Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 [2024] QPELR 387

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 PARTIES: NICOLLE PATRICIA ARCHER AND WAYNE EDMUND PURCELL (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) AND JWZ PARTNERS DEVELOPMENT GROUP PTY LTD (ACN 634 372 526) AS TRUSTEE FOR JWZ UNIT TRUST (Co-respondent) AND CHIEF EXECUTIVE OF THE DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (Co-respondent by Election) FILE NO/S: 1892 of 2021 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 23 December 2022 DELIVERED AT: Brisbane HEARING DATE: 20 May 2022 (site inspection), 23 May 2022, and 6 – 10 June 2022 and further submissions received on 15, 17, 24 and 30 November, 2 and 19 December 2022 JUDGE: Kefford DCJ ORDER: The applications for costs thrown away by the adjournment of the hearing on 23 May 2022 are dismissed. The appeal is adjourned for further review, by telephone, on 31 January 2023 to allow the Respondent to prepare the necessary suite of conditions to be attached to an -- 1 of 143 -- 2 approval of the proposed development. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where the development application is for partial demolition and redevelopment of the Old Burleigh Theatre Arcade – where the proposed development is for a multiple dwelling building containing 30 units, food and drink outlets and shops – where the existing building on the subject land is locally heritage listed – where the height of the proposed development exceeds the height on the Building higher overlay map – where the appellants contend the development is unacceptable due to, inter alia, impact on heritage values and issues relating to traffic, density and built form – whether the proposed development will unacceptably impact on the heritage value of the locally-heritage-listed building – whether the built form of the proposed development is appropriate having regard to s 3.3.2.1(9) of City Plan – whether the proposed development will result in unacceptable traffic impacts – whether there are relevant matters that support approval – whether the proposed development should be approved in the exercise of the discretion PLANNING AND ENVIRONMENT – APPEAL – where the Chief Executive to the Department of State Development, Infrastructure, Local Government and Planning contends that the State development assessment provisions are a mandatory consideration – whether the appeal relates to the referral agency response – whether the Court must assess the development application against the State development assessment provisions LEGISLATION: Acts Interpretation Act 1954 (Qld) ss 14D, 32D Planning Act 2016 (Qld), ss 23, 43, 44, 45, 48, 54, 55, 56, 59, 60, 62, 65, 66, 229, sch 1, sch 2 Planning and Environment Court Act 2016 (Qld) ss 37, 43, 46, 47 Planning Regulation 2017 (Qld) ss 19, 20, 21, 22, 30, 31, 43, sch 10 Queensland Heritage Act 1992 (Qld) ss 112, 114, 122, 123 Queensland Heritage Regulation 2015 (Qld) sch 2 Statutory Instruments Act 1992 (Qld) ss 7, 23 Transport Infrastructure Act 1994 (Qld) ss 62, 70 CASES: Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors -- 2 of 143 -- 3 [2007] QPEC 112; [2008] QPELR 342, approved Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied Ashvan Investments Unit Trust v Brisbane City Council & Ors[2019] QPEC 16; [2019] QPELR 793, approved Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, distinguished Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, approved Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; (2017) QPELR 487, distinguished Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, approved Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409, distinguished I B Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 721, approved ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52; [2017] QPELR 1117, distinguished Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPELR 41, approved Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, applied K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, applied Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, approved McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, approved Murphy v Moreton Bay Regional Council & Anor; Australian -- 3 of 143 -- 4 National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, approved Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, approved Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41 [2021] QPELR 592, distinguished The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, approved Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, approved Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, approved Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] LGERA 82; [2014] QPELR 686, applied COUNSEL: D Jones (direct brief) for the Appellant (Archer) M Batty and H Stephanos for the Respondent C L Hughes KC and B Rix for the Co-respondent K Buckley for the Co-respondent by Election D O’Brien KC and K Buckley for the Co-respondent by Election (for supplementary submissions only) SOLICITORS: The Appellant (Purcell) was self-represented McCullough Robertson for the Respondent Low Doherty and Stratford for the Co-respondent Minter Ellison for the Co-respondent by Election TABLE OF CONTENTS Introduction .......................................................................................................................... 7 What are the issues to be determined? ................................................................................. 8 -- 4 of 143 -- 5 What does the proposed development entail? .................................................................... 12 What is the applicable framework for the decision? .......................................................... 14 What is the nature of the subject appeal? ....................................................................... 21 What are the Court’s powers on appeal? ........................................................................ 22 What is required for an assessment under s 45 of the Planning Act 2016? ................... 23 What are the relevant categorising instruments? ........................................................ 23 Are the State development assessment provisions assessment benchmarks? ............ 25 What are the matters prescribed by regulation for the assessment under s 45(5)(a)(ii)? .................................................................................................................................... 28 What are the relevant matters under s 45(5)(b)? ........................................................ 28 What is required for a referral agency assessment under s 55 of the Planning Act 2016? ........................................................................................................................................ 29 What is the appropriate approach to the assessment and decision-making process? ..... 29 Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre? ............................................................................................................... 30 What were the issues upon which the parties focussed in written submissions? ........... 30 How is the identification of the heritage values and cultural heritage significance to be approached? ........................................................................................................... 31 Is it necessary to achieve compliance with Temporary Local Planning Instrument No. 7 in the event of inconsistency with the Conservation Management Plan? ............... 33 Is compliance with the assessment benchmarks determined by ascertaining consistency with the Conservation Management Plan? ............................................. 37 Is there an error in Temporary Local Planning Instrument No. 7 and is the Conservation Management Plan deficient? ................................................................ 39 What do the relevant assessment benchmarks about heritage impacts require? ............ 41 What is the place of cultural heritage significance on the subject land? ........................ 46 What is the cultural heritage significance of the former De Luxe Theatre? .................. 48 What are the pre-1976 elements that are identified in the approved conservation management plan? .......................................................................................................... 52 Does the proposed development involve inappropriate removal or demolition of the fabric of the former De Luxe Theatre? ........................................................................... 54 Does the proposed development appropriately recognise, conserve, respect and protect the cultural heritage significance of the former De Luxe Theatre? ................................ 55 Is the proposed use compatible with the conservation and management of the cultural heritage significance of the former De Luxe Theatre? ................................................... 67 Conclusion re heritage assessment ................................................................................. 67 Is the built form of the proposed development appropriate? .............................................. 67 What is the surrounding built form context? .................................................................. 71 Does the building height of the proposed development accord with the intended building height pattern and the desired future appearance for the local area? ............... 73 Does the proposed development reinforce the local identity and sense of place? ......... 76 -- 5 of 143 -- 6 What informs the planned local identity and sense of place? .................................... 77 What informs the existing local identity and sense of place in this local area? ......... 79 Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable? ....................................................................................... 89 Does the proposed development contribute to a varied, ordered, and interesting local skyline? ........................................................................................................................... 91 Does the proposed development achieve an excellent standard of appearance of the built form and street edge? ..................................................................................................... 93 Does the proposed development contribute to housing choice and affordability? ......... 98 Does the proposed development protect important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features?........................................................................................................................ 107 Does the proposed development preserve the deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map? ............................................................................................................................. 109 Does the proposed development ensure the safe, secure, and efficient functioning of the Gold Coast Airport or other aeronautical facilities?..................................................... 110 Does the density of the proposed development exceed that shown on the Residential density overlay map? .................................................................................................... 111 Conclusion regarding built form .................................................................................. 113 Will the proposed access arrangements result in unacceptable traffic impacts? .............. 114 What is required by the State development assessment provisions and the assessment benchmarks in City Plan? ............................................................................................. 115 Is the proposed access to the public roadway safe? ..................................................... 118 Will the proposed access worsen the operating conditions of the Gold Coast Highway? ...................................................................................................................................... 124 Is there a difficulty because of the proximity of the access to the u-turn facility at Brake Street? ............................................................................................................ 124 Are the arrangements for the on-site manoeuvring of medium rigid vehicles acceptable? ............................................................................................................... 125 Conclusion regarding traffic impacts ........................................................................... 126 What is the significance of the properly made submissions and lay witness statements? 126 What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016? ................................................................................................................................ 128 Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9? ...................................... 131 Is the subject land well-suited for the proposed development? ........................................ 136 Is the proposed development supportive of and consistent with the Gold Coast Light Rail Stage 3 project? ................................................................................................................ 136 Will the proposed development positively impact on the local community by creating employment opportunities? .............................................................................................. 137 -- 6 of 143 -- 7 Is there a need for the proposed development? ................................................................ 137 Should the development application be approved in the exercise of the planning discretion? ........................................................................................................................ 139 Costs of the adjournment of the hearing on 23 May 2022 ............................................... 140 Conclusion regarding the proposed development ............................................................ 142 Introduction [1] Immediately adjacent the intersection of Goodwin Terrace and the Gold Coast Highway, at 64 Goodwin Terrace and 1823 Gold Coast Highway, Burleigh Heads, are two lots, Lots 1 and 2 on RP 72012 (“the subject land’). [2] Lot 1 on RP 72012 has an area of 1,181 square metres and fronts Goodwin Terrace. It contains a building of local heritage significance variously known as the former De Luxe Theatre building (“the former De Luxe Theatre”) and the Old Burleigh Theatre Arcade. [3] Lot 2 on RP 72012 immediately adjoins the southern boundary of Lot 1 and fronts the Gold Coast Highway. It has an area of 632 square metres and is vacant.1 Lot 2 is now properly described as Lots 1 and 2 on SP 313766. [4] The subject land was previously adjoined by a freehold lot on its western boundary that contained a service station. That lot is now part of the road reserve for the Gold Coast Highway. It is under development as a bus station, which is to be associated with the planned light rail station further to the west. The current plans for the light rail station indicate that the station will be in the road reserve for the Gold Coast Highway at a location that is proximate to the subject land. [5] The Co-respondent, JWZ Partners Development Group Pty Ltd, wants to redevelop the subject land. It proposes to demolish most of the former De Luxe Theatre to facilitate the redevelopment. [6] On 3 July 2020, JWZ Partners Development Group Pty Ltd made a development application to Gold Coast City Council (“the Council”) for a development permit for a material change of use for a multiple dwelling building containing 30 units, food and drink outlets and shops and a development permit for building works to authorise partial demolition of the former De Luxe Theatre (“the development application”). [7] Due to its proximity to a State controlled road, being the Gold Coast Highway, the development application required a referral agency assessment by the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning (“the Chief Executive”).2 The Chief Executive was a concurrence agency and was required to assess the development application against, amongst other things, the State development assessment provisions version 2.6, 1 Exhibit 3.02 p 78. 2 Planning Act 2016 s 54; Planning Regulation 2017 (Qld) (reprint current 27 March 2020) s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, items 1 and 2. -- 7 of 143 -- 8 which was in effect at the time the development application was made.3 On 20 April 2021, the Chief Executive provided a referral agency response (“the referral agency response”). The referral agency response required the Council to attach conditions, plans and specifications to any development approval given by the Council. A copy of the relevant conditions, plans and specifications were attached to the referral agency response.4 [8] The development application was impact assessable and, as such, required public notification. During the public notification period, the Council received about 86 properly made submissions opposing the proposed development, including a petition with about 181 signatories, and one submission in support. Ms Nicolle Archer, a resident of Tallebudgera, and Mr Wayne Purcell, a resident of Southport, (collectively referred to as “the Appellants”) each made a submission opposing the proposed development.5 [9] By decision notice dated 25 May 2021, the Council approved the development application, subject to conditions. The development approval attached the additional conditions, plans and specifications as required by the referral agency response. [10] On 22 July 2021, the Appellants commenced this appeal.6 Ms Archer contends that the proposed development will have an unacceptable impact on the heritage values of the former De Luxe Theatre, and that the built form of the proposed development is inappropriate. Mr Purcell joins with Ms Archer with respect to those matters. He also contends that the proposed development would have an unacceptable traffic impact on the Gold Coast Highway. [11] JWZ Partners Development Group Pty Ltd and the Council dispute those contentions. The allegations about unacceptable traffic impacts are also disputed by the Chief Executive. [12] The issue for me to determine is whether, in the exercise of the planning discretion, the development application should be approved. What are the issues to be determined? [13] Before dealing with the issues that remain to be determined, I wish to make some preliminary observations about the way the issues in dispute were identified and the written submissions provided by the parties addressing them. [14] In accordance with the usual practice of the Court,7 an agreed list of issues was tendered by JWZ Partners Development Group Pty Ltd, without opposition, as a 3 Planning Act 2016 s 55; Planning Regulation 2017 (Qld) (reprint current 27 March 2020) s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4. 4 Exhibit 3.42. 5 Exhibit 4.07 and Exhibit 4.08. 6 A single appeal was lodged on behalf of numerous appellants. Each of the other appellants withdrew as parties to the proceedings prior to the trial commencing or shortly after it had commenced. 7 Practice direction 2 of 2020 [25]. -- 8 of 143 -- 9 document identifying the focus of the dispute between the parties.8 It was admitted as Exhibit 1.11. [15] Exhibit 1.11 is divided into five parts, namely: (a) land use and development generally; (b) bulk, height, scale, form and appearance; (c) traffic; (d) heritage; and (e) other relevant matters. [16] Under each heading, the document contains a broadly worded question with compound propositions. The document then also sets out an extensive list of provisions of City Plan or a small handful of documents to support the proposition. The identification of the issues in this way created many difficulties. Three are particularly worthy of comment. [17] First, where provided, the list of provisions in Exhibit 1.11 was sizeable. Exhibit 1.11 did not reveal which of the provisions listed are the subject of allegations of non-compliance by the Appellants. Where those provisions contained compound propositions, as many did, Exhibit 1.11 did not reveal the extent of the provision that was in dispute.9 For example, with respect to land use and development, there was a list of 24 provisions of City Plan. It was only through my questioning of the Appellants during final submissions that the provisions (and the parts thereof) with which the Appellants alleged non-compliance were clarified.10 On the topic of land use and development, it is only five provisions in the list of 24. [18] Further, despite having identified an imposing list of provisions said to be relevant to the real issues in dispute, in its written submissions JWZ Partners Development Group Pty Ltd did not refer to many of them. [19] Second, where Exhibit 1.11 refers to a small handful of documents, the Exhibit does not reveal whether there is a dispute about: (a) the status of the document (as an assessment benchmark or otherwise); nor (b) whether the whole document is said to be relevant to the assessment process under s 45 of the Planning Act 2016, or only part of it, or the basis on which it is otherwise said to be relevant. 8 Pursuant to an order made by me on 6 June 2022, with the agreement of all the parties, the issues in the trial were limited to the issues identified in Exhibit 1.11. The hearing proceeded on that basis. 9 For example, one of the provisions in issue is performance outcome PO1 of the Medium density residential zone code. That provision requires setbacks that are sufficient to address several separate and distinct planning issues including the protection of adjacent amenity, the provision of access around the building, the provision of a contribution to the streetscape and the provision of on-site car parking. 10 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7 and 19-20. -- 9 of 143 -- 10 [20] This broad-brush approach was adopted with respect to the topic of heritage, about which Exhibit 1.11 identifies the issue as follows: “5. Whether the proposed development represents an appropriate redevelopment of a local heritage place having regard to the following: (a) The documents which came into effect prior to lodgment of the subject application on 3 July 2020, being: (i) Temporary Local Planning Instrument (TLPI) No. 7, which came into effect on 30 July 2019 (and ceased effect on 30 July 2021); (ii) the Entry of the building on the Gold Coast Heritage Register on 6 December 2019; (iii) Council’s endorsement on 18 June 2020 of the Conrad Gargett Final Conservation Management Report for the former “De Luxe Theatre/Old Burleigh Theatre Arcade” Conservation Management Plan (the CMP); (iv) the Heritage Overlay Code in City Plan; and (b) TLPI No. 9, which commenced on 30 July 2021 (after the lodgment of the subject application on 3 July 2020) and the weight to be accorded that document, particularly as it was drafted and commenced effect after the Council’s endorsement of the CMP.” [21] This approach provided less clarity about the nature of the dispute than the original court documents. It also invited confusion about the real issues in dispute. This is demonstrated by my exchange with Mr Purcell during his oral submissions, where he referred to a provision of the Heritage overlay code that was not the focus of an allegation in the Notice of Appeal and about which he had not questioned the relevant witnesses during the trial.11 When questioned about its relevance, he pointed to the broad wording in Exhibit 1.11, before ultimately abandoning the issue. [22] Third, Exhibit 1.11 fails to distinguish between the mandatory assessment against assessment benchmarks and the discretion to have regard to relevant matters. Consequently, the document invites the Court to ask and answer the wrong questions. This difficulty flowed through to an error in approach by the parties to which I refer in more detail in paragraphs [138] to [144] below. It also left me in the unenviable position of having little assistance identifying the evidence relevant to my assessment of the proposed development against the relevant assessment benchmarks in the Heritage overlay code: an exercise which is mandated by s 45(5)(a)(i) of the Planning Act 2016. 11 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 22-4. -- 10 of 143 -- 11 [23] The lack of assistance provided by JWZ Partners Development Group Pty Ltd in framing the issues in Exhibit 1.11 was exacerbated by a deficiency in the level of assistance provided by the parties in the written submissions. [24] In Peach v Brisbane City Council & Anor,12 His Honour Judge Williamson QC observed: “[71] I accept there will be cases where the nature of the development proposed may result in an imposing number of non-compliances with a planning scheme. Where a party elects to nominate such a list of non-compliances, it must accept the consequence that attaches to that election. By nominating and advancing an imposing list of non-compliances, a party will be expected to provide commensurate assistance to the Court in relation to each alleged non-compliance, particularly where the planning provisions comprise compound propositions. The assistance will include detailed written submissions. [72] To assist the Court, written submissions are ordinarily expected to: (1) identify each of the planning scheme provisions in issue; (2) make submissions, where required, as to the proper interpretation of each provision in issue, particularly where a provision contains compound propositions; (3) identify the evidence relied upon to establish compliance, or non-compliance with each provision in issue; and (4) provide some analysis of the evidence, and where relevant, identify why the evidence relied upon should be preferred to other contrary evidence. [73] Points (2), (3) and (4) above will not be discharged by a party asserting compliance or non-compliance with a planning scheme, and seeking to establish this by merely repeating the words of the planning provision relied upon. An assertion of this kind, absent any reference to, or analysis of the evidence, is of little assistance. It leaves the Court with the unenviable task of analysing all of the evidence to determine what is relied upon to establish compliance or non-compliance with an assessment benchmark. It also leaves the Court to determine, for itself, why a party contends particular evidence should be accepted in preference to contrary evidence. This, in my view, is unsatisfactory.”13 [25] I agree with His Honour’s observations. They are equally apposite for a party with the onus that provides a list of provisions of a planning scheme on which it relies to support approval of its development application. The written submissions for Ms Archer and JWZ Partners Development Group Pty Ltd were deficient in this regard. [26] The deficiencies with Exhibit 1.11 and the written submissions had material consequences for the resources of the Court. They led me to spend hours reading, 12 [2019] QPEC 41; [2020] QPELR 54, 67 [72]. 13 Peach v Brisbane City Council & Anor [2019] QPEC 41; [2020] QPELR 54, 67 [71]-[73]. -- 11 of 143 -- 12 and contemplating, the many provisions of City Plan referred to and the thousands of pages in the almost 200 exhibits tendered during the trial so that I might be confident that I had fully considered all those issues at play.14 This, in turn, caused me considerable delay in producing these reasons.15 [27] Having regard to the difficulties referred to above, the issues ventilated in the written submissions, and the confinement (to an extent) of the issues in the oral submissions on behalf of the Appellants,16 it seems to me that the issues that remain to be determined can be broadly summarised as follows: 1. Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre? 2. Is the built form of the proposed development appropriate? 3. Will the proposed access arrangements result in unacceptable traffic impacts? 4. What is the significance of the properly made submissions and lay witness statements? 5. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016? 6. Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9. 7. Is the subject land well-suited for the proposed development? 8. Is the proposed development supportive of, and consistent with, the Gold Coast Light Rail Stage 3 project? 9. Will the proposed development positively impact on the local community by creating employment opportunities? 10. Is there a need for the proposed development? 11. Should the development application be approved in the exercise of the planning discretion? [28] Before turning to consider each of those issues, it is helpful to understand the nature of the proposed development. What does the proposed development entail? [29] The proposed development involves the partial demolition and redevelopment of the existing, locally-heritage-listed building on the northern extent of the subject land, being the former De Luxe Theatre. The theatre on the subject land ceased some time ago, in mid-1966, having operated for about 36 years prior. No substantive extant built form from the theatre, such as the auditorium, remains. Those parts of 14 The peril in not doing so is highlighted by the observations of Burns J in Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6 at [48] to [51]. 15 It also impacted other litigants of this Court, as this matter consumed valuable time that could have otherwise been used to address reserved judgments for other appeals. 16 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7 and 19-20. -- 12 of 143 -- 13 the built form that were material to use of the building for a theatre were entirely removed as part of a redevelopment of the subject land in the mid-1970s. [30] The heritage retention and demolition component of the proposed development involves: (a) the retention and re-use of the brick part of the existing structure that fronts Goodwin Terrace, which was constructed around 1955. It is described in the evidence as “the front bookend”; (b) the demolition of the middle part of the existing structure, which was constructed around 1977; (c) the demolition of the brick part of the existing structure that sits in about the middle of the subject land, which was constructed around 1955 and is described in the evidence as “the rear bookend”. [31] The proposed redevelopment of the subject land also involves a 14-storey (43.5- metre-high) building containing: (a) retail and food and beverage tenancies on the ground floor, which are split across four tenancies and have a total area of 394.5 square metres; (b) extensive outdoor dining areas associated with the food and beverage tenancies; (c) a “double height” atrium dining area within the development, located immediately behind the retained front bookend; (d) 30 residential units split across the 13 “above ground” levels, comprising: (i) four apartments containing two bedrooms; (ii) 20 apartments containing three bedrooms; and (iii) six apartments containing four bedrooms; (e) communal residential facilities (including a pool and gymnasium), which are located on top of a three-storey podium at the southern part of the development (with no tower structure above); (f) three levels of basement car parking, which provide 84 car parking spaces for residents, residents’ guests and users of the retail and dining tenancies and bicycle parking; and (g) heritage interpretation works designed to increase the prominence, and remembrance, of the history of the place. [32] The first three levels of the development have a podium form, commensurate with the three-storey-high retained front bookend.17 The podium form replicates the extent of the former theatre building and extends further southward in a differing style. Above that podium is the 11-storey tower form. The tower form is setback from the Goodwin Terrace frontage by four metres when measured to the edge of the balconies and nine metres when measured to the face of the substantive building. It is setback 31.5 metres from the southern property boundary and about 17 See, for example, Exhibit 2.02 pp 24 and 26. -- 13 of 143 -- 14 six metres from the eastern property boundary where it adjoins a property containing a building known as “La Pacifique”. There is no setback from the western property boundary. [33] All vehicular access will be to the Gold Coast Highway. The driveway access is proposed at the most south-easterly part of the subject land. It is in the same location as the present vehicular access to the subject land. Pedestrian access to the subject land will be facilitated via Goodwin Terrace and the Gold Coast Highway to the west, adjacent to the proposed bus and light rail transport hub. What is the applicable framework for the decision? [34] An appeal is a creature of statute. To understand the proper function of this Court on appeal, including the applicable framework for the Court’s decision, it is necessary to understand the right of appeal that has been invoked and to look to the language of relevant statutes in that regard.18 [35] Of particular interest in this appeal is whether the Court is required to undertake the assessment required to be carried out by the referral agency under the Planning Act 2016 (Qld). [36] Here, the appeal was commenced by individuals who were eligible submitters for the development application.19 There are two rights of appeal conferred on eligible submitters in relation to a development application under s 229 and sch 1, s 1(4) and table 2, items 2 and 3 of the Planning Act 2016. They are: “2. Eligible submitter appeals For a development application or change application other than an excluded application, an appeal may be made against the decision to approve the application, to the extent the decision relates to– (a) any part of the development application or change application that required impact assessment; or (b) a variation request. 3. Eligible submitter and eligible advice agency appeals For a development application or change application other than an excluded application, an appeal may be made against a provision of the development approval, or a failure to include a provision in the development approval, to the extent the matter relates to– (a) any part of the development application or change application that required impact assessment; or (b) a variation request.” (emphasis added) 18 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 418 [89]. 19 An eligible submitter is a person who makes a properly made submission about a development application; who has not withdrawn the submission before the development application is decided; and who has not given the assessment manager a notice stating that the person will not be appealing: see the definitions of “submitter” and “eligible submitter” in sch 2 of the Planning Act 2016. -- 14 of 143 -- 15 [37] The Notice of Appeal does not state the legislative basis for the appeal. [38] In the Supplementary Submissions of the Co-respondent by Election, the Chief Executive submits that the right of appeal that was exercised by the Appellants was that conferred under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016. That is, the Chief Executive says that this is an appeal against the decision made by the Council under s 60 of the Planning Act 2016.20 It further submits that the Court is tasked to exercise the original jurisdiction for the assessment of a development application. It says to do so, the Court must undertake the assessment required to be carried out by the assessment manager and the referral agency. The Chief Executive submits that this is implicit from two things. First, the fact that, under s 43 of the Planning and Environment Court Act 2016 (Qld), the appeal is a hearing anew. Second, s 46(5) of the Planning and Environment Court Act 2016 states that the Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act 2016) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions. The Chief Executive says that it follows that the State development assessment provisions are a matter against which the development application must be assessed by the Court.21 [39] On the Chief Executive’s approach, there is no difference between the appeal rights under items 2 and 3 of table 2 in sch 1 of the Planning Act 2016. The Chief Executive relies on the reference to the appeal being by way of hearing anew to justify the Court revisiting every aspect of the development application process. [40] I disagree with the Chief Executive’s analysis.22 It ignores that s 43 of the Planning and Environment Court Act 2016 (Qld) does not only state that an appeal is by way of hearing anew. It states: “43 Nature of appeal in general Subject to any relevant enabling Act, an appeal to the P&E Court is by way of hearing anew.” (emphasis added) [41] It is necessary to carefully consider the appeal right conferred under the relevant enabling Act. 20 Exhibit 13.03 p 2. 21 Exhibit 13.03 p 2. 22 Even if I am wrong about this, it does not affect the outcome in this appeal as, either way, the nature and extent of compliance with the State development assessment provisions is a matter to which regard may be had. Further, for reasons provided below, I am satisfied that there is compliance with the State development assessment provisions in this case. Their legal status does not change that outcome, nor change my view that they do not stand in the way of an approval. -- 15 of 143 -- 16 [42] Under item 2 of table 2 in sch 1 of the Planning Act 2016, an appeal may be made against “the decision to approve the application”. The power to make a decision to approve the application is conferred by s 60 of the Planning Act 2016, which states: “60 Deciding development applications (1) This section applies to a properly made application, other than a part of a development application that is a variation request. … (3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide— (a) to approve all or part of the application; or (b) to approve all or part of the application, but impose development conditions on the approval; or (c) to refuse the application. (4) The assessment manager must approve any part of the application for which, were that part of the application the subject of a separate development application, there would be a different assessment manager— (a) other than to the extent a referral agency for the development application directs the refusal of the part under section 56(1)(c); and (b) subject to any requirements of the referral agency under 56(1)(b). (5) The assessment manager may give a preliminary approval for all or part of a development application, even though the development application sought a development permit. …” [43] The relevant decision is that of the assessment manager. [44] Pursuant to s 59(3) of the Planning Act 2016, and subject to s 62, the assessment manager’s decision is required to be based on the assessment of the development carried out by the assessment manager. Section 45 of the Planning Act 2016 specifies the assessment that must be carried out by the assessment manager. -- 16 of 143 -- 17 [45] A response received from a referral agency limits the assessment manager’s decision-making powers referred to in ss 59(3) and 60(3) and (4) in the manner identified in ss 56 and 62 of the Planning Act 2016. They relevantly state: “56 Referral agency’s response (1) After assessing the development application, the referral agency must decide— (a) to tell the assessment manager that the agency has no requirements for the application; or (b) to direct the assessment manager to do any or all of the following— (i) to give any development approval subject to stated development conditions; (ii) to give any development approval for only a stated part of the application; (iii) to give any development approval only as a preliminary approval; (iv) to impose a stated currency period for a development approval given; or (c) to direct the assessment manager to refuse the application for stated reasons. … (4) The referral agency must give a notice (a referral agency’s response) about the referral agency’s decision to— (a) the applicant; and (b) the assessment manager. … 62 Complying with referral agency’s responses Other than to the extent a referral agency’s response provides advice, an assessment manager’s decision must— (a) comply with all referral agency’s responses; and (b) if a referral agency’s response requires conditions to be imposed on a development approval—include the conditions exactly as stated in the response.” [46] As such, where the eligible submitter appeal is commenced under item 2 of table 2 in sch 1 of the Planning Act 2016, the Court undertakes the assessment under s 45 as though it was the assessment manager. It is not required to undertake the assessment carried out by the referral agency for an appeal against the assessment manager’s decision. This is supported by two further matters of context. -- 17 of 143 -- 18 [47] First, for this type of appeal, the assessment manager is a respondent to the appeal and the applicant for the development application is a co-respondent, but there is no requirement to name the concurrence agency as a co-respondent to the appeal.23 That is not the case for an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016. [48] Second, this construction is supported by s 46 of the Planning and Environment Court Act 2016, which, relevantly, states: “46 Nature of Appeal (1) If, for a Planning Act appeal, the appellant was the applicant or a submitter for a development application the subject of the appeal, section 43 applies subject to subsections (2) to (5). (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 (7) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.” (emphasis added) [49] There is no stipulation, in s 46 of the Planning and Environment Court Act 2016 or elsewhere, that s 55 of the Planning Act 2016 applies for the Court’s decision as if the Court were a referral agency. [50] That said, eligible submitters are not denied the right to appeal the referral agency’s decision. The relevant appeal right with respect to such matters is that under item 3 of table 2 in sch 1 of the Planning Act 2016. That provision confers a right to appeal against “a provision of the development approval, or a failure to include a provision in the development approval”. [51] In relation to a development approval, sch 2 of the Planning Act 2016 defines “provision” as “all words or other matters forming, or forming part of, the approval”. [52] The types of matters that will from part of an approval is informed by s 63 of the Planning Act 2016, which states: “63 Notice of decision (1) The assessment manager must give a decision notice about the assessment manager’s decision to— … 23 Planning Act 2016 s 229 and sch 1, s 1(4) and table 2, item 2. Cf Planning Act 2016 s 229 and sch 1, s 1(4) and table 2, item 3. -- 18 of 143 -- 19 (e) if a negotiated decision notice is not given in relation to the decision—each principal submitter; and … (2) The notice must be in the approved form and state— (a) whether the application is approved, approved in part or refused; and (b) if the application is approved in part—the extent to which the application is approved; and (c) if the application is approved or approved in part—whether the approval is a preliminary approval, a development permit, or both; and (d) if section 64(5) applies—that the assessment manager is taken to have approved the application under that subsection; and (e) if development conditions are imposed— (i) the conditions; and (ii) for each condition—whether the condition was imposed directly by the assessment manager or required to be imposed under a referral agency’s response; and (iii) for each condition imposed under a referral agency’s response—the referral agency’s name; and (iv) for each condition about infrastructure under chapter 4—the provision of this Act under which the condition was imposed; and (f) if the application is refused— (i) whether the assessment manager was directed to refuse the application and, if so, the referral agency directing refusal and whether the refusal was solely because of the direction; and (ii) for a refusal for a reason other than because of a referral agency’s direction—the reasons for the refusal; and (g) for a variation approval—the variations; and (h) the name, residential or business address, and electronic address of each principal submitter; and -- 19 of 143 -- 20 (i) the day the decision was made. (3) The notice must also state, or be accompanied by, the documents prescribed by regulation. …” (emphasis added) [53] Under s 43 of the Planning Regulation 2017, a decision notice for a development application that is approved must also be accompanied by any approved plans, specifications, or drawings for the development approval. [54] As such, where the eligible submitter appeal is commenced under item 3 of table 2 in sch 1 of the Planning Act 2016, the appeal may relate to, amongst other things: (a) a condition that was required to be imposed under a referral agency’s response; (b) a failure to include a condition in the development approval; and (c) a failure by a referral agency to direct refusal. [55] For an appeal of that nature, depending on the grounds of the appeal, in hearing the appeal anew, the proper function of the Court may be informed by: (a) ss 55 and 56 of the Planning Act 2016, which addresses the requirements for the referral agency’s assessment; and (b) ss 65 and 66 of the Planning Act 2016, which govern permitted and prohibited development conditions. [56] That the Court may be required to stand in the shoes of a referral agency for an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016 is supported by two further matters of context. [57] First, for an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016, the assessment manager is a respondent to the appeal and the applicant for the development application is a co-respondent.24 In addition, the concurrence agency is to be named as a co-respondent to the appeal if the appeal is about a concurrence agency’s referral response. [58] Second, this construction is supported by s 46(5) of the Planning and Environment Court Act 2016, which states: “(5) The P&E Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions.” (emphasis added) 24 Planning Act 2016 s 229 and sch 1, s 1(4) and table 2, items 2 and 3. -- 20 of 143 -- 21 What is the nature of the subject appeal? [59] Pursuant to s 230 of the Planning Act 2016, an appeal to this Court is commenced by lodging a notice of appeal that is in the approved form and succinctly states the grounds of appeal. [60] On 22 July 2021, the Appellants commenced this appeal by lodging their Notice of Appeal with the registrar of this Court. The Notice of Appeal named the Council as respondent and JWZ Partners Development Group Pty Ltd as co-respondent. It did not name the Chief Executive as a co-respondent.25 The Chief Executive later elected to join the appeal pursuant to s 230(3)(f) and sch 1, s 1(7) of the Planning Act 2016. [61] In the prayer for relief, the Appellants’ Notice of Appeal records that the Appellants appeal against: “… the decision of the Respondent, dated 25 May 2021, to approve subject to conditions, the Co-Respondent’s development application …”26 [62] The relief sought is that the appeal be allowed, and the development application be refused. [63] As I have already mentioned in paragraph [7] above, the Chief Executive was a referral agency for the development application. Its referral agency response required the Council to attach conditions, plans and specifications to any development approval, a copy of which were attached to the referral agency response.27 [64] Neither the prayer for relief nor the grounds of appeal in the Notice of Appeal refer to a provision of the development approval that relates to the referral agency response, or to a failure to include a provision in the development approval having regard to the referral agency assessment requirements. The Notice of Appeal makes no reference to the Chief Executive’s referral agency response. [65] The absence of reference to those provisions of the decision notice that relate to the referral agency response in the Notice of Appeal together with the failure to name the Chief Executive as a co-respondent is a strong indication that the appeal was commenced under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016, i.e., an appeal against the decision made by the Council, as assessment manager, under s 60 of the Planning Act 2016. [66] In her written submissions, Ms Archer confirms her intention to appeal only against the Council’s decision. She says her appeal was commenced under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016.28 [67] Mr Purcell’s intention is not so limited. It was clear from Mr Purcell’s conduct in the appeal that he seeks to take issue with the extent of compliance with the State 25 Exhibit 1.01. 