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Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd[2025] QPEC 18

Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd[2025] QPEC 18

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 18

PARTIES:

AESTHETE NO. 15 PTY LTD (ACN 627 545 019) and AESTHETE NO. 20 PTY LTD (ACN 627 946 356) 

(Appellants)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

and

CIELO PROPERTY GROUP PTY LTD (ACN 644 682 717)

(Co-Respondent)

FILE NO/S:

64/24

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

3 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

9, 10, 11, 12, 16, 17 & 20 June 2025.

JUDGE:

Prskalo KC DCJ

ORDER:

The appeal is returned to the applications list for review in Brisbane on 20 October 2025.

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 appeal against the respondent’s decision – where the development exceeds the height prescribed in a Building height overlay map in the planning scheme – whether the development complies with the height up-lift provision in the planning scheme – whether the development complies with the planning scheme – whether there are relevant matters that support refusal or approval – whether the development should be approved in the exercise of the discretion

LEGISLATION:

Planning Act 2016 (Qld) ss 43, 45, 59, 60, 65A

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

Planning Regulation 2017 (Qld), s 31

Acts Interpretation Act 1954 (Qld), s 14B

CASES:

Abeleda v Brisbane City Council (2020) 6 QR 441; [2021] QPELR 1003; [2020] QCA 257

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] QPELR 342

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

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

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

Brisbane City Council v YQ Property Pty Ltd; [2021] QPELR 987

Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor; Ruffin & Ors v City of Gold Coast & Anor [2023] QPEC 32

G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9

Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209; [1990] LG 679

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

Kangaroo Point Residents Association Inc v Brisbane City Council [2015] QPELR 203; [2014] QPEC 64

K Page Main Beach v Gold Coast City Council [2011] QPELR 406; [2011] QPEC 1

Lynch v Commissioner of Police [2022] QCA 166

McLucas & Ors v Council of City of Gold Coast & Anor [2024] QPELR 283; [2022] QPEC 56

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

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

SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24; [2006] QPEC 74

SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362

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

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

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

Undershaft (No 1) v Commissioner of Taxation 253 ALR 280

WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126

WBQH Developments Pty Ltd v GCCC (2009) QPELR 748; [2009] QPEC 054

Wilhelm v Logan City Council & Ors [2021] QPELR 132

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147

COUNSEL:

E Morzone KC and K Wylie for the appellants

S Hedge for the respondent

M Batty KC and J Bowness for the co-respondent

SOLICITORS:

Yates Beaggi Lawyers for the appellants

Hopgood Ganim Lawyers for the respondent

Connor O'Meara Solicitors for the co-respondent

Introduction

  1. [1]
    This is a submitter appeal against the respondent Council’s approval of a development application permitting the co-respondent Cielo Property Group Pty Ltd to construct a 10-storey residential apartment building (the proposed development) at 90-92 Pacific Parade, Bilinga (the site). 
  2. [2]
    The development application was properly made on 28 August 2023.  At that time, the planning scheme in effect was the Gold Coast City Plan 2016 (version 10) (City Plan).
  3. [3]
    The development application was impact assessable and required public notification.  The public notification attracted 32 properly made submissions and the majority were in opposition to the proposal.[1]  The development application was approved with conditions on 5 March 2024.
  4. [4]
    The appellants have interests in land at 89-91 Golden Four Drive, which is located immediately behind the site.  On 27 October 2023, the second appellant obtained a development permit for a material change of use for a multiple dwelling on two adjoining parcels of vacant land at 89-91 Golden Four Drive (the vacant land).  The appellants, between them, own the parcels of land.  The vacant land has the benefit of an approval for an 11-storey, 34.4-metre-tall residential tower, which has not yet been acted upon.
  5. [5]
    In the City Plan, the site is within the Medium density residential zone (MDRZ), with a maximum building height designation of 23 metres on the Building height overlay map.  The proposed development is a tower rising to approximately 33.79 metres.[2]  It is uncontroversial that the proposed development does not comply with the quantitative height standard designated in the Building height overlay map.
  6. [6]
    Specific outcome 3.3.2.1(9) of the City Plan permits increases in building height up to a maximum of 50% above the Building height overlay map in limited circumstances in urban neighbourhoods provided a cumulative list of requirements are met.
  7. [7]
    The appellants contend for refusal, arguing that the proposed development does not comply with the Council’s planning scheme, in particular the height uplift provision in s 3.3.2.1(9) of the City Plan, amongst other non-compliances.

Deciding development applications under the Act

  1. [8]
    The appeal to the Planning and Environment Court is by way of hearing anew: s 43 of the Planning and Environment Court Act 2016 (Qld) (PECA). Pursuant to s 45 of PECA, it is for Cielo Property Group Pty Ltd to satisfy the court that the appeal should be dismissed.  The court’s power to decide the appeal is contained in s 47 of PECA.
  2. [9]
    Pursuant to s 46(2) of PECA, the court must assess the development application under s 45 of the Planning Act 2016 (Qld) (the Act) as if it were the assessment manager for the development application.  The statutory framework assessment is prescribed by the Act.  The Act requires, amongst other things, the development application to be assessed in accordance with s 45(5) and decided in accordance with s 59(3) and s 60.
  3. [10]
    Section 45(5)(a)(i) of the Act requires an impact assessment to be carried out against the assessment benchmarks in a categorising instrument for the development.[3]
  4. [11]
    Pursuant to s 45(7), the assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.  The City Plan (version 10) is such a categorising instrument: s 43(3) of the Act.
  5. [12]
    Pursuant to s 45(5)(a)(ii), the impact assessment must also be carried out having regard to any matters prescribed by regulation.  Section 31(1) of the Planning Regulation 2017 (Qld) requires the court to have regard to, amongst other things:
    1. any development approval for, and any lawful use of, the premises or adjacent premises, pursuant to s 31(1)(f); and
    2. the common material, pursuant to s 31(1)(g).[4]
  6. [13]
    The court must therefore have regard to the appellants’ Golden Four Drive approval and the properly made submissions by the submitters. 
  7. [14]
    Section 45(8) permits weight to be given to a planning scheme amendment that took effect after a development application was properly made. No party advanced a submission that there was a relevant amendment to be considered.
  8. [15]
    Section 60(3), in combination with s 59(3), confers a broad discretion to approve a development application, be it in whole or in part, or to refuse it.
  9. [16]
    The discretion is to be exercised in accordance with the approach derived from the appellate cases: Brisbane City Council v YQ Property Pty Ltd; [2021] QPELR 987; 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 Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309.  From these cases, it can be observed:
    1. When carrying out an impact assessment under s 45 and s 60 of the Act, the ultimate decision calls for a ‘broad, evaluative judgement’.
    2. The discretion conferred by s 60(3) admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor.
    3. The exercise of the discretion under s 60(3) is subject to three requirements, including that it be based upon the assessment carried out under s 45.
    4. The Act does not alter the characteristic of a planning scheme, which remains a reflection of the public interest.  Despite its broad nature, the discretion must be exercised having regard to the fact that the planning scheme is the embodiment of the public interest.
  10. [17]
    This Court may in its discretion approve a development even where specific outcomes of the planning scheme regarding building height exceedance are not met: see Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1073.
  11. [18]
    An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court.  That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls.  The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the Act.  Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question.  It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of discretion conferred by s 60(3):  see Abeleda v Brisbane City Council at [54][5].
  12. [19]
    In forming an evaluative judgement, I have had the benefit of opinion evidence from town planners, architects, visual amenity experts, economic need experts, and solar and wind engineering experts, as well as access to photographs of the area, plans, elevations, sections, renders, landscape design plans, visual representations of other approved developments, maps, and a photomontage compilation.
  13. [20]
    At the commencement of the hearing, the parties arranged a site inspection of the local area.  Observations on the site inspection do not form part of the evidence.  The site inspection did however enhance my appreciation of the photographic evidence and the various visual aids tendered on appeal. 

The site and the surrounding locality

  1. [21]
    The site consists of two contiguous residential allotments at 90-92 Pacific Parade, which is at the southern extent of the Gold Coast suburb of Bilinga.  Bilinga is considered a southern beach suburb of the City’s well known coastal strip.  Across Pacific Parade is Joe Doniger Park and North Kirra Beach, which affords the site extensive beach and ocean views.
  2. [22]
    The site is properly described as Lots 1 and 2 on RP 87297.  The combined lots have a rectangular shape and a total area of 1,012 square metres with an approximate 20 metre frontage to Pacific Parade.  Consistent with the local topography, the site is relatively flat.
  3. [23]
    The site is currently improved by two dwellings, an older 2 storey dwelling at the front and a single storey dwelling on the ‘battle axe’ lot at the rear, both with access from Pacific Parade.  Ornamental shrub species exist within the front setback, and the canopy of a Royal Poinciana extends between the two dwellings.
  4. [24]
    The site is immediately surrounded by the following land uses:
    1. to the north-east (towards the beach): across Pacific Parade is Joe Doniger Park, which forms part of the open space that extends continuously along Pacific Parade to the north-west and south-east.  The park has a combined pedestrian and cycle path that meanders along its alignment.  Vegetation within the park is typically characterised by single or sparsely spaced trees and pine specimens, the Norfolk Pines being the most prominent of these and which are primarily located close to the edge of Pacific Parade.  The open space adjoins the beach with the Coral Sea beyond.
    2. to the south-east (along Pacific Parade, towards Kirra): 88 Pacific Parade is an older 2 to 3 storey brick multiple dwelling with a flat roof.
    3. to the south-west: at the rear boundary of the site was previously a car hire business, which has now been demolished, with the appellants’ land at 89-91 Golden Four Drive now vacant and ready for development.
    4. to the north-west: at 94-96 Pacific Parade, the site is adjoined by a narrow driveway that provides access to the battle axe block at 94 Pacific Parade, which accommodates a 4-storey multiple dwelling[6]. Adjoining the driveway to the north-west at 96 Pacific Parade and at the front of the block, is a recent 6-storey multiple dwelling with a roof terrace and of contemporary appearance [7].
  5. [25]
    Broadly, the site is located in Bilinga at the southern end of the Gold Coast, between the Pacific Ocean and the Gold Coast Highway (and the Golden Four Drive service road parallel to the highway).  Across Golden Four Drive to the south-west is the Special Purpose Zone, which includes the Gold Coast Airport and Southern Cross University.  The suburb of Tugun lies to the north-west and Coolangatta, including the Coolangatta major centre, to the south-east.
  6. [26]
    The town planning experts identify the locality of the site as:

That locality, in a town planning sense, is described as the land in Bilinga north-east of the Gold Coast Highway (to the foreshore including the wide beach) between Mills Street in the north-west and Musgrave Street in the south-east, which shares the 23m height category on the Building height overlay mapping and the RD6 category on the Residential density overlay mapping, and is predominantly zoned Medium density residential: Town Planning Joint Report at [26].

  1. [27]
    While the local area is part of a longer band of residential development that extends further to the north-west (up to at least Mills Street), the visual amenity experts settled on Graham Street as marking the northern boundary.  Graham Street marks a “conspicuous narrowing of the band of development (from 100m to 60m) compressing the depth of the blocks and influencing the form of development on those lots: Visual Amenity Joint Report at [14] and Ex 43.
  2. [28]
    The architects describe the urban area to the north-east of the Gold Coast Highway as a relatively narrow coastal strip that includes land within the suburb of Bilinga to the south-east of Short Street and land within Tugun to the north-west of Short Street.  Persons travelling along the Gold Coast Highway and Golden Four Drive will experience this area as a visual continuum, with the two suburbs appearing as one contiguous coastal urban area, due to the continuity of the settlement pattern, the consistency of the MDRZ land use designation, and the general similarity and variety of the residential built form.
  3. [29]
    However, the site is located within an area which has a height overlay of 23 metres that abruptly changes to 15 metres (3-storeys) to the north-west of Mills Street and 29 metres to the south-east of Musgrave Street in Kirra.  Future development, if reflecting the different height overlay designations, is likely to increasingly differentiate localities within the contiguous urban strip.
  4. [30]
    The architects agree that the changes to the height overlay designations and the separation provided by the Gold Coast Highway and the coastline assist to delineate and characterise the local area of primary relevance to the site.  While the identification of the ‘consolidated’ local area may assist to focus discussion of the proposed development’s impact, the architects believe the local area remains part of the extended coastal strip.  This extended coastal strip will be understood as part of the coastal strip’s broader identity and sense of place: Architecture Joint Report at [29] to [33].

The character of the local area

  1. [31]
    Whether the local area is defined by a longer or shorter part of the coastal strip, the overall impression is the same. The character of the area is one which is predominantly residential in nature, but of varying built forms, including taller apartment buildings, interspersed with lower rise houses and multiple dwellings.
  2. [32]
    The character of a locality is the aggregate impression formed having regard to the individual features and traits of the development and the natural environment in the locality: G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9 at [91].
  3. [33]
    Regardless of the precise location of the immediate locality’s northern boundary whether Mills or Graham Street, the local area is characterised by:
    1. The visual prominence and focus of the beach foreshore and the park along Pacific Parade;
    2. A mix of building types and styles, whose built form, scale, and bulk are not highly prominent and do not result in visual dominance over the parkland and foreshore setting along Pacific Parade.  These buildings include older modestly scaled dwelling houses, larger contemporary dwellings, older 2 and 3 storey flats and apartment buildings, and a mix of newly completed and approved apartment buildings.[8]
  4. [34]
    The local area in this appeal was recently considered in 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 (The Body Corporate for 62 Pacific).  Consistently with the evidence in the present appeal, Kefford DCJ considered that Pacific Parade, Golden Four Drive and Musgrave Street provided a clear and logical demarcation of the boundaries of the local area.  As to the northern boundary, her Honour stated at [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.”

  1. [35]
    The beach and foreshore park are important landscape features that define the structure, character, and amenity of the area.  There is a difference in the characteristics of each of Pacific Parade and Golden Four Drive and the contribution or impact which each of those make to the overall character of the area.  Pacific Parade enjoys a higher level of amenity being adjacent to the foreshore and park.  Built form development on Pacific Parade is also likely to have more influence on the beach and foreshore.
  2. [36]
    Golden Four Drive is nearer to and associated with the Gold Coast Highway and presents more as a transport orientated corridor rather than an esplanade with a scenic foreshore setting.  This is further reinforced by the presence of elements such as bus stops and access points to the Gold Coast Highway.[9]
  3. [37]
    I adopt the observations of Kefford DCJ in The Body Corporate for 62 Pacific at [31] and [32]:

[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.

[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.”

  1. [38]
    In the present appeal, the observations in that case are supported by my review of the Digital Photomontage Methodology Report (Ex 5) and were also adopted by Mr Buckley in evidence, with whose opinion in that respect I agree.[10]

An area in transition

  1. [39]
    The visual amenity experts recognise that the local area is progressing through a period of transition from relatively low intensity, predominantly low-rise development, to larger medium and high-rise built form: Visual Amenity Joint Report at [18].
  2. [40]
    The town planning experts agree that the local area is in transition:

The City Plan’s intent for the locality is for it to transition from a smaller-scale and lower-rise built form to a larger-scale and medium and high-rise built form.  The increased number of taller buildings having been constructed and approved is considered to progress achievement of the ultimate built form character: Town Planning Joint Report at [30].

