74 The Esplanade Pty Ltd v Council of the City of Gold Coast [2023] QPEC 36 (2025) QPELR 438

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: 74 The Esplanade Pty Ltd v Council of the City of Gold Coast [2023] QPEC 36 PARTIES: 74 THE ESPLANADE PTY LTD (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) FILE NO/S: 1024 of 2022 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 7 September 2023 DELIVERED AT: Brisbane HEARING DATE: 21 – 25 August 2023 JUDGE: Everson DCJ ORDER: The appeal will be allowed subject to the imposition of appropriate lawful conditions CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against code assessable development application for a Multiple Dwelling and Food and Drink Outlet ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – whether the proposed development complies with the Planning Scheme CASES: Klinkert v Brisbane City Council [2018] QPELR 941 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147 LEGISLATION: Planning and Environment Court Act 2016 (Qld) Planning Act 2016 (Qld) COUNSEL: C L Hughes KC and W D J Macintosh for the appellant M J Batty and K J Buckley for the respondent SOLICITORS: HWL Ebsworth Lawyers for the appellant Norton Rose Fulbright Australia for the respondent -- 1 of 15 -- 2 Introduction [1] This is an appeal against the decision of the respondent to refuse a development application for a Development Permit for a Material Change of Use for a Multiple Dwelling (15 Units) and Food & Drink Outlet and a Preliminary Approval for Operational Works (Public Landscaping) on land at 3640 Main Beach Parade, Main Beach (“the site”). [2] What is proposed is a high-rise development on the Gold Coast in an area where this form of development is encouraged. Essentially, the respondent contends that the development application will result in an overdevelopment of the site which is only 410m² in size. The site is, however, zoned for high density residential development of unlimited height and the respondent has recently approved multiple dwellings exhibiting a similar intensity in the vicinity of it. This has occurred in circumstances where there is a pathway to approval which does not require compliance with any quantitative design criteria. The site and the surrounding area [3] The site is a 410m 2 corner lot with a northern frontage of approximately 20 metres to Main Beach Parade and an eastern frontage to Stafford Avenue.1 There is a mix of development that characterises the local area, including numerous existing high- rise developments located on large landscaped lots that provide significant separation between the adjacent tower forms.2 The streetscape to the east has an open character which includes Norfolk Island Pines extending to the beach nearby.3 The site is adjoined to the south and west by Mariner Court, an old brick and tile three-storey multiple dwelling which has an irregular shape. This building is essentially orientated away from the site and is serviced by a vehicle ramp providing access to the basement car park from Stafford Avenue which adjoins the site’s southern boundary.4 [4] The sprawling nature of Mariner Court and the character of existing high-rise development in the vicinity, which is set in extensive landscaped grounds, is to be contrasted with two recently approved developments.5 Firstly, diagonally opposite 1 Ex. 11, para 9. 2 Ibid, para 25. 3 Ibid, para 27. 4 Ibid, para 13. 5 Ex. 11, Fig. 9. -- 2 of 15 -- 3 the site to the northeast, a 37-storey building has been approved in Main Beach Parade called Masthead.6 On a site of 812m², 30 units are proposed with a maximum building height of 123m.7 Slightly further north, the respondent also approved a 25- storey, 88.7m high-rise residential building called Monaco on a site of 888m².8 Both of these developments include large podiums which in part extend to the boundaries of their respective sites.9 [5] The site is in the High density residential zone of the respondent’s planning scheme, Gold Coast City Plan 2016, Version 8 (“the planning scheme”). It is within the HX unrestricted height area and the Light Rail Urban Renewal Area of the planning scheme.10 Pursuant to the Light Rail Urban Renewal Area Overlay Map, the site is included within the Frame areas.11 The proposed development [6] The key parameters of the proposed development are summarised in the joint report of the town planning experts in the following terms: “(a) building height of 63m comprising a ground level café, mezzanine levels [sic] services, podium level recreation facilities, 17 residential levels, a rooftop recreational area and 3 basement levels; (b) 15 multiple dwelling