Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo... [2025] QPEC 18 | Case summary

65AAesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo... [2025] QPEC 18 | Case summary | Zoe

[32]

[1] This is a submitter appeal against the respondent Council's approval of a development application permitting the co-respondent Cielo Property Group Pty Ltd to construct a 10-storey residential apartment building (the proposed development) at 90-92 Pacific Parade, Bilinga (the site).
[2] The development application was properly made on 28 August 2023. At that time, the planning scheme in effect was the Gold Coast City Plan 2016 (version 10) (City Plan).
[3] The development application was impact assessable and required public notification. The public notification attracted 32 properly made submissions and the majority were in opposition to the proposal.[1] The development application was approved with conditions on 5 March 2024.
[4] The appellants have interests in land at 89-91 Golden Four Drive, which is located immediately behind the site. On 27 October 2023, the second appellant obtained a development permit for a material change of use for a multiple dwelling on two adjoining parcels of vacant land at 89-91 Golden Four Drive (the vacant land). The appellants, between them, own the parcels of land. The vacant land has the benefit of an approval for an 11-storey, 34.4-metre-tall residential tower, which has not yet been acted upon.
[5] In the City Plan, the site is within the Medium density residential zone (MDRZ), with a maximum building height designation of 23 metres on the Building height overlay map. The proposed development is a tower rising to approximately 33.79 metres.[2] It is uncontroversial that the proposed development does not comply with the quantitative height standard designated in the Building height overlay map.
[6] Specific outcome 3.3.2.1(9) of the City Plan permits increases in building height up to a maximum of 50% above the Building height overlay map in limited circumstances in urban neighbourhoods provided a cumulative list of requirements are met.
[7] The appellants contend for refusal, arguing that the proposed development does not comply with the Council's planning scheme, in particular the height uplift provision in s 3.3.2.1(9) of the City Plan, amongst other non-compliances.

[43]

[27] While the local area is part of a longer band of residential development that extends further to the north-west (up to at least Mills Street), the visual amenity experts settled on Graham Street as marking the northern boundary. Graham Street marks a "conspicuous narrowing of the band of development (from 100m to 60m) compressing the depth of the blocks and influencing the form of development on those lots: Visual Amenity Joint Report at [14] and Ex 43.
[28] The architects describe the urban area to the north-east of the Gold Coast Highway as a relatively narrow coastal strip that includes land within the suburb of Bilinga to the south-east of Short Street and land within Tugun to the north-west of Short Street. Persons travelling along the Gold Coast Highway and Golden Four Drive will experience this area as a visual continuum, with the two suburbs appearing as one contiguous coastal urban area, due to the continuity of the settlement pattern, the consistency of the MDRZ land use designation, and the general similarity and variety of the residential built form.
[29] However, the site is located within an area which has a height overlay of 23 metres that abruptly changes to 15 metres (3-storeys) to the north-west of Mills Street and 29 metres to the south-east of Musgrave Street in Kirra. Future development, if reflecting the different height overlay designations, is likely to increasingly differentiate localities within the contiguous urban strip.
[30] The architects agree that the changes to the height overlay designations and the separation provided by the Gold Coast Highway and the coastline assist to delineate and characterise the local area of primary relevance to the site. While the identification of the 'consolidated' local area may assist to focus discussion of the proposed development's impact, the architects believe the local area remains part of the extended coastal strip. This extended coastal strip will be understood as part of the coastal strip's broader identity and sense of place: Architecture Joint Report at [29] to [33].

[56]

[47] If approved, the proposed development will be the only high rise building on Pacific Parade, other than 2 Pacific Parade, located some 300 metres south-west of the site.
[48] Given the lot pattern, land uses, and access to views, the more contemporary multiple dwellings in the area (including a number of approved but unbuilt developments) are characterised by vertically stacked, generally rectilinear floor plates, with prominent balconies directed towards the beach. A number of taller buildings incorporate recessed or contracted upper floor levels: see the Visual Amenity Joint Report at [22].
[49] For example, existing buildings to the north of the site on Pacific Parade demonstrate physical or visual recessing of upper levels: see Joint Visual Amenity Report - Figure NP12 at p 38. This design feature, amongst others, was considered to be an important feature of the existing built form (as a general although not necessarily uniform characteristic) and was held to contribute to the character of the local area in The Body Corporate for 62 Pacific: [38], [140] - [141].
[50] The evidence in the present appeal indicates that the recessing of upper levels of tall buildings is present in relation to some but not all of the existing developments, and obviously present on only one of the five approved developments shown in Ex 45.
[51] The present built form exhibits a variety of architectural styles. The taller buildings to some degree adopt various devices to minimise bulk, some more successfully than others.[14]
[52] The architectural character of the locality is neither unique or distinctive, and not necessarily of a consistent high quality. The photomontages reveal the wide variety of architectural forms and expressions in the locality. Recent buildings exhibit a contemporary coastal character, typical of other coastal areas in the region. These new developments consist of generally vertically flat stacked floor plates of similar form, with visually prominent and generous balconies that capitalise on the views towards the coastline. There are also balconies with views to local streets as well as the hinterland to the west: Mr Richards, Architecture Joint Report at [244] to [245].
[53] Overall, the character of the local area is that of a coastal, predominantly residential area that is in transition to a greater intensity of built form. There are a range of building heights and forms which seek to maximise views to the ocean, and taller buildings which include elements to reduce the impact of their bulk and scale.

