Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast; Ruffin & others v City of Gold Coast [2023] QPEC 32

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor; Ruffin & others v City of Gold Coast & Anor [2023] QPEC 32 PARTIES: Appeal No. 918 of 2022: DAJEN INVESTMENTS PTY LTD (ACN 123 920 927) AND DAVID STANLEY CARVER (First Appellant) & BODY CORPORATE FOR CURRUMBIN SANDS COMMUNITY TITLE SCHEME (Second Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) & PERSPECTIVE POINT BREAK PTY LTD (ACN 650 701 465) (Co-respondent) Appeal No. 911 of 2022: ASHLEY RUFFIN, PETER APOSTOLOU AND MARY PAPPAS (Appellants) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) & PERSPECTIVE POINT BREAK PTY LTD (ACN 650 701 465) (Co-respondent) FILE NO/S: BD918/2022 BD911/2022 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING Planning and Environment Court, Brisbane -- 1 of 40 -- 2 COURT: DELIVERED ON: 11 August 2023 DELIVERED AT: Brisbane HEARING DATE: 4-7 October 2022; 3-4 November 2022; further written submissions received between 7 February 2023 and 13 March 2023. JUDGE: Rackemann DCJ ORDER: The appeals are allowed. The decision of the respondent approving the development application subject to conditions is set aside and replaced with a decision refusing the development application. CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – Submitter appeals against respondent’s approval of the co- respondent’s application for a development permit for a material change of use to facilitate a 14-storey, 43.5m high, multiple dwelling on land situated at Palm Beach where there are two long-standing existing high-rise apartment towers, located approximately 85 and 140 metres north of the subject land, being 75.15m and 48.61m in height respectively –– where the height shown on the Building height overlay map for the subject land is 29m and the proposal, at 43.5m, is 50% in excess of that – where the Planning Scheme makes provision for a height uplift up to 50% where certain criteria are met – where the appellants in each of the appeals took the position that if the height uplift provision is satisfied they do not contend that asserted non-compliance with other provisions, in themselves, justify refusal of the development application – whether the proposed development satisfies the criteria in building height uplift provision – whether there are relevant matters which bear upon the exercise of the discretion to approve or refuse the development application. CASES: Abeleda v Brisbane City Council & Anor [2020] QCA 257 Bell Co Pty Ltd & Ors v City of Gold Coast & Anor [2022] QPEC 32 Lawrence v Gold Coast City Council & Anor [2022] QPEC 19 McLucas and Ors, Gri & Ors and Vidjon & Ors v Council of City of Gold Coast and Marquee Flora Pty Ltd [2022] QPEC 56 Smout v Brisbane City Council [2019] QPELR 684 WBQH Development Pty Ltd v Gold Coast City Council [2002] QPEC 54. -- 2 of 40 -- 3 LEGISLATION: Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) COUNSEL: L Walker for the First and Second Appellants (918/22) D Purcell for the Appellant (911/22) N Loos and R Yuen for the Respondent M Batty and J Bowness for the Co-Respondent SOLICITORS: Mills Oakley for the First and Second Appellants (918/22) Anderssen Lawyers for the Appellant (911/22) Norton Rose Fulbright for the Respondent Corrs Chambers Westgarth for the Co-Respondent -- 3 of 40 -- 4 Table of Contents Introduction ................................................................................................................. 5 The decision rules ........................................................................................................ 7 Issues…………………………………………………………………………………. 7 The height provisions of City Plan .......................................................................... 10 (a) a reinforced local identity and sense of place ............................................ 10 (b) a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents .................................................................................................... 22 (c) a varied, ordered and interesting local skyline ......................................... 29 (d) an excellent standard of appearance of the built form and street edge;.... 29 (i) an excellent standard;………………………………………………..29 (ii) the built form;……………………...………………………………..31 (iii) the street edge;…...………………………………………………….33 (e) Housing choice and affordability ............................................................. 35 (f) Protection for important elements of local charcter or scenic amenity including views from popular outlooks to the city’s significant natural features ..................................................................................................... 38 Conclusion on height uplift provision……………………………………………..38 Relevant matters........................................................................................................ 38 Conclusion…….…………………………….………………….……………………40 -- 4 of 40 -- 5 Introduction [1] These submitter appeals are against the respondent’s approval of the co- respondent’s application for a development permit for a material change of use to facilitate a 34 unit, 14-storey, 43.5m high, multiple dwelling development on land situated at 949-953 Gold Coast Highway, Palm Beach and more particularly described as Lot 2 RP 94435 and Lots 3 and 4 on RP 79545. Although its street address is the Gold Coast Highway, the subject land’s access is to a service road. The subject land is currently improved by 3 houses, one of which is utilised as a display information centre for the proposed development. The subject land has a total area of 1,583m², is rhomboid in shape and has a 46.3m road frontage to the service road. [2] The subject land adjoins two existing multiple dwelling developments namely: (a) the Currumbin Sands Resort, which adjoins the subject land on its north- western and north-eastern boundaries. That development comprises four separate 3 to 4 storey blocks of multiple dwellings, together with communal open space (with landscape gardens and a pool), vehicular access and internal parking. It also has frontage to the same service road as the subject land and to adjacent public parkland to the east and to the south. The appellants in appeal 918 of 2022 are the body corporate of and lot owners within, that development; (b) the Aleia apartment building which is adjacent to the southern boundary of the subject land. It is a 9-storey multiple dwelling building which, in effect, turns its back on the subject site and is orientated to the south-east, where views are available across the adjacent public parkland to Currumbin Creek and the coastline. The appellants in appeal 911 of 2022 are owners of units in that development. [3] Within the immediate area, further to the north, there are two long-standing existing high-rise apartment towers, being Royal Palm and Princess Palm (the Palm buildings). They are located approximately 85 to 140 metres north of the subject land. The former is 26 storeys and 75.15m in height whilst the latter is 18 storeys and 48.61m in height. They emulate each other by being similar in their curved sweeping design and their colour. -- 5 of 40 -- 6 [4] Palm Beach is an approximately four-kilometre stretch of coastline and a southern beach suburb of the Gold Coast’s well known coastal spine. The urban strip of Palm Beach extends between Burleigh Heads and Tallebudgera Creek to the north and Currumbin Creek to the south. The Gold Coast highway, running parallel to the ocean, is the primary route through the suburb. [5] The built form of the immediate area is surrounded by natural and open space areas, described by the visual amenity experts as follows: (i) Palm Beach and the adjoining foreshore to the east; (ii) Rock View Public Park (dog off-leash area, open park areas and vegetated dune vegetation separating Palm Beach and Currumbin Creek) located to the east through to the south-east; (iii) Palm Beach Parklands including the Palm Beach Pirate Play, Dune Café and open spaces located to the south. The public parklands include access from the Gold Coast Highway to the service road and three public car parking areas that service the parkland; and (iv) Currumbin Creek environs including the creek, Tarrabora Reserve (south of the subject site) and Currumbin Creek and tributaries.1 [6] The proposed multiple dwelling development would include: (a) 14 levels; (b) a single level basement and separate level of at-grade car parking, accommodating 77 parking spaces (71 resident spaces and 6 visitor spaces); (c) ground level pedestrian access; (d) a central communal recreation area on Level 2, and peripheral landscaping; and (e) dwellings (30 x 3-bedrom and 4 x 4-bedroom) from Level 2 to Level 14, which are orientated typically north-east.2 1 Ex. 4.04, p 5, para 12. 2 Ex. 4.04, p 13, paras 15 – 20. -- 6 of 40 -- 7 The decision rules [7] The development application was subject to impact assessment. Such assessment;3 (i) must be carried out against the relevant assessment benchmarks; (ii) must be carried out having regard to any matters prescribed by regulation; and (iii) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise. [8] There is a broad discretion, conferred by s 60(3) of the Planning Act 2016, (PA) in relation to deciding a development application that requires impact assessment. It is for the decision-maker to weigh and balance the factors to which consideration may be given.4 In that context, non-compliance with an assessment benchmark does not necessarily dictate a refusal of a development application. The extent to which a flexible approach to the exercise of the discretion will prevail turns on the facts and circumstances of each case.5 [9] It is for the co-respondent to establish that the appeals ought be refused.6 The appeals proceed by way of hearing anew.7 Section 45 of the PA applies as if the Court were the assessment manager.8 In deciding the appeals the Court must confirm the respondent’s decision, change it, or set it aside and make a decision replacing it, or return the matter to the respondent with directions the Court considers appropriate.9 Issues [10] The issues in the amended agreed list of issues10 are: 1. whether the design, bulk, height and scale of the proposed development will have unacceptable impacts upon the character and amenity of the area; 3 See s. 45(5) of the Planning Act 2016. 4 Abeleda v Brisbane City Council & Anor [2020] QCA 257. 5 Smout v Brisbane City Council [2019] QPELR 684 at [54]. 6 Section 45, Planning and Environment Court Act2016 (PECA). 