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Heidelberg Business Park Pty Ltd v Council of the City of Gold Coast[2025] QPEC 14

Heidelberg Business Park Pty Ltd v Council of the City of Gold Coast[2025] QPEC 14

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14

PARTIES:

HEIDELBERG BUSINESS PARK PTY LTD

(ACN 069 000 380)

(first appellant)

And

SEBASTIEN VANDERJAGENBURG

(second appellant)

And

ANDREW HENDERSON

(third appellant)

And

KATE HOWITT

(fourth appellant)

And

KIM KIMEKLIS

(fifth appellant)

And

TARA HARLEY

(sixth appellant)

And

CHRIS RALPH

(seventh appellant)

And

GRAEME EUGENE MOLINEUX & ALEXANDRA MOLINEUX

(eighth appellant)

And

WENDY PEARCE

(ninth appellant)

v

COUNCIL OF THE CITY OF GOLD COAST

(respondent)

And

5POINT PRO1 PTY LTD (ACN 667 923 024)

(co-respondent)

FILE NO/S:

2405 of 2024

DIVISION:

Planning and Environment

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

11 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11, 12 & 13 February 2025

JUDGE:

Williamson KC DCJ

ORDER:

The appeal is listed for review in the applications list on 24 June 2025.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where a submitter appeal against a decision to approve an application seeking approval to make an ‘other change’ to a development approval – where the changes proposed include an increase in building height that exceeds a building height overlay map in the respondent’s planning scheme – whether the changed development complies with a building height uplift provision in the Strategic framework of the respondent’s planning scheme.

LEGISLATION:

Planning Act 2016, ss 45, 59, 60, 78, 78A and 82

Planning & Environment Court Act 2016, ss 43 and 45

CASES:

Abeleda v Brisbane City Council (2020) 6 QR 441

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

Catterall & Ors v Moreton Bay Regional Council [2021] QPELR 850

McEnearney v Council of the City of Gold Coast [2024] QCA 246

McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283

S&S No 4 Pty Ltd v Council of the City of Gold Coast [2024] QPEC 42

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309

Wilhelm v Logan City Council & Ors [2021] QPELR 1321

COUNSEL:

Mr D Purcell and Mr L Walker for the appellants

Mr K Wylie for the respondent

Mr M Batty KC and Ms M Rodgers for the co-respondent

SOLICITORS:

Mills Oakley Lawyers for the appellants

Corrs Chambers Westgarth for the respondent

Anderssen Lawyers for the co-respondent

Introduction

  1. [1]
    The co-respondent is constructing a multi-storey apartment complex on land situated at 107 Jefferson Lane, Palm Beach (the land). Construction is well advanced.  The development is authorised by, inter alia, an extant land use approval dated 31 October 2023 (the development approval). The development approval was subject to code assessment and authorises the start of a new use of the land, namely a Multiple dwelling. Conditions of the development approval require the material change of use to be carried out in accordance with approved plans. The plans depict built form up to 9 storeys and 29 metres in height. The height, in metres, complies with the relevant building height overlay map in Council’s planning scheme.
  1. [2]
    Despite the advanced construction works, the co-respondent applied to Council to make an ‘other change’ to the development approval. Several changes are proposed to the approved plans. The contentious change for this appeal involves an increase in building height; approval was sought to increase the height of the built form to 11 storeys and 36.8 metres. Two consequences flow from this change to the development approval.  First, the increase in building height alters the level of assessment for the development. The level of assessment changes from code to impact; the height of the building at 36.8 metres exceeds the trigger for code assessment. The trigger is stated on a building height overlay map in Council’s planning scheme; it is 29 metres. Second, the increase in building height means the success of the application turns on an assessment against an uplift provision in s 3.3.2.1(9) of Council’s planning scheme. The provision provides an opportunity, in limited circumstances, to secure approval for built form that exceeds the height stated on a building height overlay map.
  1. [3]
    The co-respondent’s change application was administered, assessed and decided as if it were impact assessable. Public notification attracted 980 submissions, of which all but three were adverse to approval. Each of the appellants made an adverse submission. Supplementary lay witness statements were also prepared and tendered during the hearing. The adverse submissions and lay witness statements convey, in clear terms, that the height, bulk and scale of the proposal is considered unacceptable, and if approved, would lead to adverse amenity and character impacts.
  1. [4]
    The change application was approved by Council on 26 July 2024: Ex.6, attachment 4.
  1. [5]
    This is a submitter appeal against Council’s approval.
  1. [6]
    The submitter appellants identified a number of reasons to refuse the change application: Ex.2, document 1 and document 5, para 3. The reasons narrowed considerably during the life of the appeal. By the end of the hearing, the appellants’ case focused on particular parts of the uplift provision in Council’s planning scheme, namely subsections (b), (c), (e) and (g). An assessment against these parts of the uplift provision was said to be decisive: Ex.4, para 8 and Ex.43, para 8. Non-compliance with the contentious parts of the uplift provision was alleged to be established for two reasons, namely (Ex.43, para 6):
  1. the built form does not have an excellent standard of appearance; and
  1. the built form will present as overbearing to Jefferson Lane and the adjoining neighbour to the south.
  1. [7]
    Council and the co-respondent join issue with the appellants’ case. Each contend compliance is demonstrated with the uplift provision.
  1. [8]
    The appeal is a hearing anew: s 43, Planning & Environment Court Act 2016.
  1. [9]
    The co-respondent bears the onus: s 45(2), Planning & Environment Court Act 2016.

The development approval

  1. [10]
    The development approval is contained in a decision notice dated 31 October 2023: Ex.6, attachment 2. The development authorised by the approval is identified as ‘a Material change of use (Code assessment) for Multiple dwelling (8 units)’. The approval was granted subject to conditions. Condition 2 requires development to be undertaken and maintained ‘generally in accordance with’ identified drawings, including any amendments in red. The approved plans depict, in general terms, a medium rise, medium density residential building orientated to take advantage of attractive views to the ocean and beach.
  1. [11]
    The approved building has three distinct components: a basement, tower and roof. The basement accommodates carparking and service areas. The ground floor level contains carparking, service areas and a lobby. Level 1 contains a single unit and common recreation space (pool). Levels 2 to 7 each contain a single unit. Level 8 contains a single unit, with private stair and lift access to level 9. On level 9 there is a bedroom, large ensuite and entertainment room located towards the eastern edge of the building. Level 9 also provides for common recreation space. This includes a pool, terrace and sundeck located towards the western edge of the building. The roof of the building, which is flat and slopes east to west, partially covers level 9. It sits above the bedroom, large ensuite and entertainment room at the eastern end of the floor. The roof line is stepped. This is to ensure the building does not exceed an overall height of 29 metres.
  1. [12]
    The design of the approved building is modern. A review of the floor plans, elevations and sections confirm the built form is articulated and designed to provide visual interest. Each of the units are designed to maximise an attractive easterly aspect to the ocean and beach. A feature of the design is the hard edges of the floor plates, which are particularly evident in the roof and the edge of balconies overlooking the beach.
  1. [13]
    At street level, the tower is set back from Jefferson Lane. The intervening space is filled by a batten fence, driveway, carparks, planting areas and service cupboards. Vehicle access is obtained centrally to the land. The distance between the western boundary of the land and the sealed carriageway of Jefferson Lane is narrow. The resulting space is unattractive for pedestrians. In that space, like many others along Jefferson Lane, the constructed built form has a dominant visual presence.
  1. [14]
    The approved plans depict, in detail, the interface treatment between the approved development and the southern boundary of the land. The details reveal the building is set back from this boundary, with a series of landscaped planter boxes filling the intervening space. The landscaped planter boxes soften the built form below level 2. An acoustic screen is approved on the northern edge of the planter boxes to mitigate noise impacts from the pool at level 1.

