Aesthete No 15 Pty Ltd v Council of the City of Gold Coast [2026] QCA 136

SUPREME COURT OF QUEENSLAND CITATION: Aesthete No 15 Pty Ltd v Council of the City of Gold Coast [2026] QCA 136 PARTIES: AESTHETE NO 15 PTY LTD ACN 627 545 019 (first applicant) AESTHETE NO 20 PTY LTD ACN 627 946 356 (second applicant) v COUNCIL OF THE CITY OF GOLD COAST (first respondent) CIELO PROPERTY GROUP PTY LTD ACN 644 682 717 (second respondent) FILE NO/S: Appeal No 5811 of 2025 P & E Appeal No 64 of 2024 DIVISION: Court of Appeal PROCEEDING: Application for Leave Planning and Environment Court Act ORIGINATING COURT: Planning and Environment Court at Brisbane – [2025] QPEC 18 (Prskalo KC DCJ) DELIVERED ON: 21 July 2026 DELIVERED AT: Brisbane HEARING DATE: 25 May 2026 JUDGES: Bond JA, Doyle JA, Kelly J ORDERS: 1. Leave to appeal is granted limited to ground 1 of the draft Notice of Appeal. 2. The appeal is allowed. 3. The orders made by the Planning and Environment Court on 5 November 2025 are set aside. 4. Remit the matter to the Planning and Environment Court to decide in accordance with this decision. 5. The respondents pay the appellants’ costs of the appeal. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the height uplift provision in the Gold Coast City Plan 2016 contained the language “housing choice and affordability” – where the primary judge noted the word “affordability” was not defined in the Planning Act 2016 (Qld), the Planning Regulation 2017 (Qld) or the Gold Coast City Plan 2016 – where the primary judge determined the word “affordability” -- 1 of 31 -- 2 in the height uplift provision should be given its ordinary meaning – whether the trial judge made an error of law in failing to construe the expression “housing choice and affordability” consistently with other planning instruments APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the height uplift provision in the Gold Coast City Plan 2016 contained the language “in limited circumstances” – whether the primary judge made an error of law by construing “in limited circumstances” to mean only the circumstances set out in the height uplift provision Planning Act 2016 (Qld), sch 2, s 3, s 4, s 5, s 8, s 16, s 18, s 43, s 45, s 51, s 60, s 293 Planning and Environment Court Act 2016 (Qld), s 63 Planning Regulation 2017 (Qld), sch 24 Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257, cited Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited Archer v Council of the City of Gold Coast [2024] QPELR 387; [2022] QPEC 59, distinguished Bell Company Pty Ltd v Council of the City of Gold Coast [2023] QPELR 1160; [2022] QPEC 32, distinguished Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited Dajeen Investments Pty Ltd v Council of the City of Gold Coast [2025] QPELR 996; [2023] QPEC 32, considered Development Watch Inc v Sunshine Coast Regional Council [2023] QPELR 489; [2022] QCA 6, cited McLucas v Council of the City of Gold Coast [2024] QPELR 283; [2022] QPEC 56, distinguished Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, cited Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12, cited Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, cited COUNSEL: E J Morzone KC, with K W Wylie, for the first and second applicants D P O’Brien KC, with S J Hedge, for the first respondent M W Batty KC, with J E Bowness, for the second respondent SOLICITORS: Yates Beaggi Lawyers for the first and second applicants HopgoodGanim Lawyers for the first respondent Connor O’Meara Solicitors for the second respondent -- 2 of 31 -- 3 [1] BOND JA: I agree with the reasons for judgment of Kelly J and with the orders proposed by his Honour. [2] DOYLE JA: I have had the benefit of reading in draft the reasons for judgment of Kelly J. I agree with his Honour’s reasons and with the orders his Honour proposes. [3] In relation to the first of the two issues discussed by Kelly J (namely the specific outcome identified as “housing choice and affordability”) I would add the following brief observations for concurring in the result proposed by Kelly J. [4] The expression “housing choice and affordability”, when used in specific outcome 3.3.2.1(9)(f), cannot be divorced from either the ordinary meaning of the word “affordability” or its immediate context. The whole of clause 3.3.2.1 is concerned with “urban neighbourhoods”. The specific outcomes contemplated for those neighbourhoods include, by specific outcome (5), “[h]ousing includes a mix of tenure, size and type to assist with affordability and location options, and to support occupants from various social and cultural backgrounds including key workers.” [5] The development, the subject of the current application is for additional levels in a complex which compromises luxury apartments catering to the more affluent elements of the market. The submission was made by the Council that the planning scheme contemplated one way of satisfying the requirement for “housing choice and affordability” in specific outcome (9)(f) was to supplement supply with an increased density on the subject development. [6] To add to the supply of apartments designed to cater to the luxury and more affluent market cannot, in my view, be reconciled with the ordinary meaning of the word “affordability” so as to satisfy (by providing or contributing to) housing affordability at all. To do so would be a distortion of the ordinary meaning of “affordability.” Additionally it would render inclusion of that word otiose. Any provision of or contribution to housing choice would axiomatically also provide housing affordability. A construction which supports that outcome cannot be accepted. [7] Nor can it be reconciled with the context provided by specific outcome (5). It refers to a mix of tenure size and type to assist with affordability as distinct from it being supported by increased density or mere additional supply. [8] KELLY J: An application for leave to appeal [9] This is an application for leave to appeal a decision of the Planning and Environment Court of Queensland (“the Planning Court”). The first respondent (“the Council”) approved, with conditions, a development application made by the second respondent (“the Developer”) which affected 90-92 Pacific Parade, Bilinga1 (“the site”). The Planning Court confirmed the Council’s decision. [10] The site is within the local authority area of the Council and its development is subject to a planning scheme, the Gold Coast City Plan 2016 (“the Planning Scheme”). The site is of a rectangular shape, relatively flat and has a 20 metres frontage to Pacific Parade and a total area of 1,012m2. There are currently two dwellings on the site, one with two storeys and the other a single storey. The development application, which was impact assessable, was for a material change of use involving a high-rise 1 Lot 1 and 2 on RP 87297. -- 3 of 31 -- 4 residential tower. A document styled “Building height overlay map” forms part of the Planning Scheme and prescribes maximum heights for development in different zones. The site is within the Planning Scheme’s medium density residential zone and the Building height overlay map prescribes the maximum height for a building within that zone as 23 metres. The height of the proposed tower is 33.79 metres. [11] The site is also within, what the Planning Scheme refers to as, an “urban neighbourhood”. For urban neighbourhoods, specific outcome 3.3.2.1 of the Strategic Framework of the Planning Scheme provides, inter alia: “3.3.2.1 Specific outcomes … (8) The Building height overlay map shows the building height pattern and desired future appearance for local areas within urban neighbourhoods. This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high-rise areas. (9) Increases in building height up to a maximum of 50% above the Building height overlay map may occur in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied: (a) the development is not located within The Spit Master Plan height sensitive area, as identified on the Building height overlay map; (b) a reinforced local identity and sense of place; (c) a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents; (d) a varied, ordered and interesting local skyline; (e) an excellent standard of appearance of the built form and street edge; (f) housing choice and affordability; (g) protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features; (h) deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and (i) the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities. … (10) Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.” (emphasis added) -- 4 of 31 -- 5 [12] To support the increase in height beyond the maximum height prescribed by the Building height overlay map, the development application relied upon specific outcome 3.3.2.1(9) (“the height uplift provision”). The applicants, who were the appellants before the Planning Court, own neighbouring vacant land which benefits from an existing approval for a high-rise residential tower, 34.4 metres in height. In dismissing the appeal and confirming the Council’s decision, the learned primary judge ultimately found that the proposed development complied with the height uplift provision.2 [13] There are two proposed grounds of appeal, each being concerned with an alleged error of law involving the proper construction of the height uplift provision. The first ground is directed to the construction of the words “housing choice and affordability”. The second ground is directed to the construction of the words “in limited circumstances”. Leave is required pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) (“the PEC Act”). A party may appeal a decision of the Planning Court on “the ground of error or mistake in law or jurisdictional error” and “only with the leave of the Court of Appeal”. The identification of reasonably arguable error or mistake in law should be regarded as a necessary, but not sufficient, basis for a grant of leave pursuant to s 63 of the PEC Act.3 It has been observed that the arguable error or mistake must be material “in the sense that it could have materially affected the decision” of the Planning Court.4 [14] As to the first proposed ground of appeal, for the reasons which follow, I am satisfied that the applicants have identified such an error in law involving the primary judge’s construction of the expression “housing choice and affordability” as it appears in the height uplift provision. That error was material in the sense that it could have materially affected the decision below. The question of construction is important because it may be expected to have significance for other development applications involving the local authority area of the Council. I would grant leave to appeal in respect of the first proposed ground of appeal.5 As to the second proposed ground of appeal, for the reasons which follow, I am not satisfied that any error or mistake in law has been identified involving the primary judge’s construction of the expression “in limited circumstances” as it appears in the height uplift provision. I would refuse leave to appeal in respect of the proposed second ground of appeal. The development application and the broad planning framework [15] The purpose of the Planning Act 2016 (Qld) (“the Planning Act”) is to “establish an efficient, effective, transparent, integrated, coordinated and accountable system of land use planning … development assessment and related matters that facilitates the achievement of ecological sustainability.”6 The Planning Act recognises a “system to facilitate the achievement of ecological sustainability,”7 includes “State planning policies”,8 “regional plans”9 and “planning schemes”.10 “State planning policies” set 2 RB 71. 