The case of McEnearney v Council of the City of Gold Coast [2024] QCA 246 concerned an application brought by a Submitter seeking leave to appeal to the Queensland Court of Appeal (Court) against the decision of the Planning and Environment Court (P&E Court) in the case of McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32 which confirmed the decision of the Council of the City of Gold Coast (Council) to approve a change application made by a developer (Applicant) for a development permit for a material change of use for a mixed-use development at 3 Rutledge Street, 2-18 Marine Parade, and 119 Musgrave Street in Coolangatta (Proposed Development).

The Submitter relied on the following four grounds of appeal (at [10]):

"(1)    The primary judge erred in treating an existing development approval (for building heights not anticipated) by the Planning Scheme to offer a means for further exacerbation of such heights [Ground 1].

(2)    The primary judge erred in [Ground 2]:

(i)    not giving effect to s 3.3.2.1(10) of the Strategic Framework as placing a strict control as to maximum building height;

(ii)    treating the assessment of the proposed building height as governed by s 3.3.2.1(9) (and without finding each and every outcome of that provision was satisfied).

(3)    The primary judge erred in permitting the achievement of building heights by incremental approval and change which could not lawfully have been achieved directly [Ground 3].

(4)    The primary judge erred in failing to give effect to community expectations as expressed in objections by reason of the development approval, such approval affording no proper basis in law to render unreasonable the expectations the community has expressed [Ground 4]."

The Court found that the Submitter had failed, on all grounds, to establish an arguable error of law. The application for leave to appeal was refused with costs (at [11]).

The Council first gave a development approval for the Proposed Development on 4 April 2014 (Development Approval). The Proposed Development comprises a multi-storey mixed use development comprising of apartments, a resort hotel, a tavern, a shopping centre, and service industry uses. The Development Approval authorised the construction of four Buildings in four stages, with the tallest being 16 storeys in height.

On 17 March 2022, the Applicant made an application to the Council for a non-minor change to the Development Approval (Change Application). The proposed changes included, among other things, architectural changes to two of the proposed buildings resulting in building height increases of 11.2 metres (from 10 to 14 storeys) and 5.1 metres (from four to seven storeys) to each building respectively (see [3] to [5]).

The Change Application was approved by the Council on 15 June 2023 and the Council's decision was confirmed by the P&E Court on 21 June 2024 (see [7] to [8]).

The Submitter applied to the Court for leave to appeal against the decision of the P&E Court. The Court had to decide, pursuant to section 63 of the Planning and Environment Court Act 2016 (Qld), whether the Submitter demonstrated that there was an error or mistake in law and whether the error was material in that it could have materially affected the decision of the P&E Court (at [9]).

Grounds 1, 2, and 3, which relate to an alleged failure to construe and apply strict control on the building height of the Proposed Development, were dealt with together by the Court (at [25]).

Sections 3.3.2.1 (8), (9), and (10) of the Strategic Framework in the Gold Coast Planning Scheme 2003 (Planning Scheme) impose restrictions on building heights in accordance with the Building height overlay map (Building Height Assessment Benchmarks). The Proposed Development in both its original and changed form does not comply with the 15-metre or three-storey limit required by the Building Height Assessment Benchmarks.

The Submitter argued that the primary judge erred in "…excusing the exceedance in height by reference to the Development Approval granted under the Gold Coast Planning Scheme 2003 (Qld)", being the version of the Planning Scheme in force at the time the Development Approval was granted (at [26]). According to the Submitter, allowing the Change Application meant allowing an incremental Development Approval to "…circumvent strict building height controls" (at [26]).

Whilst the Applicant accepted that the primary judge had to have regard to the Development Approval, which had already authorised the construction of a 16-storey building and informed the current character of the site (at [18]), the Submitter argued that "…[the Development Approval] could not in itself '[afford] positive support for approving more height exceedances'" (at [27]).

The Court found that the Submitter fell short of establishing the alleged errors stipulated in Grounds 1 to 3 for two primary reasons.

Firstly, pursuant to section 82(4)(d) of the Planning Act 2016 (Qld) (Planning Act), the primary judge was entitled to consider a variety of factors in assessing the Change Application, including "…any development approval for, and any lawful use of, the premises or adjacent premises…" (at [31]).

Secondly, the Court also found that "…the Applicant's submission that section 3.3.2.1(10) should be construed as imposing a 'strict building height control' is contrary to authority" (at [36]). The Court referred to the cases of Abeleda v Brisbane City Council [2020] QCA 257; (2020) 6 QR 441 and Ashvan Investments Units Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, which make clear that non-compliance with an assessment benchmark does not automatically warrant refusal (see [36] to [37]).

Whilst the Court noted that the primary judge failed to strictly engage with some aspects of the Building Height Assessment Benchmarks, the Court ultimately found that the discretion afforded by section 60(3) of the Planning Act is broad (see [38] and [39]). The Court held that the primary judge was entitled to "…determine how, and in what way, non-compliance with [the Building Height Assessment Benchmarks] informed the exercise of the wide discretion" (at [38]).

The Submitter's fourth ground of appeal related to an alleged failing to give effect to community expectations as expressed in the 39 properly made submissions objecting to the Proposed Development (at 42]).

The primary judge was conscious of the submissions objecting to the Proposed Development, however found that they "…do not establish a reasonable expectation about the nature of the built form on the Site against which the Change Application should be considered" (at [43]).

The Submitter argued that the primary judge elevated the Development Approval to a status which it did not warrant and allowed it to displace community expectations as to height (at [44]).

The Court did not accept the Submitter's position and ultimately found that "…it has long been recognised…that the reasonable expectations for the community are informed not only by the adopted planning controls, but also by what exists on the ground" (at [45]). The Court further noted that in this case, what exists on the ground was the already constructed 16-storey building forming part of the Proposed Development.

The Court found that no arguable error of law had been established by the Submitter. The application for leave to appeal was refused with costs.

The Applicant later applied to the P&E Court seeking an order that the Submitter pay the Applicant's costs of the P&E Court appeal (Application for Costs).

The Application for Costs, which was considered in the case of McEnearney v Council of the City of Gold Coast & Anor (No. 2) [2025] QPEC 3, was unsuccessful as the proceedings were not found to be frivolous or vexatious, and thus the application was dismissed.

The Court's decision in this case highlights the following important considerations for those seeking leave to appeal a decision of the P&E Court:

• The Court's discretion under section 60 of the Planning Act is broad and an error in law may not be established simply because the primary judge may have exercised its discretion by placing less weight on a non-compliance and more weight on other factors relevant to the broader context of the proposed development.

• A jurisdictional error, or an indisputable error or mistake in law which materially affected the decision of the Court, must clearly be established in order for leave to be granted.