  1. [41]
    Having regard to the City Plan and the expert evidence, in my view, it is uncontroversial that the local area 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 the City Plan.  This finding mirrors that of Kefford DCJ in The Body Corporate for 62 Pacific at [135].
  2. [42]
    Exhibit 45, prepared by Mr Mewing, gives a fuller picture of the changing nature of buildings in the locality.  Buildings, existing, under construction and approved in excess of 8 storeys are of regular occurrence amongst other building heights.  The buildings in excess of 8 storeys are all above 23m in height: Town Planning Joint Report at [26] to [28].
  3. [43]
    Exhibit 37 documents the either approved or constructed taller buildings in the local area between Mills and Musgrave streets; it identifies 22 such buildings, ranging from 4 to 11 storeys.[11]
  4. [44]
    Along Pacific Parade, the presently constructed taller buildings are predominantly 7 to 8 storeys.  Those existing buildings that exceed the 23m height overlay do so either only marginally or moderately.  The exception is ‘Porta Pacifique’, which is an 11-story, 31m high older building at 134 Pacific Parade on the corner of Cahill Street, some 400 metres to the north-west of the site.
  5. [45]
    Along Golden Four Drive, the Pavilion development comprises of two constructed high rise 10-storey towers, both rising to approximately 34 metres.  The Pavilion 1 development on the corner of Golden Four Drive and Lang Street is designated partly in the Neighbourhood centre zone with commercial/retail space at ground level providing a neighbourhood centre function.  Pavilion 2 on the adjoining site is integrated with Pavilion 1.
  6. [46]
    Exhibit 45 documents the renders and typical floor plans of not yet constructed developments which have height uplift approvals:[12]
    1. 2 Pacific Parade – 34.4m – 11 storeys;
    2. 8 Pacific Parade – 27.9m – 7 storeys;
    3. 55 Golden Four Drive – 34.4m – 10 storeys;[13]
    4. 89-91 Golden Four Drive – 34.4m – 11 storeys (the appellants’ approval);
    5. 107-109 Golden Four Drive – 33.7m – 10 storeys.
  7. [47]
    If approved, the proposed development will be the only high rise building on Pacific Parade, other than 2 Pacific Parade, located some 300 metres south-west of the site.
  8. [48]
    Given the lot pattern, land uses, and access to views, the more contemporary multiple dwellings in the area (including a number of approved but unbuilt developments) are characterised by vertically stacked, generally rectilinear floor plates, with prominent balconies directed towards the beach.  A number of taller buildings incorporate recessed or contracted upper floor levels: see the Visual Amenity Joint Report at [22].
  9. [49]
    For example, existing buildings to the north of the site on Pacific Parade demonstrate physical or visual recessing of upper levels: see Joint Visual Amenity Report – Figure NP12 at p 38.  This design feature, amongst others, was considered to be an important feature of the existing built form (as a general although not necessarily uniform characteristic) and was held to contribute to the character of the local area in The Body Corporate for 62 Pacific: [38], [140] – [141].
  10. [50]
    The evidence in the present appeal indicates that the recessing of upper levels of tall buildings is present in relation to some but not all of the existing developments, and obviously present on only one of the five approved developments shown in Ex 45.
  11. [51]
    The present built form exhibits a variety of architectural styles.  The taller buildings to some degree adopt various devices to minimise bulk, some more successfully than others.[14]
  12. [52]
    The architectural character of the locality is neither unique or distinctive, and not necessarily of a consistent high quality.  The photomontages reveal the wide variety of architectural forms and expressions in the locality.  Recent buildings exhibit a contemporary coastal character, typical of other coastal areas in the region.  These new developments consist of generally vertically flat stacked floor plates of similar form, with visually prominent and generous balconies that capitalise on the views towards the coastline.  There are also balconies with views to local streets as well as the hinterland to the west: Mr Richards, Architecture Joint Report at [244] to [245].
  13. [53]
    Overall, the character of the local area is that of a coastal, predominantly residential area that is in transition to a greater intensity of built form.  There are a range of building heights and forms which seek to maximise views to the ocean, and taller buildings which include elements to reduce the impact of their bulk and scale.

The site within the City Plan

  1. [54]
    The City Plan maps the site as:[15]
  1. within the ‘Urban area’ on Strategic framework map 1 – designated urban area;
  1. within the ‘Urban neighbourhoods’ and ‘Investigation for light rail urban renewal area’ and near the ‘State and major road network’ on Strategic framework map 2 – settlement pattern;
  1. within the ‘Coastal tourism/urban strip’ and ‘Investigation for future light rail’ on Strategic framework map 5 – focus areas for economic activity;
  1. near the ‘High frequency public transport routes’ and ‘Coastal pedestrian and cycle network’ (and ‘Specialist centre – airport’) on Strategic framework map 6 – integrated transport;
  1. in the ‘Consolidation area’ on Strategic framework map 9 – consolidation and expansion areas.
  1. [55]
    As indicated, the site has Medium density residential zone designation and a maximum building height designation of 23 metres on the Building height overlay map.  The properties neighbouring the site also have a MDRZ designation except for the property at 3 Lang Street, Bilinga, which is within a Neighbourhood centre zone. The site is included in the RD6 category on the Residential density overlay map.

The town planning framework

  1. [56]
    Zones in the City Plan organise the area in a way that facilitates the location of the preferred or acceptable land uses.  Assessment benchmarks for each zone are contained in a zone code.  Each zone code identifies the following:
    1. the purpose of the code;
    2. the overall outcomes that achieve the purpose of the code;
    3. the performance outcomes that achieve the overall outcomes and purpose of the code;
    4. the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code;
    5. the performance and acceptable outcomes for the precinct.[16]
  2. [57]
    Pursuant to s 5.3.3(4)(c) of the City Plan, a development that complies with the purpose and overall outcomes of the code complies with the code; and a development that complies with the performance or acceptable outcomes complies with the purpose and overall outcomes of the code.  Although this section relates to code assessable development, it remains applicable in the context of impact assessable development: see Archer v Council of the City of Gold Coast & Ors [2024] QPELR 387 (Archer) at [452].
  3. [58]
    In SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24, Rackemann DCJ stated at [48]:

It is not legitimate to regard departure from acceptable solutions as necessarily indicating non-compliance with the code.  In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime.  Compliance with such standards was commonly required unless a relaxation or dispensation was granted.  Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or ‘dispensation’.  It is another way of achieving compliance with the relevant performance criterion.

  1. [59]
    While compliance with an acceptable outcome is not mandatory, that does not mean that the content of an acceptable outcome is irrelevant.  It may indicate what the planning scheme desires or prefers as development in a particular area: WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [36].
  2. [60]
    While acceptable outcomes in a planning scheme may be relevant in ascertaining the legislative intention of a planning scheme in a particular area, it depends on the terms of the provision itself: Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309; [2021] QCA 95 per Brown J at [110].
  3. [61]
    The purpose of the MDRZ 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.[17] The purpose of the code will be achieved through the overall outcomes expressed at s 6.2.2.2(2), which include:[18]

(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;
  2. contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport;
  3. is setback from road frontages to promote an urban setting and interface with the street;
  4. is setback from side and rear boundaries to protect the amenity of adjoining residences; and
  5. has varying site cover to reduce building dominance and provide areas for landscaping.
  1. [62]
    Performance outcome 3 (PO3) of the MDRZ Code is one of the performance outcomes that achieve the overall outcomes:

“PO3 Building height and structure height does not exceed that shown on the Building height overlay map.”[19]

  1. [63]
    By exceeding the height in the overlay map, the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and PO3 of the MDRZ Code.
  2. [64]
    Part 3 of the City Plan contains the Strategic framework.  The framework sets the policy direction for the City Plan and has a planning horizon of 2031.[20]
  3. [65]
    As to specific outcomes for building heights in urban neighbourhoods, s 3.3.2.1 states:
  1. 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. 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;
  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. Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.

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

  1. [66]
    This provision has been comprehensively analysed in numerous cases: Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1073; Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2023] QPELR 1160; Archer v Council of the City of Gold Coast & Ors [2024] QPELR 387.
  2. [67]
    I respectfully adopt the summary by Kefford DCJ in Archer at [295].  For reasons explained in greater detail in the cases, with respect to impact assessable development in “Urban neighbourhoods” and in the Medium density residential zone:
  1. non-compliance with the quantitative standard expressed through the building height overlay map is a matter of significance under City Plan;
  1. building height in excess of the quantitative standard is not anticipated in the Medium density residential zone;
  1. the building height overlay map, read with s 3.3.2.1(8) of the Strategic framework, indicates that development that is non-compliant with the quantitative standard is inconsistent with the intended building height pattern and desired future appearance for a local area;
  1. where the exceedance of the height designated on the building height overlay map is up to 50 per cent, s 3.3.2.1(9) of the Strategic framework admits of a degree of flexibility with respect to building heights, subject to close scrutiny of the development in the context of the identified outcomes;
  1. if support for the proposed height is established by reference to s 3.3.2.1(9) of the Strategic framework, by operation of the hierarchy of provisions in s 1.4 of City Plan, the nature and extent of non-compliance with City Plan, in terms of building height, is materially diminished; and
  1. diversity of appearance is contemplated across different urban neighbourhoods and, as such, each case will turn on the facts and circumstances relevant to that case; but
  1. if there is not compliance with s 3.3.2.1(9) of the Strategic framework, non-compliance with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion; and
  1. City Plan does not support an outcome where the degree of exceedance is greater than 50 per cent of the quantitative standard expressed through the building height overlay map: development of that nature conflicts with City Plan and any resultant non-compliance with s 3.3.2.1(10) of the Strategic framework and s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion.
  1. [68]
    The parties did not challenge the correctness of the analysis in these cases. The overlay maps are an important metric. To exceed the height on the overlay map, a proposal must meet all of the requirements in s 3.3.2.1 (9) to avail itself of planning support.  Whether these requirements are met in any given case turns on matters of judgement, impression, fact, and degree.

The proposed development

  1. [69]
    The development application sought a development permit for a material change of use for a multiple dwelling on the site.
  2. [70]
    The proposed development is a multiple dwelling of 20 units, made up of six 2- bedroom units; two 3-bedroom units; eleven 4-bedroom units and one 6-bedroom unit, totalling 68 bedrooms. The “bedrooms” calculated as part of Council’s delegated assessment report include multi-purpose rooms, and therefore are different to what is indicated on the development plans.[21]
  3. [71]
    In terms of built form, the proposed development comprises a single building which is 10 storeys and approximately 33.79 metres in height. The proposal also incorporates: (a) two levels of basement carparking; (b) nine levels of residential dwellings/apartments; and (c) a roof terrace with a pool and gym.
  4. [72]
    The metrics of the proposed development are set out at page 11 of the Visual Amenity Joint Report:

Development Aspect

Metric

Site Cover

Ground floor: 37%

Levels 1-3: 48%

Levels 4-7: 47.8%

Level 8: 34.8%

Rooftop: 22%

Total site cover: 56%

Setbacks to Pacific Parade

Ground level: 0m (water metre); 2.5m (wall)

Levels 1-3: 4.1m

Level 4: 5m

Levels 5-8: 4.5m

Setbacks to rear (89-91 Golden Four Drive)

Ground level: 5.95m

Levels 1-3: 4.7m

Level 4: 5.6m

Levels 5-8: 5m

Setbacks to north-west side neighbour (94-96 Pacific Parade)

Ground level: 0m (water tank); 1.5m

Levels 1-3: 3.5m

Level 4: 3.5m

Levels 5-8: 3.5m

Setbacks to south-east side neighbour

Ground level: 0m

Levels 1-3: 3.5m

Level 4: 3.5m

Levels 5-8: 3.5m

Density

1 bed per 14.9 square metres

Communal open space

172 square metres

Private open space per unit

Between 12 square metres – 179 square metres per dwelling

Car parking

41 resident

4 visitor

  1. [73]
    As depicted in the plans, the building form is characterised by its elongated external envelope that responds to the size and shape of the site, presenting its narrower dimension to the Pacific Parade frontage.  The floor plates are all essentially alike in size and shape.[22]  The significantly narrower north-east facing (Pacific Parade) and south-west facing (rear) facades are distinguished by the four storey high arches at the base of each façade.[23]  While mostly open to the sky, the roof terrace is partially sheltered by the ‘flat’ projecting roof over the gym, service core, lift lobby and sitting area.  The roof is set back from the perimeter of the roof terrace.[24]

The issues in dispute

  1. [74]
    Despite the large number of planning scheme provisions in issue, approval or refusal of the proposed development turns on the resolution of four key issues:
    1. whether the proposed development complies with Specific outcome 3.3.2.1(9) – the uplift provision;
    2. whether the setbacks, site cover, and separation of the proposed development have unacceptable impacts on residential amenity including in terms of overlooking, overbearing, loss of outlook, shadowing, natural light or ventilation;
    3. whether the density of the proposed development causes unacceptable impacts; and
    4. if non-compliance with the relevant benchmarks is established, whether there are any other relevant matters that support approval or refusal.
  2. [75]
    The provisions in issue have been grouped into categories which the appellants say are largely subsumed by the various sub-paragraphs of Specific outcome 3.3.2.1 (9), save for issues associated with excessive residential density and adverse amenity for future occupants: see the Appellants’ Amended Benchmark Groupings (Ex 56).  The appellants continue to rely upon the benchmarks listed under the various sub-paragraphs of Specific outcome 3.3.2.1(9) headings to support or buttress the overall allegation of non-compliance with the particular sub-paragraphs of s 3.3.2.1(9) in issue.
  3. [76]
    The appellants contend that the majority of the non-compliances they rely upon, particularly of the lower order provisions of the planning scheme, including in the Medium density residential zone code, the High rise accommodation design code and the General development code, can largely be subsumed into the consideration of Strategic outcomes 3.3.1(3) and (5) and Specific outcome 3.3.2.1(9).
  4. [77]
    The appellants continue to rely upon these subsumed lower-order provisions as secondary non-compliances to buttress or support the nature or extent of the non-compliance with Specific outcome 3.3.2.1(9).
  5. [78]
    The appellants submit that there is non-compliance with six sub-paragraphs of Specific outcome 3.3.2.1(9) and that these non-compliances are decisive reasons for refusal.  Non-compliance is alleged with sub-paragraphs (9)(b), (c), (d), (e), (f) and (g), which correspond to the amended benchmark groupings at paragraphs (2) to (7) in Ex 56.
  6. [79]
    To focus the real issues in dispute, the appellants accept that non-compliance with (9)(g), namely “protection for important elements of local character or scenic amenity”, does not require separate determination – if compliance is found with the other uplift criteria, the appellants accept that compliance with (9)(g) will follow.
  7. [80]
    The appellants also concede that if compliance is found with the uplift provision, having considered that provision in the context of the corresponding group of lower-order benchmarks, it is unnecessary for the court to give these other provisions their own separate consideration because non-compliance will not in that event separately warrant refusal.  Conversely, the appellants submit that if the court finds non-compliance with the uplift provision, it will inevitably find non-compliance with most of the other benchmarks; together this will constitute serious non-compliance with the planning scheme justifying refusal. 
  8. [81]
    I have considered the Appellants’ Amended Benchmark Groupings (Ex 56) and have assessed the proposed development having regard to each of the assessment benchmarks.  I accept that it is unnecessary for the court to individually assess each of the other assessment benchmarks as they do not, of themselves, materially impact the outcome of the proceeding.  As I have said, approval or refusal of the proposed development turns upon the resolution of the four key issues identified in [74] above.
  9. [82]
    As a matter of legal construction, the appellants also submit that compliance with Specific outcome 3.3.2.1(9) can only occur where all eight sub-paragraphs in that provision are complied with and that non-compliance with any one of those sub-paragraphs should be a decisive reason for refusal.[25]
  10. [83]
    The respondent and co-respondent submit that the proposed development complies with the uplift provision. 
  11. [84]
    The respondent concedes non-compliances only in relation to height and density on the overlay maps.  The height non-compliance is overtaken by the uplift provision and the density non-compliance is submitted not to warrant refusal.
  12. [85]
    The co-respondent submits the proposed development is architecturally meritorious and does not result in any unacceptable character or amenity impacts.  It warrants approval subject to the imposition of lawful and appropriate conditions.
  13. [86]
    A number of submitters objected to the development application, although they have not all appeared on the hearing of the instant appeal.  Their concerns rest in the height, bulk, and scale of the proposed development and consequent detriment to the amenity of the area.  The concerns, conveniently summarised in the Town Planning Joint Report[26], include:
    1. Height and whether the proposal qualifies for a 50% uplift in accordance with 3.3.2.1(9);
    2. Overlooking, loss of outlook, and shadowing;
    3. The performance outcomes for residential density, site cover, and setbacks;
    4. The adequacy of parking; and
    5. Noise.
  14. [87]
    The submissions made to Council in response to the publicly notified development provide a source of evidence about community expectations.  Ultimately, the submitters’ concerns must be considered through the prism of the relevant statutory provisions, the planning scheme, and the evidence.  The main themes of the submissions include matters of relevance which largely mirror the arguments advanced by the appellants on the appeal.  In dealing with the issues in contention, I have remained conscious of the matters raised by the submitters.  The determination of each issue calls for value-laden judgements about which reasonable minds may differ.