7 Section 43, PECA. 8 Section 46(2), PECA. 9 Section 47, PECA. 10 Ex. 9.08. -- 7 of 40 -- 8 2. whether the proposed development satisfies the Strategic Framework building height uplift provisions (the height uplift provision); 3. whether the proposed supports housing diversity within the city, and housing affordability outcomes that meet housing needs for the locality; 4. relevant matters (discussed later). [11] A number of specific provisions of the respondent’s planning scheme (City Plan) were particularised in relation to the first and third of those issues. To some extent they were referred to in the dispute about the second issue. The appellants in each of the appeals ultimately took the position that if the height uplift provision is satisfied they do not contend that the other provisions, in themselves, justify refusal of the development application. In those circumstances it is unnecessary for me to separately consider the asserted non-compliance with those other provisions. The debate, in relation to compliance with City Plan, focused on the height uplift provision. The height provisions of City Plan [12] The relevant provisions of City Plan concerning height and the relationship of those provisions to the discretion to approve a proposal were recently discussed in McLucas and Ors, Gri & Ors and Vidjon & Ors v Council of City of Gold Coast and Marquee Flora Pty Ltd.11 It is unnecessary for me to repeat everything contained therein. In summary (and as adapted to the subject facts): • City Plan features a Strategic Framework (SF) as well as zone codes; • the subject site, as with most of the coastal part of Palm Beach, is contained within the Medium Density Residential zone (MDRZ) one of the purposes of which includes the provision of a range and mix of dwelling types including multiple dwellings. The proposed land use is appropriate; • the overall outcomes for the Medium Density Residential Zone Code (MDRZC) include that the height of built form not exceed that indicated on the Building height overlay map (BHOM); • that part of the overall outcomes is reinforced by a performance outcome (PO3) to the same effect; 11 [2022] QPEC 56, [43] – [55]. -- 8 of 40 -- 9 • the height shown on the BHOM for the subject land is 29m. The proposal, at 43.5M, is 50% in excess of that; • for impact assessment the SF prevails over other components of City Plan to the extent of inconsistency; • pursuant to the SF, the subject site is within the Urban Neighbourhoods, which is part of the Urban Area; • within the Urban Neighbourhoods, the SF provides that the BHOM shows the building height pattern and desired future appearance for local areas within Urban Neighbourhoods, but also makes provision for increases in building height, up to a maximum of 50% above that shown in the BHOM, in limited circumstances (the height uplift provision); • accordingly, to the extent that the co-respondent can establish that its proposal qualifies for the so-called “height uplift” provided for in the SF, it may be treated as compliant with City Plan as to height; • to the extent that the co-respondent’s proposal fails to qualify for the height uplift, it will be non-compliant as to height. That does not however, remove the statutory discretion to approve the development application. [13] The height uplift provision is as follows: “(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) a reinforced local identity and sense of place; (b) a well-managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents; (c) a varied, ordered and interesting local skyline; (d) an excellent standard of appearance of the built form and street edge; (e) housing choice and affordability; (f) protection for important element of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features; -- 9 of 40 -- 10 (g) deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and (h) the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities. Note: Where the Building height overlay map shows both storeys and metres, the lesser of the two shall apply, and any fraction which results from the calculations shall be rounded down to the nearest floor or partial floor.” [14] As was noted in McLucas & Ors v Gold Coast City Council & Anor,12 the provision: (i) offers a substantial incentive (increases in height up to 50%) for development that satisfies the criteria; (ii) provides that all criteria need to be satisfied; (iii) appears immediately before sub-section (10), which provides that building height increases above 50% are not anticipated; (iv) contemplates that increases “up to” 50% “may occur” (The co- respondent seeks the maximum uplift); and (v) set criteria which generally call for an evaluative assessment. Assessment of the proposal against the height uplift provision [15] The appellants contend that the proposal does not accord with sub-paragraphs (a), (b), (c), (d), (e) and (f) of the height uplift provision. (a) a reinforced local identity and sense of place [16] This criterion requires the local identity and sense of place to be “reinforced’. That requires more than just an absence of undue impact. It connotes a strengthening.13 [17] The expressions “local identity” and “sense of place” are broad concepts not defined in City Plan. What constitutes the local identity and sense of place for the relevant local area is a question of fact. In this case, those concepts are, I find, affected by both the natural and built form. The debate, in relation to this criterion in its application to the proposal, centred on whether the proposed built form, particularly 12 (Supra) at para [53]. 13 McLucas & Ors v Gold Coast City Council & Anor [2022] QPEC 56 at [60]. -- 10 of 40 -- 11 by reason of its height, results in a failure to reinforce local identity and sense of place. [18] The mere fact that the height of the proposal exceeds the designated height on the BHOM cannot, in and of itself, dictate a failure of criterion (a). If that were so the opportunity offered by the height uplift provision would be illusory.14 Building height however, is a matter that may influence local identity and sense of place (as it does here). A building height that is in excess of that shown on the BHOM might, upon examination of the facts and circumstances of a particular case, cause failure of the criterion. [19] It was pointed out for the co-respondent, consistently with the evidence of Mr Curtis,15 that the proposed built form has some design features, such as generous balconies, which reflect and take advantage of its coastal location. Whilst I am conscious that local identity and sense of place can be influenced by things other than building height, bulk and scale, to say that Palm Beach is a coastal location is an incomplete description of its local identity and sense of place. I do not regard the design features of the proposal which reflect its coastal location as being sufficient, in and of themselves, to result in a reinforced local identity and sense of place, given the issues concerning its height, bulk and scale discussed later. [20] The evidence in relation to the likely effect of the proposal on local identity and sense of place featured debate about the geographical limits of the relevant “local” area. This included debate about the influence of existing and likely future development, including, in particular, the nearby existing high-rise developments of Royal Palm and Princess Palm (the Palm buildings). [21] This is not the first time that this Court has had to consider a proposed high-rise development proximate to the subject site and to the two Palm buildings. In WBQH Development Pty Ltd v Gold Coast City Council16 the Court refused an appeal against the refusal of a proposed 13-storey apartment building on land part of which forms part of the land the subject of the current proposal. The relevant performance criteria at the time required, amongst other things, all buildings to be constructed to a height which complements the distinctive local character of the 14 Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 at [95]. 15 Ex. 4.03, para 66, T2-54. 16 [2009] QPEC 54. -- 11 of 40 -- 12 coastal part of the city and also required all buildings and structures to be designed to contribute to the urban character of the local area. [22] The parties in that case did not agree on what was the relevant coastal part of the city or what was its distinctive local character. The appellant contended that the area was bounded to the east by the beach and the Pacific Ocean, to the north by Lacey’s Lane and to the west by the Gold Coast Highway. To the south lay the parkland. The appellant argued the case for that narrowly defined area in which the Palm buildings were said to establish a distinctive character. The Council argued for a larger area, incorporating the suburb of Palm Beach as a whole (west to the Gold Coast Highway), within which the buildings presented as aberrations. [23] Having observed, in relation to the Palm buildings, that “once the field extends beyond WBQH’s narrow confines the buildings present as aberrations”,17 Kingham DCJ (as she then was) rejected a “narrow enquiry about character”, saying that “without good reason, the Court should not adopt an overly restricted approach or confine consideration to a narrow radius around the site”.18 [24] As was pointed out for the co-respondent, that decision is not determinative of the subject development application, given that it related to a different application, made under a different planning scheme and statutory regime, at a different and much earlier time, in circumstances where there have been subsequent changes to the existing and intended form of development in Palm Beach. The appellants point to the decision however, at least to support the proposition that the local area, the identity and sense of place of which must be reinforced, should not be defined too restrictively. That proposition is consistent with the approach taken to the relevant provisions of the current planning scheme, in their application to a different locality, in McLucas & Ors v Gold Coast City Council & Anor.19 [25] In this case, Messrs Curtis, Richards, Powell, Buckley and Perkins, being experts called by either the co-respondent or the respondent, adopted the area to the south of Lacey’s Lane as the local area for the purposes of their assessment of local 17 Supra at [21]. 18 Supra at [25]. 