The change application for the development approval

  1. [15]
    A development approval may be changed by making a ‘change application’ as defined in s 78 of the Planning Act 2016 (the Act). Such an application must be made to the ‘responsible entity’, who is identified having regard to s 78A of the Act. Here, a change application was made to Council in respect of the development approval. It is uncontroversial Council was the correct responsible entity for that application.
  1. [16]
    The changes proposed to the development approval are depicted in a bundle of amended plans, which were helpfully collated in exhibit 5. The plans can be read with an agreed table, which was marked exhibit 35. The table enables the proposed changes to be appreciated in empirical terms.
  1. [17]
    In summary, the changes proposed to the development approval were described by the town planning witnesses as follows (Ex.20, para 31):

“The changes now proposed to the October 2023 approval are summarised as follows:

  1. an increase in building height from 29 metres to 36.8 metres with a corresponding increase in the number of storeys by two (2) from ten storeys (in part) to twelve (12) storeys;
  1. an increase in the total number of bedrooms from 33 to 41;
  1. an increase in the number of units from 8 to 10;
  1. an increase in residential density from 1 bed/33m2 to 1 bed/26.8m2;
  1. an increase of 2 residential car parking spaces to the basement;
  1. changes to the external architectural elements of the building; and
  1. introduction of a lift overrun.”
  1. [18]
    The changes of primary concern to the appellants are (a) and (f).
  1. [19]
    The changed development is depicted in a bundle of photomontages and visualisations: Ex.12, 13, 33 and 34. I am satisfied the photomontages and visualisations are an accurate depiction of the development, both in its approved and amended form. No expert called to give evidence suggested otherwise. Further, as a matter of impression, I am satisfied the visual aids demonstrate the changed development is an improved outcome, in visual terms, when compared to the development approval. This is most evident when comparing the photomontages for the two forms of development at viewpoints VP01 and VP06. The improvement is the product of a combination of design changes, namely: (1) the introduction of curvilinear edges that soften the edges of the tower and roof (see [12]); (2) the redesign of the upper most part of the building, which is now taller with curvilinear edges, recessed back from the floor plates below and finished with generous landscaping; (3) the introduction of batten screens to the Jefferson Lane facade, which, in combination with the introduction of pronounced slab edging, breaks up the verticality of the structure; and (4) the introduction of pronounced slab edging to the balance of the building at each floor level to provide visual interest, and break up the verticality of the structure.
  1. [20]
    The balance of these reasons will refer to the development for which approval is sought as the ‘changed form of development’.

Statutory assessment and decision making regime

  1. [21]
    The assessment and decision making framework for the change application is identified by s 82 of the PA.  Subsection (2) of this provision states:

“82 Assessing and deciding change applications for other changes

…

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

(a) as if—

(i) the responsible entity were the assessment manager; and

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

(b) with necessary changes.”

(emphasis added)

  1. [22]
    The phrase ‘relevant provisions’ emphasised above is defined in s 82(6) of the Act as follows:

“(6) In this section—

relevant provisions means—

(a) section 45(6) to (8); and

(b) part 2, division 2, other than section 51; and

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

(d) the development assessment rules.”

  1. [23]
    Here, to administer the change application as if it were the original development application inclusive of the changes proposed, requires the impact assessment process to be adopted, with necessary changes. The ‘relevant provisions’ of the Act for this mode of assessment include ss 45(7), 59(3) and 60(3).  Section 45(7) of the Act captures, inter alia, the key planning scheme provision in issue, namely the uplift provision in s 3.1.2.1(9) of the Strategic framework.
  1. [24]
    Section 82(4) of the Act declares that the assessment of the change application is to be undertaken in a particular way. The provision states, in part:

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

(a) the assessment benchmarks;

…

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

(emphasis added)

  1. [25]
    The phrase ‘to the extent the matters are relevant’ in s 82(4) of the Act recognises two things. First, that the matters relevant to a change application may differ depending on the circumstances. Second, that the weight to be afforded to any matter in the assessment may vary: McEnearney v Council of the City of Gold Coast [2024] QCA 246, [32].
  1. [26]
    The decision making power here involves the exercise of the broad discretion conferred by s 60(3) of the PA. The discretion is to be approached in a manner consistent with that discussed in, inter alia, Abeleda v Brisbane City Council (2020) 6 QR 441, Wilhelm v Logan City Council & Ors [2021] QPELR 1321, and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309. The authorities confirm that: (1) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA, which applies to impact assessment, admits of more flexibility to approve an application in the face of non-compliance with a planning scheme; and (2) a planning scheme remains a reflection of the public interest.
  1. [27]
    The assessment and decision making framework for a change application seeking an impact assessable ‘other change’ was recently considered by the Court of Appeal in McEnearney v Council of the City of Gold Coast [2024] QCA 246. In the context of considering the proper interpretation of s 82(4) of the PA, Flannagan JA (with whom Bond and Boddice JJA agreed) cited with approval this Court’s decision in Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850, at [41] and [42]. At paragraph [42] of Catterall, the following observation is made about the ‘practical application’ of the assessment and decision making framework for a change application of the kind presently before the Court:

“…In practical terms, this means the assessment and decision making process for a change application under s 82 of the PA is founded upon, but not limited to:

  1. an identification of the change/s proposed to the development approval;
  1. an identification of the planning issues, be they positive or negative, arising for consideration as a consequence of the change/s proposed to the development approval; and
  1. an assessment of the planning issues arising as a consequence of the change/s to the development approval, having regard to the requirements of the ‘relevant provisions’, and assessment benchmarks, to the extent they are relevant.”
  1. [28]
    The case advanced on behalf of the appellants here is consistent with this practical approach. Their case focuses on: (1) specific planning issues arising from the changed form of development (identified at paragraph [6]); and (2) a relevant assessment benchmark, which is engaged to assess the identified planning issues. The appellants are to be commended for advancing their case in this way.

The planning scheme

  1. [29]
    Version 10 of Gold Coast City Plan 2016 (the planning scheme) was in effect at the date the co-respondent submitted its change application: Ex.6, para 12. For the purposes of the planning scheme, the land is: (1) included in the Urban neighbourhoods designation for the Strategic framework; (2) included in the Medium density residential zone; and (3) subject to a number of overlays, including the Building height and Residential density overlays.
  1. [30]
    Version 11 of the planning scheme took effect on 6 February 2024. It remains in effect and may be given weight in the assessment: s 45(8) of the PA. No party submitted that version 11 had a role to play in the determination of the change application. This is unsurprising given the zoning of the land, relevant overlays and uplift provision remain unchanged.
  1. [31]
    Returning to version 10 of the planning scheme, s 6.2.2 contains the Medium density residential zone code (the zone code). The purpose of the zone code is to ‘provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents’: s 6.2.2.2(1). The purpose is achieved through a number of overall outcomes going to, inter alia, land use, character and built form: s 6.2.2.2(2).
  1. [32]
    Overall outcome (2)(a) of the zone code deals with ‘Land uses’. The provision identifies the land use mix anticipated for the zone, which is a ‘mix of dwelling types’, including ‘a range of medium density residential uses’ to, inter alia, ‘increase residential density’.
  1. [33]
    The character of the zone is given express treatment in overall outcome (2)(c) of the zone code. Subsection (i) of the provision envisages urban neighbourhoods that vary from ‘pockets of detached housing on smaller lots to medium or higher intensity places containing medium-rise buildings’. A medium rise building, by definition in the planning scheme, is 9 to 32 metres and 3 to 8 storeys in height: Ex.10, p.270. At 36.8 metres, the changed form of development exceeds medium rise. As will be seen shortly, Jefferson Lane is not a pocket of detached housing on smaller lots. It is transitioning to a medium intensity place with medium and high rise buildings.
  1. [34]
    Overall outcome (2)(d) of the zone code identifies planning considerations particular to built form. Subsection (i) provides that ‘Built form…has a building height that does not exceed that indicated on the Building height overlay map’. The applicable building height overlay map 21 indicates the land forms part of an extensive area subject to a building height of 29 metres. Ex.20, p.18. The changed form of development has a building height of 36.8 metres. Self-evidently, this does not comply with overall outcome 2(d)(i) of the zone code. With this non-compliance in mind, one then turns to examine s 3.3.2.1 of the Strategic framework.
  1. [35]
    The Strategic framework sets the policy direction for the planning scheme: s 3.1(1). To describe the policy direction, the Strategic framework is structured to include layers that build upon each other. One of the layers deals with ‘elements’. They refine and further describe strategic outcomes: s 3.1(3)(d). Section 3.3.2 of the Strategic framework deals with an element, namely Urban neighbourhoods. Section 3.3.2.1 sets out a number of specific outcomes relevant to this element.
  1. [36]
    Section 3.3.2.1(8) identifies the strategic importance of building height as shown on overlay maps and links this expression of planning intent to the desired future appearance of a local area. The provision states:

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

  1. [37]
    The relevant building height overlay map here (map 21) does not show any ‘deliberate and distinct contrast’ in built form from one side of Jefferson Lane to the other. Each side has the same building height of 29 metres.  The overlay also indicates that the tallest buildings in Palm Beach are promoted in the centre at 39 metres, which is to the west of the land and across the Gold Coast Highway. The 10 metre height differential suggests a stepping down, or gradation, is anticipated from the Palm Beach centre to the land east of the Gold Coast Highway. No such gradation is anticipated (west-to-east) along Jefferson Lane.
  1. [38]
    The Building height overlay maps, while important, are not absolute. The planning scheme conveys an expectation that approval may be obtained, in limited circumstances, for development that exceeds the building height overlay map. This is to be found in s 3.3.2.1(9) of the Strategic framework (the uplift provision). The provision, which provides planning flexibility in limited circumstances, states:

“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. the development is not located within The Spit Master Plan height sensitive area, as identified on the Building height overlay map;
  1. a reinforced local identity and sense of place;
  1. a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
  1. a varied, ordered and interesting local skyline;
  1. an excellent standard of appearance of the built form and street edge;
  1. housing choice and affordability;
  1. protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;
  1. deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and
  1. the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities.”
  1. [39]
    The appellants contend the changed form of development does not comply with subsections (b), (c), (e) and (g) for the reasons identified in paragraph [6]: Ex.43, para 7. Whilst the weight to be attributed to non-compliance with an adopted planning control is not fixed under s 60(3) of the PA, turning on the facts and circumstances of each case (Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, [169]), the parties conducted the appeal on the footing that the assessment against the contentious parts of the uplift provision will be determinative of the appeal. This approach is consistent with the observations made at paragraphs [56], [57], [59] and [62] of Bell (Supra).
  1. [40]
    For completeness, it can be observed that the building height uplift provision is not without limit in the Urban neighbourhoods designation. Section 3.3.2.1(10) states:

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

  1. [41]
    It was uncontroversial that subsection (10) is not engaged here. The changed form of development seeks an increased building height that is less than 50% above 29 metres, as stated on Building height overlay map 21.
  1. [42]
    The zone code includes Table 6.2.2-2, which sets out assessment benchmarks for assessable development. Performance outcome PO5 in the table is relevant to density. In particular, the provision states that ‘Density does not exceed that shown on the Residential density overlay map’. The relevant density map provides that the land is included in an area with a density of ‘RD6’ (1 bed/33 m2). It was common ground the changed form of development does not comply with PO5. The density of the change application equates to 1 bed/27.1 m2. This non-compliance was not pressed as a reason for refusal in its own right because, as the appellants’ town planning witness Mr Adamson accepted, the changes do not alter its characterisation. In a planning sense, the development is, and will remain, a medium density residential development in the event the changed form of development is approved. This was a fair and sensible concession by Mr Adamson. It was consistent with the evidence of Mr Buckley and Mr Perkins. I accept the evidence of the town planning witnesses in this regard.
  1. [43]
    The town planning witnesses also helpfully described the existing land use and built form context of the locality: Ex.20, para 25. The description, which I accept, makes plain that existing character is not homogenous. It is mixed and in a state of transition. It is transitioning from a predominantly low-rise/low density area to one that is medium density with opportunities for medium rise and high rise development. This transition is not complete. It is a transition anticipated, and promoted, by the planning context set out above. Reasonable expectations as to development ought properly take into account these matters, including that there is an opportunity provided by the planning scheme, in limited circumstances, for medium density development to be provided in a high rise form. With this in mind, I have little difficulty accepting the following submission made on behalf of the appellants (Ex.43, para 22). The submission correctly conveys what should be a reasonable expectation as to development on the land. Unfortunately, the substance of the submission was not given sufficient recognition in the adverse submissions and lay witness statements:

“It is not disputed that City Plan intends that the character of Palm Beach, as a whole, is to change from predominantly low-rise coastal spine to one that is medium density, with opportunities for high rise development in limited circumstances, subject to satisfying the uplift criteria…” 

The disputed issues

  1. [44]
    There are four issues to be determined in the appeal. They can be identified as follows:
  1. Whether the built form and street edge of the changed form of development achieves an excellent standard of appearance?
  1. Whether the changed form of development will present as overbearing to Jefferson Lane?
  1. Whether the changed form of development will present as overbearing to the southern neighbour?
  1. Whether the changed form of development complies with subsections (b), (c), (e) and (g) of the uplift provision?
  1. [45]
    The appellants’ case was advanced on the basis that the answer to question 4 was the direct product of the answers to the three preceding questions. This has the consequence that the appellants’ case for refusal will be unsuccessful if the first three questions are answered adverse to their interests.
  1. [46]
    Before dealing with each of the issues in turn, something needs to be said of the large body of expert evidence and the nature of the issues to be determined.
  1. [47]
    An assessment of the changed form of development for each of the above questions calls for an evaluative judgment. Matters of fact and degree loom large. To assist, there was, as I have said, a large body of expert evidence. This evidence was, unfortunately, repetitive within and across areas of expertise. Further, a significant part of the evidence was directed to describing what can readily be observed in the visual aids before the Court. I raised this with Counsel in final addresses. Sensibly, they all conceded that the disputed issues can be resolved, in large measure, by the Court’s own assessment of the visual aids. The aids include a comprehensive bundle of photomontages depicting the changed form of development, in context. The context includes ‘ghosted’ built form to depict approved, but not yet, constructed development. The photomontages are of high quality and provide accurate depictions of development on the land in its approved and changed form.
  1. [48]
    While the visual aids were of considerable assistance, this is not to say I have disregarded the written evidence of expert witnesses in relation to town planning, visual amenity, landscaping and architectural matters. Those experts pointed out numerous features of the design relevant to the determination of the disputed issues. I was particularly assisted by the written evidence of one of the architects, namely Mr Peabody. His contribution to the architecture joint report was consistent with my impression of the development outcome depicted in the photomontages and architectural visualisations. It was Mr Peabody’s view that the changed form of development, including the street edge, exhibited an excellent standard of appearance and achieved well managed interfaces. For reasons that follow, I accept his opinion.

Issue 1: Whether the built form and street edge of the changed form of development achieves an excellent standard of appearance?