[77]

(a) non-compliance with the quantitative standard expressed through the building height overlay map is a matter of significance under City Plan;

(b) building height in excess of the quantitative standard is not anticipated in the Medium density residential zone;

(c) the building height overlay map, read with s 3.3.2.1(8) of the Strategic framework, indicates that development that is non-compliant with the quantitative standard is inconsistent with the intended building height pattern and desired future appearance for a local area;

(d) where the exceedance of the height designated on the building height overlay map is up to 50 per cent, s 3.3.2.1(9) of the Strategic framework admits of a degree of flexibility with respect to building heights, subject to close scrutiny of the development in the context of the identified outcomes;

(e) if support for the proposed height is established by reference to s 3.3.2.1(9) of the Strategic framework, by operation of the hierarchy of provisions in s 1.4 of City Plan, the nature and extent of non-compliance with City Plan, in terms of building height, is materially diminished; and

(f) diversity of appearance is contemplated across different urban neighbourhoods and, as such, each case will turn on the facts and circumstances relevant to that case; but

(g) if there is not compliance with s 3.3.2.1(9) of the Strategic framework, non-compliance with s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion; and

(h) City Plan does not support an outcome where the degree of exceedance is greater than 50 per cent of the quantitative standard expressed through the building height overlay map: development of that nature conflicts with City Plan and any resultant non-compliance with s 3.3.2.1(10) of the Strategic framework and s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code is serious and entitled to significant weight as a reason for refusal in the exercise of the discretion.

[85]

[75] The provisions in issue have been grouped into categories which the appellants say are largely subsumed by the various sub-paragraphs of Specific outcome 3.3.2.1 (9), save for issues associated with excessive residential density and adverse amenity for future occupants: see the Appellants' Amended Benchmark Groupings (Ex 56). The appellants continue to rely upon the benchmarks listed under the various sub-paragraphs of Specific outcome 3.3.2.1(9) headings to support or buttress the overall allegation of non-compliance with the particular sub-paragraphs of s 3.3.2.1(9) in issue.
[76] The appellants contend that the majority of the non-compliances they rely upon, particularly of the lower order provisions of the planning scheme, including in the Medium density residential zone code, the High rise accommodation design code and the General development code, can largely be subsumed into the consideration of Strategic outcomes 3.3.1(3) and (5) and Specific outcome 3.3.2.1(9).
[77] The appellants continue to rely upon these subsumed lower-order provisions as secondary non-compliances to buttress or support the nature or extent of the non-compliance with Specific outcome 3.3.2.1(9).
[78] The appellants submit that there is non-compliance with six sub-paragraphs of Specific outcome 3.3.2.1(9) and that these non-compliances are decisive reasons for refusal. Non-compliance is alleged with sub-paragraphs (9)(b), (c), (d), (e), (f) and (g), which correspond to the amended benchmark groupings at paragraphs (2) to (7) in Ex 56.
[79] To focus the real issues in dispute, the appellants accept that non-compliance with (9)(g), namely "protection for important elements of local character or scenic amenity", does not require separate determination - if compliance is found with the other uplift criteria, the appellants accept that compliance with (9)(g) will follow.
[80] The appellants also concede that if compliance is found with the uplift provision, having considered that provision in the context of the corresponding group of lower-order benchmarks, it is unnecessary for the court to give these other provisions their own separate consideration because non-compliance will not in that event separately warrant refusal. Conversely, the appellants submit that if the court finds non-compliance with the uplift provision, it will inevitably find non-compliance with most of the other benchmarks; together this will constitute serious non-compliance with the planning scheme justifying refusal.
[81] I have considered the Appellants' Amended Benchmark Groupings (Ex 56) and have assessed the proposed development having regard to each of the assessment benchmarks. I accept that it is unnecessary for the court to individually assess each of the other assessment benchmarks as they do not, of themselves, materially impact the outcome of the proceeding. As I have said, approval or refusal of the proposed development turns upon the resolution of the four key issues identified in [74] above.
[82] As a matter of legal construction, the appellants also submit that compliance with Specific outcome 3.3.2.1(9) can only occur where all eight sub-paragraphs in that provision are complied with and that non-compliance with any one of those sub-paragraphs should be a decisive reason for refusal.[25]
[83] The respondent and co-respondent submit that the proposed development complies with the uplift provision.
[84] The respondent concedes non-compliances only in relation to height and density on the overlay maps. The height non-compliance is overtaken by the uplift provision and the density non-compliance is submitted not to warrant refusal.
[85] The co-respondent submits the proposed development is architecturally meritorious and does not result in any unacceptable character or amenity impacts. It warrants approval subject to the imposition of lawful and appropriate conditions.
[86] A number of submitters objected to the development application, although they have not all appeared on the hearing of the instant appeal. Their concerns rest in the height, bulk, and scale of the proposed development and consequent detriment to the amenity of the area. The concerns, conveniently summarised in the Town Planning Joint Report[26], include:

[89]

