanding about Mr Duane’s approach to the issue of housing choice and affordability.  The evidence in Dr Stubbs’ second report does not assist me.
  11. [209]
    Dr Stubbs oral testimony is equally uncompelling.  Like the evidence in her reports, it is entirely misdirected.
  12. [210]
    Unlike the evidence of Dr Stubbs, Mr Duane’s evidence is founded on an approach to this issue that is consistent with my analysis of City Plan’s treatment of housing choice and affordability in Archer v Council of the City of Gold Coast & Ors [2022] QPEC 59; [2024] QPELR 387.  
  13. [211]
    Mr Duane opines that the proposed development will contribute to housing choice by providing apartments that are larger than those that currently exist in his identified study area.  He says that the proposed development will increase the number of two- and three-bedroom units.  It will introduce a modern product with a price point that is greater than that for attached unit product generally, but at a level expected of new beachfront apartments.  According to Mr Duane, the proposed development will provide a more affordable housing option than that provided by detached houses close to the subject land.  Mr Duane observes that the housing options will be provided in a location with a high degree of existing and future infrastructure.  This will help reinforce a compact form of settlement, resulting in improved efficiencies and use of existing and future infrastructure in the surrounding area.  Mr Duane opines that this contributes to the stated planning goals of improved housing affordability and choice.   
  14. [212]
    Mr Duane provides cogent explanations for all his opinions.  They were unshaken during cross-examination.  Mr Duane’s evidence is compelling and I accept it without reservation.  
  15. [213]
    In the circumstances, I am persuaded that the proposed development achieves the outcome sought in s 3.3.2.1(9)(e) of the Strategic framework.

What is the nature and extent of non-compliance with s 3.3.2.1(9) of City Plan?

  1. [214]
    The proposed development does not comply with the specific outcome in s 3.3.2.1(9) of City Plan.  
  2. [215]
    This matter is entitled to significant weight given:
    1. the non-compliance manifests in adverse visual amenity and character impacts and serious non-compliance with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code;
    2. the non-compliance relates to a matter of forward planning policy about the intended building height pattern and desired future appearance for the local area: see s 3.3.2.1(8) of City Plan;
    3. the proper approach for the Court to matters of planning policy is one of restraint: Grosser & Anor v Council of the City of Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 163 [38]; and
    4. LGDC McInnesville Pty Ltd does not suggest that the identified policy is unsoundly based or overtaken by events.
  3. [216]
    In my view, the forward planning policy is entitled to respect and should be given its full force and effect, unless there are sound town planning reasons to do otherwise.

Are the Appellant’s additional reasons for refusal material to the outcome?

  1. [217]
    As I mentioned in paragraph [80] above, the Appellants allege non-compliance with many assessment benchmarks in City Plan in support of their case for refusal.  The alleged non-compliances raise issues relating to site cover, setbacks, roof design, density, design and amenity, visual amenity and character, landscaping, streetscape character, communal open space, and sub-tropical design.  
  2. [218]
    That said, the Appellants contend that the central issues relate to:
    1. the nature and extent of any non-compliance with the outcomes in s 3.3.2.1(9)(a) to (e) of the Strategic framework and, consequently, the significance of the non-compliance with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code; and
    2. whether any non-compliance with s 3.3.2.1(9) of the Strategic framework should be given decisive weight in the exercise of the discretion.
  3. [219]
    As the Appellants explain in their opening written submissions, they rely on the other alleged non-compliances to buttress or support their contentions that the noncompliances with the outcomes in s 3.3.2.1(9)(a) to (e) are significant and should be given decisive weight.  The Appellants submit that the other assessment benchmarks will not, of themselves, warrant refusal if there is compliance with s 3.3.2.1(9) of City Plan.  They say that it is unnecessary to separately address each of them.
  4. [220]
    I have examined each of the assessment benchmarks put in issue by the Appellants and the evidence related to them, including aspects of the evidence that I have not analysed above.  Having done so, I am satisfied that the issue of compliance with those additional assessment benchmarks does not alter the balance to be struck in the exercise of my discretion.  For that reason, it is unnecessary for me to address each of the allegations of non-compliance seriatim.  The weight to be given to the noncompliances with the specific outcome in s 3.3.2.1(9) of the Strategic framework and s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code would not be materially increased or decreased in the circumstances of this case.

Are there relevant matters that support an approval?