units, comprising 13 units in 3 bedroom configuration on a single level and 2 units in 4 bedroom configuration on two-levels, resulting in a net residential density of 1 bed per 8.72m²; (c) varying site cover and setbacks across the different floor levels; (d) vehicular access from Stafford Avenue with pedestrian access from Main Beach Parade, with car parking spaces accessed via a vehicular lift.”12 [7] The ground floor incorporates a large podium which is approximately 6 metres in height13 with built to boundary walls along the western and southern boundaries of the site and no setbacks, or very limited setbacks, to the frontages to Main Beach 6 Ex. 34 7 Ibid. 8 Ibid. 9 Ex. 22, p 12; Ex. 8, pp 79 and 102. 10 Ex. 6A, paras 4, 5 and 7. 11 Ex. 21, para 39 and Appendix D. 12 Ex. 21, para 24. 13 Ex. 31. -- 3 of 15 -- 4 Parade and Stafford Avenue.14 The proposed development would be essentially outward looking, facing the street frontages and beyond that, the seashore. The built form is to be varied with the upper 4 levels recessed considerably. The built form would be further softened by the presence of landscaping at street level, at podium level and by the use of planter boxes on higher levels. The cascading effect of the proposed landscaping would considerably soften the built form.15 [8] Despite the very constrained site, the appellant has demonstrated that the proposed development can be conditioned to satisfactorily provide the requisite parking for motor vehicles in the basement utilising a car lift. A 3 millimetre non-compliance with the swept path for a vehicle equivalent to a Toyota Landcruiser where a column is present at ground level is of no consequence in this regard.16 The assessment regime [9] Pursuant to the Planning and Environment Court Act 2016 (Qld) (“PECA”) the appeal is by way of hearing anew,17 and the appellant must establish that the appeal should be upheld.18 Section 46 of the PECA addresses the nature of an appeal and relevantly provides: “(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if— (a) the P&E Court were the assessment manager for the development application; and (b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.” [10] As the development application giving rise to this appeal was code assessable, it is to be assessed pursuant to the relevant provisions of s 45 of the Planning Act 2016 (Qld) (“PA”), which relevantly states: “(3) A code assessment is an assessment that must be carried out only— (a) against the assessment benchmarks in a categorising instrument for the development; and 14 Ex. 11, para 32. 15 Ex. 30. 16 Ex. 29; T2 – 70, ll 28 – 30. 17 Planning and Environment Court Act 2016 (Qld), s 43. 18 Ibid, s 45(1)(a). -- 4 of 15 -- 5 (b) having regard to any matters prescribed by regulation for this paragraph.” [11] Unlike impact assessment, the Court cannot have regard to relevant matters as defined in s 45(5) of the PA. The process for assessing and deciding code assessable development applications is much more constrained. Section 60 of the PA relevantly states: “(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment— (a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and (b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and … (c) may impose development conditions on an approval; and (d) may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.” [12] As Williamson QC DCJ observed in Klinkert v Brisbane City Council: “The discretion is expressed in permissive (“may”) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on the assessment carried out pursuant to earlier provision (sic) of the Act, which in this case includes, inter alia, s 45.”19 [13] The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council,20 notably that the same principles which apply to statutory construction apply to the construction of planning documents,21 and that such documents need to be read as a whole and in a way which is practical and intending to achieve a balance between outcomes.22 19 [2018] QPELR 941 at 957 [102]. 20 [2014] QCA 147. 21 Ibid at [52]. 