Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 [2023] QPELR 1160

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 PARTIES: BELL CO PTY LTD, ELVA MCINTYRE, SAM LYNCH, BRUCE MATHIESON JNR (appellants) v COUNCIL OF THE CITY OF GOLD COAST (respondent) And SCOTT REGINALD HEADLAND (co-respondent) FILE NO: 6 of 2022 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 21 September 2022 DELIVERED AT: Brisbane HEARING DATE: 18, 19, 26, 27 and 28 July 2022 JUDGE: Williamson QC DCJ ORDER: Orders in accordance with paragraph [175]. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – SUBMITTER APPEAL AGAINST IMPACT ASSESSABLE DEVELOPMENT APPLICATION – where the respondent’s delegate approved a development application for a Multiple dwelling (4 units) in the Medium density residential zone – where the height of the development exceeds that shown on a building height overlay map in the respondent’s planning scheme – whether a building height uplift provision is engaged in the Strategic framework of the respondent’s planning scheme – whether the planning discretion ought be exercised in favour of approval or refusal. LEGISLATION: Planning Act 2016, ss 4, 45, 59 & 60 Planning Regulation 2017, s 31 Planning and Environment Court Act 2016, ss 43, 45, 47 -- 1 of 36 -- 2 CASES: Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Lawrence v Council of the City of Gold Coast [2022] QPEC 19 Nerinda Pty Ltd v Redland Shire Council & Ors [2019] 1 Qd R 523 Parmac Investments Pty Ltd v Brisbane City Council [2018] QPELR 1026 Stradbroke Island Management Organisation Inc v Redland Shire Council & Anor (2002) 121 LGERA 390 COUNSEL: Mr T Sullivan QC and Ms J Bowness for the appellants Mr N Loos for the respondent Mr D O’Brien QC and Mr K Wylie for the co-respondent SOLICITORS: Thynne & Macartney for the appellants Corrs Chambers Westgarth for the respondent Hickey Lawyers for the co-respondent Table of Contents Introduction ........................................................................................................................... 3 The land and surrounding locality ......................................................................................... 4 The proposed development ................................................................................................... 6 The statutory assessment and decision-making framework .................................................. 8 City Plan: Building height and the uplift provision .............................................................. 8 The disputed issues .............................................................................................................. 14 (a) A reinforced local identity and sense of place ...................................................... 17 (b) Interface with nearby development ....................................................................... 22 (c) Standard of appearance: built form and street edge .............................................. 25 (d) Housing choice and affordability .......................................................................... 28 (e) Important elements of local character or scenic amenity ...................................... 28 (f) Conclusion: nature and extent of non-compliance with Specific outcome 9 ........ 29 Additional reasons for refusal ............................................................................................. 29 Draft amendments to City Plan ........................................................................................... 29 Reasons supportive of an approval ...................................................................................... 32 Exercise of the planning discretion ..................................................................................... 34 Disposition of the appeal ..................................................................................................... 36 -- 2 of 36 -- 3 Introduction [1] By decision notice dated 24 March 2021, a conditional development approval was granted for a Multiple dwelling (3 units) on land situated at 111 Hedges Avenue, Mermaid Beach (the land).1 The approval was granted by Council’s delegate after carrying out a code assessment.2 A review of the plans approved for development reveal the Multiple dwelling is three storeys, and up to 15 metres, in height above natural ground level.3 [2] In May 2021, a further development approval was sought from Council for the land. Approval was again sought for a Multiple dwelling.4 Four units were proposed in a four storey building that is 16.3 metres in height above natural ground level.5 Unlike the development application approved in March 2021, the further application was impact assessable and attracted adverse public submissions.6 On 6 December 2021, conditional development approval was granted by Council’s delegate for the four storey Multiple dwelling.7 This is a submitter appeal against that decision. [3] The issues to be determined in the appeal centre upon a building height uplift provision, which is found in the Strategic framework of Council’s planning scheme, City plan. The need to consider the uplift provision arises because the proposed development exceeds, by no more than 50%, the number of storeys and overall height in metres prescribed on the applicable Building height overlay map.8 This exceedance gives rise to non-compliance with City Plan because the overlay map is embedded in overall outcome (2)(d)(i) and Performance outcome PO3 of the Medium density residential zone code (MDRZC). [4] The building height uplift provision, namely s.3.3.2.1(9) of the Strategic framework (Specific outcome 9),9 provides flexibility to depart from the quantitative building height standard when eight cumulative ‘outcomes’ are satisfied. The appellants contend the proposal does not meet five of the eight outcomes.10 This is said to be symptomatic of the proposal being an overdevelopment of the land. The five outcomes call for issues with respect to local identity, sense of place, interface management, standard of design and appearance, community expectations and housing choice and affordability to be examined. [5] The co-respondent and Council join issue with the reasons for refusal advanced by the appellants. The co-respondent’s resistance of the appeal is founded, in large measure, upon the outcome of a comparative exercise; the Court is invited to compare the proposed development with the conditional development approval granted in March 2021.11 The comparative exercise is said to demonstrate that approving the development application the subject of this appeal would not result in different, let 1 Ex.1, p.238. 2 Ex.1, p.239. 3 Ex.1, p.269, east and west elevation. 4 Ex.1, p.2. 5 Ex.1, p.24. 6 Ex.15. 7 Ex.1, p.192. 8 Ex.2, p.7. 9 Ex.12, pp.27 to 28. 10 Ex.36, para 78. 11 Ex.38, paras 2(e), 4(b), 103(a) and 215(c). -- 3 of 36 -- 4 alone material or unacceptable, planning consequences.12 It is uncontroversial that the approval granted in March 2021 is relevant to the assessment of the development application given s 45(5)(a)(ii) of the Planning Act 2016 (PA) and s 31(1)(f) of the Planning Regulation 2017. [6] The appeal is a hearing anew.13 [7] It is for the co-respondent to establish the appeal should be dismissed.14 The land and surrounding locality [8] The land is situated on the eastern side of Hedges Avenue, overlooking Mermaid Beach. It sits about mid-block between Venice and William Streets, which are located to the north and south respectively. [9] A smart map,15 read with a number of visual aids before the Court, reveals the land is: (a) rectangular in shape; (b) 769 m 2 in size; (c) relatively flat, rising about 0.5 metres between the front and rear boundaries; and (d) one of a number of larger sized lots in the locality.16 [10] The land is currently improved with a two storey Dwelling house, ancillary structures and a swimming pool. The Dwelling house is substantial in size and partially obscured from view on Hedges Avenue by a masonry fence, garage door and gated entry.17 The fence and garage door span the 19.2 metre wide frontage to Hedges Avenue. [11] Hedges Avenue and Albatross Avenue provide a north-south connection between Mermaid Beach and Miami.18 The road reserve in Hedges Avenue is relatively narrow. It is 10 metres wide and accommodates a footpath on each edge; one single north-bound traffic lane; and a two-way bicycle lane adjacent to the eastern footpath. The narrow width of Hedges Avenue, in combination with front gardens, entries and building façades located close to the footpath, was said to create an ‘intimate scale’ for pedestrians and cyclists travelling along the footpath or bikeway. I agree. [12] To the north of the land is a two storey Dwelling house. It is a substantial home, partially obscured by fencing and a gated entry from Hedges Avenue. [13] To the south of the land is a two storey Multiple dwelling (8 units).19 The built form includes a basement carpark that extends above ground level. The building, as a 12 Ex.38, paras 2(f), 6(b), 6(c), 45 to 47. 13 Planning and Environment Court Act 2016, s 43. 14 Planning and Environment Court Act 2016, s 45(2). 15 Ex.2, p.2. 16 Ex.2, p.9. 17 Ex.7, p.25, Figure RO22. 18 Ex.2, p.5. 19 Ex.7, p.23, Figure RO20. -- 4 of 36 -- 5 consequence, reads from the street as two-plus storeys. The architecture of the built form is dated and a product of its time. It is austere in appearance, which is not alleviated by the utilitarian steel boundary fence and gate located on the Hedges Avenue frontage. [14] To the west of the land in Hedges Avenue is St Johns Park. The park is sleeved on each side by residential development with frontage to Venice and William Streets. The park is accessed from the Gold Coast Highway to the west, mid-block along Venice and William Streets, and from Hedges Avenue. Play equipment is centrally located. Vegetation is scattered through the park, and lines a walking path that facilitates a north-south connection. [15] The issues for determination in this appeal necessarily require the existing character of the locality to be examined. Starting with a broad view of the locality, the land is located in the coastal suburb of Mermaid Beach. The built form in that locality varies in terms of its height, bulk, scale, age and architecture. In general terms, it is predominantly Dwelling houses that are one to two storeys in height. The locality was fairly described by the town planning experts as ‘a coastal residential village generally having a low key, scale, appearance and character’.20 [16] A detailed building height study was undertaken by Mr Curtis to assist the Court.21 The study confirms that the height of existing buildings in the locality varies. The variation ranges from one to two storeys up to six/seven storeys. The greatest variability above three storeys in height is to be found in the north of the locality. This reduces markedly as one moves from Montana Road (in the north) towards Seabeach Avenue in the south. [17] In the immediate locality, there is variability in terms of building height. An allotment to the north of the land is improved with a six/seven storey building, known as Solano.22 This development was approved in the early 1980s.23 Three storey Multiple dwellings are located on the western side of Hedges Avenue adjacent the land. They are situated on the corners of Hedges Avenue/William Street and Hedges Avenue/Venice Street respectively. Three storey Multiple dwellings are also located at the eastern end of Venice Street 24 and William Street. One to two storey detached dwellings, of varying sizes, can also be identified. [18] To complete the picture, there is an extant development approval for a four storey Multiple dwelling at the mid-point of William Street on its northern side. The approval was granted after an appeal to this Court against a Council refusal.25 The site adjoins St Johns Park. Approved architectural elevations were in evidence before the Court.26 They reveal that the approved built form is contemporary in appearance. It reads as a 4 storey building with a recreation space at roof level. The highest point of the building will be 18.45 metres above ground.27 20 Ex. 8, p. 6, para 22. 21 Ex. 2, p. 9. 22 Ex.2, p.29, Figure 3. 23 Ex.32 and 34. 