[88] The appellants argue that the uplift provision should be construed to intend that a development offer more than what is otherwise expected under the planning scheme to justify an increase in building height. This is said to make sense given that the planning scheme, by its other provisions (be they Strategic framework provisions or zone and other development codes), already seeks outcomes for development in relation to the matters in issue in this case, such as impacts on character and amenity, built form, and the attractiveness or appearance of the built form.[27]
[89] During the opening, the appellants submitted that the uplift provision provides an incentive to developers, which seeks from them a higher standard than is otherwise expected by the planning scheme.[28]
[90] Mr Carter[29] and Mr Turnbull[30] appeared to suggest that the phrase "in limited circumstances" required the building to be particularly excellent or exceptional to justify the application of the uplift.
[91] While those outcomes may naturally be achieved by a development which meets the criteria for the uplift, in my view, that is not the test for compliance with the uplift provision.
[92] In McLucas & Ors v Council of the City of Gold Coast & Anor [2024] QPELR 283 at [132], Rackemann DCJ considered a similar submission as it related to the housing choice and affordability criterion. There it was submitted that the bar for compliance was set too low to get the reward of the uplift and that the proposal should meet the criteria in a way that "sets it apart" from other development. Rackemann DCJ did not consider that the criteria should be affected by a preconceived assumption as to how high the bar should be. Further, it was held that the "limited circumstances" in which the uplift is available are the circumstances in which all criteria are met.
[93] In Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [125], the appellants contended that a well managed interface for the uplift provision requires something more than the bare minimum anticipated by the planning scheme for a code compliant development. The point was further developed to suggest that compliance required "a superior outcome than what is provided by a code compliant approval". Williamson DCJ had misgivings as to whether such a submission should be accepted because it involved, impermissibly, reading words into the uplift provision.
[94] It is uncontroversial that the uplift provision seeks a standard which is achieved by applying the words of the provision itself. For example, I accept the appellants' submission that "well managed" means something more than merely acceptably managed or acceptable and that the uplift provision is seeking a higher standard than average or usual management.[31]
[95] Similarly, an excellent standard of appearance presents a higher standard than some other standard which, for example, might seek to mitigate negative visual impacts. Reinforce represents a stronger standard than a requirement which merely seeks to promote or retain or not detract from a local sense of identity and place.[32]
[96] In my view, the words of the provision don't call for a demonstration of a better outcome on all criteria identified in lower order provisions, but simply that the proposed development meet the criteria in the provision. The words of the criteria should be applied. They call for value laden judgements to be made. The criteria do not prescribe a process to be followed in making the necessary judgements such as appears to be suggested by the appellants. The assessment is to be undertaken having regard to the facts and circumstances that pertain by reference to the evidence.

[91]

[97] The appellants allege that the proposed development does not satisfy outcome 3.3.2.1(9)(b) of the City Plan: a reinforced local identity and sense of place.
[98] The phrase "reinforced local identity and sense of place" is not defined in the planning scheme, and so is to be given its plain and ordinary meaning: S&S No 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42 at [86].
[99] What constitutes the relevant local identity and sense of place are questions of fact to be determined having regard to the circumstances of the case. The phrase calls for consideration of both the planned and existing local identity and sense of place: Archer v Council of the City of Gold Coast & Ors [2024] QPELR at [299].
[100] The use of the word "reinforce" requires the strengthening of local identity and sense of place. The factors that go to make up local identity and sense of place vary according to the facts and circumstances of the case. The factors to be considered are not limited to what exists at the time of the assessment. The size of the local area should not be unduly narrow. The extent of the local area considered should be informed by existing circumstances, the adopted planning controls and extant development approvals that have been granted but not yet acted upon: Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [105], [106]. Having regard to these comments, I find the local area to be that depicted in Mr Buckley's Ex 37.
[101] One of the planning concepts that informs the local identity and sense of place of an area is building height. The desired future appearance for local areas within urban neighbourhoods is shown on the Building height overlay map. Building form and design is also relevant: Archer v Council of the City of Gold Coast & Ors at [302], [305].
[102] The appellants' case is that the proposed development fails to comply with Specific outcome 3.3.2.1(9)(b), including for the following reasons:

[95]