26 Exhibit 1.01. 27 Exhibit 3.42. 28 Outline of Argument on behalf of the Appellants p 7 [4.4]. -- 21 of 143 -- 22 development assessment provisions. In effect, he seeks to challenge a provision of the development approval, being that part of the decision notice that records that the Chief Executive directed the Council to give any development approval subject to the stated development conditions. [68] Further, the desire to challenge the decision insofar as it relates to the Chief Executive’s assessment is apparent from the grounds of appeal wherein the Appellants allege that the proposed development should be refused having regard to provisions of the State development assessment provisions.29 [69] In this case, I am persuaded that: (a) it is appropriate to proceed on the basis that Mr Purcell has exercised his right of appeal under both item 2 and item 3 in table 2 of sch 1 of the Planning Act 2016; and (b) the failure to name the Chief Executive as a co-respondent should be excused under s 37 of the Planning and Environment Court Act 2016. [70] My decision in that regard is informed by two matters. [71] First, in the notice of the decision provided to JWZ Partners Development Group Pty Ltd, the Council complied with its obligations in s 63(2)(e)(ii) and (iii) of the Planning Act 2016 by attaching a copy of the Chief Executive’s referral agency response to the decision notice. However, it failed to do so when it gave the decision notice to the Appellants. This is acknowledged by the Council.30 As such, the Council failed to fully comply with its obligations under s 63 of the Planning Act 2016. This explains the absence of a challenge in the Notice of Appeal to the contents of the Chief Executive’s referral agency response. [72] Second, there is no prejudice to any party to proceed in this way. The Notice of Appeal referred to provisions of the State development assessment provisions against which the Chief Executive was required to assess the development application. It alleged non-compliance with them. As such, the parties were on notice that the Appellants sought to agitate for refusal by reference to the State development assessment provisions. The case was prepared by all on that basis.31 What are the Court’s powers on appeal? [73] Pursuant to s 47 of the Planning and Environment Court Act 2016, the Court has power to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the entity that made the decision with directions the Court considers appropriate. This confers a broad discretion on the Court in determining the appeal. 29 Exhibit 1.01 p 6. 30 Exhibit 11.07 p 1. 31 Planning Act 2016 s 55; s 22 of the Planning Regulation 2017 (Qld) (current as at 27 March 2020), s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4. -- 22 of 143 -- 23 [74] The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.32 The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provide relevant guidance in that respect. [75] In conducting the appeal as a hearing anew, the Court hears the matter afresh and is not limited to consideration of the material before the referral agency or the assessment manager.33 The Court can overturn the decision appealed against regardless of whether the Appellants can demonstrate that, having regard to all the evidence before the Court, the decision is the result of some legal, factual, or discretionary error on the part of the assessment manager or the referral agency.34 What is required for an assessment under s 45 of the Planning Act 2016? [76] As I have mentioned in paragraph [8] above, the development application required impact assessment. Impact assessment was required for all parts of the development application.35 As such, under s 45 of the Planning Act 2016, the assessment: (a) must be carried out: (i) against the assessment benchmarks in a categorising instrument for the development; and (ii) having regard to any matters prescribed by regulation; and (b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise. [77] To the extent that the assessment is against or having regard to a statutory instrument (such as a categorising instrument) or another document applied, adopted, or incorporated (with or without changes) in a statutory instrument, the assessment must be against or having regard to the statutory instrument or other document as in effect when the development application was properly made.36 However, the Court may give the weight it considers is appropriate, in the circumstances, to amendments or replacements to statutory instruments and new statutory instruments that commence after the development application is properly made but before it is decided by the Court.37 What are the relevant categorising instruments? [78] A categorising instrument is a regulation or local categorising instrument that sets out the assessment benchmarks that an assessment manager must assess assessable 32 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20. 33 See Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, [145]. 34 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 597 [57]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180-1 [23]. 35 See Exhibit 5.01 p 45: City Plan s 5.2, p 46: City Plan ss 5.3.1 and 5.3.2, p 49: City Plan s 5.5, p 50: City Plan Table 5.5.2 and Exhibit 5.03 p 7. 36 Planning Act 2016 ss 45(6) and (7). 37 Planning Act 2016 s 45(8); Planning and Environment Court Act 2016 s 46(2). -- 23 of 143 -- 24 development against.38 An assessment benchmark does not include, amongst other things, a matter of a person’s opinion or a person’s circumstances, financial or otherwise.39 [79] Gold Coast City Plan is a categorising instrument containing assessment benchmarks relevant to the assessment called for under s 45 of the Planning Act 2016. The development application was properly made on 3 July 2020. At that time, Gold Coast City Plan 2016 version 7 (“City Plan”) was in effect.40 The assessment must be undertaken against that version.41 [80] The Court may also give weight to any amendments to City Plan. In this case, while City Plan has changed, the Council submits that there are no relevant or meaningful changes between the versions.42 That was not disputed by any party. As such, there are no relevant amendments to City Plan raised for consideration in this appeal. [81] Temporary Local Planning Instrument No. 7 (Protection of the Old Burleigh Theatre Arcade) 2019 (“Temporary Local Planning Instrument No. 7”) is also a categorising instrument containing assessment benchmarks that was in effect at the time that the development application was properly made. As such, the impact assessment must be carried out against the assessment benchmarks in Temporary Local Planning Instrument No. 7. [82] Temporary Local Planning Instrument No. 7 ceased to have effect on 29 July 2021, being two years after it commenced.43 [83] Temporary Local Planning Instrument No. 9 (Protection of the Old Burleigh Theatre Arcade) 2021 (“Temporary Local Planning Instrument No. 9”) came into effect on 30 July 2021, i.e., after the development application was properly made.44 [84] Ms Archer submits: “4.40 The TLPI expired on 30 June 2021 (sic). As a result, the Temporary Local Planning Instrument No 9 (Protection of the Old Burleigh Theatre Arcade) 2021 (TLPI9) was created to replace the TLPI. TLPI9 came into effect on 30 June 2021. 4.41 Importantly the TLPI9 only came into effect after the Development Application was decided by the Respondent. Accordingly the assessment manager is unable to rely on s 45(8) of the PA to afford any weight to the TLPI9.”45 [85] I do not accept that the Court cannot afford any weight to Temporary Local Planning Instrument No. 9. Pursuant to s 46(2) of the Planning and Environment Court Act 2016, the Court assesses the development application under s 45 of the 38 Planning Act 2016 s 43(1). 39 Planning Act 2016 s 43(2). 40 See Exhibits 3.12 and 5.1. 41 Planning and Environment Court Act 2016 s 46(2)(a); Planning Act 2016 s 45(7). 42 Written Submissions on behalf of the Respondent p 8 [34]. 43 Planning Act 2016 s 23(6). 44 Planning Act 2016 s 45(8). 45 Outline of Argument on behalf of the Appellants p 14 [4.41]. -- 24 of 143 -- 25 Planning Act 2016 as if it were the assessment manager except that it may give the weight it considers is appropriate, in the circumstances, to new statutory instruments that commence after the development application is properly made but before it is decided by the Court. [86] Temporary Local Planning Instrument No. 9 is a statutory instrument46 that commenced before I published these reasons for judgment. I may give it the weight that I consider appropriate in the circumstances. Are the State development assessment provisions assessment benchmarks? [87] The document defining the issues in dispute47 refers to the State development assessment provisions.48 Mr Purcell and Ms Archer submit that the State development assessment provisions are assessment benchmarks for the development application.49 [88] In support of his submission, Mr Purcell relies on s 30(1) of the Planning Regulation 2017, which states: “For section 45(5)(a)(i) of the Act, the impact assessment must be carried out against the assessment benchmarks for the development stated in schedules 9 and 10.” [89] Ms Archer makes a similar submission, except that she refers to s 31(1) of the Planning Regulation 2017, which states: “For section 45(5)(a)(ii) of the Act, the impact assessment must be carried out having regard to— (a) the matters stated in schedules 9 and 10 for the development.” [90] Mr Purcell and Ms Archer note that sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 lists the State development assessment provisions as “matters referral agency’s assessment must be against”. [91] The submissions of Mr Purcell and Ms Archer about the contents of the Planning Regulation 2017 are accurate. However, it does not follow that the State development assessment provisions are assessment benchmarks for the purpose of s 45(5)(a)(i) of the Planning Act 2016. Care must be taken to consider those provisions to which Mr Purcell and Ms Archer refer in context. 46 Statutory Instruments Act 1992 (Qld) s 7; Planning Act 2016 s 23. 47 The issues in dispute were originally defined by reference to paragraphs 7 and 8 of the Notice of Appeal (Exhibit 1.01), the Respondent’s List of Matters in Support of Approval (Exhibit 1.04) and the Co-Respondent’s List of Matters Supporting Approval (Exhibit 1.03): see paragraph 1 of the Order of Rackemann DCJ made 9 December 2021 (Exhibit 1.05). However, by the time the hearing commenced the issues had narrowed and, in accordance with paragraph 25 of the Planning and Environment Court Practice Direction 2 of 2020, at the commencement of the trial they were identified by reference to a list of issues prepared for the trial (Exhibit 1.11). With the consent of the parties, during the opening, I ordered that the issues for the trial would be defined by reference to Exhibit 1.11: Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 9. 48 Exhibit 1.11 p 2 [4(i)] 49 Further Submissions on behalf of the Appellant (Ms Archer) p 4 [18]. -- 25 of 143 -- 26 [92] When one considers the Planning Regulation 2017 more broadly, it becomes apparent that sch 9 and sch 10 of the Planning Regulation 2017 have more than one purpose. For example: (a) pursuant to s 44(5) of the Planning Act 2016 and ss 19 and 20 of the Planning Regulation, sch 10 categorises development as prohibited development and assessable development; (b) pursuant to s 45(2) of the Planning Act 2016 and s 20 of the Planning Regulation, sch 9 and sch 10 state the category of assessment required for assessable development stated in the schedules; (c) pursuant to s 54(2)(a) of the Planning Act 2016 and s 22(1)(a) of the Planning Regulation, sch 9 and sch 10 prescribe the referral agency for the development applications stated in the schedules; and (d) pursuant to s 55(2) of the Planning Act 2016 and s 22(1)(b) of the Planning Regulation, sch 9 and sch 10 prescribe the matters the referral agency: (i) may or must assess the development application against; and (ii) may or must assess the development application having regard to. [93] Further, when one looks at the whole of sch 9 and sch 10, it is apparent that care is taken to identify the role of each particular provision of the schedule through headings and descriptions in tables. [94] Relevantly, in terms of the provision in sch 10 relied on by Mr Purcell and Ms Archer: (a) pt 9 is headed “Infrastructure-related referrals”; (b) div 4 is headed “State transport infrastructure—referral agency’s assessment”; (c) subdiv 2 is headed “State transport corridors and future State transport corridors”; and (d) table 4 is as follows: Table 4—Material change of use of premises near a State transport corridor that is a future State transport corridor Column 1 Column 2 1 Development application requiring referral Development application for a material change of use other than an excluded material change of use, that is assessable development under a local categorising instrument, if all or part of the premises— (a) are within 25m of a State transport corridor; or (b) are a future State transport -- 26 of 143 -- 27 corridor; or (c) are— (i) adjacent to a road that intersects with a State- controlled road; and (ii) within 100m of the intersection 2 Referral agency The chief executive 3 Limitations on referral agency’s powers – 4 Matters referral agency’s assessment must be against The State development assessment provisions 5 Matters referral agency’s assessment must have regard to – 6 Matters referral agency’s assessment may be against – 7 Matters referral agency’s assessment may have regard to – 8 Fee for referral– … … [95] It is in the context referred to above that the reference to the State development assessment provisions in sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 is to be understood. It is a prescription of the matters against which a referral agency’s assessment must be carried out where the referral agency is the Chief Executive in relation to a development application of the type identified in sch 10, pt 9, div 4, subdiv 2, table 4, item 1.50 That is, the prescription is made pursuant to s 55 of the Planning Act 2016 and s 22 of the Planning Regulation 2017 (Qld) (current as at 27 March 2020). Sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 does not prescribe the State development assessment provisions as assessment benchmarks that an assessment manager must assess assessable development against for the purpose of s 45(5)(a)(i) of the Planning Act 2016 and s 30(1) of the Planning Regulation 2017. It also does not prescribe the State development assessment provisions as a matter to which an assessment manager must have regard for the purpose of s 45(5)(a)(ii) of the Planning Act 2016 and s 31(1)(a) of the Planning Regulation 2017. 50 By way of contrast, see sch 10, pt 1 of the Planning Regulation 2017. -- 27 of 143 -- 28 What are the matters prescribed by regulation for the assessment under s 45(5)(a)(ii)? [96] Section 45(5)(a)(ii) requires an assessment that must be carried out having regard to any matter prescribed by regulation. [97] Section 31 of the Planning Regulation 2017 identifies matters to which regard must be had in the assessment of the development application. The matters identified therein are required to be considered only to the extent they are considered relevant to the development.51 [98] Those matters that the parties have relied on in this case are: (a) any development approval for, and any lawful use of, the premises or adjacent premises;52 and (b) the common material,53 including the Chief Executive’s referral agency response54 and the properly made submissions about the development application.55 What are the relevant matters under s 45(5)(b)? [99] Section 45(5)(b) of the Planning Act 2016 provides that an assessment may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise. Although examples are given, the term “relevant matter” is not defined. In an appropriate case, the absence of a negative impact or detrimental effect may be considered as a relevant matter.56 Personal circumstances of a person (including a corporation),57 financial or otherwise, are not a relevant matter to which regard may be had.58 [100] Mr Purcell contends that an assessment of the development application against the State development assessment provisions is a matter that informs the appropriate outcome in this case. Although those provisions are not assessment benchmarks that the Court must assess the development application against under s 45 of the Planning Act 2016,59 the referral agency response, and those matters that were relevant to the referral agency’s assessment under s 55 of the Planning Act 2016, are relevant matters for the purpose of s 45(5)(b) of the Planning Act 2016. Further, they are relevant to the extent that the appeal proceeds as an appeal under item 3 of table 2 in sch 1 of the Planning Act 2016. 51 Planning Regulation 2017 s 31(2). 52 Planning Regulation 2017 s 31(1)(f). 53 Planning Regulation 2017 s 31(1)(g). 54 Exhibit 3.49. 55 Exhibits 4.01 to 4.90. 56 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1021 [61]. 57 Acts Interpretation Act 1954 (Qld) s 32D. 58 Planning Act 2016 s 45(5); Acts Interpretation Act 1954 s 14D. 59 See paragraphs [78] to [95] above. -- 28 of 143 -- 29 What is required for a referral agency assessment under s 55 of the Planning Act 2016? [101] Before deciding to tell the Council to give the development approval subject to those conditions in the Chief Executive’s referral agency response, a referral agency assessment was required under s 55 of the Planning Act 2016. Pursuant to s 55 of the Planning Act 2016 and s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4 of the Planning Regulation 2017 (Qld) (current as at 27 March 2020), the development application must be assessed against the State development assessment provisions. What is the appropriate approach to the assessment and decision-making process? [102] The assessment and decision-making process outlined above is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,60 Abeleda & Anor v Brisbane City Council & Anor,61 Wilhelm v Logan City Council & Ors62 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.63 Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors64 and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.65 [103] As is apparent from the Court of Appeal decisions, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.66 In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.67 Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.68 The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.69 Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted. Although the exercise is to be based on the assessment carried out under ss 45 and 55 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, including the 60 [2020] QCA 253; [2021] QPELR 987. 61 [2020] QCA 257; [2021] QPELR 1003. 62 [2020] QCA 273; [2021] QPELR 1321. 63 [2021] QCA 95; [2022] QPELR 309. 64 [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86]. 65 [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]-[22]. 66 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77]. 67 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40]. 68 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804-6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]-[14]. 69 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53]. -- 29 of 143 -- 30 nature and extent of the non-compliances, if any, identified with an assessment benchmark.70 [104] JWZ Partners Development Group Pty Ltd bears the onus of establishing that the appeal should be dismissed.71 I will now turn to the real issues that require determination as set out in paragraph [27] above. Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre? [105] Ms Archer and Mr Purcell contend that the proposed development represents an inappropriate redevelopment of a local heritage place. They say that it does not comply with: (a) the overall outcomes in s 8.2.9.2(2)(a), (b), (d) and (e) and performance outcomes PO1, PO3 and PO5 of the Heritage overlay code; and (b) that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting: (i) specific outcome (5) in s 3.8.4 of City Plan; (ii) overall outcomes (g), (h) and (i) in s 8.2.9.2(2) of the Heritage overlay code; and (iii) performance outcomes PO9 and PO10 in the Heritage overlay code.72 [106] JWZ Partners Development Group Pty Ltd and the Council dispute these contentions. [107] Even though an assessment against the assessment benchmarks is mandatory under s 45(5)(a)(i) of the Planning Act 2016, none of the written submissions addressed the issue of compliance with the assessment benchmarks relevant to heritage impacts in a meaningful way.73 Instead, the written submissions focussed on issues about the status of various documents and whether the proposed development is consistent with the Conservation Management Plan Final Report: Former De Luxe Theatre / Old Burleigh Theatre Arcade prepared by Conrad Gargett dated May 2020 (“the Conservation Management Plan”)74 that has been endorsed by the Council. It is convenient to deal with those issues first. What were the issues upon which the parties focussed in written submissions? [108] The various written submissions focussed on four issues, namely: (a) the appropriate approach to the identification of the heritage values and cultural heritage significance for the assessment against the assessment benchmarks; 70 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]- [57]. 71 Planning and Environment Court Act 2016 s 45. 72 Outline of Argument on behalf of the Appellant (Archer) pp 5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7, 19-20 and 22-4. 73 This is unfortunate. It does not assist the Court with the timely disposition of the appeal. 74 Exhibit 5.03. -- 30 of 143 -- 31 (b) whether it is necessary to achieve compliance with Temporary Local Planning Instrument No. 7 in the event of inconsistency with the Conservation Management Plan; (c) whether the issue of compliance with the assessment benchmarks is determined by ascertaining consistency with the Conservation Management Plan; and (d) whether there is an error in Temporary Local Planning Instrument No. 7 and whether the Conservation Management Plan was inadequate. How is the identification of the heritage values and cultural heritage significance to be approached? [109] JWZ Partners Development Pty Ltd submits that it is the local heritage register that determines the heritage significance of a place. It says that issues of heritage significance cannot be sustained unless they are raised in the relevant statement of significance in the entry in the local heritage register. In support of its submission, JWZ Partners Development Pty Ltd refers to my decisions in ISPT Pty Ltd v Brisbane City Council75 and Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor.76 [110] Care should be taken before citing a case as establishing a principle. I do not accept that my findings in those cases reveal a generally applicable matter of principle. My determinations turned on the proper construction of the applicable code (and the planning scheme policy referred to by that code).77 Here, a different planning scheme applies. [111] It is well-accepted that the same principles that apply to statutory construction apply to the construction of planning documents.78 It is therefore necessary to read the applicable assessment benchmarks in their relevant context to determine how to approach the identification of heritage values and cultural heritage significance. Here, before turning to City Plan, it is helpful to appreciate the broader legislative context with respect to local heritage registers. [112] Under s 112 of the Queensland Heritage Act 1992 (Qld), a local government must identify places in its local government area that are of cultural heritage significance for the area: (a) in its planning scheme; or (b) in a local heritage register kept by the local government. 75 ISPT Pty Ltd v Brisbane City Council [2917] QPEC 52; [2017] QPELR 1117, 1128-9 [62]. 76 [2017] QPEC 22; (2017) 222 LGERA 136; (2017) QPELR 487, 513-4 [121]-[122]. 77 See ISPT Pty Ltd v Brisbane City Council [2917] QPEC 52; [2017] QPELR 1117, 1127-9 [57]-[67]. 78 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, [77] citing Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82 and AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1. -- 31 of 143 -- 32 [113] Where a place is identified in a local heritage register, under s 114 of the Queensland Heritage Act 1992, the entry in the register is to include: (a) enough information to identify the location and the boundaries of the place; and (b) a statement about the cultural heritage significance of the place. [114] Unless it has the consent of the owner of a heritage place, the Council cannot change the statement about the cultural heritage significance of the place other than to correct a minor error or to make a change that is not of substance.79 [115] Under s 123 of the Queensland Heritage Act 1992 and s 23 of the Statutory Instruments Act 1992, a planning scheme may apply, adopt, or incorporate a local government’s local heritage register. [116] With that legislative context in mind, one then turns to the provisions of City Plan. [117] The drafting style adopted in City Plan with respect to cultural heritage issues is vexing. Some provisions of City Plan expressly refer to the “local heritage register”80 and the “stated significance of the local heritage place”.81 Other provisions refer more broadly to the protection of the “significant values of the heritage place”82 and the “cultural heritage significance embodied in the place”.83 [118] City Plan does not define “heritage place” as a place on the local heritage register or the State heritage register. Rather, it defines it as “a place, area, land, landscape, building or work that is of cultural heritage significance”.84 However, it defines cultural heritage significance by reference to the Queensland Heritage Act 1992 (Qld),85 wherein it is defined as: “cultural heritage significance, of a place or feature of a place, means its aesthetic, architectural, historical, scientific, social, or other significance, to the present generation or past or future generations” [119] At first blush, the absence of reference to the stated cultural heritage significance in many provisions of the Heritage overlay code may indicate a legislative intent to invite a fresh consideration of the cultural heritage significance of a place. Ultimately, however, when regard is had to the applicability of the Heritage overlay code, I am not persuaded to adopt such a construction. [120] The Heritage overlay code is not a code that is of general application to all land throughout the local government area. It only applies to assessing material change of use, building work, reconfiguration of a lot and operational work for 79 Queensland Heritage Act 1992 (Qld) s 122. 80 See, for example, the specific outcome in s 3.8.4.1(1) of City Plan. 81 See, for example, the overall outcomes in s 8.2.9.2(c) and (f) of the Heritage overlay code. 82 See, for example, the overall outcome in s 8.2.9.2(b) of the Heritage overlay code. 83 See, for example, the overall outcome in s 8.2.9.2(d). See also performance outcomes PO1 and PO3 of the Heritage overlay code. 84 Exhibit 5.01 p 137: City Plan Table SC1.2.2. 85 Exhibit 5.01 p 133: City Plan Table SC1.2.2. -- 32 of 143 -- 33 development that is subject to the Heritage overlay.86 The legend on the Heritage overlay indicates that the mapping identifies local heritage places, state heritage places, local heritage protection boundaries, state heritage protection boundaries and heritage adjoining lots. Its focus is the cultural heritage significance of places on the local heritage register and the State heritage register. [121] Further, a construction that focusses on the stated cultural heritage significance is supported by the Strategic framework, which sets the policy direction for City Plan to 2031.87 The Strategic framework comprises the strategic intent, six city shaping themes, strategic outcomes for development for each theme, elements that refine and further describe the strategic outcomes, and specific outcomes sought for each element. It includes mapping that provides essential spatial dimension to the Strategic framework.88 [122] One of the city shaping themes is “a safe, well designed city”. The strategic outcomes for that theme are in s 3.8.1. Relevantly, they include: “(5) Places of cultural heritage are identified and protected.”89 [123] None of the Strategic framework maps identify places of cultural heritage. The only “identification” of places of cultural heritage in City Plan is on the Heritage overlay, which identifies places that are on the local heritage register and the State heritage register. [124] In s 3.8.4, “Element – Cultural heritage” refines and further describes the strategic outcome in s 3.8.1. It again focuses on those places on the local heritage register and the State heritage register. Relevantly, the specific outcomes in s 3.8.4.1(1) states: “Places of cultural heritage significance entered in the State and local heritage register are conserved.” [125] Having regard to the above-mentioned context, I accept that an assessment of compliance with all the assessment benchmarks in the Heritage overlay code and Temporary Local Planning Instrument No. 7 should be approached on the basis that the heritage values and cultural heritage significance of relevance are those that are identified in the statement of significance in the entry on the local heritage register. [126] Even if I am wrong about how the identification of the heritage values and cultural heritage significance is to be approached, it is not material to the outcome in this case. On the evidence, I am not persuaded that the cultural heritage significance is more extensive than that identified in the local heritage register. Is it necessary to achieve compliance with Temporary Local Planning Instrument No. 7 in the event of inconsistency with the Conservation Management Plan? [127] Ms Archer submits that there is an inconsistency between Temporary Local Planning Instrument No. 7 and the Conservation Management Plan. She says the 86 Exhibit 5.01 p 76: City Plan s 8.2.9.1. 87 Exhibit 5.01 p 19: City Plan s 3.1(1). 88 Exhibit 5.01 p 19: City Plan ss 3.1(2) and (3). 89 Exhibit 5.01 p 39: City Plan s 3.8. -- 33 of 143 -- 34 inconsistency is to be resolved by ensuring compliance with Temporary Local Planning Instrument No. 7.90 [128] Ms Archer says that Temporary Local Planning Instrument No. 7 requires the protection of any element that is identified in the Conservation Management Plan as being a pre-1976 element. This includes the rear bookend, which the Conservation Management Plan identifies as an element from 1955. [129] According to Ms Archer, the Conservation Management Plan is inconsistent with the Temporary Local Planning Instrument No. 7 in that respect. The inconsistency is said to arise from the fact that the Conservation Management Plan categorises the identified pre-1976 elements as either “of high significance” or “of significance” and, with respect to those categorised as “of significance”, the Conservation Management Plan says: “Where feasible and appropriate, these elements could be retained, however considered alteration (both major and minor) may occur providing aspects of higher cultural significance are not compromised.” [130] Ms Archer says that this tension is to be resolved by recourse to s 1.4 of City Plan. In that respect, Ms Archer submits: “5.12 It is uncontroversial that the Proposed Development has been prepared by the Co-Respondent with the aim of achieving compliance with the CMP. However the CMP is not a relevant assessment benchmark for the development. 5.13 It was conceded by the heritage expert for the Co-Respondent that a conservation management plan should not re-write the significance a place as established by its criteria in its heritage register entry. Meaning that if it is recognised that the place or building has heritage qualities sufficient to allow it to be placed on the register, the conservation management plan should not allow a proposed development to affect the cultural significance of the place in such a way as to require an amendment to the registry entry. 5.14 Mr Elliott described the CMP as a management tool, and effectively a guide or owner’s manual. 5.15 The hierarchy of assessment benchmarks, section 1.4(1)(b) stipulates that for impact assessment the strategic framework prevails over all matters. 5.16 Accordingly, in order to satisfy the relevant assessment benchmarks in the City Plan for the development, it is necessary to first comply with the strategic framework provisions. In order (sic) words, compliance with TLPI additions to the City Plan must be achieved first.”91 90 Outline of Argument on behalf of the Appellants p 14 [5.3]-[5.16]. 91 Outline of Argument on behalf of the Appellants pp 15-6. -- 34 of 143 -- 35 [131] It is difficult to reconcile Ms Archer’s submission that s 1.4 of City Plan is to be used to resolve the inconsistency with her submission that that the Conservation Management Plan is not an assessment benchmark. The only inconsistency that Ms Archer identifies is that referred to in paragraphs [128] and [129] above, i.e., the inconsistency between the Conservation Management Plan and Temporary Local Planning Instrument No. 7. Section 1.4 of City Plan only applies to resolve “inconsistency between provisions within the City Plan”. The Conservation Management Plan is not a provision within City Plan. If it were, it would be an assessment benchmark. [132] Leaving that difficulty to one side, the tenor of Ms Archer’s submissions is that “compliance with TLPI additions to the City Plan must be achieved” and that the non-compliance cannot be excused by reference to the Conservation Management Plan. That this is the approach urged by Ms Archer is supported by her subsequent submissions, wherein she states: “5.37 As noted by McMurdo J in Bell v Brisbane City Council & Ors, at [67]: “It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme. A decision maker might think that a limit of 15 storeys is too restrictive, and the public would be better served by a higher limit. But this decision maker must accept that it is in the public interest that the limit be 15 storeys, because that is what the planning scheme effectively provides.” 5.38 In Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 (K&K), Sofronoff J held that at the heart of decisions like these is the acknowledgement that conformity with the City Plan is, prima facie, in the public interest. 5.39 The recent case law suggest that the City Plan represents what is in the best interest of the public. Consequently, any significant departure from the planning scheme will be seen to be against the best interest of the public. 5.40 The Appellant submits that the Development Application is in conflict with the City Plan, … Accordingly, in line with the reasoning of K&K, it is for the applicant, being the Co- Respondent, to identify sufficient reasons why the City Plan should not prevail.”92 (emphasis added, footnotes omitted) [133] These submissions are at odds with Court of Appeal authority, including Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors93 (“Trinity Park”). 92 Outline of Argument on behalf of the Appellants p 19. 93 [2021] QCA 95; [2022] QPELR 309. -- 35 of 143 -- 36 [134] In Trinity Park,94 Dexus Funds Management Limited and Trinity Park Investments Pty Ltd relied on cases they referred to as the “trilogy”, namely Bell v Brisbane City Council & Ors,95 Gold Coast City Council v K & K (GC) Pty Ltd96 and Redland City Council v King of Gifts (Qld) Pty Ltd.97 Trinity Park Investments Pty Ltd argued that although the trilogy of cases were decided in the context of s 326(1)(b) of the Sustainable Planning Act 2009, the Planning Act 2016 does not legislate a departure from principles stated in the trilogy of cases, which were said to have a long history in planning law jurisprudence.98 Trinity Park Investments Pty Ltd submitted that unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a particular form of development should be met on a site that does not give rise to a conflict with the planning scheme. To approach the assessment otherwise was argued to be an error of law. [135] In considering the argument, the Honourable Justice Brown, with whom the Honourable Justices of Appeal Philippides and Mullins agreed, observed: “[178] The decision of Ashvan Investments Unit Trust v Brisbane City Council, the trilogy and the approach to be adopted in light of s 60 of the Planning Act was recently considered by this Court in the decision of Abeleda v Brisbane City Council. Mullins JA provided the leading judgment. While the approach set out in the trilogy of cases still has relevance under the Planning Act particularly the fact, as stated by McMurdo JA, that “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land,” in other respects the approach now to be adopted is quite different. As her Honour carefully set out in her judgment, s 60(3) of the Planning Act no longer incorporates what was described as the two step test and it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. 94 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309. 95 [2018] QCA 84; (2018) 230 LGERA 374. 96 [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409. 97 [2020] QCA 41 [2021] QPELR 592. 98 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [2022] QPELR 309, 361 [176]. -- 36 of 143 -- 37 [179] For the reasons set out by Mullins JA set out in Abeleda, the statements of Sofronoff P, Philippides JA and McMurdo JA and in the trilogy of cases referred to in paragraphs 20 and 21 of the submissions of TPI that it is necessary to demonstrate that it is in the public interest it is necessary to override the scheme as it applies to the land, no longer represent the approach to be adopted under s 45 and s 60 of the Planning Act. As her Honour at [42] stated: “…..The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any noncompliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.””99 [136] The written submissions on behalf of Ms Archer made no reference to this appellate court authority, nor to the decisions of the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,100 Abeleda & Anor v Brisbane City Council & Anor,101 and Wilhelm v Logan City Council & Ors.102 [137] Having regard to those authorities, I do not accept the approach urged by Ms Archer. In reaching a decision, I must assess the development application against the assessment benchmarks in Temporary Local Planning Instrument No. 7. If I find non-compliance, the weight that I attribute to that non-compliance is a question of fact to be determined by me by reference to the relevant circumstances. The relevant circumstances are not limited to the adoption of Temporary Local Planning Instrument No. 7 and its contents. They include the Council’s subsequent endorsement of the Conservation Management Plan and the subsequent adoption of Temporary Local Planning Instrument No. 9. The existence of non-compliance is not necessarily determinative. Any non-compliance is to be considered and balanced with other relevant factors. Is compliance with the assessment benchmarks determined by ascertaining consistency with the Conservation Management Plan? [138] The Conservation Management Plan is an extensive document (of more than 60 pages in length).103 The Executive Summary for the Conservation Management Plan records that it is intended to document the cultural heritage significance of the 99 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [2022] QPELR 309, 361-2 [178]-[179] (citations omitted). 100 [2020] QCA 253; [2021] QPELR 987. 101 [2020] QCA 257; [2021] QPELR 1003. 102 [2020] QCA 273; [2021] QPELR 1321. 103 Exhibit 5.03 pp 43-114. -- 37 of 143 -- 38 former De Luxe Theatre and to provide guidance for its future management and conservation.104 [139] With respect to the question of compliance with the assessment benchmarks relevant to cultural heritage, the Council invites a finding that the proposed development is consistent with the terms of the Conservation Management Plan.105 It then says: “In the submission of the Council, a finding that the proposed development is consistent with the CMP, and a finding that approval of the proposed development will deliver numerous and significant community benefits is relevant (if not determinative) of an assessment of the proposed development against the planning scheme, the citation and the TLPI.”106 [140] The submissions on behalf of JWZ Partners Development Group Pty Ltd place similar reliance on the Conservation Management Plan. JWZ Partners Development Group Pty Ltd submits: “125 It is submitted that, fundamental to a consideration of the heritage issues in this case, are the following propositions: … (c) As all of the heritage experts ultimately agreed (even Ms Pearce during cross-examination) the CMP adopted by the Council is the most thorough and the most important document to be considered in determining whether the proposed development sufficiently identifies and protects the heritage significance of the relevant place. So much is made clear, as a matter of law, but (sic) the fact that both the TLPIs 7 and 9 call up protection as required by the Conservation Management Plan; and both of the TLPIs effect amendments to the prevailing strategic framework and to the overall outcomes in the Heritage Overlay Code which refer to the significant elements “identified” in the approved Conservation Management Plan; and (d) The Conservation Management Plan identifies only the “front book end” as being of “High Significance” which “should” be retained not “could” be retained (see Exhibit 5.03 at pp.82, 83, 84 and 98 – s.708 last bullet point). 126. It is tolerably clear that the Appellants in this case sought to go behind both the entry in the Local Register and the CMP and suggest that more needed to be done to protect the heritage significance. That is not an approach sanctioned by the law 104 Exhibit 5.03 p 47. 105 Written Submissions on behalf of the Respondent p 28 [108]. 