19 Supra at [78]. See also Lawrence v Gold Coast City Council & Anor [2022] QPEC 19. -- 12 of 40 -- 13 identity and sense of place.20 Dr McGowan, the visual amenity expert called by the respondent, adopted a larger area, extending north to Palm Beach Avenue (a higher order connection between the motorway and the oceanfront)21 and including areas west of the Gold Coast Highway.22 He also referred to an eastern sub-area between the highway and the coastal edge.23 Dr McGowan acknowledged however, that the subject site would be seen from viewpoints further afield than this area and would also be seen in relation to other developments and landscape features beyond that area. Further, he recognised that it would, for some, be experienced as part of the continuous journey along the highway (and other local streets) wherein it would be understood as part of a wider and more varied visual experience.24 The experts called by the appellants assessed the local identity and sense of place by reference to a broader area than just the area south of Lacey’s Lane.25 Mr Butcher adopted a somewhat narrower area than did Dr McGowan.26 [26] It was submitted, for both the respondent and for the co-respondent, that it is unnecessary for me to define the boundary of area to be considered when considering local identity and sense of place. That area, in terms of identity and sense of place should not, in my view, be too narrowly defined. It is not, in my view, to be limited to the area south of Lacey’s Lane. [27] At the broadest level Palm Beach generally might be said to have an identity and sense of place, but it is appropriate to recognise, particularly because of the extraordinary length of the suburb, that not all development within the suburb will be, or be seen, within an identical context. A consideration of more localised context is relevant in assessing the likely effect the proposed development would have on local identity and sense of place.27 That is accommodated, without becoming too restrictive, in this case, by paying particular attention to Dr McGowan’s eastern sub-area, together with the adjacent open space and park areas. In doing so one should be conscious that, as Mr McGowan pointed out, the proposal 20 Ex. 4.03, pp 37 – 38, para 88 – 89, Ex. 4.04, p 53 para 71. Ex. 4.05, p 8, paras 24 – 25; T2-53, 54; T2-74. Curtis spoke of understanding this area in relationship to the remainder of Palm Beach – T2- 54. 21 Ex. 4.04, para 92. 22 Ex. 4.04, para 92, Fig. 41. 23 Ex. 4.04, para 95, Fig 41. 24 Ex. 4.04, para 92. 25 Ex. 4.05, p 8, para 26, T2-111, Ex. 4.03, para 117. 26 Ex. 11.29. 27 Cf Bell Co Pty Ltd & Ors v City of Gold Coast & Anor (Supra) at [84] – [85]. -- 13 of 40 -- 14 will be seen from viewpoints further afield, in relation to other developments and landscape features beyond that and experienced as part of a continuous journey. [28] The built form of Palm Beach is effectively divided by the Pacific Highway, which runs in a generally north/south direction, separating development between it and the beach to the east from development to the west of the highway through to the motorway. Land to the east of the highway is generally included in the MDRZ and has a 29 metre designation on the BHOM. That is also the case in relation to land fronting and in close proximity to, the Gold Coast Highway to the west, save that there is some land on the western side of the Gold Coast Highway which is included in the centre zone and has a 39 metre designation on the BHOM. Land further to the west is generally zoned low density residential and is characterised by predominantly low-rise development. [29] Under City Plan low-rise building height is defined to be a building up to 9 meters above ground level (intent for up to 2 stories, with option for a partial third if within 9 meters). Medium rise building height is described as a building exceeding 9 to 32 metres above ground level (intent for 3 to 8 stories) whilst high- rise building height is a building exceeding 32 metres above ground level (intent for above 8 stories). The 29m designation in the BHOM is a medium rise building height. That is the height of the Aleia building in metres. The subject proposal, at 43.5m, is for a high-rise building. [30] Given the zoning and BHOM designations it would be reasonable to expect existing and future development and redevelopment in the MDRZ areas to achieve medium density residential development in the form of buildings to the heights designated in the BHOM. Development to 50% higher than that, in limited circumstances, as provided for by the height uplift provision, might possibly also occur. The evidence shows that the suburb is generally developing that way; with the prevailing building height increasing as a consequence.28 There is a primarily low to medium rise built form “spine” along the Gold Coast Highway coastal strip, with further medium rise approvals/developments and a small number of building height uplift approvals/developments (discussed later). Further development 28 Ex. 12.02. -- 14 of 40 -- 15 consistent with City Plan is likely. Mr Curtis referred to the “evolving mid-rise built form” to the east of the highway.29 [31] The subject site falls towards the southern end of development on the eastern side of the Gold Coast Highway. As Mr Butcher pointed out,30 this sits at the convergence of development, natural and open space areas. The Palm Beach foreshore lies to the east. To the south lies public parks and open space areas, Currumbin Creek and its environs. From the site a number of features, including the vegetated hills and ridgelines of Currumbin Hill, are visible31. Dr McGowan also acknowledged the influence of the natural landscape features.32 As Mr Butcher pointed out,33 the site’s relationship with its natural setting provides a degree of visual sensitivity. As Dr McGowan acknowledged,34 the open space and extent of low rise built form surrounding the site indicate that any higher rise built form on the site will have relatively high visibility (except to the extent that it is obscured by Royal Palm, Princess Palm or Aleia). The proposed building would have a degree of prominence by reason of this relatively high visibility and by reason of being proximate to and plainly visible from, places to which the public has resort as well as being visible at, in effect, the “gateway” of Palm Beach for vehicles travelling north on the Gold Coast Highway across the Currumbin Bridge towards the intersection of the highway and Thrower Drive.35 [32] There were a number of bases put forward to justify the proposed high-rise development, to the maximum contemplated under the height uplift provision, as something which would, in the circumstances, result in a reinforced local identity and sense of place. One contention was that the proposal falls within and would assist in providing cohesion to, the “mixed bag” of existing and likely future development within the local area, however it is defined. Mr Richards, for example, adopted the term “hotch potch” in his evidence,36 to describe the existing development in explaining his view that the proposal would not be out of context. Mr Curtis described the varied built form as providing “a sense of relaxed 29 Ex. 4.03, para 49. 30 Ex. 4.04, para 42. 31 Ex. 4.04, para 39. 32 Ex. 4.04, para 94. 33 Ex. 4.04, para 51. 34 Ex. 4.04, para 101. 35 Ex. 4.04, paras 46, 103, T2-21, 22, 74. 36 T2-80. -- 15 of 40 -- 16 resilience”.37 Mr Buckley spoke of the proposal maintaining not only a variety of building heights (which he saw as a feature of the locality), but also the marked differences between height and scale of that development.38 [33] Whilst I accept that development in the area south of Lacey’s Lane, upon which Mr Richards focussed, is far from uniform, the Palm buildings are the only high- rise developments in that area.39 I do not accept Mr Curtis’ characterisation of Aleia as the third member of an existing cluster of tall buildings that can accommodate another taller building.40 Further, as I have already observed, I do not accept that attention ought be confined to the area south of Lacey’s Lane. [34] Dr McGowan spoke, in the joint visual amenity report, of a “band of high-rise development between the highway and the coastal edge” in his eastern sub-area.41 He went on to describe that sub-area as accommodating “a mix of smaller low rise development, as well as a number of recently approved 7-9 storey buildings, which contribute to an emerging mid-level skyline profile for the area.”42 He accepted that the built form43 in this sub-area is low to medium rise and that, whilst he had not checked the precise building heights, the development that has occurred is “in the ballpark” of 24m.44 The Palm buildings are however, the only apparent high- rise elements and, as he said,45 serve to interrupt the emerging profile. I do not consider that Mr McGowan’s sub-area contains a “band of high-rise development”. [35] Mr Buckley acknowledged46 that there are relatively few exceedances of the 29m height from the BHOM for the entire coastal spine of Palm Beach. There was evidence however, of some approvals that have been given in Palm Beach, pursuant to the height uplift provision. The nearest of those to the subject site however, are a cluster of approvals for sites approximately two kilometres north. They are, as Mr Ovenden47 and Mr Butcher48 pointed out, different developments 37 Ex. 4.03, para 52. 38 Ex. 4.05, para 82(a). 39 Aleia although 9 storeys is 29m in height. 40 T2-25. 41 Ex. 4.04, para 95. 42 Ex. 4.04, para 95 and Fig. 43. 43 As shown on the 2020 aerial photograph – Ex. 12.02. 44 T4 – 69. 45 Ex 4.04, para 95. 46 T5 – 6. 47 Ex. 4.05, para 225, T5 – 40, T5 – 50, ll 2 – 6. 48 Ex 4.04, para 55(c). -- 16 of 40 -- 17 in a different context or setting. They do not create a precedent for, or reasonable expectation of, future development within the area designated with a 29m building height in Palm Beach more generally or, more particularly, towards the southern end of Palm Beach, becoming characterised by high-rise development. They are simply illustrations of the application of the height uplift provision in limited circumstances. They do not significantly bear upon the extent to which the subject proposal on the subject land, in its context, would reinforce local identity and sense of place. [36] The existing and emerging built form, at least insofar as it is relevant to the context of the subject site, is best described as generally low to medium rise. The exceptions are the Palm buildings which are high-rise buildings, of considerable bulk and scale, on relatively large sites. They exist, and as Mr Perkins and Mr Richards said,49 cannot be wished away or ignored. It would be wrong however, to simply regard the height of those buildings as setting the upper limit of an existing height range within which proposed new buildings generally, or the subject proposal in particular, can be taken to reinforce local identity and sense of place. That is because, notwithstanding the changes that have occurred, over time, since the decision in WBQH Development Pty Ltd v Gold Coast City Council,50 the Palm buildings remain aberrations or anomalies. [37] As already noted, Dr McGowan described the Palm buildings as long-standing towers that “interrupted” the emerging mid-level skyline profile for the area.51 He also spoke of the “incongruity of those buildings with the surrounding built form”52 and the “incongruous scale of Royal Palm and Princess Palm”.53 They are, as Mr Butcher said,54 “divergent features” and “outliers”. Mr Curtis described the height of the two Palms buildings as providing a “robust contrast to the surrounding built form.”55 He described the contrast as “in relation to the medium and low rise surrounding multiple dwellings”.56 He said that he would not want to have something of the same height, bulk and scale of Princess Palm or 49 Ex. 4.05, para 109, Ex. 4.03, para 90, T2-78. 