A particular construction of the uplift provision

  1. [88]
    The appellants argue that the uplift provision should be construed to intend that a development offer more than what is otherwise expected under the planning scheme to justify an increase in building height.  This is said to make sense given that the planning scheme, by its other provisions (be they Strategic framework provisions or zone and other development codes), already seeks outcomes for development in relation to the matters in issue in this case, such as impacts on character and amenity, built form, and the attractiveness or appearance of the built form.[27]
  2. [89]
    During the opening, the appellants submitted that the uplift provision provides an incentive to developers, which seeks from them a higher standard than is otherwise expected by the planning scheme.[28]
  3. [90]
    Mr Carter[29] and Mr Turnbull[30] appeared to suggest that the phrase “in limited circumstances” required the building to be particularly excellent or exceptional to justify the application of the uplift.
  4. [91]
    While those outcomes may naturally be achieved by a development which meets the criteria for the uplift, in my view, that is not the test for compliance with the uplift provision.
  5. [92]
    In McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283 at [132], Rackemann DCJ considered a similar submission as it related to the housing choice and affordability criterion.  There it was submitted that the bar for compliance was set too low to get the reward of the uplift and that the proposal should meet the criteria in a way that “sets it apart” from other development.  Rackemann DCJ did not consider that the criteria should be affected by a preconceived assumption as to how high the bar should be.  Further, it was held that the “limited circumstances” in which the uplift is available are the circumstances in which all criteria are met.
  6. [93]
    In Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [125], the appellants contended that a well managed interface for the uplift provision requires something more than the bare minimum anticipated by the planning scheme for a code compliant development.  The point was further developed to suggest that compliance required “a superior outcome than what is provided by a code compliant approval”.  Williamson DCJ had misgivings as to whether such a submission should be accepted because it involved, impermissibly, reading words into the uplift provision.
  7. [94]
    It is uncontroversial that the uplift provision seeks a standard which is achieved by applying the words of the provision itself.  For example, I accept the appellants’ submission that “well managed” means something more than merely acceptably managed or acceptable and that the uplift provision is seeking a higher standard than average or usual management.[31]
  8. [95]
    Similarly, an excellent standard of appearance presents a higher standard than some other standard which, for example, might seek to mitigate negative visual impacts. Reinforce represents a stronger standard than a requirement which merely seeks to promote or retain or not detract from a local sense of identity and place.[32]
  9. [96]
    In my view, the words of the provision don’t call for a demonstration of a better outcome on all criteria identified in lower order provisions, but simply that the proposed development meet the criteria in the provision.  The words of the criteria should be applied.  They call for value laden judgements to be made.  The criteria do not prescribe a process to be followed in making the necessary judgements such as appears to be suggested by the appellants.  The assessment is to be undertaken having regard to the facts and circumstances that pertain by reference to the evidence.

Specific outcome 3.3.2.1(9)(b) – local identity and sense of place

  1. [97]
    The appellants allege that the proposed development does not satisfy outcome 3.3.2.1(9)(b) of the City Plan: a reinforced local identity and sense of place.
  2. [98]
    The phrase “reinforced local identity and sense of place” is not defined in the planning scheme, and so is to be given its plain and ordinary meaning: S&S No 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42 at [86].
  3. [99]
    What constitutes the relevant local identity and sense of place are questions of fact to be determined having regard to the circumstances of the case. The phrase calls for consideration of both the planned and existing local identity and sense of place: Archer v Council of the City of Gold Coast & Ors [2024] QPELR at [299].
  4. [100]
    The use of the word “reinforce” requires the strengthening of local identity and sense of place.  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 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: Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [105], [106].  Having regard to these comments, I find the local area to be that depicted in Mr Buckley’s Ex 37.
  5. [101]
    One of the planning concepts that informs the local identity and sense of place of an area is building height.  The desired future appearance for local areas within urban neighbourhoods is shown on the Building height overlay map.  Building form and design is also relevant: Archer v Council of the City of Gold Coast & Ors at [302], [305].
  6. [102]
    The appellants’ case is that the proposed development fails to comply with Specific outcome 3.3.2.1(9)(b), including for the following reasons:
  1. The proposed development will exceed the 23m height limit by nearly 11m (being 48% above the limit) in circumstances where that degree of exceedance is atypical along Pacific Parade, is centrally located within the local area or locality, is located only 9 metres from another development that has already been approved to exceed the height limit and will be imposing and will dominate its surrounds.
  1. The proposed development will dominate the most important elements of the local identity and sense of place and character, being the coastal edge (the ocean, the beach, and the dune system) and the Joe Doniger parkland, including the prominent pine trees.
  1. The proposed development will dominate the drive along Pacific Parade.
  1. Other buildings on Pacific Parade alongside the parkland and foreshore typically do not exceed 8 storeys, and if they exceed 23m in height they do not exceed the height limit or dominate their surrounds by as much as the proposed development (approximately 11m), are on larger sites and generally mitigated or softened through elements of articulation, colouration, setbacks particularly at the upper levels and landscaping.
  1. [103]
    The appellants accept, as agreed by the town planning and visual amenity experts, that the character of the local area is in a state of change and is informed by, amongst other things, recent approvals, including those which exceed the building height overlay.  It is also agreed that the sense of character is developing and changing and that is determined by the built form of the area.
  2. [104]
    However, the appellants argue that the reasonable expectations of local residents must be gleaned from the planning scheme and that the intended character of the locality is not of ‘regular’ approvals in excess of 8 storeys or 23m.  Under cross examination on this point, Mr Buckley posited the issue in this way: a person looking at the planning scheme reasonably wouldn’t expect there to be no buildings taking advantage of the 50 per cent uplift.[33]
  3. [105]
    As established by Mr Buckley’s review of the existing and approved taller buildings in the area (Ex 37), the proposed development will not be the tallest building in the area, nor the widest, nor most dense.
  4. [106]
    As pointed out by the appellants, the proposed development will however be the only high rise building on Pacific Parade, other than 2 Pacific Parade.  The approved development at 2 Pacific Parade is at the southern end of the defined local area and at the edge of the change in height limit from 23m to 29m in the overlay map.
  5. [107]
    While not a high rise as defined, Porta Pacifique (at 134 Pacific Parade and rising to 31m) is an older building on a larger allotment, surrounded by a tennis court, pool area, and landscaping.  The appellants also point out that developments which generally have a larger bulk, scale, and form are located on larger parcels of land. While it is true that, for example, the Pavilion 1 and 2 developments and 2 Pacific Parade are on larger parcels of land, it is also true they are larger buildings.
  6. [108]
    Three other high-rise towers have been approved along Golden Four Drive, as outlined at [46] above.  The appellants accept that the planning scheme draws no distinction between Pacific Parade and Golden Four Drive in respect of zoning designation, height limit, or density.  It is argued however that the impact of these developments on the overall coastal character is dissimilar to the impacts of the proposed development, by reason of their more distant location from the parkland and foreshore.  From the parkland and foreshore, and driving along Pacific Parade, it is argued these buildings do not visually intrude upon the parkland or foreshore due to their more distant location and the parallax of views.
  7. [109]
    The appellants’ essential point is that due to its height, scale, and location on a narrow allotment, the proposed development will negatively dominate the local area particularly from the public realm.  Further, by reason of its poor separation with the adjoining Golden Four Drive development, the proposed development will result in a conglomeration or massing of two high rise towers; this will be another unique feature of the locality, and by dint of that will be out of character.  The appellants argue that no other built form within the local area dominates its surrounds to the same degree as the proposed development will with its combined height, inadequate upper-level side and front setbacks, high density, and highly visible location; the dominance of the building will be out of character with the identity of the local area. As such, the appellants submit that the proposed development is at odds with and does not reinforce the local identity and sense of place.
  8. [110]
    The appellants argue that the proposed development fails to comply with the related benchmarks identified in Ex 56 at paragraph 2.  The development is said to negatively impact upon the amenity, character, and living conditions both within the development (due to rear unit treatments) and for neighbouring properties and the broader public realm (due to its dominant height, bulk, and form), thereby failing to align with the planning scheme’s desired outcomes for promoting well-being and potentially cohesion: this fails to comply with Strategic framework SO 3.3.1(3) and (5).  In respect of the remaining benchmarks, the appellants argue that the proposed development’s prominent location and design attributes (height, bulk, scale, and minimal setbacks at the upper levels) result in a dominant and uncharacteristic building that is not appropriately cognisant of the desired future character or the distinct identity of the Pacific Parade locality and fails to adequately reinforce or reinterpret its relaxed seaside residential character.
  9. [111]
    The co-respondent argues that the appellants’ contentions are predicated on the court ignoring the properties and approvals located on Golden Four Drive as an influential part of the local identity and sense of place. This, the co-respondent submits, is not the appropriate approach and would result in an undue narrowing of the local area.
  10. [112]
    The local character of an area should be interpreted broadly and not by reference to a narrow inquiry.  Without good reason, the court should not adopt an overly restrictive approach or confine consideration to a narrow radius around the site: WBQH Developments Pty Ltd v GCCC (2009) QPELR 748 at [25].  However, a consideration of a more localised context may be relevant to ensure characteristics to the immediate locality are not glossed over by the use of a broad descriptor applying to a broader study area: Bell Co Pty Ltd & Ors v City of Gold Coast & Anor [2023] QPELR 1160 at [84] to [85].
  11. [113]
    I do not consider there is any logical reason to split the locality between Pacific Parade and Golden Four Drive, although I also do not apprehend the appellants’ argument seeks to do so.
  12. [114]
    I accept that by its location on Pacific Parade, the proposed development will have a more immediate visual connection to the foreshore than a development which is further removed from the beach on Golden Four Drive.  The fact that the development is centrally located on Pacific Parade does not tell against approval, nor does the fact that it adjoins another uplift development.  If the proposal is found to satisfy the uplift provision (which includes criterion (c) and requires a well-managed interface with nearby development), that is a matter which weighs heavily in support of an approval.
  13. [115]
    I do not accept that the height exceedance is “atypical” on Pacific Parade, where both 134 Pacific Parade (existing) and the two towers at 2 Pacific Parade (approved) are of a similar height.  The fact that Golden Four Drive has transitioned to medium and high-rise buildings quicker than Pacific Parade is unremarkable.  Similar to what was described in Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [63], it will take time to achieve the planned character for Bilinga.  The transition is happening at a more accelerated rate on the Golden Four Drive side of the local area, but the character of the Pacific Parade side of the locality is not static.  The planning scheme encourages change, which is to be reasonably expected throughout the locality and not just on land parcels with a frontage to Golden Four Drive.
  14. [116]
    In my view, the photomontages demonstrate that the proposed development will not overly dominate the coastal environment, the foreshore, or Pacific Parade in a visual sense: see Ex 5, pp 20 and 29, where the layering of built form from Golden Four Drive and Pacific Parade are both apparent from Pacific Parade and beyond.
  15. [117]
    Consistently with that view, Mr Mewing describes the reinforcement of the local identity and sense of place by “urban consolidation with taller buildings”.[34]  The appellants’ town planning expert, Mr Holt considered that the proposed development generally complied with this criterion.[35]
  16. [118]
    I am assisted by the opinions of the architects, Mr Curtis and Mr Richards and the visual amenity experts, Dr McGowan and Mr Powell.
  17. [119]
    Mr Curtis considers the proposed development is shown to be consistent with and reinforce the differences in the appearance, bulk, and scale between neighbouring buildings that creates an eclectic mix of old and new development.  The proposed development responds to the setting and sub-tropical climate with prominent private outdoor space and fenestration that characterises the building’s appearance and provides access to views, sunlight, and breezes to support a lifestyle that is engaged with the setting.  The proposed development has an overall form that is consistent with recent taller multiple-dwelling building developments that are characterised by elongated floor plans that generally reflect the longitudinal shape of the lots: Architecture Joint Report at [240].
  18. [120]
    I consider, as identified by Mr Curtis in evidence, that the design of the proposed development has been resolved to address its site constraints, including through what he describes as a “rich palette of varied architectural elements”[36] of articulation and modulation which incorporates:
  1. the tripartite breakup of the composition of the Pacific Parade frontage;
  1. layering of the front façade by the projecting balconies which erode the mass of the building;
  1. the setback and crowning of the top part of the building, with the design of the penthouse area;
  1. the well-established device of distinctive columns and arches at the base of the building at the Pacific Parade frontage which animate the appearance of it and alludes to the coastal location of the building;[37]
  1. subtly projecting floor plate edges, fenestration and batten screening which modulate the length of the longer facades;[38] and
  1. integrated landscaping to soften the interface with the street.[39]
  1. [121]
    Mr Richards considers that the proposed development exhibits a contemporary coastal and beachside character which he believes draws its cues from a range of buildings on the Gold Coast, for example including Burleigh Heads and Main Beach.  These contemporary design elements include the stacking of similar floor plates, expressed floor slabs, curved balconies, arched forms, and emphasis on the horizontal line broken up by vertical expressions.  Wall elements include full height glazing and screening to windows: Architecture Joint Report at [248].
  2. [122]
    There was substantial evidence as to the architectural features of the local area.  Mr Powell said that the characteristics and features which contribute to local identity and sense of place were:[40]
  1. The wide range of building forms and heights, including buildings which exceed the building height overlay and range in height from 8 to 11 storeys;
  1. The beach and foreshore which influence the street patterns and assist to define the structure, character, and amenity of the area;
  1. The beachfront location and north-east orientation of lots which invite large balconies facing towards the ocean;
  1. The upper level or levels of mid to high rise buildings being physically recessed via stepping and/or visually recessed via use of finer grain or recessive colours/materials.
  1. [123]
    Dr McGowan identified a wider range of characteristics including balconies, rectilinear and stacked floor plates, high quality materials, extensive glazing, screening, contrasting colours, material treatments and visually or physically recessed upper levels.  Dr McGowan noted that the visual or physical recessing of upper levels was common to a number of existing and approved medium and high-rise buildings.[41]
  2. [124]
    Mr Powell [191] and Dr McGowan [198] essentially consider that the proposed development reinforces the local identity and sense of place because:
    1. it achieves scale compatibility with a number of other medium and high-rise buildings in the area;
    2. it capitalises on and references its coastal setting, through building and balcony orientation, and contextually appropriate materials and landscaping;
    3. it incorporates large balconies that capitalise on coastal views and are climatically responsive; and
    4. the upper levels adopt a combination of physically and visually recessed elements.
  3. [125]
    The architects did not necessarily identify the recessed upper levels of buildings as significant.  Mr Curtis said the design of the built form responds to the setting and sub-tropical climate with private outdoor space and fenestration to access views, sunlight, and breezes.[42]  Mr Richards said that while recent buildings showed a coastal contemporary character, there was no unique or distinctive architectural character of the locality, and the built form was not of a consistently high quality.[43]
  4. [126]
    Figure NP12 at p 38 of the Visual Amenity Joint Report provides a visual representation of physical or visual recessing of upper levels on constructed built forms, a design feature which assumed prominence in The Body Corporate for 62 Pacific. In that case, as to the existing character of the local area, Kefford DCJ found at [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;
  1. pronounced modulation in the street-fronting facades in the form of deep recesses or stepping or both; and
  1. visually recessed or contracted upper floor levels on taller buildings.
  1. [127]
    At [141], Kefford DCJ considered that these finer grained aspects of the existing built form significantly contributed 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.

  1. [128]
    As a general proposition it may be accepted that there are a range of architectural devices which can be used to reduce the impact of the bulk and scale of taller buildings, including visually or physically recessed upper levels.  Excluding the proposed development, the evidence presently before this court does not permit a detailed analysis as to the use of such devices on other existing and approved built forms in the local area.
  2. [129]
    The planning scheme seeks to achieve outcomes such as slender bulk form and contribution to skyline[44], and protecting amenity or not detracting or unreasonably impacting upon amenity[45], without necessarily prescribing all the architectural devices which may be used to achieve that outcome.  The planning scheme encourages sub-tropical design outcomes, including private open space, communal open space, and balconies.[46]
  3. [130]
    The co-respondent ultimately submits that, unlike the proposal in The Body Corporate for 62 Pacific, the proposed development here will reinforce local identity and sense of place, in particular because, as identified by Mr Powell, it reflects the finer-grained building design features identified in Body Corporate for 62 Pacific at [38].
  4. [131]
    In the present appeal, the local identity and sense of place is characterised as a medium density residential area near the beach, with a range of building heights and styles, and taller buildings including elements to reduce the impact of their bulk and scale.
  5. [132]
    Assessing the proposed development for its reinforcement of that identity and sense of place, I consider that:
  1. The proposed development is, and presents as, a medium density residential development;
  1. The proposed development maintains a coastal style by reference to balconies, colours, and textures;
  1. The building maximises views to the ocean, by the significant balconies on the north-eastern side of the building, corner balconies at the rear, and fenestration;
  1. The building uses a range of architectural devices to reduce the impact of its bulk and scale including the elements identified by Mr Richards: recesses and screening on the long facades to break the bulk into four elements, scaled archways at the front and rear, generous and visible balconies, landscaping recesses, curved recesses, narrow profile to the beach, expressed floor slabs and rounded corners to soften the building form.[47]
  1. [133]
    The only expert who contended that the proposed development did not meet this criteria was the appellants’ visual amenity and architecture expert, Mr Carter.  Mr Carter’s approach to this criteria was to consider whether the identity and sense of place that the proposed development would reinforce was “desirable” or one that should be reinforced.[48]  He relied upon the deleterious amenity impacts of the interface with the Golden Four Drive development as a reason why he considered the building was not deserving of the height uplift and why it did not reinforce the identity and sense of place of the locality.  Mr Carter’s opinion appeared to be informed by his overall approach of seeking design excellence. Mr Carter’s opinion has been considered, but I do not find it persuasive.
  2. [134]
    I am satisfied the proposed development complies with s 3.3.2.1(9)(b).