24 Ex.7, pp.53 to 54, Figures NM2, NM3 and NM4. 25 Lawrence v Council of the City of Gold Coast [2022] QPEC 19. 26 Ex.2, pp.31 to 34. 27 Ex.2, pp.32 & 33. -- 5 of 36 -- 6 The proposed development [19] The development application seeks approval to start a new use of the land, namely a Multiple dwelling. This is a defined use in City Plan.28 [20] The form of the development proposed is depicted in a bundle of architectural plans and elevations.29 It is a single building comprising a basement level carpark, four storeys with a single unit per floor, and an open roof top terrace and recreation area. The basement level extends above the natural ground level by up to about 1 metre,30 but is not counted as a storey. [21] At ground level: (a) solid walls up to 2.0 metres in height are proposed on the northern and southern boundaries for the width of the land;31 (b) an existing pool between the eastern boundary and the proposed building is to be retained and augmented;32 (c) a roofed gate house, 2.1 metre high steel fence and gate are proposed along the Hedges Avenue frontage; (d) to the north of the gate house, is a 5.5 metre wide driveway providing access to the basement carpark from Hedges Avenue; and (e) in between the gate house and driveway, is an area of landscaping. [22] A prominent feature of the proposed design at ground level is the entry to the basement carpark. It is about 4 metres high and framed on three sides. The framing is provided by the driveway ramp; a curved wall that sits at about the centre line of the façade; and the soffit of the first floor slab above. The northern side is open, with the first floor slab cantilevered over this part of the entry. I accept that this aspect of the design will read as a deep void when viewed from Hedges Avenue.33 [23] The footprint of the building is effectively rectangular, with the longest dimension in the east-west direction. The building is 16.3 metres above natural ground level at its highest point. The only part of the building that projects beyond 15 metres above natural ground level is a lift overrun, lobby and stairwell. This area is located on the roof level and is sited towards the southern edge of the building. [24] The proposed elevations indicate the built form: (1) is articulated in the vertical and horizontal planes; (2) is finished with a mixture of building materials;34 (3) includes fenestration and balconies to provide depth and visual interest; and (4) is layered with building elements to provide visual interest and to break up building bulk.35 The extent of articulation, modulation, layering and fenestration in each façade varies. That part of the southern façade visible from Hedges Avenue was a particular point 28 Ex.1, p.155. 29 Ex.2, pp.11 to 17. 30 Ex.2, p.15, North Elevation. 31 Ex.2, p.15, North and South Elevation. 32 Ex.2, p.11, Ground floor plan. 33 Ex.7, p.28, para 52(d). 34 Ex.2, p.17. 35 Each of these matters were described in some detail by Mr Curtis at Ex.7, pp.45 to 46. -- 6 of 36 -- 7 of focus in the appellants’ case. It is from this viewpoint that the full height of the building can be appreciated, including the lift overrun and stair on the roof.36 What is also apparent from this viewpoint is an element of the Southern façade, which is a solid curved feature wall that is four storeys in height. It is to be clad with ‘TC-1’, which is INAX Ceravio or similar tile cladding,37 and extends from the ground level up to the roof level (in the order of 13 metres high). This wall presents as a solid building element despite being punctuated at each storey with a single window. [25] The site cover for all levels of the building, save for the basement, complies with the relevant acceptable outcomes in City Plan. The departure from the acceptable outcomes means that approval is sought for an alternative solution demonstrating compliance with, inter alia, Performance outcome PO2 of the MDRZC. [26] The boundary setbacks for the development comply with the relevant acceptable outcomes in City Plan, save for:38 (1) a protrusion of the basement above ground level; (2) the fire stair between the basement and ground level; (3) a balustrade to the northern balcony extension at Level 3; and (4) awnings around windows on the southern façade at level 3. Again, the departure from the acceptable outcomes means approval is sought for an alternative solution demonstrating compliance with, inter alia, Performance outcome PO1 of the MDRZC. [27] Visualisations were prepared for the proposed development in response to an information request.39 They depict the development in its context when viewed from the south, east and north. The viewing angles for the east and north are not ideal. This was not addressed by visualisations, or photomontages prepared later in time; no visual tools of this kind were prepared specifically for the appeal. It can also be observed that no expert was called to prove the accuracy of the visualisations, or the methodology adopted to create them. [28] A comparison between the proposed development and the development approved in March 2021 reveals there are obvious areas of similarity. The designs share the same footprint, ground level design and setbacks at the lower levels. The differences appear at the upper levels where the approved design has been modified to achieve a fourth storey of accommodation.40 In addition to the fourth storey, the proposed development, unlike the three storey approval, includes built form that sits below the point representing 15 metres above the natural ground level. Additional built form is also proposed above the point that is 15 metres above natural ground level. All of the additional built form will be appreciable when viewed from neighbouring properties to the south, and from similar locations in the public domain. [29] A single unit per floor is proposed. They are designed to target the upper end of the market. The level of finish and design is commensurate with a property having a market value in the order of $7m to $9m.41 Central to the design is an intent to maximise an orientation towards Mermaid Beach. Significant balcony areas are 36 Ex.7, p.8, Figure 3. 37 Ex.2, p.17 read with the South elevation on p.15. 38 Ex.7, p.7, para 25. 39 Ex.7, Figures 2, 3 and 4. 40 Ex.7, p.7, para 26. 41 Ex.5, para 153. -- 7 of 36 -- 8 provided along the eastern side of the building to take advantage of this highly desirable aspect. The statutory assessment and decision-making framework [30] The applicable statutory assessment and decision making framework for this appeal is prescribed by the PA, in particular ss 45 and 60. The former provision requires, amongst other things, the development application be assessed against the assessment benchmarks in a categorising instrument in force the date the application was properly made. The latter, namely s 60(3), in combination with s 59(3), confers a broad discretion to approve a development application, be it in whole or part. Appellate authority confirms that the exercise of this discretion calls for a broad evaluative judgment42 where non-compliance with an adopted planning control is a relevant fact and circumstance.43 The same authority also confirms that the broad evaluative judgment is to be based upon the assessment carried out under s 45 of the PA. City Plan: Building height and the uplift provision [31] Section 45(5)(a)(i) of the PA requires the development application be assessed against prescribed assessment benchmarks. The assessment benchmark of relevance to this appeal is Council’s planning scheme, City Plan. Version 8 of the planning scheme was in force at the time the development application was properly made.44 [32] City Plan is divided into 23 zones. The zones organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.45 The land is included in the Medium density residential zone.46 [33] The assessment benchmarks for zones are contained in zone codes.47 Each zone code bears a similar structure.48 They comprise a purpose statement, overall outcomes that achieve the purpose of the code and performance outcomes and acceptable outcomes that achieve the overall outcomes and purpose of the code. [34] The purpose of the MDRZC is as follows:49 “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.” [35] The purpose of the MDRZC is said to be achieved through a number of overall outcomes. Overall outcome (2)(d) is directed to built form in the zone. The provision states, in part:50 42 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987, per Henry J at [59]. 43 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003, [54] – [62]. 44 s 45(7), PA and Ex.13. 45 s 6.1(1). 46 Ex.12, p.183 & Ex.13, p.1 47 s 6.1(4). 48 s 6.1(8). 49 Ex.12, p.88. 50 Ex.12, p.90. -- 8 of 36 -- 9 “(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; …” [36] Performance outcome PO3 of the MDRZC, which is one of a number of outcomes intended to facilitate the achievement of the overall outcomes and purpose of the same code, states, in part:51 “PO3 Building height and structure height does not exceed that shown on the Building height overlay map…” [37] The land can be identified on Building height overlay map 18 (the overlay map).52 By reference to the overlay map, and the associated legend, it can be seen that the land is part of a contiguous area spanning from William Street in the south to Peerless Avenue in the north. In this area, which is about a kilometre in length along its north- south axis, building height of 3 storeys, and 15 metres, is anticipated. [38] The proposed development exceeds the height shown on the overlay map; the proposed development is 4 storeys and 16.3 metres in height.53 This exceedance establishes non-compliance with overall outcome 2(d)(i) and Performance outcome PO3 of the MDRZC. Non-compliance was conceded by the co-respondent.54 [39] During the course of his opening, Mr O’Brien QC submitted that the nature and extent of the non-compliance with City Plan in this case was ‘de minimis’, ‘minimal’ and ‘devoid of town planning consequences’.55 A similar theme was maintained in the co- respondent’s written submissions.56 In that document, the co-respondent conceded non-compliance with City Plan but characterised it as ‘technical and of no planning consequence’57 having regard to three considerations: (1) that the additional height above that stated on the overlay map will not be readily discernible; (2) the built form that exceeds the height stated in the overlay map will not give rise to any additional impact over and above the development approved in March 2021; and (3) the proposed development will have ‘the same (if not similar)’ level of impact as a compliant 3 storey building. [40] I do not accept that non-compliance with City Plan in this case is devoid of town planning consequence. The non-compliance is serious and is deserving of significant weight in the exercise of the discretion under s 60(3) of the PA. [41] Contrary to the co-respondent’s case (namely items (1) and (3) above), a review of the plans, elevations and visualisations demonstrate that the building height exceedance in storeys will be appreciable – the fourth storey is readily appreciable on the eastern and western façades.58 The additional height, in metres, will also be 51 Ex.12, p.96. 52 Ex.12, p.184 & Ex.13, p.2. 53 Ex. 37, para 17(a); Ex. 38, para 54; and Ex. 36, para 54(a). 54 T2-17, L8 to 40. 55 T1-5, L4 to 21. 56 Ex.38, paras 2(f), 4 and 6. 57 Ex.38, p.41, para 215. 