3 Trinity Park Investments Pty Ltd v Fabcot; Dexus Funds Management Ltd v Fabcot Pty Ltd [2021] QCA 276 at [80]. 4 Development Watch Inc v Sunshine Coast Regional Council [2022] QCA 6 at [35]. 5 For convenience, I will continue to refer to the moving parties as the applicants. 6 The Planning Act, s 3(1). 7 Ibid s 4. 8 Ibid s 4(a). 9 Ibid s 4(b). 10 Ibid s 4(c). -- 5 of 31 -- 6 out planning and development assessment policies about matters of State interest.11 “Regional plans” set out “integrated planning and development assessment policies about matters of State interest for particular regions of the State.”12 “Planning schemes” set out “integrated State, regional and local planning and development assessment policies for all of a local government area.”13 To the extent of any inconsistency, a State planning policy applies instead of a regional plan or a local planning instrument (which includes a planning scheme)14 and a regional plan applies instead of a local planning instrument.15 [16] One of the Council’s functions under the Planning Act is to make or amend a planning scheme.16 The Council is required to perform that function in a way that “advances the purpose of [the Planning Act]”.17 Advancing the purpose of the Planning Act includes following ethical decision making processes that provide for, inter alia, “housing choice, diversity and affordability”.18 The Planning Act provides that a planning scheme must, inter alia, “coordinate and integrate the matters dealt with by the planning scheme, including State and regional aspects of the matters.”19 If, in the course of making or amending a planning scheme, notice is required to be given to the Minister to approve the instrument, the Minister may approve the instrument if the Minister considers the instrument “appropriately integrates State, regional and local planning and development assessment policies, including policies under an applicable State planning instrument”.20 These matters reflect the contemplated, transparent, integrated, coordinated and accountable system of land use planning and development assessment contemplated by the Planning Act. [17] A development application is made under s 51 of the Planning Act. A development application that complied with ss 51(1) to (3) of the Planning Act, or which the assessment manager accepted under ss 51(4)(c) or (d), was regarded as a “properly made application”.21 In this case, the development application was properly made on 28 August 2023. The development application was for assessable development within the meaning of s 43(3) of the Planning Act and required an impact assessment as described by s 45(5). The impact assessment was required to be carried out against the assessment benchmarks in a categorising instrument for the development.22 The Planning Scheme is such a categorising instrument.23 [18] The Planning Scheme identified the assessment benchmarks for a material change of use in the medium density residential zone. For the purposes of an impact assessment, where the building work exceeded the height identified on the Building height overlay map, the assessment benchmark was identified by the Planning Scheme as “[the Planning Scheme] including: Strategic Framework, Medium density residential zone code, Any other relevant code”.24 The height uplift provision appeared within the 11 Ibid s 4(a). 12 Ibid s 4(b). 13 Ibid s 4(c). 14 Ibid s 8(3). 15 Ibid s 8(4)(b). 16 Ibid s 18(1). 17 Ibid s 5(1). 18 Ibid s 5(2)(f). 19 Ibid s 16(1)(c). 20 Ibid s 18(7). 21 Ibid s 51(5). 22 Ibid, s 45(a)(i). 23 Ibid, s 43(3). 24 RB 338. -- 6 of 31 -- 7 Strategic Framework of the Planning Scheme, as part of the “Specific outcomes”25 for “[a]ll urban neighbourhoods”.26 The medium density residential zone code provided a Performance Outcome (PO3) for height which provided that building height and structure height did not exceed that shown on the Building height overlay map. The Planning Scheme dealt with density as a separate consideration to height. For assessable development involving the medium density residential zone, Performance Outcome (PO5) relevantly provided that the density did not exceed that shown on the Residential density overlay map.27 [19] The assessment manager’s decision making on the development application was regulated by the Planning Act and was required to be undertaken in a way that advanced the purpose of the Planning Act.28 In respect of the development application, the assessment manager was required to follow the development assessment process and make a decision based on the assessment carried out pursuant to that process.29 After carrying out the assessment, the assessment manager was required by s 60(3) of the Planning Act to make one of three possible decisions: approve all or part of the application, approve all or part of the application but impose development conditions on the approval or refuse the application. The contemplated decision involved an evaluative judgment. That decision has been recognised as involving a broad discretion, where the outcome of the assessment process is not necessarily determined by the degree of compliance against the assessment benchmarks in the categorising instrument.30 Notably, the assessment manager was permitted to have regard to any other relevant matter under s 45(5)(b).31 The discretion conferred by s 60(3) of the Planning Act “is not fettered other than by reference to the purpose of the Act and the constraints under s 45 imposed on an impact assessment”.32 [20] In Abeleda v Brisbane City Council,33 Mullins JA observed: “The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors. …The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the 25 RB 243. 26 Ibid. 27 RB 352, 430. 28 Abeleda v Brisbane City Council (2020) 6 QR 441 at 455 [34]. 29 Ibid. 30 Ibid [40]. 31 Ibid [40] and [42]. 32 Ibid at 462 [56]. 33 (2020) 6 QR 441 at 457, [42] and [43]. -- 7 of 31 -- 8 decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision-making in a way that advances the purpose of the Act ...” The Planning Scheme [21] The Planning Scheme commenced on 2 February 2016 and since then has been regularly amended. [22] The assessment manager was required to assess the development application by reference to the Planning Scheme in effect as at the date when the development application was properly made.34 As at that date, 28 August 2023, version 10 of the Planning Scheme was in effect.35 It is uncontroversial that version 10 of the Planning Scheme was the version of the Planning Scheme which applied to the development application.36 It is also uncontroversial that the words of the height uplift provision have not materially changed since the Planning Scheme first commenced on 2 February 2016.37 Unless otherwise indicated, when these reasons refer to the Planning Scheme, the reference is to version 10 of the Planning Scheme. [23] In Part 1, the “Introduction” section, the Planning Scheme makes reference to “state planning policies” and the “South East Queensland Regional Plan 2009–2031”. The relevant parts of the introduction may be set out as follows: “1.1 Introduction (1) [The Planning Scheme] has been prepared in accordance with the Sustainable Planning Act 2009 (the SP Act) as a framework for managing development in a way that advances the purpose of the SP Act. (2) [The Planning Scheme] was amended for alignment with the [Planning Act] by the Minister’s rules under section 293 of the [Planning Act] (endorsed by [the Council] on 17 May 2017) to commence on 3 July 2017. (3) In seeking to achieve this purpose, [the Planning Scheme] sets out the City of Gold Coast’s intention for the future development in the [Planning Scheme] area, over the next 20 years. (4) [The Planning Scheme] seeks to advance state and regional strategies, including state planning policies and the South East Queensland Regional Plan 2009-2031, through more detailed local responses, taking into account the local context. (5) While [the Planning Scheme] has been prepared with a 20 year horizon, it will be reviewed periodically in accordance with the [Planning Act] to ensure that it responds appropriately to the changes of the community at a local, regional and state level”. 34 The Planning Act, s 45(7). 35 Version 10 of the Planning Scheme took effect on 4 July 2023: RB 433. 36 Applicants’ written submissions filed 9 June 2016 [5(a)], the Council’s written submissions filed 17 June 2026 [2(d)] and the Developer’s written submissions filed 15 June 2026 [2]. 