The case of McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56 concerned an appeal by submitters (Submitters) to the Planning and Environment Court of Queensland (Court) against a development approval, subject to conditions, given by the Council of the City of Gold Coast (Council). The development approval replaces two buildings on two lots with a four-storey, seven-unit multiple dwelling (Proposed Development) on land located at Pacific Parade, Currumbin (Land).

The Submitters asserted non-compliance with several provisions in the Gold Coast City Plan 2016 (version 8) (City Plan).

The Court determined the following issues raised by the parties:

1. Whether the absence of an on-site area for service vehicles is acceptable.

2. Whether the Proposed Development satisfies the building height uplift provisions in the Strategic Framework of the City Plan (Strategic Framework).

3. Whether the Proposed Development will have any unacceptable impact upon density, site cover, communal space, and intensity.

4. ​Whether there are any relevant matters that support either an approval or a refusal of the development application.

The Applicant as the co-respondent to the appeal held the onus under section 45(2) of the Planning and Environment Court Act 2016 (PECA) to establish that the Submitters' appeal ought to be dismissed.

The Court observed that the discretion under section 60(3) of the Planning Act 2016 (Planning Act) to decide a development application that requires impact assessment is broad (at [8]). The Court restated the principles from the cases of Abeleda v Brisbane City Council & Anor [2020] QCA 257 and Smout v Brisbane City Council [2019] QPEC 10; (2019) QPELR 884 that the assessment of a development application involves a weighing and balancing exercise of the relevant factors by the decision-maker, and the flexibility of the approach in exercising the discretion will depend on the facts and circumstances of each case (at [8]).

The Court was satisfied that the Proposed Development was acceptable having regard to the relevant provisions of the City Plan, the adverse submissions received against the Proposed Development, and that there were no relevant matters weighing against approval of the Proposed Development. 

The Court adjourned the proceeding for the parties to consider the appropriate conditions of the approval.

The Submitters contended that the Proposed Development is a "tower" and accordingly fell within category three of Table 9.4.13-9 of the Transport Code in the City Plan, which is referred to in acceptable outcome AO5 and requires that a multiple dwelling include a standing area for service vehicles on-site if "a vertical built form (tower) is proposed".

The Court had regard to the ordinary meaning of a "tower", being "a building…that is high in proportion to its lateral dimensions", and concluded that the Proposed Development was "…not disproportionately tall relative to its width" and was therefore not a tower (at [26]).

The Court held, based on the expert evidence, that the need of the Proposed Development's occupants to use a service vehicle for removal purposes would be "relatively infrequent" (at [29]), that the delivery demands for the Proposed Development are unlikely to increase significantly, and that on-street parking spaces adjacent to the Land are likely to be the preference for the parking or standing of delivery vehicles (at [34]). Thus, the Proposed Development did not need to provide a standing area for a service vehicle.

The Submitters challenged the Proposed Development's compliance with the design and amenity overall outcomes in section 6.2.2.2(b)(v) and (vi) of the Medium Density Residential Zone Code in the City Plan (MDRZC), as well as with the overall outcome in section 6.2.2.2(d)(i) of the MDRZC which requires that the built form not exceed the height indicated on the Building Height Overlay Map (BHOM).

The Land is relevantly within a "3-storey (15 metre)" designated area on the BHOM and within the "Urban Neighbourhoods" area under the Strategic Framework (see [44] to [45] and [49]).

The Court observed that overall outcome in section 6.2.2.2(d)(i) of the MDRZC and BHOM must be read subject to the provisions of the Strategic Framework because the Strategic Framework prevails over the other components of the City Plan to the extent of any inconsistency for impact assessment (see [50] and section 1.4(1)(b) of the City Plan). Section 3.3.2.1(9) of the Strategic Framework expressly provides for increases in building height up to a maximum of 50 per cent above the BHOM in Urban Neighbourhoods where the outcomes stated in section 3.3.2.1(9)(a) to 3.3.2.1(9)(h) are met (at [50]).

The Court considered compliance with each of the outcomes in section 3.3.2.1(9) in turn, except for section 3.3.2.1(9)(h) which relates to the functioning of the Gold Coast Airport and thus was not relevant.

The Court accepted the following evidence of the experts engaged by the Council and Applicant, and held that the Proposed Development positively reinforces and contributes to a local identity and sense of place:

• The proposed landscaped rooftop reinforces an association with the "…green vegetated backdrop to the west…" thereby reinforcing this aspect of local identity (at [66]).

• The built form "…is typically well-integrated with the landscape, has a human scale…and accommodates a broad mix of styles, periods, forms and colours", such that the lift over-run exceeding 15 metres will be of no material effect (see [67] to [68]).

• The Proposed Development "…represents an interesting and well-considered design outcome that is responsive to the local coast character" (at [69]).

