In brief

The case of Cadmium Holding FW Pty Ltd v Gold Coast City Council [2019] QPEC 51 concerned an appeal in the Planning and Environment Court against a decision by the Gold Coast City Council (Council) to refuse an impact assessable development application to reconfigure and develop land in Coomera. The sole reason for refusing the development application was that the proposed development would be inconsistent with the intended settlement pattern set out in the Gold Coast City Plan (City Plan).

The Planning and Environment Court ultimately allowed the appeal for the following reasons:

  • The setting of the proposed development and its separation distance from surrounding development and the nearest multiple dwellings meant that the desired dispersal and scattering effect would be achieved. 

  • The proposed development would be consistent with other provisions of the City Plan relating to, inter alia, integration with the surrounding urban fabric, housing diversity, and walkability to services, facilities and transport. 

  • The proposed development would have a dwelling yield of 31.3 dwellings per hectare net and therefore would meet the stated minimum dwelling yield.

  • The proposed development would comply with the City Plan, and the evidence demonstrated that it would result in a good planning outcome.

Proposed development

The subject land is located in Coomera, which is "an area that has matured from a fringe area to an urban area, and is an integrated part of the urban fabric of the Gold Coast" (at [13]). Although the land was zoned as "Emerging Community", the Court accepted that much of the locality of the area had progressed well beyond a greenfield area, and had been developed and rezoned to reflect its use for an urban purpose. 

The subject land is a large site covering 6.926ha. The adjacent land to its west is zoned as rural residential and the land to the east is unimproved. The land is located within close proximity of public and private infrastructure, although it is separated from other new communities, existing and approved development in the area.

The development application sought approval to develop the land with a gated townhouse community containing 111 townhouses. The proposed development would have a development footprint of 3.569ha, with the remainder of the land to be dedicated for ecological purposes. The proposed development was described as "generously landscaped" in that it avoided the impression of a cluster or sea of townhouses. It was also accepted that the built form of the proposed development was comparable with existing houses in the area. 

To succeed in the appeal, the Appellant had to demonstrate the following: firstly, that the proposed land use was contemplated on the subject land; and secondly, that the density of the proposed development would be appropriate. 

Proposed development would achieve a dispersed or gentle-scattering effect pursuant to section 3.3.4.1(5) of the Strategic Framework

The Appellant relied predominantly on section 3.3.4 of the Strategic Framework in the City Plan which contained provisions relating to "new communities". In particular, the Appellant referred to section 3.3.4.1(5) which required that “small lot housing, dual occupancy and multiple dwellings occur in new communities in low concentrations where they achieve a dispersed or gentle-scattering effect”. 

The point of disagreement between the parties was whether the proposed development would "occur in low concentrations and achieve a dispersed or gentle-scattering effect". The parties' experts disagreed on whether the broader locality could be taken into account when considering whether the outcome was achieved. 

The Court noted that whether the visual assessment was limited to the subject land, or extended to the broader locality was not prescribed by section 3.3.4.1(5) of the Strategic Framework. As such, the Court said that the assessment would turn on the circumstances of each case. The Court held that the size of the land and the urbanised character of the surrounding area meant that the visual assessment required consideration of the broader locality. 

The Court ultimately preferred the Appellant's expert who was of the opinion that the setting of the proposed development and its separation distance from surrounding development and the nearest multiple dwellings meant that the desired dispersal and scattering effect would be achieved. 

Proposed development was not constrained to larger urban lot housing

The Council argued that the Court had to consider a further 13 provisions in the City Plan which demonstrated that the location and density of development on the subject land was constrained to larger urban lot housing. 

The main arguments put forward by the Council and the Court's corresponding conclusions are summarised as follows: 

  1. The Council argued that the proposed development would not be “an integrated part of the city’s urban fabric”. The Court rejected this argument and said that the proposed development would integrate well into the surrounding locality, and the Coomera community which had matured into an urban area. The City Plan also anticipated that the area would include a mix of housing types, including both multiple dwellings and dwelling houses. 

  2. The Council argued that the proposed development would not support a “walkable community”. The Court concluded that the proposed development would support walkable communities by increasing the population mass required to support centres and public transport, and by making appropriate provision for internal and external pedestrian connectivity. 

  3. The Council argued that the City Plan constrained higher intensity housing (such as the proposed development) to locations within walking distance of centres, high frequency transport and a range of goods, services and employment opportunities. The Court concluded that although the City Plan anticipated and encouraged higher density housing in particular locations, it did not constrain the location of multiple dwellings in "new communities".

  4. The Council argued that the proposed development was inconsistent with section 3.3.4.1(4) of the Strategic Framework because it was not designed to provide a diversity of housing choice on the land. The Court concluded that housing diversity did not need to be achieved on a site-by-site basis. Instead, housing diversity was sought across the entire area designated as "new communities", and the proposed development would contribute to the achievement of such diversity in that area. 

Whether the density of the proposed development would be appropriate

The Court referred to section 3.3.4.1(3) of the Strategic Framework which dealt with development density in "new communities" and required that such "communities achieve a minimum dwelling yield of between 15 to 25 dwellings per hectare net”. The proposed development would have a dwelling yield of 31.3 dwellings per hectare net and therefore would meet the stated minimum. 

Additionally, the Court noted that section 3.3.4.1(3) of the Strategic Framework speaks of a minimum dwelling yield for "new communities" which ought to be understood to mean identified "areas" in the city (in contrast to a particular site). As such, it was appropriate to consider section 3.3.4.1(5) of the Strategic Framework when determining the dwelling yield that may be achieved for a particular development. 

The Court concluded that the dwelling yield for the proposed development would be acceptable because it complied with section 3.3.4.1(5) of the Strategic Framework, and would not give rise to any unacceptable town planning impacts. 

Re-exercise of the planning discretion

The Court held that the proposed land use was contemplated by the Strategic Framework, and that the density of the proposed development would be appropriate. In such circumstances, the Court rejected the Council's argument that the proposed development would be inconsistent with the intended settlement pattern expressed in the City Plan. 

The Court held that given the proposed development would comply with the City Plan, and the evidence demonstrated that it would result in a good planning outcome, the development application ought to be approved, subject to appropriate conditions.

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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