  1. [49]
    Subsection (e) of the uplift provision calls for development to exhibit an ‘excellent standard of appearance’ in two respects. First, in terms of built form. Second, in terms of the street edge.
  1. [50]
    The phrase ‘excellent standard of appearance’ is not defined in the planning scheme. It is, as a consequence, to be given its plain and ordinary meaning. All of the parties directed my attention to this Court’s decision in McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283 at [107] where Rackemann DCJ considered the plain and ordinary meaning of this very part of the uplift provision. His Honour held that the phrase, which does not require perfection, conveys something that has superior merit, is remarkably good, or of an especially high standard. I agree and have approached subsection (e) of the uplift provision in the same manner.
  1. [51]
    Given the nature of the outcome sought to be achieved by subsection (e), the assessment involves an evaluative judgment. The most helpful evidence to make this judgment is the bundle of visual aids, comprising architectural plans, photos, photomontages and visualisations. The photomontages depict the development approval and changed form of development in context. As occurred in this case, reasonable minds may, and are likely, to differ about matters of impression drawn from evidence of this kind.
  1. [52]
    Having regard to the visual aids, particularly the photomontages and visualisations of the changed form of development, I am satisfied the built form and street edge exhibit an excellent standard of appearance for the purpose of subsection (e) of the uplift provision. This is so for a combination of reasons set out below. The reasons are, in effect, descriptions of what is vividly depicted in Figure NP25 of exhibit 18, exhibits 33 and 34, and the photomontages for viewpoints VP01, VP02, VP03, VP04, VP06 and VP07. The same photomontages also confirm that the standard of appearance of the changed form of development is superior to the development approval: see also [19].
  1. [53]
    As a matter of impression, the photomontages and visualisations in exhibits 33 and 34 depict a modern and visually interesting built form. This is due to its shape; proportions; use of curvilinear design elements; the use of horizontal and vertical articulation (recessing and stepping); the use of slab edging to break up the verticality of the structure; the use of high quality materials; and the use of an attractive and modern colour palette. Each of these elements coupled with the superior design for the uppermost levels (10 and 11) combine to express an excellent standard of appearance.
  1. [54]
    Mr Olsson, the appellants’ architect, was critical of the use of cladding and white slab edges in the design. The point made, as I understood it, was to the effect that these features add to the visual prominence of the building in contrast to its neighbours. I accept the cladding and slab edges add to the visual prominence of the building, but I do not accept this is a negative attribute. The cladding and slab edges provide strong horizontal features that break up the bulk and mass of the structure. They enhance its visual appearance.
  1. [55]
    The design of the built form at levels 10 and 11 is worthy of specific mention. It is these levels of the building that comprise the two additional storeys for which approval is sought by the change application. A review of the design, with the benefit of the photomontages, demonstrates these levels are recessed from the tower below and provide a visually pleasing and attractive cap to the building. The cap is created by a combination of landscape edges, curved balcony profiles, rounded corners of the facade and the use of articulation. All of these features, taken in combination, exhibit an excellent standard of appearance for the purpose of subsection (e) of the uplift provision.
  1. [56]
    Mr Olsson was also critical of the roof design in that it slopes towards Jefferson Lane. This was said to emphasise its visual presence. While the roof slopes from east to west, I do not accept Mr Olsson’s criticism is a fair one. The photomontages for viewpoints VP01 and VP06 demonstrate that the sloping roof terminates at a point that is set back from the western edge of the building and merges into a highly articulated and landscaped part of the built form. This design outcome does not, contrary to Mr Olsson’s view, emphasise the visual presence of the roof, let alone emphasise the upper parts of the building.
  1. [57]
    Consideration must also be given to the ‘street edge’. Here, this is the interface between the development and Jefferson Lane. A visualisation of the street edge is provided in Figure NP25 of exhibit 18. The street edge as depicted in that image provides an excellent standard of appearance. It includes an opening for a driveway and access to the basement. These features do not detract from the appearance at street level. Features of this kind are essential and must be incorporated along the Jefferson Lane frontage. The design has done so, in my view, in an appropriate and meritorious way. The result is a street edge that achieves an excellent standard of appearance. This is particularly evident when the changed form of development is contrasted with the existing character of Jefferson Lane.
  1. [58]
    Jefferson Lane is a narrow one-way road, in the order of 8.2 metres wide near the land. It extends for a considerable length in a north/south alignment on the beach side of the Gold Coast Highway within Palm Beach. It is separated from the beach by a swathe of land on its eastern side. This is where the land is situated. Jefferson Lane facilitates rear access to lots on its western side, which have frontage to the Gold Coast Highway. The width of the road reserve provides little to no space for pedestrians on the verge. It is an unattractive pedestrian space.
  1. [59]
    The built form character on both sides of Jefferson Lane is mixed. It comprises a mix of dwelling types, including Multiple dwellings. There is a variety of building designs. There is also variety in terms of building heights, setbacks, materials, building age and condition: Ex.41.
  1. [60]
    Two features of the character of Jefferson Lane warrant particular mention.
  1. [61]
    First, a feature of the existing built form character of Jefferson Lane is the juxtaposition of apartment towers with low rise dwellings. This occurs with some regularity along Jefferson Lane. The difference in built form height, bulk and scale is readily appreciable in these building-to-building relationships. Such a relationship can be seen on the land with its immediate neighbours. The land is being developed with a medium rise/medium density development authorised by the development approval. Even allowing for the presence of scaffolding, visual aids confirm that the built form under construction (in terms of its height, bulk and scale) dominates the low rise residential dwellings immediately adjoining to the north and south. The photomontages for viewpoints VP01 and VP06 confirm this will not change in the event the approved form of development is completed.
  1. [62]
    Aerial photography, marked up with the location of recent development approvals (Ex.18) confirms that the juxtaposition of towers with low-rise dwellings is due to an emerging character in the strips of land that sleeve either side of Jefferson Lane. The emerging character takes the form of medium density residential development provided in tower form. Some of the towers are medium rise, by definition, in the planning scheme. Some are high rise by definition and have taken advantage of the uplift provision. The existence of this form of development, in combination with recent approvals granted by Council that are not yet acted upon, serve to confirm that the emerging character will persist for the foreseeable future in Jefferson Lane. This character is consistent with the forward planning for the area, which is reflected in, inter alia, the Medium density residential zone code and applicable overlay maps (building height and density).
  1. [63]
    It will take time to achieve the planned character for Palm Beach. The aerial photography confirms this is happening at a more accelerated rate on the western, rather than eastern side, of Jefferson Lane. While this was a point laboured in the appellants’ case, for my part, I considered the distinction between the two sides of the road a distraction. The reason for this can be easily stated: the character of Jefferson Lane is not static. The planning scheme encourages change, and change should be reasonably expected on both sides of the road reserve. In terms of the change in character, the planning scheme treats both sides of Jefferson Lane in the immediate locality of the land the same; they are included in the same zone and subject to the same building height and density overlay maps. Further, it can be said that there are many reasons why one side of the road may be developed at a faster rate than the other. The evidence does not suggest this is the product of any town planning consideration. In such circumstances, it is unnecessary to speculate about the rate at which redevelopment may occur on either side of Jefferson Lane.
  1. [64]
    Second, the street edge and streetscape on both sides of Jefferson Lane is fairly described as a ‘mixed bag’. A range of development outcomes can be seen on both sides of the road, including limited landscaping, the presence of driveways, solid masonry fencing, wire fencing, dilapidated structures, non-residential buildings and built to boundary service cupboards. Save for new development, it is fair to say that the standard of appearance of the street edge and streetscape along both sides of Jefferson Lane is poor and disjointed. The western side has the added disadvantage that some of the existing development has been designed to present a ‘back of house’ to Jefferson Lane.
  1. [65]
    Against this background, the street edge of the changed form of development can be considered. The visual aids confirm that the changed form of development includes a number of design elements at, or close to, the street edge with Jefferson Lane. The elements comprise (Ex.19, p.7, figure 4a): (1) built form (podium and tower); (2) landscaping; (3) a driveway; (4) solid fencing; and (5) concealed service cupboards. None of these elements are incongruous with the existing or emerging character of Jefferson Lane. In my view, the changed form of development will in fact improve the appearance of the Jefferson Lane streetscape. While favourable, this does not however resolve the dispute about subsection (e) of the uplift provision; the street edge must achieve an excellent standard of appearance to comply.
  1. [66]
    I am satisfied the photomontages and visualisations, read with the architectural and landscape plans, demonstrate that an excellent standard of appearance will be achieved at the street edge. Figure NP25 of exhibit 18 was particularly helpful in this respect. The figure provides a clear visualisation of the street edge where several elements work together to create an excellent standard of appearance (Ex.19, figures 4a and 5a). The elements are:
  1. the lower part of the building up to level 2, which provides a podium to create a human scale at street level – when appreciated at the pedestrian level this part of the building creates an eyeline that draws the viewer’s attention down from the tower above and towards the curvilinear landscaped awning at levels 1 and 2;
  1. the setbacks provided from the street edge to the building envelope;
  1. the use of attractive and generous landscaping in the setback area between the street edge and the built form;
  1. the articulation of, and vertical batten screens wrapping around, the fire stair on the south-west corner of the building, which provide a pleasant backdrop to the landscaping;
  1. the use of batten screens to conceal building services;
  1. the visual interest provided by the ‘banding’ at each floor level of the tower, created by the edge of each floor slab; and
  1. levels 10 and 11 have been set back from the edge of the tower below and landscaped – Figure NP 26 of exhibit 18 confirms these levels of the built form will be difficult to appreciate from the street edge, let alone distinguish as built form that exceeds 29 metres in height.
  1. [67]
    Mr Peabody is an experienced architect well known to the Court. He regularly provides evidence to assist with the very matters under consideration. I carefully reviewed his evidence. He concluded that the proposed development exhibited an excellent standard of appearance in terms of built form and street edge. This conclusion was founded on a comprehensive examination of the proposal and visual aids. His conclusion was made good by the photomontages. It is consistent with my own impression of the visual aids. I accept Mr Peabody’s evidence.
  1. [68]
    The appellants’ case in relation to subsection (e) of the uplift provision commenced from a position of damning the changed form of development with faint praise; it was submitted the standard of appearance is ‘not poor’ but ‘falls short of excellent’: Ex.43, para 13. It was said to fall short of excellent because of the overbearing presentation of the built form to Jefferson Lane.
  1. [69]
    The appellants relied upon the evidence of Mr Olsson and, to a lesser extent, Mr Adamson, to establish that the proposed development will have an overbearing presentation to Jefferson Lane.
  1. [70]
    Mr Olsson did not agree that the changed form of development exhibited an excellent standard of appearance. Rather, it was his view that the development would be visually intrusive and adversely impact on Jefferson Lane. In this regard, Mr Olsson referred to: (1) the lack of appropriate setbacks to the street; (2) the service cupboards lining the lane at the north-west corner of the site; (3) the proposed concrete planter at level 1, which is within 0.85 metres of the site boundary; and (4) the setback and design (including vertical battens) of the fire stair, which would be uncommon in the area and emphasise the scale and verticality of the building. Mr Olsson also considered the extent of landscaping proposed. He regarded it as minimal in amount and insufficient to mitigate the height and scale of the changed form of development.
  1. [71]
    Mr Adamson expressed similar views to Mr Olsson about the visual dominance of the proposed development. While I appreciate Mr Adamson’s assistance in this regard, it is unnecessary to dwell upon his evidence. As I understood it, Mr Adamson deferred to Mr Olsson in relation to this issue.
  1. [72]
    I considered each of Mr Olsson’s criticisms of the design with the benefit of the visual aids, particularly the photomontages, plans and visualisations. Based on that exercise, I do not accept, as a matter of impression, that the setbacks of the built form and the location of service cupboards adversely impact on the appearance of the street edge or built form. In short, this is because the setbacks to the built form, which vary and do not mimic nearby development, are appropriate to ensure the street edge is not ‘overcrowded’ or overborne. The criticism of the service cupboards is also unpersuasive. The evidence established they are required to be located on the frontage of the land. The design of the changed form of development conceals the cupboards in an attractive and practical way.
  1. [73]
    The point made by Mr Olsson in relation to the fire stair is on stronger ground given its visual prominence in the photomontages, particularly viewpoint VP02. That prominence does not, however, detract from the standard of appearance of the development. In my view, this part of the design is an attractive component of the development. This is clear from viewpoint VP02, which vividly demonstrates that the element is attractive when read together with the slab edge banding, which serves to break up the verticality of the built form and batten screens.
  1. [74]
    I also do not accept the criticisms of the landscaping design. The deep planting and integrated planning proposed at the lower level of the building will, as the visual aids demonstrate, contribute to a positive and attractive relationship with Jefferson Lane at street level. It will also serve to soften the built form when viewed from Jefferson Lane. Contrary to Mr Olsson’s view, on balance, I am satisfied a landscaping regime can be conditioned to ensure (in so far as it is able) an excellent standard of appearance is achieved for the purpose of subsection (e) of the uplift provision.
  1. [75]
    For these reasons, I am satisfied compliance has been demonstrated with subsection (e) of the uplift provision.