58 Ex.2, p.16 & p.19. -- 9 of 36 -- 10 appreciable. It can be identified as built form at roof level, namely an area where a lift and lobby is proposed.59 This area is sited towards the southern edge of the building. The visualisation prepared for the southern viewpoint readily demonstrates60 that the lift and stair at roof level is not seen in isolation from the balance of the building. Rather, it all reads as one building and contributes to the perceived height, bulk and scale of the development. The additional bulk, height and scale of the development will be appreciable from the public domain and for nearby development to the south. [42] When viewed from adjoining and nearby development to the south, the bulk, height and scale of the proposed development will, in my view, be perceived as overbearing and visually dominant. This will not be sufficiently mitigated by the setbacks provided. Nor, for reasons given later, will it be sufficiently mitigated by the design techniques adopted to minimise the impact of building bulk, height and scale.61 The view of the built form from Hedges Avenue (south looking north) will also be perceived as overbearing and adversely impact on the streetscape. This impact will be for a relatively short distance. The view to the land from the south is restricted by a combination of: (1) a change in the vertical alignment of Hedges Avenue; and (2) existing vegetation on the eastern side of the Hedges Avenue road reserve.62 [43] Contrary to the co-respondent’s case (namely item (2) above), I am not satisfied the bulk, height and scale of the proposed development is the same as the 3 storey building approved in March 2021. A comparison reveals a clear point of difference. As a matter of impression, the design of the proposed development jams four storeys into a space that accommodates three storeys, plus a roof level, authorised by the March 2021 approval. The difference, in visual terms, is readily appreciable. It manifests as building bulk at the fourth storey and roof level that is not present in the March 2021 approval. The visual impact of this bulk is exacerbated by the height of the proposed development, which is greater than that authorised by the March 2021 approval. [44] Overall, as a matter of impression, the proposed development will be overbearing for, and dominate, views from the south. It will adversely impact on the streetscape. These impacts, in my view, will be directly attributable to the bulk, height and scale of the proposed development. The impacts will not be insignificant or lacking in meaning. They will be material and adverse from a visual amenity and character perspective. It can be observed that this point was not lost on those members of the public who elected to make properly made submissions adverse to the development application. Issues of this kind were squarely raised in the submissions. [45] An examination of the nature and extent of the non-compliance with City Plan is not limited to an assessment of the materiality of impacts that flow as consequence of non-compliance. It is necessary to consider the importance City Plan attaches to the planning issues under consideration. A review of City Plan reveals that the nature and extent of conceded non-compliance here is more than textual or immaterial. [46] The examination starts with the Strategic framework. 59 Ex.2, p.13, Roof plan & p.14, Sections. 60 Ex.7, p.8, Figure 3. 61 Contrary to PO1(a) of the MDRZC. 62 A large tree is located on the north-eastern corner of the intersection of Hedges Avenue and William Street. -- 10 of 36 -- 11 [47] Part 3 of City Plan contains the Strategic framework. The framework sets the policy direction for City Plan and has a planning horizon of 2031.63 To describe the policy direction, the Strategic framework is structured in the way stated in s 3.1(3). At the pinnacle of the structure is a statement of Strategic intent. It is expressed in general and value-laden terms. Beneath that statement sit six city shaping themes. Collectively the themes represent the policy intent of City Plan. The policy intent is developed through Strategic outcomes. The Strategic outcomes are, in turn, refined and further described by ‘elements’. Specific outcomes are identified for each element. [48] Section 3.2.2 forms part of the statement of Strategic intent.64 The provision describes the city shape/settlement pattern intended for the planning scheme area. Two designations discussed in this part of City Plan are relevant here. First, the planning scheme area is divided into areas earmarked for consolidation and expansion.65 The land is included in the consolidation area. Second, the settlement pattern is said to comprise an urban area and non-urban area.66 The land is included in the urban area. [49] The role of the consolidation area in the future development of the city is discussed in s 3.2.2 of City Plan as follows: “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 or transformed centres and key inner-city urban neighbourhoods. The remaining one-third of new dwellings will occur in the expansion area…” (emphasis added) [50] Section 3.2.2 provides that the urban area is divided into 11 ‘places’, one of which is ‘Urban neighbourhoods’. This place is discussed later in the Strategic framework as an element relevant to theme 1, ‘creating liveable places’. [51] In the context of city shape and urban transformation, the statement of Strategic intent traverses a number of topics. Issues with respect to building height and form are discussed at s 3.2.2, which states:67 “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 (refer Figure 4, Figures 5a-f and Figures 6a-b).” 63 Ex.12, p.11. 64 Ex.12, p.14. 65 Ex.12C & Ex.12, p.14. 66 Ex.12, p.14, s 3.2.2. 67 Ex.12, p.18. -- 11 of 36 -- 12 [52] The above provision refers to a number of figures. Of relevance to the land is Figure 5b,68 which is titled ‘Snapshot coastal transects – Miami to Broadbeach showing the intended urban profile’. The transect depicts a relatively consistent low-rise building height pattern between Miami and Mermaid Beach. The pattern increases in height at about the midpoint between Mermaid Beach and Broadbeach. Building height increases from this midpoint in a northerly direction towards Broadbeach. [53] The Strategic intent, as I have already observed, is supported by six city-shaping themes. One of the themes is ‘creating liveable places’. The intent for the theme is articulated through Strategic outcomes in s 3.3.1. Strategic outcomes (3) and (5) are relevant to building form and height. The provisions state:69 “(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 future appearance of each local area.” [54] The Strategic outcomes identified in s 3.3.1 are refined and further described by ‘elements’, and specific outcomes for those elements. Specific outcomes for the urban neighbourhoods element are set out in s 3.3.2.1.70 The areas comprising urban neighbourhoods are described in specific outcomes (1) and (2) of this provision as follows: “(1) Urban neighbourhoods are compact, pedestrian-friendly, offering housing choice and high amenity and provide access to facilities, services, public transport, employment and essential infrastructure. (2) Urban neighbourhoods are generally located on or near high frequency public transport corridors served by light rail or rapid bus.” [55] Building height in urban neighbourhoods is the subject of consideration in Specific outcome (8) of s 3.3.2.1, which states: “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.” (emphasis added) [56] Specific outcome (8) reveals the planning authority has adopted a particular development standard to ‘show’: (1) the building height pattern; and (2) the ‘desired 68 Ex.12, p.19. 69 Ex.12, p.25. 70 Ex.12, p.27. -- 12 of 36 -- 13 future appearance for local areas within urban neighbourhoods’. The standard is a quantitative one, expressed through the building height overlay maps in storeys and metres. Non-compliance with the overlay map, read with Specific outcome (8), suggests the following is intended: non-compliant development is regarded as inconsistent with the ‘desired future appearance’ for a local area within an urban neighbourhood. [57] The importance the planning authority attributes to compliance with the building height overlay maps is exposed by Specific outcomes (9) and (10) of s 3.3.2.1 and provisions of the MDRZC. Sections 3.3.2.1(9) and (10) of the Strategic framework state:71 “(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.” And: “(10) Increases in building height, beyond 50% above the Building height overlay map, are not anticipated in urban neighbourhoods.” [58] Specific outcome (10) is reinforced by a ‘Note’, which states: “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.” 71 Ex.12, pp.27 to 28. -- 13 of 36 -- 14 [59] The above provisions of City Plan confirm that exceedances of the building height standard, and the extent of that exceedance, are regarded as matters of significance. In circumstances where the exceedance is up to 50%, City Plan recognises that closer examination is called for. It admits of flexibility to depart from the standard, but in particular circumstances only. Where the exceedance is greater than 50%, City Plan admits of no flexibility. An exceedance of this kind is not supported; it is inconsistent with City Plan. [60] The significance attached to non-compliance with the building height overlay map is further reinforced by the MDRZC. As paragraphs [35] and [36] above reveal, the maps, which provide a quantitative standard, are embedded at two levels of the code. First, in an overall outcome. Second, in a Performance outcome, which has no corresponding acceptable outcome. Exceedance of the height standard in this circumstance results in clear non-compliance with the MDRZC. That it is a matter of significance in the zone is confirmed by the absence of criteria that allows development departing from the prescribed height standard to secure support in the zone by alternative means. Once this is appreciated, it is not difficult to conclude that the MDRZC is conveying that building height in excess of that stated on the relevant overlay map is not anticipated in the zone. [61] In light of this planning scheme context, it can be said that the proposed development is, in terms of its height: (1) not anticipated in the zone; and (2) inconsistent with the ‘desired future appearance’ of a local area within urban neighbourhoods. These matters are not immaterial or insignificant in the exercise of the planning discretion. The materiality or significance is reinforced by the matters discussed in paragraphs [40] to [44]. [62] This does not mark the end of the assessment of the nature and extent of conflict. Specific outcome 9 provides an opportunity for the co-respondent to demonstrate that the height of the proposed development finds support in City Plan. If support for the proposed height is established, the nature and extent of non-compliance with City Plan is materially diminished in favour of approval. This follows, in my view, by operation of the hierarchy of planning scheme provisions stated in s 1.4 of City Plan. This provision requires any inconsistency between the MDRZC and the Strategic framework be resolved in favour of the latter. If Specific outcome 9 is not satisfied, there is, in my view, one conclusion: the conceded non-compliance with City Plan is serious and entitled to significant weight in the exercise of the discretion as a reason for refusal. The disputed issues [63] The disputed issues are defined by order of 28 July 2022.72 Whilst a number of issues are raised by operation of that order, the critical ones in the appeal are: (1) whether the assessment establishes compliance with Specific outcome 9; and, if not (2) whether non-compliance ought be decisive. [64] The appellants contend the development does not satisfy sub-paragraphs (a), (b), (d), (e) and (f) of Specific outcome 9. The non-compliance is said to be a decisive reason for refusal. Reliance in this regard is placed upon the decision in Parmac Investments 72 Ex. 39. -- 14 of 36 -- 15 Pty Ltd v Brisbane City Council [2018] QPELR 1026 and Stradbroke Island Management Organisation Inc v Redland Shire Council [2002] QCA 277. These cases were relied upon to support the following submission:73 “Where a proposed development does not comply with the intended development standards or the additional factors set as discretionary hurdles, one would expect that it would need to be an exceptional case, in terms of the “grounds” or other “relevant matters” relied on, to support approval.” [65] As I have already observed, Council and the co-respondent join issue with the appellants’ case. They however part ways in the event non-compliance is established with Specific outcome 9. Council conceded that non-compliance with City Plan will be decisive and warrants refusal of the development application.74 The co-respondent submits non-compliance is not decisive. It contends there are relevant matters that still point in favour of approval.75 [66] The positions adopted in the appeal mean the following issues arise for determination, namely: (a) Whether compliance is demonstrated with Specific outcome 9? (b) Where compliance is demonstrated with Specific outcome 9, should the development application be approved in the exercise of the planning discretion? (c) Where non-compliance is established with Specific outcome 9, what matters, if any, favour approval of the development application? (d) In light of the findings made in relation to (a) and (c), whether the discretion under s 60(3) of the PA should be exercised in favour of approval or refusal? [67] For the reasons set out below, I have found there is non-compliance with Specific outcome 9. The question identified in subparagraph (b) therefore has no part to play in the determination of the appeal. Compliance with Specific outcome 9 [68] The appellants submit there is non-compliance with five of the eight outcomes for Specific outcome 9. They are outcomes (a), (b), (d), (e) and (f). [69] In summary terms, my findings with respect to compliance with Specific outcome 9 are as follows: (a) I am not satisfied the evidence has established compliance with outcomes (a), (b) and (d); (b) non-compliance with outcomes (a), (b) and (d) manifests in adverse planning impacts, namely adverse character and amenity impacts; 73 Parmac Investments (supra), [26] – [27] and Stradbroke Island Management (supra), [105]. 