The case of DVB Projects Pty Ltd v Council of the City of Gold Coast [2022] QPEC 40 concerned an appeal to the Planning and Environment Court of Queensland against the refusal by the Council of the City of Gold Coast (Council) of a development application made by DVB Projects Pty Ltd (Applicant) for a development permit for a material change of use for a multiple dwelling being 35 apartments in a 26-storey building (Proposed Development), on land on the corner of Broadbeach Boulevard, First Avenue, and Old Burleigh Road at Broadbeach (Land).

Relevantly, a development permit had previously been granted on 18 March 2019 for a material change of use for a nine-storey multiple dwelling building on the Land.

The Land is in the High Density Residential Zone under the Gold Coast City Plan 2016 (Version 8) (City Plan). The area around the Land is of a changing built form consisting of low, high, and medium-rise multiple dwellings (Subject Area).

At the time of the hearing of the appeal, the Council opposed the Proposed Development on the grounds that it does not comply with the assessment benchmarks relevant to amenity impacts and built design. 

The Court restated the principle from the case of Smout v Brisbane City Council [2019] QPEC 10; [2019] QPELR 684 at [54] that not every non-compliance will warrant refusal, and held that the amenity impacts and design of the Proposed Development satisfy all relevant assessment benchmarks of the City Plan and allowed the appeal.

The Council argued that the Proposed Development will have an unacceptable impact on the amenity of residents in the Subject Area because of its bulk, overbearing design and no meaningful setback or varying site cover (at [42]). The Council argued that the amenity impact is materially inconsistent with the overall outcomes in section 6.2.3.2(2)(b)(vii), (d)(ii), and (d)(iv) and performance outcomes PO1(a) and PO2(b) of the High Density Residential Zone Code (Zone Code), and the overall outcomes in sections 9.3.10.2(2)(a), (c), and (e) and performance outcome PO5 from the High-rise Accommodation Design Code (Design Code) (at [43]). 

The Court therefore had to determine the following (at [53]):

1. Whether the form of the Proposed Development unreasonably impacts the amenity of the adjoining Subject Area and has sufficient setbacks.

2. Whether the setbacks protect residential amenity in the Subject Area.

3. Whether the Proposed Development incorporates varying site cover sufficient to reduce the building’s dominance and provide areas for landscaping.

The Council argued that amenity impacts would be occasioned by a loss of privacy, noise, and outlook, by the bulk of the Proposed Development, and that the Proposed Development is unacceptably overbearing (at [74]). The Court heard evidence on these issues from the parties' architecture experts and visual amenity experts, but preferred the Applicant's expert's evidence over the Council's expert's evidence.

The Court heard from the remaining experts who were in some agreeance and held that the Proposed Development does not unreasonably impact the residential amenity in the Subject Area for the following reasons:

• The setbacks satisfy a level of privacy consistent with acceptable outcome AO1 of the Zone Code and that   "[a] degree of overlooking is to be expected in an area zoned for high rise buildings" (at [66]).

• The outlook from neighbouring residents in the Subject Area will not be unacceptably impacted since the view would have been similarly obstructed from the approved nine-storey development (see [68], [69], and [73]).

• The Court preferred the evidence of the Applicant's architecture and visual amenity expert who opined that the Proposed Development "…strikes an appropriate balance between the protection of the privacy of the adjoining residents and the articulation of the appearance of the building" (at [80]) since the description was more consistent with the visual impact of the fluted wall panels, fenestration, and recessed corner balconies (see [86] and [89]).

The Applicant conceded that the Proposed Development exceeds the acceptable boundary setbacks prescribed in the acceptable outcomes of the Zone Code. The Court held that for the same design reasons in respect of the issue of amenity, the built form of the Proposed Development is "setback from side and rear boundaries to protect the amenity of adjoining users" (see OO6.2.3.2(2)(d)(i) of the Zone Code and [94]) and the setbacks "…assist in the protection of adjacent amenity" (see PO1(a) of the Zone Code and [94]). Thus, the Proposed Development achieved compliance with the Zone Code.

The Council argued that the Proposed Development is inconsistent with overall outcome OO6.2.3.2(2)(d)(iv) of the Zone Code, which states that "[the built form] has varying site cover to reduce building dominance and provide areas for landscaping". The Council argued "…that the requirement for 'varying site cover' should be construed as a requirement for variations in floorplate area between differing levels of development, with the floorplate areas decreasing in area with increasing height, to achieve the outcomes of reduced building dominance, and to provide areas for landscaping" (at [103]).

