The case of Glen Machado & Ors v Council of the City of Gold Coast [2024] QPEC 22 concerned five appeals by the Applicants to the Planning and Environment Court (Court) against the decisions of the Council of the City of Gold Coast (Council) to refuse five development applications for development permits for a material change of use for a dual occupancy (Development Applications) in respect of existing dwelling houses on premises situated at 7, 12, 13, 16, and 19 Boydaw Road, Gold Coast (Premises).

The Development Applications were impact assessable, and the assessment benchmarks were the relevant provisions under the Gold Coast City Plan 2016 (Version 8) (Planning Scheme) and Planning Regulation 2017 (Qld) (Planning Regulation) (at [12]).

The Court dismissed the appeals for the reason that the planning outcome is not consistent with the outcomes the Planning Scheme seeks for the use of a dual occupancy (at [41]).

Each of the Development Applications relates to an existing dwelling house. Each dwelling house has the appearance of a single dwelling house from the street, but is comprised of two dwellings divided by an internal wall being of one of two different types of configurations (Proposed Developments) (see [2] and [5]).

The Type A Proposed Developments are comprised of a one-bedroom dwelling and four-bedroom dwelling and are at 12 and 16 Boydaw Road, Ormeau (at [3]).

The Type B Proposed Developments are comprised of a two-bedroom dwelling and three-bedroom dwelling and are at 7, 13, and 19 Boydaw Road, Ormeau (at [4]).

Both dwelling configurations have a 1.8m high fence dividing the backyards (see [3] to [4]).

A building certifier approved each of the Proposed Developments as a dwelling house (at [9]). The Council alleged that each of the Proposed Developments was being used unlawfully as a dual occupancy, and therefore gave Show Cause Notices to the relevant Applicants resulting in the Development Applications being made (at [9]).

The Court considered section 31(1)(f) of the Planning Regulation and the following provisions in the Planning Scheme as being relevant to the assessment of the Development Applications (see [22] to [26]):

• Low Density Residential Zone Code (LDRZ Code) ‒ Purpose 1, Overall Outcomes 2(a)(i), 2(1)(iii), 2(a)(vii), and 2(b)(i), Performance Outcome (PO) PO1, and PO5.

• Dual Occupancy Code ‒ Purpose 1, Overall Outcomes 2(2)(c), 2(d), and 2(f), PO1, PO4, and PO7.

Section 31(1)(f) of the Planning Regulation requires that impact assessment must be carried out having regard to, "…inter alia 'any development approval for, and any lawful use of, the premises or adjacent premises'" (at [28]). The lawful use of each of the Premises is a dwelling house (at [28]).

Under schedule 24 of the Planning Regulation, the definition of a dwelling house extends to two dwellings, one of which is the secondary dwelling (at [28]). Schedule 24 of the Planning Regulation states that the secondary dwelling must be "…used in conjunction with, but subordinate to, the other dwelling on the lot" (at [28]).

The Council argued that the secondary dwelling for each of the Proposed Developments is neither used in conjunction with nor is it subordinate to the other dwelling (at [29]).

The Court found that the secondary dwelling is subordinate to the other dwelling as only the larger dwelling has a front door providing access to Boydaw Road and the secondary dwelling is significantly smaller than the other dwelling (at [29]).

The Court acknowledged that "used in conjunction" involves a functional integration even though they need not be related to or associated with each other (see [30] to [31]).

The Court found that the shared use of infrastructure connections and the shared front driveway of each of the Premises fell short of demonstrating that the secondary dwelling is being used in conjunction with the other dwelling (at [31]). The Court also held that the partitioning off of parts of the backyards with continuous 1.8m high fences created a level of separation which precludes the two dwellings from being used in conjunction with each other (at [31]).

The Court therefore found that the use of each of the Premises is not a lawful use as a dwelling house (at [32]).

The Applicants argued that any non-compliance with the Planning Scheme is not material and that benefits will arise from the delivery of the proposed built form outcome, increased driveway width, a concreted side access, and a more clearly defined pedestrian entry for the smaller dwelling in each of the Proposed Developments (at [33]).