106 Written Submissions on behalf of the Respondent p 28 [109]. -- 38 of 143 -- 39 nor in this case, the acceptance of the importance of the Conservation Management Plan by the expert witnesses.”107 (emphasis added, footnotes omitted) [141] The author of the Conservation Management Plan and the Council officer who authored the adopted report that recommended endorsement of the Conservation Management Plan were not called. Nevertheless, I am prepared to assume that they may have regarded the Conservation Management Plan as a document that identifies the cultural heritage significance of the former De Luxe Theatre. I am also prepared to infer that the Council was aware of the authors’ statements about the limits on significance at the time that it endorsed the Conservation Management Plan. However, it does not follow from the Council endorsement of the Conservation Management Plan that the document replaces (or otherwise displaces) the statement of significance in the entry in the local heritage register. As I have already noted in paragraph [114] above, unless the Council has the consent of the owner of a heritage place, it cannot change the statement about the cultural heritage significance of the place other than to correct a minor error or to make a change that is not of substance.108 There is no evidence before me of the provision of owner’s consent. [142] In addition, although Temporary Local Planning Instrument No. 7 calls for the preparation, and approval by the Council, of a conservation management plan, it does so for a limited purpose: namely, to identify the pre-1976 elements of the former De Luxe Theatre. They are the elements of the built form that are protected by the entry in the local heritage register. [143] For those reasons, I do not accept the contention of the Council and JWZ Partners Development Group Pty Ltd that compliance with the assessment benchmarks is achieved by proposing development that is consistent with the Conservation Management Plan. The submissions by the Council and JWZ Partners Development Group Pty Ltd to that effect appear to conflate two distinct considerations, namely: (a) the outcome of the assessment against the assessment benchmarks; and (b) the weight to be given to any non-compliance revealed by the assessment. [144] Although the submissions from the Council and JWZ Partners Development Group Pty Ltd about the heritage issues in the appeal are relevant to the latter consideration, they do not assist me with the former. Is there an error in Temporary Local Planning Instrument No. 7 and is the Conservation Management Plan deficient? [145] In her Outline of Argument, Ms Archer submits: “5.17 The Appellant submits that the CMP is not a static document, instead it evolves as further information comes to light. In that regard, the Appellant submits that the CMP is deficient in that 107 Written submissions on behalf of the Co-respondent pp 48-9. 108 Queensland Heritage Act 1992 (Qld) s 122. -- 39 of 143 -- 40 it has not thoroughly investigated elements of social significance. As such, the social (sic) 5.18 Against the suggestion that the TLPI contained a material error, being an example of ‘another relevant matter’, the Appellant submits that the Heritage Building was afforded protection under the Council’s superseded 2003 Gold Coast planning scheme. Under this former planning scheme, the Heritage Building was protected as the former planning scheme said that it ‘must be retained’. 5.19 Furthermore in the Explanatory Statement to the TLPI says that the critical information, regarding the importance and need for its retention, have “been inadvertently omitted” in the City Plan. As a result, this could lead to the removal or demolition of the Heritage Building without Council’s knowledge. 5.20 Consequently, the enactment of the TLPI was as a response to the potential demolition of the Heritage Building due to the change in ownership of the Subject Land. 5.21 The Appellant submits that the TLPI was the appropriate response to reinstate the protection over the Heritage Building that it had under the former planning scheme. 5.22 In this manner, it can not be suggested that the TPLI contained a material error in regards to the significance of the rear ‘book end’. 5.23 The heritage listing was triggered by community expectation and involved a high level of community consultation. No community groups or persons associated with the building were referred to in creating the CMP. As a result criterion (g) of the TPLI is not properly addressed.”109 [146] It may be thought that the submissions set out above are an incomplete quote as they appear to be missing relevant context that would assist in their comprehension. That is not the case. There was no apparent connection between paragraphs 5.17 to 5.23 of the Outline of Argument prepared on behalf of Ms Archer and any of the preceding or following paragraphs. There is also no apparent connection between the submissions and the real issues in the trial. As such, it is sufficient to make four brief observations. [147] First, I am not persuaded that there is utility in examining the adequacy of the investigation of elements of social significance in the Conservation Management Plan. It is not a matter that has been put in issue. Further, as I have already noted in paragraph [143] above, the question of compliance with the assessment benchmarks with respect to cultural heritage is not determined by ascertaining whether the proposed development is consistent with the Conservation Management Plan. 109 Outline of Argument on behalf of the Appellants pp 16-7. -- 40 of 143 -- 41 [148] Second, although Ms Archer anticipated a “suggestion that the TLPI contained a material error”, there was no submission, nor an allegation in issue in the proceeding, to that effect. Further, there is no issue in the appeal that raises the contents of the Council’s superseded 2003 Gold Coast planning scheme, and the superseded scheme is not in evidence before me. [149] Third, I do not accept that, absent Temporary Local Planning Instrument No. 7, the former De Luxe Theatre could be removed or demolished without the Council’s knowledge. It is on the local heritage register and has been since 6 December 2019. Pursuant to s 44(5) of the Planning Act 2016 and s 20 and sch 10, pt 8, div 1, subdiv 1, s 14 of the Planning Regulation 2017, development on a local heritage place is assessable development. If the development involves only building work (such as demolition alone), the Council would be a referral agency for the development application pursuant to s 54(2)(a) of the Planning Act 2016 and s 22 and sch 10, pt 8, div 1, subdiv 3, table 1 of the Planning Regulation 2017. For other forms of development on the local heritage place, the Council would have been the assessment manager pursuant to s 48 of the Planning Act 2016 and s 21 and sch 10, pt 8, div 1, subdiv 2, table 1 of the Planning Regulation 2017. Either way, absent applicable provisions in the planning scheme, the development would require assessment against the code in sch 2 of the Queensland Heritage Regulation 2015. [150] Fourth, the contents of the Conservation Management Plan have no bearing on the question of compliance with the criterion in overall outcome (g) of Temporary Local Planning Instrument No. 7. [151] Having disposed of the various arguments upon which the submissions for the parties focussed, it is convenient to now turn to the substantive question of whether there is compliance with the relevant assessment benchmarks about heritage impacts. What do the relevant assessment benchmarks about heritage impacts require? [152] Under City Plan, overlays identify areas within the local government area that reflect state and local level interests and that have characteristics that, amongst other things, are a constraint on land use or development outcomes.110 Overlays are mapped and included in sch 2 of City Plan.111 Some overlays are included for information purposes only and do not result in additional assessment benchmarks. Others trigger assessment against assessment benchmarks in a code for the overlay.112 [153] One of the mapping overlays is the Heritage overlay. The Heritage overlay code in City Plan applies to development applications for material change of use and building work subject to the Heritage overlay.113 [154] At the time the development application was made, the subject land was not mapped on the Heritage overlay. However, Temporary Local Planning Instrument No. 7 110 Exhibit 5.01 p 74: City Plan s 8.1(1). 111 Exhibit 5.01 p 74: City Plan s 8.1(2). 112 Exhibit 5.01 p 74: City Plan ss 8.1(4) and (5). 113 Exhibit 5.01 pp 74 and 76: City Plan ss 8.1(6) and (7) and 8.2.9.1. -- 41 of 143 -- 42 was in effect. It commenced on 30 July 2019 and had effect until 29 July 2021.114 It affected the operation of City Plan115 by: (a) amending the Heritage overlay map to identify the subject land as a local heritage place;116 (b) inserting a trigger to require impact assessment of building work that involved any removal, demolition, or partial demolition on the subject land;117 (c) nominating the Heritage overlay code of City Plan as the relevant assessment benchmark for assessing an application for building work;118 (d) inserting additional Strategic framework specific outcomes in s 3.8.4 of City Plan;119 and (e) inserting additional overall outcomes and performance outcomes in the Heritage overlay code.120 [155] As such, the development application must be assessed against the assessment benchmarks in the Heritage overlay code as affected by Temporary Local Planning Instrument No. 7. [156] The purpose of the Heritage overlay code is to deal with sites identified as having local or State heritage significance and conserve places of cultural heritage significance.121 This is achieved through the overall outcomes, which include: “(a) Places of cultural heritage significance are recognised and conserved. (b) Development is carried out in a manner that protects the significant values of the heritage place. (d) Development acknowledges and respects the cultural heritage significance embodied in the place. (e) The fabric, use, association, meaning, setting and potential archaeological information for the heritage place is protected.”122 114 Exhibit 5.03 p 2 [4]. 115 Under s 23(3) of the Planning Act 2016, a temporary local planning instrument an affect the operation of another local planning instrument, such as a planning scheme, but it does not amend or repeal the instrument. 116 Exhibit 5.03 p 9. 117 Exhibit 5.03 p 7 and Exhibit 5.02 p 362: City Plan s 5.7. 118 Exhibit 5.03 p 7 and Exhibit 5.01 p 47: City Plan s 5.3.3(5). 119 Exhibit 5.03 p 7. 120 Exhibit 5.03 pp 8-9. 121 Exhibit 5.01 p 76: City Plan s 8.2.9.2(1). 122 Exhibit 5.01 p 76. -- 42 of 143 -- 43 [157] As I have noted in paragraph [105] above, the Appellants allege non-compliance with performance outcomes PO1, PO3 and PO5 of the Heritage overlay code, which state:123 Performance outcomes Acceptable outcomes Material change of use PO1 Development is compatible with the conservation and management of the cultural heritage significance of the local heritage place. AO1 No acceptable outcome provided. Building work PO3 Development conserves features and values that contribute to the cultural heritage significance of the place. AO3 Development does not alter, remove or conceal features or material that contributes to the significance of the place. OR Development is minor and necessary to maintain a use for the place. PO5 Development does not adversely affect the character, setting and appearance of the local heritage place. AO5.1 The scale, location and design of the development is compatible with the character, setting and appearance of the local heritage place. AO5.2 The type and scale of any new landscape work is consistent with the identified heritage significance of the place. [158] The Appellants also rely on that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting: (a) an additional specific outcome in the s 3.8.4 (Element – Cultural heritage) of the Strategic framework; (b) overall outcomes (g), (h) and (i) in s 8.2.9.2(2) of the Heritage overlay code; and (c) performance outcomes PO9 and PO10 in the Heritage overlay code. [159] The additional specific outcome for the Strategic framework states: “(5) The Old Burleigh Theatre Arcade is an important heritage place for the City and is to be protected. Its removal or 123 Exhibit 5.01 pp 77-8. -- 43 of 143 -- 44 demolition will not be supported. Partial demolition only occurs when: (i) the pre-1976 elements of the Burleigh Theatre Arcade identified through an approved Conservation Management Plan are protected and remain in-situ; and (ii) development is designed and sited to appropriately respond to the cultural heritage significance of the Old Burleigh Theatre Arcade. Note: The Conservation Management Plan must be approved by Council prior to the issue of any development approval over Lot 1 on RP72012. Note: Any assessable development that is inconsistent with this provision is considered not to be in the public’s interest.” [160] Overall outcomes (g), (h) and (i) state: “(g) Any development that involves the removal or demolition of the Old Burleigh Theatre Arcade is not supported. (h) Any development involving partial demolition ensures that the pre-1976 elements of the Burleigh Theatre Arcade identified through an approved Conservation Management Plan are protected and remain in-situ. (i) Any development on land described as Lot 1 on RP72012 is appropriately designed and sited to respect and respond to: (a) the culturally significant elements of the Old Burleigh Theatre Arcade that remains in-situ; and (b) building’s contextual cultural significance within the existing urban fabric of Burleigh Heads.”124 [161] Performance outcomes PO9 and PO10 appear under a table heading of “Building works associated with the Old Burleigh Theatre Arcade” and state: “PO9 Development that involves the removal or demolition of the Old Burleigh Theatre Arcade is not supported. 124 Exhibit 5.03 p 8. -- 44 of 143 -- 45 PO10 Development involving partial demolition of the Old Burleigh Theatre Arcade is to: (a) ensure that the cultural heritage significance of the pre-1976 elements are to be protected and remain-insitu. The pre-1976 elements include, but not limited to: (i) the original brickwork, doors, windows, stairwells, fittings, awning and rainwater heads, downpipes, roofing, structure that is dated as older than 1976; (ii) existing windows, doorways in areas of 1954 brick walling and size or locations of openings are not be (sic) changed; (iii) the layout and location of existing street entry, entry arcade area, internal central gallery space, front shops, external side access ways (along east and west walls) and 1954 east and west staircases, first and second floor offices (Goodwin Terrace end); (iv) the volume of the open void of the internal central gallery space. The void includes the extent of existing ceiling height, gallery width and length; (v) maintaining public access to the internal gallery area of the building; (b) design and plan new development so that its scale, form, bulk, layout, materials and finishes respects and responds to the building’s in-situ components of this heritage place and its contextual significance; (c) design new development that does not cover or conceal any original fabric, features and fittings that is dated as older than 1976; and (d) design and site new development to maintain significant views to and from the historic building from all surrounding streets and public areas. Note: The preparation of a Conservation Management Plan by an appropriately qualified Heritage Consultant is Council’s preferred method to demonstrate compliance with this PO.”125 [162] There were no acceptable outcomes provided for the performance outcomes in Temporary Local Planning Instrument No. 7.126 125 Exhibit 5.03 p 9. 126 Exhibit 4.01 p 9. -- 45 of 143 -- 46 [163] The assessment against these assessment benchmarks calls for the following six factual determinations: 1. What is the place of cultural heritage significance on the subject land? 2. What is the cultural heritage significance of the former De Luxe Theatre? 3. What are the pre-1976 elements that are identified in the approved conservation management plan? 4. Does the proposed development involve inappropriate removal or demolition of the fabric of the former De Luxe Theatre? 5. Does the proposed development appropriately recognise, conserve, respect and protect the cultural heritage significance of the former De Luxe Theatre and is its design and siting compatible with, and appropriately responsive to, the cultural heritage significance of the former De Luxe Theatre, including its contextual significance? 6. Is the proposed use compatible with the conservation and management of the cultural heritage significance of the former De Luxe Theatre? [164] To assist me with those issues, I have the benefit of: (a) the entry from the Council’s local heritage register for Lot 1 on RP72012; (b) the Conservation Management Plan;127 (c) evidence from Mr Malcolm Elliott, Mr Scott Richards and Ms Jacqueline Pearce, the heritage experts retained by JWZ Partners Development Pty Ltd, the Council and the Appellants respectively. What is the place of cultural heritage significance on the subject land? [165] On 6 December 2019, the Council entered part of the subject land, being Lot 1 on RP 72012, on the Council’s local heritage register.128 The entry is titled “De Luxe Theatre (Former)”. [166] The legislative context of local heritage registers is discussed at paragraphs [111] to [115] above. The details required for compliance with s 114(a) of the Queensland Heritage Act 1992 should be understood in the context that the terms “local heritage place” and “place” are defined in the schedule to the Queensland Heritage Act 1992 as: “local heritage place means a place that– (a) is of cultural heritage significance for a local government area; and (b) is identified as a place of cultural heritage significance in the local government’s planning scheme or on the local government’s local heritage register 127 Exhibit 5.03 p 2 [10]-[11] and pp 32-137. 128 Exhibit 5.03 p 2 [8]. -- 46 of 143 -- 47 place– 1 Place means a defined or readily identifiable area of land, whether or not held under 2 or more titles or owners. 2. Place includes– (a) any feature on land mentioned in item 1; and (b) any part of the immediate surrounds of a feature mentioned in paragraph (a) that may be required for its conservation.” [167] As is apparent from these definitions, the term “place” is broad enough to encapsulate a place, area, land, landscape, building or work. [168] In compliance with s 114(a) of the Queensland Heritage Act 1992, under a heading “Place details”, the entry in the local heritage register includes the following information identifying the location and the boundaries of the place:129 Address/location 64 Goodwin Terrace, Burleigh Heads Title details Lot 1 RP72012 Principle period(s) ca. 1930 – 1975 City of Gold Coast division 12 Other known names The Old Burleigh Theatre Arcade Area for protection Lot on plan Place components Whole building – all external walls, awning, structural fabric, fittings and fixtures related to 1954 rebuild, elements of spatial layout including clear open space (internal) related to original theatre hall (current area of gallery space) and central entrance way through front façade. Place category Building Context In situ, altered unsympathetically. Central portion of building partially demolished and rebuilt circa 1976-80. Register entry date 6 December 2019 [169] Reading all the place details together reveals that the focus of the entry is the physical elements of the building that pre-date 1976, the open space (or void) internal to the building that is related to original theatre hall, and the central entrance way through the front façade. This construction is supported by the balance of the entry in the register to which I refer in paragraphs [171] and [172] below. 129 Exhibit 5.03 p 23. -- 47 of 143 -- 48 What is the cultural heritage significance of the former De Luxe Theatre? [170] The assessment benchmarks in relation to cultural heritage adopt varied terminology. They call for the identification of: (a) the significant values of the heritage place;130 (b) the cultural heritage significance that is embodied in the place;131 (c) the relevant aspects of the fabric, use, association, meaning, setting and potential archaeological information for the heritage place;132 (d) the cultural heritage significance of the local heritage place;133 (e) the features and values that contribute to the cultural heritage significance of the place;134 (f) the character, setting and appearance of the local heritage place;135 (g) the culturally heritage significant elements of the Old Burleigh Theatre Arcade that remain in-situ;136 (h) the building’s contextual cultural significance within the existing urban fabric of Burleigh Heads;137 (i) the cultural heritage significance of the pre-1976 elements;138 (j) the in-situ components of the heritage place;139 (k) the contextual significance of the heritage place;140 and (l) the significant views to and from the historic building from the surrounding streets and public areas.141 [171] Despite adopting different terminology, each call for a factual determination about the cultural heritage significance of the former De Luxe Theatre. This is informed by the statement of heritage significance in the entry in the local heritage register. It records: “The Former De Luxe Theatre is a place of local heritage significance for its historic importance, rarity, aesthetic importance, social importance and special association as evidenced by, but not exclusive to, the following statement of heritage significance, based on criteria (a), (b), (e), (g) and (h) of the Gold Coast Local Heritage Register. 130 City Plan s 8.2.9.2(2)(b). 131 City Plan s 8.2.9.2(2)(d). 132 City Plan s 8.2.9.2(2)(e). 133 City Plan s 8.2.9.3 Table 8.2.9-1 performance outcome PO1. 134 City Plan s 8.2.9.3 Table 8.2.9-1 performance outcome PO3. 135 City Plan s 8.2.9.3 Table 8.2.9-1 performance outcome PO5. 136 Temporary Local Planning Instrument No. 7 and overall outcome (i)(a). 137 Temporary Local Planning Instrument No. 7 and overall outcome (i)(b). 138 Temporary Local Planning Instrument No. 7 performance outcome PO10(a). 139 Temporary Local Planning Instrument No. 7 performance outcome PO10(b). 140 Temporary Local Planning Instrument No. 7 performance outcome PO10(b). 141 Temporary Local Planning Instrument No. 7 performance outcome PO10(d). -- 48 of 143 -- 49 Criterion (a) Historic importance The De Luxe Theatre building (former) is important in demonstrating the development of picture theatres on the Gold Coast and the important role that picture-going played in the life of Gold Coast residents from the 1930s to the 1960s. The De Luxe, was built in 1930 as a dance hall and enclosed “talkies” theatre. It demonstrates the evolution of film exhibition venues on the Gold Coast, where community halls were used to show pictures prior to a conversion (or replacement) to a purpose-built theatre. The De Luxe Theatre building (former) also demonstrates the practice of independent film exhibition by owner-operators on the Gold Coast. Criterion (b) Rarity The De Luxe Theatre is a rare early theatre building of the Gold Coast. Criterion (e) Aesthetic importance The De Luxe Theatre building (former) is an example of theatre architecture and exhibits distinctive exterior exposed brick detailing, stepped front parapet and contrasting coloured masonry banding above upper story windows. Contrasting masonry exposed and extruded window lintels, decoratively styled rainwater heads and well-crafted nameplate are also features of the building’s primary frontage/ elevation. The De Luxe Theatre building (former) is an important local landmark and makes a major contribution to the Goodwin Terrace streetscape and the Burleigh foreshore beyond. All facades of the Theatre are exposed and clearly visible from all approaches and surrounding streets. The front elevation is a striking feature when viewed from the beach, Mowbray Park and public promenade across the road to the North. The side and back elevations are a striking visual landmark when viewed from Memorial park and Burleigh Heads commercial precinct to the West and from the Gold Coast Highway to the South. Criterion (g) Social importance The De Luxe Theatre building (former) has an important, special and ongoing association with the Burleigh Heads community as a major entertainment venue from 1930 to 1966, and was important in establishing picture-going as a popular wartime social practice for both Australian and American soldiers stationed on the Gold Coast. The De Luxe was a desirable venue for numerous social gatherings, such as dances, club meetings and even religious services, for over thirty years. The Theatre provides important evidence of the early to mid-twentieth Century village life of Burleigh. -- 49 of 143 -- 50 Criterion (h) Special association with particular person or organisation The Theatre has a special association with William Fradgley and family and Thams Brothers, Lorenz and Charles, and family. The Fradgleys were responsible for the construction and early upgrades of the theatre. The Thams were responsible for later construction and development of the theatre. Both families were involved with other entertainment venues on the Gold Coast, and made a notable contribution to the area’s development as a social destination.” [172] The entry in the local heritage register records further detail about the development history of the site and its built form across its life. It records that the subject land has a somewhat complicated evolution. It initially contained a theatre and dance hall from the 1930s. A major reconstruction took place in the 1950s. It resulted in the loss of fabric and the construction of new fabric but the maintenance of the same use and the introduction of a new residential use. Another major reconstruction took place in the 1970s. It involved the loss of fabric, the construction of new fabric and the change of use from theatre to shopping arcade (with the retention of the residential use). Consequently, from the 1980s and into the present, the building was an amalgam of different uses, built forms, ages of construction, material, fabric and overall presentation.142 [173] The heritage experts accept the description of the history in the entry. That is unsurprising. It is supported by extensive references. The Joint Report of Heritage Experts includes historical photographs that support the description in the local heritage register entry.143 The description of the built form elements of the former De Luxe Theatre in the entry also accord with the many photographs of the exterior and interior of the building that were in evidence before me.144 There is no readily apparent, material error in those aspects of the entry in the Council’s local heritage register, nor any disagreement between the experts about what is recorded. [174] However, there are differences in the opinions of the heritage experts about: (a) the extent of cultural heritage significance ascribed to the side and back elevations in terms of the aesthetic importance of the building as an important landmark; and (b) the relevance of post-1976 uses and associations to the cultural heritage significance in terms of the social importance of those uses or special associations with particular person or organisation. [175] In terms of the first difference, Ms Pearce relies heavily on the reference to the side and rear elevations in the statement of significance for criterion (e). Mr Elliott and Mr Richards do not. 142 Exhibit 5.03 pp 25-9. 143 Exhibit 7.04 pp 8-13. 144 See, for example, Exhibit 5.03 p 24; Exhibit 7.04 pp 14-22 figures 13 to 28; Exhibit 11.01 photos 1 to 160. -- 50 of 143 -- 51 [176] Care should be taken not to construe the mere reference to part of a building in the statement of significance without proper regard to the context of the reference. Here, the context includes: (a) the first paragraph in the statement of significance for criterion (e), which references features from the primary frontage or elevation when describing the building as an example of theatre architecture; (b) the first sentence of the second paragraph in the statement of significance for criterion (e), which connects the important local landmark status of the building to its major contribution to the Goodwin Terrace streetscape and the Burleigh foreshore beyond; (c) the image that appears directly below the statements of significance in the entry, which shows that the side façade of the front bookend is exposed and clearly visible when approaching from the north-east; and (d) the description of the local heritage place, which focuses on features from the front bookend and describes the building as “a prominent landmark” that makes a “high contribution to the streetscape of Goodwin Terrace”.145 [177] Careful consideration of the entry also reveals a disconnect between the statement that “the side and rear setbacks are a striking visual landmark” and the more detailed description of the setting of the building and its contribution as a landmark that appears in the entry. The description of the setting focuses on the strong contribution of the front bookend. It also notes the presence of a petrol station to the west and a restaurant to the south, which affected the visibility of the rear bookend.146 [178] The photographs in the Joint Report of Heritage Experts,147 the Architecture Joint Experts’ Report148 and the Architectural Design Report149 demonstrate that: (a) at least from 1973 until September 2019, there were buildings constructed on the adjoining land to the south, being Lot 2 on RP 72012, which largely obscured views of the rear bookend of the former De Luxe Theatre; (b) from the 1950s until recently, there were buildings constructed on land to the west that were used in association with a service station use and that largely obscured the western façade; (c) since the 1950s, development on land to the east of the subject land obscured much of the eastern façade of the building; (d) those parts of the building that were most visible from Memorial Park and Burleigh Heads commercial precinct to the west were the western side of the front bookend; and (e) despite the adjoining buildings, the front and side façades of the front bookend were exposed and clearly visible when approaching from all 145 Exhibit 5.03 p 27. 146 Exhibit 5.03 p 27. 147 Exhibit 7.04 pp 11-3 figures 8, 9, 11 and 12. 148 Exhibit 7.03. 149 Exhibit 2.02. -- 51 of 143 -- 52 approaches and surrounding streets, including from the Gold Coast highway.150 [179] In those circumstances, I do not consider that the reference to the side and back elevations in the statement of significance reveal an error in the listing. However, these matters highlight that care should be taken not to construe the references to the side and back elevations so broadly as to encapsulate the entire side elevation, including the built form that is of more recent construction, or to attribute the same degree of significance to the back elevation as that which is attributed to the front elevation. When the entry is read in its entirety, including the place details, it is apparent that the predominant focus of the aesthetic importance is that part of the former theatre that comprises the front bookend. [180] The second difference between the experts relates to criteria (g) and (h). Ms Pearce contends that the former De Luxe Theatre is of importance because of its ongoing association with the community after the cessation of the theatre use, including its use as a retail destination and its association with the surfing community. Mr Elliott and Mr Richards disagree. [181] I do not accept Ms Pearce’s contention. Neither of the matters to which she refers are ascribed cultural heritage significance in the entry in the local heritage register. Further, and in any event, I do not accept her opinion that they are of cultural heritage significance. What are the pre-1976 elements that are identified in the approved conservation management plan? [182] As I have noted in paragraph [131] above, Ms Archer submits that the Conservation Management Plan is not a relevant assessment benchmark for the development. I agree. That said, the Conservation Management Plan is called into consideration by some of the assessment benchmarks. As such, it is relevant to have regard to the Conservation Management Plan in making the factual determinations called for as part of the assessment of the development application. [183] Temporary Local Planning Instrument No. 7 calls for the preparation, and approval by the Council, of a conservation management plan to identify the pre-1976 elements of the former De Luxe Theatre that are to be protected.151 [184] In response to the Temporary Local Planning Instrument No. 7, Conrad Gargett prepared a conservation management plan dated February 2020. The Council commissioned an independent review of that conservation management plan, which was undertaken by Urbis. In response to that review, in May 2020, Conrad Gargett produced the Conservation Management Plan.152 [185] On 18 June 2020, following receipt of a report prepared by a Council officer, the Council resolved to endorse the Conservation Management Plan.153 150 See, for example, the photos in Exhibit 2.02 at pp 17 and 50-3. 151 Temporary Local Planning Instrument No. 7 specific outcome 3.8.4(5) and overall outcome (h). 152 Exhibit 5.03 pp 39 and 115-9. 153 Exhibit 5.03 p 2 [10]. -- 52 of 143 -- 53 [186] Section 1.4 of the Conservation Management Plan provides a summary of the main findings of the report. In relation to the topic of significance, it states: “Broadly the assessment of this report is that the former De Luxe Theatre / Old Burleigh Theatre has historical, social and aesthetic significance. Those values are however compromised by the amount of change to the building. Apart from its location, little if any of the 1930s De Luxe Theatre remains. Whilst the 1950s additions remain broadly intact, although altered to varying degrees internally, the 1970s work including demolition of the original auditorium, has removed virtually all evidence of the previous theatre use. In the case of the social and historical associations, these are considered to be important locally. The townscape values of the building are considered of local significance.”154 [187] Section 3 of the approved Conservation Management Plan documents the history of the former De Luxe Theatre. Relevant to the identification of the pre-1976 elements of the former De Luxe Theatre, the Conservation Management Plan states: “In 1975 the building was sold by the Thams family to MCS Pty Ltd. By May 1975 the theatre was described as ‘vacant and an application to convert the existing premises to a ground floor shopping and display areas was made to the Gold Coast City Council.’ Plans prepared by architects Clarke Gazzard show the demolition of the 1930s auditorium with a new central section erected between the 1955 ‘book ends’. Clarke Gazzard were well regarded architects of the time and responsible for other significant buildings on the Gold Coast and in South East Queensland. What became known as the Old Burleigh Theatre Arcade is believed to have been completed by 1977. A local newspaper article likened the redevelopment to George Washington’s axe i.e. original ‘except for a couple of new handles and three or four new heads’. Later work is believed to have included the reconfiguring of toilets (1978); reconfiguring of shops to Goodwin Terrace front (1980s and 1990s); manager’s office to first level of central section (1980s) and the removal of internal 1970s garden (2000s). …”155 [188] In support of these observations, the Conservation Management Plan includes the Clarke Gazzard plans and photographs showing the demolition of the 1930s auditorium with the 1955 “book ends” remaining.156 The Conservation Management Plan then includes a series of “Evolution diagrams” as figures 21 to 23, which are said to identify the three major stages of the evolution of the building. [189] In section 4.0, the Conservation Management Plan provides further detail about the extent of pre-1955 fabric that remains, including photographs of the relevant 154 Exhibit 5.03 p 47 (emphasis added). 155 Exhibit 5.03 pp 58 and 61 (footnotes omitted). 156 Exhibit 5.03 pp 59 and 60. -- 53 of 143 -- 54 fabric.157 It also includes annotated floor plans in section 4.5 of the Conservation Management Plan.158 [190] Although Ms Pearce disagrees with the description of the pre-1976 elements as involving “little” of the 1930s elements, she does not challenge the accuracy of the Conservation Management Plan insofar as it identifies the pre-1976 elements of the former De Luxe Theatre.159 The heritage experts extract the annotated floor plans, without challenge, in their joint report.160 [191] I accept that the pre-1976 fabric of the former De Luxe Theatre is that which is identified on the annotated floor plans in section 4.5 of the Conservation Management Plan as “possible 1933 fabric” and “1955 fabric”. In general, the external fabric comprises the 1955 suspended awning over the footpath, the 1950s brick bookend towards the Goodwin Terrace frontage and the 1950s rear bookend, albeit with some alterations to that external fabric. Notable alterations to the rear bookend include replacement of the windows with metal sliding windows, the addition of an external stair providing access to the second-floor residence, the addition of a large commercial exhaust stack, a new arched entry at the western end of the ground floor, and the addition of a large advertising sign in front of the south facing gablet.161 Much of the 1950s interior fabric has been replaced. However, the rear bookend includes internal fabric associated with the 1955 apartment. Does the proposed development involve inappropriate removal or demolition of the fabric of the former De Luxe Theatre? [192] Having regard to the matters referred to in paragraphs [109] to [125] and [165] to [191] above, I find that both the front bookend and the rear bookend form part of the cultural heritage significance of the former De Luxe Theatre. The middle part of the existing structure, which was constructed around 1977, does not. [193] Although the Conservation Management Plan suggests that the rear bookend is of less significance than the front bookend, it is identified as a pre-1976 element. As such, Temporary Local Planning Instrument No. 7 calls for its protection. [194] The proposed development does not involve complete demolition of the former De Luxe Theatre. Rather, as I have mentioned in paragraph [30] above, the heritage retention and demolition component of the proposed development involves, in broad terms: (a) the retention and re-use of the front bookend; (b) the demolition of the middle part of the existing structure; and (c) the demolition of the rear bookend. 157 Exhibit 5.03 pp 63-70 158 Exhibit 5.03 pp 71-3. 159 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 9 June 2022) 55-6. 160 Exhibit 7.04 pp 41-2. 161 Exhibit 5.03 p 66; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 9 June 2022) 56- 7. -- 54 of 143 -- 55 [195] Given the proposed development involves only partial demolition of the former De Luxe Theatre, two of the Appellants allegations of non-compliance can readily be dismissed at the outset. They relate to overall outcome (g) and performance outcome PO9 that are referred to in Temporary Local Planning Instrument No. 7. When those assessment benchmarks are read in context, it is apparent they relate to complete removal or complete demolition. As such, the assessment benchmarks are not applicable. [196] It is equally readily apparent that, because of the proposed demolition of the rear bookend, the proposed development does not comply with that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting: (a) specific outcome (5)(i) in s 3.8.4 of City Plan; (b) overall outcome (h) in s 8.2.9.2(2) of the Heritage overlay code; and (c) performance outcome PO10(a) in the Heritage overlay code.162 [197] Those assessment benchmarks adopt a rigid approach to demolition. They call for a binary consideration of whether an identified element is retained or demolished. These assessment benchmarks do not, on their face, admit of the same degree of flexibility that appears in assessment benchmarks within City Plan itself. [198] That Temporary Local Planning Instrument No. 7 adopts a stringent policy is supported by the Note to specific outcome (5)(i), which states: “Any assessable development that is inconsistent with this provision is considered not to be in the public’s interest.” [199] The proposed development involves a clear departure from Temporary Local Planning Instrument No. 7. [200] In an assessment of the proposed development undertaken only against these assessment benchmarks, it is easy to accept the Appellants’ case that the non- compliances are deserving of decisive weight and that the development application should be refused. However, the assessment process under s 45 of the Planning Act 2016 requires me to have regard to other relevant matters. They impact on the weight to be attributed to the non-compliances with these assessment benchmarks in this case. I deal with the relevant matters later in these reasons. Does the proposed development appropriately recognise, conserve, respect and protect the cultural heritage significance of the former De Luxe Theatre? [201] Ms Archer and Mr Purcell allege non-compliance with: (a) the overall outcomes in s 8.2.9.2(2)(a), (b), (d) and (e) and performance outcomes PO3 and PO5 of the Heritage overlay code; and 162 Outline of Argument on behalf of the Appellant (Archer) pp5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7, 19-20 and 22-4. -- 55 of 143 -- 56 (b) that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting: (i) specific outcome (5)(ii) in s 3.8.4 of City Plan; (ii) overall outcome (i)(b) in s 8.2.9.2(2) of the Heritage overlay code; and (iii) performance outcome PO10(b), (c) and (d) in the Heritage overlay code.163 [202] These assessment benchmarks call for consideration of: (a) whether the proposed development appropriately recognises, conserves, respects and protects the cultural heritage significance of the former De Luxe Theatre; and (b) whether the design and siting of the proposed development is compatible with, and appropriately responds to, the cultural heritage significance of the former De Luxe Theatre, including its contextual significance. [203] These are value judgments about the appropriateness of the impact occasioned by the proposed development. When the assessment benchmarks are read in the context of City Plan as a whole, it is evident that there is a degree of flexibility in them. [204] In ascertaining the degree of flexibility intended, it is useful to start with the Strategic framework. As I have noted in paragraph [121] above, the Strategic framework sets the policy direction for the Gold Coast to 2031. [205] The provisions of the Strategic framework do not call for complete avoidance of alteration to, or demolition of, every feature or material that forms part of a place of cultural heritage significance. Rather, the focus is on the protection of the cultural heritage place considered as a whole. This is evident from: (a) the strategic outcome about cultural heritage in the city shaping theme “a safe, well designed city” in s 3.8.1, which states: “(5) Places of cultural heritage are identified and protected.”164 (b) the specific outcomes in s 3.8.4.1 for the “Element – Cultural heritage” that refine and further describe the strategic outcome in s 3.8.1, and which include: “(1) Places of cultural heritage significance entered in the State and local heritage register are conserved. (2) The viable reuse of places of cultural heritage occurs where appropriate and where impacts can be managed to an acceptable level.” 163 Outline of Argument on behalf of the Appellant (Archer) pp5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7, 19-20 and 22-4. 