Issue 2: Whether the changed form of development will present as overbearing to Jefferson Lane?

  1. [76]
    The use of the term ‘overbearing’ in an amenity and character context typically refers to the visual relationship between built form and a potential receptor. The receptor can be a person or other built form. An overbearing visual relationship is one characterised by excessive visual dominance in the light of the relevant circumstances. The relevant circumstances include the existing character of an area, the content of adopted planning controls, and rights conferred by extant development approvals that, at the time of the assessment, have not been acted upon.
  1. [77]
    I have dealt with existing and planned character above. Based on this assessment, it can be said, with confidence, that the existing character of Jefferson Lane, including in close proximity to the land, is not homogenous. It is transitioning to a medium density/medium rise area. The transitional state of the area means there is a mix of dwelling types, building designs, boundary setbacks, building materials, and built form age and condition. A further feature of the local area is the juxtaposition of new tower developments with existing low rise land uses. Such a relationship can already be seen on the land in comparison to adjoining sites. The adjoining sites are improved with Dwelling houses. As is clear from visual aids before the Court, those dwellings are visually dominated by the built form under construction on the land. Even allowing for the removal of scaffolding, the extent of the visual dominance is significant. It is particularly evident in Figure 42 of the Architects’ joint report (Ex.16, p.52) and VP01 of the bundle of photomontages.
  1. [78]
    To examine whether the changed form of development will present as overbearing to Jefferson Lane, I was greatly assisted by the visual aids. When considered in conjunction with the existing and planned character of Jefferson Lane, I was satisfied, on balance, that the changed development will not present as overbearing to the street (i.e. having excessive visual dominance relative to a known receptor). This is demonstrated by viewpoints VP01, VP02 and VP06 of the photomontages, particularly the images that have ghosted in approved but not yet constructed development. These images confirm that the changed form of development will have an excellent standard of appearance and an appropriate visual relationship with the street. This, in my view, is due to the design of the street edge (including the setbacks and landscaping), the design of the tower above the street level and the relativity of the height, bulk and scale of the built form to nearby development (both existing and approved). A number of design features at the street edge will make a positive contribution to Jefferson Lane and the streetscape. Two particular design features are of note, namely:
  1. the distinct components of the tower, when appreciated as a whole (it is well articulated, recessed at upper levels, and includes curvilinear components, defining floor edges and a batten screen) create a visually interesting form that will relate well to the street; and
  1. the setback of the tower from the street in combination with the use of low level landscaped awnings to create a human scale at ground level.
  1. [79]
    With respect to (b), the creation of human scale, this is an important consideration for the visual relationship to the street. Here, it can be most readily appreciated in Figure NP25 of the visual amenity and landscaping joint report. The figure is a render of the street edge. The following design features are evident, namely: (1) the curvilinear design features referred to above; (2) the defining slab edges; (3) generous landscaping; (4) deep planting; (5) batten screening; and (6) the deliberate stepping and recessing of floor plates to create visual interest and reduce the apparent bulk and scale of the built form. I am satisfied all of these features combine to create ‘human scale’ at street level and do not result in an overbearing presentation of the built form to the street.
  1. [80]
    That the relationship is not one of excessive visual dominance is, in my view, confirmed by the absence of adverse amenity impacts. In this regard, the appellants conceded that the proposed development will not give rise to a number of adverse impacts typically regarded as indicia of overbearing development. The impacts falling into this category relate to privacy, overlooking and shadowing. It was accepted that impacts of this kind, particularly in respect to privacy and overlooking, can be appropriately managed by conditions. I agree. As a consequence, the changes to the development approval will, in due course, need to include not just conditions already imposed by Council but also those offered up by the appellant to address impacts on privacy and overlooking (helpfully identified at paragraph 57 of exhibit 43).
  1. [81]
    The appellants relied upon Mr Olsson’s evidence to establish the built form would present as overbearing to the street. I will turn to this evidence shortly. This evidence, and indeed the appellants’ case generally, appeared to be founded on three underlying assumptions. First, that Jefferson Lane is an important local character element. Second, that Jefferson Lane in the immediate locality is visually sensitive given the large number of people who congregate in the nearby park and patrolled beach/ surf lifesaving club: Ex.43, para 47. Third, that in character terms, the western side of Jefferson Lane is to be treated differently to the eastern side. I will deal with these underlying assumptions first.
  1. [82]
    It can be accepted that Jefferson Lane is part and parcel of the character of Palm Beach and the immediate locality surrounding the land. While the lane may be notorious for the connectivity it provides throughout the eastern edge of Palm Beach, to describe it as an ‘important character element’ is, in my view, to employ exaggeration. As a starting point, Jefferson Lane has no such status in the planning scheme. This is in circumstances where the planning scheme could have identified, and does, where relevant, identify local character features of import. The existing circumstances also do not support a finding that Jefferson Lane is of local importance to character. In visual terms, it is not prominent. This is due, in no small measure, to its width, the unattractive pedestrian environment it provides and rear lot access function. In my view, the mixed character of Jefferson Lane is visually disjointed and, in parts, has an unattractive streetscape. As a consequence, I have difficulty accepting that the assessment of visual dominance in this case should proceed on the footing that the first underlying assumption can be accepted without significant qualification. This adversely impacts the appellants’ case and Mr Olsson’s evidence.
  1. [83]
    The appellants contend the immediate local context to the north of the land means the local area is visually sensitive. This can be accepted to a point. Views to and from the beach and nearby park may be considered sensitive given they are popular parts of the public realm. This does not however mean that built form should not be viewed from the beach or park. This is clear enough from the adopted planning controls, which promote medium rise/medium density development on Jefferson Lane. It is also clear from the photomontages before the Court. Visually dominant built form, including the constructed works on the land, can readily be seen from the park, surf lifesaving club and beach referred to above. As a consequence, I have difficulty accepting that the assessment of visual dominance should proceed on the footing that the second underlying assumption can be accepted without, again, significant qualification. This adversely impacted the appellants’ case, which, in my view, placed too great a weight on the visually sensitive nature of the immediate context.
  1. [84]
    As to the third assumption, it finds support in the evidence of Mr Olsson. He spoke of building height gradation (downwards) from the west of Jefferson Lane to the east. This approach to the assessment ought not be accepted and undermines Mr Olsson’s evidence. There are three reasons for this. First, there are existing and approved towers on the eastern side of Jefferson Lane that do not support the gradation theory. One development is a tower of 13 storeys and 42.9 metres in height. Second, the view corridor along Jefferson Lane is narrow. This has the consequence that built form on both sides of the road will be in view when appreciating the character of the street; the visual contribution of each side of the road readily bleeds to the other side. The extent of bleeding is such that the two sides of the road become indistinguishable parts of a whole. Third, I was not directed to any provision of the planning scheme that supports a gradation theory on Jefferson Lane. This is unsurprising once it is appreciated the planning scheme designations in the immediate vicinity of the land are the same on both sides of Jefferson Lane. The eastern and western side of Jefferson Lane receive, for all intents and purposes, the benefit of the same forward planning, which envisages a medium density character with a mix of dwelling types in tower form.
  1. [85]
    Turning to Mr Olsson’s evidence, it was his view that the changed development would present as overbearing to Jefferson Lane because of three specific components. First, Mr Olsson drew attention to the service cupboards lining the frontage of the site in its north-west corner. Second, Mr Olsson drew attention to the concrete planter at level 1 which would be, at its closest point, 0.85 metres from the boundary. Third, Mr Olsson drew attention to the fire stair, which is set back 2.62 metres from the street and clad with vertical battens. As I understood his evidence, Mr Olsson was of the view that each of the elements, in combination, would be visually intrusive to Jefferson Lane. Mr Olsson did not consider that this visual impact was properly mitigated by the setbacks provided to the street and the proposed landscaping.
  1. [86]
    I do not accept this part of Mr Olsson’s evidence. It assumes the immediate local area has a higher degree of visual sensitivity than it deserves.
  1. [87]
    Further, a careful examination of Mr Olsson’s evidence is not made good by the visual aids. This is particularly so in the case of the street edge. Figure NP 25 of the visual amenity and landscape joint report demonstrates the changed development will have an excellent standard of appearance. This is due to: (1) varying setbacks of the built form to the street; (2) the presence of deep planting at ground level; (3) the landscaped curvilinear slab features above ground level (podium); and (4) the setback of the tower and recessed floor plate above the podium level. These features combine to create a human scale at ground level. In combination with the tower above, I am satisfied the built form will relate to Jefferson Lane in a way that is acceptable; it will not be visually overbearing. That it will not be visually overbearing is confirmed by the photomontages for the viewpoints at the beach and park, looking towards the land.
  1. [88]
    Mr Olsson and the appellants’ visual amenity expert, Mr Butcher, made the point that the batten screen to the fire stair, which can be seen at all levels on the southern end of the built form, emphasises its verticality and contributes to an overbearing visual relationship to the street. While the battens are a vertical element, the photomontages and visualisations show that they are broken up into sections by horizontal slab edges. The slab edges, in combination with the articulated floor plates, in my view, means the battens are not read as continuous vertical elements. They are broken up at each level, which provides visual interest and reduces the verticality of the structure. Further, the battens provide an attractive background to the landscaping at ground level, contributing to the excellent standard of appearance at the street edge.
  1. [89]
    Finally, the service cupboards to which Mr Olsson referred can be seen in Figure NP25. They are concealed in the proposed boundary fence. The fence, which will be attractive, reinforces human scale at street level and will make a positive contribution to the streetscape. I am satisfied this feature will not present as overbearing to Jefferson Lane.
  1. [90]
    For the reasons above, I am satisfied the proposed development will not, contrary to the appellants’ case, present as overbearing to Jefferson Lane.

