Planning and Environment Court of Queensland upholds submitter appeal and refuses a development application for a multiple dwelling in a medium density residential zone

In brief

The case of Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Council of the City of Gold Coast (Council) on 6 December 2021 to grant a development approval for a material change of use for a multiple dwelling comprising four units in a four-storey building that is 16.3 metres high (Proposed Development) at 111 Hedges Avenue, Mermaid Beach (Land). 

A development approval for a material change of use for a multiple dwelling comprising three units had previously been given on 24 March 2021 (Initial Approval).

The Court considered the following issues in the appeal:

1. Whether the Proposed Development complies with the building height provisions in the Gold Coast City Plan 2016 (version 8) (City Plan), and the weight to be attached to any compliance or non-compliance.

2. Whether the Proposed Development complies with the relevant Specific Outcomes in the Strategic Framework in the City Plan (Strategic Framework), in particular Specific Outcome 9 (being the building height uplift provision) in section 3.3.2.1 of the Strategic Framework.

3. Whether the planning discretion ought to be exercised.

The Court concluded that the Proposed Development did not comply with the City Plan and the nature of the non-compliance was serious, given it manifests in adverse amenity and character impacts. The Court found that the matters in favour of approval did not attract significant weight in the exercise of the planning discretion. For these reasons, the Court held that the development application ought to be refused.

Court finds non-compliance with building height and uplift provisions in the City Plan

The Land is located in the Medium Density Residential Zone (MDR Zone). The Land can be identified on Building Height Overlay Map 18 (Overlay Map), which stipulates a building height of three storeys and 15 metres in this area. Overall Outcome 2(d) and Performance Outcome PO3 of the Medium Density Residential Zone Code (MDR Zone Code) are both directed to built form in the MDR Zone and require that the building height does not exceed that indicated on the Overlay Map. 

As the Proposed Development is four storeys and 16.3 metres high, there was non-compliance with Overall Outcome 2(d)(i) and Performance Outcome PO3 of the MDR Zone Code (see [35] to [38]). The Court found the nature of the non-compliance to be significant for the following reasons:

• A reading of the Overlay Map with Specific Outcome 8 in section 3.3.2.1 of the Strategic Framework suggests that "non-compliant development is regarded as inconsistent with the 'desired future appearance' for a local area within an urban neighbourhood" (at [56]).

• Specific Outcomes 9 and 10 in section 3.3.2.1 of the Strategic Framework confirm that exceedances of the building height standard, and the extent of the exceedance, are regarded as matters of significance. In particular, that "[W]here the exceedance is greater than 50%, City Plan admits no flexibility. An exceedance of this kind is not supported; it is inconsistent with City Plan" (see [57] to [61]).

Court finds non-compliance with Specific Outcome 9 in section 3.3.2.1 of the Strategic Framework

Specific Outcome 9 in section 3.3.2.1 of the Strategic Framework provides flexibility to depart from the quantitative building height standard when eight cumulative outcomes are satisfied. The Appellants submitted that the Proposed Development did not meet five of the eight outcomes. The Court dealt with each of these in turn as follows:

1. A reinforced local identity and sense of place – The Court held that the Proposed Development would not reinforce the local identity and sense of place as required by Specific Outcome 9(a) due to adverse impacts on the character and amenity of the local area. The Court found that this was evidenced by the non-compliances relating to built form and amenity with Overall Outcomes 2(b)(v), 2(b)(vii), and 2(b)(viii) and Performance Outcome PO1(a) of the MDR Zone Code and Overall Outcomes 2(a) and 2(f) and Performance Outcomes PO3(a), PO3(c), and PO3(e) of the Multiple Accommodation Code (see [95] to [98]). Further, the Court held as follows:

   • Built form is a significant contributor to local identity and sense of place and the built form of the Proposed Development will present as a large bulky building, which is visually overbearing for the neighbouring and nearby properties (see [87] to [88]).  Furthermore, this will not be relieved by the setbacks or landscaping provided.

   • "[T]he visual dominance of the built form and its relationship with its neighbour and nearby development to the south manifests adverse impacts" (at [91]).