164 Exhibit 5.01 p 39: City Plan s 3.8. -- 56 of 143 -- 57 [206] That City Plan provides a degree of flexibility and admits of some impact, provided it is managed to an acceptable level, is also evident in the provisions of the Heritage overlay code, including: (a) the overall outcome in s 8.2.9.2(2)(c), which states: “New land uses are considered for under-utilised heritage buildings which are compatible with the stated significance of the place.” (b) performance outcome PO4, which states: “Changes to the heritage place are managed to ensure the significance of the place is conserved and documented.” (c) performance outcome PO8, which relates to alternative development outcomes for re-use of heritage places and states: “Alternative development outcomes allow for the viable re-use of the local heritage place where: (a) the heritage values of the place are conserved; (b) the development does not compromise residential amenity for the adjoining properties; and (c) the development is compatible with the character of the surrounding area.” [207] With respect to the relevant value judgments about heritage impacts, Ms Archer’s submissions were limited. She submits: “1.4 The Appellants also submit that the evidence of its experts and lay witnesses demonstrate that the height, scale and bulk of the Development Application is unacceptable because: … (b) the Development Application: (1) involves the removal and demolition of the Old Burleigh Theatre Arcade (Heritage Building); (2) involves the partial demolition of the Heritage Building, which does not protect the pre-1976 elements of the Heritage Building; (3) is not appropriately designed to respect and respond to the culturally significant elements of the Heritage Building and its contextual cultural significance within the urban fabric of Burleigh Heads; … -- 57 of 143 -- 58 3.4 The Appellants submit that the Development Application should not have been approved by the Respondent as it does not comply with City Plan: (a) especially in relation to the non-preservation or retention of the Heritage Building, being a heritage listed building on the Subject Land; … 5.24 There appears to be a conflict between relevant aspects of the Burra Charter 2013 (Charter), and the Proposed Development. Articles 8 and 15 of the Charter do not envisage a change of this scale or loss of significant fabric of the Heritage Building’s rear ‘book end’.”165 [208] I have already addressed all other submissions made by Ms Archer with respect to heritage in paragraphs [127] to [137] and [145] to [150] above. Mr Jones did not make any oral submissions on Ms Archer’s behalf.166 [209] Here, the submissions of Ms Archer offered no appreciable assistance about the evidence she relies on to support her allegations of non-compliance. The submissions fall well short of what is expected. [210] Mr Purcell was a self-represented litigant. He did not provide written submissions, electing instead to confine his submissions to those made orally. His oral submissions provided focussed assistance about the evidence he relies on and why he says that evidence should be preferred to other evidence. While brief, his oral submissions admirably addressed the expectations referred to in Peach v Brisbane City Council & Anor.167 [211] Leaving aside the issue of the loss of cultural heritage significance occasioned by the demolition of the rear bookend,168 Mr Purcell advances two reasons why he says the design of the proposed development is not compatible with, and does not appropriately respond to, the cultural heritage significance of the former De Luxe Theatre. First, Mr Purcell submits that the podium does not reflect the form and scale of the heritage listed building because it extends the podium beyond the existing dimensions of the heritage building. Second, Mr Purcell submits that the tower component of the proposed development does not allow the form and shape of the heritage building to be easily recognised. Mr Purcell identified that he relied on the evidence of Ms Pearce in this respect. He submits that her evidence should be preferred to that of Mr Richards and Mr Elliott on the basis that she is more experienced. In that regard, Mr Purcell says that Ms Pearce is a registered architect and has executive membership to ICOMOS,169 which Mr Purcell described as the 165 Outline of Argument on behalf of the Appellants (footnotes omitted). 166 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-9. 167 [2019] QPEC 41; [2020] QPELR 54, 67 [72]. 168 I accept Mr Purcell’s submissions that the loss results in non-compliance. I have already addressed that issue in paragraphs [192] to [196] above. 169 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 24-5. -- 58 of 143 -- 59 pre-eminent international body and author of the Australia ICOMOS Burra Charter, 2013 (“Burra Charter”).170 [212] Ms Pearce addresses the matters to which Mr Purcell refers in the Joint Report of Heritage Experts.171 In that report, Ms Pearce opines that the proposed development does not provide an appropriate response to the identified cultural heritage significance of the local heritage place. Her opinion is founded on four matters. [213] First, there is a loss of a substantial portion of pre-1976 building fabric.172 Ms Pearce says significant pre-1976 elements of the rear bookend include the south elevation, east and west side returns, roof form including deep eaves and fenestration, face brickwork, precast window lintels, rendered banding, timber windows (including frames, sills and remnant leaves) and the metal raingoods (being gutters and downpipes).173 [214] Second, Ms Pearce opines there is a removal from the local context of the form of the building that contributes important landmark qualities communicating its historic use.174 Ms Pearce says that during its 92-year life, the building has become an important landmark in the locality, contributing significantly to the community life of Burleigh. Ms Pearce says that the subject building was operational as a dance hall and theatre for approximately 36 years but has subsequently operated with different uses over the past 56 years. While it involved redevelopment, Ms Pearce says the place was re-established as the Old Burleigh Theatre Arcade and became a highly popular retail and recreation destination. She says that because of the ongoing use of the building, together with the building’s name and the surviving pre-1976 elements, there continued to be a strong visual representation of the building’s origins as a theatre. While the building was changed in 1977 and underwent a change of use, with impacts on the 1955 building fabric, the significant history of the building’s origins remained unchanged. Ms Pearce says that the surviving building elements represent the historic use and remain critical in demonstrating the tangible link to, and understanding of, this significant history.175 [215] Ms Pearce accepts that the Conservation Management Plan describes the rear bookend as having features with less importance as compared to the front bookend. Nevertheless, she says that its demolition results in a loss of building form, landmark, and character qualities.176 She says it removes significant, identifiable form and fabric that is visible in views from Memorial Park, the Burleigh Heads commercial precinct to the west and the Gold Coast Highway to the south.177 Ms Pearce opines that removal of the side and back elevations will result in the loss of important aesthetic attributes that are identified in the entry on the local heritage register.178 170 The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013. 171 Exhibit 7.04. 172 Exhibit 7.04 p 29. 173 Exhibit 7.04 pp 26-7. 174 Exhibit 7.04 pp 28-9. 175 Exhibit 7.04 p 27. 176 Exhibit 7.04 pp 23 and 25. 177 Exhibit 7.04 pp 25 and 36. 178 Exhibit 7.04 pp 36-7. -- 59 of 143 -- 60 [216] Third, Ms Pearce says that the reduction in internal social spaces has a detrimental impact on the cultural heritage significance of the building.179 She says that a substantial proportion of the ground floor is given to residential services, reducing the available area for community access and interaction. Ms Pearce’s view that the reduction is unacceptable is premised on her opinion that there is significance to the previous use of arcade space for restaurants, cafes, a surfboard shaper, and small- scale retail operations. Ms Pearce says the longest running commercial tenant was the Mexican restaurant, “Montezuma’s”, which remained until the recent property ownership changes.180 [217] Ms Pearce accepts that the post-1976 fabric is not identified to be of cultural heritage significance in the statement of significance criterion or the Conservation Management Plan. However, she considers that the use and social significance of the arcade in the building following the 1976 developments may not have been adequately examined. She says that this is demonstrated in the peer review of the Conservation Management Plan.181 Ms Pearce says that the upper-level flats were rented by various local people who contributed to the surfing community, along with nationally recognised champion surfers. She contends that over the decades of commercial operation, the arcade was described as a popular meeting place for the local beach-going and surfing community and has substantial meaning for many residents. She relies on the statements by local community laypersons in the submissions and the affidavits to that effect.182 [218] Fourth, Ms Pearce says that the cultural heritage significance of the building is detrimentally impacted by the unresponsiveness of the design, which she says does not reflect or portray the identified attributes of character embodied by the building.183 Ms Pearce is critical of the additional podium area extending to the south and of the substantial tower located behind the retained front façade and over the footprint of the Burleigh Theatre Arcade. She says the heritage frontage is overborne by the scale of the tower and the design of the proposed rear podium bears no relationship to the current form of the heritage building. Ms Pearce says that these design aspects do not interpret or respond to the form or scale of the significant aspects at the west and south of the Burleigh Theatre Arcade. In her view, they totally change the nature of site. She says that, except for the front façade, the footprint and form of the Burleigh Theatre Arcade is lost.184 [219] Ms Pearce also criticises the design because, when viewed from Goodwin Terrace, the proposed tower is set off-centre to the clearly symmetrical, stepped façade parapet. She says that these aspects of the design have some adverse effect on the aspects of character, setting and appearance of the local heritage place.185 [220] I have difficulty accepting the opinions proffered by Ms Pearce for three reasons. [221] First, I do not accept Ms Pearce’s opinion that the proposed development will remove the form of the building that contributes important landmark qualities 179 Exhibit 7.04 pp 28-9. 180 Exhibit 7.04 p 22. 181 Exhibit 7.04 p 39. 182 Exhibit 7.04 p 22. 183 Exhibit 7.04 pp 28-9. 184 Exhibit 7.04 p 25 and p 28. See also Exhibit 7.04 pp 37 and 42.. 185 Exhibit 7.04 p 37. -- 60 of 143 -- 61 communicating its historic use from the local context. In explaining her opinion, Ms Pearce places weight on the ongoing use of the Old Burleigh Theatre Arcade as a highly popular retail and recreation destination. As such, Ms Pearce has failed to focus on the identified cultural heritage significance of the former De Luxe Theatre. This infects her opinion such that I do not consider her opinion to be reliable. [222] Second, a key matter informing Ms Pearce’s opinion was her view that the reduction in internal social spaces will have a detrimental impact on the cultural heritage significance of the building. Her views in that respect were founded on the fact that the use of the arcade for a range of restaurants, cafes, a surfboard shaper, and small-scale retail operations had substantial meaning for many residents. While that may be so, those uses are not identified as having cultural heritage significance in the statement of significance. [223] Third, I do not accept Ms Pearce’s opinion that the cultural heritage significance of the building is detrimentally impacted by the unresponsiveness of the design. Her criticisms are not supported by the plans, elevations, and visual representations of the proposed development in Exhibits 2.01 and 2.02. [224] Mr Elliott and Mr Richards disagree with Ms Pearce about the suitability of the proposed development in heritage terms. [225] Mr Elliott is of the opinion that the proposed development is compatible with, and appropriately responds to, the cultural heritage significance of the former De Luxe Theatre, including its contextual significance. [226] In explaining his opinion, Mr Elliott notes that the Deluxe Theatre building was originally constructed in 1930 and operated as a dance hall and a cinema from that time until 1966, when the venue closed. After approximately a decade of lying dormant, the building was partially demolished, reconstructed and internally reconfigured as a shopping arcade. Mr Elliott says that this is a different land use to that which is identified as of significance. He says that the subject building has not been utilised as an entertainment venue of any description for the past 56 years.186 [227] Mr Elliott notes that the identified cultural heritage significance of the place is aligned with the practice of independent film exhibition by owner-operators on the Gold Coast. This is the significance referenced in criterion (a) of the statement of significance for the former De Luxe Theatre quoted at paragraph [171] above. Mr Elliott opines that the building’s significance in that regard is somewhat time- damaged and ill-founded given its current configuration and the more recent land uses within the building.187 [228] In terms of the aesthetic importance attributed to the former De Luxe Theatre building under criterion (e) of the statement of significance, Mr Elliott says that the local landmark status of the building is predominantly maintained through the retention and adaptation or integration of the three-storey, circa-1950s structure at the front of the building and the series of engaged brick piers along the western (Gold Coast Highway) frontage of the subject land. He says the design of the proposed development maintains significant views to the historic building from the 186 Exhibit 7.04 p 29. 187 Exhibit 7.04 p 29. -- 61 of 143 -- 62 surrounding streets and public areas. Mr Elliott notes that the proposed development retains all the extant architectural elements of the “striking feature” front façade of the building that is readily viewed from the beach, Mowbray Park, and the public promenade across the road to the north.188 In addition, Mr Elliott notes that the articulated face brickwork façade that extends down the western side of the building will be retained and visible from the Gold Coast Highway. It will be complemented by face brickwork piers that are set in the same module of repetitive bays as those that presently exist along the western façade.189 [229] Mr Elliott acknowledges that the existing rear façade of the heritage building is to be demolished and the open space behind it is to be redeveloped as part of the podium structure for the proposed mixed-use tower. However, he opines that the current “back-of-house” view of the heritage building is neither significant nor critical to the conservation of the inherent cultural heritage values attributed to the subject land or the maintenance of a contextual setting for the former De Luxe Theatre building. In that respect, Mr Elliott notes that the unobstructed views of the western (side) and southern (rear) elevations of the heritage building have only recently been revealed. Those aspects of the building were previously substantially concealed from public view by ancillary structures situated immediately to the west and south of the heritage building. Mr Elliott’s observations in this regard are supported by the elevated panoramic satellite image of the subject land taken on 15 September 2019.190 They are also supported by many photographs in Exhibit 2.02 and in the Architecture Joint Experts’ Report.191 [230] In response to criteria (g) & (h) (i.e., the social importance and special association with a person or organisation respectively), Mr Elliott considers that the previous use of the building as a major entertainment venue from 1930 to 1966 and the special association with William Fradgley and his family and the Thams brothers and their family are historical aspects of this building that are related to its operational use as an entertainment venue in Burleigh Heads up until about half a century ago. That being the case, Mr Elliott opines that any redevelopment of the subject land that seeks to retain a substantive recognisable portion (or portions) of the heritage building would appropriately recognise and respond to these aspects of heritage significance. [231] The proposed development introduces a further alternative land use mix to the subject land, being use for a mid-rise residential tower with commercial podium tenancies below. However, Mr Elliott notes that the circa 1950s rebuilding and renovation of the De Luxe Theatre by the Thams family to address cyclone damage already introduced a considerable residential component to the subject land, including a residence and six ancillary flats, and commercial tenancies at street level. While the redevelopment of the building at that time maintained the primary use of the building as an entertainment venue (i.e., as a theatre), the theatre operations only continued for about another decade after that work was completed. 188 Exhibit 7.04 p 29. 189 Exhibit 7.04 pp 37 and 43. 190 Exhibit 7.04 pp 13 and 37-8. 191 See, for example, Exhibit 7.03 pp 13 (figure 3), 15 (figure 6), 16 (figure 7), 20 (figure 14) and 21 (figure 15). -- 62 of 143 -- 63 [232] Mr Elliott opines that, drawing together the strands of cultural heritage significance attributed to the former De Luxe Theatre, the extent to which the extant building has been retained and integrated into the proposed development achieves an appropriate heritage conservation and management outcome. He says that the proposed development continues to represent the key elements of the former De Luxe Theatre as a local landmark and as a signifier of the publicly available entertainment offerings within the Burleigh area during the interwar and immediate post-World War II periods. Mr Elliott says the retained components of the heritage building within the proposed development represent the respective historical aspects of the subject land reflected in criteria (g) and (h), both of which having long since been discontinued when the former De Luxe Theatre closed its doors in 1966. [233] Mr Elliott disagrees with Ms Pearce about the significance of the more recent alternative commercial uses. He says that the use of the subject building as a retail arcade is not identified as a basis of local cultural heritage significance. He says that even if there are local connections to the Mexican restaurant tenancy and connections to the local surfing community, neither of these aspects are identified as contributing to the cultural heritage significance of the subject land. Consequently, he says they are not relevant to the heritage assessment of the proposed development.192 [234] Mr Richards says that there were extensive changes to the fabric in the 1950s and again in the 1970s.193 The major alterations in the 1970s removed the theatre auditorium and replaced it with a shopping arcade with masonry side walls, skillion roofs and glazed walls to the east. It removed the auditorium space, both as a use and as a structure, and replaced it with new materials and a new use in between the two 1950s portions of the building, being the front and rear bookends. He says that these wholesale changes mean the integrity of the fabric of the place as a theatre building has been all but destroyed.194 Only very small parts of the building or subject land are of such cultural heritage significance as to require retention and conservation. They are not such as to prevent redevelopment of parts of the subject land.195 [235] Mr Richards says that the loss of the middle section of the building, and its redevelopment, has no impact on the cultural significance of the subject land. [236] In Mr Richard’s view, the loss of the rear masonry bookend also has little detrimental impact on the cultural significance of the subject land. He describes the rear elevation as utilitarian and says that it does not provide important evidence of the picture theatre use.196 Further, the eastern façade of the building is not exposed or clearly visible from all approaches. Rather, it is hidden by the adjoining development. As for the western side elevation of the building, it features a large section of 1970s fabric that is not of cultural significance. Mr Richards also notes that the western elevation of the building has only recently been exposed by the resumption of the former petrol station on the adjoining land to provide for the construction of the light rail network to Burleigh Heads. As such, the western 192 Exhibit 7.04 pp 23 and 39. 193 Exhibit 7.04 p 31. 194 Exhibit 7.04 p 31. 195 Exhibit 7.04 p 32. 196 Exhibit 7.04 p 35. -- 63 of 143 -- 64 elevation of the building is not a longstanding view in the townscape of Burleigh Heads. It is not a view that, of itself, is of cultural significance.197 [237] In Mr Richards’ opinion, the retention of the front elevation of the former theatre is sufficient. He considers that its retention will preserve the strong visual representation of the building’s origins as a theatre and the tangible link to the important contribution the place has made to the history of Burleigh and the Gold Coast as a theatre.198 [238] In terms of the building’s significance as a rare example of an early theatre building on the Gold Coast, Mr Richards opines that a large section of the proposed demolition is not demolition of a former picture theatre. As such, he says that it is not of relevance to the discussion of rarity. The shopping arcade was not an early theatre building. [239] Mr Richards opines that the proposed development does not impact on the social significance of the former De Luxe Theatre. He explains that physical fabric is often more relevant to aspects of cultural significance such as historical significance or aesthetic significance, where the significance inherently resides in the physical fabric of the heritage place and can be easily identified or highlighted. In contrast, social significance more often resides in individual or collective memories as an idea of a place in history. This significance is less reliant on physical fabric.199 [240] Mr Richards accepts that the theatre building has social value and a level of social significance to some members of the local Burleigh community as a relatively early building, and as an early picture theatre (in part) at Burleigh Heads and the Gold Coast. However, the theatre building was never a publicly owned building and did not enjoy the associations of a public building. [241] Mr Richards says that the feeling the community has for the building in the 2010s and 2020s is to be understood in the context that it is a former theatre that stopped showing films in the 1960s and that lost its auditorium in the 1970s. As such, to the extent that the former De Luxe Theatre building has social significance in 2022, despite all the changes that have occurred to the subject land over time, the significance has limited connection to the physical fabric of the place.200 [242] Mr Richards says that the more recent social interaction with the place referred to by Ms Pearce will be maintained with the proposed development. The proposed development provides ample opportunity for continued interaction in the ground floor of the building in those parts dedicated to retail and commercial tenancies and to indoor and outdoor dining, and in the double height atrium space on the ground level that will be available for public access.201 [243] Mr Richards is of the opinion that the character of the heritage place is established by the form and building materials of the front elevation of the building, which is retained by the proposed development. Further, were it considered relevant, the masonry character of the building along its western elevation will be represented by 197 Exhibit 7.04 p 35. 198 Exhibit 7.04 p 32. 199 Exhibit 8.03 p 5. 200 Exhibit 8.03 p 5. 201 Exhibit 7.04 p 33. -- 64 of 143 -- 65 a series of expressed masonry elements that match the colour of the retained front section of the building. They represent the current painted masonry piers.202 [244] In Mr Richards’ view, the demolition of the middle section and the rear section does not adversely affect the appearance of the heritage place.203 The appearance of the heritage place will be appropriately respected by the retention of the front elevation. Mr Richards disagrees with Ms Pearce’s view that the off-centre tower and the lack of setback of the tower from the podium to the west adversely affect aspects of character, setting and appearance of the local heritage place.204 In Mr Richards’ opinion, the new built form is sufficiently separated from the retained front elevation of the building to permit the two elements (being the heritage front elevation and the new tower) to be understood and appreciated as separate and distinct elements. [245] In addition, in Mr Richards’ opinion, the historical interpretation proposed as part of the proposed development will deliver a better outcome for the interpretation of the history of the former De Luxe Theatre than the current situation. He says that it is also sufficient to comply with the relevant and applicable planning instruments. [246] According to the Burra Charter, interpretation is used to explain or highlight the cultural significance of places where the significance is not readily apparent or hidden. Interpretation is also used to continue the important stories of a place where elements of fabric of a heritage place no longer survive, or are demolished or cannot be retained, and where the elements are important to commemorate the previous history and former use of a place. The naming of the 1970s shopping arcade as the “Old Burleigh Theatre Arcade” was a method of historical interpretation at that time, recognising the history of the place in the present and continuing it into future when the theatre use had long since finished.205 [247] Here, the podium level of the building along the western elevation will be expressed by a series of brick piers along the lower floors. In Mr Richards’ view, the piers seek to distinguish the podium level of the new building from the tower to maintain the current setting of the building as much as possible.206 Further, the new design of the tower will incorporate the outline of the western wall of the existing building in the paving pattern along the western colonnade to acknowledge the footprint of the existing building within the new building design.207 [248] The front entrance off Goodwin Terrace will be retained and remain as the main entrance to the building on its central axis. The former theatre sign will be reconstructed as a cantilevered blade sign and fixed to the front elevation of the building.208 [249] The rear wall of the retained front section of the building is proposed to be finished with original face brick or render painted in brick colour. A public arcade will be created internally on the ground floor with a two-storey volume behind the retained 202 Exhibit 7.04 p 38; Exhibit 8.03 p 6. 203 Exhibit 7.04 p 38. 204 Exhibit 7.04 p 39. 205 Exhibit 8.03 p 7. 206 Exhibit 7.04 pp 38-9. 207 Exhibit 8.03 p 6. 208 Exhibit 8.03 p 6. -- 65 of 143 -- 66 front section of the building and the internal face brick wall. This wall will be visible within the proposed new double height central arcade volume and will display interpretive, large-scale photos. [250] The cultural history of the subject land will be told internally with photos and memorabilia (if any can be found via a social media campaign with locals) representing the key themes of the subject land as theatre, cinema, dance hall, arcade etc.209 A theatre story will be curated telling the history of the place as a movie theatre through motion pictures via a screen with projected motion picture images (including the last film shown in the Burleigh Theatre – John Wayne’s “Circus World”).210 The evolution of the subject land will be told showing the key changes and periods of the subject land’s development through physical models.211 [251] The 1950s apartments will be showcased in the new development. This will be achieved through salvaging items from the remaining rear bookend apartment on the second floor and remnants from the former apartment on the first floor. The salvaged items, including 1950s lights, doors, fittings, and fixtures, will be reused in a curated arrangement of artefacts with interpretive signage in display cases or a glass window box.212 [252] A historical colour scheme study will be done on all painted surfaces of the retained heritage fabric to guide and inform proposed colour schemes for the proposed development before any works are done.213 [253] In terms of setting, Mr Richards explains that the subject land is in the centre of Burleigh Heads. The dominant built environment of the area, and the general setting of the heritage place, is one of mid-rise residential buildings. Mr Richards opines that the proposed development represents a compromise between the heritage retention of the most significant elements of the heritage place and a redevelopment of the subject land in accordance with its underlying zoning.214 [254] I accept the evidence of Mr Elliott and Mr Richards. I prefer their evidence to that of Ms Pearce. Although they do not have the same qualifications as Ms Pearce, they are appropriately qualified to express expert opinions about the heritage matters in issue in this appeal. [255] Further, Mr Richards’ evidence about the interaction between the new elements of the proposed development and the retained heritage elements accord with the plans, elevations, and visual representations of the proposed development in Exhibits 2.01 and 2.02. His opinions about the extent of contribution of the rear bookend to the landmark status of the proposed development is consistent with the entry in the local heritage register (read as a whole) and is well-demonstrated by the many photographs in Exhibit 2.02 and the Architecture Joint Experts’ Report.215 209 Exhibit 8.03 p 6. 210 Exhibit 8.03 p 7. 211 Exhibit 8.03 p 7. 212 Exhibit 8.03 p 7. 213 Exhibit 8.03 p 7. 214 Exhibit 7.04 p 39. 215 Exhibit 7.03. -- 66 of 143 -- 67 [256] The evidence of Mr Elliott and Mr Richards comfortably satisfies me that the proposed development complies with: (a) the overall outcomes in s 8.2.9.2(2)(a), (b), (d) and (e) and performance outcomes PO3 and PO5 of the Heritage overlay code; and (b) that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting: (i) specific outcome (5)(ii) in s 3.8.4 of City Plan; (ii) overall outcome (i)(b) in s 8.2.9.2(2) of the Heritage overlay code; and (iii) performance outcome PO10(b), (c) and (d) in the Heritage overlay code. Is the proposed use compatible with the conservation and management of the cultural heritage significance of the former De Luxe Theatre? [257] Ms Archer and Mr Purcell allege non-compliance with performance outcome PO1 of the Heritage overlay code. It requires that development, in the form of a material change of use, is compatible with the conservation and management of the cultural heritage significance of the local heritage place. [258] The evidence of Mr Elliott and Mr Richards referred to above comfortably persuades me that the proposed development complies with performance outcome PO1 of the Heritage overlay code. Conclusion re heritage assessment [259] As I have found above, where there is substantial compliance with the assessment benchmarks with respect to heritage, the proposed development does not comply with all assessment benchmarks. It does not comply with that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting: (a) specific outcome (5)(i) in s 3.8.4 of City Plan; (b) overall outcome (h) in s 8.2.9.2(2) of the Heritage overlay code; and (c) performance outcome PO10(a) in the Heritage overlay code. [260] The failure to comply with the stringent policy in Temporary Local Planning Instrument No. 7 is a matter that, considered in isolation, weighs heavily against approval. However, that is not where the consideration of the appropriateness of heritage impacts ends. Other relevant matters must be considered. I address them in paragraphs [539] to [552] below. Is the built form of the proposed development appropriate? [261] The Appellants rely on issues relating to the built form of the proposed development to support refusal. [262] Ms Archer alleges that the built form fails to comply with: (a) s 3.3.2.1(9) of the Strategic framework; -- 67 of 143 -- 68 (b) the overall outcomes in s 6.2.2.2(2)(b)(v) and (vi) and (d)(i) and (iii) of the Medium density residential zone code; (c) performance outcomes PO1(c), PO2(b), PO3 and PO5 of the Medium density residential zone code; and (d) the overall outcomes in s 9.3.10.2(2)(a) and (c) of the High-rise accommodation design code.216 [263] Ms Archer’s written submissions in support of her allegations about the built form of the proposed development are of no meaningful assistance in relation to these allegations. [264] With respect to s 3.3.2.1(9) of the Strategic framework and the overall outcomes in s 6.2.2.2(2)(b)(v) and (vi) and (d)(i) and (iii) of the Medium density residential zone code, Ms Archer’s submissions do no more than assert that the evidence of her experts and lay witnesses demonstrates that the height, scale and bulk of the development application are unacceptable. The explanation in support of the assertion is a repeat of the contents of the assessment benchmarks. [265] The submissions relating to performance outcome PO1 of the Medium density residential zone code refer to the fact that the proposed development does not achieve the related acceptable outcome. That submission overlooks that demonstrating compliance with the acceptable outcome is not the only means of demonstrating compliance with the performance outcome.217 [266] The only reference to performance outcome PO2(b), PO3 and PO5 of the Medium density residential zone code and the overall outcomes in s 9.3.10.2(2)(a) and (c) of the High-rise accommodation design code is in a paragraph that lists those provisions of City Plan with which the Appellant alleges non-compliance.218 [267] Otherwise, Ms Archer’s submissions state: “3.4 The Appellants submit that the Development Application should not have been approved by the Respondent as it does not comply with City Plan: … (b) the Proposed Development is of a height, bulk, scale and density that is not in keeping with the reasonable expectations of the community for the Subject Land; and (c) the Proposed Development does not have any setbacks to the western property boundary or any setbacks between the podium and the tower on the western frontage of the building. 216 Outline of Argument on behalf of the Appellants pp 5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-8. 217 Exhibit 5.01 p 62: City Plan s 6.1(8). 218 Outline of Argument on behalf of the Appellants pp 5-6. -- 68 of 143 -- 69 … 5.43 In Upan Company Pty Ltd v Gold Coast City Council it was held by Jones J, in relation to unacceptable outcomes in respect of bulk and scale, that: “without setting the tower back from the street, be it by stepped design or podium and tower, the proposed development will result in a number of unacceptable planning outcomes. To use his terminology, it would result in the building unacceptably “dominating” or “crowding” the streetscape.” 5.44 Further his Honour concluded that, “without some degree of variation in site cover, be it by podium and tower or other stepped form of development, the proposed development would result in a building that would, to an unacceptable level, dominate or crowd the existing and planned streetscape”. 5.45 In line with the reasoning of Upan, there must be a greater setback to the Gold Coast Highway that will not result in crowding and dominating of the existing streetscape character of locality. (c) Issue 3 – Podium in the Medium Density Residential Zone 5.46 The Development Application includes the use of a podium and tower component for the Proposed Development. 5.47 The use of a podium is not a feature that is recommended or accepted in the Medium Density Residential Zone. 5.48 The Appellant submits that the use of the podium form of the building amounts to a building more akin to a high-rise building form. 5.49 The Appellant submits that the southern podium is not of the same dimensions of the Heritage Building and thus should not be allowed. 5.50 The Appellant submits that the use of the podium form of building has been triggered due to the need to preserve the Heritage Building. 5.51 Despite the apparent need for the podium, using a podium in the Medium Density Residential Zone amounts to being a further inconsistency with the City Plan. -- 69 of 143 -- 70 5.52 The Development Approval will therefore not be in line with the reasonable expectations of the community, because the form of the proposed building will be closer to a form of building that is inconsistent in the locality.”219 (footnotes omitted) [268] The sole evidence to which I was directed in support of these submissions was, in relation to the reasonable expectations of the community, a reference to the evidence “set out in the Lay Witness Statements, Exhibits 9.0001 to 9.0005”. [269] The observations of His Honour Judge Jones in Upan Company Pty Ltd v Gold Coast City Council220 are of no assistance to me. Leaving aside the absence of evidence before me about the design of the building to which His Honour referred, the observations relate to a different development and are of no utility to me in determining the impact of the design of this proposed development. [270] As for the balance of the submissions quoted above, they are devoid of detail so as to be meaningless. For example, they fail to identify the provision of City Plan with which they allege there is an inconsistency occasioned by adopting a podium form. [271] Mr Purcell joins in Ms Archer’s allegations of non-compliance with City Plan.221 In his oral submissions, he focussed on the lessening of setbacks to the Gold Coast Highway and the resultant impacts on streetscape character, legibility of the podium form and views of Burleigh Ridge.222 [272] Although I received no meaningful assistance from the Appellants in identifying the real issues in the case as they relate to built form, it seems to me that the assessment benchmarks on which the Appellants rely to support refusal call for the consideration of the following questions: 1. Does the building height of the proposed development accord with the intended building height pattern and the desired future appearance for the local area? 2. Does the proposed development reinforce the local identity and sense of place? 3. Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable? 4. Does the proposed development contribute to a varied, ordered, and interesting local skyline? 5. Does the proposed development achieve an excellent standard of appearance of the built form and street edge? 6. Does the proposed development contribute to housing choice and affordability? 219 Outline of Argument on behalf of the Appellants. 220 [2021] QPEC 27. 221 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 19-20. 222 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 25-7. -- 70 of 143 -- 71 7. Does the proposed development protect important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features? 8. Does the proposed development preserve the deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map? 9. Does the proposed development ensure the safe, secure, and efficient functioning of the Gold Coast Airport or other aeronautical facilities? 10. Does the density of the proposed development exceed that shown on the Residential density overlay map? [273] For context, before answering these questions, it is useful to outline the built form surrounding the subject land. What is the surrounding built form context? [274] As I have already mentioned, the subject land comprises two lots located near the intersection of Goodwin Terrace and the Gold Coast Highway. Following the recent resumption of vacant land to the west, the subject land now has a frontage to Gold Coast Highway of approximately 29 metres (along its southern and western boundaries) and a frontage to Goodwin Terrace of approximately 24 metres (along its northern boundary).223 [275] It is expected that the vacant land to the west, which forms part of the road reserve for the Gold Coast Highway, will be improved by works associated with the planned light rail station, including bus stops.224 Further west, across the Gold Coast Highway, is the Burleigh Heads Bowls Club and Memorial Park.225 Beyond is the James Street commercial precinct, which is characterised by low-rise commercial tenancies and is one of the main focal points of the local area.226 [276] To the north of the subject land, across Goodwin Terrace, is foreshore parkland, the Burleigh Heads Surf Life Saving Club, and the beach.227 Beyond the immediate vicinity, views towards the subject land from the beach and foreshore park are obscured by Norfolk Pine trees located in the foreshore park. In views towards the subject land from the beach, the adjoining La Pacifique tower does not become visible above the Norfolk Pines until the observer is about 500 metres from the subject land. At this distance, views towards the subject land take in a large expanse of beach and a range of built form, including towers along The Esplanade.228 [277] To the east of the subject land is the La Pacifique development, comprising a 17- storey multiple dwelling, with a height of 44.75 metres,229 and ground level recreation space. La Pacifique is built to the boundary that is shared with the 223 Exhibit 7.01 pp 8-9 [17]. 224 Exhibit 13.01. 225 Exhibit 7.01 p 9 [20] and pp 19-20 figures 17 and 18. 226 Exhibit 7.01 p 10 [29] and p 21 figure 21. 227 Exhibit 7.01 p 9 [21] and pp 20-2 figures 19, 20 and 23. 228 Exhibit 7.01 p 10 [30] and pp 18-9 figures 15 and 16. 229 Exhibit 8.01 p 13. -- 71 of 143 -- 72 subject land. Its primary orientation is away from the subject land, towards the beach and ocean. The La Pacifique tower is located to the northern part of its site, with the pool area located between the tower and Goodwin Terrace, and a tennis court located across the southern part of that site.230 [278] East of the La Pacifique site is the Burleigh Beach Tower, which is also a 17-storey multiple dwelling. It has a height of 45.5 metres.231 The Burleigh Beach tower is a relatively long tower (43 metres). Its long axis is oriented west to east and it presents its widest facades to the north and south. In contrast to La Pacifique, the Burleigh Beach Tower is located at the southern part of its site, with a tennis court located across the northern part.232 [279] Further to the east are two new nine-storey (29-metre-high)233 residential towers, being Norfolk at 46 Goodwin Terrace and Luna at 50 Goodwin Terrace. With lot areas of 1,012 square metres and 506 square metres respectively, these towers are located on smaller sites than La Pacifique (which is on a site of 2,308 square metres) and Burleigh Beach Tower (which is on a site of 5,075 square metres). The Norfolk and Luna developments have a higher site cover than La Pacifique and Burleigh Beach Tower and have limited open space at ground level.234 Although they are not as tall as La Pacifique and Burleigh Beach Tower, Norfolk and Luna reinforce the height, scale, and intensity of development on the southern side of Goodwin Terrace between Rudd Park and the Gold Coast Highway.235 [280] Further east of these towers is Rudd Park. At approximately 120 metres by 120 metres, Rudd Park is relatively large. It provides a well-defined eastern edge to the intense, taller development at the western end of Goodwin Terrace. In so doing, it reinforces its legibility as a distinct cluster of development.236 It creates a clear break between the pockets of built form on either side. Burleigh Pavilion sits north of Rudd Park, across Goodwin Terrace. The Pavilion and the Surf Club building are the only buildings located immediately adjacent the beach.237 [281] East of Rudd Park, on the southern side of Goodwin Terrace, is a pocket of development of varied form and intensity, including residential towers of 16 and 18 storeys (being the Gemini Court towers) and eight to nine-storey towers fronting Goodwin Terrace. John Laws Park extends along the northern side of Goodwin Terrace.238 [282] The Burleigh National Park is comprised of a large area of vegetated headland to the east and south-east of the subject land. It provides an attractive green backdrop to many views through Burleigh Heads. It connects with Burleigh Ridge Park, which follows Burleigh Ridge to the south of the local area.239 230 Exhibit 7.01 p 9 [22] and pp 13 and 15 figures 5 and 9. 231 Exhibit 8.01 p 13. 232 Exhibit 7.01 p 10 [23] and pp 13-4 figures 4 and 6. 233 Exhibit 8.01 p 13. 234 Exhibit 7.01 p 9 [24] and pp 15 and 23 figures 8 and 24. 235 Exhibit 7.03 p 26 [54] and figure 23 and p 24 figure 24. 236 Exhibit 7.03 p 27 [55]. 237 Exhibit 7.01 p 9 [25] and pp 23-4 figures 25 and 26. 238 Exhibit 7.01 p 9 [26] and p 22 figure 22. 239 Exhibit 7.01 p 10 [28] and pp 11-2 figures 1 and 3. -- 72 of 143 -- 73 [283] To the south of the subject land, across the Gold Coast Highway, is a large, seven- storey building that accommodates the Swell Resort and several commercial tenancies.240 [284] At the confluence of the Gold Coast Highway and the Esplanade, the north-south oriented beach and foreshore bands deviate eastward before giving way to Burleigh Hill.241 Does the building height of the proposed development accord with the intended building height pattern and the desired future appearance for the local area? [285] The applicable zone code in City Plan is a useful starting point when assessing whether the height of the proposed development accords with the intended building height pattern and the desired future appearance for the local area. This is because City Plan uses zones to organise the local government area in a way that facilitates the location of the preferred or acceptable land uses.242 Assessment benchmarks for each zone are contained in the corresponding zone code.243 Each zone code comprises a statement of the purpose of the code, the overall outcomes that achieve the purpose of the code, the performance outcomes that achieve the overall outcomes and the purpose of the code, and the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code.244 [286] The subject land is included in the Medium density residential zone.245 The purpose of that code is: “… to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents.”246 [287] The purpose is to be achieved through the overall outcomes, which include, relevantly: “(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;”247 [288] Performance outcome PO3 of the Medium density residential zone code is one of the performance outcomes that achieve the overall outcomes. Relevantly, it states: “PO3 Building height and structure height does not exceed that shown on the Building height overlay map.”248 240 Exhibit 7.01 p 10 [27] and p 24 figure 27. 