74 Ex.37, paras 97 to 99. 75 Ex.38, paras 211 to 215. -- 15 of 36 -- 16 (c) non-compliance with outcomes (a), (b) and (d) of Specific outcome 9 attracts significant weight in the exercise of the discretion when considered in isolation, or in combination; and (d) the weight to be given to non-compliance with Specific outcome 9 in the circumstances of this case is not likely to be materially increased, or decreased, by an assessment against outcomes (e) and (f). [70] Before turning to deal with outcomes (a), (b) and (d), there are number of general observations that can be made about the design of the proposal that underpin my assessment against City Plan. [71] I accept the design of the proposed development is contemporary in its appearance. It is finished with building materials that are neutral in colour. An examination of the plans, with the benefit of architectural evidence, reveals at a more detailed level, the design has a number of positive features. The proposal has been designed to:76 (1) take advantage of, and engage with, the ocean aspect; (2) incorporate architectural treatments that mitigate bulk, height and scale; and (3) be consistent with climatically responsive design principles. All of these matters are positive features of the design. They inform my assessment against Specific outcome 9. [72] However, the evidence about the design of the proposed development is not all one way. [73] Mr Olsson’s evidence, which I accept, establishes there are material short comings in the design that inform an assessment against City Plan, including Specific outcome 9. The short comings can be identified as follows: (a) the western end of the southern façade is a broad expanse of wall that will detract from the ‘envisaged urban character’ of the area77 – this is because the wall: (i) will be visible from Hedges Avenue; (ii) is monolithic and will appear as a solid four storey element;78 (iii) is austere in appearance;79 and (iv) will add little visual interest to the streetscape;80 (b) the ground plane and its interface with Hedges Avenue is dominated by a void and driveway, which I accept are necessary to provide access to the basement carpark, but add little visual interest to the streetscape;81 76 Robinson: Ex.7, p.40, para (d). 77 Contrary to PO3(a) of the Multiple accommodation code; Ex.12, p.99. 78 Olsson: Ex.7, p.70, para 203 and Curtis: T3-18, L7. 79 Contrary to PO3(e) of the Multiple accommodation code; Ex.12, p.99. 80 Contrary to overall outcome (2)(f) and PO3(c) of the Multiple accommodation code. 81 Contrary to overall outcome (2)(f) and PO3(c) of the Multiple accommodation code. -- 16 of 36 -- 17 (c) the façades are crammed with built form – this is the product of jamming four storeys into a building envelope that is intended to accommodate a three storey structure and a building cap82/rooftop features;83 and (d) the southern façade, particularly at its western end, is bulky, overbearing and adversely impacts on adjacent amenity84 and streetscape character85 given the combination of the following factors, namely: (1) the matters discussed in (a); (2) the matters discussed in (c); (3) because it is this façade where the full height of the building is appreciable, including that part exceeding 15 metres above natural ground level; and (4) because the side boundary setbacks, in combination with (a) above are insufficient to mitigate the bulk, height and scale of the proposed development. [74] On balance, I am not satisfied the above matters are overcome by the positive features of the design. The end result, in my view, is a built form that is bulky and visually overbearing for the neighbouring and nearby properties to the south along Hedges Avenue. The built form will also adversely impact on the streetscape character of the immediate locality.86 [75] It can be observed that the co-respondent has not demonstrated this adverse impact would be the same, or similar to, that occasioned by the development approved in March 2021. As I have already observed in paragraph [43], the proposed development will have an additional impact over and above the development approved in March 2021. The impact will be material and is in large measure attributable to: (1) the built form proposed above the third storey, which is not present in the March 2021 approval; and (2) the insufficiency of design measures in the proposed development to mitigate the height, bulk and scale of the built form. [76] The opinions expressed by Mr Curtis, Dr McGowan and Dr Robinson proceed on a different basis to that traversed in paragraphs [73] to [75]. I therefore do not accept their ultimate views about compliance with Specific outcome 9. Nor do I accept their views about other provisions of City Plan with which non-compliance has been established. I prefer the evidence of Mr Olsson to the extent it is consistent with paragraphs [73] to [75]. [77] I will now deal with subsections (a), (b) and (d) of Specific outcome 9. (a) A reinforced local identity and sense of place [78] ‘Local identity’ and ‘sense of place’ are not defined in City Plan. They are broad concepts to be examined in any given case by reference to a range of inputs. [79] For this appeal, a useful starting point is the notoriety of this part of the Gold Coast; Hedges Avenue is an exclusive address. It is, as Dr Robinson observed, constantly undergoing redevelopment. Existing homes are replaced with larger, more affluent 82 See Note to PO5 of the Multiple accommodation code; Ex.12, p.101. 83 The resulting design is contrary to overall outcome (2)(a) of the Multiple accommodation code because it is not an ‘attractive, high-quality visually appealing building’; Ex.12, p.98. 84 Contrary to PO1(a) of the MDRZC. 85 Contrary to PO3(c) of the Multiple accommodation code. 86 Contrary to overall outcome (2)(b)(vii) of the MDRZC. -- 17 of 36 -- 18 homes of contemporary design.87 As a consequence, local identity and sense of place, which is informed by, inter alia, built form, is not static. [80] What existing elements define local identity and sense of place here? [81] Dr McGowan helpfully identified a number of attributes when taken in combination, help define the local identity and sense of place. At paragraph 134 of the Visual Amenity, Architecture and Landscape Joint Expert Report (VAJER) he said: “134 Regarding Criteria (a) (a reinforced local identity and sense of place), I believe the attributes of the local area that define the local identity and sense of place relate to: a) The proximity to the beach and ocean, and the direct coastal frontage enjoyed by the properties along the eastern side of Hedges Avenue. b) The local street pattern, which is relatively consistent and orthogonal through the local area, and includes the unique arrangement of Hedges Avenue being a one way vehicle route and a two-way pedestrian and cycle route. c) The local lot pattern and sizes, which vary, with a predominance of lots that are 750sqm or less, but with numerous lots that are 1,000sqm or larger. d) Building type, which is entirely residential, but includes detached housing, attached housing, and multiple dwellings of various scales, and a wide range of architectural styles and building ages. e) Building form and scale, which also varies, with a predominance of 1 and 2 storey buildings, but with numerous buildings that are 3 storeys or greater (refer Figures NM2-NM10 below), including: - three at the eastern end of Venice Street (10, 12, and 16 Venice Street); - two at the eastern end of William Street (3, and 7-9 William Street); and - three along Hedges Avenue, between Venice Street and William Street (3 William Street, 100, 117, and 121 Hedges Avenue, 4 Venice Street). It is relevant to also note that, while there may be a great number of 1-2 storey buildings (compared to 3 storeys and above), the taller built form (3 storeys and above) are much more prominent in the visual environment by virtue of their greater height, the larger overall bulk and scale 87 Ex.7, p.38, para 78(a). -- 18 of 36 -- 19 presented to the street, and because three of them are on prominent corner lots. f) The presence of St John’s Park, being one of two cross- block in the wider area, as well as the north-south walkway traversing the blocks between the Highway and Hedges Avenue.” [82] Mr Curtis provided a similar list at paragraph 101 of the VAJER. One of the matters he identified was in the following terms: “The contiguous path of Hedges Avenue and Albatross Avenue that provides a streetscape continuum that includes a range of building heights and a greater development intensity.” [83] The ‘local area’ to which these attributes were assigned is that depicted on the aerial photograph at page 9 of exhibit 2. The area extends from Mermaid Park in the north to the block south of Seaside Avenue; and from the ocean in the east to the Gold Coast highway in the west. The evidence, appreciated with the benefit of a site inspection, confirms that this area, taken as a whole, exhibits the attributes identified by Dr McGowan and Mr Curtis. [84] A significant contributor to the sense of place and local identity is existing built form. As I have already observed in paragraphs [15] to [17], the built form within the local area varies in age, bulk, height, scale and architecture. It is fairly described as a ‘mixed bag’. [85] This is not to say however that all of the local area is mixed in equal proportions. The evidence reveals there are pockets in that area where the extent of built form variation, particularly in terms of building height, is less prominent than other parts. Building height variation is appreciably greater in the northern part of the local area, reducing as one moves from Montana Road (in the north) towards Seabeach Avenue in the south. Localised variation suggests that care needs to be taken to ensure characteristics particular to the immediate locality are not glossed over by the use of a broad descriptor applying to a broader study area. [86] The immediate locality to be examined here is the visual catchment depicted in Figure RO3 of the VAJER. The catchment extends from Venice Street in the north to William Street in the south; about 80 metres into St Johns Park; and for a wide radius from the sands of Mermaid Beach.88 Within the visual catchment, the age and architecture of built form varies as does building height, bulk and scale. Building height is predominantly one to two storeys. Three storey development, or development that reads as two plus storeys, is located on Hedges Avenue, William Street and Venice Street. There are no existing four storey buildings. The tallest and most prominent building in the visual catchment is Solano at 6 to 7 storeys. The visual catchment also includes the William Street land having the benefit of the approval discussed at paragraph [18]. [87] Having regard to the matters traversed in paragraphs [80] to [86], I accept it is open to conclude that the proposed development is not, in