37 Applicants’ supplementary outline of submissions [4]; The Developer’s further submissions [8]. -- 8 of 31 -- 9 [24] The Planning Scheme has an “Interpretation” provision which includes the following definitions provision:38 “1.2.1 Definitions (1) A term used in [the Planning Scheme] has the meaning assigned to that term by one of the following: (a) [the Planning Act]; (b) [the Planning Regulation 2017 (Qld)]; (c) the definitions in Schedule 1 of [the Planning Scheme]; (d) the Acts Interpretation Act 1954; (e) the ordinary meaning where that term is not defined in any of the above.” [25] This definitions provision, which makes specific reference to the Planning Act and the Planning Regulation 2017 (Qld) (“the Planning Regulation”), was first introduced on 3 July 2017 by version 4 of the Planning Scheme. On that same date, 3 July 2017, the Planning Act and the Planning Regulation commenced and the State planning policy dated July 2017 replaced the earlier State planning policy. The amendments made to the definitions provision by version 4 of the Planning Scheme were termed “Alignment amendments to [the Planning Scheme] in accordance with Alignment Amendment Rules made by the Planning Minister under section 293 of the [Planning Act]”.39 The effect of the Alignment Amendment Rules was to permit amendments to the Planning Scheme which were consistent with the Planning Act and did not substantially change the effect of the Planning Scheme.40 [26] Under the heading “Part 2 State planning provisions”, 2.1 and 2.2 of the Planning Scheme provide: “Part 2 State planning provisions 2.1 State planning policy The minister has identified that the state planning policy is integrated in [the Planning Scheme] in the following ways: Aspects of the state planning policy appropriately integrated • Guiding Principles • Liveable communities and housing – Liveable communities – Housing supply and diversity … Note: where state interests are not integrated into the [Planning Scheme], the applicable assessment benchmarks, relevant guiding principles, state interest statements and state interest policies contained in the State Planning Policy applies to development, to the extent relevant. 38 RB 219. 39 RB 431; The Alignment Amendment Rules were made on 25 November 2016. 40 The Planning Act, s 293(1). -- 9 of 31 -- 10 … 2.2 Regional Plan The minister has identified that [the Planning Scheme], specifically the strategic framework, appropriately advances the South East Queensland Regional Plan 2009 - 2031, as it applies in [the Planning Scheme] area.” [27] Having regard to 1.1(4), 2.1 and 2.2 of the Planning Scheme, it is apparent that, as part of its purpose, the Planning Scheme seeks to advance state and regional strategies, including state planning policies and the South East Queensland Regional Plan 2009–2031 (“the Regional Plan”), through more detailed local responses, taking into account the local context. The Planning Scheme states that the Regional Plan is appropriately advanced through the Planning Scheme’s strategic framework. The Planning Scheme also states that “[t]he minister has identified that the state planning policy is integrated in the [Planning Scheme] in the following ways”, with the “[a]spects of the state planning policy appropriately integrated” being identified as “[l]iveable communities and housing – [l]iveable communities and [h]ousing supply and diversity”. The Planning Scheme does not contain a definition of “the state planning policy” as it appears in “2.1 State planning policy”. However, the definitions provision, 1.2.1(b), relevantly provides that a term used in the Planning Scheme has the meaning assigned to that term by the Planning Regulation. Schedule 24 of the Planning Regulation defines “State Planning Policy” to mean “the State planning policy dated July 2017 and published on the department’s website”. I will refer to “the State planning policy dated July 2017 and published on the department’s website” as “the State Planning Policy”. As is further explained below, the State Planning Policy contains a theme “Liveable communities and housing” which comprises two State interests, “Housing supply and diversity” and “Liveable communities”. [28] The Planning Scheme defines “affordable housing” as “[h]ousing that is appropriate to the needs of households with low to moderate incomes, if the members of the households will spend no more than 30 per cent of gross income on housing costs”. The Planning Scheme contains no definition of the phrase “housing choice and affordability” or “affordability”. [29] Part 3 of the Planning Scheme contains its “Strategic framework”. Within Part 3, sections 3.1, 3.2 and 3.3 are particularly relevant. [30] As to section 3.1, it relevantly provides: “3.1 Introduction … (3) For the purpose of describing the policy direction for [the Planning Scheme] the strategic framework is structured in the following way: (a) The strategic intent; (b) The following six city shaping themes that play an important role in shaping future growth and managing change across the city, and collectively represent the policy intent of [the Planning Scheme]: -- 10 of 31 -- 11 (i) Creating liveable places; (ii) Making modern centres; (iii) Strengthening and diversifying the economy; (iv) Improving transport outcomes; (v) Living with nature; and (vi) A safe, well designed city. (c) The strategic outcomes proposed for development in [the Planning Scheme] area for each theme. (d) The elements that refine and further describe the strategic outcomes. (e) The specific outcomes sought for each of the elements. (4) Although each theme has its own section, the strategic framework is read in its entirety as the policy direction for [the Planning Scheme]. Note: The whole of the planning scheme is identified as the assessment benchmark for impact assessable development. This specifically includes assessment of impact assessable development against this strategic framework…” [31] Section 3.2, which is headed “Strategic intent”, contains these statements: (a) Under the sub-heading 3.2.1 “World-class city”: “As we grow, we need to plan for all households so that privately owned, rental and socially rented housing options are available in well located places. This requires planning for housing that is affordable, attractive and diverse with convenient access to transport, employment, community, recreation and other services. Affordable living opportunities - where affordability comprises the initial and ongoing costs of housing including transport and maintenance - are a strong focus of this City Plan and will be planned for by: (a) increasing housing choice across the city; (b) ensuring housing is appropriate to the context of the place, whether urban, suburban or rural; and (c) tailoring the city’s shape, transport systems, employment lands, community facilities, neighbourhoods and homes to attain affordable lifestyles over the long term.” (b) Under the sub-heading “3.2.2 City shape and urban transformation”: “The city’s settlement pattern has been shaped by physical attributes - the coast, waterways and hinterland - and road and rail routes. These forces will continue to shape the city and the types and roles of places within it. -- 11 of 31 -- 12 The Gold Coast's city shape (or settlement pattern) is made of the following: (a) The urban area, comprising the following places: (i) Mixed use centres; (ii) Specialist centres; (iii) Neighbourhood centres; (iv) Industry and business areas; (v) Urban neighbourhoods, including the light rail urban renewal area; (vi) Suburban neighbourhoods; (vii) New communities; (viii) Merrimac/Carrara flood plain special management area; (ix) Townships; (x) The Spit tourism area; and (xi) The Spit marine industry area. (b) The non-urban area, comprising the following places: (i) Natural landscape areas; (ii) Rural production areas; (iii) Rural residential areas; and (iv) Inter-urban break. Note: The city’s urban and non-urban areas are identified on strategic framework map 1. Note: The city’s settlement pattern is identified on strategic framework map 2. … While public transport investment will offer enormous potential for some areas to be renewed, building height and form will continue to vary across the city, including areas where building heights are planned to change abruptly to achieve a deliberate and distinct contrast in built form. This will reinforce community identity, create a sense of place, support housing choice and affordability and reflect the city’s different places and spaces…”. [32] Section 3.3 is headed “Creating liveable places”. Within that section appear the “Strategic outcomes” and the “Specific outcomes”. [33] The Strategic outcomes (3.3.1) include the following: “… (2) The Gold Coast’s settlement pattern provides housing choices and diverse lifestyle opportunities in mixed use centres and specialist centres, neighbourhood centres, urban -- 12 of 31 -- 13 neighbourhoods, suburban neighbourhoods, new communities, and rural residential and township areas… (3) Housing is provided in a form, height and scale consistent with the function, amenity and desired future character of local areas and centres, and promotes a sense of community cohesion and wellbeing. Housing is attractive and well-designed. (4) Affordable housing or entry level priced housing meets the needs of low to moderate income households, and purpose-built adaptable housing and accommodation meets the needs of seniors, people with disabilities, students and people in need of emergency accommodation. These forms of housing are located close to facilities, services, public transport, employment and essential infrastructure. (5) Varied building height and form throughout the city reinforces local identity, creates a sense of place and supports housing choice and affordability and the function and desired future appearance of each local area. (6) High intensity urban activity optimises land well-serviced by public transport, infrastructure and community facilities and provides mixed use centres and specialist centres and urban neighbourhoods with improved amenity. (7) Medium and higher intensity housing occurs in mixed use centres and specialist centres and urban neighbourhoods. (8) Neighbourhood design maximises walking and cycling and improves access by providing local community facilities and services, public transport and jobs close to homes. Socially diverse and inclusive communities accommodate all ages, income groups and cultural backgrounds. (9) Urban neighbourhoods accommodate a diverse and well- connected network of urban places. Development is focused on mixed use centres and specialist centres and public transport hubs, and densities are higher in areas with high frequency public transport, community facilities and infrastructure capacity. … Note: The city's urban and non-urban areas are conceptually shown on strategic framework map 1. Note: The city’s settlement pattern is conceptually shown on strategic framework map 2.” [34] The “Specific outcomes” for “urban neighbourhoods” (3.3.2.1) includes the height uplift provision as 3.3.2.1(9). The other relevant paragraphs of 3.3.2.1 are as follows: “All urban neighbourhoods (1) Urban neighbourhoods are compact, well-designed and pedestrian-friendly, offer housing choice and high amenity and -- 13 of 31 -- 14 provide access to facilities, services, public transport, employment and essential infrastructure. (2) Urban neighbourhoods are generally located on or near high frequency public transport corridors served by light rail or high frequency bus. … (3) Certain