22 Ibid at [56]. -- 5 of 15 -- 6 The relevant provisions of the planning scheme [14] Section 1.4 of the planning scheme provides for the hierarchy of the assessment benchmarks and relevantly states that overlays prevail over all other components other than the assessment benchmarks specified in the Planning Regulation 2017 and the strategic framework, to the extent of any inconsistency.23 [15] Relevantly, s 5.3.3 (4)(c) provides that code assessable development which complies with “the purpose and overall outcomes of the code complies with the code”.24 The appellant relies upon this pathway alone to discharge the onus of establishing that the appeal should be upheld.25 [16] Thereafter, the following provisions of the High density residential zone code (“HDRZC”) have been identified as relevant: “(1) The purpose of the High density residential zone code is to provide for higher density multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents. (2) The purpose of the code will be achieved through the following overall outcomes: (a) Land uses— … (vii) do not detract from the residential amenity of the area. (b) Housing is provided at a form, scale and intensity that is appropriate for the zone and each particular locality it is in where the following outcomes are satisfied: … (v) whether intended outcomes for building form/city form and desirable building height patterns are negatively impacted, including the likelihood of undesirable local development patterns to arise (sic) if the cumulative effects of the development are considered; (vi) retention of important elements of neighbourhood character and amenity, and cultural heritage; 23 Ex. 6A, para 1.4 (1). 24 Ibid, p 84. 25 It is noteworthy that while the site is included in the Residential density overlay map of the planning scheme and designated for a density of “1 bed/13m 2”, this density is not implemented through an overlay code. It is merely the subject of a performance outcome (PO4) in the HDRZC. -- 6 of 15 -- 7 (vii) whether adjoining residential amenity is unreasonably impacted; (viii) achievement of a high quality urban design through highly functional, accessible, attractive, memorable and sustainable buildings and public spaces; … (d) Built form (excluding Dwelling houses on small lots) — (i) has a building height that does not exceed that indicated on the Building height overlay map; (ii) is setback from side and rear boundaries to protect the amenity of adjoining uses; (iii) is setback from road frontages to promote an urban setting and interface with the street; and (iv) has varying site cover to reduce building dominance and provide areas for landscaping.”26 [17] The following provisions of the Light Rail Urban Renewal area overlay code (“LRURAOC”) have also been identified as relevant: “(1) The purpose of this overlay code is to ensure development provides high quality urban environments that optimise the pedestrian environment and accessibility to light rail services and economic development opportunities. (2) This overlay code supports development opportunity as a catalyst for transforming the city into a highly-connected, compact city with vibrant centres, specialist precincts and urban renewal corridors that will efficiently use land and offer an interesting and unique street life. (3) The purpose of the code will be achieved through the following overall outcomes: … (a) Place making helps development contribute to strengthening communities’ local character through: (i) neighbourhood analysis that evaluates the distinct local character patterns, opportunities, and challenges and how the proposed development enhances them; … 26 Ex. 6A, pp 92, 93, 94. -- 7 of 15 -- 8 (iii) locating and designing development to respect and complement the scale, character, form and setting of on-site and adjacent properties;27 … (d) Quality building form at the street-level interacts and enhances street life by: … (ii) setbacks and street level design that promotes positive public to private realm transition and appropriate level of access and surveillance based on the nature of the uses;28 … (e) Local character reflects a combination of built form and mix of uses, and is characterised by the following areas and their outcomes: (i) building form is characterised by either: (A) medium rise buildings that have a ‘perimeter form’ with buildings generally built to street edges, interspersed or ‘fractured’ by public spaces, landscaped areas or pedestrian access ways; and (B) high rise buildings with a clearly defined ‘tower and podium form’, where podiums are built to the street edge and may be interspersed or ‘fractured’ by public spaces, landscaped areas or pedestrian access ways. (ii) mix of uses are characterised by: … (B) ‘Frame areas’ are high density neighbourhoods which allow for a range of intense built form outcomes and activity and commerce of a scale that services the local neighbourhood requirements and supports the light rail stations; and … (iii) ‘Primary focus areas’ and ‘Frame areas’ encourage innovative high rise towers that advance the Gold Coast’s iconic skyline and are free from a height designation. Appropriate height will be determined by design criteria and site context; 27 Ex. 6A, pp 103, 104. 