Specific outcome 3.3.2.1 (9)(c) – a well-managed interface

  1. [135]
    The appellants allege that the proposed development does not comply with outcome s 3.3.2.1(9)(c) of the City Plan.  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. [136]
    The term relationship is broad enough to include a visual relationship[49] as well as matters of privacy, overlooking, and shadowing.
  2. [137]
    Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness.  Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls.  While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober, and simple notion not effected by some special sensitivity or eccentricity.  The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject: see Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] QPELR 324 at [40] (citations and footnotes omitted).
  3. [138]
    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 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: Heidelberg Business Park Pty Ltd & Ors v Council for the City of Gold Coast & Anor [2025] QPEC 14 at [76].
  4. [139]
    In summary, the appellants contend that the proposed development will not achieve a well-managed interface with nearby development because:[50]
    1. the proposed development does not increase its setbacks as the building increases in height with the result that the proposed development results in a flat façade with limited articulation and the building being overbearing, particularly with respect to its higher levels;
    2. the absence of increased side setbacks and increased height unreasonably affects the views that the residents of 89-91 Golden Four Drive could expect of the beach and ocean particularly at upper levels;
    3. the apartment design for the rear apartments does not offset living rooms between apartment buildings nor turn the apartments to the preferred outlooks away from its rear neighbours thereby creating unacceptable amenity impacts;
    4. the rear facade of the proposed building is predominantly a habitable façade meaning it contains windows and/or doors to habitable rooms (such as living rooms and some bedrooms) and balconies that compromise amenity due to visual and privacy issues;
    5. the proposed development fails to incorporate any or any sufficient blank walls, screens, angled louvres, or non-habitable rooms (e.g. bathrooms, laundries) to mitigate visual, amenity, and privacy impacts;
    6. the increased height combined with the absence of variation in setbacks will block exposure to prevailing winds for 89-91 Golden Four Drive, resulting in adverse ventilation amenity for those residents;
    7. the increased height combined with the absence of variation in setbacks will cause adverse impact to the solar access of 89-91 Golden Four Drive and other surrounding areas.
  5. [140]
    Mr Carter identified aspects of the building design which, in his view, cause negative and unreasonable visual and acoustic amenity impacts in particular upon 89-91 Golden Four Drive:
    1. Inadequate rear setbacks;
    2. Poor apartment planning and orientation that results in balconies and some habitable rooms facing the rear development;
    3. Lack of screening and non-habitable façade; and
    4. Height.[51]
  6. [141]
    While Mr Carter’s focus was predominantly on the interface with 89-91 Golden Four Drive, in the conclusion expressed at [89] of the Visual Amenity Joint Report, he opines that the amenity impacts on neighbouring buildings are unreasonable and would not meet the expectations of nearby residents.
  7. [142]
    Similarly, Mr Holt considers the development does not comply with outcome 9(c): Town Planning Joint Report at [126].
  1. [143]
    For Mr Holt, the significant issue with amenity is a result of the design and placement of habitable spaces and balconies that directly overlook adjoining dwellings.  The resultant building bulk and scale is overbearing and impacts amenity in the form of light, noise, shadowing, and privacy:  Town Planning Joint Report at [182].  Mr Holt considers that shadowing and visual amenity are the key issues raised in this appeal. When coupled with other areas of non-compliance such as site cover and building height, the development presents large for the subject site and not appropriate in scale or form to suit the site characteristics and surrounding development:  Town Planning Joint Report at [183].
  2. [144]
    As indicated at [94] above, I accept the appellants’ submission that “well managed” means something more than merely acceptably managed or acceptable.  I also accept that the relevant codes already require a high standard to ensure a development appropriately complements adjoining existing and approved development.[52]

Compliance with the Medium density residential zone code setbacks

  1. [145]
    The visual amenity experts agree:[53]

Side setbacks

The side setbacks typically comply with the acceptable outcome for setbacks at MDRZ Code AO1, up to and including level 4 (with the exception of some structures at ground level).  Dr McGowan notes that level 5 substantially satisfies the acceptable outcome having a predominant setback of 4 metres to both sides: see Figure 5, enlarged in Ex 10.

Front setbacks

The front setbacks typically comply with acceptable outcome for setbacks at MDRZ Code AO1 up to an including level 6 (with the exception of some structures at ground level), with the balconies at levels 7 and 8 intruding into the AO setback by 1.5 meters: see Figure 6, enlarged in Ex 10.  The intrusion is visually represented in Figure NP1 of the Joint Report at p 23, enlarged in Ex 10.

Rear setbacks

The rear setbacks typically comply with the acceptable outcome for setbacks at MDRZ Code AO1, except for a 0.5 metre projection into that setback by the level 8 balcony: Figure 6, enlarged in exhibit 10.  The intrusion is visually represented in Figure NP3 of the Joint Report at p 25, enlarged in Ex 10.

  1. [146]
    As shown in Figure NP1 (Ex 10), up to and including level 6 of the proposed development, the rear setbacks perform better than required by MDRZ Code AO1.  A comparison of the incursions of the proposed development and the Golden Four Drive development is visually depicted in Figure NP3 (Ex 10).  The proposed development displays increased stepping at upper levels, although there is an incursion at level 8.
  2. [147]
    From a town planning perspective, Mr Mewing’s view is that the development presents a well-managed interface and relationship to nearby sites and development and is in keeping with the reasonable amenity expectations for the Medium density residential zone.  This view is formed having regard to the development’s scale, built form (including setbacks to the boundaries) and the interface/design in the context of other developments within the neighbourhood and the provisions of the planning scheme:  Town Planning Joint Report at [107].
  3. [148]
    I am greatly assisted by Figures 34 and 35 prepared by architect Mr Richards in the Architecture Joint Report at pp 36 and 37.  These identify the key design elements that in his view contribute to a well-managed interface.  These elements include:
  1. a clearly defined pedestrian entry from Pacific Parade;
  1. arched recessed balconies over three floors provides a strong street presence with a human scale and are supported by a generous plinth;
  1. vehicle entry is set back from the street under the building with a treatment as an urban plaza instead of a driveway;
  1. landscaping elements on the upper levels provide a distinctive crown;
  1. vertical blades of the side facades contribute to privacy, sun screening, and add finesse to the façade;
  1. planting at ground level and level 1 provides a green setting and buffer to neighbours on lower levels;
  1. eastern balconies are generous and visible at all residential levels; and
  1. living spaces are set back from the rear boundary; the balcony is setback 5m, with 9.3 m to the living room wall on the lower levels and 8.9m to the living room wall on the upper levels.
  1. [149]
    Mr Richards identifies various architectural devices which, in his view, contribute to a well-managed interface:
    1. Along the side façades, there are expressed floor slabs reducing the potential monolithic scale of the building.  Vertical solid panels at regular intervals as well as vertical sun screening provide sun shading and also reduce direct overlooking and improve privacy: [94].
    2. The living spaces are set back from the rear boundary and on lower levels are beneficially positioned on the corners.  Views are in a number of directions to the side and rear including along the rear boundary, and due to the extension of the balconies afford glimpsed views to the beach and ocean: [95].
    3. The bottom half of the building mass is broken up into three parts by scaled archways on the eastern and western facades.  These accentuate the recessed living areas and balcony ends and lessen the visual impact on neighbours.  The heavier based to the lower half helps to ground the building and its contrasting structure creates a lightness to the expressed upper balconies.  This interface with the street and rear neighbour creates a greater sense of privacy with the lower balconies feeling recessed behind larger building elements.  Recesses, a variety of materials and screening on the longer northern and southern facades break up the length: [96].
    4. On upper levels, the balconies extend along the entire façade past the bedrooms thus reducing the direct overlooking to and from the bedroom windows.  The main balcony space is embedded in the plan so is therefore quite private with less views to the main activity spaces: [97].

Overlooking and overbearing

  1. [150]
    I am also greatly assisted by the visual amenity experts, Mr Powell and Dr McGowan who gave detailed consideration to the issues of overlooking, overbearing, overshadowing, and outlooks or views.
  2. [151]
    Mr Powell and Dr McGowan consider that the prospect of unreasonable overlooking is mitigated by the combination of a narrow south-west elevation, and relatively generous rear setbacks which comply with AO1 of the MDRZ Code, except for a 0.5m projection by the level 8 balcony: Visual Amenity Joint Report at [97] and [115].
  3. [152]
    Mr Powell and Dr McGowan take further guidance on appropriate setbacks from AO13 of the HRAD Code, whereby all habitable room windows comply with AO13(b) and (c) and comfortably exceed the 10m metric of AO13(b).  However, due to the absence of a separation metric at AO13(a), both experts agree that the proposed rear facing windows will result in some degree of overlooking of neighbouring balconies, so do not currently comply with AO13(a).  While Mr Powell has provided a solution to satisfy AO13(a) by glazing or privacy screens [NP2], both Mr Powell and Dr McGowan are of the opinion that the prospect of unreasonable overlooking is already mitigated: Visual Amenity Joint Report at [98] – [100], [116].
  4. [153]
    Mr Powell and Dr McGowan consider that the prospect of unreasonable overbearing on the Golden Four Drive development is adequately mitigated by the combination of a narrow south-west elevation, and relatively generous setbacks which predominantly comply with the setbacks at MDRZ Code AO1, stepping back at the upper parts of the building: [102], [119].
  5. [154]
    Regarding the neighbouring developments to the north and south, I am assisted by Dr McGowan’s evidence that the impacts of overlooking are adequately mitigated as a result of the factors expressed at [117] of the Visual Amenity Joint Report, including:
    1. AO1 compliant setbacks for levels 1-5, with a minor intrusion at level 5, such that any overlooking from these levels would be consistent with reasonable expectations;
    2. Extensive screening for most of the windows on the northern and southern facades up to level 7, which would limit any potential for overlooking;
    3. A separation of 10.5 metres with the neighbouring 7 storey building.
  6. [155]
    For the neighbouring developments to the north and south, Dr McGowan considers that while the upper levels of the building will cause some sense of overbearing for parts of the neighbouring properties, because of the acute angle at which these upper levels are seen, the extent of the overbearing will not be substantially greater than would be caused by a building to a height of 23 metres.  Dr McGowan also considers the lower levels Ground to Level 5 achieve or surpass the acceptable outcomes for the side boundary setbacks and this assists with offsetting any sense of overbearing caused by the upper levels of the proposed development: [120].
  7. [156]
    Mr Carter placed reliance on the NSW Apartment Design Guide, although that document is not called up by the planning scheme.  I accept, as submitted by the respondent, that what is reasonably expected in the zone and locality is (significantly) influenced by the planning intentions for the area, which the Apartment Design Guide does not account for.
  8. [157]
    I also accept, as submitted by the respondent, that Mr Carter appeared to seek the elimination of amenity impacts and on improving the building, rather than focusing on whether the building meets the assessment criteria in the planning scheme.  When asked directly in re-examination, Mr Carter was somewhat unclear about whether he had in fact assessed the building against the assessment bench marks in the City Plan.[54]  It is noted though that Mr Carter did refer to relevant aspects of the City Plan in the joint reports and expressed in oral evidence that the proposed development fails the test in the City Plan.[55]  Mr Carter’s opinions have been considered as part of the evaluative process required by the Act, but ultimately his opinions on this criterion were not persuasive.

High Rise Accommodation Design Code

  1. [158]
    As the proposed development exceeds 32 metres above ground level, it is a ‘high rise building’, as defined in the City Plan.[56] By that exceedance, the High rise accommodation design code (HRAD Code) is engaged.  The benchmarks most relevant to the reasonable amenity expectations of the Golden Four Drive development and neighbouring properties comprise HRAD Code PO4 and PO5.
  2. [159]
    I accept, as submitted by the appellants, that HRAD Code PO5 is a highly relevant planning control, it being a benchmark that relates to the physical interrelationship between two high rise towers.
  3. [160]
    Performance outcome PO5 requires the tower form to mitigate negative visual impacts, including impacts upon privacy, by setting back from streets, parks, open space and adjacent properties and tower forms.  Overall outcomes 2(a) and (2)(c) seek to protect the privacy and amenity of neighbouring residential premises and to mitigate negative visual and physical impacts through appropriate setbacks and design.
  4. [161]
    The relevant corresponding acceptable outcomes are:
    1. AO5.2 which requires new towers to be separated a minimum distance of 25 metres from any existing or approved adjacent and on-site towers.
    2. AO5.3 which requires the tower form to be off-set with adjacent existing and proposed towers to ensure (a) prominent tower views to natural features like the beach and rivers are not obstructed and (b) views of the sky and access to sunlight from the public realm and private open space areas are maximised.
  5. [162]
    The proposed development substantially exceeds the quantitative requirement in AO5.2.  It is not off-set from the proposed Golden Four Drive tower as required by AO5.3.
  6. [163]
    In K Page Main Beach v Gold Coast City Council [2011] QPELR 406, Rackemann DCJ observed at [36]:

“A proposed building which exceeds the acceptable solution as substantially as this one does would ordinarily attract somewhat closer scrutiny than one which exceeded the designation to only a minor extent, but ultimately the test is not whether the proposal approximates the acceptable solution, but rather whether it meets the performance criterion.” (footnotes omitted)

  1. [164]
    Consistently with Mr Buckley’s evidence, I consider that the proposed development meets PO5.[57]  Where a development achieves the corresponding performance or overall outcome, a separation of 25m is not required, given it is merely an acceptable outcome.
  2. [165]
    As to the tower form design, compliance with PO4 can be demonstrated by compliance with AO4.1 and AO4.2.  The proposed development is compliant with AO4.1, which requires a tower floor plate to be limited to 750 square metres per tower, excluding balconies.  AO4.2 requires the tower form to provide a unique profile when compared to nearby existing and proposed towers of similar height.
  3. [166]
    In my view, the photomontages show the tower form to possess a unique profile when compared to in particular 89-91 Golden Four Drive, the nearby proposed tower of similar height.[58]  My view accords with that of Mr Richards.[59]  This unique profile is achieved by the combination of design features identified at [187] to [190] and [199] to [201], [204] below.

Outlooks and views

  1. [167]
    In considering the impacts of the proposed development on outlook and views from the appellants’ building, Mr Powell identified that views of the ocean from below the height overlay of 23m are less likely to be obtained into the future as the area is developed.  Mr Powell considered that even from these levels which are situated below the height overlay, elongated views of, or towards, the ocean from the balconies of 89-91 are invited, due to the proposed development adopting better than acceptable outcome setbacks, due to the development interface in the north comprising a driveway, and due to the stepped configuration of side balconies at 89-91: [104] Visual Amenity Joint Report and Figures NP4 and NP5 at p 26.
  2. [168]
    On the levels above the height overlay (being levels 7, 8 and 9) of the proposed development, Mr Powell considers the prospect of unreasonable impacts on outlooks or views is again adequately mitigated by a combination of the relatively generous rear setbacks and of a narrow south-west elevation, notably tapering towards the top, with the uppermost level shifting alignment to benefit neighbouring upper level balconies.  Impacts are further mitigated by the neighbouring building having an internal arrangement which focusses views out from the northern most unit at an angle to the rear boundary as demonstrated in Figure NP9: [105] to [107] & p 29.  As can be seen in Figures NP6 and NP7 at pp 27 and 28, there is a slight reduction in open views on levels 7 and 8 compared to the AO setback, with the proposed development providing a semi-open view across the balcony corner.
  3. [169]
    Mr Richards notes that the proposed development maintains a view corridor through to the beach from the Golden Four Drive development. This view would also be maintained if a similar scale development on the neighbouring lot were proposed at 88 Pacific Parade, as opposed to a single development at the same scale as the 89-91 Golden Four Drive development: Architecture Joint Report at [102]. Those maintained view lines between buildings are helpfully depicted by Mr Richards in Figure 388 at p 41.
  4. [170]
    The planning controls do not provide absolute protection for loss of views from private development. Rather, they seek to protect the amenity of neighbouring residents.  PO4 of the HRAD Code seeks to promote “view corridors between nearby towers”.  In my view, that is achieved by the proposed development, having regard to Mr Richards’ diagrammatic analysis.

