The case of Kirra Developments Pty Ltd v Council of the City of Gold Coast [2022] QPEC 38 concerned an appeal to the Planning and Environment Court of Queensland (Court) against a refusal by the Council of the City of Gold Coast (Council) of an application to change a development approval for a multiple dwelling on land situated at Mermaid Beach, Gold Coast from four storeys to five storeys.

The original development application was for five storeys. The Applicant changed the development application after concern was raised by the Council about the number of storeys, such that the proposed development was for a 15-metre, five-level multiple dwelling comprising only four storeys because the fifth level comprised only an enclosed void. The Council approved the changed development application.

The current change application proposes that level five of the building, which is not currently a "storey" under the Gold Coast City Plan 2016 (Version 8) (City Plan), be changed to include a master bedroom suite and a living area thereby making the fifth level a "storey" under the City Plan (Proposed Change).

The Council refused the change application on the basis that it was not for a "minor change", did not comply with the height provisions in the City Plan, and seeks to revert back to the proposal in the original development application which the Applicant had changed to get an approval.

The Court considered whether the change to the proposed development was for a "minor change" and, if so, whether the change application ought to be approved or refused in the circumstances.

The Court observed at [11] that determining whether a change results in "substantially different development" is a comparative task whereby the existing and changed plans are considered "broadly and fairly, rather than pedantically". The comparative evaluation can be both quantitative and qualitive, and will often involve matters of scale and degree having regard to the specific context and circumstances of the case.

The Court allowed the appeal based on its finding that the Proposed Change was for a minor change because the Proposed Change does not result in substantially different development given that it only changes the internal layout of level five, would not alter the height and bulk, architecture, setting of the building on the land, any external feature, or the use or intensity of the use.

The Council submitted the following in relation to the Proposed Change:

• The Proposed Change would result in substantially different development contrary to the definition of "minor change" in schedule 2 of the Planning Act 2016 (Qld).

• Even if the Proposed Change is for a "minor change", the Proposed Change conflicts with specific outcome 3.3.2.1(10) of the City Plan (SO10) because the change increases the building height beyond 50 per cent above the Building height overlay map and thus is not consistent with reasonable community expectations.

• There is no support in the City Plan for the Proposed Change, because matters relating to character and amenity of the locality and the impact or lack of impact on local character, built form in the locality, and the amenity of the locality were already taken into account as part of the development approval which permitted a 50 per cent uplift in the number of storeys (from three to four storeys) under specific outcome 3.3.2.1(9) of the City Plan (SO9).

• The City Plan adopts a "stringent policy" in relation to height.

• The rights of submitters would be adversely affected.

The Applicant submitted that whilst the Proposed Change alters the number of storeys, it does not alter the height of the multiple dwelling, its architecture or setting on the land, and it does not change the use or the intensity of the use (at [7]). The Applicant acknowledged non-compliance with SO10, but submitted that in any event a non-compliance with an assessment benchmark does not mandate a refusal.

The Court was not persuaded that further adverse submissions might have been provoked by the Proposed Change, because the Proposed Change is only to the internal layout and the original proposal, which at that time comprised five storeys, was publicly notified (see [20] and [29]).

The town planning expert engaged by the Applicant gave evidence that there are no unacceptable town planning impacts and that the Proposed Change, including the built form, scale, and character of the proposed development, is suitable for the subject land and the surrounding locality (at [24]).

The Court accepted this evidence, and noted that the Proposed Change does not alter the external appearance or height of the multiple dwelling and thus does not impact on character or amenity (at [24]). The Court distinguished the Proposed Change from the proposed change the subject of another appeal before the Court in the case of Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, which importantly involved changes to the development approval that were visibly obvious externally (at [18]).

The Court held that the proposed development remained compliant with SO9 (at [29]).

The Court held that the Proposed Change would not result in substantially different development and accordingly is a "minor change" (at [22]). The Court held given the limited nature of the Proposed Change an approval of the change application was warranted (at [29]).

The Court held that the Proposed Change was for a minor change and allowed the appeal.