[103] The appellants accept, as agreed by the town planning and visual amenity experts, that the character of the local area is in a state of change and is informed by, amongst other things, recent approvals, including those which exceed the building height overlay. It is also agreed that the sense of character is developing and changing and that is determined by the built form of the area.
[104] However, the appellants argue that the reasonable expectations of local residents must be gleaned from the planning scheme and that the intended character of the locality is not of 'regular' approvals in excess of 8 storeys or 23m. Under cross examination on this point, Mr Buckley posited the issue in this way: a person looking at the planning scheme reasonably wouldn't expect there to be no buildings taking advantage of the 50 per cent uplift.[33]
[105] As established by Mr Buckley's review of the existing and approved taller buildings in the area (Ex 37), the proposed development will not be the tallest building in the area, nor the widest, nor most dense.
[106] As pointed out by the appellants, the proposed development will however be the only high rise building on Pacific Parade, other than 2 Pacific Parade. The approved development at 2 Pacific Parade is at the southern end of the defined local area and at the edge of the change in height limit from 23m to 29m in the overlay map.
[107] While not a high rise as defined, Porta Pacifique (at 134 Pacific Parade and rising to 31m) is an older building on a larger allotment, surrounded by a tennis court, pool area, and landscaping. The appellants also point out that developments which generally have a larger bulk, scale, and form are located on larger parcels of land. While it is true that, for example, the Pavilion 1 and 2 developments and 2 Pacific Parade are on larger parcels of land, it is also true they are larger buildings.
[108] Three other high-rise towers have been approved along Golden Four Drive, as outlined at [46] above. The appellants accept that the planning scheme draws no distinction between Pacific Parade and Golden Four Drive in respect of zoning designation, height limit, or density. It is argued however that the impact of these developments on the overall coastal character is dissimilar to the impacts of the proposed development, by reason of their more distant location from the parkland and foreshore. From the parkland and foreshore, and driving along Pacific Parade, it is argued these buildings do not visually intrude upon the parkland or foreshore due to their more distant location and the parallax of views.
[109] The appellants' essential point is that due to its height, scale, and location on a narrow allotment, the proposed development will negatively dominate the local area particularly from the public realm. Further, by reason of its poor separation with the adjoining Golden Four Drive development, the proposed development will result in a conglomeration or massing of two high rise towers; this will be another unique feature of the locality, and by dint of that will be out of character. The appellants argue that no other built form within the local area dominates its surrounds to the same degree as the proposed development will with its combined height, inadequate upper-level side and front setbacks, high density, and highly visible location; the dominance of the building will be out of character with the identity of the local area. As such, the appellants submit that the proposed development is at odds with and does not reinforce the local identity and sense of place.
[110] The appellants argue that the proposed development fails to comply with the related benchmarks identified in Ex 56 at paragraph 2. The development is said to negatively impact upon the amenity, character, and living conditions both within the development (due to rear unit treatments) and for neighbouring properties and the broader public realm (due to its dominant height, bulk, and form), thereby failing to align with the planning scheme's desired outcomes for promoting well-being and potentially cohesion: this fails to comply with Strategic framework SO 3.3.1(3) and (5). In respect of the remaining benchmarks, the appellants argue that the proposed development's prominent location and design attributes (height, bulk, scale, and minimal setbacks at the upper levels) result in a dominant and uncharacteristic building that is not appropriately cognisant of the desired future character or the distinct identity of the Pacific Parade locality and fails to adequately reinforce or reinterpret its relaxed seaside residential character.
[111] The co-respondent argues that the appellants' contentions are predicated on the court ignoring the properties and approvals located on Golden Four Drive as an influential part of the local identity and sense of place. This, the co-respondent submits, is not the appropriate approach and would result in an undue narrowing of the local area.
[112] The local character of an area should be interpreted broadly and not by reference to a narrow inquiry. Without good reason, the court should not adopt an overly restrictive approach or confine consideration to a narrow radius around the site: WBQH Developments Pty Ltd v GCCC (2009) QPELR 748 at [25]. However, a consideration of a more localised context may be relevant to ensure characteristics to the immediate locality are not glossed over by the use of a broad descriptor applying to a broader study area: Bell Co Pty Ltd & Ors v City of Gold Coast & Anor [2022] QPEC 32; [2023] QPELR 1160 at [84] to [85].
[113] I do not consider there is any logical reason to split the locality between Pacific Parade and Golden Four Drive, although I also do not apprehend the appellants' argument seeks to do so.
[114] I accept that by its location on Pacific Parade, the proposed development will have a more immediate visual connection to the foreshore than a development which is further removed from the beach on Golden Four Drive. The fact that the development is centrally located on Pacific Parade does not tell against approval, nor does the fact that it adjoins another uplift development. If the proposal is found to satisfy the uplift provision (which includes criterion (c) and requires a well-managed interface with nearby development), that is a matter which weighs heavily in support of an approval.
[115] I do not accept that the height exceedance is "atypical" on Pacific Parade, where both 134 Pacific Parade (existing) and the two towers at 2 Pacific Parade (approved) are of a similar height. The fact that Golden Four Drive has transitioned to medium and high-rise buildings quicker than Pacific Parade is unremarkable. Similar to what was described in Heidelberg Business Park Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2025] QPEC 14 at [63], it will take time to achieve the planned character for Bilinga. The transition is happening at a more accelerated rate on the Golden Four Drive side of the local area, but the character of the Pacific Parade side of the locality is not static. The planning scheme encourages change, which is to be reasonably expected throughout the locality and not just on land parcels with a frontage to Golden Four Drive.
[116] In my view, the photomontages demonstrate that the proposed development will not overly dominate the coastal environment, the foreshore, or Pacific Parade in a visual sense: see Ex 5, pp 20 and 29, where the layering of built form from Golden Four Drive and Pacific Parade are both apparent from Pacific Parade and beyond.
[117] Consistently with that view, Mr Mewing describes the reinforcement of the local identity and sense of place by "urban consolidation with taller buildings".[34] The appellants' town planning expert, Mr Holt considered that the proposed development generally complied with this criterion.[35]
[118] I am assisted by the opinions of the architects, Mr Curtis and Mr Richards and the visual amenity experts, Dr McGowan and Mr Powell.
[119] Mr Curtis considers the proposed development is shown to be consistent with and reinforce the differences in the appearance, bulk, and scale between neighbouring buildings that creates an eclectic mix of old and new development. The proposed development responds to the setting and sub-tropical climate with prominent private outdoor space and fenestration that characterises the building's appearance and provides access to views, sunlight, and breezes to support a lifestyle that is engaged with the setting. The proposed development has an overall form that is consistent with recent taller multiple-dwelling building developments that are characterised by elongated floor plans that generally reflect the longitudinal shape of the lots: Architecture Joint Report at [240].
[120] I consider, as identified by Mr Curtis in evidence, that the design of the proposed development has been resolved to address its site constraints, including through what he describes as a "rich palette of varied architectural elements"[36] of articulation and modulation which incorporates:

[115]

[136] The term relationship is broad enough to include a visual relationship[49] as well as matters of privacy, overlooking, and shadowing.
[137] Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober, and simple notion not effected by some special sensitivity or eccentricity. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject: see Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QCA 444; [2008] QPELR 324 at [40] (citations and footnotes omitted).
[138] The use of the term 'overbearing' in an amenity and character context typically refers to the visual relationship between built form and a potential receptor. The receptor can be a person or other built form. An overbearing visual relationship is one characterised by excessive visual dominance in light of the relevant circumstances. The relevant circumstances include the existing character of an area, the content of adopted planning controls, and rights conferred by extant development approvals that, at the time of the assessment, have not been acted upon: Heidelberg Business Park Pty Ltd & Ors v Council for the City of Gold Coast & Anor [2025] QPEC 14 at [76].
[139] In summary, the appellants contend that the proposed development will not achieve a well-managed interface with nearby development because:[50]

[140]