Overshadowing and access to sunlight

  1. [171]
    The issue of access to sunlight and overshadowing were the subject of evidence from Mr King (regarding light amenity) and Mr Powell (regarding overshadowing). Mr Peddie also expressed views about shadowing and solar access, as did Mr Carter.
  2. [172]
    Mr King opined that the proposed development would provide adequate access to natural lighting and direct sunlight.[60]  He also identified that even when shadows are cast over an adjacent building, there remains access to natural light as reflected light, rather than direct sunlight.[61]  In terms of the impact on the Golden Four Drive development, Mr King accepted there would be shadowing caused by the proposed development, which would change throughout the course of the day and throughout the season and time of year.  In his opinion, at all times adequate light will be available to the apartments in both developments.  At certain times, direct sunlight will be available and at other times reflected light. Mr King considered appropriate amenity will be achieved for both developments with respect to daylight.[62]
  3. [173]
    Mr Powell understands that the season with the greatest potential to impact daylight access is winter, with the greatest potential impact to surrounding properties being during the mid-winter morning (9 am to 12 noon).[63]  For context, Mr Powell notes that the mid-winter afternoon shadows (3pm), including those of 23m high buildings, are expected to extend a substantial distance into the rear of properties to the south.  With respect to the mid-winter morning shadows, the prospect of unreasonable overshadowing impacts is largely mitigated by the narrow south-west elevation, which promotes a fast-moving shadow that will move quickly across and down the face of the neighbouring building at the rear.  Figures NP10 and NP11 demonstrate that the shadow is fast moving, likely impacting the northernmost corner balcony of the rear neighbour just before 9 am, but starting to move off that balcony, and the north-west face of that building, before 12 noon mid-winter:  Visual Amenity Joint Report at [108] to [111], pp 29 – 30.
  4. [174]
    In addition, Mr Powell analysed the level of shadowing in mid-winter that would result from the proposed development as compared to a code assessable development.[64] The impacts are visually depicted in Figures 1 and 2 in his separate report.  Mr Powell ultimately opined that, with regard to the additional height above the 23m overlay, the impacts arising from the proposed development are limited in extent and duration.[65]  In his analysis, Mr Powell had regard to the actual impacts on the ground, including the likely use of those areas where additional shadow would impact, including a shared driveway, shade trees, and the roofs of 80 and 88 Pacific Parade.[66]  I prefer the evidence of Mr Powell over that of Mr Peddie, who did not undertake such an analysis, although he did undertake a sun’s eye view comparison.[67]

Natural ventilation

  1. [175]
    The wind engineers gave evidence regarding natural ventilation. In Dr Cochrane’s opinion, the proposed development would either maintain or potentially improve ventilation for the rear corner units of the Golden Four Drive development once it was built.  His views were not shaken in cross-examination, and he was able to express conclusive views without a full wind tunnel model being prepared. 
  2. [176]
    Mr Peddie expressed a contrary conclusion with reference to the diagram in Ex 49.  He maintained that conclusion under cross examination,[68] although in his separate report also maintained that wind modelling was required to determine the impacts.[69]  With reference to Ex 41, Dr Cochrane explained the fluid dynamics which would lead to comparable or possibly even improved flow, but which would not result in any negative impact.[70]
  3. [177]
    Having regard to Dr Cochrane’s extensive experience, I accept his evidence that a wind tunnel assessment for a building of this height and geometry is not necessary.[71] Ultimately, in keeping with Dr Cochrane’s opinion, I find that the proposed development will not result in adverse wind and ventilation impacts to the Golden Four Drive development.
  4. [178]
    I am satisfied the proposed development complies with s 3.3.2.1(9)(c).

Specific outcome 3.3.2.1 (9)(d) – a varied, ordered and interesting local skyline

  1. [179]
    The appellants allege that the proposed development does not comply with outcome 3.3.2.1(9)(d) of the City Plan: a varied, ordered and interesting local skyline.
  2. [180]
    The local skyline is influenced by more than one building. The criterion therefore calls for an assessment of the effect of the proposal in the context of other development.  The provision requires both variety and order, in addition to an interest. In those circumstances order cannot mean uniformity. Order is to be assessed by reference to whether there would be a harmonious arrangement: see Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32 per Rackemann DCJ at [64].
  3. [181]
    The achievement of a varied, ordered, and interesting local skyline is a matter that calls for a value judgement.  It is a matter about which reasonable minds might differ: The Body Corporate for 62 Pacific at [159].
  4. [182]
    The appellants allege that the proposed development does not comply because:[72] 
    1. the degree of height exceedance is atypical along Pacific Parade resulting in a building which will dominate the skyline along Pacific Parade;
    2. the proposed development lacks differentiation at the top level; and
    3. the proposed building does not offer a clear distinction of built form when viewed from various positions including along Pacific Parade, the parkland and foreshore and from neighbouring residences.
  5. [183]
    Mr Holt considers that the proposed development does not comply with this outcome: Town Planning Joint Report at [126].  Mr Holt conceded under cross examination that the three-dimensional form of the building was acceptable, such that it followed criterion (d) of the uplift provision.[73]
  6. [184]
    The visual amenity experts agree that the proposed development possesses some qualities of character and form that advance certain aspects of a varied, ordered, and interesting skyline. They otherwise disagreed as to whether the proposed development, in a visual amenity sense, provides a contribution to the skyline that is appropriate or inappropriate: Visual Amenity Joint Report at [133] to [134].
  7. [185]
    Mr Carter considered that the proposed development has some good qualities, however the impacts of the design imposed upon neighbouring buildings are too great for it to be considered acceptable from a visual amenity point of view.  Mr Carter considered that the proposed development could satisfy this criterion if it removed the deleterious impacts as a result of the features which were identified by him to result in a poorly managed interface: Visual Amenity Joint Report at [135] to [140].
  8. [186]
    As Mr Carter’s view was largely premised on the negative amenity impacts, his opinion does not materially assist the court in evaluating compliance with specific outcome 9(d).
  9. [187]
    Mr Powell and Dr McGowan considered that the proposed development:
  1. maintains an order to the skyline by fitting within the range of expected and existing heights in the area; and
  1. by incorporating a recessed upper level, achieves an interesting and varied skyline profile.[74]
  1. [188]
    At [148], Dr McGowan adds that the proposed development achieves this criterion, amongst other features, by:
    1. Incorporating balconies to the front and rear facades which give the building visual interest when seen from all directions; and
    2. Utilising material treatments, such as curved building corners, balconies creating feathered building edges, expressed slabs, containerised landscaping, and vertical screening which create visual interest, variation, and order.
  2. [189]
    In my view, the renders, elevations, and photomontages show the proposed development to possess a variation of building form and materials which, in combination with landscaping on the upper levels, achieves a varied, ordered, and interesting local skyline. 
  3. [190]
    AO8 of the HRAD Code requires a signature cap strengthening the building’s identity as a landmark.  As observed by Mr Curtis, the scheme postulates that as a potential acceptable outcome in the absence of some more considered approached by a quality architect.  In Mr Curtis’ opinion, a better approach would be to cap the building with an integrated form, as the proposed development does. I agree with Mr Curtis’ opinion that the roof of the proposed development is a tower cap, which adds interest.[75]
  4. [191]
    I am satisfied the proposed development complies with s 3.3.2.1(9)(d).

Specific outcome 3.3.2.1 (9)(e) – an excellent standard of appearance

  1. [192]
    The appellants allege that the proposed development does not comply with outcome 3.3.2.1(9)(e) of the City Plan: an excellent standard of appearance of the built form and street edge.
  2. [193]
    Something is excellent if it has superior merit or is remarkably good. An excellent standard can be said to be one that is especially high. That is not to say that perfection is required. The assessment of whether a proposed development achieves an excellent standard obviously involves matters of evaluative judgement upon which reasonable minds may differ: McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283 at [107].
  3. [194]
    The requirement for excellence should be seen in the context of what other provisions require in any event, as listed in paragraph 5 of the Appellants’ Amended Benchmark Groupings.[76] 
  4. [195]
    In summary, the appellants submit the proposed development will not achieve an excellent standard of appearance of built form and street edge as:
    1. It has a height and scale that is excessive for its location and will dominate Pacific Parade and the public realm.
    2. The deficient rear facade, insufficient setbacks, and street-level interface, all exacerbated by its excessive height, means it has less than an excellent standard of appearance of built form and the street edge.
    3. The front door and lobby area are not sufficiently visible or inviting and are cluttered by services and too far removed from the street edge.
    4. The front façade is dominated by non-habitable uses, such as fire stairs, services, and basement car park entry/exit ramps that are inadequately screened or landscaped.
    5. The rear façade, involving poor apartment planning and amenity impacts, means that the proposed development cannot be considered an "excellent standard of appearance of built form" despite any potentially pleasing external appearance from other angles.
  1. [196]
    In Mr Carter’s opinion, an excellent standard of apartment building appearance can only be achieved if all other aspects of the design are also excellent: Architecture Joint Report at [214].  Mr Carter’s assessment of this criterion appears to have been heavily informed by his overarching amenity concerns.  As the building did not properly manage the amenity impacts, he opined it was not of an excellent appearance.[77]
  2. [197]
    Mr Holt considers the proposed development does not comply with this outcome: Town Planning Joint Report at [126].
  3. [198]
    I accept Mr Richards’ opinion that excellence in design is an expression of how the design integrates and resolves a range of ideas that combine to inform the architectural expression.  Each idea in itself may be straight forward or unremarkable but can achieve excellence in combination with other design ideas.  The combination of these attributes demonstrates a thoughtful, elegant design that achieves excellence in architectural expression and streetscape relationships: Architecture Joint Report at [203].
  4. [199]
    Mr Richards considers the proposed development has a consistent architectural language of curved forms which overall softens the built form within its setting.  At [205] to [211] of the joint report and visually depicted at Figures 54 and 55, Mr Richards identifies the various design elements that combine to produce a building of excellent appearance.
  5. [200]
    The street façade has a strong vertical proportion, with expressed columns and arched openings in the lower storeys that frame the lower balconies and break up the mass of the front and rear facades.  The slender profile presenting to the street minimises the visual impact of the building when viewed from the beach.  Generous visible balconies capture views to the street and beach.  The upper façade comprises of full width cantilevered balconies creating a light feathered end to the most visible facade: [205], [212].
  6. [201]
    Curved recesses break up the longer façade, which allows the building to read as four connected vertical elements.  This verticality is enhanced by the full height solid windows, window walls, and vertical screening, creating vertical striping through the façade as a counterpoint to the section of horizontal expressed floor slabs.  The vertical sunscreens provide shading and additional privacy to bedrooms and living areas along the side boundaries.  Landscaping recesses and additional curved recesses break up the length of the façade: [206], [212].
  7. [202]
    The floors slabs are expressed at various intervals by extending beyond the façade. This achieves a convincing human scale to the façade and, with the balconies and windows, demonstrates the way that people can occupy this building: [207].
  8. [203]
    At ground level, the building is grounded by a solid base that has the appearance of being sculpted from the mass of the archways above.  The building’s primary entrance is from Pacific Parade, with the pedestrian entrance flanked by curved forms and planting.  The driveway is setback from the front boundary and separated from the pedestrian entrance by low level landscaping: [208].
  9. [204]
    The curved forms in the plan soften the building edges and contribute to a dynamic skyline: see Figure 55 – note 4 at p 65.
  10. [205]
    Mr Curtis agrees with Mr Richards.  He adds that the vertical forms are accentuated by variations and combinations of materials and colour.  The vertical forms assist to balance the proportions of each façade’s length with the building’s height and contributes to the visual fragmentation of the building’s overall bulk: Architecture Joint Report [178].
  11. [206]
    Mr Curtis’ detailed analysis of the features which result in an excellent appearance of built form appear at [177] to [184] of the Joint Report.  Mr Curtis also helpfully provides a detailed analysis of the landscaping elements at [185] to [195].  Based on those observations, Mr Curtis concludes the proposed development:
    1. will not be unacceptable with respect to its visual bulk and site cover;
    2. will not be unacceptably visually dominant; and
    3. will have an excellent standard of appearance of the built form: [196].
  12. [207]
    I am satisfied the photomontages and visual representations, read with the architectural and landscape plans, demonstrate that the proposed development achieves an excellent standard of appearance of the built form.

Street edge

  1. [208]
    The visual amenity experts agree that the front and side facades, as they are documented, display reasonable composition that is consistent with the character of the local area and that these facades would be visually pleasing and would contribute positively to the appearance of the street edge: Visual Amenity Joint Report at [152].  The point of contention is whether the standard of appearance of the street edge is merely good, as opined by Mr Carter, or excellent, as opined by Mr Powell and Dr McGowan.[78]
  2. [209]
    In my view, the perspective renders and diagrams produced by Mr Curtis[79] and Mr Powell[80] show that the street façade is well landscaped and visually pleasing.  I agree with Dr McGowan’s opinion[81] that the proposed development achieves an excellent standard of appearance of the street edge due to deep and containerised planting, as well as by:
    1. providing a well-defined and engaging street interface for the height of the building, with generous balconies directed towards the street;
    2. modulating Levels 1 – 3 with unique and distinctive arched colonnades that partition and distinguish these lower levels, giving them a more comfortable human scale;
    3. utilising high quality and contextually appropriate materials, including timber palings, tone, tiles, and rendered masonry at the lower levels; and
    4. effectively disguising the plant and refuse stores, which are common features of multiple dwellings and which can, if not appropriately concealed, detract from the streetscape.
  3. [210]
    I am satisfied the proposed development complies with s 3.3.2.1(9)(e).

Specific outcome 3.3.2.1 (9)(f) – housing choice and affordability

  1. [211]
    The appellants allege non-compliance with outcome 3.3.2.1 (9)(f): housing choice and affordability.
  2. [212]
    The appellants argue that the proposed development will not provide housing choice and affordability as:
    1. the proposed housing will not be affordable housing or affordable to any of the relevant target groups (low and moderate-income households, and very low-income working people who are not eligible for social housing) or make any contribution to housing affordability for either rental or purchase;
    2. the most pressing need in the locality is for an increase in studio and one-bedroom apartments;
    3. the proposed development will not provide either housing choice or diversity nor a generous mix to meet current and future local housing need.
  3. [213]
    The appellants contend that the proposed development will have a negligible impact on housing choice and mix of housing form in the local area.  While the development provides for a mixture of 2 and 3-bedroom apartments, it does not provide studio or 1-bedroom apartments.  The provision of 2 and 3-bedroom apartments is said to meet a demand from one market segment which already enjoys sufficient choice in the local housing market, with 2 and 3-bedroom apartments accounting for more than 84% of apartments in the local area: see Chart 4 and Table 7 in the Economic Joint Expert Report at pp 44 to 45.
  4. [214]
    The proposed development will provide 20 units, which represents a tiny fraction of the total stock in the local area, with the incremental increase of 4 to 6 units above 23 metres representing an even smaller fraction.  The appellants contend that by only providing 2 and 3-bedroom units and failing to provide 1-bedroom or studio apartments, the proposed development fails to provide for housing choice.  This failure is to be considered in the context that, by grant of uplift, the development will yield only an additional two levels of very expensive apartments.
  5. [215]
    It is uncontroversial that the proposed development will not provide affordable housing for low to moderate income earners; it is a luxury development product catering to a more affluent segment of the market.[82]
  6. [216]
    The term “housing choice and affordability” is not defined in the City Plan. The term “affordable housing” is defined and means:

Housing that is appropriate to the needs of households with low to moderate incomes, if the members of the households will spend no more than 30 per cent of gross income on housing costs: City Plan Extracts at p 186.