28 Ibid, p 107. -- 8 of 15 -- 9 (iv) ‘Transition areas’ are purposely low-to-medium rise ensuring a definitive shift in built form and the delivery of buildings that provide more affordable housing choices; … (viii) building types and locations reinforce concentrations of activity and often protect local appearance. Not all light rail urban renewal areas will accommodate high-rise buildings;”29 [18] Provisions of the High-rise accommodation design code (“HRADC”) have also been identified as relevant: “(1) The purpose of the High-rise accommodation design code is to responsibly encourage diverse, innovative and engaging sub- tropical high-rise forms that enhance the city skyline. (2) The purpose of the code will be achieved through the following overall outcomes: (a) Development is designed to create attractive, high- quality visually appealing buildings and protect the privacy and amenity of neighbouring residential premises. … (c) Tower development mitigates negative visual and physical impacts through appropriate setbacks and design. (d) Where they occur (in accordance with zone intentions), podiums are designed to engage with the street and be of a scale that is complementary to adjoining and nearby buildings. (e) Development provides a high-standard of amenity and visual interest for users and neighbours, including a high- standard of communal and private open space. … (g) Development is complemented by high-quality landscaping that contributes to the desired character of the area.”30 [19] The following provisions of the Landscape work code (“LWC”) have been identified as relevant: 29 Ex. 6A, pp 108, 109. 30 Ex. 6A, pp 113 and 114. -- 9 of 15 -- 10 “(1) The purpose of the Landscape Work code is to ensure high- quality landscape works that are consistent with the local landscape character and contribute to the overall image of the city. (2) The purpose of the code will be achieved through the following overall outcomes: … (i) Landscape work is supported by efficient ongoing maintenance programmes.”31 The disputed issues [20] Ultimately the parties agreed on a list of disputed issues.32 Generally, the resolution of the appeal depends on whether the proposed development complies with or can be conditioned to comply with the assessment benchmarks of the planning scheme referred to above, and further, whether in the event of non-compliance it should be approved in any event pursuant to s 60(2)(b) of the PA. [21] In particular the issues are specified as being: 1. Whether the setbacks and site cover of the proposed development will result in unacceptable character and amenity impacts and will result in overdevelopment; 2. Whether the built form, height and density of the proposed development will result in unacceptable amenity and character impacts and will result in overdevelopment; 3. Whether the proposed landscaping and ultimate streetscape will result in unacceptable character and amenity impacts. Setbacks and site cover [22] The respondent submits that it is simply not possible to locate a building of this size on a lot this small and comply with the requirements of the planning scheme in respect of setbacks.33 It is true that various performance outcomes cannot be complied with, such as PO1 of the HDRZC which requires, inter alia, that setbacks allow for access around the building.34 As noted above, the appellant relies upon the more amorphously worded overall outcomes to justify approval. 31 Ibid, p 229. 32 Ex. 36. 33 Respondent’s written submissions, para 17. 34 Ex. 6A, p 96. -- 10 of 15 -- 11 [23] The LRURAOC prevails in the event of any inconsistency with provisions of the other codes. Relevantly, overall outcomes (3)(a)(i) and (iii) are quite amorphous. It is clear that the local character, which is to be enhanced, and the scale, character and form and setting of adjacent properties, which the proposed development is to complement, must include the more intense recently approved developments Masthead and Monaco discussed above. The term “adjacent” is defined in the Macquarie Concise Dictionary as “lying near, close, or contiguous; adjoining; neighbouring”.35 Both of these developments are therefore adjacent to the proposed development and include built to boundary elements and limited setbacks with a podium that addresses the street frontage directly. These are notable components of the design of the proposed development. [24] Two visual amenity experts, who are landscape architects, gave evidence, Mr Powell on behalf of the appellant and Dr McGowan on behalf of the respondent. In respect of this issue there was broad agreement between them that the proposed podium is unlikely to cause significant