locations not within or near high frequency public transport corridors reflect long-term locations of medium and high intensity development and have the potential for increased public transport services. (4) Urban neighbourhoods vary from pockets of detached housing on smaller lots to medium or higher- intensity places containing medium or high-rise buildings. (5) Housing includes a mix of tenure, size and type to assist with affordability and location options, and to support occupants from various social and cultural backgrounds including key workers. (6) Urban neighbourhoods have a public transport hub, community facility, park or mixed use centre, specialist centre or neighbourhood centre as their focal point…”. The State Planning Policy and the Regional Plan [35] The State Planning Policy “expresses the state’s interests in land use planning and development”.41 A “State interest” is defined by the Planning Act to mean “an interest that the Minister considers— (a) affects an economic or environmental interest of the State or a part of the State; or (b) the interest of ensuring this Act’s purpose is achieved”.42 The State Planning Policy “set[s] down the state interests that apply to plan making, and that should be given effect through each local government planning scheme”.43 As they are expressed in the State Planning Policy, the State interests consist of a state interest statement, State interest policies and assessment benchmarks.44 The State Planning Policy recognises seventeen State interests in land use planning and development.45 Those State interests are grouped into five themes.46 One theme “liveable communities and housing” comprises two state interests, “Housing supply and diversity” and “Liveable communities”.47 [36] The following appears in the State Planning Policy under the heading “Planning for liveable communities and housing”:48 “Liveable communities are well-serviced, accessible and attractive environments that provide the foundations for a healthy, sustainable and prosperous Queensland. … While housing affordability is 41 RB 710. 42 The Planning Act, sch 2 (definition of “state interest”). 43 RB 710. 44 RB 710. 45 RB 724–6. 46 RB 728. 47 RB 729. 48 Ibid. -- 14 of 31 -- 15 influenced by many factors, the planning system has a role to play in facilitating affordable housing outcomes and, more broadly, affordable living to ensure Queensland is a great place to live, work and enjoy.” [37] The first State interest within the theme “Liveable communities and housing”, is “Housing supply and diversity”. The state interest statement for “Housing supply and diversity” reads “Diverse, accessible and well-serviced housing, and land for housing, is provided and supports affordable housing outcomes”. The State Planning Policy provides this explanation as to why “Housing supply and diversity” is of interest to the State:49 “Housing across the state needs to cater for different households and family types, ages, community needs, lifestyles, and income. The state is interested in ensuring sufficient land and housing stock is available in appropriate locations to support development, resource and infrastructure-related projects, and to meet the diverse needs of all sectors in the community. Affordable, accessible, innovative and adaptable housing is required throughout all regions of the State to ensure a range of housing is available to all sectors of the community, including Queensland’s ageing population.” [38] After providing that explanation, the State Planning Policy continues:50 “To support the delivery of affordable housing and housing choice, local planning instruments will need to incorporate flexible planning arrangements and avoid or minimise regulatory barriers or inefficiencies. … Effective planning policies for diverse residential accommodation will benefit the Queensland economy by supporting the development and construction industries, and the liveability and affordability of our communities.” [39] For the State interest “Housing supply and diversity”, the State Planning Policy identifies State interest policies which are required to be appropriately integrated in planning and development outcomes where relevant.51 Amongst those policies are the following: “… (2) The development of residential land is facilitated to address and cater for all groups in the current and projected demographic, economic and social profile of the local government area, including households on low to moderate incomes. (3) A diverse, affordable and comprehensive range of housing options in accessible and well serviced locations, is facilitated through: (a) appropriate, responsive and proactive zoning 49 RB 730. 50 RB 730. 51 RB 731. -- 15 of 31 -- 16 (b) supporting an appropriate mix of lot sizes and dwelling types, including housing for seniors and people requiring assisted living (c) considering incentives to promote affordable and social housing outcomes, particularly in areas in close proximity to services and amenities.” [40] The second State interest within the theme “Liveable communities and housing”, is “Liveable communities”. The State interest statement for “Liveable communities” reads “Liveable, well-designed and serviced communities are delivered to support wellbeing and enhance quality of life”.52 The State Planning Policy provides this explanation as to why “Liveable Communities” are of interest to the State:53 “The provision of sustainable, equitable and efficient access to a wide range of services and facilities underpins community wellbeing and liveability. This can have a major effect on community health, safety, access and employment. All levels of government and the private sector deliver a range of infrastructure and services to support communities, including education, health, emergency services, sporting facilities, communication networks, energy, waste management and water infrastructure. Integrated approaches to land use and infrastructure planning maximise the benefits of investment, support affordable and connected communities, and minimise the carbon footprint of urban development. High quality urban design and effective place making improves community health and wellbeing, facilitates social cohesion, and creates resilient, sustainable and affordable communities that support Queensland’s economic prosperity.” [41] For the State interest “Liveable communities”, the State Planning Policy identifies State interest policies which are required to be appropriately integrated in planning and development outcomes where relevant.54 Amongst those policies are the following:55 “(1) High quality urban design and place making outcomes are facilitated and promote: (a) affordable living and sustainable and complete communities … (2) Vibrant places and spaces, and diverse communities that meet lifestyle needs are facilitated by: … (b) a mix of land uses that meet the diverse demographic, social, cultural, economic and lifestyle needs of the community 52 RB 733. 53 RB 732. 54 RB 733. 55 RB 733. -- 16 of 31 -- 17 … (d) higher density development in accessible and well- serviced locations (e) efficient use of established infrastructure and services.” [42] The Regional Plan is the preeminent plan for the South East Queensland region (“SEQ”),56 which includes the Council’s local area.57 The purpose of the Regional Plan is to manage regional growth and change in the most sustainable way to protect and enhance quality of life in the region.58 There is a definitions section which provides “Terms used in [the Regional Plan] are as defined in the [Integrated Planning Act 1997 (Qld)], unless otherwise specified in the [Regional Plan] regulatory provisions or glossary”.59 [43] Part D of the Regional Plan sets out “desired regional outcomes for the SEQ region”, “principles necessary to achieve those outcomes”, “policies to be applied to guide state and local government planning processes and decision making” and “programs to be implemented over the life of the plan”.60 Within Part D, section 8 is concerned with “Compact settlement”. The following appears within section 8: “8.5 Housing choice and affordability Principle Provide a variety of housing options to meet diverse community needs, and achieve housing choice and affordability. Policies 8.5.1 Prioritise the short- to medium-term supply of broadhectare land in SEQ. 8.5.2 Provide housing choice through a range and mix of dwelling type, size and location in residential developments. 8.5.3 Support an increased provision of affordable housing through community-based, not-for-profit entities and housing cooperatives. 8.5.4 Encourage all major development to incorporate affordable housing, including appropriate housing for the entry buyer and low-income housing markets. 8.5.5 Consider affordable housing in decisions on the disposal or redevelopment of government property and surplus land. Programs 8.5.6 Monitor housing prices, land availability and other factors that affect housing costs as part the Queensland Housing Affordability Strategy. 56 RB 798. 57 RB 798. 58 RB 797. 59 RB 801. 60 RB 802. -- 17 of 31 -- 18 8.5.7 Prepare a Model Code for Smart Growth to guide state and local governments on sustainable approaches to planning and development standards for residential subdivision, and dwelling location and design.” [44] The notes to Table 8.5 include the following: “Notes Providing diverse and affordable housing options is an important issue and key challenge both nationally and in SEQ. A range of housing choices helps create diverse communities and prevent social polarisation and displacement. With significant population growth, SEQ is undergoing economic, social and demographic change. Traditional households of couples with children are decreasing, and the number of people living alone, without children or as lone parents, is increasing. This household change is creating demand for more housing options, including more affordable housing. Understanding these changes and the implications for housing demand and supply at a local level can help determine the type of housing needed in new development. Some groups are at risk of housing stress, including working families, specific industry workers, Aboriginal and Torres Strait Islander families, the unemployed and young single people on fixed incomes. These groups constitute the bottom 40 per cent of household income distribution, and often pay more than 30 per cent of their household income in rent or on home loan repayments for appropriate housing in the private market.” [45] As will be apparent from the foregoing, 8.5 within Part D of the Regional Plan identifies a desired regional outcome as “housing choice and affordability”. The principle which is said to achieve that desired regional outcome is “Provide a variety of housing options to meet diverse community needs”. The policies to be applied to guide state and local government planning processes and decision-making in support of that desired regional outcome and the principle which achieves that outcome include: “Provide housing choice through a range and mix of dwelling type, size and location in residential developments”, “Support an increased provision of affordable housing through community-based, not-for-profit entities and housing cooperatives” and “Encourage all major development61 to incorporate affordable housing, including appropriate housing for the entry buyer and low-income housing markets”.62 The primary judge’s reasons [46] The appeal to the Planning Court was by way of hearing anew.63 It was for the respondent to convince the Planning Court that the appeal should be dismissed.64 The primary judge was required to assess the development application under s 45 of the Planning Act as if her Honour was the assessment manager for the development application. 