The case of S & S No. 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42 concerned an appeal to the Planning and Environment Court of Queensland (Court) by S & S No. 4 Pty Ltd (Applicant) against the refusal by the Council of the City of Gold Coast (Council) of a development application (Development Application) for a development permit for a material change of use for an 18-storey mixed use development with a building height of 59 metres (Proposed Development) on a site located towards the middle of the Palm Beach district centre, on the south-western corner of the intersection of Gold Coast Highway and Palm Beach Avenue (Site).

The Site is relevantly located in the Palm Beach district centre under the Gold Coast City Plan 2016 (Version 8) (Planning Scheme) in which buildings are not to exceed the maximum height of 39 metres as indicated on the Building Height Overlay Map (BHOM) (at [60]). The Planning Scheme provides the opportunity for a building height uplift if the provisions of Specific Outcome 3.4.4.1(5) of the Strategic Framework in the Planning Scheme (uplift provision) is satisfied (at [4]).

The issues in dispute were as follows (at [80]):

1. Whether the Proposed Development complies with the uplift provision.

2. Whether the Proposed Development gives rise to unacceptable traffic impacts, including safety impacts.

3. Whether the Proposed Development should be approved or refused having regard to the relevant matters, including need, nominated by the parties.

The Court allowed the appeal because the examination of the disputed issues demonstrates that an approval of the Development Application with conditions will achieve compliance with the uplift provision which is a matter that significantly weighs in favour of approval (at [181]).

The Proposed Development comprises multiple dwellings, short-term accommodation, a food and drink outlet, a function facility, indoor sport and recreation, and a hotel (at [30]).

The Council refused the Development Application due to non-compliance with the assessment benchmarks in the Planning Scheme relating to building height and traffic safety (at [3]).

The appeal by the Applicant was opposed by the Council and the Co-Respondents by Election who made properly made submissions to the Council adverse to the Development Application (Submitters) (at [3]).

The uplift provision states as follows (at [67]):

"(5)    Increases in building height occur in mixed use centres and specialist centres 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;

(f)    protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features;

(g)    deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and

(h)    the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities."

The Council and Submitters contended that the Proposed Development does not satisfy the Specific Outcomes stated in subparagraphs (a), (b), (c), (d), and (f) of the uplift provision (at [83]).

The Court observed that local identity and sense of place are split into two categories of natural features and existing built environment (at [88]).
With respect to natural features, the Court observed that the Proposed Development will not remove, alter, or detract from the natural environment of the beach, coastal edge, and natural landscape of Palm Beach. The Court found that the activation of the two streets in the district centre will improve pedestrian comfort and access to the beach, and therefore promotes local identity and sense of place (at [89]).

With respect to the existing built environment, the Court observed that the existing built environment is informed by the presence of the highway, the predominance of existing low-rise and small-scale built form which is subordinate to new development on the Gold Coast Highway, and the predominance of street frontages which indicate a busy, highway-orientated centre with a built environment ripe for redevelopment (at [90]).

The Court found that the Proposed Development will reinforce the sense of place in respect of the built environment features for the following reasons, and thus complies with Specific Outcome 3.4.4.1(5)(a) (see [91] and [134]):

1. The Proposed Development is to be located in the centre of the district centre, which reinforces the importance of the centre in land use terms.

2.  The Proposed Development when contrasted with the existing built environment reinforces that the district centre is ripe for redevelopment, and that the district centre accommodates the tallest and most intense land uses in Palm Beach.

3.  The Proposed Development will likely act as a catalyst for the redevelopment of other land within the district centre.

4.  The Proposed Development will not interfere with the parts of the district centre that exhibit appropriate levels of pedestrian amenity.

The Court disagreed with the Council's submission that the Proposed Development does not comply with Specific Outcome 3.4.4.1(5)(b) because the tower has a reduced setback and would cause reduced space between towers and breaks between cumulative shadows (at [136]), for the reason that it assumes an appropriate separation distance is unable to be achieved between the Proposed Development and the future development on adjoining and adjacent sites (at [137]).

The Court held that the Proposed Development is well considered with a meritorious design, and is consistent with the intended character of the Palm Beach district centre (at [138]).

Thus, the Court found that the Proposed Development complies with Specific Outcome 3.4.4.1(5)(b) (at [140]).

The Applicant's town planning expert opined that the Proposed Development would contribute to a varied, ordered, and interesting skyline (at [141]).