impacts on the character or amenity of the area and any overbearing impacts of the tower of the proposed development would only be apparent from nearby viewpoints. Further, they agreed that it will not be a particularly large building when compared to other high-rise buildings in the area and that the tower will be slender. They agreed that the proposed development would achieve reasonable separation from existing towers nearby. They also agreed that it would not unreasonably obstruct any important view corridors through the local area.36 I accept their evidence in this regard. [25] I also accept the evidence of Mr Powell in his individual report that the Monaco and Masthead developments have similar side setbacks to the proposed development, interfacing with large recreation spaces.37 I further accept his evidence that the built to boundary setbacks for the podium of the proposed development will interface with the neighbouring driveway on the southern side, an accessway on the western side (where adjoining residents are unlikely to spend large amounts of time), and that their primary living areas are typically orientated away from the site. Moreover, they will retain ample access to open sky views.38 I further find that the landscaping treatment 35 4 th Edition Macquarie University 2006. 36 Ex. 8, para 159. 37 Ex. 9, para 18. 38 Ibid. -- 11 of 15 -- 12 of the built to boundary elements and the podium would reduce the dominance of the proposed development. [26] I am therefore of the view that amenity issues raised by overall outcomes in the HDRZC do not warrant refusal of the proposed development which is consistent with the local character that is to be found in the existing and approved development in the vicinity of the site. The tower and podium form of the proposed development is entirely consistent with Overall Outcome 3(e)(i)(B) of the LRURAOC in circumstances where the podium is proposed to be built to the street edge and interspersed with landscaped areas. To the extent that this requirement is inconsistent with relevant provisions of other codes, the LRURAOC prevails. [27] So far as the requirement in Overall Outcome 3(d)(ii) of the LRURAOC that the design promotes public to private realm transition and surveillance, this is achieved as demonstrated in the relevant photomontage.39 Similarly, the relevant provisions in the HRADC which address privacy and amenity concerns and impacts do not warrant refusal of the proposed development. Notably, the presence of the coffee shop at street level and the open private recreation space on Level 1 at the top of the podium achieves engagement with the street and provides a high standard of amenity and visual interest for users and neighbours as is contemplated in overall outcomes 2(d) and 2(e). Built form, height and density [28] Two architects gave evidence before me. Mr Curtis gave evidence on behalf of the appellant and Mr Richards gave evidence on behalf of the respondent. In their joint report they agreed that the proposed development will have a slender built form with setbacks above the podium up to 19.5m being greater than the acceptable outcomes for setbacks in the HDRZC.40 [29] Many of the same provisions of the planning scheme relied upon by the respondent under this heading were relied upon by it under the previous heading. Overall outcome 3(e)(i)(B) of the LRURAOC which I have discussed above is emphasised. I have already expressed the view that the proposed development complies with this provision (being a clearly defined tower with a podium built to the street edge 39 Ex. 30, p 11. 40 Ex. 11, para 232(b). -- 12 of 15 -- 13 interspersed with public spaces at ground level and landscaped areas). The respondent makes much of the statement in Overall Outcome 3(e)(viii) that “Not all light rail urban renewal areas will accommodate high-rise buildings”. Rather than expressly discouraging high-rise development on the site (with its High density residential zoning and unlimited height designation), this statement appears to be more of a reflection of the fact that the LRURAOC also covers low-to-medium rise areas as well as Frame areas being high density neighbourhoods where the site is located. These Frame areas “allow for a range of intense built form outcomes and activity and commerce of a scale that services the local neighbourhood…”.41 [30] I accept the evidence of Mr Curtis that: “…the proposed development is shown to have a tower floor plate size of between approximately 149m² and 126m² and a height of 18- storeys, which when compared to the existing tower forms along Main Beach Parade, Stafford Avenue and within the surrounding area