241 Exhibit 7.01 p 25 [33]. 242 Exhibit 5.01 p 62: City Plan s 6.1(1). 243 Exhibit 5.01 p 62: City Plan s 6.1(4). 244 Exhibit 5.01 p 62: City Plan s 6.1(8). 245 Exhibit 5.01 p 2. 246 Exhibit 5.01 p 63: City Plan s 6.2.2.2(1). 247 Exhibit 5.02 pp 65: City Plan s 6.2.2.2(2). 248 Exhibit 5.01 p 71. -- 73 of 143 -- 74 [289] The subject land is shown on Building height overlay map – map 21 within an area bounded by a brown dashed line and the height indicated on the map is “29m”.249 [290] The proposed development is 14 storeys and 43.5 metres in height. It exceeds the height shown on the Building height overlay map. As such, the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code. [291] From the outset of the trial, JWZ Partners Development Group Pty Ltd acknowledged these non-compliances. It relies on the 50 per cent uplift in height permitted under s 3.3.2.1(9) of the Strategic framework, which it says takes precedence over the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code by virtue of s 1.4 of City Plan.250 [292] In Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast,251 I considered version 7 of City Plan to ascertain the degree of importance that the planning scheme attaches to the requirements in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code having regard to the context in which they appear, including by reference to ss 3.3.2.1(8) and (9).252 [293] His Honour Judge Williamson QC also undertook a similar exercise with respect to the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code in Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor.253 Although His Honour was considering version 8 of City Plan, there are no material differences between version 7 and version 8 of City Plan with respect to this issue.254 His Honour’s analysis was detailed and carefully considered, and I agree with it. It is consistent with my analysis in Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast.255 [294] The analysis in each of those cases had regard to many provisions of City Plan, including ss 3.3.2.1(8), (9) and (10), which specifically address building heights in urban neighbourhoods. They state: “(8) The Building height overlay map shows the building height pattern and desired future appearance for local areas within urban neighbourhoods. This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high rise areas. 249 Exhibit 5.01 pp 2 and 160. 250 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 14-5. 251 [2022] QPEC 31. 252 Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, [86]-[116]. 253 [2022] QPEC 32, [31]-[36] and [45]-[62]. 254 The amendments related to the Spit Master Plan and new communities (Eggersdorf Road, Ormeau) and minor and administrative amendments with respect to City Plan format, presentation, spelling, grammar, redundant/outdated terms, inconsistent numbering, cross-referencing, and other administrative matters. 255 [2022] QPEC 31. -- 74 of 143 -- 75 (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 elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features; (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. (10) Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods. Note: no criteria have been identified for building heights which are more than 50% above the Building height overlay map, because such increases are in conflict with City Plan.”256 [295] In short, for reasons explained in greater detail in those cases,257 with respect to impact assessable development of land identified in “Urban neighbourhoods” and in the Medium density residential zone: (a) non-compliance with the quantitative standard expressed through the building height overlay map is a matter of significance under City Plan; (b) building height in excess of the quantitative standard is not anticipated in the Medium density residential zone; (c) the building height overlay map, read with s 3.3.2.1(8) of the Strategic framework, indicates that development that is non-compliant with the 256 Exhibit 5.01 pp 34-5: City Plan s 3.3.2.1. 257 Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31, [86]-[116]; Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32, [31]-[36] and [45]-[62]. -- 75 of 143 -- 76 quantitative standard is inconsistent with the intended building height pattern and desired future appearance for a local area; (d) where the exceedance of the height designated on the building height overlay map is up to 50 per cent, s 3.3.2.1(9) of the Strategic framework admits of a degree of flexibility with respect to building heights, subject to close scrutiny of the development in the context of the identified outcomes; (e) if support for the proposed height is established by reference to s 3.3.2.1(9) of the Strategic framework, by operation of the hierarchy of provisions in s 1.4 of City Plan, the nature and extent of non-compliance with City Plan, in terms of building height, is materially diminished; and (f) diversity of appearance is contemplated across different urban neighbourhoods and, as such, each case will turn on the facts and circumstances relevant to that case; but (g) if there is not compliance with s 3.3.2.1(9) of the Strategic framework, non- compliance with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion; and (h) City Plan does not support an outcome where the degree of exceedance is greater than 50 per cent of the quantitative standard expressed through the building height overlay map: development of that nature conflicts with City Plan and any resultant non-compliance with s 3.3.2.1(10) of the Strategic framework and s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion. [296] Here, the subject land is mapped as: (a) part of an “Urban area” in Strategic framework map 1 – designated urban area; (b) part of “Urban neighbourhoods” under Strategic framework map 2 – settlement pattern; (c) part of the Medium density residential zone; and (d) subject to a height of 29 metres on the Building height overlay map – map 21. [297] At 43.5 metres in height, the height of the proposed development is 50 per cent more than the height shown on the Building height overlay map. As such, before considering the significance of the non-compliance with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code, closer examination of the proposed development is called for, having regard to the outcomes in s 3.3.2.1(9). I will now turn to consider those outcomes. Does the proposed development reinforce the local identity and sense of place? [298] The outcome sought in s 3.3.2.1(9)(a) is “a reinforced local identity and sense of place”. -- 76 of 143 -- 77 [299] The phrases “local identity” and “sense of place” are not defined.258 What constitutes the relevant local identity and sense of place are questions of fact to be determined having regard to the circumstances of the case. The phrases calls for consideration of both the planned and existing local identity and sense of place of the area in question.259 What informs the planned local identity and sense of place? [300] The local identity and sense of place that is planned for this local area is informed by multiple provisions of City Plan. City Plan anticipates that the answer will vary throughout the city, depending on the relevant locality under consideration. As is recognised in s 3.3.2.1(11): “Urban neighbourhoods are diverse and distinguished by a distinct appearance, identity and built form in each neighbourhood.”260 [301] The expected diversity in urban neighbourhoods is reinforced by s 3.3.2.1(4), which explains that urban neighbourhoods vary from pockets of detached housing on smaller lots to medium or higher-intensity places containing medium or high-rise buildings.261 [302] One of the planning concepts that informs the local identity and sense of place of an area is building height. The desired future appearance, in terms of height, for local areas within urban neighbourhoods is shown on the Building height overlay map.262 [303] As I have noted in paragraph [289] above, the subject land is mapped on Building height overlay map - map 21 with a height designation of 29 metres. [304] Consideration of Building height overlay map – maps 20, 21 and 23 reveals that the subject land is part of the high-rise spine between the Gold Coast Highway and the beach that runs from the southern end of Miami (proximate to Kelly Avenue) through to the southern end of Palm Beach (just north of Currumbin Creek), where a building height of 29 metres is anticipated, other than: (a) in the High density residential zone between Krazmann Avenue and First Avenue, where the anticipated height is 53 metres; (b) in the James Street commercial precinct, which is in the Centre zone and has an anticipated height of four storeys and 20 metres; and (c) for a small pocket of land in the Medium density residential zone between Rudd Park and Burleigh Heads National Park, where the anticipated height is three storeys or 15 metres.263 258 See Exhibit 5.01 p 12: City Plan s 1.2.1, which relates to definitions and the meanings of terms in City Plan. 259 Both are relevant to the assessment if the outcome in s 3.3.2.1(9) is to have work to do. If the provision is construed only by reference to the planned local identity and sense of place, no increase would be achievable as the planned identity or character is specified by reference to the height on the Building height overlay map: Exhibit 5.01 p 34 s 3.3.2.1(8). 260 Exhibit 5.01 p 35. 261 Exhibit 5.01 p 34. 262 Exhibit 5.01 p 34: City Plan s 3.3.2.1(8). 263 Exhibit 5.02 pp 1053, 1054 and 1056; Exhibit 5.01 p 159. -- 77 of 143 -- 78 [305] Building height is not the only consideration that informs the desired future character of local areas, or an areas local identity and sense of place. It is also informed by building form and the design of the building. This is apparent from the many provisions that address the planning goal about local identity and sense of place. [306] One such provision is in the “Creating liveable places” city shaping theme. It is one of six city shaping themes that plays an important role in shaping future growth and managing change across the city.264 The strategic outcomes for that theme state: “(3) Housing is provided in a form, height and scale consistent with the function, amenity and desired future character of local areas and centres, and promotes a sense of community cohesion and wellbeing. Housing is attractive and well- designed. (5) Varied building height and form throughout the city reinforces local identity, creates a sense of place and supports housing choice and affordability and the function and desired appearance of each local area.”265 (emphasis added) [307] The planning vision that informs these strategic outcomes is set out in the strategic intent.266 Part of the vision is to support the development of the Gold Coast as a world-class city.267 That is intended to be achieved by shifting from “development on the city’s fringe to redevelopment of urban centres and key inner-city neighbourhoods”.268 Not all urban areas will be renewed and transformed. Some are planned to be “protected to maintain their existing appearance and amenity”.269 [308] City Plan recognises that urban design excellence is also vital to any world-class city and that. The strategic intent states: “Our City’s urban design and architecture is world-class and our iconic skyline is internationally recognised. As we become a world- class city, well designed buildings and places will continue to reinforce local identity and sense of place, and provide places that are attractive, functional, safe and accessible, while supporting social diversity and cultural expression.”270 (emphasis added) 264 Exhibit 5.2 p 1 s 3.1(3). 265 Exhibit 5.2 pp 14-5 s 3.3.1. 266 Exhibit 5.2 p 2 s 3.2. 267 Exhibit 5.2 p 2 s 3.2.1. 268 Exhibit 5.2 p 2 s 3.2.1. 269 Exhibit 5.2 p 2 s 3.2.1. 270 Exhibit 5.2 p 3 s 3.2.1 (emphasis added). -- 78 of 143 -- 79 [309] “City shape and urban transformation” is another part of the vision that informs the planning goal with respect to local identity and sense of place. In s 3.2.2, the strategic intent states: “… building height and form will continue to vary across the city, including areas where building heights are planned to change abruptly to achieve a deliberate and distinct contrast in built form. This will reinforce community identity, create a sense of place, support housing choice and affordability and reflect the city’s different places and spaces …”271 (emphasis added) What informs the existing local identity and sense of place in this local area? [310] The elements of the surrounding neighbourhood that inform the local identity and sense of place are set out in paragraphs [274] to [284] above. How those elements contribute to the local identity and sense of place was considered by many of the expert witnesses, including: (a) the visual amenity experts retained by the Appellants and JWZ Partners Development Group Pty Ltd, Mr Dean Butcher and Dr Nicholas McGowan, respectively; (b) the architects retained by the Appellants and JWZ Partners Development Group Pty Ltd, Ms Pearce and Mr Leslie Curtis, respectively; and (c) the town planners retained by the Appellants, the council and JWZ Partners Development Group Pty Ltd, Mr Shane Adamson, Ms Jennifer Morrissy and Mr David Perkins, respectively. [311] Dr McGowan and Mr Butcher opine that the local area is a complex visual mosaic comprising discrete pockets of diverse land uses, pockets of open space, the continuous bands of the beach and foreshore parkland, and the backdrop of Burleigh Ridge and Headland.272 The mosaic includes: (a) the presently low-rise pocket of commercial and retail buildings centred on James Street, which the Building Height Overlay map contemplates may be redeveloped to a height of 20 metres; (b) an open space pocket comprising Memorial Park and the Burleigh Heads Bowls Club, which has a visual connection with the foreshore open space across the Gold Coast Highway; (c) a pocket of high-rise development comprising La Pacifique, Burleigh Beach Tower, Luna, and Norfolk, within which the subject land sits; (d) a pocket of medium-rise development comprising the Swell Resort on the southern side of the Gold Coast Highway; (e) another open space pocket comprising Rudd Park and the Burleigh Beach Tourist Park; 271 Exhibit 5.2 p 8 s 3.2.2. 272 Exhibit 7.01 p 25 [34] and [35] and p 26 figure 28. See also Exhibit 7.03 p 43 [81]. -- 79 of 143 -- 80 (f) a pocket of low-high rise development between Hayle Street and Burleigh Headland, including five high rise apartment buildings; and (g) less-distinctive, predominantly low-rise development to the west and south. [312] The entire mosaic (being the pockets of development, and the convergence and meandering of the Gold Coast Highway) is nestled between the foreshore and coastal edge, and Burleigh Ridge and Headland. Mr Butcher and Dr McGowan opine that the landscape features play an important role in framing and providing a backdrop for the urban form within this mosaic. They are important focal points, in terms of views and activity, that contribute to the legibility and amenity of the area. In addition, Mr Butcher and Dr McGowan say that the interaction of the diverging and meandering linear elements, being the Gold Coast Highway, the foreshore, and the beach, with the discrete pockets of development creates a fragmented and complex urban structure. They consider that the complexity of the mosaic is amplified by the presence of numerous focal points and landmarks in the area, including James Street, the Bowls Club, the Surf Club, Memorial Park, Rudd Park, John Laws Park, the Headland, and the beach.273 [313] Mr Curtis and Ms Pearce describe the site and its surrounding context in a similar manner. They provide multiple photographs in support of their description.274 [314] Dr McGowan explains that the existing local identity and sense of place is predominantly defined by: (a) the unique mosaic; (b) the prominent landscape features which frame and provide a backdrop for the urban form of the area; (c) the sense of enclosure provided to the beach by the curvature of the coastline, which is reinforced by the prominent vertical edge of Norfolk Pines along the adjoining foreshore open space; (d) the high-quality foreshore open space that adjoins the beach to provide an attractive landscape setting and a local focus for passive recreation; (e) the low scale traditional main-street style of the neighbourhood centre and its relationship to the adjoining bowling greens and park, which create a consolidated village centre opposite the foreshore; (f) the connectivity to the locality’s cultural past provided by the village centre and reinforced by the Old Burleigh Theatre Arcade; (g) the diverse range of formal and informal activities facilitated by the above qualities and spaces, creating a unique sense of vibrancy and animation that further defines the local sense of place.275 273 Exhibit 7.01 p 25 [35] and [36]. 274 Exhibit 7.03 pp 12-47 [31]-[88]. 275 Exhibit 7.01 pp 36-7 [65]. -- 80 of 143 -- 81 [315] Dr McGowan opines that the proposed development will reinforce the elements that define the existing local identity and sense of place because: (a) it will result in the addition of a high-rise building on a site where substantial built form is contemplated and in a pocket of development that is defined by other high-rise buildings of various scale, form, and appearance; (b) it will retain the Goodwin Terrace façade of the existing heritage building, which is a landmark in the local area; (c) it will be responsive to the unique qualities of the subject land in that it effectively addresses three street frontages in an engaging and visually interesting way; it punctuates a visually prominent site with an attractive and well-resolved building; and it integrates the existing heritage building in a way that mediates between the proposed tower, the existing streetscape, and the pedestrian scale of Goodwin Terrace and adjacent beach area; (d) it will provide comfortable pedestrian scale spaces that expand on the existing pedestrian realm adjacent the subject land and will integrate with the spaces that will be created around the light rail station. These spaces will contribute to the public realm and facilitate the formal and informal activities that contribute to the local sense of place; and (e) it will not diminish, in any meaningful way, any of the sense of place qualities, including the landscape features that are so important to the local identity and sense of place.276 [316] In Dr McGowan’s opinion, neither the height (being a height 50 per cent above that designated in the Building height overlay map) nor the boundary setbacks (including the zero western setback) will offend the local identity and sense of place. To the contrary, they facilitate the retention of parts of the heritage building and the adoption of a podium and tower form that creates better street-level definition than would occur from a simple tower form without a podium.277 [317] Mr Curtis expresses similar opinions to that of Dr McGowan, although he considers local identity and sense of place separately. Mr Curtis explains that, in his opinion, local identity is informed by specific attributes that constitute the identity of the place that, if changed, would alter its sense of place. He considers that local identity is informed by the impression of the environment based on what can be seen from and within the public realm. Mr Curtis considers that sense of place refers to how people experience and engage with a particular place. He says that what defines a sense of place may vary with the different relationships that individuals have to a place. A local person’s understanding of a location’s sense of place may vary from that of a casual visitor in terms of why they are attached to a place and the meaning that the place might hold for them.278 [318] Mr Curtis opines that the local identity is defined by: (a) the Burleigh Headland where it projects into the sea and terminates the extent of the rocky eastern end of Burleigh beach; 276 Exhibit 7.01 p 37 [66]. 277 Exhibit 7.01 p 37 [67]. 278 Exhibit 7.03 p 62 [95]-[99]. -- 81 of 143 -- 82 (b) the vegetated slopes of Burleigh Hill that extend from the headland inland to the southwest and provide a visual backdrop to the neighbourhood centre and adjoining foreshore areas; (c) the consolidated neighbourhood centre locality, which includes the low-rise scale of the local shopping village, and the open space character of the adjacent bowling greens of the Burleigh Heads Lawn Bowls Club and Memorial Park opposite the beach; (d) the north facing beach and adjoining contiguous foreshore open space with the prominent established Norfolk Island Pines that provide an edge to the foreshore to enhance its spatial definition; (e) the cluster of high-rise apartment buildings at the western end of Goodwin Terrace opposite the bowling greens, which provide a prominent landmark that contrasts with the low-rise scale and open space character of the neighbourhood centre locality; (f) the Old Burleigh Theatre Arcade, which is a minor landmark that provides a connection to the locality’s cultural history; and (g) the Burleigh Beach Pavilion, which provides a prominent commercial hospitality focus along the foreshore that attracts visitors and contributes to the foreshore’s activation.279 [319] In Mr Curtis’ opinion, the proposed development is shown to reinforce local identity through four design attributes. [320] First, the proposed development’s height and bulk, which are comparable to the existing high-rise apartment buildings at the western end of Goodwin Terrace that form part of an evolving cluster of high-rise apartment buildings. These existing buildings, through their contrast to the low-rise scale and open space character of the neighbourhood centre opposite, provide a prominent and established landmark that is integral to the locality’s identity. Mr Curtis says that the proposed development is consistent with and will reinforce the cluster as a landmark. [321] Second, the proposed development will retain the Goodwin Terrace façade of the ‘Old Burleigh Theatre Arcade’ building, which is a minor landmark that provides a connection to the locality’s cultural history. Mr Curtis says that the retention of the Goodwin Terrace façade, and its integration with the podium’s enhanced use, will reinforce its ongoing significance as part of the established urban fabric. [322] Third, the proposed development will contribute to an intensification of use that will assist to activate the proposed light rail station node, which is likely to become part of the locality’s identity. [323] Fourth, the distinctive appearance of the proposed development’s tower component, while contributing to the landmark presence of the high-rise cluster, will also screen the relatively austere appearance of the western façade of the existing La Pacifique high-rise apartment building. The proposed tower’s appearance will address the Burleigh Village with a highly articulated and a visually complex façade that will 279 Exhibit 7.03 pp 64-5 [104]. -- 82 of 143 -- 83 complement the Old Burleigh Theatre Arcade façade and contribute to the locality’s identity.280 [324] Mr Curtis says that the locality’s sense of place is largely derived from the elements that contribute to its identity. He considers how these elements are experienced and the meaning they may have will vary for different individuals. However, he opines that for many people the locality’s sense of place is likely to be reflected in: (a) the sense of enclosure provided to the beach by the curvature of the coastline that provides the beach with a northerly aspect and is terminated by the projection of the Burleigh headland to the south. He says that the spatial definition of the enclosure is further reinforced by the prominent vertical edge of Norfolk Pines along the adjoining foreshore open space that provides a backdrop to the beach; (b) the contiguity of the high-quality foreshore open space that adjoins the beach to provide an attractive landscape setting and a local focus for passive recreation; (c) the low-scale traditional main-street style of the neighbourhood centre and its relationship to the adjoining bowling greens and park, which create a consolidated village centre opposite the foreshore and provide references to the locality’s cultural past; (d) the reinforcement of the connectivity to the locality’s cultural past provided by the Old Burleigh Theatre Arcade building that is visually prominent on Goodwin Terrace opposite the foreshore, where it is an established and familiar element of the locality’s urban fabric; (e) the consolidated cluster of development at the western end of Goodwin Terrace, which provides a highly legible landmark characterised by taller buildings that respond to the sub-tropical climate and coastal setting and reflect the area’s attraction as a high-quality residential location and a key tourism destination; (f) the backdrop to the village centre and foreshore provided by the vegetated slopes of Burleigh Hill and Burleigh ridge, which contribute to the spatial definition of the locality’s setting and separation from the adjoining areas; and (g) the convenient connectivity between these elements and their compatible relationships, which creates a traditional, pedestrian-friendly, seaside-village character with a high level of landscape amenity.281 [325] With respect to the locality’s sense of place, Mr Curtis opines that the proposed development will reinforce the sense of place through four design responses.282 [326] First, the retention and refurbishment of the Goodwin Terrace and part retention of the Gold Coast Highway facades of the Old Burleigh Theatre Arcade building connects to the locality’s cultural past provided by the village centre. In retaining 280 Exhibit 7.03 p 65-6 [106]. 281 Exhibit 7.03 p 66 [107]. 282 Exhibit 7.03 p 66-7 [108]. -- 83 of 143 -- 84 and refurbishing the façades, the proposed development will secure the façades’ long-term contribution to the locality’s sense of place. [327] Second, the overall design of the proposed development’s podium and tower adopts a visual narrative that celebrates the theatrical origins of the former De-luxe Theatre that once operated on the subject land. It reinforces the contribution that the Old Burleigh Theatre Arcade building provides to the locality’s sense of place. [328] Third, the proposed tower’s planning and appearance responds to the sub-tropical coastal setting. [329] Fourth, the uses accommodated within the ground storey of the proposed podium will contribute to the activation of the street frontage and the ground level conviviality of the Goodwin Terrace and Gold Coast Highway Corner at the gateway to the Goodwin Terrace foreshore opposite the future light rail station. The proposed development’s relationship to the light rail station and Goodwin Terrace, and its connectivity to the village centre, will reinforce the existing pedestrian- friendly, seaside-village character.283 [330] Mr Butcher agrees with Dr McGowan’s description of the elements that predominantly define the existing local identity and sense of place.284 He adds that, in his opinion, the predominant built form and scale of Burleigh Heads is one characterised as low to medium density. In explaining his opinion, Mr Butcher emphasises the predominance of buildings of one and two-storeys in the commercial centre and the low-height development in the lower lying areas between the Headland and Ridge. He acknowledges the presence of taller buildings but describes them as “isolated” and “sparsely located”. He says that the cumulative visual effect of the taller buildings is not one that dominates the skyline or creates adverse impacts on the local character. Mr Butcher says the vegetated Headland and Ridge visually encompass development within Burleigh Heads, not only acting as a backdrop to the beach and foreshore but offering a visual counterpoint to the taller buildings such as La Pacifique and Burleigh Beach Tower. He considers that the prominence of the vegetated natural features and open spaces are integral to moderating the development in the area and creating the area’s coastal identity.285 [331] Mr Butcher opines that the proposed development will not reinforce local identity and sense of place. His opinion is premised on three matters. [332] First, Mr Butcher says the height of the proposed development (being approximately 14 metres over that outlined in the Building Height Overlay Map), when combined with the height and form of the two taller buildings (La Pacifique and Burleigh Beach Tower) would clearly and distinctly emphasise the higher built form that would be highly visible from the town centre. He says that would be discordant with the existing built form height in Burleigh Heads; the existing built form transition from La Pacifique to the existing heritage building down to Memorial Park, the Bowls Club and the Burleigh commercial centre; and the intent 283 See, also, Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 8 June 2022) 45-8. 284 Exhibit 7.01 p 46 [95]. 285 Exhibit 7.01 pp 46-7 [95]-[103]. -- 84 of 143 -- 85 of the Medium density residential zone, which contemplates a height of 29 metres.286 [333] Second, Mr Butcher says that the western façade presents as a highly visible built form element within the context of the Burleigh Heads town centre that dominates views from Memorial Park and the commercial centre towards the Burleigh Headland in the east. He says that this is discordant with the character and identity of Burleigh Heads, which he considers does not seek to promote a single taller building, or a group of taller buildings, as a focal point visible from prominent outlooks.287 [334] Third, Mr Butcher says that the additional height over that of a compliant built form makes it inconsistent with the character of the locality as it limits views of the vegetated hills from various locations around Burleigh and does not create a built form transition from the existing taller buildings (La Pacifique and Burleigh Beach Tower) down to the Burleigh town centre.288 [335] Like Mr Butcher, Mr Adamson is of the opinion that the proposed development will not reinforce the local identity and sense of place. His opinions are informed by similar matters. They are also informed by his view that the proposed development will have a significant impact on the existing arcade, which he says contributed to the local identity and sense of place as a meeting place for locals.289 [336] I do not accept Mr Butcher’s opinion that the taller buildings appear to be “isolated” and “sparsely located”. Mr Butcher’s opinion in that regard sits uncomfortably with his earlier description of the mosaic and the many photographs in evidence before me.290 The photographs show that there is a pocket of high-rise buildings of varying scale, form, and appearance within the area bounded by Goodwin Terrace, the Gold Coast Highway and Rudd Park. The photographs support the experts’ description of the mosaic. [337] For each of the following four reasons, I do not accept Mr Butcher’s opinion that the proposed development will not reinforce local identity and sense of place. [338] First, I do not accept that it would be discordant with the existing built form in Burleigh Heads to have the higher built form of the proposed development visible from the town centre. The photographs show that La Pacifique is clearly visible from the town centre. The proposed development has a similar height to La Pacifique and will make minimal difference to the extent to which tall buildings will be viewed from the town centre.291 [339] Second, I do not accept that the high visibility of the western façade from Memorial Park and the commercial centre introduces an element that is discordant with the 286 Exhibit 7.01 p 47 [104]. 287 Exhibit 7.01 pp 47-8 [104]. 288 Exhibit 7.01 p 48 [104]. 289 Exhibit 7.02 pp 36-7 [145]-[155]. 290 See, for example, Exhibit 7.01 pp 13-7 figures 4-14 and p 23 figure 24; Exhibit 7.03 p 19 figure 11, p 21 figure 15, p 22 figure 16, p 26 figure 23, p 27 figure 24. 291 See Exhibit 2.02 pp 49-54. -- 85 of 143 -- 86 character and identity of Burleigh Heads. Rather, it will effectively screen the current view of La Pacifique.292 [340] Third, I do not accept that the proposed development will materially change the views of the vegetated hills from various locations around Burleigh. Mr Butcher’s evidence is not supported by the many photographs and visual representations in evidence before me and which I accept as providing an accurate depiction of the visual impact of the proposed development.293 [341] Fourth, Mr Butcher’s opinion about the absence of a built form transition from the existing taller buildings (being La Pacifique and Burleigh Beach Tower) down to the Burleigh town centre is not supported by the provisions of City Plan. Mr Butcher and Mr Adamson both accepted as much during their cross- examination.294 The Building height overlay maps inform the intended building height pattern and the desired future appearance of the local area. As I have noted in paragraph [304] above, the Building height overlay maps show that the subject land is part of the high-rise spine between the Gold Coast Highway and the beach that runs from the southern end of Miami (proximate to Kelly Avenue) through to the southern end of Palm Beach (just north of Currumbin Creek). Further, to the extent that City Plan anticipates pockets of lower height buildings at Burleigh Heads, the Building height overlay maps indicate that the intended outcome is an abrupt and dramatic contrast in scale, not a gradual transitioning.295 [342] For similar reasons, I do not accept the opinions of Mr Adamson. [343] Ms Pearce also expresses opinions about the local identity and sense of place. She says that her view of character aligns with the character identified in the Burleigh Heads Heritage and Character Study (Gold Coast City Council, 2010), which states:296 “The character of Burleigh Heads differs in each of the areas, but can be characterised generally by the prominence of green space, low scale strip shopping malls and a commercial centre away from the Gold Coast Highway, 20th century Queenslanders and post war fibro beach houses. The overall character of the area is reflected in the relaxed village atmosphere which is unique to Burleigh Heads.” [344] Ms Pearce also observes that over the last decade, more intensive urban development in Burleigh has concentrated to the north along the Esplanade, along Goodwin Terrace and as infill developments set amongst the slopes of the headlands wrapping the centre to the south. She says these contribute to a more intense urban aspect to the character of the area than that referenced in the 2010 Character Study. Nevertheless, while acknowledging the presence of three high-rise developments, namely La Pacifique, Burleigh Towers, and the two Gemini Towers set to the east, 292 See Exhibit 2.02 pp 49-54. 293 See, for example, Exhibit 2.02 pp 49-54. 294 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 8 June 2022) 27; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 9 June 2022) 80. 295 Exhibit 5.02 pp 1053, 1054 and 1056; Exhibit 5.01 p 159. 296 Exhibit 7.03 pp 86-7 [208]. -- 86 of 143 -- 87 Ms Pearce says the remaining urban form is low-rise, medium density, or two or three-storey residential and commercial development.297 [345] Ms Pearce opines that the proposed development does not reinforce the local identity and sense of place and so does not qualify for increased height under s 3.3.2.1(9) in light of her observations about the heritage significance of the Old Burleigh Theatre Arcade.298 [346] In the Architecture Joint Experts’ Report, under a heading “Matters of Disagreement”, Ms Pearce says:299 “323 Several aspects do not align with outcomes of the Strategic Framework Specific outcome 3.3.2.1 (9) which permits increases above the Building Height Overlay where all of the outcomes are satisfied. In response to a) to f) of 3.3.2.1 (9), I believe the proposed development: a) Provides limited protection in the retention of the Goodwin Terrace façade which contributes to reinforcing local identity and sense of place, however the proposal removes a substantial proportion of the significant building form and fabric, from prominent elevations at the west and south which reduces the understanding of the identity and sense of place inherent in the larger form of the Old Burleigh Theatre building and its context; … 324 The design response is for a high-rise building that exceeds the Building Height Overlay of 29m and crowds the area in context with the existing the adjoining high-rise developments. The abrupt height change from the low-scale building areas and parks opposite the Gold Coast Highway to the west and park areas to the north is unsympathetic to the character of the area. I believe the proposed development is shown to: … b) Affects the local identity and sense of place: i. Beneficially in the conservation of the Goodwin Terrace façade of the existing Old Burleigh Theatre building which is integrated into the intensified use of the site, however this response is at the loss of the majority of the Old Burleigh Theatre building to incorporate the new tower, comprehensive site cover and interface with the proposed future light rail station. 297 Exhibit 7.03 p 88 [209]. 298 Exhibit 7.03 p 93 [224]-[225]. 299 Exhibit 7.03 pp 108-9. -- 87 of 143 -- 88 ii. The design provides a visually complex and interesting concept for a tower that responds to an aspect of theatre architecture and makes some contribution the urban character of Burleigh Heads. iii. Reinforce the existing vertical built form edge to the foreshore open space that contributes to its spatial definition in forming part of an urban setting iv. Considers the activation of the foreshore and Goodwin Terrace however provides a substantially reduced internal area for public access compared to the Old Burleigh Theatre Arcade. … 325 Based upon the observations that I have set out in this JER, in my opinion the proposed development design would benefit from amendment to the scale and form to be considered for approval, subject to lawful conditions.” [347] Ms Pearce’s evidence about whether the proposed development satisfies the outcome sought in s 3.3.2.1(9) lacks clarity. At one point, she opines that there is not compliance. She does not explain the basis of her opinion by reference to her views about the character of the area, or otherwise provide a logical explanation for the opinion. In her summary at the end of the report, Ms Pearce express opinions that are more articulate than those provided earlier in the report but which appear to be supportive of the proposed development. [348] The lack of cohesion in Ms Pearce’s written evidence was further exacerbated during her oral evidence. During cross-examination, when asked about the opinion she expressed in paragraph 325, Ms Pearce looked to Mr Purcell and unsuccessfully attempted to gain his assistance to amend her opinion.300 Following some further cross-examination and an adjournment, Ms Pearce indicated that she wished to replace the opinion in paragraph 325 with the following:301 “The proposal is a highly urbanised architectural response, which is viewed in the low scale character context of Burleigh Village and its recreational park environment. In addition, the loss of the built form of the old Burleigh Theatre Arcade results in the loss of important character landmark from key views around the heart of Burleigh Village. A major revision to the scale and form of the proposed design be considered. The proposal is still expected to meet the other relevant issues of heritage, visual amenity and planning.” 300 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 9 June 2022) 41-2. 301 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 9 June 2022) 45-6. -- 88 of 143 -- 89 [349] This change does not provide me with any greater clarity. Ms Pearce was not a compelling witness on matters associated with architecture and character impacts. She appeared unable to clearly express her opinions, nor explain their basis. I do not accept Ms Pearce’s evidence. [350] I accept the opinions of Dr McGowan and Mr Curtis. Their evidence is supported by the photographs and the visual impact analysis of the proposed development, which I accept appropriately represents the visual impact of the proposed development.302 Their opinions are also supported by the opinions of Mr Perkins and Ms Morrissy, who provide similar cogent explanations for their opinions.303 [351] The outcome sought by s 3.3.2.1(9)(a) of the Strategic framework is satisfied. Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable? [352] The outcome sought in s 3.3.2.1(9)(b) is: “a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents.” [353] Early in the hearing, Ms Archer indicated that she did not contend that the proposed development would have an inappropriate shadow impact. However, that allegation was maintained by Mr Purcell.304 The allegation with respect to shadow impact was later abandoned by Mr Purcell.305 The decisions of the Appellants to abandon their allegations were wise given the evidence of Mr Curtis.306 During final submissions, the Appellants did not provide any assistance as to why they say the proposed development does not meet this outcome. [354] The subject land has only one direct neighbour, La Pacifique. It is otherwise separated by a considerable distance from other development by road reserve and open space. In this context, the only “interface” of potential concern is that between the development and La Pacifique.307 [355] This interface issue was the subject of evidence from the visual amenity experts and the town planners. [356] Mr Butcher and Mr Adamson were each of the view that the proposed development does not achieve a well-managed interface. Critical to their opinions is the absence of a transition in height between La Pacifique and the open space and commercial development towards the west and north-west.308 As I have already observed in paragraph [341] above, during cross-examination, both Mr Butcher and 302 Exhibit 7.01 p 8 [15]; Exhibit 2.02 pp 49-54. 303 Exhibit 7.02 pp 26-7 [79] and p 30 [96]-[103]; Exhibit 8.01 p 4 [3.03] and pp 12-5. 304 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 25-6. 305 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 9 June 2022) 54. 306 Exhibit 7.03 pp 101-3 [302]-[304]. 307 Exhibit 7.01 p 39 [72]; Exhibit 7.02 p 27 [84]. 308 Exhibit 7.01 p 48 [105]; Exhibit 7.02 p 37 [156] and [157]. -- 89 of 143 -- 90 Mr Adamson accepted that City Plan does not call for a transition in this area. In those circumstances, I do not consider their opinions compelling. [357] Dr McGowan acknowledges that the proposed development does not fully comply with the acceptable outcomes for side boundary setbacks for the eastern boundary where it interfaces with its only direct neighbour, La Pacifique. The extent to which the setbacks exceed the acceptable outcome are depicted in figure 39 in the Joint Experts’ Report – Visual Amenity.309 Dr McGowan also recognises that the La Pacifique building has no setback to the shared boundary with the subject land. Nevertheless, Dr McGowan opines that the subject land will achieve a well- managed interface with La Pacifique because: (a) while there are exceedances of the acceptable outcome at the lower levels, the lower levels of the La Pacifique tower already interface with the existing theatre building, which has limited setbacks to the shared boundary; (b) the exceedances of the acceptable outcome at the upper four levels are only minor; (c) the primary views from the La Pacifique units are away from the subject land; and (d) at each level, only a study window, a living room window and a small bedroom balcony are directed towards the subject land.310 [358] In addition, Dr McGowan opines that impacts on overlooking and outlook will be limited. This is because of the design attributes of La Pacifique and the proposed development are such that: (a) the proposed tower will be setback at least seven metres from the study window of La Pacifique; (b) the proposed tower will be located between 6.6 and nine metres from the small bedroom balconies of La Pacifique, and at least nine metres from the living room windows in La Pacifique; (c) screening will be provided to limit direct overlooking between the habitable rooms of the proposed tower and La Pacifique; (d) containerised planting will be provided along the interface at Ground, Level 01, and Level 03 of the proposed development to further limit direct overlooking at the lower levels; and (e) the proposed tower will be setback nine metres from the Goodwin Terrace frontage, limiting obstruction on any views from the bedroom balconies towards the foreshore parkland and beach.311 [359] Dr McGowan also opines that the design of the proposed development ensures that the built form will not be overbearing at the public interface with the street or on La Pacifique. He says the podium of the proposed development reflects the scale of the existing heritage building and will provide a visually interesting and recognisable 309 Exhibit 7.01 p 40. 