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- Sullivan v Council of the City of Gold Coast[2025] QPEC 20
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Sullivan v Council of the City of Gold Coast[2025] QPEC 20
Sullivan v Council of the City of Gold Coast[2025] QPEC 20
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Sullivan & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 20 |
PARTIES: | PATRICK SULLIVAN, LINDA OWENS, DENIS OWENS, MICHELLE TEYS, MICHAEL DAVIDSON & TRACEY DAVIDSON (Appellants) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) AND BELLA FELICITA NO 2 PTY LTD ACN 655 775 367 (Co-Respondent) |
FILE NO/S: | 571 of 2025 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 19 September 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 – 18 September 2025 |
JUDGE: | Everson DCJ |
ORDER: | Appeal to be allowed in part |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of a change to a material change of use to establish a multiple dwelling in the Medium density residential zone. PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – relevant matters. |
CASES: | Abeleda & Anor v Brisbane City Council & Anor (2020) 6 QR 441 Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Catterall v Moreton Bay Regional Council [2020] QPEC 52 McEnearney v Council of the City of Gold Coast (2024) 261 LEGERA 396 Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPELR 309 |
LEGISLATION: | Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) Planning Regulation 2017 (Qld) |
COUNSEL: | E J Morzone KC and D C Whitehouse for the Appellants J J Ware for the Respondent M J Batty KC and N A Batty for the Co-Respondent |
SOLICITORS: | TelcoTech Legal for the Appellants HopgoodGanim Lawyers for the Respondent MacDonnells Law for the Co-Respondent |
Introduction
- [1]This is a submitter appeal against the decision of the respondent to approve a development application for a development permit for an other change to a development permit for a material change of use to establish a multiple dwelling (“the proposed development”) on land situated at 133 Golden Four Drive, Bilinga (“the site”).
The proposed development
- [2]The site has the benefit of a current development approval for a 7-storey residential apartment building that accommodates 11 dwelling units. It is 23 metres in height and incorporates a basement car park (“the approved development”). The proposed development seeks to increase the height of the approved development to add 2 additional storeys resulting in a 9-storey building, 32.85 metres in height and an increase in the number of units from 11 to 13. The basement car park is to be removed and ground level car parking is to be provided for 26 resident vehicles utilising various mechanical car lifts. Communal open space is increased from 114.75m² to 124.6m² and is moved from ground level at the rear of the building to a terrace at the western corner of level one overlooking Golden Four Drive. These design changes result in reduced setbacks at ground level and at level one of the building. The architectural treatment of the building has been altered to incorporate significant landscaping elements, particularly at the front, at ground level and at the roof terrace of the building. The proposed development also creates a greater degree of openness as a consequence of design changes to the south-east corner of the building.[1] The original development had two darker top stories. The proposed development has three which are shown to be chocolate coloured in the photomontages (“a choc top”).[2]
The site and the surrounding area
- [3]The site is located on the western side of Golden Four Drive, within a narrow linear band of residential development, on the southern Gold Coast. To the east is Pacific Parade which runs parallel to the edge of the beach. To the west is Golden Four Drive which runs parallel to the Gold Coast Highway. These roads are joined by a series of short streets resulting in a finger of land two lots wide. Understandably, the focus of the urban development is the nearby beach.[3] Pursuant to the Gold Coast City Plan 2016 (“the planning scheme”)[4], the site is within the Urban area on Strategic framework map 1 and in the Consolidation area on Strategic framework map 9.[5] The site is within the Medium density residential zone.[6] Pursuant to the Building height overlay map, it is part of an area subject to a building height of 23 metres which extends from Mills Street to the south to Musgrave Street in the north.[7] All of the relevant experts who gave evidence at the hearing of the appeal identified this as the appropriate local area for the context of assessing the proposed development, with the exception of Mr Middleton and Mr Butcher, the architect and the visual amenity expert who gave evidence on behalf of the appellants. In circumstances where the area is well defined by the beach on one side and the highway on the other, topography is uniform and the planning controls identical, the local area identified above appears appropriate for this purpose.
