In brief

The case of Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29 concerned an appeal by Self Storage Helensvale Holdings Pty Ltd (Applicant) to the Planning and Environment Court of Queensland (Court) against the decision of the City of Gold Coast Council (Council) to refuse the Applicant's development application for a development permit for a material change of use for a self-storage facility. 

The Court allowed the appeal for the following reasons:

  • There is a current need for the proposed development.
  • The proposed development aligned with the planning goals of the Strategic Framework in the Gold Coast City Plan (City Plan) when measured against the assessment benchmarks.
  • Any non-compliances with the City Plan are only minor and did not create adverse consequences.
  • The original planning outcomes had been superseded by the Council’s decision to approve development in October 2016.

Proposed development 

The subject land is at an intersection in Pimpama. The subject land is zoned for medium density residential development. The development application sought a development permit for a material change of use for a warehouse, more specifically for a 8,244m2 self-storage facility.

The Council refused the development application because of non-compliances with the City Plan. Broadly, the areas of non-compliance related to whether the proposed use is appropriate in the location, the scale of the proposed use, and amenity impacts.

Categorising the nature of the use

The Applicant accepted that self-storage facilities have historically been characterised as an industrial type use, however, the development application sought approval for a warehouse. The Applicant argued that the proposed development would cater for domestic and business users, rather than industrial users. The town planning expert for the Council conceded that the proposed development is a "modern iteration of self-storage" and different to the "old-style self-storage facilities". In particular, the Court noted that it has "a retail user flavour, with bright internal access ways, electronic door monitoring systems, co-working office spaces and meeting rooms". The Court was therefore persuaded that while a warehouse is within the "industrial activities" defined activity group in the City Plan, the self-storage facility proposed by the Applicant is not industrial, and is more closely aligned with retail and commercial uses. 

Given the Court's finding that the proposed use is not industrial, the use therefore fell to the catchall phrase of "any other use not listed" in the Tables of Development and is impact assessable in the medium density residential zone. The Court found that the Table of Development for the medium density residential zone does not exclude or prohibit uses that are not specifically listed. The Court went on to find that it could not be readily inferred from the City Plan, when read as a whole, that the proposed development is discouraged on the subject land. 

Scale of the land use and amenity controls non-compliant but remained appropriate

The Applicant accepted that the proposed development is a non-residential land use with a scale greater than anticipated in the medium density residential zone code, and that it did not comply with Performance Outcome PO9 of the code. 

The Court considered section 3.4.5.1(14) of the Strategic Framework and whether it restricts non-residential uses to those which are small scale. The Court found that the proposed development "performs well" (at [102]) when assessed against the planning goals of the Strategic Framework. 

The Council argued that the proposed development does not satisfy the assessment benchmarks with respect to the amenity of the design. The Council's main arguments and the Court’s conclusions were as follows: 

  • The Council argued that that the proposed development exceeds the allowable building height, and that this gave rise to non-compliance with the Strategic Framework. The Court agreed that the proposed development is non-compliant but only to a minor extent. The Court found that the proposed development is acceptable when the future appearance of the local area is considered and that the proposed development performed favourably against the outcomes of the Strategic Framework. 
  • The Council argued that there was non-compliance with the overall outcomes and performance outcomes in the medium-density residential zone code. The Court found these arguments to be immaterial and that there was no evidence of an unacceptable amenity impact as a result of the proposed development. 
  • The Council argued that the proposed development did not comply with the overall outcomes of the commercial design code. The Court preferred the Applicant's expert evidence and concluded that the proposed development aligns with the approved retail and commercial development in the area.

Although the proposed development gave rise to some non-compliances, the Court found that the proposed development remained within the scope of the policy and purpose of the Strategic Framework and the City Plan. 

Other relevant considerations

  • The Court also had regard to other "relevant matters" under section 45(5)(b) of the Planning Act 2016 (Qld). The Court concluded that the following relevant matters supported the proposed development:
  • The Court accepted that the Council had in October 2016 departed from the planning intent of the former planning scheme, being the  Our Living City - Gold Coast Planning Scheme 2003 (2003 Planning Scheme) having approved non-residential uses within the zone that were considered undesirable under the 2003 Planning Scheme.
  • The Court heard expert economic evidence from both parties regarding the need for the proposed development. The Court found that the catchment area for the proposed development was in a localised area and separate from existing facilities. The Court went on to find that there existed a significant economic demand for the type of facility offered by a warehouse.
  • The Court found that there are no adverse planning consequences from the proposed development in respect of amenity impacts.

The Council argued that there were relevant matters that supported the refusal of the proposed development. One argument was that other locations were more suitable for the proposed development. While the Court agreed there is a theoretical possibility for a self-storage facility to be developed in an area encouraged by the City Plan, it did not detract from the other supporting evidence for the proposed development on the subject land.

The Council also argued that the designation of the surrounding land had been overtaken by events and was an expansion of centre activities, and that the subject land ought to be therefore used for a centre activity. The Court rejected this argument because it was not supported by the Court's reading of the City Plan. The proximity of the subject land to a tavern and other premises with late trading hours raised doubts over what other development would be suitable.

The Court concluded that the weight of the relevant matters carried a more significant effect than the non-compliances with the assessment benchmarks. The Council’s commercial and retail approvals of October 2016 had promoted a landscape of non-residential usage. This meant that the assessment benchmarks that the Council sought to rely on were no longer substantively relevant and did not embody the public interest for the use of the subject land. This was a departure from the existing principles of the City Plan that would not likely be reversed.

The Court therefore found that the proposed development ought to be approved subject to the imposition of lawful 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 2022.

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