The case of 74 The Esplanade Pty Ltd v Council of the City of Gold Coast [2023] QPEC 36 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Council of the City of Gold Coast (Council) to refuse a development application for a development permit for a material change of use for a multiple dwelling (15 units) and food and drink outlet, and a preliminary approval for operational works (public landscaping) (Proposed Development) on land situated at 3640 Main Beach Parade, Main Beach (Land). 

The Land is critically within the vicinity of multiple dwellings exhibiting a similar intensity to the Proposed Development that have been recently approved by the Council. The Land is subject to the following provisions under the Gold Coast City Plan 2016 (version 8) (Planning Scheme):

• High density residential zone code (Zone Code).

• Light Rail Urban Renewal area overlay code (Overlay Code).

• High-rise accommodation design code (Design Code). 

• Landscape work code.

The Council refused the development application on the grounds that the Proposed Development "…will result in an overdevelopment of the site which is only 410m² in size" (at [2]). The agreed list of issues in the appeal were as follows (at [21]):

"1.    Whether the setbacks and site cover of the proposed development will result in unacceptable character and  amenity impacts and will result in overdevelopment;

2.     Whether the built form, height and density of the proposed development will result in unacceptable amenity and character impacts and will result in overdevelopment;

3.     Whether the proposed landscaping and ultimate streetscape will result in unacceptable character and amenity impacts."

The Council argued that "… it is simply not possible to locate a building of this size on a lot this small and comply with the requirements of the planning scheme in respect of setbacks" (at [22]). The Applicant argued that the Proposed Development complies with the relevant provisions of the Overlay Code, being overall outcomes 3(a)(i) and (iii), which state as follows:

"(3)     The purpose of the code will be achieved through the following overall outcomes:

…

(a)     Place making helps development contribute to strengthening communities’ local character through:

(i)     neighbourhood analysis that evaluates the distinct local character patterns, opportunities, and challenges and how the proposed development enhances them;

…

(iii)     locating and designing development to respect and complement the scale, character, form and setting of on-site and adjacent properties; 

…"

The Court rejected the Council's argument and held that although the Proposed Development does not comply with some performance outcomes, the setbacks and site cover do not result in unacceptable character and amenity impacts for the following reasons:

1.    The Proposed Development complies with overall outcomes 3(a)(i) and (iii) for the following reasons:

(a)    The relevant photomontage demonstrated that "…the design promotes public to private realm transition and surveillance…" (at [27]).

(b)    The local character and the scale, character, form and setting of the properties adjacent to the Proposed Development include more intense development which had been recently approved (at [23]). 

2.    The Court agreed with the following joint opinions of the visual amenity experts of the Applicant and Council (at [24]):

(a)    The podium of the Proposed Development "…is unlikely to cause significant impacts on the character or amenity of the area and any overbearing impacts of the tower of the proposed development would only be apparent from nearby viewpoints."

(b)    The Proposed Development "…will not be a particularly large building when compared to other high-rise buildings in the area and that the tower will be slender." 

(c)    "…[T]he proposed development would achieve reasonable separation from existing towers nearby…" and  "…would not unreasonably obstruct any important view corridors through the local  area."

3.    The Court agreed with the evidence from the Applicant's visual amenity expert, who concluded as follows (at [25]):

(a)    The properties adjacent to the Proposed Development "…have similar side setbacks…interfacing with large recreation spaces."

(b)    "…[T]he built to boundary setbacks for the podium of the [Proposed Development] will interface with the neighbouring driveway on the southern side, an accessway on the western side (where adjoining residents are unlikely to spend large amounts of time), and that their primary living areas are typically orientated away    from the site" and "…they will retain ample access to open sky views."

(c)    "…[T]he landscaping treatment of the built to boundary elements and the podium would reduce the dominance of the proposed development."

4.    The Proposed Development's non-compliance with the provisions relevant to amenity in the Design Code and the Zone Code do not warrant refusal (see [26] to [27]). 

The Council argued that the language of overall outcome 3(e)(viii) of the Overlay Code, which states "[n]ot all light rail urban renewal areas will accommodate high-rise buildings", expressly discourages the Proposed Development for the reason that it is a high-rise development (at [29]). 

The Court rejected the Council's argument and held that "…this statement appears to be more of a reflection of the fact that the [Overlay Code] also covers low-to-medium rise areas as well as Frame areas being high density neighbourhoods where the site is located" (at [29]). 

The Court held that the built form, height and density of the Proposed Development will not result in either unacceptable amenity and character impacts or overdevelopment for the following reasons: 

1. The Applicant's architectural expert opined that the buildings adjacent to the Proposed Development "…will continue to dominate the character of the local area." (at [30]). The Court agreed and noted that these buildings are almost twice the height of the Proposed Development. 

2. The Court stated that "…compliance will be achieved in circumstances where the [Proposed Development] will be an attractive, high-quality and visually appealing building which will not have adverse amenity impacts on neighbouring premises" (at [32]). 

The Court held that there are no reasons for refusal of the Proposed Development in respect of landscaping or streetscape for the following reasons:

1. "…[T]he landscaping cleverly softens the built form in a way that is both innovative and adequate having regard to the photomontages" (at [33]). The Court agreed with the Applicant's architectural expert that "…this approach is similar to that exhibited in the recently approved developments in the vicinity of the site…" (at [33]).

2. In respect of overall outcome (2)(i) of the Landscape work code, the Court accepted the evidence of the Applicant's architectural expert that "…the proposed landscaping can be appropriately maintained and that this can be achieved through the imposition of lawful conditions" (at [35]).

The Court allowed the appeal subject to the imposition of appropriate lawful conditions.