50 Supra. 51 Ex. 4.04, para 95. 52 Ex. 4.04, para 109. 53 Ex. 4.04, para 123(b). 54 Ex. 4.04, para 56 and 57. 55 Ex. 4.03, para 41. 56 Ex 4.03, para 43. -- 17 of 40 -- 18 Royal Palm developed.57 Mr Perkins acknowledged that City Plan does not encourage building heights equivalent to those towers, noting that they exceed the height in the BHOM even after applying the 50% uplift.58 Mr Richards acknowledged that, within both Dr McGowan’s local sub-area and broader local area, there is a consistent presentation of buildings that are medium rise, rather than high-rise, and that the Palm buildings stand in stark contrast to that.59 [38] Once it is acknowledged (as I find is the case) that the Palm buildings, although part of the local area, are incongruent elements, it is difficult to see how they contribute, in a positive way, to the local identity and sense of place. It is then difficult to see why those high-rise elements ought be seen as, in some way,60 justification for a conclusion that further high-rise development, to the maximum permissible under the height uplift provision, as proposed on the subject site, would reinforce local identity and sense of place which, in a built form sense, is otherwise characterised by generally low to medium rise development. It would not. Development, such as is proposed, that reinforces the incongruent Palm buildings would only serve to detract from, rather than reinforce, local identity and sense of place. [39] Unlike the Palm buildings, the subject high-rise proposal is not separated, by any significant distance, from the Aleia building, but is its direct neighbour. Indeed, that relative lack of separation was a matter of some initial concern to Dr McGowan who, in the visual joint amenity report, said that, in his opinion, the main concern about reinforcing local identity and sense of place is the limited separation to Aleia which, in his view, was inconsistent with the character of the area, where other medium and high rise buildings are well separated from each other.61 Whilst he was satisfied when the proposal was altered to provide some modest increased setback, it is difficult to see how the magnitude of the change substantially addresses the issue he raised. I accept Mr Butcher’s evidence that the 57 T2-55. 58 T5 – 26. 59 T2-83. 60 I note that 3 of the 4 matters referred to by Mr Powell in concluding that the criterion is satisfied go to the proposal’s relationship with the Palm buildings – Ex. 4.04, para 80. 61 Ex 4.04, para 110. -- 18 of 40 -- 19 change was not significant in opening up the space between the buildings.62 My conclusion about the criterion is however, not dependent upon this point. [40] I was reminded that, in McLucas & Ors v Council of City of Gold Coast & Anor.63 I said that “it is not necessary that in order to reinforce local identity and sense of place, development replicate the most common height in terms of the number of storeys.” In that instance however, the BHOM specified a height both in metres and in storeys and the proposal was to utilise the height uplift provision to approve one additional storey for a building that would, for all practical purposes, still be within the maximum height in terms of metres. That explains the reference to “in terms of the number of storeys.” The subject case is very different. It might also be noted that, in that case, there were a number of other developments within the relevant area with an additional storey to that specified in the BHOM. [41] It was contended that the proposal would provide “cohesion”, by representing a desirable transition or gradation64 between the Palm buildings on the one hand and Aleia on the other, so as to mediate65 between, or reconcile,66 them so they sit well together67, with the proposal being a uniting force.68 Notwithstanding the longstanding nature of the Palm buildings there is nothing in City Plan or, more particularly, on the BHOM, to suggest any objective of achieving a gradation of building height in proximity to that development. I have however, considered whether the proposal, by use of the height uplift provision, would provide a transition that would reinforce local identity and sense of place. [42] I accept that the proposal would not replicate or emulate the Palm developments. It would not share their shape or colouring, nor be set on a comparably large site. The proposal is however, of considerable height. It seeks the maximum height uplift and consequently is much closer in height to the Princess Palm building, in particular, than it is to Aleia. It would also express that height in a built form that has far more bulk and scale than Aleia. It would be a third highly visible and prominent inconsistent high-rise building at this end of Palm Beach that would, as 62 Ex 7.02, para 18. 63 Supra. 64 Ex. 4.03, paras 64, 92, 218, Ex. 4.05, paras 82(c) and 110. 65 T2-77. See also Ex. 4.03. 66 Ex. 4.04, para 109. 67 T2 – 26. 68 T3 – 104. -- 19 of 40 -- 20 Mr Richards conceded,69 reinforce the high-rise built form that exists from the Palm buildings. [43] The proposal would, whilst located close beside the Aleia building and the Currumbin Sands resort, have a closer relationship with the built form of the two Palm buildings than to the low to medium rise development otherwise. As Mr Butcher said,70 the bulk, scale and height of the proposal would consolidate and reinforce the appearance of the larger built forms and create a strong visual relationship with the two taller buildings (the Palm buildings) when viewed from surrounding locations. Given the incongruous nature of the two Palm buildings, I do not accept that the proposal to develop the subject land with a building , of considerable bulk and scale, which steps up towards (albeit somewhat less than) the height of the incongruent Palm buildings would reinforce local identity and sense of place. To the contrary, I accept Mr Ovenden’s opinion that the massing of the proposal with the Palm buildings is undesirable and unwarranted.71 [44] There was reference to the Palm buildings as having landmark qualities. Mr Curtis described them as providing “a highly legible local landmark that differentiates the site’s immediate local area from the broader surrounding area.”72 As the photo montages demonstrate, the disproportionate height, bulk and scale of those buildings relative to nearby development and landscape and open space features does, given their location, make those buildings prominent and somewhat of a visual marker at what might be described as a “gateway” location at the southern end of Palm Beach. Mr Curtis expressed the opinion that a building of the size and scale proposed could be added to “the cluster of built form at this southern end. It complements the two existing taller towers there”…and “it reinforces that as a landmark cluster at this gateway site”73 such that the cluster (including the proposal) in the precinct becomes the landmark, rather than just the Palm buildings.74 Accordingly he testified that:75 “I think the greater height in this locality is probably more consistent with the sense of place created by the landmark buildings there so if 69 T2-77. 70 Ex. 4.04, para 64(a)(iv). 71 Ex. 7.04, para 3.3 72 Ex. 4.03, para 41. 73 T2-24. 74 T2 – 27, 28. 75 T2-23. -- 20 of 40 -- 21 you were going to look for a taller building, I would think you would probably put it in closer proximity to the two Palms towers.” [45] Mr Curtis’ approach in the last of those extracts appears to proceed on the basis that one is looking to locate a taller building (presumably a high-rise building of the kind proposed) somewhere in the locality. That is not an imperative of the planning scheme. Otherwise, his approach underscores that it is the Palm buildings to which the proposal would relate. [46] Insofar as the Palm buildings serve as something of a visual marker, that is, as Mr Curtis accepted,76 largely due to the starkness of their difference, and is not a role which is recognised in City Plan. Further City Plan does not evince any intention for building height in proximity to the Palm buildings to increase so that any “landmark” effect of these anomalies is spread further or otherwise reinforced. Having regard to the effect that the proposal would have on relating to and reinforcing the incongruous Palm buildings, I consider the extent to which the proposal seeks to provide a transition or gradation by stepping up towards them or seeks to augment them or otherwise relate to them as landmarks would not result in a reinforced local identity and sense of place. [47] Mr Richards, in the joint report, expressed the opinion that the site’s qualities deserve a landmark treatment.77 The qualities he referred to include its natural setting. In cross-examination, he explained that he was referring to being able to have a building that took advantage of views so as to afford amenity to its residents.78 Whilst I am sure the proposal would provide units of high amenity for their occupants, I do not see that as a persuasive basis upon which to conclude that the proposal would lead to a reinforced local identity and sense of place, given the matters to which I have referred. [48] It was submitted, for the respondent, that the proposed development would also strengthen the sense of place by increasing accommodation opportunities for people to live close to the attractions at the southern end of Palm Beach79 and by not detracting from the beachfront outlook enjoyed by existing residents. The second of 76 T2 – 27. 77 Ex. 4.03, para 89. 