general terms, incompatible with 88 Ex. 7, p. 12, para 38. -- 19 of 36 -- 20 the existing mixed built form character of the local area depicted at page 9 of exhibit 2. However, to finish the assessment at this point would mean, in my view, that particular features of the more immediate locality are not given sufficient recognition or weight. A relevant feature of the immediate locality is a clear predominance of 1 to 2 storey buildings. That predominant character is diluted by taller buildings, but the extent of dilution is appreciably smaller in effect compared to the northern part of the local area. [88] When examined in this context, it is not difficult to conclude that the proposed development will, as the visual aids confirm, be visually dominant like, and compatible in height, bulk and scale with, Solano. This building is a dominant feature of the visual catchment, and is significantly greater in bulk, height and scale than its immediate neighbour and nearby development. The relationship with its immediate neighbour is one of disproportion; it is overbearing. This building-to-building relationship is not relieved by the setback distances provided or landscaping. The proposed development, like Solano, will present as a large bulky building in the visual catchment. It will be visually dominant and substantially greater in scale than its immediate neighbours. This will not, in my view, be relieved by the setbacks or landscaping provided. Visual aids before the Court demonstrate the building-to- building relationship would be overbearing and characterised by a sense of disproportion. I am satisfied this point can be made even assuming the adjoining land was developed with built form 3 storeys and 15 metres in height. [89] Against this background, it can be asked whether the proposed development would reinforce local identity and sense of place? I am not persuaded this is the case by reason of the following matters, taken in combination. [90] First, as I have already said, built form contributes to local identity and sense of place. Here, the evidence establishes it is a significant contributor. There is no reason to doubt that the proposed development, if approved and constructed, would also make a contribution. I am not persuaded that the contribution it would make is a positive one. This follows, in my view, by reason of the non-compliances I have identified with City Plan in paragraphs [73] and [74]. [91] Second, the visual dominance of the built form and its relationship with its neighbour and nearby development to the south manifests in adverse impacts for the reasons traversed in paragraphs [40] to [44] and [72] to [75]. [92] Third, for the reasons given in paragraphs [41] to [44], the adverse impact on the existing character and amenity of the immediate locality is not the same, or similar to, the impact that could reasonably be expected from the development approved in March 2021. [93] Fourth, the adverse character and amenity impacts of the development are not rendered acceptable because the built form proposed is compatible in its height, bulk and scale with Solano, or other buildings exceeding three storeys in the northern part of the local area. [94] Fifth, I am not satisfied the built form proposed is consistent with the intended built form character of the local area. -- 20 of 36 -- 21 [95] One expression of planning intent for future building form is the Building height overlay maps, read with s 3.3.2.1(8) of the Strategic framework. In combination, they identify the ‘building height pattern’ and ‘desired future appearance for local areas within urban neighbourhoods’. The proposed development does not comply with the overlay map. This non-compliance is consistent, in my view, with the proposition that the proposed development has been designed to take its lead more from the height, bulk and scale of Solano than City Plan. City Plan makes clear in this locality that replication or compatibility with Solano in terms of height is not intended. This is not to suggest that non-compliance with the overlay map works non-compliance with Specific outcome 9(a) in its own right. Such an outcome would defeat the very purpose of Specific outcome 9. It is necessary to look for other indicators relevant to this point. In my view, they can be found in an assessment of the development against the Multiple accommodation code. [96] As I have already observed, Mr Olsson’s evidence establishes there are short comings in the design of the proposed development. The short comings are identified in paragraph [73] and establish non-compliance with a number of provisions of the Multiple accommodation code, namely: (a) Overall outcome 2(a), because the development is not designed to create a high- quality visually appealing building; (b) Overall outcome 2(f) and Performance outcome PO3, because the development is not designed to add ‘visual interest to the streetscape’; (c) Overall outcome 2(f), because the development is not a ‘high quality urban design’; (d) Performance outcome PO3(a), because the built form is not designed to ‘contribute to the envisaged urban character of the local area’; (e) Performance outcome PO3(c), because the built form will detract, rather than add, visual interest to the streetscape; and (f) Performance outcome PO3(e), because the built form is not designed to ‘avoid…austere appearance’. [97] Similar non-compliances can be identified with the MDRZC. Non-compliance arises with the following parts of this code, namely: (a) overall outcome 2(b)(v) because the desirable building height pattern, as depicted on the overlay map, will be negatively impacted; (b) overall outcome 2(b)(vii) because ‘adjoining residential amenity’ will be ‘unreasonably impacted’; (c) overall outcome 2(b)(viii) because the design of the development will not achieve a high quality urban design; and (d) Performance outcome PO1(a) because the setbacks provided to the south do not, given the design of the building, assist in providing sufficient protection of adjacent amenity. -- 21 of 36 -- 22 [98] Each of the non-compliances with the MDRZC and Multiple accommodation code manifest in adverse impacts on the immediate locality. The impacts are character and amenity related. That non-compliance manifests in adverse impacts of this kind is indicative that the proposed development is not of a form that will contribute in the manner intended to the ‘envisaged urban character’ of the place. [99] Finally, the above matters, which work non-compliance with Specific outcome 9(a), are not diminished, or offset by reason there is an extant four storey approval in William Street. The building approved, but not yet constructed, in William Street: (1) will, if constructed, be physically removed from properties that will be most affected by the proposed development; and (2) will not, in and of itself, be a strong influence on, or defining feature of, local identity and sense of place, be it in the immediate locality or local area. In my view, the predominant form of development in the immediate locality will, despite the approved development in William Street, remain as I have discussed above. The proposed development will not be in keeping with the height and scale of that predominant built form. Nor will it be consistent with intended built form appearance. [100] In summary, the proposed four-storey development will not reinforce local identity and sense of place as required by Specific outcome 9(a). Rather, an approval would give rise to an adverse character and amenity impact. This will be in circumstances where built form is a significant contributor to local identity and sense of place. This was not lost on the lay witnesses and members of the public who made submissions against the development.89 Their views are consistent with the conclusion that Specific outcome 9(a) is not satisfied in the circumstances of this case. (b) Interface with nearby development [101] Specific outcome 9(b) requires the co-respondent to demonstrate the proposed development has a well-managed interface with nearby development. [102] It was submitted on behalf of the appellants that this part of Specific outcome 9 is not satisfied having regard to a number of considerations, namely the development: (a) will be overbearing for its neighbours, and when viewed from Hedges Avenue; (b) will have unacceptable impacts on privacy, acoustic amenity and access to sunlight; and (c) in terms of height, is contrary to reasonable community expectations. [103] For reasons given above, I accept (a) has been established. That the building will be overbearing for the neighbouring properties to the south is a clear indicator that this interface will not be managed in the way required by Specific outcome 9(b). This finding, in my view, is sufficient to conclude that Specific outcome 9(b) is not satisfied in the circumstances of this case. [104] Having regard to the evidence of Mr Curtis, Dr Robinson and Dr McGowan, I am satisfied that overlooking impacts can be addressed through the imposition of conditions.90 The conditions would require the provision of privacy screens that take 89 Ex.15, 16, 17, 18, 19 and 20. 90 As conceded by Mr Olsson: T3-104, L37 to 42. -- 22 of 36 -- 23 the form of a vegetated trellis. The success of this screening would require, given its location, unit holders to be responsible for the vegetation. Mr Olsson expressed a concern about this. Whilst not an unreasonable concern, on balance, I am persuaded privacy and overlooking impacts could be managed through the imposition of appropriate development conditions. [105] The co-respondent did not lead any evidence of a technical nature with respect to noise impacts from activities on the rooftop of the proposed development. Evidence of this kind was, in my view, unnecessary. The impact is one that can be appropriately addressed by way of conditions. The best evidence of this is the decision notice the subject of this appeal. The decision notice includes a condition limiting the hours of use for the rooftop recreation area.91 The terms and requirements of the condition were not subject to attack. A condition limiting the hours of use for the communal open space will be sufficient, in my view, to address noise impacts. [106] As to overshadowing, the appellants raised this as a reason for refusal. The impact was the subject of consideration by Mr Olsson, Mr Curtis and Dr McGowan in the VAJER.92 Neither Mr Curtis nor Dr McGowan regarded the impacts of overshadowing as unacceptable. A close review of their evidence reveals that the opinions expressed in this regard were based on two problematic propositions, namely: (a) both experts assumed the impact of the proposed development (in terms of overshadowing) ‘will not be any different’ to the three storey development approval granted in March 2021; and (b) Dr McGowan drew support from the fact that the proposed development ‘sits almost entirely within a building envelope that complies with acceptable outcomes for building height (in metres) and setbacks…’. [107] I do not accept (a) was made good on the evidence. Shadow diagrams were not prepared for the three storey development to enable the comparative exercise underpinning the assumption to be examined and tested. The assumption, as a consequence, rises no higher than an assertion. [108] As to (b), it is correct to say that a substantial proportion of the proposed building sits within the building envelope complying with acceptable outcomes for setbacks. It is however wrong to say that building height is also prescribed as an acceptable outcome in City Plan. No such acceptable outcome (relevant to this appeal) was identified in City Plan.93 Rather, building height here is controlled in the MDRZC by way of an overall outcome and Performance outcome.94 Building height exceeding what is prescribed by these provisions establishes non-compliance with City Plan. This is to be contrasted with a departure from an acceptable outcome. Such a departure does not constitute non-compliance with City Plan. [109] Putting to one side the above difficulties, the issue to be determined in relation to overshadowing starts from the premise that there is an extant approval attaching to the land authorising a three storey Multiple dwelling. That approval, if acted upon, 91 Ex.1, p.196, condition 7. 