• The Proposed Development is not "unduly wide or bulky" given that it involves the amalgamation of two lots, thus accommodating a wider and larger building than if the lots remain separate (at [86]). That the Proposed Development would be one of the larger buildings along Pacific Parade in circumstances where the common height of buildings was three or less storeys did not persuade the Court to find otherwise (see [79] and [87]).

The Court accepted that the Proposed Development ensures a well-managed interface with, relationship to, and impact on immediate neighbours for the reasons that its height accords with the City Plan parameters, it is appropriately setback from its boundaries, it is not unduly "overbearing", it does not cause any privacy concerns, it presents attractively, and no adverse submissions were received from the immediate neighbours to the Land (at [94]).

With respect to the wider "nearby development", the Court was satisfied that the Proposed Development "…would not…be detrimental to its setting, including in relation to the streetscape and the character of the area by reason of its height, bulk or scale" (at [95]).

The Submitters' argued that the Proposed Development does not have an ordered local skyline due to its height, visual dominance, interference with views, and insufficient landscaping (at [102]).

The Court had regard to the skyline in the surrounding area, including the roof forms, and preferred the evidence of the Council's expert that the Proposed Development "…is appropriate for the locality and will bring variety, order and in particular interest to the local skyline" (at [105]).

The Court held that whether the Proposed Development satisfies an "excellent standard" involves an evaluative judgement about which reasonable minds may differ (at [107]).

The Submitters' experts raised concerns about the frame and tint of the balustrades, the absence of solar mediating measures, the use of unattractive colours, and the "overbearing" sense of the development (see [110] to [111]).

The Court agreed with the Applicant's and Council's experts that the Proposed Development is thoughtfully-designed (at [108]) and will "present 'an appealing range of materials and landscaping to provide visual interest and will offer form and furniture at street level that contributes to a comfortable pedestrian environment'" (at [113]).

The Court construed this criterion by reference to what the other parts of the City Plan state about housing choice and affordability, and held that the City Plan envisages an increase in development intensity in the City's well-serviced urban areas (see [117] to [122].

The Court held that the City Plan seeks "…a generous mix of affordability outcomes that meet housing needs for the locality" for land in the Medium Density Residential Zone, which does not require the Proposed Development to offer a mix of accommodation or for it to be "affordable housing" as defined in the City Plan but rather requires that it support housing choice and affordability (at [127]).

The Court held having regard to the broad concept of "affordability" and the expert evidence before the Court that "…to increase density by providing more units, of a kind under-represented in the area, in a way that increases choice, at a price point above the older stock, but below detached housing redevelopment and on appropriately zoned land…supports City Plan's strategy for choice and affordability and satisfies the criterion" (at [131]).

In respect of section 3.3.2.1(9)(f) of the Strategic Framework, the Court was satisfied that the Proposed Development was appropriate having regard to height, bulk, and scale (at [136]).

In respect of section 3.3.2.1(9)(g) of the Strategic Framework, the Court held that the Proposed Development does not affect any "…contrast in locations where building heights change abruptly on the BHOM" because it is not within such a location.The Court was satisfied that this criteria could be met other than where there is an abrupt change on the BHOM (at [137]).

The Court held that the building height uplift provisions were satisfied and that the Proposed Development does not offend overall outcomes in section  6.2.2.2(b)(v) or (vi) of the MDRZC (at [139]).

The Court held that the Proposed Development complies with other assessment benchmarks in the City Plan so far as they relate to density, site cover, and communal open space (see [143], [147], [153], and [158]).

The Court was also satisfied that the application of the Ridges and Significant Hills Protection – Overlay Map OMR3 (RSHOC) to the Land was not a concern, because it is on flat land removed from the vegetation cover of the hillside and not all land within the RSHOC will have equal risk of "…development adversely affecting the slopes and vegetation cover of Currumbin Hill" (see [159] to [160]).

The Court also held that the Proposed Development is not an overdevelopment of the Land (at [173]).

The Court held that the weight to be attributed to the submissions is a matter of the validity of the concerns raised having regard to the statutory provisions, planning instruments, and the evidence put before the Court (at [176]).

Whilst the 252 adverse submissions were relevant, the Court held that the number of submissions does not necessarily reflect the views of the whole community and in circumstances where the Court has found compliance with the City Plan contrary to the submissions, they ought not be afforded significant weight (see [175] to [176]).

The draft amendments to the City Plan would move the Land to the Low-Medium Density Residential Zone, limit building height to 12 metres, and restrict the application of the building uplift provisions (at [178]).

The Court was not prepared to give determinative weight to the draft amendments because the approval of the Proposed Development would not cut across the amendments or make their application to other decisions of the Council more difficult, and the Proposed Development is not "dramatically out of scale" with development that may be expected once the City Plan amendments are in force (at [179]).

The Court was not persuaded that other relevant matters weighed against an approval (at [181]).

The Court dismissed the appeal and adjourned the proceeding for the parties to consider the appropriate conditions of approval.