[167] In considering the impacts of the proposed development on outlook and views from the appellants' building, Mr Powell identified that views of the ocean from below the height overlay of 23m are less likely to be obtained into the future as the area is developed. Mr Powell considered that even from these levels which are situated below the height overlay, elongated views of, or towards, the ocean from the balconies of 89-91 are invited, due to the proposed development adopting better than acceptable outcome setbacks, due to the development interface in the north comprising a driveway, and due to the stepped configuration of side balconies at 89-91: [104] Visual Amenity Joint Report and Figures NP4 and NP5 at p 26.
[168] On the levels above the height overlay (being levels 7, 8 and 9) of the proposed development, Mr Powell considers the prospect of unreasonable impacts on outlooks or views is again adequately mitigated by a combination of the relatively generous rear setbacks and of a narrow south-west elevation, notably tapering towards the top, with the uppermost level shifting alignment to benefit neighbouring upper level balconies. Impacts are further mitigated by the neighbouring building having an internal arrangement which focusses views out from the northern most unit at an angle to the rear boundary as demonstrated in Figure NP9: [105] to [107] & p 29. As can be seen in Figures NP6 and NP7 at pp 27 and 28, there is a slight reduction in open views on levels 7 and 8 compared to the AO setback, with the proposed development providing a semi-open view across the balcony corner.
[169] Mr Richards notes that the proposed development maintains a view corridor through to the beach from the Golden Four Drive development. This view would also be maintained if a similar scale development on the neighbouring lot were proposed at 88 Pacific Parade, as opposed to a single development at the same scale as the 89-91 Golden Four Drive development: Architecture Joint Report at [102]. Those maintained view lines between buildings are helpfully depicted by Mr Richards in Figure 388 at p 41.
[170] The planning controls do not provide absolute protection for loss of views from private development. Rather, they seek to protect the amenity of neighbouring residents. PO4 of the HRAD Code seeks to promote "view corridors between nearby towers". In my view, that is achieved by the proposed development, having regard to Mr Richards' diagrammatic analysis.

[141]

[171] The issue of access to sunlight and overshadowing were the subject of evidence from Mr King (regarding light amenity) and Mr Powell (regarding overshadowing). Mr Peddie also expressed views about shadowing and solar access, as did Mr Carter.
[172] Mr King opined that the proposed development would provide adequate access to natural lighting and direct sunlight.[60] He also identified that even when shadows are cast over an adjacent building, there remains access to natural light as reflected light, rather than direct sunlight.[61] In terms of the impact on the Golden Four Drive development, Mr King accepted there would be shadowing caused by the proposed development, which would change throughout the course of the day and throughout the season and time of year. In his opinion, at all times adequate light will be available to the apartments in both developments. At certain times, direct sunlight will be available and at other times reflected light. Mr King considered appropriate amenity will be achieved for both developments with respect to daylight.[62]
[173] Mr Powell understands that the season with the greatest potential to impact daylight access is winter, with the greatest potential impact to surrounding properties being during the mid-winter morning (9 am to 12 noon).[63] For context, Mr Powell notes that the mid-winter afternoon shadows (3pm), including those of 23m high buildings, are expected to extend a substantial distance into the rear of properties to the south. With respect to the mid-winter morning shadows, the prospect of unreasonable overshadowing impacts is largely mitigated by the narrow south-west elevation, which promotes a fast-moving shadow that will move quickly across and down the face of the neighbouring building at the rear. Figures NP10 and NP11 demonstrate that the shadow is fast moving, likely impacting the northernmost corner balcony of the rear neighbour just before 9 am, but starting to move off that balcony, and the north-west face of that building, before 12 noon mid-winter: Visual Amenity Joint Report at [108] to [111], pp 29 - 30.
[174] In addition, Mr Powell analysed the level of shadowing in mid-winter that would result from the proposed development as compared to a code assessable development.[64] The impacts are visually depicted in Figures 1 and 2 in his separate report. Mr Powell ultimately opined that, with regard to the additional height above the 23m overlay, the impacts arising from the proposed development are limited in extent and duration.[65] In his analysis, Mr Powell had regard to the actual impacts on the ground, including the likely use of those areas where additional shadow would impact, including a shared driveway, shade trees, and the roofs of 80 and 88 Pacific Parade.[66] I prefer the evidence of Mr Powell over that of Mr Peddie, who did not undertake such an analysis, although he did undertake a sun's eye view comparison.[67]

[154]

[196] In Mr Carter's opinion, an excellent standard of apartment building appearance can only be achieved if all other aspects of the design are also excellent: Architecture Joint Report at [214]. Mr Carter's assessment of this criterion appears to have been heavily informed by his overarching amenity concerns. As the building did not properly manage the amenity impacts, he opined it was not of an excellent appearance.[77]
[197] Mr Holt considers the proposed development does not comply with this outcome: Town Planning Joint Report at [126].
[198] I accept Mr Richards' opinion that excellence in design is an expression of how the design integrates and resolves a range of ideas that combine to inform the architectural expression. Each idea in itself may be straight forward or unremarkable but can achieve excellence in combination with other design ideas. The combination of these attributes demonstrates a thoughtful, elegant design that achieves excellence in architectural expression and streetscape relationships: Architecture Joint Report at [203].
[199] Mr Richards considers the proposed development has a consistent architectural language of curved forms which overall softens the built form within its setting. At [205] to [211] of the joint report and visually depicted at Figures 54 and 55, Mr Richards identifies the various design elements that combine to produce a building of excellent appearance.
[200] The street façade has a strong vertical proportion, with expressed columns and arched openings in the lower storeys that frame the lower balconies and break up the mass of the front and rear facades. The slender profile presenting to the street minimises the visual impact of the building when viewed from the beach. Generous visible balconies capture views to the street and beach. The upper façade comprises of full width cantilevered balconies creating a light feathered end to the most visible facade: [205], [212].
[201] Curved recesses break up the longer façade, which allows the building to read as four connected vertical elements. This verticality is enhanced by the full height solid windows, window walls, and vertical screening, creating vertical striping through the façade as a counterpoint to the section of horizontal expressed floor slabs. The vertical sunscreens provide shading and additional privacy to bedrooms and living areas along the side boundaries. Landscaping recesses and additional curved recesses break up the length of the façade: [206], [212].
[202] The floors slabs are expressed at various intervals by extending beyond the façade. This achieves a convincing human scale to the façade and, with the balconies and windows, demonstrates the way that people can occupy this building: [207].
[203] At ground level, the building is grounded by a solid base that has the appearance of being sculpted from the mass of the archways above. The building's primary entrance is from Pacific Parade, with the pedestrian entrance flanked by curved forms and planting. The driveway is setback from the front boundary and separated from the pedestrian entrance by low level landscaping: [208].
[204] The curved forms in the plan soften the building edges and contribute to a dynamic skyline: see Figure 55 - note 4 at p 65.
[205] Mr Curtis agrees with Mr Richards. He adds that the vertical forms are accentuated by variations and combinations of materials and colour. The vertical forms assist to balance the proportions of each façade's length with the building's height and contributes to the visual fragmentation of the building's overall bulk: Architecture Joint Report [178].
[206] Mr Curtis' detailed analysis of the features which result in an excellent appearance of built form appear at [177] to [184] of the Joint Report. Mr Curtis also helpfully provides a detailed analysis of the landscaping elements at [185] to [195]. Based on those observations, Mr Curtis concludes the proposed development:

[170]

[219] In the present appeal, the appellants press for a different interpretation of s 3.3.2.1 (9)(f), such that compliance requires the provision of at least a component of affordable housing as that term is defined in the City Plan.
[220] While I am not bound to adopt the construction in Archer, any departure from an earlier decision as to the interpretation of a provision is to be approached cautiously. For the appellants to succeed, they must demonstrate that the construction in Archer is plainly wrong.[84] While the City Plan (version 7) was applicable in Archer, the relevant provisions mirror those in the City Plan (version 10).
[221] The appellants rely upon a number of policy and legislative documents which were not before the court in Archer. It is also submitted that evidence was not led in the earlier cases of the current customary usage of the term "housing affordability".
[222] The appellants contend that the word "affordability" in "housing choice and affordability" quite clearly should be qualified by the word "housing", such as to read "housing affordability". The term housing affordability is not defined in either the Act, the Planning Regulation 2017, or the planning scheme definitions.
[223] Applying the usual principles of statutory construction, the appellants submit that the term housing affordability in both the purposes of the Act and in the City Plan should have the same meaning as can be derived from the outcomes expressed in the State Planning Policy and Regional Plan. The purpose of the Planning Act 2016 is set out in s 3. Pursuant to s 5 (2)(f), advancing the purpose of the Act includes providing for housing choice, diversity and affordability.
[224] Further, leaving that aside, the choice in the City Plan to use language of such generality means the court, in the absence of a contrary intention, should construe the provision to have a contemporary meaning which may vary over time. The court should adopt an ambulatory approach, embracing changes that occur in the subject matter.
[225] The necessary inquiry then is of the current ordinary or customary meaning of "housing affordability".[85] The appellants submit that Ex 32 to Ex 36 show that the current meaning and customary usage of the term "housing affordability" is of providing affordable housing or, at least, of comprising as a measure the relationship of a person or household's gross income compared to their housing purchase or rental cost. The relevant exhibits summarised are as follows:

[177]

[235] Pursuant to s 8(4) of the Act, to the extent of any inconsistency, a State planning policy or regional plan applies over the planning scheme:[86] see also Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203 at [11] and [15].
[236] The term "housing choice and affordability" appears, unqualified, as the title in Part 8.5 of the South East Queensland Regional Plan 2009 - 2031 (Regional Plan): Ex 29 at p 95. The stated principle is to provide a variety of housing options to meet diverse community needs, and achieve housing choice and affordability.
[237] At 8.5.2, a stated policy is to provide housing choice through a range and mix of dwelling type, size and location in residential developments. At 8.5.4, another stated policy is to encourage all major development to incorporate affordable housing, including appropriate housing for the entry buyer and low-income housing markets. The notes state, amongst other things, that providing diverse and affordable housing options is an important issue and key challenge both nationally and in SEQ. The notes also state that household change is creating demand for more housing options, including more affordable housing.
[238] Under the State Planning Policy 2017, one of the state interest policies under Part E is planning for liveable communities and housing, which encompasses housing supply and diversity and liveable communities: Ex 30 at p 1 and pp 22 - 26. One policy, amongst others, that must be appropriately integrated into planning and development outcomes is expressed as: the development of residential land is facilitated to address and cater for all groups in the current and projected demographic, economic and social profile of the local government area, including households on low to moderate incomes: Ex 30 at p 24.
[239] A fair reading of the policy objective in Part 8.5 of the Regional Plan is to provide for a variety of housing options, including, but not exclusively, affordable housing. The state interest policies in the State Planning Policy equally cast the notion of 'affordability' in broader terms. For example, at p 22 it is stated: While housing affordability is influenced by many factors, the planning system has a role to play in facilitating affordable housing outcomes and, more broadly, affordable living to ensure Queensland is a great place to live, work and enjoy.
[240] The Regional Plan is explicitly called up by the terms of the City Plan: see Part 2.2. The State Planning Policy 2017 (Ex 30) post-dates the commencement of the City Plan, although pursuant to s 2.1 the (then existing) state planning policy is identified as being appropriately integrated into the City Plan as it relates to liveable communities and housing supply and diversity. Irrespectively, neither document advances in any meaningful way the appellants' contention that the construction in Archer is plainly wrong.
[241] Nor do these higher order documents warrant reading into s 5(2)(f) of the Act a restraint on "affordability" such that it means exclusively "affordable housing" for low to moderate income earners, rather than affordability in a broader sense.
[242] During oral submissions, the appellants' counsel accepted as true that the State Planning Policy, the Regional Plan, the planning scheme and other documents refer to housing choice and mix. The appellants' construction point was directed at what was meant by the word "affordability", which was said to be separate and distinct from choice.