Issue 3: Whether the changed form of development will present as overbearing to the southern neighbour?

  1. [91]
    For the purposes of this issue, I have approached alleged ‘overbearing’ in the same manner as I have discussed at paragraph [76]; the allegation involves one of excessive visual dominance. The allegation for issue 3 is one of excessive built form dominance from the perspective of the immediate neighbour to the south. On this land, there is an existing two storey Dwelling house.
  1. [92]
    The Dwelling house to the south is orientated to enjoy an aspect to the east (beach). It does not presently enjoy an aspect to the north. This is obscured by the building works constructed on the land. So much is confirmed by Figure 42 of the architecture joint report and photomontages before the Court.
  1. [93]
    To assess the visual relationship between the changed form of development and the immediate southern neighbour, I had regard to the visual aids before the Court. I particularly found exhibits 33 and 34 to be of assistance. They contain visualisations of the boundary interface when viewed from the street, on plan, in elevation and in section. Figure 2 of exhibit 34 is an architectural visualisation depicting the lobby and landscape treatments at, and along, the southern boundary.
  1. [94]
    During Mr Butcher’s evidence, I asked him to explain, by reference to Figure 2 of exhibit 34, what was unacceptable about the changed form of development and its interface with the southern boundary. Fairly, Mr Butcher said the interface was visually acceptable provided the landscaping outcome as depicted in the visualisation was, in effect, guaranteed. From this, I took Mr Butcher to be conveying that the landscaping outcome depicted is critical to the acceptability of the interface design. I agree this is the case; this should be the subject of a condition. I am satisfied having regard to the evidence of Mr Powell and Dr McGowan that a condition can be imposed to achieve the landscape outcome depicted in the visualisations, and compliance with such a condition/s is a realistic expectation.
  1. [95]
    On balance, exhibits 33 and 34, in combination with the evidence of Mr Powell, Dr McGowan and Mr Peabody persuaded me that the resulting visual outcome at the southern boundary will not be overbearing or unacceptable. Rather, the interface treatment depicted, which will be conditioned, softens the presentation of the changed form of development behind a wall of landscaping. This wall of landscaping, in turn, works to soften the visual impact of building bulk, height and scale behind it. This is reinforced by the appellants’ concession about the absence of amenity impacts that are treated as indicia of overbearing built form. As I have already observed, the appellants accept that impacts on privacy and overlooking can be conditioned, and shadow impacts do not call for the refusal of the change application.
  1. [96]
    Relevant to the assessment of the southern interface is the requirement of the statutory assessment regime that it be considered ‘in the context’ of the development approval. In practical terms, this means the assessment of the changed form of development ought take into account the interface treatment that would be provided in the event the development approval was acted upon in full. Architectural sections and visualisations of the southern interface for the development approval are contained in exhibits 33 and 34 and can be compared. This exercise is assisted by Figure 42 of the architecture joint report, which is a photo of the interface as it is presently constructed.
  1. [97]
    A comparison of these visual aids confirms, as the appellants concede, that the changed form of development includes measures intended to ameliorate (Ex.43, para 55) the impact of the approved form of development. The ameliorative measures include a reduction in the height of an acoustic screen adjacent to the pool on level 1 and an improved landscaping and planter design around the entry to the building and along the boundary. These ameliorative measures, in combination with the landscape design (as depicted in exhibit 34 (pp.1 and 2 particularly)) will result in a superior development outcome to that depicted in the development approval. This finding is consistent with the conclusion I have reached at [95].
  1. [98]
    It can be observed that the appellants did not contend the overbearing presentation of the development was due to the two additional storeys of built form for which approval is sought by the change application. Rather, in reliance upon Mr Olsson’s evidence, attention was directed to two specific parts of the design at the lower levels of the building. First, the 10 metre long x 5.1 metre high opaque acoustic screen adjacent to the level 1 pool. This screen is set back 0.9 metres from the boundary and sits on top of a boundary wall that runs parallel to the boundary. The wall provides for landscaped planter boxes. Second, attention was directed to the lobby wall, which is 5.8 metres high x 5.3 metres long, setback 0.84 metres from the boundary: Ex.26, paras 17 and 18. Mr Olsson pointed out that these elements are visually solid, close to the boundary and 3 times taller than a person who may be standing in the rear yard of the property to the south. It is the combined effect of these features that led Mr Olsson to criticise the southern interface and characterise it as overbearing.
  1. [99]
    I do not accept Mr Olsson’s opinions about the southern interface. The opinions are not made good having regard to the visual aids I have referred to above. Further, Mr Olsson’s opinions appeared to place significant weight on the fact that acceptable outcomes in the planning scheme (for setbacks) were not met on the southern boundary. This is correct in two locations, but, in fairness, needs to be considered in context. The relevant context includes, namely: (1) that the form of development approved by the development approval conveys an expectation about the interface that is acceptable for code compliant development on the land, namely a Multiple dwelling; (2) the interface provided by the approved development is an alternative solution to acceptable outcomes in the planning scheme for setbacks and is similar, but not identical, in its design to the changed form of development; and (3) the interface proposed by the changed form of development is, for reasons given above, a superior solution to that provided by the development approval. In my view, Mr Olsson’s opinions about the southern interface do not give sufficient recognition to these matters of context.
  1. [100]
    For these reasons, I am satisfied the changed development will not present as overbearing to the immediate southern neighbour. Further, it is my view the changed form of development, including its relationship to and impact on development to the south, is acceptable in town planning terms.