The Court agreed in part with the Council's interpretation, but held that the context of overall outcome OO6.2.3.2(2)(d)(iv) does not "…import a requirement for a reduction in floorplate area with increasing height" (at [106]). The Court held that complying with overall outcome OO6.2.3.2(2)(d)(iv) does not require a reduction in the floorplates at the higher levels. The Court considered the following evidence of the parties' visual amenity experts and found as follows:

• The Council's visual amenity expert opined that a variation in 21.3% of site cover across the Proposed Development is not meaningful having regard to the acceptable outcomes (see [107] and [109]). The Court agreed that the variations are not significant, but held that "…they are sufficient to appropriately reduce the building’s dominance in its context…" because of the design features of the Proposed Development (at [117]). The Court agreed with the expert's concession that the landscaping will assist to provide a human scale to the Proposed Development (at [115]).

• The Applicant's visual amenity expert opined that the evidence from the plans and schematic landscape design demonstrates that the landscaping, setting, and design satisfy the requirements of overall outcome OO6.2.3.2(2)(d)(iv) and performance outcome PO2(a) of the Zone Code (at [113]). The Court agreed and held that "[h]aving regard to the photos (including those from Bedarra), the plans (including the elevations and sections), the schematic landscape design, the visual representations, [and] the photomontages", the Proposed Development has varying site cover (see [116] and [117]).

The Council argued that the inappropriate design of the Proposed Development results in an "…unduly bulky and monolithic built form that is inconsistent with the intended built form in the locality" and "…an adverse impact on the street’s character" (at [121]). The Council relied on assessment benchmarks in the Zone Code, Design Code, and Light Rail Urban Renewal Area Overlay Code (Overlay Code). 

These assessment benchmarks relevantly gave rise to the following issues to be determined by the Court (at [131]):

1. Whether the Proposed Development has a clearly defined tower and podium form and appropriately interface with the street.

2. Whether the Proposed Development has a slender bulk form and promotes an open skyline.

The Council argued that the built form of the tower and podium is not "orthodox and effective" and does not satisfy the overall outcome in section 8.2.12.2(3)(e)(i)(B) of the Overlay Code and other assessment benchmarks of the Zone Code and Design Code (see [145] and [146]). 

The terms "podium" and "tower" are not relevantly defined in the City Plan. The Court accepted the Council's argument that the purpose of a podium under the City Plan is to (at [158]):

"(a) provide a space that interfaces and interacts with the street by providing an opportunity for passive surveillance of the street and for engagement with street life; and

(b) complement the size and scale of existing lower-rise buildings in the locality."

The Court held that applying this purpose, the podium is not required to be "orthodox and effective", but rather it is encouraged by section 8.2.12.2(3)(e)(iii) of the Overlay Code to be "innovative" (at [159]). The Court held as a matter of fact that the Proposed Development has a defined tower and podium built form with an appropriate street interface (at [171]) for the following reasons:

• The Court accepted the evidence of the Applicant's architecture expert who opined that the transitional height of the tower and podium results in a cohesive landscape and is an innovative visual aesthetic that promotes street interface (see [165] and [166]).

• The Proposed Development interfaces with the street and "…does not dominate the streetscape or the character of the local area", and there is a clear definition between the podium and tower as required by the City Plan (at [167]).

• The Court rejected the evidence from the Council's town planning expert as it was founded on the incorrect evidence of the Council's architecture expert (see [167] to [170]).

The Council argued that the Proposed Development does not exhibit a slender bulk form (at [172]). The Court found that the City Plan "…calls for a value judgment about whether the proposed development, considered in its three-dimensional form, could properly be regarded as a slender tower and whether the site cover promotes a slender bulk form" (at [177]).

The Council's visual amenity expert opined that the Proposed Development sought to take advantage of the height designations, high sight cover, and minimal setbacks, which resulted in "…a particularly long, high-rise building that extends across most of the subject land with little variation in site cover" (at [195]).The Applicant's architecture expert opined that the Proposed Development "…will have a slender tower form that will be innovative, attractive and visually appealing and will advance and enhance views of the Gold Coast’s iconic skyline" based on the plans, elevations, perspective views, and photomontages (see [181] to [191]).

The Court preferred the evidence of the Applicant's architecture expert finding that the Council's expert "…placed too heavy an emphasis on the built form metrics and gave little weight to the appearance of the proposed development in its context" (at [200]). The Court held that the Proposed Development is a slender tower, and promotes slender bulk from in its site cover that enhances the skyline (see [200] and [206]). For the same reasons, the Court also held that the Proposed Development "…will have no unacceptable visual or physical impacts" and complies with all of the relevant assessment benchmarks (see [210] and [211]).

The Court allowed the appeal and approved the development application subject to reasonable and relevant conditions.