- [4]The more restricted local areas identified by Mr Middleton and Mr Butcher, which they contend are appropriate, given the relative absence of high-rise buildings to date, fail to acknowledge that the character of the local area calls for consideration both the planned and existing local identity.[8] I will therefore base my assessment on the local area described above (“the local area”) which contains numerous existing and approved buildings above 6-storeys scattered within it, including buildings with partial built-to-boundary built form.[9] It is uncontentious that the local area is an area in transition with smaller residential buildings increasingly being replaced with larger residential multiple dwellings.
- [5]The site itself has an area of 759m² and a frontage of 15 metres. Adjoining the site to the north is a 4-storey multiple dwelling called Nusa, which is where all of the appellants live. All but one of the submissions in respect of the proposed development came from occupants of this building and generally raised concerns relating to various perceived amenity impacts occasioned by it.[10] To the south the site is adjoined by an older 3-storey multiple dwelling known as Lanai, and to the east is a larger 4-storey multiple dwelling development opposite the beach called San Chelsea.[11]
The statutory assessment framework
- [6]
- The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—
- the P&E Court were the assessment manager for the development application; and
- the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.
- [7]As the proposed development was impact assessable, s 45 of the Planning Act 2016 (Qld) (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the planning scheme.[14] It must also be carried out having regard to matters prescribed by regulation. In this regard s 31(1) of the Planning Regulation 2017 (Qld) states that I must have regard to “any development approval for, and any lawful use of, the premises or adjacent premises”,[15] and “the common material”,[16] which includes the properly made submissions referred to above. Further, the assessment may be carried out having regard to any other relevant matter other than a person’s personal circumstances, financial or otherwise[17]
- [8]As the application for the proposed development is a change application, the assessment is more constrained than it otherwise would be. In McEnearney v Council of the City of Gold Coast,[18] Flanagan JA cited[19] with approval the observations of Williamson KC DCJ in Catterall v Moreton Bay Regional Council.[20] These were that the inclusion of the phrase “in the context of the development approval” in s 82(4) of the PA made it clear that the assessment and decision-making process occurs in the context that the application is one to change an existing development approval, as distinct from a fresh development application.[21]
- [9]Otherwise, in determining an appeal about a development application, the court is conferred a wide discretion pursuant to s 60 of the PA to approve all or part of the application, impose development conditions on the approval, or refuse the application. As the Court of Appeal observed, the ultimate decision of the Court “is a broad evaluative judgement.”[22] The weight to be given to each of the factors in undertaking this assessment is a matter for the decision-maker.[23]
Relevant provisions of the planning scheme
- [10]As the site is within the Medium density residential zone, the Medium density residential zone code (“MDRZC”) applies. Relevantly, code assessable development that complies with the purpose and overall outcomes of the code complies with the code, and if such development complies with the performance or acceptable outcomes, it complies with the purpose and overall outcomes of the code.[24] Section 6.2.2.2(2) provides that the purpose of the MDRZC will be achieved through overall outcomes which includes “ whether adjoining residential amenity is unreasonably impacted”.[25] Further, PO1 then goes on to say that:
Setbacks:
- assist in the protection of residential amenity;
- allow for access around the building;
- contribute to the streetscape; and
- allow for on-site car parking.
…
Relevantly, AO1 states that side and rear setbacks for a building height of up to 4.5 metres can be 1.5 metres.[26]
- [11]Although the site is designated in the Building height overlay map as subject to a building height of 23 metres, Specific outcome 3.3.2.1 of the Strategic framework of the planning scheme provides as follows:
- Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:
…
- a reinforced local identity and sense of place;
- a well-managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;
…
- an excellent standard of appearance of the built form and street edge;
…[27]
- [12]Pursuant to s 14 of the planning scheme, the Strategic framework prevails over all other components to the extent of any inconsistency.[28]
The issues in dispute
- [13]The issues in dispute in the appeal narrowed by negotiation between the parties and various conditions offered by the co-respondent.[29] Their latest iteration is set out in Exhibit 1A. They are:
- Whether, within in the context of the existing development approval, the proposed development achieves compliance with s 3.3.2.1(9) (b), (c) and (e) of the Planning Scheme. In particular:
- Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable (sub-paragraph c of Specific outcome 3.3.2.1(9)) having regard to:
- The reasonable expectations provided by the MDRZ Code for setbacks, in particular PO1 and the incursion into setbacks caused by the ground level, level 1 and Level 4 to 9 [sic] of the proposed development shown on the elevations on pages 30, 31 and 33 of Exhibit 7) [sic];
- The proposed development presenting as physically overbearing to existing surrounding development being 135 Golden Four Drive (Nusa), 146 Pacific Parade (San Chelsea) and 131 Golden Four Drive (Lanai) in consequence of the combined height of the building, proposed setbacks and the architectural treatments of the building;
- Inadequate provision of landscaping which fails to effectively mitigate or soften the impacts of the built form.
