Queensland Court of Appeal finds no error of law in respect of a refusal of a change application seeking to remove a stepped form frontage of an apartment building that was held to be integral to the original approval

In brief

The case of Upan Company Pty Ltd v Gold Coast City Council [2022] QCA 75 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) against the decision of the Planning and Environment Court of Queensland (Planning and Environment Court) to refuse a change application (Change Application) seeking to change a development approval granted by the Gold Coast City Council (Council) for residential apartments in Main Beach (Proposed Development).

The judgment of the Planning and Environment Court was two-fold. 

Firstly, in the case of Upan Company Pty Ltd v Gold Coast City Council [2021] QPEC 37 (Upan (No. 1)), the Planning and Environment Court provided reasons which relevantly identified non-compliances with the Gold Coast City Plan 2014 (City Plan) in respect of the requirement for a podium form frontage with appropriate setbacks, which if compliance was achieved, may have resulted in an approval of the Proposed Development. The Planning and Environment Court observed that no condition to achieve compliance had been raised and heard further from the parties.

Secondly, in the case of Upan Company Pty Ltd v Gold Coast City Council (No. 2) [2021] QPEC 50 (Upan (No. 2)), the Applicant provided the Planning and Environment Court with amended plans of development (Amended Plans) said to address the Court's concerns raised in Upan (No. 1). The Planning and Environment Court disagreed, and in any event, determined that the appeal related to the Change Application in respect of the Proposed Development and not the Amended Plans.

A summary of Upan (No. 1) and Upan (No. 2) is available in our February 2022 article.

The following errors of law alleged by the Applicant were considered by the Court of Appeal:

• Ground 1 – The appeal was dismissed without a finding that a condition could not be imposed on an approval to achieve compliance with the City Plan.

• Ground 2 – The Applicant was not afforded procedural fairness because it was not given an adequate opportunity to give evidence and submissions about potential conditions.

• Ground 4 – Neither the Proposed Development nor the approved development had a tower and podium form as required by the City Plan and therefore ought not to have been assessed against that requirement.

Ground 3 was not relevant as it was not pursued by the Applicant before the Court of Appeal.

The Court of Appeal refused leave to appeal because it found no error in the reasoning of the Planning and Environment Court as no condition had been put before that Court by the parties, which permitted it to exercise its discretion under section 60(2)(d) (Deciding development applications) of the Planning Act 2016 (Qld) (Planning Act) on the basis that compliance with the City Plan could not be achieved by imposing a condition. It was also within the Planning and Environment Court's discretion to refuse to reopen the hearing to hear evidence in respect of the Amended Plans.

Factual matrix

In October 2018, the Council granted an approval for a beachfront residential development comprising two and three bedroom apartments over 20 storeys.

In February 2020, the Applicant made, under section 78 (Making change application) of the Planning Act, the Change Application. The Change Application relevantly proposed substantial changes to the external frontage of the approved development, including the removal of its stepped form frontage.

The Council refused the Change Application and the Applicant appealed to the Planning and Environment Court. The Planning and Environment Court delivered its reasons in Upan (No. 1), which relevantly held the following in respect of the Proposed Development's compliance with the City Plan:

1. It did not comply with overall outcome 3(e)(i)(B) of the Light Rail Urban Renewal Overlay Code (Podium Requirement), which relevantly required high rise buildings to have a "tower and podium form".

2. It did not comply with overall outcome 2(d)(v) of the Medium Density Residential Zone Code, which relevantly required a built form with "varying site cover to reduce building dominance".

3. Though the approved development did not comply with Item 1 above, it included a stepped frontage which was integral to the Council's original approval in 2018.

4. The parties did not propose any condition to address the non-compliances stated in Items 1 and 2 above.

Following Upan (No. 1), the Applicant submitted the Amended Plans which it alleged addressed the Planning and Environment Court's concerns stated in Items 1 to 3 above. In Upan (No. 2), the Planning and Environment Court did not agree that the Amended Plans alleviated its concerns and held that the Amended Plans were not part of the Change Application the subject of the appeal and would require a reopening of the hearing.

Ground 1 – No condition was submitted for the Planning and Environment Court to consider

The Planning and Environment Court had invited the Applicant to propose a condition or conditions aimed at overcoming the non-compliances with the City Plan stated in Items 1 and 2 above, and was instead provided with Amended Plans said to resolve the non-compliances.

The Court of Appeal found no error of law in the Planning and Environment Court's reasoning in respect of Ground 1, and held that the Planning and Environment Court was not presented with a condition to impose on an approval and was therefore able to be satisfied that compliance with the City Plan could not be achieved by imposing a condition. Accordingly, it was permitted under section 60(2)(d) of the Planning Act to exercise its discretion to refuse the Change Application (see [38], [67], and [75]).

Ground 2 – Applicant did not have a right to be heard in respect of the Amended Plans

The Court of Appeal held that the Applicant sought to reopen the appeal and have a further hearing in respect of the Amended Plans, rather than submitting a condition to overcome the non-compliance with the City Plan as was invited by the Planning and Environment Court in Upan (No. 1) (at [74]).

The Court of Appeal found no error of law in respect of Ground 2 because the Planning and Environment Court was permitted to exercise its discretion to refuse to reopen the appeal and hear further evidence.

Ground 4 – Proceeding below did not allege an error in respect of the Podium Requirement

The Court of Appeal rejected the Applicant's submissions that because both the approved development and Proposed Development did not satisfy the Podium Requirement, that provision of the City Plan was not relevant to the Planning and Environment Court's assessment of the Change Application.

The Applicant had engaged in submissions in respect of the Podium Requirement before the Planning and Environment Court and made no submission that it was not relevant or that it would be an error to assess the Proposed Development against it. The Court of Appeal held that Ground 4 was an unsuitable basis to grant leave to appeal for reasons including that it was not raised at any stage in the Planning and Environment Court and that, in accordance with the High Court's judgment in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481, the Applicant ought to be bound by the conduct of the case below (see [78] to [88]).

Conclusion

The Court of Appeal found no error of law that warranted a grant of leave to appeal against the judgments of the Planning and Environment Court, and the Applicant was ordered to pay the Council's costs of and incidental to the application for leave to appeal.