310 Exhibit 7.01 p 39 [73] and [74]. 311 Exhibit 7.01 p 39 [75]. -- 90 of 143 -- 91 building with a comfortable pedestrian scale that will reduce the perception of the scale of the tower above. Further, to the extent that the proposed development might be perceived as overbearing to the pool area and tennis court of La Pacifique, the impact is consistent with that which exists with the La Pacifique tower and the Burleigh Beach Tower.312 [360] Mr Perkins and Ms Morrissy opine that the subject land will achieve a well- managed interface with La Pacifique by adopting various design and layout measures that appropriately recognise and respect the design, setting and orientation of La Pacifique. They opine that there will be no unacceptable impacts on amenity or privacy.313 [361] I accept the opinions of Dr McGowan, Mr Perkins, and Ms Morrissy. Their opinions were supported by cogent explanations. The outcome in s 3.3.2.1(9)(b) is satisfied. [362] The evidence of Dr McGowan, Mr Perkins, and Ms Morrissy also satisfies me that the proposed development complies with: (a) the overall outcome in s 9.3.10.2(2)(a) of the High-rise accommodation design code insofar as that provision requires the development to be designed to protect the privacy and amenity of neighbouring residential premises;314 and (b) the overall outcome in s 9.3.10.2(2)(c) of the High-rise accommodation design code in that the tower development mitigates negative visual and physical impacts through appropriate setbacks and design.315 Does the proposed development contribute to a varied, ordered, and interesting local skyline? [363] The outcome sought in s 3.3.2.1(9)(c) is “a varied, ordered and interesting local skyline”. [364] With respect to this issue, I have the benefit of evidence from the visual amenity experts and the architects. [365] Mr Butcher opines that the proposed development would not create a varied skyline. His opinion is premised on two matters. First, it would reinforce the combined height and bulk of La Pacifique and Burleigh Beach Tower and would be perceived as a similar relative height as those buildings. He says the buildings would present as a dominant collection of closely-positioned structures. Second, the combined height and built form would be visible from key public vantage and arrival points that are very near the subject land.316 [366] Mr Butcher also opines that the proposed development would not create an ordered skyline for two reasons. First, he says it would not be responsive to the local skyline in recognising an existing identifiable built form transition from the higher 312 Exhibit 7.01 p 39 [76]. 313 Exhibit 7.01 p 27 [80]-[83] and pp 30-1 [104]-[111]. 314 Exhibit 5.01 p 80: City Plan s 9.3.10.2(2). 315 Exhibit 5.01 p 80: City Plan s 9.3.10.2(2). 316 Exhibit 7.01 pp 48-9 [106]. -- 91 of 143 -- 92 built forms of La Pacifique and Burleigh Beach Tower down to the Gold Coast Highway and lower areas of the Burleigh Centre to the west. He considers that the abrupt change in height would not represent an orderly transition of the skyline within Burleigh Heads and that a height of 29 metres is required in that regard. Second, it would not encourage a height limit of 29 metres contemplated within the Medium density residential zone and, as such, it would not create a balance of built form in its immediate surrounds.317 [367] Ms Pearce’s opines that the proposed development would create a crowded effect, given its proximity to the existing high-rise buildings, thereby obstructing open sky views and views through to the headland beyond. She accepts that the scalloped curtain treatment on the western elevation is complex and varied when viewed proximate to the subject land but says that it appears homogenous when viewed from more distant points. Further, she says that the lack of a physical setback, podium, or increasing setbacks as the building height increases will accentuate the perception of abrupt height.318 [368] Dr McGowan explains that, in his opinion, a varied skyline is not simply a consequence of differences in building height. He considers that a skyline may be varied by differences in building form, appearance, and scale (beyond height).319 [369] Dr McGowan describes the existing local skyline as highly varied and interesting. He says that although the City’s high-rise spine may be somewhat fractured in the local area, a degree of order is provided by the obvious contrast in scale between the commercial core, the high-rise buildings to the north and to the east, and the open space frame that defines these areas. He says that any development on the subject land will affect the clarity of these areas because the subject land is highly visible and at the interface of the open space frame and the high-rise area.320 Dr McGowan opines that the proposed development will enhance the clarity between these areas, improving the order in the area. He says that the well-resolved northern and western facades of the proposed development, which are described in more detail in paragraph [382] below, will contribute visual interest to the skyline.321 Further, while the tower component of the proposed development will have a similar height to the two nearest towers, Dr McGowan says it is of an obviously different form, scale, and appearance.322 [370] Mr Curtis opines that the proposed tower will provide a landmark skyline structure that will be visible to receptors within the James Street centre locality to the west, receptors within the foreshore open space to the north and receptors in vehicles passing through the locality on the Gold Coast Highway. He says it will provide a prominent bookend to the evolving high-rise cluster and a gateway to Goodwin Terrace. As such, he says that the tower will contribute to the varied, ordered, interest, attractiveness, and distinctiveness of the skyline. Further, Mr Curtis opines that the proposed development’s location within an open setting opposite the 317 Exhibit 7.01 p 49 [107]. 318 Exhibit 7.03 p 88 [212]. 319 Exhibit 7.01 p 41 [83]. 320 Exhibit 7.01 p 40 [79]-[80]. 321 Exhibit 7.01 p 40 [81]. 322 Exhibit 7.01 p 41 [83]. -- 92 of 143 -- 93 foreshore and the bowling greens with road frontages to the north, west and south will maintain and promote an open skyline.323 [371] The achievement of a varied, ordered, and interesting local skyline is a matter that calls for a value judgment. It is a matter about which reasonable minds might differ. [372] That said, I prefer the evidence of Dr McGowan and Mr Curtis to that of Mr Butcher and Ms Pearce. Dr McGowan’s description of the existing local skyline accords with the photographs before me and Dr McGowan and Mr Curtis each provide cogent explanations that accord with the proposed plans, elevations, and visual representations. [373] I do not find Mr Butcher’s evidence compelling. His opinion about the absence of a varied skyline is founded on consideration of the skyline within one urban block only. That is an unduly restrictive approach in this local area. Mr Butcher also fails to explain the connection between the visibility of the proposed development from key public vantage and arrival points and the creation of a varied skyline. As for his opinion about the absence of an ordered skyline, it starts from the premise that the proposed development does not replicate the existing identifiable built form transition from the higher built forms of La Pacifique and Burleigh Beach Tower down to the Gold Coast Highway and lower areas of the Burleigh Centre to the west. I do not find this approach persuasive. [374] I also do not consider Ms Pearce’s evidence to be persuasive. She does not explain her views well, nor do I consider them to be supported by the proposed plans, elevations, and visual representations. [375] Further, and in any event, in my view, the proposed plans, elevations, and visual representations establish that the outcome in s 3.3.2.1(9)(c) is satisfied.324 [376] The evidence of Dr McGowan and Mr Curtis and the proposed plans, elevations, and visual representations persuade me that the proposed development also complies with performance outcome PO2 of the Medium density residential zone. In reaching that conclusion, I am cognisant that the overall site cover exceeds that in the acceptable outcome and that the site cover of the tower is largely consistent with the acceptable outcome.325 Nevertheless, the plans and visual representations demonstrate that the locational attributes provide separation from neighbouring development and that the proposed development responds to these locational attributes with an appropriate form that promotes an open skyline.326 The adoption of a tower component on only part of the subject land is a feature that assists with promoting an open skyline. Does the proposed development achieve an excellent standard of appearance of the built form and street edge? [377] The outcome sought in s 3.3.2.1(9)(d) is “an excellent standard of appearance of the built form and street edge”. 323 Exhibit 7.01 p 67 [109]-[111]. 324 Exhibit 2.01 and Exhibit 2.02. 325 Exhibit 7.01 p 68 [152]-[153] and p 69 [158]. 326 Exhibit 2.01 and Exhibit 2.02. -- 93 of 143 -- 94 [378] Mr Curtis explains the form, architectural design features and appearance of the proposed development in the Architecture Joint Experts’ Report. He says that the bulk of the proposed development is comprised of two primary elements, namely: (a) a three-storey podium that extends across the full width of the subject land’s Goodwin Terrace frontage and along the full length of the frontage to the Gold Coast Highway; and (b) an eleven-storey extruded tower form with a smaller site cover that is located above the podium.327 [379] The podium’s ground floor plan is comprised of two components. The first and larger component is a rectangular form that incorporates the Goodwin Terrace façade of the former De Luxe Theatre and, in-part, the facades to the Gold Coast Highway and the eastern side boundary. This component of the podium accommodates retail tenancies along the Goodwin Terrace and Gold Coast Highway frontages and includes a double-storey high dining space that connects to the Gold Coast Highway frontage and, at ground level, to the Goodwin Terrace frontage. The smaller second component adjoins the rectangular component to the south, where its angled wedge form responds to the Gold Coast Highway’s alignment.328 [380] The greater site cover and bulk of the podium differentiates it from the tower to create two legible elements that modulate the proposed development’s overall visual mass and avoids the appearance of a single monolithic form. This modulation also provides a visual transition from the proposed development’s overall height and scale to the pedestrian scale at ground level.329 [381] Mr Curtis describes the podium’s appearance as characterised by: (a) the refurbished Goodwin Terrace façade of the former De Luxe Theatre, which is accentuated as a feature of the proposed development by the setback of the tower behind; (b) the now fully exposed western façade of the podium, which retains part of the existing building’s facade and includes extensive fenestration; (c) a partially new western façade that maintains the visual rhythm of the existing façade’s appearance, which is characterised by red brick columns; (d) red brick infill cladding to the curved spandrels between the columns at the front edge of the balconies on levels 2 and 3, which complement the red brick columns; (e) operable curved screens to the fenestration between the columns on levels 2 and 3, which complement similar screens to the fenestration and narrow balconies on the tower above; (f) a brick-coloured linear screen, rather than an operable curved screen, at the podium roof terrace level, which accentuate the visual break between the podium and tower forms; 327 Exhibit 7.03 p 58 [93]. 328 Exhibit 7.03 p 58 [93]. 329 Exhibit 7.03 p 59 [93]. -- 94 of 143 -- 95 (g) a tinted-glass, scalloped, faceted handrail to the narrow, west-facing balconies, which reinforces the visual break between the podium and tower forms and visually caps the retained façade and separates it from the tower; (h) the setback of the external wall to the enclosed spaces behind the line of the brick colonnade, which differentiates and accentuates the colonnade as a distinct architectural element and provides greater depth to the appearance of the podium when compared to the tower above; (i) the ground storey commercial uses of the podium, the façade’s zero setbacks and the setback of the operable shop fronts, which activate the Goodwin Terrace and Gold Coast Highway frontages; (j) the visually differentiated wedge-shaped southern end of the podium, which is comprised of: (i) the vertical blade screens at ground level at the southern end of the podium that assist in animating the ground storey’s appearance; (ii) individual upper levels that are characterised by fluted, white, horizontal panels with recessed fenestration above set behind planter boxes. (iii) façade elements that provide clear expression to each level of the podium and articulate its appearance, fragment its visual mass, and provides visual interest; and (iv) a landscape roof terrace that includes planter boxes, small trees, and small individual shade structures.330 [382] According to Mr Curtis, the tower’s appearance is characterised by: (a) an extruded rectangular plan form wrapped in projecting concave edges to the north, west and south; (b) a northern façade that: (i) addresses Goodwin Terrace with balconies that extend across the full width of the façade on each level and layer the façade’s height; (ii) has a distinctive three-dimensional quality created by the concave alignment of the stacked balconies, their depth and the curved vertical end walls that return along the west and east facing facades; (iii) includes deep balconies and glass balustrades that provide a feathered edge to the tower’s form that mitigates its visual bulk and contributes to the transparency provided by the floor-to-floor glazed balcony walls; (c) a western façade that: (i) has a greater width than the northern and southern facades and that is modulated by the feathered western end of the northern façade balconies, a vertical landscape feature within a deep recess that extends from level 1 to the roof line and separates the façade into two principal 330 Exhibit 7.03 pp 59-60 [93]. -- 95 of 143 -- 96 vertical elements, and the scalloped appearance of the individual stacked balconies within these two principal elements; (ii) provides individual operable external screens to each of the abovementioned balconies that will mitigate the solar impact of the western sun and provide a varied and dynamic appearance to the façade; (iii) in its overall composition, alludes to the appearance of a stage curtain suspended above the podium “stage” below; (d) a southern facade that: (i) is modulated by three vertical elements that reflect the scalloped articulation of the west-facing façade. The western most element effectively wraps the corner from the western façade and accommodates a narrow balcony; (ii) contains elements that provide significant animation to the façade’s appearance and reinforce the scalloped design motif of the western façade; (iii) separates the elements with deep recesses, which accentuate the vertical proportion of the façade’s appearance; (e) an eastern façade that: (i) will be partially obstructed from view by the existing adjoining La Pacifique tower; (ii) will be modulated by the return of the north and south facing balconies, which will provide book ends to the central part of the façade; (iii) vertical screen elements; and (iv) a vertical landscape feature within a deep recess that extends from the podium terrace to the roof line.331 [383] I accept Mr Curtis’ description of the form, architectural design features and appearance of the proposed development. It accords with what is depicted in the plans and elevations. [384] Mr Curtis opines that the result is a well-considered design response that effectively resolves significant constraints and potential impacts while creating a meaningful architectural form that is both engaging and sensitive to its context. He says that the visual bulk of the proposed development is effectively mitigated by the modulation of the building envelope and the articulation provided to the facades. The ground level facades that address the street frontages are all highly activated by the proposed uses and the permeability of the external walls. In Mr Curtis’ opinion, the proposed development has an excellent standard of appearance and promotes an urban setting and interface with the street.332 331 Exhibit 7.03 pp 60-1 [93]. 332 Exhibit 7.03 pp 67-8 [112]-[115]. -- 96 of 143 -- 97 [385] In Ms Pearce’s opinion, the proposed development has a range attractive features and finishes. Nevertheless, she is critical of the proposed development, which she regards as an over-scaled response that does not reflect the Medium density residential zone code outcomes achieved by other recent developments in the area. Ms Pearce says the appearance is adversely affected by: (a) the lack of consistency between the width and height of the proposed tower and the smaller-scaled neighbourhood character in Burleigh, resulting in an overbearing presence on the low-scale areas to the west; (b) the domination of the retained heritage frontage by the new built form; (c) the inadequate representation of the heritage building, landmark qualities and its history in the final design, and the associated loss of cultural heritage; (d) the broad western elevation and abrupt height at the western elevation, which are not adequately mitigated in more distant views by the scalloped articulation; (e) the absence of a podium set back to break the verticality; (f) the off-centre positioning of the tower from the Goodwin Terrace frontage, which is inconsistent with the symmetry afforded by the parapet of the heritage façade; (g) the absence of a defined transition down to the lower-level environment in the area; (h) the solid massing, which is not made permeable by the sun-screens; and (i) the substantial change to the use, access, and experience of the Old Burleigh Theatre.333 [386] As both Mr Curtis and Ms Pearce recognise, the standard of appearance of the proposed development is a matter about which reasonable minds may differ. It involves matters of impression and judgment. [387] In my view, the plans, elevations, and visualisations show an excellent standard of appearance of the built form and street edge. The outcome in s 3.3.2.1(9)(d) is satisfied. The evidence of Mr Curtis and the plans, elevations, and visualisations also satisfactorily demonstrates compliance with: (a) the overall outcome in s 6.2.2.2(2)(d)(iii) of the Medium density residential zone code, in that the built form, with its zero line setback from the road frontage, promotes an urban setting and interface with the street;334 (b) performance outcome PO1 of the Medium density residential zone code, in that the zero-line setback contributes positively to the streetscape character;335 (c) the overall outcome in s 9.3.10.2(2)(a) of the High-rise accommodation design code insofar as that provision requires the development to be designed to create attractive, high-quality visually appealing buildings;336 and 333 Exhibit 7.03 pp 88-9 [215]. 334 Exhibit 5.01 p 65: City Plan s 6.2.2.2(2). 335 Exhibit 5.01 p 68. 336 Exhibit 5.01 p 80: City Plan s 9.3.10.2(2). -- 97 of 143 -- 98 (d) the overall outcome in s 9.3.10.2(2)(c) of the High-rise accommodation design code in that the tower development mitigates negative visual and physical impacts through appropriate setbacks and design.337 [388] The evidence satisfies me that the proposed development is appropriately designed for the locality in which it is located and will make a positive contribution to the architectural built form of the local area. I am satisfied that it will enhance the amenity and enjoyment of the community, including by way of activation at ground or street level.338 Does the proposed development contribute to housing choice and affordability? [389] The outcome sought in s 3.3.2.1(9)(e) is “housing choice and affordability”. [390] As with many of their other allegations of non-compliance, the Appellants have provided no submissions about the proper construction of this provision, nor any assistance as to why they say the proposed development does not comply with it. In the circumstances, it seems reasonable to infer that they rely on the approach adopted by, and the evidence of, the only expert retained by them who considered the issue: Mr Adamson. [391] Mr Adamson acknowledges that the proposed development provides for some additional housing choice but opines that it does not offer an improvement in terms of affordability sufficient to warrant an increase in building height. He says that the location will never provide for affordable housing, and the proposed development does not cater for a range of small and more affordable housing options, such as one-bedroom units or enough two-bedroom units.339 [392] Mr Adamson’s evidence appears to be premised on an assumption that the outcome sought is “housing affordability” informed by the price point of the units in the development. Such an approach involves construing the provision in isolation, assisted only by the ordinary meaning of affordability. That approach is not appropriate. [393] As was aptly observed by His Honour Judge Rackemann in McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd:340 “Choice and affordability are relative concepts. The person who has two alternatives has choice as does a person with many more options, although the latter has greater choice. Similarly, there are different levels or degrees of affordability. The key to understanding this criterion is to read it in the context of what City Plan otherwise says about choice and affordability.”341 337 Exhibit 5.01 p 80: City Plan s 9.3.10.2(2). 338 These are matters relied on as supportive of approval under s 45(5)(b) of the Planning Act 2016. See Exhibit 1.11 [1] and [6]. 339 Exhibit 7.02 pp 38-9 [164]-[166]. 340 [2022] QPEC 56. 341 McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, [116]. -- 98 of 143 -- 99 [394] The context must be considered in the first instance, not only if there is an ambiguity.342 That said, when construing planning schemes, the starting point is the meaning of the words used and it is not unduly pedantic to begin with the assumption that words mean what they say.343 [395] Section 3.3.2.1(9) of the Strategic framework states:344 “(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: … (e) housing choice and affordability;” [396] The grammatical construct of s 3.3.2.1(9) is poor. The drafting of s 3.3.2.1(9)(e) is even more unfortunate than the other subparagraphs, although they are also not without difficulty. The outcome is expressed only as “housing choice and affordability”. The absence of a qualifying verb is problematic. I agree with the observation of His Honour Judge Williamson QC in Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor345 that the absence of a verb appears to deny s 3.3.2.1(9)(e) the status of an outcome that is capable of satisfaction by a development. Nevertheless, it is to be given some meaning. [397] City Plan defines “affordable housing” as “housing that is appropriate to the needs of households with low to moderate incomes”,346 but this is not what is sought in s 3.3.2.1(9)(e). [398] The term “affordability” is not defined in the Planning Act 2016, the Planning Regulation 2017, the definitions in sch 1 of the City Plan,347 or the Acts Interpretation Act 1954. As such, pursuant to s 1.2.1 of City Plan,348 the term is to be given its ordinary meaning. [399] The Macquarie Dictionary defines “affordable” as “able to be financially afforded”.349 342 Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] LGERA 82; [2014] QPELR 686, 698-700 [52]-[58] and cases cited therein. 343 Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] LGERA 82; [2014] QPELR 686, 699 [55] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; 260 ALR 1; [2009] HCA 41 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; 293 ALR 257; 87 ALJR 98; 91 ACSR 359; [2012] HCA 55 at [39]; AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1, 11 [37] citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 35 CLR 297 at 304–5. 344 Exhibit 5.01 p 34: City Plan s 3.3.2.1. 345 [2022] QPEC 32, [132]. 346 Exhibit 5.01 p 20: City Plan s 3.2.1. 347 Administrative definitions that assist with the interpretation of City Plan are listed in Table SC1.2.1 and have the meaning set out beside the term: Exhibit 5.01 p 127. 348 Exhibit 5.01 p 12. 349 Macquarie Dictionary Online, 2022, Macquarie Dictionary Publishers, an Imprint of Pan Macmillan Australia Pty Ltd, www.macquariedictionary.com.au. -- 99 of 143 -- 100 [400] The phrase “housing choice and affordability” is also to be considered in the context provided by City Plan. [401] Section 3.3.2.1(9)(e) appears in the Strategic framework. The Strategic framework identifies that City Plan supports development of the Gold Coast into a world-class city. To that end, City Plan represents a major shift from development on the city’s fringe to redevelopment of urban centres and key inner-city neighbourhoods. This is intended to achieve an orderly and economically efficient settlement pattern. As part of this, some urban areas will be renewed and transformed thanks to investment in world-class transport infrastructure, while other urban areas will be protected to maintain their existing appearance and amenity.350 [402] As part of the strategic intent to achieve a world-class city, City Plan recognises that it needs to plan for all households. In s 3.2.1, City Plan states: “As we grow, we need to plan for all households so that privately owned, rental and socially rented housing options are available in well located places. This requires planning for housing that is affordable, attractive and diverse with convenient access to transport, employment, community, recreation and other services. Affordable living opportunities – where affordability comprises the initial and ongoing costs of housing including transport and maintenance – are a strong focus of this City Plan and will be planned for by: (a) increasing housing choice across the city; (b) ensuring housing is appropriate to the context of the place, whether urban, suburban or rural; and (c) tailoring the city’s shape, transport systems, employment lands, community facilities, neighbourhoods and homes to attain affordable lifestyles over the long term.”351 (emphasis added) [403] In McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd,352 with respect to this provision, His Honour Judge Rackemann observed: “Three things are of particular note. First, affordability, as described in the introductory paragraph is a broad concept. Secondly, it is planned for by the three things in the sub-paragraphs. It is those things by which City Plan seeks to further affordability in that broad sense. Thirdly one of those things is increasing housing choice. In City Plan there is a link between choice and affordability.”353 350 Exhibit 5.01 p 20: City Plan s 3.2.1. 351 Exhibit 5.01 p 21: City Plan s 3.2.1. 352 [2022] QPEC 56. 353 McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltd [2022] QPEC 56, [120]. -- 100 of 143 -- 101 [404] I agree with His Honour’s observations. To his observations, I would add that in City Plan there is a link between affordability and the City’s shape in that density is planned to be higher in locations proximate to facilities, services, public transport, employment, and essential infrastructure. It is in this way that more affordable lifestyles are intended to be achieved over the long term. [405] How the City’s shape is to be tailored to address affordability, i.e., the third planning tool referenced in s 3.2.1, is apparent from s 3.2.2 of the Strategic intent, which relates to “City Shape and urban transformation”. It states: “The Gold Coast’s city shape (or settlement pattern) is made of the following: (a) The urban area, comprising the following places: (i) Mixed use centres; (ii) Specialist centres; (iii) Neighbourhood centres; (iv) Industry and business areas; (v) Urban neighbourhoods, including the light rail urban renewal area; (vi) Suburban neighbourhoods; (vii) New communities; (viii) Merrimac/Carrara flood plain special management area; and (ix) Townships. (b) The nonurban area, comprising the following places: (i) Natural landscape areas; (ii) Rural production areas; (iii) Rural residential areas; and (iv) Inter-urban break. Note: The city’s urban and nonurban areas are identified on strategic framework map 1. Note: The city’s settlement pattern is identified on strategic framework map 2. … The Gold Coast needs around 130,000 new dwellings and 150,000 new jobs to support population growth over the next 20 years. Because the Gold Coast’s urban areas (as shown on strategic framework map 1) will not significantly expand, the majority of these dwellings (around two-thirds) will occur in the consolidation area, particularly in renewed and transformed centres and key inner-city urban neighbourhoods. The remaining -- 101 of 143 -- 102 one-third of new dwellings will occur in the expansion area, particularly in the urban areas (as shown in strategic framework map 1) of Coomera, Pimpama and Upper Coomera. Note: Not all land in the consolidation or expansion areas are suitable for urban development. The locations of consolidated areas and expansion areas are outlined in strategic framework map 9. Urban renewal and transformation will see an intentional city shape emerge. Growth and development will be concentrated in an integrated network of well serviced urban places – places with good access to public transport, services and infrastructure assets, or places where improvements to public transport provide a catalyst for mixed use development and higher density living. Our city shape will be characterised by a diversity of well- connected, liveable urban places and business efficiency and productivity. Avoiding sprawl outside our urban areas will protect our world-class environment and spectacular scenic amenity and help to ensure our investment in public infrastructure is environmentally and financially sustainable.”354 (emphasis added) [406] As is noted in s 3.2.2, housing is intended to become a major land use in centres that support high frequency public transport hubs. This will address affordability by planning the city in a manner that can increase the prevalence of car sharing schemes, walking, and cycling. Growth to accommodate housing is expected in areas served by existing or new high frequency public transport stations with good access to other essential infrastructure.355 [407] The strategic intent with respect to City shape and urban transformation also states: “While public transport investment will offer enormous potential for some areas to be renewed, building height and form will continue to vary across the city, including areas where building heights are planned to change abruptly to achieve a deliberate and distinct contrast in built form. This will reinforce community identity, create a sense of place, support housing choice and affordability and reflect the city’s different places and spaces … The city’s tallest buildings will continue to be located in Southport, Surfers Paradise and Broadbeach, enhancing the city’s iconic skyline views and building towards our status as a world-class city. Outside these areas, medium and high-rise buildings will be concentrated in mixed use centres and specialist centres to reinforce urban legibility, centre identity, sense of place and specific urban neighbourhoods.”356 (emphasis added) 354 Exhibit 5.01 p 22: City Plan s 3.2.2. 355 Exhibit 5.01 p 24: City Plan s 3.2.2. 356 Exhibit 5.01 p 26: City Plan s 3.2.2. -- 102 of 143 -- 103 [408] From these provisions, it is apparent that the planning for housing choice and affordability is linked to the planned settlement pattern, being one that concentrates development in well-serviced urban places. This informs affordability. Planning for compact urban neighbourhoods that have a public transport hub, community facility, park or mixed use centre, specialist centre or neighbourhood centre as their focal points helps reduce the transport costs associated with where people live. [409] As I have noted in paragraph [121] above, the policy direction in the Strategic framework is also identified in six themes. The first of the six city shaping themes that plays an important role in shaping future growth and managing change across the city is that of “Creating liveable places”.357 The Strategic outcomes in s 3.3.1 for this theme include: “(2) The Gold Coast’s settlement pattern provides housing choices and diverse lifestyle opportunities in mixed use centres and specialist centres, neighbourhood centres, urban neighbourhoods, suburban neighbourhoods, new communities, and rural residential and township areas. Limited opportunities also exist in the Merrimac/Carrara flood plain special management area. (4) Affordable housing or entry level priced housing meets the needs of low to moderate income households, and purpose- built adaptable housing and accommodation meets the needs of seniors, people with disabilities, students and people in need of emergency accommodation. These forms of housing are located close to facilities, services, public transport, employment and essential infrastructure. (5) Varied building height and form throughout the city reinforces local identity, creates a sense of place and supports housing choice and affordability and the function and desired appearance of each local area.358 (emphasis added) [410] Two things are reinforced by these provisions. First, in City Plan, affordable housing is a different planning concept than housing choice and affordability. Second, housing choice and affordability is achieved by ensuring the height and building form is consistent with the planned settlement pattern, not height only. In terms of building form, the parameters that guide the planned density of development in an area are likely to assist. For example, in an area designated with a residential density of up to 400 bedrooms per bet hectare (or 1 bed per 25 square metres), the delivery of a single house at a height greater than that depicted on the Building height overlay map is unlikely to support housing choice and affordability as compared to the delivery of an apartment building where the additional height provides additional density that accords with the density sought in the area. [411] As I have already mentioned in paragraph [296] above, the subject land is included within the urban neighbourhoods element for the Strategic framework. 357 Exhibit 5.01 p 19: City Plan s 3.1(3). 358 Exhibit 5.01 p 32: City Plan s 3.3.1. -- 103 of 143 -- 104 [412] The specific outcomes for the urban neighbourhood element include ss 3.3.2.1(8), (9) and (10), which I have set out in paragraph [294] above. They also include: “(1) Urban neighbourhoods are compact, pedestrian pedestrian- friendly, offer housing choice and high amenity and provide access to facilities, services, public transport, employment and essential infrastructure. … (4) Urban neighbourhoods vary from pockets of detached housing on smaller lots to medium or higher-intensity places containing medium or high-rise buildings. (5) Housing includes a mix of tenure, size and type to assist with affordability and location options, and to support occupants from various social and cultural backgrounds including key workers.”359 (emphasis added) [413] These provisions reinforce that there is a link between housing choice and affordability and the planned settlement pattern. They also provide further support for a construction that distinguishes between housing choice and affordability as compared to “affordable housing”. They indicate that, in City Plan, whether a development supports housing choice and affordability is not determined by considering matters such as the average income of Australians (or that of the needs of low to moderate income households) and the likely price point of a proposed development. [414] The overall outcome in s 6.2.2.2(2)(b)(iv) of Medium density residential zone code provides yet further support for the observations above. It states: “(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: … Housing needs (iv) delivery of a generous mix of housing form, sizes and affordability outcomes that meet housing needs (including housing needs of the future) for the locality;”360 (emphasis added) [415] Having regard to the observations above about the context that informs the outcome “housing choice and affordability”, it is convenient to now turn to the evidence about such matters as they relate to the proposed development. 359 Exhibit 5.01 p 34: City Plan s 3.3.2.1. 360 Exhibit 5.01 p 64: City Plan s 6.2.2.2(2). -- 104 of 143 -- 105 [416] The subject land is mapped as: (a) part of “Urban neighbourhoods” under Strategic framework map 2 – settlement pattern; (b) part of “Investigation for light rail urban renewal area” under Strategic framework map 2 – settlement pattern;361 (c) as part of the consolidation area on Strategic framework map 9 – consolidation and expansion areas;362 (d) within the Medium density residential zone; and (e) “RD7 – up to 400 bedrooms per net hectare (1 bed/25m2)” on the Residential density overlay map – map 17.363 [417] The significance of the mapped residential density planned for the subject land is better appreciated when the mapping category is considered in the context of the other densities noted in the legend on the Residential density overlay map – map 17. There are 10 designated densities, namely: (a) LDR1 - up to 12.5 dwellings per net hectare (1 dwelling/800m²); (b) LDR2 - up to 16.6 dwellings per net hectare (1 dwelling/600m²); (c) RD1 - up to 25 dwellings per net hectare (1 dwelling/400m²); (d) RD2 - up to 33 dwellings per net hectare (1 dwelling/300m²); (e) RD3 - up to 40 dwellings per net hectare (1 dwelling/250m²); (f) RD4 - up to 50 dwellings per net hectare (1 dwelling/200m²); (g) RD4A - up to 66 dwellings per net hectare (1 dwelling/150m²); (h) RD5 - up to 200 bedrooms per net hectare (1 bed/50m²); (i) RD6 - up to 300 bedrooms per net hectare (1 bed/33m²); (j) RD7 - up to 400 bedrooms per net hectare (1 bed/25m²); and (k) RD8 - up to 769 bedrooms per net hectare (1 bed/13m²). [418] Having regard to that context, one can readily appreciate that with a mapped residential density of “RD7”, the subject land is intended to provide housing that will materially add to the density in this local area. It is expected to deliver housing at a similar, and in some instances greater, density than nearby land in the High density residential zone for which the anticipated height is 53 metres.364 [419] The proposed development has 30 apartments with a total of 92 bedrooms, resulting in a density of approximately one bedroom per 18 square metres. It offers four units containing two bedrooms, 20 units containing three bedrooms and six units containing four bedrooms.365 361 Exhibit 5.01 p 2 [6]. 362 Exhibit 5.02 p 999. 363 Exhibit 5.01 p 2 [6]; Exhibit 5.02 p 1373. 364 Exhibit 5.02 p 1373. 365 Exhibit 7.02 p 9 [36]. -- 105 of 143 -- 106 [420] These matters satisfy me that the proposed development is generally consistent with the planned settlement pattern and, as such, supports housing choice and affordability in the manner intended by City Plan. [421] The evidence of Ms Morrissy provides additional support for such a finding. She opines that the proposed development supports housing choice and affordability by, amongst other things, providing: (a) a multiple dwelling in a location where this style of housing is intended and well-suited, given the subject land is in very close proximity to significant amenities, centre activities, and existing and future high-frequency public transport; (b) a range of unit sizes that can accommodate a variety of household types; and (c) an increase in residential density in a location that is very close to high- quality, high-frequency public transport, thereby supporting affordable living opportunities by reducing on-going travel and transport costs through.366 [422] Further, Ms Morrissy opines that the proposed building height, scale, and form of the proposed development is consistent with its local context and setting. In that respect, she explains that the subject site is well located to accommodate the scale and intensity of development proposed as it contributes to the renewal of Burleigh Heads, where there is good access to recreation assets, centre activities, infrastructure, and public transport. [423] Ms Morrissy notes that Burleigh Heads will become even more accessible with the extension of the light rail corridor and station, which is currently planned to adjoin the subject land to the west. This is of significance given improvements to public transport are identified in City Plan as being a catalyst for mixed use development and higher density living. Areas around light rail stations are intended to transform into places that become more compact, interesting, connected, and active. Ms Morrissy opines that, in this way, the proposed development contributes to the realisation of planning outcomes associated with the efficient use of land that integrates land use and travel patterns; the capitalisation on investment in existing and planned infrastructure; walkable neighbourhoods and the facilitation of sustainable travel choices by providing opportunity for a greater number of people to travel differently throughout the neighbourhood and City, thereby reducing reduce congestion and air pollution; and improving convenience, travel time efficiency, living costs and health. [424] Mr Duane, the economist retained by JWZ Partners Development Group Pty Ltd expresses similar opinions to that of Ms Morrissy. He says that the proposed development at primarily three and four-bedroom units would target couples with children as compared with most stock being smaller dwellings for single persons or couples only. As such, he says that the proposed development will add to diversity of housing choice. Mr Duane also opines that the proposed development represents an opportunity to provide higher density residential development in a location that provides a high degree of residential amenity, and which is served by significant levels of private and public infrastructure supporting residential uses. He says that increasing population density in such areas not only achieves planning goals but 366 Exhibit 7.02 p 32 [117] and [118]. -- 106 of 143 -- 107 achieves greater economic efficiency in terms of the use of existing and proposed infrastructure which in turn benefits the community generally.367 [425] I accept the evidence of Ms Morrissy and Mr Duane. They each provide cogent explanations for their opinions. [426] As is evident from the planning scheme context referred to in paragraphs [401] to [413] above, the planning outcomes that Ms Morrissy says are furthered by the proposed development are outcomes that inform the planned settlement pattern in City Plan and the planned outcome of housing choice and affordability.368 [427] For the reasons provided above, to the extent that s 3.3.2.1(9)(e) can be regarded as requiring satisfaction of an outcome of “housing choice and affordability”, it is satisfied here. Does the proposed development protect important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features? [428] The outcome sought in s 3.3.2.1(9)(f) is: “protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city’s significant natural features”. [429] Parts of the existing building on the subject land, being those parts that reflect the former De Luxe Theatre, are important elements of local character. For the reasons provided in paragraphs [105] to [258] above, I am satisfied that the proposed development appropriately protects the important elements. [430] The visual amenity experts agree that the important elements of local character and scenic amenity are the prominent landscape features of the area, namely the foreshore parkland and Norfolk pine trees, the beach and coastline, and the green backdrop of Burleigh ridge and Burleigh headland.369 [431] In considering the potential impact, I was assisted by the view impact analysis provided during the development application.370 This document analyses six viewpoints that represent a range of public viewpoints that would achieve views of the proposed development, including views from the beach. Some of these viewpoints take in the significant natural features in the area. For each viewpoint, the view analysis includes a photo of the existing view; an image that depicts the existing view with a mass model that represents compliance with acceptable outcomes for site cover and setbacks; and a photomontage with the proposed development added. The view analysis does not have regard to likely future development in the area, such as increases in building height contemplated (on the Building Height Overlay Mapping) for the commercial core. To the extent that such future development may affect views towards the subject land and important 367 Exhibit 8.04 pp 43-4. 368 See also the overall outcomes in ss 6.2.2.2(2)(b)(i), (ii) and (iii) of the Medium density residential zone code. 369 Exhibit 7.01 p 41 [85] and p 49 [110]. 