In brief

The case of Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37 concerned an appeal in the Planning and Environment Court against a deemed refusal by the Gold Coast City Council (Council) of a development application for a development permit for a material change of use to develop 27 townhouses on land that is located adjacent to a flood plain. The development application was impact assessable under the Gold Coast City Plan (City Plan). The issues raised by the parties on appeal concerned the character and density of the proposed development.

The Court allowed the appeal for the following reasons:

  • Refusal was not warranted because although the proposed development did not comply with the requirement for a second vehicle access to the site, there was no evidence to suggest any utility in providing additional vehicle access.

  • Acceptable Outcome 2 of the Limited Development (Constrained Land) Zone Code, which required site cover to be more than 10%, was "hardly instructive" because there was considerable variety in the densities contemplated by Conceptual Land Use Map 10.

  • The proposed development was not otherwise inconsistent with the planning intent evident in the relevant codes of the City Plan, or the strategic framework.

  • Although the absence of a planning need weighed against approving the application, the architectural and engineering merit of the proposed development weighed in favour of approval.

Proposed development

The land the subject of the development application shares a boundary with the extensive Merrimac/Carrara flood plain and is zoned as both Low Density Residential and Limited Development (Constrained Land). The area immediately surrounding the land is predominantly improved with single detached dwelling houses of one or two storeys in height.

The application proposed that 27 townhouses be built within eight two-storey building envelopes containing between two and four townhouses. The townhouses were to be accessed via a vehicle access road and a pedestrian access road. Eighteen of the townhouses were to be part of an elevated construction utilising suspended concrete platforms supported by concrete columns to reduce the risk of flooding from the adjacent flood plain.

Version of the Gold Coast City Plan to be used for assessment

Although version 4 of the City Plan was in effect at the time the development application was lodged, version 6 of the City Plan had commenced by the time the joint experts prepared their reports. The parties agreed that the assessment under section 45(5) of the Planning Act 2016 (Qld) (Planning Act) ought to be carried out against version 6.

The Court agreed and accordingly applied version 6 of the City Plan to its assessment. In so doing, the Court quoted Edwards & Alexander v Gold Coast City Council & Palm Beach Developments Pty Ltd [2005] QPELR 236, where the Court stated (at [9]) that "Planning Schemes are evolutionary and that a later Scheme would usually (but not necessarily) contain a more informed and timely understanding of all the relevant town planning issues".

Council argued that the proposed development was inconsistent with the planning intent evident in the Low Density Residential Zone Code

Firstly, the Court considered whether the proposed development would be low intensity, blend in with the dwelling house character of the area, and achieve a dispersed or gentle scattering effect as required by the Overall Outcomes in section 6.2.1.2 of the Low Density Residential Zone Code (LD Zone Code). The Court also considered whether the proposed development would be low density as required by Performance Outcome 5 of the LD Zone Code.

The Court held that having regard to the fact that the proposed development would be low rise in terms of building height, and blend in with the existing character of the surrounding area, the Overall Outcomes in section 6.2.1.2 and Performance Outcome 5 were satisfied.

Secondly, the Court considered whether the proposed development would be on "lots with dual frontages" as required by section 6.2.1.2(2)(a)(iii)(A) of the LD Zone Code. The City Plan states that "an allotment with dual frontage, can be safely accessed from at least two roads in accordance with the Driveways and Vehicular Crossing Code" (Driveways Code).

The Appellant argued that the requirement was satisfied because the proposed development would have a pedestrian and vehicle access road. In particular, the Appellant argued that because the City Plan stated that a term used in it has the meaning assigned by the Planning Act, "roads" included "a pedestrian or bicycle path".

The Court held that the Driveways Code required a second vehicle access. Nevertheless, the Court concluded that although there was technical non-compliance, the Driveways Code also sought to minimise the number of vehicle crossings. Given there was no evidence to suggest any utility in providing an additional vehicle access, the Court held that this non-compliance did not warrant the refusal of the development application.

On this point, it is worthwhile referring to paragraph [53] of the decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 referred to earlier in the Court's judgment (at [8]):

"It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal..."

Council argued that the proposed development was inconsistent with the planning intent evident in the Limited Development (Constrained Land) Zone Code

Firstly, the Court held that the proposed development would be low density, result in a "continuous green space area", and create a "visually prominent green space" as required by section 6.2.18.2 of the Limited Development (Constrained Land) Zone Code (Limited Zone Code). The Court also held that the proposed development would be consistent with Conceptual Land Use Map 10, which contemplated that development in the Limited Development (Constrained Land) Zone ought to be low density.

Secondly, the Court considered whether the proposed development would comply with Performance Outcome 2 which requires the site cover to reduce the dominance of buildings and structures, address site constraints, protect the semi-rural character of the area and minimise the extent of impervious surfaces. The Council argued that non-compliance arose because Acceptable Outcome 2 required that site cover not exceed 10%. The proposed development would have a site cover of 46.9%.

The Court found that the proposed development would comply with the Purpose and the Performance Outcomes in the Limited Zone Code. In so finding, the Court noted at [37] that Acceptable Outcome 2 was "hardly instructive … where Conceptual Land Use Map 10 contemplates densities ranging from tourism and mixed residential/tourism uses to rural residential uses as well as open space and conservation areas".

Appellant did not demonstrate that there was a planning need for the proposed development

The Appellant argued that there was a latent unsatisfied demand for the proposed development that was not being met or not adequately being met in circumstances where the Gold Coast is a growing city. The Court did not agree with that argument, stating that "any latent demand for 27 townhouses of the type proposed could be addressed in another location in accordance with the planning scheme".

Conclusion

The Court allowed the appeal. In doing so, the Court held that despite the absence of a planning need, the architectural and engineering merit of the proposed development, the absence of any unacceptable flooding impacts, and the immateriality of any non-compliance with the City Plan, weighed in favour of approval.

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.

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