The case of WOL Projects Pty Ltd v Gold Coast City Council  QPEC 48 concerned an application to the Planning and Environment Court under the Planning Act 2016 to appeal the decision of the Gold Coast City Council (Council) to refuse a development application for a development permit for a material change of use to establish four multiple dwellings.
The Court dismissed the appeal on the basis that the proposed development was in conflict with the Gold Coast City Plan 2016 (City Plan) and that there were no relevant matters to justify the approval.
Issues in dispute
The issues in the appeal were as follows:
whether the proposed development was an appropriate land use for the location;
whether the development would contribute to and enhance the planned character of the locality; and
whether there were relevant matters to justify the approval of the proposed development even though it did not comply with the applicable assessment benchmarks.
Appropriate land use
In relation to the first issue, the Applicant Appellant submitted that the Low Density Residential Zone Code (Code) in the City Plan expressly provided for development which included multiple dwellings and therefore the proposed development did not conflict with the Code. The Applicant further submitted that in the event that a conflict was found then the provision would be inconsistent with Specific Outcome 220.127.116.11(5) of the City Plan.
Specific Outcome 18.104.22.168(5) relevantly provides as follows:
"low intensity, low-rise small lot housing, dual occupancy and multiple dwellings occur in suburban neighbourhoods in low concentrations where they achieve a dispersed or gentle-scattering effect. These dwellings are limited to the following lots where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings".
The Applicant subsequently argued that as there was a direct inconsistency between the two provisions, Specific Outcome 22.214.171.124(5) of the Strategic Framework in the City Plan should prevail having regard to the hierarchy of assessment outlined in the City Plan. In response to the Applicant's submissions, the Council contended that the City Plan should be read as a whole and that no such inconsistency arose when doing so.
The Court held that the City Plan should be read as a whole instrument rather than separate provisions and found no inconsistency between the provisions.
In relation to the locational criteria listed in Specific Outcome 126.96.36.199(5) of the City Plan, the Applicant relied upon the preceding sentence of the Specific Outcome and submitted that it was only limited to such lots that "do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings".
The Court acknowledged that the Applicant's argument was appealing, however held that it did not accord with the principles of statutory construction as applied in Zappala Family Co Pty Ltd v Brisbane City Council  QPELR 686; QCA 147 in which a planning scheme must be construed on the "prima facie basis" and read as a whole so that "its provisions give a harmonious goal as intended" (at ). The Court therefore found that the correct approach to interpreting the sentence in question was to view it as an additional limitation on the opportunity to develop multiple dwellings in the area rather than an additional opportunity to do so.
Compatibility with the planned character of the locality
With three of the four proposed dwellings exceeding the maximum height of 9 metres above ground level, the Council submitted that the proposed development did not comply with provision 188.8.131.52 of the Strategic Framework, Performance Outcome 3 and Acceptable Outcome 3.1 of the Code in the City Plan and therefore should not be approved.
In contrast, the Applicant's architect expert witness who gave evidence on visual amenity relevantly submitted that despite the existence of penetrations of part of the building that were above the 9 metre height restriction, the penetrations were very minimal and would have "very little to no impact on the outlook of the adjoining residences and units" (at ). The Council's architect expert witness also conceded that although the building height exceeded the height limit of a low-rise building it did generally appear as a low-rise development.
The Court agreed with the expert witnesses and found that the height exceedances of the three proposed dwellings did not constitute a meaningful inconsistency with the City Plan. The Court also accepted the evidence put forth by the town planning experts and held that the proposed development would result in a low density outcome for the site. However, the Court acknowledged that the proposed dwellings would add the character of four multiple dwellings to the streetscape rather than four discrete dwelling houses.
In assessing the proposed development against Specific Outcome 184.108.40.206(5) of the City Plan, the Court was satisfied that the development would achieve a "dispersed or gentle scattering effect" within the site but concluded that it would reinforce the opposite outcome in the locality and would add to the already high number of pre-existing multiple dwellings. In consideration of this, the Court held that even though the proposed development accorded with the existing pattern of development in the area, it did not comply with the planned character of the locality under the City Plan.
Relevant matters to justify approval despite conflict with the City Plan
To consider whether there were relevant matters which justified the approval of the proposed development despite the conflicts with the City Plan, the Court firstly considered the approach taken in Bell v Brisbane City Council & Ors  QCA 84 at  where it stated as follows:
"A planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land".
The Applicant asserted that despite the identified conflicts with the City Plan, the proposed development should be approved as it is an appropriate use of the site and would continue to retain and enhance the local character and amenity. Furthermore, it was submitted that the area already contained numerous multiple dwellings which did not comply with the character intended for the locality as defined under the City Plan, and the development of the site at an intensity less than that of the proposed development, would not be a desirable planning outcome or an efficient use of the site.
In relation to the Applicant's first submission, the Court found that the development did not accord with the planned character for the site regardless of whether there were existing buildings of the same character in the locality. In addition to the conflict, the Court also held that there was no public interest in demonstrating compliance with former planning controls. With regards to the Applicant's last submission, the Court was unpersuaded and held that there was no merit to the submission as the City Plan has provided a comprehensive definition of what was appropriate for the site.
The Court therefore dismissed the appeal on the basis that there were no reasonable justifications to depart from the clear planning intent for the site as stated in the City Plan.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.