78 T2-76. 79 Counsel for the respondent referred to this as a “hot spot to go to”. Mr Butcher acknowledged that the parks and open spaces reinforce the natural character of the area and its influence as a major community focus and congregation point – Ex. 4.04, para 38. -- 21 of 40 -- 22 those propositions is an absence of impact submission, rather than one that demonstrates a reinforcement of local identity and sense of place. The first begs the question as to the appropriate extent and form of increased accommodation. The City Plan is the primary arbiter of that. [49] There is no indication in the planning scheme that there is any intention for a pattern of different and increased building height in the MDRZ at the southern end of Palm Beach. Further, the site falls within an RD6 designation on the Residential Density overlay map in City Plan, for which the density is 300 bedrooms per net hectare (1 bed/33m²). The relevant performance outcome (PO5) in the MDRZ code is that density not exceed that shown on that overlay map. The density of the proposal, at 1/15m², is greatly in excess of that. In short, the extra height of the building (over the height shown in the BHOM), to the extent it facilitates greater residential density, is something which causes discord, rather than accord, with what City Plan provides in relation to the appropriate residential density. Even if there was thought to be some positive associated with that (which I do not find),80 it would not cause me to conclude that the criterion is satisfied, given the other matters already discussed. [50] For the reasons given, this criterion is not satisfied. (b) A well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents [51] This provision, whilst requiring consideration of the reasonable amenity expectations of nearby residents, requires a “well-managed”: (i) interfaced with, and (ii) relationship to, and (iii) impact on nearby development. [52] Much of the submissions of the respondent and of the co-respondent focused on specific potential amenity impacts on the adjoining developments of Aleia and Currumbin Sands. In that regard: 80 Although, had I found the building to be otherwise appropriate (including by meeting this criterion), I would not have refused the development application because of its excess density. -- 22 of 40 -- 23 • I accept that the proposal would not unacceptably affect the outlook from Aleia (which has been designed to direct primary views away from the subject site and towards the beach and open space). • I accept that the proposal would not cause undue shadowing impacts. Whilst, as Mr Butcher pointed out, the additional height of the proposal (in excess of that shown on the BHOM) casts some additional shadow, I do not consider that to be undue. As Mr Powell pointed out: (a) mid-winter (June 2021) is considered to have the greatest potential to impact daylight access due to longer shadows and shorter days; (b) there will be no mid-winter overshadowing to the Currumbin Sands Resort; (c) the mid-winter morning and noon overshadowing of the proposed development is concentrated towards the Gold Coast Highway and blank walls and non-habitable rooms of Aleia; (d) Aleia already over-shadows the parkland to a considerable extent during mid-winter and the additional overshadowing impacts of the proposed development over the public park (beyond the shadow of Aleia) is well into the mid-winter afternoon. Mr Richards also agreed that the additional shadowing impacts are not significant and only occur in the afternoon for a short period of time. I accept that evidence. • Potential privacy issues for the residents of Aleia can be managed by a combination of set-back and screening (including by landscaping). They arise only in relation to the upper levels (Level 9 and above) of the proposal overlooking the top of Aleia. That is because Aleia was constructed in a way which effectively “turns it back” on the subject site, in obvious contemplation of proximate future development. As Dr McGowan acknowledged in the joint visual amenity report81 at Levels 9 to 11 the proposal directs habitable room windows and wrap around balconies towards Aleia. As Mr Richards acknowledged,82 the Aleia rooftop pool area is directly in line of sight from the proposal looking towards the parklands and Currumbin Creek mouth. The owner of the top level apartment in Aleia (which spans Levels 8 and 9) of that building whose statement was admitted into evidence and who was not required for cross-examination, expressed the following understandable concerns for privacy: 81 Ex. 4.04, para 118. 82 Ex. 4.03, para 100. -- 23 of 40 -- 24 “11 We live on the top floor of the complex and a large part of our terrace area and all of our pool area is an open air area with no roof covering. These are areas where we expect some privacy – especially the pool area – if people were to be looking down on us on this area, we felt this would be a blatant disregard for privacy and we will always be feeling self-conscious in our own home. 12 Aleia is approximately 29 metres high. The proposed Nexis building is approximately 43 metres high and is approximately only 3.6 metres (in parts) from our boundary. That means that the proposed development will be approximately 14 metres taller than our development. This effectively means that we will have a 4-5 storey building looking down on our terrace and/or pool area that is around 6 metres away. 13 Even further, and of great concern, the proposed development has apartments with sliding doors and windows that will look out over our terrace, pool, bathroom and (to a lesser extent) our kitchen our area. Such an impact would be devastating to both Emma and I and I could not imagine using our outdoor areas.” Dr McGowan acknowledged the concern, but considered it to be effectively managed by a combination of additional screening, landscaping and by distance separation. The proposal, as amended, includes screening and landscaping on Levels 8 to 10.83 There is some landscaping and screening on Levels 11 and 12.84 There is none on Level 13.85 Mr McGowan thought it unnecessary at the highest levels because of the slightly greater distance separation and because the outlook from those levels would be over the top of, rather than down upon the rooftop of Aleia.86 Mr Richards, although acknowledging the potential for overlooking was also less concerned about the higher levels.87 He had, in the joint report,88 made suggestions for improving the interface in this regard, including by a greater setback, but regarded the ultimate design response as “in balance…acceptable”.89 Mr Butcher, on the other hand, continued to hold privacy concerns notwithstanding the 83 Ex. 2.01, p 23. 84 Ex. 2.01, pp 24 and 25. 85 Ex. 2.01, p 26 – Note there is no balcony on level 14 - Ex 2.01, p 27. 86 T4-73. 87 T2-95, 96. 88 Ex. 4.03, para 100. 89 T2-94, 96 – 97. -- 24 of 40 -- 25 amendments to the proposal.90 I do consider it reasonable for the owner of the rooftop terrace to retain some privacy concerns. In particular, I consider it reasonable to guard against the prospect of those proximate to the edge of the balcony overlooking Aleia. That could however, be achieved by imposing conditions requiring some additional screening. It was also pointed out that the proposed screening, even on Levels 8 to 10, does not extend for the full length of the balcony and that that part of the balcony forward of the screening affords attractive views where people may congregate.91 As Dr McGowan pointed out however, at that point the view is primarily not across the rooftop of Aleia.92 In any event the extent of screening is not a decisive issue since it could be dealt with by way of conditions. Ultimately, the proposal’s impact upon Aleia in terms of privacy can be well managed, subject to the imposition of conditions. • Potential privacy concerns were also raised for the residents of Currumbin Sands. It is reasonable to expect that the subject site would be developed for a medium density development at a height at least to that specified in the BHOM. It is also reasonable to expect that such development would take advantage of attractive views, including views across the Currumbin Sands site to the ocean. In such circumstances it is reasonable to expect some overlooking of Currumbin Sands by future development of the subject site. So much was acknowledged in the statement of the chairman of the Body Corporate for Currumbin Sands,93 whose statement was also admitted into evidence and who was not required for cross-examination. It may also be noted that a deal of what would be overlooked is common areas, rather than private areas, within Currumbin Sands. Privacy would, I accept, be appropriately dealt with by a combination of setback and landscaping (discussed later) in relation to the lower levels of the building and the substantial separation distances (e.g. in the order of 60 metres from the Currumbin Sands pool) in relation to the upper levels.94 • The proposal would be potentially overbearing particularly with respect to Currumbin Sands, which it adjoins and with which it has a great height discrepancy. It must be acknowledged that even a building to the height specified in the BHOM would potentially be overbearing, to some degree, relative to Currumbin Sands, but the proposal is more so. I do not accept Dr McGowan’s view that a building, such as proposed, with the full 50% height uplift, is unlikely to 90 Ex. 7.02, paras 15 – 17. 91 T4-74. 92 T4-75. 93 Ex. 8.01, para 21. 