61 There is no definition of “major development” in the Integrated Planning Act 1997 (Qld), the Regional Plan regulatory provisions or glossary. 62 RB 806. 63 The PEC Act, s 43. 64 Ibid, s 45. -- 18 of 31 -- 19 [47] The appeal to the Planning Court was conducted on the basis that there were four real issues in dispute.65 The first issue concerned whether the proposed development complied with the height uplift provision. The second issue concerned whether the setbacks, site cover and separation of the proposed development had unacceptable impacts on residential amenity, including in terms of overlooking, overbearing, loss of outlook, shadowing, natural light or ventilation. The third issue concerned whether the density of the proposed development caused unacceptable impacts. The fourth issue concerned whether, if noncompliance with relevant benchmarks were established, any other relevant matter supported approval or refusal of the development application. The parties accepted that those real issues were “largely subsumed by the various subparagraphs of [the height uplift provision]”, save for the issues associated with excessive density and adverse amenity for future occupants.66 Six subparagraphs of the height uplift provision were in issue, namely subparagraphs 9(b) “local identity and sense of place”, 9(c) “a well-managed interface”, 9(d) “a varied, ordered and interesting skyline”, 9(e) “an excellent standard of appearance”, 9(f) “housing choice and affordability” and 9(g) “elements of local character or scenic amenity”. [48] Before the Planning Court, it was uncontroversial that the proposed development did not comply with the height standard imposed by the Building height overlay map.67 The Council submitted that the height noncompliance was “overtaken by the [height] uplift provision”. As to density, the density of the proposed development was one bedroom per 14.9m2. Performance outcome (PO5) of the medium density residential code required that density not exceed that shown on the residential density overlay map. The site was within the RD6 designation on that map which provided for one bedroom per 33m2. The applicants argued that this represented a serious noncompliance with the Planning Scheme. The Council argued that the nature and extent of the noncompliance did not warrant the refusal of the development application.68 [49] The primary judge found that the proposed development satisfied each of the outcomes expressed in sub-paragraphs 9(b) “Local identity and sense of place”69, 9(c) “A well-managed interface”70, 9(d) “A varied, ordered and interesting skyline”71, 9(e) “An excellent standard of appearance”72, 9(f) “Housing choice and affordability”73 and 9(g) “Elements of local character or scenic amenity”74. As to density, the primary judge found that the site location supported “an exceedance in density”75 and that, even though the proposed density exceeded the density limit, “the exceedance [did] not sound in unacceptable planning and amenity impacts”.76 The primary judge was satisfied that the approval of greater density would not cut across future achievement of the planned density in the medium density residential zone in the location or, more 65 RB 30 [74]. 66 RB 30 [75]. 67 RB 16 [5]. 68 RB 31 [84]. 69 RB [134]. 70 RB [178]. 71 RB [191]. 72 RB [210]. 73 RB [270]. 74 RB [276]. 75 RB 69 [299]. 76 RB 69 [300]. -- 19 of 31 -- 20 broadly, across the Gold Coast.77 The primary judge found that there were no adverse internal amenity impacts for future occupants and the proposed development provided a high standard of amenity for users in terms of accessibility and quality of open space.78 Her Honour was not prepared to find noncompliance with relevant codes.79 [50] Ultimately, the primary judge expressed this conclusion:80 “I find that the proposed development complies with [the height uplift provision] of [the Planning Scheme]. To the extent that the proposed development does not comply with assessment benchmarks, the non- compliances are not such as to warrant refusal in this case. In my assessment, the proposed development is highly meritorious and should be approved subject to lawful conditions.” [51] The applicants make no complaint about any aspect of the primary judge’s decision in relation to the development application’s satisfaction of the outcomes expressed by sub-paragraphs 9(b) “Local identity and sense of place”, 9(c) “A well-managed interface”, 9(d) “A varied, ordered and interesting skyline”, 9(e) “An excellent standard of appearance”, 9(g) “Elements of local character or scenic amenity” or in respect of the issues concerning density or adverse internal amenity impacts for future occupants. The proposed grounds of appeal are limited to the proper construction of sub-paragraph 9(f) of the uplift provision, “Housing choice and affordability” and the words which appear in the chapeau of the height uplift provision “in limited circumstances … where all the following outcomes are satisfied”. [52] As to the outcome “Housing choice and affordability”, the primary judge found that the proposed development would provide 20 units which represented “a tiny fraction of the total stock in the local area, with the incremental increase of 4 to 6 units above 23 metres representing an even smaller fraction”.81 The primary judge found that the proposed development was “a luxury development product catering to a more affluent segment of the market”82 and the development would yield “only an additional two levels of very expensive apartments”.83 It was uncontroversial that the proposed development would not itself provide affordable housing for low to moderate income earners.84 [53] The primary judge noted that the expression “Housing choice and affordability” was not defined by the Planning Scheme but that the term “affordable housing” was defined by the Planning Scheme. The primary judge further noted that the word “affordability” was not defined in either the Planning Act, the Planning Regulation or the Planning Scheme. The primary judge determined to give that word, “affordability”, its ordinary meaning.85 In focusing upon the meaning of “affordability”, her Honour implicitly rejected the submissions made by the applicants which were to the effect that the expression “Housing choice and 77 RB 69 [302]. 78 RB 70 [309]. 79 RB 71 [312]. 80 RB 71 [315]. 81 RB 54 [214]. 82 RB 54 [215]. 83 RB 54 [214]. 84 RB 54 [215]. 85 RB 58 [231]. -- 20 of 31 -- 21 affordability” was to be effectively read as “housing choice and housing affordability”,86 where “housing affordability” had the same meaning as “affordable housing” as defined by the Planning Scheme.87 [54] In rejecting the applicant’s suggested construction, and in focusing upon a broad meaning of the word “affordability”, her Honour referred to earlier authorities of the Planning Court: Bell Company Pty Ltd v Council of the City of Gold Coast88 (“Bell”), McLucas v Council of the City of Gold Coast89 (“McLucas”) and Archer v Council of the City of Gold Coast90 (“Archer”). Notably, these authorities appear to have been decided without the Planning Court having been referred to relevant provisions of the State Planning Policy or the Regional Plan. In Bell, the judge, having regard to the circumstances of that case, did not consider it necessary to explore “the meaning and outer limits” of the expression “Housing choice and affordability” as it appeared in a materially identical provision to the height uplift provision in an earlier version of the Planning Scheme.91 McLucas and Archer considered the meaning of the expression “Housing choice and affordability”, again as it appeared in a materially identical provision to the height uplift provision in an earlier version of the Planning Scheme. [55] In the present case, after having regard to the State Planning Policy and the Regional Plan, the primary judge was not persuaded that the construction preferred in Archer, which placed reliance upon McLucas and Bell, was “plainly wrong”.92 The construction preferred in Archer was explained by the primary judge as follows: (a) The problematic drafting of cl 3.3.2.1(9)(f) denies that provision the status of an outcome that is capable of satisfaction by a development application.93 (b) Planning for housing choice and affordability is linked to the planned settlement pattern, being one that concentrates development in well-serviced urban places which informs “affordability”.94 (c) In the Planning Scheme, “affordable housing” is a different planning concept to “housing choice and affordability”.95 (d) “Housing choice and affordability” is achieved by ensuring the height and building form is consistent with the planned settlement pattern, not height only.96 (e) In terms of building form, the parameters that guide the planned density in an area are likely to assist where the delivery of less density than planned may be unlikely to support housing choice and affordability.97 (f) In the Planning Scheme, whether development supports “housing choice and affordability” is not determined by considering matters such as the average 86 RB 57 [228]. 87 Ibid. 88 [2023] QPELR 1160. 89 [2024] QPELR 283. 90 [2024] QPELR 387. 91 Bell [133]. 92 RB 61 [255]. 93 RB 55 [218) (a). 94 RB 55 [218] (b). 95 RB 55 [218] (d). 96 RB 55 [218] (e). 