[182]

[250] In the economic literature, one measure of housing affordability is the ratio of housing costs to gross household income. Both in society and within economic policy, the phrase housing affordability is commonly interchangeable with affordable housing.[87]
[251] In my view, the phrase housing affordability does not assume a particular meaning in the field of economics which differs from its ordinary commonly understood contemporary meaning. When used in the narrow sense, it is doubtful that the commonly understood meaning of housing affordability has changed over time. There is no warrant to resort to an ambulatory approach in the construction of s 9(f).
[252] The planning scheme defines "affordable housing" in terms of a ratio but does not use that defined term within the uplift provision. As previously held by this court, choice and affordability are relative concepts. The criterion is to be read in the context of what the City Plan otherwise provides about choice and affordability. Affordability is a broader concept, which includes both the initial and ongoing cost of housing and has a link to, amongst other things, the provision of choice and the city's shape: Dajen Investments Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2023] QPEC 32 per Rackemann DCJ at [82].
[253] In the case of the MDRZ, the scheme seeks not only a generous mix of housing form and sizes[88] but also a generous mix of affordability outcomes that meet the needs for the locality. A given proposal, on a particular site, might well contribute towards that generous mix within the zone even though the product within the development is not itself mixed: see Dajen Investments at [83].
[254] As explained by Mr Buckley, areas of a large, locationally, and socially diverse city such as the Gold Coast are not homogenous; the cost of housing in one part of the city has no direct comparison to other parts and will be subject to its own supply and demand fluctuations: Town Planning Joint Report at [93(a)].

[186]

[259] With reference to the concept of "affordable living opportunities" articulated in s 3.2.1 of the planning scheme, Mr Duane considers the proposal will contribute to housing affordability by creating density around well-located places with good infrastructure, transport, and proximity to employment centres.[89] Overall, the proposal will provide affordable living opportunities in a location with a high degree of existing and future infrastructure: [142].
[260] Mr Duane says that while the proposed development will provide a particular net community benefit to a more affluent segment of the market to meet their housing needs and choices, that in turn frees up more modest accommodation or other sites to be developed for a less affluent population: [73].
[261] In Mr Duane's opinion, even if the housing choice and affordability limb required the provision of affordable housing, it would not be economically sensible or efficient to provide affordable housing in a beachfront development. That is because the price point of any such dwelling would not be affordable for people in the lowest income brackets.[90]
[262] Mr Turnbull's evidence appeared, in part, to invite an assessment of need and housing choice and affordability based on the difference in height between the 23m overlay and the height of the proposal. He agreed that adding 4 to 6 additional 3-bedroom units would contribute (albeit negligibly) to housing choice but maintained that affordability was not addressed by the provision of a new housing product targeting the affluent end of the market and at a significantly higher price point than the surrounding stock in the local area.[91] In the result, he concluded there would be a negligible impact on housing choice and that affordability would not be improved. It is not entirely clear if Mr Turnbull applied the broader interpretation of s 9(f) as construed by past decisions of this court. I have considered Mr Turnbull's evidence as part of the evaluative assessment, but I am not persuaded by it.
[263] Mr Turnbull considers the area is undersupplied for retail and services and that the medium density residential zoning might actually exacerbate travel issues associated with a lack of local convenience retail and services. Mr Turnbull agrees that leveraging existing public and private infrastructure is sound planning, but notes that the stage 4 extension of the G:link is not yet funded and is not likely to be realised within the next five years or so.[92]
[264] The relevant infrastructure is depicted in the Economic Need Joint Report at pp 22 - 23, Maps 3 and 4, as well as a map prepared by Mr Duane (Ex 27). Mr Duane notes that the retail at Kirra is more extensive than indicated by Mr Turnbull in his separate report at Map 1 (Ex 24). Mr Duane further marked on his map the new Kirra Point development which has approval for retail floor space.[93] He also notes that the Gold Coast Airport Master Plan 2024 (Ex 28) anticipates a future retail precinct.[94]
[265] Mr Duane highlights Maps 3 and 4 which illustrate the major infrastructure within the surrounding area, including shopping centres, public transport, schools, education facilities, and sporting facilities. Mr Duane notes there are major employment nodes within the surrounding area, including the Airport, Southern Cross University, the Coolangatta/Tweed area, and John Flynn Hospital. Mr Duane considers that shopping facilities are conveniently located near the site. The closest major supermarket is within 2 km at Coolangatta/Tweed, and the shops at Kirra are within 1 to 1.1km. [95]
[266] I accept Mr Duane's comprehensive analysis of the existing and anticipated infrastructure and services.
[267] From a town planning perspective, Mr Mewing considered that the development would contribute to housing choice and diversity by providing an infill product and contribute to housing affordability through the provision of additional housing stock, assisting in the planning ambition to alleviate pressures on supply.[96]
[268] Mr Buckley considered the affordability dimension in relative terms and opined that the provision of additional stock assists positively in this regard.[97] The appellants' town planning expert, Mr Holt considers the proposed development generally complies with this outcome.[98]
[269] Finally, the appellants point out that a proposed development seeking a height uplift would almost always satisfy the broader construction presently applied by the cases; this, they submit, renders the criterion almost meaningless. On this point, the uplift provision is not confined to a building of this height and within this overlay. It applies to all height overlays and to single and multiple dwelling approvals. It is not for the court to second guess the various other circumstances in which the provision may or may not be satisfied.
[270] I am satisfied the proposed development complies with s 3.3.2.1(9)(f).