94 T4-77. -- 25 of 40 -- 26 significantly increase a sense of overbearing95 on the basis that it would “arguably be similar to any medium or high rise development on the site.” I would not accept that view even assuming Dr McGowan was intending to draw a comparison with a building of up to the height specified in the BHOM. For the reasons given later the proposal’s interface with Currumbin Sands is not sensitive to this. Dr McGowan, in the visual amenity joint report, acknowledged that “there may also be a sense of overbearing caused by Levels 10 and above of the proposal that could impact the rooftop space and potentially upper level units of Aleia.”96 The direct impacts of any overbearing would be felt by the owner of the rooftop terrace. Privacy protections for that unit have already been discussed. Whilst the owner of that unit would no doubt prefer not to have any adjoining building which is higher than the rooftop terrace in Aleia, the extent of any overbearing is limited to the top 5 storeys of the proposal. The setbacks at those levels are, I accept, sufficient to relieve any undue sense of overbearing. • The visual impact of the proposal arising from its relationship to nearby development is considered later. [53] The interface of the proposal, as approved, with Currumbin Sands was, as both Dr McGowan97 and Mr Richards98 acknowledged, poor. On the eastern boundary the ground level of the proposal presents to a communal barbeque area, whilst the northern boundary presents to balconies and living units within Currumbin Sands. The proposal, as approved, effectively presented a one storey wall (to the ground floor carpark) to those boundaries. As Mr Richards pointed out in the joint architecture report,99 a preferred approach would be to confine carparking to basement levels, so as to facilitate a landscaped zone, incorporating deep planting in strategic locations, along those boundaries. [54] The interface with Currumbin Sands was improved by amendments, but not ones that took up Mr Richards’ suggestion. It is now proposed to have one metre high planter boxes on the boundaries attached to the wall of the ground level car park. The wall to the ground level car park remains, in substance, the interface (although set back by the planters) but, assuming the planting is successful (as I do), it should at least be softened by landscaping. 95 Ex. 4.04, para 114. 96 Ex. 4.04, para 120. 97 Ex. 4.04, para 113. 98 Ex. 4.03, para 98. 99 Ex. 4.03, para 98. -- 26 of 40 -- 27 [55] The “built to boundary” basement on the northern and eastern boundaries limit the opportunities for significant deep planting. That explains the “planter box” solution. Whilst there is some deep planting proposed, towards the corners of the site, Mr Richards rightly described it as “not a lot of deep planting”.100 The consequence is that the proposed landscaping will be sufficient to soften the appearance of the ground level car park wall and the lower sections of the building, but not the higher parts of the building. [56] In the course of cross-examination Mr Powell asserted that the containerised planting could support 5 metre shrubs or small trees.101 I am not prepared to accept that the containerised plantings are likely to provide an effective screen to the higher parts of the building given that: (a) Dr McGowan gave evidence that the relevant planter boxes are more suited to the medium sized shrubs, which could easily be 3 metres high;102 (b) Dr McGowan also gave evidence that containerised planning will not soften or screen the building (other than the car park wall) or mitigate overbearing to the same extent as deep planting,103 and (c) Mr Butcher gave evidence that even if the contents of the planter boxes grew to 5 metres there would be visibility to the higher levels.104 [57] Further, there would appear to be a very real prospect of the loss of mature planting on the Currumbin Sands side of the common boundary as a result of construction of the built to boundary basement. Mr Butcher gave evidence of that prospect105 and Dr McGowan essentially agreed.106 Although Mr Butcher accepted that a condition could be imposed requiring protection of the Currumbin Sands vegetation107 the evidence does not satisfy me that such a condition could be complied with or that vegetation that was in the planter boxes would make good the loss of vegetation on the Currumbin Sands site.108 100 T2-92. 101 T4 – 22. 102 T4-71. 103 T4-71. 104 T4-34. 105 Ex.7.02, para 33(d), T4-34. 106 T4-71. 107 T4-43. 108 T4-43. -- 27 of 40 -- 28 [58] Mr Richards described the amended proposal as “acceptable”109, although he conceded that it was not “well managed” compared to the landscaped deep planting zone he had recommended.110 In my view, the interface with Currumbin Sands does not meet the description “well managed”, as it fails to significantly or sufficiently address the great difference in scale between the two developments and the consequent potential of the proposal for creating an undue sense of overbearing. A well-managed interface would address that by, for example, incorporating more than the small amount of deep planting proposed. [59] The provision requires both a well managed interface with and relationship to, nearby development. I accept the submissions on behalf of the appellants in Appeal 918 of 2002 to the effect that the term “relationship” is sufficiently broad to include the visual relationship of the proposal to nearby development and that a well- managed relationship is one that is appropriate in the circumstances.111 [60] Insofar as the adjoining developments of Aleia and Currumbin Sands are concerned, as Mr Ovenden put it “the overall mass of the proposed building appears overwhelming and in stark contrast to the scale and mass of the existing buildings adjoining the site.”112 The treatment of the interface between the proposal and those developments does not ultimately facilitate an appropriate visual relationship. At a somewhat broader level the proposal does not represent a well-managed relationship to “nearby” development in the local area for the reasons discussed in the consideration of criterion (a). [61] This lack of an appropriate relationship also underpins what I find to be a likely adverse impact on character and perceptions of amenity, being a matter of concern addressed in the statement of the chairman of the Body Corporate of Currumbin Sands.113 Mr Arnold spoke of the negative impact on character and amenity that would result from the proposal.114 Similarly, Mr Ovenden spoke of the “tangible 109 T2-90. 110 T2-91. 111 Another way to take account of the visual relationship would be to regard the requirement for a well- managed interface as extending to this. 112 Ex. 7.04, para 3.3. 113 Ex. 8.01, para 21(e). 114 Ex. 4.05, para 251. -- 28 of 40 -- 29 planning harm to the character and amenity of the area and to the adjoining properties” that would result.115 [62] This criterion is not met. (c) A varied, ordered and interesting local skyline [63] My attention was drawn to what I said in McLucas & Ors v Council of City of Gold Coast & Anor116 about this criterion, as follows: “…The local skyline is influenced by more than one building. The criterion therefore calls for an assessment of the effect of the proposal in the context of other development. The provision requires both variety and order, in addition to an interest. In those circumstances order cannot mean uniformity. I agree with Mr McGowan’s approach of assessing order by reference to whether there would be a harmonious arrangement.” [64] The proposal would introduce a new element to the skyline. It would be at a different height to existing development, albeit that it would not be much lower than the existing Princess Palm building. The proposal however, would provide some further variety and create some interest by presenting a different configuration in the upper two storeys, capped by a curvilinear roof form, which is unlike that of the existing development. Even accepting that variation and interest would be provided, the proposal must also provide order. [65] It was contended, for the respondent and for the co-respondent that the proposal would contribute towards an ordered local skyline because the local skyline currently has little order and the proposal would assist by transitioning down from the Palm buildings whilst still allowing them to be the most dominant. For the reasons discussed in the context of Criterion (a) however, I do not accept that. Whilst the proposal would relate to the Palm buildings, it would represent the intrusion of a third inconsistent and incongruous element into the local skyline and so would neither provide, nor contribute towards, an ordered local skyline. The criterion is not met. (d) An excellent standard of appearance of the built form and street edge (i) An excellent standard 115 Ex. 4.05, para 246. 116 Supra, at [100]. -- 29 of 40 -- 30 [66] This criterion requires an “excellent standard”. In McLucas I said: [107] Criterion (d) requires an excellent standard of appearance of the built form and street edge. Something is excellent if it has superior merit or is remarkably good. An excellent standard can be said to be one that is especially high. That is not to say that perfection is required. To take an analogy, an A-plus student may be said to have performed to an excellent standard, even though the student’s work may not have been perfect and someone else was top of the class. An assessment of whether a proposed development achieves an excellent standard obviously involves matters of evaluative judgement upon which reasonable minds may differ. [67] I accept that the requirement for excellence should be seen in the context of what other provisions require in any event. In that regard: • Overall Outcome (2)(b)(viii) of the MDRZ Code is the achievement of a high quality urban design through, amongst other things, attractive buildings; • Overall Outcome 2(a) of the HRAD Code is that development is designed to create, amongst other things, attractive, high quality, visually appealing buildings. [68] In coming to a favourable view in relation to the proposal’s achievement of an excellent standard, in the material respects, Mr Curtis assessed the standard of appearance of the proposal primarily relative to existing development to the south of Lacey’s Lane. That led him to the view that the proposal was “a well resolved design solution that I believe is superior to existing development in the local area”.117 Context is relevant, but I do not consider that it can necessarily be concluded that the standard of appearance of a proposal is excellent just because it is thought to be superior to that of the nearest existing developments. To take a hypothetical example, a proposal that is of a higher standard of appearance than the nearest buildings, all of which are, objectively viewed, of a poor standard, does not make the proposal excellent.118 [69] I acknowledge that when Mr Curtis was asked to address himself to the issue of excellence, as that term might be understood more generally, he also described the 117 Ex. 4.03, para 84. 