  1. [217]
    The term “affordable housing” does not appear in the uplift provision, although it is used elsewhere in the City Plan, for example:
    1. 3.3 Creating liveable places – Strategic outcomes 3.3.1(4) refers to affordable housing while 3.3.1(5) refers to housing choice and affordability: City Plan extracts at p 26.
    2. 3.3.2 Element – Urban neighbourhoods – Specific outcomes 3.3.2.1(21) refers to affordable housing, while the uplift provision in 3.3.2.1(9) refers to housing choice and affordability: City Plan extracts at pp 32 and 29.
    3. 3.3.3 Element – Suburban neighbourhoods – Specific outcomes 3.3.3.1(4) refers to affordable housing: City Plan extracts at p 33.
  2. [218]
    The Planning and Environment Court has considered the construction of this provision in previous decisions.  In Archer at [389] to [415], having regard to the prior cases of McLucas and Bell Co Pty Ltd, the court construed the corresponding provision in the City Plan (version 7)[83].  In summary, it was held:
  1. The absence of a qualifying verb is problematic and appears to deny (9)(f) the status of an outcome that is capable of satisfaction by a development, consistently with the observation in Bell Co Pty Ltd.  Nevertheless, the provision is to be given some meaning.
  1. Planning for housing choice and affordability is linked to the planned settlement pattern, being one that concentrates development in well-serviced urban places. This informs affordability.
  1. Planning for compact urban neighbourhoods that have a public transport hub, community facility, park or mixed use centre, specialist centre or neighbourhood centre as their focal points helps reduce the transport costs associated with where people live.
  1. In the City Plan, affordable housing, which is separately defined in the planning scheme, is a different planning concept than housing choice and affordability.
  1. Housing choice and affordability is achieved by ensuring the height and building form is consistent with the planned settlement pattern, not height only.
  1. In terms of building form, the parameters that guide the planned density in an area are likely to assist where the delivery of less density than planned may be unlikely to support housing choice and affordability.
  1. In the City Plan, whether development supports housing choice and affordability is not determined by considering matters such as the average income of Australians (or that of the needs of low to moderate income households) and the likely price point of a proposed development.

The appellants’ submissions on the interpretation of s 3.3.2.1(9)(f)

  1. [219]
    In the present appeal, the appellants press for a different interpretation of s 3.3.2.1 (9)(f), such that compliance requires the provision of at least a component of affordable housing as that term is defined in the City Plan.
  2. [220]
    While I am not bound to adopt the construction in Archer, any departure from an earlier decision as to the interpretation of a provision is to be approached cautiously. For the appellants to succeed, they must demonstrate that the construction in Archer is plainly wrong.[84]  While the City Plan (version 7) was applicable in Archer, the relevant provisions mirror those in the City Plan (version 10).
  3. [221]
    The appellants rely upon a number of policy and legislative documents which were not before the court in Archer.  It is also submitted that evidence was not led in the earlier cases of the current customary usage of the term “housing affordability”.
  4. [222]
    The appellants contend that the word “affordability” in “housing choice and affordability” quite clearly should be qualified by the word “housing”, such as to read “housing affordability”.  The term housing affordability is not defined in either the Act, the Planning Regulation 2017, or the planning scheme definitions.
  5. [223]
    Applying the usual principles of statutory construction, the appellants submit that the term housing affordability in both the purposes of the Act and in the City Plan should have the same meaning as can be derived from the outcomes expressed in the State Planning Policy and Regional Plan.  The purpose of the Planning Act 2016 is set out in s 3.  Pursuant to s 5 (2)(f), advancing the purpose of the Act includes providing for housing choice, diversity and affordability.
  6. [224]
    Further, leaving that aside, the choice in the City Plan to use language of such generality means the court, in the absence of a contrary intention, should construe the provision to have a contemporary meaning which may vary over time.  The court should adopt an ambulatory approach, embracing changes that occur in the subject matter.
  7. [225]
    The necessary inquiry then is of the current ordinary or customary meaning of “housing affordability”.[85]  The appellants submit that Ex 32 to Ex 36 show that the current meaning and customary usage of the term “housing affordability” is of providing affordable housing or, at least, of comprising as a measure the relationship of a person or household’s gross income compared to their housing purchase or rental cost.  The relevant exhibits summarised are as follows:
    1. Exhibit 32: Housing Availability and Affordability (Planning and Other Legislation Amendment) Act 2024 (Qld), which inserts s 65A into the Planning Act 2016.
    2. Exhibit 33: Planning Regulation 2017 (Qld), s 43C – Criteria for affordable housing component – Act, s 65A.
    3. Exhibit 34: Australian Bureau of Statistics – Housing Occupancy and Costs.
    4. Exhibit 35: Australian Bureau of Statistics – Survey of Income and Housing, User Guide, Australia. 
    5. Exhibit 36: Gold Coast Homelessness Action Plan 2024.
  8. [226]
    In addition, the appellants point out that the term “housing affordability” has been used in other legislation, both before and after the promulgation of the City Plan and the purpose in the Act, in the context of providing affordable housing.  The appellants contend that it should be presumed that parliament has used those terms consistently unless the contrary appears.  For example, the Building Boost Grant Act 2011 (Ex 31), is an Act to assist “housing affordability”, amongst other things.
  9. [227]
    The better construction is said to be that criterion (9)(f) exists as an incentive to encourage particular developments to provide affordable housing options within the project or to directly contribute in some other way to affordable housing, as provided for in the State Planning Policy.  Such a construction provides the developer with the opportunity to gain and profit from extra development yield at the cost of providing some affordable housing, either by including 1 or 2 studio or 1-bedroom affordable units or by entering into an arrangement whereby that can be practically delivered through a trust or housing supply body.
  10. [228]
    The appellants’ argument requires me to construe s (9)(f) as reading “Housing choice and housing affordability” and then to find that “housing affordability” has the same meaning and is interchangeable with the meaning of “affordable housing” as defined in the City Plan.  In that way, the provision assumes a narrower meaning than the broader interpretation adopted in Archer.

Statutory construction

  1. [229]
    The same principles which apply to statutory construction apply to the construction of planning documents. The modern approach to statutory interpretation insists that the context be considered in the first instance, and context is to be used in its widest sense: Trinity Park Investments Pty Ltd v Cairns Regional Council & Others [2022] QPELR 309 at 311, applying Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686.
  2. [230]
    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [70], McHugh, Gummow, Kirby and Hayne JJ stated:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.” … (Footnotes omitted)

  1. [231]
    The word “affordability” is not defined in either the Act, Planning Regulation 2017, or the planning scheme definitions.  As such, pursuant to s 1.2.1(1) of the City Plan, and consistently with Archer at [398], the word is to be given its ordinary meaning.
  2. [232]
    Pursuant to s 14B(3) of the Acts Interpretation Act 1954, ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.
  3. [233]
    Pursuant to s 14B(1), consideration may be given to extrinsic material capable of assisting in the interpretation of a provision in the circumstances specified in (a) to (c).  The list of materials to which regard might be had is not expressed to be exclusive: s 14B(3).  It is thus open to a court to seek guidance from whatever might seem to it to be the appropriate source: see Statutory Interpretation in Australia, 10th Edition, D C Pearce at [3.30].
  4. [234]
    The non-exhaustive list of material referred to in s 14B(3) includes only material that was in existence when the provision in question was enacted.  However, material not in existence at the date of enactment may be admitted at common law: Pearce at [3.24].

State Planning Policy, Regional Plan and the Act

  1. [235]
    Pursuant to s 8(4) of the Act, to the extent of any inconsistency, a State planning policy or regional plan applies over the planning scheme:[86] see also Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2015] QPELR 203 at [11] and [15].
  2. [236]
    The term “housing choice and affordability” appears, unqualified, as the title in Part 8.5 of the South East Queensland Regional Plan 2009 – 2031 (Regional Plan): Ex 29 at p 95.  The stated principle is to provide a variety of housing options to meet diverse community needs, and achieve housing choice and affordability.
  3. [237]
    At 8.5.2, a stated policy is to provide housing choice through a range and mix of dwelling type, size and location in residential developments.  At 8.5.4, another stated policy is to encourage all major development to incorporate affordable housing, including appropriate housing for the entry buyer and low-income housing markets. The notes state, amongst other things, that providing diverse and affordable housing options is an important issue and key challenge both nationally and in SEQ. The notes also state that household change is creating demand for more housing options, including more affordable housing.
  4. [238]
    Under the State Planning Policy 2017, one of the state interest policies under Part E is planning for liveable communities and housing, which encompasses housing supply and diversity and liveable communities: Ex 30 at p 1 and pp 22 – 26.  One policy, amongst others, that must be appropriately integrated into planning and development outcomes is expressed as: the development of residential land is facilitated to address and cater for all groups in the current and projected demographic, economic and social profile of the local government area, including households on low to moderate incomes: Ex 30 at p 24.
  5. [239]
    A fair reading of the policy objective in Part 8.5 of the Regional Plan is to provide for a variety of housing options, including, but not exclusively, affordable housing.  The state interest policies in the State Planning Policy equally cast the notion of ‘affordability’ in broader terms.  For example, at p 22 it is stated: While housing affordability is influenced by many factors, the planning system has a role to play in facilitating affordable housing outcomes and, more broadly, affordable living to ensure Queensland is a great place to live, work and enjoy.
  6. [240]
    The Regional Plan is explicitly called up by the terms of the City Plan: see Part 2.2. The State Planning Policy 2017 (Ex 30) post-dates the commencement of the City Plan, although pursuant to s 2.1 the (then existing) state planning policy is identified as being appropriately integrated into the City Plan as it relates to liveable communities and housing supply and diversity.  Irrespectively, neither document advances in any meaningful way the appellants’ contention that the construction in Archer is plainly wrong.
  7. [241]
    Nor do these higher order documents warrant reading into s 5(2)(f) of the Act a restraint on “affordability” such that it means exclusively “affordable housing” for low to moderate income earners, rather than affordability in a broader sense.
  8. [242]
    During oral submissions, the appellants’ counsel accepted as true that the State Planning Policy, the Regional Plan, the planning scheme and other documents refer to housing choice and mix.  The appellants’ construction point was directed at what was meant by the word “affordability”, which was said to be separate and distinct from choice.

In pari materia

  1. [243]
    The Building Boost Grant Act 2011 is an act to assist “housing affordability, increase housing supply, and support employment in the housing construction industry by establishing a scheme for the payment of grants to persons building or purchasing new homes.”
  2. [244]
    Statutes in pari materia, in the sense that they deal with the same subject matter along the same lines, may form part of the context for the process of construction.  Acts of this kind are said to form a kind of code or scheme, which arises from the degree of similarity involved.  Without this feature there is no warrant to transpose the meaning of a word from one statute to another or to assume, where the same words are used in a subsequent statute, that the legislature intended to attach the same meaning to the same words: SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362 at [24].
  3. [245]
    The Building Boost Grant Act 2011 is not in pari materia with the City Plan.  It is not, with the City Plan, part of a statutory scheme.  Absent that feature, there is no warrant to transpose the meaning of the words used in that act into the City Plan.

Recent amendments to the Act and regulations 

  1. [246]
    The Housing Availability and Affordability (Planning and Other Legislation Amendment) Act 2024 and the associated amendments to the Planning Regulation 2017 (Ex 32 and Ex 33) fall within the Planning Act 2016 regime although the amendments post-date the commencement of the planning scheme. These new sections do not mandate the provision of affordable housing, but rather facilitate conditions of approval to secure an “affordable housing component” in circumstances where such a proposal is included in the development application in the first place (when here it is not).
  2. [247]
    Pursuant to s 65A of the Act, a regulation may provide that a development condition imposed on certain development approvals may relate to the provision of an “affordable housing component”.  The dictionary in schedule 24 defines “affordable housing component” as expressed in s 65A(3) of the Act and notes a reference to s 43C of the regulation.
  3. [248]
    Pursuant to s 43C(1), for s 65A(3) of the Act, definition affordable housing component, paragraph (b), the component of development must include 1 or more of (a) housing that is appropriate to the needs of households with low to moderate incomes, if the members of the households will spend no more than 30% of gross income on housing costs, or one of the other stated components listed in (b) to (e). The use of the words “affordable housing” as defined is consistent with the definition of affordable housing in the City Plan.  The use of the words “affordable housing” within the related statutory regime does not advance the appellants’ argument.  The point remains that the uplift provision does not use the term “affordable housing”, as defined in the City Plan nor as subsequently defined in the statutory regime.

Other economic documents

  1. [249]
    The phrase “housing affordability” appears in various documents within which the words are used in the narrower sense, for example:
    1. Exhibit 34 – Australian Bureau of Statistics (Reference period 2019 to 2020) – Housing Occupancy and Costs. Under the heading “Housing affordability”, at p 7, it is stated: One measure of housing affordability is a ratio of housing costs to gross household income, also known as a housing affordability ratio.
    2. Exhibit 35 – Australian Bureau of Statistics (Reference period 2019 to 2020) – Survey of Income and Housing, User Guide, Australia. Under the heading “Housing affordability” at p 15, it is stated: One way of examining housing affordability is to look at households whose spending on housing is likely to impact on their ability to afford other living costs such as food, clothing, transport, and utilities. A common threshold applied is the proportion of households spending more than 30% of their income on housing costs.
    3. Exhibit 36 – Gold Coast Homelessness Action Plan 2024. In part 1.4 at p 16, under the heading “Local factors contributing to homelessness”, it is stated: There are many factors that can affect a person’s risk of homelessness. Part 1.4.1, “Housing affordability” refers to housing stress, which is defined as those occupied private dwellings with low or very low household income and who are spending more than 30% of that household income on either rent or mortgage payments. 
  2. [250]
    In the economic literature, one measure of housing affordability is the ratio of housing costs to gross household income.  Both in society and within economic policy, the phrase housing affordability is commonly interchangeable with affordable housing.[87]
  3. [251]
    In my view, the phrase housing affordability does not assume a particular meaning in the field of economics which differs from its ordinary commonly understood contemporary meaning. When used in the narrow sense, it is doubtful that the commonly understood meaning of housing affordability has changed over time.  There is no warrant to resort to an ambulatory approach in the construction of s 9(f).
  4. [252]
    The planning scheme defines “affordable housing” in terms of a ratio but does not use that defined term within the uplift provision.  As previously held by this court, choice and affordability are relative concepts.  The criterion is to be read in the context of what the City Plan otherwise provides about choice and affordability.  Affordability is a broader concept, which includes both the initial and ongoing cost of housing and has a link to, amongst other things, the provision of choice and the city’s shape: Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32 per Rackemann DCJ at [82].
  5. [253]
    In the case of the MDRZ, the scheme seeks not only a generous mix of housing form and sizes[88] but also a generous mix of affordability outcomes that meet the needs for the locality.  A given proposal, on a particular site, might well contribute towards that generous mix within the zone even though the product within the development is not itself mixed: see Dajen Investments at [83].
  6. [254]
    As explained by Mr Buckley, areas of a large, locationally, and socially diverse city such as the Gold Coast are not homogenous; the cost of housing in one part of the city has no direct comparison to other parts and will be subject to its own supply and demand fluctuations:  Town Planning Joint Report at [93(a)].

Conclusion on the statutory construction point

  1. [255]
    The documents which have been placed before this court do not persuade me that the construction of “housing choice and affordability” in Archer and like cases is plainly wrong.

