The case of McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32 concerned a submitter appeal by a landowner (Submitter) to the Planning and Environment Court of Queensland (Court) against the decision of the Council of the City of Gold Coast (Council) to approve a change application (Change Application) in respect of a development approval that is a development permit for a material change of use (Development Approval) for a site located at 3 Rutledge Street, 2-18 Marine Parade, and 119 Musgrave Street, Coolangatta (Site).

The Change Application proposed a number of changes, including most relevantly, a change to height of the proposed development (at [6]).

The Court considered whether the Change Application complied with the Gold Coast City Plan 2016 (Version 8) (Planning Scheme) and whether there were sufficient relevant matters to warrant approval of the Change Application despite any non-compliance with the relevant assessment benchmarks in the Planning Scheme (see [31] and [130]). 

The issues in dispute included those relating to community expectations, building height, built form, scale, and character, amenity including noise, visual amenity, shadow impacts, views, privacy, mix of uses, and need (at [36]).

The Court dismissed the appeal for the reason that the benefits of the Change Application outweigh any adverse impact arising from the non-compliance with the relevant assessment benchmarks relating to height (at [135]).

The Site is located at the eastern end of the Kirra foreshore area (at [12]) and is included in the Neighbourhood Centre Zone under the Planning Scheme (at [33]). The Development Approval is a development permit for a material change of use for multiple dwellings, short-term accommodation, resort complex, food and drink outlet, shop, office, health care services, service industry, and hotel (at [3]).

The proposed development that is the subject of the Development Approval comprises the following four stages (at [3]):

1. Stage 1 – Building 1 (16 storeys) comprises multiple dwellings and the hotel use (Building 1).

2. Stage 2 – Building 2 (10 storeys) comprises multiple dwellings and retail uses (Building 2).

3. Stage 3 – Building 3 (4 storeys) comprises a resort complex and retail uses (Building 3).

4. Stage 4 – Building 4 (3 storeys) comprises multiple dwellings (Building 4).

The Change Application sought the following changes (at [6]):

1. Storeys and height – An increase from 10 storeys to 14 storeys, with an increase in the overall building height of 11.2 metres for Building 2 by 11.2 metres and an increase from four storeys to seven storeys, with an increase in overall building height of approximately 5.1 metres for Building 3.

2. Architectural design – A change to the architectural design of Building 2 and Building 3.

3. Retail/commercial gross area – An increase in the retail/commercial gross floor area of the development from 2,947m² to 4,360m².

4. Car parking, floor layout, tenancies, and laneways – An increase of car parking from 540 to 621 car parks, and internal amendments to the ground floor layout, tenancies, and laneways.

5. Indoor sport and recreation use – An introduction of an indoor sport and recreation use.

6. Dwelling units and hotel suites – An addition of seven dwelling units to Building 2 and an addition of 14 hotel suites to Building 3.

7. Removal and consolidation of stages – The removal of Building 4 and consolidation of Stages 2 and 3.

The Submitter appealed against the Council's decision to grant the Change Application on the basis that the change would be unacceptable having regard to its impacts on character and amenity arising from the changes in the built form and height (at [9]).

The Co-Respondent, being the Applicant for the Development Approval, bore the onus of establishing that the appeal should be dismissed (at [22]).

The Court observed that the Planning Scheme and Development Approval inform the community's reasonable expectations as to the development that may occur on the Site, the character of the Site, and its contribution to the character of the locality (at [40]).

The Court found that the properly made submissions and Submitter's statement do not give sufficient weight to the Development Approval, and therefore "…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 [40]).

The Submitter argued that the proposed height of the buildings do not comply with the three storey limit for development on the Site specified on the Building Height Overlay Map (at [51]).

The Court observed that non-compliance as to building height would warrant significant weight in the exercise of the Court's discretion regarding the approval of a development application (at [52]). However, the following matters are relevant in respect of the non-compliance (see [53] to [58]):

• Building 1 has 16 storeys, which does not comply with the Building Height Overlay Map and influences the character of the Site and locality (at [53]).