118 I note that the Palm buildings and Currumbin Sands are historical developments whilst Aleia was code assessable and so not required to meet the criteria for an uplift in height. -- 30 of 40 -- 31 proposal as “an excellent outcome”. In so concluding he thought that it does “as well as can be expected” of solving the architectural problems in a manner that fits into the context.119 (ii) The built form [70] Mr Richards considered the building to be “well considered and could well be excellent”120. Mr Curtis’ view has already been noted. In their written submissions, counsel for the co-respondent relied on the following asserted positive elements: (a) strong articulation, including deep recesses creating strong vertical elements so that the building has an expression of three vertical forms;121 (b) curvilinear form to balconies and screening which creates a softness to the building form and reduces the overall bulk;122 (c) adherence to sub-tropical design principles, by providing optimal north-west orientation for solar access and sea breezes, generous balconies, “front to rear” apartments for cross-ventilation and feature batten screens that provide texture and shading;123 (d) full height curvilinear batten screens which partially veil the facades and at night will create a “lantern” effect which will positively contribute to the night time skyline;124 (e) a tower form above the ground storey which is irregular, “extruded” and has varying setbacks, creating an animated and modulated shape;125 (f) horizontal articulation by way of projecting balconies and floor plan edges which differentiate the storeys to provide a human scale and fragmented bulk126 as well as the “preliminary” two uppermost levels and podium from the ground level which further break up the bulk and create a well-designed building form;127 119 T2-63. 120 T2-71. 121 Ex. 4.03, para 103. 122 Ex. 4.03, para 104. 123 Ex. 4.03, para 195. 124 Ex. 4.03, para 81(d). 125 Ex. 4.03, para 81(a) – (b). 126 Ex. 4.03, para 81(e). 127 Ex. 4.03, para 81(f). -- 31 of 40 -- 32 (g) extensive fenestration glazed balustrades which have depth of transparency to the façade and further contributes to mitigating bulk.128 [71] Mr Middleton, on the other hand, regarded the proposal as representing “a basic developer-driven solution that could be found in many locations on the coastal strip where taller buildings predominate”.129 He pointed to a range of matters including a lack of variety in material selections,130 specification of coloured paint instead of sandstone131 and the use of low floor to floor heights. He also took issue with the extent of cross-ventilation and the adherence to sub-tropical design principles. In light of the basis on which I have formed the conclusion that this criterion is not met (discussed below), it is unnecessary for me to traverse those matters of detail. In my view however, Mr Middleton was overly critical of the architectural merit of the proposal. I do not accept that the proposal is a basic developer-driven solution. That is not to say however, that it meets the criterion. [72] A primary difficulty confronting any architect in attempting to design a building of the general size and proportion of the proposal on the subject site, whilst achieving an excellent standard of appearance of the built form is its inherent bulk. That difficulty arises because of the basic dimensions of the proposal and the context within which it is proposed to be located. The difficulty exists notwithstanding compliance with AO4.1 of the High Rise Accommodation Design Code (HRADC), which relates to slender towers.132 It was an issue acknowledged by Mr Richards in the following part of his testimony133: “…I mean the – the issue with slender towers of buildings of this height and width of the buildings is that their bulk is not slender. I mean, you need to have – be 50 storeys or 30 storeys for a slender building so its proportion is quite – potentially very boxy…” [73] Mr Ovenden colourfully referred to the proposal’s height, density and site cover as manifesting in “a big lump of a building”.134 He also referred to its mass as appearing “overwhelming”.135 The changes to the proposal were described by him 128 Ex. 4.03, para 81(h). 129 Ex. 4.03, para 132. 130 Ex. 4.03, para 134. 131 T2-112. 132 Compliance, in this respect, with the HRAD Code does not necessarily mean that the proposal meets this criterion in the height uplift provision. 133 T2-98. 134 Ex. 4.05, para 170. 135 Ex. 7.04, para 3.3 -- 32 of 40 -- 33 as “minor improvements” that did little to mitigate against the “large mass” of the proposed building.136 Those descriptions are not unfair. [74] It is evident that a number of the architectural features of the proposal have been incorporated in an attempt to break down or reduce the proposal’s apparent bulk. I accept they would have some effect, but I do not accept that they would be sufficiently effective in this instance. As Mr Ovenden said137, from a range of vantage points, the building would appear as a solid mass of development. Whilst, as a perusal of the photomontages demonstrates, the effectiveness of the architectural measures, and the appearance of built form bulk varies depending on the viewing position138 overall, I accept the evidence of Mr Butcher and Mr Middleton to the effect that the proposed built form would have a bulky appearance.139 In those circumstances I do not consider that it meets the criterion of an excellent standard of appearance of built form. (iii) The street edge [75] The standard of appearance of the street edge was subject to some criticism (or at least suggestions for improvement) not just by the experts engaged by the appellants, but by the experts engaged by the respondent. In the first report of the visual amenity experts, Dr McGowan said: 124 While the street edge of the proposal incorporates a refined materials palette, it will be characterised by the centralised driveway, blank walls, the transformer, fire stairs, bin collection area, and the booster. Any contribution that the pedestrian entry points is undermined by the fact that they are set down below street level. While some landscaping is provided to soften the appearance of these components, there is a lack of deep planting space or space for substantial landscaping that could soften the appearance of these components and improve the pedestrian environment. 125 It is not a particularly poor interface but I do not consider that it reflects an excellent standard of appearance and believe more needs to be done to emphasise the pedestrian entry points, create some sense of overlooking of the street, and 136 Ex. 7.04, paras 2.7, 3.2. 137 Ex. 4.05, para 152. 138 Ex. 4.04, paras 63(b), 64(c)(ii), p 41, 66(c)(i), 161, 162, Ex. 4.05, Ex. 4.03, para 133, Ex. 7.01, para 28, Note also that Mr Middleton did not accept the effectiveness of all of the measures – see e.g. T3- 7, ll 10 – 19. -- 33 of 40 -- 34 minimise the imposition that the plant and equipment would have on this edge. [76] In the architects’ joint report Mr Richards said: 105 The building has two entries from the street and there are architectural elements of awnings feature stone walls and planter beds. The varied setback makes the building less imposing from the street and creates visual interest and opportunities for different forms of landscaping. Refer Figure 21, 30, 31. 106 However, there are some minor issues in street interface that can be readily improved. The ground floor is set below the street of about 0.8 metres. This creates a less welcoming and compressed arrival sequence. Platform lifts are needed to provide equitable access from the streets down to the entrance. In addition, the entrance driveway is placed towards the centre of the building where the greatest setback is to the street, and this creates a visually dominating character. 107 Improvements to these relationships would include raising the ground floor to the street level, removing the platform lifts. The driveway could be relocated to the southern boundary adjacent to the driveway of the Aleia which will enable a significant deep planting zone in the present driveway location with a large feature tree or other landscape treatment These design refinements would provide an excellent standard of appearance of the street edge. [77] The co-respondent amended its proposal in response to those criticism/suggestions. The changes included raising the level of the ground floor, locating the lobby entrances at street level (removing the platform lift and stairs) and relocating the driveway entrance south, adjacent to the boundary with Aleia (providing a new central area of landscaping, but reducing and reshaping the area for deep planting at the south west corner). Mr Richards saw those changes as being a genuine response which satisfactorily dealt with the issues raised by him and would result in a more interesting and human scaled interface with the street not dominated by driveways. 140 Dr McGowan saw the changes as providing a higher quality street interface, resulting in greater visual interest, improved sense of overlooking of the street, clearer entry points and a more comfortable scale streetscape.141 [78] The experts called by the appellants remained unconvinced that the appearance of the street edge passed the test of an excellent standard. A particular area of concern 140 Ex. 6.02, para 13, 14. 141 Ex. 6.01, para 9. -- 34 of 40 -- 35 was that the amendments did relatively little to address one of Dr McGowan’s earlier concerns about minimising the imposition of plant and equipment on the edge. There was, in that context, some criticism of the co-respondent’s decision to persist with ground level parking, thereby reducing the scope for accommodating “back of house” functions elsewhere and providing further landscaping, including deep planting. [79] Ultimately this is an issue upon which reasonable minds could legitimately differ. Dr McGowan expressed his ultimate view in less than emphatic terms, saying of the street edge appearance that:142 “It was reasonably good but the criteria was asking for excellence. I think what they’ve done now got it – gets it across the line.” [80] The co-respondent confirmed that it would submit to a condition requiring planting street trees in the road reserve to further improve the street edge appearance. In those circumstances I am, on balance, satisfied that the proposal could at least be conditioned to meet this part of the criterion. The proposal fails the criterion overall however, because, for the reasons given, it fails the requirement for an excellent standard of appearance of built form. (e) Housing choice and affordability [81] Choice and affordability are relative concepts. This criterion is to be read in the context of what City Plan provides otherwise about choice and affordability. The relevant provisions of City Plan were discussed in McLucas & Ors v City of Gold Coast & Anor.143 It is unnecessary for me to repeat all of what was there said. What emerges from a consideration of the relevant provisions is that affordability, as it appears in the height uplift provision, is not limited to “affordable housing”, which is a different term, defined in City Plan by reference to the needs of households which will spend no more than 30% of gross income on housing costs. Affordability is a broader concept, which 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. 