Planning and Environment Court of Queensland exercises discretion to approve the redevelopment of part of a residential aged care facility despite non-compliances with the assessment benchmarks relating to height

In brief

The case of Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Council of the City of Gold Coast (Council) to refuse a development application for a development permit for a material change of use to redevelop an existing residential care facility to increase the number of aged care places from 86 to 154 (Proposed Development) at 80-86 and 98 Bayview Street, Runaway Bay (Subject Land).

The Subject Land is within the Medium Density Residential Zone under the Gold Coast City Plan 2016 (version 7) (City Plan). The existing retirement facility on the Subject Land is in several buildings, including a six-storey building and multiple buildings of one, two, and three storeys in height. The Proposed Development involves demolishing an older single-storey building and replacing it with a new four-storey building, with the rest of the buildings on the Subject Land to be retained.

The Applicant accepted that the Proposed Development does not comply with the City Plan because the proposed four-storey building is beyond 50 per cent above that indicated on the Building Height Overlay Map.

The Court considered the following issues in deciding the appeal:

1. Weight – What is the significance of the non-compliance with the assessment benchmarks with respect to height.

2. Need – Whether there is a need for the Proposed Development.

3. Discretion – Whether the planning discretion ought to be exercised in favour of approval.

The Court concluded that if an assessment of the Proposed Development was undertaken only against the assessment benchmarks in the City Plan with respect to height, the non-compliances ought to be afforded decisive weight. However, the Court ultimately held that when assessed having regard to all relevant factors, the matters that support approval are compelling, in particular that there is a need for the Proposed Development and the existing lawful use on the Subject Land. Thus, the Court held that the Proposed Development ought to be approved subject to lawful conditions.

Court finds that the non-compliance with respect to height is not significant

The Proposed Development is assessable development requiring impact assessment under the City Plan (at [8]).

The Court found that the height of the Proposed Development does not comply with the specific outcome in section 3.3.2.1(10) of the Strategic Framework in the City Plan (Strategic Framework) and the overall outcome in section 6.2.2.2(d)(i) of the Medium Density Residential Zone Code in the City Plan (MDRZ Code) (see [85] to [93]), and that conditions could not be imposed to resolve those non-compliances (at [93]).

The Court also found that the City Plan included a "forward planning" strategy to limit development on land in the Medium Density Residential Zone to two storeys and nine metres and to the extent that the Proposed Development conflicts with the intended height for the Subject Land, it is also inconsistent with "…the broader strategy to reinforce local identity and create a sense of place" (at [116]).

The Court in deciding the weight to be attributed to the non-compliances relating to height considered the following:

1. The existence on the Subject Land of lawful development, being the residential aged care facility and retirement facility. The Court held that the built form of the existing buildings did not reflect the intended building height pattern and the desired future character of the local area as depicted on the Building Height Overlay Map (see [136] and [382]).

2. The Applicant's current intention to retain the taller buildings on the Subject Land and to continue to lawfully use them for a residential aged care facility and a retirement facility, and the absence of evidence which suggests that the Applicant's intention will change in the foreseeable future (see [136] and [382]).

The Court ultimately held that the combination of these factors diminish the potency of the non-compliances with the provisions in the City Plan relating to height, and that the specific outcome in section 3.3.2.1(10) of the Strategic Framework and the overall outcome in section 6.2.2.2(2)(d)(i) of the MDRZ Code should not be applied in an inflexible or unyielding way (at [137]).

Court finds a pressing need for the proposed development

Whether there is a need for the Proposed Development was contentious between the parties. The Council submitted that the need for the Proposed Development was hardly pressing (at [251]), and the Applicant submitted that there was a need.

The Court held that there is a pressing need for the Proposed Development for the following reasons, which was a compelling matter weighing in favour of approval (at [314]):

1. Quantitative analysis – The Court accepted that the demand for aged care places in the relevant catchment area, being the area approximately five kilometres around the Subject Land, is expected to increase and there are currently insufficient facilities to meet that demand (see [291] to [301]). The Proposed Development will provide an additional 68 residential aged care places to meet some of the demand.

2. Qualitative analysis – The Court accepted that it is in the public interest to provide residential aged care facilities that differ in terms of design from that traditionally provided to meet contemporary public expectations. The Court held that the design attributes of the Proposed Development will enhance the quality of life of older Australians (see [302] to [310] and [343]).

The Council argued that the economic need experts did not consider development approvals and future proposals for aged care facilities in assessing need and that there is more appropriately zoned land for the Proposed Development. Whilst the Court considered it unnecessary to address the Council's other arguments after finding that there is a pressing need for the Proposed Development, the Court considered them for completeness and held that they did not alter the Court's view about the weight to be given to need in this case (at [315]).

Court assesses other matters for and against the Proposed Development

The Council raised the following other matters against the Proposed Development, in respect of which the Court held as follows:

1. Draft amendments to the City Plan propose to include the Subject Land in the Low Medium Density Residential Zone, which also does not anticipate buildings of the height proposed. The Court held that the draft amendments are a relevant consideration and deserving of weight, but the inconsistency with the draft provisions should not, of itself, be given determinative or decisive weight (see [176] to [194]).

2. The Applicant did not demonstrate that the Proposed Development cannot be developed within a three-storey building. The Court held that there is a pressing need for the Proposed Development, and a three-storey building would not provide all the benefits associated with the Proposed Development (see [201] to [203] and [223] to [225]).

3. The Proposed Development is inconsistent with reasonable community expectations, which is informed, at least in part, by the City Plan. The Court held that in this case there was an absence of significant community opposition, and as such the consideration of community expectations did not lend any meaningful weight to either a refusal or approval of the Proposed Development (see [228] to [231]).

4. The cumulative effect of an additional building greater than two-storeys on the Subject Land involves material planning harm that warrants refusal. The Court found that the weight to be attributed to this matter was tempered by the following three considerations (see [245] to [249]):

(a) A decision to approve the Proposed Development would not render it more difficult for the Council or the Court, as an assessment manager, to refuse other development applications in the local area where there is non-compliance with the relevant assessment benchmarks in the City Plan relating to height.

(b) The public confidence in the provisions of the City Plan relating to height being consistently applied will not be adversely affected, because the nature of the Proposed Development and the existing lawful use in this case "…mitigate the prospect of a precedent that might be readily invokable by prospective developers of other land in the locality" (at [247]). Whilst public confidence in the consistent application of the provisions of the City Plan is deserving of weight, it is not a matter that of itself warrants refusal of the Proposed Development.

(c) It can not be inferred, based on the evidence, that the Applicant will seek to develop the balance of the Subject Land in a manner which is inconsistent with the height strategy in the City Plan.

The Court considered the following other relevant matters weighed in favour of an approval of the Proposed Development:

1. The Proposed Development is contemporary and the Subject Land is appropriate for an aged care facility and allows for residents to age in place over in the long term (at [361]).

2. The Proposed Development has architectural merit, which is supported by the Council's acceptance of compliance with the many provisions of the City Plan that contain assessment benchmarks with respect to the design of development. The extent of compliance with City Plan is relevant to the exercise of the discretion (see [362] to [365]).

3. The Proposed Development will not result in any unacceptable impacts, including visual impacts (see [366] to [371]).

Conclusion

The Court allowed the appeal and held that the development approval be granted subject to lawful conditions.