Economic need

  1. [256]
    At [39] of the Economic Joint Report, the subject site is stated to be in an area appropriate for higher density development.  The site is well located to the proposed future light rail expansion to Coolangatta and is within a growing urban area close to (and as part of) major employment nodes/activity centres.
  2. [257]
    I am assisted by Mr Duane’s evidence.  In his view, the proposed development will provide larger apartments together with a mix of smaller apartments at a highly sought after beachside location, adding to diversity and choice both on the site and in the local area. The site has many desirable attributes for those seeking coastal living opportunities. They include the site’s proximity to Coolangatta and the Gold Coast Airport, a highly desirable frontage to the ocean, proximity to social and community infrastructure and proximity to public transport (including future light rail): [137].
  3. [258]
    Mr Duane considers the proposal will provide housing choice in terms of larger attached apartments than typically exists, particularly in the study area.  At [140] and [141], he notes the proposal will:
    1. increase the number and proportion of 2-bedroom and 3-bedroom units;
    2. introduce a modern product into an area that is dominated by attached dwellings of various ages and older unit products; and
    3. introduce a product with a price point that will sit above the existing attached unit product, but likely below that of detached housing within close proximity of the site.
  4. [259]
    With reference to the concept of “affordable living opportunities” articulated in s 3.2.1 of the planning scheme, Mr Duane considers the proposal will contribute to housing affordability by creating density around well-located places with good infrastructure, transport, and proximity to employment centres.[89] Overall, the proposal will provide affordable living opportunities in a location with a high degree of existing and future infrastructure: [142].
  5. [260]
    Mr Duane says that while the proposed development will provide a particular net community benefit to a more affluent segment of the market to meet their housing needs and choices, that in turn frees up more modest accommodation or other sites to be developed for a less affluent population: [73].
  6. [261]
    In Mr Duane’s opinion, even if the housing choice and affordability limb required the provision of affordable housing, it would not be economically sensible or efficient to provide affordable housing in a beachfront development.  That is because the price point of any such dwelling would not be affordable for people in the lowest income brackets.[90]
  7. [262]
    Mr Turnbull’s evidence appeared, in part, to invite an assessment of need and housing choice and affordability based on the difference in height between the 23m overlay and the height of the proposal.  He agreed that adding 4 to 6 additional 3-bedroom units would contribute (albeit negligibly) to housing choice but maintained that affordability was not addressed by the provision of a new housing product targeting the affluent end of the market and at a significantly higher price point than the surrounding stock in the local area.[91]  In the result, he concluded there would be a negligible impact on housing choice and that affordability would not be improved.  It is not entirely clear if Mr Turnbull applied the broader interpretation of s 9(f) as construed by past decisions of this court.  I have considered Mr Turnbull’s evidence as part of the evaluative assessment, but I am not persuaded by it.
  8. [263]
    Mr Turnbull considers the area is undersupplied for retail and services and that the medium density residential zoning might actually exacerbate travel issues associated with a lack of local convenience retail and services.  Mr Turnbull agrees that leveraging existing public and private infrastructure is sound planning, but notes that the stage 4 extension of the G:link is not yet funded and is not likely to be realised within the next five years or so.[92]
  9. [264]
    The relevant infrastructure is depicted in the Economic Need Joint Report at pp 22 – 23, Maps 3 and 4, as well as a map prepared by Mr Duane (Ex 27).  Mr Duane notes that the retail at Kirra is more extensive than indicated by Mr Turnbull in his separate report at Map 1 (Ex 24).  Mr Duane further marked on his map the new Kirra Point development which has approval for retail floor space.[93]  He also notes that the Gold Coast Airport Master Plan 2024 (Ex 28) anticipates a future retail precinct.[94]
  10. [265]
    Mr Duane highlights Maps 3 and 4 which illustrate the major infrastructure within the surrounding area, including shopping centres, public transport, schools, education facilities, and sporting facilities.  Mr Duane notes there are major employment nodes within the surrounding area, including the Airport, Southern Cross University, the Coolangatta/Tweed area, and John Flynn Hospital.  Mr Duane considers that shopping facilities are conveniently located near the site. The closest major supermarket is within 2 km at Coolangatta/Tweed, and the shops at Kirra are within 1 to 1.1km. [95]
  11. [266]
    I accept Mr Duane’s comprehensive analysis of the existing and anticipated infrastructure and services.
  12. [267]
    From a town planning perspective, Mr Mewing considered that the development would contribute to housing choice and diversity by providing an infill product and contribute to housing affordability through the provision of additional housing stock, assisting in the planning ambition to alleviate pressures on supply.[96]
  13. [268]
    Mr Buckley considered the affordability dimension in relative terms and opined that the provision of additional stock assists positively in this regard.[97] The appellants’ town planning expert, Mr Holt considers the proposed development generally complies with this outcome.[98]
  14. [269]
    Finally, the appellants point out that a proposed development seeking a height uplift would almost always satisfy the broader construction presently applied by the cases; this, they submit, renders the criterion almost meaningless. On this point, the uplift provision is not confined to a building of this height and within this overlay. It applies to all height overlays and to single and multiple dwelling approvals. It is not for the court to second guess the various other circumstances in which the provision may or may not be satisfied.
  15. [270]
    I am satisfied the proposed development complies with s 3.3.2.1(9)(f).

Elements of local character or scenic amenity – Specific outcome 3.3.2.1 (9)(g)

  1. [271]
    The appellants allege that the proposed development does not comply with the outcome in s 3.3.2.1(9)(g) of the City Plan: protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features.
  2. [272]
    The appellants’ case is that the proposed development will not protect important elements of local character and scenic amenity as:
    1. the proposed development will be imposing upon and dominate the most important elements of the local identity and sense of place and character being the coastal edge (the ocean, the beach, and the dune system) and the Joe Doniger parkland, including the prominent pine trees, adjacent Pacific Parade;
    2. the proposed development will dominate the drive along Pacific Parade;
    3. the proposed development’s exceedance in height results in a highly prominent building that is visually dominant within the surrounding public realm areas and not consistent with local character.
  3. [273]
    From a town planning dimension, Mr Mewing is of the view the proposed development will not detract from existing views from any popular public outlooks towards the city’s significant natural features, or specific local character or scenic amenity elements.[99]  Mr Holt considers the proposed development generally complies with this criterion.[100]
  4. [274]
    The visual amenity experts agree that the proposed development does not unreasonably impact views from public outlooks: Visual Amenity Joint Report at [202].  In my view, these opinions are borne out by the photomontage report showing in particular the view from Kirra Hill: see Ex 5 at p 35.[101]  Further, for reasons already stated, the proposed development will not dominate Pacific Parade, the coastal edge, or the Joe Doniger parkland.
  5. [275]
    Mr Carter’s opinion in the Visual Amenity Joint Report relates to the protection of views from the Golden Four Drive development to the beach and ocean.  His concern is to protect the existing view potential of the appellants’ development. The issue of outlook and loss of views is dealt with in criterion (c).  
  6. [276]
    I am satisfied the proposed development complies with s 3.3.2.1(9)(g).

Density

  1. [277]
    Because the proposed development’s residential density is materially more intense than that permitted by the planning scheme, the appellants contend the development application ought to be dismissed on this basis also, apart from, and separately to, the asserted non-compliance with s 3.3.2.1(9).
  2. [278]
    Performance outcome PO5 of the MDRZ Code requires that density not exceed that shown on the Residential density overlay map.  The site is within the RD6 designation on the overlay map.[102]
  3. [279]
    The density of the proposed development is 1 bedroom per 14.9 square metres, compared to the overlay map provision for 1 bedroom per 33 square metres.  Other existing and proposed developments in the local area also exceed the density shown on the overlay map: Ex 37 and see, for example, the appellants’ proposed development with a density of 1 bedroom per 11.7 square metres.
  4. [280]
    The appellants’ case is that the exceedance of 121% from the prescribed maximum, represents a serious non-compliance with the planning scheme which is not answered by compliance with the uplift provision (if proved).  The appellants point out that the proposed development falls within the RD6[103] precinct, although has a density that accords with the RD8 precinct, which is the highest density precinct recognised by the Residential density overlay map.
  5. [281]
    This performance outcome is a quantitative benchmark, against which the appellants contend there is no alternative complementary solution which can be measured or realised.  The appellants seek to contrast the MDRZ Code planning control with the Centre Zone Code, which expressly contemplates in overall outcome 2(f) density in excess of that shown on the Residential density overlay map, subject to meeting prescribed outcomes.
  6. [282]
    In S & S No 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42, overall outcome 2(f) of the Centre Zone Code was stated by Williamson DCJ at [129] to be akin to a density uplift provision.  The appellants argue that the absence of an analogous provision within the MDRZ Code is a strong indicator that the densities prescribed by the overlay map are not intended to be exceeded within this zone.
  7. [283]
    At paragraph 8 of the appellants’ amended benchmark groupings (Ex 56), non-compliance with overall outcome 6.2.2.2(2)(b)(v) of the MDRZ Code is alleged:

Design and amenity

… “whether intended outcomes for building form/city form and desirable building height patterns are negatively impacted, including the likelihood of undesirable local development patterns to arise if the cumulative effects of the development are considered” …

  1. [284]
    The appellants argue that because the proposed development is materially inconsistent with the forward planning policy established by the Residential density overlay map, the starting point must be refusal of the development application.  Even if compliance with the uplift provision is achieved, the appellants contend that the density of the proposed development cuts directly across the scheme’s forward planning policy; and it is not the role of the court to gainsay the correctness of a planning instrument: Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209.
  2. [285]
    To inform the planning purpose of MDRZ Code PO5, it is appropriate, as the appellants submit, to consider the complementary higher order MDRZ Code overall outcomes. Within those outcomes, the appellants submit the only outcome that relates to residential density is overall outcome 6.2.2.2(2)(d)(ii) which provides: that built form:

“Built form … contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport.”

  1. [286]
    Because the subject site is within one of the higher density precincts, the appellants accept it potentially falls within a locality serviced by public transport.  However, it is argued that the site does not fall within the City’s “high rise coastal spine” and is not sufficiently near centres.  This is said to reinforce the planning intent that the subject site is not to be developed at the scale proposed.
  2. [287]
    While not defined, the ‘high rise coastal spine’ is said to be described in the Strategic framework Strategic intent 3.2.2 City shape and urban transformation, which explains where taller buildings will be delivered.  Within that framework, the site is not located within Southport, Surfers Paradise, Broadbeach, nor within a mixed use or specialist centre, nor within one of the seven additional prescribed urban neighbourhoods which are designated to accommodate high rise buildings.[104]
  3. [288]
    The respondent and co-respondent contend that the site is within the “high rise coastal spine”, which is to be interpreted more broadly as the connected coastal area.  The use of the words ‘high rise’ is said to connect the phrase to an area where a high-rise building is acceptable; this includes the subject locality by virtue of the uplift provision (in the context of the height overlay at 23m).
  4. [289]
    The coastal spine may be understood as the connected coastal area of the City of Gold Coast, which consists of both high rise and low rise built form.[105]  For the purposes of this appeal, it is not necessary to determine whether the high rise coastal spine should be interpreted in the narrow sense urged by the appellants.
  5. [290]
    The overall outcome in 6.2.2.2(d)(ii) does not require the transition to higher intensity areas to be located exclusively within centres, or within the high rise coastal spine, but rather near to both, assuming a narrow interpretation of the latter phrase.  If the phrase “high rise coastal spine” is understood in a broader sense, the proposed development is within it.
  6. [291]
    Irrespectively, as identified in Archer at [454], complementary higher order provisions which address intensity and density include ss 6.2.2.2(2)(a)(i) and (ii), b(i) and (ii), and (d)(ii), which state:[106]
  1. Land uses –
  1. include a range of medium density residential uses, predominantly permanent accommodation;
  2. such as Multiple dwellings, Dual occupancies, Dwelling houses on small lots and Community residences are included in the zone to provide a mix of dwelling types and increase residential density;

…

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

Orderly and economically efficient settlement pattern

  1. degree of public transport service within a 400 metre walking distance, being the most desirable distance for pedestrian access, and the ease and safety of pedestrian access to that service;
  2. proximity to major employment concentrations, centres, social and community infrastructure facilities and important amenity features, including the coast, recreational waterways and parkland;

…

  1. Built form (excluding Dwelling houses on small lots) –

…

  1. contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport.
  1. [292]
    As held in Archer at [455], these provisions indicate that the underlying planning intention is to locate higher density residential development in locations that are near centres, the high-rise coastal spine, social and community infrastructure facilities, and areas well-serviced by public transport.
  2. [293]
    This planning intention is also evident in 3.2.2 of the Strategic intent relating to “City Shape and urban transformation”, which includes:[107]

Urban renewal and transformation will see an intentional city shape emerge. Growth and development will be concentrated in an integrated network of well serviced urban places – places with good access to public transport, services and infrastructure assets, or places where improvements to public transport provide a catalyst for mixed use development and higher density living. Our city shape will be characterised by a diversity of well-connected, liveable urban places and business efficiency and productivity. Avoiding sprawl outside our urban areas will protect our world-class environment and spectacular scenic amenity and help to ensure our investment in public infrastructure is environmentally and financially sustainable.

  1. [294]
    The planning intention is further supported by Strategic outcomes in Part 3.3 “Creating liveable places” pursuant to s 3.3.1:[108]

…

  1. High intensity urban activity optimises land well serviced by public transport, infrastructure and community facilities and provides mixed use centres and specialist centres and urban neighbourhoods with improved amenity.
  1. Medium and higher intensity housing occurs in mixed use centres and specialist centres and urban neighbourhoods.
  1. Urban neighbourhoods accommodate a diverse and well connected network of urban places. Development is focused on mixed use centres and specialist centres and public transport hubs, and densities are higher in areas with high frequency public transport, community facilities and infrastructure capacity.

The town planning experts

  1. [295]
    In Mr Mewing’s experience, residential density is not an accurate indicator of development intensity because it is influenced more by the number of bedrooms than by gross floor area.  He also notes it is a metric which is typically exceeded by multiple dwellings in the Medium density and High density residential zones, whether code or impact assessable.  The major town planning implications of any excessive density are likely to be for capacity of urban services – primarily water supply, sewerage, stormwater, and the transport network: Ex 7 at [193], [194].
  2. [296]
    Mr Holt agreed that residential density and exceedances in density are largely a contributor to an unreasonable load on the infrastructure demand and capacity within a locality.  He agreed that the site location in relation to transport accessibility, proximity to centres, parkland and open space, and health and education facilities generally support an exceedance in dwelling density: Ex 7 at [201], [204].
  3. [297]
    Mr Mewing described the intent for development along the coastal spine of a scale that is medium to high rise, within an urban neighbourhood.[109]  In re-examination, he explained that the subject site has good connectivity to public transport services.  It is close to major employment concentrations and centres, and social and community infrastructure, including the airport and the university.  It is very close to a small neighbourhood centre and close to the Kirra and Coolangatta centres beyond.[110]
  4. [298]
    The appellants argue the site is sufficiently distant from the Coolangatta precinct and from other retail and non-retail services, such that it does not warrant a town planning outcome at this scale of density.  While given in the context of housing choice and affordability, the appellants rely upon Mr Turnbull’s evidence that the location is sparsely provided for in terms of local amenities and infrastructure. The local amenities are detailed at [264] to [265] above, with Mr Turnbull’s map not quite capturing their full extent.  While I accept that the Coolangatta centre is not within walking distance, the planning scheme does not impose this as a requirement.
  5. [299]
    I accept Mr Mewing’s and Mr Holt’s evidence that the site location supports an exceedance in density.
  6. [300]
    Further, as is evident from the findings above with respect to the built form and its impact, even though the proposed development exceeds the density limit, the exceedance does not sound in unacceptable planning and amenity impacts.
  7. [301]
    Although the proposed development does not comply with performance outcome PO5 of the Medium density residential zone code, the non-compliance is not a weighty consideration telling against approval.
  8. [302]
    I have reservations about the appellants’ characterisation of this single assessment benchmark as a planning strategy.  Even if it could be so regarded, I am satisfied that the approval of greater density in this case would not of itself cut across future achievement of the planned density in the Medium density residential zone, either in this location or more broadly across the Gold Coast.[111]

Adverse internal amenity impacts for future occupants

  1. [303]
    The appellants argue a final standalone reason for refusal as being internal amenity outcomes, because:[112]
  1. the design of the rear apartments concentrates living rooms westward, directly facing the Golden Four Drive development and obliquely towards the airport, thereby ignoring valuable ocean views, breeze, and sunlight to the east while also creating overlooking and privacy conflict with the adjoining development;
  1. there is inadequate communal open space for residents and functional private open space; and
  1. the proposed development’s front door and lobby area is not sufficiently visible or inviting, is cluttered by services and is too far removed from the street edge.
  1. [304]
    The appellants further argue that the bedrooms and living spaces of the proposed development will not enjoy adequate natural light access, particularly during the winter months.[113]
  2. [305]
    The relevant benchmarks appear in the Appellants’ Amended Benchmark Groupings at paragraph 9.  This issue is assessed against those benchmarks.
  3. [306]
    As to the building interrelationship issues, the appellants rely upon the submissions related to the “well managed interface” uplift criteria. This issue was the subject of considerable evidence and has been considered in the analysis of compliance with uplift criterion (9)(c).
  4. [307]
    The complaint regarding the front door and lobby has been considered and rejected in the finding that the proposed development complies with uplift criterion 9(e).
  5. [308]
    As is evident from the findings in respect of the uplift criteria, in my view the rear apartments of the proposed development do not result in unacceptable privacy and overlooking impacts.  I consider that the internal amenity of the rear apartments is appropriate given the zoning of the land and the development intensity sought by the planning instruments.  There is appropriate internal amenity because:
    1. To the extent the rear apartments will have oblique views to the airport and hinterland beyond, such views are likely to be availed of by some people.  This is consistent with the evidence of Mr Curtis who considered that, while maligned to some degree, there were people who would avail themselves of views to the Hinterland, even though there is an airport there.[114]
    2. Responding to the sub-tropical climate, the apartments to the rear have balconies, as an extension of indoor living space.
    3. Future residents can elect to purchase the rear apartments, no doubt at a different price point to the beach side apartments.
  6. [309]
    I accept, as stated by Dr McGowan, that the proposed development provides a high standard of amenity for users in terms of accessibility and quality of open space, the quality of the design of the building and landscape, and the amenity afforded by the location: Ex 9 at [251].
  7. [310]
    Mr Mewing considers the proposed development includes a high standard of communal and private open space, which is accessible, usable, safe, functional, attractive, suitably designed, and of good sizing and utility in compliance with PO11 and PO12 of the HRAD Code: Ex 7 at [124].
  8. [311]
    As to natural light, Mr King considers that daylight will be available to all units of the proposed development when the sun is up, and direct sunlight will be available at different times of the day as the sun moves over the development. In his opinion, acceptable amenity will be achieved.[115]
  9. [312]
    During cross examination, it was suggested to Dr Cochrane that non-operable windows would make for poor cross flow ventilation.  As submitted by the co-respondent, there is no reason why the windows depicted on the plans could not be made operable at the detailed design stage.  I do not consider the evidence establishes non-compliance with PO4(d) of the HRAD Code, which requires a slender tower form promoting efficient interior climate control.  In any event, there is deemed compliance with PO4 due to my finding there is compliance with AO4.1 and AO4.2.