  1. [221]
    LGDC McInnesville Pty Ltd relies on several matters that it says arise for consideration under s 45(5)(b) of the Planning Act 2016 and which favour approval of the development application.  LGDC McInnesville Pty Ltd succinctly address these in their written submissions, which relevantly state:

“(a) To the extent non-compliance with any aspects of the Uplift Provision is determined (or, compliance is not demonstrated) as a result of the provision of roof top infrastructure or the absence of operable window detailing on the plans, that non-compliance would not warrant refusal because it would be minor in nature and able to be ameliorated by the imposition of lawful development conditions, including those conditions 10 and 56 in the development approval given by the Council; 

  1. The design, bulk, height, scale and density of the proposed development will not have any unacceptable impacts on the character and amenity of the area, but rather will fit comfortably within a range of existing and approved development evidenced in Mr Perkins’ Separate Report Exhibit 16, Table 2; and 
  2. There are no adverse traffic engineering impacts resulting from the Proposed Development, which warrant refusal, as accepted by the Appellants.” 
  1. [222]
    The first matter is of not of material significance to the exercise of discretion.  My findings of non-compliance are unrelated to the provision of roof top infrastructure and the absence of operable window detailing on the plans.  That said, I accept LGDC McInnesville Pty Ltd’s contention that, in isolation, these matters would not stand in the way of an approval.
  2. [223]
    Regarding the third matter, at the commencement of the hearing, the Appellants contended that traffic impacts warranted refusal.  To support their contention, they called evidence from Mr Bryce Trevilyan.  After the cross-examination of Mr Trevilyan, the Appellants abandoned their contention.  This was appropriate.  Mr Trevilyan’s evidence contained material inaccuracies and was not compelling.  I accept that LGDC McInnesville Pty Ltd has established that there are no adverse traffic engineering impacts resulting from the proposed development that warrant refusal.  This matter is deserving of weight and supports the case for approval.
  3. [224]
    As for the second matter, I do not accept that the design, bulk, height, scale and density of the proposed development will not have any unacceptable impacts on the character and amenity of the area.  For reasons explained above, there are aspects of the design that are attractive, well-resolved and that fit comfortably with the existing and approved development in the local area.  However, other aspects of the design are left wanting.  They negatively impact the overall appearance of the built form such that they sound in non-compliance with City Plan and adverse planning consequences. 

Should the proposed development be approved in the exercise of the planning discretion?

  1. [225]
    The appropriate approach to the exercise of the planning discretion is explained in paragraphs [74] to [76] above.
  2. [226]
    There are two alternative propositions that are fundamental to LGDC McInnesville Pty Ltd’s case for approval, namely:
    1. the proposed development complies with each of the outcomes in s 3.3.2.1(9) of the Strategic framework and, as such, warrants approval despite the conceded non-compliances with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code; and, in the alternative,
    2. any non-compliance with the outcomes in s 3.3.2.1(9) of the Strategic framework are technical in nature and should note be determinative because the proposed development addresses the planning intent for the land in this locality.
  3. [227]
    As is evident from my findings above, LGDC McInnesville Pty Ltd has demonstrated compliance with some of the outcomes in s 3.3.2.1(9) of the Strategic framework, namely those in ss 3.3.2.1(9)(b) and (e).  It has also demonstrated partial compliance with the outcomes in ss 3.3.2.1(9)(c) and (d).  Those matters lend support to the case for approval.
  4. [228]
    Against those findings, I must weigh the non-compliances with City Plan.  The noncompliances are occasioned by the design deficiencies of the proposed development and its inappropriate visual amenity and character impacts.  They are serious and deserving of significant weight.  
  5. [229]
    On balance, I am not persuaded that the positive aspects of the proposed development and the other matters that favour approval, taken collectively, are sufficient to provide a sound town planning basis to depart from City Plan.  They do not render the impacts on visual amenity and character acceptable.  Moreover, there is no sound town planning reason to not give the planning policy with respect to building height in City Plan its full force and effect.  
  6. [230]
    LGDC McInnesville Pty Ltd has not discharged its onus.

Conclusion

  1. [231]
    The orders of the Court will be:
  1. the appeal is allowed;
  2. the decision of the Respondent to approve the Co-respondent’s development application is set aside;
  3. the Co-respondent’s development application is refused.
Close

Editorial Notes

  • Published Case Name:

    The Body Corporate for 62 Pacific Community Titles Scheme 45586 & Anor v Council of the City of Gold Coast & Anor; Sexton v Council of the City of Gold Coast & Ano

  • Shortened Case Name:

    The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast

  • MNC:

    [2025] QPEC 13

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    09 Jun 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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1

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