142 T4-90. 143 Supra, at para [115] to [127]. -- 35 of 40 -- 36 [82] In the case of the MDRZ, the scheme seeks not only a generous mix of housing form and sizes,144 but also a generous mix of affordability outcomes that meet the needs for the locality. A given proposal, on a particular site, might well contribute towards that generous mix within the zone even though the product within the development is not itself mixed. [83] In McLucas & Ors v Council of City Gold Coast & Anor145 I said (omitting footnotes): “Read in context, Criterion (e) does not require the development itself to offer a mix of different kinds of accommodation. It also does not require accommodation to be affordable housing as defined. Rather it requires a proposal to support housing choice and affordability as those terms are used for the purposes of City Plan. Whether it does so should be assessed in light of what City Plan says about choice and affordability.” [84] Having considered the evidence in that case, I made the following finding:146 “When regard is had to the broad concept of affordability, as expressed in the strategic framework and for the way in which that is to be pursued, it seems to me that a proposal, like this, to increase density by providing more units, of a kind under-represented in the area, in a way that increases choice, at a price point above the existing older stock but below detached housing re-development and on appropriately zoned land, the Medium Density Zone in circumstances where it is consistent with the city’s shape and, for the reasons otherwise stated, appropriate to the context of the place and will make more efficient use of infrastructure, is a proposal that supports City Plan’s strategy for choice and affordability and satisfies the criterion.” [85] The subject proposal, unlike that considered in McLucas, is for a high-rise development. That attracts the High-Rise Accommodation Design Code (HRAD Code). The purpose of that code seeks to responsibly encourage, amongst other things, diversity.147 The overall outcomes of the code seek, amongst other things, development that supports the provision of diversity of housing for various types of households within the city.148 That could potentially be done by development that contributes something different or that is under-represented in the relevant area,. PO10 may contemplate a mix within the development itself by providing that 144 Section 6.2.2.2(2)(b)(iv). 145 Supra, at [127]. 146 At para [131]. 147 Section 9.3. 10.2(1). 148 Section 9.3. 10.2(2)(i). -- 36 of 40 -- 37 “development provides a mix of housing sizes and affordability outcomes to meet housing needs”, but no acceptable outcome is provided, and compliance with the code can be achieved by compliance with the purpose and the overall outcomes.149 [86] The evidence in this case was to somewhat similar effect to that in McLucas & Ors v Council of City of Gold Coast.150 An examination of the area studied by the economic experts showed it to be dominated by single lot dwellings with 3-to-4- bedroom apartments/flats accounting for only 4% of the dwelling stock. Most residents in attached dwellings are single or couples renting. [87] The evidence of Mr Duane (the economist called by the co-respondent) was to the following effect: (a) there is a need for diversity and choice of household product in multiple unit dwellings such as that proposed, including for affluent residents; (b) the proposal represents an opportunity for infill development in close proximity to a significant amount of both private and public infrastructure supportive of residential development which the proposal would make more efficient use of; (c) higher density development at the subject would reinforce a compact form of settlement, resulting in improved efficiencies in the use of existing and future infrastructure in the surrounding area; (d) the proposal represents orderly development which is well located for higher density residential purposes; (e) the proposal would add to diversity of housing choice, particularly because it would provide large 3 and 4-bedroom units, comparable in size to houses; (f) the development would represent a community of benefit to the more affluent market segment, albeit that the apartments are at a more affordable price point than single dwellings at the subject site would be. [88] Ms Meulman, the economist called by the appellants, referred to the proposal as “essentially a homogeneous development offering limited differentiation in lifestyle arrangements.” For the reasons already given, the relative lack of product 149 Section 5.3.3. 150 Supra. -- 37 of 40 -- 38 differentiation within the development does not, in my view, prevent it from making a contribution to choice and to a generous mix of affordability outcomes. [89] Ms Meulman was affected by her conclusion that there was a sufficient supply of dwelling stock under construction, approved or proposed within the study area. Not all stock however, is catering to the same segment of the market. I accept Mr Duane’s evidence to the effect that there is a need for stock for the market to which the subject proposal would have (and has had151) appeal. While Ms Meulman referred to that as a “very small niche sector”, I do not consider that it is an illegitimate part of the generous mix to be provided within the zone and needed in the locality. [90] For the reasons stated I prefer and accept the evidence of Mr Duane and I conclude that this criterion is met. (f) Protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features [91] This criterion refers to local character and scenic amenity. The proposed development would not unduly affect views from popular public outlooks to the city’s natural features. I accept Mr Butcher’s evidence to the effect that the proposal would have a detrimental (rather than protecting) affect on local character, essentially for the reasons discussed in the context of considering criteria (a) and (b). This criterion is also not met. Conclusion on height uplift provision [92] For the reasons given the proposal does not fulfill all of the criteria for being granted the uplift in height sought. It fails criteria (a), (b), (c), (d) and (f). The consequence is that the proposal conflicts with the height provisions discussed earlier. Relevant matters [93] The relevant matters in the amended agreed list of issues are as follows (adapting the numbering from the list): 151 All the units have been pre-sold. -- 38 of 40 -- 39 5. Whether the proposed development is consistent with reasonable community expectations; 6. Whether there is a need for the proposed development, including through the provision of increased choice of housing; 7. Whether the proposed development is a high quality architectural and design standard; 8. Whether approval of the proposal would have an absence of amenity and town planning impacts; 9. Whether any non-compliance with the city plan; (a) warrants refusal of the proposed development; and/or (b) can be addressed by the imposition of lawful conditions. [94] The proposed development is consistent with reasonable community expectations in relation to land use, but the bulk height and scale of the proposal is a different matter. Public notification of the development application drew a number of adverse submissions. Not all of the grounds of objection were reflected in the issues ultimately litigated in these appeals, but a recurring issue was building height, including non-compliance with the height-uplift provision. The court also had the benefit of lay witness statements on the hearing of the appeal, which spoke to their opposition to the building of the height proposed on the subject site. Given the height uplift provision, it would not be reasonable to exclude the possibility that an application for development of the height proposed could be made and considered, but not necessarily that it would be approved, given the relevant facts and circumstances. [95] I have accepted that there is a need for the proposed development, including because it would provide increased choice housing. This is a relevant matter, but is not one of over-riding weight. The contribution of this single development would be limited. The quality and effectiveness of the architecture have been discussed in the context of the height uplift provision, as has amenity and impacts. [96] I accept that approval of the proposal would not create a precedent for other height uplift approvals elsewhere. It would however, cut across the planning strategy of limiting the circumstances in which additional height, above that shown on the BHOM, is permitted. It would also lead to the adverse consequences discussed in -- 39 of 40 -- 40 these reasons, which include a negative, rather than reinforcing, effect on local identity and sense of place and a negative effect on character and amenity. [97] I have found non-compliance with City Plan in relation to height. That non- compliance arises in circumstances where the proposal does not qualify for increased height under the height uplift provision. The extent to which conditions could address some issues has been acknowledged, but compliance cannot be achieved by the imposition of conditions. [98] The respondent’s attitude was that the height provisions of the City Plan are of such significance that the proposal ought not be approved should it be found (as I have found) to be contrary to those provisions by reason of not qualifying for the uplift sought. Whilst I acknowledge the importance of the height provisions, the position of the respondent is not one that necessarily applies as a matter of law and it is not one which I would adopt as a matter of course. In this case however, the considerations which lead me to conclude that the height uplift provision is not fulfilled, as discussed in these reasons, are sufficiently substantial and weighty that they are not, in my view, outweighed by the relevant matters relied upon by the co- respondent and to which I have referred. I would have reached the same conclusion had I found that the proposal failed any one of the criteria which I have found it to fail. Conclusion [99] For the reasons given, the appeals ought be allowed and the Council’s decision approving the development application subject to conditions replaced with a decision refusing the development application. -- 40 of 40 --