The case of Thorogood v Council of the City of Gold Coast [2023] QPEC 13 concerned a submitter appeal by Mr Neil Thorogood (Appellant) 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 development application for a development permit for a material change of use for a multiple dwelling (Proposed Development) on land situated at 34 Tedder Avenue, Main Beach, on the Gold Coast (Site).

The Proposed Development is a three-storey multiple dwelling with one unit per storey and a basement car park (at [1]). The Appellant is the joint owner of a two-storey multiple dwelling adjoining the Site immediately to the south and argued that the Proposed Development will cause unacceptable shadow impacts to his neighbouring dwelling contrary to the reasonable amenity expectations of nearby residents (see [1] and [4]).

The relevant planning scheme is the Gold Coast City Plan 2016 (Version 8) (Planning Scheme) and in terms of the shadow impacts, Performance Outcome 8 (PO8) of the General Development Provisions Code (Code) was relevant to the determination of the appeal.

In deciding to dismiss the appeal, the Court considered the following issues (at [16]):

"1. whether the [P]roposed [D]evelopment (limited to only the alleged shadow impacts) satisfied the outcome in s 3.3.2.1(9)(b) [of the Planning Scheme];
 2. whether the [P]roposed [D]evelopment complied with PO8 of the Code; and
3. whether various relevant matters support an approval of the [P]roposed [D]evelopment, focussing upon the extent to which it complied with provisions of the [P]lanning [S]cheme and managed impacts upon amenity."

The Court held that the relevant assessment benchmarks had been satisfied and that there would not be any unacceptable amenity impacts as a consequence of the Proposed Development (at [27]).

The Site is in the urban neighbourhoods area, within the medium density residential zone, and is subject to the Building Height Overlay Map (at [2]). The Building Height Overlay Map provides that development for a two-storey multiple dwelling that is nine metres high with a partial third storey is subject to code assessment (at [5]). The Building Height Overlay Map also designates the land on the opposite side of Tedder Avenue as being in the unlimited height area and there are numerous examples of buildings of three storeys or more in the vicinity of the Site (at [2]).

The Proposed Development is for a three-storey building with some rooftop elements and a minor basement protrusion above ground level that measures to a total height of 13.5 metres (at [5]). Therefore, the Proposed Development is impact assessable.

The Appellant's primary argument was that the Proposed Development needs to take into account the orientation of adjoining residences when giving effect to the relevant provisions of the Planning Scheme, and in particular PO8 of the Code. Further, that in respect of the Appellant's property, the Proposed Development needs to take into account that there will be shadowing of the main habitable areas including the Appellant's backyard which is the Appellant's only outdoor recreation space (at [17]).

Section 3.3.2.1(9)(b) of the Strategic Framework of the Planning Scheme contains height uplift provisions which permit height increases of up to 50% above that which is stated in the Building Height Overlay Map where certain outcomes are achieved. Those outcomes relevantly include "a well-managed interface with, relationship to and impact upon nearby development including the reasonable amenity expectations of nearby residents".

Section 9.4.4.2 of the Code contains provisions with respect to shadow impacts, and relevantly states as follows:

"(1) The purpose of the [Code] is to provide a consistent approach to city wide issues and avoid duplication of regulation throughout the City Plan.
(2) The purpose of the code will be achieved through the following overall outcomes:

(a) Development is designed to maintain the expected level of amenity for the area."

PO8 of the Code relevantly states as follows:

"The building is designed and located to ensure that the shadow cast by the building does not detract from a comfortable living and ground level environment and the access of adequate sunlight to private and public spaces having regard to:

(b) the degree of containment of the shadow on the subject site at different times of the day on the summer and winter solstice and spring and autumn equinox;
(c) the cumulative impact of the shadow and existing shadows;
…
(e) the effect of the shadow on any other site or other building."

The Court considered expert evidence given by the architects for each party. The Applicant Co-respondent's architect and the Council's architect relied upon shadow diagrams that were prepared by another architect, Mr Pope, having regard to the parameters contemplated by PO8 of the Code. These diagrams compared the expected shadow impacts from the Proposed Development to a hypothetical development application requiring code assessment which complies with the relevant acceptable outcomes under the Planning Scheme (at [19]). The Applicant Co-respondent's architect concluded that the shadowing of neighbouring properties, as a consequence of the Proposed Development, would not be significantly greater than that resulting from the hypothetical alternative development. To demonstrate this, the Council's architect "produced a diagram demonstrating increased shadowing at midday in mid-winter and at midday in equinox…", and concluded that there is a relatively minor additional impact to the neighbour to the south of the Site (at [19]).

The Appellant's architect conceded in cross-examination that his shadow analysis contained mistakes, that the analysis relied upon by the Applicant Co-respondent's architect and the Council's architect demonstrated that the neighbouring residents could reasonably expect the shadow impacts from the Proposed Development, with the exception of the spring equinox, and further "…that on his evidence any unacceptable amenity impact would only be for a portion of the day" (at [22]).

The Court concluded that any unacceptable amenity impact that is attributable to the Proposed Development is confined to a very limited part of the year, and preferred the evidence of the Applicant Co-respondent's architect and the Council's architect over that of the Appellant's architect (at [23]).

The Court was satisfied, having regard to the criteria set out in PO8 of the Code, that the design and location of the Proposed Development "…ensure that shadows cast from it will not detract from a comfortable living and ground level environment and the access to adequate sunlight to private spaces…" (at [24]). The Court also considered whether the purpose and overall outcome of the Code are satisfied and came to the conclusion that they are satisfied because the Proposed Development is designed to maintain the expected level of amenity for the area (at [24]).

The Court was also satisfied that the expert evidence given by the Applicant Co-respondent's architect and the Council's architect did not establish any non-compliance with the Planning Scheme, and in particular, section 3.3.2.1(9)(b) of the Strategic Framework.

The Court concluded that there would not be unacceptable amenity impacts as a consequence of the Proposed Development and that the onus of demonstrating that the appeal should be dismissed had been discharged.