Issue 4: Does the changed form of development comply with the uplift provision?

  1. [101]
    The alleged non-compliances with subsections (b), (c) (e) and (g) of the uplift provision assume the appellants establish one, or both, of two points with respect to the changed form of development. The two points are (Ex.43, para 6):
  1. that the built form does not have an excellent standard of appearance; and
  1. that the height and built form will present as overbearing to Jefferson Lane and the southern neighbour.
  1. [102]
    It was contended that either of these matters sound in non-compliance with the uplift provision as follows (Exhibit 43, para 7):

“Establishing either of these matters will sound in non-compliance with criterion (e). Additionally, establishing the second matter will also result in non-compliance with criteria (c) on the basis that it will result in an interface to the southern neighbour which is not well managed, and (b) and (g) on the basis that the Lane is important to local identity and sense of place and is an important element of local character.”

  1. [103]
    For the reasons given above, I am satisfied the co-respondent has demonstrated that the changed form of development will have an excellent standard of appearance and will not present as overbearing to Jefferson Lane and the southern neighbour. The appellants’ case in relation to non-compliance with the uplift criteria is not, as a consequence, made out on the evidence. This is decisive of the outcome in the appeal.
  1. [104]
    Further, and in any event, I am satisfied the co-respondent has demonstrated compliance with the disputed aspects of the uplift provision. This is so for the following reasons.

Subsection (b)

  1. [105]
    Subsection (b) calls for an assessment of whether the changed form of development ‘reinforces local identity and sense of place’. This is not a defined phrase in the planning scheme. It is to be given its plain and ordinary meaning: S&S No 4 Pty Ltd v Council of the City of Gold Coast [2024] QPEC 42, [86]. It was correctly pointed out by the appellants in this context that the use of the word ‘reinforce’ requires the strengthening of local identity and sense of place. How this will be achieved in any given case turns on matters of fact and degree, including the extent to which compliance is achieved with other parts of the uplift provision, such as subsections (c), (d) and (e). It can be observed that the appellants’ case did not involve an alleged non-compliance with subsection (d).
  1. [106]
    The factors that go to make up local identity and sense of place vary according to the facts and circumstances of the case. The factors to be considered are not limited to what exists at the time of the assessment. The size of the local area to be considered should not be unduly narrow. The extent of the local area considered should be informed by existing circumstances, the adopted planning controls and extant development approvals that have been granted but not yet acted upon: Catterall (Supra), [86].
  1. [107]
    That the relevant study area should not be unduly narrowed is clear in this case having regard to the suburb of Palm Beach and the reference points that define its edges. The relevant features (which are evident on Figure 2 of the town planning joint expert report) that caused me to adopt this approach are: (1) the elongated and thin nature of the suburb, bookended by Tallebudgera Creek to the north and Currumbin to the south; (2) the proximity of the suburb to the beach, which marks its eastern extent between the two bookends; and (3) the presence of the Pacific Motorway, which marks the western extent of the suburb. Local identity and sense of place is not however limited by proximity to these features. The forward land use planning is also relevant to the size of the study area to be considered.
  1. [108]
    The relevant zoning map confirms that the local identity and sense of place of Palm Beach can be considered at a broad scale. The map indicates that a substantial part of the suburb is included in the Medium density residential zone: Ex.20, p.15. This is not limited to Jefferson Lane or an area in immediate proximity to the land. Save for limited exceptions, this zone applies to a large area of land that is east of the Gold Coast Highway, south of Tallebudgera Creek and north of Currumbin. This is where the land is to be found. There was no dispute that the built form character of this area is intended to change. As I have already observed, it is intended to transition from the existing (predominantly) low-rise built form character to a medium density area. There are opportunities within that area for medium rise development as defined in the planning scheme. There are also opportunities for high rise development, but in limited circumstances. Extant development approvals demonstrate the transition is underway. Jefferson Lane, as it exists today, demonstrates this very point – the character of the street is a mix of old and new development forms, including medium and high rise towers.
  1. [109]
    In terms of building height, the tallest buildings are promoted in the Palm Beach centre. This is located to the west of the Gold Coast Highway. A gradation in building height is intended outwards from the centre. Notably, as I have already observed, the building height overlay maps do not suggest gradation downwards is anticipated, or promoted, from one side of Jefferson Lane to the other. Building height, and intended development intensity, is consistent on the eastern and western sides of the road.
  1. [110]
    Adopting a broad study area and defining the local identity and sense of place of that area by reference to the matters traversed above, I am satisfied the changed form of development complies with subsection (b) of the uplift provision. It will strengthen local identity and sense of place by reason that it will be consistent with the planned character of the area. This will occur in circumstances where the built form has an excellent standard of appearance; will contribute to a varied, ordered and interesting skyline; and will have well managed interfaces, impacts and relationships with nearby development. That it will strengthen local identity and sense of place, in my view, is further confirmed by two factors, namely that: (1) the changed development will not detract in any way from the key features that define the edges of the suburb and inform the sense of place and identity; and (2) the excellent standard of appearance (and associated skyline) of the changed form of development can be achieved absent unacceptable impacts on character and amenity.
  1. [111]
    The appellants invited me to adopt a narrower study area, being the immediate context of the land. It was contended this was appropriate given a point of agreement reached between Mr Powell and Dr McGowan. It is correct to say that these experts agreed the immediate context ‘is the most relevant’ for determining the local identity and sense of place. While I accept the immediate area is relevant to the assessment of local identity and sense of place, the circumstances here suggest that, in planning terms, local identity and sense of place is defined by the characteristics of a broader area. That said, even adopting the immediate area as the frame of reference for the assessment does not alter my view.
  1. [112]
    The local identity and sense of place of the immediate area is informed by: (1) the presence of the beach and nearby park; (2) the mixed character of built form, as described above; (3) the alignment, width and function of Jefferson Lane; (4) the proximity of the immediate area to the Gold Coast Highway; and (5) the forward planning for Palm Beach as described above. The proposed development reinforces or strengthens the local identity and sense of this immediate place because it will be consistent with the planned and emerging built form character of the area. This will occur in circumstances where the built form has an excellent standard of appearance; will contribute to a varied, ordered and interesting skyline; and will have well managed interfaces, impacts and relationships with nearby development. All of this can be achieved absent unacceptable impacts on character and amenity.
  1. [113]
    The appellants’ case with respect to reinforcing local identity and sense of place assumed that the changed form of development adversely affected the built form character of Jefferson Lane (having regard to setbacks, the street edge and limited high rise development), would be overbearing to Jefferson Lane, and would undermine the Lane’s role as an important contributor to local character: Ex.43, para 31. I do not accept this proposition. It is contrary to the reasons I have set out above.