370 Exhibit 2.02. -- 107 of 143 -- 108 features of the area, they are not depicted.371 As was identified by Mr Butcher, there is an anomaly in the key plan for the view impact analysis in terms of the identified location of the photographer.372 The anomaly is of little important. The viewpoints are appropriate to assist in consideration of impact on views from popular public outlooks. [432] I was also assisted by the evidence of Dr McGowan and Mr Butcher. [433] Mr Butcher opines that, in addition to the viewpoints the subject of the view impact analysis, there are important views to the subject land from Memorial Park, the pedestrian crossing point along Connor Street (from James Street to Memorial Park), the intersection of West Burleigh Road and Burleigh Street, and the pedestrian crossing at the intersection of West Burleigh Road and the Gold Coast Highway.373 The Joint Experts’ Report – Visual Amenity contains photographs from each of those viewpoints.374 He says that those photographs demonstrate that the proposed built form is likely to be highly visible and that the important elements of local character and scenic amenity would be impacted.375 [434] I accept that the proposed development will be highly visible. However, it does not follow that the important elements of local character and scenic amenity would be impacted. In many of the identified views, the proposed development will simply replace the current view of La Pacifique. In doing so, it will replace the view of the austere side elevation of La Pacifique with a view of a more resolved and visually interesting façade. [435] As is explained by Dr McGowan, the view impact analysis demonstrates that for views from the west, around James Street and Memorial Park, the existing La Pacifique building is prominent and already obscures views to the headland backdrop behind. The proposed development would effectively sit within the silhouette of La Pacifique and have only a minor increase in the obstruction of views to the headland or on the view generally. For views from the Gold Coast Highway, approaching the subject land from the north or the south, the proposed development would create a prominent bookend to the existing pocket of high-rise buildings and an abrupt and well-defined edge to the Gold Coast Highway (and future light rail station). From viewpoints to the north of the subject land, the proposed building would not obscure views to any important elements of local character and scenic amenity. From viewpoints to the south of the subject land, the proposed development would obstruct limited views towards the Norfolk Pines that signify the foreshore parkland, but so would development of a height in order of that designated on the Building height overlay map. For views from the north (on the beach) and north-east (near Burleigh Pavilion), the proposed development will present as an attractive and distinctive tower form above the retained heritage building and will bookend the pocket of high-rise development. From these viewpoints, the proposed building would not obscure views to any important elements of local character and scenic amenity. Further, regardless of the 371 Exhibit 7.01 p 41 [86]-[87]. 372 Exhibit 7.01 p 50 [112]. 373 Exhibit 7.01 pp 49-50 [110]. 374 Exhibit 7.01 pp 59-63 figures 63 to 67. 375 Exhibit 7.01 p 50 [111]. -- 108 of 143 -- 109 viewpoint, the additional height being sought is not the cause of any increased impacts on views.376 [436] Similar observations are apposite for the additional viewpoints identified by Mr Butcher. [437] Having regard to the evidence referred to above, I am satisfied that the evidence establishes that the outcome in s 3.3.2.1(9)(f) is satisfied. [438] The evidence also satisfies me that the proposed development complies with the overall outcome in s 6.2.2.2(2)(b)(vi) of the Medium density residential zone code which requires: “(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: … Design and amenity (vi) retention of important elements of neighbourhood character and amenity, and cultural heritage;”377 Does the proposed development preserve the deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map? [439] The outcome sought in s 3.3.2.1(9)(g) is: “the deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map”. [440] The town planning experts all opine that this is not a locality where there is a mapped, abrupt building height change.378 Whether changes in height might be considered “abrupt” is a matter about which reasonable minds might differ, and the view may depend on the “location” being considered. [441] The proposed development sits within a pocket of development that has a 29-metre height limit on the Building height overlay map. This designation extends south across the Gold Coast Highway to include the Swell building. Land to the west (across the Gold Coast Highway) and to the north (across Goodwin Terrace) is zoned Open Space and does not have a height designation on the Building height overlay map. Land further west (on either side of James Street) has a four storey and 20 metre height designation, while land to the south-west (behind the library) has a three storey and 15 metre height designation. [442] Taking a slighter broader view of the location, as I have noted in paragraph [304] above, consideration of Building height overlay map – maps 20, 21 and 23 reveals that the subject land is part of the high-rise spine between the Gold Coast Highway 376 Exhibit 7.01 pp 41-2 [88]. 377 Exhibit 5.02 p 64: City Plan s 6.2.2.2(2). 378 Exhibit 7.02 p 29 [93], p 33 [124] and p 40 [172]. -- 109 of 143 -- 110 and the beach that runs from the southern end of Miami (proximate to Kelly Avenue) through to the southern end of Palm Beach (just north of Currumbin Creek), where a building height of 29 metres is anticipated, other than: (a) in the High density residential zone between Krazmann Avenue and First Avenue, where the anticipated height is 53 metres; (b) in the James Street commercial precinct, which is in the Centre zone and has an anticipated height of four storeys and 20 metres; and (c) for a small pocket of land in the Medium density residential zone between Rudd Park and Burleigh Heads National Park, where the anticipated height is three storeys or 15 metres.379 [443] To the extent that the location is intended to have deliberate and distinct built form contrast, the proposed development achieves the intended outcome. It has a height that is like other buildings that have the same height designation, and which is distinct from the height of areas that are mapped with much lesser heights, such as the James Street commercial precinct. [444] I am satisfied that the outcome in s 3.3.2.1(9)(g) is satisfied. [445] Having regard to my findings above, including (but not limited to) those referred to in paragraphs [300] to [329], [350], [368] to [372], [376], [407], [431] to [436], [441] and [442] above, I am satisfied that the proposed development complies with the overall outcome in s 6.2.2.2(2)(b)(v) of the Medium density residential zone code which requires: “(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: … Design and amenity (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 if the cumulative effects of the development are considered;”380 Does the proposed development ensure the safe, secure, and efficient functioning of the Gold Coast Airport or other aeronautical facilities? [446] The outcome sought in s 3.3.2.1(9)(h) is “the safe, secure, and efficient functioning of the Gold Coast Airport or other aeronautical facilities”. [447] All the town planning experts agree that a review of the Airport environs overlay mapping (including the Obstacle Limitation Surface layer and the Procedures for Air Navigation Services, Aircraft Operational Surfaces layer) indicates that the relevant overlay layers are well above the proposed building height. As such, they 379 Exhibit 5.02 pp 1053, 1054 and 1056; Exhibit 5.01 p 159. 380 Exhibit 5.02 p 64: City Plan s 6.2.2.2(2). -- 110 of 143 -- 111 all opine that the proposed building would not interfere with the operation of the airport or other aeronautical facilities.381 [448] In those circumstances, I am satisfied that the outcome in s 3.3.2.1(9)(h) is satisfied. Does the density of the proposed development exceed that shown on the Residential density overlay map? [449] Performance outcome PO5 of the Medium density residential zone code requires that density not exceed that shown on the Residential density overlay map. [450] The subject land is mapped as “RD7 – up to 400 bedrooms per net hectare (1 bed/25m2)” on the Residential density overlay map – map 17.382 [451] The proposed development has 30 apartments with a total of 92 bedrooms, resulting in a density of approximately one bedroom per 18 square metres. As such, it fails to comply with performance outcome PO5 of the Medium density residential zone code. This is a matter that tells against approval. [452] When considering the degree of importance that the planning scheme attaches to the requirement in performance outcome PO5 of the Medium density residential zone code, a useful starting point is the structure of zone codes. As I have already mentioned in paragraph [285] above, each zone code comprises a statement of the purpose of the code, the overall outcomes that achieve the purpose of the code, the performance outcomes that achieve the overall outcomes and the purpose of the code, and the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code.383 Further, as is explained in s 5.3.3 of City Plan,384 development that complies with the purpose and overall outcomes of the code complies with the code; and development that complies with the performance or acceptable outcomes complies with the purpose and overall outcomes of the code.385 [453] As I have mentioned in paragraph [286] above, the purpose of the Medium density residential zone code is: “… to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents.”386 381 Exhibit 7.02 pp 29-30 [94], p 33 [128] and p 40 [173]. 382 Exhibit 5.01 p 2 [6]; Exhibit 5.02 p 1373. 383 Exhibit 5.01 p 62: City Plan s 6.1(8). 384 Exhibit 5.01 p 47. 385 Although this section relates to code assessable development, it remains applicable in the context of impact assessable development: see Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, 865 [201], citing United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510. 386 Exhibit 5.01 p 63: City Plan s 6.2.2.2(1). -- 111 of 143 -- 112 [454] Overall outcomes that address intensity and density of development include those in in ss 6.2.2.2(a)(i) and (ii), (b)(i) and (ii), and (d)(ii), which state: “(a) Land uses – (i) include a range of medium density residential uses, predominantly permanent accommodation; (ii) such as Multiple dwellings, Dual occupancies, Dwelling houses on small lots and Community residences are included in the zone to provide a mix of dwelling types and increase residential density; … (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: Orderly and economically efficient settlement pattern (i) degree of public transport service within a 400 metre walking distance, being the most desirable distance for pedestrian access, and the ease and safety of pedestrian access to that service; (ii) proximity to major employment concentrations, centres, social and community infrastructure facilities and important amenity features, including the coast, recreational waterways and parkland; … (d) Built form (excluding Dwelling houses on small lots) – … (ii) contributes to a transitioning density from lower intensity areas to higher intensity areas near centres, the high rise coastal spine and areas well serviced by public transport;”387 [455] These provisions indicate that the underlying planning intention is to locate higher density residential development in locations that are near centres, the high-rise coastal spine, social and community infrastructure facilities, and areas well-serviced by public transport. [456] This planning intention is also evident in the Strategic intent relating to “City Shape and urban transformation” extracted in paragraph [403] above. It is further supported by the strategic outcomes for the “Creating liveable places” city shaping theme, which state: “(6) High intensity urban activity optimises land well serviced by public transport, infrastructure and community facilities and 387 Exhibit 5.02 pp 63-5: City Plan s 6.2.2.2(2). -- 112 of 143 -- 113 provides mixed use centres and specialist centres and urban neighbourhoods with improved amenity. (7) Medium and higher intensity housing occurs in mixed use centres and specialist centres and urban neighbourhoods. (9) Urban neighbourhoods accommodate a diverse and well connected network of urban places. Development is focused on mixed use centres and specialist centres and public transport hubs, and densities are higher in areas with high frequency public transport, community facilities and infrastructure capacity.”388 [457] Here, the increased density on the subject land is appropriate given the locational attributes of the subject land. It is in an urban neighbourhood. It is also near the designated centre that is the James Street commercial precinct, the high-rise coastal spine, the beach, and nearby parkland areas such as Memorial Park and Rudd Park. It is also in an area that is well serviced by public transport, with planning well- advanced for the location of a new bus interchange and light rail station immediately adjacent the subject land. [458] Further, as is evident from my findings above with respect to the built form and its impact, even though the proposed development exceeds the density limit, the exceedance does not sound in unacceptable planning and amenity impacts. [459] For the reasons provided above, although the proposed development does not comply with performance outcome PO5 of the Medium density residential zone code, the non-compliance is not a weighty consideration telling against approval. Conclusion regarding built form [460] As I have found above, the proposed development does not comply with: (a) the requirement in the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code with respect to building height; and (b) the requirement in performance outcome PO5 of the Medium density residential zone code with respect to density. [461] In respect of the latter category of non-compliance, i.e., the non-compliance with respect to density, for reasons explained in paragraphs [452] to [458] above, it is not a weighty consideration telling against approval. [462] As I have explained in paragraphs [291] to [297] above, the non-compliance with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code are serious and entitled to significant weight as a reason for refusal. That said, in this case, the significance of the non- compliance is materially diminished as there is support in the Strategic framework for the height of the proposed development. This support arises from the demonstrated satisfaction of the outcomes sought in s 3.3.2.1(9) of the Strategic framework. 388 Exhibit 5.02 p 32: City Plan ss 3.3.1(6), (7) and (9). -- 113 of 143 -- 114 Will the proposed access arrangements result in unacceptable traffic impacts? [463] Mr Purcell contends that the proposed development will result in unacceptable traffic impacts. He says that it does not comply with part of the State development assessment provisions, namely, in State code 1: Development in a state-controlled road environment: (a) paragraphs 1 and 3 of the purpose statement in s 1.1; and (b) performance outcome PO16.389 [464] As I have already explained in paragraphs [34] to [72], [76], [87] to [95], and [101] above, in this case, the extent of compliance with the State development assessment provisions is relevant under s 45(5)(b) of the Planning Act 2016. It is also a matter against which the development must be assessed390 given I consider the appeal should proceed on the basis that it is an appeal that puts in issue that part of the approval that relates to the Chief Executive’s referral agency assessment.391 [465] If I am wrong about the legal status of the State development assessment provisions, it is of no consequence to the outcome of this appeal. In this case, the document’s legal status does not affect the weight that I attribute to the outcome of the assessment against it, nor the exercise of my discretion overall. [466] During his oral submissions, Mr Purcell indicated that he no longer pursues his allegations of non-compliance with the overall outcome in s 9.4.2.2(2)(h) and performance outcome PO5 of the Driveways and vehicular crossings code in City Plan.392 In supplementary written submissions,393 Mr Purcell indicates that his election not to maintain the allegations was made on the understanding that the State development assessment provisions: (a) were assessment benchmarks, given they were described in that manner by the Chief Executive in its written submissions; (b) were mandatory considerations under the Planning Regulation 2017; and (c) apply instead of the provisions of City Plan to the extent of any inconsistency by operation of ss 16(3) and 43(4) of the Planning Act 2016.394 [467] That other parties did not accept the accuracy of those assumptions by Mr Purcell was only revealed through various supplementary submissions provided by the other parties in November and December 2022. 389 Exhibit 1.11; Outline of Argument on behalf of the Appellant (Archer) pp 5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 12-7, and 20. By the time of the hearing, not all of the issues address in the Joint Experts’ Report of First Meeting of Traffic Engineers (Exhibit 7.05) were maintained as reasons for refusal. 390 Planning Act 2016, s 55 and Planning Regulation 201 (current as at 27 March 2020), s 22 and sch 10, pt 9, div 4, subdiv 2, table 4, item 4. 391 That is, an appeal commenced under s 229 and sch 1, s 1(4) and table 2, items 2 and 3 of the Planning Act 2016. 392 Exhibit 1.11; Outline of Argument on behalf of the Appellant (Archer) pp 5-6 [3.2]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 20. 393 Exhibit 10.17: Supplementary Submissions of Wayne Edmund Purcell dated 24 November 2022. 394 Exhibit 10.17 p 4. -- 114 of 143 -- 115 [468] In those circumstances, so as not to disadvantage Mr Purcell, I will assume that Mr Purcell maintains his allegations of non-compliance with the assessment benchmarks in the Driveways and vehicular crossings code. [469] JWZ Partners Development Group Pty Ltd, the Council and the Chief Executive dispute the allegations of non-compliance. What is required by the State development assessment provisions and the assessment benchmarks in City Plan? [470] The State development assessment provisions comprise various parts. Parts 1 explains the policy context. Part 2 addresses how to use the state codes and part 3 addresses interpretation. The State development assessment provisions then contains 25 State codes. State code 1 is for development in a state-controlled road environment. [471] As is explained in Part 2, each State code contains assessment criteria comprised of a purpose statement, performance outcomes, and acceptable outcomes. The acceptable outcomes are the only non-essential assessment criteria. If a development application complies with all the relevant performance outcomes of a code, it complies with the purpose statement of the code, and therefore with the code itself. If a development application complies with some, but not all, relevant performance outcomes of a code, compliance with the code can be achieved by complying with the purpose statement of the code. If a development application does not comply with the purpose statement of the code, it does not comply with the code itself. If there is not compliance with the purpose statement of the code, the State development assessment provisions indicate that the development application will be refused.395 [472] The purpose statement of a State code is the highest test within the State development assessment provisions. It provides the overall context for the code and holistically defines what the code seeks to manage and protect.396 [473] Here, Mr Purcell puts in issue paragraphs 1 and 3 within the purpose statement of State code 1: Development in a state-controlled road environment, which state: “The purpose of this code is to protect state-controlled roads, future state-controlled roads and other infrastructure in state- controlled roads from adverse impacts of development. The purpose of this code is also to protect the safety of people using, and living and working near, state-controlled roads. Specifically, this code seeks to ensure: 1. development does not create a safety hazard for users of a state-controlled road, by increasing the likelihood or frequency of fatality or serious injury … 395 Exhibit 6.03 p 6: State development assessment provisions s 2.3. 396 Exhibit 6.03 p 6: State development assessment provisions s 2.4. -- 115 of 143 -- 116 3. development does not result in a worsening of the physical condition or operating performance of state-controlled roads and the surrounding road network”397 [474] Performance outcomes define what may constitute an acceptable or tolerable impact on a matter of state interest or the minimum standards required to manage the impacts of a matter for state interest on a development.398 Mr Purcell alleges non- compliance with performance outcome PO16 of State code 1: Development in a state-controlled road environment. It states: “PO16 The location and design of vehicular access to a state- controlled road (including access to a limited access road) does not create a safety hazard for users of a state-controlled road or result in a worsening of operating conditions on a state-controlled road. Note: Where a new or changed access between the premises and a state- controlled road is proposed, the Department of Transport and Main Roads will need to assess the proposal to determine if the vehicular access for the development is safe. An assessment can be made by Department of Transport and Main Roads as part of the development assessment process and a decision under section 62 of Transport Infrastructure Act 1994 issued. Refer to the SDAP Supporting information: Vehicular access to a state-controlled road, Department of Transport and Main Roads, 2017, for further guidance on how to comply with this performance outcome.” [475] Mr Purcell also alleges non-compliance with the Driveways and vehicular crossing code in City Plan. Its purpose is to provide design standards for the construction, repair or modification to a driveway or a vehicular crossing and to ensure that the decisions are compatible. Mr Purcell alleges non-compliance with the overall outcome in s 9.4.2.2(2)(h) and performance outcome PO5, which state: “(h) The construction, location and design of vehicular crossings and driveways prevent interference with the safe movement of vehicles or the safe use of the footpath to maintain the amenity of the area. PO5 Vehicle access to a public roadway is safe and does not compromise the efficiency, function, convenience of use or capacity of the road network.”399 [476] Compliance with performance outcome PO5 can be demonstrated by complying with the associated acceptable outcomes. Acceptable outcome AO5.1 requires that the location of the vehicular crossing to a public roadway is consistent with Australian Standard AS2890.1: 2004 Parking facilities Part 1: Off-street car parking and Australian Standard AS2890.2-2002 Parking facilities Part 2: Off-street car commercial vehicle facilities. Acceptable outcome AO5.2 requires there be no new vehicular crossing created on roads identified on the Functional Road Hierarchy as shown on the Zone maps or the Pacific motorway service road types overlay map. 397 Exhibit 6.03 p 10. 398 Exhibit 6.03 p 7: State development assessment provisions s 2.5. 399 Exhibit 5.01 pp 93 and 97. -- 116 of 143 -- 117 [477] If the development does not comply with the acceptable outcomes, it is nevertheless possible to demonstrate compliance with performance outcome PO5. The acceptable outcomes represent one, but not the only, means of demonstrating compliance. [478] In this case, whether there is compliance with the identified provisions of the State development assessment provisions and the Driveways and vehicular crossing code calls for two factual determinations, namely: 1. Is the proposed access to the public roadway safe? 2. Will the proposed access worsen the operating conditions of the Gold Coast Highway?400 [479] To assist me with the determination of these issues, I had the benefit of expert evidence from three traffic engineers: Mr Douglas, Mr Trevilyan and Mr Rytenskild, who were retained by JWZ Partners Development Group Pty Ltd, the Chief Executive and the Appellants respectively. [480] Before considering the issues that are raised by the relevant criteria in the State development assessment provisions and City Plan, it is convenient to first dispose of another criticism of the proposed development raised by Mr Rytenskild. [481] In the Joint Experts’ Report of First Meeting of Traffic Engineers, under a heading “Non-compliance with State Code 1”, Mr Rytenskild says: “The Traffic Impact Assessment carried out for the Development Application (DA TIA) did not include a Road Safety Assessment, as required by TMR’s Guide to Traffic Impact Assessment(GTIA). As such, the DA TIA was not carried out in accordance with the TMR GTIA. … The DA TIA did not include an assessment of impacts upon the surrounding road network, even though traffic generated would be likely to exceed 5% of existing volumes at the U-turn facility opposite. As such, the DA TIA was not carried out in accordance with the TMR GTIA.” [482] Neither State code 1 nor the Driveways and vehicular crossing code in City Plan call for a road safety assessment or an assessment of impacts on the surrounding network carried out in accordance with the Department of Transport and Main Roads’ Guide to Traffic Impact Assessment. As is apparent from the document, it is guide only.401 This was acknowledged by Mr Rytenskild during cross- examination.402 As such, the absence of such studies does not assist me with the traffic issues I am to consider in this appeal. It is not a matter that warrants refusal. 400 See Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 10 June 2022) 27. 401 Exhibit 6.07 p 14. 402 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 70-1 and 84-6. -- 117 of 143 -- 118 Is the proposed access to the public roadway safe? [483] The subject land has frontage to two streets, the Gold Coast Highway, which is a state-controlled road, and Goodwin Terrace, which is a local road.403 Although the Gold Coast Highway is a state-controlled road, it is not a high-speed road. It currently has a posted speed limit of 50 kilometres per hour.404 [484] Access to the proposed development is to be to and from the Gold Coast Highway via a driveway adjacent the southern boundary of the subject land. The traffic engineers agree that this access location is almost identical to the existing access for the subject land.405 [485] JWZ Partners Development Group Pty Ltd submits that the maintenance of the same access arrangements is of some moment given the Court’s obligation to consider the existing lawful use of the land pursuant to s 31(1)(f) of the Planning Regulation 2017. It submits that Mr Rytenskild’s complete failure to take this into account, despite acknowledging its relevance, presents as a telling indictment against his evidence generally. I disagree for two reasons. [486] First, assuming the previous use should be regarded as an existing lawful use even though it has ceased, it is a matter to which I must have regard.406 However, the legislative regime still requires me to assess the acceptability of maintaining the present access location for the purpose of the proposed development. [487] Second, there are material differences between the uses associated with the existing driveway and that now proposed. As is observed by Mr Rytenskild, the existing driveway served approximately six car parking spaces which were allocated to staff, whereas the proposed driveway would serve 84 car parking spaces and a heavy vehicle loading facility. The existing driveway was also historically used by vehicles with a low turnover. The previous use would have generated in the order of 20 vehicle movements per day. In comparison, the proposed driveway will be used by approximately 35 vehicle movements per hour during peak periods plus heavy vehicle movements. In addition, previous users of the existing driveway were workers associated with tenancies in the arcade who one would expect to be familiar with the arrangements. That will not be the case for all those who access the proposed development. The access will be used by residential and commercial visitors and delivery drivers who may not be familiar with the access and constrained operating arrangements.407 [488] In addressing the traffic issues, JWZ Partners Development Group Pty Ltd and the Council each also place weight on the fact that the proposed access location is the only reasonable access location available that permits preservation of the heritage façade to Goodwin Terrace. Accepting that to be the case, it is difficult to appreciate why any appreciable weight would be placed on that consideration if the access location would create a serious safety issue. 403 Exhibit 7.05 p 10 [26]. 404 Exhibit 7.05 p 10 [29]. 405 Exhibit 7.05 p 20 [89]. 406 Planning Act 2016 s 45(5)(a)(ii); Planning Regulation 2017 s 31(1)(f). 407 Exhibit 8.09 pp 3-4. -- 118 of 143 -- 119 [489] The real issue is whether the safety of the proposed access is compromised by inadequate sight lines. In his Further Statement of Evidence dated 1 June 2022408 and during cross-examination, Mr Rytenskild confirmed that his concern is limited to a potential issue that may arise after the completion of the Gold Coast Light Rail Stage 3 project.409 [490] With respect to that issue, the traffic engineers agree that Australian Standard AS2890 provides the appropriate design standard.410 Figure 3.2 of AS2890 is a diagram outlining the key elements of the sight distance assessment methodology.411 [491] The appropriate sight distance that is required at the access driveway depends on the frontage road speed. The appropriate standard also differs depending on the nature of the property to which the driveway provides access. Here, the appropriate standard is that for “other than domestic”. The table associated with the diagram provides sight distance standards described as “Desirable 5s gap” and “Minimum SSD”. “SSD” is not a defined term in Australian Standard AS2890.412 [492] Mr Trevilyan provides a helpful description of these terms. His evidence was unchallenged. He explains that the “Desirable 5s gap” relates to the ability of a driver on the access driveway seeking to enter the priority road413 to make a safe and sound decision as to the available gap in the traffic stream. He says that “SSD” means “stopping sight distance” and that “Minimum SSD” relates to the reaction time of a driver and the braking distance of a car on the priority road.414 [493] To assist with consideration of whether appropriate sight distances will be achievable after the completion of the Gold Coast Light Rail Stage 3 project, Mr Douglas prepared drawings that overlaid the proposed development on the most recent design drawings for the Gold Coast Light Rail Stage 3 project.415 He also prepared drawings that depict the current situation, absent changes from the Gold Coast Light Rail Stage 3 project.416 The drawings were before me as Exhibit 12.02. 408 Exhibit 10.07. 409 Exhibit 10.07 p 3; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 79- 80. 410 Exhibit 8.08 p 5 [13] and p 13 [59]. 411 Exhibit 7.05 p 14. 412 Exhibit 8.08 p 14; Exhibit 6.05 p 35. 413 From the context in which it is used, it is apparent that the “priority road” is used to convey the road on which the traffic has right of way. 414 Exhibit 8.08 pp 14-7. 415 Exhibit 8.08 and Exhibit 12.02. 416 Exhibit -- 119 of 143 -- 120 [494] Exhibit 12.02 depicts that the egress path out of the driveway is “squared up” for motorists. This may be achieved using line marking, and potentially rumble strips.417 The annotations on the drawings demonstrate that, having regard to the standards in Figure 3.2 of Australian Standard AS2890: (a) if the posted speed on the Gold Coast Highway is 40 kilometres per hour: (i) the minimum sight distance of 35 metres is achieved from an observation angle of 98 degrees; (ii) the sight distance of 55 metres required for the desired five second gap is achieved from an observation angle of 113 degrees; (b) if the posted speed on the Gold Coast Highway is 50 kilometres per hour: (i) the minimum sight distance of 45 metres is achieved from an observation angle of 108 degrees; (ii) the sight distance of 65 metres required for the desired five second gap is achieved from an observation angle of 120 degrees; and (iii) the maximum available sight distance past the corner of the building is approximately 69 metres, which exceeds the minimum stopping sight distance of 65 metres prescribed by Australian Standard AS2890 where the road has an operating speed of 60 kilometres per hour.418 [495] Based on that analysis, Mr Douglas opines that the minimum and desirable sight distances for a frontage road with a posted speed of either 40 or 50 kilometres per hour are achieved from the subject access point.419 Mr Trevilyan agrees.420 [496] Mr Douglas says that the only potential issue relates to the placement of the bus stop associated with the proposed light rail station. When buses stop for the boarding and alighting of passengers in the future bus stop, they may momentarily reduce available sight lines. That said, the available sight lines will never be below the minimum sight distance for a 40 kilometres per hour frontage road speed. Mr Douglas says that, in response to this potential constraint, before entering the carriageway motorists may elect to wait for the bus to depart, at which time they will gain greater sight lines. He observes that situations of that kind occur regularly in proximity to kerbside bus stops. As such, he does not regard the use of the future bus stop as a “boarding and alighting” stop as creating any meaningful safety concern. If that is planned, motorists will not reasonably be able to simply wait until the bus departs before they enter the carriageway. If the bus stop is to operate with lengthier dwell times, Mr Douglas says that it would be prudent to locate the front of the bus stop clear of the minimum 40 km/hr sight triangle. He says that is achieved with the current Gold Coast Light Rail Stage 3 project planning.421 417 Rumble strips are surface mounted units used as traffic management tools. 418 Exhibit 8.08 p 8 [33] and pp 103-5; Exhibit 12.02; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 70-1. 419 Exhibit 8.08 p 8 [34]. 420 Exhibit 7.05 p 18 [78]; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 25. 421 Exhibit 8.08 p 8 [35]-[37]. -- 120 of 143 -- 121 [497] Mr Douglas says that moving the front of the bus stop by some three metres would also achieve the minimum 50 km/hr sight triangle and moving the stop by around ten metres would achieve the desirable five second gap sight line for a 40 kilometres per hour frontage road. He expects such matters will be considered further and resolved by the Department of Transport and Main Roads as part of the ongoing planning and design of the Gold Coast Light Rail Stage 3 project. His expectation in that regard is informed by his experience in working on such major projects over the past 35 years. He says that in his experience, the onus to make such provision is placed on the design team for the State project.422 [498] With the benefit of that further analysis, Mr Rytenskild criticises the safety of the access arrangement for the proposed development for five reasons. [499] First, Mr Rytenskild’s says that Exhibit 12.02 is based on design parameters from AS2890 and Austroads standards, which he says is not appropriate.423 [500] The criticism has no force. Exhibit 12.02 only relies on Australian Standard AS2890, except for Sheet 8, which has regard to the standards contained in Austroads. In any event, as Mr Trevilyan explains, it is necessary to have regard to both documents for guidance and to assist interpretation.424 Even Mr Rytenskild had regard to both. He did so for his assessment of observation angles.425 [501] Mr Rytenskild’s second criticism is that the posted speed limit for this section of the Gold Coast Highway is yet to be finally determined by the Department of Transport and Main Roads and he considers that the Department would generally desire a speed limit of at least 50 kilometres per hour. On that basis, he says that it is appropriate to adopt a conservative design speed of at least 10 kilometres per hour above the planned posted speed limit of 40 kilometres per hour.426 [502] The traffic engineers assumed that the posted speed limit for the Gold Coast Highway will be 40 kilometres per hour once the Gold Coast Light Rail Stage 3 project is completed.427 The genesis of their assumption can be traced to a response prepared by Bitzios Consulting on behalf of JWZ Partners Development Group Pty Ltd as part of the development application process.428 This response records outcomes from a meeting with the State Assessment and Referral Agency and the Department of Transport and Main Roads, noting that the posted speed limit would be reduced to 40 kilometres per hour upon the completion of the Gold Coast Light Rail Stage 3 project.429 The response also includes the Bitzios Consulting Sight Distance Assessment drawing, which was prepared on the basis of a posted speed environment of 40 kilometres per hour and which was approved as part of the changed referral agency response. 422 Exhibit 8.08 p 8 [37]. 423 Exhibit 10.07 p 3. 424 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 28. 425 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 84. 426 Exhibit 7.07 p 3. 427 Exhibit 7.05 p 5 [13], p 10 [30] and p 12 [54]. 428 Exhibit 3.30. 429 Exhibit 3.30 p 1. -- 121 of 143 -- 122 [503] On 2 February 2022, the traffic engineers prepared a conduct report which sought, among other things, the current design plans for the Gold Coast Light Rail Stage 3 project and confirmation from the Department of Transport and Main Roads that the design speed and posted speed limit at the location of the subject land would be 40 kilometres per hour.430 [504] In a letter dated 9 February 2022, the Department of Transport and Main Roads advised: “TMR can confirm that the applications to reduce the posted speed limit and design speed of the Gold Coast Highway in the vicinity of the subject site are currently being reviewed in accordance with standard departmental practices. Given the proposals are still under assessment TMR is not able to provide the confirmation that is being sought as it is considered to be pre-empting the outcome.”431 [505] Notwithstanding that qualification from the Department of Transport and Main Roads, it is reasonable for the traffic experts to assume that the design speed and posted speed limit will likely be 40 kilometres per hour upon the completion of the Gold Coast Light Rail Stage 3 project given: (a) the Bitzios Consulting Sight Distance Assessment drawing, which implies a design speed or assumed operating speed of 40 kilometres per hour; (b) the concepts plans for the Gold Coast Light Rail Stage 3 project tighten the curve at the location of the subject land, so the posted speed limit could not possibly go up;432 and (c) upon completion of the Gold Coast Light Rail Stage 3 project, there will be a higher concentration of pedestrian activity at the subject land, which is likely to cause the Department of Transport and Main Roads to lower the speed limit in acknowledgement of that increased activity. [506] In any event, I do not accept Mr Rytenskild’s criticism. It seems disingenuous. As became apparent during his cross-examination, whatever the Department’s desire, Mr Rytenskild is firmly of the view that the Department will be forced to adopt a posted speed limit of 40 kilometres per hour because of the road geometry. As he explained during his oral evidence, the location of the light rail station in the middle of the Gold Coast Highway forces the southbound carriageway to be relocated so that it is against the subject land. In his view, the resultant alignment will only permit a design that accommodates a posted speed limit of 40 kilometres per hour.433 [507] Third, Mr Rytenskild says that it is not feasible to expect that the design of the planned bus interchange could be modified so that a greater sight line is achieved. 430 Exhibit 7.05 p 29. 431 Exhibit 7.05 p 32. 432 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 73. 433 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 73-4. -- 122 of 143 -- 123 He expects that it will need to cater for two buses and says that it would be inappropriate to modify it to improve sight lines.434 [508] This criticism does not cause me concern. The current proposed location for the bus stop would not obstruct the sight lines available for a design and posted speed limit of 40 kilometres per hour. Further, I prefer the evidence of Mr Douglas and Mr Trevilyan with respect to this issue. I accept their evidence that it is not a mandatory design requirement to consider a bus when assessing the appropriateness of sight lines for development.435 I also accept that a sensible motorist would simply wait for a bus to move or exercise appropriate caution in undertaking a turn when the sight lines are more constrained.436 In addition, as was accepted by Mr Rytenskild during cross-examination, the signals at Goodwin Terrace will generate natural gaps in the traffic.437 [509] Further, the design of the Gold Coast Light Rail Stage 3 project is not yet finalised. The final design of the Gold Coast Light Rail Stage 3 project will need to account for the subject land and its existing access conditions as part of its design. [510] Mr Rytenskild fourth criticism is that Australian Standard AS2890 does not contemplate an angle of observation of more than 90 degrees.438 This criticism is disingenuous. As was conceded by Mr Rytenskild during cross-examination, the Australian Standard does not contain specifications with respect to visibility angles and sight restrictions due to vehicle design. This is a matter about which traffic engineers typically consult Austroads Part 4A for guidance.439 [511] Figure C1 of Austroads Part 4A, vision becomes increasingly difficult when the angle of observation extends beyond 70 degrees. An angle of observation of more than 90 degrees requires the driver to take additional actions, such as to wind down their window so they can view beyond the pillar of a car or to move their body position in the car to look past the pillar and through the rear window. Such measures can increase visibility up to an angle of 120 degrees.440 This was conceded by Mr Rytenskild during cross-examination.441 This type of behaviour can be reasonably expected of a driver in many situations when driving. I do not accept that the need for a driver to turn their head, and possibly their body, is a basis for legitimate concern in this case. 434 Exhibit 10.07 p 4. 435 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 86. 436 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 26; Exhibit 8.08 p 8 [35]. 437 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 84; Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 76. 438 Exhibit 10.07 pp 4-5. 439 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 84. 440 Exhibit 7.05 p 6. 441 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 7 June 2022) 77. -- 123 of 143 -- 124 [512] Fifth, Mr Rytenskild does not accept the use of rumble strips or line marking will “square up” drivers as they exit the subject land. Further, he is of the view that these safety measures could be removed at any time, could wear off, or may not be maintained, and that rumble strips could pose a safety hazard for cyclists.442 The exact measure to be adopted is a matter for detailed design. I am satisfied that there is a potential design solution and that conditions can be appropriately drafted to ensure that the design solution is maintained throughout the life of the development. Further, I do not share Mr Rytenskild’s concerns that the public would ignore line markings. In my view, it is reasonable to assume that the public comply with matters such as line marking. [513] For the reasons provided above, I prefer the evidence of Mr Douglas and Mr Trevilyan with respect to safety. Their evidence satisfies me that the proposed access arrangement is safe. Will the proposed access worsen the operating conditions of the Gold Coast Highway? [514] The traffic engineers agree that there are no capacity issues associated with the proposed access.443 Despite that, Mr Rytenskild raises two matters that he says adversely impact the operating conditions of the Gold Coast Highway, namely: (a) operational and safety hazards associated with proximity of the access to the u-turn facility at Brake Street; and (b) the arrangements for on-site manoeuvring of medium rigid vehicles. Is there a difficulty because of the proximity of the access to the u-turn facility at Brake Street? [515] In the Joint Experts’ Report of First Meeting of Traffic Engineers, Mr Rytenskild expresses concern that vehicles exiting the proposed access that cross into the U- turn lane opposite will not be able to join the queue without encroaching the through lane. He says that traffic modelling is required to demonstrate that queuing generated by the signalised U-turn facility will not extend past the proposed point of access under projected traffic conditions for ten years from the anticipated opening year of the development. It is unclear whether he says this is a matter that presents a safety issue or one that he says will worsen the operating conditions of the Gold Coast Highway or both. [516] Mr Douglas and Mr Trevilyan disagree. [517] Mr Douglas notes that the subject land has been used in the past and it included an access at the same location. He says that although the development will increase the number of vehicles egressing the subject land, the distance to weave across to enter the U-turn lane remains constant. If motorists have difficulty entering the U- turn lane, there is a further opportunity to use the U-turn lane at the next median opening opposite George Street East, some 350 metres to the south.444 442 Exhibit 10.07 pp 5-6. 