97 RB 55 [218] (f). -- 21 of 31 -- 22 income of Australians (or that of the needs of low to moderate income households) and the likely price point of a proposed development.98 [56] Applying that preferred construction to the required assessment of the development application, the primary judge found that the proposal would “provide affordable living opportunities in a location with a high degree of existing and future infrastructure”.99 In making that finding, the primary judge accepted the evidence of Mr Duane, an economist, who analysed the existing and anticipated infrastructure and services in the locality. The primary judge drew the following propositions from Mr Duane’s evidence: (a) the proposed development would provide larger apartments together with a mix of smaller apartments at a highly sought after location and thereby contribute to diversity and choice.100 (b) the proposed development would contribute to housing affordability by creating density around well-located places with good infrastructure, transport and proximity to employment centres.101 (c) there was major infrastructure, including shopping centres, public transport, schools, education and sporting facilities, and employment nodes within the surrounding area.102 [57] As to the construction of the words “in limited circumstances”, the primary judge referred, with approval, to separate observations in McLucas to the effect that the “limited circumstances” in which the uplift is available are the circumstances in which all the statutory criteria are met or satisfied.103 The primary judge ultimately preferred a construction of the words “in limited circumstances” which required the proposed development to meet the criteria identified in the statutory provision. In that respect, the primary judge preferred an approach which applied the words of the various statutory criteria and did not require the proposal to be exceptional such as to justify the application for the uplift.104 The first proposed ground of appeal [58] The first proposed ground of appeal contends for error by the primary judge in failing to construe the expression “Housing choice and affordability” in the height uplift provision consistently with the Regional Plan and the State Planning Policy, other Queensland statutes and its ordinary or customary usage. [59] The same principles which apply to statutory construction apply to the construction of planning documents.105 In SZTAL v Minister for Immigration and Border Protection, Kiefel CJ, Nettle and Gordon JJ stated:106 “The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is 98 RB 55 [218] (g). 99 RB 62 [259]. 100 RB 62 [257]. 101 RB 62 [259]. 102 RB 63 [265]. 103 RB 32 [92]. 104 RB 33 [96] and RB 32 [90]. 105 Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at 94 [52]. 106 (2017) 262 CLR 362 at 368 [14]. -- 22 of 31 -- 23 had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (footnotes omitted) [60] The modern approach to statutory interpretation uses “context” in its widest sense. Context includes legislative history and extrinsic materials.107 In CIC Insurance Ltd v Bankstown Football Club Ltd,108 Brennan CJ, Dawson, Toohey and Gummow JJ said: “It is well settled that at common law … the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.” (footnotes omitted) [61] The context in which a provision falls to be construed includes the “the general purpose and policy of a provision”.109 Hence, the High Court has said:110 “Objective discernment of statutory purpose is integral to contextual construction.” [62] It may also be noted that the primary object of statutory interpretation is to construe a provision so that it is consistent with, inter alia, the purpose of all the provisions of the statute.111 In Project Blue Sky Inc v Australian Broadcasting Authority,112 the joint judgment113 observed that the “meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’”. In support of that proposition, the joint judgment referred with approval to a statement by Lord Scarman in South West Water Authority v Rumble’s114 to the effect that it was not possible to discern the true meaning of a paragraph of an Act “save in the context of the legislation read as a whole”. [63] By reason of the absence of any definition of “Housing choice and affordability”, the Planning Scheme’s definition provision (1.2.1) directs attention to the ordinary meaning of the text or language used in the Planning Scheme. The starting point for the ascertainment of that meaning must be the text of the provision, considered in light of its context and purpose.115 107 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]. 108 (1997) 187 CLR 384 at 408. 109 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 [47]. 110 Thiess v Collector of Customs (2014) 250 CLR 664 at 672 [23]. 111 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. 112 (1998) 194 CLR 355 at 381 [69]. 113 McHugh, Gummow, Kirby and Hayne JJ. 114 [1985] AC 609 at 617. 115 SAS Trustee Corporation v Miles (2018) 265 CLR 137 at 149 [20]. -- 23 of 31 -- 24 [64] The relevant text is the language “Housing choice and affordability”. The broad construction preferred by the primary judge focuses upon the meaning of “affordability” as a term not qualified or modified by “housing”. Hence, the Developer’s submissions before this Court sought to uphold the construction preferred by the primary judge on the basis that the text should be read as “housing choice and affordability more generally”.116 I do not regard that reading as reflecting the natural way to read the expression. The expression most naturally reads as linking “housing” with choice and affordability; that is the word “housing” would appear to qualify or modify both “choice” and “affordability”. In a separate part of the reasons, the primary judge considered that, as a matter of common parlance, the expression “housing affordability” was interchangeable with “affordable housing”.117 No party complains about that observation. In my view, on the natural reading of the expression “Housing choice and affordability”, contains an element of housing affordability or affordable housing. [65] As has been made plain, at the initial stage of interpretation, the context must be considered. The relevant context may be outlined as follows: (a) The text appears in a Planning Scheme which the Planning Act identifies as being part of an integrated system of land use planning in which local planning instruments, such as the Planning Scheme, are not to be inconsistent with regional plans or state planning policies. (b) The Planning Scheme seeks to advance State and regional strategies including state planning policies and the Regional Plan. (c) The Minister has identified that aspects of the State Planning Policy comprising two State interests, “liveable communities” and “housing supply and diversity”, are appropriately integrated into the Planning Scheme. (d) The Minister has identified that the strategic framework of the Planning Scheme appropriately advances the Regional Plan as it applies in the Gold Coast area. [66] The Council submitted that because the State Planning Policy post dated the commencement of the initial version of the Planning Scheme, version 1, which contained a materially identical provision to the height uplift provision, the State Planning Policy had no relevance to the proper construction of the height uplift provision as contained in the Planning Scheme.118 That submission should be rejected. Unlike its predecessor version 1, the Planning Scheme, through its definitions provision, expressly references the State Planning Policy and then states that the Minister has identified two State interests in the State Planning Policy, “liveable communities” and “housing supply and diversity” as being appropriately integrated in the Planning Scheme. The Minister’s identification that the two State interests are appropriately integrated in the Planning Scheme is not just part of the text of the Planning Scheme but also contributes to the context in which the height uplift provision falls to be construed. To disregard the Minister’s identification of the State interests which are appropriately integrated into the Planning Scheme would involve not reading the planning instrument as a whole and would also ignore the broader statutory context. Further, it is evident from its Introduction (1.1(5)) that the 116 T 1-44.20. 117 RB 61 [250]. 118 The Council’s submissions filed 17 June 2026 [7] to [9]. -- 24 of 31 -- 25 Planning Scheme is intended to be reviewed periodically to ensure that it responds appropriately to changes at a local, regional and state level. This provision tends to confirm the appropriateness in this case of the generally applicable119 approach to construction of a statutory provision as “always speaking” or as having an “ambulatory” or “updating” construction.120 [67] The context illuminates a relevant purpose of the Planning Scheme as being to advance the State Planning Policy and the Regional Plan through more detailed local responses, taking into account the local context. The State Planning Policy makes clear that “Housing supply and diversity” is of interest to the State relevantly because affordable housing is required throughout all regions of the State to ensure a range of housing is available to all sectors of the community.121 In the more focused context of the SEQ region, the Regional Plan speaks of affordable housing as including appropriate housing for the entry buyer and low-income housing markets.122 In the more specific localised context, the Planning Scheme advances the State Planning Policy and the Regional Plan by adopting a definition of “affordable housing” as housing that is appropriate to the needs of households with low to moderate incomes if the members of the households will spend no more than 30 per cent of gross income on housing costs. [68] The context and purpose provide a strong objective indication that when the Planning Scheme uses the expression “Housing choice and affordability” it is referencing and intending to advance the particular desired regional outcome in the Regional Plan, which is expressed in identical terms. As part of advancing that outcome, the Planning Scheme also adopts a definition of “affordable housing” for the purpose of the Planning Scheme which is broadly consistent with the concepts of affordable housing explained at the higher levels of the State Planning Policy and the Regional Plan. Further, to suggest that the expression “Housing choice and affordability”, as it appears in the Planning Scheme, refers to a concept different from the expression “Housing choice and affordability” as it appears in the Regional Plan, would countenance an inconsistency which is disavowed by the Planning Act. [69] In my view, cl 3.3.2.1(9)(f) of the height uplift provision directs attention to whether an increase in building height in an urban neighbourhood satisfies the desired regional outcome, “Housing choice and affordability”. Whether that outcome is satisfied within the meaning of the provision directs attention to the principle which is said to achieve that desired regional outcome, namely “provide a variety of housing options to meet diverse community needs”. The application of that principle in decision making is informed by policies which embrace the provision of affordable housing. One such policy is to encourage all major development to incorporate affordable housing, including appropriate housing for the low to moderate income housing markets. Construing the expression in that manner is also consistent with the State interest “Housing supply and diversity” which is stated to have been appropriately integrated into the Planning Scheme. The State interest “Housing Supply and Diversity” is fundamentally concerned with providing and supporting “affordable housing outcomes”. In that respect, the height uplift provision, properly construed, facilitates the relevant State interest policy of “a diverse, affordable and comprehensive range of housing options in accessible and well serviced locations” 119 Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101 at [82]. 