In brief
The case of Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 concerned an appeal by two submitters (Submitters) to the Planning and Environment Court of Queensland (Court) against the decision of the Council of the City of Gold Coast (Council) to approve an impact assessable development application for a development permit for a material change of use for a multiple dwelling building at Burleigh Heads (Proposed Development). JWZ Partners Development Group Pty Ltd (the Applicant) sought to partially demolish and redevelop a building with local heritage significance, being the Old Burleigh Theatre Arcade, which occupies one of two lots adjacent to the Gold Coast Highway (Subject Land).
Notably, the Court rejected the Submitters' assertion that the State Development Assessment Provisions (SDAP) listed in schedule 10, part 9, division 4, subdivision 2, table 4 of the Planning Regulation 2017 (Qld) were assessment benchmarks that an assessment manager must assess assessable development against for the purpose of section 45(5)(a)(i) of the Planning Act 2016 (Qld) (Planning Act) (see [91] to [95]).
The relevant planning scheme for the assessment of the Proposed Development was version 7 of Gold Coast City Plan 2016 (City Plan). Temporary Local Planning Instrument No. 7 (Protection of the Old Burleigh Theatre Arcade) 2019 (TLPI No. 7) was in effect at the time the development application was properly made and ceased to have effect on 29 July 2021. Its successor, Temporary Local Planning Instrument No. 9 (Protection of the Old Burleigh Theatre Arcade) 2021 (TLPI No. 9), came into effect on 30 July 2021 after the development application was properly made. TLPI No. 7 affected the operation of City Plan by (at [540]) [footnotes omitted]:
"(a) amending the Heritage overlay map to identify the subject land as a local heritage place;
(b) inserting a trigger to require impact assessment of building work that involved any removal, demolition, or partial demolition on the subject land;
(c) nominating the Heritage overlay code of City Plan as the relevant assessment benchmark for assessing an application for building work;
(d) inserting additional Strategic framework specific outcomes in s 3.8.4 of City Plan; and
(e) inserting additional overall outcomes and performance outcomes in the Heritage overlay code."
TLPI No. 9 amended the same parts of the City Plan as TLPI No. 7, however the content of the assessment benchmarks inserted were described by the Court as being "materially different" (at [541]).
The Court considered 11 broad issues, including principally the following:
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Will the Proposed Development unacceptably impact on the heritage value of the Old Burleigh Theatre Arcade?
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Is the built form of the Proposed Development appropriate?
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Will the proposed access arrangements result in unacceptable traffic impacts?
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Is the Proposed Development an appropriate redevelopment of a local heritage place having regard to TLPI No. 9?
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Is the Subject Land well-suited for the Proposed Development?
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Is the Proposed Development supportive of, and consistent with, the Gold Coast Light Rail Stage 3 project?
Whilst the Court held that the Proposed Development does not comply with all of the relevant assessment benchmarks associated with heritage value, the Court was satisfied that those non-compliances were not determinative so as to warrant a refusal of the development application.
The Court was also satisfied that the built form of the Proposed Development is appropriate and would not produce unacceptable traffic impacts, that the Proposed Development is an appropriate redevelopment of and is well-suited for the Subject Land, and is supportive of and consistent with the Gold Coast Light Rail Stage 3 project.
The Court held that the Submitters' appeal be dismissed and the Proposed Development be approved, subject to the imposition of reasonable and relevant conditions.
Court finds the Proposed Development's non-compliance with assessment benchmarks relating to heritage value weighs against approval but must not be considered in isolation
The Submitters alleged non-compliance with the overall outcomes in sections 8.2.9.2(2)(a), (b), (d), and (e) and performance outcomes PO1, PO3, and PO5 of the Heritage Overlay Code in the City Plan (Heritage Overlay Code). The Submitters also alleged non-compliance with the part of TLPI No. 7 that affected the operation of the City Plan by inserting a specific outcome in section 3.8.4(5) of the Strategic Framework in the City Plan (Strategic Framework), and overall outcomes in sections 8.2.9.2(2)(g), (h), and (i) and performance outcomes PO9 and PO10 in the Heritage Overlay Code.