- Does the proposed development reinforce the local identity and sense of place (sub-paragraph b of Specific outcome 3.3.2.1(9)) having regard to:
- the part of the local area in which the proposed development is located having less variation in the building height and building heights [sic] and being predominantly low;
- the height, bulk and scale of the proposed building being at variance with its contextual setting.
- Does the proposed development achieve an excellent standard of appearance of the built form and street edge (sub-paragraph e of Specific outcome 3.3.2.1(9)) having regard to:
- the built form, substantial increase in hardstand, reduced setbacks and inadequate landscaping at the ground level and level 1 of the building’
- the black box form on top of the building exacerbating and not mitigating the impact of the additional height;
- the north and south elevations presenting in a flat dominant form;
- Whether there are any relevant matters that favour the exercise of discretion in favour of approval.
As noted above, the “black box” referred to in paragraph 1(c)(i) is not black or indeed a box. It is a reference to the choc top.
Discussion
- [14]A number of experts gave evidence at the hearing of the appeal. Each of the parties engaged an architect. Mr Curtis gave evidence on behalf of the co-respondent, Mr Richards gave evidence on behalf of the respondent, and Mr Middleton gave evidence on behalf of the appellants. Experts in the field of visual amenity also gave evidence. Mr Curtis also gave evidence in this capacity on behalf of the co-respondent, Dr McGowan gave evidence in this capacity on behalf of the respondent and Mr Butcher gave evidence in this capacity on behalf of the appellants. Both Dr McGowan and Mr Butcher are landscape architects and gave evidence in this regard. The co-respondent called an additional landscape architect, Mr Brooksby, whose evidence was restricted to matters relating to landscaping itself. In addition, I received reports from the following town planners: Mr Buckley, who was engaged by the co-respondent; Mr Ryan, who was engaged by the respondent; and Mr Adamson, who was engaged by the appellants.
- [15]In respect of architectural matters, I prefer the evidence of Mr Curtis and Mr Richards to that of Mr Middleton. Mr Middleton based his opinions about the size and bulk of the building on the character he divined from the limited precinct which he analysed as contributing to the character of the local area.[30] His consideration of character failed to have regard to the wider local area identified by me above.[31] He also failed to appreciate the considerable flexibility offered by the planning scheme in complying with the setback requirements of the MDRZC.[32]
- [16]In my view, Mr Richards accurately articulated the merits of the proposed development in the following terms:
Specifically, the primary impacts to NUSA are on the lowest for [sic] levels of the 2024 approval. The additional floor levels do not have a significant additional impact.
In relation to the lower four levels, there are some additional impacts with the treatment of the ground level as car parking is located at this level and not in a basement [sic]. The interface to NUSA is to a driveway and the form of the parking does not have an impact on the level one[.] [sic] Ground level impacts are moderated by planter boxes on the level one [sic] with setbacks enabling ground level deep planting and planters to fall over the edge within the property.
The building form, bulk, scale and architectural expression is well considered and exhibits design excellence. It is inventively expressed in four elements, a base at ground level, a mid-rise element with a white frame and introduced curves, an upper level element where the floor plans change expressed as a darker form and a visually lighter roof terrace and pergola.
The aggregation of these four elements breaks up the scale and provides a strong visual transition to the lower scale developments nearby.
The apartment planning of the building is an improvement on the 2022 approval, with the primary outlook for living rooms on the street apartment now facing and overlooking to the street and not primarily to a side boundary.[33]
- [17]Turning to the disputed issues themselves, the first is whether the proposed development achieves a well-managed interface with and relationship to nearby development, having regard to the reasonable amenity expectations of residents. In this regard, the appellants take issue with the setbacks provided and allege that the proposed development presents as physically overbearing to its neighbours as a consequence of the combination of its height, setbacks and architectural treatments. Further, it is alleged that inadequate landscaping is provided and that this fails to mitigate or soften the impacts of the built form.