92 Ex. 7, paras 52(b), 117(a) and 141. 93 Ex.12, p.96 AO3. 94 MDRZC, overall outcome 2(d)(i) and PO3. -- 23 of 36 -- 24 would have a shadowing impact. As I have said, there are no shadow diagrams that permit an examination of the shadows cast by the three storey approval. The only tool available to the Court to examine the acceptability of the shadow impacts is a series of diagrams prepared for the proposed development.95 Diagrams of this kind were prepared for the development application, but not for this appeal. As Mr Olsson correctly pointed out, the diagrams have their limitations; this is the product of their size and scale. They are small diagrams, which are difficult to read. I was unable to discern, with clarity, the precise shadow impact predicted by the diagrams. [110] Mr Curtis and Dr McGowan were both taken to the shadow diagrams during their oral evidence. Each drew comfort from the documents, suggesting they were supportive of their views as to likely shadow impacts. I do not accept their evidence about this impact and its materiality for two reasons. [111] First, the author of the shadow diagrams was not called to swear to the methodology adopted to prepare the diagrams, let alone swear as to their accuracy. This shortcoming was not addressed by Mr Curtis or Dr McGowan. Neither expert adopted the diagrams as their own work, nor attested to their accuracy. Given the absence of this evidence, coupled with the scale and poor clarity of the diagrams, considerable room was left for doubt as to their accuracy and reliability; the accuracy and reliability of the diagrams could not be properly tested. [112] Second, even assuming the shadow diagrams are accurate and reliable, I am not satisfied they make good the views expressed by Mr Curtis and Dr McGowan in any event. The diagrams reveal there is additional shadowing from the development cast on land to the south. It will fall, in part, on windows in north facing walls. This will occur during the winter months of the year when shadow impacts are ordinarily given particular and careful attention. The overshadowing that can be observed on the diagrams is, in part, attributable to the built form that exceeds 15 metres above natural ground level. The difficulty confronting the Court is that the size and scale of the diagrams make the task of assessing the materiality of that impact a difficult one. That it is difficult to assess can be demonstrated by reference to an opinion expressed by Mr Curtis. [113] Mr Curtis was asked in evidence-in-chief to explain the ‘basis’ for his opinion that the proposal would not have a material shadow impact on windows in north facing walls.96 His answer to the question reveals the following: (1) Mr Curtis compared the shadow cast by a building that was compliant with City Plan (in terms of height and setback) with the proposed development; and (2) the comparative exercise in (1) led Mr Curtis to conclude that ‘the amount of difference…would be somewhat insignificant’. The difficulty for Mr Curtis, and the Court, was that the shadow diagrams did not permit this comparative exercise in item (1) to be examined. Nor did they allow the conclusion drawn about the comparative exercise to be tested. Mr Curtis’ evidence does not, in my view, rise above an assertion. [114] Against this background, the following submission was made on behalf of the appellants:97 95 Ex.1, p.122-124. 96 T3-35, L14 to 24. 97 Ex. 36, para 158. -- 24 of 36 -- 25 “158. The issue of shadow impacts has not resolved. There is no assessment or comparison between the approved development and the proposed development. There will be increased overshadowing of windows of the southern neighbours, the extent of which as compared to the three storey development is unknown. Looking at the shadow drawings from the application process at Exhibit 1, p. 122 for the Equinox at 3pm and 12 Noon it at least seems shadowing is occurring on the side of the southern neighbour which may well be materially contributed to by both the elongated structure above 15 metres, and the increased 2 metres from the front façade. The extend [sic] of this shadowing on a building of 8 units over two stories [sic] cannot be tested by these shadow drawings.” [115] I accept this submission. It correctly makes the point that the impact of overshadowing cannot be properly assessed and, in turn, excluded as an adverse impact of the proposed development. That it could not be excluded as an adverse impact means the co-respondent was also unable to exclude non-compliance with s 9.4.4.2(2)(a) of the General development provisions code.98 This overall outcome requires development to be designed to maintain the expected level of amenity for the area. [116] The finding at paragraph [103] is, in my view, sufficient to conclude that the co- respondent has not established compliance with Specific outcome 9(b). This position is not improved for the co-respondent when the matters discussed in relation to overshadowing are also taken into account. [117] That compliance has not been established with Specific outcome 9(b) is attributable to the height of the building and the impact occasioned by that height. Matters of this kind were squarely raised in the submissions received during the public notification process.99 The same issues were repeated in lay witness statements in evidence before the Court.100 That these impacts were raised by the submitters/lay witnesses, and find support in the evidence and City Plan, leads me to accept that their views are entitled to weight. They bespeak a genuine concern that the proposed development is contrary to reasonable community expectations, properly informed by the adopted planning controls. (c) Standard of appearance: built form and street edge [118] The proposed development is to be assessed against the Multiple accommodation code. Overall outcomes of this code require an applicant to demonstrate development is designed to: (1) create attractive high-quality visually appealing buildings;101 and (2) add visual interest to the streetscape.102 The overall outcomes are supported by a table of assessment benchmarks for assessable development.103 Performance 98 Ex.12, p.111. 99 Ex. 15. 100 Ex. 16 – 20. 101 Ex. 12, p. 98, s. 9.3.14.2(2)(a). 102 Ex. 12, p. 99, s. 9.3.14.2(2)(f). 103 Ex. 12, p. 99. -- 25 of 36 -- 26 outcome PO3, and the accompanying acceptable outcomes, in Table 9.3.14-1 of the Multiple accommodation code is relevant to development design and appearance.104 [119] In support of the proposal, and to demonstrate compliance with City Plan provisions such as those discussed above, the co-respondent relied upon the evidence of Mr Curtis. At paragraphs 102 to 111 of the VAJER, he explained, in detail, the design of the proposal and architectural techniques employed to produce what he regarded as an excellent standard of appearance. The design techniques referred to involved layering and articulating the built form to: (1) relate to human scale; (2) fragment the visual mass of the building bulk; and (3) address the beach and street.105 [120] Dr McGowan, who was called by the Council, agreed with Mr Curtis. Having regard to the plans of development and visualisations, Dr McGowan described the design as visually interesting, articulated and well proportioned.106 He also pointed out that the building was set behind landscaping and a gatehouse. It was said that this would assist in relating the development to the pedestrian scale of the street.107 [121] Dr Robinson also supported the design of the development. In the VAJER he said:108 “I support the application as having an excellent architectural response and standard of appearance of the built form and street edge. The proposal incorporates: - good, climatically responsive design principles, - well-proportioned and articulated elevations, - high quality materials and finishes, - appropriate privacy devices, - engagement for every occupant with the beach.” [122] The opinions expressed by Mr Curtis, Dr McGowan and Dr Robinson find support in the proposed plans and visualisations. Their views, however, give insufficient weight to a number of aspects of the design criticised by Mr Olsson. In the VAJER he said:109 “203 As a consequence of the above, I consider that the building design of the proposal is not attractive and appropriate to the streetscape as: a) The design of the proposal is monolithic on its southern elevation, is not visually appealing and does not protect the amenity of neighbouring properties b) The lift over run and fire stair above the 15m height limit is visible from Hedges Avenue, impacting on 104 Ex. 12, p. 99. 105 Ex. 12, p. 48, para 124(a). 106 Ex. 12, p. 57, para 150. 107 Ex. 12, p. 57, para 150. 108 Ex. 7, p. 40, para (d). 109 Ex. 7, p. 70, para 203. -- 26 of 36 -- 27 the visual and environmental amenity of the neighbourhood c) The proposal adds visual impact when viewed from Hedges Avenue, compared to the 3 storey approved development, as the approved development has an open rooftop structure set back from the street and under the 15m height limit, whereas the proposal has a full storey facing the street at the same level as the approved open rooftop d) The proposal’s southern elevation has a stark, austere appearance which does not contribute to the urban character of the area.” [123] Mr Olsson was also critical of the ground plane of the design. In this respect he criticised: (1) the extent of street frontage occupied by a car ramp and services, which were said to leave little room in the front setback for landscaping; and (2) the deep void created by the design of the car ramp. I accept Mr Olsson’s evidence with respect to these shortcomings in the design. [124] Mr Olsson’s criticisms of the design were supported by Dr Robinson, particularly in relation to the design of the ground plane.110 Dr Robinson agreed more could be done in the design, by way of landscaping, to address the issues raised by Mr Olsson. Dr Robinson agreed with Mr Curtis that a condition could be imposed requiring the installation of a landscaped arbour, or pergola, over the driveway to improve visual attractiveness to the street.111 [125] The change to the ground plane was not the only design change recommended by Dr Robinson. During the course of his re-examination an elevation of the front façade was tendered and marked exhibit 33.112 The elevation was amended in hand by Dr Robinson to include a series of batons at the fourth storey of the development on its southern end. This amendment was advanced as a means of further breaking up the bulk of the development to mitigate its visual impact. [126] Mr Curtis did not comment on Exhibit 33. It was tendered after his evidence. He did however take into account Dr Robinson’s suggested change to the ground plane of the development. Mr Curtis was supportive of the change suggested, but did not regard it as necessary to demonstrate compliance with Specific outcome 9(d). [127] Dr McGowan was supportive of the design changes suggested by Dr Robinson. Although, as I understand his evidence, Dr McGowan did not regard them as necessary to demonstrate compliance with Specific outcome 9(d). [128] The standard of appearance of the proposed development is undoubtedly a matter of impression and judgment. It is a matter about which reasonable minds may differ. I was grateful to all of the experts who pointed out the positives and negatives of the design to assist me. In my view, the proposed plans and visualisations establish the design is visually interesting and has a number of attractive components. The same 110 Ex. 7, p. 41. 111 Ex. 7, p. 41. 