Planning and Environment Court of Queensland dismisses a submitter appeal against the approval of a proposed four-storey residential dwelling where the submitter contended the height ought to only be three storeys

In brief

The case of Matthew Lawrence v The City of Gold Coast & Anor [2022] QPEC 19 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the City of Gold Coast (Council) to approve a development application for a material change of use for a four-storey residential apartment building in Mermaid Beach on the Gold Coast (Proposed Development).

The key issue for the Court to consider was the height of the Proposed Development. The Building Height Overlay Map in the Gold Coast City Plan 2016 (version 7) (City Plan) relevantly maps the site as being in an area requiring no more than three-storeys and 15 metres in height. Section 3.3.2.1(9) of the Strategic Framework in the City Plan, however, permits increases in building height up to a maximum of 50 per cent where all of the following outcomes are satisfied:

"(a) a reinforced local identity and sense of place;

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

(c) varied, ordered and interesting local skyline;

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

(e) housing choice and affordability;

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

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

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

The contentious outcomes in the appeal were those in Items (a), (b), (c), (e), and (f) above, with which the Court found there was compliance and therefore dismissed the appeal.

Court finds that, in accordance with section 3.3.2.1(9)(a), the Proposed Development would reinforce local identity and sense of place

The Court considered the evidence of the parties' visual amenity experts and found that the Proposed Development's inclusion of design elements such as setbacks and architectural treatments to avoid a sense of overbearing would assist it in reinforcing the existing local identity of the area. Furthermore, the Court highlighted that this criterion must be assessed with regard to not only what currently exists in the local area, but also what the City Plan intends, which in this instance is to prioritise greater development intensity. The Court concluded that the Proposed Development is a "…well-designed, well-articulated and well separated coastal multiple dwelling which is a modern reinforcement of the beachside local identity and sense of place…" (at [31]).

Court finds that, in accordance with section 3.3.2.1(9)(b), the Proposed Development satisfies the requirement for a well-managed interface with, relationship to, and impact on nearby development

The Court again considered the evidence of the parties' visual amenity experts, but found that the evidence given by the visual amenity expert for the submitter was too narrow as it did not consider what the City Plan intended (at [32]). The visual amenity experts for the Council and Applicant opined that the Proposed Development will achieve a sense of building separation, breathing space around the building and, due to the reduced roof setbacks, will not impact on the existing amenity afforded to the adjoining residential properties (see [32] and [33]). The Court therefore concluded that the requirement was complied with.

Court finds that, in accordance with section 3.3.2.1(9)(c), the Proposed Development will contribute to a varied, ordered, and interesting local skyline

The parties' architects agreed that the general surrounds of the Proposed Development includes an eclectic mix of existing residential buildings, which are diverse in age, style, built form, and materiality. The Court was satisfied that the Proposed Development will contribute to a varied, ordered, and interesting skyline, as required by the City Plan, by providing a flatter roof than the roof formations of adjoining buildings (at [35] and [36]).

Court finds that, in accordance with section 3.3.2.1(9)(e), housing choice and affordability must be considered within the context of the area

In considering this provision, the Court differentiated between "affordability" and "affordable housing", which is defined in the City Plan as "[h]ousing that is appropriate to the needs of households with low to moderate incomes". The Court considered the evidence of the parties' economists and found that, given the high-priced nature of the Mermaid Beach market, the concept of affordability must be "seen in its context" (at [38]). The Court concluded that the Proposed Development met the requirement for housing choice and affordability, as it offers a "…three-bedroom residential option with proximity to public transport at a price point that is lower than a comparable dwelling house, as well as a single bedroom unit" (at [39]).

Court finds that, in accordance with section 3.3.2.1(9)(f), the Proposed Development protects local character and scenic amenity

Finally, the Court concluded that the Proposed Development met the requirement to protect local character and scenic amenity as it is overall well-articulated, not overbearing, and will protect the elements of local character such as views from the nearby St Johns Park (at [40]).

Conclusion

The Court found that the Proposed Development met the requirements in the Strategic Framework in the City Plan which allow the building height to exceed that on the Building Height Overlay Map, and therefore dismissed the appeal.