The Court found that the proposed "…demolition of the brick part of the existing structure that sits in about the middle of the [S]ubject [L]and, which was constructed around 1955" (at [30]) renders the Proposed Development non-compliant with the specific outcome in section 3.8.4(5)(i) of the Strategic Framework, and the overall outcome in section 8.2.9.2(2)(h) and performance outcome PO10(a) of the Heritage Overlay Code (at [196]). The Court held that these assessment benchmarks "adopt a rigid approach to demolition" and, accordingly, "…do not, on their face, admit the same degree of flexibility appearing in assessment benchmarks within City Plan itself" (at [197]). The Court therefore noted that the Proposed Development demonstrates a clear departure from TLPI No.7 (at [199]).
The Court held that "[t]he failure to comply with the stringent policy in [TLPI No.7] is a matter that, considered in isolation, weighs heavily against approval" and indicates that the development application should be refused, although it was bound under section 45 of the Planning Act to have regard to other relevant matters (at [260]).
Court finds the built form of the Proposed Development is appropriate
The Submitters alleged that the built form of the Proposed Development does not comply with section 3.3.2.1(9) of the Strategic Framework, the overall outcomes in sections 6.2.2.2(2)(b)(v) and (vi) and sections 6.2.2.2(d)(i) and (iii) and performance outcomes PO1(c), PO2(b), PO3, and PO5 of the Medium Density Residential Zone Code in the City Plan (Medium Density Residential Zone Code), and the overall outcomes in sections 9.3.10.2(2)(a) and (c) of the High-Rise Accommodation Design Code in the City Plan (HRAD Code).
The Court considered these allegations of non-compliance having regard to the following ten considerations:
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Accord with the intended building height pattern and the desired future appearance for the local area (section 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium Density Residential Zone Code) – The Applicant relied on the building height uplift permitted under section 3.3.2.1(9) of the Strategic Framework to achieve the proposed building height which will exceed the building height stipulated on the Building Height Overlay Map in the City Plan, being 29 metres, and to overcome non-compliance with section 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium Density Residential Code. The Court recognised that the Proposed Development is 50 per cent more than the height stipulated on the Building Height Overlay Map in the City Plan, but stated that the significance of non-compliance with section 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium Density Residential Code "…is materially diminished as there is support in the Strategic framework for the height of the [P]roposed [D]evelopment" (at [462]).
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Reinforcement of local identity and sense of place (section 3.3.2.1(9)(a) of the Strategic Framework) – The Court concluded that the Proposed Development will provide a reinforced local identity and sense of place, having accepted the opinions of the Applicant's visual amenity expert and architect (at [350]).
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Achievement of a well-managed interface with nearby development (section 3.3.2.1(9)(b) of the Strategic Framework and section 9.3.10.2(1)(a) and (c) of the HRAD Code) – The Court accepted evidence that the Proposed Development will achieve a well-managed interface with the adjoining property by adopting various design and layout measures that complement its design, setting, and orientation (see [360] to [361]).
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Contribution to a varied, ordered, and interesting skyline (section 3.3.2.1(9)(c) of the Strategic Framework) – Having regard to the evidence of the visual amenity experts and architects, and in particular the tendered photographs, the Court accepted the evidence that the Proposed Development will "enhance the clarity" between the high-rise area and open space (at [369]) and will "provide a landmark skyline structure" (at [370]).
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Achievement of an excellent standard of appearance of built form and street edge (section 3.3.2.1(9)(d) of the Strategic Framework) – The Court held that "…the plans, elevations, and visualisations show an excellent standard of appearance of the built form and street edge" (at [387]), and that the Proposed Development "…is appropriately designed for the locality in which it is located and will make a positive contribution to the architectural built form of the local area" (at [388]).
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Contribution to housing choice and affordability (section 3.3.2.1(9)(e) of the Strategic Framework) – The Court was satisfied that the Proposed Development will contribute to housing choice and affordability having regard to the observations of the Court in the case of McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, and the City Plan's provisions relating to those concepts (at [427]).
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Protection of important elements of local character or scenic amenity (section 3.3.2.1(9)(f) of the Strategic Framework) – The Court accepted that the Proposed Development will be highly visible, but did not believe that this necessarily impacted upon the important elements of local character and scenic amenity (at [434]).
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Preservation of deliberate and distinct built form (section 3.3.2.1(9)(g) of the Strategic Framework) – The Court found that the Proposed Development will preserve a deliberate and distinct built form in locations where building heights change abruptly on the Building Height Overlay Map in the City Plan (see [443] to [445]).
