The case of Harbour Island Pty Ltd v Gold Coast City Council & Anor [2023] QPEC 29 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision by the Gold Coast City Council (Council) to refuse a development application for a preliminary approval, including a variation request, which if approved would vary the effect of the planning scheme by requiring future development applications to be assessed against the superseded planning scheme with the Gold Coast International Marine Precinct Plan and Place Code (GCIMP PoD and Code) replacing the Coomera Local Area Plan including the Coomera Local Area Plan Place Code (Development Application).

The Court allowed the appeal and approved the Development Application, adjourning the matter for the parties to consider appropriate conditions of the approval.

The Development Application was in respect of land at 2, 54, and 110 Shipper Drive, Coomera, which fronts the Coomera River and has an area of 61.98 hectares (Land). The Development Application had two components:

1. Preliminary approval for a material change of use for mixed use development as set out in the proposed GCIMP PoD and Code.

2. Variation request to vary the effect of the "Our Living City" Gold Coast Planning Scheme 2003 Version 1.2 Amended November 2011 (Superseded Planning Scheme), with the GCIMP PoD and Code replacing the Coomera Local Area Plan including the Coomera Local Area Plan Place Code.

The Land is bisected by the reserve for the M1 highway extension, the Coomera Connector, and as a result, is divided into four separate precincts (see [5] to [8]):

1. Western precinct, 46.1% of the developable Land (Precinct 1).

2. Eastern precinct, 1.8 hectares and 6.4% of the developable Land, fronting the proposed internal marina (Precinct 2).

3. Southern precinct, 13.4 hectares and 47.5% of the developable Land, fronting the internal marina, to be developed for waterfront industry (Precinct 3).

4. Open space precinct, 28.4 hectares and intended to conserve natural vegetation and environmental qualities (Precinct 4).

The Appeal was commenced in December 2021, heard in May 2023, decided in June 2023, and governed by the Planning and Environment Court Act 2016 (Qld) (PECA). Under section 46(6) of the PECA, the Court was required to assess the Appeal against the Superseded Planning Scheme.

Pursuant to section 61(2) of the Planning Act 2016 (Qld) (PA), when deciding variation requests, the Court must relevantly consider:

"(a) the result of the assessment of that part of the development application that is not the variation request; and
(b) the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied; and
(c) the effect the variations would have on submission rights for later development applications…"

The following issues were agreed between the parties and considered by the Court (at [25]):

"(a) Land use and development generally;
(b) Need;
(c) Flooding (limited, in a practical sense to consideration of external impacts only);
(d) Other relevant matters."

The Court considered whether approving the Development Application would result in "unacceptable uncertainty". The Council's town planning expert opined that the proposed GCIMP PoD and Code is more accommodating to non-marine industry uses being "…considerably more lenient for general purpose warehouses, outdoor storage and even self-storage facilities" (at [28]). Although concerned that the proposal did not accurately reflect the precinct intent, the Council's town planning expert recognised that the proposal could be redrafted for better clarity (at [31]).

The Applicant submitted that there are no detailed designs or a precise tenancy mix as that is "…the very nature of the preliminary approval and variation request…", and further that it "…would not be reasonable to expect such a level of detail when seeking approval for the development of such a large site…" (see [38] and [33]). The Applicant contended that its position was to seek a development footprint for the entire Land as "it's better to do it in one overall application than to be confronted with the potential of actually having piecemeal applications over parts of the land in the future" (at [35]). The town planning expert for the Applicant called this "…a good planning approach to actually drill down from the broad to the next level…" (at [35]).

Further, the Applicant called a witness with experience in marine industry in the Coomera area since 2002 who suggested that on the balance of probabilities it would be marine-related uses that seek to locate and will predominate (at [43]).

The Court found the town planning evidence to be "…strongly in support of approval" and accepted that "[t]here is not an unacceptable risk of proliferation of non-marine uses" which "…can always be further addressed in the context of discussion of conditions for approval" (see [27] and [50]).

The need experts for each of the Council and the Applicant agreed that there is a need, not just for the development, but for it to occur on the Land to ensure the ongoing growth of the Coomera Marine Industry Precinct (at [51]). The need experts also agreed that there would be a need to provide ancillary uses to support the marine industry uses, including such uses as service station, tavern, and food outlets (at [58]).

The need expert for the Applicant gave evidence that the synergy between the existing marine industry uses would not be attractive to other general industry uses and that market forces would tend towards attracting uses focused on marine industry (at [61]). The need expert for the Council expressed concern that the scale of uses proposed is "excessive and too wide" (at [62]).

Although there was some dispute regarding the scale of non-marine industry uses, the need experts identified as a matter of common ground that there was a need for the development which would be facilitated by the approval of the Development Application (Proposed Development) (at [63]). The Court concluded that the issue of need favours approval (at [63]).

The Court considered whether the Proposed Development is consistent with the flooding assessment benchmarks having regard to whether it (at [64]):

(a) will have an adverse impact on flood storage in the catchment;

(b) has been acceptably designed to mitigate risk to life and property;

(c) will cause real damage to surrounding property;

(d) will cause adverse flooding impacts on surrounding property; and

(e) has increased risk to surrounding property from flood hazard.

The flood modelling showed that the Proposed Development will increase flooding to approximately 60 existing buildings by no more than three centimetres above existing flood levels (at [67]). This was found to be minimal (at [68]).

The Applicant was uncontended in its argument that there are no issues calling for refusal in terms of the safety of people on the site and evacuation during flood events (at [69]). However, the Council argued that there is reason to be concerned about flood impacts that would stem from the reduction in flood plain storage and off-site impacts (at [71]). The existing flood plain storage was modelled to be in the order of 62.5 million cubic metres, with the Proposed Development proposing a reduction of 460,000 cubic metres, or 0.73% (at [73]). The Applicant agued that this was not a significant loss in storage capacity (at [73]).

The Court accepted the Applicant's evidence that although there will be some loss of flood plain storage, "…it is so small as to be acceptable", concluding that the flooding issue is not a reason for refusal (at [82]).

The Court also considered whether the Development Application ought to be approved or refused having regard to whether it provides for an appropriate basis for ongoing development assessment consistent with the town planning intent, unacceptable impacts, public interest impacts, and limitation on potential community involvement.

The Court agreed that the proposed uses are consistent with the current planning scheme, and appropriately controlled, the flooding impacts are not unacceptable (at [86]). Unacceptable impacts were considered in the context of adverse flooding, traffic, and amenity which could not be ameliorated by conditions (at [87]). Traffic was no longer argued as a reason for refusal, and flooding had already been dealt with. Given the location of the Proposed Development being within an existing marine precinct, the Court considered that amenity was not an issue of significance (at [88]). The public interest regarding submitter appeal rights was found not to be an issue in the context of the nature of the precinct and the over-arching planning intent, such that the Court found that approval of the Development Application would not result in an unacceptable reduction in submitter rights (at [97]).

The Court allowed the appeal and adjourned it to allow the parties to consider and formulate development conditions.