The case of The Body Corporate for 62 Pacific Community Titles Scheme 45586 & Anor v Council of the City of Gold Coast & Anor; Sexton v Council of the City of Gold Coast & Anor [2025] QPEC 13 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Gold Coast City Council (Council) to approve a development application for a development permit for a material change of use to facilitate the development of a 10-storey residential apartment building at 66 Pacific Parade and 2A Archer Street, Bilinga (premises).

The Court considered whether the proposed development complied with all of the outcomes prescribed in section 3.3.2.1(9) (building height uplift provision) of the Gold Coast City Plan 2016 (version 9) (City Plan). The building height uplift provision permits a greater height allowance, provided that all of the stated eight outcomes are achieved. The Appellants contended that there is noncompliance with the following five of the eight outcomes:

"(9)    Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied:

(a)    a reinforced local identity and sense of place;

(b)    a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;

c)    a varied, ordered and interesting local skyline;

(d)    an excellent standard of appearance of the built form and street edge;

(e)    housing choice and affordability…"

The Court held that the proposed development demonstrated partial noncompliance with the outcomes in sections 3.3.2.1(9)(a), (c) and (d), attracting significant weight in the exercise of discretion. The negative attributes of the design were found to materially overwhelm the positive features of the proposed development. The appeal was allowed, and the decision of the Council to approve the development was set aside. 

A development application was submitted by LGDC McInnesville Pty Ltd (Co-Respondent) for a development permit for a material change of use for multiple dwellings. The proposed development comprises 27 units across 10 storeys and is approximately 31.8 metres in height. The premises forms a regular shaped corner allotment extending to 1,009 square metres, with frontages of approximately 20 metres and 50 metres to Pacific Parade and Archer Street respectively. 

The premises is zoned Medium Density Residential, which allows a maximum building height of 23 metres, with a 50% increase to the allowable height, subject to compliance with the outcomes of the building height uplift provision. 

The development application was impact assessable and attracted numerous properly made submissions. The Appellants, residing close to the subject premises, commenced two appeals in respect of the same key issues. The Court heard both of the appeals together. The Appellants did not pursue housing affordability as an issue under subsection (e) of the building height uplift provision, confining the challenge in respect of that subsection to housing choice. The level of compliance with each of the five outcomes was considered by the Court as follows.

The terms "local identity" and "sense of place" are not defined within the City Plan, however, were considered by each of the architects, visual amenity experts and town planners. Local residents consider Bilinga to have a low-key coastal village feel and are concerned that the development will erode this sense of place, by reason of its height and bulk (at [131]).

The Court found that "…an assessment of the 'local identity' and 'sense of place' calls for consideration of the existing attributes in the locality and the planned outcomes" (at [132]). The Court held that the planned outcomes are evident within the City Plan and is also informed by the large number of development approvals in place (at [133]). It was accepted that the local identity of Bilinga is transitioning towards a planned character consistent with the Medium Density Residential Zone and the opportunities in subsection (a) of the building height uplift provision (at [135]). 

However, further consideration was given to finer-grained building attributes within the location such as the extensive provision of balconies, pronounced modulation and the recessing of upper levels (at [140]). The Court agreed that the façade of the proposed development presents little articulation, exacerbated by its prominent corner location. Therefore, the proposed development does not achieve a reinforced local identity and sense of place as required by this provision (at [148]).

The Appellants argued that the proposed development does not provide a well managed interface in the context of surrounding development and reasonable expectations of nearby residents. Specifically, the Appellants argued that the proposed development would have an overbearing impact on the neighbouring properties, in particular 4 Archer Street and 64 Pacific Parade, due to the height of the building and insufficient setbacks at upper levels.

The second issue related to the flat unarticulated façade of the proposed development. The Appellants' expert suggested that a better outcome would incorporate adjustable screening, greater structural variations and diverse external treatments. The Court found this argument to be unpersuasive, demonstrating that a more attractive design is possible, rather than reflecting a well managed interface (at [155]). 

Finally, the third issue relating to the minimal extent of landscaping and limited community open space was found to be unpersuasive given no clear link was identified between the interface and the extent of community open space. Overall, the development was deemed to comply with the outcome in this provision (at [157]). 

The parties agreed that the proposed development would achieve a varied and ordered skyline by introducing a building of different height, albeit in general alignment, with other buildings located along Pacific Parade (at [160]). The experts for the Council and Co-Respondent opined that the building provided an interesting contribution to the skyline through a step in roofline, cantilevered balconies and various setbacks allowing for certain recessed landscaping strips (see [162] to [163]).

The Court did not find the contribution to the skyline "interesting" given that the variation in the roofline offered minimal visual impact and reflected a "…broadly rectangular building of a largely uniform appearance with a flat roof structure" (see [166] to [167]). Therefore, the proposed development was considered to achieve only partial compliance with this provision.  

The standard of the appearance of the proposed development involved matters of impression and judgement (at [169]). The Court accepted that the appearance of a building is not defined by the individual features or elements, but rather the way in which the elements are arranged or combined to create a visual impression (at [171]).

The experts for the Council and Co-Respondent gave evidence that the building has an excellent standard of appearance, with the inclusion of recessed planter boxes, interspersed textured concrete panels, glass and alternating colourations creating an impression of verticality (at [173]). However, the Court preferred the evidence of the Appellants' expert, agreeing that the design of the building created a "…large, bulky street elevation with little relief through form, shadow, screening and modelling" (at [184]).

On balance, it was held that the excellence of the landscape design along the street edge is not sufficient to overcome the character and visual amenity impacts of the façade and lack of modulation. Therefore, the proposed development was found to achieve only partial compliance with this provision.

The dispute between the parties was confined to whether the proposed development provides housing choice. The Court placed no weight on the evidence given by the Appellants' expert, finding that it failed to consider the relevant context in the City Plan and was discordant with other decisions of the Court relating to the interpretation of the City Plan, in particular the case of Archer v Council of the City of Gold Coast & Ors [2022] QPEC 59; (2024) QPELR 387 (see [204] to [206]).  

The Court preferred the opinion of the experts for the Council and Co-Respondent, finding that the proposed development provides an increase in two and three-bedroom apartments at a price point that is more affordable than detached houses in the locality. Further, the proposed development is located in an area with existing and planned infrastructure for residents, which improves efficiencies (at [211]). Accordingly, it was held that the proposed development achieves the outcome sought in this provision. 

The Court held that the proposed development complies with sections 3.3.2.1(9)(b) and (e) of the Strategic Framework and partially complies with section 3.3.2.1(9)(c) and (d). These were considered against the identified noncompliances, which were regarded as significant and given considerable weight.

On balance, the Court was not persuaded that "…the positive aspects of the proposed development and the other matters that favour approval, taken collectively, are sufficient to provide a sound town planning basis to depart from the City Plan" (at [229]). 

The appeal was allowed, and the decision of the Council to approve the development application was set aside.