- [18]The original development was located centrally on the site. It was set back between approximately 2.5 and 3 metres from the northern boundary and generally a similar distance from the southern boundary. It was set back approximately 3.4 metres from the eastern boundary.[34] Principally by utilising car lifts at the ground level, the built form is now much closer to each of these boundaries.[35] At ground level and to a height of 4.3 metres, car lifts are now present across almost all of the eastern boundary. Although they are landscaped extensively, they were originally only set back .75 of a metre. I consider this inadequate in the circumstances. The co-respondent has now agreed to a condition that they are set back 1.5 metres from the eastern boundary where the interface is at the rear of the adjoining multiple dwelling complex. This complies with AO1 in the MDRZC. I am of the view that this setback is adequate in the circumstances where it permits 1.5 metres of deep planting between the built form and the boundary.
- [19]There will be a small build-to-boundary intrusion of a car lift into the setback to Lanai to the south for a distance of 13.5 metres in circumstances where the built form is to be landscaped extensively at the top with trailing vegetation cascading downwards. This overlooks a services area at the rear of Lanai. There is a similar degree of built form very close to the northern boundary at the rear of the Nusa building, which is less than a metre from this boundary. Further, along this boundary there is another built-to-boundary car lift which is again 4.3 metres high and approximately 13.5 metres long. It is located about halfway along from the street frontage. Between it and the street is an elevated walkway and outdoor entertainment area which is buffered by landscaping.[36] The landscaping on top of the car lifts is much more extensive than that proposed to be located adjacent to the walkway and the outdoor entertaining area. This boundary adjoins the driveway of the Nusa development; but at its height of 4.3 metres, the top of the built form is a little higher than the balconies at level one of this neighbouring development.[37]
- [20]I accept the evidence Brooksby that the proposed development incorporates 248m² of landscaping as compared to the approved development which only provided 131m² of landscaping.[38] Further, at level one a total area of 109m² of landscaping is to be provided compared to 7.8m² for the approved development. I accept the evidence of Mr Brooksby that the provision of irrigation and maintenance infrastructure and the appropriate conditioning of the proposed development will ensure that the landscaping is appropriately maintained.[39] When considering the extent of the landscaping, together with the condition offered by the co-respondent to install opaque glass adjacent to the walkway and outdoor entertainment area along the northern boundary, it is unsurprising that under cross-examination Mr Butcher conceded that he did not contend that there were problems with impacts of the proposed development along this boundary at ground level or at level one.[40]
- [21]For the higher levels of the proposed development, the appellants contend that the built form is not set back to the extent required by the Acceptable Outcomes in the MDRZC, and that it is overbearing. Such an approach requires caution. As Brown J observed in Trinity Park Investments Pty Ltd v Cairns Regional Council:[41]
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.
- [22]It appears the planning scheme provides a number of pathways to demonstrating appropriate setbacks through the purpose and overall outcomes and also through PO1 of the MDRC. These are qualitative measures and do not prescribe any particular dimension at any point in the height of a structure. Moreover, as s 1.4 of the planning scheme provides that the Strategic framework prevails over all other components to the extent of any inconsistency for impact assessment,[42] it is not appropriate to read a metric into the assessment contemplated by s 3.3.2.1(9)(c). In my view the design elements evident in the proposed development, which see it progressively set back from the adjoining neighbours to the north and south as it increases in height, are such that when coupled with the substantial landscaping that is now provided which assists in articulating the building, that the setbacks are appropriate. The landscaping effectively mitigates impacts from the increased built form close to boundaries and the overall design approach of the proposed development is such that it is not physically overbearing to neighbouring properties. Privacy concerns are further addressed by a condition proposing opaque glass windows at upper levels. Accordingly, I find that it achieves a well-managed interface with and in relationship to nearby development, including the reasonable amenity expectations of nearby residents, and therefore complies with s 3.3.1.(9)(c).
- [23]I turn now to consider whether the proposed development reinforces the local identity and sense of place. The proposed development is a good example of a beachside high-rise multiple dwelling in an area where this development is contemplated by the planning scheme. It occurs where other similar development is occurring nearby.[43] In my view it complies with s 3.3.2.1(9)(b) of the planning scheme.