is relatively modest. The height and scale of these existing tower forms will not be dominated by the proposed development. These existing towers will continue to dominate the character of the local area.”42 His observations are amply borne out by figures NP12 and NP13 in the Visual Amenity Joint Experts’ Report which show the Masthead development on the opposite side of Main Beach Parade towering over the proposed development in circumstances where it is almost twice the height of it.43 I am also satisfied that the variations in site cover shown in these illustrations and in the photomontages are appropriate and this is the case regardless of whether the site cover variations shown in the site cover diagrams in Exhibit 4, p 35 are entirely accurate with respect to Level 1 or not. [31] Consideration of the generally worded overall outcomes of the HDRZC which have been identified as relevant does not give rise to grounds to refuse the proposed development for the reasons discussed above. [32] So far as the relevant provisions of the HRADC are concerned, I am satisfied compliance will be achieved in circumstances where the proposed development will be an attractive, high-quality and visually appealing building which will not have adverse amenity impacts on neighbouring premises. The open space provided at the 41 OO3(3e)(ii). 42 Ex. 11, para 140. 43 Ex. 8, paras 26 and 27. -- 13 of 15 -- 14 top of the podium and at roof level is adequate and the photomontages make it clear that there will be appropriate engagement with the street at both ground level and podium level. Landscaping and streetscape [33] Although the site is small, the landscaping cleverly softens the built form in a way that is both innovative and adequate having regard to the photomontages.44 I accept the evidence of Mr Powell that this approach is similar to that exhibited in the recently approved developments in the vicinity of the site, Masthead and Monaco, which illustrate “landscaping on podiums and in raised planters”.45 There is significant landscaping at the top of the podium on Level 1 of the proposed development which Mr Powell calculates to be 52% of this level.46 Overall, I accept the evidence of Mr Powell that: “The ground-level shade tree planting at the corner of the land, combined with expansive areas of cascading tiered planting at mezzanine and Level 1, will provide an attractive, and vastly improved, interface with the street, with the cascading podium planting enhancing the pedestrian experience, reinforcing shade and cooling effects, and emulating tree canopy foliage, which is appropriate to the existing urban setting of the site, and responsive to the broader urban coastal setting of nearby parklands and foreshore.”47 [34] Accordingly, there is compliance with overall outcome 3(a)(iii) of the RURAOC as it respects and complements the scale, character, form and setting of adjacent properties including Masthead and Monaco. As noted above, the varying site cover would reduce the building dominance which in turn would be further reduced by the areas of landscaping and therefore compliant with overall outcome 2(b)(iv) of the HDRZC. It also assists in achieving the identified overall outcomes in the HRADC discussed above. [35] Finally, so far as overall outcome (2)(i) of the LWC is concerned, I accept the evidence of Mr Powell that the proposed landscaping can be appropriately maintained and that this can be achieved through the imposition of lawful conditions.48 44 Ex. 30. 45 Ex. 9, para 21(b). 46 Ex. 8, para 29(b). 47 Ibid, para 139. 48 Ibid, para 161(c). -- 14 of 15 -- 15 Conclusion [36] The appellant has discharged the onus of demonstrating that the proposed development can comply with the identified provisions of the planning scheme. If I am wrong in any respect, it has not been demonstrated that any non-compliances would result in adverse outcomes from an amenity or character perspective. Accordingly, pursuant to s 60(2)(b) of the PA, I would approve the proposed development even if it was ultimately found not to comply with some of the assessment benchmarks. The appellant has discharged the onus of demonstrating that despite the small site it can appropriately manage the constraints through an innovative approach and good design which will result in an attractive building, appropriately landscaped and capable of accommodating the necessary basement level car parking. It will provide for an interesting street frontage whilst not creating unacceptable amenity impacts for adjoining residents. [37] The appeal will therefore be allowed subject to the imposition of appropriate lawful conditions. -- 15 of 15 --