• The Development Approval far exceeds the maximum of 50% above the Building Height Overlay Map that is required in specific outcome 3.3.2.1(10) of the Strategic Framework in the Planning Scheme (Strategic Framework) (at [54]). The Court observed this should not be applied in an inflexible or unyielding way where the lawful use of land far exceeds the planned maximum building height (at [56]).

• The Change Application must be assessed and decided "in the context of the development approval" (at [57]). The existing and approved built form on the Site is highly relevant to the Court's assessment. The context provided by the fact that both the existing and approved built form on the Site far exceed the planned maximum building height must be considered (at [58]).

​​​​Thus, the Court found that the non-compliance with the Building Height Overlay Map should not be determinative of the appeal (at [58]).

The Court found the following provisions in the Strategic Framework and Neighbourhood Centre Zone Code are relevant in finding that the Site may accommodate a more intense development outcome:

• Specific outcome 3.3.2.1(9) which states the planning rationale for increases in building height up to 50% above the Building Height Overlay Map (at [63]).

• Strategic outcome 3.4.1(8) which encourages more intense development in neighbourhood centres provided it sensitively transitions to surrounding residential areas and does not undermine the centres' hierarchy (at [60]).

• Specific outcome 3.5.4.1(4)(b) which recognises that the Kirra locality is intended to provide tourist accommodation and facilities that appeal to family holiday makers and those wishing to stay in a less intensive tourist environment. Kirra is not suggestive of a low intensity outcome (at [61]).

• Performance Outcome (PO) 3 of the Neighbourhood Centre Zone Code which reveals the intent of the Building Height Overlay Map and requires a consideration of qualitative matters of character and impact on amenity when determining the appropriateness of a more intense development (at [62]).

The Court found the proposed development meets the qualitative objectives of specific outcome 3.3.2.1(9) of the Strategic Framework with respect to the following:

• The heights in the Change Application complement the "desired future appearance" of the surrounding neighbourhood as required in specific outcome 3.4.5.1(5) because the proposed heights are consistent with the building heights in the local context, the emerging character of the Kirra neighbourhood centre, and the Kirra high-rise "spine" along the coastal strip (at [69]).

• The Change Application results in improvements to Building 2 and Building 3 compared to the Development Approval as there is a more interesting form and façade appearance that mitigates the visual impact of its bulk, a more cohesive visual relationship with neighbouring dwellings, and a more cohesive local urban structure and character (at [73]).

• The Change Application complies with overall outcome 2(d)(i) of the Neighbourhood Centre Zone Code because the additional land use and increase in intensity through increased commercial gross floor area, number of hotel rooms, and residential density is acceptable (see [79] to [83]).

• The Change Application complies with PO11 of the High-rise Accommodation Design Code and PO10 of the Multiple Accommodation Code because users of communal open spaces have views of the beach and surrounding areas, and the open space areas have opportunities for breezes and sunlight. Additionally, the nature of these spaces will "provide opportunities for social interaction", create pleasantly shaded outdoor areas, enhance the attractiveness of the Site, and will be accessible, useable, and safe (at [86]).

• The Change Application will result in an improved development outcome through the architecturally meritorious features mitigating the visual impact of the bulk of the Site (see [87] to [88]). The improved architectural outcome from the Change Application will more positively contribute to the current and emerging built form and character of the locality (at [89]).

The Court found that there is compliance with the relevant assessment benchmarks and refusal of the Change Application is not warranted for reasons related to built form, scale, and character (at [92]).

The Court found as follows with respect to the relevant assessment benchmarks related to amenity:

• The additional shadow impacts will not detract from a comfortable living and ground level environment as required in PO8 of the General Development Provisions Code because the additional shadowing is limited to the morning in winter months, the Site is already impacted from shadowing from existing tall trees, and the shadows are fast moving (at [95]).