- [24]The final matter for consideration is whether the proposed development achieves an excellent standard of appearance of built form. The Macquarie Concise Dictionary defines “excellent” as “possessing excellence or superior merit; remarkably good”.[44] For the reasons set out in the opinion of Mr Richards above, I have no difficulty in concluding that the proposed development is of superior merit. It is definitely an improvement on the approved development in terms of its articulation, its roof treatment and by the provision of enhanced landscaping. Although aesthetic tastes may differ as to the merits of the palette chosen, particularly for the upper three levels resulting in the choc top, this is something on which minds may legitimately differ, without detracting from its architectural merit. I have no difficulty in concluding that the proposed development provides an excellent standard of appearance of built form in accordance with s 3.3.2.1(9)(e) of the planning scheme.
Conclusion
- [25]I find that the contentious provisions of the planning scheme have been satisfied, justifying the increase in building height sought by the proposed development pursuant to s 3.3.2.1.
- [26]The planning scheme contemplates development to well over 30 metres in height in the local area and affords considerable design flexibility. This extends to built form and setbacks. Residents must therefore contemplate this scale and form of development when reflecting on the anticipated character of the local area.
- [27]If I am wrong in my assessment in this regard, in my view the following relevant matters nevertheless warrant approval of the proposed development:
- It provides a significantly improved architectural design and landscaping outcome compared to the existing approval; and
- In circumstances where the appellants had all lost any views they had across the site as a consequence of the approved development,[45] the design changes attributable to the proposed development do not appear to have any meaningful consequence for them.
- [28]Accordingly, the appeal will be allowed in part to enable the provision of amended conditions agreed between the parties and offered by the co-respondent in the course of the hearing.
Footnotes
[1]Ex. 2, pp 55, 56; Ex. 3, pp 41 and 42; Ex. 5, pp 37; Ex. 7, pp 5, 20 and 21; Ex. 8, pp 25 and 45.
[2]Ex. 8.
[3]Ex. 2, para 32; Ex. 11, Fig. 1.
[4]Version 11, Ex. 12.
[5]Ex. 5, para 47.
[6]Ibid, para 54.
[7]Ibid, para 64; Ex. 2, Fig. 11.
[8]Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 at [299].
[9]Ex. 11, Fig. 1; Ex 32, T2-5 ll 20–41.
[10]Ex. 3, para 14; Ex. 15, Vol. 6.
[11]Ex. 20, para 14.
[12]Planning and Environment Court Act 2016 (Qld) s 43.
[13]Ibid, s 45(2).
[14]Planning Act 2016 (Qld), s 45(5)(a)(i).
[15]Section 31(1)(f).
[16]Section 31(1)(g).
[17]Planning Act 2016 (Qld), s 45(5)(b).
[18](2024) 261 LEGERA 396.
[19]At 409, [33].
[20][2020] QPEC 52.
[21](2024) 261 LEGERA 396 at 409, [33].
[22]Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 at 1001, [59].
[23]Abeleda & Anor v Brisbane City Council & Anor (2020) 6 QR 441 at 458, [43].
[24]Section 5.3.3(4)(c), Ex. 12, pp 102–103.
[25]Ibid, p 112.
[26]Ibid, p 116.
[27]Ibid, p 29.
[28]Ibid, p 5.
[29]Ex. 16.
[30]Ex. 3, paras 170 and 171.
[31]T3-108, ll 15–45 to T3-109, ll 1–10.
[32]Ex. 3, para 172.
[33]Ex. 3, paras 347–350.
[34]Ex. 7, p 6.
[35]Ibid, p 21.
[36]Ex. 7, p 21; Ex. 5, pp 130–132.
[37]Ex. 7, p 38.
[38]Ex. 2, para 358.
[39]Ex. 10, pp 9–13; T2-44, ll 15–26.
[40]T3-34, ll 29–38.
[41][2022] QPELR 309 at 345, [110].
[42]Section 1.4(1)(b), Ex. 12, p 5.
[43]Ex. 11, Fig. 1.
[44]4th Edition, 2008.
[45]T3-31, ll 35–44.