The Court observed that the minor improvements to the built form and functionality of the Premises are largely cosmetic and found that such minor improvements do not offset the significant detriment of enshrining the permanent partitioning of the backyards of each of the Premises (at [33]).

Strategic Outcome 3.3.1 of the Strategic Framework in the Planning Scheme mandates that housing is to be attractive and well-designed (at [35]). Specific Outcome 3.3.3.1 of the Planning Scheme states that low-rise residential environments should retain and enhance local character and amenity.

The Court found that the Proposed Developments are of "a dispersed or gentle-scattering effect" where the Proposed Developments are in relatively low concentrations in the street and not adjoining each other (at [35]).

The Court found as follows with respect to the LDRZ Code:

1. The Proposed Developments are "low intensity" as is required in Overall Outcome 6.2.1.2(2)(a)(i) and there is compliance with the general locational requirements in Overall Outcome 6.2.1.2(2)(a)(iii) (at [36]).

2. The Proposed Developments do not comply with the specific design outcomes in section 6.2.1.2(2)(a)(iii) which relate to a dual occupancy occurring in low concentrations where they achieve a dispersed or gentle-scattering effect. In particular, the Proposed Developments are not lots with a dual frontage nor are the lots appropriately identified on the Residential Density Overlay Map (at [36]).

3. The Proposed Developments do not comply with Overall Outcome 6.2.1.2(a)(vii) or the purpose of the LDRZ Code because the partitioning of the backyards detracts from the residential amenity of the area (at [36]).

4. The Proposed Developments do not comply with Overall Outcome 6.2.1.2(b)(i), because even though the Proposed Developments are of similar character to the detached dwelling houses in the street, they are not set amongst generous landscaping (at [36]).

5. The Proposed Developments do not comply with PO1 because the partitioning of the backyards prevents access around the buildings (at [36]).

6. The Proposed Developments comply with PO5 which relates to a requirement for low intensity development to complement the existing residential development of the neighbourhood and protect its dwelling house character (at [24]).

The Court considered the purpose and overall outcomes of the Dual Occupancy Code, which relate to an individual dual occupancy, and noted that a dual occupancy is to be appropriately located, achieve a high level of comfort and amenity for the occupants, overlook streets, and contribute positively to the local character and city image (at [37]).

The Court observed that the smaller dwellings for the Type A Proposed Developments have no street frontage and no capacity to overlook the street and that the larger dwelling merely overlooks the street. The Court observed the Type B Proposed Developments have only the master bedroom of the larger dwelling overlooking the street and the smaller dwelling has no connection with the street (at [37]).

The Court observed that the contribution of the Proposed Developments was neutral and did not contribute positively to the local character and city image (at [37]). The Court thus found non-compliance with the purpose and overall outcomes of the Dual Occupancy Code.

The Court held as follows with respect to the relevant Performance Outcomes of the Dual Occupancy Code (see [26] and [38]):

1. In respect of PO1, which requires "...the provision of sufficient frontage for pedestrian and vehicular access and parking, and 'adequate' landscaping", the Court observed that the driveway and covered parking spaces dominate the property frontage, and that the landscaping adjacent to the road frontage was inadequate, and therefore found there is non-compliance.

2. In respect of PO4, which requires "…adding of visual interest through articulation and the provision of differentiation between dwellings", the Court observed that there is minimal building articulation between the gates and each smaller dwelling, that there was not clearly delineated pathways and separated letterboxes, and that there is minimal differentiation between dwellings, and therefore found there is non-compliance.

3. In respect of PO7, which requires "…the building to be orientated to facilitate casual surveillance by addressing the street", the Court observed that one bedroom in a building overlooking the street is insufficient to facilitate casual surveillance and therefore found there is non-compliance.

The Court found that the Proposed Developments were designed as single dwelling houses and do not comply with the outcomes that the Planning Scheme seeks for a dual occupancy. The Court confirmed the Council's decision to refuse the Development Applications and dismissed the appeals (at [41]).