120 Herzfeld and Prince, Interpretation, Law Book Co, 3rd ed, 2024 at pp 29-30. 121 RB 730. 122 RB 806. -- 25 of 31 -- 26 by providing an “incentive to promote affordable housing outcomes in areas in close proximity to services and amenities”. The Council accepted that the height uplift provision, if satisfied, confers a “benefit”.123 The Developer accepted that the height uplift provision “offers a substantial incentive”.124 [70] I have not found it necessary to look at extrinsic material comprising other Acts of Parliament which were relied upon by the applicants to engage the in pari materia principle. Nor have I found it necessary to have regard to the evidence adduced before the primary judge about an asserted “customary meaning” of the statutory language. In my view, the proper construction of the expression “Housing choice and affordability” is readily apparent without recourse to those matters. That is, the ordinary meaning of the text is readily apparent after considering its context and purpose. [71] In my respectful view, the Planning Court authorities of Bell, McLucas and Archer, do not reflect the proper construction of 3.3.2.1(9)(f) of the height uplift provision. In each of those cases, the Planning Court, for the purpose of construing previous versions of the Planning Scheme, does not appear to have been referred to the material parts of the State Planning Policy or the Regional Plan. In McLucas, which was followed in Archer, the judge identified “the key to understanding” the expression “housing choice and affordability” as being “to read it in the context of what [the Planning Scheme] otherwise says about choice and affordability”.125 Approaching context in its widest sense, the true context in which the expression “housing choice and affordability” falls to be considered is a broader context than what the Planning Scheme “says about choice and affordability”. The broader context directs attention to the specific aspects of the State Planning Policy integrated into the Planning Scheme (particularly the State interest “Housing Supply and Diversity”) and the Regional Plan which is sought to be advanced by the Planning Scheme’s Strategic Framework. These matters were apparently not considered in Bell, McLucas or Archer. [72] In McLucas, the judge considered that “housing choice and affordability” involved separate terms.126 Rather than consider the expression “housing choice and affordability” as a coordinated phrase including “housing”, the judge repeatedly identified the construction question as reducing to what was meant by “choice and affordability”.127 Ultimately, the judge reasoned in terms of a “criterion” involving “City Plan’s strategy for choice and affordability”.128 As I have already indicated, in my view that approach does not reflect the natural reading of the expression whereby “housing” modifies both “choice” and “affordability”. [73] Having fixed upon the term “affordability”, the reasoning in McLucas then identified “affordability” as “a broad concept”.129 The judge considered that “affordability” did not require an outcome involving affordable housing.130 To reach those conclusions, the judge placed significant reliance upon a paragraph concerned with “Affordable 123 First respondent’s outline of argument [44]. 124 Second respondent’s outline of argument [41]. 125 McLucas at 310 [116]. 126 [2024] QPELR 283 at 311 [127]. 127 Ibid at 310 [116], [120], 311 [127] and 312 [131]. 128 Ibid at 312 [131]. 129 Ibid at 310 [120]. 130 Ibid at 311 [127]. -- 26 of 31 -- 27 living opportunities” which appears in an earlier part of the Planning Scheme (3.2 Strategic intent, 3.2.1 World-class-city). It is convenient to repeat that paragraph: “Affordable living opportunities – where affordability comprises the initial and ongoing costs of housing including transport and maintenance – are a strong focus of this City Plan and will be planned for by: (a) increasing housing choice across the city; (b) ensuring housing is appropriate to the context of the place, whether urban, suburban or rural; and (c) tailoring the city’s shape, transport systems, employment lands, community facilities, neighbourhoods and homes to attain affordable lifestyles over the long term.” [74] The concept of “affordability” in this paragraph is linked to the concept of “affordable living opportunities”. It is noteworthy that the expression which appears in cl 3.3.2(9)(f) of the height uplift provision is “Housing choice and affordability”, not “Housing choice and affordable living opportunities”. In McLucas, the judge focused upon that earlier paragraph’s discussion of “Affordable living opportunities” and reasoned that “[affordability] is planned for by the three things in the sub-paragraphs”.131 Later in Archer, the judge described those same sub-paragraphs as “planning tools”.132 The three sub-paragraphs speak in terms of “increasing housing choice across the city”, “ensuring housing is appropriate to the context of the place” and “tailoring the city’s shape, transport systems, employment lands, community facilities, neighbourhoods and homes to attain affordable lifestyles over the long term.”133 One consequence of the broad interpretation of affordability as countenanced by McLucas and Archer is that “housing choice” is part of the planning for achieving affordability. On that construction the words “housing choice and” as they appear in the expression “housing choice and affordability” are somewhat otiose. [75] There are other problems with attempting to derive the meaning of “affordability” from its use in the context of “affordable living opportunities” in the paragraph which appears in 3.2.1. [76] First, the expression “housing choice and affordability” should have a consistent meaning wherever used in the Planning Scheme. The expression appears twice. The first time the expression appears is in 3.3, Creating liveable spaces, 3.3.1(5) Strategic outcomes. Relevantly, that provision provides that “Varied building height and form … supports housing choice and affordability”. Varied building height and form might be regarded as supporting housing choice and housing affordability, but it is difficult to conceive how “Varied building height and form” could be regarded as supporting the broad meaning of affordability as adopted in McLucas and Archer. According to that broad meaning, affordability is planned for by, inter alia, “tailoring the city’s shape, transport systems, employment lands, community facilities”. [77] Secondly, Archer adopted the reasoning in McLucas but added the conclusion that “… in City Plan, whether a development supports housing choice and affordability is 131 Ibid at 310 [25]. 132 [2024] QPELR 387 at 471 [405]. 133 Ibid 471 [402]; McLucas 310 [119]. -- 27 of 31 -- 28 not determined by considering matters such as the average income of Australians (or that of the needs of low to moderate income households) and the likely price point of a proposed development.”134 I respectfully regard the added conclusion as unsound. The concept of “affordability” as used in the context of “affordable living opportunities” in terms, comprises, inter alia, “the initial costs of housing”. The added conclusion does not appear to be consistent with McLucas in any event. The judge in McLucas later decided Dajeen Investments Pty Ltd v Council of the City of Gold Coast.135 In that later case, his Honour followed his earlier reasoning in McLucas and explained that, based upon McLucas, “affordability” was a broader concept than “affordable housing” and “includes both the initial and ongoing cost of housing and has a link to, amongst other things, the provision of choice and the city’s shape”.136 [78] Thirdly, to say that “housing choice and affordability” references “the settlement pattern” necessarily directs attention to high level, imprecise considerations which are “conceptually shown on strategic framework map 2.”137 Those concepts are meant to provide “diverse lifestyle opportunities” beyond urban neighbourhoods extending to mixed use centres and specialist centres, neighbourhood centres, suburban neighbourhoods, new communities and rural residential and township areas.138 It is difficult to understand how these high level concepts were meant to impact the assessment of a development application such as the development application by reference to the height and form of the proposed building. [79] The Council made oral submissions to the effect that the Planning Scheme, by the settlement pattern, was promoting the idea that there needed to be “appropriate density in particular areas … to make sure that as many people as possible are close to the necessary infrastructure”.139 The Council submitted that “increased density is one way to increase affordability”140 and “… one way you deal with affordability is to ensure that that there is sufficient density”.141 The Council’s submissions made reference to “the idea of building a five storey building with just one resident as compared to a five storey building with multiple residents”.142 With reference to that idea, the Council submitted as follows: “You increase the housing choice and affordability by increasing the number of people who can live in that area and access more affordable ways to live by, for example, being close to transport systems. So the question of density is an example … of … a way in which the settlement pattern can be addressed by making sure that there is sufficient density, what the density of the planning scheme contemplates, for areas that are close to, for example, public transport”.143 [80] Those submissions should be rejected. The Planning Scheme makes provision for density limits which are considered appropriate. The Planning Scheme separately deals with density. In this particular case, a density level was acceptable if it did not 134 Ibid at 474 [413]. 