   • "[T]he adverse impact on the existing character and amenity of the immediate locality is not the same, or similar to, the impact that could reasonably be expected from the [Initial Approval]" (at [92]).

   • "[T]he adverse character and amenity impacts of the [Proposed Development] are not rendered acceptable because the built form proposed is compatible in its height, bulk and scale…with other buildings exceeding three storeys in the northern part of the local area" (at [93]).

   • The built form is not consistent with the intended built form character of the local area (at [94]).

2. Interface with nearby development – The Court found that due to the height of the Proposed Development its impact will be overbearing on neighbouring properties to the south, which is a clear indicator that the interface with nearby development will not be managed in the way required by Specific Outcome 9(b) (at [103]). Whilst the Court noted that the impacts on privacy, acoustic amenity, and access to sunlight can be addressed through development conditions, the Proposed Development is contrary to reasonable community expectations as evidenced by lay witness statements before the Court and submissions made during the public notification process (see [104] and [116] to [117]).

3. Standard of appearance of built form and street edge – The Court found that whilst the Proposed Development is visually interesting and has a number of attractive components, the features of its design are not up to the standard anticipated by the City Plan due to the character and amenity impacts which "sound in non-compliances with [the] City Plan" (at [128]). The extent of the non-compliance is indicative that the design of the Proposed Development is not of the kind required to satisfy Specific Outcome 9(d), that the non-compliance cannot be alleviated by the design changes suggested during expert evidence, and that the changes proposed amount to an admission that the design required improvement (see [128] to [130]).

4. Housing choice and affordability and important elements of local character or scenic amenity – The Court found it unnecessary to decide whether compliance has been demonstrated with Specific Outcomes 9(e) and 9(f) because non-compliance had already been established with Specific Outcomes 9(a), 9(b), and 9(d), which will manifest in adverse impacts that attract significant weight in the exercise of the planning discretion. The Court held that the weight to be given to the non-compliance with Specific Outcome 9 is not likely to be materially increased or decreased by an assessment of the Proposed Development against these outcomes (see [133] and [135]). 

Ultimately, the Court found that the Proposed Development does not comply with Specific Outcome 9, which is serious in nature, entitled to significant weight, and points clearly towards the refusal of the Proposed Development (see [136] to [138]).

Court assesses other matters for and against the Proposed Development

The central issue was whether the non-compliance with the City Plan ought to be decisive in the exercise of the planning discretion. Whilst the Appellants submitted additional reasons for refusal, including site cover, setbacks, roof design, service vehicle requirements, and refuse disposal arrangements, the Court held that it was unnecessary to give these issues detailed consideration because they do not influence the balance to be struck for the exercise of the planning discretion (see [139] to [140]). Further, there was evidence that Council had resolved to amend the City Plan and the Court found that the existence of these amendments and the assessment against those should be taken into account as a fact and circumstance informing the exercise of the planning discretion. However, they are not to be given weight as a reason for refusal (see [150] to [154]). 

The Court held that the draft amendments, and inconsistency with them, do not warrant refusal of the Proposed Development in their own right and, rather, regarded these matters as neutral in the balancing exercise required by section 60(3) of the Planning Act 2016 (Qld) in the exercise of the planning discretion (at [155]).

Factors in favour of approval that the Court accepted were that the Land is well located, well serviced by public transport, is in close proximity to services which are essential to residential living, and the design of the Proposed Development is a contemporary one, with parts that are attractive and deserving of recognition (see [158] to [162]).

Ultimately, the Court held that the non-compliance with the City Plan is serious and entitled to significant weight as it manifests in adverse amenity and character impacts, and it is not suggested that the City Plan has been overtaken by events, is unsoundly based, or has been applied inconsistently by the Council (at [169]). On the other hand, whilst there are two matters in favour of approval, they do not attract significant weight in the exercise of the discretion as they do not directly address the main issues in relation to the height of the Proposed Development (see [170] to [172]). On balance, the Court held that the planning discretion ought not be exercised and the approval ought not be granted (at [173]).

Conclusion

The Court allowed the appeal and refused the application for the Proposed Development.