112 Ex. 33. -- 27 of 36 -- 28 documents also establish that there are features of the design that are not up to the standard anticipated by City Plan. The short comings of the design are identified in paragraphs [73] to [75], [122] and [123] and sound in non-compliance with City Plan. The non-compliance is indicative that the design of the proposed development is not of the kind required to satisfy Specific outcome 9(d). [129] The non-compliance with City Plan in this regard is not alleviated by the design changes suggested by Dr Robinson. The changes proposed were, in my view, tantamount to an admission that the design required improvement. Mr Olsson accepted that the proposed design changes would improve the design. A careful review of his cross-examination113 however reveals, contrary to a submission made on behalf of the co-respondent, that he did not concede the short comings were addressed or alleviated to the point that compliance was demonstrated with City Plan.114 I accept his evidence about this. [130] In my view, there is, in any event, good reason to doubt that the design changes proposed by Dr Robinson would be successful for two reasons. First, there were no plans, elevations, photomontages or visual impressions before the Court that permitted an examination of the design inclusive of all of the changes. Second, the visual aid that was provided, namely exhibit 33, demonstrates that the change proposed in relation to the fourth storey would only serve to highlight and exacerbate the bulk and scale of the built form. A design change having this effect hardly represents an improvement in the circumstances. [131] For the reasons given above, the co-respondent has not demonstrated compliance with Specific outcome 9(d). (d) Housing choice and affordability [132] Specific outcome 9(e) is expressed as ‘housing choice and affordability’. The drafting is unfortunate. It is a bald statement. It is not expressed as an ‘outcome’ to be satisfied. This is due to the absence of a qualifying verb. [133] Putting to one side the unfortunate drafting of the provision, it is, in my view, unnecessary to explore the meaning and outer limits of the provision in this appeal. This is so having regard to three reasons taken in combination. First, non-compliance has been established with outcomes (a), (b) and (d). Second, for reasons given above, the non-compliance with outcomes (a), (b) and (d) manifests in adverse impacts, which attracts significant weight in the exercise of the discretion. Third, the weight to be given to non-compliance with Specific outcome 9 in these circumstances is not likely to be materially increased, or decreased, in this case, by an assessment of the development against outcome (e). (e) Important elements of local character or scenic amenity [134] The appellants contend compliance has not been demonstrated with Specific outcome 9(f), which calls for important elements of local character and scenic amenity to be protected. It was submitted there are two important elements of local character that 113 T4-34, L23 to T4-35, L8. 114 Ex.38, para 103. -- 28 of 36 -- 29 will be adversely effected by the proposed development.115 First, the view to Hedges Avenue from St Johns Park. Second, the view to the land from the public realm of Mermaid Beach. [135] For similar reasons to those expressed in paragraph [133], it is unnecessary to decide whether compliance has been demonstrated with Specific outcome 9(f). (f) Conclusion: nature and extent of non-compliance with Specific outcome 9 [136] The proposed development does not comply with Specific outcome 9. [137] The non-compliance with Specific outcome 9 manifests in: (1) adverse amenity and character impacts; and (2) non-compliance with the MDRZC and Multiple accommodation code. [138] Given the above, I am comfortably satisfied that the non-compliance with Specific outcome 9 in the circumstances of this case is fairly regarded as serious in nature. The non-compliance is entitled to significant weight and points clearly towards refusal of the development application. Additional reasons for refusal [139] The appellants’ reasons for refusal raise issues in relation to building height and associated non-compliance with provisions in City Plan. They also raise issues with respect to the following (and associated non-compliance with City Plan): (1) site cover; (2) setbacks; (3) roof design; (3) service vehicle requirements and (4) refuse disposal arrangements. [140] The central issue in this case is whether non-compliance with: (1) overall outcome 2(d)(i) and PO3 of the MDRZC; and (2) Specific outcome 9; ought be decisive in the exercise of the discretion. After reviewing the evidence with respect to the reasons for refusal that go beyond those traversed in paragraphs [68] to [138], I am satisfied those matters do not influence, one way or another, the balance to be struck under s 60(3) of the PA. This is because the issues are relied upon to buttress or support the primary reason for refusal. Given the potency of the appellant’s primary case, it is unnecessary to give the supporting issues detailed consideration in these reasons for judgment. I have proceeded on the footing that these issues do not, in and of themselves, warrant refusal. Nor do they increase, or decrease, the weight to be given to non-compliances established with City Plan. Draft amendments to City Plan [141] Evidence before the Court116 establishes that Council has resolved to amend City Plan in at least four respects relevant to this appeal, namely: (1) to include a new Low- medium density residential zone in City Plan;117 (2) to remove the land from the Medium density residential zone and include it in the new Low-medium density 115 Ex.36, p.37, para 199. 116 Ex.14, para 6. 117 Ex.14, p.109. -- 29 of 36 -- 30 residential zone; 118 (3) to amend the building height overlay maps; (4) to amend the building height overlay map applicable to the land to include it in an area earmarked for development that is 11.5 to 12 metres in height rather than 15 metres;119 and (4) to amend Specific outcome 9 to make it clear that, inter alia, it does not apply to land included in the Low-medium density residential zone.120 Mr Schomburgk, and Mr Forsyth, readily accepted that these amendments represent a significant shift in planning policy.121 [142] It was uncontroversial that the height of the proposed development is inconsistent with the draft planning scheme amendments. The appellants submitted that this inconsistency should be given weight, but not decisive weight.122 Rather, it was said the inconsistency was one of a number of matters that point towards refusal in the exercise of the planning discretion. [143] Mr Loos submitted on behalf of Council that the planning scheme amendments ‘can only be relevant pursuant to the Coty principle’.123 In support of this submission, he cited the Court of Appeal decision in Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523. At paragraph [9] of the reasons for judgment, Bowskill J (as her Honour then was) said ‘There is therefore no legislative authority to take a draft planning scheme into account in assessing a development application’. Her honour went on to say (at paragraph [10]) that the ‘Coty’ principle permitted weight to be given to planning decisions embodied in draft planning documents that do not have the force of law; it is permitted to take these documents into account on the basis of public interest considerations (paragraph [11]). [144] I do not accept the submission made by Mr Loos. It does not give sufficient recognition to an important difference between two statutory decision making frameworks. [145] The observations in Nerinda are to be understood by refence to the statutory decision making and assessment framework applicable to that proceeding; the applicable regime was that prescribed by the Sustainable Planning Act 2009.124 That Act does not apply to this appeal. The framework of that Act is materially different to that applying under the PA. One difference is to be found in s 45(5)(b) of the PA for which there is no analogue in the Sustainable Planning Act 2009. [146] Section 45(5)(b) of the PA provides that an impact assessment may be carried out against, or having regard to, ‘any other relevant matter’. As to what constitutes a ‘relevant matter’ in any given case is to be informed by three considerations: (1) the exclusion of ‘personal circumstances, financial or otherwise’; (2) the examples that follow s 45(5)(b); and (3) the subject matter, scope and purpose of the Act.125 Here, the draft planning scheme amendments are not ‘personal circumstances’. Nor do they fall into one of the examples that follow s 45(5)(b). The question is whether the 118 Ex.14, p.225. 119 Ex.14, p.226. 120 Ex.14, p.22. 121 Ex.8, p.34; T4-45, L6-7; T4-67, L45-46. 122 Ex.36,para 100, citing Nerinda Pty Ltd v Redland Shire Council & Ors [2018] QCA 146, [10]. 123 Ex.37, para 84. 124 As identified at paragraph [45] of her Honour’s reasons for judgment. 125 Abeleda, [60]. -- 30 of 36 -- 31 existence, and substance, of the draft planning scheme amendments are a relevant matter having regard to the subject matter, scope and purpose of the PA. [147] In my view, the existence and substance of the amendments are relevant matters for the purpose of s 45(5)(b) of the PA. The amendments represent mature consideration on the part of Council (as planning authority) about its planning scheme. That consideration has led to amendments, as Mr Schomburgk and Mr Forsyth conceded, that foreshadow a significant shift in planning policy relevant to the impact assessment being carried out. In circumstances where: (1) the planning scheme is a mandatory consideration in an impact assessment; (2) s 4(c) of the PA recognises that a planning scheme is one part of ‘the system’ to achieve the stated purpose of the PA, namely ecological sustainability; and (3) material, and relevant, amendments are foreshadowed to a planning scheme, which may inform public interest considerations in an impact assessment; it is not difficult to conclude that the very existence and substance of the planning scheme amendments here are ‘relevant matters’ having regard to the subject matter, scope and purpose of the PA. [148] The matter of greater significance in this case is how, and in what way, the existence and substance of the amendments inform the impact assessment. This follows as a consequence of the terms of s 45(5)(b) of the PA, which reposes a discretion in the assessment manager (and this Court on appeal) to have regard to, or carry out an assessment against, such matters. [149] Having regard to the evidence about the draft planning scheme amendments,126 it is appropriate to have regard to the existence and history associated with the planning scheme amendments, along with a high level assessment of the application against the amendments of particular interest. With this in mind, it can be observed that: (a) the evidence establishes the draft amendments have proceeded a significant way along the process to adoption.127 This has included four rounds of public notification.128 The Minister has also been given notice of a request to adopt the proposed amendments;129 (b) it is uncontroversial that the proposed development would not comply with the draft amendments. It can be said that the level of non-compliance is serious and, on one view, more serious than the current planning scheme given Specific outcome 9 would have no application to the land by reason of the amendments, if adopted; and (c) the evidence fell well short of establishing that an approval in this case would render more difficult the implementation of the shift in planning policy foreshadowed by the draft amendments. [150] Given: (1) how far the draft amendments have proceeded along the path to adoption; (2) the draft amendments embody a shift in planning policy; and (3) the draft amendments have a direct connection with reasons for refusal in this appeal that attract significant weight; I am comfortably satisfied the existence of the planning scheme amendments and the assessment against those amendments should be taken 126 Primarily Ex.14 and Ex.35. 127 Ex.14 and Ex.35. 128 Ex.14, p.2, para 2. 