In brief

The case of Upan Company Pty Ltd v Gold Coast City Council [2021] QPEC 37 (Upan (No. 1)) and Upan Company Pty Ltd v Gold Coast City Council (No. 2) [2021] QPEC 50 (Upan (No. 2)) concerned an appeal to the Planning and Environment Court of Queensland (Court) against the refusal by the Gold Coast City Council (Council) of a change application made under section 82 of the Planning Act 2016 (Qld) to change a development approval for residential apartments in Main Beach (Change Application).

The Change Application proposed a number of changes, including, most relevantly, a change to the external façade treatments and design to remove a stepped form of development. 

The Court considered whether the proposed changes complied with the Gold Coast City Plan 2014 (City Plan), and if there was non-compliance, whether there were sufficient relevant or discretionary matters to warrant approval of the Change Application despite the non-compliance (see [17] Upan (No. 1)).

The Court dismissed the appeal for the reason that it was critical to the development approval that the development incorporate a stepped form and the changes to the external features would result in an unacceptable bulk and scale outcome (at [63] Upan (No. 1) and [13] Upan (No. 2)).

Background 

The development approval was for a mix of two and three bedroom apartments over 20 storeys. 

The Change Application sought the following changes:

(a) Storeys and height – A reduction from 20 storeys to 19 storeys, with an increase in the overall building height by 3.75 metres.

(b) Apartments – A reduction from 55 to 50 apartments, the introduction of four and five bedroom apartments, and an increase in the residential density. 

(c) External façade and design – The removal of a stepped form to the façade of the building.

(d) Carparking, floor plan, and setbacks – An increase in carparking from 107 to 113 carparks, an alteration to the floor plans to incorporate larger living and balcony areas, and a variance to the building setbacks for each level. 

The parties submitted a number of provisions of the City Plan were relevant to the proceeding. Of most relevance to the Court were Overall Outcome OO2(d)(v) of the Medium Density Residential Zone Code and Overall Outcome and OO3(e)(i)(B) of the Light Rail Urban Renewal Area Overlay Code, which were concerned with building dominance and a clearly defined tower and podium form (at [65] Upan (No. 1)).

The Court observed that "parties should limit references to a planning scheme within the issues in dispute to only the most relevant and important parts of that scheme and not plead every provision that might possibly be offended. Even the most cursory review of the provisions set out [by the parties], would reveal an extensive level of overlapping and repetition of planning themes and philosophies." (at [22] Upan (No. 1)).

Most changes were not significant to the outcome of the appeal

The Court relevantly held the changes relating to the number of storeys and increase in carparks were not significant to the outcome of the appeal (at [19] Upan (No. 1)). 

The Court also held that the following changes did not warrant the refusal of the Change Application: 

  • The loss of opportunity for planting on the stepped form of the approved development (at [27] Upan (No. 1)).

  • Any shadow to be created by the proposed development and any minor difference in privacy impacts because the site is located within a precinct with no height limits (see [29] and [35] Upan (No. 1)).

  • The change in height, reduction in floor area, and shape of the top level of the building (see [46] and [47]) of Upan (No. 1)). 

Stepped form or podium was critical to the development

The development approval included a nine-storey stepped form of development, which despite not complying with the City Plan's requirement for a tower and podium form, the Court held was clearly important to the development approval decision (see [20] and [52] Upan (No. 1)). 

The Court observed that the Change Application was code assessable, and "the more important the assessment benchmark, the more likely it is that non-compliance will be determinative against approval." (at [12] of Upan (No. 1) citing Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4).

Despite the Court's finding that the proposed development "… is more reflective of the Gold Coast character, permits a better interaction with the beach and beyond by pedestrians and that the approved development has a more commercial office space appearance when compared to that now proposed", the Court held that without a podium or stepped form the proposed development would result in a number of unacceptable planning outcomes because it would crowd or dominate the streetscape (see [63] Upan (No. 1) and [3] Upan (No. 2)). 

The Court did not put much weight on the "softening" in the Council's current City Plan of the requirements for a podium because recent approvals suggested that the force and effect of the amendments may take time before they are implemented on the ground (at [70] Upan (No. 1)).

Applicant allowed opportunity to further change proposal 

Although compliance with the City Plan's requirement for a podium form could have been achieved by the imposition of a condition, the parties did not propose that to the Court. 

The Court provided the parties with its reasons in the case of Upan (No. 1) and reserved making an order until it heard further from the parties, because the Court considered that features of the Change Application would result in a superior outcome than the approved development and most of the amenity issues against the Change Application were dismissed (see [3] Upan (No. 2)). 

In the case of Upan (No. 2), the Applicant submitted revised plans for the Change Application in an attempt to address the Court's concerns expressed in Upan (No. 1)

The Court was not satisfied that the revised plans addressed the Court's concerns, nor that they established sufficient compliance with the City Plan. The Court was not minded to conduct a further merits review in respect of the revised plans (at [12] Upan (No. 2)). 

Conclusion

The Change Application did not comply with the assessment benchmarks which would minimise the proposed development from dominating the streetscape. The Court dismissed the appeal.

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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