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Safe, secure, and efficient functioning of the Gold Coast Airport (section 3.3.2.1(9)(h) of the Strategic Framework) – The Court accepted the consistent opinions of each town planning expert that the Proposed Development will not interfere with the operation of the airport or other aeronautical facilities because the relevant overlay layers are far above the proposed building height (see [447] to [448]).
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Density regarding the Residential Density Overlay Map (performance outcome PO5 of the Medium Density Residential Zone Code) – The Court found that the density of the Proposed Development exceeds that shown in the Residential Density Overlay Map in the City Plan. However, the Court held that this did not weigh against approval having regard to the Medium Density Residential Zone Code's "…underlying planning intention…to locate higher density residential development in locations that are near centres, the high-rise coastal spine, social and community infrastructure facilities, and areas well-serviced by public transport" (see [455] and [459]).
Court finds the Proposed Development will not present unacceptable traffic impacts
The Submitters alleged that the Proposed Development will result in unacceptable traffic impacts and does not comply with paragraphs 1 and 3 of the purpose statement in section 1.1 and performance outcome PO16 of State Code 1: Development in a State-Controlled Road Environment in the SDAP. The Court also considered allegations of non-compliance with the overall outcome in section 9.4.2.2(2)(h) and performance outcome PO5 of the Driveways and Vehicular Crossings Code in City Plan.
The Court held that whether the Proposed Development demonstrates compliance with the above assessment benchmarks is to be determined by reference to whether the proposed access to the road is safe and whether it will worsen the operating conditions of the Gold Coast Highway.
The Court held that the proposed access arrangement is safe, having accepted the evidence of the traffic engineers engaged by the Applicant and the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning (Co-Respondent by Election) that the access area incorporates adequate sight lines in accordance with the Australian Standard AS2890 (at [513]) and that there were no operational or safety hazards associated with the proximity of the access to the u-turn facility at Brake Street (at [521]).
Also, the Court did not believe that the operating conditions of the Gold Coast Highway would be worsened if the turntable, proposed to be used to facilitate the on-site manoeuvring of medium rigid vehicles, was not properly staffed or operational, because the proposed access was approved by the Department of Transport and Main Roads under section 62(1) of the Transport Infrastructure Act 1994 (Qld) and service vehicles would be able to undertake a three or five-point turn in the service area without requiring the use of the turntable (see [522] to [525]).
The Court concluded that the Proposed Development's access arrangements would not occasion any unacceptable traffic impacts.
Court finds the Proposed Development is an appropriate redevelopment of a local heritage place having regard to TLPI No. 9
Both TLPI No. 7 and TLPI No. 9 require the preparation of a Conservation Management Plan. Under TLPI No. 7, a Conservation Management Plan is required to be prepared to identify the pre-1976 elements of the former theatre. Under TLPI No. 9, a Conservation Management Plan is required to identify the pre-1976 elements that are "significant and contribute to the cultural heritage significance" of the former theatre (at [545]).
The Conservation Management Plan for the Proposed Development identified elements of "high significance" and "significance" in relation to the existing building, and the Court held that the Proposed Development will retain and conserve each of the elements of high significance (at [551]).
The Court held that TLPI No. 9 reflected the "most recent and focussed planning intentions" and thus, the Court exercised its discretion to find that compliance with TLPI No. 9 diminished the significance of the non-compliances with TLPI No. 7 (at [552]).
Court finds the Subject Land is well suited for the Proposed Development
The Court held that the Subject Land is "…well suited for residential development because it is close to a centre, public transport services, open space, and recreation areas" (at [554]), which is a factor that supports an approval of the development application (at [555]).
Court finds the Proposed Development supports the Gold Coast Light Rail Stage 3 project
The Applicant asserted that the Proposed Development is supportive of, and consistent with, the Gold Coast Light Rail Stage 3 project. This was not contested by the Submitters.
The Court accepted the Applicant's assertion and noted that, in line with relevant aspects of the City Plan, the Proposed Development "…increases residential density, presents an interesting façade to the planned light rail corridor, and activates the ground plane immediately adjacent the planned bus interchange for the light rail and the proposed light rail station through its provision of commercial tenancies on the ground floor" (at [559]).
Conclusion
The Court held that the Applicant had discharged its onus of proving that the appeal should be dismissed and accordingly dismissed the appeal. The Court adjourned the appeal for further review to allow the Council to prepare the necessary conditions.