129 Ex.14, p.2, para 3. -- 31 of 36 -- 32 into account as a fact and circumstance informing the exercise of the discretion. It does not however follow that they are to be given weight as a reason for refusal. [151] The draft amendments, and inconsistency with them, do not weigh heavily, one way or another, in the exercise of the planning discretion in this appeal. This is so for three reasons. [152] First, the draft amendments and inconsistency with them, do not make the task confronting the co-respondent any easier. The planning consideration of prime importance in this case involves consistency or otherwise with the assessment benchmark in force at the time the development application was properly made. Material inconsistency, that sounds in adverse planning consequences, has been established with this document. This position is not improved when the matters traversed in paragraph [149] are taken into account. [153] Second, the evidence establishes there is good reason to be circumspect about when, and in what form, the draft amendments will be approved by the Minister for adoption. An information request was sent to Council after notice was given to the Minister seeking consent to adopt the amendments.130 The substance of that document reveals the Minister raised a number of planning issues for Council’s consideration about the draft amendments. The nature of the issues raised suggest there is a concern that the amendments cut across development infill targets in areas, such as the subject locality, which are proximate to light rail infrastructure.131 A review of the information request, and Council’s responses to the request, suggests matters currently under consideration are not without merit and need to be carefully addressed. There is, as a consequence, good reason to be cautious about giving too much weight to an assessment conducted against the draft amendments. [154] Third, as I have already observed, an approval here would not render the implementation of the amendments, if adopted, more difficult. The amendments to which I have referred will have application across a large part of Council’s local government area. [155] In the light of the above, I am minded to proceed on the footing that the draft amendments, and inconsistency with them, do not warrant refusal of the co- respondent’s development application in their own right. I regard these matters as neutral in the balancing exercise required by s 60(3) of the PA. Reasons supportive of an approval [156] The co-respondent relies on a number of matters said to be in favour of approval of the development application. [157] The matters relied on are as follows:132 (a) the land is well located for the proposed development; (b) the land is well serviced by public transport; 130 Ex.14, p.2, para 4. 131 Ex.35. 132 Ex.38, p.41, paras 211 to 215. -- 32 of 36 -- 33 (c) the land is in close proximity to services, which are essential to residential living; (d) the proposed development exhibits excellent architectural and design qualities; (e) the proposed development is a contemporary, attractive and high-quality residential development; (f) the proposed development does not result in any hard amenity impacts; (g) the proposed development will not result in any unreasonable negative impacts on the amenity of nearby properties in terms of overlooking, overshadowing and overbearing; (h) to the extent there is any non-compliance with the MDRZC associated with building height, it is technical and of no planning consequence because: (i) the built form components above 15 metres will not be readily discernible; (ii) the built form components on the roof terrace will not cause any additional impact that would not otherwise be caused by a building that complies with the building height overlay map; (iii) the fourth storey makes no material difference in terms of built form, scale and impact; (iv) the development will have the same (if not a similar) level of impact as a 3 storey building. [158] I accept the co-respondent has established the matters identified in paragraphs (a), (b) and (c). Individually, and collectively, they are supportive of an approval. [159] For reasons given in paragraphs [72] to [75] and [122] to [130], I do not accept that subparagraphs (d) and (e) can be accepted absent very significant qualification. The qualification is that parts of the design are attractive and well considered. Other parts of the design are not. The negative aspects of the design cannot be ignored. They negatively impact on the merits of the design and sound in: (1) non-compliance with City Plan; and (2) adverse planning consequences. [160] For reasons given in paragraphs [40] to [44] and [72] to [75], I do not accept that subparagraphs (f) and (g) have been established. The proposed development, if approved, would have an adverse impact on visual amenity. An adverse visual impact can fairly be characterised as a tangible impact. It is also a hard amenity impact. [161] With respect to subparagraph (h), I do not accept that non-compliance with the MDRZC can be characterised as technical or of no planning consequence. The non- compliance sounds in adverse impacts. [162] Further in this context, I do not accept subparagraphs (h)(i) to (iv) have been established. Contrary to the co-respondent’s submissions, for reasons given in paragraphs [40] to [44] and [72] to [75]: (a) the built form component above 15 metres will be discernible; -- 33 of 36 -- 34 (b) a comparison between ‘compliant’ development (3 storeys) and the proposed development reveals the latter would have an additional impact by reason of its height, bulk and scale; (c) the fourth storey of the proposed development does make a material difference to the perceived scale and impact of the building; and (d) a comparison between the development approved in March 2021 and the proposed development reveals the latter would have an additional impact by reason of its height, bulk and scale. Exercise of the planning discretion [163] The co-respondent’s primary case for approval was founded on two propositions: (1) compliance was demonstrated with City Plan,133 save for overall outcome 2(d)(i) and Performance outcome PO3 of the MDRZC; and (2) the non-compliance established with City Plan was technical or devoid of planning consequences. In the alternative, it was contended that non-compliance with City Plan, including non-compliance with Specific outcome 9, did not warrant refusal134 in light of the matters set out at paragraph [157]. [164] I do not accept the co-respondent’s primary case. The assessment of the development application against City Plan has revealed a number of non-compliances, including non-compliance with Specific outcome 9(a), (b) and (d). Additional non-compliances are identified at paragraphs [73], [74], [96], [97] and [115]. Contrary to the co- respondent’s primary case, the non-compliances manifest in adverse impacts. [165] The balancing exercise to be undertaken in this case turns on whether the non- compliances with City Plan, in particular, Specific outcome 9, ought be decisive and result in refusal of the development application. [166] The appellants contend the ‘correct approach’135 to adopt in such circumstances is guided by the ‘principle expressed by the Court of Appeal’ in the Stradbroke Island Management decision. The passage of the decision relied upon is in the following terms:136 “We are prepared to accept that, implicitly, s 4.13(5) would have permitted the Council to approve the application notwithstanding conflict with the DCP if there were sufficient planning grounds to justify approving the application despite the conflict. Mr Gore QC for the second respondent, rightly conceded that, where there have been failures to comply with the development standards, as there were here, and there was a failure by the second respondent to comply with s 14, as there plainly was here, it would need to be an exceptional case to justify approving the application despite the conflict. No such exceptional case was identified. For that reason, subject to one matter to which we refer below, it is therefore unnecessary to consider this section further.” (emphasis added) 133 Including Specific outcome 9. 134 Ex.38, para 211 to 215. 135 Ex.36, para 83. 136 Paragraph [105]. -- 34 of 36 -- 35 [167] I do not accept that the emphasised part of the above passage is to be treated as a statement of ‘principle’. Read in context, the passage records a concession (correctly made) in relation to the facts of that case,137 and how the discretion under s 4.13(5) of the Local Government (Planning & Environment) Act 1990 ought be exercised with those facts in mind. Once this is appreciated, the emphasised part of the judgment above is merely recording that the facts where such that ‘an exceptional case’ was required to justify an approval in the face of specific, and conceded, non-compliance with a Development Control Plan. The reasons go on to say that such a case was not demonstrated. [168] Further, I have difficulty accepting that the ‘principle’, if it be regarded as such, has continuing application under s 60(3) PA in any event. This is because the concession recorded in the quoted passage goes to the exercise of a different discretion contained in a different Act, namely s 4.13(5) of the Local Government (Planning & Environment) Act 1990. Section 4.13(5) is expressed as a two part conflict and grounds test. This test forms no part of s 60(3) of the PA.138 Indeed, no part of s 60 of the PA seeks to mandate how non-compliance with an adopted planning control is to inform the exercise of the discretion to decide an impact assessable development application. The correct position, as endorsed by appellate authority,139 is stated at paragraph [53] of Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793, which is in the following terms: “An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s.60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. That question is no longer answered by a provision such as s.326(1)(b) of SPA. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.” (emphasis added) [169] The weight to be attributed to non-compliance with an adopted planning control is not fixed under s 60(3) of the PA. It is a matter that turns on the facts and circumstances of each case, including the nature and extent of any non-compliance. Here, the relevant facts and circumstances establish that the non-compliance with City Plan is serious and entitled to significant weight. That significant weight is to be attributed to the non-compliance in the exercise of the discretion is unsurprising given: (1) it 137 The existence of non-compliance with a development standard and a provision providing an alternative means of demonstrating compliance with the DCP. 138 Abeleda, [53]. 139 Abeleda, [54]. -- 35 of 36 -- 36 manifests in adverse amenity and character impacts; and (2) it is not suggested City Plan has been overtaken by events, or is unsoundly based, or has been applied inconsistently by Council. [170] In my view, the non-compliance with City Plan is compelling and points undeniably to refusal. In circumstances such as this, an approval would only follow where cogent and weighty town planning reasons supporting approval were established. [171] The co-respondent relies upon a number of matters said to favour approval. I have considered each of them at paragraphs [158] to [162]. This revealed that some, but not all, of the matters relied upon, have been established. Taking the ‘relevant matters’ that have been established as supportive of approval, I accept they are deserving of weight. They establish: (1) the land on which the approval is sought is well located and close to public transport and necessary facilities; and (2) that the design of the development is a contemporary one, with parts that are attractive and deserving of recognition. [172] Whilst these matters can be said to favour approval, they do not attract significant weight in the exercise of the discretion. The relevant matters represent statements of fact about the inherent characteristics of the land. In this sense, they provide insight into the reason for the land’s zoning. They fall well short, both individually, and collectively, of providing a sound town planning basis to approve the development application in the face of significant non-compliance with City Plan. Put simply, they are not responsive to the reality that an approval is being sought for development of a height that is not: (1) anticipated in the Medium density residential zone; and (2) consistent with the ‘desired future appearance’ for the local area. [173] On balance, it has not been established that an approval ought be granted. [174] I am not persuaded the co-respondent has discharged its onus. Disposition of the appeal [175] The orders of the Court will be: (a) the appeal is allowed; (b) the decision of 6 December 2021 to approve the co-respondent’s development application is set aside; (c) the co-respondent’s development application is refused. -- 36 of 36 --