• The Change Application will not cause the obstruction of public views (see [99] to [100]). The Court found that the changed Building 3 will obstruct marginally more of the distant view of the beach from the building in which the Submitter resides. This is not unreasonable because the view will be dominated by views of the coastline. Compared to the Development Approval, the changed Building 3 will provide a greater glimpse of Kirra Beach and greater permeability (at [98]).

• The setbacks proposed are compliant with Acceptable Outcome 1 of the Neighbourhood Centre Zone Code, except for the setback of Building 2 at levels two and seven only. This setback was assessed as acceptable in the Development Approval and is not substantially altered in the Change Application (at [101]). The Court found compliance with overall outcome 2(c) of the High-Rise Accommodation Design Code because the improved architectural merit and compliant setbacks mitigate the negative visual and physical impacts of Building 2 (at [105]).

• The Change Application complies with PO1 and PO2 of the General Development Provisions Code in respect of visual amenity and privacy because the slight reduction in separation distances between buildings do not have substantial effect and residences near the Site still have significant separation (see [103] to [104]).

• The Change Application complies with overall outcomes 9.4.13.2(2)(a)(i), 9.4.13.2(2)(a)(ii), and 9.4.13.2(2)(e)(ii) and PO1 and PO22 of the Transport Code because the proposed car parks exceed the requirement (at [110]). The Change Application provides adequate end of trip facilities as required in PO10 of the Transport Code (at [111]).

• The increase in traffic generated by Change Application would unlikely have a significant adverse impact on local traffic operations, safety, and residential amenity as required in overall outcomes 9.4.13.2(2)(e)(i) and 9.4.13.2(2)(e)(ii) of the Transport Code because the streets would have ample spare capacity to accommodate this (at [113]).

• The Change Application complies with the appropriate noise criteria at surrounding noise sensitive uses, subject to the imposition of conditions provided by the Council (at [120]).

The Court recognised that need is "…widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community…" (at [122]).

The Court recognised that the Change Application better meets the demands of the market and addresses the issue of construction costs because of the improved facilities, small scale retail providing convenience for the day-to-day needs of the immediate neighbourhood, and good location in terms of infrastructure (see [124] to [126]). This results in the increased viability of the proposed development and facilitates the Development Approval to enable it to contribute to housing supply (at [128]). This small mix of land uses is not dominated by the large built form and do not detract from residential amenity (at [129]).

The Court observed that the contribution to housing supply weighs in support of approval where the proposal does not cause unacceptable character or amenity impacts (at [128]). Thus, the Court found that the refusal of the Change Application is not warranted for reasons of amenity (at [129]).

The Submitter argued that the previous planning decisions are far beyond the Planning Scheme, that the peer review of the visual impact assessment which determined the development was too intense, and that the Council's information request point to a refusal of the Change Application (at [131]). The Court found that these matters are not relevant to the present assessment (at [132]).

The Court acknowledged that the Change Application does not comply with the Building Height Overlay Map but accepted that the Planning Scheme supports more intense development on the Site (at [133]).

The Court observed that the Planning Scheme supports a building height which complements the surrounding neighbourhood and that the Change Application will complement the character of the neighbourhood, provide convenience for the needs of the neighbourhood, have no unacceptable impacts on amenity, and result in an improved architectural outcome (at [133]).

The Court accepted that the Change Application involves positive factors which arise from the additional tourist accommodation, the change to the residential product to better meet the target market, the improved site activation, a more integrated and cohesive development, and a proposal consistent with the broader planning principle of intensification of the coastal "spine" (at [134]).

The Court found that the overall benefits provided by the Change Application outweigh the adverse impact arising from the non-compliances as to building height (at [135]).

The Court determined that the Co-Respondent had discharged its onus (at [136]). The Court therefore confirmed the Council's decision to approve the Change Application and dismissed the appeal (at [137]).