The case of Sullivan & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 20 concerned a submitter appeal against a decision of the Council of the City of Gold Coast (Council) to approve a change application for an other change to a development approval, being for a material change of use to establish a multiple dwelling on land at 133 Golden Four Drive, Bilinga (Land).

The development approval is for a seven-storey residential apartment building with 11 dwelling units, and is 23 metres high with a basement carpark. The change application for an other change sought to increase the number of storeys from seven to nine, increase the number of units from 11 to 13, and increase the height from 23 metres to 32.85 metres (Proposed Development).

The Court found that the provisions of the Gold Coast City Plan 2016 (Planning Scheme) in dispute had been satisfied or, if the Court was wrong in that assessment, that there were relevant matters which supported the approval of the Proposed Development. The Court therefore allowed the appeal to the limited extent of allowing the conditions to be amended to enable the provision of enhanced setbacks and opaqued glass.

The Land is 759m² and has a frontage of 15 metres. To the north is a building called Nusa, being a four-storey multiple dwelling in which all of the appellants live. To the south is a building called Lanai, which is an older three-storey multiple dwelling. To the east is a building called San Chelsea, which is a four-storey multiple dwelling.

In addition to the changes described above, the Proposed Development involved the following (at [2]):

1. The removal of the basement carpark, to be replaced with ground level car parking.

2. An increase in the communal open space from 114.75m² to 124.6m². The communal open space is to be moved from the ground level at the rear of the building to a terrace on level one overlooking Golden Four Drive.

3. Reduced setbacks.

4. Changes to the architectural treatment of the building to incorporate landscaping elements.

5. Design changes, creating a greater degree of openness.

6. Three, instead of two, darker top storeys.

Under the Planning Scheme the Land is (at [3]):

1. Within the Urban Area on Strategic Framework Map 1.

2. In the Consolidation Area on Strategic Framework Map 9.

3. In the Medium Density Residential Zone.

4. Under the Building Height Overlay Map, it is in an area subject to a building height of 23 metres; however, Specific Outcome 3.3.2.1 of the Strategic Framework permits an increase in building height of up to 50% where particular outcomes are satisfied (at [11]).

The Court cited the decision in McEnearney v Council of the City of Gold Coast (2024) 261 LEGERA 396, in which the Court of Appeal cited with approval the observations of the Planning and Environment Court in Catterall v Moreton Bay Regional Council [2020] QPEC 52, being that the assessment and decision making process for a change application for an other change is to occur "…in the context that the application is one to change an existing development approval, as distinct from a fresh development application" (at [8]).

The Court also recognised that it has a wide discretion under section 60 of the Planning Act 2016 to approve all or part of the application, impose development conditions, or refuse the application, and that "…the ultimate decision of the Court is a broad evaluative judgment", citing Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 at 1001 (at [9]).

The issues in dispute were whether there is compliance with all of the outcomes in Specific Outcome 3.3.2.1 of the Strategic Framework, in particular the following (at [13]):

1. "Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable."

2. "Does the proposed development reinforce the local identity and sense of place."

3. "Does the proposed development achieve an excellent standard of appearance of the built form."

The Appellants argued non-compliance with subparagraph (c) of Specific Outcome 3.3.2.1(9) of the Strategic Framework, which requires a well-managed interface with, and relationship to, nearby development and that the impact on nearby development and its residents is reasonable. In support of this argument, the Appellants argued that regard ought to be had to the following (also at [13]):

1. The reasonable expectations in the Medium Density Residential Zone Code (MDRZ Code) in respect of setbacks, and that the ground level, level 1, and levels 4 to 9 will intrude into those setbacks.

2. The Proposed Development will be physically overbearing to the surrounding development, being Nusa, San Chelsea and Lanai because of its height, setbacks and architectural treatments.

3. The Proposed Development involves inadequate landscaping.

The Court agreed that the initially proposed setbacks of 0.75 metres to the eastern boundary are inadequate, but endorsed proposed setbacks of 1.5 metres with deep planting, which the Co-Respondent stated it would agree to as a condition (at [18]). The Court also accepted the concession from the Appellants' visual amenity expert that when the landscaping, proposed opaque glass (which the Co-Respondent also stated it would agree to as a condition), and outdoor entertainment area are taken into account, the Proposed Development does not result in unreasonable impacts along the other boundaries at ground level or level one (at [20]). In respect of the higher levels, the Court was satisfied that the Planning Scheme in the purpose, overall outcomes and PO1 of the MDRZ Code states a number of different pathways to achieve a compliant setback and, importantly, such pathways do not prescribe a particular dimension but rather are qualitative in nature (at [22]). The Court found that the Proposed Development in this respect was compliant with the Planning Scheme, having regard to the progressive setbacks and substantial planting, and the design approach which is not physically overbearing to the neighbouring buildings (also at [22]).

In respect of subparagraph (b) of Specific Outcome 3.3.2.1(9) of the Strategic Framework, the Court found that the Proposed Development is a "…good example of a beachside high-rise multiple dwelling in an area where this development is contemplated by the planning scheme" and thus it reinforces the local identity and sense of place (at [23]).

In respect of subparagraph (e) of Specific Outcome 3.3.2.1(9) of the Strategic Framework, the Court found that the Proposed Development is "…of superior merit" and that it is an improvement on the original development approval (at [24]).

The Court found that the contentious provisions of the Planning Scheme had been satisfied, and thus the increase in the building height was justified under Specific Outcome 3.3.2.1 of the Strategic Framework (at [25]).

The Court went on to find that if its assessment in respect of the Planning Scheme provisions is incorrect, there are relevant matters to support approval, namely that the Proposed Development is a significant improvement on the originally approved architectural design and landscaping, and that the design changes attributable to the Proposed Development when compared to the originally approved development have no meaningful consequence on the Appellants (at [27]).

The Court allowed the appeal to the limited extent of the conditions being amended to enable the provision of the enhanced setbacks and opaqued glass.

If you have questions about planning appeals, development approvals, or change applications or if you require guidance on navigating the Gold Coast City Plan or related planning frameworks, please contact our Planning, Government, Infrastructure & Environment team for expert assistance.

• Strategic framework relevance: The uplift provisions do not guarantee approval for additional height; they require a holistic assessment of design, amenity and character outcomes.