443 Exhibit 7.05 p 20 [89]. 444 Exhibit 7.05 p 11 [43]-[45]. -- 124 of 143 -- 125 [518] Mr Douglas considers the issue further by reference to traffic counts provided by the Department of Transport and Main Roads for the Brake Street and Gold Coast Highway intersection. His assessment concludes that the proposed development is likely to increase potential additional U-turn movements on the Gold Coast Highway by nine to ten per cent. Assuming that half of the motorists would use the Brake Street U-turn, with the other half using the George Street East U-turn facility, Mr Douglas opines that the potential additional U-turn movements are “very low”. He calculates an increase of just 4.8 per cent, which represents only a 0.2 per cent increase in traffic movements for the Brake Street intersection.445 [519] In addition, Mr Douglas notes that the current concept plans for the Gold Coast Light Rail Stage 3 project show an extension of the turn pocket, which may allow motorists egressing the subject land to more readily cross into the U-turn lane.446 [520] Mr Trevilyan makes similar observations. He notes that at differing times of the day, a varying proportion of trips egressing the subject land would seek to undertake a U-turn movement to head northwards on the Gold Coast Highway. He says that this is a movement that is already being utilised, including by users of the subject land. Mr Trevilyan is of the opinion that any potential capacity constraints related to the U-turn facility located near Brake Street is a moot point as an additional U- turn facility is located a short distance further to the south proximate to George Street East. In those circumstances, Mr Trevilyan is of the opinion that this could not reasonably be a matter of refusal.447 [521] I prefer the evidence of Mr Douglas and Mr Trevilyan to that of Mr Rytenskild. Their opinions on the issue are cogent and well-explained. Their evidence satisfies me that there are no operational or safety hazards associated with the proximity of the access to the u-turn facility at Brake Street. Are the arrangements for the on-site manoeuvring of medium rigid vehicles acceptable? [522] The proposed development includes a turntable that is proposed to be used to facilitate the on-site manoeuvring of medium rigid vehicles. Both Mr Douglas and Mr Trevilyan opine that the service vehicle arrangements are satisfactory. Mr Rytenskild disagrees. He says that this aspect of the design is unsatisfactory because of its potential to worsen the operating conditions of the Gold Coast Highway if the turntable was not properly staffed or operational. [523] I do not share Mr Rytenskild’s concern. His approach seeks a counsel of perfection and seeks to achieve a utopian outcome. It is well-established that this is not an appropriate approach.448 There are two matters that indicate that the design strikes an appropriate balance. [524] First, the Department of Transport and Main Roads has approved the proposed access under s 62(1) of the Transport Infrastructure Act 1994 (Qld). Condition 3 to 445 Exhibit 8.08 pp 6-7 [19]-[25] and p 88. 446 Exhibit 7.05 p 11 [43]-[45]. 447 Exhibit 7.05 p 8 [18] and [19]. 448 Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPELR 41, 43; Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, 483 [16]; Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, 595-6 [20]-[22]. -- 125 of 143 -- 126 that approval requires that “The vehicle turntable (including the car parking ramp signalisation) is to be maintained and operational”.449 It is an offence to contravene a condition stated in a decision notice under section 62 of the Transport Infrastructure Act 1994.450 [525] Second, if the turntable is not operational for some reason, the service vehicle diagrams produced by Mr Douglas demonstrate that service vehicles such as vans and small rigid vehicles will be able to undertake a three or five-point turn in the service area without requiring the use of the turntable.451 [526] This is not an issue that causes me to conclude that the proposed development will worsen the operating conditions of the Gold Coast Highway. Conclusion regarding traffic impacts [527] For the reasons provided above, I am satisfied that the proposed development will not occasion any unacceptable traffic impacts. It complies with: (a) paragraphs 1 and 3 of the purpose statement in s 1.1 and performance outcome PO16 of State code 1: Development in a state-controlled road environment in the State development assessment provisions; and (b) the overall outcome in s 9.4.2.2(2)(h) and performance outcome PO5 of the Driveways and vehicular crossings code in City Plan. What is the significance of the properly made submissions and lay witness statements? [528] The failure to meet reasonable community expectations is not a listed issue in Exhibit 1.11. Despite that, Ms Archer submits that the proposed development is of a height, bulk, scale, and density that is not in keeping with the reasonable expectations of the community.452 She does not elaborate on the submission. [529] Reasonable community expectations are informed by the planning scheme.453 They are also informed by other matters, such as the physical environment of the locality, including existing development.454 The submissions made to the Council in response to the publicly notified development application also provide a source of evidence about community expectations.455 They are before me in Exhibits 4.1 to 4.90, one of which supported the proposed development and the others opposed it. I also have evidence of the community’s expectations in the affidavits from five 449 Exhibit 8.8 pp 77-8; Exhibit 3.049. 450 Transport Infrastructure Act 1994 s 70(2)(e). 451 Exhibit 8.08 p 9 [45]. 452 Outline of Argument on behalf of the Appellants p 6 [3.4]. 453 Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40]; Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, 45 [96]; Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, [43], and [45]-[47]. 454 The Purcell Family v Gold Coast City Council & Ors [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56]. 455 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, [46]. -- 126 of 143 -- 127 members of the community, namely Ms Archer, Mr John Hicks, Mr Allan Dick, Mr Don Magin and Mr Maxwell Lethlean.456 [530] The submissions made during the development application are a matter to which the assessment manager must have regard under s 45(5)(a)(ii) of the Planning Act 2016 and s 31 of the Planning Regulation 2017. [531] An examination of all the submissions reveals that submitters objected to the proposed development on the basis that: (a) the proposed development is an overdevelopment of the subject land; (b) the proposed development does not comply with the outcomes sought in s 3.3.2.1(9) of City Plan; (c) the proposed development will have adverse privacy and amenity impacts; (d) the proposed development will have an unacceptable visual impact; (e) the car parking and traffic design of the proposed development is unacceptable; (f) the proposed development exceeds the residential density intended for the subject land; (g) the proposed development does not adequately protect the cultural heritage significance of the heritage-listed place; (h) the proposed development will have unacceptable shadow impacts; (i) the proposed development includes insufficient landscaping; (j) the proposed development will have an unacceptable impact on neighbourhood character; and (k) the setbacks and site cover of the proposed development are unacceptable. [532] Ms Archer lodged two lengthy submissions with the Council objecting to the proposed development and provided an affidavit in the appeal.457 They attach results from an online community survey that she ran to ascertain the community sentiment and expectations in relation to the development application. The survey ran from 6 to 19 December 2020 and received 182 responses to questions about opinions on the Old Burleigh Theatre Arcade and the surrounding Burleigh village. As is observed by Ms Archer, that part of the community that responded to her survey expressed concern about the character of Burleigh being changed beyond comfort and recognition. Ms Archer also expresses concern that the proposed development’s design does not maintain enough publicly accessible space and that the social significance of the subject land, associated with its use after the theatre use, will be lost. [533] The affidavits of Mr Hicks, Mr Dick, Mr Magin and Mr Lethlean explain the significance of the existing building on the subject land to them and express concern about the loss of what they regard as important elements of the building, including 456 Exhibits 9.1 to 9.5. 457 Exhibit 9.1. -- 127 of 143 -- 128 its public accessibility. Mr Hicks also expresses a concern about the unattractive design and Mr Lethlean explains his concerns about impacts on views, and privacy and amenity. [534] The submissions and affidavits indicate that the community expects that the heritage listing will protect the existing building’s elements that reflect its more recent use for commercial tenancies. As would be evident from my findings above, the expectations that elements of the existing building that reflect its more recent use for commercial tenancies will be protected sits uncomfortably with the protection afforded by the entry of the subject land on the local heritage register. Consequently, little weight can be afforded to that expectation and the grounds for objection founded on that expectation. [535] The submissions and affidavits also reveal an expectation that the proposed development should comply with City Plan, particularly the outcomes sought in s 3.3.2.1(9). The objections are largely premised on a belief that the proposed development does not comply with City Plan and the protection it affords matters such as building height, building form, local character, setbacks, site cover, scenic amenity, shadowing, heritage, density, and car parking. It is reasonable to expect compliance with City Plan. In large measure, that is achieved by the proposed development. To the extent that the proposed development does not comply with City Plan, the submissions lend weight to the case for refusal of the development application. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016? [536] Exhibit 1.11 raises several relevant matters that are said to arise for consideration under s 45(5)(b) of the Planning Act 2016. They are framed by JWZ Partners Development Group Pty Ltd in the following terms: “Land Use & Development Generally 1. Whether approval of the proposed development would achieve and further planning outcomes sought and encouraged by the Respondent’s Planning Scheme, City Plan 2016 (City Plan), including the provision of infill development; of housing choice and diversity; of a development that is well designed and that has appropriate regard to the amenity of, and is otherwise appropriately designed for, the locality in which the subject land is located; and of a development on land that is suitable for, and well suited for, development of the type proposed. Such planning outcomes and other relevant matters that support approval are also found in the following assessment benchmarks: (i) City Plan Strategic Framework, sections 3.3.1(1), (2), (3), (5), (6), (7), (9), 3.3.2.1(1), (2), (3), (4), (6), (9), (11); -- 128 of 143 -- 129 (ii) City Plan Medium Density Residential Zone Code, sections 6.2.2.2(1), (2)(a), (2)(b), (2)(c)(ii) and Performance Outcome (PO) 1, PO2; (iii) City Plan High-Rise Accommodation Design Code, sections 9.3.10.2(1), (2), PO10; (iv) City Plan General Development Provisions Code, section 9.4.4.2(2)(a). Bulk, Height, Scale, Form and Appearance … 3. Whether in any event the proposed development is of a form, scale and intensity that warrants approval in the exercise of the Court’s discretion, in all of the circumstances, having regard to the following assessment benchmarks: (i) City Plan Strategic Framework sections 3.3.2.1(4), (9), (11) and (16); (ii) City Plan Medium Density Residential Zone Code, sections 6.2.2.2(2)(b) and (2)(d) and PO1, PO3 and PO5; (iii) City Plan High-Rise Accommodation Design Code, sections 9.3.10.2(2)(a), (2)(b), (2)(c), (2)(e), (2)(g) and (2)(h) and PO5; (iv) City Plan General Development Provisions Code, section 9.4.4.2(2)(a), PO1 and PO8, and the Other Relevant Matters referred to hereunder. … Heritage 5. Whether the proposed development represents an appropriate redevelopment of a local heritage place having regard to the following: … (b) TLPI No. 9, which commenced on 30 July 2021 (after the lodgment of the subject application on 3 July 2020) and the weight to be accorded that document, particularly as it was drafted and commenced effect after the Council’s endorsement of the CMP. -- 129 of 143 -- 130 Other Relevant Matters 6. Whether, in the exercise of this Court’s discretion, it is in the public interest and the interests of justice that the proposed development be approved having regard to the following, further, relevant matters: (a) The proposed development is appropriate in terms of: (i) its compatibility with surrounding development (existing, approved and intended); (ii) it provision of appropriate and desirable infill development; (iii) its provision of: A. housing choice and diversity; B. a development that is well designed and that has appropriate regard to the amenity of, and is otherwise appropriately designed for, the locality in which the subject land is located; C. a development on land that is suitable for, and well situated for, development of the type proposed, (b) The proposed development is well located with respect to nearby public and private infrastructure including public open space (including public parklands and the beach); complementary and supporting uses (e.g. centre activities, sport, recreation, entertainment and dining facilities); and current transport facilities (private, active and public), as well as proximity to the proposed future Gold Coast Light Rail route (and a station) in the immediate vicinity of the subject land; (c) The proposed development is consistent with and complementary to the land uses in the locality of the subject land and the proposed development is a natural and logical re-use of the subject land; (d) The proposed development would make a positive contribution to the architectural built form, general development pattern and amenity of the area with no unacceptable adverse amenity or other impacts and no unacceptable adverse town planning consequences but rather it will enhance the amenity and enjoyment of the community, including by way of activation at ground/street level, provision of convenience tenancies and appropriate development above; -- 130 of 143 -- 131 (e) The nature and location of the proposed development is consistent with the reasonable expectations of the community, in all of the circumstances; (f) The proposed development is supportive of, consistent with, and will not detrimentally affect, the third stage of the Gold Coast Light Rail in the subject locality; (g) The proposed development will positively impact on the local community by creating employment opportunities both during the construction phase and during the lifetime of the development; (h) There is an economic, community and planning need for the proposed development.” [537] I have already addressed many of the provisions referred to by JWZ Partners Development Group Pty Ltd as part of my assessment of the development application against the assessment benchmarks and my consideration of the importance that City Plan attributes to the non-compliances. I have also already addressed much of the evidence about the matters on which JWZ Partners Development Group Pty Ltd relies. Having regard to my findings above, I am satisfied that: (a) the proposed development achieves the planning outcomes sought in City Plan referred to in paragraph 1 of Exhibit 1.11; (b) the proposed development is consistent with the assessment benchmarks referred to in paragraph 3 of Exhibit 1.11; (c) the matters referred to in paragraphs 6(a), (b), (c), and (d) of Exhibit 1.11 have been established; and (d) each of these matters supports approval of the proposed development. [538] The substantive issues that remain for consideration call for the following factual determinations: 1. Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9? 2. Is the subject land well-suited for the proposed development? 3. Is the proposed development supportive of and consistent with the Gold Coast Light Rail Stage 3 project? 4. Will the proposed development positively impact on the local community by creating employment opportunities? 5. Is there a need for the proposed development? Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9? [539] As I have discussed at paragraphs [84] to [86] above, Temporary Local Planning Instrument No. 7 ceased having effect on 29 July 2021. On 20 July 2021, the -- 131 of 143 -- 132 Council adopted Temporary Local Planning Instrument No. 9, which commenced on 30 July 2021.458 It has effect for a period not exceeding two years from its commencement.459 I may attribute such weight to Temporary Local Planning Instrument No. 9 as I consider appropriate in the circumstances.460 [540] Temporary Local Planning Instrument No. 9 affects the operation of City Plan461 by: (a) amending the Heritage overlay map to identify the subject land as a local heritage place;462 (b) inserting a trigger to require impact assessment of building work that involved any removal, demolition, or partial demolition on the subject land;463 (c) nominating the Heritage overlay code of City Plan as the relevant assessment benchmark for assessing an application for building work;464 (d) inserting additional Strategic framework specific outcomes in s 3.8.4 of City Plan;465 and (e) inserting additional overall outcomes and performance outcomes in the Heritage overlay code.466 [541] Although the way Temporary Local Planning Instrument No. 9 affects City Plan is by amendment to the same parts of City Plan as Temporary Local Planning Instrument No. 7, the content of the assessment benchmarks inserted are materially different. The differences relate to the importance of retaining the pre-1976 fabric. [542] The additional specific outcome for the Strategic framework now states: “(5) The Old Burleigh Theatre Arcade is an important heritage place for the City and is to be protected. Its removal or demolition will not be supported. Partial demolition may occurs (sic) when: (i) those elements of the Burleigh Theatre Arcade identified through an approved Conservation Management Plan as being constructed prior to 1976 and contributing to the cultural heritage significance of the Old Burleigh Theatre Arcade, are protected as required by the Conservation Management Plan; and 458 Exhibit 5.03 p 2 [6]. 459 Planning Act 2016 s 23(6). 460 Planning and Environment Court Act 2016 s 46; Planning Act 2016 s 45. 461 Under s 23(3) of the Planning Act 2016, a temporary local planning instrument an affect the operation of another local planning instrument, such as a planning scheme, but it does not amend or repeal the instrument. 462 Exhibit 5.03 p 17. 463 Exhibit 5.03 p 17 and Exhibit 5.02 p 362: City Plan s 5.7. 464 Exhibit 5.03 p 17 and Exhibit 5.01 p 47: City Plan s 5.3.3(5). 465 Exhibit 5.03 p 17. 466 Exhibit 5.03 pp 18-9. -- 132 of 143 -- 133 (ii) development is designed and sited to appropriately respond to the cultural heritage significance of the Old Burleigh Theatre Arcade. Note: The Conservation Management Plan must be approved by Council prior to the issue of any development approval over Lot 1 on RP72012. Note: Any assessable development that is inconsistent with this provision is considered not to be in the public’s interest.” (emphasis added) [543] Overall outcomes (g) and (i) are the same, but (h) now states: “(h) Any development involving partial demolition ensures that the significant elements of the Burleigh Theatre Arcade identified through an approved Conservation Management Plan are protected and remain in-situ.”467 [544] Performance outcome PO9 and much of performance outcome PO10 are the same. The only difference in performance outcome PO10 is in the first few lines of subparagraph (a), which now states: “PO10 Development involving partial demolition of the Old Burleigh Theatre Arcade is to: (a) ensure that the cultural heritage significance of the significant elements are to be protected and remain-insitu. The significant elements may include, but not limited to: …”468 [545] The relevance of the Conservation Management Plan to an assessment against Temporary Local Planning Instrument No. 7 was limited to its identification of the pre-1976 elements of the former De Luxe Theatre. It has greater relevance under Temporary Local Planning Instrument No. 9, which calls for consideration of the Conservation Management Plan to ascertain those 1976 that are significant and contribute to the cultural heritage significance of the former De Luxe Theatre. [546] With respect to components of significance, the Conservation Management Plan states: “The entry in the Gold Coast Local Heritage Register identifies a number of ‘components of significance’. The findings of this report are in broad agreement that the 1955 sections of the building have heritage values, however the hierarchy of these values is more closely assessed at Section 5.6 below. Where those values identified in the Schedule differ to those in the ‘components of significance’ it is submitted that the Schedule should prevail.”469 467 Exhibit 5.03 p 18. 468 Exhibit 5.03 p 19. 469 Exhibit 5.03 p 81. -- 133 of 143 -- 134 [547] The Conservation Management Plan includes a table that defines the level of significance of the different elements. In part, it states: Level of significance Understanding Comments High significance Considered essential to the understanding, appreciation and cultural value of the place. Fabric or elements should be retained and conserved. Typically these elements and values are associated with the townscape qualities of the building. These elements should be retained and conserved; intervention should be minimised; and new development should help maintain or enhance the significance Significant Considered important to the understanding, appreciation and cultural value of the place. Fabric or elements may be altered if doing so enhances the site significance. Typically these are 1955 elements, which contribute to the significance of the site as well as 1930s elements / remnants potentially discovered as part of future construction work (which are likely to be substantially altered or modified), Where feasible and appropriate, these elements could be retained, however considered alteration (both major and minor) may occur providing aspects of higher cultural significance are not compromised. (emphasis added)470 [548] The elements identified of high significance are: • “Townscape connections between the former De Luxe Theatre / Old Burleigh Theatre Arcade and the Burleigh Heads foreshore, Mowbray Park, Memorial Park, the Burleigh Heads Bowls Club and the Burleigh Heads commercial precinct • Views to and from the front ‘book end’ to the Burleigh Heads foreshore (including the pine trees) and Mowbray Park (views to and from the north) • Views to and from the front ‘book end’ to the Burleigh Heads Bowls Club, Memorial Park and Burleigh Heads commercial precinct (views to and from the northwest and west) • Views from the Gold Coast Highway (southbound) to the front ‘book end’ 470 Exhibit 5.03 p 82. -- 134 of 143 -- 135 • Evidence of the 1955 footprint and form adapting the earlier 1930s footprint and form • The front ‘book end’ including the Goodwin Terrace front brick façade of the 1955–1966 theatre including the north elevation, east and west side returns, stepped parapet, roof form, fenestration, awning, and street frontage patterning below awning (including bullnose columns, central opening and side entries) • Original 1955 materials of the front ‘book end’ including face brickwork, bullnose brick columns at ground level, precast window lintels, rendered banding, timber windows (including frames, sills and remaining double hung leaves on west façade), awning structure (6 metal rods and plates) and soffits, metal raingoods (gutters, downpipes and headers) • The central 1955 ground floor public entry and access space (adapted from the earlier 1930’s central entry) including the ceiling finishes • Evidence of the fixings for the former ‘theatre’ sign mounted on the front façade up until 1966 • The ‘De Luxe’ and ‘Thams Bros Est 1912’ theatre sign”471 [549] The elements identified of significance are: • “Views to and from the west façade to the Burleigh Heads Bowls Club, Memorial Park and Burleigh Heads commercial precinct • Views from the Gold Coast Highway (northbound) to the rear ‘book end’ • The rear ‘book end’ including the rear brick façade of the 1955– 1966 theatre including the south elevation, east and west side returns, roof form including deep eaves, and fenestration • Original 1955 materials of the rear ‘book end’ including face brickwork, precast window lintels, rendered banding, timber windows (including frames, sills and remnant leaves), metal raingoods (gutters and downpipes) • Evidence of the 1955 planning (former apartments and possible projection room) • 1955 apartment to second floor, rear ‘book end’ including layout, joinery and materials, and internal fitout (including cabinetry and light fittings) • Evidence of front 1955 apartments (originally 4) including front ground floor access corridors, internal timber stairs, timber T&G flooring and floor framing 471 Exhibit 5.03 p 83. -- 135 of 143 -- 136 • Possible remnant section of wall to ground floor (in retail tenancy) and possible evidence of projection room to first floor”472 [550] Reading the provisions of Temporary Local Planning Instrument No. 9 with the Conservation Management Plan, only those elements identified as having high significance in the Conservation Management Plan are required to be retained. That is, those elements listed in [548] are the only elements that the Conservation Management Plan “requires” be protected. [551] The proposed development retains and conserves each of the elements of high significance. The proposed development will also conserve some of the elements of significance, such as joinery and light fittings from the 1955 apartments.473 As such, the proposed development complies with all the requirements of Temporary Local Planning Instrument No. 9. [552] The proposed development’s compliance with the most recent and focussed planning intentions, as reflected in Temporary Local Planning Instrument No. 9, materially diminishes the significance of the non-compliances with Temporary Local Planning Instrument No. 7 in the exercise of the discretion. Is the subject land well-suited for the proposed development? [553] JWZ Partners Development Group Pty Ltd alleges that the subject land is well- suited for the proposed development. It relies on this as a relevant matter to support an approval. [554] This issue is uncontentious. All the town planning experts agree that the location of the subject land is well suited for residential development because it is close to a centre, public transport services, open space, and recreation areas.474 [555] I am satisfied that this matter has been established on the evidence. It is a relevant matter that supports approval. Is the proposed development supportive of and consistent with the Gold Coast Light Rail Stage 3 project? [556] JWZ Partners Development Group Pty Ltd alleges that the proposed development is supportive of and consistent with the Gold Coast Light Rail Stage 3 project. [557] This was not contested by the Appellants. [558] As I have noted in paragraph [423] above, City Plan supports podium and tower form high-rise development and increases in residential density proximate to the light rail corridor. It also seeks the transformation of areas around light rail stations into places that are compact, interesting, connected, and active. [559] The proposed development is supportive of the Gold Coast Light Rail Stage 3 project in that way. It increases residential density, presents an interesting façade to 472 Exhibit 5.03 pp 85-7. 473 See also Exhibit 2.02 pp 18-43. 474 Exhibit 7.02 p 58 [252]. -- 136 of 143 -- 137 the planned light rail corridor, and activates the ground plane immediately adjacent the planned bus interchange for the light rail and the proposed light rail station through its provision of commercial tenancies on the ground floor.475 In this regard, I note the evidence of Dr McGowan and Mr Curtis referred to in paragraphs [315](d), [322] and [329] above, which I accept. [560] The grant of the approval by Department of Transport and Main Roads under s 62 of the Transport Infrastructure Act 1994 is indicative that the proposed development is consistent with the Gold Coast Light Rail Stage 3 project. [561] In those circumstances, I am satisfied that this is a relevant matter, and that it is established on the evidence. Will the proposed development positively impact on the local community by creating employment opportunities? [562] JWZ Partners Development Group Pty Ltd alleges that the proposed development positively impacts on the local community by creating employment opportunities during the construction phase and during the lifetime of the development. Limited assistance was provided by JWZ Partners Development Group Pty Ltd in identifying the evidence it says establishes this allegation. It refers only to the evidence of Mr Perkins and Ms Morrissy. [563] Mr Perkins and Ms Morrissy each indicate that they have read the Co-respondent’s list of relevant matters that support approval476 and agree with it. Although they did not identify the foundation for their respective opinions, insofar as their opinions relate to this issue, they were not challenged.477 [564] Self-evidently, the proposed development will require construction and it involves uses that include ongoing commercial operations. In those circumstances, I have no difficulty accepting the unchallenged opinions of Mr Perkins and Ms Morrissy. [565] This is a matter that lends marginal support to approval. Is there a need for the proposed development? [566] JWZ Partners Development Group Pty Ltd alleges that there is a need for the proposed development. To assist me with this issue, I had the benefit of expert opinion evidence from Mr Duane, the economist retained by JWZ Partners Development Group Pty Ltd. [567] From an economic perspective, Mr Duane considers it relevant that: (a) both the South East Queensland Regional Plan and City Plan envisage substantial further population and dwelling growth on the Gold Coast over the period to 2041; (b) the planning documents identify that most of this growth will be catered for by infill development; and 475 See also the visual representation of the likely outcome is provided by the photomontage in Exhibit 2.01 p 49. 476 Exhibit 1.03. 477 Exhibit 7.02 p 54 [243] and p 55 [248]. -- 137 of 143 -- 138 (c) such growth is encouraged by the planning documents to occur: (i) at or near centres, particularly higher order centres, and (ii) in locations which enjoy, or will enjoy, good public transport options.478 [568] Population growth within the Gold Coast local government areas requires an additional 5,845 new dwellings each year (assuming the current Gold Coast City local government area average household size of 2.51 persons), which is equivalent to 146,115 new dwellings over the period 2016-2041.479 [569] In Mr Duane’s opinion, this population growth will require: “… a diverse range of housing choice in separate communities/locations…to sustain the rate of this population growth, and given the developed nature of the area, infill multi-unit development …”.480 [570] Mr Duane considers the broad hectare land within the Gold Coast local government area that is available to accommodate the demand driven by the above population growth. He concludes that a total of 57,500 dwellings are available in the area, which falls well short of the dwellings required for the next 20 years.481 [571] For the local area containing the subject land,482 a total of 320 dwellings per year will be required to accommodate the population growth. This equates to 6,400 dwellings in the 20-year period of 2021-2041.483 Data pertaining to dwellings under construction, approved, planned, or proposed in this local area reveals that the numbers are well less than the likely demand.484 During cross-examination, Mr Duane emphasised the need for redevelopment of existing sites, such as the subject land, to respond to this shortfall.485 [572] Following his consideration of the most recent Land Supply and Development Monitoring Report 2021 released by the Department of State Development, Manufacturing, Infrastructure and Planning, Mr Duane concludes that: “Overall, it is clear that the Gold Coast needs to have a high reliance on multiple dwelling development on infill sites or underutilised sites in the future to meet population targets. The information provided indicates that current development of multiple dwellings is well below the targeted benchmark levels and may well be ongoing into the future. Clearly, a substantial component of approvals is not being converted into multiple dwellings. 478 Exhibit 8.04 p 14 [2.21]. 479 Exhibit 8.04 p 16 [3.3]. 480 Exhibit 8.04 p 16 [3.4]. 481 Exhibit 8.04 p 18 [3.10] and Table 3.2. 482 The local area identified by Mr Duane includes Burleigh Heads, Burleigh Waters, Eleanora, Miami, Palm Beach, and Varsity Lakes: see Exhibit 8.04 p 18 [3.11] and p 20 Map 3.1. 483 Exhibit 8.04 p 18 [3.12]. 484 Exhibit 8.04 p 32 [4.15]. 485 Transcript of Proceedings, Archer & Anor v Council of the City of Gold Coast & Ors (Planning and Environment Court of Queensland, 1892 of 2021, Kefford DCJ, 6 June 2022) 64-5. -- 138 of 143 -- 139 In that environment, well located sites, such as the subject development, able to incorporate dwellings in close proximity to significant infrastructure should be used for residential purposes. This is economically sensible”.486 (emphasis added) [573] The proposed development will provide 30 dwellings. Although this equates to only 0.5 per cent of future demand, Mr Duane observes that the redevelopment of land such as proposed here will provide a significant contribution to housing supply over time.487 [574] Considered in the context of a mature city such as the Gold Coast, Mr Duane observes that development and redevelopment must be provided in numerous localities to ensure that a growing population can be accommodated (without urban sprawl) and to provide the public with an appropriate level of choice.488 [575] Mr Duane’s analysis of the factors pertaining to demand and supply leads him to conclude that there is a strong need for residential development such as the proposed development. He says that the proposed development will go significantly towards addressing the ongoing public or community need for the provision of accommodation. In his opinion, looking at all the attributes the subject land possesses and the demand within the local area, it would be economically sensible to develop the subject land for a higher density development.489 [576] I accept the evidence of Mr Duane. His opinions were cogent and premised on sound foundations. Mr Duane’s evidence satisfies me that there is a need for the proposed development. This is a relevant matter that supports approval. Should the development application be approved in the exercise of the planning discretion? [577] The appropriate approach to the exercise of the planning discretion is explained in paragraphs [102] and [103] above. [578] As I have found above, there is a substantial degree of compliance with the assessment benchmarks. However,: (a) the proposed demolition of some pre-1976 elements of the existing building does not comply with that part of Temporary Local Planning Instrument No. 7 that affected the operation of City Plan by inserting specific outcome (5)(i) in s 3.8.4 of the Strategic framework, overall outcome (h) in s 8.2.9.2(2) of the Heritage overlay code and performance outcome PO10(a) in the Heritage overlay code; (b) the height of the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code; and 486 Exhibit 8.04 p 31 [4.5] and [4.6]. 487 Exhibit 8.04 p 31 [4.7]. 488 Exhibit 8.04 p 31 [4.9]. 489 Exhibit 8.04 p 33 [4.18]-[4.20]. -- 139 of 143 -- 140 (c) the density of the proposed development does not comply with performance outcome PO5 of the Medium density residential zone code. [579] Each of the non-compliances tells against approval. The non-compliances associated with the demolition of pre-1976 fabric of the former De Luxe theatre and the height of the proposed development are of considerable importance in the planning instruments and are deserving of significant weight in the exercise of the discretion. The reasonable expectations of the community that there will be compliance with planning instruments adds weight to the case for refusal. [580] That said, the weight to be given to the non-compliances is materially diminished because: (a) Temporary Local Planning Instrument No. 7 has ceased to have effect and the proposed development complies with Temporary Local Planning Instrument No. 9, which is the most recent planning protection afforded to the former De Luxe Theatre; (b) the proposed development satisfies all the outcomes in s 3.3.2.1(9) and, as such, City Plan provides encouragement for the building height proposed; and (c) the proposed development is consistent with the underlying planning goals in City Plan with respect to density. [581] I must also have regard to those relevant matters that favour approval, each of which I have already identified in my reasons above. They include that the proposed development: (a) is proximate to a centre, public parklands and the beach, and transport facilities, which facilities will be enhanced by the provision of the Gold Coast light rail station and associated bus stops proximate the subject land; (b) will have no adverse amenity impacts; (c) will make a positive contribution to the local area through its excellent design, including its activation of the street; (d) is a viable re-use of an under-utilised heritage building in a manner that is compatible with its cultural heritage significance; and (e) will meet a need for further infill development in an appropriate location. [582] On balance, I am satisfied that, taken in combination, the extent to which the proposed development does not comply with the assessment benchmarks should not stand in the way of an approval given the matters that I have identified that temper the significance of the non-compliances and the relevant matters that I have identified that support approval. Overall, the proposed development is meritorious and should be approved, subject to the imposition of reasonable and relevant conditions. Costs of the adjournment of the hearing on 23 May 2022 [583] There is one final matter that I must address. It relates to applications for costs made by several parties. The applications were made in the following context. -- 140 of 143 -- 141 [584] At a callover on 20 April 2022, this appeal was listed for hearing commencing 23 May 2022, with a site inspection to occur at Burleigh on Sunday 22 May 2022. [585] At about 4 pm on 20 May 2022, I listed the appeal for mention after it was drawn to my attention that Mr Purcell had sent an email about one hour earlier that noted, amongst other things: “This email is to inform Her Honour that at approximately 9:30am Friday 20 May 2022, due to experiencing COVID symptoms, I undertook a COVID test at the Gold Coast University Hospital. As per health directives, I am required to self-isolate until test results are returned (potentially 3 days) or at least 7 days if returning a positive result.” [586] From the interchange with Mr Purcell at that mention, it was apparent that: (a) the Appellants had been legally represented during preparations for the appeal; (b) shortly before the callover, the Appellants became self-represented litigants in the appeal; (c) Mr Purcell understood that the Appellants all intended that he would act as the primary spokesperson representing the interests of the Appellants and he did not believe that any other Appellant would be in a position to act as spokesperson; (d) Mr Purcell did not want to disrupt the potential for the trial to proceed if it could and was, at that time, prepared to appear by phone or through an agent if that was permitted; (e) Mr Purcell was content for the site inspection to proceed on Sunday 22 May 2022, even if he was in isolation; and (f) on the proposed hearing schedule, the first witness was to be Mr Duane, who would be flying up from Sydney to appear in person. [587] Following the mention, at about 5:17 pm, Mr Purcell informed all the parties and the Court that he had received a positive test result for COVID-19. [588] On 23 May 2022, each of Mr Purcell and Ms Archer made an application to adjourn the hearing on the basis that, amongst other things: (a) Mr Purcell had received a positive test result for COVID-19 and, consequently, he was not in a position to properly represent himself; (b) the other parties had not complied with the obligations of the Practice Direction about the provision of a draft list of issues in dispute; and (c) since the Appellants had elected to represent themselves, the other parties had engaged in multiple communications with respect to the trial with Mr Purcell alone and without having enquired about the contact details of the other Appellants. This reinforced Mr Purcell’s perception that he could represent all the Appellants without any further formal steps to authorise such action. -- 141 of 143 -- 142 [589] On the basis that Mr Purcell was self-represented and had received a positive test result for COVID-19, I granted the adjournment. [590] Following my decision to grant the adjournment, JWZ Partners Development Group Pty Ltd made an application for the costs thrown away by the adjournment, limited to the costs of two counsel for that day, costs of one solicitor and the witness expenses for Mr Duane. The Council also made an application for the costs thrown away by the adjournment, limited to the costs of one counsel for that day and the costs of two solicitors. [591] Ms Archer and Mr Purcell resisted the application for costs. [592] The starting position in the appeal is that each party is to bear its own costs.490 However, under s 60 of the Planning and Environment Court Act 2016, the Court may make an order as to costs when a party has incurred costs in one, or more, of nine identified circumstances. There is no obligation on the Court to make an order if one or more of the circumstances is established. The Court retains an unfettered discretion to make an order as it considers appropriate. [593] One of the circumstances that may give rise to a costs order is if a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding.491 This is the foundation for the costs applications made by JWZ Partners Development Group Pty Ltd and the Council. [594] It is not necessary for me to determine whether the power to award costs is enlivened because, in the exercise of my discretion, I am not prepared to award costs for two reasons. [595] First, the possibility of an adjournment of the hearing should have been apparent to JWZ Partners Development Group Pty Ltd when it received an email from Mr Purcell on Friday evening about his positive test result for COVID-19 given it was known that Mr Purcell was self-represented and intended to speak on his own behalf. As such, if JWZ Partners Development Group Pty Ltd held genuine concerns about incurring unnecessary cost associated with Mr Duane’s attendance on the first day of hearing, it could have arranged to change the order in which it would call its witnesses. This would have ensured it was ready to proceed with the trial if that proved possible while also avoiding unnecessary costs in the event the appeal was adjourned. [596] Second, even if Mr Purcell had provided notice of the intention in his email of Friday evening, in which he otherwise promptly notified of the results of his COVID-19 test, such notice would not have alleviated the need for the parties (and their legal representatives) to attend on 23 May 2022. [597] Both applications for costs are dismissed. Conclusion regarding the proposed development [598] JWZ Partners Development Group Pty Ltd has discharged the onus. 490 Planning and Environment Court Act 2016, s 59. 491 Planning and Environment Court Act 2016, s 60(1)(c). -- 142 of 143 -- 143 [599] In due course, the appeal will be dismissed, and the development application approved. To that end, I will adjourn the appeal for further review, by telephone, on 31 January 2023 to allow the Council to prepare the necessary suite of conditions. -- 143 of 143 --