Planning and Environment Court has refused a proposed development for an office for the reason that it was in severe conflict with the Planning Scheme and there was no "relevant matters" to justify the approval of the proposed development

In brief

The case of Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5 concerned an appeal to the Planning and Environment Court against the decision of the Gold Coast City Council (Council) to refuse an impact assessable development application to change a development the subject of a development approval from showrooms and cafe to a single ground floor office.

The proposed development involved changes to the approved built form in regards to its internal layout, minor changes to the external facade and a reconfiguration of the car park to increase the car parking spaces from 32 to 37 spaces.

The site of the development application was within the Mixed use zone - Fringe business precinct code (Mixed Use Zone Code) of the Gold Coast City Plan (Planning Scheme) and was impact assessable as the proposed development exceeded the gross floor area of 200m².

The Applicant alleged that although the development application was inconsistent with the Mixed Use Zone Code, the inconsistencies were minor in nature and there were a number of "other relevant matters" which justified the proposed development, including planning need, the efficient use of land, the absence of adverse impacts, and the absence of adverse submissions. The Council alleged that the proposed development ought to be refused for the reasons that it was fundamentally inconsistent with the Council’s centres strategy in the Planning Scheme.

In order to determine the appeal, the Court considered the following:

• Was the proposed development inconsistent with the Council’s Planning Scheme?

• Did the "other relevant matters" submitted by the Applicant justify the proposed development?

The Court ultimately dismissed the appeal for the reasons that the proposed development significantly conflicted with the Planning Scheme and the "other relevant matters" submitted by the Applicant to justify the proposed development were not persuasive.

Court considered "other relevant matters" as the proposed development was impact assessable

The Court noted that as the proposed development was impact assessable, the Court, to the extent of the disputed issues, must assess the development application against the planning scheme in effect at the time the development application was properly made.

Further, as the development application was a change application, the assessment must be carried out only to the extent the matters are relevant to assessing and deciding the change application. Section 45(5)(b) of the Planning Act 2016 (PA) relevantly provides:

"(5)  An impact assessment is an assessment that –

 …
 (b)  may be carried out against, or having regard to, any other relevant matter, other than the person’s personal circumstances, financial or otherwise."

The Court can therefore take into consideration any "other relevant matters" in order to approve or refuse an impact assessable development application.

Was the proposed development inconsistent with the Council’s Planning Scheme?

The Court considered the following relevant provisions under the Council’s Planning Scheme:

• Theme 3.4 “making modern centres” of the strategic framework: The Court noted that the strategic outcomes of this theme addressed strengthening and diversifying the economy where centres are to be located in central locations for mixed use economic activity and community facilities which are integrated within residential populations; out-of-centre development is to be prevented; and compact, pedestrian orientated and vibrant mixed use centres, which have major concentrations of business, employment, community, cultural, retail and residential uses, are promoted.

• Section 3.5.2(6) of the Planning Scheme: The Court noted that under this section, showrooms are expressly contemplated under the specific outcomes for the fringe business precinct, whereas large offices are not encouraged.

• Mixed Use Zone Code of the Planning Scheme: The Court noted that under section 6.2.19.2(3) of the Mixed Use Zone Code, land uses are to consist of mainly high quality showrooms, bulking goods retailing, service and low-impact industry uses and outdoor sales yards. The Mixed Use Zone Code further stated that shops and offices are for very small tenancies which service only the immediate area and do not exceed a gross floor area of 200m² under Acceptable Outcome 14 of the Mixed Use Zone Code.

The Court accepted the evidence by the Council's expert economist which stated that the proposed development may have the potential to impact on the orderly development of higher order centres. The Court also accepted the evidence by the Council's expert town planner which stated that the proposed development was not accessible to public transport, which is not desirable for a large office-based commuter work force.

The Court held that the overall planning strategy for the Mixed Use Zone Code is to limit the size of offices as large offices are intended to be located in centres where they can be appropriately co-located with other complementary uses and public transport. Therefore, the Court held that the proposed development was an out of centre development, which was inconsistent with the centres strategy and the Mixed Use Zone Code.

Did the "other relevant matters" submitted by the Applicant justify the proposed development?

The Applicant relied upon four “other relevant matters” in order to justify the proposed development; being planning need, the efficient use of land, the absence of adverse impacts, and the absence of adverse submissions.
The first relevant matter relied upon by the Appellant concerned planning need. The concept of planning need was discussed in Isgro v Gold Coast City Council & Anor [2003] QPELR 414; [2003] QPEC 2 at [21] where the Court relevantly stated:

"Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community…Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met…".

The Applicant argued that there was a need for the proposed development as large, ground level office spaces with parking were not being adequately met in the centres designated in the Planning Scheme. The Applicant supported this argument with the evidence provided by a representative of a property and financial services group that made a commitment to lease the proposed development. The Court was not satisfied with the evidence provided by the representative for the following reasons:

• the representative conceded that the configuration of the proposed development was just a preference and other office buildings which were not entirely on the ground level would be adequate; and

• the representative stated that similar office buildings in one of the centres designated under the Planning Scheme would also meet the preferences of the group.

In addition to this evidence, the joint report of the economic experts concluded that it was "inherently difficult to determine the level of demand" for the proposed development. The economic expert for the Council also noted that there were a number of sites located within centres designated in the Planning Scheme which could accommodate the proposed development. Therefore, the Court held that the Applicant had failed to demonstrate that there was a latent unsatisfied demand for the proposed development.

The second relevant matter relied upon by the Applicant was the efficient use of land. The Applicant argued that there was no demand for showrooms, but a demand for an office. This submission was supported by evidence provided by the National Property Manager of the Applicant who stated that there was no demand for a showroom as they were unsuccessful in obtaining a retailer to lease the site. The Court found that the evidence provided by the National Property Manager was vague and did not establish that there was no demand for showrooms on the site.

The third relevant matter relied upon by the Applicant was that the proposed development would not cause adverse impacts to amenity or the economy. It was accepted by the Court that although this argument is a relevant matter which may be considered in the assessment of the proposed development, by allowing the development application it would cause a significant compromise to the centres strategy under the Planning Scheme, which is still in its infancy.

The final relevant matter relied upon by the Applicant was that no submissions were lodged in respect of the proposed development. The Court, however, gave little weight to this argument due to the severe conflict with the centres strategy of the Planning Scheme.
The Court therefore found that the relevant matters relied upon by the Applicant did not justify the development application.

Conclusion

The Court held that the proposed development was in significant conflict with the centres strategy of the Planning Scheme for the reason that large offices, such as the proposed development, ought to be located in the centres which are designated for that purpose and are close to public transport and other complementary uses.

The Court was also not persuaded by the "other relevant matters" submitted by the Applicant and noted that matters such as an absence of adverse impacts or adverse submissions are not sufficiently persuasive to justify a significant departure from the Planning Scheme.

The Court therefore dismissed the appeal.