The case of Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council & Anor  QPEC 054 concerned a submitter appeal by the Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd (Appellants) to the Planning and Environment Court (Court) against the decision of the Gold Coast City Council (Council) to approve a high-rise multi-use development application (Development Application) submitted by Komune Pty Ltd (Co-respondent).
The Appellant alleged conflict with a number of provisions of the Council's City Plan 2003 (2003 Planning Scheme) and the Council's City Plan 2016 (2016 Planning Scheme).
The proposed development comprises a 24 level high-rise (27 storeys), consisting of a resort hotel made up of a five star 100 suite resort, 94 residential apartments, as well as a restaurant, shop and café.
At the time of the Development Application and the commencement of the appeal, the Sustainable Planning Act 2009 (SPA) was in force. The SPA was, therefore, the legislation relevant to the appeal, despite the Planning Act 2016 taking effect on 3 July 2017.
The issues before the Court relevantly included the following:
(a) the degree of conflict with the 2003 Planning Scheme;
(b) the extent to which the 2016 Planning Scheme should be considered and the degree of conflict with the 2016 Planning Scheme;
(c) whether there were grounds that justify the approval of the Development Application despite the conflict with a relevant planning instrument, pursuant to section 326 of the SPA.
The Court held that there were not sufficient grounds in the public interest to justify the approval of the Development Application despite the conflict with the relevant planning instrument. "The appeal [was] allowed and the [D]evelopment [A]pplication [was] refused" (at ).
2003 Planning Scheme
The 2003 Planning Scheme comprises seven parts. While a number of conflicts were alleged with the Desired Environmental Outcomes (DEOs), the Appellant "was prepared to confine its case in relation to the 2003 Planning Scheme to conflict with the Coolangatta Local Area Plan (LAP)" (at ).
Court found substantial conflict between the Development Application and the Coolangatta Local Area Plan
The site is located in Coolangatta, therefore falling within the Coolangatta Local Area Plan (Coolangatta LAP) under the 2003 Planning Scheme. The 2003 Planning Scheme relevantly states that the nature of LAPs is to regulate smaller sections of the city, pursuant to the division of the city "into special planning units with unique characteristics for the purpose of land use and development control" (at ). The Coolangatta LAP encompasses multiple provisions that regulate developments in the Coolangatta area. These include the intent, DEOs, local features statement, precinct intent, a table of development and a place code. The Court found conflict with a portion of these provisions.
The Appellant and the Council alleged conflict with the DEOs, which states that, "[t]he impacts of the unit and tower developments are managed so that the amenity of surrounding locations is not adversely impacted" (at ). The Court agreed with this allegation.
Local features statement
The local features statement relevantly stated that: "[a]ppropriate development will have regard to its setting and incorporate appropriate measures to mitigate offsite impacts (including visual amenity, identified view corridor protection and overshadowing impacts)" (at ). The Appellant argued that the proposed development lacked appropriate regard to its setting because it is located outside of the Coolangatta Centre and is more intense and taller than the buildings in the centre. The Appellant also argued that the proposed development failed to incorporate appropriate measures to mitigate off-site impacts, "in that the proposed development would be of an inappropriate height, bulk, scale, plot ratio etc." (at ). The Court accepted these arguments.
The proposed development is located within Precinct 2 of the Coolangatta LAP. The intent of Precinct 2 includes that the "[d]evelopment is intended to be at a lesser intensity and scale than in the centre" (at ). The proposed development would be taller than existing developments in the Coolangatta centre, and the Court, therefore, found that it conflicts with the intent of Precinct 2.
The Court found conflict between the Development Application and the Coolangatta LAP place code in a number of areas, including building height (PC1), accommodation density (PC2), site coverage (PC3), setbacks (PC4), setbacks above three storeys (PC6), amenity (PC24), plot ratio (PC34), landscape work (PC11) and minimum site area (PC12).
Court found substantial conflict between the Development Application and the 2016 Planning Scheme
The Development Application was lodged six weeks prior to the commencement of the 2016 Planning Scheme. The Court gave substantial weight to the 2016 Planning Scheme and found there was conflict with a number of provisions, including the following:
- section 3.3.2(9)(a), in that the proposed development did not reinforce local identity and sense of place;
- section 3.3.2(9)(g) and section 22.214.171.124(10), in that the proposed development did not comply with the building height restriction;
- section 3.3.1(3), in that the height of the proposed development was inconsistent with the amenity and desired future character of the local area;
- section 2(b)(v), in that the proposed development would negatively impact on the desirable building height patterns;
- section 2(b)(vi), in that the proposed development would not retain important elements of neighbourhood character and amenity;
- section 2(b)(vii), in that the proposed development would detrimentally impact on adjoining residential amenity;
- section 2(d)(i), in that the height of the proposed development would exceed the building height indicated on the Building Height Overlay Map;
- section 2(d)(iii) in that the proposed development failed to promote an urban setting via its setback from road frontages; and
- the Development Application also failed to comply with a number of Performance Outcomes (PO) of the Code, including POs regarding setbacks (PO1), site cover (PO2), building height (PO3) and density (PO4).
Court found that the Co-respondent did not make out sufficient grounds in the public interest to justify the approval of the Development Application despite the conflicts
The Co-respondent sought to rely on several grounds in order to justify the approval of the Development Application, notwithstanding the conflicts, including that the proposed development would "add to the choice of tourist and resident accommodation" (at ) and that the proposed development would reap economic benefits.
The Court accepted that the proposal would add to the choice of tourism and residential accommodation and would be of economic benefit. However, the Court held that this was insufficient "to overcome the nature and extent of the conflict in this case" (at ).
The Court, therefore, allowed the appeal and the Development Application was refused.
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 2021.