Other relevant matters

  1. [313]
    The appellants do not appear to press the relevant matters originally notified in the Notice of Appeal, but rather now simply raise that there are no relevant matters that outweigh the serious non-compliances with the planning scheme and that there are no conditions offered that will cure the non-compliances.[116]
  2. [314]
    The co-respondent raises a number of relevant matters in support of approval.  Many of these have been dealt with by reference to the uplift criteria, and it is unnecessary to traverse them further.

Approval of the development in the exercise of the discretion

  1. [315]
    I find that the proposed development complies with s 3.3.2.1(9) of the City Plan.  To the extent that the proposed development does not comply with assessment benchmarks, the non-compliances are not such as to warrant refusal in this case.  In my assessment, the proposed development is highly meritorious and should be approved subject to lawful conditions.

Conclusion

  1. [316]
    I am satisfied that the co-respondent has discharged the onus. 
  2. [317]
    In due course, the development application will be approved subject to conditions.
  3. [318]
    To facilitate the preparation of a suite of conditions, the appeal will be returned to the applications list for review on 20 October 2025. The appeal will remain on that list unless and until a dispute arises about conditions of approval.

Footnotes

[1] Ex 19; and see the list of principal submitters at pp 126-128.

[2] At 33.3 metres in the plans, but due to a sag in the natural ground line, formally admitted by the co-respondent to be 33.79 metres: T3-81.

[3] Pursuant to s 45(5)(b) of the Act, the impact assessment may be carried out against, or having regard to, any other relevant matter, although this is not mandatory: see Abeleda v Brisbane City Council [2020] QR 441 at [32].

[4] This is defined to include any properly made submissions about the development application which have not been withdrawn: Schedule 24 – Dictionary.

[5] Citing Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793 at [53] to [54].

[6] Described as ‘recent’ in the Architecture Joint Report (Ex 11) and as comparatively ‘older’ in Visual Amenity Joint Report (Ex 9).

[7] Described in the Visual Amenity Joint Report (Ex 9) as a recently constructed 7-storey multiple dwelling.

[8] See generally the photographs captured by Dr McGowan on 10 June 2025 for the existing built form north to Graham Street (Ex 44); the taller building height analysis (Ex 37) and renders of ‘height uplift’ approvals (Ex 45).

[9] Consistently with Dr McGowan’s opinion at [193] of the Visual Amenity Joint Report (Ex 9).

[10] Mr Buckley – T2-79.

[11] The height analysis originally included 23 buildings, but number 20 on the list (a 12 storey, 34.5m tower at 99 Golden Four Drive) was struck out. The list also does not include 66 Pacific Parade: the development approval by Council for a 10 storey, 31.8 m building was set aside on appeal to the Planning and Environment Court in The Body Corporate for 62 Pacific.

[12] The development at 133 Golden Four Drive is stated in Ex 37 (and also the Town Planning Joint Report at p 51 and the Visual Amenity Joint Report at p 7) to be a 7-story, 23m building; this was corrected during evidence to be a 9-story building at approximately 32m and the subject of an appeal.

[13] Said to be an 11-storey building in Ex 37.

[14] See for example: Mr Curtis at T3-92; Mr Holt at T5-65; Mr Richards at T5-7.

[15] Town Planning Joint Report (Ex 7) at [43].

[16] City Plan Extracts (Ex 8) – Part 6 at 6.1(8) at p 128.

[17] City Plan Extracts (Ex 8) – Part 6 at 6.2.2.2 at p 129.

[18] City Plan Extracts at p 131.

[19] City Plan Extracts at p 137.

[20] City Plan Extracts – Part 3 Strategic framework at p 12.

[21] See extract from Council’s delegated report, Visual Amenity Joint Report at p 11.

[22] Architecture Joint Report – Mr Curtis at [177].

[23] Architecture Joint Report – Mr Curtis at [180].

[24] Architecture Joint Report – Mr Curtis at [184].

[25] Appellants’ Part A Submissions at [32].

[26] Town Planning Joint Report at p 10, [39].

[27] Appellants’ Part B Submissions at [8].

[28] See for example at T1-48, L40.

[29] Architecture Joint Report at [255].

[30] T6-59, L10.

[31] See for example, the Appellants’ Part B Submissions at [44].

[32] See for example the submissions at T7-37.

[33] Mr Buckley – T2-51.

[34] Town Planning Joint Expert Report at [104].

[35] Town Planning Joint Expert Report at [128].

[36] T4-20, L3.

[37] T3-87.

[38] T3-88, L6-24.

[39] T4-24, L31.

[40] Visual Amenity Joint Report at [190].

[41] Visual Amenity Joint Report at [197].

[42] Architecture Joint Report at [231].

[43] Architecture Joint Report at [244] to [245].

[44] City Plan Extracts – HRAD Code Overall outcome (2)(b), PO4, PO8.

[45] City Plan Extracts – MDRZ Code Overall outcome (2)(a)(vii), (b)(vii); HRAD Code Overall outcome (2)(a), (c), PO5.

[46] City Plan Extracts – HRAD Code Overall outcome 2(e), (k), PO6, PO7.

[47] Architecture Joint Report at [212] – Figure 54.

[48] Architecture Joint Report at [256]–[259].

[49] Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32 at [60].

[50] Appellant’s Part A Submissions.

[51] Mr Carter – Separate Report (Ex 23) at [54]; Visual Amenity Joint Report at [46] and p 15 – 20; Architecture Joint Report at [108].

[52] See for example MDRZ Code Overall outcomes (2)(a)(vii), (2)(b)(vi) and (vii), (2)(c)(ii), 2(d)(iv) and PO1(a), PO2(b); HRAD Code Overall outcomes (2)(a), (2)(c) and (2)(e); GDP Code Overall outcome (2)(a) and PO2(e) and (g) and PO8: conveniently extracted in Ex 56 at paragraph 3 and [45] of the Appellants’ Part B Submissions.

[53] Visual Amenity Joint Report at p 13.

[54] T6-50, L19-35.

[55] T6-50, L24-25.

[56] City Plan Extracts – definition at p 193.

[57] T2-57.

[58] See also Ex 45 at pp 18 to 20.

[59] T5-15.

[60] Light Amenity Separate Report at [13].

[61] Light Amenity Separate Report at [20].

[62] T2-84.

[63] See also Ex 40 – Comparison of Sun-Eye Views.

[64] Mr Powell – Separate Report (Ex 16) at pp 3 & 4, Figures 1 and 2.

[65] Mr Powell – Separate Report at [3].

[66] Mr Powell – Separate Report – Figure 2; see also T3-35.

[67] Mr Peddie – Separate Report (Ex 26) at pp 15 & 16.

[68] T5-92.

[69] Ex 26 at p 11, [4.18] and p 13, [4.26].

[70] T3-4 – T3-5.

[71] T3-19.

[72] Part A Submissions.

[73] T5-47 – 48.

[74] Visual Amenity Joint Report at [143] and [147].

[75] T4-22 – 23.

[76] As approached by Rackemann DCJ in Dajen v Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor; Ruffin & Ors v City of Gold Coast & Anor [2023] QPEC 32 at [68].

[77] See for example T6-37, L10; T6-39, L40.

[78] Both Mr Powell and Dr McGowan defer to the architects on the built form aspect of this criterion.

[79] Architecture Joint Report at pp 57, 61 and 62.

[80] Visual Amenity Joint Report at p 44.

[81] Visual Amenity Joint Report at p 45.

[82] Economic Joint Report at [73].

[83] In version 7 of the City Plan, this provision, in exactly the same terms, was (9)(e).

[84] See Undershaft (No 1) v Commissioner of Taxation (2009) 253 ALR 280 at [70] to [74] and Lynch v Commissioner of Police [2022] QCA 166 at [69]–[70], the latter expressing these principles for intermediate Courts of Appeal.

[85] Appellants’ Part B Submissions at [183].

[86] With the State planning policy in turn applying over the regional plan.

[87] See for example, Mr Duane’s evidence at T2-26, L40.

[88] Section 6.2.2.2(2)(b)(iv) at City Plan Extracts p 130.

[89] T2-9.

[90] T2-10.

[91] Economic Need Joint Report (Ex 12) at pp 55 & 56 [144]–[150].

[92] Economic Need Joint Report at p 21 [64], [65].

[93] T2-7.

[94] T2-8.

[95] Economic Need Joint Report at pp 19 & 20 [56]–[57].

[96] Town Planning Joint Report at p 27 [116].

[97] Town Planning Joint Report at p 23 [94].

[98] Town Planning Joint Report at p 30 [128].

[99] Town Planning Joint Report at p 27 [118].

[100] Town Planning Joint Report at p 30 [128].

[101] See also Figure NP14 at p 55 of the Visual Amenity Joint Report.

[102] Town Planning Joint Report at p 17 [63]: Figure 6.

[103] This is stated in the Appellants’ Part B Submissions at [194] and elsewhere as RD5, which I take to mean RD6 as stated at [207] of the outline.

[104] Appellants’ Part B Submissions at [199], [200].

[105] See for example Heidelberg at [43] where it was said the City Plan intends that the character of Palm Beach 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.

[106] City Plan (version 7) applied in Archer, but the relevant provisions mirror those in City Plan (version 10).

[107] As stated in Archer at [456] under City Plan (version 7): the relevant provisions mirror City Plan (version 10).

[108] As stated in Archer at [456] under City Plan (version 7): the relevant provisions mirror City Plan (version 10).

[109] T4-48, L25.

[110] T4-68.

[111] Cf: Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209, which concerned a re-zoning application.

[112] Appellants’ Part A Submissions.

[113] Appellants’ Part B Submissions at [222].

[114] T4-31.

[115] T2-83, L42.

[116] Appellants’ Part B Submissions at [228]; Part A at [38].

Close

Editorial Notes

  • Published Case Name:

    Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo Property Group Pty Ltd

  • Shortened Case Name:

    Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd

  • MNC:

    [2025] QPEC 18

  • Court:

    QPEC

  • Judge(s):

    Prskalo KC DCJ

  • Date:

    03 Sep 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 & Anor v Brisbane City Council & Anor [2021] QPELR 1003
1 citation
Jump To
Cite 1 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
3 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - (2020) 6 QR 441
Cite 3 - (2020) 6 QR 441
Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342
1 citation
Jump To
Cite 1 - (2008) QPELR 342
Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324
1 citation
Jump To
Cite 1 - [2008] QPELR 324
Archer & Anor v Council of the City of Gold Coast & Ors [2024] QPELR 387
3 citations
Jump To
Cite 1 - [2024] QPELR 387
Cite 2 - [2024] QPELR 387
Cite 3 - [2024] QPELR 387
Archer v Council of the City of Gold Coast [2022] QPEC 59
1 citation
Jump To
Cite 1 - [2022] QPEC 59
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
1 citation
Jump To
Cite 1 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2023] QPELR 1160
3 citations
Jump To
Cite 1 - [2023] QPELR 1160
Cite 2 - [2023] QPELR 1160
Cite 3 - [2023] QPELR 1160
Bell Co Pty Ltd v Council of the City of Gold Coast [2022] QPEC 32
1 citation
Jump To
Cite 1 - [2022] QPEC 32
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Dajen Investments Pty Ltd v Council of the City of Gold Coast [2023] QPEC 32
5 citations
Jump To
Cite 1 - [2023] QPEC 32
Cite 2 - [2023] QPEC 32
Cite 3 - [2023] QPEC 32
Cite 4 - [2023] QPEC 32
Cite 5 - [2023] QPEC 32
Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] LG 679
1 citation
Jump To
Cite 1 - [1990] LG 679
Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
3 citations
Jump To
Cite 1 - (1990) QPLR 209
Cite 2 - (1990) QPLR 209
Cite 3 - (1990) QPLR 209
G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9
2 citations
Jump To
Cite 1 - [2022] QPEC 9
Cite 2 - [2022] QPEC 9
Heidelberg Business Park Pty Ltd v Council of the City of Gold Coast [2025] QPEC 14
5 citations
Jump To
Cite 1 - [2025] QPEC 14
Cite 2 - [2025] QPEC 14
Cite 3 - [2025] QPEC 14
Cite 4 - [2025] QPEC 14
Cite 5 - [2025] QPEC 14
K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1
1 citation
Jump To
Cite 1 - [2011] QPEC 1
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
1 citation
Jump To
Cite 1 - [2014] QPEC 64
Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2015] QPELR 203
2 citations
Jump To
Cite 1 - [2015] QPELR 203
Cite 2 - [2015] QPELR 203
Lynch v Commissioner of Police(2022) 11 QR 609; [2022] QCA 166
2 citations
Jump To
Cite 1 - [2022] QCA 166
Cite 2 - [2022] QCA 166
McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283
3 citations
Jump To
Cite 1 - [2024] QPELR 283
Cite 2 - [2024] QPELR 283
Cite 3 - [2024] QPELR 283
McLucas v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56
1 citation
Jump To
Cite 1 - [2022] QPEC 56
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
2 citations
Jump To
Cite 1 - (2011) QPELR 406
Cite 2 - (2011) QPELR 406
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
S & S No. 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42
3 citations
Jump To
Cite 1 - [2024] QPEC 42
Cite 2 - [2024] QPEC 42
Cite 3 - [2024] QPEC 42
SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74
1 citation
Jump To
Cite 1 - [2006] QPEC 74
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
2 citations
Jump To
Cite 1 - (2007) QPELR 24
Cite 2 - (2007) QPELR 24
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast [2025] QPEC 13
2 citations
Jump To
Cite 1 - [2025] QPEC 13
Cite 2 - [2025] QPEC 13
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31
1 citation
Jump To
Cite 1 - [2022] QPEC 31
Tricare (Bayview) Pty Ltd v Gold City Council [2023] QPELR 1073
3 citations
Jump To
Cite 1 - [2023] QPELR 1073
Cite 2 - [2023] QPELR 1073
Cite 3 - [2023] QPELR 1073
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
2 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
4 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Cite 3 - [2022] QPELR 309
Cite 4 - [2022] QPELR 309
WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126
2 citations
Jump To
Cite 1 - [2010] QCA 126
Cite 2 - [2010] QCA 126
WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54
1 citation
Jump To
Cite 1 - [2009] QPEC 54
WBQH Developments Pty Ltd v Gold Coast City Council (2009) QPELR 748
2 citations
Jump To
Cite 1 - (2009) QPELR 748
Cite 2 - (2009) QPELR 748
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
1 citation
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Cite 1 - [2021] QPELR 1321
Wilhelm v Logan City Council & Ors [2021] QPELR 132
1 citation
Jump To
Cite 1 - [2021] QPELR 132
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
1 citation
Jump To
Cite 1 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
2 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
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Cite 1 - (2014) 201 LGERA 82

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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