The Council argued that "…the proposed development would be ‘out of place in the local skyline’, ‘unlike anything in its immediate vicinity’, ‘out of alignment with the height contemplated for the centres hierarchy’ and ‘a highly conspicuous punctuation above 29m’ when only a ‘modest variation’ to the desired building height profile is intended" (at [142]).

The Court preferred the evidence of the Applicant's expert because they appropriately gave weight to the character planned for the Palm Beach district centre and the visual prominence of the Proposed Development, whereas the Council's expert erroneously assumed that only "modest punctuations" above the height identified on the BHOM accords with an ordered skyline (see [144] and [145]).

Thus, the Court found that the Proposed Development complies with Specific Outcome 3.4.4.1(5)(c) (at [146]).

The Applicant's architect expert opined that the product of a number of design elements such as the design of the ground floor and podium, transition from podium to tower, design elements of the tower, and proposed treatment of the walls which respects the existing character achieves an excellent standard of appearance (at [147]). The architect experts engaged by the Council and the Submitters were critical of the design of the Proposed Development (at [148]).

The Court preferred the opinion of the Applicant's architect expert because he considered the Specific Outcome by reference to the design of Proposed Development as a whole and his views were supported by the photomontages (at [149]).

Thus, the Court found that the Proposed Development complies with Specific Outcome 3.4.4.1(5)(d).

The Court observed that the Proposed Development will not have an adverse effect on public views or access to the important natural features of the beach, ocean, headland, and Currumbin Creek (at [151]). Thus, the Court found that the Proposed Development complies with Specific Outcome 3.4.4.1(5)(f) (at [151]).

The Council argued as follows in respect of the Proposed Development's compliance with the relevant assessment benchmarks in the Transport Code (at [153]):

1. In respect of Performance Outcome (PO) PO2 and PO5, the proximity of the porte-cochere driveway to the intersection gives rise to safety and operational issues for traffic, cyclists, and pedestrians (at [154]).

2. In respect of PO5 and PO6, the traffic experts engaged by the Council and the Submitters raised concerns about the adequacy of on-site serving arrangements for vehicles larger than an ordinary sedan (at [166]).

3. There are insufficient car parks provided because Acceptable Outcome 1 requires 196 spaces, but the Proposed Development includes 102 carparks and 12 motorcycle spaces (at [161]). 

The Court found as follows with respect to the Transport Code, and that the traffic impacts do not warrant the refusal of the Development Application (at [171]):

1.  The design and siting of the porte-cochere and access will not give rise to any unacceptable safety risk for vehicles, pedestrians, and cyclists because the traffic experts engaged by the Council and the Submitters did not convince the Court that such risks exist. The Court stated that this materially undermined the Court's confidence in the evidence of the traffic experts engaged by the Council and the Submitters (at [159]).

2. The Court preferred the evidence of the Applicant's traffic expert  who prepared swept diagrams which demonstrated that a coaster bus and trailer combination can manoeuvre in a manner that achieves compliance with PO5, PO6, and PO7 (at [168]).

3. The Proposed Development would adequately cater to the parking demand because the Court accepted the evidence of the Applicant's traffic expert who calculated a parking demand of 92 to 115 spaces (at [163]). The Court disagreed with the Council's expert's carpark calculation because it assumed that the carparking rate applied to the multiple dwelling units also applies to the hotel suites (at [162]).

The Applicant argued that the Proposed Development will result in the redevelopment of an underutilised site in a manner consistent with the Planning Scheme, act as a catalyst for the redevelopment of the Palm Beach district centre as a whole, introduce high-level quality hotel accommodation for visitors, have no adverse traffic impacts, have no adverse amenity or character impacts, and have no adverse town planning consequences (at [182]).

The Court held that its findings in respect of the uplift provision and the traffic issues, as well as the relevant matters put forward by the Applicant, are "more than sufficient" to satisfy the Court that the Proposed Development is highly meritorious and should be approved subject to conditions (at [183]).

The Court found that the 1,863 community submissions against the Proposed Development do not attract significant weight in the exercise of its discretion because the submissions related to an earlier iteration of the Proposed Development which included a taller building than now proposed and the assessment of sense of place and local identity in the community submissions did not reference the Planning Scheme and planned character (see [78] and [79]).

The Court found that the Applicant had discharged its onus and that orders will be made allowing the appeal and approving the Development Application subject to conditions (at [184]).