[191]

[277] Because the proposed development's residential density is materially more intense than that permitted by the planning scheme, the appellants contend the development application ought to be dismissed on this basis also, apart from, and separately to, the asserted non-compliance with s 3.3.2.1(9).
[278] Performance outcome PO5 of the MDRZ Code requires that density not exceed that shown on the Residential density overlay map. The site is within the RD6 designation on the overlay map.[102]
[279] The density of the proposed development is 1 bedroom per 14.9 square metres, compared to the overlay map provision for 1 bedroom per 33 square metres. Other existing and proposed developments in the local area also exceed the density shown on the overlay map: Ex 37 and see, for example, the appellants' proposed development with a density of 1 bedroom per 11.7 square metres.
[280] The appellants' case is that the exceedance of 121% from the prescribed maximum, represents a serious non-compliance with the planning scheme which is not answered by compliance with the uplift provision (if proved). The appellants point out that the proposed development falls within the RD6[103] precinct, although has a density that accords with the RD8 precinct, which is the highest density precinct recognised by the Residential density overlay map.
[281] This performance outcome is a quantitative benchmark, against which the appellants contend there is no alternative complementary solution which can be measured or realised. The appellants seek to contrast the MDRZ Code planning control with the Centre Zone Code, which expressly contemplates in overall outcome 2(f) density in excess of that shown on the Residential density overlay map, subject to meeting prescribed outcomes.
[282] In S & S No 4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42, overall outcome 2(f) of the Centre Zone Code was stated by Williamson DCJ at [129] to be akin to a density uplift provision. The appellants argue that the absence of an analogous provision within the MDRZ Code is a strong indicator that the densities prescribed by the overlay map are not intended to be exceeded within this zone.
[283] At paragraph 8 of the appellants' amended benchmark groupings (Ex 56), non-compliance with overall outcome 6.2.2.2(2)(b)(v) of the MDRZ Code is alleged:

[195]

[286] Because the subject site is within one of the higher density precincts, the appellants accept it potentially falls within a locality serviced by public transport. However, it is argued that the site does not fall within the City's "high rise coastal spine" and is not sufficiently near centres. This is said to reinforce the planning intent that the subject site is not to be developed at the scale proposed.
[287] While not defined, the 'high rise coastal spine' is said to be described in the Strategic framework Strategic intent 3.2.2 _City shape and urban transforma_tion, which explains where taller buildings will be delivered. Within that framework, the site is not located within Southport, Surfers Paradise, Broadbeach, nor within a mixed use or specialist centre, nor within one of the seven additional prescribed urban neighbourhoods which are designated to accommodate high rise buildings.[104]
[288] The respondent and co-respondent contend that the site is within the "high rise coastal spine", which is to be interpreted more broadly as the connected coastal area. The use of the words 'high rise' is said to connect the phrase to an area where a high-rise building is acceptable; this includes the subject locality by virtue of the uplift provision (in the context of the height overlay at 23m).
[289] The coastal spine may be understood as the connected coastal area of the City of Gold Coast, which consists of both high rise and low rise built form.[105] For the purposes of this appeal, it is not necessary to determine whether the high rise coastal spine should be interpreted in the narrow sense urged by the appellants.
[290] The overall outcome in 6.2.2.2(d)(ii) does not require the transition to higher intensity areas to be located exclusively within centres, or within the high rise coastal spine, but rather near to both, assuming a narrow interpretation of the latter phrase. If the phrase "high rise coastal spine" is understood in a broader sense, the proposed development is within it.
[291] Irrespectively, as identified in Archer at [454], complementary higher order provisions which address intensity and density include ss 6.2.2.2(2)(a)(i) and (ii), b(i) and (ii), and (d)(ii), which state:[106]

[208]

[295] In Mr Mewing's experience, residential density is not an accurate indicator of development intensity because it is influenced more by the number of bedrooms than by gross floor area. He also notes it is a metric which is typically exceeded by multiple dwellings in the Medium density and High density residential zones, whether code or impact assessable. The major town planning implications of any excessive density are likely to be for capacity of urban services - primarily water supply, sewerage, stormwater, and the transport network: Ex 7 at [193], [194].
[296] Mr Holt agreed that residential density and exceedances in density are largely a contributor to an unreasonable load on the infrastructure demand and capacity within a locality. He agreed that the site location in relation to transport accessibility, proximity to centres, parkland and open space, and health and education facilities generally support an exceedance in dwelling density: Ex 7 at [201], [204].
[297] Mr Mewing described the intent for development along the coastal spine of a scale that is medium to high rise, within an urban neighbourhood.[109] In re-examination, he explained that the subject site has good connectivity to public transport services. It is close to major employment concentrations and centres, and social and community infrastructure, including the airport and the university. It is very close to a small neighbourhood centre and close to the Kirra and Coolangatta centres beyond.[110]
[298] The appellants argue the site is sufficiently distant from the Coolangatta precinct and from other retail and non-retail services, such that it does not warrant a town planning outcome at this scale of density. While given in the context of housing choice and affordability, the appellants rely upon Mr Turnbull's evidence that the location is sparsely provided for in terms of local amenities and infrastructure. The local amenities are detailed at [264] to [265] above, with Mr Turnbull's map not quite capturing their full extent. While I accept that the Coolangatta centre is not within walking distance, the planning scheme does not impose this as a requirement.
[299] I accept Mr Mewing's and Mr Holt's evidence that the site location supports an exceedance in density.
[300] Further, as is evident from the findings above with respect to the built form and its impact, even though the proposed development exceeds the density limit, the exceedance does not sound in unacceptable planning and amenity impacts.
[301] Although the proposed development does not comply with performance outcome PO5 of the Medium density residential zone code, the non-compliance is not a weighty consideration telling against approval.
[302] I have reservations about the appellants' characterisation of this single assessment benchmark as a planning strategy. Even if it could be so regarded, I am satisfied that the approval of greater density in this case would not of itself cut across future achievement of the planned density in the Medium density residential zone, either in this location or more broadly across the Gold Coast.[111]

Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 18

At a glance

Court

Decision date

Source

Judgment (301 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)