Subsection (c)

  1. [114]
    It was submitted on behalf of the appellants (Ex.43, para 49) that subsection (c) of the uplift provision requires the co-respondent to demonstrate three things, namely that the changed development has a well-managed:
  1. interface with nearby development;
  1. relationship to nearby development; and
  1. impact on nearby development, including reasonable amenity expectations of nearby residents.
  1. [115]
    I agree with this submission.
  1. [116]
    The changed development has an interface and relationship with the beach, Jefferson Lane and two adjoining lots.
  1. [117]
    The interface and visual relationship with the beach (eastern) will be well managed. This is, in part, due to the absence of any adverse impact on the beach (such as excessive overshadowing). It is also due to the design of the changed form of development which has a significant rear boundary setback, intervening landscaping and a visually interesting and attractive built form. The built form when viewed from the beach is highly articulated by the use of deep balconies. The presence of the deep balconies, with pronounced curvilinear slab edges, has the effect of reducing the verticality of the structure. The use of large balconies also provides depth to the structure, which serves to mitigate the height, bulk and scale of the structure. Each of these features is evident in the photomontages for viewpoints VP06 and VP07. Photomontages for the same viewpoints but further removed (namely VP03, VP04 and VP05a and b) also confirm that the changed form of development will sit comfortably in the mixed character of Jefferson Lane when viewed from the beach, surf lifesaving club and park to the north of the land.
  1. [118]
    The appellants did not contend for a contrary conclusion in relation to the interface with, relationship to, and impact on, the beach, park and surf lifesaving club.
  1. [119]
    The interface with, relationship to, and impact on the southern boundary will be well managed for the reasons given at [52] to [75] and [91] to [100].
  1. [120]
    The interface with, relationship to, and impact on Jefferson Lane (west), particularly the street edge, is well managed for the reasons traversed in paragraphs [52] to [90].
  1. [121]
    The visual relationship between the changed form of development, existing development and approved development on Jefferson Lane can be examined by reference to the photomontages and visualisations in evidence. Viewpoints VP01 and VP02 enable the changed form of development to be appreciated looking in a southerly and northerly direction on Jefferson Lane. I found viewpoint VP02 to be particularly helpful. It demonstrates that: (1) the changed form of development, in terms of its height, bulk and scale, will fit comfortably with the existing character and streetscape of Jefferson Lane; (2) the changed form of development reinforces the intended built form character of the area, being medium density development in an attractive tower form; and (3) the changed form of development is consistent with the emerging character of Jefferson Lane, which is evident in existing taller buildings and the content of development approvals granted by Council that have not been acted upon. Consistency with planned character in the circumstances here will reinforce and strengthen local identity and sense of place, particularly once it is appreciated that the changed form of development has an excellent standard of appearance.
  1. [122]
    It was uncontroversial that the interface with, relationship to, and impact on the northern boundary will be well managed provided conditions are imposed.
  1. [123]
    The northern interface can be seen most vividly on the photomontages for viewpoint VP06. The presentation of this part of the development to the north has an excellent standard of appearance. Particular design features of note are: (1) the setbacks and landscaping provided at the upper levels; (2) the use of slab edging on each floor to break up the verticality of the structure; and (3) the use of high quality materials to create visual interest and to break up the bulk of the structure, particularly around the edges of the balconies.
  1. [124]
    In addition to the excellent appearance of this interface, it was accepted that conditions should be imposed to manage any impacts on privacy and overlooking to the north. This concession was a sensible one by the appellants given the evidence of Mr Olsson. It was also conceded that overshadowing impacts do not warrant refusal. The absence of impacts, coupled with the excellent standard of appearance of the changed form of development when viewed from the north is, in my view, an indicator that compliance is achieved with subsection (c) of the uplift provision. The appellants did not contend for a contrary conclusion in relation to the interface with, relationship to, and impact on, land to the north.
  1. [125]
    For completeness, it can be observed that the appellants contended that a well-managed interface for subsection (c) of the uplift provision requires something more than the bare minimum anticipated by the planning scheme for a code compliant development. This point was further developed to suggest that compliance with subsection (c) requires ‘a superior outcome than what is provided by a code compliant approval’: Ex.43, paras 52 and 53. I have misgivings as to whether this submission should be accepted. It involves, impermissibly, reading words into the uplift provision. In any event, to the extent such an assessment was required, I am satisfied the design of the interface of the changed form of development with the southern neighbour is superior to that provided by the development approval. This is for the reasons given at [52], [53] and [97]. With these matters in mind, the changed form of development is ‘a superior outcome’ to the code compliant development approval.

Subsection (e)

  1. [126]
    Subsection (e) requires the co-respondent to demonstrate that the changed development will have an excellent standard of appearance (built form and street edge). As I have already said, the use of the word excellent conveys an expectation that the appearance of the built form and street edge will be remarkably good and demonstrate superior merit.
  1. [127]
    For reasons given above, I am satisfied compliance has been demonstrated with subsection (e) of the uplift provision. Rather than repeat what has already been said, I can indicate that the degree of excellence required by the provision is amply demonstrated by the visual aids before the Court, read with the description of the proposal by Mr Peabody in the architecture joint report. The changed form of development is, in architectural and visual terms, highly meritorious.

Subsection (g)

  1. [128]
    Subsection (g) of the uplift criteria calls for the ‘protection’ of ‘important elements of local character or scenic amenity’.
  1. [129]
    The photomontages, and evidence of the visual amenity and landscape experts, establish that this case does not involve impacts on scenic amenity or views (to and from) associated with public outlooks. The impact alleged for this provision is that the changed form of development will not protect an important element of local character, namely Jefferson Lane. This element is said to be visually sensitive given the immediate setting, which includes the beach and a public park: Ex.43, para 47. The relevant impact is said to be one of overbearing.
  1. [130]
    For reasons already given, I do not accept Jefferson Lane is an important character element. If, however, a contrary view is taken, I am satisfied the changed form of development will not be visually overbearing to Jefferson Lane. Nor will it be overbearing to the beach and park to the north. This is evident from the photomontages, which demonstrate the changed form of development is a meritorious development outcome. In my view, they also demonstrate it is superior in its appearance to the built form authorised by the development approval. This will serve to reinforce the intended character of the immediate local area rather than detract from it. It will also serve to protect Jefferson Lane if it be thought to qualify as an important local character element.

Conclusion: compliance with the uplift provision

  1. [131]
    Contrary to the appellants’ case, I am satisfied compliance has been demonstrated with subsections (b), (c), (e) and (g) of the uplift provision.

Conclusion

  1. [132]
    The co-respondent has demonstrated compliance with the disputed aspects of the uplift provision. Given the way the appeal was argued by the parties, this finding is decisive. The co-respondent has discharged the onus.
  1. [133]
    The appeal will be allowed in due course, with the change application approved and the development approval amended accordingly. The amendments will need to include conditions of approval required by these reasons for judgment.
  1. [134]
    I will return the appeal to the applications list for review on 24 June 2025. The appeal will remain on the applications list unless and until a dispute arises about the amendments to the development approval.
Close

Editorial Notes

  • Published Case Name:

    Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor

  • Shortened Case Name:

    Heidelberg Business Park Pty Ltd v Council of the City of Gold Coast

  • MNC:

    [2025] QPEC 14

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    11 Jun 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
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Cite 1 - (2020) 6 QR 441
Cite 2 - (2020) 6 QR 441
Bell Co Pty Ltd v Council of the City of Gold Coast [2022] QPEC 32
2 citations
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Cite 1 - [2022] QPEC 32
Cite 2 - [2022] QPEC 32
Catterall & Ors v Moreton Bay Regional Council & Anor [2021] QPELR 850
2 citations
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Cite 1 - [2021] QPELR 850
Cite 2 - [2021] QPELR 850
McEnearney v Council of the City of Gold Coast [2024] QCA 246
3 citations
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Cite 1 - [2024] QCA 246
Cite 2 - [2024] QCA 246
Cite 3 - [2024] QCA 246
McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283
2 citations
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Cite 1 - [2024] QPELR 283
Cite 2 - [2024] QPELR 283
S & S No. 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42
2 citations
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Cite 1 - [2024] QPEC 42
Cite 2 - [2024] QPEC 42
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
2 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321

Cases Citing

Case NameFull CitationFrequency
Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 185 citations
1

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