The case of Aesthete No. 15 Pty Ltd & Anor v Council of the City of the Gold Coast & Anor (No. 2) [2025] QPEC 25 concerned an appeal by an adjacent land owner (Submitter) to the Planning and Environment Court of Queensland (Court) about the conditions to be attached to a development permit for a material change of use to facilitate a 10-storey residential apartment building at Pacific Parade, Bilinga (Proposed Development) given by the Council of the City of Gold Coast (Council) following a merits appeal in the Court.

In the earlier merits appeal and judgment, Aesthete No. 15 Pty Ltd & Anor v Council of the City of the Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 18, the Court held that the Proposed Development should be approved subject to conditions after finding, inter alia, that it achieved a well-managed interface with nearby development and did not create unacceptable privacy or overlooking impacts.

The only remaining dispute was whether, as contended by the Submitter, an additional condition should require privacy screening or obscure glazing on levels one to eight of the rear façade facing the Submitter’s approved but unbuilt tower at Golden Four Drive.

The issues were whether the proposed condition was lawful under section 65 of the Planning Act 2016 (Qld) (Planning Act), whether the merits appeal had already resolved the relevant interface and privacy questions and whether the Court should impose the condition in the exercise of its discretion.

The Court held that the condition was not lawful because the relevant planning controls were already achieved without it and, in any event, declined to impose it as a matter of discretion. The appeal was dismissed and the Council's decision was confirmed.

In the merits appeal, the dispute centred on a proposed 10-storey multiple dwelling that exceeded the 23 metre height limit on the building height overlay map and depended on the height uplift provision in section 3.3.2.1(9) of the Gold Coast City Plan 2016 (version 10) (City Plan) that allows for a 50% uplift if specified provisions are met. The Court was ultimately satisfied that the Proposed Development meets the requirements for the building height uplift and held that the Proposed Development should be approved subject to lawful conditions.

This is significant because the Submitter's privacy and interface complaints were not peripheral in the merits appeal. They were part of the merits contest about whether the proposal achieved a well-managed interface with nearby development, including the approved tower on the adjoining Submitter's land.

By the time the matter returned to the Court, the only question was whether the conditions package should be amended to require privacy screens or obscure glazing on the rear façade from levels one to eight, where balconies and windows faced the adjoining approved unbuilt tower (see [10] and [25]).

Under section 65 of the Planning Act, a permitted development condition has to be either relevant to, but not an unreasonable imposition on, the development, or reasonably required in relation to it. Even then, the assessment manager for the development application retains a discretion about whether to impose a development condition (see [18] to [24]).

The Submitter argued that the merits appeal had not conclusively decided whether screening was needed. It relied on evidence from the merits appeal that the two towers would be close, that some rear facing windows would overlook neighbouring balconies and that screening could improve compliance with lower-order design benchmarks such as acceptable outcome AO13(a) of the High Rise Accommodation Design Code in the City Plan (see [33] and [37]).

The Court rejected that submission, having closely reviewed the merits appeal judgment and found that the Court had already dealt with the interface issue through the height uplift criterion in section 3.3.2.1(9)(c) of the City Plan, together with the associated lower-order benchmarks relied on by the Submitter (see [39] to [44]).

The Court had also held in the merits appeal that unreasonable overlooking was already mitigated without additional screening. A possible screening solution proffered by an expert in the appeal was considered, but treated as optional rather than necessary. As the Court put it, the merits appeal showed that the Proposed Development was acceptable "…in the absence of such a change to its design" (at [43]).

That conclusion is reinforced by the treatment of internal amenity in the merits appeal, in which the Court had adduced that the rear apartments did not result in unacceptable privacy and overlooking impacts and that their amenity was appropriate having regard to the zoning and development intensity sought by the planning instruments.

The Court accepted that the relevant privacy, overlooking and interface issues were already resolved on the merits. The condition was not needed to protect the privacy and amenity of future residents of the adjoining approved tower in accordance with the adopted planning controls (at [48]).
The Court relevantly stated (at [49]): 

"Given there is already compliance with the planning controls…the condition is an unnecessary and unreasonable imposition on the proposed development." 

The Court did not say the proposed condition lacked any conceivable planning utility. Rather, it said that possible utility was not enough. Because the approved development already complied with the relevant planning controls, the condition failed to meet section 65 of the Planning Act and was therefore not lawful (see [49] to [50]).

Even if the condition had been lawful, the Court would not have imposed it in the exercise of its discretion because it represented an unnecessary burden on the Proposed Development (at [51]). 

The appeal was dismissed and the Council's decision notice remained unchanged (see [52] to [53]).

Where an earlier judgment has already resolved the planning impacts said to justify the imposition of an additional development condition, the proponent of that condition must demonstrate that the condition is necessary because of something more than just the design or producing a better benchmark compliance.

For applicants, local governments and submitters alike, this case emphasises the principle under section 65 of the Planning Act. A condition must remain connected to the approved development and meet the relevant and reasonable test. If compliance with the planning controls already exists without the development condition, the Court may view the proposed condition as not merely unnecessary but unlawful.

A party seeking an additional condition must show that it is relevant and not an unreasonable imposition, or that it is reasonably required in the context of the approved development.  A condition that could improve amenity or produce better benchmark compliance may still be unlawful if the approved development already achieves the relevant planning controls. 

Even where a condition can be lawfully imposed, the assessment manager retains a discretion about whether to impose it.