135 [2025] QPELR 996. 136 Ibid at 1019–1020 [81]. 137 RB 242. 138 RB 241, 3.3.1(2). 139 T 1-28.05-12. 140 T 1-33.36. 141 T 1-33.40. 142 T 1-26.15-18. 143 T 1-26.19-24. -- 28 of 31 -- 29 exceed the densities depicted by the Residential overlay map. The height uplift provision should not be construed in a way which reserves to a decision maker, in the context of considering height compliance, some further evaluative judgment about appropriate density in circumstances where the Planning Scheme separately addresses that topic. In the circumstances of this case, the Planning Scheme’s density limit was being exceeded by the proposed development. The Council’s argument appeared to reduce to the proposition that the density non-compliance warranted the reward of a height uplift. There is no merit in that position. [81] The respondents argued that a construction of “Housing choice and affordability”, which contemplated the provision of affordable housing, would stultify the intended operation of the height uplift provision making it inapt in circumstances involving the development of expensive beachfront land or the development of a detached dwelling house. The construction which I have preferred does mean that the outcome “Housing choice and affordability” may not be able to be satisfied in a particular case of a development of a detached dwelling house or in a particular case involving expensive beachfront land. Each case will obviously depend on its own facts. However, those putative outcomes are not unreasonable or contrary to common sense. The height uplift provision is expressed to apply in limited circumstances. It is properly regarded as providing a permission for development to occur inconsistently with the Planning Scheme’s prescriptions as to height but only where, relevantly, the objective of housing choice and affordability is satisfied. In that sense, the prospect of the permission provides an incentive to the developer to satisfy the objective. In circumstances where that objective is not satisfied, there would remain a discretion to approve a development application notwithstanding that, by reason of its height, it was inconsistent with the Planning Scheme. McLucas correctly recognised that even where a Planning Scheme’s provisions with respect to height might be regarded as “quite strong”, a development application which did not satisfy the objective of housing choice and affordability might still be approved as a matter of discretion because of its otherwise “very significant merit”.144 [82] The Developer submitted that, even if the construction preferred by the primary judge was in error, this Court could be satisfied that the error did not affect her Honour’s decision. The primary judge was said to have accepted the evidence of Mr Duane, to the effect that it would not be economically sensible or efficient to provide affordable housing in a beachfront development because the price of any such dwelling would not be affordable for people in the lowest income bracket. These submissions also referred to the primary judge’s conclusion “To the extent the proposed development does not comply with assessment benchmarks, the non-compliances are not such as to warrant refusal in this case”. [83] These submissions should be rejected. The primary judge’s conclusion to the effect that “the non-compliances are not such as to warrant refusal in this case”, is properly construed as a reference to the non-compliance in respect of density, it being recalled that the applicants argued before the primary judge that the density non-compliance represented a serious non-compliance with the Planning Scheme. The primary judge found that the proposed development would yield “only an additional two levels of very expensive apartments” and would not provide affordable housing for low to moderate income earners. That finding was made in circumstances where the primary judge accepted Mr Duane’s opinion that “the proposed development will provide 144 [2024] QPELR 283, 313 [134]. -- 29 of 31 -- 30 a particular net community benefit to a more affluent segment of the market to meet their housing needs and choices”. The reasons make clear that the primary judge followed the broad interpretation of affordability discernible from Archer which included propositions to the effect that affordable housing was a different planning concept to housing choice and affordability and whether a development supported “housing choice and affordability” was not to be determined by considering the likely price point of a proposed development. By reason of the construction adopted by the primary judge, no real consideration was given to whether, on its proper construction, the objective “housing choice and affordability” was satisfied and, if it were not, whether the development application might still be approved as a matter of discretion. The second proposed ground of appeal [84] The second proposed ground of appeal focuses upon the language “in limited circumstances” as it appears in the chapeau of the height uplift provision. The primary judge relevantly concluded that the height uplift provision required that “the proposed development meet the criteria in the provision”.145 In reaching that conclusion, the primary judge rejected a submission made by the applicants to the effect that the height uplift provision, by reason of the phrase “in limited circumstances”, required the proposed development to be exceptional in order to justify the height uplift.146 [85] The contention is that the primary judge erred by construing “in limited circumstances” to mean only the circumstances in which all the criteria set out in (a) to (i) of the height uplift provision are satisfied. According to the applicants, “in limited circumstances” extends the consideration beyond the mere satisfaction of those criteria. The applicants submitted that any determination as to whether a development “could be characterised as being a ‘limited circumstance’ must require at least some consideration of the broader context in which the development would occur, and whether the proposed development in that context resulted in an increase in building height above the prescribed height limit occurring in ‘limited circumstances’”.147 In that regard, the applicants had already obtained an approval for their own development involving a 34.4m high-rise residential tower on a parcel of land immediately to the rear of the site. Having regard to the proximity of that existing approval, the applicants submitted that the primary judge should have considered whether the proposed development, a 33.78m high-rise residential tower could be regarded as occurring “in limited circumstances”. [86] The Council and the Respondent resisted the grant of leave on the basis that this point was not run below and should not now be considered by this Court. They further submitted that, in any event, the primary judge’s construction was correct. [87] In deciding whether or not a point was raised at trial, no narrow or technical view should be taken.148 I am satisfied that the point was taken below in the sense that the applicants conducted the hearing below on the basis that the proper construction of “in limited circumstances” was in issue, that “in limited circumstances” referred to something in addition to the criterion contained in paragraphs (a) to (i) of the height uplift provision and that the placement of two high-rise towers close together would 145 RB 33 [96]. 146 RB 32 [90] read with RB 33 [95] and [96]. 147 Applicants’ Outline of Submissions [39]. 148 Water Board v Moustakas (1988) 180 CLR 491, 497. -- 30 of 31 -- 31 mean that the proposed development was not occurring in limited circumstances. Relevantly, these matters were sufficiently raised without objection in the applicants’ opening149 and closing submissions150 and during the cross examination of the Developer’s town planning expert,151 the Council’s town planning expert152 and the Council’s visual amenity expert.153 [88] However, in my consideration the reasoning of the primary judge was plainly correct. The materially relevant words are “… in limited circumstances in urban neighbourhoods where all the following outcomes are satisfied …”. The presence of the word “where”, and the absence of the word “and” immediately before “where”, are indicators of the proper construction of “in limited circumstances”. The presence of “where” suggests that the balance of the height uplift provision, paragraphs (a) to (i), identify the outcomes which are to be satisfied to constitute the limited circumstances in which the benefit will be conferred. Had those outcomes been intended to be additional to the limited circumstances, the word “and” might have been expected to appear before the word “where”. It would also be an odd result for the concept of limited circumstances to be effectively undefined but intended to operate as a further constraint on the availability of the benefit. Further, the reasoning of the primary judge was consistent with the reasoning in McLucas on this discrete issue.154 In my consideration, the applicants have failed to demonstrate any error or mistake in law in this aspect of the primary judge’s reasoning. Orders [89] The orders I propose are as follows: 1. Leave to appeal is granted limited to ground 1 of the draft Notice of Appeal. 2. The appeal is allowed. 3. The orders made by the Planning and Environment Court on 5 November 2025 are set aside. 4. Remit the matter to the Planning and Environment Court to decide in accordance with this decision. 5. The respondents pay the appellants’ costs of the appeal. 149 RB 1115 (T 1-55.22-31). 150 RB 898 (Ex 54 [35]). 151 RB 1174 (T 2-51.20-34) and RB 1186 (T 2-63.24-30). 152 RB 1216 (T 4-44.9-16). 153 RB 1255 to 1256 (T 4-83.37 to T 4-84.06). 154 [2024] QPELR 283 at [132]. -- 31 of 31 --